FOURTH SECTION
DECISION
Application no. 51603/09
Zaira BASILASHVILI
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 27 May 2014 as a Committee composed of:
Päivi Hirvelä, President,
Nona Tsotsoria,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 9 September 2009,
Having regard to the declaration submitted by the respondent Government on 17 February 2014 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Ms Zaira Basilashvili, is a Georgian national, who was born in 1937 and lives in Gori. She was represented before the Court by Mr Z. Basilashvili, a lawyer practicing in Gori. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice.
2. On 9 November 2007 the applicant was arrested on suspicion of fraud, an offence under Article 180 of the Criminal Code of Georgia. On 25 June 2008 the Gori District Court convicted her as charged and sentenced to five years’ imprisonment. On 2 October 2008 the Tbilisi Court of Appeal, while confirming the applicant’s conviction, reduced her sentence to three years’ imprisonment. By a decision of 18 February 2009 the Supreme Court of Georgia further reduced her prison sentence to two years.
3. According to the case file, the applicant who had had a left breast mastectomy had also a well-documented history of other serious medical conditions, including venous insufficiency and arrhythmia. She was recognised as falling into the second category of invalidity. Despite her serious medical condition, her requests for the suspension of the prison sentence were not considered by the domestic courts. Her complaints about poor detention conditions in Tbilisi no. 5 Prison were also left unanswered.
COMPLAINTS
4. The applicant complained under Article 3 of the Convention that the conditions of her detention in Tbilisi no. 5 Prison were poor and that her imprisonment, in view of her poor state of health and in the absence of adequate medical treatment in prison, amounted to inhuman and degrading treatment. Relying on various provisions of Article 5 of the Convention, she also disputed the lawfulness of her arrest and pre-trial detention, while under Article 6 § 1 of the Convention she challenged the outcome of the criminal proceedings conducted against her.
THE LAW
A. As to the communicated complaints under Article 3 of the Convention
5. On 22 November 2011 the Court communicated to the Government the applicant’s complaints under Article 3 of the Convention.
6. After the failure of attempts to reach a friendly settlement, by a letter of 17 February 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the communicated part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
7. The relevant part of the declaration reads as follows:
“The Government of Georgia acknowledge that, in the particular circumstances of the instant case, there was a violation of Article 3 of the European Convention on Human Rights. They do so on account of the material conditions of the applicant’s detention at Tbilisi no. 5 Prison and deficiencies identified in the course of the medical treatment throughout the period of her nine months’ detention.
It should be noted that the applicant was released from imprisonment before the expiration of her sentence, i.e. on 18 April 2009 on the basis of a presidential parole.
In light of the particular facts of the applicant’s case, the Government declares that it is prepared to pay the applicant 4,500 (four thousand five hundred) Euros to cover any pecuniary or non-pecuniary damages and costs and expenses.
This sum will be converted into the national currency at the rate applicable on the date of the payment, and will be free from any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights. In the event of a failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until the settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment shall constitute a final resolution of the case.
...”
8. By a letter of 7 April 2014 the applicant informed the Court that she did not dispute the sum proposed by the Government. She was not satisfied, however, with the terms of the unilateral declaration on the ground that the Government had not also acknowledged the unlawfulness of her conviction.
9. The Court recalls that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
10. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1(c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Taktakishvili v. Georgia (dec.), no. 46055/06, 16 October 2012). To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spół ka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwiń ska v. Poland (dec.) no. 28953/03).
11. Having due regard to the terms of the Government’s unilateral declaration in the current case, the Court observes that their declaration contains a sufficiently clear acknowledgment of a breach of Article 3 of the Convention. In this regard, the Court notes that there already exists a well-established case-law, including against Georgia, concerning lack of adequate medical treatment in prison (see, for instance, Goginashvili v. Georgia, no. 47729/08, §§ 57-61 and 71-81, 4 October 2011; Jeladze v. Georgia, no. 1871/08, §§ 43-50, 18 December 2012, and Jashi v. Georgia, no. 10799/06, §§ 63‑66, 8 January 2013) and poor conditions of detention (Aliev v. Georgia, no. 522/04, §§ 71-84, 13 January 2009; Gorguiladzé v. Georgia, no. 4313/04, §§ 41-51, 20 October 2009, and Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 79-88 and 91-93, 27 January 2009).
12. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)).
13. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
14. The Court notes the modalities agreed by the respondent Government for the payment of the amount proposed (see paragraph 7 above).
15. Finally, the Court emphasises that should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
16. Accordingly, the complaints covered by the Government’s unilateral declaration should be struck out of the list.
B. As to the other alleged violations of the Convention
17. The applicant’s various complaints under Article 5 § 1 of the Convention concerning the alleged unlawfulness of her arrest and pre-trial detention are belated, since that particular instance of deprivation of liberty ended with the applicant’s conviction at first instance on 25 June 2008 (see Davtian v. Georgia (dec.), no. 73241/01, 6 September 2005), whereas the present application was not lodged until 9 September 2009. It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
18. As regards the applicant’s remaining complaint under Article 6 § 1 of the Convention about the outcome of the criminal proceedings conducted against her, the Court, in the light of all the material in its possession and in so far as the matters complained of are within its competence, finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Article 3 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as they relate to the above‑mentioned complaints;
Declares the remainder of the application inadmissible.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy