SECOND SECTION
CASE OF MACHINA v. THE REPUBLIC OF MOLDOVA
(Application no. 69086/14)
 
 
JUDGMENT
 
Art 3 (substantive and procedural) • Inhuman and degrading treatment • Prison authorities’ unreasonable delay in screening prisoner for hepatitis C • Failure to investigate applicant’s complaints concerning infection while in prison • Failure to take effective measures aimed at preventing transmission of contagious diseases in prison • Inadequate medical supervision and treatment in prison
Art 13 (+ Art 3) • Lack of effective remedy for inadequate medical care

 
STRASBOURG
17 January 2023
 
FINAL
 
17/04/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Machina v. the Republic of Moldova,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
 Arnfinn Bårdsen, President,
 Jovan Ilievski,
 Egidijus Kūris,
 Saadet Yüksel,
 Lorraine Schembri Orland,
 Diana Sârcu,
 Davor Derenčinović, judges,
and Hasan Bakırcı, Section Registrar,
Having regard to:
the application (no. 69086/14) 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, Ms Tatiana Machina (“the applicant”), on 23 October 2014;
the decision to give notice to the Moldovan Government (“the Government”) of the complaints concerning the material conditions of detention, infection with hepatitis C (HCV), inadequate medical care in prison and lack of effective remedies (Articles 2, 3, 8 and 13 of the Convention) and to declare inadmissible the remainder of the application;
the decision to give priority to the application (Rule 41 of the Rules of Court;
the decision of 9 April 2019 to declare inadmissible the complaints under Article 3 of the Convention concerning the material conditions of detention;
the observations submitted by the respondent Government and the observations in reply submitted by the applicant;
the comments submitted by the Equal Rights Trust, which had been granted leave to intervene by the President of the Section;
Having deliberated in private on 6 December 2022,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The case concerns inadequate medical care in prison for an inmate with severe motor disabilities and an infection with HCV which allegedly occurred in prison (Article 3 of the Convention). The applicant also complained of the absence of an effective remedy in respect of those complaints (Article 13 of the Convention). THE FACTS
2. The applicant was born in 1985 and lives in Chișinău. The applicant was represented by Mr A. Postică, a lawyer practising in Chișinău. 3. The Government were represented by their Agents, Mr M. Gurin and Mr O. Rotari. 4. The facts of the case may be summarised as follows. 5. Since a spinal cord trauma in 2003, the applicant has suffered from spastic paraplegia (muscle weakness and stiffness affecting the lower limbs). She was in prison from 14 February 2011 to 7 July 2016 serving a custodial sentence. She served most of her sentence in Prison no. 13 but was transferred on several occasions to Prison Hospital no. 16 for inpatient care. Medical assistance in detention
6. The applicant was not screened for any transmissible diseases such as human immunodeficiency virus (HIV) or HCV upon her arrival in prison, although her past drug use was noted in her medical file. On 15 February 2012 a blood test, carried out at the applicant’s request to investigate the cause of a pain in her right flank, revealed that she was infected with HCV. She was diagnosed with chronic HCV with “[zero] activity”. 7. According to her prison medical file, the applicant was diagnosed on various occasions with respiratory infections, dermatitis and otitis, and was prescribed antibiotics, painkillers and other medication. There are a few records of this medication being administered. The applicant was regularly prescribed drug substitution therapy. She often attended medical consultations for pain in her legs and back related to her paraplegia. On various occasions she was prescribed anti-inflammatory treatment and painkillers. In 2013 she was examined by an orthopaedist, who recommended additional examinations and surgery on her legs. 8. The applicant was provided with dental services on at least six occasions, including on 13 May 2011, when she claimed to have contracted HCV. 9. In respect of her HCV diagnosis, the applicant was twice examined by the prison doctor (“GP”) (terapeut), in February and August 2012, and was prescribed a special diet, hepatoprotectors and antispasmodics. There are no records of this medication being administered or of any blood tests to establish the applicant’s HCV viral load. 10. The applicant was provided with inpatient treatment on four occasions, mainly for her paraplegia (anti-inflammatory treatment). There is no record of any inpatient medical assistance related to HCV. Complaints made by the applicant
11. The applicant complained to various authorities on several occasions, including on 11 July 2014 to the Ombudsperson, that the material conditions of detention failed to adequately accommodate her physical disability and that she was not receiving adequate medical care for her health condition. The Ombudsperson carried out visits to Prison no. 13 and requested the Prison Service (Departmentul Institutiilor Penitenciare – “the DIP”) to improve the material conditions of detention. 12. Following her complaints, the DIP informed the applicant on several occasions, including on 24 August 2012 and 13 August 2014, that she had been provided with qualified medical assistance in Prison no. 13 and occasionally in Pruncul Prison Hospital no. 16. These replies did not refer to any medical assistance related to HCV. 13. On 11 September 2011 the applicant lodged a complaint with the Equality Council (the national body for equal treatment and protection from discrimination) of inadequate detention conditions and medical care, which had led to her infection with HCV and which amounted to a failure by the authorities to provide reasonable accommodation in view of her disability, and therefore constituted discrimination. She sought an acknowledgement that her rights had been violated and an order for the DIP to improve the conditions of her detention. The prison doctor submitted before the Equality Council that the applicant must have contracted HCV in some other way than the dental services provided in prison, without providing any further details. On 11 December 2014 the Equality Council granted the applicant’s requests in full. The DIP did not take any steps to comply with that decision. 14. In May 2012 the applicant complained to the Chișinău District Court (Centru Division) investigating judge about the conditions in which she was serving her custodial sentence, and in particular the inadequate medical assistance provided in prison and her infection with HCV. In the course of proceedings, the prison doctor argued that the applicant had contracted HCV through sexual contact before incarceration. On 5 April 2016 the proceedings were discontinued at the applicant’s request, on the basis that a relevant finding had already been made by the Equality Council. 15. On 2 May 2019 the applicant lodged a complaint using the new compensatory remedy concerning material conditions of detention (see Draniceru v. the Republic of Moldova (dec.), no 31975/15, §§ 10-19, 12 February 2019). Relying on Article 3 of the Convention, she complained of the inadequacy of the material conditions and medical care she had received during her detention in Prison no. 13. She complained that her infection with HCV had resulted from medical negligence in prison and the inadequate material conditions of her detention. She claimed compensation in line with the Court’s case-law without specifying an amount. The proceedings are still pending. RELEVANT LEGAL FRAMEWORK
