FIFTH SECTION
 
 
 
CASE OF KADAGISHVILI v. GEORGIA
 
(Application no. 12391/06)
 
 
JUDGMENT
 
Art 3 (material) • Degrading treatment • Poor conditions of detention • Overcrowding
Art 3 (material) • Inhuman and degrading treatment • Inadequate medical supervision and treatment while in prison
Art 6 §§ 1 and 3 (criminal) • Fair hearing • Adversarial trial • Witness • Conviction based on witness statements including people not part of the plea-bargaining process and various other evidence • Domestic courts’ fair treatment of the applicants’ application regarding admissibility of evidence and questioning of witnesses • No consequences on the fairness of the expulsion from the courtroom and the inability to make closing statements in person
Art 6 § 1 (criminal) • Access to court • Refusal of the Supreme Court to consider the case on its merits not disproportionate to the legitimate aim pursued • Very limited reasoning of the refusal satisfying the requirements of Art 6 in absence of legal grounds for accepting the case
Art 7 • Absence of retroactive application of a penalty • No far-reaching detriment with the application of a law inexistent at the time of committal of the crimes
Art 34 • Hinder the exercise of the right of application • State failure to comply with interim measure indicated by the Court under Rule 39

 
STRASBOURG
 
14 May 2020
 
FINAL
 
14/08/2020
 
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kadagishvili v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Síofra O’Leary, President,
 Gabriele Kucsko-Stadlmayer,
 Ganna Yudkivska,
 André Potocki,
 Mārtiņš Mits,
 Lado Chanturia,
 Anja Seibert-Fohr, judges,
and Victor Soloveytchik, Deputy Section Registrar,
Having deliberated in private on 23 April 2020,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 12391/06) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Georgian nationals, Mr Amiran Kadagishvili (“the first applicant”), Ms Nana Kadagishvili (“the second applicant”), and Mr Archil Kadagishvili (“the third applicant”), on 3 April 2006. 2. The applicants were represented by Ms L. Mukhashavria, Mr V. Vakhtangidze, and Mr V. Imnaishvili, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice. 3. The applicants alleged, in particular, that the criminal proceedings against them had been unfair and that they had been deprived of access to the Supreme Court, in breach of Article 6 of the Convention. The applicants also submitted that their property had been confiscated by means of a retroactive application of a criminal sanction, contrary to Article 1 of Protocol No. 1 to the Convention. Relying on Article 3 of the Convention, the first and the third applicants also complained of the inadequate conditions of detention, and the inadequacy of medical care in prison. They further complained under Article 34 that the Government had failed to comply with the interim measure indicated to them by the Court under Rule 39 of the Rules of Court. 4. On 22 August 2007 the Court, acting pursuant to a request by the applicants, advised the Government, under Rule 39 of the Rules of Court, in the interests of the parties and the proper conduct of the proceedings before the Court, to transfer the first and the third applicants to a medical establishment capable of dispensing adequate medical treatment for each of their diseases. 5. On 6 December 2010 notice of the application was given to the Government. The Court, of its own motion, categorised the applicants’ complaint relating to Article 1 of Protocol No. 1 under Article 7 of the Convention, and also notified the Government thereof. On the same day the Court discontinued the indication made to the Government under Rule 39. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1949, 1947, and 1978 respectively, and live in Tbilisi. The first and the second applicants are husband and wife. The third applicant is one of their two sons. A. Criminal proceedings against the applicants
1. Investigation stage
7. On 20 July 2004 the first applicant and the third applicant were arrested on suspicion of having committed various financial crimes, including money laundering, during the period between October 2000 and July 2004. The suspicion was based on the preliminary findings of the head of the Financial Monitoring Service (“the FMS”), an agency in charge of tracking money laundering, and related to the activities of Gammabank, a Tbilisi-based joint-stock company established by the first applicant. According to the charges brought against the two applicants, on an unspecified date the first applicant resigned from his position as deputy chairman of the bank’s supervisory board and appointed his son, the third applicant, as chairman of that board. The first applicant also appointed his second son, G.K., to various positions in the bank, and ultimately as its director general. In practice, the first applicant continued to be the primary manager of the bank and its operations, together with his family. The suspicion of the commission of financial crimes also related to the activities of three companies which were alleged to have been fictitiously created in order to cover up acts of fraud and money laundering committed through Gammabank (“the three shell companies”) as well as the bank’s cooperation and transactions made in respect of various offshore companies. The Prosecutor General’s Office (“the PGO”) conducted, as an urgent measure, a search of the offices of Gammabank, seizing numerous financial records and other types of documents, seals and letterheads of various companies, and electronic files. The company’s assets and the two applicants’ personal bank accounts were frozen. On 21 September 2004 the second applicant was arrested, also as a suspect in the case in relation to her role as a consultant to the bank in 2000-03, and her subsequent involvement in its activities, and aiding the first applicant. 8. On an unspecified date at the end of July 2004, the daily news programme of Rustavi 2, a private television channel, reported about the investigation into the case. The anchor of that programme made the following statement:
“[The first applicant] is one of those people who were involved in financial scheming [in the nineties] owing to which he had to flee his homeland. But as it appears, he has settled the problems with the previous Government and returned to Georgia with a new scheme. This time [it’s] Gammabank – the place where 10 billion euros [EUR] were laundered in one day. ... The Gammabank case may enter the history of Georgian law as “the Kadagishvili case”. [The first applicant] and [the third applicant] who were arrested ... for money laundering [are] detained in Tbilisi prison no. 5 ...”
9. The anchor’s comments were followed by excerpts from interviews with the PGO’s investigator in charge of the applicants’ case, and with the head of the FMS. The investigator stated, without further elaboration, that the investigation had established the act of transferring 10 billion euros (EUR) through Gammabank accounts. As to the head of the FMS, he spoke briefly about difficulties associated with investigating the activities of offshore companies in general, without relating his comments to the applicants’ case. 10. Between 2 August and 7 December 2004 an audit report was prepared by financial, economic, and tax experts appointed by the PGO to carry out an examination in respect of Gammabank’s activities. The audit was carried out by six experts from the National Bank of Georgia, the Revenue Service, the Ministry of the Interior, and the State Audit Office of Georgia, and concerned the period from 1 January 2000 to 1 July 2004. The experts assessed various documents seized from Gammabank’s offices. The examination was attended and assisted by Gammabank’s Deputy Director General M.Kh., Deputy Accounts Director M.K., and Director of the Correspondent Accounts Department N.P. The experts concluded that Gammabank owed the State 11,717,378.3 Georgian laris (GEL –approximately EUR 5,326,115) in damages for various unpaid financial dues. It further noted that the case-file material, including the links between various companies (subsequently found to have been the applicants’ shell companies) and the bank and its personnel, required further investigation. They further noted that the administrative procedures at the bank were in violation of various regulations on processing and storing relevant documents and correspondence. It also noted that an investigation needed to determine the real scope of the legal relationship between Gammabank and General Charter Bank (registered in Montenegro), the latter apparently benefiting from free services from the former without a clear explanation. The report also noted that General Charter Bank had purchased a building from Gammabank on 26 February 2001. Furthermore, a number of loans had been apparently issued without complying with relevant regulations on documenting all the details of the transactions. The report further noted the need to investigate the reasons behind the transfer of several large amounts across various accounts via Gammabank, currency conversions of those amounts, and their subsequent return to the original source. Various large transactions were made without indicating their purpose. 11. As it transpires from the case-file material, on 19 November and 24 December 2004 a judge allowed the prosecutor’s applications for a preliminary injunction to freeze the applicants’ personal bank accounts as well as the accounts and property belonging to various allegedly fictitious companies listed in the charges. The respective judicial orders relied on Article 190 of the Code of Criminal Procedure, and stated that a reasonable suspicion existed that the property in question had been obtained through criminal means (“CCP”, see paragraph 90 below). 12. On 18 December 2004 and 12 October 2005 G.T., an internal auditor of Gammabank and the deputy chairperson of the bank’s supervisory board, stated that he had known the first applicant since 1989 and had started working at Gammabank at the latter’s suggestion. Subsequently, he had been appointed director of the Georgian branch of General Charter Bank, a bank registered in Montenegro, at the first applicant’s suggestion. Subsequently, General Charter Group had also been created which in turn had been a parent company of other smaller companies. G.T.’s duties had included supervising all these organisations. G.T. stated that he had never had any direct contact with the headquarters of General Charter Bank, and in practice he had reported to the first applicant. G.T. signed a sales contract between Gammabank and General Charter Bank concerning an office building in February 2001 at the first applicant’s request. The contract had been aimed at shielding Gammabank from its financial obligations and the potential seizing of that building in order to cover its debts. He noted that he had had some doubts about the activities of General Charter Bank, and he had ultimately quit that position while retaining his post at Gammabank. He also noted that he had signed various documents following requests by the first applicant. 13. In January 2005 the following ten employees of Gammabank were charged with money laundering, business fraud and other financial offences, and were remanded in custody:
(i). Mr Z.G., Director, member of the supervisory board, and Director of the Internal Audit Service;
(ii). Ms I.K., First Deputy Director General of Gammabank in 2000‑02, acting Director General between February 2002 and March 2004;
(iii). Ms M.G., Accounts Director;
(iv). Ms M.K., Deputy Accounts Director;
(v). Ms Ts.M., accounts specialist,
(vi). Ms M.Kh., Director of the Loans Department
(vii). Mr N.B., specialist at the Correspondent Accounts Department;
(viii). Ms M.M., Gammabank’s registrar in charge of keeping the registry of securities, Director of one of the shell companies allegedly owned by the applicants;
(ix). Mr S.J., Director of the Credit Card and Securities Department; and
