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SECOND
SECTION
CASE OF GHARIBASHVILI v. GEORGIA
(Application
no. 11830/03)
JUDGMENT
STRASBOURG
29
July 2008
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of Gharibashvili v. Georgia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Antonella Mularoni,
Ireneu Cabral
Barreto,
Vladimiro Zagrebelsky,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria, judges,
and Françoise Elens-Passos,
Deputy
Section Registrar,
Having
deliberated in private on 20 February 2007, 6 May 2008 and
8 July 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 11830/03) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Robert Gharibashvili on 17 March 2003.
In accordance with Rules 34 § 3 and 36 § 2
in fine of the Rules of Court, the applicant was granted leave
to present his own case and to use the Georgian language in the
written proceedings before the Court.
-
The Georgian Government (“the Government”) were
successively represented by their Agents, Ms I. Bartaia and Mr M.
Kekenadze, of the Ministry of Justice.
- On
5 December 2005 the Court decided to give notice to the Government of
the applicant's complaints under Article 3 of the Convention. On
the same date, the Court decided to apply Article 29 § 3
of the Convention and to examine the merits of the complaints at the
same time as their admissibility.
- The
Government and the applicant each filed, on 28 April and
6 September 2006 respectively, observations on the admissibility
and merits of the application (Rule 54A of the Rules of Court).
- On
20 February 2007 the Court decided that further information as to the
developments in the investigation of the applicant's complaint of
ill treatment was required. The Government and the applicant
filed their replies on 23 March and 5 November 2007 respectively.
- On
6 May 2008 the Court decided that further information concerning the
possible involvement of the
United Nations Human Rights Committee (“the UN Human Rights
Committee”) was required from the parties. The latter were
invited to submit that information by 18 June 2008 at the latest.
Only the Government replied (see paragraphs 39-41 below).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1948 and is currently detained in Tbilisi no. 1
Prison.
1. Proceedings leading to the applicant's conviction
- On
23 May 2001 the applicant was arrested on suspicion of having raped a
fourteen year old girl.
- According
to the applicant, several police officers ill-treated him while he
was in custody at a Rustavi police station on 23-25 May 2001, in
order to obtain a confession. The police officers allegedly
handcuffed him, put a gas mask on his face to make his cries
inaudible, and severely battered him, breaking his jaw and the
index finger of his left hand. The beatings were allegedly
attended and encouraged by a senior officer of the Rustavi police
station, Mr G., as well as by two
investigators of the Rustavi district prosecutor's office (“the
RDPO”), Mr. M. and Mr. A.
- An
expert opinion of 24 May 2001 and other pieces of evidence suggested
that the applicant had had sexual intercourse with the victim. On 25
May 2001 he was charged with the rape of a minor (“the rape
case”).
- As
disclosed by the case file, on 26 May 2001 the applicant was assigned
a lawyer, Mr S. On the same day, the Rustavi District Court remanded
him in custody. Subsequently, he was transferred to the Tbilisi
no. 5 Prison, where his state of health was examined by a physician.
According to the applicant, that physician, whilst noting the signs
of ill treatment on his body, refused to record them in the
medical log.
- On
11 July 2001 the applicant complained that there were various
procedural shortcomings in the investigation and requested that Mr M.
be withdrawn from his case and another investigator assigned. He
accused investigator Mr M. of a lack of impartiality, but did not
raise any complaint of ill-treatment on the part of the latter or any
other law-enforcement agents.
- The
fact that sexual intercourse had taken place between the applicant
and the victim was later confirmed by another, comprehensive expert
opinion, as well as by various material pieces of evidence and
witness statements. The Tbilisi Regional Court convicted the
applicant on 12 December 2001 of the offence with which he had
been charged and sentenced him to 13 years in prison. As disclosed by
the case file, the applicant did not complain of alleged
ill-treatment during the trial.
- In
a decision of 16 April 2002, the Supreme
Court dismissed a cassation appeal by the applicant as
unsubstantiated. The cassation hearing, which lasted several days,
was attended by the applicant. No complaint of ill-treatment was
raised before the cassation court either. Afterwards, the applicant
was transferred to the Tbilisi no. 1 Prison to serve his sentence.
- In
support of his allegations of ill-treatment (see paragraph 9 above),
the applicant submitted an excerpt from the medical log of the
Tbilisi no. 1 Prison, dated 16 July 2003 (“the prison
medical opinion of 16 July 2003”), which confirmed that
the index fingers on both his hands were deformed due to fractures.
The origin of those fractures could not however be identified. No
traces of any old fracture of the applicant's jaw were reported.
