Cosovan v. Moldova: ECtHR confirms systemic failures in Moldovan prison health system

The judgment Cosovan v.The Republic of Moldova (no. 13472/18) handed down on 22 March 2022 enriches the European Court of Human Rights’ (hereinafter ‘the Court’) approach towards prison healthcare.

Not only did the Court conclude that the multiple shortcomings in the treatment received by the applicant, Serghei Cosovan, who was suffering from hepatitis and cirrhosis, amounted to a violation of Article 3 of the Convention.[1] For the first time, the Court also made a direct reference to the deterrent effect of the lack of independence of prison doctors from the prison administration on the applicant’s state of the health.

While the Court’s conclusions in this respect concern primarily the status of medical units in Moldovan prisons, which are under the authority of the prison administration, they potentially have broader implications for prison healthcare in other Member States of the Council of Europe.

Ⓒ Promo-LEX
Beyond the principle of equivalence of treatment

Until now, the well-established case-law of the Court relied mainly on the principle of equivalence of treatment in and outside prisons. According to this principle, “prisoners are entitled to medical treatment in conditions comparable to those enjoyed by patients in the outside community and should have access to the health services available in the country without discrimination on grounds of their legal situation” (see Wenner v. Germany, no. 62303/13, § 66, 1 September 2016).

This principle, while central (together with the many positive obligations stemming from it) bears however the risk to remain wishful thinking if enunciated without due consideration of the reality of its implementation in prison settings.

In this respect, the NGO Promo-LEX, who represented the applicant before the Court, and European Prison Litigation Network, who lodged a third-party intervention, stressed that the fact that medical units (and the staff working in it) are affiliated with the prison administration can only harm the patient-doctor relationship – to the detriment of prisoners’ health – and negatively impact the delivery of care.

Towards a requirement of independence of prison healthcare?

This central argument is reflected in Cosovan. One the one hand, the Court indeed observed that “the applicant distrusted the prison doctors” to such a degree that he refused “to undergo some of the tests and [asked] for them to be carried out by institutions accredited as medical institutions” (para. 86). On the other, the Court noted that prison doctors might have put their loyalty towards the prison administration before the interests of the patient, when considering to transfer or not the latter to a public hospital – which would have incurred additional costs for the former (para. 86).[2]

The Court’s conclusion is in line with a previous recommendation from the United Nations (UN) Committee against Torture, which had already requested in a 2017 report, to “[t]ransfer responsibility for penitentiary medical units from the Department of Penitentiary Institutions to the Ministry of Health […and] ensure that the penitentiary hospital is affiliated with the Ministry of Health” (see CAT/C/MDA/CO/3, 21 December 2017, p.7).
At a broader level, this judgment reinforces the requirement of independence of prison medicine that can be found in soft law instruments and that had been previously expressed by several Council of Europe bodies (chiefly the CPT[3] and the Pompidou Group[4]).

Challenges ahead: the execution of the judgment

The judgment now being final, comes the question of its execution (a process under the supervision of the Committee of Ministers of the Council of Europe) – and a new set of challenges arise.

First, in view of the scale and acuteness of the problems identified in Moldovan prison healthcare, EPLN and Promo-LEX argue that the case should be placed under enhanced supervision – a status for cases i.a. revealing important structural problems and for which measures adopted by the corresponding government will be closely monitored.

Second, while the execution of judgment pertaining to the quality of the medical care provided in Moldovan prison is currently being supervised within the I.D. v. Moldova group of cases (which gathers a dozen of cases on material detention conditions lato sensu), Cosovan and the novelty it brings with regards to the status of healthcare personnel requires it to be supervised separately. EPLN and Promo-LEX are of the view that it should be granted the status of leading case, gathering similar cases brought before the Court.

Third, the scope of the measures adopted by the Moldovan government should be closely monitored. As stressed by Promo-LEX in its submission to the Committee of Ministers, in Cosovan the Court stressed another major shortcoming in Moldova’s legal framework concerning ill prisoners. Namely that remand prisoners are deprived from the possibility to be released on health ground – a difference of treatment that “may well be discriminatory” (para. 89). As a matter of fact, Mr Cosovan had to remain in prison for more than two years in spite of his state of health degrading rapidly because he was detained on remand. He was only released following his final conviction.



[1] This conclusion is consistent with previous judgments on prison healthcare in Moldova (see the group of cases I. D. v. the Republic of Moldova) and with the findings of numerous reports on the same issue (see i.a. the European Committee of the Prevention of Torture’s latest report on Moldova, published in 2020).

[2] See also Mr Cosovan’s own statement, in an interview given for a Moldovan outlet following his release for medical reasons: “I received no medical assistance, although I wrote several times to the head doctor (of the prison) and requested to be taken to the hospital. They told me, ‘The hospital doesn’t want to see you’. When I got to the hospital, however, they told me they were actually ready to see me, but they had received no request from the prison administration”.

[3] See i.a. the latest reports published by the Committee following its visits to Ukraine (2020), Latvia (2017), Slovenia (2017).

[4] See the Group’s 2017 report on Drug-Treatment Systems In Prisons in Eastern and South-East Europe:  on “The independence of the medical staff can be enhanced if the quality and efficiency of their work is assessed by the administration responsible for health care, the Ministry of Health, which should also be the institution that manages the available funds used for prison health” (p.72).