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GOGINASHVILI v. GEORGIA - 47729/08 [2011] ECHR 1510 (4 October 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1510.html
Cite as:
[2011] ECHR 1510
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THIRD
SECTION
CASE OF
GOGINASHVILI v. GEORGIA
(Application
no. 47729/08)
JUDGMENT
STRASBOURG
4 October
2011
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It
may be subject to editorial revision.
In the case of Goginashvili v. Georgia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Egbert
Myjer,
Ján
Šikuta,
Ineta
Ziemele,
Nona
Tsotsoria,
Kristina
Pardalos,
judges,
and Marialena Tsirli,
Deputy Section
Registrar,
Having
deliberated in private on 13 September 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 47729/08)
against Georgia lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental
Freedoms (“the Convention”) by a Georgian
national, Mr Vasili Goginashvili (“the applicant”), on
9 August 2008.
The
applicant was represented by Mr Zaza Khatiashvili and Ms Baia
Guliashvili, lawyers practising in Tbilisi. The Georgian Government
(“the Government”) were represented by their Agent, Mr
Levan Meskhoradze of the Ministry of Justice.
On
30 August 2010 the Court decided to communicate
the complaint under Article 3 of the Convention concerning lack of
adequate medical care in prison to the Government (Rule 54 § 2(b)
of the Rules of Court). It was also decided to rule on the
admissibility and merits of the application at the same time (Article
29 § 1).
The
Government and the applicants each submitted, on 22 December
2010 and 25 February 2011 respectively, observations on the
admissibility and merits of the communicated complaint (Rule 54A of
the Rules of Court). The Government submitted additional comments on
the applicant’s submissions on 6 May 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1960 and lives in Tbilisi.
A. The criminal proceedings against the applicant
On
21 May 2006 the applicant, a former police officer, was arrested on
the Georgian-Turkish border on suspicion of smuggling drugs into
Georgia. According to the record of the applicant’s body search
carried out on the spot, 650 Subutex pills were found in a pocket of
his jacket. He signed the record, noting in his own handwriting that
he did not object to being searched in the absence of a lawyer. The
applicant exercised his right to remain silent at that time, as well
as during an examination he underwent as a suspect the following day.
On
23 May 2006 the applicant was charged with trafficking substances
analogous to, or precursors of, narcotic drugs (Articles 260 and
262 of the Criminal Code). Questioned on the same day in the presence
of his advocate, the applicant agreed to testify. He confessed to the
crime, naming his accomplices, including a high-level official of the
anti-drug department of the Georgian Ministry of the Interior, who
had allegedly been covering up their illicit dealings. Subsequently,
the investigation authority arrested the named persons, some of whom
confessed to the drug trafficking. Other relevant evidence, including
transcripts of taped telephone conversations between some of the
suspects, was also added to the criminal file.
On
11 January 2007 the applicant and his accomplices were convicted of
the above-mentioned drug offence. During the trial, the applicant
retracted his previous self-incriminating statements and claimed
innocence, asserting that the police had planted the Subutex in his
pocket and that he had never conspired to engage in any illicit drug
dealing. The court took note of that retraction and nevertheless
observed that the applicant’s new version of events
contradicted other findings in the case. Those findings were based,
inter alia, on full or partial confessions explicitly made by
some of his accomplices during the trial, in the presence of their
advocates. In addition, the court analysed the transcripts of the
taped telephone conversations, arriving at the conclusion that,
despite their coded language, they confirmed the existence of a
conspiracy between the applicant and other defendants. The conviction
was also confirmed by the statements of certain other witnesses, as
well as by the results of searches of the defendants’ homes.
On
9 February 2007 the applicant appealed against the conviction,
calling into question the factual findings of the lower court. He
also complained that the court had confirmed his conviction only on
the basis of the transcripts of the taped conversations, without
listening to the actual recordings.
On
12 July 2007 the Tbilisi Court of Appeal, after hearing the applicant
and other defendants, some of whom maintained their confessions in
exchange for a plea bargain with the prosecution, and having reviewed
other case materials, upheld the applicant’s conviction. As
regards his complaint about the transcripts of the taped
conversations, the appellate court dismissed it, stating that the
applicant should have raised it at the first-instance hearing.
The
applicant’s appeal on point of law of 10 September 2007, in
which he reiterated the arguments that he had made before the
appellate court, was dismissed as inadmissible by the Supreme Court
of Georgia on 26 February 2008. The applicant was thus sentenced to
twenty-one years in prison, which started to run from the day of his
arrest on 21 May 2006. He was placed in Rustavi no. 6 prison
(“Rustavi Prison”).
B. The applicant’s state of health and the
proceedings before the Court
According
to the applicant’s medical file, he is suffering from
glomerulonephritis, nephrosclerosis, chronic renal failure, viral
hepatitis C (HCV), chronic bronchitis and arterial
hypertension. His renal disorders developed gradually, as a result of
a traffic accident in 1998, which caused septicaemia (blood
poisoning). Before the applicant was detained he had already been
diagnosed with those renal disorders at advanced stages and,
according to his medical file, underwent several courses of
symptomatic urological treatment.
The
prison authority took charge of the applicant’s health problems
for the first time on 6 July 2006. Notably, in order to have his
state of health assessed, he was taken on that day to the Central
Clinic of Tbilisi State Medical University for blood biochemical and
urine analysis.
On
the basis of the results of those tests, the prison authority then
transferred the applicant, on 8 July 2006, from Rustavi Prison to the
Medical Establishment of the Ministry of Justice (“the prison
hospital”), where he received comprehensive medical treatment
over the following four months, until 4 November 2006. This included
various laboratory tests and examinations (blood and urine tests,
electrocardiography, chest X-ray), repeated consultations with
medical specialists, including a nephrologist who had been summoned
by the prison authority from a civil hospital (this medical
specialist examined the applicant on 18 July and 7 and
18 September 2006), and the prescription of appropriate drugs
(antibiotics and antihypertensive and anti-anaemic agents) for
nephrological/urological problems, HCV and arterial tension.
In
addition, the prison authority, on the advice of a medical panel
which had examined the applicant on 24 July 2006, repeatedly
approached the medical authorities of various civilian hospitals
between August and September 2006, seeking special tests, such as for
creatinine and urea levels in the applicant’s blood and an
ultrasound scan of his abdominal cavity.
On
4 November 2006 the applicant’s doctor at the prison hospital
opined that when his current course of treatment was complete the
applicant could be discharged back to Rustavi Prison, where he was to
continue receiving medication.
Subsequently,
the applicant had a medical check-up between 13 February and 15
March 2007 and another between 18 April and 18 May 2007, at the
National Forensic Bureau (“the NFB”). Reports on both
examinations confirmed that the applicant’s condition was
stable and that he required long-term out-patient treatment under the
supervision of a nephrologist, cardiologist and hepatologist.
On
11 August 2007 the applicant was again admitted to the prison
hospital, where he remained until 18 August 2007. The in-patient
treatment included blood and urine tests, chest X-ray, abdominal
ultrasound scan and consultations with a cardiologist. When he was
discharged the doctor in charge of the applicant recommended that the
patient continue treatment with the relevant drugs on an out-patient
basis under the supervision of medical specialists.
On
29 January 2008 the applicant was placed on an emergency basis in the
intensive care unit of the prison hospital, with a diagnosis of
possible food poisoning; he was also suffering from anuria
(non-passage of urine), his condition being described as serious from
the nephrological/urological point of view (“the relapse of 29
January 2008”). The applicant’s medical file confirms
that comprehensive medical treatment was administered to him there,
as a result of which his condition improved (the symptoms of anuria
disappeared), and on 5 February 2008 he was transferred from
intensive care to the ordinary therapeutic department of the prison
hospital.
As
disclosed by his medical file, the applicant underwent again, during
his second stay in the prison hospital, the relevant medical tests
and was examined by various medical specialists, including a
nephrologist summoned by the prison authority from a civilian urology
hospital (this examination took place on 4 February 2008). The
nephrologist prescribed the applicant treatment with twenty different
types of antibiotic, hypolipidemic and antihypertensive drugs; the
prison hospital immediately provided the applicant with this
medication in the necessary dosages.
On
3 April 2008, after several medical specialists, including a
nephrologist from a civilian hospital whose assistance had been
requested again by the prison authority, had confirmed that the
applicant’s condition had stabilised, he was discharged back to
Rustavi Prison, where he continued to receive the prescribed
medication on an out-patient basis.
At
the applicant’s request, experts from the National Forensic
Bureau (“the NFB”) conducted additional medical
examinations between 15 February and 7 April 2008. Their
conclusions (“the medical conclusions of 15 February to 7 April
2008”) disclosed that the applicant’s kidney conditions,
which could be qualified as progressive serious disorders, had
slightly progressed in comparison to the previous medical
examinations; the recommendation was that the applicant should
continue treatment under the permanent supervision of a nephrologist.
On
8 June 2008 the Rustavi prison authorities informed the applicant’s
advocate that its medical staff did not include a nephrologist.
However, the prison undertook that in the event of deterioration of
the applicant’s condition he would immediately be transferred
to an appropriate medical establishment.
On
22 October 2008 the Court, allowing the applicant’s request,
instructed the Government under Rule 39 of the Rules of Court to
place the applicant in a medical establishment capable of providing
adequate treatment for his various health problems; the Government
were further invited to provide the Court with information regarding
the capability of the prison hospital in that regard.
On
19 November 2008 the Government, as well as giving an account of the
treatment administered to the applicant prior to the relapse of
29 January 2008, also informed the Court that, after the
indication of the medical interim measure under Rule 39 of the Rules
of Court, the applicant was transferred to the prison hospital on 30
October 2008. As disclosed by the relevant excerpts from his medical
file, he received a comprehensive medical examination there, which
included numerous laboratory tests (blood, urine, ultrasound-based
diagnostic tests of stomach, kidney and heart, chest X-ray and
others), repeated consultations with various specialists (including a
nephrologist from a civilian hospital who examined the applicant on
20 November 2008) who prescribed him ten types of medication for his
renal, cardiac and hepatic conditions.
On
23 June 2009 the Government updated the Court on the treatment
provided to the applicant in the prison hospital. The medical file
confirmed once again that the applicant had been regularly examined
by various specialists, including different nephrologists from
civilian hospitals, who had examined the applicant on 12 January, 16
March and 5 June 2009; a cardiologist and infection specialist, who
prescribed specific treatment for him; the implementation of that
treatment was then supervised on a daily basis by a general
practitioner at the prison hospital (“the GP”). According
to the GP’s medical log, which closely monitored the
fluctuations in applicant’s state of health from the date of
his admission to the prison hospital on 30 October until early July
2009, his condition remained stable overall, except for recurrent
headache and general weakness. The applicant was treated with
thirty-six types of prescribed anti-hypertension, cardiological,
hepatoprotective, anti inflammatory, urological, nephrological,
antioxidant, beta-adrenoreceptor and sedative medication, as well as
with various vitamins. In addition, as disclosed by the medical file,
on 8 June 2009 the applicant gave his consent in writing to start
receiving anti-HCV treatment with the powerful anti-viral agents
Ribovirin and Interferon.
In
the light of the above-mentioned information, the Government
submitted that they had taken all necessary measures for the
protection of the applicant’s health in prison, and asked the
Court to lift the interim measure previously indicated on 22 October
2008.
By
letters dated 4 August 2009 and 16 April 2010, the applicant objected
before the Court to the consultations provided by a nephrologist,
stating that they were too infrequent. Notably, referring to the
relevant records in his medical file, he complained that between
November 2008 and February 2010, he had been examined by that
specialist on only seven occasions, with the intervals varying from
two to three months. Acknowledging that the prison hospital had
started administering anti HCV and other types of drugs, the
applicant nevertheless claimed that no adequate treatment had been
provided for his kidney problems. Furthermore, certain anti-HCV
drugs, such as Interferon, had, he stated, had a deleterious effect
on his kidneys. Relying on these arguments, the applicant claimed
that only a civilian hospital, where he could benefit, according to
the medical conclusions of 15 February to 7 April 2008, from the
permanent supervision of a nephrologist, could provide adequate
treatment for him.
In
support of the above allegations the applicant submitted more recent
excerpts from his medical file, giving an account of the treatment
provided for him in the prison hospital from December 2009 to March
2010. Those documents disclosed that his overall condition had
remained stable during that period. According to the GP’s
opinion dated 23 February 2010, given the chronic nature of the
applicant’s kidney problems and that his condition was not
acute, nor was he experiencing deterioration, there was no need for
specific treatment such as haemodialysis at a specialist nephrology
hospital. As to his HCV, despite the provided anti-viral medication,
there continued to be a virological response to the blood tests
conducted (SVR).
