THIRD SECTION

Application no. 31197/06 Zviad OBOLADZE and Nino LOBZHANIDZE against Georgia lodged on 7 July 2006

STATEMENT OF FACTS

1. The applicants, Mr Zviad Oboladze (“the first applicant”), and Ms Nino Lobzhanidze (“the second applicant”), are Georgian nationals who were born in 1977 and 1958 and live in Tbilisi and Mtskheta respectively. They are represented before the Court by Ms K. Mekhuzla, Ms. T. Gabisonia and Mr. Wolfgang P. Schultz, lawyers practising in Tbilisi and Berlin respectively. The facts of the case, as submitted by the applicants, may be summarised as follows.

2. Both applicants were employed at the material time as gynaecologists at Mtskheta hospital. The second applicant was also serving as the deputy director of the hospital.

3. On 22 September 2005 at about 5 a.m. a patient, G.M., with severe abdominal pain, was brought by ambulance to Mtskheta hospital. The first applicant, who was on the night shift in the gynaecological ward of the hospital, after examining her, diagnosed G.M. with post-abortion acute endometritis and pelvi-peritonitis. The examination was attended by the second applicant.

4. At 10 a.m. the first applicant ’ s night shift finished and he handed responsibility for G.M. ’ s treatment to another doctor (the third co-accused in the proceedings). G.M. was examined again and the diagnosis of post-abortion complications was confirmed.

5. At 3.50 p.m. on 22 September 2005 G.M. died. According to the post-mortem forensic examination, the cause of her death was acute anaemia developed as a result of a ruptured fallopian tube caused by an ectopic pregnancy.

6. On the same day a preliminary investigation was initiated into the death of G.M. caused by medical negligence under Article 130 § 2 of the Criminal Code of Georgia.

7. On 22 December 2005 experts of the National Forensic Bureau concluded that due to a diagnostic error G.M. was not provided with an urgently required surgical intervention and died as a result.

1. The applicants ’ pre-trial detention and the criminal proceedings conducted against them

8. On 26 December 2005 both applicants were summoned to the Mtskheta prosecutor ’ s office, where they appeared, according to the relevant investigative reports, at 1.15 a.m. The applicants were officially charged with an offence under Article 130 § 2 of the Criminal Code (leaving a patient in danger, and thereby causing her death) and were subsequently questioned as accused. At 8.07 p.m. and 9.32 p.m. respectively an investigator drew up records on their detention and immediately, with the consent of the prosecutor, forwarded their case file to the Mtskheta District Court, requesting that they be remanded in custody. According to the investigator, the main justification for the imposition of such a restraint measure on the applicants was that in view of the severity of the sentence there was a reasonable suspicion that they would abscond, thus obstructing the conduct of the investigation. The investigator also argued that the applicants, if released, would threaten the parties to the proceedings or would commit new offences.

9. On 26 December 2005, late at night, the Mtskheta District Court, whilst refusing the applicants ’ application for bail, remanded them in custody for three months. Having reviewed the criminal case materials, the court confirmed that there was a reasonable suspicion that the offence had been committed. The imposition of pre-trial detention was further found to be justified by the assumption that the applicants might abscond from justice and unduly influence the investigation. According to the applicants, the hearing ended at 2 a.m. on 27 December 2005.

10. On 28 December 2005, the second applicant ’ s lawyer lodged a complaint with the Tbilisi Court of Appeal against his client ’ s detention order. The lawyer claimed that approximately half an hour after the applicant ’ s questioning, which ended at 9.32 p.m. on 26 December 2005, a detention hearing was held, thus depriving his client of the opportunity to adequately prepare her defence. The judge, who hardly had any time to study the 300 pages of case materials himself, ignored the second applicant ’ s argument that there was inadequate time and facilities for preparation of their case and also dismissed the lawyer ’ s request for alternative measures of restraint, without giving any reasoning. The lawyer further complained that the first-instance court had disregarded the fact that the applicant had been cooperating with the investigation for over three months, that most of the witnesses had already been questioned by that time and the required investigative actions taken, and hence there was no reasonable suspicion or even the likelihood that the applicant would threaten the parties to the proceedings or otherwise obstruct the almost completed investigation.

11. A separate complaint against the detention order of 26 December 2005 was lodged by the first applicant ’ s lawyer. He claimed that there was no reasonable suspicion that his client had committed the offence in question, as it was obvious from the case materials that he had been off duty from 10 a.m. on 22 September 2005 and had not been in charge of G.M. ’ s treatment when she died.

12. On 4 January 2006, at an open hearing, the Tbilisi Court of Appeal dismissed both applicants ’ appeals. After reviewing the available evidence, the appellate court confirmed that there was a reasonable suspicion against the applicants. In connection with the reasonableness of the pre-trial detention, the court concluded, without referring to any specific factual circumstances concerning the applicants, that there was a high probability that the applicants would influence witnesses and hence hinder the establishment of the truth.

13. On 15 February 2006 the pre-trial investigation was completed and on 21 February 2006 the criminal case file, together with the bill of indictment, was sent to the Mtskheta first-instance court for examination.

14. On an unidentified date the second applicant ’ s lawyers requested the Mtskheta District Court to release their client on bail. In their request they relied on the report of 23 February 2006 concerning the medical examination of the second applicant, according to which she was diagnosed as suffering from ischaemic heart disease, cardiac arrhythmia, arterial hypertension with frequent hypertensic crisis , chronic cholecystitis, vegeto ‑ vascular dystonia and hiatal hernia. They also based their request on the following elements: the fact that she is a mother of four and that her youngest daughter, aged four, was ill; lack of criminal record, her impeccable reputation as a doctor and the signatures of some 2,000 people in her support. The lawyers again emphasised that the investigation was over, and since the second applicant was charged with a less serious offence there was no reason whatsoever to keep her in prison. The above request was dismissed by the first-instance court on an unidentified date (the case file does not contain a copy of the relevant decision).

15. Similarly, at the hearing of 18 July 2006 the first applicant, having regard to his worsening medical condition (see below), requested the court to substitute his pre-trial detention with a more lenient measure of restraint. The court concluded that no new circumstances had been shown which could justify the first applicant ’ s release; the request was therefore dismissed as unsubstantiated.

16. In July 2006 several court hearings were postponed due to the second applicant ’ s poor health. On 26 July 2006 a specially designated medical commission, after examining her, diagnosed the second applicant as additionally suffering from associative stress reaction and paraparesis of the lower limbs. The experts concluded that the applicant was capable of participating in court proceedings, however, only in prison. The subsequent hearings were accordingly scheduled in the women ’ s no. 5 prison, where the second applicant was an inmate at the material time.

17. At the hearing of 3 August 2006, which was held in prison, the second applicant lost consciousness. After she had been provided with first aid, the judge proceeded with the hearing, though subsequently he decided to postpone it.

18. On 9 August 2006 the first-instance court held its final hearing on the premises of Prison no. 5. The first applicant, who as a consequence of his allegedly inappropriate behaviour had been expelled from the courtroom during the previous hearing, requested the court to allow him to take part in the concluding proceedings and make final pleadings. The request was refused by the judge.

19. By a judgment of 9 August 2006 the Mtskheta District Court convicted the applicants as charged and sentenced them to three years ’ imprisonment each. The court, relying on several medical conclusions and witness statements, concluded that the applicants had failed to provide G.M. with the medical tests which were urgently required, inter alia, an X-ray examination, so that it had been impossible to make an accurate diagnosis of her condition. Moreover, despite the obvious symptoms of an ectopic pregnancy, they had not provided her with adequate and appropriate treatment and had failed to perform an urgently required surgical intervention.

20. On an unidentified date the applicants appealed against their conviction. They reiterated their pleas of innocence, challenging the assessment of evidence by the first-instance court and denouncing the legal qualification of their acts under the criminal law. They further alleged that the pre-trial investigation had been conducted in a biased manner and that the first-instance proceedings had been unfair.

21. On 6 November 2006 a representative of the Public Defender ’ s office, who had attended the first-instance court proceedings, wrote to the appellate judge in charge of the case, complaining about several procedural violations that had allegedly occurred during the concluding first-instance hearing of 9 August 2006 and requesting to be questioned as a witness in that connection. In support he submitted a report which he had drawn up concerning the 9 August 2006 hearing. In that report he described how the prosecutor and the judge had repeatedly used their mobile phones during the trial, sending text messages and talking on their phones, including during the lawyers ’ speeches. He further noted that when the judge withdrew for deliberations to another room in the administrative building of Prison no. 5 he was accompanied by the prosecutor.

22. This request was supported by the applicants and their lawyers at a hearing on 9 November 2006. They alleged in that connection a breach of the principle of secrecy of deliberations. The appeal court judge, whilst concurring with the prosecutor ’ s opinion, dismissed the request, reasoning that the matter was beyond the court ’ s competence. He suggested that the applicants approach the High Council of Justice and the General Prosecutor ’ s office about the alleged violations.

23. By a decision of 29 December 2006 the Tbilisi Court of Appeal, whilst fully supporting the reasoning of the first-instance court, upheld the applicants ’ conviction.

24. On an unidentified date the applicants lodged an appeal on points of law, mostly reiterating the arguments they had made in their previous appeal. They also alleged that the criminal proceedings against them had been conducted unfairly, in breach of the principle of adversarial proceedings.

25. On 23 July 2007 the Supreme Court dismissed the applicants ’ appeal on points of law as inadmissible. Using abstract phrases and without giving any specific details, the court merely reproduced the relevant provision of the Criminal Procedure Code of Georgia, noting that “the case [was] not important for the development of the law and coherent judicial practice; the [contested] decision [did] not differ from the Supreme Court ’ s existing practice in such matters, and the appellate court [had] not committed any major procedural flaws during its examination which could have significantly affected its outcome.”

26. On 14 September 2007 the representative of the Public Defender ’ s office inquired with the Supreme Court about the number of cases under Article 130 of the Criminal Code dealt with by the cassation court. He also asked for copies of the relevant decisions/judgments, if any. In reply, the head of the statistics department at the Supreme Court noted that there had been only one criminal case dealt with by the court under Article 130 of the Criminal Code in 2006-07. He provided the Public Defender ’ s office with a copy of the inadmissibility decision in the applicants ’ case.

27. On 23 November 2007, by virtue of a presidential pardon, the second applicant was released from serving the remainder of her prison sentence.

2. The first applicant ’ s state of health and the proceedings before the Court

28. It appears from the case file that in 2005, prior to the initiation of the criminal proceedings against the first applicant, he was diagnosed as suffering from lumbar spondylosis, lygamentosis and sequestered prolapsed disc.

29. While he was in Tbilisi no. 5 Prison the diagnosis of spinal disc problems was confirmed and the first applicant was transferred to the prison hospital on 28 January 2006. On 9 March 2006 he was examined by a neurosurgeon, who recommended that he have a surgical intervention in a specialised hospital.

30. In view of the increasing back pain he was suffering, and some other health complications, the first applicant on several occasions requested the director of the prison hospital to follow the medical recommendation of 9 March 2006 and transfer him to a specialised medical establishment, to no avail. His requests for consultations with a neurosurgeon also went unanswered.

31. Following the Public Defender ’ s intervention, on 17 January 2007, the first applicant had another consultation with a neurosurgeon, who concluded, in view of his worsening medical condition, that he required urgent surgery. Otherwise, according to the neurosurgeon, the applicant faced the risk of becoming disabled.

