NITU v THE REPUBLIC OF MOLDOVA - 11272/16 (Article 3 - Prohibition of torture : Second Section Committee) [2024] ECHR 512 (11 June 2024)

JUDGMENT STRASBOURG 11 June 2024 This judgment is final but it may be subject to editorial revision. In the case of Nițu v. the Republic of Moldova, The European Court of Human Rights (Second Section), sitting as a Committee composed of: Jovan Ilievski , President , Diana Sârcu, Gediminas Sagatys , judges , and Dorothee von Arnim, Deputy Section Registrar, Having regard to: the application (no. 11272/16 ) against the Republic of Moldova lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") on 21 February 2016 by a Moldovan national, Mr Vasilii Nițu, born in 1986 and detained in Chișinău ("the applicant"), who was represented by Mr A. Postică, a lawyer practising in Chișinău; the decision to give notice of the application to the Moldovan Government ("the Government"), represented by their then Agent, Mr O. Rotari; the decision of 19 March 2019 to declare inadmissible the applicant's complaints under Articles 3 and 13 of the Convention concerning the material conditions of detention and the absence of an effective domestic remedy in this regard, and to adjourn the examination of the remainder of the application; the parties' observations; Having deliberated in private on 21 May 2024, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1. The application primarily concerns the alleged insufficiency of medical assistance to treat the applicant's mental health problems, resulting in damage to himself and frequent application of force against him. 2. The applicant was serving his sentence in various prisons in the Republic of Moldova. Upon his admission to prison no. 13 in Chișinău in September 2012 he was diagnosed with an unstable psycho-emotional state and organic personality disorder, of an impulsive type, emotionally inhibited, low tolerance to frustration, as well as manipulatory behaviour. Since September 2012 he was included in the category of detainees who were highly likely to harm themselves and since May 2013 in the category of detainees with a personality disorder. During 2012-2016 the applicant was seen by a prison psychiatrist four times in 2013 (plus one time he refused to be seen), three times (all refused) in 2014 and four times in 2016. Many of these meetings took place because the applicant was on hunger strikes or had self-mutilated. He was prescribed antianxiety pills, anticonvulsants, pills against cognitive disorder, pills aimed at improving mental processes, muscle relaxers and vitamins. . In particular, after having seen the applicant on 8 October 2013, the prison psychiatrist prescribed pills (see paragraph 2 above) and psychological counselling. The same prescription of psychological counselling was made by a therapist prison doctor on 10 October and 13 December 2013, as well as on 10 April 2014. According to a medical report, the applicant was assisted by a psychologist via individual conversations on 8 occasions: three times in 2014, two times in 2015, and three times in 2016. Of these, three meetings were in reaction to his hunger strikes and acts of self-mutilation, while two other meetings were initiated by the applicant. 4. The applicant was often aggressive towards other detainees and the prison guards, insulting them and threatening them with violence and death. Because of that, there was occasional verbal and physical violence between him and other detainees or prison staff. In such cases the prison guards had to intervene in order to calm him down, sometimes using force and handcuffing, as they had done for instance on 3 June, 17 July and 26 August 2014 (confirmed by medical reports). Between 2012 and 2014, he committed 13 acts of self-mutilation and was sanctioned 15 times for aggressive behaviour towards other detainees and the prison staff. The applicant was supervised by a psychologist because he was considered by the authorities a misfit and a dangerous self-destructive and unpredictable detainee, prone to self-mutilation and suicide. On 19 December 2014 a prison psychologist recommended that the applicant see a psychiatrist and develop his emotional intelligence (notably by showing him how others could suffer from his actions) and that the prison staff should talk to him calmly. . As a result of his actions, the applicant has been regularly punished. Between November 2012 and November 2014 he was imposed 41 disciplinary sanctions. 6. According to the applicant, in the evening of 26 August 2014 he was woken up, his hands were twisted behind his back, he was handcuffed and beaten. Thereafter he was isolated in a disciplinary cell. A forensic expert report of 28 August 2014 found several minor bruises on his face, rear thorax, and first toe of his left foot. According to the Government, the applicant was aggressive towards the guards and force had to be used in order to handcuff him. He was placed in an isolated cell but continued shouting and hitting the cell door with his feet, as confirmed during the investigation by several other detainees. Another report made on the date of the events found that the applicant was in a moderate state of alcoholic intoxication. 7. On 1 September 2014 the confidential hotline created to report ill - treatment in prison forwarded the applicant's complaint to the prosecutor's office. The latter initially verified the applicant's complaints and refused to start a criminal investigation on 15 September 2014. That decision was annulled by a hierarchically superior prosecutor and on 24 October 2014 a criminal investigation was started. On 15 December 2014 the applicant was recognised as a victim. On the same day another forensic report was made, relying on the results of the first report and finding that the bruises could be caused both in the manner described by the applicant and self-inflicted. Besides the applicant and the officers he had accused, several witnesses were heard, including other detainees, who confirmed that the applicant had been aggressive and had tried to hit and kick the prison officers. The investigation was discontinued on 26 December 2014 for lack of evidence that the applicant had been ill-treated. The applicant challenged that decision, but by a final decision of the Chișinău Court of Appeal of 21 August 2015 his appeal was dismissed. 8. The applicant complained that he had certain mental problems which, as he had been denied the necessary specialised medical assistance, made him aggressive and at the same time vulnerable to violence in return. Moreover, he had been ill-treated by the prison staff on 26 August 2014 and no effective investigation had been carried out. He alleged a breach of Article 3 of the Convention. THE COURT'S ASSESSMENT DISJOINDER OF THE APPLICATION 9. On 19 March 2019 the Court decided to join this application with eleven others (see Talambuţa and Others v. the Republic of Moldova (dec.) [Committee], nos. 23151/09 and 11 other applications, § 12, 19 March 2019) in view of the similarity of the complaints concerning material conditions of detention and existence of an effective remedy in this regard, and declared the applications partially inadmissible in respect of these complaints. 