CEDH · CASELAW;COMMUNICATEDCASES;ENG — 24 mai 2012

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padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s546C9D04 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s40B7A780 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } THIRD SECTION Application no. 3486/06 Zuorab KAKOULIA and Zaza BOULISKERIA against Georgia and 4 other applications (see list appended) STATEMENT OF FACTS The applicants are Georgian nationals. The facts of the cases, as submitted by them, may be summarised as follows. 1.     Kakoulia and Bouliskeria v. Georgia , application no. 3486/06 1.     On 6 May 2005 the applicants were arrested on suspicion of car theft. On 7 May 2005 both applicants were charged with aggravated theft and forgery of documents, offences under Articles 177 § 2 and 362 § 1 of the Criminal Code of Georgia respectively. 2.     On 9 May 2005 the Tbilisi City Court ordered the applicant’s pre-trial detention for three months. The above decision was confirmed by the Tbilisi District Court on 16 May 2005. 3.     In June 2005 the applicants were examined by experts of the medical department of the Ministry of Justice, who established the following: Mr   Kakoulia (“the first applicant”) was diagnosed as suffering from gastric ulcer post-surgery condition and chronic viral Hepatitis C (“HCV”) and Mr   Bouliskeria (“the second applicant”) was diagnosed as suffering from vegetodystonia. 4.     On 6 July 2005 the applicants’ lawyer requested the Tbilisi City Court, in view of his clients’ deteriorated state of health and the poor detention conditions in which they were being held, to release them pending trial. The above request was dismissed by the Tbilisi City Court and on appeal – by the Tbilisi District Court on 11 and 18 July 2005 respectively. 5.     On 9 February 2006 the applicants underwent another medical examination. As a result the first applicant’s diagnosis of HCV was confirmed. He was in addition diagnosed as suffering from post-surgery hernia and neurosis and was recommended to have serological and biochemical blood tests. The second applicant was diagnosed as suffering from chronic HCV, encephalopathy and dysarthria and was recommended to undergo a biochemical blood test. 6.     According to the applicants, with the exception of a short period of time in June 2005 when they were placed in the prison hospital, they spent their pre-trial detention in Tbilisi no. 1 Prison, where they were held in conditions incompatible with their state of health. They were placed in an overcrowded cell, where they had to sleep in turns. The conditions of sanitation and hygiene were inadequate, with insufficient lighting and ventilation. In view of the absence of sufficient outdoor exercise and adequate nutrition, their state of health seriously deteriorated. Nevertheless, the applicants suffered a total denial of their medical needs. 2.     Kikalishvili v. Georgia , application no. 51772/08 7.     On 2 February 2007 the Tbilisi City Court convicted the applicant of aggravated robbery and sentenced him to four years and six months’ imprisonment. The applicant’s conviction was primarily based on the victim’s statement and the results of the identification parade. The Tbilisi Court of Appeal, whilst re-qualifying the offence into simple robbery, reduced the applicant’s sentence to three years and six months’ imprisonment. Despite the applicant’s reiterated requests, the appellate court failed to examine the victim in court. By a decision of 14 May 2008 the Supreme Court of Georgia declared the applicant’s appeal on points of law inadmissible. 8.     According to the case file, prior to his detention the applicant was diagnosed with an acute cataract on the left eye and was recommended to have surgery. Following his detention, on 15 June 2006, he was placed in Tbilisi no. 5 Prison, where he allegedly contracted tuberculosis. According to the applicant, he repeatedly requested his transfer to the prison hospital for medical examination purposes, however in vain. 9.     In April – May 2007 the applicant had a medical check-up in a specialised medical establishment, where he was diagnosed as suffering from left eye uveal cataract and recommended a drug-based treatment followed by a surgery; no right eye pathology was revealed. By a letter of 23 July 2007 a representative of the penitentiary authorities informed the applicant’s mother that on 2 June 2007 the applicant had been transferred to the prison hospital in order to treat his cataract. He dismissed the applicant’s tuberculosis allegations. 