SECOND SECTION

DECISION

AS TO THE PARTIAL RESTORATION OF

Application no. 10799/06 by Davit JASHI against Georgia

The European Court of Human Rights (Second Section), sitting on 9 December 2008 as a Chamber composed of:

Françoise Tulkens , President, Ireneu Cabral Barreto , Vladimiro Zagrebelsky , Danutė Jočienė , Dragoljub Popović , András Sajó Işıl Karakaş , judges, and Sally Dollé , Section Registrar ,

Having regard to the above application lodged on 20 March 2006 ,

Having regard to its decision of 19 January 2007 to strike the above application out of its list of cases ,

Having regard to the applicant ' s subsequent submissions ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Davit Jashi, is a Georgian national who was born in 1973 and lives in Tbilisi .

A. The circumstances of the case

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

1. Domestic proceedings

On 30 March 2005 the applicant was convicted of drug trafficking, sentenced to two years in prison but released on probation.

On 28 September 2005 the applicant was arrested again for possession of 3,84 gm of heroin and 0,121 gm of methadone (for a more detailed description of the circumstances surrounding his arrest and subsequent criminal proceedings, cf. Jashi v. Georgia (dec.), no. 10799/06, 16 January 2007).

In a verdict of 24 January 2007, the Zugdidi District Court endorsed a plea bargain reached between the prosecution and applicant on the same day. The verdict disclosed that, in the course of the plea-bargaining, the applicant had confessed the crime of trafficking drugs in large quantities and agreed to be sentenced to nine years in prison, to pay a fine of 100,000 Georgian laris (EUR 55,815) and to undergo compulsory medical treatment for drug addiction. The verdict became final.

2. Proceedings before the Court

(a) As the case stood prior to the Court ' s decision of 16 January 2007

On 20 March 2006 the applicant lodged his application with the Court. He was represented by Ms E. Beselia and Mr D. Jinjolava, advocates practising in Georgia .

On 7 April 2006 the applicant ' s representatives requested the Court under Rule 39 of the Rules of Court to indicate to the Government that a decision of 20 January 2006 of the Zugdidi District Court, by which their client ought to be placed to a psychiatric hospital, be enforced immediately. As disclosed by their submissions, the applicant ' s mental health, damaged by several cranial traumas in the past, had been exacerbated by the poor conditions of his detention in the Zugdidi Prison of strict regime.

On 26 April 2006 the President of the Chamber decided not to indicate the interim measure sought. Instead, under Rules 40 and 54 § 2 (a) of the Rules of Court, urgent notice of the application was given to the Government who were, moreover, requested to explain the reasons for the non-enforcement of the decision of 20 January 2006 and to submit documents accounting for the medical treatment provid ed to the applicant in prison.

On 24 May and 30 June 2006 the Court received, respectively, the Government ' s reply, claiming that it was both unnecessary and procedurally incorrect to enforce the decision of 20 January 2006 at that stage of the criminal proceedings, and the applicant ' s reiterated request for the above ‑ mentioned interim measure. The latter ' s submissions disclosed that, on 15 June 2006, he had attempted suicide by cutting his veins and that, in general, his behaviour had become violent in the Zugdidi Prison (cf. Jashi , decision cited above).

On 4 July 2006 the President of the Chamber, having examined the parties ' submissions, decided to apply Rule 39 of the Rules of Court. It was indicated to the Government that, in the interests of the parties and the proper conduct of the proceedings before the Court , the applicant ' s mental state of health should be examined in an appropriate medical establishment. The examination had to be conducted by a panel of psychiatric experts composed on a parity basis, and, having due regard to its conclusions, the Government were to provide the applicant with adequate medical treatment. The Government were requested to submit the above-mentioned expert conclusions by 20 September 2006. The interim measure was applied until further notice.

On 14 September 2006 the applicant informed the Court in person that he wished to withdraw his application. The Government commented, on 27 October 2006, that they would not object to its eventual strike-out.

On 30 October 2006 the applicant ' s representatives confirmed that their client wished to desist from the Court proceedings and requested that the application be struck out.

On 6 December 2006 one of the applicant ' s representatives, Mr Jinjolava, reiterated the above request. He asked the Court to strike out the application before 15 December 2006, so that his client could conclude a plea bargain with the prosecution. Subsequently, Mr Jinjolava placed several telephone calls to the Registry, urging the Court to take a timely decision. He explained that the discontinuation of the proceedings was one of the conditions made by the prosecution in the course of the plea ‑ bargaining, in exchange for their undertaking to apply for the applicant ' s conviction without a trial on the merits and for his immediate release.

