Soopramanien v Government of Seychelles & Ors (MA 12 of 2025 (Arising in CP 05 of 2024)) [2025] SCCC 4 (5 June 2025)

RULING
 

M. BURHAN J (M. Vidot J and D. Esparon J, concurring)

Background Facts

1. The Applicant/Petitioner (hereinafter Applicant) filed a petition CP 5/2024 dated 31^st of December 2024 seeking the following reliefs:

1. Interpret the Charter:

1. In such a way as not to be inconsistent with any international obligations relating to Human Rights and freedoms, particularly the Covenant on Civil and Political Rights which Seychelles acceded to in 1992, the European Convention on Human Rights and the American Convention on Human Rights.

2. In line with Article 48 (a) to (d) of the Constitution.

2. To grant the following orders:

1. 1. 1. A Declaration that the acts perpetrated against the Petitioner constituted inhumane and degrading treatment contrary to Articles 16, 18, 19 and 29 of the Constitution.

      2. An Order directing the Respondents to provide adequate and continuous medical treatment to the Petitioner to prevent further complications, including amputation.

      3. An Order that the 4^th Respondent promptly disclose to the Petitioner all his medical records and files necessary for him to make informed decisions about his health and wellbeing.

      4. An Order for compensation to the Petitioner for the physical, psychological and emotional harm suffered as a result of the constitutional contraventions.

      5. An Order for the Petitioner’s early release from incarceration based on the unconstitutional and unlawful treatment suffered, including physical and psychological harm, which has rendered continued imprisonment disproportionate and inconsistent with the fundamental rights guaranteed under the Constitution and Seychelles’ international obligations.

      6. Any additional orders deemed just and necessary by this Honourable Court to secure the enforcement of the Charter, including considering the Petitioner’s release on medical and humanitarian grounds in light of the ongoing harm caused by the violations.

      7. An Order permitting witnesses to provide testimony under oath in Court.

      8. An Order that the case is heard as one of Extreme Urgency.

2. The Applicant in his petition claims that the aforementioned Respondents contravened Article 16, 18 and 29 of the Constitution of the Republic of Seychelles.

3. On 14 January 2025, this Court granted the aforementioned prayers B (ii) and B (iii) when the case was called in open Court as these reliefs were not contested.

4. Together with the petition on the 31 December 2024, a notice of motion MA 321 of 2024, arising in CP 05 of 2024 was filed seeking the following orders:

   1. 1. 1. An Order for Urgency: That the Honourable Court orders his matter encompassing both the present Motion and the substantive Petition, to be heard as a matter of urgency, including during the court vacation;

         2. An Order for Disclosure: That the Honourable Court issues an order compelling the 4^th Respondent, the Health Care Agency, to immediately disclose all medical reports and records associated with the Petitioner, which are necessary for assessing his medical needs and securing adequate treatment;

         3. An Order for Immediate Medical Care: That this Honourable Court directs the 2^nd and 4^th Respondents to ensure that the Petitioner receives immediate adequate, and specialised medical care for his injuries to prevent further harm, including the risk of amputation.

         4. Such further order as meets the interest of Justice.

5. It is clear that on 14 January 2025 this Court in granting the reliefs claimed in B(ii) and B (iii) also granted prayers 2 and 3 in the notice of motion dated 31 December 2024.

Present Application- Case for the Applicant

6. Thereafter on 23 January 2025, the Applicant filed this application MA 12 of 2025 seeking the following reliefs:

   1. 1. 1. A repeat Order for Extreme Urgency

1. That this matter be heard immediately, given the life-threatening medical situation of the Applicant/Petitioner and impending surgical intervention on Friday 24^th January 2025;

2. That the 4^th Respondent (Health Care Agency), and any other Respondent found to be responsible for the delay of disclosure of the full and complete medical records be ordered by the Court to immediately comply with the Order for Disclosure as contained in Article 28 (1) of the Constitution, the Right to Access of Information relating to the Applicant/ Petitioner and held currently by either or all of the Respondents.

3. That as per the plastic surgeon report “A free flap is probably the most suited to provide bone cover and dead space management by the facility and multidisciplinary care for this is currently not available in Seychelles. The Petitioner/ Applicant prays for an order for extreme urgency for him to be treated overseas where the facility exists for such treatment.

1. 1. 1. 1. An Order for Full Medical Disclosure

1. That the 4^th Respondent immediately disclose and produce to the Court and the Applicant/ Petitioner, all medical records, including but not limited to:

All X-rays, CT Scans, and laboratory results to date;

Records of antibiotics or other prescribed medications;

Records detailing any bullet fragments, shards, or other foreign objects identified, recovered, or removed during examination or treatment; and

Any surgical notes or related consultation records and documents.

1. 1. 1. 3. An Order for a Second Medical Opinion:

1. That this Honourable Court order the Respondent to facilitate a second medical opinion from an independent or specialist medical practitioner, given the urgency and severity of the Applicant/Petitioner’s injuries and the proposed surgery;

2. That this second opinion be conducted as soon as possible, ideally before any irreversible surgical procedures are undertaken on the Applicant/ Petitioner.

1. 1. 1. 1. Such further order as meets the interest of justice.

2. The notice of motion dated 23 January 2025 MA 12 of 2025 was supported by an affidavit by the Applicant which inter- alia states that the Applicant is an inmate of Mt Posee Prison and on or about 6-7 December 2024, during the Mt Posee Prison disturbance, he was subjected to acts of extreme violence, including being shot with live ammunition and rubber bullets while handcuffed, dragged through the mud, and left in a severely wounded state. These acts were perpetrated by masked ‘Defence Forces’ personnel and prison wardens under the control of the 2^nd Respondent, with the tacit or explicit direction of the 1^st Respondent.

3. These actions resulted in severe injuries on him, including open wounds and fractures, ongoing medical complications, and a tangible risk of amputation of his leg, if adequate medical care is not provided immediately. The fear of losing his leg is causing the Applicant immense anxiety and distress.

4. The Applicant further states that he is advised by his Counsel and verily believes the same to be true that the Respondents, being the Government of Seychelles, the Prison Authority, the Defence Forces of Seychelles, the Health Care Agency, and the Attorney General, have the responsibility to uphold and enforce the fundamental rights and freedoms guaranteed under the Constitution, including the rights to dignity, health, and security. He further states that the treatment he endured at the hands of the aforementioned masked Defence Forces personnel and prison wardens constitutes inhumane and degrading treatment in contravention of Articles 16, 18, and 29 of the Constitution and that he further believes that these constitutional protections are designed to shield all citizens of Seychelles, without discrimination as to status of the person, from such cruel or torturous actions.

5. In his affidavit, the Applicant further states that his injuries require urgent and specialized medical interventions, including surgical care, infection management, and close monitoring to prevent further complications. He is currently receiving antibiotic injections to combat leg infection; however, the incomplete disclosure of his treatment plan leaves him uncertain about his prognosis and the adequacy of the care being administered.

6. He further produces a medical report marked F1, dated 13 January 2025 issued by Dr Ikenna Ohiaeri which states that the procedures required for his treatment are not available in the Seychelles. He further complains that the medical disclosure given to him at present is incomplete and produces the report as Exhibit F2. It lacks several matters including X-rays, CT scans, and full details of prescribed medications, clinical notes, diagnostic test results, treatment plan, surgical records of invasive procedures performed (with the surgeon's findings).

7. The Applicant further states that he is to undergo further invasive surgical intervention on Friday, 24 January 2025, and without clear, detailed information about the procedures and potential risks, he cannot meaningfully exercise his right to informed consent. Emails sent by his Counsel were produced as Exhibit F3. He complains he has lost sensation in his leg, muscle and fat and the medical reports do not mention gunshot injuries and X-rays showing the gunshot fragments and the bullet fragments have not been handed over to him. He therefore moves that the reliefs claimed in the motion be granted to him.

Case for the Respondents

13. The 4^th Respondent in reply states that the 4^th Respondent has already disclosed all medical records and reports of the Applicant as prayed for in Paragraph 2 of the Motion. On 14 January 2025, the medical reports detailing the Applicant’s injuries and treatments sustained were collected by Mr Joshua Revera, on behalf of the Applicant’s lawyer Mrs Alexia Amesbury, and on 5 February 2025, his full medical records were collected by his lawyer. Furthermore, the 4^th Respondent has complied with all court orders made in this matter and has not unduly delayed the disclosure of any medical documents.

14. The 4^th Respondent in reply further states that the Applicant has been provided with proper and adequate medical care for the injuries he has sustained and there is at present no life threatening medical situation that the Applicant is facing. The Applicant’s treatment is ongoing and is given according to his medical needs.

15. The reply further states that the option for a free flap, suggested by the plastic surgeon who is part of the team treating the Applicant, is merely one option for medical treatment. The Applicant’s clinical condition is dynamic and subject to change and he is being consulted regarding his treatment options regularly. Furthermore, on 24 January 2025, the Applicant declined to be assessed by a local plastic surgeon showing a deliberate refusal of treatment.

16. In respect of the medical records and reports, the reply states that all details of the Applicant’s medical treatment have been provided including details of x-rays, other scans and lab results as well as information pertaining to the medications prescribed to the Applicant. There are no medical records which indicate the presence of bullet fragments or similar objects in the Applicant’s wounds. There are currently multiple clinical specialists who are involved in the Applicant’s treatment plan, and the 4^th Respondent has not obstructed the Applicant, from getting a second medical opinion in any way provided this is done within the regulatory framework whereby the second medical opinion comes from a doctor licensed in Seychelles.

Submissions

17. The Applicant in the written submissions filed dated 1 April 2025 admits that already this Court has granted the majority of the interim reliefs sought namely:

1. An order for urgency;

2. An order compelling disclosure of all medical reports by the 4^th Respondent;

   1. An order facilitating a second medical opinion which the Applicant states has now been obtained.

18. The Applicant further states these outcomes only materialized as a direct consequence of intervention by this Court, after initial legal demands were ignored. That disclosure was withheld until compelled by Court orders underscores the serious constitutional implications of this matter and the continuing need for judicial oversight.

19. The contention of learned Counsel for the Applicant Mrs Amesbury is that what remains to be decided on this current motion is an order directing or facilitating that the Applicant /Petitioner be granted access to specialized overseas medical treatment, in light of the serious, complex nature of his injuries and the absence of appropriate local medical facilities for addressing embedded live-round fragments and suspected nerve and tissue damage.

20. In regards to this application, this Court proceeds to consider the medical certificate dated 29 March 2025 of Dr Ribail Rabie Reyes an orthopaedic surgeon of Nova Clinic IMAD Complex, Ile Du Port whose report confirms that the Applicant continues to suffer from a severe Grade III open fracture complicated by antibiotic-resistant infection and embedded metallic fragments. The outlined surgical options; muscle flap rotation, osteotomy, and bone lengthening using specialized external fixation devices, require complex and multidisciplinary expertise that is not available in Seychelles.

21. The Applicant also relies on the medical certificate of a plastic surgeon dated 13 January 2025 namely Dr Ikenna Ohiaeri, who confirms that the most appropriate intervention for the Applicant’s condition; namely, a free flap reconstruction for bone cover and dead space management, is not available in Seychelles. The report further states:

"A free flap is probably the most suited to provide bone cover and dead space management, but the facility and multidisciplinary care for this is currently not available in Seychelles."

22. This Court observes that Dr Louange who has filed an affidavit dated 11 February 2025 on behalf of the 4^th Respondent, states at paragraph 6 of his affidavit that the Applicant is being treated properly and adequately by the Health Care Agency and that the Applicant is receiving ongoing medical care, including surgeries and other medical treatment, including psychological support and further states whilst being treated appropriately, he is being informed of his medical treatment and kept updated. Referring to the option for a free flap as suggested by the Applicant’s doctor, he states that it is an option for medical treatment. Dr Louange further refers to the clinical condition of the Applicant as dynamic and subject to change. He specifically states at paragraph 9 that the Applicant has refused to be assessed by a local plastic surgeon on 24 January 2025, indicating a deliberate refusal of treatment. It is the 4^th Respondent’s position in their submissions that the Applicant is refusing to see the plastic surgeon.

23. It is also the contention of the Respondents in their submissions that the Prison Act does not provide for the treatment of prisoners overseas and refers to treatment in the hospital in Seychelles only.

