European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
MAKHARADZE AND SIKHARULIDZE v. GEORGIA - 35254/07 [2011] ECHR 1957 (22 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1957.html
Cite as:
[2011] ECHR 1957
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
THIRD
SECTION
CASE OF MAKHARADZE AND SIKHARULIDZE v. GEORGIA
(Application
no. 35254/07)
JUDGMENT
STRASBOURG
22
November 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 Makharadze
and Sikharulidze v. Georgia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Alvina Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Luis López Guerra,
Nona
Tsotsoria,
Mihai Poalelungi, judges,
and
Marialena Tsirli, Deputy
Section Registrar,
Having
deliberated in private on 3 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35254/07) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by two Georgian nationals, Mr Niko Makharadze and
Mrs Dali Sikharulidze (“the applicants”), on 16 July 2007
and 3 June 2009 respectively. On 29 January 2009 Mr Niko
Makharadze (“the first applicant”) died. On 3 June
2009 Mrs Dali Sikharulidze, his wife, informed the Court of her
intention to pursue the proceedings in her own name as well as on
behalf of her late husband.
The
applicants were successively represented by Mr Zaza Khatiashvili and
Mr Ioseb Khatiashvili, lawyers practising in Tbilisi. The
Georgian Government (“the Government”) were represented
by their Agent, Mr Levan Meskhoradze.
The
applicants alleged, in particular, that the respondent State had
failed to protect the first applicant’s life and health in
prison and to implement a medical interim measure indicated by the
Court.
On
11 December 2009 the Court decided to communicate the complaints
under Articles 2, 3 and 34 of the Convention 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 FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Domestic proceedings
On
14 March 2006 the first applicant, born in 1967, was arrested on
account of his purported connection with the criminal world and
possession of drugs, offences prosecuted respectively by Articles
223(1) § 2 and 260 § 2 (a) of the Criminal
Code. On 16 March the Tbilisi City Court ordered his detention
pending trial. He was subsequently placed in Ksani no. 7 prison.
On
17 March 2006 the first applicant appealed against the detention
order of 16 March 2006, complaining, inter alia, that the
pre-trial detention was an unjustifiably severe and unnecessary
measure, given the poor conditions in the prison and his critical
state of health. In support, he submitted medical documents, dated 11
May 2005 and 16 March 2006, which diagnosed him with pulmonary
fibro-cavernous tuberculosis and confirmed that he was a registered
patient at a civil tuberculosis hospital, Abastumani Hospital, in
Georgia.
On
24 March 2006 the Tbilisi Court of Appeal dismissed the first
applicant’s appeal of 17 March 2006. In reply to the medical
complaint, the appellate court stated that “the submitted
medical documents show only the diagnosis; no other medical documents
about [the first applicant’s] current state of health, or the
type and stage of his disease have been made available...”. The
appellate court did, however, inform the prison authorities that the
first applicant should be provided with appropriate conditions of
detention and medical care in prison.
The
applicant’s state of health drastically deteriorated during the
following eleven days of his detention in Ksani no. 7 prison.
Notably, he started having acute respiratory difficulties and, with
his joints painfully swollen, became unable to move around without
assistance. Following the Public Defender’s intervention, the
applicant was transferred on 25 March
2006 to the Medical Establishment of the Prison Department of the
Ministry of Justice (“the old prison hospital”).
After
only two days in the old prison hospital, the first applicant was
transferred back to Ksani no. 7 prison on 27 March 2006, where his
state of health deteriorated further. Consequently, on 30 March 2006
the authorities returned him to the old prison hospital, where he was
initially placed in the intensive care unit.
On
24 July 2006 the Tbilisi City Court convicted the first applicant of
the offences with which he had been charged. He was sentenced to
7 years in prison.
By
letters of 22 and 24 August 2006, the Ministry of Justice
acknowledged that, following a medical examination conducted by its
National Forensic Office (“the NFO”) between 1 May and 20
June 2006, the first applicant had been diagnosed with an open form
of multidrug-resistant fibro-cavernous (or disseminated)
tuberculosis, in the phase of infiltration and decomposition; he was
haemorrhaging from the lungs. In addition, the examination results
showed that the first applicant had been infected with viral
hepatitis C and suffered from a number of serious cardiac and
neurosensory disorders. The above-mentioned letters further stated
that, since 4 April 2006, the first applicant had been receiving
conventional, first line anti-tuberculosis medication under the
DOTS programme (Directly Observed Treatment, Short-course – the
treatment strategy for the detection and cure of TB recommended by
the World Health Organisation, see paragraph 48 below).
On
12 December 2006 the Tbilisi Court of Appeal upheld the first
applicant’s conviction of 24 July 2006. His cassation appeal
was rejected as inadmissible by the Supreme Court on 10 April 2007.
Between
26 September and 26 November 2007, medical experts from the NFO
conducted an additional examination of the first applicant. Their
conclusions (“the medical conclusions of 26
September-26 November 2007”) confirmed the previous
diagnosis as regards his cardiac problems and tuberculosis.
Concerning the latter disease, the experts added that the first
applicant should be considered as a gravely ill patient who needed
special treatment in a tuberculosis hospital.
On
4 July 2008 the first applicant, referring to all the available
medical documents about the critical phase of his tuberculosis,
including the medical conclusions of 26 September-26 November 2007,
requested the suspension of the outstanding part of his prison
sentence on the basis of the Order of 27 March 2003 of the
Minister of Health (“the Order of 27 March 2003”).
He complained, under Articles 2 and 3 of the Convention, that he was
not provided with effective anti-tuberculosis drugs in prison, and
that, consequently, there was a real risk to his life.
On
30 July 2008 the Tbilisi City Court examined the first applicant’s
request of 4 July 2008 at an oral hearing. Amongst others, the court
heard one of the medical experts who had issued the conclusions of 26
September-26 November 2007. The expert confirmed the accuracy of
those conclusions, namely that the first applicant required treatment
in a specialised hospital with particular drugs of second-line family
(“SLDs”) to which his tuberculosis had not yet developed
a resistance and which were not available in the prison system. The
expert suggested that the first applicant’s condition would
only deteriorate in prison, given the lack of the necessary drugs
there. The expert confirmed that, according to the Order of 27 March
2003 (see paragraph 41 below), the applicant’s type of
tuberculosis could serve as a basis for release from serving a
sentence.
The
Tbilisi City Court also heard a representative of the prison
authorities, who stated that a more comprehensive system of multidrug
resistant forms of tuberculosis treatment, DOTS+, would soon be
introduced in Georgian prisons, and that the first applicant would be
entitled to benefit from it. He was unable to specify the approximate
dates of the introduction of that programme. The representative
further stated that the first applicant had already been provided
with permanent medical supervision in prison, and that the
authorities would transfer him to a specialised hospital if his
condition deteriorated.
During
the hearing of 30 July 2008, the first applicant’s
representative submitted a handwritten letter of his client dated 29
July 2008 informing the Tbilisi City Court of his inability to attend
the hearing in person owing to his state of health. His counsel also
submitted a medical opinion of Dr T.J., the doctor who was treating
the applicant in prison, dated 30 July 2008, which confirmed the
first applicant’s diagnosis at that time and stated that all
the previous attempts to treat him in prison with the medication
available through the already introduced DOTS programme had proved
unsuccessful. The doctor confirmed that the comprehensive DOTS+
programme was planned to be introduced in the near future.
On
the same day, 30 July 2008, the Tbilisi City Court delivered a
decision dismissing the first applicant’s request for the
suspension of his sentence as manifestly ill-founded. The court
reasoned that no recent medical document about his current state of
health had been made available.
On
15 August 2008 the first applicant lodged an appeal against the
decision of 30 July 2008, denouncing the City Court’s failure
to endorse the medical opinion of 30 July 2008 as proof of his
current medical condition. He reiterated his fears that, without
proper medical treatment in prison, the violation of his right under
Article 3 of the Convention would persist and, in the worst scenario,
could lead to his death, in violation of Article 2.
In
the course of the appellate proceedings the first applicant made a
request for an additional medical examination, so that all possible
doubts about his state of health at that time could be dissipated.
The Tbilisi Court of Appeal granted that request on 25 September
2008, ordering the prison authorities, and in particular the NFO, to
examine the first applicant with the aim of establishing the nature
and gravity of his diseases and obtaining recommendations on
appropriate treatment for him.
In
a reply dated 20 October 2008, the NFO implicitly refused to enforce
the court order of 25 September 2008, stating that the first
applicant’s state of health had already been assessed between
26 September and 26 November 2007, and that, prior to assessing the
need for an additional examination, the Tbilisi Court of Appeal
should first hear the relevant medical experts.
On
21 October 2008 the first applicant began a hunger strike to protest
against the non-enforcement of the court order of 25 September 2008.
In particular, and in line with that order, he requested a transfer
to a specialised medical setting for diagnostic examinations, and
denounced the fact that, despite his very critical condition, he was
detained in a closed, “cellar-type” establishment. On the
same day, the head of the old prison hospital issued an order putting
the medical staff on alert for the duration of the applicant’s
hunger strike. As disclosed by his medical file, the applicant was
advised by doctors on a daily basis throughout the entire duration of
his hunger strike (see paragraph 26 below) about the damage his
self-harming conduct could cause to his health.
On
24 October 2008 representatives from the Public Defender’s
Office visited the first applicant in the old prison hospital. As
disclosed by the minutes of their visit, they found him in a critical
condition – with his swollen joints, he remained bedridden, was
vomiting purulent blood, and so on. The representatives also noted
that only his family had been providing the applicant with such SLDs
as cycloserin, p-aminosalicylic acid (“PAS”).
On
28 October 2008 the Public Defender’s Office expressed its
concern about the first applicant’s aggravated state of health
and invited the prison authorities to ensure his appropriate
treatment.
On
31 October 2008, pursuant to the court order of 25 September
2008, the NFO started the first applicant’s medical
examination, which ended on 7 November 2008. Its results (“the
medical recommendations of 31 October-7 November 2008”) fully
confirmed the previously diagnosed grave form of tuberculosis, showed
that the disease had deteriorated since the previous examination and
recommended that the applicant be treated with SLDs in a hospital
specialised in tuberculosis treatment.
In
the meantime, on 4 November 2008, the first applicant terminated his
hunger-strike as the court order of 25 September 2008 had been
enforced. On the same day his advocate enquired of the head of the
old prison hospital whether or not the prison was able to provide the
applicant with SLDs (such as cycloserin and PAS). The reply was
negative.
On
27 November 2008 the first applicant was transferred to the newly
opened medical wing of Tbilisi no. 8 prison (“the new prison
hospital”). He was visited there on 2 December 2008 by
representatives of the Public Defender’s Office, who witnessed
that, although he was in a newly refurbished room, he was not being
provided with the necessary SLDs and diet, or allowed to receive food
parcels from his family, and the hospital staff would not change his
bed-linen regularly even though he was sweating profusely.
On
5 December 2008 the first applicant started another hunger strike in
protest against the failure to follow the medical recommendations of
31 October-7 November 2008. In particular, he requested that the
prison authorities either provide him with the SLDs or transfer him
to a specialised hospital. The new prison hospital was put on alert.
As disclosed by the applicant’s medical file, he was reminded
by the doctors on a daily basis, throughout the entire duration of
his strike (see paragraph 31 below), how deleterious his refusal to
take meals was for his state of health. The applicant also refused
blood transfusions during that period.
On
8 December 2008 the Tbilisi Court of Appeal examined the first
applicant’s appeal against the decision of 30 July 2008 at an
oral hearing. The court heard one of the medical experts who had
issued the medical recommendations of 31 October-7 November 2008. The
expert confirmed the gravity of the applicant’s condition and
stated that his anti-tuberculosis treatment had been unsuccessful
owing to the lack of the necessary drugs in prison. The expert added
that the applicant required a special diet and the exposure to fresh
air, suggesting that there were some chances of successful treatment
of his type of tuberculosis outside of prison. The appellate court
also heard a representative of the prison authorities, who submitted
an opinion of Dr T.J, the doctor who was treating the applicant in
prison, dated 1 December 2008. According to that opinion, the
applicant had been provided with a combination of unspecified SLDs
since 22 June 2008 against which his tuberculosis maintained
sensitivity. The examination of various parties during the hearing
further disclosed the fact that it was the applicant’s family
who had procured those SLDs from Germany.
In
a decision of 8 December 2008, relying on the medical opinion of 1
December 2008 the Tbilisi Court of Appeal dismissed the first
applicant’s appeal against the decision of 30 July 2008 as
being unfounded.
On
9 December 2008 the first applicant terminated his hunger strike.
As
disclosed by his medical file, from early January 2009 the applicant
refused to take PAS and cycloserin, the SLDs procured by his family,
in protest against the prison administration’s failure to
provide him with a diet necessary for his condition. On 20 January
2009 the Public Defender’s Office complained about that problem
to the prison authorities.
On
the same day, 20 January 2009, following a drastic deterioration in
his condition, the first applicant was placed in the intensive
therapy unit of the new prison hospital. Nevertheless, his condition
continued to deteriorate and he died at midnight on 29 January 2009.
B. The proceedings before the Court
On
24 October 2008 the first applicant requested, under Rule 39 of the
Rules of Court, that the Government be indicated to transfer him to a
specialised tuberculosis hospital, to arrange for his medical
examination and treatment and to suspend his sentence pending
treatment.
On
10 November 2008 the President of the Chamber partly granted the
above-mentioned request, indicating to the Government that the first
applicant should be placed in a specialised medical establishment
capable of dispensing appropriate anti-tuberculosis treatment. That
measure was imposed until further notice. In so far as the case file,
as it stood at the material time, did not disclose that the Tbilisi
Court of Appeal’s decision of 25 September 2008 ordering the
applicant’s medical examination had already been enforced (see
paragraph 25 above), the President indicated to the Government to
ensure that it was enforced. The Government were further invited to
report on the implementation of the indicated medical measures by 1
December 2008.
By
a letter of 1 December 2008, the Government submitted to the Court
the medical recommendations of 31 October-7 November 2008 in support
of the fact that the court decision of 25 September 2008 had duly
been enforced.
As
to the first applicant’s transfer to a specialised tuberculosis
hospital, the Government stated that such a measure was not necessary
for the following reasons. First, the applicant had already been
transferred, on 27 November 2008, to the new prison hospital, the
medical services of which were comparable if not superior to those of
a civil tuberculosis hospital. Secondly, even if the applicant were
allowed to be treated at an outside tuberculosis hospital, such
treatment would in any event be limited to DOTS, to which programme
he had already had access in prison.
The
Government further stated that the shortage of SLDs was a general
pharmaceutical problem on a nationwide scale, which could in no way
be imputed to the prison only. They promised that as soon as
ofloxacin, PAS and cycloserin, the drugs capable of fighting the
first applicant’s tuberculosis, appeared in the country’s
pharmaceutical network, they would immediately be dispensed to him.
In the meantime, the authorities allowed the applicant’s family
to provide him with those drugs in prison.
In
a letter of 27 January 2009, addressed to the Minister of Justice,
the Public Defender expressed his deep concern about the failure to
transfer the first applicant to a specialised tuberculosis hospital,
contrary to the interim measure indicated by the Court on 10 November
2008; the Minister was urged to ensure the immediate enforcement of
that measure.
II. RELEVANT DOMESTIC LAW AND OTHER NATIONAL AND
INTERNATIONAL DOCUMENTS
A. The Act of 22 July 1999 on Imprisonment (“the
Imprisonment Act”) and Order no. 72 issued by the Minister of
Healthcare on 27 March 2003, as they read at the material time
Pursuant
to section 65 §§ 1 (b) and 2 of the Imprisonment Act, a
convict could be released from detention on account of his or her
grave and/or incurable illness. The list of such grave/incurable
illnesses was to be prepared by the Ministry of Healthcare.
On
27 March 2003 the Minister of Health issued an Order (Order
no. 72) on the basis of section 65 of the Imprisonment Act,
which established that destructive forms of pulmonary tuberculosis
(fibro cavernous, milliary or cirrhotic) as well as poly
or multi drug resistant tuberculosis are grounds for requesting
early release.
B. The Code of Criminal Procedure (“the CCP”), as it
read at the material time
Pursuant
to Article 607 § 1 (a) of the CCP, a court could suspend a
prison sentence in view of the 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 the convict’s grave or incurable illness, which
fact was to be established by a qualified medical opinion.
C. 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 21 March
to 2 April 2007 (CPT/Inf (2007) 42)
The
relevant excerpts from the above-mentioned Report, bearing on the
problem of tuberculosis in Georgian prisons, read:
“Health-care services
76. Despite the goodwill and commitment of health-care
staff at the penitentiary establishments visited, the provision of
health care to prisoners remained problematic, due to the shortage of
staff, facilities and resources. The delegation heard a number of
complaints from prisoners at all the establishments visited
concerning delays in access to a doctor, the inadequate quality of
care ... and difficulties with access to outside specialists and
hospital facilities.
77. The delegation noted that the supply and range of
medication available at the establishments visited had considerably
improved in recent years. Nevertheless, a number of prisoners
complained that they depended on their families for the acquisition
of most of the necessary medication.
As to the equipment available at the establishments
visited, it was generally limited to a stethoscope and an apparatus
for measuring blood pressure; there were no facilities for taking
X-rays or basic blood tests. This made the screening for
transmissible diseases, including the detection of cases of
tuberculosis unfeasible...
81. The CPT is concerned that the progress observed
during the second periodic visit in the area of combating
tuberculosis is jeopardised by the steep increase in the prison
population and the ensuing problem of prison overcrowding. Despite
the efforts of the ICRC, it was no longer possible to screen all new
arrivals at Prison No. 5 in Tbilisi. Further, in the absence of
routine medical examination upon arrival and the necessary laboratory
equipment, no systematic screening for tuberculosis was performed at
Prison No. 4 in Zugdidi, Prison No. 6 in Rustavi, Prison No. 7 in
Tbilisi or Penitentiary establishment No. 2 in Rustavi. ...
[R]ecommendations
- the Georgian authorities to take steps to ensure that
all newly arrived prisoners are seen by a health-care staff member
within 24 hours of their arrival. The medical examination on
admission should be comprehensive, including appropriate screening
for transmissible diseases (paragraph 79);...
- the Georgian authorities to persevere in their efforts
to combat tuberculosis in the prison system, through systematic
screening and treatment of prisoners in accordance with the DOTS
method for tuberculosis control (paragraph 81).”
