Failure to provide medical care to detainees constitutes inhumane and degrading treatment.

JUDGMENT

Kadagishvili v. Georgia 14.05.2020 ( no. 12391/06)

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SUMMARY

Failure to provide medical care to detainees in accordance with their health problems is inhumane and degrading treatment.

Detention of detainees and conditions of a fair trial. The first and third applicants were convicted of money laundering and held in high-security prisons. They immediately reported their health problems but were not provided with proper care and medical treatment. They also complained of a number of violations related to the proceedings in the first and second instance related to the fair trial.

The ECHR ruled that the government had failed to prove that they had been placed under medical supervision during their detention due to their confirmed health problems, and therefore found that they had been subjected to inhumane and degrading treatment . Just satisfaction  € 12,000 for non-pecuniary damage.

Furthermore, the ECHR acknowledged that the non-placement of the first applicant in a special clinic violated the interim measure ordered by the Court. Violation of Article 34 of the Convention.

On the contrary, the ECHR ruled that their right to a fair trial had not been violated as their conviction was based on substantive evidence and not only on the testimony of witnesses who negotiated with the prosecutor’s office, represented by a lawyer who had access to any document and case file and they generally had a fair trial. No violation of Article 7 because the seizure of their property was provided for in domestic law.

PROVISIONS

Article 6 §§ 1 and 3,

Article 7§1,

Article 1 of the First Additional Protocol

Article 34

PRINCIPAL FACTS

The applicants, Amiran Kadagishvili, Nana Kadagishvili, and Archil Kadagishvili, are Georgian
nationals who were born in 1949, 1947, and 1978 respectively, and live in Tbilisi. Amiran and Nana
Kadagishvili are husband and wife and Archil is one of their two sons.

The case concerned their allegations that their trial for fraud and money laundering had been unfair
and that the first and third applicants had been held in inadequate conditions of detention.
In July 2004 the first and third applicants were arrested on suspicion of financial crimes, including
money laundering related to the activities of Gammabank, established by the first applicant. In
September 2004 the second applicant was also arrested as a suspect. Their case was covered by the
Rustavi 2 television channel, which in one report had an interview with the investigator, who stated
that 10 billion euros (EUR) had been transferred through Gammabank accounts.

The applicants’ trial began in 2005, ending with their conviction in April 2006. The court found them
guilty of organising money laundering and other illegal acts, involving also employees of
Gammabank. The first and third applicants were sentenced to prison while the second applicant was
given a suspended prison sentence.

Sixteen Gammabank employees testified, including 10 who had been convicted of the same financial
crimes on the basis of plea-bargaining agreements. The court also based its findings on other
material, such as financial and other documents, an expert examination apparently carried out in
respect of the relevant documents, and a report obtained from the United States Department of the
Treasury.

On appeal, the applicants, argued in particular against the first-instance court’s reliance on the
witnesses who had concluded plea-bargaining agreements. During the proceedings the first
applicant was excluded from the final hearing for contempt of court. In October 2006 the appeal
court upheld their convictions.

The Supreme Court in February 2007 rejected an appeal on points of law as inadmissible.
The first and third applicants were held at a short-term remand prison; Tbilisi prison no. 5; and
Rustavi prison no. 2. Both submit that the conditions of detention in their cells in Tbilisi prison no. 5
were very poor and included over-crowding. They also submit that they received insufficient
treatment for their medical problems, which for the first applicant included type II diabetes.

Relying on Article 3 (prohibition of inhuman or degrading treatment) of the European Convention,
the first and third applicants complained that they had not received adequate medical care in prison.
They also submitted that the conditions of their detention had violated Convention standards.

The three applicants made various complaints about the criminal proceedings under Article 6 (right
to a fair trial). They also raised complaints under Article 7 § 1 (no punishment without law) and
Article 1 of Protocol No. 1 (protection of property), stating that their property had been confiscated
as a result of a retroactive application of a criminal sanction.

Under Article 34 (right of individual petition) the first and third applicants complained that the
Government had failed to comply with the letter and spirit of an interim measure indicated by the
Court under Rule 39. The first applicant also complained that his representatives had twice been
prevented from entering the prison hospital to finalise a response to the Government’s observations
in the case.

THE DECISION OF THE COURT…

(a)  Medical care in prison

the Court notes that the first applicant’s complaint in relation to the healthcare received in prison concerns the inadequacy of the medical care in respect of his diabetes and the related health issues, the alleged delay in the administration of insulin injections, the failure of the prison authorities to provide him with the necessary special diet, and the supplementation of his medication and medical care by his family.

The Court notes that no medical history appears to have been drawn up in respect of the first applicant during his placement at Rustavi prison no. 2 between 7 December 2006 and his transfer to the medical wing of that prison following the Court’s indication of interim measures under Rule 39 of the Rules of Court on 22 August 2007. Furthermore, no record exists in respect of the insulin injections administered to the first applicant at Rustavi prison. The Court hence considers that the Government failed in discharging their burden of proof concerning the availability of adequate medical supervision and treatment to the first applicant in prison .

