SECOND SECTION
CASE OF COSOVAN v. THE REPUBLIC OF MOLDOVA
(Application no. 13472/18)
 
 
JUDGMENT
 
Art 3 (substantive) • Positive obligations • Degrading treatment • Inadequate medical treatment to applicant with a serious illness in its terminal stage • Detention extended despite terminal condition • No justification for distinction between the detention of a person following conviction and one detained pending trial when suffering caused by detention was incompatible with that person’s medical condition
Art 5 § 3 • Reasonableness of pre-trial detention • Domestic courts’ failure to provide sufficient reasons justifying applicant’s extended detention pending trial • Artificial division of criminal investigation into separate ones to obtain unfair procedural advantages or circumvent mandatory legal provisions incompatible with Art 5

 
STRASBOURG
22 March 2022
FINAL
 
22/06/2022
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Cosovan v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Carlo Ranzoni,
 Branko Lubarda,
 Pauliine Koskelo,
 Jovan Ilievski,
 Gilberto Felici,
 Diana Sârcu, judges,
and Stanley Naismith, Section Registrar,
Having regard to:
the application (no. 13472/18) 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”) by a Moldovan national, Mr Serghei Cosovan (“the applicant”), on 20 March 2018;
the decision to give notice of the application to the Moldovan Government (“the Government”);
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by Prison Litigation Network, who were granted leave to intervene by the President of the Section;
Having deliberated in private on 2 March 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the positive obligations of the authorities under Article 3 regarding the medical treatment of a person with a serious illness in its terminal phase, as well as the compatibility of such a condition with continued detention. It also concerns under Article 5 § 3 the allegedly insufficient reasons given for the applicant’s detention pending trial. THE FACTS
2. The applicant was born in 1971 and lived in Chișinău until his death on 25 March 2021. His wife, Mrs Elena Cosovan, expressed the wish to continue the proceedings before the Court. The applicant was represented by Ms N. Hriplivîi, Mr V. Vieru and Mr A. Postica, lawyers practising in Chișinău. 3. The Government were represented by their Agent, Mr O. Rotari. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s arrest, detention and conviction
5. The applicant owned two businesses in Moldova and was a member of the local council in the town of Codru, representing P.N., an opposition political party. 6. On 26 September 2017 the applicant went to the office of a public prosecutor on being summoned. He was then arrested on suspicion of abuse of his position and fraud, by accepting money from a number of persons and falsely promising them that they would become owners of metal kiosks for selling merchandise. 7. On 29 September 2017 the Chișinău Court (Centru office) ordered the applicant’s detention pending trial for 30 days. It found that the criminal investigation had been lawfully started (by decisions of 25 April, 26 May and 23 December 2014, as well as 10 July and 23 November 2016, and 14 April 2017); that there was a reasonable suspicion that the applicant had committed a crime; that he was accused of a particularly serious offence for which the law provided for imprisonment of up to 15 years; and that he could abscond, reoffend or create obstacles to the smooth running of the criminal investigation. It further held that his detention pending trial was lawful and necessary in order to allow the prosecution properly to administer evidence. If the applicant were not detained, his propensity to commit criminal acts against the proper administration of justice would pose a specific danger to the public order. 8. The applicant’s lawyers appealed, referring to the absence of any evidence to support the finding that the applicant’s release would pose any risk. They added that the applicant’s passport could be seized and that he undertook to appear before the investigating authority whenever summoned. 9. On 16 October 2017 the Chișinău Court of Appeal upheld the decision of 29 September 2017. The court found that there was a reasonable suspicion that the applicant had committed a crime, which was a particularly serious one for which the law provided for imprisonment of up to 15 years; that the preventive measure was aimed at preventing the applicant from creating obstacles to the criminal investigation or destroying evidence or absconding; that the case was complex and the investigating authority needed sufficient time to establish all the relevant circumstances; that another preventive measure could not be applied since only detention would ensure the proper conduct of the investigation; that preventive measures were applicable not in order to test an accused’s ability to abide by them, but to ensure the proper conduct of the investigation. Moreover, it held that the applicant and his lawyers had not submitted convincing evidence to prove the absence of his intention to abscond or interfere with the course of the investigation. The court also found that the applicant could be given appropriate medical treatment in detention and that, should the prison administration confirm the impossibility of treating him in prison, he could be transferred to a public hospital. 10. The applicant’s detention pending trial was extended on a number of occasions. Each time, the courts relied on essentially the same reasons as before. In their submissions to the court before it adopted one such decision (the Chișinău Court (Centru District), decision of 24 October 2017) the applicant’s lawyers argued, inter alia, that on 7 May 2014 their client had already been indicted for the same offence and arrested for 72 hours. They added that the applicant had known of the investigation since 2014 but had neither absconded nor interfered with it. During all this time he had appeared before the investigating authority whenever summoned. He had been arrested in 2017 in the prosecutor’s office, where he had gone after having been summoned once more. 11. On 24 April 2018 the investigating judge of the Chișinău Court (Centru District) replaced the preventive measure taken in respect of the applicant with house arrest for a period of 30 days and ordered his immediate release from detention. The judge found no evidence confirming the existence of a risk of absconding or pressuring witnesses and the injured parties. He noted that the possibility of applying a long prison sentence could not, in itself, justify detention pending trial. Moreover, according to the medical documents in the file, the applicant’s illness was in its terminal stage, which presented a danger to his life. The applicant’s illness was a ground for releasing him from the execution of any sentence, as confirmed in a letter from the National Prisons Administration (NPA). Although the relevant regulation (see paragraph 46 below) provided for exemption from execution of sentence for convicted persons only, the judge found it absurd that a person held in pre-trial detention should not benefit from the same right. Continuing to detain a person with such a condition would expose him to suffering which could amount to torture. The court found only one ground for detention relied upon by the prosecution as being confirmed, that of maintaining public order: it noted that the alleged victims protested against the applicant’s possible release. However, given the seriousness of the applicant’s condition, the public order rationale was insufficient to justify his continued detention and the same aim could be reached by ordering his house arrest. 12. The applicant was released from detention on 24 April 2018. As he was leaving prison no. 16, he was re-arrested by officers of the Chișinău Police Directorate. According to the minutes of arrest, the reason for detention was the risk of absconding from criminal prosecution. This new prosecution, started on 1 March 2018, concerned other persons in the same group of those who had paid money to the applicant and allegedly been defrauded. 13. On 27 April 2018 another investigating judge accepted a prosecutor’s request and ordered the applicant’s detention pending trial for 30 days. The judge did not mention the preventive measure already applied on 24 April 2018 (house arrest, see paragraph 11 above). That arrest warrant was subsequently extended once a month. 14. On 17 May 2018 the judge who had ordered the applicant’s house arrest annulled that decision at the prosecutor’s request, based on the other prosecution and arrest warrant issued in the meantime. 15. On 11 July 2018 the Chișinău Court (Buiucani District) found the applicant guilty of fraud against two persons, the overall damage caused being EUR 8,000. The court sentenced him to seven years’ imprisonment. That judgment was upheld by the Chișinău Court of Appeal on 28 November 2018. 16. On 10 October 2018 the Council for the Prevention and Elimination of Discrimination and for Ensuring Equality (the CPEDAE) found, in response to the applicant’s complaint and after having examined the arguments of the Ministry of Justice and the NPA, that the impossibility for persons detained pending trial to be released owing to serious illnesses constituted discrimination in relation to persons detained after a final conviction and suffering from similar diseases. It recommended that the applicant’s case be urgently examined without discrimination based on his procedural status and that a mechanism be created to ensure the application of the relevant guarantees to all detainees. 17. On 9 July 2019 the Supreme Court of Justice quashed the lower court’s judgment and sent the case for a retrial by the Chișinău Court of Appeal. 18. On 1 October 2019 the Chișinău Court of Appeal partly upheld the first-instance court’s judgment of 11 July 2018 and found the applicant guilty of fraud. It sentenced him to seven years’ imprisonment and ordered him to pay the two victims a total of EUR 8,000. The court noted, inter alia, that in prison no. 16 the applicant was given the medical assistance required for his condition and that there was a positive dynamic in his treatment. 19. On 24 March 2020 the Supreme Court of Justice again quashed the lower court’s judgment and sent the case for a retrial by the Chișinău Court of Appeal. 20. In the meantime, on 18 November 2019 the Chișinău Court (Ciocana District) examined the requests lodged by the applicant’s lawyer on 10 June 2019 and by the administration of prison hospital no. 16 on 3 July 2019 to release the applicant on health grounds. The NPA also supported this request. The court noted that on 12 July 2019 an expert report had been ordered by the court, which had been completed on 7 October 2019. The expert had found that the applicant’s illness was among those allowing the person to be exempted from the execution of his sentence. He added that his illness was evolving in a negative way, his condition was continuously worsening, and that he had a limited life expectancy. The court pointed out that the institution in charge of the execution of a sentence had to submit a request for release on health grounds, together with the convict’s medical file, to the court within five days of establishing the existence of the illness (Article 271 of the Code of Execution [of Sentences], see paragraph 47 below). Referring to the expert’s opinion and finding that the applicant’s condition was worsening, the court accepted the requests and ordered his release. 21. The applicant died in Sfânta Treime public hospital in Chișinău on 25 March 2021. The applicant’s medical condition and treatment administered to him
22. The applicant was suffering from a number of diseases before his arrest. On 28 May 2016 he underwent an ultrasound examination, which found the complete disappearance of ascites and a positive dynamic in his disease. Upon his arrest and placement in prison no. 13 he was seen by a doctor, who diagnosed him with hepatitis C decompensated cirrhosis B‑stage (Child‑Plugh B). This diagnosis, together with a number of complications such as severe hypersplenism, was later confirmed by doctors at prison hospital no. 16, where he was treated between 5 and 10 October 2017. 23. On 2 March 2018 the Head of the Intensive Therapy and Resuscitation Department of the Clinical Hospital of Infectious Diseases Toma Ciorba largely confirmed the applicant’s earlier diagnosis. She prescribed, inter alia, the applicant’s inpatient treatment by a hepatologist. According to a letter of the NPA dated 4 January 2019, he was seen by a pathologist on 23 April, 29 May, 26 July, 27 September and 28 December 2018. 24. On 27 March 2018 a Medical Council was convened, with the participation of doctors from various public medical institutions. That council also confirmed the applicant’s diagnosis. It amended the applicant’s previous treatment and prescribed several types of medical procedure, including Albumin solution, minimum 2-3 transfusions at an interval of 5 days and freshly frozen plasma B (III) - 3 transfusions at an interval of 3-4 days. The applicant was recommended to be seen by a hepatologist in order to determine the need for a liver transplant. He was also to be presented to the National Council for the Determination of Disability and Labour Capacity (CNDP). During the subsequent period the applicant was once given the Albumin solution and two freshly frozen plasma B at an interval of 3.5 weeks. He was presented to the CNDP on 14 August 2018. 25. On 4 April 2018 the applicant’s lawyers asked to convene a new Medical Council in order to include him on the waiting list for a liver transplant. 26. On 23 April 2018 the applicant was seen by a hepatology specialist and a liver transplant team, as a potential candidate for the waiting list for a liver transplant. He underwent medical examinations in accordance with the national Liver Transplant Protocol, the results of which were presented to a Medical Council (including the liver transplant coordinator, the director of the Transplantation Agency and the gastroenterologist of the transplant team) on 29 May 2018. As a result, the Medical Council decided that a further test (QuantiFERON) was required before the applicant could be included on the waiting list for a liver transplant, in order to rule out possible specific or lymphoproliferative processes. 27. On 2 May 2018 Moldova’s Ombudsman informed the applicant’s lawyers that he had submitted an emergency appeal to several authorities, urging them to identify solutions to protect the applicant’s right to life, physical integrity and health. He referred to his findings after visiting prison hospital no. 16 on 12 April 2018, notably that while that institution ensured the minimum of medical assistance, the applicant’s condition continuously worsened. The applicant needed, in particular, to be seen urgently by a hepatologist in order to start the procedure for a liver transplant. The Ombudsman also noted that, although on 27 March 2018 a Medical Council had prescribed an examination of the applicant by a hepatologist and a request to that effect had been made by prison hospital no. 16 on 28 March 2018, two weeks later such an examination had yet to take place. Moreover, that institution had confirmed that it did not have a contract with any medical institution specialised in liver transplants. 