MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1483/H46-20

7 December 2023

1483rd meeting, 5-7 December 2023 (DH) Human rights   H46-20 Cosovan v. the Republic of Moldova (Application No. 13472/18) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2023)203, DH-DD(2023)1169

 

Application	Case	Judgment of	Final on	Indicator for the classification
13472/18	COSOVAN	22/03/2022	22/06/2022	Complex problem
23151/09	TALAMBUȚA AND IAȘCININA	14/12/2021	14/12/2021
69086/14	MACHINA	17/01/2023	17/04/2023

Case description

This group of cases concerns inadequate medical treatment and specialised medical care in detention, including in the facilities of the Ministry of Internal Affairs, between 2008 and 2019, and lack of effective domestic remedies in this respect (violations of Articles 3 and 13).

The Court emphasised serious shortcomings in the dispensing of medical care in detention, in particular, lack of official accreditation of the prison hospital as a health institution; absence of certain specialist doctors in the prison hospital and the fact that a treatment can be denied or only partially carried out simply because no appropriate treatment is available in prison or because the resources are too scarce; logistical and financial complications for guarding detainees transferred to civil hospitals; lack of access of detainees to the general medical insurance scheme; subordination of prison doctors to the prison administration; unavailability of humanitarian release of seriously ill persons detained pending trial; the state’s failure to prevent transmission of HCV in prison; lack of screenings upon admission in detention; and lack of special diet.

The Cosovan case also concerns the domestic courts’ failure to provide relevant and sufficient reasons in court decisions justifying applicant’s detention pending trial and its extension (violation of Article 5 § 3).[1]

Status of Execution

The authorities submitted action plans on 10 January 2023 (see DH-DD(2023)203) and 4 October 2023 (see DH-DD(2023)1169).

Individual measures:

The just satisfaction awarded by the Court was paid in all cases. All applicants were released from detention.

In the Machina case, the applicant’s complaint concerning conditions of detention has been pending before the domestic courts since May 2019. As to the authorities’ failure to investigate the applicant’s complaint concerning her alleged infection with HCV while in prison, the resumption of the investigation is not possible due to the expiration of the limitation period for medical negligence.

General measures:

Legislative amendments: In September 2022, the Ministry of Justice set up a working group for amending the legislation on medical assistance in prisons, focusing on the implementation of recommendations of the UN Committee Against Torture (UN CAT) on the transfer of responsibility for healthcare in prisons from the Ministry of Justice to the Ministry of Health;[2] providing medical assistance to insured categories of detainees, when they address  civil medical  institutions; providing prison institutions with medical staff, increasing their salaries, granting the possibility of plurality of offices, extending the availability of dental care services for detainees, and others. More public policies in this field are envisaged with the support of Council of Europe Project “Strengthening the prison and probation reforms, provision of health care and the treatment of patients in closed institutions in the Republic of Moldova”.

Accreditation of medical services of the prison system:In 2021, out of 15 outpatient medical units 13 received accreditation for a period of five years. The Prison Hospital is currently in the process of accreditation.

Measure to address understaffing: In 2022-2023 five new positions were allocated to the Prison Hospital and a psychiatrist and a lab doctor were hired.

Measure to ensure adequate medical care in prisons: The authorities submitted that between 2021 and 2023 they had spent approximately EUR 460,600 on medicine supply and medical services and equipment in the prison system, including a new ambulance for the Prison Hospital. In the framework of the Council of Europe Project “Promoting human rights compliant criminal justice system in the Republic of Moldova” medical equipment and devices were donated in an amount of approximately EUR 150,000, covering the needs in all 16 medical units and the Prison Hospital. Another lot of medical equipment and devices (in the amount of approximately EUR 105,000) will be donated to the prison system with the support of the CoE to cover the outstanding needs.[3]

From January to August 2023, 298 detainees benefited from consultations and 54 patients were hospitalized in public health institutions.

Dietary standards in prisons: The CoE Project “Strengthening the prison and probation reforms, provision of health care and the treatment of patients in closed institutions in the Republic of Moldova” prepared a set of recommendations for amending regulations on dietary standards, which are currently being implemented by the NAP.

Measures to prevent transmission of HCV and other transmissible diseases: In 2022, the Ministry of Justice adopted Rules on medical assistance in prisons, which provide medical screening on admission in prison for any possible diseases and injuries, developed with the assistance of the CoE Programme “Promoting human rights compliant criminal justice system in the Republic of Moldova”. Screening tests for HIV/AIDS, syphilis, HCV and HBV are carried out free of charge and on a voluntary basis. Persons suspected of tuberculosis undergo lung fluorography. Treatment for viral hepatitis has been available in prisons since 2018. Ever since, more than 500 inmates have been treated.

Since 2022, hepatitis B vaccination has become available for prisoners in the risk group. In addition, the authorities provided detailed information on screening rules depending on the subject and suspected disease.

In 2018 the NAP approved Order no. 102 on medical documentation in prisons. It introduced medical record of patients diagnosed with hepatitis and other contagious diseases. All medical units have been equipped with sterilizers and autoclaves which are used for decontamination of medical instruments and equipment.

Drug treatment and reducing drug related harm in prisons: With the assistance of the CoE Criminal Justice and Health in Prison Programme implemented by the Pompidou Group, the NAP introduced the country’s first in-prison therapeutic community for treating addictions, which has been operational since July 2018. Rehabilitation and through-care of residents is supported with social activities and a post-release mentorship programme with close cooperation between prison administration and civil society.[4] Research on the influence of criminal subcultures on effectiveness of drug treatment options in prisons was conducted by the CoE Project “Strengthening human rights-based responses to substance use disorders in prisons” and led to practical recommendations to mitigating this influence on uptake of treatment. An interactive online course on delivering medication-assisted treatment in prisons was implemented to enhance the competences of professionals working with persons with opioid use disorders.[5] Such evidence-based treatment is available in 13 out of 17 prisons and efforts are being made, in cooperation with the Pompidou Group, to improve its quality and uptake.   

Humanitarian release of seriously ill detainees: The Ministry of Justice currently reviews the recommendations for amending of the relevant internal regulations developed with CoE assistance.[6]

Medical assistance in the temporary detention facilities (TDFs) of the Ministry of Interior: The provision of medical assistance in TDFs is regulated by the 2019 Standard Operating Procedures, according to which detained persons undergo medical examination upon admission, release, as well as on request. Each TDF has a medical office for primary medical assistance and medical staff are available from 8 a.m. to 17 p.m. during working days. In addition to the available medication, the detainee may also receive medication at his/her own expense. If medical assistance is required outside the doctor’s working hours, the detainee is taken to a public hospital.

Domestic remedy to challenge inadequate medical assistance in detention: The authorities presented examples of domestic case-law from the Courts of Appeal covering the period 2021-2023 and submitted that the preventive and compensatory remedy on challenging conditions of detention is equally applicable to complaints related to medical assistance. The Guide for justice sector professionals on the implementation of the remedy elaborated with the assistance of the CoE Project “Strengthening the human rights compliant criminal justice sector in the Republic of Moldova” explains that the issues related to medical assistance in detention are covered by the remedy.   

Training and awareness raising: The authorities reported on training and awareness raising measures organised since July 2020 for medical and non-medical staff in prisons on management of emergencies in public healthcare; quality management in medical institutions; promotion of health, communication and counselling in healthcare; control of transmissible diseases; screening upon admission to prisons; administration of inmates’ medical files; basic life support and others. 

Rule 9 communications:

Joint communications were received on 8 August 2022 from NGOs Promo-LEX and European Prison Litigation Network (see DH-DD(2022)894) and on 24 October 2023 from the NGOs Promo-LEX, European Prison Litigation Network and the National Human Rights Institution (NHRI) People’s Advocate (see
DH-DD(2023)1323). The NGOs and the NHRI point out structural problems of the medical system and systemic issues concerning the medical care in prisons and emphasised a high rate of chronic illnesses in prisons and, respectively, a high level of mortality. They submitted, in particular, that:

-       the Prison Hospital lacks sanitary authorisation and accreditation and that, in all probability, authorisations will not be obtained in the near future;

-       medical units in two prisons are also not officially accredited and those accredited had not undergone the annual assessments in order to confirm their status;

-       the prison healthcare lacks medical staff norms and the serious shortage of the medical employees persists; apart from being subjected to double loyalty, medical staff is also discriminated based on salary in comparison to the public healthcare system;

-       the budget for prison healthcare dropped substantially in the last three years and the funds allocated for contracting external medical services are not fully used;

-       the detainees are not covered by the general medical insurance scheme;

-       the findings of the Quality Council’s audits from prison system in the period 2021-2023 reveal serious shortcomings in the work of the accredited medical units, which affect the quality of medical care and include improper handling of medical records, lack of medicines or their inadequate administration, screenings and sterilisation not on a regular basis;

-       the domestic legal framework does not offer the same safeguards to seriously ill person pending trial in comparison to those serving a sentence;

-       they disagreed with the government that the domestic remedy covers the complaints on inadequate medical assistance.

Analysis of the Secretariat

Individual measures:

No further individual measures are necessary in the Cosovan and Talambuţa and Iaşcinina cases given that the just satisfaction was paid and the applicants were released from detention. The Committee might thus wish to close the Talambuţa and Iaşcinina case based on individual measures taken.