10. The Court now considers that it is necessary to disjoin this application from the eleven others and to examine it separately. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION (medical treatment) 11. The applicant complained about the authorities' failure to offer him appropriate medical assistance for his psychiatric problems in prison. 12. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. 13. The general principles concerning medical treatment in prison, notably of mentally ill persons, have been summarised in Raffray Taddei v. France (no. 36435/07 , §§ 50 and 51, 21 December 2010) and Murray v. the Netherlands ([GC], no. 10511/10 , §§ 105 and 106, 26 April 2016). Article 3 of the Convention requires States to ensure that the health and well-being of prisoners are adequately secured by, among other things, providing them with the requisite medical assistance. It is not enough for mentally ill prisoners to be examined and a diagnosis made; instead, it is essential that proper treatment for the problem diagnosed and suitable medical supervision should also be provided (ibid.). 14. The Court also recalls that, in the case of mentally ill prisoners, it has held that the assessment of whether particular conditions of detention are incompatible with the standards of Article 3 has to take into consideration the vulnerability of those persons and, in some cases, their inability to complain coherently or at all about how they are being affected by any particular treatment ( Murray , cited above, § 106). Moreover, the Court has held that the suffering which flows from naturally occurring illness, whether physical or mental, may in itself be covered by Article 3, where it is, or risks being, exacerbated by conditions of detention for which the authorities can be held responsible ( Rooman v. Belgium [GC], no. 18052/11 , § 144, 31 January 2019). 15. The Government submitted that the applicant had received all the necessary medical assistance, including psychological and psychiatric treatment. The Court notes that this treatment consisted of supervision and the applicant's occasional individual discussions with a psychologist, as well as prescribing various pills. It typically happened in response to his self - mutilation attempts or hunger strikes, or following the applicant's own request, even though psychological counselling had been prescribed on four occasions during the relevant time (see paragraph 3 above). There is nothing in the file to confirm that a systemic approach had been taken in order to offer the applicant specialised psychological and psychiatric treatment aimed at gradually reducing his aggressiveness and at protecting him from the negative effects of his own actions on his mental and physical health. 16. The events of 26 August 2014 illustrate well the results of this approach: assuming that the applicant was aggressive on that day, it is apparent that the prison staff's response was to apply force and isolate him, causing him minor injuries in the process. The repetition of such interventions (three times during the relevant period and three more times thereafter) and the many disciplinary sanctions applied in response to his regular attempts at self-mutilation and other aggressive acts reflecting his mental disorder can hardly be considered to be responses taken as part of a comprehensive strategy aimed at improving his condition. Accordingly, it has not been demonstrated that proper treatment for the problem diagnosed and suitable medical supervision and treatment has been provided to the applicant in prison. 17. In view of the applicant's special vulnerability as a person with serious psychological problems, who was unable to entirely control his aggressive behaviour, the insufficiency of appropriate psychological and psychiatric treatment resulted in further damage to his health from the use of force by prison staff, who had to put an end to his actions. Seen in this light, incidents like that of 26 August 2014 reveal a pattern in which the applicant's health and physical well-being were not sufficiently protected. . There has accordingly been a violation of Article 3 of the Convention. OTHER COMPLAINTS 19. The applicant further complained under Article 3 of the Convention about ill-treatment by the prison staff on 26 August 2014 and the failure to investigate it effectively. 20. The Court considers in the light of the materials in the file that force has been used against the applicant because of his aggressive behaviour, as also confirmed by several other detainees. Therefore, he may have been subjected to treatment strictly required by his own behaviour. It is also apparent that his complaint was quickly forwarded to the prosecutor's office, which made a preliminary verification and within two weeks decided not to initiate a criminal investigation. The appeal against that decision was dismissed with final effect on 21 August 2015. 21. The Court further observes that the applicant's complaint about the use of force against him has a close connection with his broader complaint that, since he was not properly treated for his psychiatric problems, this left him vulnerable to violence and the regular use of force. Having regard to its above finding of a breach of Article 3 in this regard, the Court considers that in the specific circumstances of this case it has dealt with the main legal questions raised by the case and that there is no need to examine the remaining complaints (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08 , § 156, ECHR 2014). APPLICATION OF ARTICLE 41 OF THE CONVENTION 22. The applicant claimed 15,000 euros (EUR) in respect of non - pecuniary damage and EUR 1,800 in respect of costs and expenses incurred before the Court. 23. The Government considered that these amounts were excessive. 24. The Court awards the applicant EUR 5,000 in respect of non - pecuniary damage, plus any tax that may be chargeable. 25. Having regard to the documents in its possession, the Court considers it reasonable to award EUR 1,500 covering costs before the Court, plus any tax that may be chargeable to the applicant. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Disjoins the application from the others to which it was joined; Declares the complaint under Article 3 of the Convention regarding the authorities' failure to offer the applicant appropriate medical assistance admissible; Holds that there has been a violation of Article 3 of the Convention in respect of the failure to provide the applicant with appropriate psychological and psychiatric assistance; Holds that there is no need to examine the applicant's remaining complaints; Holds (a) that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into Moldovan lei at the rate applicable at the date of settlement: (i) EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage; (ii) EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant's claim for just satisfaction. Done in English, and notified in writing on 11 June 2024, pursuant to Rule §§ 2 and 3 of the Rules of Court. Dorothee von Arnim Jovan Ilievski Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII