CASE OF GOGINASHVILI v. GEORGIA
Remainder inadmissible;No violation of Art. 3 (substantive aspect)
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
5. The applicant was born in 1960 and lives in Tbilisi. 6. On 21 May 2006 the applicant, a former police officer, was arrested on the Georgian-Turkish border on suspicion of smuggling drugs into Georgia. According to the record of the applicant’s body search carried out on the spot, 650 Subutex pills were found in a pocket of his jacket. He signed the record, noting in his own handwriting that he did not object to being searched in the absence of a lawyer. The applicant exercised his right to remain silent at that time, as well as during an examination he underwent as a suspect the following day. 7. On 23 May 2006 the applicant was charged with trafficking substances analogous to, or precursors of, narcotic drugs (Articles 260 and 262 of the Criminal Code). Questioned on the same day in the presence of his advocate, the applicant agreed to testify. He confessed to the crime, naming his accomplices, including a high-level official of the anti-drug department of the Georgian Ministry of the Interior, who had allegedly been covering up their illicit dealings. Subsequently, the investigation authority arrested the named persons, some of whom confessed to the drug trafficking. Other relevant evidence, including transcripts of taped telephone conversations between some of the suspects, was also added to the criminal file. 8. On 11 January 2007 the applicant and his accomplices were convicted of the above-mentioned drug offence. During the trial, the applicant retracted his previous self-incriminating statements and claimed innocence, asserting that the police had planted the Subutex in his pocket and that he had never conspired to engage in any illicit drug dealing. The court took note of that retraction and nevertheless observed that the applicant’s new version of events contradicted other findings in the case. Those findings were based, inter alia, on full or partial confessions explicitly made by some of his accomplices during the trial, in the presence of their advocates. In addition, the court analysed the transcripts of the taped telephone conversations, arriving at the conclusion that, despite their coded language, they confirmed the existence of a conspiracy between the applicant and other defendants. The conviction was also confirmed by the statements of certain other witnesses, as well as by the results of searches of the defendants’ homes. 9. On 9 February 2007 the applicant appealed against the conviction, calling into question the factual findings of the lower court. He also complained that the court had confirmed his conviction only on the basis of the transcripts of the taped conversations, without listening to the actual recordings. 10. On 12 July 2007 the Tbilisi Court of Appeal, after hearing the applicant and other defendants, some of whom maintained their confessions in exchange for a plea bargain with the prosecution, and having reviewed other case materials, upheld the applicant’s conviction. As regards his complaint about the transcripts of the taped conversations, the appellate court dismissed it, stating that the applicant should have raised it at the first-instance hearing. 11. The applicant’s appeal on point of law of 10 September 2007, in which he reiterated the arguments that he had made before the appellate court, was dismissed as inadmissible by the Supreme Court of Georgia on 26 February 2008. The applicant was thus sentenced to twenty-one years in prison, which started to run from the day of his arrest on 21 May 2006. He was placed in Rustavi no. 6 prison (“Rustavi Prison”). 12. According to the applicant’s medical file, he is suffering from glomerulonephritis, nephrosclerosis, chronic renal failure, viral hepatitis C (HCV), chronic bronchitis and arterial hypertension. His renal disorders developed gradually, as a result of a traffic accident in 1998, which caused septicaemia (blood poisoning). Before the applicant was detained he had already been diagnosed with those renal disorders at advanced stages and, according to his medical file, underwent several courses of symptomatic urological treatment. 13. The prison authority took charge of the applicant’s health problems for the first time on 6 July 2006. Notably, in order to have his state of health assessed, he was taken on that day to the Central Clinic of Tbilisi State Medical University for blood biochemical and urine analysis. 14. On the basis of the results of those tests, the prison authority then transferred the applicant, on 8 July 2006, from Rustavi Prison to the Medical Establishment of the Ministry of Justice (“the prison hospital”), where he received comprehensive medical treatment over the following four months, until 4 November 2006. This included various laboratory tests and examinations (blood and urine tests, electrocardiography, chest X-ray), repeated consultations with medical specialists, including a nephrologist who had been summoned by the prison authority from a civil hospital (this medical specialist examined the applicant on 18 July and 7 and 18 September 2006), and the prescription of appropriate drugs (antibiotics and antihypertensive and anti-anaemic agents) for nephrological/urological problems, HCV and arterial tension. 