FIFTH SECTION
 
 
 
 
 
 
CASE OF KARTVELISHVILI v. GEORGIA
 
(Application no. 17716/08)
 
 
 
 
 
 
 
 
 
 
JUDGMENT
 
 
 
STRASBOURG
 
7 June 2018
 
FINAL
 
07/09/2018
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kartvelishvili v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 André Potocki, President,
 Yonko Grozev,
 Síofra O’Leary,
 Mārtiņš Mits,
 Gabriele Kucsko-Stadlmayer,
 Lәtif Hüseynov,
 Lado Chanturia, judges, 
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 15 May 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 17716/08) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Giorgi Kartvelishvili (“the applicant”), on 3 April 2008. 2. The applicant was represented by Mr Sh. Shavgulidze, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice. 3. The applicant made, in particular, a number of complaints about the conditions of his detention and the lack of adequate medical treatment for his diseases in prison, and also complained of his inability to obtain, during his criminal trial, the attendance of the witnesses on his behalf under the same conditions as those called against him. He relied on Article 3 and Article 6 §§ 1 and 3 (d) of the Convention. 4. On 8 February 2010 the Government were given notice of the application. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. Background
5. The applicant was born in 1978 and lives in Tbilisi. 6. On 23 January 1998 he was arrested on suspicion of manslaughter. 7. On 24 October 2000 the Tbilisi Court of Appeal convicted the applicant of murder and sentenced him to nine years’ imprisonment. 8. Subsequently, the applicant was further convicted, by virtue of the judgment of the Krtsanisi-Mtatsminda District Court of 24 December 2004, of refusal to comply with an order of a prison officer at the prison where he was serving his murder sentence. His initial term of imprisonment was consequently extended by one year. B. Relevant criminal proceedings in the present case
9. On 6 January 2006 the applicant was placed in Tbilisi prison no. 7(“prison no. 7”) to serve the sentences referred to in paragraphs 7-8 above. 10. On 8 August 2006, at approximately 7.30 p.m., prison officers entered the applicant’s cell (no. 2) to conduct a surprise search. All the inmates, including the applicant, were ordered to vacate the cell and wait in the adjacent corridor for the search to finish. 11. The search was filmed by a cameraman from the Prison Service (“the video recording”). Upon completion of the search, a prison officer drew up a written report, according to which a penknife had been discovered “under the mattress on a bed in the cell”; the knife was seized as evidence. It later became apparent that the bed in question belonged to the applicant. The applicant was never presented with the written record on the discovery of the knife and thus did not sign the document. 12. On 11 August 2006 the applicant was charged with possessing an item prohibited under the prison regulations (the offence proscribed by Article 378 § 2 of the Criminal Code), and on 4 September 2006 the prosecutor sent the case to the Tbilisi City Court for trial. 13. The trial started on 12 February 2007. The prison officers who had conducted the search on 8 August 2006 were summonsed by the trial court as witnesses for the prosecution. 14. On the same day, 12 February 2007, the applicant applied to have the Tbilisi City Court examine the seven inmates who had been sharing cell no. 2 with him at the material time. He explained that the cellmates could describe the exact circumstances in which the search of the cell had been conducted. That information was essential for the purposes of assessing whether or not the search had been conducted in a manner involving an abuse of his rights. He brought the court’s attention to the fact that the charge against him was based only on the statements of the prison officers who had conducted the search in question, and who had already been summonsed as witnesses for the prosecution, and that the cellmates had never been interviewed at the pre-trial stage. The applicant referred in that regard to the principle of the equality of arms and his right to have witnesses on his behalf give testimony under the same conditions as those against him, within the meaning of Article 6 §§ 1 and 3 (d) of the Convention. He also cited Article 18 of the Code of Criminal Procedure, pursuant to which the trial court was obliged to take all necessary procedural measures aimed at the establishment of the relevant circumstances of the case in a comprehensive and objective manner. 15. In reply to the applicant’s application, the prosecutor argued that examining the cellmates would not be justified, given that all of them were serving criminal sentences. However, the prosecutor reaffirmed the importance of examining the prison officers who had conducted the search of the cell on 8 August 2006. 