D. 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
relevant excerpts from the above-mentioned Report, bearing on the
problem of tuberculosis in Georgian prisons, read:
“46. Georgia’s imprisonment rate is very
high by international standards and, as noted in the report on the
visit in 2007, cannot be convincingly explained away by a high crime
rate. If no steps are taken to limit the number of persons sent to
prison, all attempts to improve conditions of detention will
inevitably founder. ...
Health care
94. The spread of tuberculosis
in the prison system remains a major challenge for the Georgian
authorities. The progress made over the years, with the important
assistance of the International Committee of the
Red Cross (ICRC), has been jeopardised by
the increase in the inmate population and the ensuing problem of
prison overcrowding.
The delegation was concerned to note
that, in the absence of routine medical examination upon arrival, no
systematic screening for tuberculosis was performed ...
TB case finding was based on a passive method (which essentially
means waiting for prisoners with symptoms of TB to present themselves
to clinical staff for diagnosis)....
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)....
[R]ecommendations
- ensure that prisoners in need
of diagnostic examination and/or hospital treatment are promptly
transferred to appropriate medical facilities...;
- further
steps to be taken to ensure the supply of appropriate medication in
sufficient quantities to all establishments ...;
- urgent measures to be taken to
ensure that all newly arrived prisoners ... are seen by a health-care
staff member within 24 hours of their arrival. The medical
examination on admission should be comprehensive, including
appropriate screening for transmissible diseases and injuries
(paragraph 91);
- the Georgian authorities to
persevere in their efforts to combat tuberculosis in the prison
system, through systematic screening and treatment of prisoners in
accordance with the DOTS method for tuberculosis control. In this
context, steps to be taken to ensure that prisoners diagnosed as
BK-positive are promptly transferred to a hospital facility for
treatment and that inmates with whom such prisoners have been in
contact are screened for TB (paragraph 95).”
E. Undue Punishment – Abuses against
Prisoners in Georgia, Report by Human
Rights Watch, 13 September 2006 (Volume 18, No. 8 (D))
46. The
relevant excerpts from the above-mentioned Report read:
“Tuberculosis nevertheless remains
a serious problem in the Georgian prison system. The spread of
multi-drug resistant forms of tuberculosis remains a real threat,
particularly in prisons, where lack of proper hygiene, lack of
adequate medical facilities, insufficient medical staff, and, in
particular, overcrowding, leave detainees more vulnerable to becoming
infected with this highly contagious disease. Tuberculosis isolation
facilities also become overcrowded and overburdened as the prison
population increases; as a result, existing facilities may not be
sufficient to isolate all tuberculosis patients from the general
prison population. The growth of a tuberculosis epidemic in the
prison system also places society at a real risk of an epidemic, as
the disease can be readily transmitted from detainees to prison
employees and to family members and others once detainees are
released. Some experts also believe that there is a serious risk of
an increase in coinciding HIV and tuberculosis epidemics in the
region....
Recommendations
... Convicted
persons who are seriously ill, in the final stages of terminal
illness, or have diseases that require consistent and high-level
treatment must be adequately monitored in detention. As conditions of
detention risk exposing such vulnerable persons to inhuman and
degrading situations, imprisonment should be used strictly as a last
resort; efforts should be made to release such persons who are
currently detained and alternative sanctions should be imposed
whenever possible....
Conduct, without fail, systematic
screening for tuberculosis of prisoners entering all facilities...
Ensure that the internationally-recommended tuberculosis
control strategy, directly observed therapy, short course (DOTS), is
undertaken effectively by providing a regular supply of
anti-tuberculosis drugs in sufficient quantities to all facilities
and by training medical personnel in issuing DOTS.
Provide nutrition and material
conditions that are conducive to the improvement of tuberculosis
patients’ health.”
F. The right to health
and problems related to the exercise of this right within the
penitentiary system of Georgia - Special
Report by the Public Defender of Georgia, covering 2009 and the first
half of 2010
47. The
relevant excerpts from the above-mentioned report read:
“Tuberculosis
The high prevalence of tuberculosis in prisons is not
something new, and constitutes one of the serious problems [facing]
the penitentiary system worldwide. In spite of a series of projects
implemented within the Georgian penitentiary system in coordination
with the International Committee of the Red Cross, the problem of
tuberculosis has ... worsened, far less been resolved. This is shown
by the especially high number of persons who deceased with
tuberculosis in 2009. In our view, one reason for this worsened
situation is ineffective implementation of standard anti tuberculosis
measures within the Georgian reality, with no regard to local
specificities and without having assessed and analyzed the risk of a
spread in TB.
Medical personnel require in-depth preparation.
Individual short-term training is not sufficient to resolve the
problem, since the medical personnel are either unaware of or unable
to use basic skills and knowledge of TB-infection management, given
their very low medical autonomy and independence in taking
decisions...
Tuberculosis is currently the most widespread disease
within the penitentiary system’s establishments in Georgia. In
addition, as in previous years, in 2009 tuberculosis remained the
number-one cause of death ... in prisons. Monitoring has revealed a
high frequency of multi-resistant forms of tuberculosis.
Extra-pulmonary forms of TB are not a rarity either, and
their spectrum has significantly expanded so as to include [other]
diseases, starting with TB pleurisy and ending with
neuro-tuberculosis, which damages almost all internal organs. In our
view, such a trend is a direct result of inadequate management of TB
infection within the penitentiary system.
Although a great number of penitentiary establishments
do carry out screening for TB, and identify and include infected
prisoners in relevant programmes, such measures are not effective
enough, especially against the background that systemic and specific
reasons for the spread of the disease have remained unresolved for
years.
Newly-built penitentiary establishments are not planned
with a view to due consideration of lighting and aeration systems,
which are crucial components in preventing the spread of
tuberculosis. The infection is spread by inhaling air containing
airborne parcels of mycobacterium tuberculosis, coughed out by a
person infected with tuberculosis. Mycobacterium survives a few hours
in the air and depends on the actual environment. Infection occurs,
as a rule, in a closed space (room) that is not properly aerated. It
should also be mentioned that direct sunbeams can quickly kill the
mycobacterium tuberculosis, which is not possible in a closed
space...
We have discovered through monitoring that a total of
1,579 persons suffering from tuberculosis were identified by
screening and further tests conducted in the establishments of the
Georgian penitentiary system. Of these, 1,172 persons were involved
in the DOTS program. 60 persons were diagnosed with the
multi-resistant form of tuberculosis, of whom 59 persons were
involved in the DOTS+ programme...
Death rate in the penitentiary system of Georgia
The Office of the Public Defender has been studying the
death rate in Georgian penitentiary establishments for the last few
years. 371 prisoners died in 2006-2009. 90 prisoners die every
year on average... Based on various sources, including the results of
the monitoring, the Office of the Public Defender has found that
91 prisoners (1 woman and 90 men) died in Georgia in 2009...
As for the spread of tuberculosis and its effect on the
[prisoners’] death rate, it should be noted that tuberculosis
was found in 46 of the 91 deceased patients. As in previous years,
tuberculosis remains a major cause of death within Georgian
penitentiaries. Half of the prisoners
(50.54%) who died in 2009 had lung tuberculosis. The increase in the
proportion of prisoners infected with tuberculosis in the total
number of deceased prisoners has become a recurrent trend.
An increase in the number of extra-pulmonary forms of
tuberculosis in recent years should be regarded as being directly
caused by inadequate management of the tuberculosis infection. 13.18%
of the deceased prisoners were infected with the multi resistant
form of tuberculosis. Also, 19% of the deceased prisoners had
pneumonia (39% of those who died from tuberculosis). Among the causes
death in patients infected with tuberculosis, hemorrhagic shock and
acute anemia were the direct cause of death in a number of cases.
These, in their turn, were caused by bleeding from TB infected
lungs. Instances of pulmonary bleeding of varying intensities are
described in 9 forensic medical reports.
It should be mentioned that even the Medical
Establishment for Tubercular Convicts does not offer TB-surgery
services. Hence, such patients are, in fact, destined to die. TB
infection is often contracted at the same time as virus hepatitis and
human immunodeficiency virus...
The index of prisoners who died from the multi-resistant
form of tuberculosis was higher in the second half of 2009 than in
the first half. For this reason, we think it is necessary to enquire
into details of how the DOTS+ programme is progressing and to include
the country’s leading specialists and institutions in future
planning. Organisational errors are also frequent in the management
of tuberculosis.”
G. Guidelines for the Management of Drug-Resistant Tuberculosis
adopted by the World Health Organisation (WHO/TB/96.210)
In
1992 the World Health Organisation (“the WHO”) developed
a global strategy for treatment of ordinary tuberculosis, which was
called DOTS (Directly Observed Treatment, Short-course). In 1997 the
WHO extended the initial DOTS programme to include the treatment of
multi drug resistant forms of tuberculosis. To facilitate the
implementation of this new, extended programme, which was
subsequently called DOTS+, the WHO published in the same year
Guidelines for the Management of Drug-Resistant Tuberculosis. The
relevant excerpts from these Guidelines read as follows:
“FOREWORD
1. About one third of the world’s population is
infected by M. tuberculosis. Worldwide in 1995 there were about nine
million new cases of tuberculosis with three million deaths. M.
tuberculosis kills more people than any other single infectious
agent. Deaths from tuberculosis comprise 25% of all avoidable deaths
in developing countries. 95% of tuberculosis cases and 98% of
tuberculosis deaths are in developing countries; 75% of these cases
are in the economically productive age group (15 - 50 years).
