In the case of Irakli Mindadze v. Georgia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Kristina Pardalos, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having deliberated in private on 20 November 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
17012/09) against Georgia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Georgian national, Mr Irakli Mindadze (“the applicant”), on
29 December 2008.
The applicant was represented by Mr Jason Beselia,
a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were
represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice.
On 14 March 2011 the Court decided to communicate
the complaint under Article 3 of the Convention concerning the alleged lack of
adequate medical care in prison to the Government (Rule 54 § 2 (b) of the Rules
of Court). It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
The Government and the applicant each submitted observations
on the admissibility and merits of the communicated complaint (Rule 54 (a) of
the Rules of Court). The Government submitted additional comments on the
applicant’s submissions on 14 October 2011.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1955 and is currently serving
a prison sentence in a medical establishment of the Ministry of Penitentiary,
Probation and Legal Assistance (“the prison hospital”).
A. The criminal proceedings against the applicant
The applicant and an acquaintance (co-accused in
subsequent criminal proceedings) were arrested in the latter’s flat on 31 March
2007 for unlawful purchase and possession of a particularly large quantity of
drugs with the intention to sell, an offence under Article 260 § 3 (a) of the
Criminal Code of Georgia. According to the relevant search record, the police
discovered some 80 grams of heroin in the flat, and, in addition, according to the
record of the body search of the applicant, 1.6150 grams of heroin were found
in a pocket of his jacket.
Prior to the arrest of the applicant and his
acquaintance, two other people had been arrested while leaving the same flat. They
were both released the same evening, after making incriminating statements
against the applicant and the co-accused. At a later stage of the proceedings,
notably during the trial, they retracted their initial incriminating
statements, claiming that they had been coerced by the police into making them
(see paragraph 11 below).
The case file did not contain a copy of the
record of the applicant’s body search. However, the applicant claimed that he had
refused to sign it, since, according to him, heroin had been planted on his
person by police officers during his transfer from the impugned flat to the
Ministry of Internal Affairs. The applicant maintained in this connection that
he had never waived his right to be searched in the presence of independent
witnesses, contrary to what was noted in the search record.
On 28 December 2007 the Tbilisi City Court
convicted the applicant of unlawful purchase and possession of a particularly
large quantity of heroin, which had been found in the flat and on his person,
with the intention to sell and sentenced him to seventeen years in prison. The
first-instance court dismissed as unsubstantiated the applicant’s
allegation that heroin had been planted on him by the police.
Following the applicant’s appeal, the
prosecution dropped the charges concerning the heroin found in the flat.
Subsequently, on 12 September 2008 the Tbilisi Court of Appeal convicted
the applicant of unlawful purchase and possession of 1.6150 grams of heroin
found on his person only and reduced his sentence to twelve years’
imprisonment.
The applicant’s conviction was primarily based
on the record of his body search, the results of the chemical examination of
the seized substance and the statements of the three police officers who had
conducted the body search. In reaching their conclusion, the domestic courts
also relied on the pre-trial incriminating statements of the two witnesses
arrested during the police operation and released shortly afterwards. The court
gave precedence to the statements they had made during the pre-trial
investigation as it considered that the withdrawal of their initial statements
had been unjustified, as they had not proved that they had been coerced into
making them. The court specifically noted the fact that neither of the two
witnesses had lodged any subsequent complaints regarding the alleged coercion
exerted on them.
12. By a
decision of 7 May 2009 the Supreme Court of Georgia dismissed that applicant’s
appeal on points of law.
B. The applicant’s state of health
1. Prior to the applicant’s arrest
Copies of medical records submitted to the Court
indicate that prior to his arrest, in 2006 the applicant was diagnosed as
suffering from viral hepatitis C (HCV) and B, acute erosive peptic ulcer,
second degree arterial hypertension, ischemic heart disease and angina
pectoris. From 10 to 17 March 2006 the applicant
underwent clinical treatment for gastroduodenal bleeding. At the same time he
was involved in a drug rehabilitation program. In June 2006 the applicant was
additionally diagnosed with dysbacteriosis.
