CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 27 mai 2021

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sAE6FB95D { margin-top:14pt; margin-left:32.01pt; margin-bottom:6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:1.99pt; font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s6C5BED22 { margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .sB25A0399 { margin-top:14pt; margin-left:24.84pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; padding-left:0.66pt; font-family:Arial; font-weight:bold } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF920FE69 { font-family:Arial; color:#f8f8f8 } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC1AEB4B0 { width:19.69pt; display:inline-block } .sB8D45C39 { width:149.86pt; display:inline-block } .s64406319 { width:11.68pt; display:inline-block } .s2753FA3F { width:163.53pt; display:inline-block }     FIFTH SECTION DECISION Application no. 26072/11 Zurab BOSTOGHANASHVILI against Georgia   The European Court of Human Rights (Fifth Section), sitting on 27 May 2021 as a Committee composed of:   Ganna Yudkivska, President,   Stéphanie Mourou-Vikström,   Lado Chanturia, judges, and Martina Keller, Deputy Section Registrar, Having regard to the above application lodged on 21 April 2011, 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 Zurab Bostoghanashvili, is a Georgian national who was born in 1982 and lives in Tbilisi. 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 Levan Meskhoradze, of the Ministry of Justice. The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s health condition 4 .     The applicant was admitted to a prison on 8   July 2005. His sentence of fourteen years’ imprisonment for drug and firearms offences became final on 28   December 2007. 5 .     According to the applicant’s medical history, he had suffered from chronic viral hepatitis   C since 2002. It appears from the case file that sometime in 2009 the applicant was permanently placed in the prison hospital to be under the constant supervision of an infectious-disease specialist. Although the applicant’s condition was judged to be resistant to treatment, antiviral therapy carried out between 2008 and 2009 significantly reduced the viral load, as evidenced by the relevant examinations. Between 2006 and 2011 various medical examinations were performed to assess the applicant’s state of health, to determine the appropriate treatment in respect of hepatitis   C and various other ailments, and to evaluate the effectiveness of the treatment prescribed. On each occasion the applicant’s state of health was judged to have been stable. 6 .     On 27   January 2010 the applicant requested that his medical condition be assessed by an expert. A forensic medical expert examination was accordingly carried out by experts of the National Forensic Bureau between 27   January and 25   March 2010. According to the resulting report, the applicant’s hepatitis C was characterised by moderate viral activity and he also had other ailments of a minor nature, which were under appropriate medical supervision and treatment. The relevant report noted that, even though it was impossible to discuss the prospect of full recovery, the applicant was “not a seriously ill patient” and his health condition did not pose a risk to his life. It was recommended that the applicant undergo another round of treatment with antiviral agents. 7 .     As is apparent from the material in the case file, on 20   May 2010 the applicant refused to undergo further antiviral treatment which had been recommended by the relevant experts (see the previous paragraph). He eventually agreed to the treatment in   June 2011. The antiviral therapy was subsequently administered to him and resulted in a further significant decrease in viral activity. His condition continued to be monitored on a daily basis at the prison hospital. Application for transfer to a specialised civilian hospital 8 .     On 24   August 2010 the applicant lodged an application with the Tbilisi City Court requesting to be transferred to a specialised civilian hospital with the aim of receiving “adequate medical treatment”. He did not elaborate on his state of health or his medical needs, nor did he allege any inadequacy regarding the medical care administered at the prison hospital. 9 .     On 26 August 2010 the applicant’s application was found to be defective for failure to pay the court fee of 100 Georgian laris (GEL – approximately 40   euros (EUR) at that time). The first-instance court noted that the applicant’s detention had not in and of itself exempted him from the obligation to pay the relevant fee and that he had failed to present any proof of his inability to afford the fee. 10.     On 1 September 2010 the applicant sent a letter to the court, without submitting any material regarding his financial status, arguing that the court had not had the right to refuse to consider his application as he was a sick prisoner with no source of income. 11.     On 20 September 2010 the Tbilisi City Court left the applicant’s application unexamined on account of his failure to correct the relevant defect (see paragraph   9 above). The applicant lodged an interlocutory appeal reiterating his earlier arguments (see the previous paragraph). 12.     On 22 October 2010 the Tbilisi Court of Appeal found the applicant’s interlocutory appeal to be defective for failure to pay the court fee of GEL 50 (approximately EUR 20). The appellate court noted that the applicant had failed to submit any material to substantiate his request to be exempted from paying the court fee. 13.     On 23 November 2010 the applicant sent a letter to the appellate court, without submitting any supporting material, stating that he could not pay the court fee and emphasising his right of access to a court. 14.     On 30 November 2010 the Tbilisi Court of Appeal left the applicant’s interlocutory appeal unexamined on account of the failure to correct the defect concerning the court fee. Application for suspension of sentence on health grounds 15 .     On 20 September 2010, relying on the expert examination report regarding his health (see paragraph   6 above), the applicant instituted proceedings to have his sentence suspended until his full recovery. 16 .     