2. As a consequence, the world is facing a much more
serious situation as we approach the twenty-first century than in the
mid-1950s. Due to demographic factors, socio-economic trends,
neglected tuberculosis control in many countries, and in addition,
the HIV epidemic, there are many more smear-positive pulmonary
tuberculosis cases, often undiagnosed and/or untreated. When
tuberculosis cases are treated, poor drug prescription and poor case
management are creating more tuberculosis patients excreting
resistant tubercle bacilli.
3. In 1991, the World Health Assembly adopted Resolution
WHO 44.8, recognizing “effective case management as the central
intervention for tuberculosis control”, and recommending the
strengthening of national tuberculosis programmes by introducing
short course chemotherapy and improving the treatment management
system.
Since 1992, the WHO Global Tuberculosis Programme has
developed a new strategy, to meet the needs of global tuberculosis
control. “DOTS” is the brand name of the WHO recommended
tuberculosis control strategy. ...
6. The issue of the treatment of those pulmonary
tuberculosis patients who remain sputum smear-positive following
fully supervised WHO retreatment regimen should be considered.
Although these cases represent a small minority of tuberculosis
patients, they constitute an ongoing problem for programme managers.
Due to the lack of financial resources, many countries
cannot provide the range of the expensive second-line drugs which
might give some hope of cure to these patients. However, more
economically prosperous countries might wish to do so, especially if
they have inherited a significant number of patients with multi drug
resistant (MDR) tuberculosis from a period when treatment was
unorganized and chaotic. Many countries also lack information about
the correct use of second-line drugs.
The WHO Tuberculosis Control Workshop held in Geneva,
October 1995, discussed this issue and recommended that a country
prepared to go to this expense should only provide these second-line
drugs for a specialised unit (or units in large countries), in
close connection with a laboratory able to carry out cultures
and reliable susceptibility tests of M. tuberculosis to the drugs.
The WHO Global Tuberculosis Programme has prepared these
“Guidelines for the Management of Drug-Resistant Tuberculosis”,
to meet the need for clear advice on this issue. ...
1.2 HOW IS MDR TUBERCULOSIS PRODUCED?
As with other forms of drug resistance, the phenomenon
of MDR tuberculosis is entirely man-made.
Drug resistant bacilli are the consequence of human
error in any of the following:
prescription
of chemotherapy;
management
of drug supply;
case
management;
process
of drug delivery to the patient.
The most common medical errors leading to the selection
of resistant bacilli are the following:
(a) the prescription of inadequate chemotherapy to the
multibacillary pulmonary tuberculosis cases (e.g. only 2 or 3 drugs
during the initial phase of treatment in a new smear-positive patient
with bacilli initially resistant to isoniazid);
(b) the addition of one extra drug in the case of
failure, and repeating the addition of a further drug when the
patient relapses after what amounts to monotherapy.
The most common errors observed in the management of
drug supply are the following:
(a) the difficulty experienced by poor patients in
obtaining all the drugs that they need (due to lack of financial
resources or social insurance);
(b) frequent or prolonged shortages of antituberculosis
drugs (due to poor management and/or financial constraints in
developing countries);
(c) use of drugs (or drug combinations) of unproven
bioavailability.
The following also have the effect of multiplying the
risk of successive monotherapies and selection of resistant bacilli:
(a) the patient’s lack of knowledge (due to a lack
of information or due to inadequate explanation before starting
treatment);
(b) poor case-management (when the treatment is not
directly observed, especially during the initial phase). ...
2.1 SPECIALISED UNIT
Treatment of patients with MDR tuberculosis (especially
those with resistance to rifampicin and isoniazid) may have to
involve “second line” reserve drugs. These are drugs
other than the “standard” essential antituberculosis
drugs, i.e. rifampicin (R), isoniazid (H),
streptomycin (S), ethambutol (E), pyrazinamide (Z),
thioacetazone (T). These reserve drugs are much more expensive, less
effective and have many more side effects than standard drugs. They
should only be made available to a specialised unit and not in the
free market. It is the responsibility of national health authorities
to establish strong pharmaceutical regulations to limit the use of
second-line reserve drugs in order to prevent the emergence of
incurable tuberculosis.
2.2 DESIGNING AN APPROPRIATE REGIMEN
Designing an appropriate regimen for the individual
patient needs experience and skill. It includes allocating the time
and patience to define precisely the following:
(a) which regimen(s) the patient had previously
received;
(b) whether the patient took all the drugs in each
regimen prescribed and for how long;
(c) to find out what happened bacteriologically, in
terms of sputum positivity (at least by direct smear, if possible
also by culture and susceptibility tests) during and after the
administration of each regimen. Clinical and radiological progress or
deterioration is much less reliable but may be used as a check on the
bacteriological results.
2.3 RELIABLE SUSCEPTIBILITY TESTING
The specialised unit must have the services of a
laboratory able to carry out culture and reliable tests for drug
resistance (to the essential drugs and also to second-line drugs).
The quality of the susceptibility tests carried out in
this laboratory should be regularly checked by another reference
laboratory at national or supranational level.
2.4 RELIABLE DRUG SUPPLIES
The unit must also be guaranteed reliable supplies of
the expensive “second line” reserve drugs, so as to
ensure that any treatment undertaken for an individual patient can be
successfully completed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 2 AND 3 OF THE CONVENTION
The
applicants complained that the respondent State had failed to protect
the first applicant’s health, physical well-being and life,
contrary to Articles 2 and 3 of the Convention. These provisions
read:
Article 2
“1. Everyone’s right to life
shall be protected by law. No one shall be deprived of his life
intentionally save in the execution of a sentence of a court
following his conviction of a crime for which this penalty is
provided by law.
2. Deprivation of life shall not be regarded
as inflicted in contravention of this article when it results from
the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful
violence;
(b) in order to effect a lawful arrest or to
prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose
of quelling a riot or insurrection.”
Article 3
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
The
Government submitted that the complaints under Articles 2 and 3
of the Convention were premature, as the second applicant had not
sought monetary compensation for the alleged lack of adequate medical
treatment for her husband and his resultant death 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 second applicant
should have sued the relevant State authority and requested
non-pecuniary damage under Article 413 of the Civil Code. Since she
had failed to do so, the application should be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
The
second applicant did not comment on this objection.
The
Court notes first that the second applicant may claim to be a victim
within the meaning of Article 34 of the Convention of the violations
alleged by and on behalf of her late husband under Articles 2 and 3
of the Convention (see, inter alia, Renolde v. France,
no. 5608/05, § 69, 16 October 2008; and Çelikbilek
v. Turkey (dec.), no. 27693/95, 22 June 1999).
As
regards the Government’s objection of non-exhaustion, the Court
considers that a decisive question in assessing the effectiveness of
a domestic remedy for a complaint under Articles 2 and 3 of the
Convention with regard to a lack of sufficient care for a suffering
applicant 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. Where the applicant has already resorted
to either of the available and relevant 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 Melnik
v. Ukraine, no. 72286/01, § 68 and 70, 28 March 2006).
Apart
from the fact that the inadequate monitoring and treatment of
prisoners suffering from serious contagious diseases, such as
tuberculosis, represented, at the material time, a structural problem
in the Georgian penitentiary system (see Poghosyan v. Georgia,
no. 9870/07, § 69, 24 February 2009; and Ghavtadze
v. Georgia, no. 23204/07, § 104, 3 March 2009), the
particular circumstances of the present case clearly show that the
prison administration was well aware of the first applicant’s
medical condition and of his persistent complaints about the 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 the proceedings for suspension of
his prison sentence on health grounds, the applicant also brought his
medical grievances before the penitentiary judges, clearly voicing
his fears for his life (see Dybeku v. Albania, no.
41153/06, § 28, 18 December 2007).
In
other words, at the most pertinent time, when the first applicant was
still alive and could personally care for his well-being, he did
everything reasonable to alert the relevant authorities with respect
to his multi-drug resistant tuberculosis, seeking a preventive
remedial action for the grievances alleged in the present
application. In such circumstances, it would be wholly
inappropriate, from the point of Article 35 § 1 of the
Convention, to reproach the second applicant for not having
requested, ex post factum, monetary compensation for the
State’s failure to protect her husband’s health and life.
Consequently, the Court dismisses the Government’s objection of
non-exhaustion.
Having
regard to the above considerations, the Court considers that the
applicants’ complaints under Articles 2 and 3 of the Convention
are not manifestly ill-founded within the meaning of Article 35 §
3 of the Convention. It further finds that they are not inadmissible
on any other grounds. They must therefore be declared admissible.
B. Merits
1. The Government’s submissions
The
Government submitted that the first applicant’s death should
not be imputed to the State, since the relevant domestic authorities
had provided him with all necessary medical assistance as available
at that time in the country. They claimed that there had been no lack
of due diligence on the part of the prison medical staff in dealing
with the applicant’s tuberculosis and that, consequently, his
death could not be said to have been the result of medical
negligence.
Referring
to the relevant excerpts from the first applicant’s medical
file, which disclosed that he had been a registered patient of
various civil tuberculosis hospitals in Georgia and Ukraine, the
Government emphasised that the first applicant had not contracted
tuberculosis in prison but, on the contrary, had been suffering from
that disease for more than sixteen years prior to the initiation of
the criminal proceedings against him in the present case on 16 March
2006 (see paragraph 5 above); at the time of his placement in
detention, the disease had already reached the dangerous stage of
infiltration and decomposition.
The
Government noted that, subsequent to his arrest and detention, the
applicant had stayed in an ordinary prison, Ksani prison no. 7, for a
total of only eleven days in March 2006, whilst the rest of his life
had been spent in prison medical establishments (see paragraphs 5, 8
and 9 and 33 above). Relying on his medical file, the Government
stated that, following his placement in the old prison hospital on 30
March 2006 the first applicant had been subjected to various
laboratory tests and other medical examinations (sputum, blood and
urine tests, electrocardiography, X-ray of the thorax and so on) and
was examined on a regular basis by various medical specialists
(phtisiologist, pulmonologist, cardiologist, neurologist,
otorhinolaryngologist and so on), including those invited by the
prison authorities from a civil tuberculosis hospital – the
National Centre for Tuberculosis and Lung Diseases. On the basis of
the results of those examinations, the first applicant was then
included in the DOTS programme (see paragraph 11 above) and started
receiving such conventional, first-line anti-tuberculosis agents as
isoniazid, ethambutol, rifampicin, pyrazinamide and streptomycin. In
addition, the applicant was provided with various hepatoprotector and
antioxidant drugs, vitamins, blood transfusions and so on. The prison
medical staff also ensured that the applicant received a special
diet.
The
Government further submitted that, in order to establish whether
treatment by the first-line anti-tuberculosis drugs was yielding any
positive results, the relevant mycobacterial sensitivity tests were
conducted in the laboratory of the old prison hospital on 26 June and
9 November 2006 and 22 June and 28 August 2007. Unfortunately, the
results of all those tests showed that the first applicant’s
mycobacterium proved to be steadily resistant to all the
above-mentioned first-line agents.
From
the first applicant’s medical file, the Government also
submitted the results of two additional, specific (susceptibility)
laboratory tests. The first test was conducted in a bacteriological
laboratory located in Heidelberg, Germany, on 24 September 2007. The
second was conducted in Georgia, in a laboratory of the National
Centre for Tuberculosis and Lung Diseases, a civil establishment, on
26 January 2009. The results of both tests showed that the
applicant’s mycobacterium retained sensitivity to and thus
could be cured by two types of SLDs – cycloserin and
p-aminosalicylic acid (“PAS”).
Excerpts
from the applicant’s medical file, accounting for his treatment
in the old prison hospital, further disclosed that, shortly after the
first SLD sensitivity test of 24 September 2007, a doctor prescribed
him a daily dosage of cycloserin and PAS on 8 October 2007. However,
the doctor then noted in his log that those SLDs were not available
in the country and thus could not be administered to the patient.
Indeed,
the Government confirmed, with reference to the relevant excerpts
from the applicant’s medical file, that he had started
receiving cycloserin and PAS only on 22 June 2008. The Government
further submitted that those drugs had been procured for the first
applicant by his family and that the prison authorities had never
objected. It was the first applicant himself who had gone on repeated
hunger strikes and refused the administration of those SLDs on three
occasions – from 22 October to 4 November 2008, from 5
November to 9 December 2008 and from 14 January 2009 until his
death. The Government argued that it was that self-harming behaviour
which had itself caused the fatal outcome, which could by no means be
imputed to the management of the old prison hospital. The Government
referred in this respect to the case of Đermanović v.
Serbia (no. 48497/06, § 59, 23 February 2010), in which
the Court refused to hold the State liable for a deterioration in the
applicant’s health condition which had been caused by the
latter’s own self-harming behaviour.
The
Government also submitted that the domestic courts, when examining
the applicant’s request for the suspension of his prison
sentence, had taken every possible measure in order to assess his
condition and the associated risks to his life. Thus, the domestic
courts heard the applicant and the prison administration as well as
various medical experts and the doctors treating the applicant in the
old prison hospital. Of particular importance for the Tbilisi Court
of Appeal was, according to the Government, the fact that the
applicant had started taking SLDs on 22 June 2008. Furthermore, in
matters of suspension of sentence/early release, the domestic courts
enjoyed, by virtue of Article 607 and 608 of the CCP, a large margin
of appreciation and made their decisions on a case-by-case basis.
Thus, in the applicant’s particular case, the domestic courts
took into account, according to the Government, such factors as the
applicant’s dangerousness for society (in view of the
established fact of his association with the criminal underworld) and
the record of his previous breaches of prison rules. With respect to
the latter argument, the Government provided the Court with a copy of
three administrative orders issued by the Head of the old prison
hospital on 3 and 11 October 2006 and 23 January 2007, reprimanding
the applicant for certain breaches of a minor nature.
The
Government further argued that, even had the domestic courts granted
the applicant’s request for the suspension of his sentence,
that would hardly have led to an improvement in his state of health,
since, at that time, the DOTS+ programme of treatment for
multi-resistant tuberculosis had not yet been introduced in the civil
sector either. In support of that argument, the Government submitted
an explanatory memo addressed by the Deputy Head of the Penitentiary
Department to the Government Agent on 16 April 2010. According to
that memo, the DOTS+ programme of treatment for multi-drug resistant
forms of pulmonary tuberculosis was introduced to the healthcare
system of Georgia on 17 March 2008. Thus, on that date Abastumani
Hospital, specialised in the treatment of tuberculosis, became the
first civil medical establishment to implement the programme.
Subsequently, in August 2008, the programme was introduced to another
civil medical establishment, the National Centre for Tuberculosis and
Lung Diseases. It was only in February and April 2009, the memo
continued, that the DOTS+ programme officially started to operate in
the penitentiary sector, namely in Ksani Prison, housing prisoners
with tuberculosis, and in the new prison hospital.
A
major reason for the delay in introducing the DOTS+ programme to
Georgian prisons was, as explained in the above-mentioned memo, a
lack of sufficient medical infrastructure in the penitentiary sector
in comparison to the civil healthcare system. In particular, the memo
continued, the proper management of multi-drug resistant tuberculosis
was significantly dependant on the existence of specially trained
medical staff. Thus, SLDs are known to be highly toxic and to have
serious side-effects, the management of which is always a challenge
even for experienced clinicians. The Deputy Head then explained to
the Government Agent that the first doctor and nurse of the prison
hospital received special training in the management of the
multi-drug resistant tuberculosis in February and April 2009
respectively; two other doctors from the prison hospital underwent
that training in June 2009.
At
the end of the memo, the Deputy Head confirmed to the Government
Agent that the applicant had been able to benefit from the necessary
SLDs since June 2008; those drugs had been procured for him by his
family. Assessing this fact against the above-mentioned chronology
for the introduction of the DOTS+ programme in the penitentiary
sector, the Deputy Head added that the prison authorities had lacked
the possibility to provide the applicant with those drugs, as, at
that time, such SLDs were available only in the two above-mentioned
civil tuberculosis hospitals, the National Centre for Tuberculosis
and Drug Diseases and Abastumani Hospital.
Lastly,
as further proof of the claim that the first applicant’s death
was not the result of medical negligence, the Government also
submitted an explanatory memo issued on 16 April 2010 by the doctor
who had been treating the applicant in prison, Dr T.J. (see paragraph
29 above). The doctor, after accounting in detail for all the medical
tests, consultations by the relevant medical specialists and the
dosages of various drugs administered to the applicant in the prison
hospitals, stated that the main cause of the applicant’s death
had been the three instances of his going on hunger strike and the
refusal to take the SLDs, and not medical negligence. The doctor then
added:
“In prison, [the applicant] received adequate
medical treatment with the SLDs, which maintained their sensitivity
with respect to his tuberculosis, for four months only. Therefore,
given that short period of effective treatment for his
multi-resistant form of tuberculosis, it was not possible to foresee,
in the course of the treatment, a positive outcome. At the end of
those four months, the applicant ceased taking the medication of his
own will and went on multiple hunger strikes, which caused a drastic
deterioration in his general condition...”
2. The applicant’s submissions
In
reply, the second applicant simply maintained, without giving any new
argument or submitting additional evidence, that her husband had died
as a result of the lack of due care in prison. She added that her
husband’s decision to go on hunger strike had been determined
by the State’s failure to provide him with the requisite
anti-tuberculosis treatment. In particular, he should have been
transferred to a civil tuberculosis hospital in due time.
3. The Court’s assessment
Having
regard to the circumstances of the present case, in particular to the
first applicant’s death caused by tuberculosis, the Court will
first examine the complaint about the lack of medical care in prison
under Article 2 of the Convention (see Gagiu v. Romania, no.
63258/00, § 54, 24 February 2009; and Geppa v.
Russia, no. 8532/06, § 74, 3 February 2011). It will then
consider whether an additional examination under Article 3 of
the Convention is required.
(a) General principles under Article 2 of the
Convention
In the light of the importance of the protection
afforded by Article 2 of the Convention, the Court must subject
deprivations of life to the most careful scrutiny, taking into
consideration not only the actions of State agents but also all the
surrounding circumstances. Persons in custody are in a vulnerable
position and the authorities are under a duty to protect them. In
particular, the national authorities have an obligation to protect
the health and well-being of persons who have been deprived of their
liberty (see Naumenko v. Ukraine, no. 42023/98, § 112,
10 February 2004; and Dzieciak v. Poland, no. 77766/01, §
91, 9 December 2008). The obligation to protect the life of
individuals in custody also implies an obligation for the authorities
to provide them with the medical care necessary to safeguard their
life (see Taïs v. France, no. 39922/03, § 98,
1 June 2006; and Huylu v. Turkey, no. 52955/99, §
58, 16 November 2006).
