ITEMID: 001-23086
LANGUAGEISOCODE: ENG
RESPONDENT: CZE
BRANCH: ADMISSIBILITY
DATE: 2003
DOCNAME: DES FOURS WALDERODE v. THE CZECH REPUBLIC
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Karel Des Fours Walderode, was a Czech and Austrian national. He was born in 1904 and died on 6 February 2000.
On 25 February 2000 the applicant’s widow, Mrs Johanna Kammerlander, informed the Court that she wished to pursue the application originally lodged by her husband, who had designated her as his universal heir. She is an Austrian national, born in 1947, and lives in Vienna, Austria. Having regard to its practice in similar cases, the Court accepted Mrs Johanna Kammerlander as the person entitled to pursue the application (see Malhous v. the Czech Republic (dec.), no. 33071/96, ECHR 2000-XII, with further references).
The facts of the case, as submitted by the applicant, may be summarised as follows.
Gabrielle Des Fours Walderode, the applicant’s stepmother, Maximilian and Louis Des Fours Walderode, his stepbrothers, all German nationals, owned real estate in former Czechoslovakia. In 1945 the property owned by the applicant’s stepbrothers and part of the property owned by the applicant’s stepmother was confiscated pursuant to Presidential Decree no. 12/1945 on the Confiscation and Expedited Allocation of the Agricultural Property of Germans, Hungarians, Traitors and Enemies of the Czech and Slovak nations (dekret presidenta republiky ze dne 21. června 1945 konfiskaci a urychleném rozdělení zemědělského majetku Němců, Maďarů, jakož i zrádců a nepřátel českého a slovenského národa), which entered into force on 21 June 1945. The remainder of the property of the applicant’s stepmother was confiscated pursuant to Presidential Decree no. 108/1945 on the Confiscation of Enemy Property and National Restoration Funds (dekret presidenta republiky ze dne 25. října 1945 o konfiskaci nepřátelského majetku a Fondech národní obnovy), on 22 September 1948, on the ground that she had been a Nazi and that her sons, Maximilian and Louis, had served in Hitler’s SS troops.
Nikolaus Des Fours Walderode, the applicant’s father, had sold his real estate to third persons on an unknown date before the Second World War.
Maximilian Des Fours Walderode died on 16 May 1945. Louis Des Fours Walderode served in the German Army during the Second World War and was declared to be presumed dead as from 30 June 1944 by the Schöneberg District Court (Amtgericht) on 27 May 1992. The applicant’s stepmother died on 22 October 1955. She left her real estate to the applicant, conferring the succession rights of her deceased sons, Maximilian and Louis, on the applicant. She had never acquired Czechoslovak citizenship.
The applicant left Czechoslovakia in 1949, thereby forfeiting his Czechoslovak citizenship, and returned in 1991. Czech citizenship was granted him on 25 August 1992.
On 14 July 1992 the applicant’s legal representative lodged a claim for the restitution of the property confiscated from his stepmother and stepbrothers under Presidential Decree no. 12/1945 and which had been sold by his father before the Second World War. He referred to the Land Ownership Act of 1991 (see the “Relevant domestic law and practice” below), alleging that he had inherited the property.
On 6 February 1995 the Jablonec nad Nisou Land Office (pozemkový úřad) dismissed the applicant’s claim in proceedings to which seven municipalities and seventeen other legal persons - the owners of the property at the material time - were parties. The Land Office held that the applicant’s stepmother and stepbrothers had not been loyal to the Czechoslovak State during the German occupation (1938-45) and had not acquired Czechoslovak citizenship after the Second World War. It referred to the documentary evidence, including the decision of the Prague Central National Committee (Ústřední národní výbor) of 22 September 1948 confiscating the remainder of the stepmother’s property under Presidential Decree no. 108/1945 on the ground that she had been a Nazi and that her sons, Maximilian and Louis, had served in Hitler’s SS troops.
The Land Office found that the property at issue had been put under national administration in 1945, that it had subsequently been confiscated pursuant to Presidential Decree no. 12/1945, and that the real estate of the applicant’s father had been transferred to third persons before the Second World War. It concluded, with reference to section 2(1) of the Restitution Act 1992, that the applicant was not the owner of the property as his stepmother and stepbrothers (the original owners of the property) had not satisfied the requirements for restitution set out in this Act, and that the applicant’s claim in respect of his father’s former property fell outside the scope of the restitution legislation.
The applicant appealed to the Prague Municipal Court (městský soud), through his counsel, against the administrative decision, alleging, inter alia, that the Land Office had not sufficiently established the facts of the case. He also argued that his stepmother had waived her deceased sons’ succession rights in his favour, and that neither she nor his stepbrothers had been Nazis. He maintained that Presidential Decree no. 12/1945 should not have been applied to his stepbrothers because at the time of its entry into force (21 June 1945) his stepbrothers were dead. The applicant further claimed that, during the German occupation, the German legal system had been in force in the territory of former Czechoslovakia. He claimed that under the German Civil Code of 18 August 1896, an estate passed to the heirs upon the death of a testator and that therefore half of Louis’s property had passed to his stepmother, a quarter to Maximilian and another quarter to himself. In these circumstances, he had inherited one-quarter of Louis’s property on 30 June 1944 and part of Maximilian’s property on 16 May 1945 in the form of hereditas iacens (ležící pozůstalost; “dormant” inheritance; ruhender Nachlaβ) (see page 9 below, the Civil Code 1881). He further claimed that, as his stepmother had conferred her deceased sons’ succession rights on him, he had acquired the whole estate.
On 16 April 1996 the Municipal Court, after having assessed a substantial amount of documentary evidence and having heard the parties to the dispute, upheld the Land Office’s decision. The court, refusing to grant the applicant leave to appeal, said in particular:
“The court does not share the applicant’s opinion that he was the owner of the property as at the time when the confiscation under Presidential Decree no. 12/1945 took place, Louis and Maximilian Des Fours Walderode were registered in the Land Register as the owners of the property.
In its legal analysis, the court considered Presidential Decree no. 11/1944 on the Restoration of Legal Order, which expresses the principle of the legal continuity of the Czechoslovak legal order. The Decree provides that legal provisions enacted up to 29 September 1938 ... constituted part of the Czechoslovak legal order; those adopted during the German occupation (between 30 September 1938 and 4 May 1945) did not form part of the Czechoslovak legal order ... However, the Decree defined certain legal provisions enacted on Czechoslovak territory under the German occupation which could be applied during a transitional period, provided that they were not contrary to the Czechoslovak Constitution ...
Act no. 195/1946 on the Applicability of Legal Regulations from the Period of Occupation annulled the applicability of all legal provisions enacted during the German occupation ...
By Article 1 of the Order on the Acquisition of German Citizenship by Czechoslovak Citizens of German Nationality of 20 April 1939, Czechoslovak citizens of German nationality living on the territory of former Czechoslovakia on 10 October 1938 acquired German citizenship with effect from 16 March 1939 ... at the latest.
In order to determine the citizenship of Louis and Maximilian Des Fours Walderode, regard has to be had to the President Beneš Decree no. 33/1945 on the Czechoslovak citizenship of German and Hungarian nationals, under which German or Hungarian nationals lost their Czechoslovak citizenship by acquiring German or Hungarian citizenship. Czechoslovak citizens lost their citizenship on the date when they acquired the citizenship of the foreign occupying power: German nationals from the frontier territories of the Czech lands and Moravia (Sudety; Sudetenland) on 10 October 1938, and German nationals from other parts of the Czech lands and Moravia on 16 March 1939.
In these circumstances, it is clear that the applicant’s stepbrothers acquired German citizenship on 16 March 1939 at the latest ....
In 1992 Louis Des Fours Walderode was declared to be presumed dead as from 30 June 1944, .... His estate, which has not yet been administered, could not have been administered by the national authorities before he was declared to be presumed dead .... Presidential Decree no. 33/1945 recognised exclusively the foreign occupying power’s measures on the acquisition of German citizenship by Czechoslovak citizens of German nationality. Louis Des Fours Walderode therefore died on 30 June 1944 as a German citizen. ...