In the Machina case, it can be noted with regret that the investigation into the applicant’s alleged infection with HCV in prison is not possible due to the expiration of the limitation period for medical negligence. Further, it is worrying that the applicant’s complaint about conditions of detention has been pending with the domestic courts since May 2019, i.e. long beyond the statutory three-month time limit. The authorities should be encouraged to promptly bring these proceedings to an end and keep the Committee informed on their outcome.

General measures:

a)     Medical care in prison system

At the outset, it can be recalled that inadequate medical assistance in Moldovan prisons is a longstanding issue that has been pending before the Committee of Ministers since 2006.[7] As transpires from the Court’s judgment in the case of Cosovan, the shortcomings identified persist over decades. The measures reported by the authorities to address these shortcomings are noted. However, their extent, complexity and systemic character require continued resolute action and a holistic approach on the part of the authorities including with ongoing support from the CoE cooperation activities.

As indicated by the NGOs and the People Advocate in their submissions, the authorities are lacking a proactive and comprehensive strategy to deal with this issue as part of national health policies. The transfer of prison healthcare to the Ministry of Health, as recommended by the UN CAT and supported by the European Committee for the Prevention of Torture (CPT), will facilitate the provision of good quality healthcare to detainees, as well as implementation of the general principle of the equivalence of healthcare in prison with that in the wider community.[8] It can also address the issue of double loyalty of the medical personnel in prisons. It is thus crucial that the authorities find a rapid and efficient solution to implement this reform and keep the Committee informed on the developments.

It is important that all the necessary measures are taken to achieve the accreditation of the Prison Hospital and of the not-yet-accredited medical units in prisons, as well as to ensure the annual follow-up on the accredited medical units, as required by the domestic legislation. But, beyond the formal accreditation, it is of utmost importance that the required medical care is offered to detainees.

The authorities are thus encouraged to step up their efforts to ensure the availability of the necessary treatment within the prison system and improve the detainees’ access to healthcare in the public system. In this context, it is worrying that, as follows from the latest Rule 9 submission, the budget for contracting external medical services in 2023 has dropped by almost 18% as compared to 2021 and that the allocated resources are not fully used.[9] The authorities are invited to inform the Committee on the underlying reasons for this situation and on whether the allocation of financial resources is based on a proper planning.

Further, as transpires from the Rule 9 submissions, understaffing continues to be a critical problem. This observation is also confirmed by the CPT.[10] It is encouraging that in 2022 and 2023 the NAP hired several specialist doctors to the Prison Hospital; however, it is of high importance that the authorities introduce medical staff norms in prisons and do the necessary to fill the remaining vacancies without further delay.

The establishment of the Quality Council and the comprehensive audits of the prisons’ medical units can be noted with interest. However, the latest Rule 9 submission raises inter alia the issue of the lack of independence of the Council experts and of implementation of recommendations delivered by the Council. The authorities are invited to provide information in this respect.

The measures adopted in response to the Court’s findings in the Machina case with a view to preventing the spread of transmissible diseases in prisons, by means of screenings, keeping records of HCV-infected detainees and sterilisation of medical instruments are positive steps. However, it follows from the Quality Council’s audits across several prisons in the period 2021-2023 that sterilisation of medical instruments is not done in line with Standard Operating Procedures. The authorities should thus be encouraged to ensure that all related procedures are conducted in strict conformity with the prescribed rules.

The authorities are also invited to provide information on:

-       the steps taken to provide medical insurance coverage to all detainees;

-       the possibility of humanitarian release of seriously ill persons detained pending trial;

-       whether the prisons dietary policy addresses the needs of detainees which were prescribed a special diet.

b)     Medical care in the temporary detention facilities under the Ministry of Interior

The Committee might wish to welcome the measures adopted to ensure that adequate medical care is provided in TDFs, including the introduction of Standard Operating Procedures. In view of the information provided and given that the relevant events in the Talambuţa and Iaşcinina case date back to 2008 and that this issue is not raised in recent cases communicated by the European Court, the Committee might wish to close the examination of this aspect with the understanding that the issues related to medical examinations in police custody as a safeguard against ill-treatment are examined in the Levința group.[11]

c)     Domestic preventive and compensatory remedy to challenge inadequate medical assistance

No examples of the domestic caw-law were provided to show that the domestic courts award adequate compensation for the lack of medical assistance in detention. The authorities should thus be invited to present such case-law.

No information was provided about functioning of the preventive remedy. The Committee might wish to invite the authorities to submit the relevant information, including examples of cases in which the courts ordered to the prison authorities to provide the necessary medical assistance to detainees and the modality of execution of such orders.

Financing assured: YES