FIFTH SECTION

DECISION

Application no. 23919/09 Konstantine TCHRELASHVILI against Georgia

The European Court of Human Rights (Fifth Section), sitting on 15 May 2018 as a Committee composed of:

André Potocki , President, Mārtiņš Mits , Lado Chanturia , judges , and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 5 May 2009,

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, Mr Konstantine Tchrelashvili , is a Georgian national, who was born in 1958 and was in prison at the material time. He was represented before the Court by Mr Ts . Murghulia , a lawyer practising in Tbilisi.

2. The Georgian Government (“the Government”) were represented by their successive 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.

A. The circumstances of the case

4. On 9 September 2006 the Kutaisi City Court convicted the applicant of banditry, and sentenced him to ten years ’ imprisonment. His conviction was confirmed by the Kutaisi Court of Appeal and the Supreme Court of Georgia on 20 December 2006 and 13 June 2007, respectively.

5. According to the case file, the applicant was suffering from various diseases, including cardiological problems.

1. Deterioration in the applicant ’ s state of health in prison

6. On 24 May 2008 the applicant suffered a stenocardiac attack. The administration of Rustavi no. 1 Prison (currently Rustavi no. 16 Prison), where he was being detained at the material time, called for an ambulance. The emergency doctor, who arrived promptly, was not allowed to transfer the applicant to the nearest civil hospital. The applicant had to wait for a prison hospital ambulance, which arrived, according to him, three hours later.

7. Upon his transfer to the prison hospital, the applicant was diagnosed as having had a heart attack and was placed in an intensive care unit. On 2 June 2008 he was transferred to the therapeutic ward of the prison hospital and on 5 June 2008, following his written request and after the stabilisation of his condition, he was returned to Rustavi Prison no. 1.

8. On 25 July 2008 the applicant requested the Rustavi City Court to suspend his prison sentence in view of his serious medical condition. The judge ordered that the applicant undergo a medical examination.

9. According to a report on the examination of the applicant ’ s state of health conducted by a specially designated panel of three experts between 1 September and 5 November 2008 (“the medical report of 5 November 2008”), the applicant was diagnosed with the following: ischemic heart disease, exertional angina functional class III-IV, and class II heart failure. The experts opined that the applicant ’ s condition was of medium severity. However, in view of the nature of his disease and having regard to his recent heart attack, the experts could not exclude the possibility of a further deterioration in the applicant ’ s condition. Coronary angiography was recommended for the applicant in order to determine his future treatment plan.

10 . According to the applicant ’ s medical file, in October and November 2008 the applicant was transferred for additional medical check-ups to a private specialist clinic.

11. On 26 December 2008 the Rustavi City Court rejected the applicant ’ s request for the suspension of his prison sentence as unsubstantiated. It reasoned in this respect that, whilst the Code of Criminal Procedure provided for the possibility of having a prison sentence suspended in the event that a prisoner suffered from a serious medical condition, the applicant ’ s condition was only of moderate severity, thus falling beyond the scope of the above exception. The decision was confirmed by the Tbilisi Court of Appeal on 13 March 2009.

12 . Meanwhile, on 3 February 2009 the applicant was transferred to Tbilisi Prison no. 3. After having an electrocardiography examination, and having been examined by a cardiologist, he was prescribed outpatient treatment. On 4 March 2009 the applicant was offered a coronary angiography in a private hospital setting, which he refused. On 24 March 2009 he was seen by a cardiologist again and had another electrocardiography examination. He continued to receive treatment on an outpatient basis.

2. Developments subsequent to the introduction of the application

13. On 25 May 2009 the applicant initiated another set of proceedings, maintaining his request for the suspension of his prison sentence. The Tbilisi City Court and the Tbilisi Court of Appeal while concluding that the applicant ’ s medical condition was of moderate severity rejected his request on 30 June and 30 September 2009, respectively.

14 . In the meantime, on 17-18 June 2009 the applicant was transferred to a private specialist clinic, where he was provided with a coronary angiography. Subsequently, it was recommended that he undergo adequate anti-thrombosis therapy, followed by coronary angioplasty (a procedure used to open blocked or narrowed coronary arteries) . His overall condition was characterised as stable.

