THIRD SECTION
DECISION
Application no. 19882/07
Giorgi MAZANASHVILI
against Georgia
The European Court of Human Rights (Third Section), sitting on 28 January 2014 as a Chamber composed of:
Josep Casadevall, President,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Johannes Silvis,
Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 11 May 2007,
Having regard to the declaration submitted by the respondent Government on 20 May 2013 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, Mr Giorgi Mazanashvili, is a Georgian national, who was born in 1981 and is currently in prison. He was represented before the Court by Mr M. Nozadze and Mr I. Sosiashvili, lawyers practising in Tbilisi. Mr M. Nozadze was subsequently succeeded by Ms S. Abuladze (see paragraphs 24-27 below).
2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
1. The applicant’s arrest and criminal proceedings conducted against him
4. On 15 September 2005 the applicant was arrested on suspicion of unlawful purchase and possession of drugs. According to the personal search record, a plastic bag containing five sachets of a brown substance and one sachet of a white substance were found in the back right-hand pocket of his trousers. The body search was conducted on the outskirts of the city of Gori by an investigator, N.M., assisted by two police officers, without the presence of independent witnesses. It lasted from 5.06 to 5.18 p.m.
5. The applicant refused to sign the search record, protesting his innocence. Notably, he denied that his arrest and the body search had taken place in the circumstances described above. He alleged that he had been detained in the city centre at about 2 to 2.30 p.m. Immediately following his arrest, he had been forced into a vehicle and driven around the city for several hours; during that time he had been questioned in connection with an incident concerning a stolen vehicle. The police officers had then taken him to the outskirts of the city, where he had been forced to lie on the ground. According to the applicant, he was lying face down when the investigator N.M., put a plastic bag into his back right-hand pocket. Then the body search started and the impugned plastic bag was seized.
6. During the first-instance court proceedings, the applicant asked the Kareli District Court to examine seven witnesses who possessed information concerning the time and location of his arrest and the circumstances of his personal search. The prosecutor replied that the request was unsubstantiated. Having heard the parties’ pleadings, the Kareli District Court decided to grant in part the applicant’s request and examine only one of the witnesses proposed. The court reasoned in this connection that the circumstances of the applicant’s arrest had already been established during the pre-trial investigation stage.
7. By a decision of 22 September 2006 the Kareli District Court convicted the applicant of unlawful purchase and possession of a particularly large quantity of drugs and sentenced him to eighteen years’ imprisonment. The final sentence, which included the unserved part of the applicant’s previous sentence, was raised to nineteen years’ imprisonment. The applicant’s conviction was based on the report of his personal search, the testimony of the police officers who had participated in his arrest and search, and the results of the chemical analysis of the seized substances. The first-instance court, whilst omitting the testimony of the witness questioned on behalf of the applicant, dismissed the latter’s allegation that the drugs had been planted on him by the police. It simply concluded that that allegation had been invented with the sole purpose of evading criminal responsibility.
8. The applicant’s conviction was upheld by the Tbilisi Court of Appeal on 7 March 2007. The Supreme Court of Georgia rejected the applicant’s appeal on points of law on an unidentified date.
2. The applicant’s state of health, poor conditions of his detention and proceedings before the Court
9. Prior to his arrest the applicant was suffering from the following diseases: chronic bronchitis with an asthmatic component and frequent complications, chronic cholecystitis and several neurological disorders caused by brain injury.
10. On 17 September 2005 the applicant was transferred to Tbilisi no. 5 Prison, where he claimed the conditions of his detention had been extremely poor. On several occasions he also requested, in view of his serious medical condition, comprehensive medical examination and adequate medical treatment. It would appear that his requests were ignored.
11. On 27 March 2006 the applicant was transferred to Rustavi no. 6 Prison. According to the applicant, although he was provided with his own bed, he was deprived of basic items of hygiene, was allowed to take outdoor exercise only once a month and received inadequate nutrition. His family was prevented from supplying him with proper food.
12. On 22 June 2007, the applicant’s lawyer asked the head of the prison department to organise a comprehensive medical examination of the applicant in order to determine a treatment plan. In his letter of reply of 9 July 2007, the Governor of Rustavi no. 6 Prison noted that the applicant’s condition was stable, he was seen regularly by a therapist and a phthisiatrician, and his transfer to the prison hospital was not envisaged.
13. On 5 November 2007 the applicant asked the Court to indicate to the Government, under Rule 39 of the Rules of Court, that he should be transferred to the prison hospital where adequate medical treatment could be dispensed for his various diseases.
14. On 7 February 2008 the applicant was transferred to the prison hospital, where he was additionally diagnosed as suffering from chronic viral hepatitis C (HCV), vegetative neurosis and neurocirculatory dystonia.
15. On 6 March and 1 April 2008 the Court decided, acting under Rule 39 of the Rules of Court, to indicate to the Government that the applicant should be provided with adequate medical treatment for his post-traumatic encephalopathy, intracranial hypertension and other neurological problems in an appropriate medical establishment.
16. According to the case file, for the following several months the applicant underwent extensive medical examinations in the prison hospital, was consulted by, amongst others, a dermatologist, an ophthalmologist, a psychiatrist and a neurologist, and started receiving the relevant anti-viral treatment for his HCV.
17. On 7 October 2009 the Government gave a detailed account of the applicant’s medical condition and the treatment administered for his various diseases in the prison hospital, and requested the Court to lift the interim measure indicated on 6 March and 1 April 2008 under Rule 39 of the Rules of Court. On 8 February 2012 the Court, having due regard to the latest developments of the case, decided to grant the Government’s request.
B. Relevant domestic law
18. Article 310 (e) of the Code on Criminal Procedure, which entered into force on 1 January 2012, reads as follows:
“A final and enforceable judgment can be reviewed on the basis of newly discovered circumstances, if ... (e) the European Court of Human Rights has established in a final judgment (or in a decision) a breach of a provision of the Convention or of the Protocols thereto and the impugned [domestic] judgment (decision) is based on that breach”.
19. Pursuant to Article 311 of the Code on Criminal Procedure, the time-limit for lodging a request for the reopening of criminal proceedings and revision of the associated final domestic judgment under Article 310 (e) is one year from the date on which the relevant judgment (decision) of the Court became final.
C. The findings of the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (“the CPT”)
20. The CPT visited Georgia from 21 March until 2 April 2007. Its key findings with regard to Rustavi no. 6 Prison were the following (Report to the Georgian Government on the visit to Georgia carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 21 March to 2 April 2007, CPT/Inf (2007) 42):
“c. Prison No. 6, Rustavi
... Being a newly constructed establishment, Prison No. 6 offered material conditions which in general were better than those in any other prison seen by the CPT in Georgia. ...
Although not overcrowded by Georgian standards, the cells failed to meet the CPT’s minimum standard of 4 m² of living space per prisoner (e.g. cells measuring 16 m² were holding six prisoners; cells measuring some 28 m² were accommodating twelve inmates).
The cells had unscreened windows which provided adequate access to natural light; ventilation, artificial lighting and heating were also satisfactory. The cell equipment consisted of bunk beds, lockers for personal belongings, one or more tables and benches; further, all cells were fitted with a fully-partitioned sanitary annexe. However, there were no call bells in the cells; in this respect, prisoners complained that it was difficult to attract the attention of staff, banging on the cell door being considered a disciplinary offence. Other shortcomings concerned the configuration of the beds (sparsely placed metal slats through which the mattresses were sagging), and the design of the windows, which made it impossible to clean them. ...
There was a shower room on each floor of the accommodation block and prisoners were entitled to have one shower a week. However, due to problems of water and electricity supply, hot water was apparently provided intermittently and prisoners complained that they were usually allowed only some 5 to 10 minutes to wash. Further, there were signs of dilapidation in the shower rooms (mouldy ceilings, missing sprinklers). ...
Concerning food, most prisoners stated that it was sufficient in quantity, but lacking in terms of quality and variety. The preparation of food had been subcontracted to a private company. Meat and/or fish was served on a daily basis (e.g. 170 g of fish on the day of the visit). However, eggs, dairy products and fruit were apparently rarely on the menu. Prisoners supplemented their diet through food parcels from their families and by buying foodstuffs from the prison shop.”
COMPLAINTS
21. Relying on Article 3 of the Convention, the applicant complained that the detention conditions in Tbilisi no. 5 and Rustavi no. 6 Prisons had been inhuman and degrading. He also complained that, in view of his poor state of health and in the absence of adequate medical treatment in prison, his medical condition had drastically deteriorated.
22. Relying on various provisions of Article 5 of the Convention, the applicant complained of the unlawfulness of his arrest and pre-trial detention.
23. Under Article 6 §§ 1 and 3 (d) of the Convention, the applicant challenged the outcome of the criminal proceedings. In particular, he contended that the drugs had been planted on him by the police during the search; that the domestic courts had failed to give adequate reasons for rejecting this argument of the defence and had failed in this connection to question several key witnesses.
THE LAW
A. Abuse of the right of application
24. In their letter of 20 May 2013 the Government informed the Court that one of the applicant’s representatives, Mr M. Nozadze, had disclosed the details of the ongoing friendly settlement negotiations to the media, in violation of the confidentiality rule as enshrined in Rule 62 § 2 of the Rules of Court.
25. The Government further reminded the Court of its recent decisions in the cases of Aladashvili v. Georgia ((dec.) no. 17491/09, 3 April 2012) and Kotchlamazashvili v. Georgia ((dec.) no. 42270/10, 3 April 2012) in which the very same lawyer, Mr M. Nozadze, while acting as the applicants’ representative, was criticised by the Court for exceeding the authority given to him by the applicants and impeding the proper functioning of the Court. Having regard to the above-mentioned circumstances and the alleged breach of the confidentiality rule in the current case, the Government claimed that Mr M. Nozadze had been hindering the proper conduct of friendly settlement negotiations in a substantial number of cases pending before the Court and was misrepresenting the interests of the applicants. They invited the Court to consider the matter and take any relevant measure as provided for in the Rules of Court.
26. The applicant’s representative, on his part, dismissed the Government’s allegations as untrue. He claimed that he had not been personally interviewed by either of the newspapers mentioned by the Government, and that even if he had, the statements concerned would not have amounted to a breach of the confidentiality principle enshrined in Article 39 § 2 of the Convention. He dismissed the Government’s request as unfounded.
27. The Court notes that, in accordance with Rule 36 § 4 (b) of the Rules of Court, on 22 October 2013 the President of the Third Section decided that Mr Nozadze should be banned from representing or otherwise assisting applicants, both in pending applications and in any future cases brought before the Court. The Court considers that the matter has been resolved. Given that the respondent Government have not asked the Court to strike this application out of the list of cases on the ground of an abuse of the right of petition and in view of the specific circumstances of the present case, the Court will now proceed with the examination of the Government’s unilateral declaration.
B. As to the communicated complaints under Articles 3 and 6 §§ 1 and 3 (d) of the Convention
28. On 26 June 2012 the Court communicated to the Government the applicant’s complaints under Articles 3 and 6 §§ 1 and 3 (d) of the Convention concerning the alleged lack of adequate medical treatment in prison, poor conditions of detention and unfairness of the criminal proceedings conducted against him.
29. After the failure of attempts to reach a friendly settlement, the Government informed the Court by a letter of 20 May 2013 that they proposed to make a unilateral declaration with a view to resolving some of the issues raised in the communicated part of the application, while they considered the remainder of the application inadmissible. They also requested the Court to strike out the application in accordance with Article 37 of the Convention.
30. The relevant part of the declaration reads as follows:
“... [T]he Government hereby wish to express by way of a unilateral declaration their regretful acknowledgement of the following deficiencies pertinent to Giorgi Mazanashvili’s case: a violation of Article 3 of the Convention on account of the inadequacy of the medical treatment from September 2005 to February 2008 and a violation of Article 6 §§ 1 and 3 (d) of the Convention on account of the absence of a fair hearing on the determination of the criminal charges against the applicant.
Moreover, taking into account that sufficient medical care was provided with regard to all the applicant’s diseases for the period after February 2008 and the improvement in his state of health;
Considering that antiviral treatment was provided to Mr Mazanashvili and its successful results;
Taking into account the Report to the Georgian Government on the visit to Georgia carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (CPT) from 21 March to 2 April 2007 and the positive evaluation of the material conditions in Rustavi no. 6 Prison, which in general were deemed better than those in any other prison seen by the CPT in Georgia;
Referring to the fact that Mr Mazanashvili lodged his application with the European Court on 11 May 2007 and taking into account the inadmissibility of allegations regarding the conditions of Tbilisi no. 5 Prison owing to non-compliance with the six-month rule, as no ‘continuing situation’ had existed since the applicant had been transferred to Rustavi no. 6 Prison on 27 March; and
Bearing in mind the applicant’s right envisaged under Article 310 of the Criminal Procedure Code of Georgia, entitling him to address the domestic courts with a request to reopen the criminal case against him;
The Government are prepared to pay Mr Giorgi Mazanashvili 4,500 Euros to cover any and all pecuniary and non-pecuniary damage, as well as costs and expenses, plus any tax that may be chargeable to the applicant.
This sum will be converted into the Georgian national currency at the rate applicable on the date of payment, and will be payable within three months from the date of notification of the decision by the Court, pursuant to Article 37 § 1 of the European Convention on Human Rights. 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 applicable to the marginal lending rate of the European Central Bank during the default period, plus three percentage points.
The fulfillment of the above-mentioned conditions shall constitute a final resolution of the case.”
31. In a letter of 25 June 2013 the applicant requested that the Court reject the Government’s proposal on the basis that his case was of particular importance, given the substance of the violations alleged.
32. The Court reiterates 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.”
33. The Court also reiterates that, in certain circumstances, it may strike out an application or part of an application under Article 37 § 1 (c) of the Convention 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, and Beridze v. Georgia (dec.), no. 16206/06, 30 April 2013). 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 (see Tahsin Acar v. Turkey, [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, 18 September 2007).
34. In examining the Government’s declaration, the Court notes at the outset that they have explicitly acknowledged a violation of the applicant’s rights under Articles 3 and 6 §§ 1 and 3 (d) of the Convention. In this regard, it reiterates that there already exists well-established case-law on the issue of the lack of adequate medical treatment in prison (see, for instance, Goginashvili v. Georgia, no. 47729/08, §§ 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). The Court has also clearly established its practice on the various aspects of fair-trial guarantees relied on by the applicant in his complaints under Article 6 §§ 1 and 3 (d) of the Convention (see, for instance, Al-Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § 118-147, ECHR 2011; Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, §§ 196-213, 26 July 2011; and Lisica v. Croatia, no. 20100/06, §§ 47-62, 25 February 2010).
35. The Court also notes that the applicant has the possibility of requesting the reopening of the criminal proceedings conducted against him under Article 310 of the Criminal Procedure Code of Georgia (see Taktakishvili, cited above, and Tabagari v. Georgia (dec.), nos. 70820/10 and 60870/11, 18 June 2013).
36. Given the nature of the admissions contained in the Government’s unilateral declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of this part of the application (Article 37 § 1(c)). Moreover, in the light of the above considerations, and in particular given the clear 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 this part of the application (Article 37 § 1 in fine).
37. The Court notes the modalities agreed by the respondent Government for the payment of the amount proposed (see paragraph 30 above).
38. Accordingly, the complaints covered by the Government’s unilateral declaration should be struck out of the list.
C. As to the other alleged violations of the Convention
39. The applicant complained, under Article 3 of the Convention, of the poor conditions of detention in Tbilisi no. 5 and Rustavi no. 6 Prisons. The Government, for their part, submitted that the complaint with regard to detention conditions in Tbilisi no. 5 Prison was belated, whilst the complaint concerning Rustavi no. 6 Prison was manifestly ill-founded (see paragraph 30 above). In support of the latter claim, they referred to the findings of the CPT (see paragraph 20 above).
40. The Court firstly notes that the applicant left Tbilisi no. 5 Prison on 27 March 2006, whereas the current application was not submitted to the Court until 11 May 2007. It therefore considers that this part of the applicant’s complaints has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention (see, amongst many others, Testa v. Croatia, no. 20877/04, § 37, 12 July 2007, and Mikiashvili v. Georgia, no. 18996/06, § 63, 9 October 2012 with further references therein).
41. As regards the conditions of detention in Rustavi no. 6 Prison, the Court considers that the applicant’s allegations were formulated as vague and general statements (see paragraph 11 above). Having regard in particular to the CPT’s report of 25 October 2007 (see paragraph 20 above), the Court concludes that the applicant failed to provide a detailed account concerning the conditions in which he had been held that would merit consideration under Article 3 of the Convention (see, for example, Visloguzov v. Ukraine, no. 32362/02, §§ 48-49, 20 May 2010, and Ukhan v. Ukraine, no. 30628/02, § 65, 18 December 2008). In view of the foregoing, the Court considers that this part of the application has not been properly substantiated by the applicant and should be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention (see Ildani v. Georgia, no. 65391/09, §§ 26-27, 23 April 2013).
42. Lastly, the applicant’s complaints under Article 5 § 1 of the Convention concerning the alleged unlawfulness of his 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 22 September 2006 (see Davtian v. Georgia (dec.), no. 73241/01, 6 September 2005), whereas the present application was not lodged until 11 May 2007. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Takes note of the terms of the respondent Government’s declaration under Articles 3 and 6 §§ 1 and 3 (d) of the Convention;
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.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy