CASE OF MAKHARADZE AND SIKHARULIDZE v. GEORGIA

Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 34;Non-pecuniary damage - award

Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

On DATE the first applicant , born in DATE , was arrested on account of his purported connection with the criminal world and possession of drugs , offences prosecuted respectively by Articles CARDINAL ) § CARDINAL and CARDINAL § CARDINAL ( a ) of LAW . On DATE the ORG ordered his detention pending trial . He was subsequently placed in GPE no . CARDINAL prison .

On DATE the first applicant appealed against the detention order of DATE , 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 CARDINAL DATE and DATE , which diagnosed him with pulmonary fibro - cavernous tuberculosis and confirmed that he was a registered patient at a civil tuberculosis hospital , ORG , in GPE .

On DATE ORG dismissed the first applicant ’s appeal of CARDINAL DATE . 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 .

The applicant ’s state of health drastically deteriorated during DATE of his detention in GPE no . CARDINAL prison . Notably , he started having acute respiratory difficulties and , with his joints painfully swollen , became unable to move around without assistance . Following ORG intervention , the applicant was transferred on DATE to ORG of ORG ( “ the old prison hospital ” ) .

After DATE in the old prison hospital , the first applicant was transferred back to PERSON no . CARDINAL prison on DATE , where his state of health deteriorated further . Consequently , on DATE the authorities returned him to the old prison hospital , where he was initially placed in the intensive care unit .

On DATE the ORG convicted the first applicant of the offences with which he had been charged . He was sentenced to DATE in prison .

By letters of CARDINAL and DATE , ORG acknowledged that , following a medical examination conducted by its ORG ( “ the NFO ” ) DATE and DATE , 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 DATE , the first applicant had been receiving conventional , firstline anti - tuberculosis medication under the ORG programme ( Directly Observed Treatment , Short - course – the treatment strategy for the detection and cure of ORG recommended by ORG , see paragraph CARDINAL below ) .

On DATE ORG upheld the first applicant ’s conviction of DATE . His cassation appeal was rejected as inadmissible by ORG on DATE .

DATE and DATE , medical experts from the NFO conducted an additional examination of the first applicant . Their conclusions ( “ the medical conclusions of CARDINAL September-CARDINAL DATE ” ) 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 .

On DATE the first applicant , referring to all the available medical documents about the critical phase of his tuberculosis , including the medical conclusions of CARDINAL September-CARDINAL DATE , requested the suspension of the outstanding part of his prison sentence on the basis of the Order of DATE of the Minister of Health ( “ the Order of DATE ” ) . He complained , under ORG and CARDINAL 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 .

On DATE the Tbilisi ORG examined the first applicant ’s request of DATE at an oral hearing . Amongst others , the court heard one of the medical experts who had issued the conclusions of QUANTITY September-CARDINAL DATE . 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 LAW ( see paragraph CARDINAL below ) , the applicant ’s type of tuberculosis could serve as a basis for release from serving a sentence .

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 , ORG , would soon be introduced in NORP 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 .

During the hearing of DATE , the first applicant ’s representative submitted a handwritten letter of his client dated DATE informing the ORG of his inability to attend the hearing in person owing to his state of health . His counsel also submitted a medical opinion of PERSON , the doctor who was treating the applicant in prison , dated DATE , 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 ORG programme had proved unsuccessful . The doctor confirmed that the comprehensive ORG programme was planned to be introduced in the near future .

On DATE , DATE , the ORG 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 .

On DATE the first applicant lodged an appeal against the decision of DATE , denouncing ORG failure to endorse the medical opinion of DATE as proof of his current medical condition . He reiterated his fears that , without proper medical treatment in prison , the violation of his right under LAW would persist and , in the worst scenario , could lead to his death , in violation of LAW .

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 . ORG granted that request on DATE , 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 .

In a reply dated DATE , the NFO implicitly refused to enforce the court order of DATE , stating that the first applicant ’s state of health had already been assessed DATE and DATE , and that , prior to assessing the need for an additional examination , ORG should first hear the relevant medical experts .

On DATE the first applicant began a hunger strike to protest against the non - enforcement of the court order of DATE . 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 DATE , 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 DATE basis throughout the entire duration of his hunger strike ( see paragraph CARDINAL below ) about the damage his self - harming conduct could cause to his health .

On DATE representatives from ORG visited the first applicant in the old prison hospital . As disclosed by TIME 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 ” ) .

On DATE ORG expressed its concern about the first applicant ’s aggravated state of health and invited the prison authorities to ensure his appropriate treatment .

On DATE , pursuant to the court order of DATE , the NFO started the first applicant ’s medical examination , which ended on DATE . Its results ( “ the medical recommendations of CARDINAL October-CARDINAL DATE ” ) 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 .

In the meantime , on DATE , the first applicant terminated his hunger - strike as the court order of DATE had been enforced . On DATE 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 ORG ) . The reply was negative .

On DATE the first applicant was transferred to the newly opened medical wing of GPE no . CARDINAL prison ( “ the new prison hospital ” ) . He was visited there on DATE by representatives of ORG , 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 .

On DATE the first applicant started another hunger strike in protest against the failure to follow the medical recommendations of CARDINAL October-CARDINAL DATE . 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 DATE basis , throughout the entire duration of his strike ( see paragraph CARDINAL below ) , how deleterious his refusal to take meals was for his state of health . The applicant also refused blood transfusions during that period .

On DATE ORG examined the first applicant ’s appeal against the decision of DATE at an oral hearing . The court heard one of the medical experts who had issued the medical recommendations of CARDINAL October-CARDINAL DATE . 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 PERSON , the doctor who was treating the applicant in prison , dated DATE . According to that opinion , the applicant had been provided with a combination of unspecified SLDs since DATE 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 GPE .

In a decision of DATE , relying on the medical opinion of DATE ORG dismissed the first applicant ’s appeal against the decision of DATE as being unfounded .

On DATE the first applicant terminated his hunger strike .

As disclosed by his medical file , from DATE the applicant refused to take ORG 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 DATE ORG complained about that problem to the prison authorities .

On DATE , DATE , 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 TIME on DATE .

On DATE the first applicant requested , under Rule CARDINAL of ORG , 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 .

On DATE the President of the ORG partly granted the above - mentioned request , indicating to the ORG 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 ORG decision of DATE ordering the applicant ’s medical examination had already been enforced ( see paragraph CARDINAL 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 DATE .

By a letter of DATE , the ORG submitted to the ORG the medical recommendations of CARDINAL October-CARDINAL DATE in support of the fact that the court decision of DATE had duly been enforced .

As to the first applicant ’s transfer to a specialised tuberculosis hospital , the ORG stated that such a measure was not necessary for the following reasons . First , the applicant had already been transferred , on DATE , 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 ORG , to which programme he had already had access in prison .

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 , ORG 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 .

In a letter of CARDINAL DATE , addressed to the Minister of ORG , ORG expressed his deep concern about the failure to transfer the first applicant to a specialised tuberculosis hospital , contrary to the interim measure indicated by ORG on DATE ; the Minister was urged to ensure the immediate enforcement of that measure .

Pursuant to section QUANTITY b ) and CARDINAL of LAW , 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 ORG .

On DATE the Minister of Health issued an Order ( Order no . CARDINAL ) on the basis of section CARDINAL of LAW , 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 .

Pursuant to LAW ( a ) of the ORG , 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 .

Article CARDINAL of the ORG 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 .

The relevant excerpts from the above - mentioned ORG , bearing on the problem of tuberculosis in NORP prisons , read :

“ Health - care services

DATE . 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 .

The delegation noted that the supply and range of medication available at the establishments visited had considerably improved in DATE . 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 ...

The ORG 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 . CARDINAL in GPE . 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 . CARDINAL in GPE , Prison No . CARDINAL in FAC CARDINAL in GPE or ORG establishment No . CARDINAL in GPE . ...

[ R]ecommendations

- the NORP authorities to take steps to ensure that all newly arrived prisoners are seen by a health - care staff member within TIME of their arrival . The medical examination on admission should be comprehensive , including appropriate screening for transmissible diseases ( paragraph CARDINAL ) ; ...

- the NORP authorities to persevere in their efforts to combat tuberculosis in the prison system , through systematic screening and treatment of prisoners in accordance with the ORG method for tuberculosis control ( paragraph CARDINAL ) . ”

“ CARDINAL . GPE ’s imprisonment rate is very high by international standards and , as noted in the report on the visit in DATE , can not 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

The spread of tuberculosis in the prison system remains a major challenge for the NORP authorities . The progress made over DATE , with the important assistance of ORG ( 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 ORG to present themselves to clinical staff for diagnosis ) ....

The Medical establishment for prisoners in GPE ( PERSON ) , located within the perimeter of the LAW penitentiary complex , represents a great improvement on FAC visited by the ORG in DATE and DATE . The delegation gained a globally positive impression of this new facility , inaugurated at DATE but in fact functioning fully only for DATE . With an official capacity of CARDINAL beds , the establishment was accommodating CARDINAL sick prisoners at the time of the visit . All the patients were men .

There were CARDINAL 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 .

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 CARDINAL 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 TIME of their arrival . The medical examination on admission should be comprehensive , including appropriate screening for transmissible diseases and injuries ( paragraph CARDINAL ) ;

- the NORP authorities to persevere in their efforts to combat tuberculosis in the prison system , through systematic screening and treatment of prisoners in accordance with the ORG method for tuberculosis control . In this context , steps to be taken to ensure that prisoners diagnosed as ORG - positive are promptly transferred to a hospital facility for treatment and that inmates with whom such prisoners have been in contact are screened for ORG ( paragraph CARDINAL ) . ”

The relevant excerpts from the above - mentioned Report read :

“ Tuberculosis nevertheless remains a serious problem in the NORP 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 ORG .

Provide nutrition and material conditions that are conducive to the improvement of tuberculosis patients’ health . ”

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 NORP penitentiary system in coordination with ORG , 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 DATE . In our view , CARDINAL reason for this worsened situation is ineffective implementation of standard antituberculosis measures within the NORP reality , with no regard to local specificities and without having assessed and analyzed the risk of a spread in GPE .

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 GPE - 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 GPE . In addition , as in DATE , in DATE 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 GPE are not a rarity either , and their spectrum has significantly expanded so as to include [ other ] diseases , starting with GPE 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 GPE infection within the penitentiary system .

Although a great number of penitentiary establishments do carry out screening for GPE , 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 DATE .

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 TIME 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 CARDINAL persons suffering from tuberculosis were identified by screening and further tests conducted in the establishments of the NORP penitentiary system . Of these , CARDINAL persons were involved in the ORG program . CARDINAL persons were diagnosed with the multi - resistant form of tuberculosis , of whom QUANTITY persons were involved in the GPE programme ...

Death rate in the penitentiary system of GPE

ORG has been studying the death rate in NORP penitentiary establishments for DATE . CARDINAL prisoners died in DATE . CARDINAL prisoners die DATE on average ... Based on various sources , including the results of the monitoring , ORG has found that CARDINAL prisoners ( CARDINAL woman and CARDINAL men ) died in GPE in DATE ...

As for the spread of tuberculosis and its effect on the [ ORG ] death rate , it should be noted that tuberculosis was found in CARDINAL of the CARDINAL deceased patients . As in DATE , tuberculosis remains a major cause of death within NORP penitentiaries . CARDINAL of the prisoners ( PERCENT ) who died in DATE 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 DATE should be regarded as being directly caused by inadequate management of the tuberculosis infection . PERCENT of the deceased prisoners were infected with the multiresistant form of tuberculosis . Also , PERCENT of the deceased prisoners had pneumonia ( PERCENT 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 GPE lungs . Instances of pulmonary bleeding of varying intensities are described in CARDINAL forensic medical reports .

It should be mentioned that even ORG does not offer GPE - 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 DATE than in DATE . For this reason , we think it is necessary to enquire into details of how the ORG programme is progressing and to include the country ’s leading specialists and institutions in future planning . ORG errors are also frequent in the management of tuberculosis . ”

In DATE ORG ( “ the WHO ” ) developed a global strategy for treatment of ordinary tuberculosis , which was called ORG ( Directly Observed Treatment , Short - course ) . In DATE the ORG extended the initial ORG programme to include the treatment of multidrug resistant forms of tuberculosis . To facilitate the implementation of this new , extended programme , which was subsequently called ORG , the ORG published in DATE Guidelines for ORG . The relevant excerpts from these Guidelines read as follows :

“ FOREWORD

CARDINAL of the world ’s population is infected by LAW tuberculosis . Worldwide in DATE there were CARDINAL new cases of tuberculosis with CARDINAL deaths . M. tuberculosis kills more people than any other single infectious agent . Deaths from tuberculosis comprise PERCENT of all avoidable deaths in developing countries . PERCENT of tuberculosis cases and PERCENT of tuberculosis deaths are in developing countries ; PERCENT of these cases are in the economically productive age group ( DATE ) .

As a consequence , the world is facing a much more serious situation as we approach DATE than in DATE . 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 .

In DATE , ORG adopted Resolution WHO CARDINAL , 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 DATE , 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 . ...

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 can not 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 ( ORG ) 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 GPE , DATE , 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 LAW tuberculosis to the drugs .

The WHO Global Tuberculosis Programme has prepared these “ Guidelines for ORG ” , to meet the need for clear advice on this issue . ...

TIME 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. CARDINAL drugs during the initial phase of treatment in a new smear - positive patient with bacilli initially resistant to isoniazid ) ;

( b ) the addition of CARDINAL 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 ) . ...

CARDINAL ORG 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 .

CARDINAL 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 .

CARDINAL 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 .

CARDINAL 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 .


The applicant was born in DATE and lives in GPE .

On DATE , while travelling with his family to GPE , the applicant was stopped in LOC by officers of the road police . The police discovered that the applicant 's car had been brought into GPE on DATE and that customs had authorised its circulation on NORP territory for DATE only . On DATE the ORG seized the applicant 's car as the object of a breach of customs regulations .

On DATE ORG opened a case against the applicant for failure to take the vehicle out of the customs territory of GPE within the established time - limit , this being an administrative offence under LAW .

On DATE an expert identified the applicant 's car as a ORG CARDINAL having a depreciated value of MONEY ( RUR ) .

On DATE the customs authorities found the applicant guilty of a breach of Article CARDINAL § CARDINAL of LAW and imposed a fine equal to the car 's value . The fine was payable within DATE of receipt of the decision or , if an appeal was lodged , within DATE of the final decision on the appeal .

On DATE ORG rejected the applicant 's appeal against the decision of DATE . An appeal to a court lay against such a refusal .

On DATE the applicant lodged an appeal with ORG of GPE . According to the applicant , ORG confirmed that on DATE a copy of the complaint had been delivered to ORG .

On DATE the customs office forwarded the decision of DATE to the bailiffs ' service for enforcement through the sale of the car . The applicant was not informed of this .

On DATE the bailiff commissioned a private company to organise the sale of the car .

After several reductions of the sale price , on DATE the car was sold for RUR CARDINAL,CARDINAL .

On DATE the ORG heard the appeal . It found that the existence of a breach was not disputed by the parties and that the decision imposing the fine had not become time - barred . The court dismissed the complaint .

On DATE ORG upheld , on the applicant 's appeal , the judgment of DATE .

The applicant complained to a prosecutor 's office that the sale of his car had been unlawful as it was effected at the time when his appeal against the customs office 's decision was pending .

On DATE the NORP transport prosecutor 's office sent a letter to the head of ORG . A deputy prosecutor determined that the decision of DATE had been enforced in breach of LAW . Having received , on DATE , a copy of the applicant 's appeal to a court , ORG had not forwarded that information to the bailiff or suspended the enforcement proceedings . The deputy prosecutor recommended that similar violations be avoided in the future , yet in the applicant 's case he refused to take action because “ the ORG interests had not been harmed ” .

The applicant complained to a court about the bailiff 's acts . He submitted , in particular , that he had not been notified of the opening of the enforcement proceedings or informed about the reduction of the sale price and that the car had been sold outside the DATE time - limit .

On DATE the ORG of the GPE Region gave judgment . It found that the representative of the PERSON bailiffs ' service could not show that the applicant had been notified of the enforcement proceedings and price reduction . Nor could he explain what actions had been undertaken by the bailiff to identify the applicant 's sources of income or other property and why the car had not been offered to the creditor upon expiry of the DATE time - limit but instead had been sold DATE . The court noted that the enforcement file contained the report on the impossibility of enforcement dated DATE , but the documents on which the act had been founded were missing . The court made a declaratory judgment that the enforcement procedure had been carried out in breach of LAW .

The applicant also lodged a complaint against ORG . He submitted , in particular , that the office had failed to suspend the enforcement proceedings pending the outcome of his complaint to a court .

On DATE the ORG of LOC dismissed the complaint . As regards the allegedly premature transfer of the car to the bailiffs , the court held as follows :

“ The car taken from [ the applicant ] was a piece of evidence that , pursuant to LAW , was to be kept until the time - limit for lodging an appeal against the decision of the customs office ... had expired or until a higher customs office or a district / town court had given a decision ... The car was handed over for sale to the court bailiffs after the higher customs office had replied to [ the applicant 's ] complaint ; [ the applicant ] did not show that , before the handover of the car had been effected , he had informed ORG of his having lodged a complaint with a court ; an acknowledgement - of - receipt coupon on p. CARDINAL of the case file is not evidence of appropriate notification because [ the text of ] the notification is missing ... ”

On CARDINAL DATE ORG , on the applicant 's appeal , upheld the judgment of DATE .

The applicant sued ORG of ORG , the authority in charge of court bailiffs , for pecuniary and non - pecuniary damage caused by the court bailiff .

On DATE a Justice of the Peace of the CARDINALth ORG of the Zyuzino District of GPE granted the applicant 's claims in part . He determined that the applicant 's car had been billed for sale on DATE and that the price had been reduced on DATE , DATE , CARDINAL DATE and DATE . On DATE it had been sold for RUR CARDINAL,CARDINAL . The court found that , in breach of the requirement of LAW , the applicant had not been informed of the enforcement proceedings , the bailiff had not attempted to identify his other assets or money , the creditor had not been offered to keep the car or to contest the sale price of the car . The court noted the decision of the LAW prosecutor 's office of DATE whereby criminal proceedings against the court bailiff were discontinued . The decision established that the bailiff might have been guilty of professional negligence ( LAW ) , but prosecution was time - barred . The court ruled that there was a causal link between the bailiff 's unlawful actions and the pecuniary damage caused to the applicant , and ordered ORG , as the bailiff 's employer , to reimburse ORG CARDINAL to the applicant ( the difference between the car 's valuation and sale price ) and to pay ORG CARDINAL in respect of non - pecuniary damage , RUR CARDINAL for legal costs and also to bear court fees .

On DATE the ORG of GPE quashed , on an appeal from ORG , the judgment of CARDINAL DATE . The court held that the applicant had failed to prove that the bailiff 's actions had caused him pecuniary or non - pecuniary damage and the violations committed by the bailiff had been of “ a procedural nature ” .

The Customs Code , as in force at the material time , provides in relevant part as follows .

A breach of customs regulations is punishable by , in particular , forfeiture of the goods or vehicles that were the object of the offence , or payment of a fine equal to their value ( LAW and CARDINAL ) .

Physical evidence includes the goods and vehicles that were the objects of a violation of the customs regulations . Such evidence is kept in the warehouse until the time - limit for lodging an appeal has expired or the appeal has been decided upon by the higher customs office or a court ( Article CARDINAL ) .

The goods and vehicles that were the object of a violation of the customs regulations will be seized . If the person who is found liable for a violation of customs regulations has no permanent residence in GPE , his goods , money or vehicle may be seized as security for payment of the fine ( LAW ) .

The order on payment of a fine may be enforced by the customs office after the time - limit for lodging an appeal has expired ( Article CARDINAL ) . The lodging of an appeal shall suspend enforcement ( Article CARDINAL ) . The fine is payable within DATE after the final decision refusing the appeal against the order was issued . If the fine has not been paid within this time - limit , it may be recovered from the goods charged as security for the payment or from the person 's other assets or income ( Article CARDINAL ) .

LAW provides in relevant part as follows .

A copy of the decision on the opening of enforcement proceedings must be sent to the debtor within DATE of issue ( section CARDINAL § CARDINAL ) . The creditor and the debtor are the parties to the enforcement proceedings ( section CARDINAL § CARDINAL ) .

Recovery may be made out of the debtor 's property if the debtor does not have sufficient cash funds in NORP roubles or foreign currency ( section CARDINAL ) .

Property subject to a charge may be sold within DATE of the charge order . If the property has not been sold within DATE , the creditor will have the right to keep the property . If the creditor refuses , the property is returned to the debtor and the writ of enforcement to the creditor ( section DATE ) .


CASE OF ATANASOV AND OVCHAROV v. BULGARIA

Violation of Art. 6-1;Violation of Art. 13+6-1

Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

PERSON ( “ the first applicant ” ) was born in DATE and lives in GPE . He is the son - in - law of Mr Ovcharov ( “ the second applicant ” ) who was born in DATE and lives in PERSON .

DATE the second applicant was the head of a farm cooperative .

On DATE the farm cooperative , represented by the second applicant , acquired a tractor ( “ the first tractor ” ) at an auction organised by another cooperative .

