Communicated on 12 March 2015

FOURTH SECTION

Application no. 65128/10 Vazha GEGENAVA and others against Georgia lodged on 27 October 2010

STATEMENT OF FACTS

1. The applicants are all Georgia nationals (see the appendix). Their application is based on various incidents of alleged assault and ill-treatment to which all were subjected on various dates in prison in the period between September 2006 and October 2011. The first and third applicants were released from prison by virtue of an Amnesty Act in February and January 2013 respectively. The second applicant was released upon termination of his prison sentence in February 2012.

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

A. The various alleged incidents of the applicants ’ ill-treatment

1. The applicants ’ placement in a punishment cell in September 2006, subsequent incidents of their ill-treatment, threats and intimidation and related criminal proceedings (investigative file no. 74068404)

3. At the material time, all three applicants were serving their respective prison sentences in Rustavi no. 6 Prison. On various dates in early September 2006 all three applicants were placed in punishment cells of the prison. Hence, the first and second applicants, having complained about poor conditions of detention, were allegedly first beaten by prison officers and then put in punishment cells naked. After several hours they were given back their underwear, in which they then spent about ten days in extremely poor conditions. The first applicant alle ged that as a result of his ill ‑ treatment his nose and three teeth had been broken. He had also apparently suffered a head injury, as he had been vomiting frequently. The first and third applicants in addition alleged that while there, they had been regularly taken out of the cells by various prison officers and beaten. The second applicant was incarcerated for a shorter period of time and was also stripped of his clothes.

4. On 13 and 15 September 2006 representatives of the Public Defender ’ s Office (“PDO”) were inspecting Rustavi no. 6 Prison when they reported about the applicants and other prisoners being kept in inhuman and degrading conditions in the punishment cells. The Public Defender of Georgia forwarded the information obtained, including the statements of the applicants, to the General Prosecutor ’ s Office of Georgia (“the GPO”) with a view to criminal investigation being initiated.

5. On 27 October 2006 the GPO initiated criminal proceedings under Article 333 § 1 of the Criminal Code of Georgia (abuse of power). Subsequently, the applicants alleged in connection with the above proceedings that they had been systematically pressurised by various prison officials, including head of the prisons department (an authority in charge of prisons at the material time) to withdraw their complaints.

6. In September 2007 a new complaint by the second applicant concerning another incident of his alleged ill-treatment by prison officers – this time in Rustavi no. 2 Prison – was added to the investigative file no. 74068404.

7. On 24 April 2008 the PDO contacted the GPO asking for updated information about the investigation. By a letter of 10 May 2008 the PDO was informed that the investigative department of the GPO was in charge of the relevant proceedings, that several witnesses had been questioned and that the investigation was progressing.

8. On 23 December 2008 the Public Defender sent another letter inquiring with the relevant prosecution authorities about the progress of the case. In reply, he was told that the investigation was continuing although the alleged perpetrators had not been identified yet.

9. On 11 August 2009 the PDO sent yet another request for information. In reply, they received a standard letter that the investigation was ongoing.

10. On 10 December 2009 the applicants ’ lawyer complained with the Chief Prosecutor ’ s Office about the lack of progress in the investigation. She noted with regret that the identity of the perpetrators had not been established yet, despite the fact that the applicants from the very outset of the proceedings had maintained that they could name and identify the implicated prison officers. She, hence, requested her clients ’ repeated questioning.

11. On 3 May 2011 the applicants ’ lawyer filed another complaint about the lack of progress in the investigation, but no reply followed.

2. The second applicant ’ s ill-treatment on 25 November 2008 (investigative file no. 074098003)

12. In November 2008 the second applicant complained about another incident of his alleged ill-treatment upon his transfer from Rustavi no. 2 to Rustavi no. 6 Prison. Notably, according to a statement given to a representative of the PDO, on 25 November 2008, after his arrival at Rustavi no. 6 Prison, the second applicant was taken to an isolated room where he was verbally and physically assaulted by several prison officers, including the one identified by the second applicant as L.K. Then his hair was shaved off against his will. The second applicant claimed that in this as well as in many other incidents of abuse he was pressurised and threatened by prison authorities to withdraw his criminal complaints pending against high prison officials.

