CASE OF MIRZASHVILI v. GEORGIA
Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)
André Potocki;Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Gabriele Kucsko-Stadlmayer
6. The applicant was born in 1971 and was at the material time serving a prison sentence in Rustavi Prison no. 2. 7. On 9 August 2005 the applicant was arrested on suspicion of having robbed an individual of his vehicle, his mobile phone, and a sum of money while armed. He was placed under investigation that day and questioned twice. He protested his innocence, providing an alibi, and said that he had cancer and was undergoing treatment at an oncology clinic. The applicant was identified by the victims. Maintaining his innocence, he refused to sign the record of the identification procedure. 8. During questioning on 10 August 2005, the applicant repeated his alibi and complained about his state of health. On the same day he was charged with theft and armed robbery (Articles 178 and 179 of the Criminal Code respectively). 9. On 11 August 2005 the Mtskheta District Court granted an application by the prosecutor to place the applicant in pre-trial detention for three months. On 22 August 2005 the decision was upheld by the Tbilisi District Court, despite the applicant’s submission that he was ill and would not attempt to evade justice. The applicant was placed in Tbilisi Prison no. 5. 10. On 18 October 2006 the applicant was found guilty of the charges and sentenced to ten years’ imprisonment by the court of first instance. 11. The applicant appealed to the Tbilisi Court of Appeal. After examining the witness statements in the light of the other evidence, the Court of Appeal found that the applicant’s alibi lacked credibility. By a judgment of 24 July 2007, it amended the judgment of 18 October 2006 in the part concerning the classification of the offences, but upheld the applicant’s conviction and prison sentence. 12. The Supreme Court of Georgia dismissed an appeal on points of law by the applicant on an unidentified date. 13. In 1998 the applicant had an operation to remove a malignant tumour from his right testicle. He subsequently had chemotherapy on a sporadic basis. As the illness then returned, he had another operation in 2003. According to a medical certificate dated 4 March 2005, the applicant also suffered from chronic hepatitis C (HCV). 14. Shortly after being placed in detention, on 20 August 2005, the applicant was transferred to the prison hospital. After confirming the diagnosis of chronic HCV and that he had been recently treated for cancer of the right testicle, doctors recommended he have a consultation with an oncologist and a special medical examination. On 24 August 2005 the head of the surgical unit wrote to the prison hospital’s acting head doctor, informing her that the applicant needed to be examined by a urological oncologist at the National Centre for Oncology (“the NCO”). He noted that the applicant was ready to bear all the costs himself. In September 2005 doctors again recommended he be seen by an oncologist specialising in urology. The case file shows that the applicant was not transferred to the NCO or examined by an oncologist. He stayed at the prison hospital until 4 February 2006 and, according to his medical records, he was provided with treatment for his symptoms, which consisted of pain medication. 15. After several prison transfers and given that his health was still unsatisfactory, the applicant returned to the prison hospital on 25 February 2006. On 7 March 2006 an oncologist concluded after examining the applicant that the cancer had returned and that he also had pain in his left testicle. He had lost weight and the chronic HCV had worsened. 16. On 15 August 2006, at the request of the applicant’s defence, a group of independent experts submitted a report on his health. They diagnosed him with cancer of the right testicle at stage 1 B in clinical group II. The experts considered that given the degree of the tumour’s malignancy the applicant’s state of health could be considered as potentially serious. The rest of the tumour would have to be removed and the applicant given an intensive course of chemotherapy in conditions of stability. He would have to undergo check-ups every three months for five to seven years. 17. On 2 September 2006 the applicant was sent back to Tbilisi Prison no. 5. The authorities refused a request for his return to the prison hospital sent by his lawyer to the director of the prisons department of the Ministry of Justice, the prison governor and other authorities. 18. On 17 November 2006 the applicant was sent to the NCO for a course of chemotherapy. On 5 December 2006, before being discharged, the oncologist recommended that the applicant return after three weeks for a check-up and more chemotherapy. At the same time, in view of the further progress of the disease, he recommended that the applicant be placed under permanent medical supervision in the prison hospital. 19. The applicant was put in the prison hospital from 5 to 16 December 2016, receiving treatment for his symptoms. On 16 December 2006 he was moved from the prison hospital to Rustavi Prison no. 6. Contrary to the oncologist’s recommendations, the prison administration did not send the applicant back to the NCO after three weeks. 20. On 5 April 2007 the applicant’s lawyer lodged a complaint with the Tbilisi Court of Appeal, drawing the judge’s attention to his client’s poor health, caused by a lack of adequate treatment which, in his view, could lead to his death. He complained in particular about the fact that the applicant had not been able to attend intensive chemotherapy sessions, despite doctors’ recommendations. The lawyer asked the Court of Appeal to order an expert report to reassess his client’s state of health, determine whether the prison hospital was able to provide him with the necessary treatment and whether the conditions of his detention could have a negative impact on his health. It also had to establish whether the applicant’s life would be put at risk if the authorities failed to place him in a specialist clinic. 21. On 10 April 2007, the Court of Appeal, having received an objection from the prosecutor, rejected the lawyer’s request and decided to summon the oncologist who had signed the recommendation of 5 December 2006. 22. On 21 April 2007 the applicant was placed in the prison hospital. On 24 April 2007 his doctor concluded that the applicant required a transfer to the NCO for more chemotherapy. The doctor subsequently reiterated his recommendation, however, it was in vain as no transfer followed. By midMay the applicant’s condition had deteriorated. According to his medical records, he suffered constant pain and regularly received strong painkillers. The doctor in charge noted on a regular basis in the medical record that the applicant needed to be transferred to the NCO urgently. 23. In the meantime, in the context of the criminal proceedings conducted against the applicant, the Court of Appeal ordered that he be examined at the NCO. 24. On 19 June 2007, the applicant was admitted to the NCO, where he stayed until 13 July 2007 in order to undergo a course of chemotherapy. At the same time a report concerning his medical condition was issued, which confirmed the diagnosis of cancer of the right testicle at stage 1 B in clinical group II. The experts held that the results of the chemotherapy meant that the applicant’s state of ill health could not be described as serious. Nevertheless, given the malignancy of the tumour the cancer could return. Consequently, several chemotherapy sessions were necessary to consolidate the success of the previous treatment. In addition, the applicant needed check-ups in a specialist clinic every three months. 25. He was then returned to the prison hospital on 13 July 2007, with a recommendation for another course of chemotherapy after three weeks. In August 2007 the doctor in charge of his case repeatedly noted in his medical records that he required chemotherapy. The medical file shows that only treatment for his symptoms was available at that time. 26. On 23 August 2007 the applicant returned to the NCO for chemotherapy. On 7 September 2007 he was transferred back to the prison hospital with a recommendation for regular quarterly medical tests. On 22 September 2007 he was sent to Rustavi Prison no. 2 and given a recommendation for an examination after three months. No record of his medical care at Rustavi Prison no. 2 and the subsequent four months, if any, has been submitted to the Court. 27. On 31 January 2008 the applicant was transferred to the prison hospital, where he had various medical tests and had a consultation with an oncologist and a chemotherapy specialist. The latter concluded that there was no need for continued chemotherapy and noted that the applicant was due to return to the prison hospital for another check-up within two months. As for the applicant’s HCV, a liver function test had helped establish that the amount of bilirubin was within the norm and that no antiviral treatment was required at that stage. On 21 February 2008 the applicant complained about being discharged from the prison hospital and of a lack of adequate medical care, particularly for his HCV. He stated that the chemotherapy had had an adverse effect on his liver and that he required urgent care in that regard. Notwithstanding his complaint, on 23 February 2008 he was transferred to Rustavi Prison no. 2. 28. The applicant submitted that he had borne the costs of his stays in hospital and treatment with the support of his family. According to the invoices in the case file, 800 Georgian laris (approximately 333 euros (EUR)) were spent on his treatment at the NCO. The applicant also submitted a certificate which stated that in the framework of a state-funded programme to combat cancer he had benefitted from a 30% reduction in the cost of treatment and a 70% reduction in the cost of diagnostic tests. Without those reductions, the family would not have been able to pay for his treatment. 29. On 28 March 2008 the Court, acting under Rule 39 of the Rules of Court, indicated to the Government that the applicant should be placed in the prison hospital, where he could be provided with adequate medical treatment for his cancer and chronic HCV. The Government were also directed to ensure that the applicant was provided with all the relevant medical tests before commencing antiviral treatment and that his treatment be determined in consultation with an oncologist. 30. The applicant was transferred to the prison hospital the next day. On 8 April 2008, he was taken to a specialist civilian medical institution, where he underwent a tomography scan, which revealed a cyst-like lump. Doctors recommended a cancer marker blood test and an examination by an oncologist. Upon his return to the prison hospital, on 12-13 April 2008, the applicant had a consultation with a chemotherapy specialist, who concluded that he required several liver tests in view of his HCV diagnosis and further chemotherapy. The applicant was immediately offered chemotherapy at the prison hospital under the surveillance of an oncologist and a chemotherapy expert. However, he rejected that offer and on 16 April 2008 requested a transfer to a specialist medical establishment. In that connection, the applicant argued that the conditions at the prison hospital were not appropriate for chemotherapy and that the relevant specialists were not present on a permanent basis to monitor his condition. 31. On 1 May 2008 a medical panel at the prison hospital, including an oncologist, chemotherapy doctor and a liver specialist, concluded that treating both of the applicant’s diseases simultaneously was not advisable. They concluded that chemotherapy was the priority and that the antiviral treatment should be postponed. On 5 May 2008 the applicant was again offered chemotherapy at the prison hospital, but he refused and requested a transfer to the NCO. In reply to his request, by a letter of 8 May 2008, the head of social services at the prisons department asked the applicant to substantiate his request and explain the reasons for his dissatisfaction with the prison hospital. The applicant noted in a letter of 23 May 2008 that the prison hospital, inter alia, did not employ a chemotherapy specialist who was present on a daily basis and that he would therefore be left without fulltime medical supervision there. 32. According to the medical file, the applicant on 27 May 2008 again had a consultation with a chemotherapy doctor. Whilst confirming the need for chemotherapy, the doctor also noted that the applicant required various liver tests before antiviral treatment could commence. 33. In a letter of 4 June 2008 the head of social services stated that the prison hospital was adequately equipped to provide the applicant with chemotherapy under the supervision of relevant specialists. He noted that several other inmates had had such treatment at the prison hospital and there was therefore no need to transfer the applicant to a specialist civilian hospital. 34. The Government informed the Court in a letter of 4 June 2008 about the applicant’s refusal to have chemotherapy in the prison hospital. Treating it as obstructive behaviour and referring to the associated health risks, the Government asked the Court to provide them with any further indications at its earliest convenience. 35. On 7 and 8 July 2008 the applicant asked the Court, under Rule 39, to indicate to the Government to transfer him to the NCO for chemotherapy. He reiterated his argument concerning the inadequacy of the equipment at the prison hospital for providing the requisite treatment for his cancer. In support, he noted that two of the six prisoners who had had chemotherapy at the prison hospital had passed away. 36. On 10 July 2008 the Court, acting under Rule 39 of the Rules of Court, requested that the Government transfer the applicant to the NCO for more chemotherapy. On 14 July 2008 the applicant was transferred to the NCO, where he had a tomography scan, which showed that there had been no progression of his retroperitoneal lymphadenopathy in the abdominal cavity and that tumour markers were within normal limits. At the same time the scan revealed changes in his left lung and doctors recommended that he have a further examination. Following additional medical tests the applicant was diagnosed with tuberculosis (“TB”) in the left lung. On 20 August 2008 he had a resection of the upper part of the left lung. On discharge from the NCO in early September, it was noted that his condition was stable but that he required specialist treatment in a tuberculosis unit. The need for quarterly oncological check-ups was also noted. 37. On 3 October 2008 the applicant had a consultation with a liver specialist, who noted a low level of pathological activity in the applicant’s HCV and prescribed treatment with various hepatoprotectors. At the same time he was offered anti-TB treatment within the DOTS programme (Directly Observed Treatment, Shortcourse – the treatment strategy for the detection and cure of TB recommended by the World Health Organisation), which he refused. On 31 October 2008 and then on 12 January 2009 the applicant also had HCV tests. The results showed no replication of the hepatitis and accordingly no need for antiviral treatment. The applicant was prescribed continued treatment with various hepatoprotectors. 38. Over the following months the applicant was kept mainly in the prison hospital, except for short periods in December 2008, and January, March and July 2009, when he was transferred to the NCO and other civilian hospitals for check-ups. The medical records show that over that time the applicant was kept under constant medical supervision, having regular laboratory tests and examinations (blood and urine tests, ultrasound examinations, several tomography scans, determination of cancer markers, and bacteriological sputum tests), and having repeated consultations with medical specialists, including an oncologist, urologist, and an infection specialist. The medical file also shows that between 27 March and 28 April 2009 the applicant underwent a comprehensive forensic examination at the National Forensics Bureau. As a result his diagnosis was defined as follows: cancer of the right testicle at the first stage in clinical group III in a postchemotherapy and post-resection period. The applicant’s condition was described as satisfactory, with the experts noting no hepatological pathology, inactive tuberculosis bacteria and no progression of the cancer. 39. On 7 October 2009 the Government updated the Court on the treatment provided to the applicant for his various diseases. When submitting the applicant’s complete medical file for 2009, the Government maintained that the applicant’s diseases were not showing any signs of progression. They submitted that they had taken all the necessary measures for the protection of the applicant’s health in prison and asked the Court to lift the interim measure indicated on 28 March 2008. 40. By a letter of 16 June 2010, the applicant objected to being discharged from the prison hospital. He stated that the medical evidence submitted by the Government did not support the assertion that he did not require further medical treatment. He also noted that he had never been provided with any treatment for his chronic HCV and that his health would again deteriorate if he was transferred to Rustavi Prison no. 2. 41. In the light of the information provided by the parties, the Court on 8 February 2012 decided to lift the interim measures previously indicated on 28 March and 10 July 2008 under Rule 39. 42. The applicant was detained in Tbilisi Prison no. 5 between 11 August 2005 and 17 November 2006, including several transfers to the prison hospital. According to the applicant, the conditions of his detention in Tbilisi Prison no. 5 were appalling. He was kept in an overcrowded cell, where he had to take turns to sleep, getting a maximum two-three hours of sleep a day. The sanitary and hygiene conditions in the cell were bad and he was not allowed to have daily outdoor exercise. 43. The applicant mainly spent the following two years in Rustavi Prison no. 6 and the prison hospital. According to the applicant, the food provided in those establishments was so poor that his family had to regularly supply him with food at their own expense. Furthermore, he was deprived of basic items of hygiene, such as toilet paper, soap and bed linen.