On DATE the first applicant acquired a similar , cheaper tractor ( “ the second tractor ” ) at a second auction organised by the same cooperative . Immediately after the auction the first applicant , assisted by the second applicant , took possession of a tractor . However , they apparently took the first tractor .

The farm cooperative took possession of the second tractor on DATE .

On DATE an invoice was issued to the first applicant for the purchase of the second tractor . Subsequently , the first applicant requested the seller to reissue the sales invoice so that it indicated that he had in fact acquired the first tractor .

Sometime around DATE the farm cooperative discovered that it had a different tractor from the one it had purchased . Soon thereafter it complained to the authorities of the alleged fraud perpetrated by the applicants .

On DATE a preliminary investigation was opened against the applicants .

On DATE the applicants were charged with fraud and malfeasance . The charges against the first applicant were amended on DATE to include the offence of using a falsified document to obtain another 's chattel with the aim of misappropriating it .

On DATE the GPE district prosecutor 's office entered an indictment against the applicants with ORG for malfeasance fraud and use of a falsified document .

DATE and DATE ORG conducted QUANTITY hearings . During this period the judge in charge of the proceedings was changed on QUANTITY occasions for undisclosed reasons . At the hearing on DATE the ORG established that there had been procedural violations at the stage of the preliminary investigation , discontinued the proceedings and remitted the case to the investigation authorities .

The preliminary investigation against the applicants continued and there were no significant developments until DATE .

On DATE and DATE the applicants filed separate requests with ORG under the procedure envisaged in the new Article CARDINALa of the Code of Criminal Procedure ( see paragraph CARDINAL below ) and petitioned the court to order the termination of the preliminary investigation against them .

In decisions of DATE and DATE ORG referred the case to the NORP regional prosecutor 's office either to discontinue the preliminary investigation or to enter indictments against the applicants . In its decision of CARDINAL DATE the court established that no investigative procedures whatsoever had been undertaken since DATE , when ORG had remitted the case to the investigation authorities .

Following a delay by the prosecutor 's office to rule on the matter , the applicants lodged their requests again on DATE .

NORP In a decision of DATE the regional prosecutor 's office discontinued the preliminary investigation against the applicants because the time - limit for prosecution under the statute of limitations for the offences had expired .

On DATE the applicants appealed against the decision of the prosecutor 's office and claimed that the grounds for terminating the preliminary investigation should be the lack of evidence of an offence and not the expiry of the time - limit for prosecution under the statute of limitations .

In a decision of CARDINAL DATE ORG upheld the decision to discontinue the preliminary investigation against the applicants and found that they could not seek to amend the grounds for its termination . The court reasoned that if the applicants had wanted to have the criminal proceedings terminated because of the lack of evidence that they had perpetrated an offence then they should have requested that the proceedings continue in spite of the expiry of the time - limit under the statute of limitations , which they had not done .

On DATE the police seized the first tractor from the first applicant and impounded it as physical evidence in the pending criminal proceedings .

The seizure and impounding of the first tractor was upheld on appeal by the district and regional prosecutor 's offices and by ORG on unspecified dates .

The first tractor was held in storage at a police compound until it was delivered to the farm cooperative on an unspecified date before DATE .

On DATE the district prosecutor 's office ordered the farm cooperative to deliver the second tractor to the second applicant , which it did not do .

The applicants asserted that in the course of the preliminary investigation against them the authorities also seized a hunting rifle from each of them and held them as physical evidence . However , it is unclear when and how these actions were undertaken .

In so far as can be ascertained from the documents presented , the second applicant voluntarily handed over a hunting rifle to the police on DATE , which was returned to him on DATE .

Paragraphs CARDINAL , CARDINAL and CARDINAL of LAW ( DATE ) provided as follows :

“ ( CARDINAL ) Physical evidence must be carefully examined , described in detail in the respective record , and photographed , if possible .

( CARDINAL ) Physical evidence shall be attached to the case file while at the same time measures shall be taken not to spoil or alter the evidence .

( CARDINAL ) Physical evidence which , because of its size or other reasons , can not be attached to the case file , must be sealed , if possible , and deposited for safekeeping at the places indicated by the respective authority . ”

Paragraphs CARDINAL and CARDINAL of Article CARDINAL of the Code , as in force at the relevant time and until DATE , provided as follows :

“ ( CARDINAL ) Physical evidence shall be held until the termination of the criminal proceedings .