16. Having heard the parties’ pleadings, the Tbilisi City Court decided by its ruling of 12 February 2007 to refuse the applicant’s application for the cellmates to be examined as unsubstantiated. The court stated that the accused had not sufficiently demonstrated the necessity for summonsing those witnesses who, it should be noted, were not trustworthy people as they had criminal convictions. 17. As is apparent from the transcript of the trial, when questioned in the period between 12 and 21 February 2007 by the trial court as witnesses for the prosecution, the prison officers gave statements concerning the exact circumstances in which the knife had been discovered that were somewhat different. In particular, one of the officers submitted that the knife had been found “in the bed, between the mattress and the blanket, closer to the footboard” while another stated that it had been hidden “in [the applicant’s] bed, between the mattress and the sheet, closer to the headboard, near the pillow”; yet another officer stated that “the knife fell onto the floor the moment we took the mattress off the bed”. That inconsistency was seized upon by the applicant before the trial court. The prison officers also submitted that, in so far as the door of the cell had been left open during the search, the cellmates could have observed the process from the adjacent corridor (see paragraph 10 above). 18. The video recording was shown during the trial on 23 February 2007. The applicant objected that the recording did not necessarily establish that the knife had fallen from his mattress (the recording is described in more detail in paragraphs 25-26 below). As is apparent from the transcript of the trial, the public prosecutor conceded that the video recording of the search did not establish with certainty where exactly the knife had been found. However, the prosecutor argued again that the prison officers’ statements before the trial court confirmed that the knife had been discovered in the applicant’s possession. 19. The applicant further complained during his last pleading before the trial court on 23 February 2007 of the inability to have the witnesses on his behalf, the seven cellmates, examined under the same conditions as those for the prosecution. Notably, he argued that, even assuming that the knife had indeed been found in his bed by the prison officers, that fact did not necessarily mean that he had owned it; the prohibited item could have been discreetly planted in his bed by a cellmate or cellmates the moment the prison officers entered the cell with the intention of conducting a search. Therefore, in order for the trial court to obtain the fullest possible picture of the situation, it was essential to examine all of his cellmates. He also reiterated that his cellmates might have been a source of information about any possible abuses committed by the prison officers during the search. 20. By a judgment of 1 March 2007 the Tbilisi City Court convicted the applicant of possessing a prohibited item in prison (the offence proscribed by Article 378 § 2 of the Criminal Code). He was sentenced to three years in prison. The court confirmed that the prison officers’ statements, the video recording and the written record of the search of the cell and the seizure of the knife constituted the incriminating evidence. 21. On 30 March 2007 the applicant lodged an appeal against the judgment of 1 March 2007, reiterating all the arguments that he had made during the trial. In particular, in his complaint about the lower court’s refusal to examine his cellmates, he asked the Tbilisi Court of Appeal to do so. Reiterating his previous arguments as to why he considered the cellmates to be important witnesses (see paragraph 19 above), he argued that, without examining them, it would not be possible for the appellate court to establish objectively the real circumstances surrounding the search of 8 August 2006. The applicant also requested that the video recording be reviewed by the appellate court as it did not necessarily establish that the knife had been found in his bed. 22. The public prosecutor’s office also appealed against the sentence imposed by the judgment of 1 March 2007, requesting that, given the applicant’s previous criminal record, a more severe punishment be imposed. 23. By a judgment of 3 October 2007 the Tbilisi Court of Appeal dismissed the applicant’s appeal and upheld that of the public prosecutor. As regards the applicant’s procedural application for summonsing his cellmates as witnesses, the appellate court rejected it as unsubstantiated. It further confirmed that the criminal case file contained sufficient incriminating evidence against him. The court, informed by the consideration of the applicant’s previous criminal record, decided to increase the sentence from three to four years. 24. The applicant lodged an appeal on points of law, reiterating all his above-mentioned complaints and arguments, was rejected as inadmissible by the Supreme Court of Georgia on 11 February 2008. The cassation court dispensed with an oral hearing and delivered its final decision on the basis of the written procedure only. C. Video recording of the search of the applicant’s cell on 8 August 2006
