SECOND SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55793/09 by Boris KATCHEISHVILI against Georgia

The European Court of Human Rights (Second Section), sitting on 24 November 2009 as a Chamber composed of:

Françoise Tulkens , President, Vladimiro Zagrebelsky , Danutė Jočienė , Dragoljub Popović , András Sajó , Nona Tsotsoria , Kristina Pardalos , judges, Françoise Elens-Passos, Deputy Section Registra r,

Having regard to the above application lodged on 1 October 2009,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Boris Katcheishvili, is a Georgian national who was born in 1966 and lives in Rustavi . He is represented before the Court by Mr M amuka Nozadze, a lawyer practising in Gori.

A. The circumstances of the case

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

The applicant is currently serving a sentence in Rustavi no. 2 Prison. He claims to have been detained in an overcrowded cell, being obliged to take turns to sleep and to have difficulty in maintaining personal hygiene, as the prison administration does not provide him with elementary items for everyday life. The only way of obtaining those items is to buy them in the prison shop at prices substantially higher than the market rate.

On 2 June 2009 the applicant ’ s lawyer, Mr Mamuka Nozadze, requested the Prison Department of the Ministry of Probation, Prisons and Legal Assistance (“the prison authority”) to arrange for a comprehensive medical examination of his client. Among other medical grievances, it was asserted that the applicant was suffering from viral hepatitis C (HCV). On 5 June 2009 the prison authority replied that a haematological analysis of the applicant ’ s blood samples would be performed in the very near future.

On 8 June 2009 the lawyer reiterated the above-mentioned request. On 11 June the prison authority replied that the request had already been taken into account and that the relevant measures would follow shortly.

On 14 June 2009 the applicant was transferred from Rustavi no. 2 Prison to the Medical Establishment of the Prison Department (“the prison hospital”).

On 15 June 2009 Mr Nozadze requested the prison hospital administration to inform him of the applicant ’ s state of health.

Between 16 and 22 June 2009 Mr Nozadze dispatched three more letters to the prison authority and the prison hospital, complaining that, despite his repeated requests, the medical examination and treatment had been unjustifiably withheld from the applicant.

The prison authority replied to all the above-mentio ned queries of Mr Nozadze in due time. As an enclosure to th e last of its replies, dated 29 June 2009, the authority attached a report on the applicant ’ s state of health (“the medical file”).

As disclosed by the medical file, the applicant underwent a comprehensive medical examination in the prison hospital between 14 and 25 June 2009. That examination consisted of a thorough physical assessment, an eye test, a coronary risk evaluation, an ultrasound and X ‑ ray screening, comprehensive haematological and urine analysis, etc. Various medical specialists addressed each of t he health complaints made by Mr Nozadze and concluded that the applicant was not suffering from either of them; the blood analysis confirmed that he was not infected with HCV. The medical conclusions further showed that the applicant could not be considered seriously ill. He was found to be suffering from a minor ailment – neurocirculatory dystonia, and anti-stress and other prescribed medication was administered to him during his stay in the prison hospital. As a result, his condition improved. The medical file did not contain recommendations concerning the continuation of any specific treatment after the applicant ’ s discharge from the hospital, except to mention that he would benefit from medical supervision on an outpatient basis.

Having received the above-mentioned medical file, Mr Nozadze continued making complaints to the prison authority. Thus, between 10 July and 18 September 2009, he addressed the authority on nine occasions, reiterating that the applicant, a gravely ill patient, had been unjustifiably denied a medical examination and treatment. Mr Nozadze further requested that a clinical laboratory, Mrcheveli Ltd, be granted leave to take additional blood samples from the applicant, who should moreover be allowed to keep his own blood pressure monitor in prison. The prison authority acknowledged receipt of the above-ment ioned complaints and advised Mr Nozadze that he would be informed of any decision taken in that regard in due course.

B. Relevant domestic law

According to section 47 of the Act of 5 May 2000 on Patients ’ Rights, the prison authority is entitled to limit a detained person in his or her choice of provider of medical treatment in prison. That limitation, however, could be contested in court.

COMPLAINTS

The applicant complained under Article 3 of the Convention that the prison authority had denied him a medical examination, which should necessarily have included a haematological analysis, as a result of which no appropriate treatment was ever dispensed. He further complained that, after his discharge from the prison hospital, the prison authority had refused to provide him with medication free of charge.

The applicant also complained that the conditions of his detention in Rustavi No. 2 Prison were poor.

THE LAW

The applicant complained under Article 3 of the Convention about the conditions of his detention and the authorities ’ refusal to provide him with a medical examination and treatment. The provision invoked reads as follows:

““No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

1. The complaint of a lack of medical care in prison

At the outset, the Court notes that, in general, the prison authority responded with sufficient diligence to Mr Nozadze ’ s repetitive complaints and queries about his client. Of particular importance is the fact that the applicant was transferred to the prison hospital soon after such a request was made by his lawyer.

The Court further observes that, contrary to the allegations of his representative, the applicant was duly provided with a comprehensive medical examination during his stay in the prison hospital between 14 and 25 June 2009. Thus, a number of medical tests were performed, including a thorough haematological analysis of his blood samples; their results did not reveal either hepatitis C or any other condition which had been claimed by the representative. The only diagnosis was that of neurocirculatory dystonia which, as disclosed by the submitted medical file, is a minor medical condition treatable on an out-patient basis.

As to the complaint about the penitentiary ’ s refusal to provide the applicant with medication free of charge, the Court considers that the first issue to address here is whether the applicant needed that medication. With that in mind, the Court notes that the applicant was duly given, during his stay in the prison hospital, drugs to alleviate the stress caused by the diagnosed medical condition. As a result, his state of health improved (see the description of the medical file above). No evidence has been submitted to the Court (such as a doctor ’ s prescription) that it was necessary to continue or offer any other treatment after the applicant ’ s discharge from the hospital. Consequently, the Court finds that the applicant ’ s complaint is manifestly ill-founded.

Lastly, as regards the request by the applicant ’ s representative for an additional haematological analysis to be performed by the private clinical laboratory Mrcheveli Ltd., the Court notes that, first, no explanation of the necessity for the involvement of that particular medical institution was ever given to the prison authority. Secondly, the applicant can always appeal to a domestic court if he considers that his right to choose a particular provider of medical assistance in prison has been unjustifiably limited (see section 47 of the Act of 5 May 2000 on Patients ’ Rights). As regards Mr Nozadze ’ s request that the applicant be allowed to use his own blood pressure monitor in prison, the Court considers that Article 3 of the Convention cannot be interpreted as requiring a prisoner ’ s every wish and preference regarding medical treatment to be accommodated. In this , as in other matters , the practical demands of l awful detention may impose restrictions which a prisoner may have to accept ( see, among other authorities, Mathew v. the Netherlands , no. 24919/03, § 186, ECHR 2005 ‑ IX) .

In the light of the above considerations, it follows that the complaint of a lack of medical care in prison is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

2. The complaint about the conditions of detention

As to the complaint concerning the conditions of the applicant ’ s detention in Rustavi No. 2 Prison, the Court considers that it cannot, on the basis of the case file, determine the question of its admissibility at the present stage.

It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ’ s complaint concerning the conditions of detention in Rustavi No. 2 Prison;

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Françoise Tulkens              Deputy Registrar              President