Information Note on the Court’s case-law No. 145
October 2011
Goginashvili v. Georgia - 47729/08
Judgment 4.10.2011 [Section III]
Article 35
Article 35-1
Exhaustion of domestic remedies
Effective domestic remedy
Provisions of new Prison Code affording improved protection of rights to health-care in prison: effective remedy
Facts – In his application to the European Court, the applicant, who was suffering from a number of serious chronic disorders, including renal failure and hepatitis, alleged that the prison authorities had not provided him with adequate medical care, in breach of Article 3 of the Convention. The Government raised a preliminary objection of failure to exhaust domestic remedies in that the applicant had not sued the authorities for monetary compensation under Article 207 of the General Administrative Code and Article 413 of the Civil Code or applied for a court order under Articles 24 and 33(1) of the Code of Administrative Procedure requiring the authorities to take additional measures to protect his health.
Law – Article 35 § 1: An important consideration when assessing the effectiveness of a domestic remedy for allegedly inadequate medical care for seriously ill prisoners was whether the remedy – which in principle could be both preventive and compensatory in nature – could bring direct and timely relief. Where the prisoner had resorted to the remedy he considered the most appropriate to his situation, he was not then required to pursue an alternative remedy.
As regards the Government’s objection that the applicant had failed to sue for compensation, the Court noted that the prison authority had been well aware of the applicant’s medical condition and of his persistent complaints of lack of adequate treatment. Furthermore, he had issued proceedings to have his prison sentence suspended on health grounds which had brought his medical grievances before the post-sentencing judges also. He had thus placed both the prison and judicial authorities sufficiently on alert with respect to his medical condition, demanding, at the moment when medical intervention was capable of stopping further evolution of the disease, preventative and thus more valuable, remedial action aimed at a direct alleviation of the sufferings caused by his serious renal dysfunction. It would thus be inappropriate to reproach him for not also requesting monetary compensation.
As to the second judicial remedy suggested by the Government, general provisions (such as those set out in Articles 24 and 33(1) of the Code of Administrative Procedure) entitling individuals to seek injunctive relief against State agencies with a view to protecting their rights or legitimate interests could only operate effectively in cases of inadequate medical care in prison if underpinned by prison rules specifically providing a right to health care and clarifying how and within what time-limits the prison and judicial authorities had to respond to claims. As the Court had found in previous cases, the rules in force when the applicant’s application was lodged* had lacked sufficient clarity and precision to constitute an effective domestic remedy. The new Prison Code, however, which had entered into force on 1 October 2010, now clearly provided for a detainee’s right to health care in prison and contained precise rules on the procedure for submitting complaints combined with important procedural safeguards. Accordingly, with effect from 1 October 2010 Article 35 § 1 of the Convention should start to operate with deference to the formalities prescribed by that Code. Nevertheless, in the applicant’s case, since the most fundamental values – health, well-being and life – were at stake, it would not be reasonable or compatible with the compelling humanitarian considerations applicable under Articles 2 and 3 of the Convention to declare his complaint inadmissible in its entirety owing to the introduction of a better domestic remedy after the date the application was lodged. On the contrary, the very nature of the complaint – which concerned the right to a swift and adequate medical response to prevent further deterioration of a prisoner’s health – would not obviously permit any subsequently adopted rules of a preventative nature to extinguish the State’s past omissions.
Accordingly, there had been no failure to exhaust domestic remedies for the period until 1 October 2010, but the applicant had not exhausted the remedies available under the new Prison Code, read in conjunction with Articles 24 and 33(1) of the Code of Administrative Procedure, in respect of the period after that date.
Conclusion: preliminary objection partially dismissed (unanimously).
On the merits, the Court found there had been no violation of Article 3 of the Convention as the prison authority had provided the applicant with prompt and systematic medical care.
(See also, for cases where an intervening domestic remedy was introduced in response to a pilot judgment by the Court: Fakhretdinov and Others v. Russia (dec.), nos. 26716/09 et al., and Nagovitsyn and Nalgiyev v. Russia (dec.), nos. 27451/09 and 60650/09, both 23 September 2010, Information Note no. 133)
* Imprisonment Act of 22 July 1999.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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