Case Wenner v. Germany

Importance Nature Application Number Case language State Date (dd/mm/yyyy)
1 Judgement 62303/13 English Germany 01/09/2016

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Wenner v. Germany  - 62303/13

Article 3

Positive obligations

Obligation on prison authorities to seek independent medical advice on the appropriate treatment for a drug-addicted prisoner: violation


The applicant is a long-term heroin addict. From 1991 to 2008 his addiction was treated with medically prescribed and supervised drug substitution therapy. In 2008, the applicant was sentenced to six years’ imprisonment. While in prison, his treatment was stopped, whereas he claimed it was the only adequate response to his medical condition. He was offered instead an abstinence-oriented drug therapy.

The Court first-of-all recalled that it “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 disease” which applies to the “setting-up of a general policy” in the field of drug-addiction therapy (§61). The Court then stated that in the present case it has “to determine whether the respondent State as provided credible and convincing evidence proving that the applicant’s state of health and the appropriate treatment were adequately assessed and that the applicant subsequently received comprehensive and adequate medical care in detention” (§62).

The Court observed that Federal Medical Association’s Guidelines for the Substitution Treatment of Opiate Addicts clarified that substitution treatment was a scientifically tested therapy for manifest opiate addiction, and that drug substitution therapy was, in principle, available outside and in prisons in Germany (as in the majority of member States of the Council of Europe), and was actually provided in practice in prisons in several Länder other than Bavaria where the applicant was detained. The Court added that that there was a strong indication that drug substitution treatment could be regarded as the required medical treatment for the applicant: this was confirmed both by the doctors who had prescribed the applicant drug substitution therapy prior to his detention as well as by two external doctors, one of whom had examined the applicant in person (§67); and the applicant was “prescribed and provided with drug substitution treatment after his release from detention” (§68).

The Court stated that “in order to ensure that the applicant received the necessary medical treatment in prison the domestic authorities, and in particular the courts, were required to verify, in a timely manner and with the help of an independent doctor skilled in drug addiction treatment, whether the applicant’s condition was still adequately treated without such therapy” (§77). However “no follow-up was given to the opinions expressed by external doctors […] on the necessity to consider providing the applicant again with drug substitution treatment” (§77).

In the light of the foregoing, the Court declared that “the respondent State failed to provide credible and convincing evidence showing that the applicant had received comprehensive and adequate medical care in detention, at a level comparable to that which the State authorities have committed themselves to provide to persons in freedom, where drug substitution treatment was available” (§80) in breach of Article 3.