CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 9 mai 2017

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s7ED160F0 { text-decoration:none } .sC36A6361 { font-family:Arial; color:#000000 } .sBB355983 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .s9EC3D246 { margin-top:6pt; margin-bottom:6pt; text-align:center; font-size:10pt } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s5F897A7E { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .sBF964C40 { width:8.54pt; display:inline-block } .sB7A3199A { width:205.1pt; display:inline-block } .sA2E62387 { width:204.97pt; display:inline-block }     FIFTH SECTION DECISION Application no. 41541/05 Mamuka NOZADZE against Georgia The European Court of Human Rights (Fifth Section), sitting on 9   May   2017 as a Committee composed of:   Síofra O’Leary, President,   Nona Tsotsoria,   Lәtif Hüseynov, judges, and Milan Blaško, Deputy Section Registrar, Having regard to the above application lodged on 8 September 2006, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Mr Mamuka Nozadze, is a Georgian national who was born in 1974 and lives in Gori. He was represented before the Court by Ms   S. Abuladze, a lawyer practising in Tbilisi. 2.     The Georgian Government (“the Government”) were represented by their Agent, Mr D. Tomadze, of the Ministry of Justice. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     Criminal proceedings against the applicant 4 .     The applicant is a lawyer. He was arrested on 3 November 2005 at 11.00 a.m. in his office in Gori and placed under investigation on a charge of fraud. In particular, he was accused of misappropriating money entrusted to him by a client to secure bail in criminal proceedings. 5 .     The applicant was immediately transferred to a local police station, and, twenty minutes later, at 11.20 a.m., the investigator in charge of the case served him with a written record of his arrest. The document contained a brief description of the facts which allegedly constituted the criminal offence as well as the wording of the relevant provision of the Criminal Code which was the basis for his prosecution. 6.     At 11.25 a.m. the investigator began to question the applicant. As confirmed by the record of that questioning, the applicant, being fully aware of the nature of the charge against him, pleaded not guilty and presented his own version of the facts pertaining to the purported misappropriation of the bail money. 7.     On 5 November 2005 the Gori District Court ruled that the applicant should be placed in pre-trial detention for three months, running from the date of his arrest on 3 November 2005. That ruling was upheld by the Tbilisi Court of Appeals on 10 November 2005. The domestic courts noted in their decisions that the applicant, who had been charged with a crime carrying a sentence of two to six years’ imprisonment, might seek to evade justice out of fear of being given such a sentence. The courts stressed that the applicant had been reluctant to cooperate with the investigation as he had failed to report to the investigating authority prior to his arrest, despite having been summoned several times. Furthermore, the courts also stated with reference to specific facts that it was very likely that the applicant would try to influence the main witness for the prosecution, his former client (see paragraph 4 above). 8 .     On 23 December 2005 the investigation phase of the criminal proceedings against the applicant was terminated and he was committed for trial. A full copy of the criminal case file was given to him and his lawyer so that they could start preparing for the trial. 9 .     The applicant’s trial took place over several hearings between 7   February and 22 March 2006 at the Gori District Court. According to the written records of the hearings, which were added to the case file by the Government after communication of the case, the applicant never made any complaint to the trial court of having been denied sufficient time or facilities to study the case file. 10.     The Gori District Court found the applicant guilty of the charges on 22 March 2006 and sentenced him to six years in prison. 11.     On 29 May 2006, the Tbilisi Court of Appeals reduced the sentence to three years and six months, leaving the conviction unaltered. 12.     On 5 July 2006 the Supreme Court of Georgia declared an appeal on points of law inadmissible. 13 .     A written copy of the final decision of 5 July 2006 was served on the applicant’s lawyer on 29 July 2006. 14 .     As is clear from the case file, the applicant never complained about a lack of time or facilities for the preparation of his defence before the Tbilisi Court of Appeals or before the Supreme Court. 15 .     On 5 June 2008 the applicant was granted early release from prison. B.     The applicant’s conditions of detention 16.     Between 5 November 2005 and 10 June 2006 (see paragraph   18   below) the applicant was detained in Tbilisi Prison no.   5   (hereinafter “Prison no.   5”). 17.     The applicant lodged a complaint with the prison administration for the first time on 8 June 2006, referring to a deterioration of his health. Specifically, he mentioned acute pain in his ear and eyes and a severe headache. 18 .     On 10 June 2006 the applicant was transferred from his cell in Prison no.   5 to the prison hospital, where he was diagnosed on the same day with an acute, purulent ear infection and conjunctivitis in both eyes. He was prescribed the relevant anti-biotics. A prison doctor stated that the applicant should consult an ear, nose and throat (ENT) specialist. 19 .     After communication of the application, the Government supplemented the case file with a full copy of the applicant’s medical file. Those documents confirmed that during his stay in the prison hospital between 10 June and 17 October 2006 (see paragraphs 18 above and 20 below), the applicant had various tests and received treatment for his ENT problems. The applicant had blood and urine tests on 22   June and 28 July 2006. On 14   June, 12 July and 23 August 2006 he was examined by an ENT specialist from a civilian hospital, who diagnosed hypertrophic rhinitis and an ear infection. On 27   June, 21 July and 8   September 2006 he was examined by two different neurologists, also from civilian hospitals, who concluded that he suffered from intracranial hypertension and the after ‑ effects of a skull injury sustained in 2004 and prescribed the relevant drugs. 20.     On 14 October 2006 the applicant’s doctor stated that the patient’s condition had clearly improved after the treatment for his ENT problems and hypertension in the prison hospital. On the basis of that opinion, on 17   October 2006 the applicant was discharged from the prison hospital and transferred to Rustavi Prison no. 1 (hereinafter “Prison no. 1”). 21.     According to the material available in the case file, the applicant never made a complaint to any of the competent domestic authorities about the material conditions of his detention, whether in Prison no. 5, the prison hospital, or in Prison no. 1 (see   paragraphs   16, 17, 18   and 20 above). COMPLAINTS A. Complaints lodged with the Court on 8 September 2006 22 .     In his original application to the Court on 8   September 2006, the applicant complained under Article 3 of the Convention that the material conditions of his detention in Prisons nos. 5   and 1 and in the prison hospital had been poor and that he had been denied medical care for his health problems. 23 .     Citing Article 5 §§ 2 and 3 of the Convention, the applicant complained that he had not been informed immediately of the reasons for his arrest and that the decisions ordering his detention on remand were not duly reasoned. 24 .     Under Article 6 §§ 1 and 3 (b) of the Convention, the applicant complained that he had not had sufficient time and facilities to study the case file. B. Complaints lodged with the Court on 7 May 2007 25 .     In a letter of 7 May 2007, the applicant raised a number of new complaints. Notably, citing Articles 8 and 34 of the Convention, he complained, respectively, that the authorities at Prison no. 1 had not allowed him to receive visits from his family and had prevented him from communicating freely with the Court. 26 .     In addition, invoking Articles 5, 6 and 14 of the Convention as well as Article 2 of Protocol No. 7, he complained, for the first time, that the domestic courts had failed in the relevant decisions to prove his guilt beyond a reasonable doubt, that he had been innocent and that his conviction had, in actual fact, been retribution for his being an independent and highly qualified lawyer whom the authorities could not control. THE LAW A.     Complaints under Article 3 of the Convention 27.     The applicant complained about the inadequacy of the material conditions of his detention and the lack of medical care in prison. He invoked Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 28.     The Government did not object to these complaints on grounds of non-exhaustion but submitted that they were manifestly ill-founded. They noted that the applicant had not provided individual accounts of what exactly the material conditions of his detention in the relevant prisons had been. As regards the applicant’s health problems, referring to his medical file (see paragraph 19 above), the Government stated that he had been provided with the requisite treatment in the prison hospital. 29.     The applicant stated in reply, without submitting any supporting evidence, that the hygiene conditions during his detention in the various custodial institutions had not been compatible with his human dignity and that the medical care for his ENT problems and hypertension had been insufficient. 30.     Referring to its relevant case-law in respect of the conditions of detention in Georgian custodial institutions at the material time, the Court reiterates the rule that whenever an applicant wished to challenge alleged poor material conditions of detention in a Georgian prison, even if such complaints did not call for the full and meticulous exhaustion of any specific criminal or civil remedies (compare with Goginashvili v.   Georgia , no.   47729/08, §§ 54 and 57, 4 October 2011, and Aliev v.   Georgia , no.   522/04, § 62 and 63, 13 January 2009), it was still required, at the very minimum, that at least one of the responsible State agencies be informed of the applicant’s subjective assessment that the conditions of detention in question constituted a lack of respect for, or diminished, his or her human dignity. Without such basic conduct at the domestic level by a person who wished to challenge the conditions of his or her detention, the Court would necessarily have difficulties in evaluating the credibility of an applicant’s allegations of fact in that respect (see   Janiashvili v. Georgia , no.   35887/05, §   70, 27 November 2012). 31.     Having regard to the material available in the case file, the Court notes that the applicant never informed any of the relevant authorities of his dissatisfaction with any particular aspect of the material conditions of his detention, including that relating to sanitary conditions, be it in Prison no.   5, Prison no. 1 or in the prison hospital. Furthermore, in the proceedings before the Court, the applicant limited his submissions to vague and general statements only. Consequently, the Court considers that the applicant has failed to substantiate these complaints properly (see, mutatis mutandis , Janiashvili , cited above, §§ 70 and 71, and Ildani v. Georgia , no. 65391/09, §   27, 23   April 2013). 32.     As to the complaint of a lack of adequate medical care, the Court reiterates that when assessing the adequacy of medical care in prison, it must, in general, show sufficient flexibility when defining the required standard of health care, which must accommodate the legitimate demands of imprisonment but remain compatible with human dignity and the due discharge of positive obligations by States. In that regard, it is incumbent upon the relevant domestic authorities to ensure, in particular, that diagnosis and care have been prompt and accurate, and that supervision by proficient medical personnel has been regular and systematic and involved a comprehensive therapeutic strategy. The mere fact of a deterioration of an applicant’s state of health, albeit capable of raising, at an initial stage, certain doubts concerning the adequacy of the applicant’s treatment in prison, cannot suffice, by itself, for a finding of a violation of the State’s positive obligations under Article 3 of the Convention, if, otherwise, it can be established that the relevant domestic authorities have in a timely fashion provided all the reasonably available medical care in a conscientious effort to hinder the development of the illness in question. A   prison authority’s failure to keep comprehensive records concerning a detained applicant’s state of health or a respondent Government’s failure to submit such records in their entirety would consequently allow the Court to draw inferences as to the merits of the applicant’s allegations of a lack of adequate medical care (see, for instance, Jashi v. Georgia , no. 10799/06, §   61, 8 January 2013, and Goginashvili , cited above, §§ 71-81). 33.     Returning to the circumstances of the present case, the Court, having regard to the applicant’s medical file, observes that the prison authority responded promptly to the applicant’s medical complaint of 8 June 2006 by transferring him, as early as 10 June, to the prison hospital (see paragraph   18   above). During his time in hospital, which lasted more than four months, the prison’s medical staff took good care of the applicant by allowing him several consultations with an ENT specialist and neurologists from civilian hospitals. Those medical specialists set out a particular plan of treatment for the applicant, which was then duly implemented by the prison medical staff. As a result of that treatment, the applicant’s condition improved, which logically resulted in his discharge from the prison hospital on 17 October 2006 (see paragraphs   19   and 20 above and compare with Jashi , cited above, §§ 67-69; Goginashvili , cited above, §§   73-81; and contrast, for instance, with Poghosyan v.   Georgia , no. 9870/07 , §   57, 24   February 2009, and Testa v. Croatia , no.   20877/04 , § 52, 12 July 2007). In those circumstances, the Court considers that the prison authority showed a sufficient degree of due diligence, providing the applicant with sufficiently prompt, regular and strategically planned treatment for his ear and eye infections and hypertension (compare also with Janiashvili , cited above, §§ 75-79). 34.     In the light of the foregoing findings, the Court concludes that the applicant’s complaints under Article 3 of the Convention are manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4   of the Convention. B.     Complaints under Article 5 of the Convention 35.     The applicant complained that he had not been informed immediately of the reasons for his arrest and the nature of the charges against him, and that the court orders of 5 and 10 November 2005 (see paragraph   7 above), which had placed him in pre-trial detention for three months, had not had proper reasoning. He invoked Article 5 §§ 2 and 3 of the Convention. In so far as relevant, Article 5 reads as follows: “1.     Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 2.     Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3.     Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. ...” 36.     As regards the complaint under Article 5   §   2 of the Convention, the Government stated that the applicant had been informed about the reasons for his arrest by the investigator shortly after his arrest. They referred to the time given in the written record of arrest (see paragraph 5 above). As to the complaint under Article 5 § 3 of the Convention, the Government submitted that the detention orders of 5   and 10   November 2005 had contained sufficient reasons to justify the need for pre-trial detention for an initial period of three months. 37.     The Court reiterates that by virtue of Article 5 § 2 of the Convention any person arrested must be told, in simple, non-technical language which he or she can understand, the essential legal and factual grounds for his arrest. Whilst that information must be conveyed “promptly”, it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see Fox, Campbell and Hartley v.   the United Kingdom , 30   August 1990, §   40, Series A no. 182). 38.     The Court notes that the applicant stated that he was arrested on 3   November at 11.00 a.m. It further observes that the written record of his arrest was given to him at 11.20 a.m. That means that only twenty minutes went by between the applicant’s actual arrest in his office and the time when the relevant procedural document was presented to him at the police station (see paragraphs 4 and 5   above). Having examined the content of that document, the Court finds that it contained specific information about the reason for the applicant’s arrest, namely a suspicion that he had misappropriated bail money (see   again paragraph 5 above). In the context of the present case, an interval of twenty minutes cannot be regarded as falling outside the time constraints imposed by the notion of promptness in Article   5 § 2 of the Convention (compare with Galuashvili v. Georgia , no.   40008/04, § 39, 17   July 2008). 39.     Accordingly, the applicant’s complaint under Article 5 § 2 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. 40.     As to the complaint under Article 5 § 3 of the Convention, the Court observes that the applicant explicitly limits himself to calling into question the reasons contained in the court orders of 5 and 10   November 2005. Those decisions constituted two instances of the same habeas corpus procedure bearing on the initial, three-month period of the applicant’s pre ‑ trial detention, with the latter decision, which was delivered by the appellate instance, having final force (see Saghinadze and Others v. Georgia , no.   18768/05 , § 136, 27 May 2010). However, the application was lodged on 8 September 2006, that is, more than six months after the delivery of the final domestic decision of 10 November 2005 (see, for a similar conclusion in identical situations, Tchankotadze v. Georgia , no.   15256/05, §   120, 21   June 2016, and Aliev , cited above, §§ 111 and 112). 41.     It follows that the complaint under Article 5 § 3 of the Convention has been lodged out of time and must be rejected in accordance with Article   35 §§ 1 and 4 of the Convention. C. Complaint under Article 6 §§ 1 and 3 (b) of the Convention 42.     The applicant complained that he had not had sufficient time and facilities to study the case file, a fact which in his opinion rendered his trial unfair. He invoked Article 6 §§ 1 and 3 (b) of the Convention, which, in so far as relevant, reads as follows: “1.     In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing .... .... 3.     Everyone charged with a criminal offence has the following minimum rights: ... (b)     to have adequate time and facilities for the preparation of his defence; ...” 43.     The Government first objected that the applicant had failed to exhaust domestic remedies as he had never made any request to the trial court to obtain more time to prepare his defence. They further submitted that, since the applicant had been given a full copy of the criminal case file on 23 December 2005 (see paragraph 8 above), he had had until 7   February 2006, the day the trial started, to study it (see paragraph 9 above). 44.     The applicant disagreed with the Government’s position, without, however, specifically addressing their second argument about not having asked the trial court for more time to study the case file. 45.     The Court reiterates that the purpose of the rule of exhaustion of domestic remedies referred to in Article 35 § 1 is to afford Contracting States an opportunity to prevent or put right the violations alleged against them before those allegations have been submitted to the Court. The respondent State must have a chance to put matters right through its own legal system before having to answer before an international body for its actions. In consequence, complaints intended to be brought subsequently before the Court should first have been made – at least in substance – to the appropriate domestic body (see, among many other examples, Selmouni v.   France [GC], no. 25803/94, § 74, ECHR 1999-VII). 46.     