Furthermore, the authorities must account for the
treatment of persons deprived of their liberty. A sharp deterioration
in a person’s state of health in detention facilities
inevitably raises serious doubts as to the adequacy of medical
treatment there (see Farbtuhs v. Latvia, no. 4672/02,
§ 57, 2 December 2004; and Khudobin v. Russia, no.
59696/00, § 84, ECHR 2006 XII (extracts)). Thus,
where a detainee dies as a result of a health problem, the State must
offer a reasonable explanation as to the cause of death and the
treatment administered to the person concerned prior to his or her
death (see Kats and Others v. Ukraine, no. 29971/04, § 104,
18 December 2008).
In addition, the positive obligations under Article 2
of the Convention require States to make regulations compelling
hospitals, whether civil or prison, to adopt appropriate measures for
the protection of patients’ lives (see Tarariyeva v. Russia,
no. 4353/03, § 74, 85 and 87, ECHR 2006 XV
(extracts)). They also require an effective independent judicial
system to be set up so that the cause of death of patients in the
care of the medical profession can be determined and those
responsible made accountable (see Vo v. France [GC],
no. 53924/00, § 89, ECHR 2004-VIII; and Calvelli
and Ciglio v. Italy [GC], no. 32967/96, § 49, ECHR
2002-I). Where a hospital is a public institution, the acts and
omissions of its medical staff are capable of engaging the
responsibility of the respondent State under the Convention (see
Glass v. the United Kingdom, no. 61827/00, § 71,
ECHR 2004-II).
(b) Application of these principles to the present
case
The
Court notes that the first applicant died in prison from pulmonary
tuberculosis. In order to establish whether or not the respondent
State complied with its obligation of protection of life under
Article 2 of the Convention, the Court must examine whether the
relevant domestic authorities did everything reasonably possible, in
good faith and in a timely manner, to try to avert the fatal outcome
(see Renolde, cited above, § 85). Another, no less
important question is whether the respondent State sufficiently
accounted for the cause of the applicant’s death in prison (see
Tsintsabadze v. Georgia, no. 35403/06, § 95, 15 February
2011).
i. As to whether the State took all reasonable
measures to treat the applicant effectively in prison
The
Court’s first observation is that the contamination of the
first applicant by tuberculosis cannot, as such, be linked to the
fact of his stay in Georgian prisons in the present case, and thus be
arguably imputed to the State (cf., I.T. v. Romania (dec.),
no. 40155/02, 24 November 2005, and, compare, a contrario,
with Melnik, cited above, § 105; and Hummatov,
also cited above, § 108). Indeed, the applicant was already
suffering from the disease for more than sixteen years at the time of
initiation of the criminal proceedings and his consequent placement
in detention. Nor do the available medical documents suggest that the
mutation of the ordinary tuberculosis bacillus to the multi-drug
resistant form, which transformation is often the result of medical
mismanagement (see the Guidelines for the Management of
Drug-Resistant Tuberculosis (“the Guidelines”) at
paragraph 48 above), occurred in prison.
The
Court also notes that, shortly after the prison authorities had noted
the deterioration in the applicant’s state of health, they
transferred him to the old prison hospital. Nor can it be overlooked
that, as was also emphasised by the Government, out of the entire
period of his detention, the ill applicant had stayed in an ordinary
prison for only eleven days, spending the rest of his life in prison
medical establishments. Having duly examined the applicant’s
medical file, the Court further notes that, during his stay in those
establishments, the applicant was regularly examined by various
doctors, subjected to various screening and laboratory tests,
provided with conventional anti-tuberculosis agents under the DOTS
treatment programme, an appropriate diet for his condition,
antioxidant drugs, vitamins, blood transfusions and so on (see
paragraph 59 above).
Consequently,
it cannot be said that the respondent State left the ill applicant
unattended. However, the question remains whether the State’s
response to the applicant’s disease also proved to be an
effective one, in other words whether the treatment administered to
the applicant by the prison authorities was adequate to his
particular condition (see Holomiov v. Moldova, no.
30649/05, § 115, 7 November 2006). Indeed, the core issue of the
present application is not the absence of medical care in general,
but rather the alleged lack of adequate treatment for a very
particular type of disease which caused the applicant’s death,
namely multi-drug resistant tuberculosis. The Court is mindful of the
fact that the adequacy of medical assistance is always the most
difficult element to determine. In this task, the Court must reserve,
in general, sufficient flexibility, defining the required standard of
health care, which must accommodate legitimate demands of
imprisonment but remain compatible with the human dignity and the due
discharge of its positive obligations by the State, on a case-by-case
basis (see Aleksanyan v. Russia, no. 46468/06, § 140,
22 December 2008).
Having
due regard to the Guidelines (see paragraph 48 above), the Court
notes that effective treatment of multi-drug resistant tuberculosis,
which is a specialised and complex medical enterprise, depends on the
existence of at least three basic elements, namely:
i.
unlimited access to well-equipped bacteriological
laboratories which, based on the relevant specific tests (smear,
culture and susceptibility), can provide early and accurate diagnosis
so that treatment with the relevant second-line anti-tuberculosis
drugs can start as soon as possible;
ii.
the availability of all six classes of second-line drugs in stock, so
as to ensure that any treatment undertaken for an individual patient
can be completed; and
iii.
the clinicians who are in charge of administering the relevant SLDs
must possess special proficiency in treating multi-drug resistant
tuberculosis, so as to be able to monitor the complex and
multifaceted process of treatment.
79. As
regards the first element necessary for effective treatment of
multi-drug resistant tuberculosis, the Court observes that at least
by 26 June 2006 the relevant authorities already knew that the
applicant’s Koch’s bacillus proved to be resistant with
respect to the conventional first line anti tuberculosis
drugs, and was thus not curable by them (see paragraph 60
above). Consequently, the authorities should have immediately
arranged for the necessary susceptibility laboratory tests in order
to verify the sensitivity of his mycobacterium with respect to SLDs.
However, according to the applicant’s medical file, the first
such test took place more than a year later, on 24 September
2007 (see paragraph 61 above). The Government have not provided any
justification for that long delay in the conduct of the test, which
was of vital importance for the accurate diagnosis and the consequent
design of an individually appropriate medication regimen for the
applicant.
80. The
significance of that susceptibility test for the commencement of
effective treatment becomes even more conspicuous when assessed
against the fact that its results turned to be encouraging, as they
established the sensitivity of the applicant’s mycobacterium
with respect to two SLDs – cycloserin and PAS. The doctor
treating the applicant in prison even formally prescribed him, on 8
October 2007, a daily dose of those drugs. However, the prescribed
treatment did not start immediately, apparently due to a shortage of
those drugs in the country. It was only seven months later, in June
2008, that the applicant started finally receiving the SLDs (see
paragraphs 29 and 63 above). The Court reiterates in this connection
that when necessary medicines are unavailable the overall quality of
medical assistance is called into question, all
the more so, if, as in the present case, such a pharmaceutical
shortage has directly deleterious effects on the applicant’s
state of health (see Pitalev v. Russia, no. 34393/03, §
57, 30 July 2009; and Mirilashvili v. Russia (dec.), no.
6293/04, 10 July 2007).
As
regards the question of whether the medical staff supervising the
applicant’s treatment in the prison hospitals possessed the
requisite expertise in the management of multi-drug resistant
tuberculosis, which is another element constitutive of effective
treatment, the answer is negative. Thus, the Government acknowledged
themselves that the DOTS+ programme, which provided for preliminary
special training of doctors and nurses, had been introduced in the
new prison hospital as late as April 2009 (see paragraph 65 above),
that is, three months after the applicant’s death. In other
words, the clinicians in charge of the applicant’s case could
not have possessed all the necessary skills at the time of his
treatment. However, it is a well-known fact, acknowledged in the
present case by the prison authorities themselves, that complex
medical treatment of multi-drug resistant tuberculosis requires
constant supervision by adequately trained clinicians, and taking
second-line drugs without such supervision may cause more harm than
good (see paragraph 66 above). Thus, the Court observes that such
drugs are extremely toxic and can cause a range of
serious side effects, including hepatitis, depression,
hallucinations and other types of personality disorders, and it is
consequently imperative that the clinicians monitoring the treatment
be already experienced in that respect, aware of all the risk factors
and undertake measures aimed at the reduction of those risks
(see the Guidelines, paragraph 48 above).
In
reply to the Government’s argument about the first applicant’s
hunger strikes (see paragraphs 63 and 68 above), the Court confirms
that if a deterioration in a detainee’s health condition is
caused by his going on hunger strike and/or refusing to accept
treatment, this deterioration cannot then automatically be held
imputable to the authorities (see Đermanović, cited
above, § 59). However, the Court, sharing the principles
expressed by the World Medical Association (“the WMA”)
(see the Declaration of Malta on Hunger Strikes, adopted by the 43rd
Wold Medical Assembly in November 1991, subsequently revised by the
57th WMA General Assembly in October 2006), also considers
that the prison authorities may not be totally absolved of their
positive obligations in such difficult situations (see Renolde,
cited above, §§ 81-83, 98, 104 and 105), passively
contemplating the fasting detainee’s demise.
