THIRD SECTION

Application no. 63875/10 by Giorgi SHUBLADZE against Georgia and 4 other applications (see the list appended)

STATEMENT OF FACTS

THE FACTS

The applicants are Georgian nationals.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Application no. 63875/10

According to the available medical documents, the applicant, serving a sentence for murder since 7 January 2000, suffers from viral hepatitis C, a schizotypal personality disorder and certain other less serious ailments.

On 15 July 2010 the applicant, after his reiterated requests to that end had been left unanswered by the prison authority, brought a court action against that authority, seeking a transfer to the prison hospital for treatment. The applicant specified in his statement of claim that, being a prisoner with no source of income, he was not able to pay a court fee for proceeding with his action.

By a decision 20 July 2010, the Tbilisi City Court reproached the applicant for not having paid a fee in the amount of 100 Georgian Laris ((“GEL”), approximately 40 Euros (“EUR)), granting him additional five days to effectuate the necessary payment, on pain of rejecting his action without examination.

In reply, the applicant reiterated his complaint that, being a prisoner, he did not have any income. He reminded the court that he was a seriously ill person and that, consequently, not only his right to have access to a court was at stake but also such fundamental values as his health and life. After a series of additional extensions of the time for the payment of the fee, the Tbilisi City Court ruled on 18 August 2010 to leave the applicant ’ s action without examination.

The applicant then appealed to the Tbilisi Court of Appeals. However, on 28 September 2010 the appellate court found his statement of appeal to be procedurally deficient, in so far as it had not been submitted in its original version but in a copy and had not been accompanied by an appellate fee in the amount of GEL 50 (approximately EUR 20). The applicant was allotted seven days for the rectification of those shortcomings.

On 4 October 2010 the applicant submitted an explanatory note to the Tbilisi Court of Appeal, reiterating his request for the exemption from the court fees on the basis of his being a prisoner. However, on 7 October 2010 the appellate court finally rejected his case without examination.

On 11 February 2011 the applicant requested the Court that the Government be ordered, under Rule 39 of the Rules of Court, to transfer him to the prison hospital for treatment. The President of the Section granted that request on 16 February 2011.

2. Application no. 73250/10

The applicant, serving a prison sentence for robbery since 11 February 2007, suffers from viral hepatitis C.

On 9 August 2010 he, after his reiterated requests to that end had been left unanswered by the prison authority, brought a court action against that authority, seeking a transfer to the prison hospital for treatment.

By decisions of 13 and 18 August 2010, the Tbilisi City Court refused to examine the applicant ’ s action for the non-payment of a court fee in the amount of some EUR 40, giving him repeated extensions for the correction of that procedural shortcoming. It is not clear from the case file whether and when the domestic courts finally examined the applicant ’ s action against the prison authority or rejected it without examination.

On 22 December 2010 the applicant requested the Court, under Rule 39 of the Rules of Court, to order to the Government his transfer to the prison hospital. The President of the Sect ion rejected that request on 13 January 2011.

3. Application no. 26056/11

According to the available medical documents, the applicant, serving a prison sentence for second drug offence since 26 April 2010, suffers from viral hepatitis B and C, his liver being affected by cirrhosis. As disclosed by a medical opinion dated 18 June 2010, the applicant ’ s medical condition was stable from the hepatological point of view at that time and he could be treated on an out-patient basis.

On 18 January 2011 the applicant requested that his sentence be suspended in view of his state of health. That request was dismissed as manifestly ill-founded by the Tbilisi City Court and the Tbilisi Court of Appeals on 11 February and 23 March 2011 respectively. The courts reasoned that the applicant ’ s state of health was not grave.

On 25 January 2011 the applicant, after his reiterated requests to that end had been left unanswered by the prison authority, brought a court action against that authority, seeking a transfer to a specialised prison hospital for treatment of his hepatic diseases. He specified that, being a prisoner, he did not have any income and should thus be exempted from the obligation to pay the court fee.

After several extensions of the time-limit, the Tbilisi City Court ruled, on 18 February 2011, to leave the applicant ’ s action of 25 January 2011 without examination for the failure to pay a fee in the amount of some EUR 40. An appeal lay against that decision to the Tbilisi Court of Appeals. However, it is not clear from the case file whether the applicant resorted to that remedy.

4. Application no. 26072/11

The applicant, serving a prison sentence for drug and fire-arms offences, suffers from viral hepatitis C, this disease being in its early stage, characterised by moderate viral activity, and certain other ailments of minor nature. According to an opinion issued by a State medical expert on 25 March 2010, his condition from the hepatological point of view was qualified as stable at that time; he required a treatment with anti-viral agents which could be dispensed on an out-patient basis.

On 20 September 2010 the applicant requested to be conditionally released on the health grounds. That request was dismissed as manifestly il l ‑ founded by the Tbilisi City Court and the Tbilisi Court of Appeals on 21 October and 22 December 2010. The domestic courts, after having examined his medical file and heard the relevant doctors, found that the applicant already benefited from permanent and qualified medical supervision and treatment in prison and there was no risk of a further deterioration of his condition.

The applicant then requested to be placed to a specialised hospital. However, that request was left without examination by the Tbilisi City Court ’ s decision of 20 September 2010 due to the non-payment of a fee of some EUR 40.

