SECOND SECTION

CASE OF GOLUBAR v. CROATIA

(Application no. 21951/15)

JUDGMENT

STRASBOURG

2 May 2017

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Golubar v. Croatia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
	Işıl Karakaş, President,
	Julia Laffranque,
	Paul Lemmens,
	Valeriu Griţco,
	Ksenija Turković,
	Jon Fridrik Kjølbro,
	Georges Ravarani, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 21 March 2017,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 21951/15) against the Republic of Croatia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Croatian national, Mr Josip Golubar (“the applicant”), on 30 April 2015.
2.  The applicant was represented by Ms I. Bojić, a lawyer practising in Zagreb. The Croatian Government (“the Government”) were represented by their Agent, Ms Š. Stažnik.
3.  The applicant alleged, in particular, that the detention facilities in which he had been incarcerated had not been able to provide him with appropriate medical care.
4.  On 8 October 2015 the above complaint was communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
Article I.	I.  THE CIRCUMSTANCES OF THE CASE
5.  The applicant was born in 1955.
6.  On 26 February 2014 the applicant began to serve a three-year prison sentence. He was placed in Zagreb Prison Hospital (“ZPH”).
7.  On 28 February 2014 the applicant applied to a Zagreb County Court judge responsible for the execution of sentences and the head office of the Prisons Administration requesting the suspension of his prison sentence on account of his state of health. He claimed that from 5 to 12 February 2014 he had been hospitalised in Dubrava Hospital in Zagreb because he had suffered a stroke. He also had two brain arteriovenous malformations, one of which had been removed in February 2013 by means of gamma knife radiosurgery, and the three-year high-risk recovery period had not yet ended. He referred to his medical documents, which had established basal ganglia in the ventricular system with a risk of haemorrhage, increased by the stress of the prison conditions. He also claimed that in combination with the epileptic fits from which he suffered, his health issues could be life-threatening.
8.  A medical report drawn up by ZPH on 6 March 2014 confirmed the claims put forward by the applicant in his request and concluded:
“[The prisoner] presents a permanent high risk to himself and the institution in which he is placed. The expert opinion is that two or three years are needed for his brain condition to stabilise after the gamma knife surgery. We consider his request for a stay of his prison term medically justified.”
9.  On 18 April 2014 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request. This decision was based entirely on an opinion given by Dr B., an expert in internal medicine and cardiology. Dr B. concluded that the applicant was not suffering from any acute illness and that during his time in ZPH his chronic illness had not worsened. Dr B. also stated that in the event of a sudden deterioration in the applicant’s state of health, he could easily be transferred to an appropriate medical institution. Lastly, he asserted that the applicant’s current medical problems could be appropriately treated at ZPH.
10.  On 25 April 2014 the applicant lodged an appeal, in which he argued that since incarceration his medical condition had been deteriorating constantly, that the ZPH doctors had themselves recommended that his prison sentence be suspended on medical grounds, and that Dr B. could not give a proper opinion on his health since he was not an expert in neurology.
11.  On 8 July 2014 a three-judge panel of Zagreb County Court quashed the first-instance decision and instructed the first-instance court to order an expert opinion from a neurologist.
12.  On 21 August 2014 the same Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request. The decision was based mainly on the opinion given by Dr M., an expert in neurology. She concluded that the applicant had not been suffering from any acute illness, that his chronic illness had improved, that he had been receiving good medical care at ZPH, and that it had appropriate staff to meet the needs of the applicant as regards the medical care his condition required.
13.  On 27 August and 4 September 2014 the applicant lodged appeals, in which he contested the qualifications of Dr M. and the validity of her opinion. He argued that she had not answered the question whether ZPH had adequate staff and could otherwise properly treat his medical condition. He further argued that the judge responsible for the execution of sentences had not addressed the contradictions between the findings the ZPH doctors had expressed in their opinion of 6 March 2014 and the reports of the medical experts commissioned by Zagreb County Court. He also asserted that his medical condition could only be properly treated in a specialist medical institution.
14.  Following a suggestion by ZPH that there was no need for the applicant’s further hospitalisation, on 29 September 2014 the head office of the Prisons Administration ordered his transfer to Zagreb Prison. On 2 October 2014 he lodged an appeal, arguing that neither the staff nor equipment at ZPH was satisfactorily suited to carry out proper diagnostic examinations to accurately assess his medical condition. He asked for an urgent transfer to a suitable medical institution where a proper diagnostic examination could be carried out. The applicant’s appeal was dismissed on 14 October 2014 by the Prisons Administration.
