Wenner v. Germany

The applicant has been a heroin addict since 1973, suffered from hepatitis C since 1975 and been HIV-positive since 1988. Attempts to overcome his heroin addiction through various treatments failed, and from 1991 to 2008 he was treated with drug substitution therapy. In 2008, the applicant was arrested on suspicion of drug trafficking and detained at Kaisheim Prison, where his drug substitution treatment was interrupted against his will. After being convicted of this offence, the applicant was placed in a drug detoxification facility after six months of detention at the prison. The applicant was not provided substitution treatment at the prison and underwent abstinence-based treatment for his addiction at the detoxification facility.

On April 19, 2010, Memmingen Regional Court terminated the applicant’s detention at the detoxification facility and ordered retransfer to prison. On June 25, 2010, the Munich Court of Appeal dismissed Wenner’s appeal given the treating doctors belief that there was not sufficient probability that Wenner’s drug addiction could be cured.

On April 30, 2010, Wenner returned to Kaisheim prison, where the prison doctors gave him painkillers for the chronic pain, which resulted from his polyneuropathy.  Multiple doctors recommended continuing the drug substitution treatment as the therapy was in accordance with the Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts.  External doctors stated detoxification should only be used in cases of short opioid dependence and that drug substitution therapy would help prevent a deterioration of the patient’s state of health and risk to life, while also preventing further spread of infectious disease, like HIV and hepatitis C.

On June 6, 2011 the applicant made a request to Kaisheim Prison for treatment with a heroin substitute or alternatively for examination by a drug addictions specialist. Prison authorities rejected the request, contending the substitution treatment was not necessary or suitable for the applicant’s rehabilitation. The prison doctor, S, stated drug substitution therapy was not necessary for the purpose of Section 60 of the Bavarian Execution of Sentences Act. After three years in prison,  the applicant no longer suffered from withdrawal symptoms and his condition with regards to the HIV and hepatitis C infections were stable. Further, the benefits of drug substitution therapy in preventing impoverishment and drug-related criminality, were not present risks in prison. The applicant consumed other drugs and committed crimes while on this treatment and had consumed drugs in detention. Finally, the prison argued that providing substitution treatment could lead to a risk of life and limb.

Between 2011 and 2014, multiple appeals and requests for substitution treatment were made and denied. On December 3, 2014 Wenner was released and on December 5, 2014 he tested positive for methadone and cocaine. The doctor confirmed Wenner would receive drug substitution treatment from December 8, 2014 onwards.

Wenner argues that the refusal to grant him drug substitution therapy in prison, which made him suffer considerable pain and has caused damaged to his health, and the refusal to have an external medical expert examine the necessity of such treatment violates Article 3 of the Convention. The treatment would have alleviated serious neurological pain, the need for this treatment should have been examined by an independent medical expert, and the prison doctor and courts should have regarded the applicable provisions (Section 13 of the Narcotic Substances Act, Section 5 of the Prescription of Narcotic Substances Regulation and the Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts) for the provision of drug substitution therapy.

The Government contends the applicant received adequate medical treatment in detention, substitution treatment was not found to be necessary by the prison doctor, and this treatment would have run counter to the aim of rehabilitation and enabling a drug-free life. The medical care was given in accordance with Sections 58 and 60 of the Bavarian Execution of Sentences Act and his state of health remained stable while in detention. It is contended that the applicant did not satisfy the requirements under the relevant provisions for drug substitution therapy, and he was not given this treatment at the drug addiction facility prior to Kaisheim Prison.  Furthermore, one of the applicant’s treating doctors had carried out drug substitution therapy many times, indicating he had the necessary professional qualifications and experience to evaluate the need for drug substitution treatment.

The Court held that to fulfill the obligation of ensuring a prisoner’s health was adequately ensured an assessment of state of health and consultation with a specialist doctor is needed in cases of serious illness. If there are diverging medical opinions, then the prison authorities and courts may have to obtain additional advice from a specialized medical expert to comply with the positive obligation under Article 3. The prison was required to verify, in a timely manner and with help of an independent doctor skilled in drug addiction treatment, whether the applicant’s condition was still being treated without drug substitution treatment. The opinions of specialists in drug addiction treatment diverged from the specialized internal doctors treating the applicant. Despite this being the applicant’s medical treatment for the last seventeen years, no follow up was given to the opinions expressed by the external doctors that this was the best treatment.

The Court held that drug withdrawal, causing serious physical strain and extreme mental stress to a manifest and long-term opioid addict may attain the threshold of Article 3. Doctor H suggested that the applicant’s chronic pain could be alleviated more effectively through drug substitution treatment than with painkillers. The Court found the applicant’s suffering was exacerbated by the fact he was aware of the existence of a treatment which had previously alleviated his pain effectively, but which he was refused. The refusal to provide drug substitution treatment caused considerable and continuous mental suffering for a long time, plausibly deteriorating the applicant’s already poor state of health and reducing his ability to participate in social life. This level of physical and mental suffering exceeds the unavoidable level of suffering inherent in detention and attains the threshold of Article 3.

The Court found the State failed to comply with its positive obligations under Article 3 by refusing to provide drug-substitution treatment or have an external medical professional examine the necessity of such treatment. This failure violated Article 3 because it demonstrates the State’s failure to provide the applicant with comprehensive and adequate medical care in detention, at a level comparable to that which the State authorities have committed themselves to provide to person in freedom, where drug substitution treatment was available. The authorities failed to examine with scrutiny and with the help of independent and specialist medical expert advice, against the applicant’s situation and the background of a change in medical treatment, which therapy was appropriate.

The Court held that the applicant was not entitled to pecuniary damages for inability to work and draw wages in prison, but that he was entitled to non-pecuniary damages for his serious neurological pain, craving for drugs and social isolation resulting from poor health. There was no causal link between the violation found and the pecuniary damages alleged given the applicant received employment disability pension prior to prison. The domestic authorities did breach Article 3 by insufficiently examining whether the applicant received adequate medical care in detention, and in the particular circumstances of this case justifies any non-pecuniary damages suffered.

“The Court accepts that the States have a margin of appreciation in respect of the choice between different suitable types of medical treatment for a prisoner’s diseases. This holds true, in particular, where medical research does not lead to a clear result as to which of two or more possible therapies is more suitable for the patient concerned… The States’ margin of appreciation in respect of the choice of medical treatment for a prisoner’s diseases applies, in principle, also to the choice between abstinence-oriented drug therapy and drug substitution therapy and to the setting-up of a general policy in this field, as long as the State ensures that the standards set by the Convention in the field of medical care in prison are complied with.” (para 61)

“The statistical data before the Court show, accordingly, that opioid substitution therapy programmes were operational already at the relevant time of the proceedings at issue in 41 out of 47 of the Council of Europe Member States in the community and 30 out of 47 of those State also provided such therapy to prisoners.” (para 64)

“The Court would add that it is aware that medical treatment in the prison context may entail additional difficulties and challenges for the domestic authorities, notably those related to security concerns. However, the Government have not forwarded any reasons for finding that providing the applicant with drug substitution treatment was incompatible with the practical demands of imprisonment.” (para 74)