32. On 24 February 2007, the first applicant, despite the neurosurgeon ’ s recommendation, was transferred to Rustavi no. 1 Prison, where a further deterioration in his medical condition was noted. According to the applicant, he was kept there in poor conditions. Notably, the cell was overcrowded, with nine prisoners sharing twelve square metres of space. There were only four beds available, hence the cellmates including the applicant had to take turns to sleep. The hygienic and sanitary conditions in the cell were inadequate; the cell was full of lice and bugs; a shower was provided only once a week. Also the food and water served to the applicant in prison were of poor quality.

33. On 9 March 2007 the first applicant, whilst complaining about his transfer to Rustavi no.1 Prison, requested the Court under Rule 39 of the Rules of Court to indicate to the Government that he be transferred to a specialised clinic where the required spinal surgery and subsequent appropriate treatment could be provided.

34. On 22 March 2007 the Court invited the Government, under Rule 49 § 3 (a) of the Rules of Court, to submit information concerning the first applicant ’ s state of health and the medical treatment provided to him in prison. In view of the medical recommendation for spinal surgery and the conclusion that there was a risk of disability, the Government was also invited to specify whether the treatment provided to the applicant in prison was appropriate and sufficient for his condition.

35. By letter of 5 April 2007 the Government submitted the first applicant ’ s medical file to the Court and also gave an account of the treatment which he had received in the prison hospital. The Government further submitted a report of 4 April 2007 on the applicant ’ s examination by a neurosurgeon and a neurologist, according to which the first applicant, at his own request, could have had microsurgery in the prison hospital to remove the disc. The Government maintained, relying on the above report, that the applicant ’ s surgery was not urgent. Nevertheless they were ready to offer him the requested surgery on the premises of the prison hospital.

36. On 10 May 2007 the first applicant, whilst challenging the veracity of the medical conclusion of 4 April 2007, reiterated his request under Rule 39 of the Rules of Court. He further maintained that the prison hospital was not in a position to offer qualified medical intervention for his spinal problems.

37. On 6 June 2007 the President of the Chamber decided to indicate to the Government of Georgia, under Rule 39 of the Rules of Court, that the applicant should be placed in a medical establishment capable of providing adequate medical treatment for his medical condition. For that purpose the Government were requested to arrange a fresh medical examination of the applicant by two neurosurgeons, one designated by each of the parties.

38. Accordingly, on 24 August 2007 the applicant was examined by two neurosurgeons, who diagnosed him with intervertebral disc herniation in the remission stage. They noted that surgery was not urgent and was dependent on the applicant ’ s wishes. However, if surgery was not performed, the applicant was to be offered anti-inflammatory drug-based treatment and vitamin therapy.

39. On 29 November 2009 the Tbilisi City Court, at the request of the prison authorities, ordered the first applicant ’ s early release.

COMPLAINTS

40. In their original application form lodged with the Court on 7 July 2006 the first applicant alleged, under Article 3 of the Convention, that the prison authorities had been withholding adequate medical treatment from him. Both applicants further complained, under Article 5 § 1 of the Convention, that their initial detention for about four to five hours at the Mtskheta regional prosecutor ’ s office was unlawful and that the criminal case file against them did not contain credible evidence that they had committed the offence in question. Relying in substance on Article 5 § 3 of the Convention, the applicants further complained about the reasoning of their detention orders, contending that their detention had been imposed without any specific or sufficient grounds. In connection with the first detention hearing the applicants also complained that the insufficient time that was given to them for the preparation had prevented them from defending their rights in an appropriate manner, giving rise to a violation of their rights under Article 6 § 2 (b) of the Convention.

41. The first applicant further alleged a violation of Article 8 of the Convention on account of the pressure exerted by the prosecuting authorities on his sister.

42. In an additional application form received by the Court on 8 November 2007 the applicants, as well as reiterating their previous complaints, raised numerous fresh grievances under the Convention. Notably, relying on Article 3 of the Convention, the first applicant complained that the conditions of his detention in Rustavi no. 1 Prison were poor, whilst the second applicant complained of inhuman and degrading conditions in which the hearing of 3 August 2006 was held. Under Article 5 § 2 of the Convention, the applicants claimed that they had not been informed promptly of the reasons for their arrest.