15.  On 31 October 2014 a three-judge panel of the Zagreb County Court dismissed the applicant’s appeal against the decision of 21 August 2014, endorsing its reasoning.
16.  On 19 November 2014, at his request, the applicant was taken to the Sisters of Mercy Hospital in Zagreb so that neurological tests could be carried out. During his transfer in a police van he suffered an epileptic fit and lost consciousness. This was discovered only on arrival at the front entrance of the hospital when officers opened the back door of the van and found him lying on the floor. He spent ten hours at the hospital and was then returned to Zagreb Prison.
17.  On an unspecified date the applicant lodged a constitutional complaint against the decisions concerning his request for the suspension of his prison sentence and the decision concerning his transfer to Zagreb Prison. In addition to the complaints put forward in his previous requests and appeals, the applicant also complained that during his eight months at ZPH he had not had proper access to sanitary facilities and had been obliged to ask the guards to let him out of the room each time he needed the toilet, a request which they sometimes had not answered in time. Since there had been no lift at ZPH, in order to have access to fresh air he had had to climb the stairs to his cell on the second floor, which had been a risk to his health. He further reiterated that ZPH had no neurology department or even a neurologist, so his condition could not have been properly treated there. Even though specialists from the two civil hospitals where he had been treated prior to his imprisonment had recommended that check-ups be carried out every month, he had not been given them.
18.  The applicant also complained about the conditions in Zagreb Prison. He claimed that he had been placed in a cell with seven other inmates, and that a lack of fresh air in the cell had worsened his condition. There had been a squat toilet in the cell, which had not been completely private and a foul smell had emanated from it. Inmates had had to eat in their cells. There had been no lift, which had prevented him from accessing fresh air.
19.  On 31 December 2014 the applicant lodged another application for the suspension of his prison sentence on health grounds, reiterating his previous arguments. He also complained that since 19 October 2014 he had not had any access to daylight and that any access to fresh air had been prevented by construction of a lift in ZPH.
20.  On 5, 9, 15 and 17 January 2015 the applicant was taken to Rebro Hospital in Zagreb. A report drawn up there on 15 January indicates that there was no need for any urgent measures. It was also established that the applicant had had a high concentration of tramadol (a painkiller) and its metabolites, benzodiazepine (a class of psychoactive drug) and olanzapine (an atypical antipsychotic drug).
21.  The applicant’s constitutional complaint was declared inadmissible by the Constitutional Court on 27 January 2015 on the grounds that the contested judgment had not concerned the merits of his civil rights or obligations or a criminal charge against him, and as such was not amenable to constitutional review.
22.  On 18 March 2015 a Zagreb County Court judge responsible for the execution of sentences dismissed the applicant’s request of 31 December 2014. The judge relied on previous expert opinions as well as on a further opinion of Dr S., an expert in neuropsychiatry who confirmed that the applicant had not been suffering from any acute illness, that his medical condition had not worsened, and that ZPH had the appropriate capacity for his treatment in all respects. The County Court further relied on ZPH reports dated 20 and 28 January 2015 stating that the applicant had not been following doctors’ orders, had not been taking measures aimed at his treatment and had been deliberately putting his health at risk. There was no comment on the applicant’s complaints concerning lack of access to daylight and fresh air.
23.  On 27 March 2015 the applicant lodged an appeal, reiterating his arguments concerning his health but made no mention of his previous complaints about lack of access to daylight and fresh air. This appeal was dismissed by a three-judge panel of the Zagreb County Court on 21 April 2015.
Article II.	II.  RELEVANT DOMESTIC LAW
Section 2.01	Enforcement of Prison Sentences Act
24.  The relevant provisions of the Enforcement of Prison Sentences Act (Zakon o izvršavanju kazne zatvora, Official Gazette nos. 128/1999, 190/2003, 76/2007, 27/2008, 83/2009) read as follows:
Complaints
Section 15
“(1)  A prisoner shall have the right to complain about an act or decision of a prison employee.
