FIFTH SECTION

DECISION

Application no. 35861/11 Tamar KEKELASHVILI against Georgia

The European Court of Human Rights (Fifth Section), sitting on 17 November 2020 as a Chamber composed of:

Síofra O ’ Leary, President, Mārtiņš Mits, Stéphanie Mourou-Vikström, Jovan Ilievski, Lado Chanturia, Arnfinn Bårdsen, Mattias Guyomar, judges, and Victor Soloveytchik, Section Registrar ,

Having regard to the above application lodged on 8 June 2011,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Ms Tamar Kekelashvili, is a Georgian national, who was born in 1951 and lives in the village of Mejvriskhevi of the Gori municipality . She was represented before the Court by Ms S. Abuladze, a lawyer practising in Tbilisi.

2 . The Georgian Government (“the Government”) were represented by their Agents, most recently Mr B. Dzamashvili, of the Ministry of Justice.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 11 September 2005 the applicant ’ s brother, S.K., born in 1950, was placed in pre-trial detention in relation to charges of attempted premeditated murder. He was subsequently convicted and sentenced to seven years ’ imprisonment.

5 . According to the applicant, the material conditions in which S.K. had been detained in the Tbilisi prison no. 1, apparently between 14 September 2005 and 27 August 2006, had been unsatisfactory.

6 . On 15 December 2009 S.K. was tested for tuberculosis; the result was negative.

7 . On 26 January 2010, while he was an inmate in Rustavi Prison No. 2, S.K. consulted a doctor for weakness, sleeping problems, increased sweating, problems breathing, and a high temperature. The doctor reached a preliminary diagnosis of the inflammation of the tissue layers lining the lungs and inner chest wall , prescribed treatment and recommended that additional examinations be carried out.

8 . On 28 January 2010 S.K. was admitted to the prison hospital.

9 . On 15 February 2010, following persistent complaints, numerous medical consultations and tests, and the progressively worsening condition of his health despite treatment, S.K. was placed in the intensive-care unit of the prison hospital, the doctors being unable to reach a final conclusion regarding the diagnosis.

10 . On the evening of 16 February 2010, the surgeon noted the possibility that S.K. was suffering from generalised tuberculosis.

11 . On the morning of 17 February 2010, an X-ray revealed, among other abnormalities, abdominal perforation. S.K. ’ s condition was categorised as “particularly serious”. An urgent surgical procedure was performed. As a result, it was discovered that S.K. was suffering from a perforated colon, pelvic abscess and diffuse purulent/faecal peritonitis. A sigmoid resection, splenectomy, and descendostomy were performed.

12 . On 18 February 2010 S.K. ’ s condition was classified as “serious but stable” and he was kept under constant medical supervision and provided with relevant treatment.

13 . At 6.15 pm on 22 February 2010, S.K. was taken to a civilian hospital , where he died half an hour later, at 6.45 pm.

14 . On 22 February 2010 the Tbilisi Didube-Chugureti District Prosecutor ’ s Office opened a criminal investigation into S.K. ’ s death (on suspicion of negligent homicide). On the same day, an investigator ordered a forensic medical examination to determine the cause of S.K. ’ s death.

15 . The forensic medical examination was carried out by a State forensic expert and lasted from 23 February to 21 May 2010. The resulting report no. 185/33 (“the first forensic expert report”) stated as follows:

“The cause of S.K. ’ s death [was] multiple organ failure developed as a result of diffuse purulent peritonitis, with tuberculosis as an underlying condition.”

16 . On 9 March 2010 the applicant was granted victim status. On the same day the investigator questioned the applicant as a witness.

17 . On 6 July 2010 the applicant wrote to the Chief Prosecutor ’ s Office that her brother had been held in different prisons without having been afforded medical supervision and treatment, leading to the deterioration of his health and eventual death.

18 . On 12 July 2010 the investigator questioned the applicant and commissioned another examination by a panel of experts. The experts were asked whether the medical treatment carried out in respect of S.K. had been timely and adequate. The forensic medical examination by a panel of four experts lasted from 20 July 2010 to 30 March 2011. The resulting report no. 393/35 (“the second forensic expert report”) concluded, among other things, that S.K. had been diagnosed “correctly, but belatedly” and that the delay had been caused by the atypical progression of the disease.

19 . On 2 May 2011 the applicant enquired about the progress of the criminal investigation. On 26 May 2011 the Chief Prosecutor ’ s Office responded that the query had been forwarded to the Tbilisi Didube ‑ Chugureti District Prosecutor ’ s Office, noting that the criminal investigation was ongoing.

20 . On 4 March 2019 the Government informed the Court of various investigative activities that had been carried out on different dates in 2015 and 2017.

21 . At the time of the most recent communication with the parties on 5 and 31 May 2019, when the last observations were filed by the Government and the applicant respectively, the criminal proceedings were still ongoing.

22 . On 21 June 2010 the applicant instituted proceedings against the Prisons Department to establish whether medical files in respect of her brother had been kept in all the prisons in which he had been held throughout his detention, and what kind of treatment he had undergone. On 6 August 2010 the Tbilisi City Court dismissed her application, stating that prisoners ’ medical files were confidential. On 30 December 2010 the Tbilisi Court of Appeal terminated the proceedings on the grounds of the absence of a dispute. It reasoned that on 19 February, 12 April and 4 August 2010 the applicant had received information as to the prison institutions where her brother had been held, together with the relevant medical documentation. The appellate court ’ s decision was subject to an appeal within twelve days. It does not appear that the applicant availed herself of that possibility.

23 . On 23 June 2011 the applicant instituted civil proceedings against the Ministry of Prisons, Probation and Legal Assistance (“the Ministry”), seeking compensation for non-pecuniary damage in relation to her brother ’ s death.

24 . On 7 October 2013 the Tbilisi City Court granted the applicant ’ s claim in part. In reaching its decision the court relied on an expert report of 10 September 2013 which it had ordered from the National Forensic Bureau (“the third forensic expert report”). The report in question reiterated earlier findings that the cause of S.K. ’ s death had been multiple organ failure developed as a result of diffuse purulent peritonitis, with tuberculosis as an underlying condition. It established that the applicant ’ s brother had been provided with adequate treatment, and between 12 and 22 February 2010 had undergone three X-rays, none of which had revealed signs of tuberculosis. However, the third forensic expert report also concluded that the urgent surgical procedure of 17 February 2010 should have been performed earlier, which would have reduced, even if not eliminated entirely, the risk of the eventual fatal outcome. The Tbilisi City Court also noted that despite the imperative requirement under the Prison Code, S.K. had not undergone a medical examination upon his placement in Tbilisi Prison no. 1 in 2005. The court further noted that the case file contained a note, drawn up only after the deterioration of S.K. ’ s health in 2010, to the effect that he had undergone surgery on his duodenum in 2006, but no medical records had existed in respect of the applicant ’ s brother between 2006 and 2010. The court concluded that “the Ministry had failed to ensure the provision of timely and adequate medical treatment in respect of [S.K.]”.

25 . It appears from the material in the case file that the applicant claimed compensation for non-pecuniary damage in the amount of 1,000,000 Georgian laris ((GEL), approximately 441,900 euros (EUR) at the time). The Tbilisi City Court awarded the applicant compensation in the amount of GEL 10,000 (approximately EUR 4,420). In making the award the court noted that, in general, there could be no sum large enough to constitute an equivalent to the pain and distress suffered by a person who had lost a family member in tragic circumstances. In determining the quantum of redress the court had therefore to take into account all the circumstances of a case, including the levels of compensation normally awarded by Georgian courts in respect of non-pecuniary damage.

26 . In her submissions of 8 November 2013 to the Court, the applicant referred to the Tbilisi City Court ’ s judgment of 7 October 2013 (see paragraphs 24 - 25 above) and made the following remark: “[The decision in question] gave clear answers to all pretensions that [the applicant] has to [the] Georgian Government.” Asserting that the Government had failed to prevent the deterioration of her brother ’ s health, the applicant emphasised that unlike the Government ’ s submissions before the Court, the Tbilisi City Court ’ s findings had addressed her brother ’ s treatment as well as the period preceding the deterioration of his health.

27 . On an unspecified date, the applicant and the Ministry lodged separate appeals. The applicant requested that her compensation claim be granted in full. On 4 December 2013 the Tbilisi Court of Appeal adopted a decision not to examine the applicant ’ s application because she had not complied with the court ’ s earlier indication of 14 November 2013 concerning her failure to pay court fees. The decision of 4 December 2013 was subject to appeal but the material in the case file contains no indication that the applicant pursued it.

28 . On 5 March 2014 the Tbilisi Court of Appeal, examining the Ministry ’ s appeal, upheld the lower court ’ s judgment. It emphasised the findings of the third forensic expert report that the urgent surgery had been performed belatedly, and noted that intervening sooner could have reduced the risk of the fatal outcome. The court additionally noted the fact that the applicant ’ s brother had not been provided with regular screenings from the time of his detention on 11 September 2005. Given that no medical record had existed in respect of S.K. until 28 January 2010, the Ministry had, in the Court of Appeal ’ s opinion, failed in the obligation to “take the responsibility for inmates ’ health when depriving [them] of freedom [and] to ensure their health and well-being”, in breach of the domestic legislation and the Convention. As to the amount of compensation to be awarded to the applicant, the Court of Appeal reasoned that the lower court had correctly assessed the circumstances of the case before it and granted compensation in an amount which was fair and sufficient.

29 . On 18 September 2014, noting that the lower courts ’ findings were consistent with the domestic as well as the Court ’ s case-law on similar matters, the Supreme Court rejected the cassation appeal the Ministry had lodged as inadmissible.

30 . The domestic courts ’ award in the applicant ’ s favour (see paragraph 25 above) was enforced on 25 November 2014.

31 . The relevant preventive and compensatory remedies in the context of the healthcare in prison have been described in the case of Goginashvili v. Georgia (no. 47729/08, §§ 34-43 and 51-56, 4 October 2011).

32 . According to Sections 10 and 46 of the Patient Rights Act (2000), as in force at the material time, a patient (including a prisoner) or their legal representative were entitled to request before a domestic court monetary compensation in respect of damage arising from (i) a violation of patients ’ rights; (ii) medical errors; (iii) disfunction in the operation of a medical establishment; and (iv) the State ’ s failure to adequately supervise and regulate medical profession. They were also entitled to request the application of measures such as temporary termination or permanent revocation of a medical license of a medical professional, as well as the change of State medical and sanitary standards. Section 104 of the Healthcare Act (1997), as in force at the material time, provided for a possibility of instituting disciplinary proceedings in respect of professionals of a medical facility before the professional regulatory body.

COMPLAINTS

33 . The applicant complained under Article 2 § 1 of the Convention that the State authorities had failed to protect her brother ’ s life in prison on account of the allegedly inadequate medical care he had received, and that the criminal investigation into his death had been ineffective.

34 . She submitted that the lack of an effective investigation had also amounted to a violation of Article 13 of the Convention

35 . Relying on Article 2 of the Convention the applicant further complained in respect of the conditions of her brother ’ s detention between 14 September 2005 and 27 August 2006, suggesting that this could have contributed to the deterioration of his health.

36 . Finally, the applicant also complained under Article 6 of the Convention about her lack of access to a court regarding her request to obtain her brother ’ s medical file.

THE LAW

37 . The applicant complained under Article 2 § 1 of the Convention that the State authorities had failed to protect her brother ’ s life in prison on account of the allegedly inadequate medical care he had received, in general while in prison and after he felt unwell, and that the criminal investigation into his death had been ineffective, in breach of the procedural obligations contained in that provision. The relevant part of the provision reads as follows:

“Everyone ’ s right to life shall be protected by law. ...”

38 . The Government submitted that the applicant had lost her victim status on account of the outcome of the civil proceedings for damages. They also submitted that the criminal investigation had been effective. Furthermore, relying on, among other authorities, Lopes de Sousa Fernandes v. Portugal ([GC], no. 56080/13, § 215, 19 December 2017) and noting that the present case concerned medical negligence, the Government submitted that the civil redress which the applicant had obtained had satisfied the procedural aspect of Article 2 of the Convention without necessarily requiring the provision of a criminal-law remedy.

39 . The applicant responded that she had not lost her victim status as the civil proceedings had related to a different matter. She submitted that the criminal investigation into her brother ’ s death had not been effective as it had failed to establish the circumstances leading to his death and was still ongoing, without having reached any conclusions.

(a) Preliminary issue

40 . The Court notes at the outset that it is undisputed between the parties that the applicant may claim to be the victim of the alleged violation of her brother ’ s right to life, protected under Article 2 of the Convention. In this regard, the Court has consistently accepted that the next of kin of a diseased person may bring complaints to it alleging violations of Article 2 in relation to the circumstances of his or her death and subsequent investigations (see Tsalikidis and Others v. Greece , no. 73974/14 , § 64, 16 November 2017, with further references).

(b) General principles

43 . A decision or measure favourable to an applicant is not in principle sufficient to deprive him or her of the status as a “victim” unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see Murray v. the Netherlands [GC], no. 10511/10, § 83, 26 April 2016, and Gäfgen v. Germany [GC], no. 22978/05, § 115, ECHR 2010).

44 . The question of whether the applicant has received reparation for the damage caused – comparable to just satisfaction as provided for under Article 41 of the Convention – is an important issue. It is the Court ’ s settled case-law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Article 34 of the Convention (see, among other authorities, Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 179-81, ECHR 2006 ‑ V , and KoÅ‚aczyk and Kwiatkowski v. Poland (dec.), no. 34215/11, § 40, 22 October 2013).

(c) Application of the above principles to the present case

45 . The Court observes that the core of the applicant ’ s submission is that the successful outcome of the civil proceedings could not have affected her victim status on account of the allegedly ineffective ongoing criminal investigation in respect of her brother ’ s death (see paragraph 39 above). While the criminal investigation appears to have been unjustifiably protracted, the applicant seems to imply that it constituted the only adequate remedy in the present case. However, as the death was not inflicted intentionally – a circumstance which was established by the civil courts after the launch of the official investigation and is not disputed by the applicant – the Court considers that the respondent State ’ s duty under Article 2 of the Convention to ensure effective implementation of the domestic laws which protect the right to life can be discharged through civil liability and redress (see Pearson v. the United Kingdom (dec.), no. 40957/07, §§ 67 and 70, 13 December 2011; see also, mutatis mutandis , Mardosai v. Lithuania , no. 42434/15, §§ 58-63, 11 July 2017).

46 . In such circumstances, the aims of fact-finding and accountability may be carried out by or shared between several authorities, as long as the various procedures provide for the necessary safeguards in an accessible and effective manner (see Pearson , cited above, § 71). The Court will therefore assess whether the civil remedy ( see paragraphs 24 - 25 and 28 - 29 above ) enabled any responsibility to be established and any appropriate redress to be obtained (see paragraphs 42 - 44 above) in the circumstances of the present case.

47 . In this regard, the Court emphasises that the applicant was not prevented from suing either individual staff of the prison medical establishment or the Ministry as an entity despite the fact that the criminal proceedings had not reached any conclusion regarding her brother ’ s death (compare and contrast with Tarariyeva , cited above, §§ 97, 101 and 103 ). Furthermore, she benefited from the adversarial proceedings (see Vo v. France [GC], no. 53924/00, § 91, ECHR 2004 ‑ VIII ) which lasted slightly over three years at three levels of jurisdiction and included the fact-finding by the first-instance court, which had ordered a forensic expert report (see paragraphs 24 - 25 and 28 - 29 above). This period is clearly not excessive (see Lopes de Sousa Fernandes , cited above, § 218).

48 . Furthermore, examining the applicant ’ s claims against the Ministry, t he domestic courts have found a breach of the Convention and awarded compensation. In particular, they established the relevant factual circumstances and acknowledged that there had been shortcomings in the manner in which the applicant ’ s brother ’ s health condition had been (a) monitored before its deterioration, and (b) treated during his subsequent placement in the prison hospital. Both elements constituted, in the domestic courts ’ assessment, a breach of the relevant domestic regulations and the Convention ( see paragraphs 24 - 25 and 28 - 29 above ). Additionally, the Ministry was found liable to pay the corresponding damages (ibid.).

49 . The Court therefore accepts that the domestic courts had regard to the circumstances surrounding the applicant ’ s brother ’ s death, and that they acknowledg ed, in substance, the breach of Article 2 of the Convention. Indeed, the Court of Appeal explicitly found that the domestic authorities had failed in their obligation to take responsibility for detainees ’ health and well-being (see paragraph 28 above).

50 . The Court notes that in addition to establishing the relevant factual circumstances surrounding S.K. ’ s treatment and death, the domestic courts determined the civil liability of the Ministry. While no question of potential personal liability of the prison medical and/or non-medical staff arose during the civil proceedings, the Court observes that the applicant does not complain about this issue. More importantly, the Court notes that the applicant had opted at domestic level to designate the Ministry as the sole respondent in the relevant proceedings, requesting only monetary compensation, despite the domestic law allowing for a wider list of potential defendants and measures, including disciplinary sanctions, which could have been indicated by the applicant (see paragraph 32 above). Accordingly, considering the applicant ’ s own course of action in this regard, the Court will assess the adequacy of redress obtained by the applicant only in so far as the monetary compensation is concerned.

51 . T he approach which the Court has followed in determining the “reasonableness” of compensation paid by a State for a breach of the Convention has been that of equity, which requires that the amount awarded be assessed in the light of all the circumstances of each individual case. Those considerations include the domestic legal system and legal traditions in the respondent State, the standard of living and the general level of incomes in the State concerned, and the fact that a remedy in the national system is closer and more accessible than one sought through an application to the Court (see Gavrylova and Others v. Ukraine (dec.), nos. 1227/06 and 10 others, § 73, 19 December 2017, with further references).

52 . In determining whether domestic redress could be considered “equitable”, the Court has assessed, in particular, whether the applicant received reparation for the damage caused comparable to just satisfaction as provided for under Article 41 of the Convention. At the same time, the Court has also held on a number of occasions that a wider margin of appreciation should be left to the domestic courts when assessing the level of compensation (see, for instance, Cocchiarella v. Italy [GC], no. 64886/01, § 80, ECHR 2006 ‑ V, and Firstov v. Russia , no. 42119/04, § 36, 20 February 2014). Even compensation which is lower than the amount the Court would itself award could be considered reasonable, provided that the relevant decision of the domestic courts was consistent with the legal tradition and standard of living in the country concerned and was speedy, reasoned and executed quickly (see Gavrylova and Others , cited above, § 75).

53 . In making the award in the applicant ’ s case the domestic courts used as a basis, among other considerations, what appears to have been their own practice in similar matters, and awarded her 10,000 Georgian laris (approximately 4,420 euros – see paragraph 25 above). The Court notes that the Government did not provide relevant domestic examples of awards in similar cases. However, the applicant did not dispute the adequacy of the quantum of that award in the proceedings before it and did not pursue her appeal on that matter at domestic level, as she failed to pay the court fee and did not appeal against the domestic court ’ s refusal to admit the appeal on that account (see paragraph 27 above). In any event, having regard to the domestic courts ’ reasoning (see paragraphs 25 and 28 above) and the sufficient promptness in granting compensation (see paragraphs 23 and 29 above), the Court finds that the sum awarded to the applicant cannot be considered unreasonable.

54 . The foregoing considerations are sufficient for the Court to find that, notwithstanding what appears to be the failure of the pending criminal investigation to comply with the requirement of promptness and reasonable expedition, the civil remedy has been sufficient and effective, in the particular circumstances of the present case (see paragraphs 41 and 45 above), in addressing the two limbs of the applicant ’ s complaints under Article 2 of the Convention and putting matters right through the domestic legal system (compare and contrast with Makharadze and Sikharulidze , cited above, §§ 87-89, where the deficiencies in provision of the health care were not elucidated either through civil proceedings or through any other independent, impartial and comprehensive inquiry). The Court therefore upholds the Government ’ s objection regarding the loss of the applicant ’ s victim status.

56 . Relying on Article 13 of the Convention, the applicant reiterated her complaint that the investigation into her brother ’ s death had been ineffective.

57 . Regard being had to the Court ’ s findings in respect of Article 2 of the Convention (see paragraphs 54 - 55 above), the Court finds that the complaint under Article 13 of the Convention is manifestly ill-founded and must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

58 . Relying on Article 2 of the Convention, the applicant further complained about the conditions of her brother ’ s detention between 14 September 2005 and 27 August 2006, suggesting that this could have contributed to the deterioration of his health.

59 . The applicant also complained under Article 6 of the Convention about her lack of access to a court in respect of her request to obtain her brother ’ s medical file.

60 . The Court has examined the above complaints. Having regard to the information available in the case file material (see paragraphs 5 and 24 above), the Court does not find that the issues complained of by the applicant have been duly raised before the domestic authorities, in accordance with the relevant law and procedure. It follows that the remainder of the application must be declared inadmissible for failure to exhaust domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 10 December 2020 .

Victor Soloveytchik Síofra O ’ Leary Registrar President