The Court observes that according to the file as it stands neither the applicant nor his lawyer alleged before any level of the domestic jurisdiction, even in the remotest of terms, that they had not had sufficient time to study the case file (see paragraphs 9 and 14 above). In other words, the applicant failed to bring to the attention of the domestic courts the specific procedural issue that he has raised in the proceedings before the Court (compare, amongst many other authorities, Sawalha v. Sweden (dec.), no. 64299/01, 13   January 2004, and Jasiński v.   Poland (dec.), no. 30865/96, 21   January 2003; see also, mutatis mutandis , Azinas v. Cyprus   [GC], no.   56679/00, §§ 38-42, ECHR 2004-III). 47.     It follows that the complaint under Article 6 §§ 1 and 3 (b) of the Convention complaint must be rejected under Article 35 §§ 1 and 4 for non ‑ exhaustion of domestic remedies. D.     Complaints under Articles 8 and 34 of the Convention 48 .     The applicant complained that the authorities at Prison no.   1, where he had been detained between 17 October 2006 and 5   June 2008, had banned him from receiving family visits and had prevented him from corresponding freely with the Court. He invoked Articles 8 and 34 of the Convention, which read as follows: Article 8 “1.     Everyone has the right to respect for his private and family life, his home and his correspondence. 2.     There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” Article34 “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.” 49 .     The Government stated that the applicant’s complaints were manifestly ill-founded. They accused the applicant of intentionally misleading the Court by providing manifestly false information. To refute his allegations, the Government submitted an excerpt from the visitors’ log of Prison no. 1, which confirmed that between 17   October 2006 and 31   December 2007 the applicant had received forty-two visits from various members of his family and relatives, including his mother (one   visit), father (two visits), brother (thirty visits), nephew (eight visits) and a distant relative (two visits). As to the complaint about being unable to communicate freely with the Court, the Government emphasised that it was sheer invention, without any supporting evidence whatsoever. 50.     The applicant replied by maintaining his complaints in a general manner, without submitting any supporting proof. 51.     Having regard to all the material in its possession, in particular the documents added to the case file after communication of the case, the Court agrees with the Government that the applicant’s complaints under Articles   8   and 34 of the Convention are a collection of unsubstantiated assertions. The materials submitted by the Government clearly show that the applicant, in actual fact, received numerous visits from various relatives in prison (see paragraph 49 above), contrary to the applicant’s statement in his letter of 7   May 2007. Furthermore, records of correspondence maintained by the Registry of the Court confirm that during the applicant’s detention in the relevant custodial institution he personally submitted to the Court, using the postal services offered by the prison authority, at least twenty ‑ two letters, as well as the addendum of 7   May 2007, which raised additional complaints (see paragraphs 25 and 26 above). In addition, after the case had been communicated, the applicant and his representative drafted a set of observations on the admissibility and merits of the application, and a voluminous batch of documents was again mailed to the Court at the expense of the prison administration on 13   May 2008 (compare with Kvarelashvili v. Georgia (dec.) [Committee], no. 28987/08, §   45, 16   June 2015). In those circumstances, the Court finds that the applicant’s complaint that he was denied family visits and prevented from communicating freely with the Court during his time in Prison no.   1 is totally unsubstantiated. 52.     In the light of the foregoing considerations, the Court finds that the applicant’s complaints under Article 8 and 34 of the Convention are manifestly ill-founded and must be rejected in accordance with Article   35   §§ 3 (a) and 4 of the Convention. E.     As regards the remainder of the application 53.     As to the additional complaints raised by the applicant for the first time on 7 May 2007, the Court observes that they all stem from the purportedly arbitrary outcome of the criminal proceedings against him (see paragraph 26 above). However, the final domestic decision in those proceedings was served on the applicant’s lawyer on 29   July 2006 (see paragraph 13 above). That date thus triggered the running of the six-month time-limit (see, amongst many other authorities, Otto v. Germany (dec.), no.   21425/06, 10 November 2009). 54.     However, the complaints in question were lodged with the Court on 7 May 2007, that is to say three months and nine days after the expiry of the relevant period on 29 January 2007. It follows that this part of the application has been made belatedly and must be rejected pursuant to Article   35   §§   1   and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible.   Done in English and notified in writing on 1 June 2017.   Milan Blaško   Síofra O’Leary Deputy Registrar   President