FOURTH SECTION

DECISION

Application no . 30968/08 Evgeni BARATASHVILI and Zaal BARATASHVILI against Georgia

The European Court of Human Rights ( Fourth Section ), sitting on 4 March 2014 as a Committee composed of:

Päivi Hirvelä , President, Nona Tsotsoria , Faris Vehabović , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 11 June 2008 ,

Having regard to the declaration submitted by the respondent Government on 23 May 2013 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

The applicant brothers, Mr Evgueni Baratashvili (“the first applicant”) and Mr Zaal Baratashvili (“the second applicant”), are Georgian nationals who were born in 1980 and 1976 respectively and live in the village of Jimistaro , Georgia. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze , of the Ministry of Justice .

On 26 March 2007 the Tskaltubo District Court convicted the applicant brothers of repeated robbery and other less serious offences. In a judgment of 24 July 2007, the Kutaisi Court of Appeal introduced certain mitigating amendments to the conviction. The applicants and their lawyers were able to question the witnesses and otherwise challenge the evidence against them during the trial at both instances. The courts confirmed the applicants ’ conviction by reference to the incriminating statements of the victims of the robberies as well as the results of fingerprint and other crime detection examinations.

On 28 December 2007 the Supreme Court of Georgia upheld the conviction but adjusted the applicants ’ sentence, pursuant to an amnesty law. The first and second applicants were thus sentenced to, respectively, ten and a half and eight and a half years in prison. Those terms started to run from the date of their arrest on 6 August 2006.

On 11 August 2010 the first applicant, who was suffering from pulmonary tuberculosis in prison, was granted early release on account of his serious health condition. According to the available medical file, throughout all the period of his detention he had been provided, on a regular basis, with both in- and outpatient treatment for his medical condition. However, he considered that that treatment had been inadequate as his condition had only deteriorated in prison.

As to the second applicant, according to the case file, he currently serves his prison sentence.

COMPLAINTS

Relying on Article 3 of the Convention, the first applicant claimed that he had been beaten by the police upon his arrest. Under the same provision, he complained about the lack of adequate medical care for his tuberculosis in prison. Both applicants also complained that their pre-trial detention had been contrary to the requirements of Article 5 §§ 1 (c), 2 and 3 of the Convention. Lastly, in their submissions under Article 6 § 1 of the Convention, the applicants challenged the domestic courts ’ findings of fact.

THE LAW

A. As regards the first applicant ’ s complaint about the lack of medical care in prison

On 25 February 2010 the Court communicated the first applicant ’ s complaint about the alleged lack of medical care in prison to the Government.

After the failure of attempts to reach a friendly settlement, by a letter of 23 May 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving 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:

“The Government of Georgia note that the efforts with a view to securing a friendly settlement of the present case have unfortunately been unsuccessful.

That being so, the Government hereby wish to express – by way of unilateral declaration – their regretful acknowledgment of a violation of Article 3 of the Convention on account of inadequacy of the medical treatment provided to the first applicant, Mr Evgueni Baratashvili .

The Government are prepared to pay to Mr Evg u eni Baratashvili 4,500 Euros, which is to cover any pecuniary and non-pecuniary damage as well as costs and expenses, p l us any taxes that may be applicable to the applicant. This sum will be converted into the Georgian national currency at the rate applicable on the date of payment, and 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 expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default periods plus three percentage points.

The payment shall constitute the final resolution of the present case. ”

By a letter of 18 June 2013, the first applicant indicated that he was not satisfied with the terms of the unilateral declaration on the ground that he did not consider it to be adequate compensation for the harm done to his health in prison.

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” .

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

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).

The Court has established in a number of cases, including those brought against Georgia, its practice concerning the lack of adequate medical care in prison (see, for instance, Jeladze v. Georgia , no. 1871/08, §§ 50 and 57, 18 December 2012; Irakli Mindadze v. Georgia , no. 17012/09, §§ 48 and 53, 11 December 2012; and Jashi v. Georgia , no. 10799/06, § 70 and 74, 8 January 2013) .

Having 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)).

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 ).

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. As regards the remainder of the application

Relying on Article 3 of the Convention, the first applicant also complained about ill-treatment by the police officers upon his arrest. However, since the applicant never voiced, according to the case file, that complaint before any of the relevant domestic authorities (contrast with, for instance, Galuashvili v. Georgia , no. 40008/04, § 46, 17 July 2008), it is consequently inadmissible for non-exhaustion of domestic remedies and must be rejected under Article 35 §§ 1 and 4 of the Convention.

As to the both applicants ’ complaints under various provisions of Article 5 of the Convention concerning their pre-trial detention, they were lodged with the Court on 11 June 2008, whilst the impugned detention had ended upon the applicants ’ conviction at first instance on 26 March 2007 (see Davtyan v. Georgia (dec.), no. 73241/07, 6 September 2005). It follows that this part of the application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

Lastly, as regards the applicants ’ complaint under Article 6 § 1 of the Convention, the Court reiterates that the domestic courts are best placed for assessing the relevance of evidence to the issues in the case and for interpreting and applying rules of substantive and procedural law (see, amongst many authorities, Patsuria v. Georgia , no. 30779/04, § 86, 6 November 2007 ). All of the applicants ’ arguments concerning the accuracy of the assessment of the evidence were voiced by their lawyer before the domestic courts without any impediment, and the courts then examined those arguments and gave answers; their reasoning does not disclose any manifest arbitrariness (contrast with Melich and Beck v. the Czech Republic , no. 35450/04, §§ 52 and 53, 24 July 2008) . 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 concerning the first applicant ’ s complaint about the lack of medical care in prison and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike a part of the application , in so far as it concerns the first applicant ’ s complaint under Article 3 of the Convention concerning the lack of medical care in prison, out of its list of cases in accordance with Article 37 § 1 (c) of the Convention ;

Declares the remainder of the application inadmissible.

Fatoş Aracı Päivi Hirvelä Deputy Registrar President