FIFTH SECTION
\nCASE OF MAISURADZE v. GEORGIA
\n(Application no. 44973\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n20\u00a0December 2018<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Maisuradze v. Georgia,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n Andr\u00e9 Potocki, President, Having deliberated in private on 27 November 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 44973\/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Georgian national, Ms Rusiko Maisuradze (\u201cthe applicant\u201d), on 27\u00a0July 2009.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Ms T. Abazadze, Ms N. Jomarjidze and Ms T. Dekanosidze, lawyers of the of the Georgian Young Lawyers Association (GYLA), as well as Mr P. Leach and Ms J. Evans, lawyers of the European Human Rights Advocacy Centre (EHRAC), based in Tbilisi and London respectively. The Georgian Government (\u201cthe Government\u201d) were represented by their Agent, most recently Mr L. Meskhoradze of the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0On 7 December 2009 the Government were given notice of the application.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1955 and lives in Rustavi.<\/p>\n A.\u00a0\u00a0Background<\/strong><\/p>\n 5.\u00a0\u00a0On 6 May 2007 an investigation was opened into a murder.<\/p>\n 6.\u00a0\u00a0On 24\u00a0May 2007 an identification parade was carried out. The eyewitness to the crime identified the applicant\u2019s son, G.T., as the culprit. The latter was arrested and remanded in custody in Tbilisi Prison no. 5.<\/p>\n 7.\u00a0\u00a0On 18\u00a0February 2008 G.T. was convicted of murder and sentenced to ten\u00a0years\u2019 imprisonment.<\/p>\n 8.\u00a0\u00a0On 23 June 2008 an appellate court upheld the conviction and sentence in full.<\/p>\n 9.\u00a0\u00a0On 28 January 2009 an appeal on points of law by G.T. was declared inadmissible as manifestly ill-founded.<\/p>\n B.\u00a0\u00a0Medical treatment in prison<\/strong><\/p>\n 10.\u00a0\u00a0Between 24 May 2007 and 7\u00a0July 2008 G.T. was detained at Tbilisi Prison no.\u00a05 and Gldani Prison no.\u00a08. No medical complaints were raised by G.T. while he was at those facilities, nor has the applicant suggestedotherwise.<\/p>\n 11.\u00a0\u00a0On 7 July 2008 G.T. was placed in Rustavi Prison no. 2.<\/p>\n 12.\u00a0\u00a0On 1\u00a0December 2008 G.T. complained of illhealth. He was examined by a duty doctor, who suspected tuberculosis.<\/p>\n 13.\u00a0\u00a0On 8 December 2008 a sputum test was performedat the laboratory of the National Centre for Tuberculosis and Lung Disease.<\/p>\n 14.\u00a0\u00a0On 17 December 2008 thesputum test revealed the presence of tuberculosis bacteria, and a susceptibility test regarding first-line drugs for the treatment of tuberculosis was ordered (\u201cthe first susceptibility test\u201d). On the same day a doctor from Rustavi Prison no.\u00a02diagnosed G.T. with tuberculosis, and recommended that he be transferred to a specialist facility.<\/p>\n 15.\u00a0\u00a0On 21 December 2008 G.T. was placed in the medical unit of Rustavi Prison no.\u00a02andenrolled in a DOTS (Directly Observed Treatment, Short-course) programme, the strategy for the detection and treatment of tuberculosis recommended by the World Health Organization. He started receiving conventional, first-line anti-tuberculosis drugs pending the outcome of the first susceptibility test. The programme in question operated at Rustavi Prison no. 2 between 21\u00a0December 2008 and 29\u00a0January 2009.<\/p>\n 16.\u00a0\u00a0On 21 January 2009 a doctor noted in G.T.\u2019s medical file that his state of health remained serious despite the treatment, and recommended that he be transferred to a specialist medical establishment.<\/p>\n 17.\u00a0\u00a0On 29\u00a0January 2009 G.T. was placed in a facilityin Ksani for prisoners with tuberculosis. The medical note made on that date refers to his tuberculosis as being \u201cmultidrug-resistant\u201d, and describes his overall condition as \u201cserious.\u201d G.T. continued to have treatment under the DOTS programme.<\/p>\n 18.\u00a0\u00a0On 24 February 2009 the results of the first susceptibility test showed that G.T. was resistant to the first-line drugs for the treatment of tuberculosis.Therefore,a second susceptibility test was ordered in respect of the second-line drugs for the treatment ofmultidrug-resistant tuberculosis (\u201cthe second susceptibility test\u201d).<\/p>\n 19.