VIGANI proti Albánii

THIRD SECTION

DECISION

Application no. 81072/17
Artur VIGANI
against Albania

The European Court of Human Rights (Third Section), sitting on 22 November 2022 as a Committee composed of:

Georgios A. Serghides, President,
Jolien Schukking,
Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,

Having regard to:

the application (no. 81072/17) against the Republic of Albania lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 November 2017 by an Albanian national, Mr Artur Vigani, who was born in 1974 and at the time of lodging the application was serving a prison sentence in Kruja Penitentiary (“the applicant”) and was represented before the Court by Mr A. Shala, a lawyer practising in Tirana;

the decision to give notice of the complaints under Article 3 of the Convention concerning the alleged failure of the authorities to provide to the applicant specialised medical treatment, and under Article 6 § 1 of the Convention concerning the length of domestic proceedings and access to the Constitutional Court to the Albanian Government (“the Government”), represented by their agents, Mr A. Metani, Ms J. Mancaku, Ms E. Muça and subsequently by Mr O. Moçka, General State Advocate, and to declare inadmissible the remainder of the application;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The case concerns the applicant’s allegations that in view of his diagnosis of multiple sclerosis, he was detained in inappropriate conditions and that the examination of his request for release on health grounds was ineffective on account of delays before the ordinary courts and the Constitutional Court’s refusal to examine his appeal on the merits.

1. Applicant’s first request for release on health grounds
   1. Proceedings before the first instance court

2. Following his conviction and sentencing to 25 years’ imprisonment for murder in 2009, the applicant was arrested in January 2011. Having regard to his state of health, he was admitted to Tirana Prison Hospital (“the Prison Hospital”).

3. On 29 October 2012 the applicant requested that the Tirana District Court order his early release from prison on the grounds that he suffered from spastic tetraparesis with predominance in the lower limbs. He relied on Article 478 of the Code of Criminal Procedure (“the CCP”) which at the relevant time provided that a prisoner could be released if detention endangered his life.

4. In line with the applicant’s request, on 20 September 2013 the court asked two experts to examine him and to inform the court whether continued detention presented a risk to his life. The applicant did not object to the terms of the ordered expertise.

5. The experts delivered an initial report on 3 December 2013 and an additional report on 1 April 2014. One of the experts concluded that the applicant’s continued detention did not pose a risk to his life. The second expert concluded that the illness endangered the applicant’s life to the same degree whether he was in or out of prison.

6. At a hearing on 16 April 2014 the court accepted the applicant’s request that in view of the experts’ conclusions, which in his view were contradictory, three new experts be appointed to examine his health again.

7. On 9 June 2014 three new experts delivered their report, concluding that it could not be ruled out that the applicant’s continued detention posed a risk to his life.

8. At a hearing on 24 October 2014 one of the experts stated that there was no cure for the applicant’s illness and that outside prison he would receive the same medical treatment as was currently being provided by the authorities.

9. On 4 November 2014 the District Court of Tirana rejected the applicant’s request for release on health grounds. It found that, according to the expert reports, the applicant was receiving treatment that was prescribed in similar cases and that there was no other treatment available outside the prison. It also noted that, as per the experts’ reports and statements, the applicant’s life would be endangered by the illness to the same degree whether he was in or out of prison.

2. Proceedings before the second-instance court

10. On 11 November 2014 the applicant appealed. Among other submissions, he stated his claims on the staff, equipment, medication and kind of premises that were required to treat his disease and alleged that the Prison Hospital lacked these facilities, which meant that his continued detention was incompatible with his rights under Articles 2 and 3 of the Convention. He also stated that, contrary to the district court’s findings, the experts’ reports and statements should be understood as supporting his request for release.

11. On 8 May 2015 the Tirana Court of Appeal upheld the first-instance judgment, relying on the same reasons as the lower court. In response to the applicant’s arguments regarding the alleged absence of the required conditions in prison, the court stated that the action before it was based on Article 478 of the CCP, therefore the matter before the court was limited to whether the applicant should be released on health grounds. It further noted that allegations of the inadequacy of conditions of detention should be submitted under a different procedural ground and through a different legal action which would seek appropriate relief, such as the interruption of the alleged ill-treatment, detention in appropriate conditions, compensation for damage, and so on.

3. Proceedings before the Supreme Court and the Constitutional Court

12. On 5 June 2015 the applicant submitted a cassation appeal before the Supreme Court in which he relied on Articles 2 and 3 of the Convention. In response to the Tirana Court of Appeal’s indications about alternative causes of action (see paragraph 11 above), the applicant stated that he was not seeking damages but only early release from prison, which in his view was justified.

13. On 10 November 2016 the Supreme Court rejected the applicant’s cassation appeal.

14. On 19 July 2017 the Constitutional Court dismissed the applicant’s constitutional complaint as being lodged beyond the four-month time-limit which had started running on 10 November 2016, when the Supreme Court had ruled on the applicant’s cassation appeal.

15. The applicant was represented by lawyers of his choosing throughout the proceedings.

2. The second request for release

16. On an unspecified date in early 2017 the applicant submitted another request for release on health grounds before the District Court of Kruja. In the context of these proceedings, on an unspecified date a court-appointed expert concluded that the applicant suffered from multiple sclerosis and his condition was moderately severe. He further stated that the applicant should be transferred to the Prison Hospital. The parties did not provide further details on these proceedings.

3. Other relevant events and materials

17. On 23 May 2015 the applicant was transferred from the Prison Hospital to the Kruja Penitentiary.

18. On an unspecified date in early 2016 the applicant asked to be transferred back to the Prison Hospital. On 19 April 2016 the prison authorities responded that they would consider the transfer in the near future.

19. The Prisoners’ Rights Act of 1998 (Law no. 8328, of 16 April 1998, as amended – hereinafter “the Prisoners’ Rights Act”) governed prisoners’ rights until 8 August 2020 when it was replaced by a new Act. Section 8 of the Act provided for the prisoners’ right to submit requests and complaints whereas section 33 provided for their right to medical care.

THE COURT’S ASSESSMENT

1. Alleged violation of Article 3 of the Convention

20. The applicant complained that the authorities’ failure to provide him with specialised medical care and transfer him to an appropriate facility to serve his sentence led to a serious deterioration of his health, placed him in a life-threatening situation and subjected him to severe physical and mental suffering, in violation of Articles 2 and 3 of the Convention. The Court will examine the complaint under Article 3 alone.

21. The Government submitted, amongst other preliminary objections, that the applicant has not raised these complaints in substance before the domestic courts and therefore has not exhausted domestic remedies. The Court considers that it is not necessary to rule on the other preliminary objections for the reasons set out below.

22. The general principles concerning the exhaustion of domestic remedies have been summarised in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014).

23. In the present case the applicant’s action before the domestic courts was based on the allegation that his state of health justified his early release from prison. However, before the Court the applicant did not submit that same complaint; he rather complained of the lack of specialised medical care and the failure to transfer him to an appropriate facility. The Court’s review will therefore be limited to the complaint submitted before it.

24. In that connection, firstly, the Court notes that the applicant’s transfer from one facility to another did not form part of the proceedings on the applicant’s first request for early release.

25. As regards the alleged lack of medical care, the Court notes that before the District Court of Tirana (see paragraph 3 above) the applicant did not complain that the authorities had failed to provide him with appropriate medical care. Neither did he request relief, whereby the authorities would be ordered to provide a specific medical service or care in an appropriate facility. As these issues were not before the District Court of Tirana, that court did not ask the experts to determine what treatment was warranted by the applicant’s condition and whether it had been delivered correctly to him; it rather asked them to advise the court on whether the applicant’s state of health warranted his early release. The applicant did not object to the experts’ mission (see paragraph 4 above).

26. Admittedly, in arguing his case before the Tirana Court of Appeal, the applicant referred to a number of medical services which were available outside prison but not under detention conditions, and stated that to deny him these services was contrary to Article 3. He also pointed to an alleged lack of sufficient staff and hygiene in the prison setting. However, the Tirana Court of Appeal considered that these questions fell outside the scope of the action before it, brought exclusively under Article 478 of the CCP providing for early release, and advised that such matters could eventually be raised through a different legal action which would be grounded on a different legal basis and seek another kind of relief (see paragraph 11 above).

27. The applicant did not challenge the above-mentioned conclusion of the Tirana Court of Appeal in his cassation appeal or in his constitutional appeal. On the contrary, before the Supreme Court he specifically stated that he was seeking only early release from prison (see paragraph 12 above). It follows that the applicant’s grievances regarding the medical treatment he was receiving remained unexamined on the merits by domestic courts as they had not been submitted in compliance with domestic rules and procedures (compare and contrast Dybeku v. Albania, no. 41153/06, § 28, 18 December 2007; see also Vučković, cited above, § 72).

28. In view of the foregoing, the Court is not convinced that the applicant granted the domestic courts the possibility to remedy the allegations that are now before the Court in respect of the authorities’ alleged failure to provide him with specialised medical care in an appropriate facility. As already noted above, the applicant did not submit the factual or legal grounds of this complaint before the District Court of Tirana. Although he later complained to a certain extent before the Tirana Court of Appeal about the medical care he was receiving, he did not request that the authorities be ordered to provide specific care for him. Neither did he challenge before the superior courts the Tirana Court of Appeal’s conclusion that it was procedurally impossible for that court to rule on the applicant’s arguments related to the quality of medical care as such.

29. Therefore, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. Alleged violations of Article 6 § 1 of the Convention

30. Relying on Article 6 § 1 of the Convention, the applicant complained that the length of the domestic proceedings was unreasonable and that the Constitutional Court’s finding that his complaint was belated amounted to a violation of his right of access to that court.

31. The Court reiterates that the examination of requests for early release from detention or of issues relating to the manner of execution of a custodial sentence does not fall within the scope of Article 6 § 1 of the Convention. Such examination concerns neither the determination of a “criminal charge” nor the determination of “civil rights and obligations” within the meaning of this provision (see Dybeku, cited above, § 55).

32. It follows that the complaint is incompatible ratione materiae with Article 6 § 1 of the Convention and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 15 December 2022.

Olga Chernishova Georgios A. Serghides
Deputy Registrar President