2. After the arrest
. On
17 August 2007 the head of the medical unit of Tbilisi no. 5 Prison, where the
applicant was placed at the material time, in reply to the applicant’s lawyer’s
request, issued a medical certificate according to which the applicant did not
require treatment on an in-patient basis. It was noted in the certificate that
the applicant had been examined on 14 August 2007 by a group of medical
specialists who had diagnosed him with second degree arterial hypertension, chronic
inactive HCV infection and a peptic ulcer.
. On
18 July 2008 the applicant was transferred to Rustavi no. 6 Prison. On 15
October 2008, in view of a deterioration in the applicant’s medical condition,
his lawyer requested the head of the prison department of the Ministry of
Justice, the authority in charge of the prison system at the material time, to
transfer the applicant to the prison hospital for medical examination and
treatment. In support of the request, the applicant’s lawyer submitted a copy
of the applicant’s medical records confirming his diagnosis. On 20 October 2008
the Ministry of Justice forwarded the request to the Governor of Rustavi no. 6
Prison and to the head of the medical group of the prison department requesting
that action be taken accordingly. The applicant claimed that he had never
received a reply to his request, which fact the Government disputed. Although
they failed to submit a copy of the relevant letter in support of their
contention, the Government provided the Court with an extract from the log book
of Rustavi no. 6 Prison, according to which a letter of reply had been sent to
the applicant on 5 November 2008. Further, according to the Government, the
applicant subsequently underwent various medical examinations; notably, he had
blood and urine tests, including a blood test for HCV, a fibrogastroduodenoscopy
and an electrocardiography. He was also consulted by a pathologist, a therapist
and a cardiologist and prescribed drug-based treatment for his various conditions.
. On
16 June 2010 the applicant was transferred to Rustavi no. 16 Prison, where he
stayed for almost one year. According to the case file, the chief doctor of the
above facility issued an undated medical record, which confirmed the applicant’s
diagnosis of chronic HCV, second degree arterial hypertension, peptic ulcer and
angina pectoris. The chief doctor made no mention of the treatment, if any,
administered to the applicant at the material time.
. On
5 May 2011, following the communication of the case to the respondent
Government, the applicant was placed in the prison hospital, where he underwent
extensive clinical examinations and his final diagnosis was defined as follows:
first degree arterial hypertension, chronic superficial gastroduodenitis,
chronic HCV with moderate pathological activity, a cyst on the right kidney,
spinal osteochondrosis, disc hernia, varicose veins in the lower limbs and
chronic venous insufficiency.
. The
applicant started receiving an anti-viral treatment on an in-patient basis in
the prison hospital. In September 2011 he was additionally diagnosed with
sputum negative pulmonary tuberculosis. The decision was, therefore, taken to
suspend his anti-viral treatment. On 12 September 2011 the applicant was
included in the DOTS programme (Directly Observed Treatment, Short-course - the
treatment strategy for the detection and cure of tuberculosis recommended by
the World Health Organisation).
