FOURTH SECTION

DECISION

Application no . 31420/10 Jumber KAVTELADZE against Georgia

The European Court of Human Rights ( Fourth Section ), sitting on 24 June 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 11 May 2010 ,

Having regard to the declaration submitted by the respondent Government on 14 February 2014 requesting the Court to strike the application out of the list of cases,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1 . The applicant, Mr Jumber Kavteladze , is a Georgian national, who was born in 1989 and is currently in prison. He was represented before the Court by Ms Ts. Javakhishvili , 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 applicant and according to the case file, may be summarised as follows.

A. Criminal proceedings against the applicant

3. On 15 July 2008 the applicant was charged with causing serious bodily injury with aggravating circumstances, an offence under Article 117 § 7 (a) of the Criminal Code of Georgia. The charges concerned an incident of 12 July 2008, when during a knife fight he had allegedly injured two persons. The charges were based, inter alia, on the partial confession of the applicant, who on 13 July 2008 voluntarily surrendered himself to the police. Subsequently, the relevant investigator amended the criminal qualification of the applicant ’ s acts and charged him with attempted aggravated murder (Article 109 § 3 (a) of the Criminal Code).

4. On 25 February 2009 the Sachkhere District Court convicted the applicant as charged and sentenced him to sixteen years ’ imprisonment. On 20 March 2009 the applicant ’ s lawyer lodged an appeal with the Kutaisi Court of Appeal. He maintained in his appeal that the trial court had erred in the criminal qualification of the applicant ’ s acts, as the latter had been acting in self-defence. On 12 June 2009 the Kutaisi Court of Appeal, fully subscribing to the reasoning of the first-instance court, upheld the applicant ’ s conviction. The applicant ’ s appeal on points of law was rejected by the Supreme Court of Georgia on 30 November 2009.

5. By virtue of an Amnesty Act of 21 December 2012 the applicant ’ s sixteen-year prison sentence was reduced by half.

B. The applicant ’ s state of health and conditions of his detention

6. According to the case file, immediately after his arrest the applicant was placed in Kutaisi no. 2 Prison, in cells overcrowded to the point that he had less than the statutory minimum standard of 2.5 square metres of personal space. Moreover, the sanitary and hygienic conditions were inadequate. The applicant on several occasions requested that he be transferred to another prison facility. His requests were, however, rejected.

7. In December 2010 the applicant ’ s state of health started deteriorating and soon after he was diagnosed with first to second degree haemorrhoidal disease. In January 2011 he was further diagnosed as suffering from anxiety-depressive disorder and olfactory hallucinations. The available medical documents show that, subsequent ly , he was examined several times by psychiatrists and administered medication on an outpatient basis in prison. The applicant ’ s lawyer requested that the applicant undergo a comprehensive psychiatric examination, with a view to providing him with compulsory psychiatric treatment. The prison authorities, however, maintained that the applicant was receiving adequate care on an outpatient basis and did not require any further examination.

COMPLAINTS

8. The applicant complained under Article 3 of the Convention about the conditions of his detention in Kutaisi no. 2 Prison. Under Article 6 § 1 of the Convention he challenged the outcome of the criminal proceedings conducted against him. Notably, he complained about the qualification of his acts under the domestic criminal law and claimed that the domestic courts had wrongly assessed the evidence. Under Article 6 §§ 2 and 3 (b) and (d) of the Convention, he further denounced a violation of his right to the presumption of innocence, the alleged lack of sufficient time for the preparation of his defence and the inability to question the prosecuting witnesses at the pre-trial investigation stage r espectively. Relying on Article 8 of the Convention he also claimed that he had been prevented from communicating freely with his family; and l astly, under Article 6 § 1 and Article 13 of the Convention, he contended that the Supreme Court of Georgia had limited his right of “access to a court” by rejecting his appeal on points of law.

9. In an additional application form, lodged with the Court on 28 June 2011, the applicant also complained under Articles 3 and 13 of the Convention about the lack of adequate medical treatment in prison and lack of effective remedies in this regard.

THE LAW

A. As to the complaint under Article 3 of the Convention concerning allegedly inadequate conditions of detention in Rustavi no. 2 Prison

10. On 8 July 2011 the Court communicated to the Government the applicant ’ s complaints under Articles 3 and 13 of the Convention concerning the alleged lack of adequate medical treatment for his mental disorder in prison and poor conditions of detention in Kutaisi no. 2 Prison.

11. After the failure of attempts to reach a friendly settlement, by a letter of 14 February 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 further requested the Cour t to strike out the application in accordance with Article 37 of the Convention.

12. The declaration reads as follows:

“ The Government of Georgia acknowledge by way of a unilateral declaration that in the circumstances of the present case, the material conditions of the applicant ’ s detention in Kutaisi no. 2 Prison were not compatible w ith the requirements of Article 3 of the Convention.

Taking the above-mentioned facts into account, the Government are prepared to pay the applicant 3,000 (three thousand) Euros. This sum, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, will be converted into Georgian national currency at the rate applicable on the date of payment, and will be free from any taxes that may be applicable. It will be payable within three months from the date of notification of the decision 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 the 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 condition shall constitute the final resolution of this application.

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 of the Court ’ s list of cases, as referred to in Article 37 § 1 (c) of the Convention. ”

13. The applicant failed to submit any comments on the Government ’ s unilateral declaration, although invited to do so.

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 (see Taktakishvili v. Georgia ( dec.), no. 46055/06, 16 October 2012) . 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); WAZA Spółka z o.o. v. Poland (dec.) no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.) no. 28953/03).

16. Having regard to the terms of the Government ’ s unilateral declaration in the current case, the Court observes that their declaration contains a sufficiently clear acknowledgement of a breach of Article 3 of the Convention on account of inadequate conditions of detention in Kutaisi no. 2 Prison. In this regard, the Court notes that it has already established in a number of cases, including those brought against Georgia, its practice concerning complaints about poor conditions of detention ( 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).

17. H ence, h aving regard to the nature of the admission 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 this part of the application (Article 37 § 1(c)).

18. 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 ).

19 . The Court notes the modalities agreed by the respondent Government for the payment of the amount proposed (see paragraph 1 2 above).

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

21. Accordingly, the complaint covered by the Government ’ s unilateral declaration should be struck out of the list.

B. As to the other alleged violations of the Convention

22. The applicant complained under Articles 3 and 13 of the Convention of the alleged lack of adequate medical treatment in prison. The Government, on their part, submitted that the applicant had failed to exhaust effective domestic remedies in this regard.

23. The Court notes that the applicant ’ s allegations concerning lack of adequate medical treatment in prison concern the period after 1 October 2010 (see paragraph 7 above), that is after the new Prison Code of Georgia establishing a specific complaint procedure for the examination of health grievances in prison entered into force (see in this connection Goginashvili v. Georgia , no. 47729/08, §§ 55-56, 4 October 2011 ) . This new complaint procedure was accepted by the Court as an effective domestic remedy which an applicant would be required to exhaust (see Goginashvili, cited above , paragraphs 58 and 61). According to the case file, the applicant has never attempted to resort to the above-mentioned complaint procedure. It follows that his complaints under Articles 3 and 13 of the Convention concerning the alleged lack of adequate medical treatment in prison should be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

24. The applicant further complained under Article 6 §§ 1, 2 and 3 (b) and (d) of the Convention about the outcome of the criminal proceedings conducted against him, alleging in this connection a violation of his right to the presumption of innocence, lack of sufficient time for the preparation of his defence and inability to question prosecution witnesses at the pre-trial stage. He also contended under Article 6 § 1 and Article 13 of the Convention that the Supreme Court of Georgia had limited his right of “access to a court” and under Article 8 of the Convention – complained about the lack of communication with the family in prison. 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 of the Convention and of the modalities for ensuring compliance with the u ndertakings 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 complaint .

Declares the remainder of the application inadmissible.

FatoÅŸ Aracı George Nicolaou              Deputy Registrar President