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Cite as: [2012] ECHR 735

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THIRD SECTION

DECISION

Application no. 42270/10
Mamuka KOTCHLAMAZASHVILI
against Georgia

The European Court of Human Rights (Third Section), sitting on 3 April 2012 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Egbert Myjer,
Ján Šikuta,
Ineta Ziemele,
Nona Tsotsoria,
Kristina Pardalos, judges,

and Marialena Tsirli, Deputy Section Registrar,

Having regard to the above application lodged on 19 July 2010,

Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court,

Having regard to the observations submitted by the respondent Government and the applicant’s letter of 21 October 2011,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Mamuka Kotchlamazashvili, is a Georgian national who was born in 1971. He was represented before the Court by Mr Mamuka Nozadze, a lawyer practising in Gori. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice.

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

A. As the case stood prior to the applicant’s request for withdrawal

On 28 July 2010 the Court decided to indicate to the respondent Government under Rule 39 of the Rules of Court that the applicant be placed in a medical establishment capable of dispensing adequate medical care for his acquired immune deficiency syndrome (AIDS), pulmonary tuberculosis and viral hepatitis C (HCV).

On 24 August 2010 the Court gave notice to the respondent Government of the applicant’s complaints under Articles 2 and 3 of the Convention concerning his alleged contraction of the above-mentioned diseases in prison, the respondent State’s subsequent inability to provide him with adequate treatment and the incompatibility of the conditions of the applicant’s detention with his state of health.

On 16 December 2010 the Government submitted their observations on the admissibility and merits of the case, reporting, inter alia, on the medical treatment dispensed to the applicant both before and after the Court’s intervention. In particular, it appeared that the applicant had been receiving anti-tuberculosis treatment with the relevant antibiotic drugs 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) since 10 February 2010. As a result of that treatment, which was successfully completed in October 2010, the applicant was cured from tuberculosis. As regards the applicant’s AIDS, the disease being in B3 category, and his HCV, the Government submitted medical records confirming that he had been duly receiving the requisite antiretroviral drugs on an inpatient basis in the prison hospital.

On 21 October 2011 the applicant personally informed the Court that he wished to withdraw his application. He confirmed that the relevant domestic authorities had started providing him with adequate treatment for his various diseases.

B. Subsequent proceedings

On 16 November 2011 the Government, commenting on the applicant’s request for withdrawal, reiterated that, as confirmed by the results of the recent sputum and blood tests and X-ray screening conducted on 18 August, 24 and 31 October 2011, he had been fully cured from tuberculosis in prison.

As regards the applicant’s AIDS, which was still in category B3, the Government reported that the applicant was permanently administered, in the prison hospital, such agents as Lamivudin, Zidovudin and Efaverinz, which formed part of the relevant antiretroviral treatment (HAART). Furthermore, he was regularly subjected to comprehensive medical check ups and blood tests at the AIDS and Immune Scientific Research Centre, a civilian medical institution, with the latest one having been conducted on 19 September 2011, which allowed for the permanent monitoring by medical specialists of the number of lymphocytes and viral activity in the applicant’s blood so that his antiretroviral treatment could be adjusted, if necessary.

Lastly, the Government submitted that, as confirmed by the results of the relevant biochemical analysis of the applicant’s blood samples which was conducted on 9 November 2011, the pathological activity of his HCV significantly reduced, thus no longer posing a risk of cirrhosis of liver.

The Government thus assured the Court that the treatment dispensed to the applicant in prison fully corresponded to the requirements of Article 3 of the Convention and that his request for withdrawal was legitimate.

On 28 November 2011 the applicant’s representative, Mr Mamuka Nozadze, objected, on behalf of his client, to the withdrawal of the application. The representative declared that his client had actually been forced by the prison authority to write the request for withdrawal under threat of physical violence.

By a letter of 6 December 2011, the Court sent the representative’s objection to the Government for comments and also invited the applicant and Mr Nozadze to clarify whether or not they had discussed the matter with each other before submitting the above-mentioned objection; the Court specified that the applicant should submit his comments in person.

On 8 December 2011 the Government Agent invited Mr Nozadze, in the light of the Court’s instruction of 6 December 2011, to visit the applicant in prison together, so that the matter could be discussed in each other’s presence transparently, and so that the applicant’s real position on the issue of the withdrawal of his application could be discovered.

Turning down the Government Agent’s offer, Mr Nozadze visited the applicant in private in the prison hospital on 13 December 2011, during which meeting the two of them got, as their subsequent written statements disclosed (see paragraphs 15 and 17 below), into a verbal altercation with each other.

Notably, in a letter of 20 December 2012, Mr Nozadze reported to the Court that his client had confirmed to him, although in a surprisingly aggressive manner, his wish to desist from the proceedings before the Court during the meeting of 13 December 2011.

The Government commented, on 2 January 2012, that Mr Nozadze had clearly exceeded his powers of representation by making deliberately untrue statements on behalf of his client, which conduct was in breach of Rule 44D of the Rules of Court. In support, the Government submitted a verbatim record of a meeting which had taken place between the applicant and the Government Agent in the prison hospital on 23 December 2011. The Government regretted that Mr Nozadze had refused to attend that meeting.

Thus, as disclosed by the record of the meeting of 23 December 2011, the content of which was approved by the applicant’s own signature, he denied in a categorical manner to have ever discussed with his representative the issue of the withdrawal of his application. The applicant further stated that Mr Nozadze had never consulted him prior to submitting the objection of 28 November 2011. That being so, the applicant stated that he wished to revoke Mr Nozadze’s representative authority and confirmed his previous request for withdrawal. He reiterated that, as the relevant authorities had started dispensing adequate medical treatment for his various diseases, he considered that the subject matter of his application had been fully resolved.

THE LAW

Having regard to the relevant circumstances of the present case, the Court regrets that the applicant’s representative, without having ever discussed the matter with his client, took the liberty of making unsolicited statements on behalf of the latter, which gratuitously alarmed the Court and contradicted the applicant’s own free will. The representative exceeded the authority given to him by the applicant and impeded the proper functioning of the Court. However, the Court reiterates that it cannot be its task to deal with a succession of ill-founded and querulous complaints or with otherwise abusive conduct of applicants or their authorised representatives, which creates gratuitous work for the Court, incompatible with its real functions under the Convention (see The Georgian Labour Party v. Georgia (dec.), no. 9103/04, 22 May 2007).

Furthermore, having regard to the applicant’s own request for withdrawal of his application, which was reiterated in an unambiguous manner and reasonably explained by the fact of having received adequate medical care in prison, the Court is convinced that the applicant no longer wishes to pursue his application, within the meaning of Article 37 § 1 (a) of the Convention. Acting under Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the application.

In view of the above, it is appropriate to lift the interim measure previously indicated under Rule 39 of the Rules of Court and to strike the case out of the list.

For these reasons, the Court unanimously

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

Marialena Tsirli Josep Casadevall
Deputy Registrar President