28. On 8 May 2018 the applicant asked the Ministry of Justice to ensure that all his samples required for medical investigations be taken by institutions properly accredited under the domestic law as medical institutions, prison hospital no. 16 not being so accredited. He also asked for strict compliance with the national clinical protocol for treating chronic hepatitis and hepatic cirrhosis C, adopted in 2013. 29. On 4 June 2018 an advisory medical commission examined the applicant in prison hospital no. 16 and recommended compliance with hepatologist prescriptions, the patient’s dynamic supervision, treatment in accordance with medical instructions and transfer to a specialised public hospital. On 5 June 2018 he was transferred to the Municipal Clinical Hospital. On admission, new complications in the applicant’s health were found. Upon his return to prison hospital no. 16 on 12 June 2018, the applicant was to continue the treatment prescribed; in case of complications he was to be transferred to an institution of the Ministry of Health; he was to be dynamically supervised (laboratory analyses) and to be seen by a hepatologist with a view to a potential liver transplant. 30. In reply to the applicant’s lawyers’ request, on 12 and 14 April 2018 the Ministry of Justice had informed them, inter alia, that prison hospital no. 16 did not have a hepatologist or a resuscitation and intensive care room, but had the necessary human and other resources to comply with national clinical protocol PCN-24. On 20 June 2018 the same Ministry informed the applicant that prison institutions did not have accreditation as medical institutions in Moldova and that changing this was part of the Action Plan for the Implementation of the Development Strategy of the Penitentiary System for 2016-2020. 31. On 13 June 2018 the Head of the Medical Directorate of the NPA, together with the prison chief specialist in infectious diseases and two other specialists, noted the applicant’s transfer from a public hospital on 12 June 2018. Given the risk of haemorrhage from the applicant’s oesophagus varices and of hepatic failure he was prescribed, inter alia, treatment on an inpatient basis in a specialised unit under the Ministry of Health. 32. On 27 June 2018 the applicant was examined by a medical commission in prison hospital no. 16. The commission found a positive dynamic in his state of health and that he would be able to participate in court hearings in the criminal proceedings against him. On 5 July 2018 he participated in a court hearing. 33. During the appeal procedure against his conviction of 11 July 2018, the applicant asked to be released on the basis of Article 95(2) of the Criminal Code (see paragraph 45 below). 34. On 31 July 2018 the applicant was taken to the Oncology Institute of the Ministry of Health for a sternum puncture, which he refused to undergo. 35. On 22 August 2018 the applicant complained to the Ministry of Justice and the NPA of the refusal of the administration of prison hospital no. 16 to follow through the recommendation of 13 June 2018 and transfer him to a specialised public hospital. He noted, inter alia, that he was not allowed to read any of the reports concerning his refusal to submit to tests, or to submit objections to those reports or to indicate his reasons for the refusals. No examination of the reasons for his refusals had been carried out by a medical commission, which should have been convened in view of his serious condition and the risks to his life and health from not being properly tested. One example which he remembered was his refusal to take a diuretic treatment on 19 June 2018. He had informed the medical assistant of pain in the kidneys and that he needed to be seen by a hepatic specialist to verify whether the treatment needed to be adjusted in view of that pain, but no action had followed, except for a report on the refusal to take the treatment. Three other such reports referred to refusal to accept medication where it was unclear when and by whom it had been prescribed, such information not being provided to the applicant even after his express request. He finally noted that, having examined his medical file, he did not see a proper indication of the prescriptions by various doctors and the types of treatment actually administered (with dates and dosage). A similar complaint made on 19 December 2018 noted, in addition, that the applicant had still not been informed whether the doctor supervising his treatment in prison no. 16 was a hepatic specialist and that his medical file did not contain any information about the prison doctors’ decisions to adjust his treatment in accordance with any changes in his medical condition. In a reply dated 14 January 2019 the NPA informed the applicant, inter alia, that the doctor supervising his treatment in prison no. 16 had the speciality of “family doctor”. It was that doctor, in view of the recommendations by doctors from prison no. 16 and from public hospitals, who had prescribed the applicant’s treatment. In reply to a further complaint, on 3 July 2019 the NPA informed the applicant, inter alia, that he had been seen by a hepatologist three times since the beginning of the year and that the NPA had paid for his treatment at a public hospital in June 2018. 