II. RELEVANT DOMESTIC LAW AND PRACTICE AND
INTERNATIONAL REPORTS
The relevant legal
provisions concerning the protection of prisoners’ rights, as well as excerpts
from the Public Defender’s report for the second half of 2007 bearing on
medical problems in prison, including those created by viral Hepatitis C, were
cited in the case of Poghosyan v. Georgia (no. 9870/07, §§ 20-22,
24 February 2009).
A. The right to health and problems related to the
exercise of that right within the prison system of Georgia - Special Report by
the Public Defender of Georgia, covering 2009 and the first half of 2010
The relevant excerpts from the above-mentioned
report read:
“Viral Hepatitis
The problem of viral hepatitis remains one of the most acute
issues within the establishments of the Georgian prison system. About 40% of
the inmates who died in 2009 were suffering from viral hepatitis. 15% of the
deceased had cirrhosis of the liver and related complications such as bleeding
from the upper part of the gastrointestinal tract, which in several instances
was the direct cause of the inmates’ death. As regards the statistical data for
2010, 47.4% of the prisoners who died in the first half of 2010 were diagnosed
as suffering from viral hepatitis; some of them had developed life-threatening
complications. The monitoring carried out by the National Preventive Mechanism
revealed that the chief doctors of the prison establishments recognised viral
hepatitis as one of the most widespread diseases. However, no accurate record
is maintained concerning instances of viral hepatitis infection; nor is any
other type of statistical data gathered in the prisons of Georgia. The [prison] doctors have information only concerning cases where the hepatitis diagnosis
has been confirmed by lab results. The monitoring revealed that a lot of
prisoners who had clinically apparent signs of liver damage had not been
examined for the presence of viral hepatitis at all.”
B. Recommendation Rec(2006)2 of the Committee of
Ministers to member states on the European Prison Rules (adopted by the
Committee of Ministers on 11 January 2006 at the 952nd meeting of the Ministers’
Deputies)
The European Prison
Rules lay down the following guidelines as concerns healthcare services in
prisons:
“Admission
15.1 At admission the following details shall be recorded
immediately concerning each prisoner: ...
f. subject to the requirements of medical confidentiality, any
information about the prisoner’s health that is relevant to the physical and
mental well-being of the prisoner or others. ...
16. As soon as possible after admission:
a. information about the health of the prisoner on admission
shall be supplemented by a medical examination in accordance with Rule 42; ...
Duties of the medical practitioner
42.1 The medical practitioner or a qualified nurse reporting to
such a medical practitioner shall see every prisoner as soon as possible after
admission, and shall examine them unless this is obviously unnecessary. ...
42.3 When examining a prisoner the medical practitioner or a
qualified nurse reporting to such a medical practitioner shall pay particular
attention to: ...
f. isolating prisoners suspected of infectious or contagious
conditions for the period of infection and providing them with proper
treatment.”
C. Standards of the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) (CPT/Inf/E (2002) 1 - Rev. 2010)
The following are the relevant extracts
concerning health care services in prisons:
“33. When entering prison, all prisoners should without delay
be seen by a member of the establishment’s health care service. In its reports
to date the CPT has recommended that every newly arrived prisoner be properly
interviewed and, if necessary, physically examined by a medical doctor as soon
as possible after his admission. It should be added that in some countries,
medical screening on arrival is carried out by a fully qualified nurse, who
reports to a doctor. This latter approach could be considered as a more
efficient use of available resources.
It is also desirable that a leaflet or booklet be handed to
prisoners on their arrival, informing them of the existence and operation of
the health care service and reminding them of basic measures of hygiene.
34. While in custody, prisoners should be able to have access
to a doctor at any time, irrespective of their detention ... The health care
service should be so organised as to enable requests to consult a doctor to be
met without undue delay ...
39. A medical file should be compiled for each patient,
containing diagnostic information as well as an ongoing record of the patient’s
evolution and of any special examinations he has undergone. In the event of a
transfer, the file should be forwarded to the doctors in the receiving establishment. ...
54. A prison health care service should ensure that information
about transmittable diseases (in particular hepatitis, AIDS, tuberculosis,
dermatological infections) is regularly circulated, both to prisoners and to
prison staff. Where appropriate, medical control of those with whom a
particular prisoner has regular contact (fellow prisoners, prison staff,
frequent visitors) should be carried out.”
D. Report of 25 October 2007 (CPT/Inf (2007) 42) on
the visit to Georgia carried out by
the European Committee for the Prevention of Torture and Inhuman and Degrading
Treatment or Punishment (“the CPT”) from 21 March to 2 April 2007
The relevant parts of the report read as
follows:
“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 (in particular, dental and psychiatric
care) and difficulties with access to outside specialists and hospital
facilities. ...
