THIRD SECTION

Application no. 2177/08 David SARTANIA against Georgia lodged on 13 November 2007

STATEMENT OF FACTS

1. The applicant, Mr David Sartania, is a Georgian national, who was born in 1958 and lives in Tbilisi. He is represented before the Court by Ms N. Katsitadze and Mr A. Shoshikelashvili, lawyers practising in Tbilisi.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s arrest and criminal proceedings conducted against him

3. On 17 May 2005 the applicant was arrested on suspicion of drug possession. His personal search, conducted by two police officers in the absence of independent witnesses, revealed drugs on his person. The police also discovered drugs in his vehicle. A subsequent forensic examination established that the substance seized from the applicant contained 1.767 grams of heroin. According to the case file, the applicant ’ s personal search as well as the search of his vehicle was recorded on video by police.

4. On 18 May 2005 the applicant refused to sign the search records. He claimed that the above mentioned procedural acts, conducted in the absence of a lawyer or independent witnesses, had been unlawful. On the same date the applicant was charged with unlawful purchase and possession of a particularly large quantity of heroin under Article 260 § 3 (a) of the Criminal Code of Georgia.

5. On 20 May 2005 the Tbilisi City Court, acting upon the prosecutor ’ s request, ordered the applicant ’ s pre-trial detention for three months.

6. Following the forensic examination of 17 June 2005, it was established that the applicant was suffering from drug addiction and that he required compulsory drug abuse treatment.

7. On 25 July 2006 the Tbilisi City Court convicted the applicant as charged and sentenced him to twelve years ’ imprisonment. The conviction was primarily based on the statements of the two police officers who had arrested the applicant and conducted his personal and vehicle searches. The court rejected the applicant ’ s request to admit into evidence the video recording of the searches as unsubstantiated. The trial court ordered the applicant to undergo compulsory drug treatment program at the place of his imprisonment.

8. On 18 August 2006 the applicant appealed his conviction. He claimed that the proceedings at first instance were unfair and that the trial court disregarded the numerous procedural violations committed during the applicant ’ s arrest and the subsequent searches.

9. By a decision of 10 January 2007 the Tbilisi Court of Appeal confirmed the applicant ’ s conviction in full. On 14 May 2007 the Supreme Court of Georgia dismissed the applicant ’ s appeal on points of law.

10. According to the applicant, notwithstanding the relevant court order, he has not been provided with a compulsory drug treatment program in prison.

2. The applicant ’ s medical condition

11. According to the case file, the applicant entered the prison system with a well-documented history of mental disorder. Immediately after his detention, the applicant ’ s lawyer requested his client ’ s comprehensive psychiatric examination, but the request was refused. Following an appeal, on 15 August 2005 the applicant was seen by a group of psychiatrists, who diagnosed him with organic affective disorder. They concluded that his condition was stable.

12. In September 2005 the applicant was advised to undergo an in-patient forensic psychiatric examination. Despite the lawyer ’ s subsequent requests, the relevant prison authorities failed to transfer him for that purpose to a relevant medical establishment. Only in December 2005, after the relevant court order, was the applicant provided with an in-patient psychiatric examination. As a result his diagnosis of organic affective disorder was confirmed. The doctors concluded that he did not require a compulsory psychiatric treatment.

13. According to the applicant, despite his reiterated requests, he has not provided with any treatment whatsoever for his mental condition in prison.

3. Family visits in prison

14. According to the applicant, from the time of his arrest in May 2005 until May 2007 he was kept in Tbilisi no. 5 Prison, where his family was not allowed to visit him. In May 2007, after the Supreme Court ’ s final decision on the applicant ’ s case, he was transferred to Rustavi no. 2 Prison, which is a strict regime institution. There the applicant was allowed to receive visits from his wife and two children once every two months in a manner not allowing for direct physical contact. In particular, they were separated by a glass partition. The visits lasted for the maximum of one hour and the children were usually allowed in for the last ten minutes.

15. In February 2008 the applicant ’ s wife asked the prison authorities for a visit without restrictions on physical contact. The request was refused. In April 2008 the applicant himself complained to the prison authorities about the disproportionate restrictions on his family contacts in prison. In reply, he was informed that the family visits were allowed behind a glass partition due to the security considerations. As for the number of visits, according the relevant legal provision, the applicant was entitled to receive visitors only once every two months. The applicant subsequently lodged several similar complaints with the penitentiary department of the Ministry of Justice, to no avail however. The authorities maintained that the visits could be allowed only behind a glass partition.

16. On 7 July 2008 the applicant filed an administrative complaint against Rustavi no.2 Prison requesting family visits once a month in a manner allowing for a direct physical contact. It is unclear from the case file, what the outcome of the above proceedings was, if any.

17. On 10 July 2008 the applicant lodged a constitutional complaint on a similar subject-matter with the Constitutional Court of Georgia. By a decision of 10 June 2009 the complaint was declared inadmissible.

COMPLAINTS

18. The applicant complained under Article 3 of the Convention that although he was a drug-addict with a well-documented history of psychiatric problems, he had not been provided with any treatment whatsoever; despite the court order he had not been included in a compulsory drug treatment program either. Relying on Article 6 § 1 of the Convention he alleged that the criminal proceedings conducted against him had been unfair and that the domestic courts had entertained unlawfully obtained evidence. Under Article 8 of the Convention the applicant also complained about the frequency of family visits he had been allowed to receive in prison and the fact that during those visits he had been unnecessarily separated from his visitors by a glass partition. Lastly, the applicant invoked Article 13 of the Convention in relation to his Articles 3, 6 § 1 and 8 complaints.

QUESTIONS TO THE PARTIES

1. The applicant ’ s state of health

– Has the applicant been provided with an adequate medical treatment for his mental disorder in prison? What is the current stage of his disease?

– Was the applicant enrolled in a drug treatment program as ordered by the Tbilisi City Court? If not, did his consequential suffering from the withdrawal symptoms amount to a violation of Article 3 of the Convention?

– Did the applicant have at his disposal effective domestic remedies for his health-related complaints as required by Article 13 of the Convention?

2. Criminal proceedings against the applicant

– Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular,

– W as there a breach of the principle of fairness of proceedings under Article 6 § 1 of the Convention on account of the fact that the applicant ’ s personal search and the search of his vehicle were conducted in the absence of independent witnesses or an advocate? Was the applicant provided with sufficient procedural safeguards to prevent a vi olation of Article 6 § 1 of the Convention in this regard?

3. Restrictions on family visits

– Was there an interference with the applicant ’ s right, under Article 8 § 1 of the Convention, to respect for private and family life, on account of the limitations on the frequency of family visits to which he was entitled in Rustavi no. 2 Prison and the fact that the family visits took place behind a glass partition? If so, was that interference in accordance with the law and necessary in terms of Article 8 § 2?

– Was the applicant provided with effective domestic remedies for his complaint under Article 8 of the Convention as envisaged under Article 13 of the Convention? In this connection, what was the outcome of the administrative proceedings initiated by the applicant against Rustavi no. 2 Prison?