On 16 January 2007 the Court, taking into account the applicant ' s reiterated requests to that end, decided to lift the interim measure indicated on 4 July 2006 and to strike the application out of its list of cases under Rule 37 § 1 (a) and in fine of the Rules of Court (cf. Jashi , the decision cited above).

(b) Subsequent developments of the case

In a faxed letter of 3 November 2008, the applicant ' s new representatives, Ms M. Kobakhidze and Mr L. Tchintcharauli, requested the Court under Rule 39 of the Rules of Court to indicate to the Government that the applicant be transferred from Rustavi no. 2 Prison to a cardiolog y hospital where adequate treatment for his heart problems could be dispensed.

In support of that request, various medical documents were submitted. Those documents reached the Court by post on 7 November 2008.

According to a report on the applicant ' s medical examination conducted by the National Forensic Bureau of the Ministry of Justice between 3 August and 12 October 2007 (“the first medical report”), he suffered from cardiac ischemia, tension stenocardia of III-IV functional class, arterial hypertension and heart insufficiency grade II-III. He also suffered from a number of vein diseases, such as varicose on both legs and venous insufficiency, and had certain neurocirculatory and vegetative dysfunctions. The first medical report also noted that the applicant, being diagnosed with a personality disorder and showing clear suicidal tendencies, had several self-inflicted blade wounds on his forearms and abdomen. The conclusions were that, from the cardiological point of view, the applicant could be considered to be in a grave condition and needed treatment in a specialised hospital. As to these neuro-angiological problems, he could be treated by a specialist on an outpatient basis.

Another examination of the applicant ' s state of health was conducted, at the request of his representatives, by the National Forensic Bureau between 10 March and 2 June 2008. The relevant report (“the second medical report”) reiterated all the conclusions of the first and added that the applicant also suffered from chronic obstructive pulmonary disease. It was noted that the applicant ' s heart and neuro-angiological problems had deteriorated.

The second medical report concluded that the applicant ought to be placed and adequately treated in a cardiology hospital. A special X-ray test – a coronary angiogram – was required. From the cardiological point of view, the applicant was and had the propensity to remain in a grave condition. As to his vascular problems, the report noted that the applicant could still be treated by a specialist on an outpatient basis; however, in the case of any further deterioration, treatment in a specialised medical establishment would become necessary.

The applicant ' s representatives submitted medical certificates showing that their client had been diagnosed, on 7 July 2008, with Hepatitis C (HCV) and that he suffered from a peptic ulcer. They also asserted that the applicant had liver cancer, but such a conclusion did not follow from a medical certificate of 15 July 2008 submitted in support of that assertion.

On 11 September 2008 the applicant was placed to a penitentiary medical establishment of the Ministry of Justice. On 25 September 2008 the authorities, allegedly without having provided him with the necessary medical treatment, moved him back to Rustavi no. 2 Prison.

On 6 October 2008 the applicant ' s representatives requested the Head of the Penitentiary Department of the Ministry of Justice to transfer their client to a cardiolog y hospital, subsequent to the recommendations of the second medical report. The authority ' s attention was brought to the applicant ' s other medical problems, such as his mental disorder and HCV. Subsequently, the applicant made the same request orally to the administration of the Rustavi No. 2 Prison. Allegedly, both requests went unanswered.

B. Relevant domestic law

1. The Prison Act

Article 26 § 1 (a.b) of the Prison Act of 22 July 1999 states that a detainee has the right to be provided with medical care.

2. Order no. 602 of the Minister of Justice

On the basis of the Prison Act, the Minister of Justice issued, in an order of 26 June 2006, Rules governing the modalities for examining appeals lodged by detainees against unlawful actions of prison staff, the Penitentiary Department and other State agencies.

Under Rule 5,

– a complaint about actions of prison staff must be examined by the Director of that prison within five days following its receipt. This time ‑ limit can be extended to one month, which extension should be notified to the complainant in written. The Director is not allowed to examine complaints about his or her own actions or about those of the Deputy Director;

– a complaint about actions of prison staff, which was not examined by the prison Director or the latter ' s answer was not satisfactory for the detainee in question, must be examined by the Head of the Penitentiary Department of the Ministry of Justice within a month following its receipt. This time-limit can be extended, and the extension, which must be reasonable, should be notified to the complainant in written;

– a complaint about actions of prison staff, when addressed directly to the Minister of Justice or challenging decisions of the lower instances, must be examined by the Minister. No time-limits are specified in this regard.

Rule 13 states that a detainee has the right to submit his or her complaints both in writing and orally.

Subsequent to Rule 15, the complaints which concern, inter alia , the issues of medical care can be decided by the prison administration on the spot, without the involvement of other State agencies.

Rule 22 provides that every specific grievance of a detainee should be examined and receive a relevant answer.

COMPLAINTS

1. Initial complaints, introduced on 20 March 2006

The applicant complain ed under Article 3 of the Convention that his detention in a prison of strict regime had inflicted severe mental suffering on him, which situation had been exacerbated by the absence of adequate psychiatric treatment. He also denounced the generally poor conditions of detention in the Zugdidi Prison. Invoking Article 13 of the Convention, he claimed that he had no effective remedy for the above-mentioned complaints.

Under Articles 5 §§ 1 and 3 and 6 §§ 1 and 3 (c) of the Convention, the applicant complained that his arrest and pre-trial detention had been arbitrary and unreasonable and that the advocate of his choice was hindered in the proper conduct his defence.

2. Additional complaints, introduced on 3 November 2008

In his letter of 3 November 2008, the applicant complained under Articles 2 and 3 of the Convention that, by not implementing the recommendations of the second medical report, the authorities withhold urgently required cardiological treatment, thus causing him physical suffering and posing a real risk to his life. He further complained that he suffers from liver cancer and HCV. Claiming that he was infected with the latter disease in prison, he complained that he is not being provided with the necessary antiviral medication. He also deplored the absence of appropriate psychiatric care; reference was made to his suicidal tendencies.

The applicant next complained that the authorities had misled him in the course of the plea-bargaining. They had promised to release him in exchange for his undertaking to confess the crime, pay the fine and drop his application to the Court. However, whilst he fulfilled all the conditions of the bargain, the authorities failed to keep their promise and, instead, sentenced him to nine years in prison, in which conditions his health has drastically deteriorated.

THE LAW

1. As to the restoration of the application

The Court has the power to restore the present application to its list of cases by virtue of Article 37 § 2 of the Convention and Rule 43 § 5 of the Rules of Court.

Article 37 § 2 provides as follows:

“The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

Rule 43 § 5 reads as follows:

“The Court may restore an application to its list if it considers that exceptional circumstances justify such a course.”

The Court recalls that, in deciding to strike the present application off its list, it had accommodated the applicant ' s repeated requests to that end. The discontinuation of the Court proceedings was a matter of particular importance and urgency for the applicant, in so far as it was a condition for him to enter into a plea bargain with the prosecution, which apparently should have resulted in his release from detention (cf. Jashi , decision cited above). However, as disclosed by his submissions of 3 November 2008, the applicant was allegedly misled by the authorities in the course of the plea ‑ bargaining, which fact he now deplores before the Court.

The Court notes that the applicant reiterates his complaints under Article 3 of the Convention about the absence of appropriate medical care in prison and the resultant deterioration of his health. Amongst other issues, the problem of his mental instability and suicidal tendencies arises again, on which issue the present case, as it stood prior the Court ' s decision of 19 January 2007, had direct repercussions (see, Jashi , decision cited above).

At the same time, there is no indication that the applicant wishes to maintain his original complaints under Articles 5 §§ 1 and 3 and 6 §§ 1 and 3 (c) and 13 of the Convention introduced on 20 March 2006. It is to be recalled in this connection that the Court may find it appropriate to refuse restoration of part of an application which has been struck out previously (see, Matyar v. Turkey , no. 23423/94, § § 134-135 , 21 February 2002 ).

In the light of the above considerations, the Court finds that there exist, within the meaning of Article 37 § 2 of the Convention and Rule 43 § 5 of the Rules of Court, exceptional circumstances justifying the restoration of the part of the present application to its list, but only insofar as it concerns the complaints under Article 3 of the Convention.

2. As to the admissibility of the application

Under Articles 2 and 3 of the Convention, the applicant complains that the conditions of his detention, coupled with the disregard for his serious health problems and medical needs, have not only caused him physical suffering but also pose a genuine risk to his life. These provisions read as follows:

Article 2

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

Article 3

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

The Court considers that it cannot, on the basis of the case file, determine the admissibility of the above-mentioned complaints. It is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to restore the application to its list of cases only insofar as it concerns the complaints under Article 3 of the Convention introduced on 20 March 2006;

Decides to adjourn the examination of the application.

Sally Dollé Françoise Tulkens Registrar President