(x). Ms N.P., Director of the Correspondent Accounts Department. 14. The PGO proposed plea-bargaining agreements, which the above‑mentioned ten accused employees of Gammabank accepted. In January 2005 the ten individuals thus confessed in the presence of their lawyers, as part of separate proceedings in respect of each, to money laundering and other financial crimes in exchange for a prosecutorial recommendation of a lighter penalty. The individuals concerned also incriminated the applicants, and explained, amongst other things, that the profits from several financial dealings had mostly accumulated in the applicants’ personal bank accounts. All the accused stated that they fully understood the nature of the charges to which they were confessing, and their legal implications. The respective agreements were confirmed by the Didube-Chughureti District Court in Tbilisi during the hearing held on 21 February 2005 as the basis for their convictions. The ten individuals in question testified to the absence of any pressure to enter into those agreements. They were all given non-custodial sentences (fines varying from GEL 1,000 to 2,000 (approximately EUR 450 to 900). 15. On 15 February 2005 the second applicant was released on bail of GEL 85,000 (approximately EUR 38,600). 16. On 14 March 2005 the PGO transferred the bill of indictment against the applicants, together with the list of evidence gathered in what appears to have been 118 volumes to a court for their trial. According to the case file, the first applicant had familiarised himself with the first twelve volumes between 18 February and 7 March 2005. The respective report signed by the applicant contained a note made by the latter that the material he had seen had included documents in Russian and English, which he spoke. 2. Judicial proceedings at first instance
(a)  Trial
17. The trial of the applicants initially commenced before the Tbilisi Regional Court, sitting as a court of first instance, but sometime in 2005 it was taken over by the newly established Tbilisi City Court, apparently as a result of a reform of the judicial system. 18. On 9 June 2005 the first applicant applied to be allowed to have a small table in the barred dock or to be seated beyond the metal bars, next to his lawyer, at the latter’s table. The court granted the request and allowed him to be seated outside the dock, next to his lawyer. 19. On 9 June 2005 Ms I.K., First Deputy Director General of Gammabank in 2000-02 and Acting Director General between February 2002 and March 2004 (see paragraph 13 above), was examined by the court. She stated that her appointment had been a formality, and the first applicant had acted as a de facto manager of the bank. She noted having acted on the first applicant’s instructions on several occasions, and described the processes related to the currency trading operations and transfers of money to General Charter Bank in order to conceal certain funds. She further confirmed having issued loans to fifteen non-resident legal entities at the first applicant’s instructions, the latter guaranteeing to her that the companies would repay. I.K. explained that on several occasions she had been assisted in her tasks by M.Kh. She also stated that as she was not a lawyer, she could not give a legal assessment of the described actions. When examined by the trial court again on 6 and 10 January 2006, I.K. stated that she had not known that she had been contributing to money laundering by her activities at Gammabank and that she had agreed to plead guilty because the commission of the offences had been established by the investigation. She noted that she had never been subjected to any form of undue pressure by the prosecution. 20. On 9 June 2005 Ms M.G., Gammabank’s Accounts Director (see paragraph 13 above), was examined. She noted that in practice it had been the first applicant who had owned and managed the bank, and confirmed having made several transfers to General Charter Bank instead of the State budget at the first applicant’s instruction. The sums transferred to that bank would sometimes end up in the accounts of some of the bank personnel who never withdrew it despite signing documents of having done so. M.G. noted that it had not been her duty to check the provenance of sums of money incoming to a client’s account. She did not know who had laundered money. She also stated that she agreed with the results of the audit report (see paragraph 10 above). M.G. also confirmed having issued a false certificate of a deposit in favour of an insurance company owned by the applicants following the first applicant’s order so that the company would obtain a state license; having determined, at the third applicant’s instruction, special tariffs in respect of two of the three alleged shell companies mentioned in the charges; and having discovered various errors in currency trading operations carried out by the bank, which had been detrimental to the bank’s financial interests. M.G. stated that the bank’s office was sold in 2001. M.G. repeated her statement before the trial court on an unspecified date in 2006. 21. As the case-file material suggests, some of the witnesses who were to be examined as part of the proceedings on 9 June 2005 were not isolated from each other in the courtroom. However, the exact number and identities of such witnesses are unclear. The applicants and their lawyer apparently protested against that manner of witness examination, arguing that, in such conditions, the witnesses could easily be influenced by the events occurring and information disclosed during the trial and that their statements could thus lack reliability. It does not appear that their objection was addressed by the trial court, or that the applicants pursued the matter before the appellate and cassation courts. 22. On 15 June 2005 Ms M.K., Gammabank’s Deputy Accounts Director (see paragraph 13 above), was examined. She gave information regarding the fact that currency conversion operations had resulted in financial losses for the bank. She noted that she had carried out M.G.’s orders in respect of various financial operations, and noted that tariffs for various organisations, including those connected to the applicants, had been determined by the first and the third applicants. In response to the second applicant’s question, M.K. noted that the second applicant had not been involved in those transactions but had been in contact with lawyers. M.K. confirmed her statement on 18 January 2006. 23. On 29 August 2005 Mr N.B., a specialist at the Correspondent Accounts Department of Gammabank (see paragraph 13 above), stated that he had been on friendly terms with G.K, the first and the second applicants’ second son. N.B. noted that he had never suspected that his activities, including currency trading at Gammabank, as well as subsequent transfers to various companies, including the three shell companies connected to the applicants, could have constituted a criminal offence. His explanation as to the reasons for agreeing to conclude a plea-bargaining agreement was that he had wanted to avoid “a further protraction of the proceedings”. N.B. also stated that the prosecution had never used any coercion against him but that his right not to incriminate himself had not been explained to him. On 12 September 2005 the PGO opened a criminal case against Mr N.B. for “impeding the administration of justice” by giving inconsistent witness statements (the obstruction-of-justice proceedings). The final outcome of the proceedings against N.B. is unclear. On the following day, 13 September 2005, the applicants challenged before the trial court the initiation of criminal proceedings against Mr N.B., seeing those measures as an attempt at intimidation of all the witnesses in their case. On 18 January 2006 N.B. was heard by the Tbilisi City Court. He confirmed his earlier statements and stated that at Gammabank he had been tasked with managing the accounts of three shell companies established by the applicants, and he had made various currency-exchange operations. 24. On 29 August 2005 Ms M.Kh., the Director of the Loans Department (see paragraph 13 above), was examined. She noted the absence of any undue pressure to testify and gave her description of the processes related to the issuance of loan contracts to fifteen non-resident companies, together with I.K., and her own role in creating false letterheads, and preparing the relevant documentation. She noted that the credit committee had not met but the loans had been issued anyway, and she had signed the relevant documentation because it had been so decided. She did not know whether those loans had actually been transferred to those companies. M.Kh. confirmed never having met representatives of any of those companies, as well as having witnessed the seizure from the bank’s offices of various seals belonging to those companies. M.Kh. averred that she had not known whose money had been laundered, nor about the applicants’ “pre-existing conspiracy” to commit crimes. M.Kh. repeated her statement before the trial court on an unspecified date in 2006. 25. On 29 August 2005 Ms M.M. (see paragraph 13 above) stated that she was the second applicant’s cousin. According to her, she had worked as Gammabank’s securities registrar, and at the second applicant’s initiative had been appointed Director of one of the shell companies which, according to M.M., was owned by the applicants. She had not been aware of any activities of that company, had had no seal, and had signed some documents drafted in English, out of trust towards the Kadagishvili family, even though she did not speak the language. She had put signatures to various documents, including those brought to her on the second applicant’s orders, out of trust towards the applicants. M.M. confirmed the contents of the plea-bargaining agreement but noted that she was not exactly sure of the charges, and that she had not had a prior agreement with the applicants to commit crimes. Ms M.M. also mentioned that while in pre-trial detention she had written a letter to the applicants from prison to apologise for having incriminated them. That letter was admitted into evidence by the trial court, at the applicants’ request. In the letter the witness had apologised to the applicants and had written that the deposition had been drafted by the investigator while she was giving information regarding the documents presented before her and bearing her signature, and that in her weakened condition she had felt psychological pressure to sign the deposition. During the trial M.M. explained that she had written that letter because she had felt remorseful for testifying against her cousin and the Kadagishvili family. She also told the trial court that the second applicant had told her to implicate a dead employee instead of her, but that she had not felt able to do so. On an unspecified date in 2006 M.M. confirmed the content of her statement of 29 August 2005 before the trial court. 26. On 29 August 2005 and 18 January 2006 another employee of Gammabank, Mr S.J., the director of the bank’s credit card and securities department (see paragraph 13 above) was examined. Noting that he could have been involved in certain financial irregularities, the witness stated that his actions had not been deliberate. He confirmed having been designated as director of one of the shell companies registered by the applicants, without having had anything to do with it in practice. In particular, he noted that he had even forgotten about the existence of that company, which had been managed by the first applicant, whom he trusted, and that he had not had the seal of that company; all financial transactions to and from the shell company had apparently been made by the first applicant. He noted that there had been no contract underlying those financial transactions. He did not know whose money had been laundered. 27. On 13 September 2005, Ms N.P., Director of the Correspondent Accounts Department (see paragraph 13 above), was examined by the trial court. She described, among other things, her functions at the bank, testified to the fact that it had been the first applicant who had managed the bank, and described transfers made to General Charter Bank and subsequent transactions that had been made to the accounts owned by the applicants, as well as certain irregularities in granting loans to various clients without adequate documentation. As to pleading guilty as part of the plea-bargaining procedure, she stated “I [had] pleaded so because the investigation had established that I had committed an unlawful act”. The presiding judge enquired into whether the witness had come under any undue pressure to testify, and whether she had been warned that the conclusion of a plea-bargaining agreement would not exempt her from civil liability. N.P. confirmed the absence of pressure, and that she had been given the relevant warning regarding the civil liability, as well as having given her statements in the presence of her lawyers. N.P. confirmed her statement before the trial court on an unspecified date in 2006. 28. On 13 September 2005 Mr A.J., the second applicant’s cousin and the Director of General Charter Group – one of Gammabank’s shareholders allegedly owned by the applicants and used for various illegal transactions mentioned in the charges – was examined by the first-instance court. He noted that the company in question had not carried out any actual activities, had not had an office, and its seal had been stored in the office of the first applicant’s second son (G.K.). A.J. confirmed that he had signed various documents and financial transactions at the first applicant’s request. He noted in respect of another company allegedly owned by the applicants and mentioned in respect of the various episodes that he had also been designated as its director, at the request of the first applicant, but that in practice he had not acted as one. 29. On 27 September 2005 Mr D.M., a former accountant and credit officer at Gammabank, was examined as a witness. He confirmed having had a personal account at the bank, but noted that he had never utilised it, and had not had any money in it. When confronted with records of various incoming and outgoing sums of money in respect of that account, he partly modified his pre-trial statement in which he had incriminated the second applicant. D.M. confirmed having signed blank cashier’s checks in respect of withdrawals of various amounts of money from his personal account in the bank which he had not himself used, but unlike the statement given at the investigation stage, noted that he did not remember at whose instructions he had signed the orders. When confronted with his pre-trial statement implicating the second applicant as the one who had given him the orders, he explained that those had been different documents. During his subsequent examination in court on 6 October 2005, D.M. noted having been charged with obstruction of justice on account of giving inconsistent witness statements, but he had not considered that to be a form of undue pressure by the prosecution. On 13 December 2005 D.M. gave his statement to a prosecutor as part of the obstruction-of-justice proceedings. He noted having met the second applicant after implicating her, and that the second applicant had rebuked him for naming her, and causing her to be placed in pre-trial detention. That, according to D.M., had been the reason for altering his statement as he had felt sorry for the second applicant. The case-file material contains no information regarding the final outcome of the obstruction-of-justice proceedings. Subsequently, on 6 February 2006 D.M. was examined anew before the Tbilisi City Court. He responded to the parties’ and the judge’s questions and maintained his initial statement implicating the second applicant in ordering him to sign blank cashier’s orders, noting that no undue pressure had been exerted upon him by the prosecution. Noting that he had changed the emphasis in his earlier statement in which he had not explicitly pointed at the second applicant, D.M. stated that his latest statement implicating her was to be considered as the authentic and sincere one. In that connection, the applicants applied to the trial court to have a secret recording of a conversation between D.M. and the second applicant admitted into evidence. D.M. stated that he had not been aware of the conversation having been filmed. The application was dismissed on the grounds that the second applicant had not been a victim of a crime, and her version as to the recording having been made by accident had not been convincing to the court. 30. On 6 October 2005 R.S., a former lawyer of the bank noted that signatures in respect of several documents issuing loans had not belonged to her, and she had never seen those documents before. Another former employee of the bank, G.K., Head of the Audit Service, confirmed having had a personal account at the bank, but noted that he had not utilised it for himself, but had signed a withdrawal order in respect of 12,000 United States dollars (USD) at the first applicant’s request, without withdrawing any money. He also confirmed that he had had several seals made at the first applicant’s request. On the same day S.K., the former Director General of the bank, was also examined. He stated that in reality it had been the first applicant who had managed the bank. S.K. explained that he had quit the bank over discovering that certain sums of money to be paid to the State had been relayed to another destination, and generally after developing certain doubts about the legality of various transactions, including those involving General Charter Bank, which had been a foreign bank. 31. On 6 October 2005 Mr Z.G., Gammabank’s former director, member of the supervisory board, and director of the internal audit service (see paragraph 13 above) was examined. He noted that certain sums had been diverted to General Charter Bank’s account instead of the state budget. The witness confirmed having issued various guarantees on behalf of the bank following the first applicant’s instructions. 32. On 18 January 2006 Ms Ts.M., an accounting specialist of Gammabank (see paragraph 13 above) was examined. She confirmed having made transfers to the General Charter Bank’s account and from the latter to the applicants’ accounts in a converted form. 33. On 14 February 2006 the first-instance court dismissed an application by the applicants that a certain financial expert be questioned in respect of the validity of the financial obligations imposed upon the applicants (see paragraph 10 above). The judge reasoned that the defence had only presented a certificate that the named individual had been a qualified auditor. However, the expert in question had no connection to the criminal case, and had not participated in any procedures related to it either as a specialist or an expert, as required by the domestic legislation. 34. On 6 March 2006 the applicants applied to have the trial court include in the case file a number of different documents which, they believed, could support their arguments. The court allowed that application in part, only accepting copies of documents that had been duly certified and were relevant to the applicants’ charges, and rejecting the remainder for failure to comply with those two criteria of certification and relevance. The court also allowed the applicants’ request to have certain documentation retrieved from the bank. 35. On 6 March 2006 the applicants applied to have D.M.’s statements declared as inadmissible evidence on account of being contradictory. The application was dismissed on the grounds that the witness statements had not, in the court’s opinion, been “diametrically opposed” and therefore substantially inconsistent. (b)  Conviction of 18 April 2006
36. On 18 April 2006 the Tbilisi City Court convicted the applicants of the commission, as an organised criminal group, of various crimes imputed to them. 37. The trial court found that the first applicant had created an organised criminal group with the aim of laundering money and carrying out other illegal actions. The group had comprised the first applicant’s wife and two sons (the third applicant and the second son who was at large), and had subsequently involved the employees of Gammabank. Among other things, the first-instance court found that the criminal group had acted in the following manner: various sums of money had flowed from foreign accounts into Gammabank or its correspondent accounts in various banks in Georgia and Russia, allegedly for the purpose of “contributing to the authorised share capital” (საწესდებო კაპიტალის შევსება) or with the source’s alleged intentions to carry out investment activities. Following one of such wire transfers (in the amount of USD 1,230,244) allegedly for the purpose of “contributing to the authorised share capital”, various transfers were made across accounts in January 2004 and subsequently fictitious loan contracts were drawn up in respect of false entities, without those loans actually having been issued, while the money was split into fifteen different amounts, and was eventually returned to the original source in “laundered” form. The documentation seized from the bank pointed to various procedural irregularities in issuing those fictitious loans. The criminal group also used various schemes of money laundering through the shell companies created by it, as well as by means of another bank – General Charter Bank – registered in Montenegro, which had had its licence revoked on 1 August 2002, but the first applicant had illegally used its name, as the criminal group had possessed falsified seals and letterheads in respect of that institution. Some of the laundered money would be accumulated in personal accounts of the employees of the bank which would then be withdrawn by the applicants. In one of the episodes concerning the period between 1 January and 13 July 2004, three companies registered in Russia transferred, through Gammabank’s correspondent account in a Russian bank, 2,095,679,603 Russian rubles (RUB, approximately EUR 58,618,500) to an account in Gammabank in respect of a company registered in the United States of America. The criminal group had owned a false seal of the mentioned American company which was retrieved as a result of the search of the bank’s office. The criminal group made foreign-exchange trades in respect of the sum received in respect of that American company – which were otherwise detrimental to the bank’s interests – with the purpose of laundering and returning money to its original source after various transactions. The thus converted sum was wired to the shell companies owned by the applicants, including the one mentioned in M.M.’s statement (see paragraph 25 above), and was further relayed by means of 2659 wire transfers. Furthermore, certain amounts due to be paid to the State budget were first relayed to the General Charter Bank, converted into foreign currency, wired to another account, finally to be transferred to the applicants’ personal accounts and the shell companies connected to their activities. Certain sums of money were also accumulated in some of the bank employees’ personal accounts, later retrieved by the applicants. The first applicant had also committed insurance fraud in favour of one of the shell companies. As confirmed by the results of the search and seizure of Gammabank’s offices, the group used various falsified letterheads, electronic signatures, and seals of various companies in order to achieve their aims. The court relied on witness statements of former managers of the shell companies, who had been friends or relatives of the applicants, to conclude that it had been the applicants who had set up and managed those companies in order to commit various illegal transactions. The first-instance court, having applied an Amnesty Act in respect of a part of the charges relating to the period before 1 January 2004, found that out of the total of GEL 11,717,378.03 (approximately EUR 5,326,115) dues and damage to the State only GEL 2,919,882.58 (approximately EUR 1,327,228) was to be considered as having been inflicted and payable. 38. The first applicant was found guilty of all charges related to money laundering, business fraud, embezzlement, forgery of various financial documents and abuse of power. He was also convicted, together with the third applicant, of unlawful possession of a gun, which had been discovered by the police during a search of the applicants’ home, and breach of public order. The latter two charges were based on the statements of several witnesses, including two former security guards at the office of the Gammabank. The second and the third applicants were convicted of money-laundering, embezzlement, forgery of various financial documents, and abuse of power in respect of episodes concerning the issuance of the false loans; currency trading and the use of shell companies to conceal the true source, location, movement, and owner of the converted sums; appropriation and laundering of money owed to the State; manufacturing and using of forged seals, signatures, letterheads. The second and the third applicants were acquitted of all charges related to the episodes of insurance fraud, reduction of dues payable to the National Bank, and avoidance of payment in respect of a certain amount to the state budget. The third applicant was also acquitted of the charges concerning the acquisition and storage of firearms. 39. The first applicant was sentenced to eleven years in prison. The second applicant was given a five-year prison sentence suspended on probation. The third applicant was sentenced to nine years in prison. 40. The conviction was primarily based on the statements of sixteen employees of Gammabank, including those of the ten employees who had been convicted of the same financial crimes on the basis of their plea‑bargaining agreements with the prosecution. The Tbilisi City Court additionally noted that the convictions of those ten people had the force of binding precedent, in so far as those final judicial decisions had already established the existence of money laundering and other financial offences committed in direct complicity with the applicants. The court also based its findings on other material, such as the financial and other documents retrieved from the first applicant’s second son’s (G.K.’s) personal computer and those seized from Gammabank, an expert examination apparently carried out in respect of the relevant documents, and a report obtained from the United States Department of the Treasury (“contained in volume 12 of the case file”). The content of the latter and its relevance to the determination of the applicants’ charges was not explained. 41. The conviction of 18 April 2006 also contained a confiscation order in respect of various properties. The Tbilisi City Court ordered, under Article 52 § 3 of the Criminal Code (“CC”, see paragraph 88 below), confiscation of those assets, together with any accrued interest, “which [had been] obtained as a result of the criminal activities”. The list of confiscated property comprised the following items: all property belonging to the shell companies and other companies indicated in the charges that had been contributed to Gammabank’s share capital, sums of money in the applicants’ accounts in Gammabank, as well as in the accounts of the impugned companies, and all those companies’ movable and immovable assets. The confiscation order also concerned the building where Gammabank’s offices had been located, but which, according to the court, “[had been] fictitiously sold to General Charter Bank”. 42. Lastly, the City Court also allowed a civil action of the Ministry of Finance, which had joined the criminal proceedings as an injured party, ordering the applicants to compensate the State for pecuniary damage amounting to GEL 2,919,882.58 (approximately EUR 1,327,228). 3. Appellate proceedings
43. On an unspecified date the applicants appealed against their conviction of 18 April 2006. 44. In their submissions, the applicants called into question various findings of fact and law of the Tbilisi City Court, the court’s assessment of witness evidence, and reliance on the statements of witnesses who had concluded plea-bargaining agreements with the prosecution, as well as the trial court’s statement that the plea-bargaining agreements had had the force of binding precedent. The applicants applied to the Tbilisi Court of Appeal to have some documents concerning Gammabank’s activities seized from the National Bank of Georgia. The applicants also claimed that the statements of Mr D.M., Ms M.M., Mr Z.G., and Ms N.P., should be excluded from the case file on account of their incoherence. In addition, they complained that Mr D.M. had been forced to testify against the second applicant on account of the obstruction‑of‑justice proceedings against him. The applicants also brought the appellate court’s attention to Ms M.M.’s letter in which she had, in the applicants’ opinion, acknowledged that she had been induced to testify against them. The applicants further complained that the confiscation order had been a penalty applied to their case retroactively, in so far as its legal basis – Article 52 § 3 of the CC – had been enacted on 28 December 2005, that is to say after the impugned offences had taken place. The applicants also complained that the lower court had failed to establish a link between their activities at Gammabank and the origin of the confiscated property. 45. As disclosed by the case-file material, the appellate court responded to the applicants’ arguments regarding the admissibility of evidence that while D.M. had altered his statement on one occasion, he had subsequently explicitly confirmed his pre-trial statement before the trial court. Similarly, M.M., had given a pre-trial statement, and then an identical statement to the trial court in which she adequately explained why she had written a letter to the applicants, and confirmed the correctness of her statements. Two other witness statements challenged by the applicants (Z.G. and N.P.) had also been sufficiently consistent. Therefore, no grounds existed for exclusion of those items of evidence. Regarding the retrieval of certain documents, the appellate court responded that the defence had failed to explain the reason behind lodging such a belated application in respect of facts which had been known at the trial stage, and the relevance of the requested documents had been insufficiently explained. 46. In the course of the appellate proceedings, the first hearing being held on 21 July 2006, the applicants requested that a number of agents from the GPO, who had been involved in the investigation, be examined on suspicion of fabricating the case against them. Noting that their case represented the first case involving the charge of money‑laundering, they requested that high-level officials from the FMS and the National Bank of Georgia, who could provide their expert knowledge concerning the elements of that particular financial offence, be examined by the appellate court. These requests were rejected by the Tbilisi Court of Appeal as having no importance for deciding the matter in view of the evidence available in the case file. 47. On 19 September 2006 the applicants requested to admit into evidence a secret recording involving the second applicant and D.M. (see paragraph 29 above). The prosecutor argued that, among other grounds, the recording should be declared inadmissible as it violated the privacy of the witness D.M. and the latter had opposed its release. The applicants’ application was dismissed by the appellate court, which noted that it agreed with the lower court’s findings in that regard (ibid). 48. As further disclosed by the case-file material relating to the appellate proceedings, the first applicant was placed in a dock situated near the judges’ bench. The dock had glass partitions with several openings (and without a ceiling), with one side being adjacent to the table assigned to the defence counsel. The first applicant asked the presiding judge to allow him to have a small table inside the dock. He explained that he had needed extra space in order to arrange the material necessary for his defence. As disclosed by the case-file material, it was indicated to the applicant that the space in the dock did not allow for the placing of a table therein. 49. On 26 October 2006, during the last hearing before the appellate court, the first applicant exclaimed “whose hands are we in?!” The presiding judge found that expression to be in contempt of court and, noting that the applicant had been previously warned on several occasions in respect of various statements made by him, ordered the first applicant’s expulsion from the courtroom. Towards the end of the hearing that day, the lawyer applied to allow the first applicant’s return to the courtroom, so that the latter could make his closing statements, but that application was dismissed on the grounds that the first applicant had been given multiple warnings before being expelled, and he would continue his disruptive behaviour if returned to the courtroom. The defence lawyer made closing statements, and a written copy of the applicant’s statement was included in the case file. 50. At the same final appellate hearing of 26 October 2006 the applicants’ lawyer stated that he needed to familiarise himself with the investigative document obtained from the United States Department of the Treasury mentioned in the lower courts’ judgments. The prosecutor noted that the material had been included in the case file. It does not appear that the request was addressed by the court. 51. On 27 October 2006 the Tbilisi Court of Appeal delivered a judgment, dismissing the applicants’ appeal and upholding their convictions and sentences. Noting that no new evidence had emerged at the appellate level, the court fully subscribed to the lower court’s factual assessment of the case and to its legal considerations. As regards the confiscation order, the appellate court reasoned that, whilst admittedly Article 52 § 3 of the CC had come into force after the offences had been committed, the provision could nevertheless apply retroactively, in so far as the issue of an additional penalty did not affect the scope of the applicants’ criminal liability as such. 4. Appeal-on-points-of-law proceedings
52. On an unidentified date the applicants lodged an appeal on points of law against the Tbilisi Court of Appeal’s judgment of 27 October 2006. In their appeal the applicants primarily contested the lower courts’ findings of fact and their assessment of the evidence and the relevant domestic law. The applicants also complained about the lower courts’ decision to admit into evidence the witness statements given by M.M. and D.M., the appellate court’s refusal to admit into evidence the video recording provided by the second applicant in respect of D.M., the potential negative impact that the obstruction-of-justice proceedings may have had upon D.M.’s decision to testify, the first applicant’s expulsion from the courtroom by the appellate court, and the legality of the confiscation order and the fines imposed upon the applicants. The appeal on points of law also called into question the severity of the applicants’ sentences compared to those individuals who had concluded plea-bargaining agreements with the prosecution. The applicants requested examination on the merits based on the importance of their case as the first case involving the offence of money laundering in Georgia. 53. On 2 February 2007 the Supreme Court rejected the applicants’ appeal on points of law as inadmissible. The court stated, without elaborating, 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 examine[d] the case with major procedural flaws which could have significantly affected the outcome of that examination.”
5. Subsequent developments
54. On 18 April 2009 the third applicant was pardoned and released from prison. 55. On 10 November 2012 the first applicant was released from prison, apparently as a result of having been granted conditional early release. 56. As it transpires from the case-file material, sometime in 2015 the Chief Prosecutor’s Office opened an investigation into exceeding official powers as part of the criminal investigation carried out in the applicants’ case. The investigation appears to be ongoing. B. Conditions of the applicants’ detention and their health problems
1. As regards the first and the third applicants
(a)  Conditions of detention and medical care at various prison institutions
57. After their arrest on 20 July 2004, the first and the third applicants were placed in a short-term remand prison belonging to the State Security Service. 58. On 20 July 2004 the first applicant was seen by a doctor who noted that he had had type II diabetes since 1994, and had undergone spinal surgery. The doctor concluded that the first applicant was fit to participate in further investigative measures. The first applicant’s other health problems, such as the ischemic disease of the heart, cardiac insufficiency, and arterial hypertension (high blood pressure), were noted on a related medical chart. (i)  Tbilisi prison no. 5
59. On 23 July 2004 the first and the third applicants were transferred to cell no. 88 of Tbilisi prison no. 5 (“Tbilisi prison”). According to the applicants, the cell was severely overcrowded, with approximately forty-eight inmates sharing the cell that measured approximately 50 sq. m. They had to take turns sleeping. There was no natural light in the cell, nor air circulation, as the window was covered by external metal shutters. The shutters heated up in summer making it harder to breathe. There was a makeshift shower and toilet inside the cell which was not isolated and therefore made it impossible to use the toilet when someone was eating, and generally rendered the conditions in the cell even more unpleasant. The cell was infested with lice, various insects, and mice. The applicants were not allowed to have outside walks during their detention. 60. On 7 August 2004 the first applicant was transferred from cell no. 88 of Tbilisi prison to the prison hospital. On 14 August 2004 the third applicant was also transferred from cell no. 88 of Tbilisi prison to the prison hospital. The case-file material does not contain information regarding the conditions at the prison hospital or the treatment administered to the first and the third applicants at that institution. 61. According to the case-file material, on 18 September 2004 the third applicant was returned to Tbilisi prison. As it appears from the case-file material, he was placed on the medical ward of that prison. On 16 October 2004 the first applicant was also returned to Tbilisi prison. As it appears from the case-file material, he was placed in cell no. 130 (see paragraph 63 below) until 19 October 2004 – the date of his transfer to the medical ward of the prison in question. The case-file material does not contain information or the applicants’ account regarding the conditions at the medical ward of the Tbilisi prison. 62. On 27 October 2005 the first applicant was returned from the medical ward of Tbilisi prison to cell no. 130. He stayed there until 29 November 2005 (with the exception of days spent at a private clinic between 22 and 25 November 2005). The third applicant was also placed in cell no. 130 between 25 October and 25 November 2005. 63. According to the two applicants, cell no. 130 was infested with lice and various insects. It did not have a toilet inside it, and access to the one located outside was limited to three times a day at specific timeslots, which was not sufficient, in particular for the first applicant in view of his diabetes. The cell was neither ventilated in summer nor heated during the winter. It lacked daylight and was filthy. The two applicants shared that cell, which measured 10 sq. m, with four other inmates who were heavy smokers. The applicants were not allowed to have outside walks during their detention. No medical records appear to have been made during the first and the third applicants’ placement in cell no. 130. 64. In so far as the first applicant’s health condition and medical treatment administered to him in the medical ward are concerned, the relevant medical documentation reveals that the first applicant had complaints in respect of general weakness, headaches, dizziness, pain in the chest area, dry mouth, weight loss, and joint weakness. His condition was monitored by the duty doctor, and various medications were prescribed. He was also seen by an endocrinologist and a cardiologist on several occasions. Between 22 and 25 November 2005 the first applicant was placed in an endocrinology department of a civilian clinic. His diagnosis of type II diabetes since 1994, ischemic disease of the heart, cardiac insufficiency, and high blood pressure was confirmed. He was prescribed treatment with various medications and a special diet. 65. On 2 December 2005 a medical report was issued by a private expert in the field of endocrinology in respect of the first applicant’s state of health following a request by the latter. According to the expert opinion based on the first applicant’s medical history, various health issues, including liver and kidney problems, from which the first applicant was suffering developed “probably owing to irregular treatment of the [applicant’s] diabetes”. The expert recommended that the first applicant start insulin therapy under the supervision of an endocrinologist. 66. Several medical notes made on various subsequent dates indicate that the first applicant was following a diabetic diet, without providing any further details. The first applicant also appears to have started receiving insulin injections sometime in the first half of 2006. His blood-sugar levels were monitored regularly. 67. As to the third applicant’s health condition and medical treatment administered to him in the medical ward, he was diagnosed with a (pre-existing) pituitary adenoma (a benign brain tumour) and made complaints of weakness, insomnia, and permanent headaches. The third applicant’s condition was monitored by a duty doctor. He also appears to have been seen by a neurosurgeon on several occasions. A medical report dated 25 October 2005 mentioned the recommendation of the neurosurgeon that computed tomography (a CT scan) be carried out, but added that “it ha[d] been impossible to implement” the recommendation, without elaborating on the possible reasons. On 29 November 2005 a report drawn up following direct observation by a neurosurgeon, an ophthalmologist, and an endocrinologist, and the results of a computer tomography, the third applicant’s condition was assessed as “approaching a satisfactory level”. The medical experts concluded that it was necessary to administer prolonged conservative therapy under the supervision of an endocrinologist, neuropathologist, and an ophthalmologist, and necessary to periodically perform a brain scan. (ii)  Rustavi prison no. 2
68. On 7 December 2006 the first and the third applicants were transferred to an ordinary prison cell in Rustavi prison no. 2. The general living conditions – personal space, hygiene, daylight, ventilation, heating and so on – were, as acknowledged by the applicants, better than in the prison in Tbilisi. The two applicants were allowed to take outdoor walks in the yard of Rustavi prison no. 2 every day, between 11 a.m. and 6 p.m., and to receive family visits once a month. The change of bedlinen was infrequent, but the inmates had washing facilities at their disposal. However, the quality of the food they received was, according to the applicants, wholly unsatisfactory, especially in view of their health problems. 69. On 14 December 2006 the first applicant complained to the management of Rustavi prison no. 2 that insulin injections had been administered to him with two-hour delays in the course of the preceding week and that this irregularity might have had a harmful effect on his health. He also denounced the fact that the prison had not been providing him with the requisite diabetic diet. The applicant stated that if the prison management was unable to procure the required products, his family should be granted leave to post the necessary food to him. It does not appear that the applicant received a reply. 70. In so far as the first applicant’s medical treatment at Rustavi prison no. 2 is concerned, no medical history appears to have been drawn up in respect of his placement at the prison in question. According to several individual medical notes available in the case file, the first applicant was seen by doctors on some occasions. In particular, on 18 December 2006 the first applicant had a near‑hypoglycaemic coma and was seen by a duty doctor of the prison who gave him certain medication to that end. The hypoglycaemic episode repeated itself on 20 January 2007. The duty doctor noted the need to prescribe a diabetic diet. On 5 April 2007 the first applicant had another hypoglycaemic episode and was given a dose of sugar by the duty doctor. On 20 April 2007 the first applicant requested that he be seen by an endocrinologist in view of the impossibility for him to regulate the sugar level in his blood. On 6 June 2007 the first applicant was seen by a doctor who gave him medication for high blood pressure. It was noted that the applicant continued to receive treatment in accordance with his prescriptions, without elaborating further. It is unclear whether the doctor in question was an endocrinologist. On 14 July 2007 the applicant complained to the prison management that because of the lack of fresh air and unbearable heat in his cell, he had suffered cardiac arrest during the previous night. He requested an urgent cardiological examination, including electrocardiography. It does not appear that the letter was answered by the relevant authorities. It is unclear whether the applicant was seen by a cardiologist. No information is available as to the prescriptions mentioned in the duty doctor’s notes, how frequently the medication was administered, to what extent the applicant was supervised, and what the treatment plan had been. 71. As regards the third applicant, a medical note regarding an examination carried out on 8 February 2007 at a private clinic disclosed that in addition to the original diagnosis of a benign brain tumour, he also had stones in the gallbladder, a gastric ulcer, and inflammation of the upper part of the small intestine. No medical history or information is available as to whether these diagnoses were followed up on, what treatment was made available to the third applicant, or if there was any treatment plan in place in his regard. 72. On 9 July 2007 the applicants’ representatives before the Court (“the representatives”) asked the management of Rustavi prison no. 2 to provide them with a copy of the first and the third applicants’ medical files recording the treatment provided to them in prison. The representatives also enquired as to whether the first applicant had been regularly examined by an endocrinologist and provided with the requisite diet. They brought the prison management’s attention to the fact that the third applicant had been known to have been suffering from pneumonia and severe kidney pain for two months, thus also requiring a special diet in that regard. 73. On 12 and 13 July 2007 the second applicant asked the prison authority to grant various medical specialists leave to enter Rustavi prison no. 2 in order to conduct comprehensive medical checks and laboratory tests on her husband and son with the aim of developing their treatment plan. She specified that she was ready to cover the costs of that treatment. It does not appear that the letter was answered by the relevant authorities. 74. In a letter dated 24 July 2007, the management of Rustavi prison no. 2 replied to the representatives’ letter dated 9 July 2007, stating that the state of health of the first and the third applicants was admittedly of concern, but nevertheless was stable, and that they had benefited from medical care on an outpatient basis from the date of their arrival at that prison. It was noted that the applicants had been regularly provided with the relevant drugs and symptomatic treatment. As regards the first applicant’s situation, he had had episodic worsening of his health which had been addressed with symptomatic treatment. The letter acknowledged that the prison management’s medical staff did not include an endocrinologist. Yet, the first applicant had still benefited, on one occasion, from an examination by such a specialist, who had been called in from a civil hospital. The endocrinologist did not recommend any adjustment to the conventional outpatient treatment which had already been provided to the first applicant in prison. A specialist would see the first applicant again, should the group of medical experts of the Prison Service visit the prison again. As concerns the third applicant, he had been treated for pneumonia, of which he had complained on 5 July 2007, and the results of the medical examination of 8 February 2007 (see paragraph 71 above) were reported. 75. The prison management expressly acknowledged in its letter dated 24 July 2007 that the prison had been unable to provide the first and the third applicants with diets necessary for their conditions, and the question of diet remained “an issue”. As to the representatives’ request for a copy of the applicants’ medical files, it was left unanswered. 76. On 7 August 2007 the representatives requested that the Ministry of Justice, the authority in charge of prisons, conduct a comprehensive medical examination of the first and the third applicants, with the participation of the relevant medical specialists, at the State’s expense. The representatives also reiterated their request for a copy of the applicants’ medical files. The request appears to have been left unanswered. 77. On 14 August 2008 the first applicant complained to the management of Rustavi prison no. 2 of delays in his mealtimes. He specified that, as part of his insulin treatment, it was of vital importance for him to receive meals at the same fixed hours, shortly after receiving insulin injections. The content of his complaint disclosed that Rustavi prison no. 2 had granted, as of March 2007, leave to his family members to procure him products for his diet. However, the applicant was complaining of the prison management’s refusal of 14 August 2008 to let the applicants receive the products procured by his family. It does not appear that the applicant received a reply to his complaint regarding mealtimes. (b)  Proceedings before the Court concerning the applicants’ state of health
78. On 15 August 2007 the representatives informed the Court that the first and the third applicants’ states of health had further deteriorated, given the lack of adequate treatment and requisite diet in Rustavi prison no. 2. 79. On 22 August 2007 the President of the Section advised the Government of Georgia, under Rule 39 of the Rules of Court, in the interests of the parties and the proper conduct of the proceedings before the Court, to transfer the first and the third applicants to a medical establishment capable of dispensing adequate medical treatment for each of their diseases. The President also invited the Government, under Rule 54 § 2 (a) of the Rules of Court, to provide the Court, by 12 September 2007, with detailed facts and figures concerning the financing of the two applicants’ medical treatment in prison. 80. On 12 September 2007 the Government submitted, as regards the first applicant, that there was no need for his placement in a medical establishment, even a prison hospital, as he had already been moved to the recently refurbished Rustavi prison no. 2, where the conditions of detention fully corresponded to the relevant international standards. The Government added that Rustavi prison no. 2 had had a medical wing which had consisted of three patient rooms and that the prison’s medical staff had been composed of eight doctors (one surgeon and seven general practitioners) and a dentist. The first applicant was placed there following the indication of the interim measures by the Court on 22 August 2007. No medical documentation was submitted in respect of the first applicant’s stay at the medical wing of Rustavi prison no. 2. The Government also informed the Court that, given the first applicant’s advanced stage of diabetes, a special medical panel set up by an order dated 11 September 2007 of the Minister of Justice had convened and prescribed him with the special diet, low in fat and carbohydrates. The Government stated the first applicant would immediately be placed in a medical establishment in case of need. The Government also submitted a medical note dated 7 September 2007 by the duty doctor of Rustavi prison no. 2 in respect of the first applicant which mentioned that the latter was an insulin-dependent chronic patient with type II diabetes, ischemic disease of the heart, and high blood pressure. He was, according to the note, under permanent ambulatory medical supervision from the date of his placement at the institution in question, and was provided with the medication prescribed in respect of his diseases. 81. With respect to the third applicant, the Government informed the Court that on 1 September 2007 he had been placed in the prison hospital, where, as confirmed by the submitted medical file, he had started to receive the requisite treatment for his gastric and other disorders. The Government also stated that the costs of the adequate and sufficient treatment of the two applicants had been fully covered by the prison authority. 82. On 18 September 2007 the third applicant refused to undergo an open surgery to remove the gallbladder, offered free of charge at the prison hospital. Instead, on 30 October 2007 the third applicant underwent a laparoscopic removal of the gallbladder at his own expense. 83. On 24 December 2008 the applicants complained before the Court of the Government’s failure to submit detailed data concerning the financing of the first and the third applicants’ treatment in prison, contrary to what had been requested from them by the President of the Section on 22 August 2007. That fact, according to them, proved that the majority of the costs of the two applicants’ treatment had been incurred by their family. They submitted copies of the first applicant’s reiterated complaints addressed to the medical staff of Rustavi prison no. 2 in which he had asked the prison authority to provide him, free of charge, with fourteen different types of medication allegedly prescribed to him by a medical panel. They also submitted to the Court a copy of receipts from pharmacies in support of the claim that the costs of the relevant drugs and medical examinations had been incurred by the second applicant. 84. On 23 February 2009 the Government reiterated that the first applicant had been provided with adequate medical care from the very beginning of his detention without submitting any new documents in support of their claim. 85. On 28 October 2010 the first applicant was placed in the prison hospital. On an unspecified date he was transferred to Rustavi prison no. 17 following repeated requests on his part to that end. The Government’s subsequent submissions suggested that the first applicant had not complied with the diabetic diet in September and October 2011. 2. As regards the second applicant
86. After her arrest on 21 September 2004 the second applicant was initially placed in a short-term remand prison belonging to the State Security Service. On 24 September 2004 she was transferred to Tbilisi prison no. 5, remaining there until 15 February 2005, the date on which she was released on bail. On 18 April 2006 she received a non-custodial sentence (a five-year prison sentence suspended on probation - see paragraph 39 above). II. RELEVANT DOMESTIC LAW AND PRACTICE
87. Article 52 of the CC (confiscation of an object or an instrument of a crime), as in force at the time of the commission of the crimes that the applicants were convicted of, provided as follows:
“1. Confiscation of an object or an instrument of a crime shall mean the confiscation, without compensation, of an item owned or rightfully held by a convicted person [which was] used to commit an intentional crime. 2. Confiscation of an item shall be decided by a court. Such a measure may be applied on the basis of the State and public necessity or for the protection of the rights and freedoms of individuals or in order to prevent the commission of a new crime.”
88. Following the amendments on 28 December 2005, Article 52 of the CC provided as follows:
“1. Confiscation of property shall mean the confiscation without compensation in favour of the State of the object and/or instrument of the crime or of the article intended for the commission of a crime, and/or of property acquired through criminal means. 2. Confiscation of the object and/or instrument of the crime, or of the item intended for the commission of a crime shall mean the confiscation without compensation in favour of the State of property owned or rightfully held by the accused or convicted person, which was used for the commission of an intentional crime or of property that was in any form intended for this purpose. The object and/or instrument of the crime, or the item intended for committing a crime shall be confiscated by a court for the commission of all intentional crimes provided for by this Code, when the object and/or the instrument of the crime or the item intended for committing a crime is available and its confiscation is necessary due to public and social interest or for protecting the rights and freedoms of individuals or for preventing new crimes. 3. Confiscation of property acquired through criminal means shall mean the confiscation without compensation from the convicted person in favour of the State of the property (all property and intangible assets as well as title deeds to property) acquired through criminal means, also of any proceeds derived from such property or the property of the equivalent value. The court shall order the confiscation of property acquired through criminal means for all intentional crimes provided for in this Code, if it is proved that such property has been acquired by means of a crime.”
89. Article 194 of the CC, as it stood at the material time, defined money laundering as “giving a legal form to money or other property, as well as the concealment [of] the source, location, placement, allocation, [or] movement of illicit income, real owner or possessor of property, or [of] a property right”. 90. The Code of Criminal Procedure (1998) (“the CCP”), as it stood on 1 January 2004, provided as follows:
Article 113 § 3 [Circumstances established without proof. Res judicata effect]
“Facts to which a res judicata [quality is attached] can be rebutted by one of the parties to the proceedings, a judgment, or a decision, if such facts are inconsistent with the evidence assessed before a court and go against the judges’ inner conviction.”
Article 121 (material evidence)
“1. Material evidence includes any item which, owing to its nature and features, provenance, place and time of discovery, [or] traces left on it, is linked to the factual circumstances of a case and which may aid in the finding of truth. 2. Material evidence is an instrument of a crime, object of the criminal action or a trace left on it, criminally obtained money and valuable items, as well as any other item which may be a means of the discovery of a crime, perpetrator, or a means to refute the charges ...”
Article 124 (decision concerning material evidence upon the completion of proceedings)
“In a judgment, [a] decision ... concerning the termination of proceedings the question of material evidence shall be decided as follows:
(a) if an instrument of a crime has no value, it shall be destroyed, if it has value, it shall be subjected to procedural confiscation; ... (d) Money and valuable items obtained through criminal means shall be used to compensate for the damage inflicted by the crime, [or] transferred to the State if the person to whom the damage was inflicted is not known.”
Article 190 (object and grounds for a preliminary injunction to freeze assets)
“1. In order to guarantee a civil lawsuit, monetary sanctions, as well as procedural confiscation and criminal compulsory measures, a court may issue a preliminary freezing order in respect of property, including bank accounts, belonging to a suspect, accused, or a person standing trial, [or] a person materially responsible for his or her actions, if there is information, that the property will be hidden or spent, or that the property had been obtained through criminal means. ...”
Article 201 (return of property upon rehabilitation)
“If an accused or a sentenced person has been rehabilitated, the frozen property ... shall be returned in natura, or, if this is impossible, in monetary form, based on the average market price as assessed on the day of rehabilitation.”
91. The following provisions were added to the CCP as per amendments of 13 February 2004:
Article 44 (definition of terms)
“... 49. Confiscation of property acquired through criminal means – confiscation of property, as well as income, shares derived from such property, or monetary means equivalent to such property.”
Article 509 (resolutive part of a conviction)
“1. The resolutive part of a conviction shall indicate: ... (n) [a] decision on the forfeiture of property acquired through criminal means and procedural confiscation.”
92. In a case concerning the retroactive application of Article 52 of the Criminal Code, the Supreme Court’s decision of 2016 (Supreme Court, Chamber of Criminal Cases, Supervisory Decision, no. 17აგ.-2016, 12 July 2016) contains the following quote:
“The Cassation Chamber does not agree with the position that the criminal-case file does not contain a single item of evidence which would confirm that [the author of the appeal on points of law] acquired property by criminal means, and a legislative amendment which worsened his/her legal position had been applied in respect of the confiscation of property (reference was made to Article 52 of the Criminal Code which was amended on 28 December 2005), as it considers that the property was confiscated [by the first-instance court’s judgment] not as an additional penalty, but as illicitly obtained, which had been treated as material evidence ...”
93. In a case concerning the application of the principle of res judicata in criminal proceedings (Supreme Court, Chamber of Criminal Cases, no. 2კ-76კოლ.-02, 25 December 2001), the Supreme Court noted that according to Article 113 of the Code of Criminal Procedure, facts established in a final judgment could be reviewed in a different set of criminal proceedings if contested by one of the parties to the latter set of proceedings. Such facts would not have a res judicata quality if they were found to be inconsistent with the evidence examined as part of the latter proceedings and went against the relevant judges’ inner conviction. The Supreme Court thus refused to accept facts established by a final judgment in proceedings to which the person concerned had not been a party as having a res judicata quality in the case before it, reasoning that the person in question had consistently contested such facts, and the prosecution had failed to adduce any other evidence to prove his guilt as part of the criminal proceedings against him. 94. The relevant domestic legal provisions concerning plea-bargaining agreements, as in force at the material time, were set out by the Court in the case of Natsvlishvili and Togonidze v. Georgia (no. 9043/05, § 49, ECHR 2014 (extracts)). III. RELEVANT INTERNATIONAL DOCUMENTS
95. The relevant parts of the Report of 30 June 2005 (CPT/Inf (2005) 12) on the visit to Georgia carried out by the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment (“the CPT”) from 18 to 28 November 2003 and from 7 to 14 May 2004, and of the Report of 25 October 2007 (CPT/Inf (2007) 42) on the visit to Georgia carried out by the CPT from 21 March to 2 April 2007 were summarised in the cases of Ramishvili and Kokhreidze v. Georgia (no. 1704/06, § 70, 27 January 2009) and Ghavtadze v. Georgia (no. 23204/07, § 56, 3 March 2009). 96. The relevant parts of the Human Rights Watch Report “Undue Punishment: abuses against prisoners in Georgia.” (Volume 18, No. 8(D) September 2006) were summarised in the case of Ramishvili and Kokhreidze (cited above, § 71). THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
97. The first and the third applicants complained that they had not received adequate medical care in prison. They further submitted that the conditions of their detention had been contrary to the standards established under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
98. The Government contested that argument. A. Admissibility
1. The parties’ submissions
99. The Government submitted that the first and the third applicants had failed to exhaust domestic remedies in respect of their complaints concerning the alleged inadequacy of the medical treatment received in prison. In particular, one of the potential courses of action that the applicants could have taken had been to institute judicial proceedings and request performance of an action by a State agency. They submitted one illustrative case of a first-instance court dated 12 February 2010 which had granted an inmate’s request to have certain medical procedures carried out in a private clinic; decisions of first-instance and appellate courts from 2007 and 2008 which had granted an inmate’s request not to be transferred to a high-security prison; and a set of judgments from 2007 in respect of internally displaced people in which the Ministry of Labour, Health, and Social Protection had been obliged to take various actions in favour of plaintiffs. The second remedy that the applicants could have pursued had been to institute proceedings for damages in relation to the allegedly inadequate medical care received in prison. That remedy was, according to the Government, still open to the applicants to pursue. 100. The two applicants submitted that the remedies used in the various individual cases referred to by the Government were ineffective in practice and irrelevant in the context of healthcare complaints in prison. The Government had failed, according to the applicants, to demonstrate that the illustrative decisions had ever been enforced. Furthermore, the Penal Code, as it stood at the material time, did not provide for clear guidelines regarding the complaints procedure. Nevertheless, the applicants did complain, on various occasions, to the relevant prison authorities, but to no avail. 2. The Court’s assessment
(a)  Medical care in prison
101. The relevant general principles regarding the rule of exhaustion of domestic remedies are set out in Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, §§ 69-77, 25 March 2014), among other authorities. 102. Turning to the circumstances of the present case, the Court agrees with the applicants that the Government had failed to demonstrate that the illustrative decisions referred to by it had ever been enforced. Furthermore, the Court has already assessed the effectiveness of the remedies referred to by the Government (see Goginashvili v. Georgia, no. 47729/08, §§ 51-61, 4 October 2011). In this connection, the core of the first and the third applicants’ complaint relates to the period prior to 1 October 2010, the date when the Penal Code entered into force and established a clear complaints procedure (ibid., §§ 58 and 60). Considering that the applicants alerted the prison authorities to their health-related issues and needs, and their dissatisfaction with the care that had been made available to them (see paragraphs 64-65, 67, 69-70, and 72-77 above), the Prison Service was well aware of the first and the third applicants’ medical conditions necessitating treatment and of their complaints in that connection (see Melnik v. Ukraine, no. 72286/01, § 70, 28 March 2006; Sławomir Musiał v. Poland, no. 28300/06, § 74, 20 January 2009; and Hummatov v. Azerbaijan, nos. 9852/03 and 13413/04, § 92, 29 November 2007). 103. Therefore, the first and the third applicants’ complaint regarding the alleged inadequacy of medical care in prison is not inadmissible under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies. Nor is it manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible. (b)  Conditions of detention
104. The Court has already considered that it has jurisdiction to apply the six-month rule of its own motion even if the Government have not raised that objection (see Assanidze v. Georgia [GC], no. 71503/01, § 160, ECHR 2004‑II; Sabri Güneş v. Turkey [GC], no. 27396/06, § 29, 29 June 2012; and Fábián v. Hungary [GC], no. 78117/13, § 90, 5 September 2017). It will therefore assess the first and the third applicants’ compliance with that rule in respect of their complaints concerning conditions of detention at various prison institutions. (i)  Short-term remand prison
105. The Court observes that the first and the third applicants’ complaints concerning their detention conditions at the short-term remand prison belonging to the State Security Service was submitted outside the six-month time-limit. In particular, the two applicants were placed in the mentioned institution upon their arrest on 20 July 2004, and were transferred to Tbilisi prison no. 5 on 23 July 2004 (see paragraphs 57 and 59 above). By contrast, the application was lodged with the Court on 3 April 2006. This part of the first and the third applicants’ complaints under Article 3 must therefore be rejected under Article 35 §§ 1 and 4 of the Convention. (ii) Tbilisi prison no. 5
106. As regards the first and the third applicants’ placement in Tbilisi prison no. 5 between 23 July 2004 and 7 December 2006, the Court will consider whether their detention in that facility can be considered continuous (see Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, §§ 71-78, 10 January 2012) in view of their temporary stays at the prison hospital and the medical ward of that prison (see paragraphs 60-61 above). 107. The Court notes that the first and the third applicants were initially placed in cell no. 88 which had allegedly been severely overcrowded and had had various problems related to hygiene (see paragraph 59 above). However, in August 2004 they were transferred to the prison hospital. The first applicant spent slightly more than two months and a week there, while the third applicant stayed at the prison hospital for slightly more than one month (see paragraphs 60-61 above). While both applicants were subsequently returned to Tbilisi prison, the first applicant was placed in ordinary prison cell no. 130 only for three days before being transferred to the medical ward of that prison on 19 October 2004, and the third applicant was immediately placed on the medical ward on 18 September 2004 (see paragraph 61 above). It was only in October 2005, approximately a year after their placement at the medical ward, that the two applicants were transferred to ordinary prison cell no. 130 (see paragraphs 61-63 above). Considering that the applicants’ detailed account of the allegedly unfavourable prison conditions only concerns ordinary cells no. 88 and no. 130, and given the difference between the detention regimes of an ordinary prison cell and that of a medical wing of a prison, the Court considers that the applicants’ lengthy stay at the medical ward ended, for the purposes of the calculation of the six-month time-limit, the “continuous situation” in respect of the conditions of their detention in ordinary prison cells in July-August and October 2004 (see Ananyev and Others, cited above, § 77, in fine). 108. Accordingly, as the application was lodged with the Court on 3 April 2006, the first and the third applicants’ complaints regarding the prison conditions at ordinary prison cells in July-August and October 2004 were submitted more than six months after the respective detention periods had ended and such complaints must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 109. As concerns the applicants’ complaints concerning the conditions of detention during their stay in cell no. 130 in October and November 2005, these complaints were submitted within the six-month time-limit. The latter complaints are not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. (iii)  Rustavi prison no. 2
110. Considering the above-noted date of lodging of the present application with the Court and the first and the third applicants’ placement in Rustavi prison no. 2 on 7 December 2006, their complaints in respect of that prison were also submitted within the six-month time-limit. 111. However, the Court notes that the core of the two applicants’ complaints with respect to the conditions of detention at Rustavi prison no. 2 concerned the allegedly poor diet at that prison given the two applicants’ health conditions (see paragraph 68 above and paragraphs 114‑115 below). This aspect of their submissions will therefore be addressed as part of their complaints relating to the adequacy of medical treatment in prison (see paragraphs 125 and 129 below). 112. As to the conditions of detention at Rustavi prison no. 2, the applicants admitted to a marked improvement compared to the conditions at Tbilisi prison no. 5 (see paragraph 68 above). The Court takes note of the description of those conditions given by the two applicants (see paragraph 68 above) and the absence of a detailed and substantiated complaint on their part (see paragraph 118 below), and considers that no arguable issue arises under Article 3 of the Convention in that regard. This part of the application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. (c)  Conclusion regarding admissibility of complaints relating to the conditions of detention
113. In the light of the foregoing, the Court declares admissible the first and the third applicants’ complaints concerning the conditions of detention during their stay in cell no. 130 of Tbilisi prison no. 5 in October and November 2005. B. Merits
1. The parties’ submissions
(a)  Medical care in prison
(i)  The first and the third applicants
114. As regards the medical treatment in prison, the first applicant submitted that, especially between the years 2004 and 2007, he had not been provided with adequate care in respect of his diabetes – with which he had been diagnosed before incarceration – as well as various other health issues of his. Daily insulin injections had been routinely administered with a delay of thirty to sixty minutes. Those injections, as well as other medication and examinations for his various health conditions, had been, according to the first applicant, provided to him by his family rather than the State. Until the indication of an interim measure by the Court, the first applicant had been checked by a doctor on several occasions only. The first applicant further maintained that he had not received the special diet required by his health condition as prescribed by a specialist doctor. 115. The third applicant submitted that his state of health had deteriorated during the time spent in prison and that the Government had failed to administer the necessary treatment and a special diet, as expressly admitted by the prison authorities. He also submitted that he had refused to undergo surgery offered to him by the Government following the indication of interim measures by the Court as the Government had failed to provide him with a less painful but more expensive procedure which he eventually underwent at his own expense. In any event, that procedure was, according to the third applicant, belated. (ii)  The Government
116. The Government maintained that the two applicants had been provided with adequate medical treatment at all times. In particular, in so far as the first applicant was concerned, the insulin injections, while brought into prison by the first applicant’s family, were given to the latter as part of the Government’s anti-diabetes program. Furthermore, all the necessary medication prescribed by relevant doctors had been provided to the applicant by the State. The first applicant’s family had been able to supplement the medication as and when they had chosen. The receipts submitted in support of their claim regarding the availability of medication did not reveal who it had been purchased by or for whom. As regards the first applicant’s special diet, it had been provided following a recommendation of a panel of experts on 11 September 2007 and administered accordingly, even though the first applicant’s shopping history in prison suggested, according to the Government, that he had not complied with the diet in September and October 2011. As regards the third applicant, his state of health was monitored adequately, and treatment provided in accordance with the doctors’ recommendations. 117. In support of their argument, and in so far as the two applicants’ stay at Tbilisi prison no. 5 was concerned, the Government referred to the applicants’ medical history relating to their time in the medical ward of that prison. As concerns the applicants’ placement in Rustavi prison no. 2, the Government relied on a medical note issued by a duty doctor of that prison, and four medical notes made in respect of the first applicant throughout his stay at the prison in question. As concerns the surgery referred to by the third applicant, the Government submitted that it had been the third applicant’s choice to have opted for an expensive procedure rather than the standard surgery offered by the Government at the expense of the State. (b)  Conditions of detention
118. The first and the third applicants submitted that the conditions of detention, and especially the severe overcrowding, in cell no. 130 of Tbilisi prison no. 5 had been wholly inadequate. 119. The Government submitted that the conditions of detention in all the relevant penal institutions had been satisfactory, without elaborating on the conditions of detention in Tbilisi prison no. 5. 2. The Court’s assessment
(a)  Medical care in prison
120. The relevant general principles concerning the adequacy of medical treatment in prisons were summarised by the Court in the cases of Blokhin v. Russia ([GC], no. 47152/06, §§ 135-40, ECHR 2016, with further references), Goginashvili (cited above, §§ 69-70), Jeladze v. Georgia (no. 1871/08, §§ 41-42, 18 December 2012) and Irakli Mindadze v. Georgia (no. 17012/09, §§ 39-40, 11 December 2012). (i)  The first applicant
121. Turning to the circumstances of the present case, 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. 122. The Court takes note of the Government’s submission that the insulin injections, while brought into the prison by the first applicant’s family, were provided to them by the State as part of its anti-diabetes program. The first applicant did not dispute being part of that program. Nor did he argue that his family had not obtained the insulin injections through that program. As concerns the allegation that the second applicant had to provide the first applicant with medications, the receipts submitted in support of the claim are not indicative of the buyer or the receiver of that medication (see paragraph 83 above). The Court cannot therefore speculate as to their provenance or relevance to the first applicant’s complaint. 123. As to the adequacy of the medical supervision and care administered in respect of the first applicant’s health issues, the Court notes that his diagnosis of diabetes and other health conditions were known to the relevant authorities from the time of his initial detention (see paragraph 58 above). While the medical history relating to the first applicant’s treatment at the medical ward of Tbilisi prison no. 5 shows that his condition was under constant supervision by a duty doctor of that establishment, and that he also consulted an endocrinologist and a cardiologist on several occasions (see paragraph 64 above), the Court cannot overlook the findings of a private medical expert examining the applicant in December 2005 that the first applicant’s health had deteriorated “probably owing to irregular treatment of [his] diabetes” (see paragraph 65 above). In addition, no medical records were established in respect of the first applicant’s time in ordinary prison cells of Tbilisi prison no. 5 (see paragraphs 59-63 above). 124. Furthermore, and in any event, 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. A generic note of the duty doctor, and records of four medical assessments of the first applicant apparently made in response to his hypoglycaemic episodes (see paragraphs 70 and 81 above) cannot be taken as proof of the Government’s argument regarding the consistency and adequacy of the medical care administered to the first applicant. On the contrary, the medical notes indicate that the first applicant had crises which were only addressed symptomatically, and do not disclose how the overall situation was managed, if at all. Nor does it appear that during his time in Rustavi prison no. 2 the applicant was regularly seen by an endocrinologist, as had been previously recommended (see paragraph 65 above), except for one occasion (see paragraph 74 above). 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 (see Irakli Mindadze, cited above, § 47, with further references). 125. The situation is aggravated by the inability of Rustavi prison no. 2, as expressly admitted by the relevant authorities, to provide the first applicant with the requisite diabetic diet (see paragraph 75 above) prescribed to him in November 2005 (see paragraph 64 above). The need to provide the first applicant with the special diet was also flagged as an issue by the duty doctor of Rustavi prison no. 2 on 20 January 2007 (see paragraph 70 above). While the authorities appear to have allowed the first applicant’s family to provide him with the relevant products as of March 2007 (see paragraph 77 above), his complaint of August 2007 discloses that the products may not have always been let through (ibid.). Therefore, there is no indication that the first applicant’s environment in detention was adapted to his state of health (see Yunusova and Yunusov v. Azerbaijan, no. 59620/14, § 147, 2 June 2016). This finding cannot be offset by the first applicant’s seeming disregard of the diabetic diet four years later, in 2011 (see paragraphs 85 and 116 above).
126.

Outcome for Article 34: violation