13. The second applicant ’ s statement was forwarded by the Public Defender to the Chief Prosecutor of Georgia along with a request to initiate criminal probe.

14. By a letter of 27 January 2009, the Public Defender was informed that a separate set of criminal proceedings had been initiated by the prosecution authorities under Article 333 of the Criminal Code of Georgia in connection with the applicant ’ s new allegations (investigative file no. 074098003).

15. On 11 August 2009 the PDO requested updated information about the progress of the investigation. In reply, on 31 August 2009 the prosecution informed that the proceedings were being conducted, that several witnesses had been questioned and that no one had been charged yet.

3. The third applicant ’ s ill-treatment in March 2010 and subsequent criminal proceedings (investigative file no. 073100125)

16. On 8 March 2010 the PDO representative visited the third applicant in Rustavi no.2 Prison. He noted that the applicant had various haemorrhages and bruises on his body and face and that he was complaining about pain in his left eye, ribs and back. The third applicant alleged in this connection that he had been verbally and physically abused by the prison Governor – G.K. and several prison officers on 6 March 2010. The second applicant, who was sharing the same cell with the third applicant at the material time, confirmed his allegations and noted that he had witnessed the prison Governor insulting and slapping the third applicant. The second applicant himself also complained about verbal assault and threats.

17. On 11 March 2010 the third applicant ’ s detailed statement along with the statement of the second applicant was forwarded by the Public Defender to the Chief Prosecutor along with a request to take any legal action required. In reply, by a letter of 1 April 2010 the Public Defender was informed that criminal proceedings had been initiated under Article 333 § 1 of the Criminal Code (abuse of power) (investigative file no. 073100125).

18. According to the third applicant, subsequently he has been regularly threatened and assaulted on account of the criminal complaints lodged by him against the head of the prisons department and other public officials. He reported several incidents to the Chief Prosecutor, including an incident of 19 October 2011 when he had allegedly been beaten by the Governor of Prison no. 19 – B.R. and several prison officers. It is unclear from the case ‑ file whether any of the second applicant ’ s complaints yielded any positive results.

B. The allegedly poor conditions of the applicants ’ detention and lack of adequate medical care

1. The conditions of the applicants ’ detention in Rustavi no. 2, Rustavi no. 6 and Kutaisi no. 2 Prisons, and in the prison hospital and the applicants ’ relevant complaints

19. According to the case-file, all three applicants were regularly complaining about poor conditions of detention and inadequate medical treatment throughout their imprisonment in various prisons.

20. Hence, in October 2008 the applicants complained about poor conditions of det ention in Rustavi no. 2 Prison. On 25 November 2008 the second applicant, who is suffering from epilepsy, was transferred to Rustavi no. 6 Prison. He complained that following his transfer, the treatment for his epilepsy had been suspended.

21. On 6 August 2009 the first and second applicants, who were in Rustavi no. 2 Prison at the material time, were seen by a representative of the PDO. They complained that their teeth had been badly damaged as a result of their regular ill-treatment in 2006 and that since they were missing several teeth, they were experiencing eating difficulties. They also claimed that no dental care was available in Rustavi no. 2 Prison. The first and second applicants ’ complaints were forwarded by the PDO to the Governor of Rustavi no. 2 Prison, who dismissed their claims and maintained that basic dental treatment had been offered to the applicants on the premises of the prison. He further noted that for additional treatment the applicants would be transferred to the prison hospital.

22. On 28 December 2009, the third applicant acting via his lawyer complained to the Governor of Rustavi no. 6 Prison, where he was staying at the material time, about inadequate medical assistance. He claimed that, although being diagnosed with viral hepatitis C, he was not receiving adequate treatment and that his dietary needs were also being neglected.

23. On 5 January 2010 the PDO wrote on behalf of the second applicant to the head of Kutaisi no. 2 Prison, where the applicant was staying at the material time, about the allegedly poor conditions of detention in prison. According to the letter, the applicant was claiming that he had limited access to shower, that his bed sheets were never changed and that he was deprived of the required medical assistance, despite his diagnosis of epilepsy and a permanent pain in spine and chest.