In
particular, since a detainee’s decision regarding a hunger
strike can be momentous, the prison clinicians must ensure full
patient understanding of the medical consequences, verifying, inter
alia, that that decision to fast is truly voluntary and does not
result from a mental impairment of the detainee or any other outside
pressure. No less important is continuing communication between the
clinicians and the patient during the strike, when the former verify
on a daily basis the validity of the detainee’s wish to abstain
from taking food. It is also crucial, in the Court’s opinion,
to ascertain the true intention of and real reasons for the
detainee’s protest, and if those reasons are not purely
whimsical but, on the contrary, denounce serious medical
mismanagement, the competent authorities must show due diligence by
immediately starting negotiations with the striker with the aim of
finding a suitable arrangement, subject, of course, to the
restrictions that the legitimate demands of imprisonment may impose
(see, mutatis mutandis, Holomiov, cited above, §
119).
Having
regard to the circumstances of the present case and to the
applicant’s medical file, the Court is satisfied that the
clinicians in the prison hospital warned the first applicant that his
strike could entail a deterioration in his health at its outset, and
then continued to remind him of the danger on a daily basis. However,
the Court cannot discern from the medical file whether relevant
medical specialists ever attempted to enquire if the applicant’s
conduct might have been conditioned by, for instance, SLD-caused
mental relapses, thus necessitating the relevant psychological or
psychiatric feedback. The Court further notes that the main reason of
the applicant’s first hunger strike in October 2008 was the
authorities’ unjustified refusal to conduct his additional
medical examination, to which measure he had been fully entitled by
the Tbilisi Court of Appeal’s final and enforceable decision of
25 September 2008. Then, as regards his second hunger strike in
November 2008, the main reason for it was the authorities’
failure to implement the medical recommendations of
31 October-7 November 2008 by transferring him to a
specialised tuberculosis hospital. In the light of the foregoing, the
Court considers that the applicant’s reasons for his protest,
whereby he requested something which the medical experts had
prescribed him, could not be said to have been whimsical. On the
contrary, it is yet another sign of the inadequacy of medical care
when the prison authorities refuse to implement a qualified medical
recommendation (see, for instance, Sławomir Musiał,
cited above, § 92; Sarban v. Moldova, no. 3456/05, §
84, 4 October 2005; Holomiov, cited above, § 117; and
Hummatov, cited above, § 116). It should be noted in this
regard that, at the material time, two civil hospitals – the
National Centre for Lung Diseases and Abastumani Hospital –
represented specialised medical units running the DOTS+ programme and
were thus fit for treatment of multi-drug resistant tuberculosis (see
paragraph 66 above). That being so, the Court considers the domestic
authorities’ failure to have recourse to those specialised
medical facilities was reproachable (see Akhmetov v. Russia,
no. 37463/04, § 81, 1 April 2010).
Lastly,
reiterating that in an exceptional situation a conditional release of
a seriously ill prisoner may be required under the Convention (see,
amongst many others, Aleksanyan, cited above; and Papon v.
France (no. 1) (dec.), no. 64666/01, ECHR 2001 VI),
the Court cannot avoid the question of addressing the domestic
courts’ position in the proceedings concerning the suspension
of the applicant’s sentence. Thus, the Court observes that the
applicant’s type of tuberculosis constituted a ground for his
conditional release pending treatment (see paragraphs 15, 40 and 41
above). Obviously, it was not an absolute ground for release, and the
penitentiary judges maintained their discretionary power in the
examination of the issue.
However,
the Court notes that the domestic decisions did not properly address
any of the relevant elements of the compatibility of an ill
prisoner’s continued detention with his or her state of health.
Thus, the Court notes that both the Tbilisi City Court and the
Tbilisi Court of Appeal turned a blind eye to the exceptional gravity
of the applicant’s condition which, according to the qualified
medical experts, was deteriorating in prison conditions, and to the
consequent fact that the medical assistance dispensed in prison
appeared to be incapable of fighting his tuberculosis (compare with,
for instance, Mouisel v. France, no. 67263/01, § 40-42,
ECHR 2002 IX). Nor did the domestic courts address the
advisability of the continued detention in the light of any other
legitimate considerations. Thus, whilst the Government claimed in
their observations that the applicant could not have been released
due to his allegedly high dangerousness for society and breach of
certain prison rules, the Court notes that those particular reasons
were never mentioned in the decisions of the domestic courts.
Consequently, the Court cannot accept the respondent Government’s
justifications, which were invoked for the first time in the
proceedings before it (see, a contrario, Sakkopoulos v.
Greece, no. 61828/00, § 44, 15 January 2004; and
Sarban, cited above, § 82).
ii. As to whether the State has sufficiently
accounted for the first applicant’s death in prison
The
Court is concerned that, as can be inferred from the Government’s
submissions, no adequate enquiry was conducted into the cause of
death of the first applicant. However it is one of the cornerstone
principles under Article 2 of the Convention with respect to such
similar medical cases that, when a detainee dies from an illness, the
authorities must of their own motion and with due expedition open an
official probe in order to establish whether medical negligence might
have been at stake (see, amongst many other authorities, Tarariyeva,
cited above, §§ 74-75 and 103; Gagiu, cited above, §
68; and Kats and Others, cited above, §§ 116 and
120). This obligation does not mean that recourse to the criminal law
is always required; under certain circumstances, an investigation
conducted in the course of disciplinary proceedings would suffice
(see Mastromatteo v. Italy [GC], no. 37703/97, § 90,
ECHR 2002 VIII). However, in the present case, despite the fact
that the applicant died in the prison hospital, which is a public
institution directly engaging the State’s responsibility, the
issue of the individual responsibility of the clinicians in charge of
the applicant’s treatment was never, according to the case
file, subjected to an independent, impartial and comprehensive
enquiry.
Instead
of submitting the results of such a meaningful probe, the Government
limited themselves to providing the Court with the explanatory memos
from the Head of the Penitentiary Department, which authority was
directly in charge of the prison hospital, and of the doctor who had
been treating the applicant in that hospital. However, since those
very persons were, by virtue of their functions, directly responsible
for the quality of the treatment provided to the applicant in prison,
their memos, in which the cause of death was attributed to the
applicant’s own conduct, clearly cannot be accepted by the
Court as a reliable and sufficient account of the applicant’s
death.
In
other words, the respondent State, in addition to all the
above mentioned deficiencies in the treatment of the applicant,
has also failed to account sufficiently for his death. This is a
serious omission as, apart from the concern for the respect of the
rights inherent in Article 2 of the Convention in each individual
case, important public interests are at stake. Notably, the knowledge
of the facts and of possible errors committed in the course of
medical care are essential to enable the institutions concerned and
medical staff to remedy the potential deficiencies and prevent
similar errors (see Byrzykowski v. Poland, no. 11562/05,
§ 117, 27 June 2006).
iii. Conclusion
Having
regard to the particular circumstances of the present case, the Court
considers that the respondent State cannot be said to have undertaken
in a timely manner adequate measures in order to prevent the lethal
outcome in the case of the first applicant, who was suffering from
the multi drug resistant form of tuberculosis in prison. Thus,
the State failed to ensure timely access to the relevant
susceptibility laboratory tests, which were indispensable for early
and accurate diagnosis and planning of a drug regimen necessary for
effective treatment of the applicant’s type of mycobacterium.
Nor did the State take measures to provide the applicant with the
SLDs which appeared to be capable of fighting his disease, shifting
that vital aspect of effective treatment onto the applicant. Of
further concern is that, even after the applicant’s family had
finally obtained the necessary anti-tuberculosis drugs, the State did
not ensure that the administration of those drugs occurred under the
strict monitoring of specially trained clinicians. The Court notes
with concern that all those omissions were due to the fact that,
despite the threatening magnitude of the problem of the transmission
of multi-drug resistant forms of tuberculosis and the associated high
rate of mortality in Georgian prisons, which has prevailed in the
country for many years, the relevant State authorities did not begin
implementation of the standard general health-care measures
– outlined by the WHO as far back as
1997 –
until March 2008 (see paragraphs 46-48 and 65 above).
This mismanagement by the State in the medical sphere, which directly
resulted in or contributed to the death of the first applicant,
cannot be justified, under Article 2 of the Convention, by a lack of
resources (see, mutatis mutandis, Dybeku, cited above,
§ 50).
The
Court further considers that at least some of the above mentioned
omissions could have been solved in a more timely manner by allowing
the first applicant’s placement in one of the two civil
hospitals specialised in treatment of tuberculosis, where the DOTS+
programme had been introduced earlier than in the penitentiary, or by
ordering the first applicant’s conditional release pending full
or partial recovery. None of those possibilities were employed by the
respondent State. However, the Court reiterates that whenever
authorities decide to place and maintain a seriously ill person in
detention, they must demonstrate special care in guaranteeing such
conditions of detention as correspond to his special needs resulting
from his illness (see Farbtuhs, cited above, § 56; Isayev
v. Ukraine, no. 28827/02, § 20756/04, 28 May
2009). Another serious omission was the State’s failure to
account sufficiently, by conducting an independent and comprehensive
probe, for the cause of the first applicant’s death.
All
in all, even if some of the above-mentioned deficiencies would not
alone have been sufficient for a finding of inadequate discharge by
the State of its positive obligation to protect the first applicant’s
health and life in prison, the Court considers that their coexistence
and cumulative effect is more than enough in this regard.
It
follows that there has been a violation of Article 2 of the
Convention on account of the respondent State’s failure to
protect the first applicant’s life in prison.
