European Court of Human Rights

                                                                                                      22 July 2010

CHAMBER
SECOND SECTION

Application no. 34361/10
by Giorgi NIZHARADZE
against Georgia
lodged on 16 June 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Giorgi Nizharadze, is a Georgian national who was born in 1973 and lives in Tbilisi. He is represented before the Court by Ms M. Donadze, a lawyer practising in Tbilisi.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 20 March 2008 the Tbilisi City Court convicted the applicant of illicit consumption of drugs, the offence proscribed by Article 273 of the Criminal Code. Having sentenced him to 8 years and 6 months in prison, the court, however, suspended the term, in view of the applicant's grave state of health, pending his full or partial recovery; he was immediately released from the courtroom.

On the following day, 21 March 2008, the applicant was arrested again on suspicion of reoffending under Article 273 of the CC and of conspiracy to commit a petty larceny. The Tbilisi City Court convicted him of those offences on 27 August 2008, sentencing him to 6 years in prison. That period started to run from the date of his second arrest.

On 27 August 2009 the applicant requested the Tbilisi City Court to suspend the outstanding part of his sentence in view of his state of health. He referred to his medical file which confirmed that he was suffering from viral hepatitis C. That disease being at an advanced stage, it had already caused such pathologies in the applicant as cirrhosis of the liver (in the final stage – Child's-Pugh-Turcotte Score C) and ascites (accumulation of fluids in the peritoneal cavity). The medical file also disclosed that the applicant had certain brain disorders of a serious nature.

The request for the suspension of the sentence was dismissed on 21 October 2009, the City Court reasoning that, whilst the applicant was a gravely ill patient, he had already been provided with adequate medical care in the Medical Establishment of the Ministry of Prisons (“the prison hospital”). The court also reproached the applicant for having reoffended during the conditional release. The decision of 21 October 2009 was upheld by the Tbilisi Court of Appeal on 13 January 2010.

The case file contains two reports on the applicant's medical check-ups conducted by experts at the National Forensic Bureau between 27 December 2007 and 12 February 2008 and 4 June and 6 August 2009. These reports confirm the applicant's above-mentioned liver and brain disorders, qualifying him as a gravely ill patient who required a treatment on an in-patient basis.

According to his medical file, the applicant is also suffering from oesophageal varices (extreme dilation of sub-mucosal veins in the lower oesophagus). On 30 January 2010 this pathology caused severe internal haemorrhage in the applicant; however, he was transferred as an emergency to and then successfully treated in the intensive care unit of the prison hospital.

COMPLAINTS

The applicant complained under Articles 3 and 13 of the Convention about a lack of medical care in prison.

Relying on Articles 6 and 14 of the Convention, he complains about the domestic courts' refusal to suspend his prison sentence.

QUESTIONS TO THE PARTIES

1.  Have the responsible State agencies taken all necessary measures to safeguard the applicant's well-being and health in prison, in accordance with their obligations under Article 3 of the Convention?

2.  Can the continued detention of the applicant in Georgian prisons be said to be justified for the purposes of Article 3 of the Convention (see Mouisel v. France, no. 67263/01, §§ 36-48, ECHR 2002‑IX)?

3. Does the applicant have at his disposal an effective domestic remedy for his complaint under Article 3 of the Convention, as required by Article 13 of the Convention?