24. On 28 March 2011 the second applicant was transferred to the prison hospital. He alleged, however, that instead of getting proper medical check ‑ up and treatment, the prison hospital staff had verbally insulted and mocked him. The second applicant complained to the Public Defender and the prosecution authorities and requested initiation of criminal proceedings into his allegations.

25. As it appears from the case-file and according to the applicants, neither of their multiple complaints have been ever followed up by the relevant prison authorities.

2. The third applicant ’ s state of health and medical negligence on the part of the prison hospital (investigative file no. 010118093)

26. In February 2011 the third applicant had an initial test on tuberculosis with a result “clinically doubtful diagnosis.” In March 2011 he had an additional test, which concluded that the third applicant required further examinations in order to verify his diagnosis. On 14 April 2011 he was transferred, in view of his deteriorating medical condition, to the prison hospital. Instead of getting proper medical assistance he was apparently verbally insulted and threatened by the prison hospital staff; they called him a “Strasbourg complainant”. He was discharged on the same date despite having high fever and suffering from overall weakness, pain in the chest area, cough and lack of appetite. The applicant complained about the negligence of the prison hospital staff and their degrading and humiliating treatment to the Chief Prosecutor of Georgia.

27. On 16 May 2011 criminal probe was initiated under Article 333 of the Criminal Code in connection with the acts of the staff of the prison hospital.

28. In July 2011 the third applicant was diagnosed with pulmonary tuberculosis. The diagnosis was finally confirmed on 8 August 2011 and the applicant was immediately assigned to an anti-tuberculosis treatment under the DOTS programme ( Directly observed Treatment, Short-course – the treatment strategy for the detection and cure of TB recommended by the World Health Organization) . According to his medical file, on 8 February 2012 the third applicant completed the above treatment plan successfully.

29. On 27 April 2012 the applicant ’ s lawyer inquired with the prosecution authorities about the progress of the investigation initiated on 16 May 2011 and further complained about the medical negligence of the prison hospital staff which resulted in the deterioration of the medical condition of the applicant and his belated anti-tuberculosis treatment. All subsequent complaints of the third applicant were added to investigative file no. 010118093.

COMPLAINTS

30. All three applicants complained, under 3 of the Convention, about the material conditions of their detention and the alleged lack of adequate medical care throughout their continuous stay in various Georgian prisons. They further alleged that they had been subjected to systematic ill ‑ treatment, threats and intimidation in prison and that no effective investigation had been conducted in this regard. In this connection, they also relied on Article 13 of the Convention.

QUESTIONS TO THE PARTIES

1 . As regards the various incidents of the applicant s ’ alleged ill ‑ treatment in prison:

1. Were the applicants subjected to repeated ill-treatment, threats and intimidation, in breach of Article 3 of the Convention in the period between September 2006 and October 2011?

2. Have the competent domestic authorities conducted an adequate investigation into the applicants ’ allegations of repeated ill-treatment , as required by the procedural obligation under Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV)? What was the outcome of criminal proceedings in cases nos. 74068404, 074098003, 073100125, and 010118093?

3. Did the applicants have at their disposal effective domestic remedies for their complaints under Article 3 of the Convention, as required by Article 13 of the Convention?

The Government are invited to provide the Court with a copy of all relevant criminal case files.

2. As regards the conditions of the applicants ’ detention

1. Where the material conditions of the applicants ’ detention in the various facilities – Rustavi no. 2 and Rustavi no. 6 Prisons, Kutaisi no. 2 Prison and the prison hospital – compatible with Article 3 of the Convention? In that regard, the Government are requested to provide detailed information concerning the conditions in which the applicants were detained, including information about the size and occupancy of the applicants ’ cells in all relevant institutions, access to toilet and washing facilities, access to natural light and fresh air, hygiene, food, clothing, heating, ventilation and outdoor activities.

2. Have the responsible State agencies taken all necessary measures to safeguard the applicants ’ well-being and health in prison, in accordance with their positive obligations under Article 3 of the Convention ?

Appendix

N o .

Applicant name

Birth date

Nationality

Representatives

1.Vazha GEGENAVA

08/12/1977

Georgian

N. Andriashvili

2.Imeda BUTKHUZI

16/02/1984

Georgian

T. Avaliani

3.Rudik OVAKIMYAN

03/10/1983

Georgian

T. Avaliani