(c) As regards the complaint under Article 3 of the
Convention
Having
regard to the findings relating to Article 2 of the Convention (see
paragraphs 90-93 above), the Court considers that it is not necessary
to examine whether, in this case, there has been a violation of
Article 3 on account of the respondent State’s failure to
provide the first applicant with adequate medical care in prison
(see, among other authorities, Geppa, cited above, § 99).
II. COMPLIANCE WITH ARTICLE 34 OF THE CONVENTION
In
his correspondence with the Court concerning the implementation of
the medical interim measure indicated by the Court under Rule 39 of
the Rules of Court on 10 November 2008, the first applicant alleged
that the respondent State failed to execute that measure. After his
death, the second applicant maintained this grievance, complaining
that the Government’s refusal to transfer her husband to a
specialised hospital had contributed to his death.
Article
34 of the Convention provides:
“The Court may receive applications from any
person, non-governmental organisation or group of individuals
claiming to be the victim of a violation by one of the High
Contracting Parties of the rights set forth in the Convention or the
Protocols thereto. The High Contracting Parties undertake not to
hinder in any way the effective exercise of this right.”
A. The parties’ arguments
The
Government did not dispute that the medical interim measure indicated
by the Court on 10 November 2008 had not been executed. However, they
stated that the non-implementation of that measure was the only
possibility to save the first applicant’s life. In support of
that statement, the Government referred to the arguments which they
had submitted to the Court on 1 December 2008 (see paragraphs 36-38
above). They added that, since the DOTS+ treatment programme had been
introduced in the National Centre for Tuberculosis and Lung Diseases
in August 2008, the applicant’s transfer there would not
necessarily have resulted in his immediate involvement in that
programme, as many other civil patients had already been on the
waiting list. The Government also reiterated that, at the time of the
indication of the interim measure, the first applicant had already
benefited from the intake of the relevant SLDs in the prison
hospital.
The
second applicant maintained that the Government’s failure to
transfer her husband to a specialised hospital had contributed to the
fatal outcome.
B. The Court’s assessment
1. General principles
98. The Court reiterates
that Article 34 can be breached if the authorities of a
Contracting State failed to take all steps which could reasonably
have been taken in order to comply with the interim measure indicated
by the Court under Rule 39 of the Rules of Court (see Mamatkulov
and Askarov v. Turkey
([GC], nos. 46827/99 and 46951/99, § 92 et seq., ECHR
2005-...) Where there is plausibly asserted to be a
risk of irreparable damage to the enjoyment by the applicant of one
of the core rights under the Convention, the object of an interim
measure is to preserve and protect the rights and interests of the
parties in a dispute before the Court, pending the final decision. It
follows from the very nature of interim measures that a decision on
whether they should be indicated in a given case will often have to
be made within a very short lapse of time, with a view to preventing
imminent potential harm from being done. Consequently, the full facts
of the case will often remain undetermined until the Court’s
judgment on the merits of the complaint to which the measure is
related. It is precisely for the purpose of preserving the Court’s
ability to render such a judgment after an effective examination of
the complaint that such measures are indicated. Until that time, it
may be unavoidable for the Court to indicate interim measures on the
basis of facts which, despite making a prima facie case in
favour of such measures, are subsequently added to or challenged to
the point of calling into question the measures’ justification
(see Paladi v. Moldova [GC], no. 39806/05, § 89,
ECHR 2009 ...).
Consequently,
it is not open to a Contracting State to substitute its own judgment
for that of the Court in verifying whether or not there existed a
real risk of immediate and irreparable damage to an applicant at the
time when the interim measure was indicated. Neither is it for the
domestic authorities to decide on the time-limits for complying with
an interim measure or on the extent to which it should be complied
with. It is for the Court to verify compliance with the interim
measure, while a State which considers that it is in possession of
materials capable of convincing the Court to annul the interim
measure should inform the Court accordingly. In examining a complaint
under Article 34 concerning the alleged failure of a Contracting
State to comply with an interim measure, the Court will therefore not
re-examine whether its decision to apply interim measures was
correct. It is for the respondent Government to demonstrate to the
Court that the interim measure was complied with or, in an
exceptional case, that there was an objective impediment which
prevented compliance and that the Government took all reasonable
steps to remove the impediment and to keep the Court informed about
the situation (see Olaechea Cahuas v. Spain,
no. 24668/03, § 70, ECHR 2006 X (extracts); and
Paladi, cited above, §§ 90 and 91).
2. Application of these principles to the present case
The
Court considers that the point of departure for verifying whether the
respondent State has complied with the measure is the formulation of
the interim measure itself (see Paladi, cited above, §
91). Notably, it notes that on 10 November 2008 the Government was
indicated under Rule 39 of the Rules of Court, to place the first
applicant, who was staying in the new prison hospital at that time,
in a specialised medical establishment capable of dispensing
appropriate anti-tuberculosis treatment.
As
disclosed by the formulation of that measure, the Court did not order
that the applicant should necessarily have been transferred to a
civil hospital. Rather, the major qualifying element of the measure
was for a medical establishment in question, whether in the civil or
penitentiary sector, to be specialised in treatment of
tuberculosis. Consequently, a legitimate question arises as to
whether the new prison hospital could have represented, at the
material time, such a specialised medical unit (see Aleksanyan,
cited above, § 230). However, the response is negative, since,
as was already established above, that hospital did not possess
either the necessary laboratory equipment or the second-line
anti-tuberculosis drugs, and, most importantly, its medical staff did
not possess, at the material time, the necessary skills for the
management of complex treatment of multi-drug resistant forms of
tuberculosis. All those serious deficiencies of the prison hospital
were or should have been known to the respondent Government, as the
qualified medical experts had denounced on several occasions the
adequacy of the treatment dispensed to the applicant in the
penitentiary sector, noting his rapid decline and equally
recommending his transfer to a hospital specialised in
tuberculosis treatment (see paragraphs 13, 15, 25 and 29 above).
Another
question is whether there could have been an objective impediment
preventing the applicant’s transfer to an establishment
specialised in tuberculosis treatment, and if so, whether the
Government took all reasonable steps to remove that impediment in due
time (see Grori v. Albania, no. 25336/04, § 188, 7
July 2009). In the particular circumstances, the Court considers the
only possible objective impediment to the fulfilment of the measure
in question could have been the absence of such a specialised
establishment in Georgia at the material time. However, referring
again to its relevant findings above, the Court notes that, at the
time of the indication of the interim measure of 10 November 2008,
two tuberculosis hospitals in the civil sector – the National
Centre for Tuberculosis and Lung Diseases and Abastumani Hospital –
were already running the DOTS+ programme, which necessarily implied
that those hospitals possessed by that time both the required medical
equipment and specially trained clinicians. Thus, it was objectively
possible to place the applicant in either of these two civil
tuberculosis hospitals. Indeed, it should be only natural for the
State authorities, and might be even directly required under the
Convention, to resort to a specialised medical facility in the civil
sector, when a detainee’s health condition is critical and no
comparable medical assistance is available in the penitentiary sector
(see, for instance, Aleksanyan, cited above, §§
155-157, and Akhmetov, cited above, § 81).
As
to the Government’s claim that the first applicant would not
have received the urgent treatment in the National Centre for
Tuberculosis and Lung Diseases because of the
long waiting list of other patients (see paragraph 96 above), the
Court would remind the Government that if such an impediment had
emerged, given the exceptional gravity of the applicant’s
condition, it would then have been incumbent
upon the relevant State authorities, under Article 34 of the
Convention, to undertake all the necessary measures to remove that
impediment immediately. In particular, the waiting list of patients
with tuberculosis in need of the relevant treatment should
normally be managed in order of clinical priority. In the first
applicant’s situation, as was clearly suggested by medical
experts at domestic level, the preservation of his health and life
was contingent on his placement in a specialised tuberculosis
hospital (see paragraph 101 above for further cross-references).
In
the light of the above considerations, the Court concludes that the
Government have not shown that there was any objective impediment to
compliance with the interim measure indicated to the respondent State
in the present case.
Accordingly,
there has been a violation of Article 34 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the first applicant complained, under Articles 5 § 1 (c),
6 § 1 and 14 of the Convention about the unlawfulness
of his pre-trial detention and challenged the outcome of the criminal
proceedings against him and of the proceedings aimed at the
suspension of his prison sentence.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
second applicant claimed 1,000,000 euros (EUR) in respect of
non-pecuniary damage.
The
Government argued that the amount claimed was excessive.
Having
regard to its conclusions under Article 2 of the Convention, the
Court has no doubt that the applicants suffered distress and
frustration on account of the respondent State’s failure to
protect the first applicant’s health and life in prison. Making
its assessment on an equitable basis, the Court awards the second
applicant, Mrs Dali Sikharulidze, EUR 15,000 under this
head.
B. Costs and expenses
In
the absence of a claim for costs and expenses, the Court notes that
there is no call to make any award under this head.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints under Articles 2
and 3 of the Convention admissible and the remainder of the
application inadmissible;
Holds that there has been a violation of Article
2 of the Convention;
Holds that there is no need to examine
separately the complaint under Article 3 of the Convention;
Holds that there has been a violation of Article
34 of the Convention;
Holds
(a) that
the respondent State is to pay the second applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention,
EUR 15,000 (fifteen thousand euros), plus any tax that may
be chargeable, in respect of non pecuniary damage, to be
converted into the national currency of the respondent State at the
rate applicable at the date of settlement;
(b) that
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;
Dismisses the remainder of the second
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 22 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules
of Court.
Marialena Tsirli Josep Casadevall
Deputy Registrar President