25. The recording showed how several plain-clothes individuals, identifiable as prison officers by their manner, conducted a search of a prison cell. 26. In one of the scenes, the officers took the mattress, whose cover seemed to be intact, from the metal bed frame in the cell. Holding it approximately 1 metre above the floor, the officers started examining the mattress with their hands and a metal detector. Suddenly, there was a sound of metal hitting the floor, and an officer picked up an object, which resembled a small penknife. It was not clear from the recording whether or not that object had fallen from the mattress. D. The applicant’s state of health in prison
27. According to the medical documents available in the case file, on 7 November 2007 the applicant complained for the first time to the prison administration of a high fever and a dry cough. On 10 November he was transferred to the prison hospital. 28. Between 10 and 13 November 2007 the applicant was subjected to a number of laboratory tests, including a full biochemical analysis of his blood samples, and consultations with various medical specialists. The resulting opinion, dated 13 November 2007, diagnosed the applicant with pulmonary tuberculosis (TB), with the upper part of his left lung already seriously affected by the disease (in an advanced stage of disaggregation). The applicant was occasionally coughing up blood. The opinion further diagnosed the applicant with viral hepatitis C (HCV), with the disease in its early stage at that time. 29. Having regard to the medical opinion of 13 November 2007, a panel of doctors of the prison hospital elaborated a treatment plan for the applicant’s TB and HCV. Notably, given the stages of the two diseases at that time and the known side-effects of the anti-TB and anti-HCV drugs, the doctors recommended that the applicant firstly be provided with anti-TB medication under the DOTS programme (Directly Observed Treatment, Short-course – the treatment strategy for detection and cure of TB recommended by the World Health Organisation). He was prescribed daily doses of conventional antibiotics such as isoniazid (300 mg), ethambutol (1,100 mg), rifampicin, pyrazinamide (1,600 mg) and streptomycin (1,000 mg). Only upon completion of the anti-TB treatment, could the applicant start receiving, in the doctors’ view, antiviral drugs for his HCV, such as interferon alpha-2b and ribavirin; the exact dosage of the intake of the latter drugs were to be determined in due course. 30. According to his medical file, the applicant started receiving the anti-TB medication under the DOTS programme from 13 November 2007. During the intensive period of the treatment, which lasted three months, the applicant was kept in the prison hospital under the close supervision of medical personnel with the appropriate training. Upon completion of the intensive phase of the treatment, the applicant was transferred on 12 February 2008 back to prison no. 7, where he continued his course of antibiotics under the supervision of a doctor of that prison for an additional five months. 31. Throughout his treatment, both at the prison hospital and in prison no. 7, the Prison Service arranged regular tests of the applicant’s sputum culture and bacterial sensitivity to be carried out by the National Centre for Tubercular and Lung Diseases. The results of those tests showed that the sputum culture was already negative and also established that the applicant’s TB bacteria were still sensitive to the administered antibiotic drugs, which confirmed the suitability of the ongoing treatment. 32. Upon completion of the DOTS programme on 13 January 2008, the applicant’s sputum culture was subjected to another set of comprehensive laboratory tests, the results of which confirmed that TB bacilli were no longer present in the applicant’s organism. The results of an X-ray examination of the applicant’s thorax further confirmed that there were no new tubercular signs in the applicant’s lungs. 33. Subsequently, on 5 December 2008 and 11 February 2010, the applicant repeatedly underwent additional medical check-ups, which included the relevant laboratory tests and X-ray examinations, the results of which excluded any signs of a recurrence of the tuberculosis. 34. In May 2010, in line with the medical opinion of 13 November 2007 (see paragraph 28 above), the Prison Service arranged for a full biochemical analysis of the applicant’s blood for the purpose of elaboration of a specific treatment plan for his HCV. The results of the blood analysis, dated 17 May 2007, showed that the viral activity in the applicant’s organism was low. 35. Based on the above-mentioned blood test, an infectologist and a hepatologist called in by the Prison Service from civilian hospitals prescribed the applicant on 2 June 2010 a specific dosage of the relevant anti-HCV drugs. He was extensively informed by the doctors of the possible strong neurological side-effects of the prescribed drugs. Having regard to those side-effects, as well as the fact that the viral activity of the HCV was still low at that time, the applicant decided to postpone the treatment. He wrote a note to that effect, which was dated 2 June 2010. 36. The case file does not contain any other information on the applicant’s state of health as of June 2010. II. RELEVANT DOMESTIC LAW