(2)  Complaints shall be lodged orally or in writing with a prison governor, or the head office of the Prisons Administration [of the Ministry of Justice]. Written complaints addressed to the head office of the Prisons Administration [of the Ministry of Justice] shall be submitted in an envelope, which the prison authorities may not open ...
(5)  If a prisoner lodges a complaint with the sentence-execution judge, it shall be considered a request for judicial protection under section 17 of this Act.”
Judicial protection against acts and decisions of the prisons administration
Section 17
“(1)  A prisoner may lodge a request for judicial protection against any acts or decisions unlawfully denying him, or limiting him in, any of the rights guaranteed by this Act.
(2)  The sentence-execution judge shall dismiss the request for judicial protection if he or she finds that it is unfounded. If the request is founded, the sentence-execution judge shall order that the unlawful deprivations or restrictions of rights be remedied. If that is not possible, the sentence-execution judge shall find a violation and prohibit its repetition.
(3)  The prisoner and the prison facility may lodge an appeal against the sentence-execution judge’s decision ... ”
Suspension of a prison sentence
Reasons for the suspension of a prison sentence
Section 155
“(1) The suspension of a prison sentence (hereinafter “the suspension”) means temporary release of a prisoner from a penal facility or a prison, in which period the term of imprisonment is suspended.
(2) The suspension may be authorised on the following grounds:
1. if a prisoner is suffering from a serious acute illness or his existing chronic illness worsens and appropriate medical care cannot be provided in the penal facility or prison.
...”
THE LAW
Article III.	I.  ALLEGED VIOLATION OF ARTICLE 3 THE CONVENTION
25.  The applicant, relying on Articles 3 and 8 of the Convention, complained that the conditions of his detention were inadequate and that his state of health was incompatible with incarceration. The Court, being master of the characterisation to be given in law to the facts of the case (see Bouyid v. Belgium [GC], no. 23380/09, § 55, ECHR 2015) considers that this complaint falls to be examined only under Article 3 of the Convention, which reads as follows:
 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Section 3.01	A.  Admissibility
(a)	1.  Conditions of the applicant’s detention
(i)	(a)  The parties’ submissions
26.  The Government argued that the applicant had not exhausted domestic remedies as regards his complaint about the conditions of his detention. He had not applied for the protection of his rights with a sentence-execution judge under section 17 of the Enforcement of Prison Sentences Act (see paragraph 24 above) but had only requested the suspension of his prison sentence under section 155 of that Act. However, only the former was the proper remedy to be exhausted as regards conditions of detention. Also, a constitutional complaint was only allowed in respect of decisions adopted following such an application, unlike decisions concerning applications for the suspension of a prison sentence.
27.  The applicant argued that it would be excessively formalistic to require him to lodge a specific application under section 17 of the Enforcement of Prison Sentences Act in addition to his application under section 155 of that Act.
(ii)	(b)  The Court’s assessment
28.  The Court reiterates that under Article 35 § 1 of the Convention, it may only deal with an application after all domestic remedies have been exhausted. The purpose of Article 35 is to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Court (see, for example, Mifsud v. France (dec.) [GC], no. 57220/00, § 15, ECHR 2002-VIII, and Vučković and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29 others, § 70, 25 March 2014). The obligation to exhaust domestic remedies requires an applicant to make normal use of remedies which are effective, sufficient and accessible in respect of his Convention grievances. To be effective, a remedy must be capable of directly resolving the impugned state of affairs (see Balogh v. Hungary, no. 47940/99, § 30, 20 July 2004, and Vučković and Others, cited above, § 71).
29.  As regards the remedies concerning prison conditions in Croatia, the Court has held that a complaint lodged with the competent judicial authority or the prison administration is an effective remedy, since it can lead to an applicant’s removal from inadequate prison conditions. Moreover, in the event of an unfavourable outcome, the applicant can still pursue his complaints before the Constitutional Court (see Štitić v. Croatia (dec.), no. 29660/03, 9 November 2006, and Dolenec v. Croatia, no. 25282/06, § 113, 26 November 2009), which also has the competence to order his release or removal from inadequate prison conditions (see, inter alia, Peša v. Croatia, no. 40523/08, § 80, 8 April 2010). Indeed, in order to comply with the principles of subsidiarity applicants are required, before bringing their complaints to the Court, to afford the Croatian Constitutional Court the opportunity of remedying their situation and addressing the issues they wish to bring before the Court (see Bučkal v. Croatia (dec.), no. 29597/10, § 20, 3 April 2012, and Longin v. Croatia, no. 49268/10, § 36, 6 November 2012).