On 21 October 2010 the Tbilisi City Court found the above ‑ mentioned application manifestly ill-founded. It assessed the applicant’s medical file, the findings of the expert report (see paragraph   6 above) and the witness statement given to it by one of the experts and concluded that the applicant was not a seriously ill patient, that his treatment had been ongoing at the prison hospital without impediment and that there were no grounds to believe that the treatment administered to him had been inadequate. 17.     On an unspecified date the applicant lodged an appeal alleging, without much elaboration, that the lower court had erred in the assessment of his state of health. 18 .     On 22   December 2010 the Tbilisi Court of Appeal adopted a final decision on the matter. It assessed the applicant’s medical file and other evidence available in the case file and concluded that the applicant had been under permanent and qualified medical supervision and treatment at the prison hospital. The appellate court emphasised that there had been neither a risk of deterioration of the applicant’s health nor any impediment to his serving the prison sentence at the prison hospital, which was capable of providing him with all the necessary medical supervision and care. It therefore upheld the lower court’s finding that no ground had existed justifying the suspension of the applicant’s sentence. Subsequent developments 19.     On 17   April 2013 and 8   June 2016 the parties informed the Court, without further elaboration, that the applicant had been released on 15   February 2013. Relevant domestic law 20.     Article   47 §   1 of the of the Code of Civil Procedure (1997) provided for a court’s discretion to exempt, in whole or in part, an individual who was instituting proceedings from paying the relevant court fee if the latter substantiated, “by submitting convincing items of evidence”, his or her financial situation demonstrating the inability to pay such a fee. 21 .     Article 121 § 2 of the Prison Code (2010), as it stood at the material time, provided: “If it is impossible to provide medical treatment to an accused or an inmate at the medical section of a prison facility, he or she may be transferred to a ... prison hospital or a [civilian] hospital.” 22 .     On 14   April 2011 the Supreme Court clarified the scope of Article   9 of the Code of Administrative Procedure (1999), which provided for an exemption from court fees in respect of applications concerning questions of social security. The court stated that the question of court fees had to be decided with respect to the subject matter of the relevant applications. In so far as inmates’ applications concerned their right, as laid down in the Prison Code, to be provided with adequate medical supervision and care, such applications were to be regarded as raising questions of social security and were thus exempt from court fees. COMPLAINTS 23 .     The applicant complained under Article   3 of the Convention of the inadequacy of medical supervision and care at the prison hospital. 24.     Relying on Articles   6 and   13 of the Convention, the applicant complained about the domestic courts’ refusal, based on his non-payment of the relevant court fees, to accept for consideration his application for transfer to a specialised civilian clinic for medical treatment. 25.     The applicant also relied on Article   14 of the Convention, stating that other inmates had received more favourable treatment regarding deferral of sentences on health grounds when such applications had been presented by prison officials rather than by the inmates themselves. THE LAW Scope of the case 26.     In response to the observations submitted by the Government in respect of the adequacy of the medical treatment administered to the applicant at the prison hospital, the applicant raised new complaints under Article   3 of the Convention alleging that he had contracted hepatitis   C in prison and that the conditions of detention in prison no.   5 in 2005 had been inadequate. 27.     The Court notes that these new, belated complaints do not constitute an elaboration or elucidation of the applicant’s original complaint (see paragraph   23 above), on which the parties have already commented. The Court considers, therefore, that it is not appropriate to take up these matters in the context of the present case (see Irakli Mindadze v.   Georgia , no.   17012/09, §   25, 11   December 2012). The scope of the Court’s analysis under Article   3 of the Convention will thus be confined to the assessment of the adequacy of the medical care provided at the prison hospital. Alleged violation of Article 3 of the Convention 28.     The applicant complained that the medical supervision and care he had received for his health condition at the prison hospital had been inadequate. He relied on Article 3 of the Convention, which reads as follows: “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” 29.     The Government submitted that the applicant’s complaint was wholly unsubstantiated, as the material in the case file, including expert evidence and the domestic courts’ reasoned decisions in that regard, demonstrated that his condition – hepatitis C as well as other ailments – had been subject to constant medical supervision and care. 30 .     The Court reiterates that Article 3 of the Convention cannot be interpreted as laying down a general obligation to release detainees on health grounds or to transfer them to a civil hospital, even if they are suffering from an illness that is particularly difficult to treat (see, among other authorities, Kudła v.   Poland [GC], no.   30210/96, §   93, ECHR 2000 ‑ XI, and Sławomir Musiał v.   Poland , no.   28300/06, §   86, 20   January 2009). However, this provision nonetheless imposes an obligation on the State to protect the physical well-being of persons deprived of their liberty, for example by providing them with the requisite medical assistance. The relevant general principles concerning the adequacy of medical treatment in prisons were summarised by the Court in, among other cases, Goginashvili v.   Georgia (no.   47729/08, §§   69-70, 4   October 2011) and Blokhin v.   Russia ([GC], no.   47152/06, §§   136-37, ECHR 2016, with further references). 