\u00a0\u00a0On 26 February 2009 G.T. was transferred to the prison hospital in view of a further deterioration in his health. The medical records relating to his time at that facility show that he was suffering from cachexia, and from early March 2009 onwards he complainedthat he was unable to walk. He continued to receive the previously prescribed anti-tuberculosis treatment with the first-line drugs pending the results of the second susceptibility test.<\/p>\n 20.\u00a0\u00a0On 10\u00a0April 2009 the results of the second susceptibility test were received by the prison hospital,and they demonstrated that the disease was responding to all but one drugout of the second-line drugs.<\/p>\n 21.\u00a0\u00a0On 24\u00a0April 2009 it was decided that G.T. should be enrolled in the DOTS+ programme for the treatment of multidrug-resistant tuberculosis.<\/p>\n 22.\u00a0\u00a0On 4\u00a0May 2009 G.T. started the prescribed treatment.<\/p>\n 23.\u00a0\u00a0On 19 May 2009 G.T. died of a massive pulmonary haemorrhage.<\/p>\n C.\u00a0\u00a0Investigation into G.T.\u2019s death<\/strong><\/p>\n 24.\u00a0\u00a0On 19 May 2009 the Investigative Department of the Ministry of Prisons opened a preliminary investigation into premeditated murder.\u00a0On the same day, a forensic medical examination was carried out to determine the exact cause of G.T.\u2019s death, which confirmed that he had died of a massive pulmonary haemorrhage, a fatal complication of the disease.<\/p>\n 25.\u00a0\u00a0The investigating authorities questioned the chief doctor of Rustavi Prison no. 2, a doctor from the Ksani facility for prisoners with tuberculosis, and a doctor from the prison hospital. They stated that G.T.\u2019s treatment under the DOTS programme had been adequate.<\/p>\n 26.\u00a0\u00a0On 13 October 2009 the investigator in charge of the case refused to grant the applicant victim status. He noted that no crime had been committed, as G.T. had died of a natural complication of his tuberculosis. The applicant appealed.<\/p>\n 27.\u00a0\u00a0On 19\u00a0November 2009a prosecutor from the Chief Prosecutor\u2019s Office who was supervising the investigations carried out by the Investigative Department of the Ministry of Prisons forwarded the applicant\u2019s appeal against the investigator\u2019s refusal to grant her victim statusto the director of that department, \u201cfor an appropriate response\u201d.<\/p>\n 28.\u00a0\u00a0On 22 February 2010 the applicant was granted victim status.<\/p>\n 29.\u00a0\u00a0An undated document signed by the prosecutor instructed the investigator to question experts from the National Centrefor Tuberculosis and Lung Disease and obtain records concerning G.T.\u2019s health.<\/p>\n 30.\u00a0\u00a0On 5\u00a0February 2010 two experts from the National Centrefor Tuberculosis and Lung Disease were also questioned. They confirmed that G.T.\u2019s treatment under the DOTS programme had been adequate. As regards his involvement in the DOTS+ programme, one of the experts noted that it was only in February and April\u00a02009 that the treatment of multidrug-resistant tuberculosishad become possible in the Ksani facility and the prison hospital respectively.<\/p>\n 31.\u00a0\u00a0On an unspecified date the investigator sent G.T.\u2019s medical file to the State Regulation Agency for Medical Activities to be assessed. The report issued on 21\u00a0May 2010 concluded that a massive pulmonary haemorrhage was a possible lethal complication of tuberculosis. It noted that G.T.\u2019s enrolment in the DOTS programme and later in the DOTS+ programme had been in compliance with the national standards on the treatment of tuberculosis.<\/p>\n 32.\u00a0\u00a0On 4\u00a0June 2010 the preliminary investigation was terminated on account of the absence of a crime. The investigator relied on the forensic evidence to conclude that G.T. had died of a natural complication of tuberculosis, and also relied on witness statementsconfirming that his treatment had been adequate.<\/p>\n 33.\u00a0\u00a0On 22 July 2010 the Tbilisi City Court allowed an application by the applicant and ordered that the investigation should be reopened in order for G.T.\u2019s sister to be questioned. His sister had allegedly met a doctor at Rustavi Prison no.\u00a02 before G.T.\u2019s official diagnosis and had given him some strong drugs intended for her brother on the basis of an unsigned and undated prescription. That doctor had not been identified or questioned.<\/p>\n 34.\u00a0\u00a0On an unspecified date the investigation was reopened. It was closed again on 15\u00a0October 2010 after G.T.\u2019s sister had been questioned and after a forensic examination of the unsigned and undated prescription had been carried out to identify whether its author was indeed one of the doctors from Rustavi Prison no.\u00a02. As the handwriting examined in the forensic examination did not resemble the handwriting of any of the doctors at the prison in question, the investigator concluded that G.T.\u2019s sister\u2019s allegations were manifestly ill-founded.<\/p>\n II.\u00a0\u00a0RELEVANT NATIONAL AND INTERNATIONAL DOCUMENTS<\/p>\n 35.\u00a0\u00a0The relevant national and international materials concerning the problem of tuberculosis in Georgian prisons at the material time, the treatment of multidrug-resistant tuberculosis in Georgian prisons at the material time, and the World Health Organization Guidelines for the Management of Drug-Resistant Tuberculosis are summarised by the Court in the case of Makharadze and Sikharulidze v.\u00a0Georgia (no.\u00a035254\/07, \u00a7\u00a7\u00a044\u201148, 22 November 2011).<\/p>\n 36.\u00a0\u00a0At the material time, the management of prisons, including the provision of medical care to prisoners was a responsibility of the Prison Department of the Ministry of Prisons (see Order no.\u00a060 of the Minister of Prisons approving the Regulations of the Prison Department, 24\u00a0February 2009). The Prison Department and the Investigative Department were subordinated to the Minister of Prisons (see Order no.\u00a060, cited above, and Order no.\u00a0152 of the Minister of Prisons approving the Regulations of the Investigative Department, 16\u00a0April 2009).<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 2 OF THE CONVENTION<\/p>\n 37.\u00a0\u00a0The applicant complained that the respondent State had failed to protect her son\u2019s health, physical well-being and life in detention, contrary to Articles 2 and 3 of the Convention. She also complained that the investigation into his death had been neither adequate nor effective.<\/p>\n 38.\u00a0\u00a0The Court considers that the above complaints fall to be examined under Article 2 of the Convention, which, in so far as relevant, reads as follows:<\/p>\n \u201c1. Everyone\u2019s right to life shall be protected by law. …\u201d<\/p>\n 39.\u00a0\u00a0The Government contested that argument.<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019submissions<\/em><\/p>\n 40.\u00a0\u00a0The Government submitted that the complaint was inadmissible for failure to exhaust domestic remedies,as the applicant had failed to request that the relevant authorities transfer her son to the prison hospital.<\/p>\n 41.\u00a0\u00a0The applicant noted that she had repeatedly requested that G.T. be transferred to a specialistfacility, and that such a transfer had been explicitly recommended by a doctor from Rustavi Prison no.\u00a02.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 42.\u00a0\u00a0The Court observesthat the gist of the applicant\u2019s complaint concerns the lack of adequate treatment with respect to her son\u2019s multidrug-resistant tuberculosis, his eventual death in the prison hospital, and the subsequent criminal investigation. Therefore, G.T.\u2019s allegedly belated transfer to a specialistfacility constitutes but one aspect of the applicant\u2019s complaint. Furthermore, G.T. informed the prison authorities of his health problems on 1\u00a0December 2008,and on 17\u00a0December 2008 the prison doctor explicitly recommended that he be transferred to a specialistfacility (see paragraph 14 above). Therefore, the relevant prison authorities were adequately alerted of G.T.\u2019s health problems and the need to transfer him to a specialist facility.<\/p>\n 43.\u00a0\u00a0In the light of the foregoing, the Court rejects the Government\u2019s objection concerning the exhaustion of domestic remedies.<\/p>\n 44.\u00a0\u00a0The Court further notes that the complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. Nor it is inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 45.\u00a0\u00a0The applicant submitted that her son had contracted tuberculosis in prison, that his transfer to a specialistfacility had not been effected promptly, and that his diagnosis of multidrug-resistant tuberculosis andhis enrolment in the DOTS+ programme had been belated. She also maintained that the investigation into her son\u2019s death had been carried out by an investigating body of the Ministry of Prisons and had lacked institutional independence. Nor had it been comprehensive, as it had been unduly limited to determining the existence of premeditated murder, rather than medical negligence and misconduct and G.T.\u2019s belatedenrolment in the DOTS+ programme.<\/p>\n 46.\u00a0\u00a0The Government submitted that neither G.T. nor the applicant had ever raised complaints regarding G.T.