FOURTH SECTION

DECISION

Application no . 31197/06 Zviad OBOLADZE and Nino LOBZHANIDZE against Georgia

The European Court of Human Rights ( Fourth Section ), sitting on 24 March 2015 as a Committee composed of:

Ledi Bianku , President, Paul Mahoney , Krzysztof Wojtyczek , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 7 July 2006 ,

Having regard to the declaration submitted by the respondent Government on 29 August 2014 requesting the Court to strike the application out of the list of cases and the applicants ’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicants, Mr Zviad Oboladze (“the first applicant”) and Ms Nino Lobzhanidze (“the second applicant”), are Georgian nationals, who were born in 1977 and 1958 respectively. They were represented before the Court by Mr W.P. Schulz and Mr K. Neumann , German lawyers, and Ms K. Mekhuzla and Ms. T. Gabisonia, Georgian lawyers practicing in Tbilisi.

2 . The Georgian Government (“the Government”) were represented by their Agent, Mr L . Meskhoradze of the Ministry of Justice.

3 . The facts of the case as submitted by the parties may be summar is ed as follows .

A. The circumstances of the case

4 . Both applicants were employed at the material time as gynecologists at Mtskheta hospital. The second applicant was also serving as the deputy director of the hospital.

5 . On 22 September 2005 at about 5 a.m. a patient, G.M., with severe abdominal pain, was brought by ambulance to Mtskheta hospital. The first applicant, who was on the night shift in the gynecological ward of the hospital, after examining her, diagnosed G.M. with post-abortion complications . The examination was attended by the second applicant. At 3 . 50 p.m. on 22 September 2005 G.M. died . According to the post-mortem forensic examination, the cause of her death was acute anaemia developed as a result of a ruptured fallopian tube caused by an ectopic pregnancy.

6. On the same day a preliminary investigation was initiated into the death of G.M. caused by medical negligence under Article 130 § 2 of the Criminal Code of Georgia.

7. On 22 December 2005 experts of the National Forensic Bureau concluded that due to a diagnostic error, G.M. was not provided with an urgently required surgical intervention and died as a result.

1. The applicants ’ pre-trial detention and the criminal proceedings conducted against them

8. On 26 December 2005 both applicants were summoned to the Mtskheta prosecutor ’ s office, where they were officially charged with an offence under Article 130 § 2 of the Criminal Code (leaving a patient in danger, and thereby causing her death) and were questioned as accused. Subsequently, an investigator drew up records on their detention and immediately, with the consent of the prosecutor, forwarded their case file to the Mtskheta District Court, requesting that they be remanded in custody. According to the investigator, the main justification for the imposition of such a restraint measure on the applicants was that in view of the severity of the sentence there was a reasonable suspicion that they would abscond, thus obstructing the conduct of the investigation. The investigator also argued that the applicants, if released, would threaten the parties to the proceedings or would commit new offences.

9. On 26 December 2005, late at night, the Mtskheta District Court remanded the applicants in custody for three months. Having reviewed the criminal case materials, the court confirmed that there was a reasonable suspicion that the offence had been committed. The imposition of pre-trial detention was further found to be justified by the assumption that the applicants might abscond from justice and unduly influence the investigation.

10. On 28 December 2005, the second applicant ’ s lawyer lodged a complaint with the Tbilisi Court of Appeal against his client ’ s detention order. The lawyer claimed that approximately half an hour after the applicant ’ s questioning, a detention hearing was held, thus depriving his client of the opportunity to adequately prepare her defence . A separate complaint against the detention order of 26 December 2005 was lodged by the first applicant ’ s lawyer. He claimed that there was no reasonable suspicion that his client had committed the offence in question, as it was obvious from the case materials that he had been off duty from 10 a.m. on 22 September 2005 and had not been in charge of G.M. ’ s treatment when she died.

11. On 4 January 2006, at an open hearing, the Tbilisi Court of Appeal dismissed both applicants ’ appeals. After reviewing the available evidence, the appellate court confirmed that there was a reasonable suspicion against the applicants. In connection with the reasonableness of the pre-trial detention, the court concluded, without referring to any specific factual circumstances concerning the applicants, that there was a high probability that the applicants would influence witnesses and hence hinder the establishment of the truth.

12. On 15 February 2006 the pre-trial investigation was completed and the criminal case file, together with the bill of indictment, was sent to the Mtskheta first-instance court for examination.