43. Relying on Article 6 §§ 1 and 3 of the Convention, the applicants further complained that the criminal proceedings against them had been unfair. They particularly objected to the way the hearings of 3 and 9 August 2006 had been conducted, complaining, inter alia, about the first applicant ’ s expulsion from the courtroom and his inability as a consequence to give a final statement, and about the breach of the principle of secrecy of deliberations by the first-instance court. As a supplementary observation to the complaints about the fairness of the proceedings, the first applicant also contested the Supreme Court ’ s rejection of the appeal on points of law without an examination on the merits, despite the fact that the applicants ’ case was unprecedented, no previous cases having involved such a complex issue as medical negligence.

44. In the context of Article 6 § 1 of the Convention the applicants also disagreed with the domestic courts ’ assessment of the evidence and with the legal qualification of their acts under the relevant national law. Further, referring to the news programme broadcast by the television channel Rustavi 2 on the day of their arrest, the applicants complained that the authorities and the media had breached Article 6 § 2 of the Convention by publicly accusing them at an early stage of the investigation. Relying on Article 6 § 3 (b) and (d) of the Convention the applicants complained about limited access to the case file and about the refusal of the domestic courts to question several additional witnesses on their behalf.

45. Lastly, the applicants also cited Article 7 § 1 of the Convention, arguing that their actions did not qualify as a criminal offence under Article 130 § 2 of the Criminal Code.

QUESTIONS TO THE PARTIES

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

1. Did the relevant authorities provide the first applicant with adequate medical treatment in prison, as required by the State ’ s positive obligations under Article 3 of the Convention?

2. Were the material conditions of the first applicant ’ s detention in Rustavi no. 1 Prison compatible with Article 3 of the Convention?

3. Did the relevant authorities fail to comply with the interim measure indicated by the Court on 6 June 2007, in violation of Article 34 of the Convention (see Paladi v. Moldova [GC], no. 39806/05, §§93-106, ECHR 2009 ‑ ... )?

2. The applicants ’ pre-trial detention

1. Was the detention imposed on the applicants in conformity with the requirements of Article 5 § 3 of the Convention? In particular, were the grounds given in the detention orders of 26 December 2005, the appellate decision of 4 January 2006 and the subsequent extension orders “relevant” and “sufficient” to justify the deprivation of liberty? In this connection, the Government is requested to provide copies of all relevant court decisions.

2. Was the detention hearing of 26 December 2005 conducted in conformity with the principle of “adversarial proceedings” and “equality of arms” as enshrined in Article 5 § 4 of the Convention?

3. The criminal proceedings against the applicants

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

- Was the first-instance court which dealt with the applicant ’ s case impartial, as required by Article 6 § 1 of the Convention? In particular, was the communication between the judge and the prosecutor during the concluding first-instance hearing in breach of the principle of secrecy of deliberations?

- Having due regard to the fact that the first applicant was expelled from the concluding first-instance hearing of 9 August 2006 and hence was prevented from making his final pleadings, can the applicant be said to have been able to defend himself, as required by Article 6 § 3 (c) of the Convention (see, mutatis mutandis , Hanževački v. Croatia , no. 17182/07, § 25, 16 April 2009, and Huseyn and Others v. Azerb aija n , nos. 35485/05, 45553/05, 35680/05 and 36085/05 , § § 192-195 , 26 July 2011 ) ?

- In the light of the Court ’ s relevant case-law ( Perez v. France [GC], no. 47287/99, § 81, ECHR 2004 ‑ I, and Jahnke and Lenoble v. France (dec.), no. 40490/98, ECHR 2000 ‑ IX), was the reasoning in the Supreme Court ’ s decision of 23 July 2007 sufficient for the purposes of assuring the applicants respect for their right to a fair trial? In particular, what exactly was the judicial precedent to which the Supreme Court referred in its decision of 23 July 2007 , when noting that the applicants ’ case did not differ from existing practice in such matters? The Government are invited to submit a copy of the relevant decision(s)/judgment(s).