10.     On 4 September 2007, the applicant was diagnosed as suffering from smear-negative (MGB-) right-lung tuberculosis in the stage of infiltration. He was immediately assigned to an anti-TB treatment under the DOTS programme ( Directly Observed Treatment, Short-course – the treatment strategy for the detection and cure of TB recommended by the World Health Organization). At a later stage a more accurate diagnosis of the applicant revealed that he was suffering from smear-positive (MGB+) right-lung infiltrative tuberculosis in the stage of disintegration. 11.     As it appears from the medical certificate of 3 July 2008, along with suffering from a cataract on the left eye, the applicant also developed haziness of the vitreous body in his right eye. 12.     On 28 October 2008 the applicant, relying on Rule 39 of the Rules of Court, asked the Court to indicate to the Government that he be transferred to a medical establishment, where medical examination and treatment appropriate for his state of health could be dispensed and that he be provided with a surgical intervention in order to prevent him from losing eyesight. 13.     On 3 November 2008 the President of the Chamber decided not to indicate the interim measure sought. Instead, under Rule 54 § 2 (a) of the Rules of Court, the Government were requested to provide the Court with a concrete treatment plan aimed at safeguarding the applicant’s eyesight. 14.     On 18 November 2008 the Government submitted the applicant’s medical file to the Court and also gave an account of the treatment which had been administered to him in prison as of January 2007. According to the Government, the applicant’s eyesight has not deteriorated since his detention and he has been provided with an adequate treatment in this regard. As for the eye surgery, the Government noted that the applicant had refused an operation offered by the prison authorities. 3.     Oniani v. Georgia , application no. 29180/10 15.     The applicant, who was convicted of various offences on 10 July 2007, is serving a ten-year prison sentence in Rustavi no. 2 Prison. According to the medical report of 2 July 2009, the applicant was diagnosed as suffering inter alia from the following: subarachnoid cyst on the right side of the forehead, cortical atrophy, circular protrusion of L3 disc, sequestered hernia of L4 disc and chronic HCV. The experts, who classified the applicant’s condition as of moderate severity, concluded that he was in need of a neurosurgical treatment in order to prevent further exacerbation of his pathology. 16.     On 8 July 2009 the applicant requested the Rustavi City Court to suspend his prison sentence in view of his serious medical condition. The applicant, whilst noting some shortcomings in the medial report of 2 July 2009, maintained that the severe pain he was suffering from was unbearable and he urgently required a neurosurgical intervention, which could be conducted only in a specialised medical establishment. According to the applicant, unless operated, he could lose function of the lower limbs and the pelvis. On its part, the representative of the penitentiary department claimed that the applicant’s condition was only of moderate severity and, hence, there was no legal basis for granting his request. 17.     By a decision of 17 July 2009 the Rustavi City Court rejected the applicant’s request as unsubstantiated. The refusal was upheld by the Tbilisi Court of Appeal on 29 October 2009. 4.     Jintcharadze v. Georgia , application no. 38277/10 18.     According to the case file, the applicant, who is currently serving a prison sentence in the prison hospital, was diagnosed as suffering from the following: chronic HCV, kidney stone disease, resection on the upper one-third of the hip joint, chronic osteomyelitis and right-sided gonarthrosis. Throughout 2008-2010 the applicant went several times on a hunger strike in protest to the allegedly inadequate medical treatment provided to him in prison and poor detention conditions in which he was held. He particularly denounced the fact that his dietary and medical needs were not met and that his rights to outdoor exercise and telephone conversations were unduly restricted. 19.     As it appears from the case file, in 2009 the applicant had an operation on his fractured hip. The related costs were incurred by his family. This surgery had to be followed by a second phase – total hip prosthesis, However on 2 July 2010 the applicant underwent a medical examination as a result of which it was recommended, in view of his HCV, to have antiviral treatment first. 20.     On several occasions in April and May 2010 the applicant requested to transfer him to a specialised medical establishment, where adequate medical treatment could be provided for his various medical grievances. He particularly emphasized the need for having a second operation on his fractured hip. The applicant also complained about the inability to have regular walks and unjustified restrictions on telephone conversations. The above requests were apparently refused. 21.     On 31 May 2010 the applicant filed an administrative complaint with the Tbilisi City Court requesting the latter to indicate to the Ministry of Prisons to transfer him to a specialised medical establishment where he would be provided with a hip joint implant. In reply, the representative of the Ministry of Prisons maintained, on the basis of 2 July 2010 medical report, that the applicant first required anti-viral treatment, which he for some reason had refused to accept. 22.     On 26 July 2010 the Tbilisi City Court dismissed as unsubstantiated the applicant’s action against the Ministry of Prisons. The above decision was appealed by the applicant on 16 August 2010. As it appears from the case file, the appeal was also rejected. The case file does not contain a copy of the appellate court’s decision. 5.     Kokashvili v. Georgia , application no. 51902/10 23.     According to the applicant, who has been in prison since July 2005, he has contracted HCV whilst in detention. Currently he is serving his prison sentence in Tbilisi no. 1 Prison, which has poor conditions of sanitation and hygiene and where he has been suffering from a total denial of his medical needs. 24.     On four separate occasions in January, February and May 2010 the applicant’s lawyer requested the relevant penitentiary authorities to provide his client with required medical examination and adequate medical treatment. The above requests were left unanswered. On 21 June 2010 the applicant filed an administrative complaint against the Ministry of Prisons in connection the inactivity of the relevant prison authorities. He reiterated his request concerning the need for a comprehensive medical examination and adequate medical treatment. 25.     According to the case file on 12 July 2010 haematological tests were performed on the applicant’s blood samples which confirmed his diagnosis of HCV with low activity. He was also consulted by a psychiatrist, who diagnosed him as suffering from personality disorder. 26.     On 11 August 2010 the Tbilisi City Court rejected the applicant’s administrative complaint finding it unsubstantiated. The applicant appealed the above decision, maintaining that it omitted the medical evidence concerning the applicant’s current state of health and lacked reasoning. As it appears from the case file the above appeal was rejected by the Tbilisi Appellate Court on an unidentified date (the case file does not contain a copy of that decision). COMPLAINTS 1.     Kakoulia and Bouliskeria v. Georgia , application no. 3486/06 27.     Relying on Article 3 of the Convention, the applicants complained that they had developed serious diseases in prison. They further alleged that the relevant authorities had been keeping them in inadequate prison conditions in Tbilisi no. 1 Prison and had been withholding adequate medical treatment from them. Under Article 5 §§ 1, 3 and 4 of the Convention in conjunction with Article 13 the applicants also complained about the unlawfulness of their arrest and pre-trial detention ant the lack of automatic review of the length of pre-trial detention. They further claimed a violation of Article 6   §§   1 and 3 (b) and (d) of the Convention on account of several procedural irregularities in the pre-trial investigation. 2.     Kikalishvili v. Georgia , application no. 51772/08 28.     Relying on Article 3 of the Convention, the applicant complained that he had contracted tuberculosis in prison and that the prison authorities had been withholding adequate medical treatment for his ophthalmological problems. He further challenged, under Article 6 §§ 1 and 3 (d) of the Convention, the outcome of the criminal proceedings conducted against him, complaining inter alia about the assessment of evidence by the domestic courts, the refusal to question several witnesses on his behalf and the inability to question the victim at the appeal phase. 