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

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

In this judgment, not only did the Court conclude that the lack of adequate treatment provided to 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 Court’s well-established caselaw on prison healthcare relied primarily 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, 1 September 2016, § 66).

While of paramount importance, this principle (together with the many positive obligations stemming from it) bears the risk to remain wishful thinking if practical obstacles to its implementation that are inherent to the prison environment are not given due consideration.

Promo-LEX (who represented the applicant before the Court) and the European Prison Litigation Network (who lodged a third-party intervention) argue that the mere fact that medical units (and the staff working in it) are affiliated with the prison administration 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 was taken on board by the Court in the Cosovan judgment. The Court indeed observed that “the applicant distrusted the prison doctors” to such a degree that he refused “to undergo some of the [medical] tests and [asked] for them to be carried out by institutions accredited as medical institutions” (§ 86). The Court also noted that prison doctors might have put their loyalty towards the prison administration before the interests of the patient, which resulted in delays in transferring M. Cosovan to a public hospital – as this transfer would have incurred additional costs for the prison administration (idem).[2]

The Court’s observations in this respect are in line with a previous recommendation of the United Nations Committee against Torture, which, in a 2017 report, urged the Moldovan government 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 placed under the supervision of the Committee of Ministers of the Council of Europe). And in this new phase, a second set of challenges arise – highlighted by EPLN & Promo-LEX in their joint Communication to the Committee of Ministers dated August 2022.

First, EPLN & Promo-LEX argue that the scale and acuteness of the problems identified in Moldovan prison healthcare command that the execution Cosovan is examined separately from the other cases relating to detention conditions lato sensu in Moldova (roughly a dozen of cases currently included in the I.D. v. Moldova group of cases) and involve a different set of actors, including the Ministry of Health. Cosovan should be granted the status of leading case in a group of cases bringing up similar issues before the Court [5]. As a matter of fact, the issue of independence of prison medicine is only one among the problems of prison healthcare in Moldova repeatedly underlined by relevant bodies at UN, CoE and national levels. [6]

Second, the Cosovan case should be placed under enhanced supervision – a status for cases revealing important systemic or structural problems and for which measures adopted by the corresponding government will be closely monitored.

Third, the scope of the measures to be adopted by the Moldovan government should be enlarged to broader legal issues. As stressed by EPLN & Promo-LEX, the Court identified in Cosovan 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” (§ 89). As a matter of fact, because of his status of remand prisoner, Mr Cosovan had to remain in prison for more than two years in spite of his state of health degrading rapidly. 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 CPT’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).

[5] A similar approach was followed by the Committee of Ministers concerning prison healthcare in Ukraine. Judgments relating to lack of adequate treatment in prison are being supervised separately from other detention conditions related issues – see group of cases Logvinenko v. Ukraine (medical care) and group of cases Nevmerzhitsky v. Ukraine (detention conditions).

[6] These problems include i.a. inadequate staffing ressources, absence of appropriate medical screening for newly arrived prisoners, lack of appropriate equipment, lack of appropriate respect for medical confidentiality… See in particular the two previous UPR cycles conducted by the UN Human Rights Council (in 2016 and 2021), the latest CPT report issued in 2020, and the latest report published on this issue by the domestic NPM.