THIRD SECTION

DECISION

Applications nos . 70820/10 and 60870/11 Nugzar TABAGARI against Georgia

The European Court of Human Rights (Third Section), sitting on 18 June 2013 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Corneliu Bîrsan , Luis López Guerra , Nona Tsotsoria , Johannes Silvis , Valeriu Griţco , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above applications lodged on 3 December 2010 and 17 August 2011 respectively,

Having regard to the declaration submitted by the respondent Government on 19 April 2013 requesting the Court to strike the applications 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 Nugzar Tabagari, is a Georgian national, who was born in 1981 and is currently in prison. He was represented before the Court by Mr Besarion Botchorishvili, a lawyer practising in Tbilisi.

2. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan 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 escape from prison and subsequent criminal proceedings

4. The applicant, who was convicted of various offences on 13 December 2005, was serving a prison sentence in Khoni no. 9 Prison. On 12 August 2008 he, along with some of his fellow inmates, escaped from prison. The applicant was captured shortly afterwards and criminal proceedings were initiated against him on multiple charges related to his escape, including disobeying and attacking prison officers, storage of unlawful objects in prison and attempted robbery.

5. On 10 May 2009 the Samtredia District Court convicted the applicant as charged and sentenced him to twenty-eight years ’ imprisonment. The total prison sentence, which included the unserved part of the applicant ’ s previous sentence, was set at twenty-nine years, seven months and twenty ‑ four days. On 16 April 2010 the Kutaisi Court of Appeal upheld the applicant ’ s conviction. His subsequent appeal on points of law was rejected by the Supreme Court of Georgia on 30 June 2010.

According to the case file, the trial and appeal courts failed to provide for the applicant ’ s regular attendance at the hearings.

6. In January 2013 the applicant ’ s sentence was reduced by ten years pursuant to the Amnesty Act of 28 December 2012.

2. The applicant ’ s alleged ill-treatment in prison and subsequent criminal proceedings

7. The applicant alleged that he had been frequently subjected to various forms of psychological and physical abuse in prison. Four separate sets of criminal proceedings were initiated in this regard.

8. The first criminal case file (no. 088098009) covered the various episodes of the applicant ’ s alleged ill-treatment in Kutaisi no. 2 Prison between August 2008 and January 2009. On 27 November 2009 a new complaint by the applicant concerning another incident of his alleged ill ‑ treatment by prison officers – this time in Ksani no. 7 Prison – was also added to investigative file no. 08898009. On 28 May 2010 the prosecutor discontinued the above proceedings for lack of evidence of a crime. The applicant claimed, without submitting any evidence in support, that he had appealed to court against the prosecutorial decision, however no decision had been taken.

9. The second set of criminal proceedings (no. 073090285) was initiated on 12 June 2009 and concerned a separate incident of the applicant ’ s alleged ill-treatment in Ksani no. 7 Prison on 10 May 2009. On 30 June 2010 the proceedings were discontinued. The applicant, who had been refused victim status in the above proceedings, was prevented from challenging the prosecutorial decision.

10. On 15 December 2009 in response to the applicant ’ s several complaints concerning his alleged ill-treatment in the prison hospital, criminal proceedings were initiated against the applicant for disobeying and attacking a prison officer, an offence under Article 378 § 5 of the Criminal Code of Georgia (no. 073090595). On 4 May 2010 the Tbilisi City Court convicted the applicant as charged, concluding that his allegations of ill-treatment by prison officers had been made up with the sole purpose of evading criminal liability. The applicant was sentenced to twelve years ’ imprisonment. By a decision of 14 July 2010 the Tbilisi Court of Appeal, fully subscribing to the reasoning of the first-instance court, upheld the applicant ’ s conviction. On 17 February 2011 the Supreme Court of Georgia rejected the applicant ’ s appeal on points of law.

11. On 13 May 2009 yet another set of proceedings was initiated under Article 118 § 1 of the Criminal Code of Georgia (minor bodily injury), which concerned several incidents of the applicant ’ s alleged self-injury in Ksani no. 7 Prison (no. 073090245). According to the case file, the criminal investigation is still pending.

3. The applicant ’ s state of health and the medical treatment provided to him in prison

12. The applicant, who is suffering from mental disorders, has had a history of frequent episodes of deliberate self-harm in prison. On several occasions he was advised to have a comprehensive psychiatric examination and adequate psychiatric treatment on an in-patient basis. The prison authorities have failed, however, to comply with the medical recommendation.

13. In October 2012 and January 2013 the applicant underwent a forensic psychiatric examination. As a result he was diagnosed as suffering from emotionally unstable personality disorder, a condition which does not require a compulsory psychiatric treatment. Currently the applicant is placed under permanent medical supervision and is consulted by a psychiatrist on a regular basis.

B. Relevant domestic law

14. Article 310 (e) of the Code on Criminal Procedure, which came 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”

15. 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.

COMPLAINTS

16. In the initial application form lodged with the Court on 3 December 2010 the applicant complained, under Article 3 of the Convention, that he had been repeatedly subjected to ill-treatment in prison and that no effective investigation had been conducted in that regard. He further claimed that his mental health had substantially deteriorated and that the prison authorities had been withholding adequate medical treatment from him. In connection with the criminal proceedings conducted against him in the prison escape case (see paragraphs 4-5 above), the applicant complained under Article 5 § 1 of the Convention of the unlawful nature of his pre ‑ trial detention and under Article 6 § 1 of the Convention – about the outcome of the proceedings. In that connection, the applicant also relying on Article 6 § 3 (c) of the Convention denounced the failure of the trial and appeal courts to provide for his attendance at the hearings.

17. In a separate application form lodged with the Court on 17 August 2011 the applicant complained under Article 6 §§ 1 and 3 of the Convention that the criminal proceedings initiated against him for attacking a prison officer (criminal case file no. 073090595) (see paragraph 10 above) had been unfair; notably, the decisions reached by the domestic courts were manifestly unreasonable; his conviction was primarily based on statements given by prison officers whom he had implicated in his ill-treatment; the courts had refused to call witnesses on his behalf and also his defence rights had been violated at various stages of the proceedings.

THE LAW

A. Joinder of the cases

18. Given their common factual and legal background, the Court decides that the two applications should be joined pursuant to Rule 42 § 1 of the Rules of Court.

B. The communicated complaints under Article 3, Article 6 §§ 1 and 3 (c) and (d) and Article 13 of the Convention

19. On 17 October 2011 the Court communicated to the Government the applicant ’ s complaints under Articles 3 and 13 of the Convention c oncerning the various incidents of his alleged ill-treatment and the failure to conduct an effective investigation in this regard, and the lack of adequate medical treatment in prison; the complaint under Article 6 § 3 (c) of the Convention concerning the alleged inability to attend the hearings in the prison escape case was also communicated to the Government for their observations (see paragraph 5 above).

On 28 January 2012 the Court additionally communicated the applicant ’ s complaints under Article 6 §§ 1 and 3 (c) and (d) of the Convention concerning the unfairness of the criminal proceedings conducted against him for attacking a prison officer (investigative file no. 073090595) (see paragraph 10 above).

20. After the failure of attempts to reach a friendly settlement, by a letter of 19 April 2013 t he Government informed the Court that they proposed to make a unilateral declaration with a view to resolving some of the issues raised by the communicated part of the applications, while they considered the remainder of the applications inadmissible. They further requested the Court to strike out the applications in accordance with Article 37 of the Convention.

21. The relevant part of the declaration reads as follows:

“Bearing in mind the nature of the applicant ’ s psychiatric problems and certain deficiencies identified in the course of the medical treatment dispensed to the applicant during his imprisonment; ...

Bearing in mind the inadmissibility of the applicant ’ s claims concerning the first set of criminal proceedings (case file no.088098009) due to his failure to exhaust the effective remedy available at the national level ...

Having regard to certain shortcoming during the investigation of the second set of criminal proceedings (case file no.073090285);

Considering the deficiencies during the investigation and the court hearings in the third set of proceedings (case file no. 073090595) 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 court with a request to re-open the third criminal case;

Taking account of the insufficiency of investigation in the fourth criminal case (case file no.073090245);

Considering the failure to grant the applicant the status of victim in the second and fourth sets of criminal proceedings, depriving him of the possibility to use the effective remedy existing at the national level, as required by Article 13 of the Convention;

Considering the failure to ensure the applicant ’ s presence at the domestic court hearings in the criminal case related to the escape from Khoni no. 9 prison against the requirement of Article 6 of the European Convention;

The Government wishes to express, by way of a unilateral declaration, its regretful acknowledgment of deficiencies with regard to Articles 3, 6 §§ 1 and 3 (c) and (d) and Article 13 of the Convention pertinent to the applicant ’ s cases; and is prepared to:

Provide Mr Tabagari with adequate medical treatment for his mental problems and other grievances at the State ’ s expense;

Conduct an effective investigation in the second and the fourth set of criminal proceedings;

Pay 9,000 (nine thousand) EUR to cover any pecuniary or non-pecuniary damages and costs and expenses.

This sum will be converted into Georgian Laris 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 fulfilment of the abovementioned conditions shall constitute a final resolution of these applications only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of any other remedies that may be available to him at the domestic level. ...”

22. By a letter of 13 May 2013 the applicant requested that the Court reject the Government ’ s proposal on the basis that the unilateral declaration was insufficient in terms of the level of compensation proposed, which he found inadequate having regard to the damage sustained. The applicant also submitted that the declaration did not cover all the violations complained of (such as the alleged unfairness under Article 6 § 1 of the Convention of the criminal proceedings in the prison escape case) and did not provide for the undertaking of the Government to seek a reduction of the applicant ’ s prison sentence.

23. The Court recalls 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.”

24. It also recalls 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 ( 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 SulwiÅ„ska v. Poland ( dec. ) no. 28953/03, 18 September 2007).

25. In examining the Government ’ s declaration, the Court notes at the outset that the Government have explicitly acknowledged a violation of the applicant ’ s various rights under Articles 3, 6 §§ 1 and 3 (c) and (d) and 13 of the Convention. In this regard, it reiterates that there already exists a well-established case-law on the issue of the alleged ill-treatment by public officials and the lack of an effective investigation in this regard (see, amongst many others, Mikiashvili v. Georgia , no. 18996/06 , §§ 73 ‑ 92, 9 October 2012 , and Dvalishvili v. Georgia , no. 19634/07 , §§ 41 ‑ 52, 18 December 2012 ) as well as case-law concerning 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 upon by the applicant in his complaints under Article 6 §§ 1 and 3 (c) and (d) of the Convention (see, for instance, Polyakov v. Russia , no. 77018/01, §§ 29-37, 29 January 2009; Hanÿevaÿki v. Croatia , no. 17182/07, §§ 18-29, 16 April 2009, and Huseyn and Others v. Azerbaijan , nos. 35485/05, 45553/05, 35680/05 and 36085/05, §§ 170-216, 26 July 2011).

26. The Court further notes the various measures mentioned in the declaration, such as the undertaking to effectively investigate the second and fourth sets of criminal proceedings concerning the applicant ’ s alleged ill-treatment (case files nos. 073090285 and 073090245 respectively) and the possibility for the applicant to request the reopening of the third set of criminal proceedings under Article 310 of the Criminal Procedure Code of Georgia (case file no. 073090595) (see Taktakishvili, cited above). The practical effect of these undertakings is that the applicant ’ s allegations of ill ‑ treatment would be re-investigated and, hence, he would be provided with an effective remedy and the right to obtain adequate and appropriate redress.

27. Thus, having regard to the nature of the admissions and undertakings 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 applications ( 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 applications (Article 37 § 1 in fine ).

28. The Court notes the modalities agreed by the respondent Government for the payment of the amount proposed.

29. Finally, as regards the question of implementation of the Government ’ s declaration, the Court points out that the present ruling is without prejudice to any decision it might take, in case of a failure by the Government to comply with their undertakings, to restore the present application to the list of cases pursuant to Article 37 § 2 of the Convention (see E.G. v. Poland ( dec. ), no. 50425/99, § 29, ECHR 2008-... (extracts)).

30. Accordingly, the complaints covered by the Government ’ s unilateral declaration should be struck out of the list.

C. Other alleged violations of the Convention

31. The applicant complained under Article 3 of the Convention that he had been repeatedly ill-treated in prison between August 2008 and January 2009. Criminal proceedings initiated in this regard (case file no. 088098009) were discontinued by the prosecutor on 28 May 2010 for lack of evidence of a crime. The applicant alleged that the investigation concerned had been ineffective and that he had appealed against the prosecutorial decision. However, no decision had been taken. The Government, for their part, submitted that the above complaint was inadmissible for non-exhaustion, since the applicant had failed to challenge the prosecutorial decision in court (see paragraphs 8 and 21 above).

32. Noting that the applicant has failed to show that he had indeed appealed against the prosecutorial decision of 28 May 2010 (see, a contrario , Dvalishvili , cited above , § 22 ), the Court considers that the applicant ’ s complaint under Article 3 of the Convention concerning the criminal case file no. 088098009 should be rejected for failure to exhaust the available domestic remedies in accordance with Article 35 §§ 1 and 4 of the Convention.

33. The applicant ’ s complaint under Article 5 § 1 of the Convention about the unlawful nature of his pre-trial detention is belated, since, as disclosed by the circumstances of the case, that particular instance of deprivation of liberty ended with the applicant ’ s conviction at first instance on 10 May 2009, whereas the present application was lodged only on 3 December 2010. 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.

34. As regards the remaining complaint under Article 6 § 1 of the Convention, the Court, in the light of all the material in its possession and in so far as the matters complained of are within its competence, finds that it does not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

D. Costs and Expenses

35. The Court has a discretion to award legal costs when it strikes out an application (Rule 43 § 4 of the Rules of Court). In the present case, taking into account the relatively straightforward nature of the issues involved, but also the amount of work carried out by the applicant ’ s lawyer, it decides to award EUR 1,000 in respect of legal costs and expenses.

For these reasons, the Court unanimously

Decides to join the applications;

Takes note of the terms of the respondent Government ’ s declaration under Articles 3, 6 §§ 1 and 3 (c) and (d) and 13 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the applications 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;

Decides to award EUR 1,000 (one thousand euros) in respect of costs and expenses;

Declares the remainder of the applications inadmissible.

Santiago Quesada Josep Casadevall Registrar President