31.     Turning to the circumstances of the present case, the Court observes that the applicant’s complaint before it was formulated in generic terms and essentially disagreed with the assessment of his state of health by the relevant experts and the domestic courts. By contrast, the material available to the Court contains extensive evidence including an expert report by the National Forensic Bureau, expert testimony, the applicant’s medical file (see paragraphs   5-7 above) and the domestic courts’ duly reasoned decisions affirming that the applicant’s medical condition was subject to constant medical supervision and care, and that the measure of detention could be maintained without any risk to his life (see paragraphs   15-18 above).   Nothing in the material available to the Court gives cause to doubt the domestic courts’ finding that the prison authority showed a sufficient degree of diligence, providing the applicant with prompt and systematic medical care. 32.     In the light of the foregoing, the Court finds that the complaint should be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention. Alleged violation of Article 6 of the Convention 33.     The applicant complained that the domestic courts’ refusal, based on his non-payment of the relevant court fees, to accept for consideration his application for transfer to a specialised civilian clinic had amounted to an unjustified restriction of his right of access to a court under Article   6 § 1 of the Convention. This provision, in so far as relevant, reads as follows: “In the determination of his civil rights and obligations ... everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 34.     The Government submitted that Article   6 § 1 was inapplicable as no “dispute” of a genuine and serious nature had existed, and   the application concerned the authorities’ discretionary powers rather than the applicant’s “civil right”. 35.     The Court reiterates that for Article 6 § 1 in its “civil” limb to be applicable, there must be a dispute (“ contestation ” in the French text) over a “right” which can be said, at least on arguable grounds, to be recognised under domestic law, irrespective of whether that right is protected under the Convention. The dispute must be genuine and serious; it may relate not only to the actual existence of a right but also to its scope and the manner of its exercise; and, finally, the result of the proceedings must be directly decisive for the right in question, mere tenuous connections or remote consequences not being sufficient to bring Article 6 § 1 into play (see Lupeni Greek Catholic Parish and Others v.   Romania [GC], no.   76943/11, §   71, 29   November 2016). A claim submitted to a tribunal for determination must be presumed to be genuine and serious unless there are clear indications to the contrary which might warrant the conclusion that the claim is frivolous or vexatious or otherwise lacking in foundation (see, for example, Benthem v. the Netherlands , 23 October 1985, §   32, Series A no. 97, and Skorobogatykh v. Russia (dec.), no.   37966/02, 8   June 2006). 36.     In the instant case, the Court reiterates that there is no general “right” under the Convention for inmates to be transferred to a civil hospital (see paragraph   30 above). Nor did the domestic law confer such a “right”. Instead, the Prison Code provided for the authorities’ obligation to provide adequate medical care to inmates, and only failing this could an inmate be transferred either to a prison hospital or a civilian medical institution (see paragraph   21 above). Thus, the Court does not rule out the possibility that in certain cases applications for transfer to a civilian hospital could entail an assessment of the adequacy of medical care administered to an inmate and thereby concern a “civil right” guaranteed by domestic law and practice (see paragraph   22 above). 37.     However, as regards the particular circumstances of the present case, the Court does not lose sight of the fact that in the applicant’s application to the Tbilisi City Court he did not make the slightest attempt to elaborate on his state of health, his medical needs, or the alleged inadequacy of the medical care administered at the prison hospital (see paragraph   8 above). What is more, he had actively resisted the provision of appropriate medical assistance (see paragraph   7 above). Furthermore, the applicant had also instituted parallel proceedings concerning the adequacy of medical treatment which had been duly adjudicated without any impediment, and his complaint had proved to be wholly unsubstantiated (see paragraph   30 above). Therefore the Court does not find that the essence of the applicant’s application for transfer to a civilian clinic, in the circumstances of the present case, concerned a genuine and serious dispute over the right to receive adequate medical care. 38.     It follows that this complaint is incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a) and must be rejected in accordance with Article 35 § 4. Alleged violation of Article   14 of the Convention read in conjunction with Article   3 39.     The applicant complained that other inmates had received more favourable treatment regarding deferral of their sentences on health grounds. 40.     Assuming that Article   14 is applicable ratione materiae , the Court considers that the material submitted to it does not disclose any appearance of a violation of this provision. This complaint is therefore manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. Alleged violation of Article   13 of the Convention 41.     The Court reiterates that a complaint may only be made under Article   13 of the Convention in connection with a substantive claim which is “arguable” (see Kudła, cited above, §   157). The Court has found that the applicant’s complaints under Article   3 and Article   6 of the Convention are manifestly ill-founded. His claim under Article   13 cannot therefore be said to be “arguable” within the meaning of the Convention case-law. 42.     It follows that this part of the application is also manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 17 June 2021.   {signature_p_2}   Martina Keller   Ganna Yudkivska   Deputy Registrar   President