FOURTH SECTION

DECISION

Application no . 43174/08 Nikoloz MTCHEDLISHVILI against Georgia

The European Court of Human Rights ( Fourth Section ), sitting on 23 September 2014 as a Committee composed of:

George Nicolaou , President, Nona Tsotsoria , Paul Mahoney , judges,

and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 29 August 2008 ,

Having regard to the declaration submitted by the respondent Government on 21 May 2014 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Nikoloz Mtchedlishvili , wa s a Georgian national, who was born in 1974 and died in 2011 (see paragraph 5 below) . He was successively represented before the Court by Mr M. Nozadze and Ms S. Abuladze , lawyer s practising in Tbilisi .

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

3. On 11 January 2007 the applicant was arrested in relation to attempted murder, robbery, illicit possessions of firearms and certain other offences, and, given his health condition, was placed in a prison hospital. On 26 June 2007 the applicant was convicted of those offences and sentenced to twenty five years’ imprisonment. The conviction was upheld on appeal on 2 May 2008.

4. At the time of the initiation of the criminal proceedings against the first applicant and his consequent detention, he had already been infected with pulmonary tuberculosis, viral hepatitis C and suffered from serious a neurological dysfunction causing his full paraplegia. According to the available medical documents, he started receiving the requisite medical care for his diseases on an in-patient basis, in the prison hospital. Subsequent to his arrest, the applicant was further diagnosed, on 13 October 2009, with acquired immune deficiency syndrome, the disease already being in B2 stage, and started receiving the relevant antiretroviral drugs.

5. On 7 June 201 1 the applicant ’ s representative (“the representative”) informed the Court that his client had died on 25 June 2010 in prison as a result of respiratory complications caused by tuberculosis. In reply, the Court enquired whether there was an heir or a close relative of the late applicant wishing to maintain the application in full or in part (cf. Leger v . France ( dec. ) [GC], no. 19324/02, §§ 43-51, 30 March 2009).

6. On 21 July 2011 the representative informed the Court that the applicant’s wife, Mrs Lia Mindiashvili , wished to pursue the application insofar as it concerned her husband’s complaint about the alleged absence of adequate medical care for his various serious diseases in prison. Nothing was said about the other complaints which had been initially introduced by the applicant. The representative further complained that no criminal or disciplinary probe had been opened to establish the exact cause of the applicant’s death.

7. Whilst the applicant party had initially withheld that information from the Court, the Government submitted on 24 March 2014 that in the course of the first half of 2013 the applicant’s wife had initiated civil proceedings against the prison authority on account of her husband’s poor medical treatment and resultant death in prison. On 25 June 2013 the Tbilisi City Court allowed her claim by ordering the authority to pay her 10,000 Georgian Laris (some 4,600 Euros) in non-pecuniary damages. As confirmed by a record of the relevant bank transaction, the payment was duly effectuated 12 July 2013.

COMPLAINT S

8. Relying on Articles 2 and 3 of the Convention, the applicant complained about the absence of adequate medical care in prison.

9. Citing Articles 6 and 8 of the Convention, the applicant also complained about the outcome of the criminal proceedings against him and claimed that his wife had not been able to visit him in prison. Articles 13 and 14 of the Convention were invoked by the applicant without any coherent explanation.

THE LAW

A. As regards the absence of adequate medical care and the applicant’s death in prison

10. On 23 October 2008 and 13 January 2010, respectively, the Court first communicated the applicant’s complaint about the absence of adequate medical care in prison and then requested the Government to submit additional legal arguments about the same complaint, under Articles 2 and 3 of the Convention.

11. After the failure of attempts , which had commenced in April 2013, to reach a friendly settlement of the case , by a letter of 21 May 2014 the Government informed the Court that they proposed to make a unilateral declaration with a view to re solving the issue raised by this part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention. The declaration provided as follows:

“ By way of a unilateral declaration the Government of Georgia acknowledge certain deficiencies in the course of the applicant’s medical treatment in prison within the scope of Article 3 of the Convention and a violation of Article 2 of the Convention due to the failure to account sufficiently, by conducting an independent and comprehensive probe, for the cause of the applicant’s death.

In the light and the legal and factual circumstances of the above-mentioned case, the Government undertake the responsibility to investigate the circumstances of the death of the applicant and, in addition to the sum of 10,000 Georgian Laris (approximately 4,600 Euros) awarded by the domestic court, are prepared to pay to Mrs Lia Mindiashvili 4,500 (four thousand five hundred) Euros to cover any pecuniary and non-pecuniary damages and costs and expenses.

This sum will be converted into the respondent State ’ s 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 [...] . 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 fulfilment of the above-mentioned conditions will constitute the final resolution of the case.”

12. By a letter of 11 June 2014 , the applicant ’s wife indicated that s he was not satisfied with the terms of the unilateral declaration on the ground that it did not provide for the respondent State’s obligation to investigate and establish the exact cause of her husband’s death in prison .

13. At the outset, t he Court notes that the applicant ’ s wife may claim to be a victim, within the meaning of Article 34 of the Convention, of the violations alleged by her husband under Articles 2 and 3 of the Convention (see, amongst others, Renolde v. France , no. 5608/05, § 69, 16 October 2008). Furthermore, given that the applicant’s serious health problems had apparently led to his death in prison, the Court considers that the present case mainly falls within the ambit of Article 2 of the Convention (compare, for instance, with Makharadze and Sikharulidze v. Georgia , no. 35254/07 , § 74 and 94 , 22 November 2011 ).

14. 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”.

15. 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 applicant wishes the examination of the case to be continued.

16. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( see Tahsin Acar v. Turkey (preliminary issue s ) [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).

17. The Court has established in a number of cases, including those brought against Georgia , its practice concerning complaints about the absence of adequate medical care for various life-threatening diseases in prison, with or without fatal results (see, for example, Sikharulidze and Makharadze , cited above, § § 75-93; Poghosyan v. Georgia , no. 9870/07, §§ 46-62 , 24 February 2009 ; Salakhov and Islyamova v. Ukraine, no. 28005/08 , §§ 164-194 , 14 March 2013 ). In this connection, it reiterates that the fundamental character of Article 2 of the Convention requires that there should be some form of an effective official probe in order for the cause of the death of a prisoner who had suffered from a serious disease in prison, as well as the possible lack of the requisite medical treatment, be elucidated (see, for instance, Makharadze and Sikharulidze v. Georgia , cited above , §§ 87 ‑ 89).

18. That being so, the Court, having examined the terms of the Government ’ s declaration, attaches significance to the Government ’ s express undertaking to conduct a probe into the cause of the applicant’s death in prison. Furthermore, the Court also considers that the amount of compensation that the Government propose to pay to the applicants jointly is adequate in the light of the particular circumstances of the present case.

19. In light of the above considerations, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). Moreover, 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).

20. 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 ( see Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

B. As regards the remainder of the application

21. As regards the remaining part of the application, notably the complaints under Articles 6, 8, 13 and 14 of the Convention, the Court notes that, unlike the complaint s about the alleged absence of adequate medical care and the resultant death in prison, the applicant’s wife did not even remotely express her intention to maintain the remaining complaints (compare with Leger , cited above, §§ 43-51 ).

22. In the light of the foregoing, and without prejudice to the question of the transferability of the relevant rights under the Convention from the late applicant to his wife, the Court considers that it is no longer justified to continue the examination of the remainder of the application in accordance with Article 37 § 1 (c) of the Convention . Furthermore, it is of the opinion that respect for human rights does not require it to continu e the examination of this part of the application either.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Article s 2 and 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.

FatoÅŸ Aracı George Nicolaou              Deputy Registrar President