78. Prisoners in need of hospitalisation were transferred to
the Central Penitentiary Hospital, upon recommendation by the prison doctor.
Some complaints were heard at the establishments visited of long delays in
securing such transfers, due to a limited capacity. Inmates who could not be
admitted to the Central Penitentiary Hospital depended financially on their
families (including, apparently, to cover the cost of escort to the hospital). The
CPT recommends that measures be taken to ensure that prisoners in need of hospital
treatment are promptly transferred to appropriate medical facilities.
79. As a result of the insufficient number of doctors and
nurses, the medical examination upon admission was superficial, if it took
place at all. The only establishment at which prisoners were systematically
screened upon arrival was Prison No. 5 in Tbilisi, where new arrivals were
undressed and screened for injuries by a doctor or a nurse, and all cases of
injuries and complaints of ill-treatment were immediately reported to the
Prosecutor’s Office. However, in other aspects the initial medical examination
was cursory and did not identify detained persons’ health-care needs. At the
rest of the establishments visited, there was no routine medical examination on
arrival. A prisoner could be seen by a doctor if he/she had a particular health
complaint and specifically requested an examination. ...
80. No progress had been made since the previous visit in
respect of medical documentation. Only a small number of prisoners (i.e.
those who had a particular medical problem) had a medical file worthy of the
name. In line with its previous recommendations, the CPT recommends that the
Georgian authorities take steps to open a personal and confidential medical
file for each prisoner, containing diagnostic information as well as an ongoing
record of the prisoner’s state of health and of his treatment, including any
special examinations he has undergone. ...
... [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 take steps to open a personal and
confidential medical file for each prisoner, containing diagnostic information
as well as an ongoing record of the prisoner’s state of health and of his
treatment, including any special examinations he has undergone (paragraph 80).”
E. Report of 21 September 2010 (CPT/Inf (2010) 27) 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
. The
relevant excerpts from the above-mentioned report, bearing on the problem of
medical care in Georgian prisons, read:
“iii. Medical records and confidentiality
92. The delegation noted as a positive development the recent introduction
(at the end of 2009) of new personal medical files for prisoners. However, at
the Ksani establishment, due to the large number of prisoners - and the limited
number of nurses - the process of creating personal files was rather slow.
As regards the keeping of other medical records, it remained
substandard and often lacking in detail, including in relation to traumatic
injuries. ...
The CPT recommends that steps be taken to improve the
medical record-keeping, in the light of the above remarks. ...”
THE LAW
I. THE SCOPE OF THE CASE
After the communication of the application to
the respondent Government concerning the alleged lack of adequate medical
treatment to the applicant in prison, the applicant introduced new grievances
concerning his alleged infection with pulmonary tuberculosis and the inadequacy
of the medical treatment provided to him after his transfer to the prison
hospital. The Court observes that the initial application form and
correspondingly the complaints communicated to the Government concerned only
the period when the applicant was kept in normal prison cells and was allegedly
not provided with the medical assistance he needed and asked for. Therefore, in
the Court’s view, the new grievances cannot be considered as an elaboration of
the applicant’s original complaint on which the parties have commented and
hence these matters cannot be taken up in the context of the present
application (see, for instance, Saghinadze and
Others v. Georgia, no. 18768/05, §
72, 27 May 2010, and Kats and Others v. Ukraine, no. 29971/04, §
88, 18 December 2008). The scope of the Court’s analysis will, thus, be
confined to the assessment of the adequacy of the medical care in relation to
the applicant’s viral hepatitis C and B, angina pectoris and heart problems
before his transfer to the prison hospital.
II. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained under Article 3 of the
Convention of a lack of adequate medical care for his various conditions in
prison and a failure on the part of the prison authorities to promptly transfer
him to the prison hospital, where adequate medical treatment could be dispensed.