Maximilian Des Fours Walderode died in Josefodol (former Czechoslovakia) on 16 May 1945. Having regard to Presidential Decree no. 33/1945, he died as a German citizen. His estate has not yet been administered by the national authorities. ...
The applicant’s objection that civil cases brought by German citizens residing in the Sudetenland had to be dealt with under the German legal order, until Act no. 195/1946 came into force, is not correct. Actually, Act no. 195/1946 annulled only the applicability of those legal acts adopted during the German occupation which had been applicable, on a transitional basis, under Presidential Decree no. 11/1944 to the extent that they had not contravened the Czechoslovak Constitution ...
As Louis Des Fours Walderode lived in Prague and Maximilian Des Fours Walderode lived in Josefodol, they were, at the time of their respective deaths, subject to the Czech Civil Code 1811, which was in force in the Czech lands until the end of 1950 ...
Under Article 819 of the Czech Civil Code 1811, an heir acquired an estate upon its distribution. The time of acquisition of the estate and death of a testator did not therefore fall within the same period. From the death of a testator until the time of distribution of the estate, the property was subject to hereditas iacens. Before its acquisition by an heir, property subject to hereditas iacens was considered to have been owned by the testator .... In order to assess whether the property subject to hereditas iacens was confiscated from the testator or his heirs, the stage of the inheritance proceedings concerning the property subject to hereditas iacens at the time of the confiscation is relevant ...
The property at issue was confiscated from Louis and Maximilian Des Fours Walderode, who were already dead, but were still the notional owners of the estate as it had not been acquired by an heir. The property in question was confiscated ex lege by Presidential Decree no. 12/1945. The court considers that the property could properly be confiscated in the period between the death of the testator and the time of acceptance of the estate by an heir.
On the basis of the aforementioned facts, the Municipal Court found, like the Land Office, that Gabrielle, Louis and Maximilian Des Fours Walderode had been the original owners of the property which had been confiscated under Presidential Decree no. 12/1945. They were German nationals, and therefore the confiscation under Decree no. 12/1945 had taken place in accordance with law, and the applicant’s restitution claim falls to be considered under the Restitution Act 1992.
As the original owners did not reacquire Czech citizenship as provided for in section 2(1) of the Restitution Act 1992, the applicant cannot be considered to be entitled to restitution under this provision ... As to the remainder of the real property claimed by the applicant, it had been sold by his father before the Second World War to third persons and is, therefore excluded from restitution ... ”
On 25 June 1996 the applicant lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud). He alleged, in particular, that the Municipal Court had breached Article 1 (freedom and equality regarding dignity and rights), Article 3 (non-discrimination), Article 4 § 3 (equal treatment), Article 36 § 2 (the right to judicial review) and Article 11 § 1 (property rights) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod). He also requested that section 2(2) of Act no. 30/96 and section 2(3) of the Restitution Act 1992 be repealed as unconstitutional, that section 9(3) of the Land Ownership Act and section 3(2) of the Restitution Act be modified, and finally that the latter be amended to apply to the restitution rights referred to in section 6(1) paragraphs (o), (p) and (r) of the Land Ownership Act. He submitted, inter alia, that his stepmother had overriden her deceased sons’ succession rights in his favour and that he had been forced to leave Czechoslovakia after the Second World War. He maintained that, although he had lost his Czech citizenship in 1949, it had been restored to him in 1992. Lastly, he contested the Municipal Court’s findings of fact and law.
On 5 June 1997 the Constitutional Court dismissed the applicant’s appeal as unsubstantiated. It stated that, pursuant to Presidential Decree no. 11/1944, legal provisions which had been enacted during the German occupation had not formed part of the Czechoslovak legal order, save those that had not contravened the Czechoslovak Constitution. In any event, Act no. 195/1946 had annulled the applicability of all legal provisions enacted during the German occupation on Czech territory. The applicant’s objection that civil cases brought by German citizens residing in the frontier territories of former Czechoslovakia had fallen within the German legal order until Act no. 195/1946 came into force, was irrelevant as the Sudetenland had been transferred to the German Reich by virtue of the Treaty of Munich, which had later been declared null and void ex tunc. The decision stated that, according to international law, the Sudetenland had not ceased to be part of Czechoslovak territory and that all legal relations on that territory had been governed by the Czech legal order.
The Constitutional Court found that, under the Civil Code 1811, Louis and Maximilian Des Fours Walderode had been subject to Czechoslovak law at the time of their deaths. According to the Civil Code, an heir acquired the estate upon its distribution. In the present case the time of acquisition of the estate and the death of the testator did not fall within the same period. In order to transfer the estate to an heir, special ex officio proceedings before the national courts had to be instituted of the court’s own motion. If such proceedings were not instituted, the estate was hereditas iacens until delivery of a court judgment. Heirs who wished to acquire the estate had to submit an application within the framework of those proceedings. The estate was considered as being in the possession of a testator until acquired by an heir.
The Constitutional Court further held as follows:
“ ... in order to determine the persons from whom the hereditas iacens property was confiscated, it is necessary to establish at what stage of the inheritance proceedings the confiscation took place. In the present case the confiscation was carried out when Louis and Maximilian Des Fours Walderode were dead; however, the estate has not yet been administered by the national authorities ... Therefore, ... the applicant has never acquired the property at issue.”
The Constitutional Court stated that as Louis and Maximilian Des Fours Walderode had not been entitled to claim restitution of the property under the Land Ownership Act and, since Gabrielle Des Fours Walderode was of a German origin and had never acquired Czechoslovak citizenship, the applicant himself could not be entitled to claim restitution pursuant to this Act.
The Constitutional Court also examined whether the applicant’s right to a fair hearing had been violated in the restitution proceedings. It found no such violation.
It held lastly that, as the applicant’s constitutional appeal was unsubstantiated, it was not possible to deal with his application to repeal, modify or amend the statutes specified by him. The Constitutional Court noted that it was not a legislative body, and was therefore not empowered to enact, modify or amend statutes.
(a) In 1995 the applicant instituted inheritance proceedings before the Berlin-Schöneberg District Court (Amtsgericht) in respect of the property claimed in the above restitution proceedings. On 7 June 1995 the District Court issued two certificates of succession (Erbschein) to the effect that the applicant was the universal heir of his stepbrothers.
(b) On 3 March 1995 the relevant German authority (Deutsche Dienststelle für die Benachrichtigung der nächsten Angehörigen von Gefallenen der ehemaligen deutschen Wehrmacht) issued a document certifying that the applicant’s stepbrothers had not served in the SS troops.
(c) The applicant was the owner of real estate in Hrubý Rohožec. This was confiscated from him pursuant to Presidential Decree no. 12/1945 on 21 June 1945. On 6 August 1945 the Turnov District National Committee (Úřad okresního národního výboru v Turnově) acknowledged the confiscation and granted him leave to appeal to the Prague Land National Committee (Zemský národní výbor v Praze).
(d) On 2 November 2001 the United Nations Human Rights Committee, considering the applicant’s communication (no. 747/1997) concerning the Hrubý Rohožec real estate at its seventy-third session, held that Article 26 of the International Covenant on Civil and Political Rights, read in conjunction with Article 2 of the Covenant, had been violated by the Czech Republic. It referred to its Views in cases nos. 516/1993 (Simunek et al.), 586/1994 (Josef Adam) and 857/1999 (Blažek et al.) that a legal requirement of citizenship for restitution of property previously confiscated by the authorities made an arbitrary - and consequently discriminatory - distinction between individuals who were equal victims of prior State confiscation, and constituted a violation of Article 26 of the Covenant.
The Land Ownership Act regulates, inter alia, the restitution of certain agricultural and other property defined in section 1 which was assigned or transferred to the State or other legal persons between 25 February 1948 and 1 January 1990. Section 6(1) lists the acts giving rise to a restitution claim.
The persons entitled to claim restitution (“rightful claimants”) are set out in section 4. Under section 4(1), any natural person who is a citizen of the Czech and Slovak Federal Republic and who lost property which once formed his or her agricultural homestead in the period from 25 February 1948 to 1 January 1990, in one of the ways set out in section 6(1), is entitled to claim restitution. The entitled persons are the original owners of the property or, where the original owner is dead or reported missing without trace, the owner’s heirs or next of kin in a specified order (section 4(2)). By section 4(2) restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired part of the estate, c) children and spouses, d) parents, or e) brothers and sisters or their spouses and children.
As regards the procedure to be followed, section 9(1) provides that a rightful claimant must lodge his or her claim with the appropriate Land Office and, at the same time, request restitution from the person or entity concerned.
This Act constitutes a lex specialis in relation to the Land Ownership Act.
Section 2(1) provides that any natural person who is a citizen of the Czech and Slovak Federal Republic and lost his or her property under Presidential Decrees nos. 12/1945 and 108/1945, and was loyal to the Czechoslovak State and reacquired (Czechoslovak) citizenship either under Acts nos. 245/1948, 194/1949 and 34/1953 or Act no. 33/1945, is entitled to claim restitution of any of his or her property which passed into State ownership in the circumstances referred to in the Land Ownership Act.
Section 2(3) provides that if such an entitled person died or was declared to be presumed dead before the time-limit set out in Section 11a, restitution can be claimed by natural persons who are citizens of the Czech and Slovak Federal Republic and are at the same time, in order of precedence, a) testamentary heirs who acquired the whole of the estate, b) testamentary heirs who acquired part of the estate, c) children or spouses, d) parents, or e) brothers or sisters or their children. Section 11a provides that a person who satisfied the requirements set out in this Act on 29 May 1992 could file a restitution claim until 31 December 1992. His or her right lapsed if a claim was not lodged within this time-limit.
Under section 2(2), amending section 2(3) of the Restitution Act, any natural person satisfying the condition of section 2(1) of the latter can claim restitution provided that he or she was a Czech citizen on 31 January 1996 and acquired Czech citizenship either pursuant to Acts nos. 245/1948, 194/1949 or 34/1953, or pursuant to Presidential Decree no. 33/1945, and who did not lose Czech citizenship before 1 January 1990.
Article 547 provides for the concept of hereditas iacens, which exists from the time of the deceased’s death to the time when an heir accepts the estate. The principle of hereditas iacens is that, during this period, an estate is considered to be notionally owned by the deceased.
By Article 819, a person who has been declared an heir by a decision of a court of law on his or her application, and who has fulfilled his or her obligations, receives the estate, thus closing the inheritance proceedings.
The Civil Code 1811 was repealed at the end of 1950, whereupon the legal concept of hereditas iacens ceased to be valid in Czechoslovakia.
The decree provides for expropriation, with immediate effect and without compensation, of agricultural property for the purposes of programmed land reform. It concerns agricultural property, including buildings and movable goods, owned by persons of German and Hungarian origin irrespective of their citizenship status.
For the purposes of the land reform, section 1(1) provides, with immediate effect and without compensation, that the property of the following persons shall be confiscated:
a) persons of German and Hungarian origin irrespective of their citizenship, and
b) traitors and enemies of the State.
Section 1(2) provides that the property of persons of German and Hungarian origin who were active in the battle for the liberation of Czechoslovakia is eligible for exemption from confiscation.
Section 1(3) provides that decisions as to whether the property referred to in section 1(2) is exempt from confiscation shall be taken by the District National Committees.
Section 2(1) defines persons of German or Hungarian origin as being those who, in any census after 1929, declared themselves to be of German or Hungarian origin, or who became members of national groups, formations or political parties made up of persons of German or Hungarian origin.
By section 1 (1), Czechoslovak citizens of German or Hungarian origin lost their Czechoslovak citizenship on the day when they acquired German or Hungarian citizenship pursuant to the legislation enacted by the occupying power.
Section 1(2) provided that other Czechoslovak citizens of German or Hungarian origin lost their Czechoslovak citizenship on the day when the decree came into effect.
By section 1 (3), the decree was not applicable to Germans and Hungarians who applied for registration as Czechs or Slovaks during the German occupation.
By section 2 (1), the Czechoslovak citizenship of the persons referred to in section 1 of this Decree was retained, provided that they prove that they had been loyal to the Czechoslovak State and active in the battle for its liberation, or had suffered under Nazi or fascist terror, and that they had not done any wrong to the Czech and Slovak nations.
Section 2(2) provided that applications to retain Czechoslovak citizenship were to be submitted to the District National Committee or to the appropriate embassy abroad within six months.
Under section 3, persons who lost their Czechoslovak citizenship by virtue of section 1 of the Decree could claim its restoration by applying to the District National Committee or the appropriate embassy abroad.
Persons who may be entitled to property falling under a “dormant” inheritance (hereditas iacens) can be a party to judicial or administrative proceedings.


ITEMID: 001-60958
LANGUAGEISOCODE: ENG
RESPONDENT: LUX
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF ROEMEN AND SCHMIT v. LUXEMBOURG
IMPORTANCE: 1
CONCLUSION: Violation of Art. 10;Violation of Art. 8;Non-pecuniary damage - financial award;Costs and expenses partial award
JUDGES: Nicolas Bratza
TEXT: 8. The applicants were born in 1945 in 1963 respectively and live in Luxembourg.
9. On 21 July 1998 the first applicant, acting in his capacity as a journalist, published an article in Lëtzebuerger Journal, a daily newspaper, under the headline “Minister W. convicted of tax fraud” (Minister W. der Steuerhinterziehung überführt). He alleged in the article that the minister had broken the Seventh, Eighth and Ninth Commandments by committing value-added tax (VAT) frauds. He went on to say that a politician from the right might have been expected to take the rules so carefully drawn up by Moses more seriously. He added that a fiscal fine of 100,000 Luxembourg francs had been imposed on the minister. He said in conclusion that the minister’s conduct was particularly shameful in that it involved a public figure, who should have set an example.
10. The applicants produced documents showing that the fine had been imposed on the minister concerned on 16 July 1998 by the Director of the Registration and State-Property Department (Administration de l’enregistrement et des domaines), pursuant to section 77(2) of the VAT Act of 12 February 1979. The decision had been served on the minister on 20 July 1998. It also appears that on 27 July 1998 the minister appealed to the District Court against the fine. In a judgment of 3 March 1999, the District Court ruled that the fine was not justified as the offence under section 77(2) of the VAT Act of 12 February 1979 had not been made out. An appeal was lodged against that judgment to the Supreme Court of Justice. The parties have not furnished any further information regarding developments in those proceedings.
11. The decision of 16 July 1998 was the subject of comment in other newspapers, such as the daily Le Républicain Lorrain and the weekly d’Lëtzebuerger Land. A Liberal member of Parliament also tabled a parliamentary question on the matter.
12. Two sets of court proceedings were issued following the publication of the first applicant’s article.
13. On 24 July 1998 the minister brought an action in damages in the District Court against the first applicant and Lëtzebuerger Journal, arguing that they had been at fault in publishing the information concerning the fiscal fine and making comments which he said constituted an attack on his honour. In a judgment of 31 March 1999, the District Court dismissed the minister’s action on the ground that the article came within the sphere of freedom of the press. In a judgment of 27 February 2002, the Court of Appeal overturned the District Court’s judgment.
14. On 4 August 1998 the minister lodged a criminal complaint.
15. On 21 August 1998 the public prosecutor requested the investigating judge to open an investigation into a suspected offence by the first applicant of handling information disclosed in breach of professional confidence, and by a person or persons unknown of breach of professional confidence. The public prosecutor stated in his submissions: “The investigation and inquiries should determine which civil servant or civil servants from the Registration and State-Property Department had any involvement in the case and access to the documents.” The public prosecutor also requested the investigating judge to carry out or arrange for searches of the first applicant’s home and any appurtenances, the offices of Lëtzebuerger Journal and the Registration and State-Property Department offices.
16. Various searches were then carried out.
17. On 19 October 1998 the investigating judge issued two warrants for searches to be made of the first applicant’s home and workplace, the investigators being instructed to “search for and seize all objects, documents, effects and/or other items that [might] assist in establishing the truth with respect to the above offences or whose use [might] impede progress in the investigation”. The first order specified that the places to be searched were “Robert Roemen’s home and appurtenances, ..., any place in which he may be found and cars belonging to or used by him”.
18. Both warrants were executed on 19 October 1998, but no evidence was found.
19. On 21 October 1998 the first applicant applied for orders setting aside the warrants issued on 9 October 1998 and all the investigative steps taken pursuant thereto, in particular the searches carried out on 19 October 1998. In addition to arguments based on domestic law, he alleged a violation of Article 10 of the Convention, emphasising that he was entitled to protect his journalistic sources.
20. The District Court, sitting in closed session, dismissed both applications in two orders of 9 December 1998. It noted that the minister had complained of a number of matters, including the unlawful disclosure of information to the first applicant by Registration and State-Property Department officials, which the first applicant had allegedly gone on to use in a calumnious and defamatory newspaper article. Those matters were capable of falling within the definition of various criminal offences, including breach of professional confidence, breach of fiscal confidentiality, theft, handling, calumny and criminal defamation. The District Court said that civil servants were prohibited by Article 11 of the Central and Local Government Service Code (statut général des fonctionnaires) from disclosing any information that was confidential by nature which they had acquired in the course of their duties. It was a criminal offence under the General Tax Act to disclose confidential fiscal information and an offence under Article 458 of the Criminal Code for anyone receiving confidential information as part of their professional duties to divulge it. As to the handling offence, the District Court said that Article 505 of the Criminal Code applied to anyone who, by whatever means, knowingly benefited from the proceeds of a serious crime (crime) or other major offence (délit). According to legal commentators and the leading cases, handling could extend to intangible property, such as claims, but also manufacturing secrets or material covered by professional privilege. In that connection, the fact that the circumstances in which the property had been obtained had not been fully established was of little relevance if the alleged handler was aware of its unlawful origin; the classification of the primary offence was immaterial. The District Court found that the investigating judge in charge of the investigation had been entitled to order an investigative measure to obtain corroboration of the incriminating evidence already in his possession. It added that there had been no violation of Article 10 of the European Convention on Human Rights, since the searches – which had been ordered to assemble evidence of and establish the truth concerning possible criminal offences that may have led to or facilitated the publication of a newspaper article – had not infringed freedom of expression or freedom of the press.
21. By two judgments of 3 March 1999, the Court of Appeal, sitting in closed session, dismissed appeals that had been lodged against the orders of 9 December 1998.
22. On 19 October 1998 the investigating judge issued a search warrant for immediate execution at the offices of the second applicant, who was the first applicant’s lawyer in the domestic proceedings.
23. In the course of the search, the investigators seized a letter of 23 July 1998 from the Director of the Registration and State-Property Department to the Prime Minister bearing a handwritten note: “To the Heads of Division. Letter transmitted in confidence for your guidance.” The applicants explained that the letter had been sent anonymously to the editorial staff of Lëtzebuerger Journal and the first applicant had immediately passed it on to his lawyer, the second applicant.
24. On 21 October 1998 an application was made to have the search warrant and all subsequent investigative steps set aside.
25. The District Court, sitting in closed session, granted that application on the ground that, in breach of section 35 of the Lawyers Act, the report of the police department that had executed the warrants on 19 October 1998 did not contain the observations of the Vice President of the Bar Council, who was present during the search and seizure operations. The District Court ruled that the seizure carried out on 19 October 1998 was invalid and ordered the letter of 23 July 1998 to be returned to the second applicant.
26. The letter was returned on 11 January 1999.
27. However, on the same day the investigating judge issued a fresh search warrant with instructions to “search for and seize all objects, documents, effects and/or other items that might assist in establishing the truth with respect to the above offences or whose use might impede progress in the investigation and, in particular, the document dated 23 July 1998 bearing the manuscript note to the heads of division”. The letter was seized once again later that day.
28. On 13 January 1999 the second applicant applied for an order setting the warrant aside, arguing, inter alia, that there had been a breach of the principle guaranteeing the inviolability of a lawyer’s offices and of the privilege attaching to communications between lawyers and their clients. That application was dismissed by the District Court, sitting in closed session, on 9 March 1999. It noted, firstly, that investigating judges were empowered to carry out searches even at the homes or offices of persons whose professional duties required them to receive information in confidence and who were legally bound not to disclose it and, secondly, that the provisions of section 35 of the Lawyers Act of 10 August 1991 had been complied with. The search and seizure operations had been executed in the presence of an investigating judge, a representative of the public prosecutor’s office and the President of the Bar Council. In addition, the presence of the President of the Bar Council and the observations he had considered it necessary to make regarding the protection of the professional confidence attaching to the documents to be seized had been recorded in the police department’s report.
29. In a judgment of 20 May 1999, the Court of Appeal, sitting in closed session, dismissed an appeal against the order of 9 March 1999.
30. In a letter of 23 July 1999, the first applicant enquired of the investigating judge as to progress in the case. He complained that no other steps had been taken and reminded the judge that he was not supposed to disregard the provisions of Article 6 of the Convention. He sent a similarly worded reminder on 27 September 2000.
31. On 3 October 2000 the applicants provided the Court with an article from the 29 September 2000 edition of the weekly newspaper d’Lëtzebuerger Land, containing the following extract:
“... the inquiry in the W. case has thus just ended with a search of the home of a Registration and State-Property Department official, a member of the Socialist Party, and the logging of the incoming and outgoing telephone calls of at least two other members of the [Socialist Party] ...”
32. On 18 April 2001 the first applicant sent a further reminder to the investigating judge, who stated in a reply of 23 April 2001: “The judicial investigation is continuing.”
33. Following a letter from the first applicant dated 13 July 2001, the investigating judge informed him the same day that the police inquiries had finished and that the investigation file had just been sent to the public prosecutor for his submissions.
34. On 16 October 2001 the first applicant referred the public prosecutor to the terms of Article 6 of the Convention and reminded him that although the investigation in the case had taken three years, he had yet to be charged.
35. On 13 November 2001 the first applicant received a summons requiring him to attend for questioning on 30 November 2001 in connection with the offences referred to in the complaint. He was informed that he was entitled to have a lawyer present.
36. The first applicant was charged by the investigating judge on 30 November 2001 with “handling information received in breach of professional confidence”.
37. The applicants produced an article from the 9 January 2002 edition of the newspaper Le Quotidien, which revealed that the Prime Minister “considered that the methods employed by the investigating judge in the investigation into a breach of professional confidence were ‘disproportionate’ ”.
38. An order made on 1 July 2002 by the District Court, sitting in closed session, reveals that the charges against the first applicant were ruled to be null and void and that the case file was sent to the investigating judge with jurisdiction with instructions either to end or to continue the investigation.
39. On 14 January 2003 the applicant sent the Court a letter from the investigating judge dated 9 January 2003 informing him that “the judicial investigation [had] just ended”.
40. Article 65 of the Criminal Investigation Code provides: “Searches shall be carried out in any place in which objects that would assist in establishing the truth may be found.”
41. Article 66 of that Code provides: “The investigating judge shall carry out the seizure of all objects, documents, effects and other items referred to in Article 31 § 3”. Article 31 § 3 provides that the following may be seized: “... and generally, anything which may assist in establishing the truth, whose use may impede progress in the investigation or which is liable to confiscation or restitution.”
42. Section 35(3) of the Lawyers Act of 10 August 1991 provides:
“Lawyers’ workplaces and all forms of communication between lawyers and their clients shall be inviolable. If in civil proceedings or a criminal investigation a measure is taken against or in respect of a lawyer in the circumstances defined by law, such measure shall not be implemented other than in the presence of the President of the Bar Council or his or her representative or after they have been duly convened.
The President of the Bar Council or his or her representative may submit observations to the authorities which ordered the measures regarding the protection of professional confidence. A record of a seizure or search shall be null and void unless it contains a statement that the President of the Bar Council and his or her representative were present or had been duly convened and any observations they considered it necessary to make.”
VIOLATED_ARTICLES: 10
8


ITEMID: 001-107546
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF MAKHARADZE AND SIKHARULIDZE v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 34;Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria
TEXT: 5. On 14 March 2006 the first applicant, born in 1967, was arrested on account of his purported connection with the criminal world and possession of drugs, offences prosecuted respectively by Articles 223(1) § 2 and 260 § 2 (a) of the Criminal Code. On 16 March the Tbilisi City Court ordered his detention pending trial. He was subsequently placed in Ksani no. 7 prison.
6. On 17 March 2006 the first applicant appealed against the detention order of 16 March 2006, complaining, inter alia, that the pre-trial detention was an unjustifiably severe and unnecessary measure, given the poor conditions in the prison and his critical state of health. In support, he submitted medical documents, dated 11 May 2005 and 16 March 2006, which diagnosed him with pulmonary fibro-cavernous tuberculosis and confirmed that he was a registered patient at a civil tuberculosis hospital, Abastumani Hospital, in Georgia.
7. On 24 March 2006 the Tbilisi Court of Appeal dismissed the first applicant’s appeal of 17 March 2006. In reply to the medical complaint, the appellate court stated that “the submitted medical documents show only the diagnosis; no other medical documents about [the first applicant’s] current state of health, or the type and stage of his disease have been made available...”. The appellate court did, however, inform the prison authorities that the first applicant should be provided with appropriate conditions of detention and medical care in prison.
8. The applicant’s state of health drastically deteriorated during the following eleven days of his detention in Ksani no. 7 prison. Notably, he started having acute respiratory difficulties and, with his joints painfully swollen, became unable to move around without assistance. Following the Public Defender’s intervention, the applicant was transferred on 25 March 2006 to the Medical Establishment of the Prison Department of the Ministry of Justice (“the old prison hospital”).
9. After only two days in the old prison hospital, the first applicant was transferred back to Ksani no. 7 prison on 27 March 2006, where his state of health deteriorated further. Consequently, on 30 March 2006 the authorities returned him to the old prison hospital, where he was initially placed in the intensive care unit.
10. On 24 July 2006 the Tbilisi City Court convicted the first applicant of the offences with which he had been charged. He was sentenced to 7 years in prison.
11. By letters of 22 and 24 August 2006, the Ministry of Justice acknowledged that, following a medical examination conducted by its National Forensic Office (“the NFO”) between 1 May and 20 June 2006, the first applicant had been diagnosed with an open form of multidrug-resistant fibro-cavernous (or disseminated) tuberculosis, in the phase of infiltration and decomposition; he was haemorrhaging from the lungs. In addition, the examination results showed that the first applicant had been infected with viral hepatitis C and suffered from a number of serious cardiac and neurosensory disorders. The above-mentioned letters further stated that, since 4 April 2006, the first applicant had been receiving conventional, firstline anti-tuberculosis medication under the DOTS programme (Directly Observed Treatment, Short-course – the treatment strategy for the detection and cure of TB recommended by the World Health Organisation, see paragraph 48 below).
12. On 12 December 2006 the Tbilisi Court of Appeal upheld the first applicant’s conviction of 24 July 2006. His cassation appeal was rejected as inadmissible by the Supreme Court on 10 April 2007.
13. Between 26 September and 26 November 2007, medical experts from the NFO conducted an additional examination of the first applicant. Their conclusions (“the medical conclusions of 26 September-26 November 2007”) confirmed the previous diagnosis as regards his cardiac problems and tuberculosis. Concerning the latter disease, the experts added that the first applicant should be considered as a gravely ill patient who needed special treatment in a tuberculosis hospital.
14. On 4 July 2008 the first applicant, referring to all the available medical documents about the critical phase of his tuberculosis, including the medical conclusions of 26 September-26 November 2007, requested the suspension of the outstanding part of his prison sentence on the basis of the Order of 27 March 2003 of the Minister of Health (“the Order of 27 March 2003”). He complained, under Articles 2 and 3 of the Convention, that he was not provided with effective anti-tuberculosis drugs in prison, and that, consequently, there was a real risk to his life.
15. On 30 July 2008 the Tbilisi City Court examined the first applicant’s request of 4 July 2008 at an oral hearing. Amongst others, the court heard one of the medical experts who had issued the conclusions of 26 September-26 November 2007. The expert confirmed the accuracy of those conclusions, namely that the first applicant required treatment in a specialised hospital with particular drugs of second-line family (“SLDs”) to which his tuberculosis had not yet developed a resistance and which were not available in the prison system. The expert suggested that the first applicant’s condition would only deteriorate in prison, given the lack of the necessary drugs there. The expert confirmed that, according to the Order of 27 March 2003 (see paragraph 41 below), the applicant’s type of tuberculosis could serve as a basis for release from serving a sentence.
16. The Tbilisi City Court also heard a representative of the prison authorities, who stated that a more comprehensive system of multidrug resistant forms of tuberculosis treatment, DOTS+, would soon be introduced in Georgian prisons, and that the first applicant would be entitled to benefit from it. He was unable to specify the approximate dates of the introduction of that programme. The representative further stated that the first applicant had already been provided with permanent medical supervision in prison, and that the authorities would transfer him to a specialised hospital if his condition deteriorated.
17. During the hearing of 30 July 2008, the first applicant’s representative submitted a handwritten letter of his client dated 29 July 2008 informing the Tbilisi City Court of his inability to attend the hearing in person owing to his state of health. His counsel also submitted a medical opinion of Dr T.J., the doctor who was treating the applicant in prison, dated 30 July 2008, which confirmed the first applicant’s diagnosis at that time and stated that all the previous attempts to treat him in prison with the medication available through the already introduced DOTS programme had proved unsuccessful. The doctor confirmed that the comprehensive DOTS+ programme was planned to be introduced in the near future.
18. On the same day, 30 July 2008, the Tbilisi City Court delivered a decision dismissing the first applicant’s request for the suspension of his sentence as manifestly ill-founded. The court reasoned that no recent medical document about his current state of health had been made available.
19. On 15 August 2008 the first applicant lodged an appeal against the decision of 30 July 2008, denouncing the City Court’s failure to endorse the medical opinion of 30 July 2008 as proof of his current medical condition. He reiterated his fears that, without proper medical treatment in prison, the violation of his right under Article 3 of the Convention would persist and, in the worst scenario, could lead to his death, in violation of Article 2.
20. In the course of the appellate proceedings the first applicant made a request for an additional medical examination, so that all possible doubts about his state of health at that time could be dissipated. The Tbilisi Court of Appeal granted that request on 25 September 2008, ordering the prison authorities, and in particular the NFO, to examine the first applicant with the aim of establishing the nature and gravity of his diseases and obtaining recommendations on appropriate treatment for him.
21. In a reply dated 20 October 2008, the NFO implicitly refused to enforce the court order of 25 September 2008, stating that the first applicant’s state of health had already been assessed between 26 September and 26 November 2007, and that, prior to assessing the need for an additional examination, the Tbilisi Court of Appeal should first hear the relevant medical experts.
22. On 21 October 2008 the first applicant began a hunger strike to protest against the non-enforcement of the court order of 25 September 2008. In particular, and in line with that order, he requested a transfer to a specialised medical setting for diagnostic examinations, and denounced the fact that, despite his very critical condition, he was detained in a closed, “cellar-type” establishment. On the same day, the head of the old prison hospital issued an order putting the medical staff on alert for the duration of the applicant’s hunger strike. As disclosed by his medical file, the applicant was advised by doctors on a daily basis throughout the entire duration of his hunger strike (see paragraph 26 below) about the damage his self-harming conduct could cause to his health.
23. On 24 October 2008 representatives from the Public Defender’s Office visited the first applicant in the old prison hospital. As disclosed by the minutes of their visit, they found him in a critical condition – with his swollen joints, he remained bedridden, was vomiting purulent blood, and so on. The representatives also noted that only his family had been providing the applicant with such SLDs as cycloserin, p-aminosalicylic acid (“PAS”).
24. On 28 October 2008 the Public Defender’s Office expressed its concern about the first applicant’s aggravated state of health and invited the prison authorities to ensure his appropriate treatment.
25. On 31 October 2008, pursuant to the court order of 25 September 2008, the NFO started the first applicant’s medical examination, which ended on 7 November 2008. Its results (“the medical recommendations of 31 October-7 November 2008”) fully confirmed the previously diagnosed grave form of tuberculosis, showed that the disease had deteriorated since the previous examination and recommended that the applicant be treated with SLDs in a hospital specialised in tuberculosis treatment.
26. In the meantime, on 4 November 2008, the first applicant terminated his hunger-strike as the court order of 25 September 2008 had been enforced. On the same day his advocate enquired of the head of the old prison hospital whether or not the prison was able to provide the applicant with SLDs (such as cycloserin and PAS). The reply was negative.
27. On 27 November 2008 the first applicant was transferred to the newly opened medical wing of Tbilisi no. 8 prison (“the new prison hospital”). He was visited there on 2 December 2008 by representatives of the Public Defender’s Office, who witnessed that, although he was in a newly refurbished room, he was not being provided with the necessary SLDs and diet, or allowed to receive food parcels from his family, and the hospital staff would not change his bed-linen regularly even though he was sweating profusely.
28. On 5 December 2008 the first applicant started another hunger strike in protest against the failure to follow the medical recommendations of 31 October-7 November 2008. In particular, he requested that the prison authorities either provide him with the SLDs or transfer him to a specialised hospital. The new prison hospital was put on alert. As disclosed by the applicant’s medical file, he was reminded by the doctors on a daily basis, throughout the entire duration of his strike (see paragraph 31 below), how deleterious his refusal to take meals was for his state of health. The applicant also refused blood transfusions during that period.
29. On 8 December 2008 the Tbilisi Court of Appeal examined the first applicant’s appeal against the decision of 30 July 2008 at an oral hearing. The court heard one of the medical experts who had issued the medical recommendations of 31 October-7 November 2008. The expert confirmed the gravity of the applicant’s condition and stated that his anti-tuberculosis treatment had been unsuccessful owing to the lack of the necessary drugs in prison. The expert added that the applicant required a special diet and the exposure to fresh air, suggesting that there were some chances of successful treatment of his type of tuberculosis outside of prison. The appellate court also heard a representative of the prison authorities, who submitted an opinion of Dr T.J, the doctor who was treating the applicant in prison, dated 1 December 2008. According to that opinion, the applicant had been provided with a combination of unspecified SLDs since 22 June 2008 against which his tuberculosis maintained sensitivity. The examination of various parties during the hearing further disclosed the fact that it was the applicant’s family who had procured those SLDs from Germany.
30. In a decision of 8 December 2008, relying on the medical opinion of 1 December 2008 the Tbilisi Court of Appeal dismissed the first applicant’s appeal against the decision of 30 July 2008 as being unfounded.
31. On 9 December 2008 the first applicant terminated his hunger strike.
32. As disclosed by his medical file, from early January 2009 the applicant refused to take PAS and cycloserin, the SLDs procured by his family, in protest against the prison administration’s failure to provide him with a diet necessary for his condition. On 20 January 2009 the Public Defender’s Office complained about that problem to the prison authorities.
33. On the same day, 20 January 2009, following a drastic deterioration in his condition, the first applicant was placed in the intensive therapy unit of the new prison hospital. Nevertheless, his condition continued to deteriorate and he died at midnight on 29 January 2009.
34. On 24 October 2008 the first applicant requested, under Rule 39 of the Rules of Court, that the Government be indicated to transfer him to a specialised tuberculosis hospital, to arrange for his medical examination and treatment and to suspend his sentence pending treatment.
35. On 10 November 2008 the President of the Chamber partly granted the above-mentioned request, indicating to the Government that the first applicant should be placed in a specialised medical establishment capable of dispensing appropriate anti-tuberculosis treatment. That measure was imposed until further notice. In so far as the case file, as it stood at the material time, did not disclose that the Tbilisi Court of Appeal’s decision of 25 September 2008 ordering the applicant’s medical examination had already been enforced (see paragraph 25 above), the President indicated to the Government to ensure that it was enforced. The Government were further invited to report on the implementation of the indicated medical measures by 1 December 2008.
36. By a letter of 1 December 2008, the Government submitted to the Court the medical recommendations of 31 October-7 November 2008 in support of the fact that the court decision of 25 September 2008 had duly been enforced.
37. As to the first applicant’s transfer to a specialised tuberculosis hospital, the Government stated that such a measure was not necessary for the following reasons. First, the applicant had already been transferred, on 27 November 2008, to the new prison hospital, the medical services of which were comparable if not superior to those of a civil tuberculosis hospital. Secondly, even if the applicant were allowed to be treated at an outside tuberculosis hospital, such treatment would in any event be limited to DOTS, to which programme he had already had access in prison.
38. The Government further stated that the shortage of SLDs was a general pharmaceutical problem on a nationwide scale, which could in no way be imputed to the prison only. They promised that as soon as ofloxacin, PAS and cycloserin, the drugs capable of fighting the first applicant’s tuberculosis, appeared in the country’s pharmaceutical network, they would immediately be dispensed to him. In the meantime, the authorities allowed the applicant’s family to provide him with those drugs in prison.
39. In a letter of 27 January 2009, addressed to the Minister of Justice, the Public Defender expressed his deep concern about the failure to transfer the first applicant to a specialised tuberculosis hospital, contrary to the interim measure indicated by the Court on 10 November 2008; the Minister was urged to ensure the immediate enforcement of that measure.
40. Pursuant to section 65 §§ 1 (b) and 2 of the Imprisonment Act, a convict could be released from detention on account of his or her grave and/or incurable illness. The list of such grave/incurable illnesses was to be prepared by the Ministry of Healthcare.
41. On 27 March 2003 the Minister of Health issued an Order (Order no. 72) on the basis of section 65 of the Imprisonment Act, which established that destructive forms of pulmonary tuberculosis (fibrocavernous, milliary or cirrhotic) as well as poly or multidrug resistant tuberculosis are grounds for requesting early release.
42. Pursuant to Article 607 § 1 (a) of the CCP, a court could suspend a prison sentence in view of the convict’s grave state of health, if his or her illness impeded the proper execution of the sentence, pending the convict’s full or partial recovery.
43. Article 608 of the CCP provided for a possibility of early release by a court on account of the convict’s grave or incurable illness, which fact was to be established by a qualified medical opinion.
44. The relevant excerpts from the above-mentioned Report, bearing on the problem of tuberculosis in Georgian prisons, read:
“Health-care services
76. Despite the goodwill and commitment of health-care staff at the penitentiary establishments visited, the provision of health care to prisoners remained problematic, due to the shortage of staff, facilities and resources. The delegation heard a number of complaints from prisoners at all the establishments visited concerning delays in access to a doctor, the inadequate quality of care ... and difficulties with access to outside specialists and hospital facilities.
77. The delegation noted that the supply and range of medication available at the establishments visited had considerably improved in recent years. Nevertheless, a number of prisoners complained that they depended on their families for the acquisition of most of the necessary medication.