15 . On 19 August 2009 the applicant rejected the offer of having angioplasty in a specialist medical establishment. He requested to be allowed to undergo the respective treatment abroad, namely in Austria or Switzerland.

16 . On 1 and 9 September 2009 the applicant was again seen by a cardiologist and had another electrocardiography examination. Having refused on 15 September 2009 the offer of being transferred to a medical ward of Tbilisi Prison no. 3, the applicant was transferred to the prison hospital the next day. There he underwent various medical tests, including general blood and urine analysis and X-ray of the chest area. He was returned to prison the same day.

17 . According to the case file, on 21 September 2009 the applicant again rejected the offer of the Tbilisi Prison no. 3 administration to undergo additional tests and prescribed treatment at a private specialist clinic. The applicant explained that his refusal had been motivated by lack of trust in the prison authorities. On 7 October 2009 he again dismissed the possibility of being transferred this time to the prison hospital. In October and November 2009 the applicant was twice seen by a cardiologist, who prescribed him specific treatment. On 28 January 2010 the applicant refused to be transferred to a private specialist clinic. In the subsequent months he was regularly seen by a cardiologist on the premises of Tbilisi Prison no. 3 and provided with outpatient treatment under the latter ’ s supervision.

18. According to the latest medical information at hand before the Court (accounting for the period including May 2012), the applicant ’ s condition started to improve in October 2010. In latest medical reports his condition was assessed as satisfactory. The applicant was continuing to benefit from regular consultations with a cardiologist, as well as receiving outpatient treatment as prescribed. On 24 January 2013 he was released from prison.

B. Relevant domestic law

19. Article 207 of the General Administrative Code states that an individual could sue a State agency for damage under the rules on liability for civil wrongs contained in the Civil Code.

20. Article 413 of the Civil Code entitles an individual to request compensation for non-pecuniary damage caused in respect of damage to his or her health. Article 992 of the same Code further provides that a person who caused loss or harm either by unlawful, intentional or negligent conduct shall provide compensation in respect of the damage caused.

21. According to Article 261 of the Code of Criminal Procedure (as in force at the material time), upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, were to open an investigation.

COMPLAINTS

22. The applicant complained under Articles 2 and 3 of the Convention about the delayed emergency intervention for his stenocardiac attack and the subsequent inadequate medical treatment for his cardiological problems. He further alleged a violation of Article 6 of the Convention on account of the domestic courts ’ refusal to suspend his prison sentence.

THE LAW

A. Alleged violation of Article 3 of the Convention

23. The applicant alleged a violation of Article 2 and Article 3 of the Convention on account of the delayed and inadequate medical treatment provided to him in prison. The Court which is master of the characterisation to be given in law to the facts of the case, considers that the present complaint falls to be examined under Article 3 of the Convention only (see, amongst many others, Jashi v. Georgia , no. 10799/06 , § 59, 8 January 2013) . Article 3 of the Convention reads:

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

1. The parties ’ submissions

(a) The Government

24. The Government submitted that the applicant ’ s complaint about delayed emergency intervention on 24 Ma y 2008 was inadmissible for non ‑ exhaustion. They claimed that it had been a stand-alone incident of the alleged omission on the part of the relevant prison authorities. The applicant could have thus lodged a criminal complaint requesting an investigation on the basis of Article 261 of the Code of Criminal Procedure. In addition, he could have availed himself of a civil remedy claiming compensation for damages inflicted as a result of the alleged omission. The Government also alleged that the applicant ’ s above complaint was belated. Notably, according to them, the impugned incident took place on 24 May 2008. Were the applicant to consider that there were no effective remedies to address the alleged omission, he should have lodged his application with the Court within the six-month time-limit following that date, that is to say, by 24 November 2008 at the latest. He did not d o so, however, until 5 May 2009.

