CASE OF KITIASHVILI v. GEORGIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1977 and at the material time was serving a sentence of imprisonment. The facts of the case as submitted by the parties may be summarised as follows. 6. The case file indicates that in April 2001 and March 2005 the applicant was found guilty of various criminal offences, but his prison sentence was suspended for health reasons (cardiovascular and lung disorders, high blood pressure, a left bundle branch block, and tuberculosis of the left lung). 7. In November 2005 and March 2007 two additional sets of criminal proceedings on multiple charges including armed robbery were initiated against the applicant. He was arrested on 28 December 2006 and placed in pre-trial detention. 8. On 14 June 2007 the applicant was found guilty as charged in the first set of proceedings and sentenced to twenty-four years’ imprisonment. The applicant did not appeal against his conviction. 9. On 25 September 2007, in the second set of criminal proceedings, the applicant was found guilty of armed robbery and sentenced to thirteen years’ imprisonment. The court further decided that the aggregate term of imprisonment to be served pursuant to that judgment and the judgment of 14 June 2007 should be fixed at thirty years. 10. The judgment of 25 September 2007 was altered on appeal on 21 January 2008. The prison sentence for the offences committed in 2005 was reduced to ten years, but the total sentence to be served remained unchanged at thirty years. An appeal on points of law by the applicant was rejected as inadmissible by the Supreme Court of Georgia on 15 September 2008. 11. On 1 November 2012 the applicant was granted early release from prison. 12. The applicant entered the prison system with a history of tuberculosis of the left lung. On 10 April 2008 he was transferred to the Department of Prisons’ medical facility (“the prison hospital”), where an Xray of his lungs was performed. As no pathologies were revealed, the applicant was returned to Rustavi Prison no. 6 on 17 April 2008. 13. On 1 May 2008 he was hospitalised again because of a cyst on his right testicle, and on 4 May 2008 he underwent a surgical operation to have the cyst removed. The results of a subsequent biopsy revealed that the cyst was a benign skin cyst. On 6 May 2008 additional blood tests revealed that the applicant did not have AIDS, but it was not possible at that stage to determine the presence of the hepatitis C antibody in his blood. Further tests three months later were recommended. After a trouble-free period of convalescence, the applicant was sent back to prison on 24 May 2008. 14. On 23 June 2008 the applicant’s lawyer asked for additional medical tests to be organised for the applicant. In particular, he asked for a blood test for hepatitis C. That request apparently went unanswered. On 10 July 2008 the applicant was transferred to the prison hospital because of an abscess in his lower jaw. In addition to being treated by a dentist, according to the medical file, the applicant had a consultation with a neurologist and an endocrinologist because he was experiencing persistent headaches. The neurologist diagnosed him with post-traumatic encephalopathy and prescribed treatment. On 30 July 2008 the applicant was discharged from the prison hospital, although his headaches persisted. 15. On 8, 9, 15 and 24 September 2008 the applicant applied to the prison authorities to be returned to the prison hospital “for serious health reasons”. He did not specify what was wrong with his health. On 10 September 2008 the prison authorities forwarded the applicant’s letters to the governor of Rustavi Prison no. 6 and the head of the prison administration’s group of medical experts, so that they could be examined and appropriate action could be taken. 16. On 30 October 2008 the applicant staged a hunger strike to obtain an examination by a neurologist. On 5 November 2008 the applicant was seen in prison by a neurologist, who prescribed treatment for his post-traumatic encephalopathy. 17. On 10 November 2008 representatives of the Public Defender’s Office visited the applicant, who complained of headaches. The applicant alleged that during his previous stay in the prison hospital he had taken medicine for his headaches for a week, but to no avail. He said that he had suffered from headaches before his arrest, however, the pain had become more severe, and at that point it had been constant for six months. He also alleged that the treatment prescribed on 5 November 2008 had not yielded any results. On 11 November 2008 the Public Defender sent a report on the meeting to the prison governor and requested news of the applicant’s state of health. 18. On 27 November 2008, after having examined the applicant, the neurologist diagnosed neurasthenia and post-traumatic encephalopathy. Noting that the previous treatment had not worked, he considered that a more thorough examination was necessary. 19. On 8 December 2008 the applicant staged a second hunger strike, requesting that he be transferred to the prison hospital. He maintained that, having suffered a serious head injury in the past, he was in need of a comprehensive inpatient examination of his head. He further complained that, although he was only being prescribed simple sedatives, he was not receiving them. On 17 December 2008 a representative from the Public Defender’s office met with the chief physician of Rustavi Prison no. 6, where the applicant was staying at the material time. The doctor confirmed that the applicant was suffering from headaches and was in need of a tomography scan. He explained, however, that the applicant was only receiving pain medication, as the relevant insurance company refused to finance the required examination and treatment. According to an entry in the applicant’s medical file, on 19 December 2008 he was still on hunger strike, suffering from headaches. 20. On 29 December 2008 the Public Defender wrote a letter to the Minister of Justice, the head of the Prisons Department, and the Governor of Rustavi Prison no. 6, challenging the effectiveness of the insurance company with which the Ministry of Prisons had concluded a contract, on the basis of, inter alia, the applicant’s case. The Public Defender alleged that the applicant was being denied adequate examination and treatment for his post-traumatic brain condition. While discussing in detail the failures and shortcomings of the existing insurance scheme, the Public Defender recommended that the relevant authorities annul the relevant contract. 21. In the meantime, an X-ray of the applicant’s lungs taken on either 22 or 23 of December 2008 had revealed signs of recurrent tuberculosis. His doctor recommended bacteriological analysis and an examination by a specialist. On 23 January 2009 bacteriological tests revealed the presence of tuberculosis bacteria, and the applicant was immediately put on a DOTS (Directly Observed Treatment, Shortcourse) programme, the treatment strategy for the detection and cure of tuberculosis, as recommended by the World Health Organisation. 22. According to an entry in the applicant’s medical file, on 18 February 2009 he was still suffering from constant headaches. The doctor treating the applicant recommended that he be transferred to the prison hospital for proper examination. On 19 February 2009 the applicant was placed in the prison hospital with a diagnosis of pulmonary tuberculosis and posttraumatic encephalopathy. There, he underwent various medical tests, including a blood test for hepatitis C markers, which was negative, and a tomography scan. He also had a consultation with a neurologist. As a result, he was diagnosed with intracranial hypertension syndrome. The applicant was prescribed relevant treatment and sent back to Rustavi Prison no. 6 on 26 February 2009. 23. On 5 March 2009 the applicant was placed in a facility in Ksani for prisoners with tuberculosis. On 10 and 13 July 2009 he violated the internal rules of the facility. As a result, on an unspecified date he was transferred back to Rustavi Prison no. 6, where, according to the latest medical examination of which the Court was informed, he continued his treatment for tuberculosis. 24. On 14 July 2009 the applicant underwent a serological test, which detected no active hepatitis C virus in his system. 25. On 29 December 2006 the applicant was placed in Tbilisi Prison no. 5, where he stayed for almost six months. According to him, the conditions of detention in that prison were inhuman and degrading. In view of the severe overcrowding in prison, he had to take turns sleeping, sleeping for a maximum of four hours a day. The sanitary and hygienic conditions were appalling, and for months there was no opportunity for him to have proper shower. The applicant was also deprived of the opportunity to have regular outdoor exercise. Whilst in Tbilisi Prison no. 5, he was not allowed to see his family even once. 26. On 23 June 2007, following his conviction, the applicant was transferred to Rustavi Prison no. 6. According to him, the conditions of his detention improved there, although he was still deprived of regular outdoor exercise. Moreover, the nutrition in the prison was poor and he was deprived of basic items relating to hygiene, such as soap, bed linen, toilet paper, and towels. 27. According to a letter from the prison governor dated 24 June 2008, the applicant was only visited by his family once during his time in that prison, on 22 April 2008.