FOURTH SECTION

DECISION

Application no . 46780/07 Dimitri KASRADZE and Tornike KASRADZE against Georgia

The European Court of Human Rights ( Fourth Section ), sitting on 4 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 15 October 2007 ,

Having regard to the declaration submitted by the respondent Government on 4 April 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 Dimitri Kasradze and Mr Tornike Kasradze, are Georgian nationals, who were born in 1930 and 1964 respectively. They were represented before the Court by Mr N. Kvaratskhelia, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice.

2. The facts of the case, as submitted by the applicants and according to the case-file, may be summarized as follows.

A. The circumstances of the case

3. The applicants are father and son, co-founders of a company. On 1 August 2007 they were arrested and placed under investigation for forgery and making use of forged instruments (Article 201 § 2 (a) of the Criminal Code). The investigator in the case made an application to the Tbilisi City Court to have the applicants placed in pre-trial detention. In support of his request he argued that the applicants were accused of a serious crime and that there was good reason to suspect that, if released, they would abscond for fear of receiving heavy sentences and would continue their criminal activities, destroy evidence and thus impede the discovery of the truth in the case.

4. In reply, the applicants asked to be released on bail and complained that the investigator had merely quoted the wording of Article 151 of the Code of Criminal Procedure (“the CCP”) in his application, without actually referring to any factual circumstances or behaviour on the part of the applicants which would suggest that they might impede the investigation if released. Their lawyer further pointed out that the first applicant was 77 years old and that the second applicant had a category 2 disability.

5. On 3 August 2007 the Tbilisi City Court held that the investigator ’ s request was well-founded. It noted in particular that the applicants were accused of a serious crime and that, given their activities, their explanations and the circumstances of the case, the investigator ’ s suspicion that they might abscond, influence witnesses, destroy evidence and thus impede the discovery of the truth was well-founded. The court therefore ordered the applicants ’ pre-trial detention for two months in Tbilisi Prison no. 5.

6. On 4 August 2007 the applicants lodged an appeal with the Tbilisi Court of Appeal. They argued that pre-trial detention could not be ordered in respect of a person aged 65 or over, and that the first-instance court had not referred to any evidence to suggest that there might be a risk of their absconding, interfering with the investigation, and so on. The applicants produced medical certificates which confirmed that they had serious health problems, and argued that detention could put their lives in danger.

7. On 10 August 2007 the applicants lodged an additional appeal. They complained that the cells in which they were being detained in Tbilisi Prison no. 5 contained three times more inmates than beds, and that they had to remain standing while they waited for a free bed to lie down on. There was no air in the cells and they could not breathe. The complaint that they had lodged in that regard with the prison governor on 6 August 2007 had gone unanswered. Consequently, reiterating their serious health problems, the applicants claimed that their lives were in danger.

8. On 10 August 2007 the Tbilisi Court of Appeal held that the applicants ’ appeal was inadmissible under Article 243 § 1(2) of the CCP on the ground that no new questions had been raised and that the arguments made by the applicants had already been examined in detail at first instance.

9. In the meantime, on 6 August 2007, the applicants ’ lawyer lodged a request with the governor of Tbilisi Prison no. 5 to have them placed under the supervision of doctors in the prison ’ s medical unit. He produced a medical certificate stating that the first applicant had myocardial ischaemia , angina and stage 2 cardio-cerebral-vascular hypertension. According to another medical certificate, the second applicant was suffering from the persistent effects of a past head injury, trauma-induced encephalopathy and dysfunction in the lower limbs with reduced mobility. In 2007 he had been given the status of a category 2 disabled person for life because of the above-mentioned health problems. The prison governor did not reply.

10. On 20 August 2007, relying on Article 140 § 17 of the CCP, the applicants applied to the Tbilisi City Court claiming that they were being detained in inhuman conditions. The applicants pointed out that this was a new circumstance which had been unknown to the court on 3 August 2007 and therefore justified re-examining whether to keep them in detention.

11. On 20 August 2007, without the parties present, the Tbilisi City Court declared the appeal inadmissible on the grounds that the applicants had not adduced any evidence of the poor prison conditions and that the other arguments had been heard and examined by the court on 3 August 2007 when the applicants had been placed in pre-trial detention.

12. On 21 August 2007 the applicants lodged an appeal, complaining that the Tbilisi City Court had evaded the issues of the state of the applicants ’ health and the poor conditions of their detention, to the detriment of their right to life.

13. On 24 August 2007 the Tbilisi Court of Appeal dismissed the appeal on the ground that the court was not required to examine the issue of the conditions of the applicants ’ detention, but rather the issue of their detention during the preliminary investigation.