\u2019s health before 1\u00a0December 2008. Nor did the case files provide any indication that G.T. had been infected with tuberculosis in prison.\u00a0\u00a0As regards G.T.\u2019sallegedly belated transfer to a specialist facility, the Government relied on medical opinions obtained subsequent to his death confirming that, in view of his enrolment in the DOTS programme on 21\u00a0December 2008, it had no longer been necessary to transfer him to a specialistfacility, despite the recommendation to that end of 17\u00a0December 2008. The Government further maintainedthat the diagnosis of multidrug-resistant tuberculosis, the second susceptibility test, and G.T.\u2019s enrolment in the DOTS+ programmehad necessitated time and had not been belated.<\/p>\n 47.\u00a0\u00a0As regards the investigation into G.T.\u2019s death, the Government submitted that the investigation had commenced promptly and had been comprehensive, in view of the numerous investigative measuresimplemented by the investigator.The investigation\u2019s scope had not been unduly limited, and it had been supervised by a prosecutor from the Chief Prosecutor\u2019s Office, in order to ensure independence and impartiality.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 48.\u00a0\u00a0The general principles relating to a State\u2019s compliance with its obligation to protect life in the context ofthe death of an inmate as a result of a health problem, and the effectiveness of an ensuing investigation,were summarised in the cases of Makharadze and Sikharulidzev.\u00a0Georgia (no.\u00a035254\/07, \u00a7\u00a7\u00a071\u201173, 22 November 2011), Tsintsabadze v.\u00a0Georgia (no.\u00a035403\/06, \u00a7\u00a7\u00a071\u201176, 15\u00a0February 2011), and Karsakova v.\u00a0Russia (no.\u00a01157\/10, \u00a7\u00a7\u00a046-49 and 54-55, 27\u00a0November 2014).<\/p>\n 49.\u00a0\u00a0The Court notes that the applicant\u2019s son died in prison from multidrug-resistant pulmonary tuberculosis. In order to establish whether or not the respondent State complied with its obligation to protect life under Article 2 of the Convention, the Court must examine whether the relevant domestic authorities did everything reasonably possible, in good faith and in a timely manner, to try to avert the fatal outcome (see Makharadze and Sikharulidze, cited above, \u00a7\u00a074, and Ibragimov v. Russia [Committee], no.\u00a026586\/08, \u00a7\u00a036, 28\u00a0November 2017). The Court will further assess whether the respondent State sufficiently accounted for the cause of the applicant\u2019s death in prison (see Tsintsabadze, cited above, \u00a7\u00a095).<\/p>\n (a)\u00a0\u00a0Whether the State took all reasonable measures to treat the applicant\u2019s son effectively in prison<\/p>\n 50.\u00a0\u00a0As regards the question of G.T.\u2019s alleged infection with tuberculosis in prison, neither G.T. nor the applicant attempted to bring a civil claim for damages for the alleged infection. The Court previously examined a similar situation and found that a civil claim for damages under Article\u00a0207 of the General Administrative Code and Article 413 of the Civil Code was the most effective remedy to be used (seeGoloshvili v. Georgia, no.\u00a045566\/08, \u00a7\u00a032, 20\u00a0November 2012, andIldani v. Georgia, no. 65391\/09, \u00a7\u00a028, 23\u00a0April 2013, with further references). However, in the absence of an objection by the Government in that regard, the Court is not in a position to rule, of its own motion, on whether this complaint is inadmissible for non\u2011exhaustion of domestic remedies (see International Bank for Commerce and Development AD and Others v. Bulgaria, no.\u00a07031\/05, \u00a7\u00a0131, 2 June 2016, with further references, and Alimov v.\u00a0Turkey, no.\u00a014344\/13, \u00a7\u00a057, 6\u00a0September 2016). By contrast, the absence of a complaint regarding the applicant allegedly contracting tuberculosis in prison deprives the Court of an opportunity to rule on the matter beyond reasonable doubt.<\/p>\n 51.\u00a0\u00a0In any event, the core of the present application is the adequacy of G.T.\u2019s treatment after he was diagnosed with the disease. In that regard, the Court notes that the treatment of pulmonary tuberculosis, and its multidrug\u2011resistant form in particular, was a serious challenge in Georgian prisons at the material time (see Makharadze and Sikharulidze, cited above, \u00a7\u00a7\u00a047 and 65-66). It was only in February and April\u00a02009 (in the Ksani facility and the prison hospital respectively) that the treatment of multidrug\u2011resistant tuberculosis became possible in the prison sector and the first doctor and nurse received adequate training in that respect (see ibid., \u00a7\u00a7\u00a065\u201166).