FIFTH SECTION

DECISION

Application no . 28739/06 Ermile TORTLADZE against Georgia

The European Court of Human Rights (Fifth Section), sitting on 6 June 2017 as a Committee composed of:

Síofra O ’ Leary, President, Nona Tsotsoria, Lәtif Hüseynov, judges, and Anne-Marie Dougin , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 29 June 2006,

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 Ermile Tortladze, is a Georgian national who was born in 1964 and lives in Tbilisi. He was represented before the Court by Ms E. Fileeva, 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.

4 . On 25 August 2005 the applicant was arrested in relation to a drug offence. On 28 August 2005 he was remanded in custody for three months by a first-instance court and placed in Prison no. 7. The applicant lodged an appeal on the grounds that a search of his office had been carried out in violation of international law, as his prior consent to the search had allegedly been necessary in view of his status as Honorary Consul of the Republic of Ivory Coast in Georgia. The appeal was rejected by the Court of Appeal in a final decision dated 7 September 2005. Relying on the 1963 Vienna Convention on Consular Relations, in force and directly applicable with regard to Georgia as of 12 July 1993, the court found the applicant ’ s argument manifestly ill-founded in view of the limited immunity afforded to the premises of honorary consuls under international law. The court concluded that the relevant conditions for carrying out the search of the applicant ’ s office had been fully met.

5 . On 11 January and 6 May 2006 the applicant asked to be released from pre-trial detention on account of his state of health. His applications were rejected by the Tbilisi City Court on 13 January 2006 and 4 May 2006 respectively. According to the material available in the case file, the applicant never made any complaint to any of the competent domestic authorities regarding the material conditions of his pre-trial detention in either Prison no. 7 or Prison no. 1.

6 . On 20 November 2006 a first-instance court sentenced the applicant to eighteen years ’ imprisonment for the illegal purchase, storage and carrying of firearms, and the illegal purchase and storage of drugs in large quantities. A reduced sentence of seventeen years ’ imprisonment became final on 18 February 2008.

7 . On 26 August 2005, on the day following his arrest, the applicant was examined in a civilian hospital, in view of the chest pain which he was experiencing. Doctors noted that his medical history included a heart attack in 2003 and a coronary artery bypass operation. He was injected with an anesthetic and discharged the same day.

8 . On 7 October 2005 the applicant was transferred to a private clinic, the Emergency Cardiology Centre, following his experiencing severe chest pains. He was given morphine for the pain. Following a coronary angiogram and cardiac ventriculography, a cardiologist concluded that it would not be possible to perform angioplasty or a new coronary artery bypass operation, because of the existing damage to the arteries. The applicant was diagnosed with ischaemic heart disease, atherosclerosis of the coronary arteries, cardiomyopathy, post-infarction cardiac sclerosis, a right bundle branch block, and third-degree heart failure, as well as a post-coronary artery bypass surgery condition dating from 2003. His condition was assessed as serious and requiring outpatient treatment. The applicant stayed at the clinic, allegedly at his own expense, until his transfer to Prison no. 1 on 28 October 2005, where he continued to receive treatment prescribed by his cardiologist.

9 . On 4 March 2006 the applicant suffered what was presumed to be an anterior wall myocardial infarction, and was transferred to the prison hospital. Later that day he was transferred to a private cardiology clinic, where he underwent various tests and treatment. The diagnosis of a heart attack was not confirmed. The applicant stayed at the cardiology clinic until his transfer to the prison hospital on 6 March 2006. He was not returned to a prison cell after that date. During his time in the prison hospital the applicant was placed in several wards. According to the case file, he expressed his dissatisfaction with one of the wards on 24 August 2006, notifying the director of the hospital that two rodent and pest clean-up operations carried out by the prison administration had been ineffective.

10 . On 24 March 2006 the applicant ’ s cardiologist, who was based at a civilian hospital, concluded that his condition was serious, and suggested that the applicant be provided with treatment in a cardiology clinic. She recommended treating his pain with powerful sedatives, and narcotics if necessary, and further adjusted his treatment plan.

11 . The applicant was transferred to a private cardiology clinic on 1 June 2006, where he stayed until 24 June 2006, allegedly at his own expense.

12 . On 23 August 2006 a panel of medical experts convened at the prison medical department to reassess the applicant ’ s medical condition and treatment plan. The panel concluded that the applicant ’ s condition was generally satisfactory, but required continued outpatient treatment at the prison hospital and specific medication.

13 . On 29 September 2006 the applicant was transferred to a private cardiology clinic, Guli Clinic, where he underwent several examinations and had his treatment plan adjusted. The director of the clinic concluded that his condition was stable and required continued treatment.

14 . On 19 December 2006, after examining complaints by the applicant concerning the allegedly inadequate medical care provided in respect of his heart condition and the Government ’ s alleged refusal to fund his stay in a private clinic, the President of the Chamber to which the case had been assigned decided to indicate to the respondent Government, under Rule 39 of the Rules of Court, that, in view of his serious condition, the applicant should be provided with appropriate and adequate medical treatment in a suitable hospital environment, irrespective of his ability to fund his own medical treatment while in detention.

15 . The full copy of the applicant ’ s medical file submitted by the Government revealed that the applicant ’ s condition was monitored on a daily basis at the prison hospital from the time he was placed there. He was provided with the required treatment and various diagnostic tests, including routine electronic heart checks at the prison hospital as well as at civilian clinics. On 16 January 2007 he had an appointment with a cardiologist from the medical panel which had considered his condition on 23 August 2006 (see paragraph 12 above). No sign of deterioration was observed and the cardiologist provided an updated treatment plan. On 12 January and 16 May 2007 the applicant underwent ultrasound examinations of his heart at a private clinic. During 2006 and the first half of 2007, fifteen blood and urine tests were carried out in the prison hospital as well as in private laboratories. No signs of complications were revealed. On 5 June 2007 the applicant ’ s cardiologist from a civilian hospital noted that his state of health was stable under the supervision of the prison hospital ’ s cardiology service, and surgery was not necessary. The Government presented evidence certifying that the relevant expenses were borne by the State.

16 . On 23 April 2008 the applicant was transferred from the prison hospital to a private cardiology clinic, Adapti Clinic, where he remained until 25 December 2008. While at the clinic in question the applicant was under the constant supervision of a cardiologist, and he underwent various relevant examinations and received prescribed medical treatment, which the applicant himself described as adequate.

17 . On 25 December 2008 the Government transferred the applicant to a newly opened prison hospital. He was placed under the supervision of a cardiologist who was present at the hospital from 10 a.m. to 6 p.m. during the week, and available for emergency calls during non-working hours. A duty doctor and an anaesthesiology and intensive care specialist were always present at the hospital. According to the material available in the case file, the applicant never complained to the prison authority or the domestic courts regarding the material conditions of his stay at the new prison hospital.

18 . On 13 February 2009 the applicant suffered an angina attack. He was transferred to Guli Clinic, a private cardiology clinic, and was admitted to the intensive care unit. His ejection fraction (the percentage of blood pumped out of the ventricles with each contraction), which had previously been between 28 and 31%, had declined to between 18 and 20% (the normal value being 55-70%). It was concluded that his condition necessitated the implantation of a cardioverter defibrillator.

19 . On 12 March 2009, in view of the applicant ’ s complaint that the Government had allegedly refused to fund the surgery and the stay in the private clinic, the President of the Section decided to indicate to the Government, under Rule 39 of the Rules of Court, that they should take all necessary measures, surgical interventions included, as deemed necessary by a specialist doctor and consented to by the applicant in order to protect his life. The Government was further invited to submit additional observations as to whether the circumstances of the case could entail a breach of Articles 2 and 34 of the Convention, in view of an earlier Rule 39 indication by the Court.

20 . According to the detailed information submitted to the Court by the Government on 3 and 30 July 2009, the applicant remained in the intensive care unit of the Guli Clinic from 13 February 2009 to 29 July 2009. According to the documentation provided by the Government, the latter had already taken steps to import the cardioverter defibrillator from Switzerland on 16 February 2009, before the Court ’ s indication under Rule 39 of the Rules of Court. The defibrillator was delivered on 25 February 2009, and after carrying out the relevant preparatory treatment the implantation was carried out at the Guli Clinic on 2 April 2009. The applicant was discharged from the private clinic on 29 July 2009 and transferred to the prison hospital. All the expenses were covered by the State.

21 . The applicant continued treatment in the prison hospital under the supervision of a cardiologist. On 15 September 2009 a panel of experts, which included the President of the Georgian Cardiology Association, convened at the prison hospital to assess the applicant ’ s condition and readjust the treatment plan. It concluded that the applicant ’ s condition was stable, and that only prescribed medication and medical supervision was necessary thereafter.

22 . On 8 February 2012 the President of the Section reconsidered the application in the light of the relevant developments regarding the applicant ’ s state of health, and decided to lift the interim measures previously indicated.

23 . On 21 January 2013 the applicant was granted early release from prison.

COMPLAINTS

24 . The applicant complained under Article 3 of the Convention that the material conditions of his detention in Prisons no. 7 and no. 1 and in the prison hospital had been poor.

25 . Relying on Articles 2 and 3 of the Convention, and invoking Article 34 of the Convention in substance, the applicant complained that he had been denied medical care for his heart problems.

26 . Invoking Articles 5 and 13 of the Convention, the applicant complained regarding the illegality of his detention in view of his alleged immunity from criminal proceedings as Honorary Consul of Ivory Coast in Georgia, and the domestic courts ’ refusal to release him from pre-trial detention on account of his health condition. The applicant also relied on Article 14 of the Convention.

THE LAW

A. Complaints under Article 3 of the Convention

27 . The applicant complained under Article 3 of the Convention regarding the material conditions of his detention and the lack of medical care in prison. The provision reads as follows:

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

28 . The Government submitted that the complaints were manifestly ill ‑ founded. They submitted that at all times the material conditions of the applicant ’ s detention had been in compliance with the relevant international standards. As regards the complaint concerning the allegedly inadequate medical care, the Government maintained, with reference to the substantial medical file of the applicant, that at all times he had been provided with the requisite care of a standard equivalent to the treatment he would have received at liberty, and the inconvenience suffered during his detention, if any, had not exceeded what was inherent in detention and in the disease he was suffering from.

29 . The applicant maintained that the material conditions of detention had not corresponded to the requirements of his health condition, without providing any evidence to support his claims. As regards the complaint concerning the allegedly inadequate medical care during his detention, the applicant maintained that his health condition had called for treatment in a specialist cardiology hospital, and that the authorities had failed to provide him with the requisite standard of care in prison.

30 . Referring to its relevant case-law in respect of the conditions of detention in Georgian custodial institutions at the material time, the Court reiterates that if an applicant wished to challenge allegedly poor material conditions of detention in a Georgian prison, even if such complaints did not call for the full and meticulous exhaustion of any specific criminal or civil remedies (compare with Aliev v. Georgia , no. 522/04, §§ 62-63, 13 January 2009, and Goginashvili v. Georgia , no. 47729/08, §§ 54 and 57, 4 October 2011), at the very minimum it was still required that at least one of the responsible State agencies be informed of the applicant ’ s subjective assessment that the conditions of detention in question constituted a lack of respect for, or diminished, his or her human dignity. Without such basic conduct at domestic level by a person wishing to challenge the conditions of his or her detention, the Court would necessarily have difficulties in evaluating the credibility of an applicant ’ s allegations of fact in that respect (see Ramishvili and Kokhreidze v. Georgia (dec.), no. 1704/06, 26 June 2007, and Janiashvili v. Georgia , no. 35887/05, § 70, 27 November 2012 ).

31 . Having regard to the material available in the case file, the Court notes that the applicant did not inform any of the relevant authorities of his dissatisfaction with any particular aspect of the material conditions of his detention, including any relating to sanitary conditions, in either Prison no. 7 or Prison no. 1. As regards his placement in the prison hospital, according to the case file, the applicant raised an issue concerning his dissatisfaction with only one of the hospital wards in a letter addressed to the director of the hospital on 24 August 2006. However, the Court notes that in his submissions before the Court concerning the prison hospital the applicant submitted no details of the facts giving rise to his allegations, and presented no documentary evidence enabling the Court to establish their truthfulness.

32 . In this connection, the Court reiterates that, although in cases concerning complaints regarding detention conditions the Court has not always required that an applicant support each and every allegation with particular documents, recognising that relevant information and possibilities to investigate the facts of such cases lie primarily in the hands of the authorities, in order for the Court to reverse the burden of proof and examine the merits of the complaints, they must at least have been clearly and consistently formulated (see Muršić v. Croatia [GC], no. 7334/13 , § 127, ECHR 2016 ). In the Court ’ s opinion, this requirement has not been met in the present case, as the applicant ’ s complaints have been limited to vague and general statements. The applicant did not provide a detailed account of events to clarify the nature and extent of his problems or whether the treatment complained of had reached the threshold of severity bringing the matter within the ambit of Article 3 of the Convention. The Court therefore finds that the applicant has not made out an arguable claim concerning the conditions of his detention. In view of the foregoing, the Court considers that this part of the application has not been properly substantiated by the applicant (see Ildani v. Georgia , no. 65391/09 , § 27, 23 April 2013) . It should therefore be rejected as manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

33 . As to the complaint concerning the lack of adequate medical care, the Court reiterates that Article 3 cannot be interpreted as requiring the relevant authorities to place a detainee in a civilian hospital to obtain a particular kind of medical treatment (see, mutatis mutandis , KudÅ‚a v. Poland [GC], no. 30210/96, § 93, ECHR 2000 ‑ XI ) or to secure for every detained person medical assistance of the same standard as that in the best civilian clinics (see Golubenko v. Ukraine (dec.), no. 36327/06, § 90, 5 November 2013).

34 . In deciding on the compatibility of an applicant ’ s health with his stay in detention, the Court considers at least three specific elements: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant (see, among other authorities, Rivière v. France , no. 33834/03, § 63, 11 July 2006, and Goginashvili , cited above, § 70). The Court is mindful of the fact that the adequacy of the medical assistance is always the most difficult element to determine. In this task, it must reserve, in general, sufficient flexibility, defining the required standard of health care, which must accommodate the legitimate demands of imprisonment but remain compatible with human dignity and the due discharge of its positive obligations by the State, on a case-by-case basis (see Aleksanyan v. Russia , no. 46468/06, § 140, 22 December 2008, with further references).

35 . Returning to the circumstances of the present case, the Court notes that the key aspect of the present application is whether or not the respondent Government was able to maintain the stability of the applicant ’ s health in prison by dispensing adequate treatment for his serious heart condition, which, it should be noted, had developed prior to his placement in detention. In its assessment of this issue, the Court considers that it must be guided by the due diligence test, since the State ’ s obligation to cure a seriously ill detainee concerns the means to be employed, and not the results to be achieved. Notably, the mere fact that the applicant ’ s state of health deteriorated, although capable of raising certain doubts concerning the adequacy of the treatment in prison at an initial stage, could not suffice for a finding of a violation of the State ’ s positive obligations under Article 3 of the Convention if, on the other hand, it could be established that the relevant domestic authorities promptly explored all reasonably possible medical measures in a conscientious effort to hinder development of the disease in question (see Goginashvili , cited above, § 71). The Court further notes that, following the communication of the present application, the Government submitted a copy of the full medical file on the applicant ’ s treatment, from the beginning of his detention until his early release. Thus, 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 and duly assisted the Court in its task of factual determination. That being so, the applicant ’ s subsequent objections must be treated with caution (ibid . , § 72).

36 . The evidence available to the Court demonstrates that the applicant was examined by the prison doctors on a regular basis. He was sent to civilian hospitals, at times for extended periods, for further examinations and treatment when this was considered necessary. The applicant ’ s claims to the contrary seem unsubstantiated in the light of the detailed medical records adduced by the Government demonstrating that the applicant ’ s health was monitored on a regular basis, medication was duly administered as prescribed by a private cardiologist, and virtually all expenses were covered by the State except for on two occasions when the applicant asked to be transferred to a particular private clinic. Similarly, contrary to the applicant ’ s initial allegation about the Government authorities ’ refusal to fund his surgery and subsequent stay at a private cardiology clinic, to which end the Court indicated an interim measure under Rule 39 of the Rules of Court on 12 March 2009 (see paragraph 19 above) , the case file shows that the relevant authorities had already taken the necessary steps to schedule and carry out the implantation of the cardioverter defibrillator in February 2009 (see paragraph 20 above). The Government further submitted relevant documentation attesting that all the associated costs, including those relating to the applicant ’ s subsequent stay at a private clinic until he was discharged on 29 July 2009, were borne by the State. The Court further notes that the applicant ’ s treatment was continued at the prison hospital, in accordance with the cardiologist ’ s prescription. O n 15 September 2009 a panel of experts, which included the President of the Georgian Cardiology Association, concluded that the applicant ’ s condition was stable, and that only treatment with appropriate medication and medical supervision was necessary (see paragraph 21 above). According to the case file, the prescribed treatment and medical supervision was duly provided by the Government until the applicant ’ s early release on 21 January 2013.

37 . In the light of the above findings, the Court concludes that the relevant authorities took all reasonably possible medical measures in a conscientious effort to hinder the development of the disease in question, rendering the applicant ’ s detention compatible with the requirements of the Convention. Consequently, the applicant ’ s complaints under Article 3 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

B. The remainder of the application

38 . In the light of the Court ’ s findings concerning the applicant ’ s complaints under Article 3 of the Convention relating to the adequacy of the medical care administered in prison, and the Government ’ s compliance with the interim measures indicated by the Court under Rule 39 of the Rules of Court (see paragraph 36 above), the Court finds that the applicant ’ s complaints under Articles 2 and 34 of the Convention concerning the identical factual circumstances are manifestly ill-founded and should be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

39 . As regards the applicant ’ s complaints under Articles 5 and 13 of the Convention, they refer to two matters – the applicant ’ s alleged immunity from criminal proceedings, and the incompatibility of his detention with his state of health (see paragraph 26 above).

40 . In so far as the complaint relates to the alleged illegality of the applicant ’ s detention on remand in view of his status as Honorary Consul, and any possible personal immunity from jurisdiction ensuing from that under the 1963 Vienna Convention on Consular Relations, the Court notes that the applicant never raised an argument about his potential personal immunity from criminal proceedings at domestic level. He merely questioned the legality of the search of his premises (see paragraph 4 above). Consequently, this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

41 . As to the domestic judicial authorities ’ refusals on 13 January 2006 and 4 May 2006 to release the applicant from pre-trial detention on health grounds (see paragraph 5 above), the Court reiterates that the Convention cannot be interpreted as laying down a general obligation to release a detainee on health grounds (see Kudła , cited above , § 93 ). Consequently, the complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

42 . As regards the complaint under Article 13 of the Convention, the provision in question applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Menson v. the United Kingdom (dec.), no. 47916/99, ECHR 2003 ‑ V ). Consequently, in the light of the Court ’ s above-mentioned conclusions concerning the applicant ’ s complaints under Article 5 of the Convention, it follows that this part of the application is also manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

43 . As regards the applicant ’ s reliance on Article 14 of the Convention, which prohibits discrimination in the enjoyment of the rights guaranteed under the Convention, the Court notes that the applicant has neither explicitly nor implicitly invoked any other Article of the Convention in conjunction with his submissions in this regard. Since Article 14 of the Convention complements the other substantive provisions of the Convention and the Protocols, it has no independent existence, but has effect solely in relation to “the enjoyment of the rights and freedoms” safeguarded by those provisions (see Kochieva and Others v. Sweden (dec.), no. 75203/12, § 43, 30 April 2013). It follows that this part of the application is also manifestly ill-founded and must be declared inadmissible in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 29 June 2017 .

Anne-Marie Dougin Síofra O ’ Leary              Acting Deputy Registrar President