Information Note on the Court’s case-law No. 146
November 2011
Makharadze and Sikharulidze v. Georgia - 35254/07
Judgment 22.11.2011 [Section III]
Article 2
Positive obligations
Failure to provide effective treatment to a prisoner suffering from multidrug-resistant tuberculosis: violation
Article 34
Hinder the exercise of the right of petition
Failure to comply with interim measure requiring prisoner’s placement in specialised medical establishment: violation
Facts – The first applicant died of pulmonary tuberculosis in January 2009 while serving a prison sentence for drugs offences. The second applicant is his widow.
The first applicant, who had been suffering from tuberculosis for a number of years, was arrested in March 2006 and detained pending trial. He appealed against his detention on health grounds but his appeal was dismissed. A few days later, following a drastic deterioration in his condition, he was transferred to the prison hospital where he was given conventional, first line anti-tuberculosis medication. In May/June 2006 he was diagnosed as suffering from a form of multidrug-resistant tuberculosis. In July 2006 he was convicted and given a seven-year prison sentence. He was examined by medical experts from the National Forensic Office who confirmed the diagnosis and said that he was gravely ill and required treatment in a specialist hospital. He was not transferred, however. In July 2008 a request for his prison sentence to be suspended on account of his condition and the lack of effective medication in prison was dismissed. The applicant subsequently began two hunger strikes, the first in protest at the authorities’ failure to comply with a court order for an additional medical examination and the second at their failure to follow a medical recommendation for his treatment with second-line drugs in specialist facilities.
In November 2008 the European Court issued an interim measure under Rule 39 of its Rules requiring Georgia to transfer the first applicant to a specialised hospital capable of dispensing appropriate anti-tuberculosis treatment. The Government refused as it considered such a measure unnecessary, as the first applicant had already been transferred to a new prison hospital whose medical services were allegedly comparable if not superior to those of a civil tuberculosis hospital.
Law – Article 2: The first applicant had not contracted tuberculosis in prison and the evidence did not suggest that the mutation of the bacillus to the multi-drug resistant form had occurred there either. He could not be said to have been left unattended as he had spent only a few days in prison before being transferred to the prison medical facilities where he was examined regularly by doctors and received conventional anti-tuberculosis treatment and a suitable diet. The core issue of the case was, therefore, not the absence of medical care in general, but rather the alleged lack of adequate treatment for a very particular type of disease – multi-drug resistant tuberculosis – which caused the first applicant’s death.
Effective treatment of multi-drug resistant tuberculosis depended on the existence of at least three basic factors, namely access to early and accurate diagnostic tests, the availability of all classes of second-line drug and clinicians with special proficiency in treating the multi-drug resistant strain. The treatment given to the first applicant had been deficient on all three counts. It had taken the authorities over a year after becoming aware that the bacillus was resistant to conventional first-line drugs to conduct the susceptibility tests needed to establish a diagnosis and an individualised medication regimen. Then, although the tests established the sensitivity of the mycobacterium to two second-line drugs, the prescribed treatment did not start for another seven months, apparently because of a shortage of the drugs in the country. Lastly, the medical staff supervising his treatment in the prison hospitals did not, at the material time, possess the requisite expertise in the management of multi-drug resistant tuberculosis (a specific training programme was introduced shortly after his death).
As regards the impact of the first applicant’s hunger strikes on his condition, although satisfied that the first applicant had been continually warned that he risked a deterioration in his health, the Court could not discern from the medical file whether the specialists had ever attempted to find out whether his conduct might have been conditioned by the drugs he was taking. In any event, the main reason for the hunger strikes had been the authorities’ failure to conduct the additional medical examination that had been ordered and to implement a medical recommendation for his transfer to one of the two specialist hospitals in Georgia. Nor had the domestic courts properly addressed the first applicant’s request for conditional release pending treatment. Instead, they had simply turned a blind eye to the exceptional gravity of his condition. Lastly, despite the fact that the first applicant had died in a prison hospital, a public institution directly engaging the State’s responsibility, the issue of the individual responsibility of the clinicians in charge of his treatment had not been subjected to an independent, impartial and comprehensive inquiry. The State had thus also failed to sufficiently account for his death.
In sum, even if some of the aforementioned deficiencies would not alone have been sufficient for a finding of inadequate discharge by the State of its positive obligation to protect the first applicant’s health and life in prison, their coexistence and cumulative effect was more than enough.
Conclusion: violation (unanimously).
Article 34: Under the interim measure indicated by the Court, the Government had been required to place the first applicant, who at the time was detained in the prison hospital, in a specialised medical establishment capable of dispensing appropriate anti-tuberculosis treatment. Although that measure did not necessarily require the applicant’s transfer to a civil hospital, it did require treatment in a medical establishment, whether civil or penal, specialised in the treatment of tuberculosis. As already established, the prison hospital did not possess the necessary equipment or drugs, and the medical staff did not possess the skills needed to treat multi-drug resistant tuberculosis. The Government were or should have been aware of these serious deficiencies, as the medical experts had repeatedly denounced the inadequacy of the treatment the first applicant was receiving in prison. Nor had there been any objective impediment preventing compliance with the measure as two civil hospitals specialised in the treatment of multi-drug resistant tuberculosis were in service at the time. Indeed, the Court was of the opinion that the authorities might even have a direct Convention obligation to resort to the civil sector when a detainee’s condition was critical and no comparable specialised medical assistance was available in the prison sector.
Conclusion: violation (unanimously).
Article 41: EUR 15,000 to the second applicant in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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