On
30 August 2010 the Court, in the light of the additional information
provided by the parties, decided to lift the interim measure
previously indicated on 22 October 2008.
Despite
the fact that the interim measure was lifted, of which both parties
were duly informed by the Court on 1 September 2010, the relevant
authorities did not remove the applicant from the prison hospital.
Thus, at the time of the submission of the Government’s
comments of 6 May 2011 (see paragraph 4 above), the applicant was
still undergoing, and had been since 30 October 2008, treatment in
that hospital.
II. RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS
A. The Code of Criminal Procedure (“the CCP”), as it
stood at the material time
Pursuant
to Article 607 § 1 (a) of the CCP, a court could suspend a
prison sentence in view of a convict’s grave state of health,
if his or her illness impeded the proper execution of the sentence,
pending the convict’s full or partial recovery.
Article
608 of the CCP provided for a possibility of early release by a court
on account of a convict’s grave or incurable illness, which
should be established by a qualified medical opinion.
B. The General Administrative Code and the Civil Code,
as they stood at the material time
Article
207 of the General Administrative Code stated that an individual
could sue a State agency for damage under the rules on liability for
civil wrongs contained in the Civil Code. Article 413 of the Civil
Code entitled an individual to request compensation for non-pecuniary
damage caused in respect of damage to his or her health.
C. The Code of Administrative Procedure, as it stood at
the material time
Pursuant
to Articles 24 and 33(1) of the Code of Administrative Procedure, an
individual was entitled to request through a court that a State
agency be ordered to undertake a certain action or, to the contrary,
to refrain from taking an action, whether by adopting a written
administrative act or without it, if such a request was aimed at the
protection of the individual’s rights or legitimate interests.
D. The Prison Code, as it stands since its entry into
force on 1 October 2010
On
1 October 2010 the Prison Code entered into force, abolishing the
previous Imprisonment Act of 22 July 1999 (for the relevant
provisions of that Act, see Aliev v. Georgia, no. 522/04,
§ 33, 13 January 2009) and introducing, inter alia, a new
and detailed procedure for filing by detainees, both accused and
convicted persons, of complaints to and against the prison authority.
Article
24 of this Code, which provided for the right to health care in
prison, read as follows:
Article 24 - Right to Health Care
“1. A [detained] accused/convict shall have the
right to use all the necessary medical facilities. All types of
medical treatment which are permitted in the given establishment
should be made accessible to [a detainee]. If so requested, [a
detainee] should be entitled to obtain at his or her own expense more
expensive or similar medication or other type of medical treatment
than those procured by the relevant establishment. In the event of a
reasoned request, and with the permission of the Head of the [Prison]
Department, [a detainee] may invite a civilian doctor at his or her
own expense.
2. Immediately upon entering an establishment, a
[detainee] must undergo a medical examination. The relevant record
shall be drawn up and added to the [detainee’s] personal
medical file.”
By
virtue of Article 96, a detainee, acting either in person or through
his lawyer or a representative in law, may submit a written complaint
against any action or omission by a staff member of the relevant
establishment, a legal decision or any other matter which appears to
constitute a breach of a right guaranteed to him or her by the Prison
Code. Article 97 specified that, upon being placed in the
establishment, a detainee must immediately be informed by the
authorities of his or her right to submit such a complaint.
Pursuant
to Articles 98 and 99, a complaint should initially be addressed to
the hierarchical superior of the prison officer or agency who has
allegedly breached the detainee’s right in question or to the
Special Preventative Group (this group forms, according to Article 32
of the Prison Code, part of the Georgian Public Defender’s
Office and was established in order to monitor allegations of
ill-treatment in prison). In order to guarantee that a complaint is
drafted in a proper manner, the detainee may solicit the services of
a lawyer, including a public lawyer financed by the State. A detainee
who does not have a sufficient understanding of the Georgian language
shall be assigned an interpreter free of charge.
Article
102 states that a detainee’s complaint must be delivered to the
addressee within forty-eight hours.
Article
103 further states that if an ordinary complaint is addressed to the
governor of an establishment, he or she shall examine and respond to
it within five days, which period may be extended, in exceptional
circumstances, up to one month. If a complaint is addressed to the
Head of the Prison Department, that authority has ten days to examine
it, which period may also be extended, as an exception, up to one
month. In any event, the detainee must be duly warned of any
extension of the ordinary time-limit.
Pursuant
to Article 105, a complaint raising allegations of torture, inhuman
or degrading treatment is considered to be an extraordinary complaint
which should be examined by the relevant authority “immediately”.
In addition to examining it, the governor of the establishment in
question, as well as the Special Preventative Group, must be informed
of that complaint within twenty-four hours after it has been
submitted.
Article
106 requires that the relevant authority’s response to a
detainee’s complaint, whether positive or negative, must be
duly reasoned; every specific issue raised by the detainee must be
fully addressed. If the detainee is not satisfied with that response,
he or she may, under Article 107, contest it before a court,
initiating the relevant administrative legal proceedings.
E. Report to the Georgian Government on the visit to
Georgia carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 5
to 15 February 2010 (CPT/Inf (2010) 27)
The
excerpts from the above-mentioned Report, describing the capacity of
the new prison hospital, read as follows:
“99. The Medical establishment
for prisoners in Tbilisi (Gldani), located
within the perimeter of the Gldani penitentiary complex, represents a
great improvement on the Central Prison Hospital visited by the CPT
in 2001 and 2004. The delegation gained a globally positive
impression of this new facility, inaugurated at the end of 2008 but
in fact functioning fully only for a few months. With an official
capacity of 258 beds, the establishment was accommodating 231 sick
prisoners at the time of the visit. All the patients were men.
There were five wards: surgery, psychiatry, infectious
diseases, internal medicine and intensive care/reanimation. Further,
there was an admissions unit, an X-ray unit, a dental office, a
laboratory, rooms for endoscopy and physiotherapy, and a pharmacy.
100. The
diagnostic equipment was modern and functional, and the establishment
offered an adequate range of hospital treatments for prisoners. It
was also possible to transfer sick prisoners to other hospital
facilities for diagnostic treatments which were not available at the
Medical establishment (an average of 5 transfers per week).
101.
Clinical staff were sufficient in numbers (a total of 129 doctors and
nurses) and appropriately trained. Further, a number of outside
medical consultants (neuropsychiatrist, neurosurgeon, etc.) held
periodic surgeries. ...
103. As
regards material conditions in the patients’ rooms, there was
adequate access to natural light, artificial lighting and
ventilation, and the rooms were in a good state of repair and
cleanliness. That said, the rooms were rather cramped (e.g. six
prisoners in a room measuring some 20 m², including a sanitary
annexe).”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained that the respondent State
had failed to protect his health and well-being in prison, contrary
to its obligations under Article 3 of the Convention. This
provision reads as follows:
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
The
Government submitted that the complaint under Article 3 of
the Convention was premature, as the applicant had not sought
monetary compensation for the alleged lack of adequate medical
treatment in prison. Referring to a number of court decisions in
unrelated but relevant civil cases, where similar claims for
compensation were allowed by domestic courts, the Government argued
that the applicant should have sued the relevant State authority and
requested compensation for non-pecuniary damage under Article 207 of
the General Administrative Code and Article 413 of the Civil
Code. Alternatively, he could have requested a domestic court, under
Article 24 and 33(1) of the Code of Administrative Procedure, to
order the relevant authorities to take additional measures for the
protection of his health in prison. Since neither of those judicial
remedies were resorted to by the applicant, the Government stated
that the complaint under Article 3 of the Convention should be
rejected under Article 35 §§ 1 and 4 for
non-exhaustion of domestic remedies.
The
applicant did not comment on this particular objection.
2. The Court’s assessment
The
Court reiterates that Article 35 § 1 of the
Convention requires those seeking to bring their case against a State
to use first those remedies provided by the national legal system,
including available and effective appeals. Complaints intended to be
made subsequently before the Court should have been made to the
appropriate domestic body, at least in substance and in compliance
with the formal requirements laid down in domestic law. Article 35 §
1 further requires that any procedural means that might prevent a
breach of the Convention should have been used (see Cardot v.
France, 19 March 1991, § 34, Series A no. 200). In
such situations, the Court is called on to examine whether, in all
the circumstances of a case, the applicants have done everything that
could reasonably be expected of them to exhaust domestic remedies
(see Baumann v. France, no. 33592/96, § 40, 22 May
2001).
The
Court also considers that an important question in assessing the
effectiveness of a domestic remedy for a complaint under
Articles 2 and 3 of the Convention concerning lack of
sufficient care for an applicant suffering from a serious illness in
prison is whether that remedy can bring direct and timely relief.
Such a remedy can, in principle, be both preventive and compensatory
in nature. However, where the applicant has already resorted to
either of the available remedies, considering it to be the most
appropriate course of action in his or her particular situation, the
applicant should not then be reproached for not having pursued an
alternative remedial course of action (see, for comparison, Melnik
v. Ukraine, no. 72286/01, § 68 and 70, 28 March
2006).
It
is in the light of these principles, and having regard to the
relevant circumstances of the present case, the Court will now pass
to the examination of the appropriateness and effectiveness of the
two judicial remedies suggested by the Government.
(a) Ability to sue the prison authority
under the General Administrative Code and the Civil Code
The
circumstances of the present case clearly show that the prison
authority was well aware of the applicant’s medical condition
and of his persistent complaints of lack of adequate treatment (see
Melnik, cited above, § 70; Sławomir Musiał
v. Poland, no. 28300/06, § 74, ECHR 2009 ...
(extracts); and Hummatov v. Azerbaijan, nos. 9852/03 and
13413/04, § 92, 29 November 2007). Furthermore, by
initiating proceedings aimed at the suspension of his prison sentence
on health grounds, the applicant clearly also brought his medical
grievances before the post-sentencing judges (see Dybeku v.
Albania, no. 41153/06, § 28, 18 December 2007). In other
words, the applicant had placed both the prison and judicial
authorities sufficiently on alert with respect to his medical
condition, demanding, at the moment when medical intervention was
capable of stopping further evolution of the disease, preventative
and thus more valuable remedial action aimed at a direct alleviation
of the sufferings caused by his serious renal dysfunction.
In
such circumstances, the Court considers that it would be
inappropriate from the point of view of Article 35 § 1 of the
Convention to reproach the applicant for not requesting, in addition
to the above mentioned preventative action, monetary
compensation under Article 207 of the General Administrative
Code and Article 413 of the Civil Code.
(b) Ability to secure a court injunction
under the Code of Administrative Procedure
As
regards the second judicial remedy suggested by the Government –
the possibility of obtaining a court injunction over the prison
authority under Articles 24 and 33(1) of the Code of Administrative
Procedure (“the CAP”) – admittedly it could
fit more into the context of the above mentioned preventative
course of action, which was rightly chosen by the applicant in the
present case (see paragraph 51 above). However, for those general
provisions of the CAP to operate effectively in cases concerning the
absence of adequate medical care in Georgian prisons, the Court
considers that they should inevitably be underpinned by a set of
relevant prison rules which specifically provide, on the one hand,
for a detainee’s right to health care in prison and, on the
other, clarify how exactly and within what time-limits the prison and
judicial authorities must respond to such medical claims. The
Government, however, did not refer in their submissions to any
specific prison rules which could be read in conjunction with the
general provisions of the CAP.
Nevertheless,
the Court reiterates that, at the time of the introduction of the
present application, such a set of prison rules was represented by
the Imprisonment Act of 22 July 1999 (see paragraph 36 above).
However, the relevant provisions of that Act, which supported the
above-mentioned general provisions of the CAP at that time, have
already been found by the Court to be deficient, lacking sufficient
clarity and precision, and thus falling foul of the requirements of
an effective domestic remedy for the purposes of a complaint under
Article 3 of the Convention, within the meaning of Article 35 § 1
(see, for comparison, Aliev v. Georgia, no. 522/04, §§ 33
and 58-64, 13 January 2009).
That
being said, the Court cannot leave unnoticed a major reform of the
prison system which the Georgian State undertook after the
communication of the present application, when it enacted the new
Prison Code. Thus, the Court notes that firstly the new Code, which
entered into force on 1 October 2010, clearly provided for a
detainee’s right to health care in prison (Article 24 of the
Code). The Code then described in a precise manner the procedure for
submitting complaints, in the event a detainee felt that his or her
right, including that to health care, was not being duly respected by
the prison authority (see paragraphs 38-43 above). The Court notes
that this procedure is accompanied by important procedural
guarantees. Notably, the Code obliged the prison authority to ensure
that every detainee was well aware of such a complaints procedure
from the very beginning of his or her detention (Article 97 of the
Code). The Code also made it clear that a complaint may not be
examined by the same officer/authority who has been implicated in the
infringement of the detainee’s right (see Articles 98 and 99 of
the Code and compare, a contrario,
with the old prison rules contained in the Imprisonment Act 1999,
cited in Aliev, cited above, § 33).
Of
further importance for the Court is the clear requirement for prison
complaints to be examined within stringent time-limits, in particular
those raising allegations of ill-treatment (Articles 102, 103 and 105
of the Code). The Court considers that health complaints based on
suffering caused by serious illness must necessarily fall within the
scope of the latter group of urgent complaints concerning
ill-treatment, and thus must be examined by the relevant authorities
“immediately”, within the meaning of Article 105 of the
Code. Indeed, as the Court has already mentioned above, the
efficiency of a domestic remedy with respect to a medical complaint
from prison is largely contingent on the promptness with which that
remedy can operate. No less important is the requirement for the
relevant authority to give a fully reasoned response to the
complaint, as well as a transparent opportunity for the detainee to
challenge that response further before a court by instituting
administrative-legal proceedings, that is by resorting to the
above-mentioned provisions of the CAP (see Article 107 of the Code
and compare, a contrario, with the
old prison rules contained in the Imprisonment Act 1999, cited in
Aliev, cited above, §§ 33, 58-60 and 63).
(c) Conclusions
In
the light of the foregoing, the Court first reiterates its finding
that, since the applicant opted for preventative remedial action by
declaring the treatment dispensed in prison inadequate and requesting
certain additional medical treatment at the time when such measures
were the most needed, he should not now be criticised, under Article
35 § 1 of the Convention, for not also requesting monetary
compensation from the prison authority under the Civil Code.
Furthermore, prior to 1 October 2010, that is during the main period
relevant to the assessment of the present application, the applicant,
in the absence of clear and precise rules on the lodging of prison
complaints, can be considered to have done everything that could
reasonably have been expected of him to put both the prison and
judicial authority on alert with respect to his state of health.
However,
as regards the period subsequent to 1 October 2010, that is since the
Prison Code introduced the improved rules on submitting prison
complaints on the basis of allegations of ill-treatment, including
those relating to the absence of adequate medical care in prison, the
Court considers that Article 35 § 1 of the Convention should
start to operate with deference to the formalities prescribed by that
Code, which would indeed promote the interests of further factual
clarity and legal certainty before both the domestic authorities and
the Court (see, for comparison, for example, Saghinadze and Others
v. Georgia, no. 18768/05, §§ 82 and 83, 27 May
2010, and Agbovi v. Germany (dec.), no. 71759/01, 25 September
2006).
That
being said, the Court, having due regard to the fact that the most
fundamental values – the applicant’s health, well-being
and life – are at stake in the present case, does not consider
that it would be reasonable or compatible with the humanitarian
considerations which are compelling for a proper examination of
complaints under Articles 2 and 3 of the Convention (see, for
instance, Öneryıldız v. Turkey [GC], no.
48939/99, §§ 106-107, ECHR 2004 XII; N. v.
the United Kingdom [GC], no. 26565/05, § 43,
27 May 2008; and Y. v. Russia, no. 20113/07, §
94, 4 December 2008) to find that the fact that a better domestic
remedy has been introduced subsequent to the introduction of the
present application should render the applicant’s complaint of
lack of adequate medical care in prison inadmissible under Article 35
§ 1 of the Convention in its entirety (compare, a
contrario, with a number of cases raising various merely
pecuniary interests, where domestic remedies were set up after the
introduction, as a result of the Court’s instructions to that
end in its “pilot” judgments, Scordino v.
Italy (no. 1) [GC], no. 36813/97,
§§ 140-149, ECHR 2006 V; Icyer v.
Turkey (dec.), no. 18888/02 , §§ 73-87,
12 January 2006; but also contrast with Merit v. Ukraine,
no. 66561/01, §§ 65-66, 30 March 2004). On the
contrary, the very nature of this complaint, which is all about
having the right to obtain from the State swift and adequate medical
response in timely fashion in order to prevent further deterioration
of the detained applicant’s state of health (see the Court’s
finding at paragraphs 49, 51 52 and 57 above), would not
obviously permit any subsequently adopted set of rules of a
preventative nature to extinguish the State’s omissions of the
past.
Having
regard to the above considerations, the Court concludes that the
applicant’s complaint under Article 3 of the Convention
concerning the alleged lack of adequate medical treatment for the
period until 1 October 2010, that is until the entry into force
of the Prison Code, cannot be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
Neither it is manifestly ill-founded within the meaning of Article 35
§ 3 of the Convention nor inadmissible on any other grounds.
This part of the complaint must therefore be declared admissible.
However,
as regards the period subsequent to 1 October 2010, the Court, noting
that the applicant indeed voices new accusations against the prison
doctor which have never been raised before any of the relevant
domestic authorities (see paragraph 68 below), considers that he
should first try and raise these specific grievances at the domestic
level under the complaints procedure created to this end by the
Prison Code, read in conjunction with Articles 24 and 33(1) of the
CAP (compare with the Court’s findings at paragraphs 53 and 54
above). It follows that the second part of the complaint under
Article 3 of the Convention concerning the alleged lack of adequate
treatment subsequent to the entry into force of the Code on
Imprisonment must be rejected under Article 35 §§ 1
and 4 of the Convention for non-exhaustion of domestic remedies.
B. Merits
1. The Government’s submissions
The
Government submitted that the respondent State had fully complied
with its positive obligations under Article 3 of the Convention, as
the relevant authorities had not spared any effort to provide the
applicant with due care in prison. In support, they stated that the
applicant had been provided with comprehensive in-patient medical
treatment in the prison hospital, which included various relevant
medical tests, repeated consultations with medical specialists, the
necessary medication and so on, on three occasions, between 8 July
and 4 November 2006, 11 August and 18 August 2007 and 29 January
and 3 April 2008 (see paragraphs 14-16, 18-21, 25-26 and 28-31
above). As regards the periods the applicant spent, between those
dates, in Rustavi prison, the Government, relying on excerpts from
his medical file, submitted that he continued to receive the
prescribed medication on an out-patient basis, under the supervision
of a doctor, a general practitioner, attached to that prison. The
Government also emphasised that the applicant was continuing to be
treated in the prison hospital since his fourth admission there on 30
October 2008 and to date. They further underlined that all the
necessary medication and other types of medical treatment were being
provided to the applicant exclusively at the expense of the prison
authority; the State duly ensured that the necessary drugs were
always in sufficient quantity in its pharmaceutical stock.