36. At the request of the applicant’s lawyer, and following an order of the Chișinău Court of Appeal, on 20 November 2018 the applicant was examined by an expert, who noted that the applicant had suffered from viral hepatitis for 20 years, the last 7 years of which included the diagnosis of hepatic cirrhosis. The illness from which he suffered was among those included on the list of somatic diseases serving as a ground for releasing seriously ill prisoners from the execution of criminal sentences. The expert also noted that, according to the medical documents in the file, every time the applicant had been treated on an inpatient basis, his state of health had improved. In its judgment of 28 November 2018 (see paragraph 15 above) the Chișinău Court of Appeal rejected the applicant’s request for release based on Article 95(2) of the Criminal Code and order no. 331 (see paragraph 45 below), finding that those provisions applied only to persons convicted by a final decision. Therefore, the applicant’s request was premature, and the issue was to be examined after the sentence became final and irrevocable. 37. On 4 December 2018 the applicant’s lawyer again asked the NPA to start the court procedure for releasing his client from detention based on Article 95 (2) of the Criminal Code and the relevant Regulation (see paragraph 45 below). He repeated his request on 16 January 2019, noting that he had not received a reply. The NPA submitted to the court such a request on 2 July 2019. 38. On 12 July 2019 the NPA submitted to the court examining the criminal case against the applicant a report of the Special Medical Commission. According to that report, the applicant’s state of health during his treatment on an inpatient basis had a negative dynamic. His diagnosis fell under the provisions of order No. 331 of 06.09.2006 MJ the Republic of Moldova (see paragraph 46 below), p.7.2 of the List of somatic diseases, which constitutes the basis for considering the release of seriously ill convicted persons from the execution of a sentence. It concluded that the applicant could be considered for release from the execution of the sentence due to his illness. 39. On 11 June 2019 the applicant was admitted to Sfanta treime public hospital following complications. He stayed there until an unspecified date in 2019. 40. According to the documents in the file, the applicant was detained in the following establishments:
- between 29 September and 4 October 2017 in prison no. 13;
- between 5 and 10 October 2017 in prison hospital no. 16;
- between 13 October 2017 and 19 January 2018 in prison no. 13;
- between 19 and 22 January 2018 he had emergency surgery at the Emergency Clinical Hospital following a haemorrhage of the oesophageal veins;
- between 23 January and 24 April 2018 in prison hospital no. 16;
- between 24 and 27 April 2018 at the General Police Directorate. On the first day of detention there he was taken by ambulance to the Institute of Emergency Medicine, but he was returned to detention on the same day. On 25 April 2018 he was taken to Toma Ciorba Hospital for Infectious Diseases, but was not admitted. He was then moved to several medical institutions, which all refused him admission. According to the applicant, on that day he received neither the medication which his condition required, nor dietary food. On the third day of this new detention the applicant’s wife was able to supply the applicant with the necessary medication;
- between 27 April and 5 June 2018 in Sfânta Treime civilian hospital in Chișinău;
- between 6 and 12 June 2018 in the Municipal Clinical Hospital;
- starting on 12 June 2018 and until a date not specified by the parties in prison hospital no. 16, with a stay in the meantime at the Oncology Institute of the Ministry of Health (from 31 July 2018 until an unspecified date);
- between 11 June 2019 and an unspecified date in 2019 in the Sfanta Treime public hospital. 41. The parties did not submit any information about the dates and places of the applicant’s detention and treatment in addition to those mentioned in the two preceding paragraphs. 42. During his detention the applicant was seen by various doctors on numerous occasions (for instance, on 23 April, 29 May, 4, 5, 13 and 27 June, 5, 19, 26, 27 and 31 July, 27 September and 28 December 2018, 22 February, 23 March, 15 April, 21 June 2019). RELEVANT LEGAL FRAMEWORK
43. The relevant part of Recommendation No. R (98) 7 of the Committee of Ministers of the Council of Europe to member States concerning the ethical and organisational aspects of healthcare in prison (adopted on 8 April 1988) reads as follows:
“... 3. A prison’s health care service should at least be able to provide out-patient consultations and emergency treatment. When the state of health of the inmates requires treatment which cannot be guaranteed in prison, everything possible should be done to ensure that treatment is given, in all security, in health establishments outside the prison.
... B. Equivalence of care
10. Health policy in custody should be integrated into, and compatible with, national health policy. A prison health care service should be able to provide medical, psychiatric and dental treatment and to implement programmes of hygiene and preventive medicine in conditions comparable to those enjoyed by the general public. Prison doctors should be able to call upon specialists. If a second opinion is required, it is the duty of the service to arrange it. 11. The prison health care service should have a sufficient number of qualified medical, nursing and technical staff, as well as appropriate premises, installations and equipment of a quality comparable, if not identical, to those which exist in the outside environment. 12. The role of the ministry responsible for health should be strengthened in the domain of quality assessment of hygiene, health care and organisation of health services in custody, in accordance with national legislation. A clear division of responsibilities and authority should be established between the ministry responsible for health or other competent ministries, which should co-operate in implementing an integrated health policy in prison.
... D. Professional independence
19. Doctors who work in prison should provide the individual inmate with the same standards of health care as are being delivered to patients in the community. The health needs of the inmate should always be the primary concern of the doctor. 20. Clinical decisions and any other assessments regarding the health of detained persons should be governed only by medical criteria. Health care personnel should operate with complete independence within the bounds of their qualifications and competence
... 51. The decision as to when patients subject to short term fatal prognosis should be transferred to outside hospital units should be taken on medical grounds. While awaiting such transfer, these patients should receive optimum nursing care during the terminal phase of their illness within the prison health care centre. In such cases provision should be made for periodic respite care in an outside hospice. The possibility of a pardon for medical reasons or early release should be examined.
...”
44. The relevant part of the Concluding observations on the third periodic report of the Republic of Moldova of the United Nations Committee Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”, CAT/C/MDA/CO/3, adopted on 21 December 2017) reads as follows:
“Provision of health care in the penitentiary system
19. The Committee is concerned about reports that health care in penitentiary facilities is insufficient, that unqualified staff provide medical services to inmates, that inmates are not permitted to obtain private medical assistance or referred to outside specialists when necessary, that the needs of inmates with disabilities and those who require mental health and psychosocial services cannot be adequately accommodated, and that the health care and hygiene needs of women in the penitentiary system are not adequately addressed. The Committee is also concerned at reports concerning particularly poor material conditions, the inadequate quality of medical services, and disciplinary sanctions against patients at the penitentiary hospital (Penitentiary No. 16), and at the fact that medical staff in the penitentiary system are not independent of the prison management (arts. 2, 10 and 11). 20. The State party should:
(a)  Intensify its efforts to improve health care in penitentiary facilities, including by hiring adequate numbers of qualified medical staff and providing them with training on the Istanbul Protocol;
(b)  Establish and ensure the implementation of rules to facilitate requests from inmates for private medical assistance and referrals to outside specialist services and to accommodate the needs of inmates with disabilities in the penitentiary environment;
(c)  Transfer responsibility for penitentiary medical units from the Department of Penitentiary Institutions to the Ministry of Health, Labour and Social Protection; ensure that the penitentiary hospital is affiliated with the Ministry of Health; take measures to reduce overcrowding; improve material conditions, including by renovating and equipping patients’ rooms; provide adequate food and medicines; and ensure individualized treatment plans and medicines for psychoneurological patients, including anti-psychotic drugs;
...”
45. Under Article 95 (2) of the Criminal Code, a person who either before a sentence is passed or during its execution becomes ill with a serious disease which prevents the execution of the sentence may be exempted by the court from its execution. 46. By its Order No. 331 of 6 September 2006, the Ministry of Justice adopted the Regulation on the manner of submitting the files of seriously ill convicts for exemption from executing their sentence. Annex 2 to that regulation contains the list of somatic diseases which are considered serious enough to warrant such exemption. Point 7.2 of that list includes hepatic cirrhosis in the decompensated stage with, inter alia, hypersplenism. For the purposes of that Regulation (points 7 and 8), a serious disease entails an organic, irreversible modification of one or several organs, causing considerable loss from the total functional potential of the organism, characterised by a vital incapacity that prevents the execution of the sentence in conditions of deprivation of liberty. A vital incapacity that prevents the execution of the sentence in conditions of deprivation of liberty is an effect on the state of health when continued detention of a convict endangers his/her life or, owing to the progressive character of the illness, the person is unable to carry out daily activity in the conditions of deprivation of liberty. 47. Under Article 271 of the Code of Execution [of Sentences], the institution in charge of the execution of a criminal sentence shall submit to the competent court a request for release from the execution of a sentence owing to a serious illness within five days from establishing the existence of such an illness. 48. In its 2017 Activity Report the Council for the Prevention of Torture (CfPT, created under the auspices of the Moldovan Ombudsman institution) found, inter alia, that there was understaffing of medical personnel in prisons; that medical staff were not independent of penitentiary authorities; that detainees were not included in the mandatory healthcare system and were not insured within compulsory medical insurance funds; the quality of healthcare provided was not verified systematically by the Ministry of Health, Labour and Social Protection or by other authorities in the field because the national quality audit mechanisms, necessary standards/procedures, as well as monitoring and evaluation indicators of healthcare in places of detention were missing; and that prison healthcare was not included in State healthcare policies. 49. According to a report of the national Council for the Prevention of Torture made after a visit to Prison no. 16 on 22-23 July 2019, the internal illnesses ward provided for the following staff: a head of medical section, a general practitioner (the position was vacant at the time of the visit), a pediatrician and several medical assistants. The infectious diseases ward provided for the following staff: a head of medical section, an infectious diseases specialist (the position was vacant at the time of the visit), a dermatologist (the position was vacant at the time of the visit) and several medical assistants. It appears from the report that, at the time of the visit, the infectious diseases ward was used to lodge women, while the internal illnesses ward was used to lodge men. THE LAW
PRELIMINARY ISSUE
50. The Court notes that the applicant died on 25 March 2021 and that the deceased’s wife, Mrs Elena Cosovan, expressed the wish to continue the proceedings before it (see paragraph 2 above). 51. The Court normally permits next-of-kin to pursue an application, provided he or she has sufficient interest, if the original applicant has died after the introduction of the application before the Court (see Malhous v. the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII; Larionovs and Tess v. Latvia (dec.), nos. 45520/04 and 19363/05, § 172, 25 November 2014; and Paposhvili v. Belgium [GC], no. 41738/10, § 126, ECHR 2016). Having regard to the subject matter of the application and all the elements in its possession, the Court considers that the applicant’s wife has a legitimate interest in pursuing the application and that she thus has the requisite locus standi under Article 34 of the Convention (see, for example, Carrella v. Italy, no. 33955/07, §§ 48-51, 9 September 2014, and Murray v. the Netherlands [GC], no. 10511/10, § 79, ECHR 2016). 52. For practical reasons, the present judgment will continue to refer to the late Mr Serghei Cosovan as “the applicant”. ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION
53. The applicant complained that the authorities had failed to provide him with the medical care necessitated by his state of health, thus endangering his life. He relied on Article 2 of the Convention, the relevant parts of which provide:
“Everyone’s right to life shall be protected by law.”
The parties’ submissions
54. The applicant argued that by failing to transfer him to a public hospital where medical treatment required by his serious condition and unavailable in prison could be given to him, the authorities exposed him to a real risk to his life. 55. The Government considered that the applicant had been given all the medical treatment required by his condition.

Article of the Convention at issue: Article 5
Outcome: violation