THIRD SECTION

Application no. 19882/07 Giorgi MAZANASHVILI against Georgia lodged on 11 May 2007

STATEMENT OF FACTS

The applicant, Mr Giorgi Mazanashvili, is a Georgian national who was born in 1981 and is currently serving a prison sentence in Rustavi no. 6 Prison. He is represented before the Court by Mr I. Sosiashvili and Mr. M. Nozadze, lawyers practising in Tbilisi.

A. The circumstances of the case

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

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

On 15 September 2005 the applicant was arrested on suspicion of unlawful purchase and possession of drugs. According to the personal search record a plastic bag containing five sachets of a brownish substance and one sachet of a white substance were found in the back right pocket of his trousers. The body search was conducted on the outskirts of the city of Gori by an investigator N.M. assisted by two police officers without the attendance of independent witnesses and lasted from 17.06 p.m. to 17.18 p.m.

The applicant refused to sign the search record, claiming his innocence. Notably, he contested that his arrest and the body search had taken place in the circumstances described above. He alleged that he had been detained in the city centre at about 14.00 – 14.30 p.m. . Immediately following his arrest he had been forced into a vehicle and driven around the city for several hours; during that time he had been questioned in connection with some incident concerning a stolen vehicle. Then, the police officers had taken him to the outskirts of the city, where he had been forced to the ground. According to the applicant, he was laying face down when the investigator N.M. put some plastic bag into his back right pocket. Then the body search started and the impugned plastic bag was seized. The applicant was not informed about his right to call for independent witnesses to attend the search.

On 16 September 2005 the Gori District Court confirmed the lawfulness of the applicant ’ s personal search. The applicant ’ s appeal, on the ground that he had not been informed about his right to call for independent witnesses to attend the search, was dismissed by the Tbilisi District Court on 22 September 2005.

In the meantime the applicant ’ s lawyer also requested to replace the responsible investigator, alleging that the latter had planted drugs on his client and also requested the questioning of seven witnesses who could have shed light on the circumstances of the applicant ’ s arrest and search. The lawyer ’ s requests were met. Subsequently, three witnesses out of seven were questioned; as for the remaining four, the prosecutor supervising the investigation ruled against their questioning on 2 November 2005.

On 29 November 2005 the preliminary investigation was completed and the case file along with the bill of indictment was forwarded to the Kareli District Court.

During the first-instance court proceedings, the applicant asked the Kareli District Court to examine the seven witnesses who possessed information concerning the time and location of his arrest and the circumstances of his personal search. The prosecutor replied that the request was unsubstantiated. Having heard the parties ’ pleadings, the Kareli District Court decided to grant in part the applicant ’ s request and examine only one of the witnesses proposed. The Court reasoned in this connection that the circumstances of the applicant ’ s arrest had already been established during the pre-trial investigation stage.

By a decision of 22 September 2006 the Kareli District Court convicted the applicant of unlawful purchase and possession of a particularly large quantity of drugs and sentenced him to eighteen years ’ imprisonment. The final sentence which included the unserved part of the applicant ’ s previous sentence was set up at nineteen years ’ imprisonment. The applicant ’ s conviction was based on the report of his personal search, the testimony of the police officers who had participated in his arrest and search, and the results of the chemical analysis of the seized substance. The first-instance court, whilst omitting the testimony of the witnesses questioned on behalf of the applicant, dismissed the latter ’ s allegation that the drugs had been planted on him by the police. It simply concluded that this allegation was made up with the sole purpose of evading criminal responsibility.

The applicant ’ s conviction was upheld by the Tbilisi Court of Appeal on 7 March 2007. Notwithstanding the fact that the applicant ’ s lawyer complained about the failure of the first-instance court to give any consideration to the applicant ’ s argument that the drugs had been planted on him by police and to analyze in this connection the statements of the defence witnesses, the appeal court similarly, without giving any reasons, dismissed the applicant ’ s allegation of planting drugs. The applicant ’ s sentence was reduced, however, to fourteen years ’ imprisonment.

On 30 March 2007, the applicant ’ s lawyer lodged a cassation claim, reiterating all the arguments that he had made during the trial and the appeal. The case file does not contain a copy of the Supreme Court decision.

2. The applicant ’ s state of health, poor conditions of his detention and the proceedings before the Court

Prior to his arrest the applicant was suffering from the following diseases: chronic bronchitis with an asthmatic component and frequent complications, chronic cholecystitis and several neurological disorders caused by brain injury.

On 17 September 2005 the applicant was transferred to Tbilisi no. 5 Prison, where the conditions of his detention were extremely poor. Notably, cell no. 82, where the applicant was placed, was overcrowded and the prisoners had to sleep in turn; the applicant slept about 2-3 hours a day. The cell initially designated for ten inmates accommodated forty inmates at a time. As a consequence, the sanitation and hygiene in the cell were unsatisfactory; along with being kept in a dirty cell, the applicant and his inmates were not allowed to take shower for months. Moreover, the cell had no ventilation and had an open toilet area. According to the applicant, he was not provided with basic items of hygiene and with proper nutrition. He also requested on several occasions, in view of his serious medical condition, comprehensive medical examination and adequate medical treatment. His requests, however, went apparently unnoticed.

On 27 March 2006 the applicant was transferred to Rustavi no. 6 Prison, where the conditions of detention were similarly inadequate. Although being provided with his own bed, the applicant was deprived of basic items of hygiene, was allowed to have an outdoor exercise only once a month and was receiving inadequate nutrition. His family was prevented from supplying the applicant with proper food.

On 22 June 2007, the applicant ’ s lawyer requested the head of the penitentiary department to provide the applicant with comprehensive medical examination in order to determine his future treatment plan. In reply, the Governor of Rustavi no. 6 Prison in his letter of 9 July 2007, noted that the applicant ’ s condition was stable, he was regularly seen by a therapist and phthisiatrician and his transfer to the prison hospital was not envisaged.

On 5 November 2007 the applicant requested the Court to indicate to the Government under Rule 39 of the Rules of Court to transfer him to the prison hospital where adequate medical treatment could be dispensed for his various medical diseases. After several rounds of exchange of information between the parties, it appeared that the applicant ’ s condition had further deteriorated. Notably, on 7 February 2008 the applicant was transferred to the prison hospital, where he was additionally diagnosed as suffering from chronic viral hepatitis C (HCV), vegetative neurosis and neurocirculatory dystonia .

On 26 February 2008 the applicant reiterated his request under Rule 39 of the Rules of Court focusing this time on his diagnosis of HCV and the lack of adequate medical treatment in this regard.

On 6 March and 1 April 2008 the Court decided acting under Rule 39 of the Rules of Court to indicate to the Government to provide the applicant with adequate medical treatment for his post-traumatic encephalopathy, intracranial hypertension and other neurological problems in an appropriate medical establishment.

According to the case file, for the following several months the applicant underwent extensive medical examinations in the prison hospital, was consulted by, amongst others, a dermatologist, ophthalmologist, psychiatrist and neurologist and started receiving the relevant anti-viral treatment for his HCV.

On 7 October 2009 the Government, whilst accounting in detail for the applicant ’ s medical condition and the treatment administered for his various diseases in the prison hospital, requested the Court to lift the interim measure previously indicated on 6 March and 1 April 2008 under Rule 39 of the Rules of Court. On 8 February 2012 the Court, having due regard to the latest developments of the case, decided to grant the Government ’ s request.

COMPLAINTS

Relying on Article 3 of the Convention the applicant claimed that the detention conditions in Tbilisi no. 5 and Rustavi no. 6 prisons had been inhuman and degrading. He also complained that, in view of his poor state of health and in the absence of adequate medical treatment in prison, his medical condition had drastically deteriorated; he had also contracted HCV in prison.

Relying on various provisions of Article 5 of the Convention, the applicant further challenged the lawfulness of his arrest and pre-trial detention.

Under Article 6 §§ 1 and 3 (d) of the Convention the applicant challenged the outcome of the criminal proceedings. In particular, he contended that the drugs had been planted on him by the police during the search; that the domestic courts had failed to give adequate reasons for rejecting this argument of the defence and failed in this connection to question several key witnesses.

QUESTIONS

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

(a) Was the applicant infected with HCV whilst in prison? If so, does this fact amount, as such, to a violation of Article 3 of the Convention?

(b) Was the applicant provided with adequate medical treatment for each of his numerous diseases in prison? Have his various ailments evolved over the period of his detention?

(c) What is the applicant ’ s current medical condition? Is Rustavi no. 6 Prison capable of providing adequate medical treatment for his various medical grievances?

2 Were the material conditions of the applicant ’ s detention in Tbilisi no. 5 and Rustavi no. 6 prisons c ompatible with Article 3 of the Convention?

3. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular,

(a) Was 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 was conducted in the absence of independent witnesses or an advocate? Was the applicant provided with sufficient procedural safeguards to prevent a violation of Article 6 § 1 of the Convention in this regard?

(b) Did the domestic courts duly examine the applicant ’ s allegation that the drugs had been planted on him by the police during the search?

(c) Did the decisions of the domestic courts contain sufficient reasoning for the finding that the applicant was guilty of the drug charges against him?

(d) Did the refusal of the domestic courts to examine several witnesses on the applicant ’ s behalf amount to a violation of Article 6 § 3 (d) of the Convention?