FOURTH SECTION
DECISION
Application no. 13906/10
Eteri KVIRIASHVILI
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 9 September 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 10 March 2010,
Having regard to the declaration submitted by the respondent Government on 11 June 2014 requesting the Court to strike the application out of the list of cases and the absence of the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Ms Eteri Kviriashvili, is a Georgian national, who was born in 1954 and lives in Tbilisi. She was represented before the Court by Ms L. Mukhashavria, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The application mainly concerned under Article 3 of the Convention the absence of adequate medical care for the applicant’s viral hepatitis C (HCV) and certain other renal, pulmonary and gastrological infections diseases during her imprisonment following a criminal conviction from 8 September 2006 (the date of the applicant’s initial arrest) and 8 April 2010 (the date of the applicant’s early release from prison on account of her poor state of health).
4. The applicant also complained that she had contracted HCV and other infections in prison and that there had been no effective domestic remedy in that respect, contrary to Article 13 of the Convention taken in conjunction with Article 3.
THE LAW
A. As regards the complaint about the absence of adequate medical care in prison
5. The application was communicated to the Government on 24 August 2010.
6. After the failure of attempts to reach a friendly settlement, by a letter of 11 June 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
7. The declaration provided as follows:
“The Government – by way of a unilateral declaration – wish to express their regretful acknowledgement of a violation of Article 3 of the Convention due to the existence of certain deficiencies identified in the course of the medical treatment of the applicant.
Bearing in mind the applicant’s early release from prison on 8 April 2010;
The Government are prepared to pay to the applicant 4,500 (four thousand five hundred) Euros to cover any and all pecuniary and non-pecuniary damages and costs and expenses related to her medical treatment.
This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that may be applicable to the applicant. It will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of 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 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. The applicant was invited to submit her comments on the Government’s unilateral declaration by 16 July 2014, but failed to do so.
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).
11. 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 (preliminary issue), [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).
12. 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 on account of the absence of adequate medical care for the applicant’s various diseases. In this regard, the Court notes that there already exists a well-established case-law, including that against Georgia, concerning the 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).
13. 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)).
14. 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).
15. The Court notes the modalities agreed by the respondent Government for the payment of the amount proposed (see paragraph 7 above).
16. 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 (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
17. Accordingly, the complaints covered by the Government’s unilateral declaration should be struck out of the list.
B. As regards the remainder of the application
18. Relying on Articles 3 and 13 of the Convention, the applicant made a separate complaint about her purported contamination by the various infectious diseases in prison and the alleged absence of an effective domestic remedy in that respect.
19. However, the Court reiterates that whenever it comes to an allegation of contracting an infection or otherwise becoming ill in Georgian prisons, which the applicant attempts to present to the Court as the ground for claiming a separate breach of Article 3 of the Convention, a civil claim for damages under Article 207 of the General Administrative Code of Georgia taken in conjunction with Article 413 of the Civil Code of Georgia is the most effective remedy to be used at the domestic level (see, for instance, Goloshvili v. Georgia, no. 45566/08, §§ 24-25 and 32-33, 23 October 2012; and Jeladze v. Georgia, no. 1871/08, § 35, 18 December 2012). Since the applicant never attempted, according to the available case materials, to resort to this remedy, this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
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 a part of the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Declares the remainder of the application inadmissible.
Fatoş AracıPäivi Hirvelä
Deputy RegistrarPresident
Full & Egal Universal Law Academy