As to the equipment available at the establishments visited, it was generally limited to a stethoscope and an apparatus for measuring blood pressure; there were no facilities for taking X-rays or basic blood tests. This made the screening for transmissible diseases, including the detection of cases of tuberculosis unfeasible...
81. The CPT is concerned that the progress observed during the second periodic visit in the area of combating tuberculosis is jeopardised by the steep increase in the prison population and the ensuing problem of prison overcrowding. Despite the efforts of the ICRC, it was no longer possible to screen all new arrivals at Prison No. 5 in Tbilisi. Further, in the absence of routine medical examination upon arrival and the necessary laboratory equipment, no systematic screening for tuberculosis was performed at Prison No. 4 in Zugdidi, Prison No. 6 in Rustavi, Prison No. 7 in Tbilisi or Penitentiary establishment No. 2 in Rustavi. ...
[R]ecommendations
- the Georgian authorities to take steps to ensure that all newly arrived prisoners are seen by a health-care staff member within 24 hours of their arrival. The medical examination on admission should be comprehensive, including appropriate screening for transmissible diseases (paragraph 79);...
- the Georgian authorities to persevere in their efforts to combat tuberculosis in the prison system, through systematic screening and treatment of prisoners in accordance with the DOTS method for tuberculosis control (paragraph 81).”
45. The relevant excerpts from the above-mentioned Report, bearing on the problem of tuberculosis in Georgian prisons, read:
“46. Georgia’s imprisonment rate is very high by international standards and, as noted in the report on the visit in 2007, cannot be convincingly explained away by a high crime rate. If no steps are taken to limit the number of persons sent to prison, all attempts to improve conditions of detention will inevitably founder. ...
Health care
94. The spread of tuberculosis in the prison system remains a major challenge for the Georgian authorities. The progress made over the years, with the important assistance of the International Committee of the Red Cross (ICRC), has been jeopardised by the increase in the inmate population and the ensuing problem of prison overcrowding.
The delegation was concerned to note that, in the absence of routine medical examination upon arrival, no systematic screening for tuberculosis was performed ... TB case finding was based on a passive method (which essentially means waiting for prisoners with symptoms of TB to present themselves to clinical staff for diagnosis)....
99. The Medical establishment for prisoners in Tbilisi (Gldani), located within the perimeter of the Gldani penitentiary complex, represents a great improvement on the Central Prison Hospital visited by the CPT in 2001 and 2004. The delegation gained a globally positive impression of this new facility, inaugurated at the end of 2008 but in fact functioning fully only for a few months. With an official capacity of 258 beds, the establishment was accommodating 231 sick prisoners at the time of the visit. All the patients were men.
There were five wards: surgery, psychiatry, infectious diseases, internal medicine and intensive care/reanimation. Further, there was an admissions unit, an X-ray unit, a dental office, a laboratory, rooms for endoscopy and physiotherapy, and a pharmacy.
100. The diagnostic equipment was modern and functional, and the establishment offered an adequate range of hospital treatments for prisoners. It was also possible to transfer sick prisoners to other hospital facilities for diagnostic treatments which were not available at the Medical establishment (an average of 5 transfers per week)....
[R]ecommendations
- ensure that prisoners in need of diagnostic examination and/or hospital treatment are promptly transferred to appropriate medical facilities...;
- further steps to be taken to ensure the supply of appropriate medication in sufficient quantities to all establishments ...;
- urgent measures to be taken to ensure that all newly arrived prisoners ... are seen by a health-care staff member within 24 hours of their arrival. The medical examination on admission should be comprehensive, including appropriate screening for transmissible diseases and injuries (paragraph 91);
- the Georgian authorities to persevere in their efforts to combat tuberculosis in the prison system, through systematic screening and treatment of prisoners in accordance with the DOTS method for tuberculosis control. In this context, steps to be taken to ensure that prisoners diagnosed as BK-positive are promptly transferred to a hospital facility for treatment and that inmates with whom such prisoners have been in contact are screened for TB (paragraph 95).”
46. The relevant excerpts from the above-mentioned Report read:
“Tuberculosis nevertheless remains a serious problem in the Georgian prison system. The spread of multi-drug resistant forms of tuberculosis remains a real threat, particularly in prisons, where lack of proper hygiene, lack of adequate medical facilities, insufficient medical staff, and, in particular, overcrowding, leave detainees more vulnerable to becoming infected with this highly contagious disease. Tuberculosis isolation facilities also become overcrowded and overburdened as the prison population increases; as a result, existing facilities may not be sufficient to isolate all tuberculosis patients from the general prison population. The growth of a tuberculosis epidemic in the prison system also places society at a real risk of an epidemic, as the disease can be readily transmitted from detainees to prison employees and to family members and others once detainees are released. Some experts also believe that there is a serious risk of an increase in coinciding HIV and tuberculosis epidemics in the region....
Recommendations
... Convicted persons who are seriously ill, in the final stages of terminal illness, or have diseases that require consistent and high-level treatment must be adequately monitored in detention. As conditions of detention risk exposing such vulnerable persons to inhuman and degrading situations, imprisonment should be used strictly as a last resort; efforts should be made to release such persons who are currently detained and alternative sanctions should be imposed whenever possible....
Conduct, without fail, systematic screening for tuberculosis of prisoners entering all facilities...
Ensure that the internationally-recommended tuberculosis control strategy, directly observed therapy, short course (DOTS), is undertaken effectively by providing a regular supply of anti-tuberculosis drugs in sufficient quantities to all facilities and by training medical personnel in issuing DOTS.
Provide nutrition and material conditions that are conducive to the improvement of tuberculosis patients’ health.”
47. The relevant excerpts from the above-mentioned report read:
“Tuberculosis
The high prevalence of tuberculosis in prisons is not something new, and constitutes one of the serious problems [facing] the penitentiary system worldwide. In spite of a series of projects implemented within the Georgian penitentiary system in coordination with the International Committee of the Red Cross, the problem of tuberculosis has ... worsened, far less been resolved. This is shown by the especially high number of persons who deceased with tuberculosis in 2009. In our view, one reason for this worsened situation is ineffective implementation of standard antituberculosis measures within the Georgian reality, with no regard to local specificities and without having assessed and analyzed the risk of a spread in TB.
Medical personnel require in-depth preparation. Individual short-term training is not sufficient to resolve the problem, since the medical personnel are either unaware of or unable to use basic skills and knowledge of TB-infection management, given their very low medical autonomy and independence in taking decisions...
Tuberculosis is currently the most widespread disease within the penitentiary system’s establishments in Georgia. In addition, as in previous years, in 2009 tuberculosis remained the number-one cause of death ... in prisons. Monitoring has revealed a high frequency of multi-resistant forms of tuberculosis.
Extra-pulmonary forms of TB are not a rarity either, and their spectrum has significantly expanded so as to include [other] diseases, starting with TB pleurisy and ending with neuro-tuberculosis, which damages almost all internal organs. In our view, such a trend is a direct result of inadequate management of TB infection within the penitentiary system.
Although a great number of penitentiary establishments do carry out screening for TB, and identify and include infected prisoners in relevant programmes, such measures are not effective enough, especially against the background that systemic and specific reasons for the spread of the disease have remained unresolved for years.
Newly-built penitentiary establishments are not planned with a view to due consideration of lighting and aeration systems, which are crucial components in preventing the spread of tuberculosis. The infection is spread by inhaling air containing airborne parcels of mycobacterium tuberculosis, coughed out by a person infected with tuberculosis. Mycobacterium survives a few hours in the air and depends on the actual environment. Infection occurs, as a rule, in a closed space (room) that is not properly aerated. It should also be mentioned that direct sunbeams can quickly kill the mycobacterium tuberculosis, which is not possible in a closed space...
We have discovered through monitoring that a total of 1,579 persons suffering from tuberculosis were identified by screening and further tests conducted in the establishments of the Georgian penitentiary system. Of these, 1,172 persons were involved in the DOTS program. 60 persons were diagnosed with the multi-resistant form of tuberculosis, of whom 59 persons were involved in the DOTS+ programme...
Death rate in the penitentiary system of Georgia
The Office of the Public Defender has been studying the death rate in Georgian penitentiary establishments for the last few years. 371 prisoners died in 2006-2009. 90 prisoners die every year on average... Based on various sources, including the results of the monitoring, the Office of the Public Defender has found that 91 prisoners (1 woman and 90 men) died in Georgia in 2009...
As for the spread of tuberculosis and its effect on the [prisoners’] death rate, it should be noted that tuberculosis was found in 46 of the 91 deceased patients. As in previous years, tuberculosis remains a major cause of death within Georgian penitentiaries. Half of the prisoners (50.54%) who died in 2009 had lung tuberculosis. The increase in the proportion of prisoners infected with tuberculosis in the total number of deceased prisoners has become a recurrent trend.
An increase in the number of extra-pulmonary forms of tuberculosis in recent years should be regarded as being directly caused by inadequate management of the tuberculosis infection. 13.18% of the deceased prisoners were infected with the multiresistant form of tuberculosis. Also, 19% of the deceased prisoners had pneumonia (39% of those who died from tuberculosis). Among the causes death in patients infected with tuberculosis, hemorrhagic shock and acute anemia were the direct cause of death in a number of cases. These, in their turn, were caused by bleeding from TBinfected lungs. Instances of pulmonary bleeding of varying intensities are described in 9 forensic medical reports.
It should be mentioned that even the Medical Establishment for Tubercular Convicts does not offer TB-surgery services. Hence, such patients are, in fact, destined to die. TB infection is often contracted at the same time as virus hepatitis and human immunodeficiency virus...
The index of prisoners who died from the multi-resistant form of tuberculosis was higher in the second half of 2009 than in the first half. For this reason, we think it is necessary to enquire into details of how the DOTS+ programme is progressing and to include the country’s leading specialists and institutions in future planning. Organisational errors are also frequent in the management of tuberculosis.”
48. In 1992 the World Health Organisation (“the WHO”) developed a global strategy for treatment of ordinary tuberculosis, which was called DOTS (Directly Observed Treatment, Short-course). In 1997 the WHO extended the initial DOTS programme to include the treatment of multidrug resistant forms of tuberculosis. To facilitate the implementation of this new, extended programme, which was subsequently called DOTS+, the WHO published in the same year Guidelines for the Management of Drug-Resistant Tuberculosis. The relevant excerpts from these Guidelines read as follows:
“FOREWORD
1. About one third of the world’s population is infected by M. tuberculosis. Worldwide in 1995 there were about nine million new cases of tuberculosis with three million deaths. M. tuberculosis kills more people than any other single infectious agent. Deaths from tuberculosis comprise 25% of all avoidable deaths in developing countries. 95% of tuberculosis cases and 98% of tuberculosis deaths are in developing countries; 75% of these cases are in the economically productive age group (15 - 50 years).
2. As a consequence, the world is facing a much more serious situation as we approach the twenty-first century than in the mid-1950s. Due to demographic factors, socio-economic trends, neglected tuberculosis control in many countries, and in addition, the HIV epidemic, there are many more smear-positive pulmonary tuberculosis cases, often undiagnosed and/or untreated. When tuberculosis cases are treated, poor drug prescription and poor case management are creating more tuberculosis patients excreting resistant tubercle bacilli.
3. In 1991, the World Health Assembly adopted Resolution WHO 44.8, recognizing “effective case management as the central intervention for tuberculosis control”, and recommending the strengthening of national tuberculosis programmes by introducing short course chemotherapy and improving the treatment management system.
Since 1992, the WHO Global Tuberculosis Programme has developed a new strategy, to meet the needs of global tuberculosis control. “DOTS” is the brand name of the WHO recommended tuberculosis control strategy. ...
6. The issue of the treatment of those pulmonary tuberculosis patients who remain sputum smear-positive following fully supervised WHO retreatment regimen should be considered. Although these cases represent a small minority of tuberculosis patients, they constitute an ongoing problem for programme managers.
Due to the lack of financial resources, many countries cannot provide the range of the expensive second-line drugs which might give some hope of cure to these patients. However, more economically prosperous countries might wish to do so, especially if they have inherited a significant number of patients with multi drug resistant (MDR) tuberculosis from a period when treatment was unorganized and chaotic. Many countries also lack information about the correct use of second-line drugs.
The WHO Tuberculosis Control Workshop held in Geneva, October 1995, discussed this issue and recommended that a country prepared to go to this expense should only provide these second-line drugs for a specialised unit (or units in large countries), in close connection with a laboratory able to carry out cultures and reliable susceptibility tests of M. tuberculosis to the drugs.
The WHO Global Tuberculosis Programme has prepared these “Guidelines for the Management of Drug-Resistant Tuberculosis”, to meet the need for clear advice on this issue. ...
1.2 HOW IS MDR TUBERCULOSIS PRODUCED?
As with other forms of drug resistance, the phenomenon of MDR tuberculosis is entirely man-made.
Drug resistant bacilli are the consequence of human error in any of the following:
prescription of chemotherapy;
management of drug supply;
case management;
process of drug delivery to the patient.
The most common medical errors leading to the selection of resistant bacilli are the following:
(a) the prescription of inadequate chemotherapy to the multibacillary pulmonary tuberculosis cases (e.g. only 2 or 3 drugs during the initial phase of treatment in a new smear-positive patient with bacilli initially resistant to isoniazid);
(b) the addition of one extra drug in the case of failure, and repeating the addition of a further drug when the patient relapses after what amounts to monotherapy.
The most common errors observed in the management of drug supply are the following:
(a) the difficulty experienced by poor patients in obtaining all the drugs that they need (due to lack of financial resources or social insurance);
(b) frequent or prolonged shortages of antituberculosis drugs (due to poor management and/or financial constraints in developing countries);
(c) use of drugs (or drug combinations) of unproven bioavailability.
The following also have the effect of multiplying the risk of successive monotherapies and selection of resistant bacilli:
(a) the patient’s lack of knowledge (due to a lack of information or due to inadequate explanation before starting treatment);
(b) poor case-management (when the treatment is not directly observed, especially during the initial phase). ...
2.1 SPECIALISED UNIT
Treatment of patients with MDR tuberculosis (especially those with resistance to rifampicin and isoniazid) may have to involve “second line” reserve drugs. These are drugs other than the “standard” essential antituberculosis drugs, i.e. rifampicin (R), isoniazid (H), streptomycin (S), ethambutol (E), pyrazinamide (Z), thioacetazone (T). These reserve drugs are much more expensive, less effective and have many more side effects than standard drugs. They should only be made available to a specialised unit and not in the free market. It is the responsibility of national health authorities to establish strong pharmaceutical regulations to limit the use of second-line reserve drugs in order to prevent the emergence of incurable tuberculosis.
2.2 DESIGNING AN APPROPRIATE REGIMEN
Designing an appropriate regimen for the individual patient needs experience and skill. It includes allocating the time and patience to define precisely the following:
(a) which regimen(s) the patient had previously received;
(b) whether the patient took all the drugs in each regimen prescribed and for how long;
(c) to find out what happened bacteriologically, in terms of sputum positivity (at least by direct smear, if possible also by culture and susceptibility tests) during and after the administration of each regimen. Clinical and radiological progress or deterioration is much less reliable but may be used as a check on the bacteriological results.
2.3 RELIABLE SUSCEPTIBILITY TESTING
The specialised unit must have the services of a laboratory able to carry out culture and reliable tests for drug resistance (to the essential drugs and also to second-line drugs).
The quality of the susceptibility tests carried out in this laboratory should be regularly checked by another reference laboratory at national or supranational level.
2.4 RELIABLE DRUG SUPPLIES
The unit must also be guaranteed reliable supplies of the expensive “second line” reserve drugs, so as to ensure that any treatment undertaken for an individual patient can be successfully completed.
VIOLATED_ARTICLES: 2
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