Referring
to the applicant’s dissatisfaction with the frequency of his
examination by the nephrologist, the Government acknowledged that the
medical conclusions of 15 February to 7 April 2008 recommended that
the applicant should be permanently supervised by that medical
specialist. However, the Government argued, referring to the relevant
excerpts from the applicant’s medical file, that during his
periods of in-patient treatment in the prison hospital the authority
had provided him with a sufficient number of consultations with
several different nephrologists (those examinations occurred on 18
July, 7 and 18 September 2006, 3 and 4 February and 20 November
2008, and 12 January, 16 March and 5 June 2009, see paragraphs 14,
20, 21, 25 and 26 above) who had been specifically summoned for that
purpose from civilian hospitals. The only somewhat lengthy period
during which the applicant had been left unattended by this medical
specialist was while he was in Rustavi Prison between April and
October 2008. However, the Government continued, that omission should
not amount to a violation of Article 3 of the Convention, as the
applicant was still able to benefit from supervision by a general
practitioner of that prison. The Government further submitted more
recent excerpts from the applicant’s medical file, which
disclosed that he had had additional examinations by other qualified
civilian nephrologists, on 30 November 2009, 17 February, 8
June, 8 July and 10 August 2010, and 6 January, 3 March and
14 April 2011. During those visits, the medical specialists did not
note any deterioration in the applicant’s state of health,
describing his condition as stable, and either confirmed the
previously prescribed treatment or introduced slight amendments by
prescribing new medication regimens.
The
latest medical information submitted by the Government accounting for
the applicant’s current condition from the
urological/nephrological point of view is dated March-April 2011.
Notably, the results of the blood biochemical and urine analysis and
of a relevant ultrasound scan administered to the applicant during
that period confirm that his renal disorders have not evolved
negatively. These medical documents further disclose that qualified
clinicians have conducted haemodynamic monitoring of the applicant on
a daily basis and have consistently provided him with due dosages of
seventeen different types of medication for his renal disorders and
arterial hypertension. He is also provided with a diet appropriate to
his condition. In support of the fact that the new prison hospital
can be, as regards its infrastructure, considered an establishment
capable of dispensing adequate medical treatment, the Government
invited the Court to take note of the CPT’s relevant
observations on the matter (see paragraph 44 above).
The
Government also commented on the results of the treatment commenced
with respect to the applicant’s HCV on 8 June 2009. That
treatment, which consisted of administering Ribovirin and Interferon,
was successfully terminated on 8 December 2009. In support, the
Government submitted the results of two laboratory tests (HCV-RNA
test by polymerase chain reaction) dated 8 December 2009 and 10 June
2010, which were “negative”, confirming that the number
of viruses in the applicant’s blood had become extremely low,
thus no longer posing any serious risk to his liver.
The
Government also informed the Court, referring to the relevant medical
documents in support, that, in order to exclude any possible risk of
the applicant’s infection with tuberculosis, sputum tests had
been conducted in October-November 2008, the results of which did not
detect any trace of Koch’s mycobacterium in his organism.
Instead, the applicant was diagnosed with chronic bronchitis, for
which he was prescribed and provided with eight types of relevant
drugs.
Lastly,
the Government also commented on the domestic courts’ refusal
to suspend the applicant’s sentence. They observed that Article
3 of the Convention does not provide for an unqualified right to be
released from detention on health grounds. Rather, that issue should
be assessed in the light of the authorities’ ability to provide
a detainee who is ill with due care in prison. In the present case,
given that the applicant was duly provided with adequate treatment
for his renal disorders and HCV in the prison hospital, an adequate
medical establishment, his continued detention could not be said to
have been in breach of Article 3 of the Convention.
2. The applicant’s submissions
In
reply, the applicant’s representatives, without submitting any
medical documents in support, bluntly reiterated that the treatment
dispensed to their client in prison was inadequate. They claimed
that, in consequence, the applicant’s condition had
considerably worsened and that currently there was a real risk to his
life. The representatives denounced the fact that the prison hospital
did not have a nephrologist on its staff, maintaining that the
frequency with which the civilian nephrologists would examine the
applicant was insufficient. They further claimed that the medication
prescribed for their client by those medical specialists was withheld
from him by the prison hospital. The representatives also accused
several doctors treating the applicant in the prison hospital,
without substantiating the accusation with any evidence or
corroborating their accusations with specific arguments, of entering,
in January and February 2011, false records in the medical log
on the applicant’s treatment. They then stated that, if the
respondent State truly cared for the applicant’s health and
life in prison, it must arrange for his transfer to a civilian
nephrology hospital.
3. The Court’s assessment
(a) General principles
The
Court reiterates that Article 3 of the Convention cannot be
interpreted as laying down a general obligation to release a detainee
on health grounds (see Aleksanyan v. Russia, no. 46468/06,
§ 138, 22 December 2008). However, this provision
requires the State to ensure that prisoners are detained in
conditions which are compatible with respect for human dignity, that
the manner and method of the execution of the measure do not subject
them to distress or hardship of an intensity exceeding the
unavoidable level of suffering inherent in detention and that, given
the practical demands of imprisonment, their health and well-being
are adequately secured by, among other things, providing them with
the requisite medical assistance. Indeed, the detention of a person
who is ill raises arguable issues under Article 3 of the Convention,
and a lack of appropriate medical care may thus amount to treatment
contrary to that provision (see, amongst many others, Naumenko v.
Ukraine, no. 42023/98, § 112, 10 February 2004).
There
are at least three specific elements to be considered in relation to
the compatibility of an applicant’s health with his stay in
detention: (a) the medical condition of the prisoner, (b) the
adequacy of the medical assistance and care provided in detention,
and (c) the advisability of maintaining the detention measure in
view of the state of health of an applicant (see, amongst others,
Rivière v. France, no. 33834/03, § 63,
11 July 2006). The Court is mindful of the fact that the
adequacy of the medical assistance is always the most difficult
element to determine. In this task, it must reserve, in general,
sufficient flexibility, defining the required standard of health
care, which must accommodate the legitimate demands of imprisonment
but remain compatible with human dignity and the due discharge of its
positive obligations by the State, on a case-by-case basis (see
Aleksanyan, cited above, § 140).
(b) Application of these principles to the
present case
The
Court notes that the major issue of the present application is
whether or not the respondent State has been able to maintain the
stability of the applicant’s health in prison by dispensing
adequate treatment for his serious renal disorders which, it should
be noted, developed prior to his placement in detention. In its
assessment of this issue, the Court considers that it must be guided
by the due diligence test, since the State’s obligation to cure
a seriously ill detainee is one of means, not of result. Notably, the
mere fact of a deterioration of the applicant’s state of
health, albeit capable of raising, at an initial stage, certain
doubts concerning the adequacy of the treatment in prison, could not
suffice, as such, for a finding of a violation of the State’s
positive obligations under Article 3 of the Convention, if, on the
other hand, it can be established that the relevant domestic
authorities have in timely fashion resorted to all reasonably
possible medical measures in a conscientious effort to hinder
development of the disease in question.
The
Court further notes that, since the communication of the present
application, the Government have submitted a copy of the full medical
file of the applicant’s treatment, from the beginning of his
detention until the present day. Thus, the Government, by disclosing
all the information necessary for the assessment of the quality of
the disputed treatment, have discharged their part of burden of proof
and duly assisted the Court in its task of factual determination
(see, a contrario, Malenko v.
Ukraine, no. 18660/03, §§ 56-57, 19 February
2009). That being so, the applicant’s subsequent objections
must be treated with caution.
Having due regard to his medical file, the Court notes
that the prison authority first took charge of the applicant’s
health problems by transferring him to the prison hospital on 8 July
2006, that is only two days after the authority had learnt, on 6 July
2006, on the basis of the results of the relevant laboratory test, of
the relevant medical risks. The applicant then stayed in the prison
hospital, receiving comprehensive in-patient treatment for his
nephrology/urology problems (which included various laboratory tests,
repeated consultations with medical specialists and so on) for almost
four months, until a qualified doctor opined that the patient’s
improved condition would permit him to be discharged back into the
ordinary prison (see paragraphs 14-16 above). The two subsequent
medical check-ups conducted in the first half of 2007 confirmed that
the applicant’s condition remained stable and that he could
continue receiving the relevant treatment on an out-patient basis.
Nevertheless,
in August 2007, the applicant was admitted to the prison hospital
again, where he received an additional course of the relevant
nephrology/urology treatment. Then again, as soon as the applicant
suffered the relapse of 29 January 2008, which had as unpredictable a
cause as food poisoning, he was on the very same day placed as an
emergency to the prison hospital, where he stayed pending his full
recovery and was discharged only after the qualified doctor
authorised it on 3 April 2008 (see paragraphs 19-21 above).
On
30 October 2008, following the Court’s interim instruction
under Rule 39 of the Rules of Court, the prison authority placed the
applicant in the prison hospital for the fourth time. The Court notes
that, even after it decided to lift its interim measure on 30 August
2010, the prison authority continued of its own accord the
applicant’s in-patient treatment in the prison hospital, where
he remains. During this period he again had comprehensive treatment,
which included numerous blood and urine tests, various ultrasound
scans, repeated examinations by the relevant medical specialists, and
so on (see paragraphs 25-26 and 63-66 above and contrast with Testa
v. Croatia, no. 20877/04, § 52, 12 July 2007, and Poghosyan
v. Georgia, no. 9870/07, § 57, 24 February 2009). As
regards the question of whether the prison hospital could be
considered a medical establishment capable of dispensing
nephrology/urology treatment of adequate quality, the Court, having
regard to the descriptions of the Government and the CPT and to the
absence of any evidence to the contrary from the applicant (see
paragraphs 44 and 62-68 above), considers that that hospital is, in
its current condition, indeed equivalent to a civilian hospital of
average standard. This level of equivalence is sufficient for the
purposes of Article 3 of the Convention, since this provision may not
be interpreted as providing detained persons with medical assistance
of the same level as those as in the best civilian clinics (see
Mirilashvili v. Russia (dec.), no. 6293/04, 10 July 2007).
Admittedly,
the medical staff of the prison hospital does not include a
nephrologist, which is somewhat at odds with the medical experts’
recommendation that the applicant should benefit from permanent
supervision by that particular medical specialists. However, this
particular limitation of the resources of the prison hospital is not
sufficient to qualify as a breach of Article 3 of the Convention,
since it is fully compensated by the prison authority’s
willingness to arrange for the applicant to be examined by
nephrologists invited in from civilian hospitals. Indeed, it is
praiseworthy that the domestic authorities did not hesitate to resort
to the services of specialised medical facilities in the civilian
sector (see, a contrario,
Aleksanyan, cited above, §§ 155-157, and
Akhmetov, cited above, § 81). As to the frequency
with which the applicant has been examined so far in prison by
nephrologists invited from the outside, the Court, bearing in mind
the unavoidability of certain restrictions imposed by the fact of
imprisonment, finds that frequency to be sufficient and the
applicant’s expectations to be excessive. This is particularly
so because, as the Government noted by reference to the applicant’s
medical file, each time the nephrologist examined the applicant, the
clinician did not note any significant deterioration of the patient’s
condition, thus either simply maintaining the previously prescribed
treatment or slightly amending the medication regimen (see paragraph
63 above).
As
regards the applicant’s representatives’ unsupported
claim that certain medication has been withheld from the applicant by
the prison authority, the Court, having due regard to the relevant
excerpts from the applicant’s medical file provided by the
Government, cannot but dismiss this wholly unsubstantiated
allegation. Thus, the medical records show that, on the contrary,
numerous various types of medication were administered to the
applicant in the prison hospital, as well as on an out-patient basis
during his detention period in Rustavi Prison, with the State bearing
the cost (contrast with, for example, Pitalev v. Russia, no.
34393/03, § 57, 30 July 2009; Hummatov v. Azerbaijan,
nos. 9852/03 and 13413/04, § 117, 29 November 2007;
and Holomiov v. Moldova, no. 30649/05, § 119,
7 November 2006).
The
Court also notes that the prison authority dispensed adequate
treatment for the applicant’s HCV, a transmissible disease
which is widespread in Georgian prisons, with the relevant anti-viral
agents, as a result of which the viral activity has, as the repeated
blood tests showed, significantly reduced (see paragraph 65 above).