( CARDINAL ) ORG which have been collected as physical evidence can be returned to their owners before the termination of criminal proceedings only as long as this will not hinder the establishment of the facts in the case . ”

Article CARDINAL paragraph QUANTITY of the Code was amended on DATE to clarify that it was within the powers of the prosecutor 's office to rule on requests for the return of chattels held as physical evidence . In addition , a right of appeal to a court was introduced against refusals by the prosecutor 's office to return such chattels ( LAW paragraph CARDINAL of LAW as in force after DATE ) .

ORG If a dispute over ownership requiring adjudication by the civil courts arose in respect of items held as physical evidence , the authorities were obliged to keep those items safe until the relevant judgment became final ( LAW ) .

By an amendment of DATE the new Article CARDINALa introduced the possibility for an accused person to request to have his case examined by a court if the preliminary investigation had not been completed within the statutory time - limit ( DATE in investigations concerning serious crimes and DATE in all other investigations ) . In such instances the courts would remit the case to the prosecutor 's office with instructions to either enter an indictment against the accused within DATE or discontinue the criminal proceedings . If the prosecutor 's office failed to take action , the courts would then terminate the criminal proceedings themselves .

Section CARDINAL ( CARDINAL ) of the ORG and ORG of DATE ( the “ ORG ” : title changed in DATE ) , as in force at the relevant time , provided as follows :

“ The ORG shall be liable for damage caused to [ private persons ] from unlawful acts , actions or inactions of its apparatus and officials [ in the exercise ] of administrative duties . ”

Section CARDINAL of the ORG provides as follows :

“ The ORG shall be liable for damage caused to [ private ] persons by the [ apparatus ] of ... the investigation authorities , the prosecution authorities , the court ... for an unlawful :

NORP detention ... ;

NORP charge for an offence , if the person has been acquitted or the opened criminal proceedings have been terminated because the act was not perpetrated by the person [ in question ] or the act is not an offence ... ;

NORP sentence ... ;

NORP ... forced medical treatment ... ;

NORP ... imposition of administrative sanctions ... ;

enforcement of an imposed sentence in excess of the determined period ... ”

Compensation awarded under the LAW comprises all pecuniary and non - pecuniary damage which is the direct and proximate result of the illegal act of omission ( section CARDINAL ) . The person aggrieved has to lodge an “ action ... against the [ entity ] ... whose illegal orders , actions , or omissions have caused the alleged damage ” ( section CARDINAL ) . Compensation for damage arising from instances falling under section CARDINAL and CARDINAL of the LAW can only be sought under LAW and not under the general rules of tort ( section CARDINAL § CARDINAL ) .

The practice of the NORP courts in the application of the LAW has been very restrictive .

In particular , the domestic courts have ruled that liability for damage stemming from instances within the scope of LAW are to be examined only under LAW and not under the general rules of tort ( решение № DATE от CARDINAL.III.CARDINAL г. по гр.д. № MONEY г. , ORG , IV г.о. ) .

Similarly , liability of the investigation and prosecution authorities may arise only in respect of the exhaustively listed instances under section CARDINAL ( CARDINAL ) of the LAW and not under the general rules of tort ( решение № ORG от DATE г. по гр.д. № CARDINAL г. , PERSON and PERSON решение № CARDINAL от CARDINAL г. по т. гр. д. № CARDINAL г. , ORG на ВКС ) . In particular , the investigation authorities and the prosecutor 's office are not liable for their actions in instances , such as in the present case , where criminal proceedings have been discontinued because the time - limit for prosecution under the statute of limitations expired after the criminal proceedings had been opened ( PERSON решение № CARDINAL от CARDINAL г. по т. гр. д. № CARDINAL/CARDINAL г. , ORG на ВКС ) . No reported cases have been identified of successful claims for damage stemming from actions by the investigation or prosecution authorities which fall outside the list in section QUANTITY of the Act .

Lastly , liability under LAW may only arise for unlawful actions , but not for unlawful inactions by the investigation authorities , the prosecution authorities and the courts ( решение № CARDINAL от CARDINAL.IV.CARDINAL г. по гр. д. № CARDINAL г. ) .

The Obligations and Contracts Act provides in section CARDINAL that a person who has suffered damage can seek redress by bringing a civil action against the person who has , through his fault , caused the damage . Under section CARDINAL the claim for damage is extinguished on expiry of a DATE prescription period .