15. In addition, the prison authority, on the advice of a medical panel which had examined the applicant on 24 July 2006, repeatedly approached the medical authorities of various civilian hospitals between August and September 2006, seeking special tests, such as for creatinine and urea levels in the applicant’s blood and an ultrasound scan of his abdominal cavity. 16. On 4 November 2006 the applicant’s doctor at the prison hospital opined that when his current course of treatment was complete the applicant could be discharged back to Rustavi Prison, where he was to continue receiving medication. 17. Subsequently, the applicant had a medical check-up between 13 February and 15 March 2007 and another between 18 April and 18 May 2007, at the National Forensic Bureau (“the NFB”). Reports on both examinations confirmed that the applicant’s condition was stable and that he required long-term out-patient treatment under the supervision of a nephrologist, cardiologist and hepatologist. 18. On 11 August 2007 the applicant was again admitted to the prison hospital, where he remained until 18 August 2007. The in-patient treatment included blood and urine tests, chest X-ray, abdominal ultrasound scan and consultations with a cardiologist. When he was discharged the doctor in charge of the applicant recommended that the patient continue treatment with the relevant drugs on an out-patient basis under the supervision of medical specialists. 19. On 29 January 2008 the applicant was placed on an emergency basis in the intensive care unit of the prison hospital, with a diagnosis of possible food poisoning; he was also suffering from anuria (non-passage of urine), his condition being described as serious from the nephrological/urological point of view (“the relapse of 29 January 2008”). The applicant’s medical file confirms that comprehensive medical treatment was administered to him there, as a result of which his condition improved (the symptoms of anuria disappeared), and on 5 February 2008 he was transferred from intensive care to the ordinary therapeutic department of the prison hospital. 20. As disclosed by his medical file, the applicant underwent again, during his second stay in the prison hospital, the relevant medical tests and was examined by various medical specialists, including a nephrologist summoned by the prison authority from a civilian urology hospital (this examination took place on 4 February 2008). The nephrologist prescribed the applicant treatment with twenty different types of antibiotic, hypolipidemic and antihypertensive drugs; the prison hospital immediately provided the applicant with this medication in the necessary dosages. 21. On 3 April 2008, after several medical specialists, including a nephrologist from a civilian hospital whose assistance had been requested again by the prison authority, had confirmed that the applicant’s condition had stabilised, he was discharged back to Rustavi Prison, where he continued to receive the prescribed medication on an out-patient basis. 22. At the applicant’s request, experts from the National Forensic Bureau (“the NFB”) conducted additional medical examinations between 15 February and 7 April 2008. Their conclusions (“the medical conclusions of 15 February to 7 April 2008”) disclosed that the applicant’s kidney conditions, which could be qualified as progressive serious disorders, had slightly progressed in comparison to the previous medical examinations; the recommendation was that the applicant should continue treatment under the permanent supervision of a nephrologist. 23. On 8 June 2008 the Rustavi prison authorities informed the applicant’s advocate that its medical staff did not include a nephrologist. However, the prison undertook that in the event of deterioration of the applicant’s condition he would immediately be transferred to an appropriate medical establishment. 24. On 22 October 2008 the Court, allowing the applicant’s request, instructed the Government under Rule 39 of the Rules of Court to place the applicant in a medical establishment capable of providing adequate treatment for his various health problems; the Government were further invited to provide the Court with information regarding the capability of the prison hospital in that regard. 25. On 19 November 2008 the Government, as well as giving an account of the treatment administered to the applicant prior to the relapse of 29 January 2008, also informed the Court that, after the indication of the medical interim measure under Rule 39 of the Rules of Court, the applicant was transferred to the prison hospital on 30 October 2008. As disclosed by the relevant excerpts from his medical file, he received a comprehensive medical examination there, which included numerous laboratory tests (blood, urine, ultrasound-based diagnostic tests of stomach, kidney and heart, chest X-ray and others), repeated consultations with various specialists (including a nephrologist from a civilian hospital who examined the applicant on 20 November 2008) who prescribed him ten types of medication for his renal, cardiac and hepatic conditions. 26. On 23 June 2009 the Government updated the Court on the treatment provided to the applicant in the prison hospital. The medical file confirmed once again that the applicant had been regularly examined by various specialists, including different nephrologists from civilian hospitals, who had examined the applicant on 12 January, 16 March and 5 June 2009; a cardiologist and infection specialist, who prescribed specific treatment for him; the implementation of that treatment was then supervised on a daily basis by a general practitioner at the prison hospital (“the GP”). According to the GP’s medical log, which closely monitored the fluctuations in applicant’s state of health from the date of his admission to the prison hospital on 30 October until early July 2009, his condition remained stable overall, except for recurrent headache and general weakness. The applicant was treated with thirty-six types of prescribed anti-hypertension, cardiological, hepatoprotective, antiinflammatory, urological, nephrological, antioxidant, beta-adrenoreceptor and sedative medication, as well as with various vitamins. In addition, as disclosed by the medical file, on 8 June 2009 the applicant gave his consent in writing to start receiving anti-HCV treatment with the powerful anti-viral agents Ribovirin and Interferon. 27. In the light of the above-mentioned information, the Government submitted that they had taken all necessary measures for the protection of the applicant’s health in prison, and asked the Court to lift the interim measure previously indicated on 22 October 2008. 28. By letters dated 4 August 2009 and 16 April 2010, the applicant objected before the Court to the consultations provided by a nephrologist, stating that they were too infrequent. Notably, referring to the relevant records in his medical file, he complained that between November 2008 and February 2010, he had been examined by that specialist on only seven occasions, with the intervals varying from two to three months. Acknowledging that the prison hospital had started administering antiHCV and other types of drugs, the applicant nevertheless claimed that no adequate treatment had been provided for his kidney problems. Furthermore, certain anti-HCV drugs, such as Interferon, had, he stated, had a deleterious effect on his kidneys. Relying on these arguments, the applicant claimed that only a civilian hospital, where he could benefit, according to the medical conclusions of 15 February to 7 April 2008, from the permanent supervision of a nephrologist, could provide adequate treatment for him. 29. In support of the above allegations the applicant submitted more recent excerpts from his medical file, giving an account of the treatment provided for him in the prison hospital from December 2009 to March 2010. Those documents disclosed that his overall condition had remained stable during that period. According to the GP’s opinion dated 23 February 2010, given the chronic nature of the applicant’s kidney problems and that his condition was not acute, nor was he experiencing deterioration, there was no need for specific treatment such as haemodialysis at a specialist nephrology hospital. As to his HCV, despite the provided anti-viral medication, there continued to be a virological response to the blood tests conducted (SVR). 30. On 30 August 2010 the Court, in the light of the additional information provided by the parties, decided to lift the interim measure previously indicated on 22 October 2008. 31. Despite the fact that the interim measure was lifted, of which both parties were duly informed by the Court on 1 September 2010, the relevant authorities did not remove the applicant from the prison hospital. Thus, at the time of the submission of the Government’s comments of 6 May 2011 (see paragraph 4 above), the applicant was still undergoing, and had been since 30 October 2008, treatment in that hospital. 32. Pursuant to Article 607 § 1 (a) of the CCP, a court could suspend a prison sentence in view of a convict’s grave state of health, if his or her illness impeded the proper execution of the sentence, pending the convict’s full or partial recovery. 33. Article 608 of the CCP provided for a possibility of early release by a court on account of a convict’s grave or incurable illness, which should be established by a qualified medical opinion. 34. Article 207 of the General Administrative Code stated that an individual could sue a State agency for damage under the rules on liability for civil wrongs contained in the Civil Code. Article 413 of the Civil Code entitled an individual to request compensation for non-pecuniary damage caused in respect of damage to his or her health. 35. Pursuant to Articles 24 and 33(1) of the Code of Administrative Procedure, an individual was entitled to request through a court that a State agency be ordered to undertake a certain action or, to the contrary, to refrain from taking an action, whether by adopting a written administrative act or without it, if such a request was aimed at the protection of the individual’s rights or legitimate interests. 36. On 1 October 2010 the Prison Code entered into force, abolishing the previous Imprisonment Act of 22 July 1999 (for the relevant provisions of that Act, see Aliev v. Georgia, no. 522/04, § 33, 13 January 2009) and introducing, inter alia, a new and detailed procedure for filing by detainees, both accused and convicted persons, of complaints to and against the prison authority. 37. Article 24 of this Code, which provided for the right to health care in prison, read as follows: Article 24 - Right to Health Care “1. A [detained] accused/convict shall have the right to use all the necessary medical facilities. All types of medical treatment which are permitted in the given establishment should be made accessible to [a detainee]. If so requested, [a detainee] should be entitled to obtain at his or her own expense more expensive or similar medication or other type of medical treatment than those procured by the relevant establishment. In the event of a reasoned request, and with the permission of the Head of the [Prison] Department, [a detainee] may invite a civilian doctor at his or her own expense. 2. Immediately upon entering an establishment, a [detainee] must undergo a medical examination. The relevant record shall be drawn up and added to the [detainee’s] personal medical file.” 38. By virtue of Article 96, a detainee, acting either in person or through his lawyer or a representative in law, may submit a written complaint against any action or omission by a staff member of the relevant establishment, a legal decision or any other matter which appears to constitute a breach of a right guaranteed to him or her by the Prison Code. Article 97 specified that, upon being placed in the establishment, a detainee must immediately be informed by the authorities of his or her right to submit such a complaint. 39. Pursuant to Articles 98 and 99, a complaint should initially be addressed to the hierarchical superior of the prison officer or agency who has allegedly breached the detainee’s right in question or to the Special Preventative Group (this group forms, according to Article 32 of the Prison Code, part of the Georgian Public Defender’s Office and was established in order to monitor allegations of ill-treatment in prison). In order to guarantee that a complaint is drafted in a proper manner, the detainee may solicit the services of a lawyer, including a public lawyer financed by the State. A detainee who does not have a sufficient understanding of the Georgian language shall be assigned an interpreter free of charge. 40. Article 102 states that a detainee’s complaint must be delivered to the addressee within forty-eight hours. 41. Article 103 further states that if an ordinary complaint is addressed to the governor of an establishment, he or she shall examine and respond to it within five days, which period may be extended, in exceptional circumstances, up to one month. If a complaint is addressed to the Head of the Prison Department, that authority has ten days to examine it, which period may also be extended, as an exception, up to one month. In any event, the detainee must be duly warned of any extension of the ordinary time-limit. 42. Pursuant to Article 105, a complaint raising allegations of torture, inhuman or degrading treatment is considered to be an extraordinary complaint which should be examined by the relevant authority “immediately”. In addition to examining it, the governor of the establishment in question, as well as the Special Preventative Group, must be informed of that complaint within twenty-four hours after it has been submitted. 43. Article 106 requires that the relevant authority’s response to a detainee’s complaint, whether positive or negative, must be duly reasoned; every specific issue raised by the detainee must be fully addressed. If the detainee is not satisfied with that response, he or she may, under Article 107, contest it before a court, initiating the relevant administrativelegal proceedings. 44. The excerpts from the above-mentioned Report, describing the capacity of the new prison hospital, read as follows: “99. The Medical establishment for prisoners in Tbilisi (Gldani), located within the perimeter of the Gldani penitentiary complex, represents a great improvement on the Central Prison Hospital visited by the CPT in 2001 and 2004. The delegation gained a globally positive impression of this new facility, inaugurated at the end of 2008 but in fact functioning fully only for a few months. With an official capacity of 258 beds, the establishment was accommodating 231 sick prisoners at the time of the visit. All the patients were men. There were five wards: surgery, psychiatry, infectious diseases, internal medicine and intensive care/reanimation. Further, there was an admissions unit, an X-ray unit, a dental office, a laboratory, rooms for endoscopy and physiotherapy, and a pharmacy. 100. The diagnostic equipment was modern and functional, and the establishment offered an adequate range of hospital treatments for prisoners. It was also possible to transfer sick prisoners to other hospital facilities for diagnostic treatments which were not available at the Medical establishment (an average of 5 transfers per week). 101. Clinical staff were sufficient in numbers (a total of 129 doctors and nurses) and appropriately trained. Further, a number of outside medical consultants (neuropsychiatrist, neurosurgeon, etc.) held periodic surgeries. ... 103. As regards material conditions in the patients’ rooms, there was adequate access to natural light, artificial lighting and ventilation, and the rooms were in a good state of repair and cleanliness. That said, the rooms were rather cramped (e.g. six prisoners in a room measuring some 20 m², including a sanitary annexe).”