Analysis and Findings

24. At the very outset, this Court is of the view there is an obligation placed on the State in terms of Article 16 read with Article 29 to recognize, respect and value the human dignity in each and every individual by providing adequate medical facilities to all citizens irrespective of their social status. We will now proceed to determine whether this is applicable to citizens who are imprisoned.

Article 16. Right to dignity:

“Every person has a right to be treated with dignity worthy of a human being and not to be subjected to torture, cruel, inhuman or degrading treatment or punishment.”

Article 29. Right to health care

“The State recognises the right of every citizen to protection of health and to the enjoyment of attainable standard of physical and mental health and with a view to ensuring the effective exercise of this right the State undertakes—(a)to take steps to provide for free primary health care in State institutions for all its citizens;(b)to take appropriate measures to prevent, treat and control epidemic, endemic and other diseases;(c)to take steps to reduce infant mortality and promote the healthy development of the child;(d)to promote individual responsibility in health matters;(e)to allow, subject to such supervision and conditions as are necessary in a democratic society, for the establishment of private medical services.”

25. Renaud, B (2018) “Report of the Commission of Inquiry into the circumstances associated with the death of Steve Jeffrey Khan at Seychelles Hospital on Sunday 21st January 2018 while serving a prison sentence”. Concluded on 7 July 2018 and submitted to the President on 20 July 2018:

“It must always be borne in mind that inmates in Prison are the “wards” of the State and the latter is vicariously liable for them and has a duty of care towards them. Failing in that aspect may even lead the State to incur liquidated damages. Above all, the inmates are citizens of Seychelles and are entitled to appropriate health and welfare cares.”

26. While prisoners generally do not have the right to choose a specific medical treatment, international human rights law mandates that State authorities provide the most appropriate treatment based on professional medical standards. Several international bodies address the rights of prisoners to medical treatment. The UN Human Rights Committee (HR Committee) holds that adequate and timely medical care must be provided to all detainees. This stems from the State's duty to ensure the rights enshrined in the International Covenant on Civil and Political Rights (ICCPR), including the right to life (Article 6), the prohibition of torture or cruel, inhuman, or degrading treatment (Article 7), and the right to humane treatment (Article 10). The HR Committee often refers to the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) to emphasize the obligation of states to provide medical care.

27. The American Convention on Human Rights (ACHR) also provides for the right to life (Article 4) and humane treatment for prisoners (Article 5), which has been interpreted to include a duty on states to provide detainees with regular medical care and adequate treatment. The Inter-American Court of Human Rights (IACtHR) has stated that the State is the guarantor of the rights of those in custody and must ensure their health and welfare by providing required medical care.

28. The European Convention on Human Rights (ECHR) does not expressly provide a right to healthcare, but the European Court of Human Rights (ECtHR) has held that Article 2 (right to life) and Article 3 (prohibition of inhuman treatment) imply a duty on the State to provide adequate medical assistance. While prisoners do not have the right to choose a particular treatment under the ECHR, States can transfer prisoners to other facilities to provide necessary treatment.

29. The Basic Principles for the Treatment of Prisoners, adopted by the General Assembly resolution 45/111, outlines several key principles regarding the treatment of prisoners. These principles emphasize treating all prisoners with respect for their inherent dignity and value as human beings, without discrimination based on race, color, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status.

30. According to the guidelines, prisoners should retain the human rights and fundamental freedoms outlined in the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Covenant on Civil and Political Rights, and other United Nations covenants, except for limitations demonstrably necessitated by incarceration.

31. The Office of the High Commissioner for Human Rights (OHCHR) is the primary United Nations entity responsible for promoting and protecting human rights for all people, including the treatment of prisoners. The principles mentioned must be applied impartially.

32. In Estelle v. Gamble, 429.U.S. 97 (1976), the Supreme Court addressed the issue of medical treatment for prisoners, establishing the standard for what constitutes a violation of the Eighth Amendment's prohibition against cruel and unusual punishment. The Court held that deliberate indifference to a prisoner's serious medical needs is a violation of the Eighth Amendment. This indifference can be shown by prison doctors or prison guards, if they intentionally deny or delay access to medical care or interfere with prescribed treatment. However, the ruling does not mean that every claim of inadequate medical treatment constitutes a violation. The court acknowledged that medical malpractice or negligence in diagnosis or treatment does not automatically become a constitutional violation simply because the victim is a prisoner. To state a valid claim, a prisoner must demonstrate deliberate indifference to serious medical needs.

33. In this instant application before this Court, it is clear from all the reports that at present the Applicant who is a prisoner, is receiving the same treatment that all other persons would receive. He has not been denied access to treatment in the main government hospital i. e the 4^th Respondent the Health Care Agency, he has been examined by multiple clinical specialist attached to the hospital in respect of each condition and even been granted the privilege by Court of obtaining 2^nd opinions from doctors of his choice. All his medical reports concerning investigation and treatment X rays and scans have been handed over to facilitate such 2^nd opinion. Therefore, at this stage he cannot complain of any discrimination or contravention of any provision of the Constitution.

34. This Court will next proceed to deal with the medical reports before court. It is common ground that the priority at present, is the treatment of the infection in the Applicant that has to be given priority before any plastic surgery is done on the Applicant. In this respect we are satisfied on the affidavit of Dr Louange that the Applicant is receiving timely and specialised treatment in respect of his infection and there is no refusal to provide him with the required necessary treatment and there is no withholding of treatment for administrative reasons or otherwise which would be a contravention of Article 3 of the European Convention.

35. In this respect this Court will seek reliance on the judgment in the case of Laurence v Attorney General & Anor (CS 90 of 2019) [2024] SCSC 120 (26 July 2024) where at paragraphs 81 and 82 court refers to the evidence of two specialist doctors namely Dr Rose and Dr Hoggar attached to the Health Care Agency who had testified that international protocols are observed in the treatment of infections by the Seychelles Health Care Agency and that even treatment elsewhere would have given the same antibiotics and they too would have followed the same procedure done by the Seychelles team. This Court is therefore satisfied on the affidavits of the 4^th Respondent that at present the Applicant is in the correct institution and undergoing treatment which would be given to any other citizen in a similar position by the 4^th Respondent which observes international protocols in the treatment of infections.

36. Learned Counsel for the Applicant Mrs Amesbury, in her application moves that arrangements be co-ordinated between the Prison Authorities and the Ministry of Health and relevant medical institutions for transfer and treatment abroad. She also moves that the State bear or facilitate the associated costs in accordance with its obligations under the Constitution.

37. This Court observes that in accordance with the prevailing law, the provisions of the Overseas Treatment Act (Act 5 of 2018) (the Act) have to be followed if the 4^th Respondent is to meet the expenses involved in overseas treatment which is available (only if the local treatment for the condition is not available) as per Section 8 of the Overseas Treatment Act 2018 which reads as follows:

8.(1) A person shall be eligible to have access to overseas treatment and diagnosis services on fulfilling the following—

(a) the person shall be referred to a government health care facility and shall be under the care of a local specialist employed in the health service of the government although for a brief period;

[24th July 2018] Supplement to Official Gazette 103

(b) the person shall have received all possible treatment, undergone all possible investigations locally and exhausted all options except when it is not medically judicious to do so;

(c) the specialist who was taking care of the person has filled in and forwarded a referral form for consideration by the Overseas Diagnosis and Treatment Board;

(d) the specialist referred in paragraph (c) has furnished a detailed medical summary by attaching it to the referral form;

(e) the specialist in charge of the referring specialty has endorsed the referral form;

(f) the referral form and medical summary have been reviewed by the Board; and

(g) the Board has taken a decision to send the person overseas for diagnosis or treatment.

(2) For the purpose of Section 8(1)(c), specialist shall include a specialist not employed in the health service of the government.

38. Therefore, it would be essential for the specialist treating him to make findings as set out above for a person to be eligible for overseas treatment. The Applicant’s refusal to be examined by the plastic surgeon attached to the 4^th Respondent agency, does not help his case especially considering the statement made by Dr Louange that overseas treatment as recommended by Dr Ikenna Ohiaeri is only one of the treatment options available which indicates other treatment options are available locally. Therefore, it is of vital importance that the Applicant subjects himself to examination by the plastic surgeon on a regular basis. He cannot refuse and claim he wishes to go abroad for treatment. It is to be observed that all citizens seeking overseas treatment are subject to the provisions of the Overseas Treatment Act 2018.