14. The preliminary investigation was closed on 5 September 2007. On 11 September 2007 the first instance court decided to keep them in detention for two months. The decision, against which no appeal lay, consisted of a printed document template in which the grounds for refusal had already been typed and the judge had filled in the blanks, inserting the names of the applicants, the date, the Article of the Criminal Code, the word “serious” and the length of the detention. The grounds were that the applicants had to be kept in detention as they had committed a serious crime.

15. On 17 September 2007, t he lawyer applied to the head of the Prisons Department of the Ministry of Justice, requesting that his clients be placed in humane conditions. Among other things, he argued that neither the first applicant, an elderly man, nor the second applicant had a bed, as the number of inmates was three times more than their respective cells could hold. The applicants were ill and had to stay standing while waiting for a bed to be free to lie down on. There was not enough air in the cells to be able to breathe. The head of the Prisons Department did not reply.

COMPLAINTS

16. The applicants complained under Article 3 and Article 13 of the Convention about the conditions of their detention in Tbilisi no. 5 Prison and lack of effective remedies in this regard . Relying on Article 5 § 1 (c) of the Convention the first applicant further claimed that his detention, in view of his age, was unlawful while both applicants complained under Article 5 §§ 3 and 4 of the Convention that the decisions ordering and extending their pre-trial detention had been lacking sufficient reasoning and that they had not been able to obtain effective judicial review of the lawfulness of their pre-trial detention.

THE LAW

A. The communicated complaints under Articles 3, 5 §§ 3 and 4 and 13 of the Convention

17. On 5 December 2007 the Court gave notice to the Government of the applicants ’ complaints under Articles 3, 5 §§ 3 and 4 and 13 of the Convention.

18. By a letter of 17 February 2014 the Government provided the Court with unilateral declaration with a view to resolving the issues raised by the application and requested the Court to strike out the application in accordance with Article 37 of the Convention. The applicants objected to the declaration, noting in particular that it did not offer adequate compensation. On 4 April 2014 the Government withdrew their declaration of 17 February 2014 and made a revised unilateral declaration offering increased compensation amounts. Their declaration provided as follows:

“ The Government of Georgia acknowledge that there was a violation of Article 3 and Article 13 of the European Convention on Human Rights with respect to both applicants ’ detention conditions in Tbilisi no. 5 Prison, where they were accommodated for three months and five days.

The Government accepts that, in the particular circumstances of the present case, there was a violation of § 3 and § 4 of Article 5 of the European Convention. They do so on account of the lack of sufficient reasoning in the decisions on application of detention with respect to the applicants and deficiencies identified in the course of consideration of the applicants ’ complaint to replace the detention as a measure of constraint.

In light of the particular facts of the applicants ’ case, the Government declare that it is prepared to pay to each applicant 3,500 (three thousand and five hundred) euros to cover any pecuniary or non-pecuniary damages and 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 of the case out of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention. ”

19. By a letter of 9 June 2014 , the applicants requested that the Court reject the Government ’ s proposal on the basis that the unilateral declaration was insufficient in terms of the level of compensation proposed, which they found inadequate having regard to the damage sustained.

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 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”.

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 examinat ion of the case to be continued (see, as a recent authority among many others, Beridze v. Georgia (dec.), no. 16206/06, 30 April 2013; Tabagari v. Georgia (dec.), nos. 70820/10 and 60870/11, 18 June 2013; and Mazanashvili v. Georgia (dec.), no. 19882/07, 28 January 2014). 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 ( Tahsin Acar v. Turkey , [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI); see also 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 ).

22. Turning to the Government ’ s unilateral declaration in the current case, the Court observes at the outset that the Government have explicitly acknowledged a violation of Articles 3, 5 §§ 3 and 4 and 13 of the Convention with respect to the applicants. In this connection, it reiterates that there already exists a well-established case-law, including against Georgia, on the issue of poor conditions of detention and lack of effective remedies in this regard (see Aliev v. Georgia , no. 522/04, §§ 71-84, 13 January 2009; Gorguiladzé 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). The Court has also established its practice in respect of 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 unfairness of the judicial review of the lawfulness of pre-trial detention ( see Saghinadze and Others v. Georgia , no. 18768/05 , §§ 133-154 , 27 May 2010 , and Janiashvili v. Georgia , no. 35887/05 , §§ 86-87, 27 November 2012, with further references therein ) .

23. Thus, having regard to the nature of the admissions contained in the Government ’ s unilateral declaration, as well as the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the current application (Article 37 § 1(c)). Moreover, in the light of the above considerations, and in particular given the clear 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 ).

24. The Court notes the modalities agreed by the respondent Government for the payment of the amount proposed (see paragraph 18 above).

25. 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

26 . The first applicant complained under Article 5 § 1 (c) of the Convention that his detention, in view of his age, had been unlawful. The 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, 5 §§ 3 and 4 and 13 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 .

FatoÅŸ Aracı George Nicolaou              Deputy Registrar President