25 . As to the adequacy of the subsequent medical treatment, the Government claimed that they had taken all necessary measures to safeguard the applicant ’ s health in prison. Hence, on 24 May 2008 he was transferred to the intensive therapeutic department of the prison hospital. He stayed there until 2 June 2008 and was provided with an intensive therapy course under the supervision of a cardiologist. While submitting the applicant ’ s full medical file for the relevant period of time, the Government asserted that the treatment which included various tests and expensive medication, had been provided to the applicant at their expense exclusively. On 5 June 2008 the applicant, at his own request and following an improvement in his condition, was transferred back to prison. Between 5 June 2008 and 21 September 2009 the applicant on several occasions rejected the prison authorities ’ proposal to have a coronary angiography, then anti-aggregative treatment followed by angioplasty and other relevant procedures. At the same time within the above mentioned period of time he was transferred on several occasions to the prison hospital and a private specialist clinic, where he had undergone all required examinations. The Government maintained, with reference to his medical file, that despite the applicant ’ s uncooperative behaviour, in October 2010 his condition started to improve.

26. The Government in addition submitted financial documents showing all the expenses that the relevant authorities had borne on the applicant ’ s treatment. With reference to the relevant certificates, the Government also challenged the applicant ’ s allegation about his doctor being an uncertified cardiologist. The Government maintained that the applicant had been under permanent professional medical supervision during his time in prison. When necessary he had been transferred to a specialist medical institution for specific examinations and treatment. His refusal to undergo certain prescribed treatment had been binding on the medical staff. Instead he had been offered outpatient drug treatment which had had positive results.

(b) The applicant

27. The applicant claimed that back in 2003, upon his arrest, he had been tortured. As a result he had developed various health conditions in prison which, in view of the poor conditions of detention, had culminated in the stenocardiac attack he had suffered on 24 May 2008. Because of a three ‑ hour delay in his transfer to a medical establishment he had subsequently suffered a heart attack. The applicant maintained that he had been subjected to continuous physical and moral suffering in prison from the very first day of his arrest and that the impugned incident of 24 May 2008 had been part of that ill-treatment. The remedies suggested by the Government, according to the applicant, were inadequate. As to the argument concerning the rule of six months, the applicant dismissed it as unsubstantiated.

28. The applicant further challenged the Government ’ s submission that he had been provided with all prescribed medication at the expense of the Government. He also alleged that the doctor who had supervised him had not been a certified cardiologist and that the medical staff in Prison no. 12 had not included certified doctors. He argued that he had been left without daily professional medical supervision despite his particularly serious condition. The applicant further described the conditions in which he was kept in Prison no. 12 as inadequate. He maintained that his continued detention was incompatible with his state of health as he was at risk of experiencing another stenocardiac attack. Lastly, the applicant challenged, without providing any details, the authenticity of the claims that he had refused certain medical treatment proposed by the prison authorities.

2. The Court ’ s assessment

29. The Court notes at the outset that the applicant ’ s allegations of ill ‑ treatment in prison back in 2003 and rather general allegations of inadequate conditions of detention, which he voiced for the first time before the Court in reply to the Government ’ s observations, clearly fall outside the scope of the examination of the current case ( see paragraph 22 above above).

30. As regards the first limb of the applicant ’ s complaint under Article 3 of the Convention, it concerns exclusively the applicant ’ s allegation that the relevant prison authorities failed to provide him with prompt medical intervention for his stenocardiac attack. As a result, three hours later, he suffered a heart attack. The Court considers that this alleged omission of the prison authorities by its very nature falls outside the scope of the structural problem that persisted in the prisons of Georgia (see Ramishvili and Kokhreidze v. Georgia ( dec. ), no. 1704/06, 27 June 2007) and for which no effective remedies, as established by the Court, existed at the material time (see Goginashvili v. Georgia , no. 47729/08, §§ 51-61, 4 October 2011). It was rather, in the Court ’ s view, an isolated episode directly associated with a specific act or omission of State agents in charge of the imprisoned applicant. Thus, while arguing direct causality between the delayed treatment for the stenocardiac attack and the infraction complained of, the applicant had to avail himself of either a criminal remedy as suggested by the Government (see, amongst many others, Ramishvili and Kokhreidze , cited above), or of a compensatory remedy (see Goloshvili v. Georgia , no. 45566/08 , §§ 32-33, 20 November 2012, and Poghosov v. Georgia [Committee], no. 33323/08, § 19, 29 June 2017). In any event, should the applicant have believed, as he claimed before the Court, that no effective domestic remedy was available to him to complain about the allegedly delayed treatment for his stenocardiac attack, he should have lodged his complaint with the Court within six months of the date of the incident, that is by 24 November 2008 the latest. However he failed to do so. His complaint under Article 3 of the Convention concerning the allegedly delayed treatment for his stenocardiac attack should, therefore, be declared inadmissible under Article 35 §§ 1 and 4 of the Convention.