16. The Criminal Code of the Republic of Moldova, enacted by Law no. 895 of 18 April 2002, reads as follows:
Article 213
Negligent violation of rules and methods for providing
medical assistance [medical negligence]
“The violation by a doctor or another member of medical staff of the rules or methods for the provision of medical assistance, if this has resulted in:
(a) a serious bodily injury; or
(b) the patient’s death,
shall be punished by imprisonment of up to three years with (or without) the deprivation of the right to hold a certain position or exercise a certain activity for between two and five years.”
17. The Regulation on the forensic assessment of bodily injuries, approved by order no. 99 of 27 June 2003 of the Ministry of Health of the Republic of Moldova, lists the injuries which are classified as serious. The list refers to various bone fractures and wounds but does not include infection with HCV or other infectious diseases. 18. The relevant provisions of international documents concerning health care issues related to transmissible diseases in prisons are set out in the judgments of Vasyukov v. Russia (no. 2974/05, §§ 43-47, 5 April 2011) and Jeladze v. Georgia (no. 1871/08, §§ 30-31, 18 December 2012). THE LAW
DISJOINDER OF THE APPLICATION
19. On 9 April 2019 the Court decided to join this application with eleven others (see Tălămbuță and Others v. the Republic of Moldova (dec.), nos. 23151/09 and 11 other applications, § 12, 9 April 2019) in view of the similarity of the complaints concerning material conditions of detention, declared the applications partially inadmissible and adjourned the examination of the remainder of the applications. 20. 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
21. The applicant complained that she had not been provided with adequate medical assistance and that she had been infected with HCV in prison. She relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
22. The Court has previously examined comparable cases concerning infections with HCV under Article 2 of the Convention (see G.N. and Others v. Italy, no. 43134/05, §§ 69-70, 1 December 2009) or under Article 3 the Convention (see, for example, Mitkus v. Latvia, no. 7259/03, § 62, 2 October 2012, and Cătălin Eugen Micu v. Romania, no. 55104/13, § 56, 5 January 2016). Without losing sight of the applicant’s vulnerability owing to her disability and detention, the Court will examine her complaints under the substantive and procedural aspects of Article 3 of the Convention. Admissibility
23. The Government submitted that the applicant had failed to exhaust the available domestic remedies in respect of her complaint concerning the infection with HCV because the proceedings under the new compensatory remedy were still pending. They also referred to the case of Ismatullayev v. Russia ((dec.), no. 29687/09, 6 March 2012) and subsequent case-law against Russia, according to which a criminal-law complaint was an adequate remedy within the meaning of Article 35 § 1 of the Convention for an applicant to complain of his or her infection with transmissible diseases while in detention. In this connection, the Government referred to the provisions of the Moldovan Criminal Code on medical negligence (section 213). 24. The applicant argued that the new compensatory remedy was not applicable to complaints about medical care in prison, including infection with HCV. Moreover, she submitted that she had informed the national authorities of her allegations through her complaints and proceedings before the Equality Council and the investigating judge, which had been attended by the prosecutor. She argued that the Code of Criminal Procedure obliged the prosecutor to initiate an investigation of his own motion once the elements of a crime had become known to him. She submitted that there had been no effective remedies available to her and that this was the reason why she had also complained under Article 13 of the Convention. 25. The Court notes that the compensatory remedy set up under the Code of Criminal Procedure refers exclusively to compensation for inadequate material conditions of detention (see Draniceru, cited above, §§ 10-19). In this regard, the applicant’s complaints concerning inadequate medical care and her infection with HCV were not declared inadmissible in 2019 (see Tălămbuță and Others, cited above, §§ 25-26) and the Government did not submit any reason why the Court should reach a different conclusion now. 26. Moreover, the Court reiterates that cases of transmission of life‑threatening infections, such as HIV and HCV, which result from negligent or wilful actions of State agents cannot be remedied exclusively through an award of compensation to the victim (see Ismatullayev, cited above, § 27, with further references; and Jeladze v. Georgia, cited above, § 35). 27. With respect to a criminal-law remedy, the Government did not specify whether the Moldovan Criminal Code criminalised infecting a person with HCV but argued that the criminal offence of medical negligence was applicable to the applicant’s situation. However, the Court notes that the domestic law does not appear to classify infection with HCV as a serious bodily injury and that this circumstance may preclude involuntary infection of a person with HCV from being classified as medical negligence (see paragraphs 16-17 above). In the absence of examples of domestic practice confirming the Government’s interpretation, the Court is not convinced of the availability of this remedy. 28. In the absence of any information as to the existence of effective remedies, which had to be exhausted, and as the applicant provided some evidence that she had approached the domestic authorities and received negative replies, the Court rejects the Government’s objection. 29. 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.

Outcome for Article 13: violation