3.     Oniani v. Georgia , application no. 29180/10 29.     Relying in substance on Article 3 of the Convention the applicant claimed that the prison authorities were not in a position to provide him with adequate medical treatment for his serious neurological disorders and other medical grievances. He complained in this connection about the refusal of the domestic courts to suspend his prison sentence. 4.     Jintcharadze v. Georgia , application no. 38277/10 30.     Relying on Article 3 of the Convention, the applicant complained about inadequate medical treatment provided to him in the prison hospital and lack of adequate diet. He further denounced the restrictions imposed on telephone conversations and outdoor exercise and the failure to provide him with the basic items of hygiene. 5.     Kokashvili v. Georgia , application no. 51902/10 31.     Relying on Article 3 of the Convention, the applicant complained that the prison authorities had been withholding urgently required medical treatment from him. He further alleged that his detention conditions were inhuman and degrading. COMMON QUESTION 1.     Have the responsible state agencies taken all necessary measures, including the provision of adequate medical treatment for the applicants’ various diseases (see the Table below), to safeguard the applicants’ health and well-being in prison, in accordance with their positive obligations under Article 3 of the Convention?   CASE-SPECIFIC QUESTIONS 2.     Kakoulia and Bouliskeria v. Georgia, application no. 3486/06   2a.     Was the second applicant infected with HCV whilst in prison? If so, does this fact amount, as such, to a violation of Article 3 of the Convention?   2b.     Were the material conditions of the applicants’ detention in Tbilisi no. 1 Prison compatible with Article 3 of the Convention?   3.     Kikalishvili v. Georgia, application no. 51772/08   3a.     Was the applicant infected with tuberculosis in prison? If so, does this fact amount, as such, to a violation of Article 3 of the Convention?   3b.     Was there a violation of the applicant’s right to a fair trial provided by Article 6 §§ 1 and 3 (d) of the Convention, given the appeal court’s failure to examine the victim in court?   4.     Oniani v. Georgia, application no. 29180/10   4a.     In view of the applicant’s state of health, can his continued detention in Georgian prisons be said to constitute treatment contrary to Article 3 of the Convention (Mouisel v. France, no. 67263/01, §§ 36-48, ECHR 2002 ‑ IX)?   5.     Jintcharadze v. Georgia, application no. 38277/10   5a.     Who – the applicant’s family or the Government – has covered the costs of the applicant’s medical treatment, including the operation on his fractured hip?   5b.     Has the applicant been provided with an adequate diet?   6.     Kokashvili v. Georgia, application no. 51902/10   6a.     Was the applicant infected with HCV whilst in prison? If so, does this fact amount, as such, to a violation of Article 3 of the Convention?   6b.     Were the material conditions of the applicant’s detention in Tbilisi no. 1 Prison compatible with Article 3 of the Convention?   APPENDIX No. Application no. Lodged on Applicant name Date of Birth Place of Residence Represented by Major disease Convention Articles invoked                    3486/06 15/11/2005 Zuorab KAKOULIA 16/03/1970 Tbilisi   Zaza BOULISKERIA 28/03/1964 Tbilisi   Mrs. Tamar GABISONIA and Mr. Archil CHOPIKASHVILI Viral hepatitis C. Articles 3, 5 §§ 1, 3 and 4, 6 §§ 1 and 3 (b) and (d) of the Convention.                    51772/08 28/10/2008 Giorgi KIKALISHVILI 10/12/1987 Tbilisi   Mrs. Lia MUKHASHAVRIA and Mr. Nikoloz KVARATSKHELIA Pulmonary tuberculosis and severe ophthalmological problems. Articles 3 and 6 §§ 1 and 3 (d) of the Convention.                    29180/10 27/04/2010 Gabriel ONIANI 16/04/1967 Rustavi   Mrs. Natia DAVITAIA Serious neurological disorders and chronic viral hepatitis C. Article 3 of the Convention in substance.                    38277/10 24/06/2010 Gocha JINTCHARADZE 05/06/1972 Tbilisi   Mr. Mamuka NOZADZE Various medical problems, including viral hepatitis C and fractured hip. Article 3 of the Convention.                    51902/10 31/08/2010 Boris KOKASHVILI 15/03/1985 Tbilissi   Mr. Mamuka NOZADZE Viral hepatitis C and personality disorder. Article 3 of the Convention.