European Court of Human Rights

SECOND SECTION

FINAL DECISION

Application no. 26920/07
by Nikoloz KHMIADASHVILI
against Georgia

The European Court of Human Rights (Second Section), sitting on 27 January 2009 as a Chamber composed of:

Françoise Tulkens, President,
Ireneu Cabral Barreto,
Vladimiro Zagrebelsky,
Danutė Jočienė,
Dragoljub Popović,
András Sajó,
Nona Tsotsoria, judges,
and Sally Dollé, Section Registrar,

Having regard to the above application lodged on 28 June 2007,

Having regard to the parties’ observations,

Having regard to the formal declarations accepting a friendly settlement of the case,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Nikoloz Khmiadashvili, is a Georgian national who was born in 1971. He was represented before the Court by Mr Ioseb Sosiashvili, a lawyer practising in Gori. The Georgian Government (“the Government”) were successively represented by their Agents, Messrs Davit Tomadze and Levan Meskhoradze of the Ministry of Justice.

The applicant was arrested and detained in December 2006 for the unlawful possession of drugs. He was prosecuted and convicted. After a plea bargain reached with the prosecution, endorsed by the Tbilisi Appellate Court, the applicant was released from prison with a suspended five year term of imprisonment.

The applicant had spent the whole period of his detention, from 22 December 2006 until 10 January 2008, in the Tbilisi No. 5 Prison. There he claimed that his state of health had seriously deteriorated due to his susceptibility to breast tumours. Indeed, the prison hospital diagnosed that he had gynaecomastia. On 7 June 2007 he had surgery on his right breast, and part of a mammary gland was amputated. The applicant objected to his return thereafter to the normal prison and, in that context, complained to the Court under Article 3 of the Convention. He also complained about aspects of his detention and the criminal proceedings under Articles 5 and 6 of the Convention.

THE LAW

On 10 November 2008 the Court received the following declaration from the Government Agent, Mr L. Meskhoradze:

“I declare that the Government of Georgia agree to pay ex gratia 7,000 (seven thousand) euros to Mr Nikoloz Khmiadashvili with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into the national currency at the rate applicable on the date of payment, and free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment will constitute the final resolution of the case.”

On 11 December 2008 the Court received the following declaration signed by the applicant and his representative, Mr I. Sosiashvili:

“I, Ioseb Sosiashvili, Mr Nikoloz Khmiadashvili’s representative, note that the Government of Georgia are prepared to pay ex gratia the sum of 7,000 (seven thousand) euros to Mr Nikoloz Khmiadashvili with a view to securing a friendly settlement of the above-mentioned case pending before the European Court of Human Rights.

This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Georgian Laris at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. From the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

I accept the proposal and waive any further claims against Georgia in respect of the facts giving rise to this application. I declare that this constitutes a final resolution of the case.”

The Court takes note of the friendly settlement reached between the parties. It is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no public policy reasons to justify a continued examination of the application (Article 37 § 1 in fine of the Convention). In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court unanimously

Decides to strike the application out of its list of cases.

Sally Dollé Françoise Tulkens
Registrar President