31. As regards the second limb of the applicant ’ s complaint under Article 3 of the Convention concerning the alleged inadequacy of the medical treatment available for his cardiological problems in prison after his heart attack, the Court reiterates that the mere fact of a deterioration of an applicant ’ s state of health, albeit capable of raising, at an initial stage, certain doubts concerning the adequacy of the applicant ’ s treatment in prison, cannot suffice, by itself, for a finding of a violation of the State ’ s positive obligations under Article 3 of the Convention, if, otherwise, it can be established that the relevant domestic authorities have in a timely fashion provided all the reasonably available medical care in a conscientious effort to hinder the development of the illness in question (see Nozadze v. Georgia ( dec. ) [Committee], no. 41541/05, § 32, 9 May 2017). In the context of the current case the Court notes the following. After the communication of the present application, the Government submitted a copy of the applicant ’ s medical file, fully accounting for the period in question (see paragraph 25 above). By disclosing all the information necessary for the assessment of the quality of the treatment in issue, the Government have discharged their burden of proof, assisting the Court in its task of factual determination, and the applicant ’ s subsequent objections must be treated with caution (see Goginashvili , cited above, § 72; see a contrario , Irakli Mindadze v . Georgia , no. 17012/09 , §§ 42-43, 11 December 2012, and Meskhidze v. Georgia [ Committee ], no. 55506/08 , § 45, 21 December 2017 ).

32. The evidence available to the Court clearly demonstrates that considerable attention was paid to the applicant ’ s health on the part of the relevant authorities after he had suffered a heart attack on 24 May 2008. Thus, the applicant was under the constant supervision of medical staff, including regular consultations with a cardiologist. He was provided with regular medical tests and examinations, transferred to either the prison hospital or a specialist civil hospital for examination and treatment, and administered with requisite drugs with the State bearing all the relevant costs (see paragraphs 10 , 12 , 14 , 16 , and 17 above). It appears that the authorities made arrangements for the follow-up treatment of the applicant, however he repeatedly refused that offer (see paragraphs 12 , 15 , 16 and 17 above; see further in this respect Jashi , cited above, § 68; contrast with Akhmetov v. Russia, no. 37463/04, §§ 81-83, 1 April 2010). The applicant challenged in his observations the authenticity of some of the so-called “refusal acts”, but failed to specify which ones. The Court is in no position to contest the authenticity of those documents which are duly signed by the applicant, his doctor and other prison staff. In any event, as confirmed by his medical file, within the relevant period of time the Government was able to maintain the stability of the applicant ’ s health in prison.

33. In those circumstances, the Court considers that the prison authorities showed a sufficient degree of diligence, providing the applicant with sufficiently prompt, regular and comprehensive treatment for his heart problems. It follows that the second limb of the applicant ’ s complaint under Article 3 of the Convention concerning the medical treatment available to him in prison in the post-heart attack period is manifestly ill-founded and must be rejected in accor dance with Article 35 §§ 3 (a) and 4 of the Convention.

B. The remainder of the application

34. The applicant complained under Article 6 of the Convention about the domestic courts ’ refusal to suspend his prison sentence. The Court holds that in the light of the material in its possession and in so far as the matters complained of are within its competence, this complaint 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 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 June 2018 .

Milan BlaÅ¡ko André Potocki              Deputy Registrar President