The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 3 in so far as the first applicant’s medical treatment in prison is concerned.

The third applicant

  1. The third applicant also complained about the inadequacy of medical care in respect of his health issues, and the failure of the prison authorities to provide him with the special diet

Against this background, the Court notes that his diagnosis of a pituitary adenoma (a benign brain tumour) and complaints of weakness, insomnia, and permanent headaches became known to the prison authorities soon after his placement in detention

The Court notes that following his placement in the prison hospital on 1 September 2007, the third applicant was provided with various examinations and treatment, and surgery was proposed, even if the third applicant opted to undergo a more expensive surgical procedure at his own expense. However, and by contrast, no medical history appears to have been established in respect of the third applicant during his placement in Rustavi prison no.  However, no medical documentation was furnished by the Government to support their argument that the third applicant had been provided with adequate medical supervision and care either in respect of his initial diagnosis and the relevant recommendations .The Court therefore considers that the Government failed in discharging their burden of proof concerning the availability of adequate medical supervision and treatment to the third applicant in prison prior to 1 September 2007

The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 3 in so far as the third applicant’s medical treatment in prison is concerned.

(b)  Conditions of detention

the Court has established on several occasions that the conditions of detention at the material time, especially prison overcrowding, in Tbilisi prison no. 5 were not compatible with Article 3 of the Convention

Furthermore, the first and the third applicants’ description of the prison overcrowding and various other aspects of their conditions of detention in cell no. 130 correspond to the findings made by the CPT and Human Rights Watch in respect of that prison and relating to the same period

In the light of the foregoing, the Court finds that there has been a violation of Article 3 of the Convention, in so far as the conditions of the first and the third applicants’ detention in cell no. 130 of Tbilisi prison no. 5 in October and December 2005 are concerned.

ARTICLE 6 OF THE CONVENTION

All three applicants complained that the criminal proceedings against them had been unfair in several respects, they had been denied access to the Supreme Court, and their right to be presumed innocent had been infringed by the manner in which their arrest was covered in the media, and statements made in that context by the investigating authorities. They relied on Article 6 §§ 1, 2, and 3 (d) of the Convention. The first applicant also complained, under Article 6 § 3 (b) (c) of the Convention, that he had not been given adequate facilities to defend himself on account of being placed in a barred dock during the appellate proceedings, and that he had been expelled from the courtroom at the appellate stage

The Court notes that the applicants principally challenged the very fact of the domestic courts’ reliance on witness statements given to the trial court in the proceedings against the applicants by those individuals who had concluded plea-bargain agreements with the prosecution, arguing that the plea-bargaining procedure had been implemented in violation of domestic law, had had prejudicial effect, and some witnesses seemed to have misunderstood what their crimes had been, or what the plea bargaining procedure had meant.

The procedure was therefore carried out in accordance with the domestic law applicable at the time, and was accompanied by adequate judicial review, with the relevant parties. The majority of the witnesses repeatedly confirmed their statements, and gave detailed and consistent information regarding their own role in the crimes with which the applicants had been charged .

In the light of the foregoing considerations, and bearing in mind that the applicants had the benefit of adversarial proceedings, the Court finds that no issue arises under Article 6 of the Convention in respect of this aspect of the applicants’ complaint concerning the fairness of criminal proceedings.

(β) The domestic courts’ treatment of the applicants’ applications regarding admissibility of evidence and questioning of witnesses

Turning to the applicants’ complaints regarding the domestic courts’ refusal to admit certain financial documents and a video recording of a conversation between the second applicant and D.M. –, the Court reiterates that the applicants’ conviction was based on a large body of corroborating evidence. The applicants having had the benefit of adversarial proceedings, the Court finds that no issue under Article 6 of the Convention arises on account of the domestic courts’ treatment of the applicants’ applications regarding admissibility of evidence and questioning of witnesses.

(c) Access to evidence

  1. The Court observes that the applicants’ defence lawyer requested access to the investigative document obtained from the United States Department of the Treasury at the final hearing of the appellate court . However, the first applicant appears to have familiarised himself with the part of the case file which had included the impugned document.. In the absence of the applicants’ complaints regarding the matter either before the first-instance court or the appellate court at an earlier stage of the proceedings, and given that the applicants failed to raise this issue before the Supreme Court , the Court does not find the applicants’ complaint regarding the limited access to the impugned document to be sufficiently substantiated.

3  Therefore no issue arises under Article 6 of the Convention in this connection.

(d) The first applicant’s placement in a dock during the appellate proceedings, and his subsequent expulsion from the courtroom

The Court reiterates that a measure of confinement in the courtroom may affect the fairness of a hearing guaranteed by Article 6 of the Convention.  Turning to the circumstances of the present case, the Court affords particular importance to the fact that the first applicant was not placed in a barred dock during the proceedings before the first-instance court, and the applicant was able to fully participate in those proceedings while seated next to his lawyer .  In the light of the foregoing, the Court concludes in the circumstances of the present case that there has been no unfairness in respect of the first applicant in the course of the appellate proceedings.

(e) Conclusion regarding the applicants’ complaints concerning the fairness of the criminal proceedings under Article 6 of the Convention

In the light of the foregoing considerations, the Court finds that the overall fairness of the proceedings was not undermined in the particular circumstances of the present case. Accordingly, there has been no violation of Article 6 §§ 1 and 3 (b)-(d) of the Convention in respect of the three applicants.

(ii) Access to the Supreme Court

The Court reiterates that the “right to a court”, of which the right of access is one aspect, is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned, since by its very nature it calls for regulation by the State, which enjoys a certain margin of appreciation in this regard.

The Court does not consider that the cassation court’s decision not to admit the appeal was disproportionate to the legitimate aim pursued. Furthermore, as far as the reasoning of the Supreme Court’s decision is concerned, the Court reiterates that where a cassation court refuses to accept a case because the legal grounds for it have not been made out, very limited reasoning may satisfy the requirements of Article 6 of the Convention

In the light of the foregoing, the Court finds that there has been no violation of Article 6 § 1 of the Convention on account of the refusal of the Supreme Court to consider the case on its merits.

ARTICLE 7 OF THE CONVENTION

The applicants complained of the fact that their property had been confiscated as a result of a retroactive application of a criminal sanction. They relied on Article 1 of Protocol No. 1 to the Convention. The Court reiterates that according to its well-established case-law, offences and the relevant penalties must be clearly defined by law.

Turning to the circumstances of the present case, the Court notes that the essence of the applicants’ argument is that the application of Article 52 § 3 of the Criminal Code, as amended on 28 December 2005 – that is to say subsequent to the commission of the crimes for which they had been convicted – had constituted a retroactive application of a more severe penalty than would otherwise have been the case.

In this context, the Court observes that Article 52 § 3 of the Criminal Code did not exist at the time the crimes imputed to the applicants were committed .

the Court finds that the application of Article 52 § 3 of the Criminal Code to the applicants, even if adopted subsequent to the commission of the crimes in question, did not amount, in substance, to the retroactive application of a penalty. The confiscation of criminally obtained property would have taken place in any event, even if based on the provisions of the Code of Criminal Procedure rather than the Criminal Code. In such circumstances, the applicants did not face a more far-reaching detriment than they would have, had the provision in question not been applied .Therefore, there has been no violation of Article 7 of the Convention in the particular circumstances of the present case.

Article 34

In so far as the first applicant is concerned, the Court cannot accept the Government’s submissions that all the material relevant to the first applicant’s state of health and medical treatment were submitted to the Court, and that the existing case-file material demonstrated the absence of the need to place him in a medical establishment. The Court has already found that no medical history existed in respect of the first applicant’s time in Rustavi prison no. 2 Against that background, the provision of a generic note of a duty doctor of that prison, stating that the first applicant’s condition was stable and that he had been provided with adequate treatment on the medical ward of the prison cannot suffice to support the Government’s argument that there was no need to place him at an external or dedicated prison medical facility.

The Court notes in this respect that the main purpose of the interim measure in the present case – and the Government did not claim to be unaware of this – was to prevent the applicants’ exposure to inhuman and degrading suffering in view of their poor health. In its interim measure the Court therefore advised the Government to transfer the applicants to a medical establishment capable of dispensing adequate medical treatment for each of their diseases.  The Court thus considers that the Government’s failure to provide the Court with the relevant medical documents and its insistence that there was no need to place the first applicant in an external or dedicated prison medical establishment, without demonstrating that the facility (medical ward of Rustavi prison no. 2) where the first applicant was placed had been able to provide him with the adequate treatment for each of his diseases, impaired the content and purpose of the interim measure. Accordingly, in so far as the first applicant is concerned, the Government failed to demonstrate to the Court that the interim measure was complied with.

By contrast, and in so far as the third applicant is concerned, having regard to the information and the medical documentation provided to it by the Government (see paragraph 80 above), the Court is satisfied that by placing the third applicant at the prison hospital the Government complied with the interim measure indicated by the Court.

Violation of Article 3 – in respect of the first and the third applicants’ conditions of detention at Tbilisi prison no. 5

Violation of Article 3 – in respect of the first and the third applicants’ medical treatment in prison

No violation of Article 6 §§ 1 and 3 – in respect of the fairness of the criminal proceedings

No violation of Article 6 § 1 – in respect of the right of access to a court

No violation of Article 7

Violation of Article 34 – in respect of the first applicant

No violation of Article 34 – in respect of the third applicant

Just satisfaction: EUR 12,000 each to the first and the third applicants for non-pecuniary damage


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