It is also praiseworthy that, when the applicant developed the
suspicious symptom of a dry cough, the prison authority screened the
applicant for tuberculosis, another widespread disease in Georgian
prisons, the results of which confirmed that he was not contaminated
by the relevant mycobacterium. Instead, the doctors then diagnosed
him with chronic bronchitis and prescribed him the relevant
medication which, as the applicant’s medical file confirms, was
duly administered to the patient in the prison hospital (see
paragraph 66 above).
As
regards the question of the applicant’s conditional release on
health grounds, the Court reiterates that Article 3 of the Convention
cannot be construed as laying down a general obligation to release
detainees on health grounds. Rather, the compatibility of a
detainee’s state of health with his or her continued detention,
even if he or she is seriously ill, is contingent on the State’s
ability to provide relevant treatment of the requisite quality in
prison (see Rozhkov v. Russia, no. 64140/00, § 104, 19
July 2007). The circumstances of the present case, however, show that
the prison authority has been able to cope with the applicant’s
serious renal disorders by having him treated in the prison hospital,
thus rendering the question of his early release redundant.
Thus,
the Court finds that not only was the applicant promptly and with
sufficient regularity consulted by the relevant doctors in prison,
who made an accurate diagnosis and prescribed him the relevant form
of treatment, but also the prison authority then ensured that the
prescribed treatment was duly administered to the applicant in the
prison hospital, which has all the necessary medical facilities, at
State expense (contrast with Hummatov, cited above, §
116, and Melnik, also cited above, §§ 104 106).
Indeed, the applicant’s medical supervision has proved to be of
a regular and systematic nature, rather than addressing his renal
disorders on a symptomatic basis, and has made use of a truly
comprehensive therapeutic strategy (compare with Sarban v.
Moldova, no. 3456/05, § 79, 4 October 2005, and
Popov v. Russia, no. 26853/04, § 211, 13 July 2006). No
less important is the fact that the prison authority has been able to
maintain a comprehensive medical record of the applicant’s
state of health, monitoring the treatment he underwent from the
beginning of his detention until the present day (compare with, for
example, Khudobin v. Russia, no. 59696/00, § 83,
ECHR 2006 XII (extracts)).
In
the light of the foregoing, the Court concludes that the prison
authority has shown a sufficient degree of due diligence, providing
the applicant with prompt and systematic medical care. Accordingly,
there has been no violation of Article 3 of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Relying
on Article 6 § 1 of the Convention, the applicant claimed his
innocence by calling into question the domestic courts’
assessment of the criminal case materials, including the witnesses’
statements, and interpretation of the criminal-law provisions. In
support of this plea of innocence, he argued that, since
buprenorphine is considered to be a psychotropic substance under the
United Nations Convention of 1971 on Psychotropic Substances, to
which Georgia is a party, his prosecution for trafficking in narcotic
substances had been unlawful. The applicant also contested the
appellate court’s refusal to examine the actual recordings of
the tapped telephone conversations.
In
his initial application form, the applicant also asserted, citing
Article 6 § 3 (b) of the Convention, that the
first-instance court had failed to provide him with a copy of the
record of the hearing in due time, which had deprived him of
sufficient time for the preparation of his appeal. He did not submit
any evidence in support of that assertion, nor did he elaborate it
further in his subsequent observations on the admissibility and
merits of the application. The applicant also relied on Article 14 of
the Convention, without giving any reasonable explanation.
As
regards the applicant’s assertion that the Georgian courts had
unlawfully qualified Subutex, or buprenorphine, as a narcotic
substance, even assuming that it raises a separate arguable issue
under Article 6 § 1 of the Convention, the Court notes that the
criminal case materials (the record of the trial, the applicant’s
appeal and request for leave to appeal on points of law and so on)
clearly show that no such complaint was ever voiced, at least in
substance, before the domestic courts. Thus, it was only rational
that the domestic courts, in the absence of any such objection in
defence, did not address this particular argument in their decisions.
As
to the complaint that the domestic courts took in evidence the
transcripts of the taped telephone conversations without listening to
the actual recordings, the Court observes that the applicant’s
conviction was in any event confirmed by a great deal of other
relevant incriminating evidence – the full or partial
confessions of his accomplices, the results of the search of the
applicant’s body and of his accomplices’ homes, the
results of a number of crime detection expert reports and so on. In
other words, when assessing the criminal proceedings as a whole, the
Court considers that this specific episode, relating to the taking of
one particular piece of evidence of ordinary weight, may not serve as
a sufficient ground to prejudice the overall fairness of the trial
(see, for instance, Mirilashvili v. Russia, no. 6293/04,
§§ 164-166, 11 December 2008).
In
any event, having regard to the essence of the applicant’s
complaints under Article 6 § 1 of the Convention, the Court
notes that he questions, in actual fact, the outcome of the criminal
proceedings against him, challenging the domestic courts’
findings of fact and law. In other words, the applicant requests the
Court to act as an appeal court of “fourth instance”
(see, for comparison, Archaia v. Georgia (dec.), no. 6643/10,
14 December 2010). However, the Court reiterates that the
domestic courts are best placed to assess the relevance of the
evidence to the issues in the case and to interpret and apply rules
of substantive and procedural law (see, amongst many authorities,
Patsuria v. Georgia, no. 30779/04, § 86, 6 November
2007, and Kobelyan v. Georgia, no. 40022/05, § 14,
16 July 2009). All the applicant’s arguments concerning
the accuracy of the assessment of the evidence and the reading of the
criminal law, which were voiced by his lawyer before the domestic
courts, received reasoned answers from the domestic courts, and that
reasoning does not disclose any manifest arbitrariness (see, a
contrario, Melich and Beck v. the Czech Republic,
no. 35450/04, §§ 52 and 53, 24 July 2008).
As
to the complaints under Articles 6 § 3 (b) and 14 of the
Convention, the Court notes that the applicant failed to substantiate
them. In the light of all the material in its possession, the Court
finds that no issues arise under either of these provisions.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 3 of the
Convention concerning lack of adequate medical care during the period
until 1 October 2010 admissible and the remainder of the application
inadmissible;
Holds that there has been no violation of
Article 3 of the Convention.
Done in English, and notified in writing on 4 October 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