The applicant appealed against that decision , complaining that , as a prisoner without any source of income , he should be exempted from the obligation to pay the fee. However , his appeal was rejected without examination by the Tbilisi Court of Appeal on 30 November 2010 due to the non-payment of an additional , appellate fee in the amount of some EUR 20.

5. Application no. 27842/11

The applicant , serving a prison sentence for robbery since 16 April 2006 , suffers from serious renal diseases. In particular , according to a medical opinion issued on 29 October 2010 , he had chronic renal failure , the disease already being in stage 5 (or the “end-stage”). The same opinion revealed that the applicant had received a kidney transplant in 2003. However , his organism started rejecting that transplant. Should that rejection continue , the opinion concluded , the applicant would then require another kidney transplant , remaining on renal dialysis in the meantime.

On 22 October 2010 the applicant requested that the outstanding part of his sentence be suspended in view of his state of health. However , that request was dismissed as manifestly ill-founded by the Tbilisi City Court and the Tbilisi Court of Appeals on 11 November and 23 December 2010 respectively. The courts reasoned that the applicant ’ s health condition did not impede his ability to serve the sentence.

In the meantime, the applicant also requested the Tbilisi City Court to indicate to the prison authority his transfer to a hospital specialised in treatment of renal problems. However, similarly to the preceding four applications, in the present case as well the Tbilisi City Court and the Tbilisi Court of Appeal refused to examine his action for the non-payment of the requisite court fees, despite the applicant ’ s argument of being a prisoner and thus having no source of income. It is not clear from the case file as to when exactly the Tbilisi Court of Appeal ’ s final decision of 28 September 2010, which was delivered in the parties ’ absence, was served on the applicant or his lawyer.

On 4 May 2011 the applicant enquired with the prison authority as to when he should expect a kidney transplant surgery, in line with the medical opinion of 29 October 2010. According to him, no response was given to his query.

COMPLAINTS

Relying on various provisions of the Convention (see the Table below), the applicants complain about the lack of adequate medical care for their various diseases in prison and the domestic courts ’ persistent refusals to examine their health complaints due to the non-payment of the court fees.

QUESTIONS TO THE PARTIES

COMMON QUESTIONS

1. Have the responsible State agencies taken all necessary measures, including those constitutive of adequate medical treatment, to safeguard the applicants ’ physical well-being and health in prison, in accordance with their positive obligations under Article 3 of the Convention?

2. Have the applicants had at their disposal an effective domestic remedy for their complaints under Article 3 of the Convention, as required by Article 13 of the Convention, this provision being invoked by the Court with respect to four applications (see the Table below) of its own motion?

3. Is Article 6 § 1 of the Convention applicable to the proceedings concerning the applicants ’ requests for the transfer to the relevant medical establishments?

If so, did the fact that the court fees required by the domestic courts apparently prevented the applicants from pursuing their health actions constitute disproportionate restrictions on their right of access to a court, contrary to Article 6 § 1 of the Convention?

CASE SPECIFIC QUESTIONS

1. Applications nos. 73250/10 and 26056/11

In these two particular cases, are the domestic proceedings concerning the applicants ’ requests for the transfer to the medical establishments still pending? If not, when were the final domestic decisions delivered and served on the applicants or their lawyer for the first time?

2. Application no. 27842/11

1. Having regard to the applicant ’ s renal failure, what is his current state of health in prison? Has his condition improved or deteriorated since the medical opinion of 29 October 2010? What kind of treatment do the relevant domestic authorities envisage to dispense to the applicant in the future? Is the applicant ’ s health condition compatible with the purposes of his detention (see Mouisel v. France, no. 67263/01, §§ 36-48, ECHR 2002 ‑ IX)?

2. When was the Tbilisi Court of Appeal ’ s decision of 28 September 2010 served on the applicant or his lawyer for the first time?

No.

Application

no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

Major diseases

Convention Articles invoked

Accompanied by a pending request under Rule 39 of the Rules of Court

63875/10

25/10/2010

Giorgi SHUBLADZE

21/04/1981

Tbilisi

Mamuka NOZADZE

Viral hepatitis C and schizotypal personality disorder (F-06.2 under the international classification of psychiatric diseases).

Articles 3, 6 § 1 and 13 of the Convention.

No

73250/10

14/12/2010

Vazha MOTSONELIDZE

29/05/1978

Rustavi

Ketevan SHALIKASHVILI

Viral hepatitis C.

Articles 2 and 3 of the Convention.

No

26056/11

21/04/2011

Giga PURTSKHVANIDZE

08/11/1983

Kutaisi

Mamuka NOZADZE

Viral hepatitis B and C, liver cirrhosis.

Articles 2, 3, 6 § 1 and 14 of the Convention.

Yes

26072/11

21/04/2011

Zurab BOSTOGHANASHVILI

26/05/1982

Tbilisi

Mamuka NOZADZE

Viral hepatitis C.

Articles 3, 6 § 1 and 14 of the Convention.

No

27842/11

19/04/2011

Valerian BALIASHVILI

28/09/1984

Village of Bodbiskhevi

Mamuka NOZADZE

Chronic renal failure (stage 5).

Articles 2, 3, 6 § 1 and 14 of the Convention.

Yes