<\/p>\n 52.\u00a0\u00a0Against this background, the Court notes that G.T. was diagnosed with tuberculosis on 17\u00a0December 2008.As a result, a susceptibility test in relation to first-line medication was ordered. Without waiting for the results of the susceptibility test in relation to first-line medication, the prison\u2019s medical authorities commenced the treatment with first-line medication on 21\u00a0December 2008, the date when the DOTS programme became operational at Rustavi Prison no.\u00a02. However, the treatment had no positive effect. G.T. was transferred to a specialist prison facility for inmates with tuberculosis on 29\u00a0January 2009. While the medical recordsdrawn up at that facility indicate a sharp deterioration in his health, no adjustment of the treatment strategy was ever considered, and nor was a second susceptibility test regarding second-line treatment. There was no prompt reaction, even when on 24\u00a0February 2009 the susceptibility tests confirmed G.T.\u2019s resistance to the standard treatment. It was only then thatthe second susceptibility test was carried out. While the results were pending, G.T. continued to receive the first-line medication which had been proved to be ineffective.<\/p>\n 53.\u00a0\u00a0The Court further observes that even though the results of the second susceptibility test were obtained on 10 April 2009,showing that the disease was responding to all but one of the second-line drugs (see paragraph\u00a020 above), the treatment under the DOTS+ programme did not start until 4\u00a0May 2009 (see paragraphs 21-22 above), just two weeks before G.T.\u2019s death due to health complications. Therefore, although G.T. was diagnosed with tuberculosis on 17\u00a0December 2008, he did not receive effective treatment for the disease for about four months and two weeks. Such a lengthy delay, aggravated by the swift progress of the disease, could not be justified by the late receipt of the results of the drug susceptibility test, which could have been ordered earlier. Nothing prevented the prison medical authorities from ordering a second susceptibility test, especially considering the deterioration in G.T.\u2019s health in spite of the treatment being provided to him, as noted by the health professionals in his medical historyin January\u00a02009 (see paragraphs 16-17above). Accordingly, the Court concludes that the applicant\u2019s son was deprived of effective medication for a prolonged period of time. It cannot exclude the possibility that the absence of such treatment resulted in irreversible changes in his condition, leading to his death (see Ibragimov,cited above, \u00a7\u00a7\u00a039-40).<\/p>\n 54.\u00a0\u00a0The Court therefore concludes that the authorities failed to comply with their positive obligations under Article 2 of the Convention to protect G.T.\u2019s life.<\/p>\n (b)\u00a0\u00a0Whether the State has complied with its obligation to ensure an effective investigation<\/p>\n 55.\u00a0\u00a0At the outset, the Court notes that the applicant\u2019s son died in the prison hospital, a facility under the supervision of thePrison Department of the Ministry of Prisons.In the circumstances of the present case, the main line of inquiry calling for careful and impartial analysis was whether G.T.\u2019s death had been as a result of deficiencies in the treatment he had received in prison and how the prison medical authorities had functioned in this respect. Yet, the investigation opened was in respect of alleged premeditated murder, a crime with a rather high evidentiary threshold. This may have unduly limited the scope of the inquiry, potentially affecting the investigation\u2019s ability to identify possible perpetrators.<\/p>\n 56.\u00a0\u00a0Furthermore, while the investigation commenced promptly and the investigating authorities obtained forensic and witness evidence (see paragraphs 24-31 above), the main line of inquiry was limited to ascertaining the immediate cause of G.T.\u2019s death and the adequacy of his treatment in general terms.\u00a0The investigating authorities did not make a genuine attempt to find out whether it had been possible to suspect that the tuberculosis was resistant and perform the second susceptibility test earlier \u2013 especially given the persistent and rapid deterioration in G.T.