30.  The Court notes that the first time the applicant raised the complaints about the conditions of his detention, such as that he had not had proper access to sanitary facilities and had been obliged to ask the guards to let him out of the room each time he needed the toilet, was in his constitutional complaint (see paragraph 17 above). However, he should have first complained about the conditions of his detention to a sentence-execution judge under section 17 of the Enforcement of Prison Sentences Act, and should then have used further appropriate remedies, such as an appeal against the first-instance decision and a constitutional complaint in the context of such proceedings.
31.  The Court also notes that in his application for the suspension of his prison sentence on health grounds of 31 December 2014, the applicant complained about the lack of access to daylight and fresh air in the ZPH. However, he did not reiterate those complaints in his appeal against the decision of the sentence-execution judge dismissing the said application.
32.  It follows that the applicant has not properly exhausted domestic remedies as regards his complaint about the conditions of his detention. Accordingly, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
(b)	2.  The applicant’s state of health
33.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
Section 3.02	B.  Merits
(a)	1.  The parties’ submissions
34.  The applicant submitted that he had been suffering from a number of chronic illnesses which were life-threatening and that before his incarceration he had been hospitalised on nine occasions. After undergoing gamma knife radiosurgery, the three-year high-risk recovery period had not yet ended at the time he had started to serve his prison sentence. He further stressed that in their report of 6 March 2014 the ZPH medical team had asserted that he presented “a permanent high risk to himself and the institution in which he [had been] placed” and cited a recommendation that his prison term be suspended on medical grounds. The national courts had not taken that opinion into consideration in their decisions. The applicant also argued that he had not been receiving appropriate medical care in prison.
35.  The Government argued that the applicant had been receiving appropriate medical care in prison and that all his complaints concerning his state of health had been duly examined by the national courts. Their decisions to dismiss his applications for the suspension of his prison sentence had been based on opinions from relevant medical experts ordered by the courts.
(b)	2.  The Court’s assessment
(i)	(a)  General principles
36.  The Court reiterates that to come within the scope of the prohibition contained in Article 3 of the Convention the treatment inflicted on or endured by the victim must reach a minimum level of severity. The assessment of this minimum level of severity is a relative one, depending on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim (see, inter alia, Blokhin v. Russia [GC], no. 47152/06, § 135, ECHR 2016, with further references).
37.  The Court further reiterates that Article 3 of the Convention imposes on the State a positive obligation to ensure that a person’s health and well-being are adequately secured by, among other things, the provision of the requisite medical assistance and treatment (see Kudła v. Poland [GC], no. 30210/96, § 94, ECHR 2000‑XI; McGlinchey and Others v. the United Kingdom, no. 50390/99, § 46, ECHR 2003‑V; and Farbtuhs v. Latvia, no. 4672/02, § 51, 2 December 2004). However, Article 3 cannot be interpreted as laying down a general obligation to release a person on health grounds or to place him in a civil hospital to enable him to obtain specific medical treatment (see Melnik v. Ukraine, no. 72286/01, § 93, 28 March 2006).
38.  The prison authorities must offer the prisoner the treatment corresponding to the disease(s) he or she was diagnosed with (see Poghosyan v. Georgia, no. 9870/07, § 59, 24 February 2009), as prescribed by the competent doctors (see Xiros v. Greece, no. 1033/07, § 75, 9 September 2010). The appropriate treatment within prison facilities does not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities (see Blokhin, cited above, § 137). In the event of diverging medical opinions on the treatment necessary to ensure adequately a prisoner’s health, it may be necessary for the prison authorities and the domestic courts, in order to comply with their positive obligation under Article 3, to obtain additional advice from a medical specialist (compare Xiros, cited above, §§ 87 and 89-90; and Budanov v. Russia, no. 66583/11, § 73, 9 January 2014).
39.  The Court further reiterates, being sensitive to the subsidiary nature of its role, that it is not its task to rule on matters lying exclusively within the field of expertise of medical specialists and to establish whether an applicant in fact required a particular treatment or whether the choice of treatment methods appropriately reflected the applicant’s needs (see Ukhan v. Ukraine, no. 30628/02, § 76, 18 December 2008; and Sergey Antonov, no. 40512/13, § 86, 22 October 2015).