Article 3 of the Convention provides:
Article 3
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
The Government argued that there were several
effective domestic remedies that had not been used by the applicant in the
present case. In the first place, they alleged that the applicant had not requested
a domestic court, under Article 24 and 33(1) of the Code of Administrative
Procedure, to order the relevant authorities to take additional measures for
the protection of his health in prison. Secondly, according to the Government
the applicant should have sued the relevant State authority and requested compensation
for non-pecuniary damage under Article 207 of the General Administrative Code
and Article 413 of the Civil Code. Since neither of these judicial
remedies were resorted to by the applicant, the Government were of the opinion that
the complaint under Article 3 of the Convention should be rejected under
Article 35 §§ 1 and 4 for non-exhaustion of domestic remedies.
. The
applicant did not comment on the Government’s non-exhaustion plea.
2. The Court’s assessment
. The
Court reiterates that Article 35 § 1 of the Convention requires
those seeking to bring their case against a State to use first those remedies
provided by the national legal system, including available and effective
appeals. Complaints intended to be made subsequently before the Court should
have been made to the appropriate domestic body, at least in substance and in
compliance with the formal requirements laid down in domestic law. Article 35 §
1 further requires that any procedural means that might prevent a breach of the
Convention should have been used (see Cardot v.
France, 19 March 1991, § 34, Series A no. 200). In such
situations, the Court is called on to examine whether, in all the circumstances
of a case, the applicants have done everything that could reasonably be
expected of them to exhaust domestic remedies (see Baumann v.
France, no. 33592/96, § 40, 22 May 2001).
The Court also considers that an important
question in assessing the effectiveness of a domestic remedy for a complaint
under Articles 2 and 3 of the Convention concerning lack of
sufficient care for an applicant suffering from a serious illness in prison is
whether that remedy can bring direct and timely relief. Such a remedy can, in
principle, be both preventive and compensatory in nature. However, where the
applicant has already resorted to either of the available remedies, considering
it to be the most appropriate course of action in his or her particular
situation, the applicant should not then be reproached for not having pursued
an alternative remedial course of action (see Goginashvili v. Georgia, no. 47729/08, § 49, 4 October
2011).
Turning to the circumstances of the present
case, the Court notes that it is not disputed that the applicant complained to
the administration of respective prisons about his poor medical condition and
that the prison authorities were well aware that the applicant was suffering
from HCV and several other medical problems (see paragraphs 14-15 above). The relevant
authorities were thereby sufficiently informed of the applicant’s situation and
had an opportunity to offer redress (see Melnik
v. Ukraine, no. 72286/01, § 70, 28 March 2006; 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).
While it is true that the applicant did not use the official complaint
procedure under the Code of Administrative Procedure as suggested by the
Government, the Court notes that the problems arising from the alleged lack of
proper medical treatment for contagious diseases, including HCV, in Georgian
prisons were of a structural nature at the material time and did not only concern
the applicant’s personal situation (see Poghosyan,
cited above,
§ 69, and Ghavtadze v. Georgia, no. 23204/07, § 104, 3 March 2009). Moreover, the Court
has already found the above-suggested administrative complaints procedure vis-à-vis
the prison authorities to fall foul of the requirements of an effective
domestic remedy for the purpose of Article 3 of the Convention, within
the meaning of Article 35 § 1 (see Goginashvili,
cited above, §§ 53-54).
32. The Court, therefore,
considers that the applicant had placed the relevant national authorities
sufficiently on alert with respect to his medical condition. He sought a preventive remedial action for the grievance alleged in the present case and cannot be
reproached for not requesting monetary compensation for the State’s failure to
protect his health (see Goginashvili, cited above, §§ 51-52 and 57 and Makharadze
and Sikharulidze v. Georgia, no. 35254/07, §§ 54-55, 22 November 2011).