\u2019s health despite treatment, as evidenced by the relevant medical records \u2013 or whether it had been possible to adjust the treatment strategy as soon as the ineffectiveness of the standard treatment had become evident. Nor did the authorities inquire into the reasons behind the delay of twenty-four days in starting the treatment under the DOTS+ programme after the prison medical authorities had obtained the results of the second susceptibility test.<\/p>\n 57.\u00a0\u00a0As regards the independence of the investigation, despite certain degree of involvement on the part of the public prosecutor (see paragraphs\u00a027 and 29 above), all the main investigative measures were implemented by the Investigative Department, and the relevant findings were then endorsed by the public prosecutor. The latter did not undertake any independent steps, except indicating to the investigator that experts were to be questioned and G.T.\u2019s health records obtained (see paragraph\u00a029 above). There are no indications that the prosecutor was prepared to scrutinise the account of the incident provided by the Ministry\u2019s Investigative Department. Against this background, the institutional connectionbetween the investigating authorities and the persons implicated in the incident(see paragraph\u00a036 above) raises doubts as to the independence of the investigation conducted (seeTsintsabadze, cited above, \u00a7\u00a7\u00a076 and\u00a078, with further references;\u0110ur\u0111evi\u0107 v.\u00a0Croatia, no.\u00a052442\/09, \u00a7\u00a7\u00a088\u201190, ECHR\u00a02011\u00a0(extracts); and Kummer v.\u00a0the Czech Republic, no.\u00a032133\/11, \u00a7\u00a083 and 85-86, 25\u00a0July 2013).<\/p>\n 58.\u00a0\u00a0Having regard to the above considerations, the Court concludes that the investigation carried out by the relevantauthorities into the circumstances of the death of the applicant\u2019s son was not in compliance with Article 2 of the Convention under its procedural limb.<\/p>\n II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION<\/p>\n 59.\u00a0\u00a0The applicant complained that her son had not had access to a lawyer during the identification parade on 24\u00a0May 2007. She relied on Article\u00a06 of the Convention which, in so far as relevant, reads:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights: …<\/p>\n (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; …\u201d<\/p>\n 60.\u00a0\u00a0The Government submitted that the applicant lacked victim status. In particular, as G.T. had died before the application had been lodged with the Court, the imminently personal character of the complaint rendered it non-transferable to the applicant,who had not been a party to the domestic criminal proceedings concerning the murder.<\/p>\n 61.\u00a0\u00a0The Court has developed various criteria to determine whether an applicant can be considered to have victim status after the death of the \u201cdirect\u201d victim. It normally permits the next of kin to pursue an application provided that he or she has sufficient interest, where the original applicant has died after the application being lodged with the Court (see Malhous v.\u00a0the Czech Republic (dec.), no. 33071\/96, ECHR 2000-XII).<\/p>\n 62.\u00a0\u00a0However, the situation varies where the direct victim dies before the application is lodged with the Court. In such cases the Court has, with reference to an autonomous interpretation of the concept of \u201cvictim\u201d, been prepared to recognise the standing of a relative either when the complaints raised an issue of general interest pertaining to \u201crespect for human rights\u201d (Article\u00a037 \u00a7\u00a01 in fine of the Convention) and the applicants as heirs had a legitimate interest in pursuing the application, or on the basis of the direct effect on the applicant\u2019s own rights (see Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu v. Romania [GC], no. 47848\/08, \u00a7\u00a098, ECHR\u00a02014).\u00a0In cases concerning complaints under Articles 5, 6 or 8 the Court has granted victim status to close relatives, allowing them to submit an application where they have shown a moral interest in having the late victim exonerated of any finding of guilt or in protecting their own reputation and that of their family, or where they have shown a material interest on the basis of the direct effect on their pecuniary rights. The existence of a general interest which necessitated proceeding with the consideration of the complaints has also been taken into consideration. The applicant\u2019s participation in the domestic proceedings has been found to be only one of several relevant criteria (see Centre for Legal Resources on behalf of Valentin C\u00e2mpeanu, cited above, \u00a7\u00a0100).