13. On an unidentified date the second applicant ’ s lawyers requested the Mtskheta District Court to release their client on bail. In their request they brought the court ’ s attention to the applicant ’ s poor health. They also based their request on the following elements: the fact that she is a mother of four and that her youngest daughter, aged four, was ill; lack of criminal record, her impeccable reputation as a doctor and the signatures of some 2,000 people in her support. The lawyers again emphasised that the investigation was over, and since the second applicant was charged with a less serious offence there was no reason whatsoever to keep her in prison. The above request was dismissed by the first-instance court.

14. At the hearing of 18 July 2006 the first applicant, having regard to his worsening medical condition (see below), also requested the court to substitute his pre-trial detention with a more lenient measure of restraint. The court concluded that no new circumstances had been shown which could justify the first applicant ’ s release; the request was therefore dismissed as unsubstantiated.

15. On 9 August 2006 the first-instance court held its final hearing. The first applicant, who as a consequence of his allegedly inappropriate behaviour had been expelled from the courtroom during the previous hearing, requested the court to allow him to take part in the concluding proceedings and make final pleadings . Th e request was refused by the judge.

16. By a judgment of 9 August 2006 the Mtskheta District Court convicted the applicants as charged and sentenced them to three years ’ imprisonment each. The court , relying on several medical conclusions and witness statements, concluded that the applicants had failed to provide G.M. with the medical tests which were urgently required, so that it had been impossible to make an accurate diagnosis of her condition. Moreover, despite the obvious symptoms of an ectopic pregnancy, they had not provided her with adequate and appropriate treatment.

17. The applicants appealed against their conviction. They reiterated their pleas of innocence, challenging the assessment of evidence by the first ‑ instance court and denouncing the legal qualification of their acts under the criminal law. They also alleged a breach of the principle of secrecy of deliberations on account of the fact that when withdrawing for deliberations the trial judge had been accompanied by a prosecutor.

18. By a decision of 29 December 2006 the Tbilisi Court of Appeal, whilst fully supporting the reasoning of the first-instance court, upheld the applicants ’ conviction. The appeal court judge also dismissed the applicants ’ complaint concerning the alleged breach of the principle of secrecy of deliberations.

19. On 23 July 2007 the Supreme Court dismissed the applicants ’ appeal on points of law as inadmissible. Without giving any specific details, the court merely reproduced the relevant provision of the Criminal Procedure Code of Georgia, noting that “the case [was] not important for the development of the law and coherent judicial practice; the [contested] decision [did] not differ from the Supreme Court ’ s existing practice in such matters, and the appellate court [had] not committed any major procedural flaws during its examination which could have significantly affected its outcome.”

20 . In November 2007 both applicant s w ere released from serving the remainder of their prison sentence s .

2. The first applicant ’ s state of health and proceedings before the Court

21. It appears from the case file that in 2005, prior to the initiation of the criminal proceedings against the first applicant, he was diagnosed as suffering from lumbar spondylosis, lygamentosis and sequestered prolapsed dis c . While in prison the diagnosis of spinal disc problems was confirmed and the first applicant was recommended to have a surgical intervention in a specialised hospital. Otherwise, according to the neurosurgeon, the applicant faced the risk of becoming disabled. According to the case file, despite the first applicant ’ s reiterated complaints, the above medical recommendation was never followed up. Moreover, in February 2007 the first applicant was transferred to Rustavi no. 1 Prison where a further deterioration in his medical condition was noted. According to the applicant, he was kept there in poor conditions . Notably, the cell was overcrowded , hence the cellmates including the applicant had to take turns to sleep. The hygienic and sanitary conditions in the cell were inadequate; the cell was full of lice and bugs ; a shower was provided only once a week. Also the food and water served to the applicant in prison were of poor quality .

22. On 6 June 2007 the Court decided, acting under Rule 39 of the Rules of Court, to indicate to the Government of Georgia that the applicant should be placed in a medical establishment capable of providing adequate medical treatment for his spinal problems.

23. In August 2007 the applicant was examined by two neurosurgeons, who diagnosed him with intervertebral disc herniation in the remission stage. They concluded that surgery was not urgent and was dependent on the applicant ’ s wishes. However, if surgery was not performed, the applicant was to be offered anti-inflammatory drug-based treatment and vitamin therapy.

COMPLAINTS

24. In their original application form lodged with the Court on 7 July 2006 the first applicant alleged, under Article 3 of the Convention, that the prison authorities had been withholding adequate medical treatment from him. Both applicants further complained, under Article 5 § 1 of the Convention, that their initial detention for about four to five hours was unlawful and that the criminal case file against them did not contain credible evidence that they had committed the offence in question. Relying in substance on Article 5 § 3 of the Convention, the applicants further complained about the reasoning of their detention orders, contending that their detention had been imposed without any specific or sufficient grounds. In connection with the first detention hearing the applicants also complained that the insufficient time that was given to them for the preparation had prevented them from defending their rights in an appropriate manner, giving rise to a violation of their rights under Article 6 § 3 (b) of the Convention. The first applicant further alleged a violation of Article 8 of the Convention on account of the pressure exerted by the prosecuting authorities on his sister.

25. In an additional application form received by the Court on 8 November 2007 the applicants raised numerous fresh grievances under the Convention. Notably, relying on Article 3 of the Convention, the first applicant complained that the conditions of his detention in Rustavi no. 1 Prison were poor, whilst the second applicant complained of inhuman and degrading conditions in which the hearing of 3 August 2006 was held. Under Article 5 § 2 of the Convention, the applicants claimed that they had not been informed promptly of the reasons for their arrest. Relying on Article 6 §§ 1 and 3 of the Convention, the applicants further complained that the criminal proceedings against them had been unfair. They particularly objected to the way the hearings of 3 and 9 August 2006 had been conducted, complaining, inter alia, about the first applicant ’ s expulsion from the courtroom and his inability as a consequence to give a final statement, and about the breach of the principle of secrecy of deliberations by the first-instance court. As a supplementary observation to the complaints about the unfairness of the proceedings, the applicants also contested the Supreme Court ’ s rejection of the appeal on points of law without an examination on the merits.

26. In the context of Article 6 § 1 of the Convention the applicants also disagreed with the domestic courts ’ assessment of the evidence and with the legal qualification of their acts under the relevant national law. Further, referring to the news programme broadcast by the private television channel Rustavi 2 on the day of their arrest, the applicants complained that the authorities and the media had breached Article 6 § 2 of the Convention by publicly accusing them at an early stage of the investigation. Relying on Article 6 § 3 (b) and (d) of the Convention the applicants complained about limited access to the case file and about the refusal of the domestic courts to question several additional witnesses on their behalf. Lastly, the applicants also cited Article 7 § 1 of the Convention, arguing that their actions did not qualify as a criminal offence under Article 130 § 2 of the Criminal Code.

THE LAW

A. The communicated complaints under Article 3, Article 5 §§ 3 and 4, Article 6 §§ 1 and 3 (c), and Article 34 of the Convention

27. On 10 April 2012 the Court communicated to the Government the applicants ’ complaints under Article 3 (with respect to the first applicant), Article 5 §§ 3 and 4, Article 6 §§ 1 and 3 (c) and Article 34 of the Convention.

28. After the failure of attempts to reach a friendly settlement, by a letter of 20 November 2012 the 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 application, while they considered the remainder of the application inadmissible. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

29. By a letter of 15 January 2013, the applicants indicated that they were not satisfied with the terms of the Government ’ s proposal. They complained about the amount offered by the Government, contending that it was inadequate having regard to the damage sustained. The applicants further claimed that the scope of the Government ’ s admissions was narrower than the Convention breaches alleged by the applicants.

30. On 29 August 2014 the Government, having regard to the applicants ’ comments, made a revised unilateral declaration, which provided as follows:

“The Government – by the way of a unilateral declaration – wish to express their regretful acknowledgement of the following deficiencies pertinent to the applicants ’ case:

- For the particular circumstances of the instant case a violation of Article 3 of the Convention due to the existence of the inadequate medical treatment of the first applicant in prison and the material conditions of his detention in Rustavi no. 1 Prison;

- A violation of Article 5 § 3 of the Convention on account of the lack of cogent reasoning in the relevant detention orders justifying the applicants ’ deprivation of liberty;

- A violation of Article 5 § 4 of the Convention manifested in breach of the principle of “adversarial proceedings” and “equality of arms” at the hearing of 26 December 2005;

- A violation of Article 6 §§ 1 and 3 (c) of the Convention in view of the inability of the first applicant to make his final pleadings during the concluding first-instance hearing of 9 August 2006, the failure on the part of the authorities to examine the applicants ’ claims concerning the alleged breach of the principle of secrecy of deliberations and certain deficiencies in the Supreme Court ’ s reasoning in its inadmissibility decision of 23 July 2007.