39. According to the Act for a person to be eligible for overseas treatment, they must first be referred to a government healthcare facility and placed under the care of a local specialist employed in the public health service. This ensures that the State maintains oversight over the initial stage of medical evaluation and treatment before a referral for overseas care is considered. Further, the Act requires that all possible local treatment options be exhausted. This means that a person must have received every possible form of care available in Seychelles, undergone all relevant investigations, and only be referred overseas if it is no longer medically reasonable to continue treatment locally. This sets a high threshold: overseas treatment must clearly be the last and only viable option.

40. Learned Counsel for the Applicant contends that refusal by the Applicant to be examined by the plastic surgeon was under the World Medical Association's Declaration of Helsinki because he was denied ‘informed consent’ as he had not received any of his medical scans and X’rays. This is not acceptable, as the Helsinki Declaration sets out ethical principles pertaining to medical research involving human participants. The Applicant in this case is not been subject to medical research and hence the Declaration does not apply.

41. Learned Counsel for the Respondents Mr Adam Afif contends that the Applicant is not permitted to travel outside the jurisdiction for medical attention under the Prisons Act as to do so would mean he is no longer in the lawful custody of the Seychelles Prison Service. It could be argued that the provisions of the Overseas Treatment Act 2018 apply universally to all citizens, and since prisoners are not expressly excluded, they too are entitled to request overseas medical treatment under the same framework as an obligation exists on the State to recognize respect and value the human dignity in each and every citizen by providing adequate medical facilities to all citizens, irrespective of their social status and therefore the obligation extends to prisoners as well. Moreover, in Ramkalawan v Electoral Commission & Ors (CP1of 2016) [2016] SCCC 11, the Constitutional Court recorded the case of Mr. Tony Dubignon, a former inmate who was ultimately released from prison under a medical licence to travel overseas for urgent treatment in Chennai due to a critical heart condition:

“Mr. Tony Dubignon had applied for 4 presidential pardons, none of which had been successful. He was ultimately released from Prison on a licence to receive treatment in Chennai because his condition reached a critical state.” (para 245)

42. This acknowledgment by the Constitutional Court reinforces the proposition that, in exceptional medical circumstances, Seychelles authorities have facilitated overseas medical treatment for prisoners when justified by urgent medical needs, even in the absence of express statutory authority under the Prisons Act. Importantly, this precedent arose well before the enactment of the Overseas Treatment Act 2018, further underscoring the availability of such administrative measures in critical cases despite the absence at the time of a formal legislative framework. However, there is no lawful authority under which this Court can order the Applicant to be released from prison custody to go overseas for medical treatment. Further there are no existing prison programs that have been brought to the notice of this Court where a prisoner could be transferred to another prison in a different country for medical treatment purposes.

43. It is our considered view that according to the prevailing law, it is firstly the Overseas Diagnostic and Treatment Board (established by Section 8 (1) (c) of the Overseas Treatment Act 2018) and not the court that is authorised in handling applications for overseas medical treatment by persons seeking same which in our view could include prisoners in exceptional medical circumstances. There is a duty cast on the Board to verify that all the statutory conditions under Section 8 have been met and forward a report of its findings to the Applicant. Any refusal by the authorities must be objectively justified, well-documented, and procedurally fair. Arbitrary or unexplained denials risk violating the prisoners’ constitutional and human rights, especially if the denial leads to undue suffering or deterioration of health. In Wenner v. Germany, 2016, § 57), the European Court of Human Rights addressed the necessity of specialized medical expertise in the context of prisoner healthcare under Article 3 of the Convention, which prohibits inhuman or degrading treatment. The Court emphasized that where a prisoner suffers from a serious illness, an adequate assessment by a specialist in that specific condition is essential to ensuring appropriate treatment, particularly where there are diverging medical opinions. Therefore, where a prisoner cannot be transferred overseas for security reasons, the State has a corresponding obligation to facilitate access to equivalent specialist treatment locally, effectively bringing the overseas treatment to the prisoner within Seychelles.

44. For the reasons contained herein, this Court declines and dismisses prayer 1(c) seeking an order of extreme urgency from this Court for the Applicant to be treated overseas. All parties to bear their own costs.

Signed, dated and delivered at Ile du Port on 5 June 2025.

Burhan J     

Presiding Judge                           

Vidot J   

Judge                                                         

Esparon J

Judge