<\/p>\n 63.\u00a0\u00a0In the circumstances of the present case, G.T. died on 19\u00a0May 2009 and his mother lodged the present application with the Court on 27\u00a0July 2009, more than two months after his death. The domestic criminal proceedingsagainst G.T. which ended on 28\u00a0January 2009and the identification parade (see paragraphs 5-9 above) concerned G.T. exclusively, and the applicant was not a party to those proceedings in any capacity. Nor did she argue that she had somehow been personally affected by the alleged violation.Furthermore, the Court considers that there is no general interest which necessitates proceeding with the consideration of this complaint.<\/p>\n 64.\u00a0\u00a0As a result, the applicant does not have the requisite standing under Article\u00a034 of the Convention. Therefore, the complaint must be rejected as being incompatible ratione personae with the provisions of the Convention, in accordance with Article 35 \u00a7\u00a7 3 and 4.<\/p>\n III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n 65.\u00a0\u00a0The applicant also complained that no effective remedies were available to her in respect of her complaints under Article\u00a02 of the Convention. She relied on Article\u00a013 of the Convention.<\/p>\n 66.\u00a0\u00a0The Court notes that this complaint is linked to the one examined above, and must therefore likewise be declared admissible.<\/p>\n 67.\u00a0\u00a0Having regard to the finding of a violation under the procedural limb of Article 2 of the Convention (see paragraphs55-58 above), the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in this case.<\/p>\n IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 68.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 69.\u00a0\u00a0The applicant claimed 50,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n 70.\u00a0\u00a0The Government submitted that the claim was excessive.<\/p>\n 71.\u00a0\u00a0The Court, making its assessment on an equitable basis, considers it reasonable to award the applicant EUR 15,000 under this head, plus any tax that may be chargeable on that amount.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 72.\u00a0\u00a0The applicant claimed EUR 3,252 in respect of her representative\u2019s fees for 65.05 hours of work on the case, at EUR\u00a050 per hour. In support of that claim, the applicant submitted a timesheet detailing the number of hours the representative had spent on the case. She also submitted a request in the amount of EUR 115 for postal services, EUR\u00a0261 for translation services, and EUR\u00a0575 for the services of forensic experts.<\/p>\n 73.\u00a0\u00a0The Government submitted that the fees were exaggerated. Furthermore, the expenses regarding translation and forensic experts were irrelevant to the outcome of the proceedings before the Court.<\/p>\n 74.\u00a0\u00a0The Court observes that the applicant did not submit documents showing that she had paid or was under a legal obligation to pay the fees charged by her representative, or that she had incurred the expenses claimed. In the absence of such documents, the Court is not in a position to assess the points mentioned in the previous paragraphs. It therefore finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred by her (see Merabishvili v.\u00a0Georgia\u00a0[GC], no.\u00a072508\/13, \u00a7\u00a7\u00a0370-373, 28 November 2017).<\/p>\n 75.\u00a0\u00a0It follows that the claim must be rejected.<\/p>\n C.\u00a0\u00a0Default interest<\/strong><\/p>\n 76.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe complaints under Articles 2 and 13 of the Convention admissible and the remainder of the application inadmissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 2 of the Convention both under its substantive and procedural aspects;<\/p>\n 3.\u00a0\u00a0Holdsthat there is no need to examine the complaint under Article\u00a013 of the Convention;<\/p>\n 4.\u00a0\u00a0Holds<\/p>\n (a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months,EUR 15,000 (fifteen thousand euros), plus any tax that may be chargeable, in respect of non\u2011pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;<\/p>\n (b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n 5.\u00a0\u00a0Dismissesthe remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n Done in English, and notified in writing on 20\u00a0December 2018, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Andr\u00e9 Potocki
\nM\u0101rti\u0146\u0161 Mits,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n