37. Article 18 of the Code of Criminal Procedure (which was in force between 20 February 1998 and 1 October 2010) read, at the material time of the events in question, as follows:
Article 18 – The obligation to elucidate the circumstances of a case in a complete, objective and thorough manner
“2. Factual circumstances of a criminal case should be examined [by an investigator, public prosecutor, judge and court] in a complete, objective and thorough manner. All the circumstances, both inculpating and exonerating the accused from the commission of an offence, aggravating and mitigating the criminal responsibility for the offence, must always be given equal consideration. 3. Every complaint and request made by a suspect, accused or his or her lawyer that is aimed at proving innocence or reducing guilt, shifting the criminal responsibility onto other people or pointing at possible procedural irregularities made during the criminal proceedings must always be carefully examined [by an investigator, public prosecutor, judge or court].”
38. Article 232 of the above-mentioned Code of Criminal Procedure read, at the material time, as follows:
Article 232 – Deciding on a procedural application
“1. A procedural application aimed at facilitation of the task of elucidation of all the circumstances of the case in a complete, objective and thorough manner must be granted. 2. Procedural applications made by the public prosecution and the defence must always be given equal consideration. ... 6. A decision on rejecting a procedural application must contain reasons.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 3 OF THE CONVENTION
39. The applicant made three distinct complaints under Article 3 of the Convention: he alleged (i) that the material conditions of his detention in prison no. 7 had been poor; (ii) that he had contracted pulmonary tuberculosis there; and (iii) that he had not been provided with appropriate medical care for his various diseases in prison. The relevant provision reads as follows:
Article 3
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Material conditions of the applicant’s detention
40. Noting that the applicant had never contested the alleged inadequacy of the material conditions of his detention before any of the authorities, the Government objected to that particular complaint on the grounds of non‑exhaustion of domestic remedies. In that connection, they also observed that the applicant had not provided individual accounts of what exactly the material conditions of his detention in the relevant prisons had been. In contrast, the Government submitted a letter dated 11 June 2010 from the governor of prison no. 7. That letter gave the identification number of the cell in which the applicant had been detained (cell no. 2), and provided a detailed description of the material conditions therein at the time of the applicant’s detention. In that regard, cell no. 2 had had a window providing access to natural light and fresh air, had been clean and had had a toilet in an acceptable state of repair and cleanliness and which had been duly isolated from the living area. The applicant had had the opportunity to take a shower once a week, had been served a meal three times a day, the quality of which had never been contested by him or any other prisoner, and had benefited from an hour’s daily walk, as provided for by law. Thus, the Government considered that at all times the material conditions of the applicant’s detention in cell no. 2 of prison no. 7 had been in compliance with the relevant international standards. 41. In reply, the applicant maintained, in general terms, that he had been detained in conditions which had not been compatible with his human dignity. He did not provide a detailed individual account of the material conditions of his cells. 42. Referring to its relevant case-law in respect of conditions of detention in Georgian custodial institutions at the material time, the Court reiterates the rule that whenever an applicant wished to challenge allegedly poor material conditions of detention in a Georgian prison, even if such complaints did not call for the full and meticulous exhaustion of any specific criminal or civil remedies (see, for comparison, Aliev v. Georgia, no. 522/04, § 62 and 63, 13 January 2009, and Goginashvili v. Georgia, no. 47729/08, §§ 54 and 57, 4 October 2011), it was still required, at the very minimum, that at least one of the responsible State agencies must have been informed of the applicant’s subjective assessment that the conditions of the detention in question constituted a lack of respect for, or diminished, his or her human dignity. Without such basic conduct at the domestic level by a person who wished to challenge the conditions of his or her detention in Strasbourg, the Court would necessarily have difficulty in evaluating the credibility of an applicant’s allegations of fact in that connection (see Ramishvili and Kokhreidze v. Georgia (dec.), no. 1704/06, 26 June 2007, and Janiashvili v. Georgia, no. 35887/05, § 70, 27 November 2012). 43. Having regard to the material available in the case file, the Court notes that the applicant never informed any of the relevant authorities of his dissatisfaction with any particular aspect of the material conditions of his detention in prison no. 7. However, it observes that, even supposing that, at the relevant time, the applicant had had an effective domestic remedy at his disposal which he could have exhausted (see paragraph 42 above), in the proceedings before the Court, he limited his submissions to vague and general statements only. Consequently, the Court finds that the applicant has failed to discharge his burden of proof and substantiate his complaint properly (compare, amongst many other similar authorities, Muršić v. Croatia [GC], no. 7334/13, § 127, ECHR 2016; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 122, 10 January 2012; and Ildani v. Georgia, no. 65391/09, §§ 26 and 27, 23 April 2013). 44. It follows that the applicant’s complaint under Article 3 of the Convention concerning the material conditions of his detention in prison no. 7 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. B. Alleged contraction of pulmonary TB in prison
45. As regards the applicant’s alleged infection with TB in prison, the Government submitted that the complaint was inadmissible for non‑exhaustion of domestic remedies, as the applicant had not attempted to bring a civil claim for damages against the Prison Service for the alleged harm allegedly done to his health. 46. The applicant disagreed. 47. The Court notes that the applicant has never attempted to bring a civil claim for damages for his alleged infection with pulmonary TB in prison. However, it has previously examined similar situations and persistently found that a civil claim for damages under Article 207 of the General Administrative Code and Article 413 of the Civil Code was the most effective remedy to be used with respect to that particular health complaint (see Goloshvili v. Georgia, no. 45566/08, §§ 24-25 and 32-33, 23 October 2012; Jeladze v. Georgia, no. 1871/08, § 35, 27 November 2012, and also Ildani, § 28). The Court sees no reason to depart from its previous conclusions and considers that this complaint under Article 3 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies. C. Alleged lack of adequate medical care in prison
48. As regards the medical care which the applicant received, the Government submitted a full copy of his medical file (see paragraphs 27-35 above) and stated that he had been provided with all the requisite treatment by the Prison Service and that the relevant complaint was therefore manifestly ill-founded. 49. The applicant stated in reply, without submitting any supporting evidence, that the medical care for his various health problems – in particular his TB – had been deficient. His arguments about the alleged inadequacy of the medical care were limited in time until June 2010 (see also paragraph 36 above). 50. The Court reiterates that when assessing the adequacy of medical care in prison, it must, in general, show sufficient flexibility when defining the required standard of health care, which must accommodate the legitimate demands of imprisonment but remain compatible with human dignity and the due discharge of positive obligations by States. In that regard, it is incumbent upon the relevant domestic authorities to ensure, in particular, that diagnosis and care have been prompt and accurate, and that supervision by proficient medical personnel has been regular and systematic and involved a comprehensive therapeutic strategy. The mere fact of a deterioration of an applicant’s state of health, albeit capable of raising, at an initial stage, certain doubts concerning the adequacy of the applicant’s treatment in prison, cannot suffice by itself for a finding of a violation of the State’s positive obligations under Article 3 of the Convention, if, otherwise, it can be established that the relevant domestic authorities have in a timely fashion provided all the reasonably available medical care in a conscientious effort to hinder the development of the illness in question. A penal authority’s failure to keep comprehensive records concerning a detained applicant’s state of health or a respondent Government’s failure to submit such records in their entirety would consequently allow the Court to draw inferences

Article of the Convention at issue: Article 6
Outcome: violation