FOURTH SECTION

DECISION

Application no . 40207/05 Shalva and Vladimer DOLIDZE 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 ,

Nona Tsotsoria , the judge elected in respect of Georgia , withdrew from sitting in the Committee (Rule 28). The Government accordingly appointed Paul Mahoney to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29).

Having regard to the above application lodged on 3 November 2005 ,

Having regard to the declaration submitted by the respondent Government on 13 May 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 Shalva Dolidze (“the first applicant”) and Mr Vladimer Dolidze (“the second applicant”) , are Georgian nationals, who were born in 1954 and 1983 respectively. They were represented before the Court by Mr Z. Khatiashvili and Ms M. Kobakhidze , lawyers practising in Tbilisi .

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

3. On 5 February 2007 the application was communicated to the Government.

A. The circumstances of the case

1. The applicants ’ arrest and pre-trial detention

4. The applicants are father and son. On 22 August 2005 a pistol magazine and three submachine and shotgun magazines with cartridges were seized in the applicants ’ holiday home. On the same day at 8.30 p.m. both applicants were arrested. According to the report of his arrest, the first applicant refused, without giving reasons, to sign it or accept a copy of it. The second applicant protested his innocence and also refused to sign the arrest report.

5. During the arrest, the first applicant had a mild heart attack and an ambulance had to be called. The doctor noted acute arterial hypertension, severe headaches and breathing difficulties. The first applicant was transferred to the police station and examined by a cardiologist. In the relevant report, co-signed by the investigator, the cardiologist pointed out that his patient was an insulin-dependent diabetic, had had coronary bypass surgery in 1998 and suffered from high blood pressure. He concluded that it would not be advisable to keep him in “conditions which are extremely testing emotionally”. Subsequently, an ambulance had to be called twice again. According to the medical report of the last visit, it was “decided to admit the patient to hospital”, the doctors having warned that, if not, there was a real risk that his condition would worsen. The file does not, however, state that the first applicant was hospitalised at that point. According to the first applicant, for a number of hours following his arrest he was not able to take any insulin. According to his lawyer, the first applicant, who was subsequently detained in solitary confinement in the regional branch of the Ministry of the Interior, did not receive the appropriate medical treatment.

6. On 23 August 2005 two investigators inspected the courtyard of the applicants ’ holiday home and found additionally seven spent cartridges. These were filed as evidence.

7. On 24 August 2005 the applicants were charged with unlawful purchase, handling and transportation of weapons and breach of public order. On the same date the prosecution applied to the Kutaisi City Court to have the applicants placed in pre-trial detention, on the grounds that they had committed serious crimes. In addition, it was stated that “ given that they did not admit their guilt, the applicants did not act in good faith during the investigation. This led to the concern that, in the event of their release, they would abscond and impede the discovery of the truth.” The two applications contained identical wording, regarding the facts as well as the reasons put forward to justify the pre-trial detention of each of the applicants.

8. In its decisions of 25 August 2005 the Kutaisi City Court reiterated the terms of the prosecution ’ s requests almost word for word and, noting “that the applicants were accused of having committed serious crimes” and that there was “good reason to suspect that, in the event of their release, they might abscond in order to evade justice and thus impede the discovery of the truth”, it decided to place the applicants in pre-trial detention for three months. The wording of the two decisions to detain the applicants was exactly identical.

9. The applicants lodged appeals with the Kutaisi Regional Court, which were dismissed by final decisions dated 19 September 2005.

10. On 5 October 2005 the investigation was concluded and on 5 December 2005 the case was referred to the Kutaisi City Court for trial.

11. For the preliminary hearing before that court, the applicants lodged an appeal against their pre-trial detention, in view of the new factual circumstances in their case. They emphasised in particular that they lawfully possessed seventeen weapons and that the spent cartridges found in the courtyard of their house did not match any bullets that could have been fired from their weapons. They also pointed that three of the four police officers, key prosecution witnesses in the criminal case against them, had retracted their incriminating statements. The court ’ s attention was further drawn to the applicants ’ poor health: the first applicant was an insulin-dependent diabetic and had serious heart problems and the second applicant suffered from a benign tumour in the liver, a hernia and oesophageal reflux. Drawing attention to the fact that the applicants had families, that the second applicant had young children and that they had permanent homes in Georgia, the lawyer requested that they be released on bail. At the hearing of 12 April 2006, the Kutaisi City Court dismissed the application for the applicants ’ release.

12. The applicants were convicted as charged by the Kutaisi City Court on 4 August 2006.

2. The applicants ’ state of health

13. According to the case file, both applicants had a well-documented history of various serious medical conditions. The first applicant was suffering from myocardial ischemia, stage 3 hypertension and class II angina and had had a coronary bypass in 1998. As a result of these illnesses, he was being treated with eight types of medication, including insulin on a regular basis and required constant medical monitoring in a medical establishment. The second applicant had a liver haemangioma (a benign tumour that could evolve into a malignant tumour in the event of growth or complications) and a hernia in his oesophagus .

14. The applicants systematically complained about inadequate medical treatment provided to them in prison. The first applicant predominantly stayed in the prison hospital, except for several short periods when he was transferred to a general hospital. His condition was deteriorated nevertheless. According to medical evidence from January and February 2006, the first applicant regularly suffered heart attacks. On 11 July 2006 he suffered another episode of acute hypertension. He also developed “Insulin resistance” and, consequently, required constant supervision of an endocrinologist.

15. As regards the second applicant, in February 2006 he was transferred to a urology clinic, where he was diagnosed with inflammation of the left kidney. After treatment, a kidney stone had passed spontaneously. In June 2006, however, severe pain had led to the discovery of stones in the right kidney. According to a medical certificate dated 3 August 2006 signed by the surgeon of the prison hospital, the second applicant had serious health problems at that point. In his opinion, the chronic illnesses that the second applicant was suffering from required constant medical supervision and appropriate treatment.

COMPLAINTS

16. The applicants complained that the circumstances of their arrest and subsequent detention in the absence of adequate medical treatment led to a violation of Article 3 of the Convention. Under Article 5 §§ 1, 2 and 3 of the Convention they claimed that their arrest had been unlawful; that the reasons of their arrest had not been explained to them, and that the court decisions ordering and extending their pre-trial detention had been unsubstantiated. The applicants also claimed a violation of Article 6 of the Convention, Article 13, Article 14 of the Convention in conjunction with Article 5, Article 1 of Protocol no. 1 and Article 1 of Protocol no. 12.

THE LAW

A. The communicated complaints under Articles 3, 5 §§ 1, 2 and 3 of the Convention

17. After unsuccessful friendly-settlement negotiations , by a letter of 13 May 2014 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 also requested the Court to strike out the application in accordance with Article 37 of the Convention.

18. Their declaration provided as follows:

“The Government wish to express by way of a Unilateral Declaration their regretful acknowledgement of a violation of Article 3 of the Convention due to certain deficiencies identified in the course of medical treatment dispensed to Mr Shalva Dolidze and Mr Vladimer Dolidze and a violation of Article 5 § 3 of the Convention, on account of lack of sufficient reasoning in the decisions of detention as a measure of constraint applied against the applicants.

That being so, the Government undertake to pay each applicant 6,000 (six thousand) euros to cover any pecuniary or 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 by the Court as “any other reason” justifying the striking out of the case from the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention.”

19. By a letter of 7 January 2015 the applicants informed the Court that they were ready to accept the Government ’ s declaration but on condition that the latter would admit a violation of Article 6 of the Convention and commit to the reopening of the criminal proceedings against the applicants.

20. 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 one 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 . ”.

21. It also recalls that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicants wish the examination of the case to be continued.

22. To this end, the Court examined 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 Spół ka z o.o . v. Poland ( dec. ), no. 11602/02, 26 June 2007; and Sulwiń ska v. Poland ( dec. ), no. 28953/03).

23. In examining the Government ’ s declaration, the Court notes at the outset that the Government have explicitly acknowledged a violation of the applicants ’ rights under Articles 3 and 5 § 3 of the Convention. In this regard, it notes that there already exists a well-established case-law, including against Georgia, concerning lack of adequate medical treatment in prisons ( see, for instance, Goginashvili v. Georgia , no. 47729/08, §§ 57-61, 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). The Court has also established its practice in respect of the complaints under Article 5 § 3 of the Convention concerning the lack of reasoning in the decisions ordering and extending pre-trial detention ( 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 ) .

24. The Court notes that the applicants made a number of complaints which were not addressed by the Government in their unilateral declaration. However, it considers that the applicants ’ complaint under Article 5 § 1 of the Convention is in essence a re-statement of their complaint under Article 5 § 3 of the Convention. As to the complaint under Article 5 § 2, it is manifestly ill-founded.

25. Therefore, in light of the nature of the admissions contained in the Government ’ s declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c)).

26. 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 examination of the application (Article 37 § 1 in fine ).

27. 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

28. The applicants complained under Article 5 § 3 of the Convention in conjunction with Article 14 and also Article 1 of Protocol No. 12 that the criminal procedural law concerning pre-trial detention had been wrongfully applied with respect to them in a discriminatory manner. They further denounced under Article 6 of the Convention the unfairness of the criminal proceedings and also complained under Article 13 of the Convention and Article 1 of Protocol No. 1.

29 . As regards Article 6 complaint, the Court notes that in 2008 the applicants lodged a separate application form challenging under Article 6 §§ 1 and 3 of the Convention the outcome of the criminal proceedings conducted against them and claiming their innocence. The above case, which was registered under no. 18700/08 , was declared inadmissible by the Court, sitting in a single-judge formation on 26 September 2013. The Court therefore considers that the present complaint under Article 6 of the Convention is substantially the same as the one already examined by the Court and must be declared inadmissible under Article 35 §§ 2 (b) and 4 of the Convention.

30. As to the remainder of the application, t he Court, in the light of all the material in its possession and in so far as the matters complained of are within its competence, finds that it 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 (a) and 4 of the Convention.

For these reasons, the Court , unanimously ,

Takes note of the terms of the respondent Government ’ s declaration under Article s 3 and 5 § 3 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 they relate 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