. The Court, thus, dismisses the Government’s non-exhaustion
plea. It further considers that the applicant’s complaint under Article 3 of
the Convention is not manifestly ill-founded within the meaning of
Article 35 § 3 of the Convention. Nor is it inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
In the Government’s view, they had complied with
their positive obligation to protect the applicant’s well-being and health in prison.
The Government submitted that the applicant had been under effective medical
supervision throughout his detention. As regards the applicant’s stay in
Rustavi no. 6 Prison, they claimed that the medical unit of this prison was
adequately equipped to provide the applicant with the requisite medical
treatment. That treatment included regular medical check-ups and consultations
with relevant specialists and a prompt response to any health grievance the
applicant had. In support of their submission the Government produced a copy of
the medical certificate issued on 29 June 2011 by the chief doctor of Rustavi
no. 6 Prison providing a general overview of the treatment administered to the
applicant between 18 July 2008 and 16 June 2010.
In connection with the treatment provided to the
applicant specifically for his arterial hypertension, the Government additionally
submitted two handwritten notes accounting for the applicant’s consultations
with a cardiologist on 23 January and 20 July 2010 respectively. According to
the notes, the applicant, along with being recommended a special diet, was also
prescribed drug-based treatment. The Government also claimed that the applicant’s
diagnosis of ischemic heart disease and angina pectoris had not been confirmed.
As regards the applicant’s HCV, the Government
explained that following his request of 15 October 2008 (see paragraph 15
above), the applicant underwent all the required medical examinations and was
diagnosed with low-activity HCV. The diagnosis of hepatitis B was not
confirmed. The applicant was prescribed hepatotropic drugs, including Carsil. Following
his transfer to the prison hospital on 5 May 2011, the applicant’s anti-vital
treatment plan was drawn up and on 16 June 2011 he started receiving anti-viral
drugs, copegus and pegasys.
The Government also submitted a complete medical
file accounting for the treatment provided to the applicant for all of his
medical grievances after his transfer to the prison hospital.
The applicant, for his part, did not comment on
the detailed medical information submitted by the Government. He merely
provided the Court with his latest medical record, according to which he has
additionally been diagnosed with pulmonary tuberculosis.
2. The Court’s assessment
(a) The general principles
The Court notes that Article 3 of the Convention
imposes an obligation on States to protect the physical well-being of persons
deprived of their liberty (see Kudła
v. Poland [GC], no. 30210/96, § 94, ECHR 2000-XI). At the same time, it cannot be construed
as laying down a general obligation to release
detainees on health
grounds. Rather, the compatibility of a detainee’s state of health with his or
her continued detention, even if he or she is seriously ill, is contingent on
the State’s ability to provide relevant treatment of the requisite quality in
prison (see Goginashvili, cited above, §§ 69-70, and Makharadze and Sikharulidze,
cited above, §§ 71-73, with further references).
The Court has held in its case-law that the mere
fact that a detainee was seen by a doctor and prescribed a certain form of
treatment cannot automatically lead to the conclusion that the medical
assistance was adequate (see Hummatov,
cited above, § 116). The authorities must also ensure that a comprehensive
record is kept concerning the detainee’s state of health and his treatment
while in detention (see, for example, Khudobin
v. Russia, no. 59696/00, § 83, ECHR 2006-XII (extracts));
that the diagnoses and care are prompt and accurate (see Hummatov,
cited above, § 115, and Melnik, cited above, §§ 104-106); and
that where necessitated by the nature of a medical condition, supervision is
regular and systematic and involves a therapeutic strategy aimed, to the extent
possible, at curing the detainee’s health problems or preventing their
aggravation (see Hummatov,
cited above, §§ 109 and 114; Isayev v. Ukraine, no. 28827/02, § 58, 28 May 2009; and Popov v.
Russia, no. 26853/04, § 211, 13 July 2006). The authorities
must also show that the necessary conditions were created for the prescribed
treatment to be actually followed through (see Hummatov,
cited above, § 116, and Holomiov
v. Moldova, no. 30649/05, § 117, 7 November 2006). At the
same time the Court notes that in the assessment of the adequacy of the
treatment it must be guided by the due diligence test, since
the State’s obligation to cure a seriously ill detainee is one of means, not of
result (see, Goginashvili, cited above, § 71).
(b) Application of the above principles to the circumstances
of the current case
. According
to the case file, the applicant was arrested on 31 March 2007 and placed
in Tbilisi no. 5 Prison. The relevant prison authorities claimed that already
on 14 August 2007 the applicant, in response to his complaint, had been
examined by a group of specialists, who had concluded that he did not require
treatment on an in-patient basis (see paragraph 14 above). The Court notes
that the Government failed to submit the relevant medical records detailing the
type and the exact dates of the medical tests the applicant had allegedly had
in Tbilisi no. 5 Prison. Information pertinent to the applicant’s treatment on
an out-patient basis is also lacking.
. On
18 July 2008 the applicant was transferred to Rustavi no. 6 Prison. The
Government maintained that the applicant had been placed under permanent
medical supervision and had benefited from the required treatment on the
premises of the medical unit of the prison. The main piece of evidence provided
in support of the above submission is the medical certificate issued by the chief
doctor of Rustavi no. 6 Prison on 29 June 2011. The Court has several
reservations concerning the accuracy of this certificate.
Notably, the certificate, whilst describing in
detail the capabilities of the medical unit at Rustavi no. 6 Prison, provides rather
vague information concerning the medical supervision and treatment the
applicant was able to individually benefit from throughout his stay in that facility.
Moreover, the certificate is dated 29 June 2011, and there is no other written medical
record accounting in detail for the treatment the applicant has allegedly been
receiving in Rustavi no. 6 Prison between 18 July 2008 and 16 June 2010. In the
absence of any detailed medical history, it is highly doubtful that the chief doctor
could have recapitulated the medical treatment administered to the applicant
throughout his two-year stay in Rustavi no. 6 Prison by heart.
In this connection, the Court has difficulty in
subscribing to the Government’s argument that the applicant had comprehensive
medical examinations following his complaint of 15 October 2008 (see paragraphs
15 and 36 above). It suffices to note that the only piece of evidence submitted
by the Government in support of the above assertion is the medical certificate
of 29 June 2011. In view of the comprehensiveness, complexity and the
importance of those medical tests for the final diagnosis and treatment plan of
the applicant, the Court does not understand why the relevant prison
authorities would have carried out these tests without adding the corresponding
medical records to the applicant’s medical file.
With respect to the HCV specifically, the Court
would further note that in view of the seriousness of the disease, it is
essential that a patient undergo an adequate assessment of his or her state of
health in order to be provided with adequate treatment. In the present case,
such an assessment could be obtained from a liver biopsy and relevant blood
tests determining the viral genotype and viral load (see Poghosyan, cited
above, § 57). As already observed above (paragraphs 43-44 above), the
Government failed to prove that any of the above mentioned medical tests were indeed
performed on the applicant within the relevant period of time. The Court,
therefore, considers that by leaving the infected applicant, despite his HCV
diagnosis, without appropriate diagnostic examination for over three years, the
relevant authorities put his health and well-being at risk (see a contrario, Goginashvili,
cited above, § 80). The applicant was also left without
relevant information in respect of his illness, and was thus deprived of any
control over it (see Testa v. Croatia, no. 20877/04, § 52, 12 July 2007).
In this respect the Court considers irrelevant the Government’s submission,
unsupported by relevant medical evidence, that the applicant had been receiving
hepatoprotectives, since as a consequence of the lack of adequate medical
examinations, the exact effect of chronic hepatitis on the applicant’s health
had not been established and he could not have been provided with adequate
medical care (see Testa,
cited above, § 52, and Poghosyan,
cited above, §§ 57-58).