(ii)	(b)  Application of these principles in the present case
40.  The Court notes that the applicant alleged that he suffered from basal ganglia in the ventricular system with a risk of haemorrhage as well as from epileptic fits and that staying in prison would entail a risk of grave deterioration of his health. The Court accepts that the applicant’s state of health is indeed serious, as was established by the medical experts who examined him. The Court therefore considers that the applicant made a credible assertion that his state of health might be incompatible with the prison conditions and that such a situation required careful assessment of all relevant factors by the national authorities.
41.  As to the procedures conducted before the national authorities, the Court notes that in his submissions before the national authorities the applicant repeatedly requested that his prison sentence be suspended on health grounds. The Court reiterates that, the State must ensure that a person is detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured (see Kudła, cited above, §§ 92-94, and Popov v. Russia, no. 26853/04, § 208, 13 July 2006). In most of the cases concerning the detention of people who are ill, the Court has examined whether or not the applicant received adequate medical assistance in prison. The Court reiterates in this respect that even if Article 3 does not entitle a detainee to be released “on compassionate grounds”, it has always interpreted the requirement to secure the health and well-being of detainees, among other things, as an obligation on the part of the State to provide detainees with the requisite medical assistance (see Kudła, cited above, § 94, Kalashnikov v. Russia, no. 47095/99, §§ 95 and 100, ECHR 2002-VI, Khudobin v. Russia, no. 59696/00, § 96, ECHR 2006-XII (extracts), and Vasyukov v. Russia, no. 2974/05, § 61, 5 April 2011). The Court accepts that member States cannot be required to provide the best possible medical care for prisoners. The level of medical care provided to prisoners should, however, be appropriate in the circumstances of each case. On the whole, the Court, in its own assessment, has applied a fair degree of flexibility in defining the required standard of health care, deciding it on a case-by-case basis. That standard should be “compatible with the human dignity” of a detainee, but should also take into account “the practical demands of imprisonment” (see Aleksanyan v. Russia, no. 46468/06, § 140, 22 December 2008). The same should apply to the assessment by national authorities.
42.  The Court notes that the applicant suffers from various health ailments as detailed in paragraph 7 above. He requested the suspension of his prison sentence on account of his state of health. That request was dismissed by the national courts on the grounds that the applicant had not been suffering from any acute illness, that his medical condition had not worsened, that ZPH had the appropriate capacity for his treatment in all respects and that the applicant had not been following doctors’ orders, had not been taking measures aimed at his treatment and had been deliberately putting his health at risk (see paragraph 22 above).
43.  The Court also notes that it is true that the ZPH medical team in their report of 6 March 2014, drafted immediately after the applicant began serving his sentence, asserted that the applicant presented “a permanent high risk to himself and the institution in which he [had been] placed” and their recommendation that his prison term be suspended on medical grounds. The Court notes, however, that their statements were somewhat vague and required clarification. In order to clarify the applicant’s health situation, the national courts commissioned further expert opinions. Three separate independent experts submitted their opinions (see paragraphs 9, 12 and 22 above). These experts established that the ZPH had all the necessary facilities for addressing the applicant’s health issues and in September 2014 the doctors of the ZPH held that there was no need for the applicant’s further hospitalisation (see paragraph 14 above). The domestic courts followed these reports. The Court sees nothing arbitrary or manifestly unreasonable in their assessment. The Court also notes that during his incarceration the applicant’s health has been regularly monitored and that the expert reports indicated that adequate medical assistance had been provided to him (see paragraphs 9, 12, and 22 above).
44.  In the light of the above considerations, the Court concludes that the national authorities have properly assessed all the relevant facts concerning the applicant’s state of health and that there are no grounds for it to conclude that the applicant’s state of health is not compatible with serving his prison sentence.
There has accordingly been no violation of Article 3 of the Convention.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1.  Declares the complaint under Article 3 of the Convention concerning the applicant’s state of health admissible and the remainder of the application inadmissible;

2.  Holds that there has been no violation of Article 3 of the Convention.
Done in English, and notified in writing on 2 May 2017, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Stanley Naismith	Işıl Karakaş
	Registrar	President