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Statement of facts (4)
Statement of facts - Part 4 of 4
On 27 February 2006 the Department for Penitentiary System Reform, Monitoring and Medical Supervision of the Ministry of Justice of Georgia stated that on 23 February 2006 the experts' commission examined the second applicant's medical condition at establishment #5 for the examination of women and juveniles. Their diagnosis was: heart ischemia, instable stenocardia, arterial hypertension with frequent crises, chronic cholecystitis. She is given an ambulatory treatment (see the attached Annex A..).
On 1-2 March 2006 the assignment hearing was held at the Mtskheta Regional Court with Judge Marika Bo. presiding. The first hearing of the case was set for 6 March 2006.
On 6 March 2006 Judge Bo. failed to appear and the hearing was continued to 20 March 2006.
As the case materials demonstrate, the hearing was not held on 20 March 2006 either.
On 16 March 2006 the first applicant's sister Alexandra O. submitted a letter to the Public Defender of Georgia in which she stated that on 6 January 2006 she had been summoned by the Tbilisi prosecutor to his office where she was confronted by an investigator of the first applicant's criminal case and other prosecutors of the Mtskheta Regional Prosecutors' Office. These persons forced Alexandra O. to write a letter of resignation (see the attached Annex A..).
On 10 April 2006 the first hearing took place, but not before Judge Bo., but under Judge Gela Ki. The case record does not indicate why the hearing was postponed on 20 March 2006, when the case was assigned to Judge Ki.
On 3 July 2006 the applicants' counsels for the defence, Ketevan Mekhuzla and Tamar Gabisonia, sent an application to the European Court of Human Rights seeking a higher priority within the Rules of Court and article 41 of the European convention on Human Rights.
On 7 August 2006 for unknown reasons the judge of the Mtskheta Regional Court severed the criminal case against the third accused, Dr. Tina Sv., from appellants' case.
On 9 August 2006 the Mtskheta Regional Court pronounced judgement, sentencing both applicants to three years in prison.
On 7 September 2006 the European Court of Human Rights rejected the applicant's application for higher priority.
On 25 September 2006 the case was transferred to the Tbilisi Appellate Court.
On 2 November 2006 the Tbilisi Appellate Court commenced hearing the case before only one judge, Judge Marina Kh..
On 29 December 2006 the Tbilisi Appellate Court rendered its decision. This decision left the judgement of the Mtskheta Regional Court of 9 August 2006 in force.
On 20 January 2007 applications of cassation were lodged with the Supreme Court of Georgia in which the both applicants sought a judgment of acquittal because there was no evidence that any of their actions were criminal under Georgian law.
On 9 March 2007 the first applicant's representative, Wolfgang P. Schulz, sent an application to the ECHR stating that for an unknown reason the first applicant had been unexpectedly moved from the medical institution of the Prison Department to Rustavi Prison. The application alleged that taking into consideration the conditions in this prison, it was intolerable and life-threatening for even a healthy man to stay there, let alone for the first applicant considering his diagnosis. As mentioned above, from the very beginning of the criminal proceeding against the first applicant, i.e., during the pre-trial investigation, a group of medical experts concluded that the first applicant was suffering from "the lumbar spondylosis, ligamentitis, dorsomediolateral sequestered prolapse of disk to the right". In addition, a neurosurgeon stated unequivocally that the first applicant needed to be operated at the specialized clinic (see the attached Annex A..). Instead, he had been moved to the Rustavi Prison, where conditions were extremely severe.
On 22 March 2007 the ECHR asked the Georgian government to provide the court with information related to the first applicant's medical condition and whether or not he was provided with an adequate medical treatment. The Georgian government was given until 5 April 2007 to respond. (see the attached Annex A..).
On 5 April 2007 in response to the request of the ECHR, the Prison Department of the Ministry of Justice of Georgia ordered the relevant specialists to examine the first applicant. As a result of this examination the custody administration was obliged to move the first applicant back to the Republican Prison Hospital (the medical institution for prisoners). This happened on the day when the deadline given by the ECHR to the Georgian government was about to expire. Although, afterwards, when the first applicant and his representative received the Georgian government's reply to the Court, they noticed that the government's reply did not contain a statement about the first applicant's move to the Rustavi custody and then his return to the Prison Republican Hospital (see the attached Annex A..).
On 17 April 2007 the first applicant's representative received a letter from the ECHR accompanied by the Georgian government's reply of 5 April 2007 and he was given a deadline 14 May 2007 to present to the Court any comments on the Georgian government's reply of 5 April 2007 (see the attached Annex A..).
On 10 May 2007 the first applicant's representative sent his response to the Georgian government's reply of 5 April 2007 to the ECHR (see the attached Annex A..).
On 8 June 2007 the ECHR asked the Georgian government to provide the first applicant with a medical treatment appropriate for his medical condition. In order to determine what kind of medical treatment was appropriate, the government was supposed to provide for the first applicant's examination by a commission of two neurosurgeons, one of them designated by each party. The letter of the ECHR did not mention any date for such examination. Also, no deadline was set for the Georgian government to inform the Court about the results of the examination (see the attached Annex A..).
On 23 July 2007 the chamber for criminal cases of the Supreme Court of Georgia declined to examine both applicants' appeals on the following grounds: (1) "This case is not important for legal development and establishing the common judicial practice" and (2) "This judgement does not differ from the practice of the Supreme Court of Georgia regarding such categories of cases" (see the attached Annex A..).
With this decision all domestic remedies were exhausted, making it possible for both applicants to apply to the European Court of Human Rights.
On 3 August 2007 the first applicant's defense counsel applied to the Prison Department of the Ministry of Justice of Georgia seeking the first applicant's pre-term conditional release because of a decline in his health. The application also emphasized that the first applicant was characterized positively by the Custody Administration.
On 13 September 2007 the first applicant's defense counsel received an abstract from the report of the meeting of the Permanent Commission of the Prison Department of the Ministry of Justice of Georgia held on occasion of the first applicant's defense counsel's application of 3 August 2007 for the first applicant's pre-term conditional release. This petition was rejected by the Permanent Commission on the ground that in spite of extenuating circumstances, and in spite of the first applicant's having been characterized positively by the Custody Administration, and based on analysis of the presented materials, the Commission could not observe "sufficient motivation to grant any privilege to the prisoner" (i.e., the first applicant). In addition, the commission said: "The Commission considers that a purpose of punishment (imprisonment) has not been achieved at present and at this stage it is not reasonable to present to the court a recommendation for pre-term conditional release" (see the attached Annex A..).
Of course, if the commission were objective and impartial, it would definitely have such "motivation" and reason, especially because the Custody Administration characterizes the first applicant positively and, in addition, his medical condition supports the granting of such release. But the point is that, in this specific case the commission has no "motivation" because the first applicant has applied to the European Court of Human Rights seeking a restoration of his violated rights. The Prosecutors' Office of Georgia and the penitentiary system's leaders, unfortunately, do not consider such demarche a "good behavior", in accordance with the saying "if a case is appealed to Strasbourg, no privileges to the prisoner", is considered a rule and it means that a prisoner is resisting the Prosecutors' Office and the penitentiary system of Georgia.
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