Lastly, the Court notes that the parties are in
disagreement about the applicant’s other conditions, with the Government
claiming that the diagnosis of ischemic heart disease, angina pectoris and
viral hepatitis B has not been confirmed. In this connection, the Court would
observe the following: with respect to the applicant’s heart problems, the
applicant was first examined by a cardiologist only on 23 January 2010 (see
paragraph 35 above) that is almost three years after the applicant’s
detention. As for angina pectoris and viral hepatitis B, it appears that no medical
tests were carried out within the relevant period of time. The Court notes that
the applicant entered the prison system with a serious diagnosis made by
outside medical specialists. In such circumstances, even if it accepts the
Government’s argument that the above-mentioned diagnosis was only of a
preliminary nature, the Court considers that the relevant prison authorities
were under an obligation to promptly verify it in order to properly plan the
applicant’s future treatment.
To conclude, the Court considers that apart from
the two reports on consultations with a cardiologist he underwent on 23 January
and 30 July 2010, the applicant’s medical file for the relevant period of time does
not contain any records. The Court hence considers, that the Government failed
in discharging their burden of proof concerning the availability of adequate
medical supervision and treatment to the applicant in prison (see, Malenko
v. Ukraine, no. 18660/03, §§ 55-58, 19 February 2009; Ashot
Harutyunyan v. Armenia, no. 34334/04, § 112, 15 June 2010, and, a contrario, Goginashvili,
cited above, § 72).
The Court thus
concludes that there has been a violation of Article 3 of the Convention
on account of the lack of adequate care for the applicant in prison.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant complained under Article 6 § 1 of
the Convention about the outcome of the criminal proceedings conducted against
him, alleging in particular that the domestic courts had based his conviction
on unlawfully obtained evidence and had further disregarded evidence in his
favour. The Court finds, in light of all the material in its possession, that
the applicant’s submissions under Article 6 § 1 of the Convention do not
disclose any appearance of an arguable issue under this provision and must be
declared inadmissible as being manifestly ill-founded, pursuant to
Article 35 §§ 3 and 4 of the Convention.
III. 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 applicant claimed pecuniary damage on the
basis of an alleged average monthly income of EUR 500. He further claimed EUR
100,000 in respect of non-pecuniary damage.
The Government submitted that the applicant’s
claims for pecuniary damage were unsubstantiated. Further,
regarding the applicant’s claim for non-pecuniary damage, the Government noted
that as a basis for this claim the applicant relied on his arrest rather than
inadequate medical treatment. Hence, there was no reason to grant it.
Alternatively, the Government considered the amount requested exorbitant.
The Court does not discern any causal link
between the violation found and the pecuniary damage alleged; it therefore
rejects this claim. On the other hand, ruling on an
equitable basis and taking all the circumstances of the case into account, it
awards the applicant EUR 5,000 in respect of non-pecuniary damage suffered as a
result of the lack of adequate medical treatment in prison.
B. Costs and expenses
The applicant claimed reimbursement of EUR 2,800
for the costs and expenses incurred in the proceedings before the domestic
courts. He failed to submit any documents in support of his claim.
The Government claimed that the costs were unsubstantiated.
The Court decides, in
view of the absence of relevant financial documents, that no award shall be
made in respect of the reimbursement of legal fees claimed.
C. Default interest
The Court considers it appropriate that the
default interest rate 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
1. Declares the complaint concerning the lack
of adequate medical treatment in prison admissible and the remainder of the application
inadmissible;
2. Holds that there has been a violation of
Article 3 of the Convention on account of the inadequate medical treatment
provided to the applicant in prison;
3. Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros) in respect of non-pecuniary damage, plus any tax that may be
chargeable, to be converted into the 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;
4. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 11 December
2012, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Marialena Tsirli Josep
Casadevall
Deputy Registrar President