Stemming from the above-mentioned, the Government are prepared to pay Mr. Oboladze 4,500 Euros and Ms. Lobzhanidze – 4,000 Euros to cover all pecuniary and non-pecuniary damage as well as costs and expenses.

This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken 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 equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment shall constitute a final resolution of the case.

The Government therefore invite the Court to strike the present case out of the list of cases. They suggest that the present declaration might be accepted be the Court as “any other reason” justifying the striking out of the case of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”

31. By a letter of 30 November 2014 the applicants informed the Court that they refused to accept the Government ’ s declaration. They reiterated that the award offered by the Government was wholly inadequate to provide just satisfaction for their complaints.

32. 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 o ne 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 . ”

33. 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 examine d 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 Sulwińska v. Poland (dec.) no. 28953/03 , 18 September 2007 ).

34. In examining the Government ’ s declaration the Court notes at the outset that the Government have explicitly acknowledged a violation of the applicants ’ various rights under Article 3 (with respect to the first applicant), Article 5 §§ 3 and 4, and 6 §§ 1 and 3 (c) of the Convention. In this regard, it reiterates that there already exists a well-established case ‑ law, including against Georgia, on the issue of the 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 ) as well as case-law concerning poor conditions of detention (see Aliev v. Georgia , no. 522/04 , §§ 71 ‑ 84, 13 January 2009; Gorgiladz e v. Georgia , no. 4313/04, §§ 41 ‑ 51, 20 October 2009; and Ramishvili and Kokhreidze v. Georgia , no. 1704/06, §§ 79-88 and 91 ‑ 93, 27 January 2009).

35. The Court has also clearly established its practice in respect of the complaints under Article 5 §§ 3 and 4 of the Convention concerning the lack of reasoning in the decisions ordering and extending pre-trial detention and the alleged unfairness of the detention hearings (see Saghinadze and Others v. Georgia , no. 18768/05, §§ 133-140, 27 May 2010, and Janiashvili v. Georgia , no. 35887/05, §§ 86-87, 27 November 2012, with further references therein; see also Nikolova v. Bulgaria [GC], no. 31195/96, § 58, ECHR 1999 ‑ II ) as well as o n the various aspects of fair trial guarantees relied upon by the applicants in their complaints under Article 6 §§ 1 and 3 (c) of the Convention (see, Pullar v. the United Kingdom , judgment of 10 June 1996, Reports 1996-III, p. 792, § 30 ; Remli v. France , 23 April 1996, § 48, Reports of Judgments and Decisions 1996 ‑ II; Huseyn and Others v. Azerbaijan , nos. 35485/05, 45553/05, 35680/05 and 36085/05, §§ 1 92 - 195 , 26 July 2011 ; and Hansen v. Norway , no. 15319/09 , § 71 ‑ 74 , 2 October 2014 ).

36. The Court notes that the Government did not address in their unilateral declaration the issue of the compliance with the interim measure indicated by the Court under Rule 39 of the Rules of Court and communicated to the Government under Article 34 of the Convention. However, it considers that the above issue is in essence subsumed under the first applicant ’ s complaint under Article 3 of the Convention, which violation was duly acknowledged by the Government in their unilateral declaration.

37. Therefore, h aving regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed – which is consistent with the amounts awarded in similar cases – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

38. Moreover, in light of the above considerations, and in particular given the clear and extensive 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 examinat ion of the application (Article 37 § 1 in fine ).

39. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention ( Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

B. The remainder of the application

40. The applicants made various other complains under Article 3 (the second applicant), Article 5 §§ 1 and 2, Article 6 §§ 1, 2 and 3 (b) and (d), Article 7 and Article 8 of the Convention (see paragraphs 24-26 above). Having regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by 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 ,

Takes note of the terms of the respondent Government ’ s declaration under Article 3 (the first applicant), Article 5 §§ 3 and 4, and Article 6 §§ 1 and 3 (c) of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention in so far as it relates to the above ‑ mentioned complaints .

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 16 April 2015 .

Fatoş Aracı Ledi Bianku Deputy Registrar President