2. Proceedings related to the applicant's complaints of
ill treatment and an abuse of power by the investigative
authorities
(a) Prior to the communication of the application to
the Government
- On
23 May 2002 the applicant lodged with the General Prosecutor's Office
(“the GPO”) a complaint that various procedural
violations had allegedly been committed in the course of the rape
case, including the cassation proceedings before the Supreme Court on
16 April 2002. He requested a re-trial. He raised, inter alia,
issues of the fabrication of expert reports and other pieces of
evidence, an absence of proper legal assistance during the trial, and
an inability to confront witnesses. No complaint of ill treatment
was made. As disclosed by the case file, the procedural complaint
went unanswered.
- In
May 2004, the applicant again requested the GPO to reopen the rape
case in view of newly discovered circumstances. He referred to the
alleged ill-treatment at the Rustavi police station and the extortion
of money allegedly committed by the RDPO investigator, Mr M. On 24
May 2004 the GPO dismissed this request as unsubstantiated. Following
the applicant's appeal, the Mtatsminda Krtsanisi District Court
in Tbilisi upheld, on 28 July 2004, the GPO's decision of 24 May
2004.
- On
5 November 2004 the Supreme Court of Georgia quashed the
above-mentioned decisions of 24 May and 28 July 2004, reasoning that
the refusal to reopen the rape case had not been preceded by a
preliminary enquiry into the applicant's allegations. It ordered the
prosecution to undertake a number of specific investigative measures,
including the examination of the applicant and the witness on his
behalf, Mr B., the latter being arguably able to confirm the
allegation of ill-treatment.
- As
a follow-up to the Supreme Court's decision, the RDPO examined
and dismissed, on 4 February 2005, the applicant's request for the
rape case to be reopened. However, on 4 April 2005 the Kvemo Kartli
Regional Prosecutor's Office (“the KKRPO”) quashed the
decision of 4 February 2005, reasoning that the RDPO, contrary
to the Supreme Court's instructions of 5 November 2004, had not
interviewed the applicant. The KKRPO remitted the case to the
RDPO for an additional enquiry.
- On
27 April 2005 the RDPO approached the applicant for an examination.
The latter however refused to cooperate because one of the alleged
perpetrators of his ill-treatment, investigator M., was himself a
member of the RDPO at that time. On the same day the prosecution
authority decided to dismiss the applicant's reopening request as
unsubstantiated.
- As
disclosed by the case file, the applicant lodged, on an unspecified
date, an appeal against the RDPO decision of 27 April 2005 in court.
On 19 December 2005 the Rustavi City Court dismissed his appeal
as being introduced out of time.
- According
to the case file, on 28 December 2004 the applicant also requested
the GPO to launch criminal proceedings in respect of ill treatment,
extortion and the falsification of expert opinions allegedly
committed by investigator M. On 31 December 2004 the GPO rejected
that request as unsubstantiated. The GPO conducted a verification and
gave reasons with respect to the applicant's allegations of extortion
and falsification of medical opinions. However, no enquiry was made
and, consequently, no reply was given, with respect to the complaint
of ill treatment.
- On
5 December 2005 the Tbilisi Regional Court dismissed, at first
instance, an appeal by the applicant against the GPO decision of
31 December 2004 as unsubstantiated. The court reasoned that the
GPO had made sufficient enquiries into all of the applicant's
complaints before arriving at the decision not to initiate a criminal
case. It also reproached the applicant for not having made a
complaint about investigator M. before the termination of the rape
case. Reiterating that the GPO decision of 31 December 2004 had
reflected the results of a comprehensive enquiry into the
circumstances surrounding the applicant's grievances, the Tbilisi
Appeal Court dismissed on 21 February 2006, at final instance, the
applicant's request for a criminal case to be opened against
investigator M.
(b) After communication of the application to the
Government on 5 December 2005
- On 24 January 2006 the KKRPO opened a criminal case
(no. 042068005) on the basis of the applicant's complaint of
28 December 2004 about abuses of
power allegedly committed against him on 23-25 May 2001 (see
paragraph 22 above).
- On
27 January 2006 the GPO withdrew the above mentioned criminal
case from the KKRPO and assigned it to the Tbilisi City prosecutor's
office (“the TCPO”) for investigation.
- In
a letter of 20 August 2006, the applicant informed the Court that he
had been interviewed in respect of that case.
- In
a decision of 15 March 2007, the TCPO decided to close the case due
to the absence of objective evidence warranting the prosecution,
despite the exhaustion of all possible investigative measures. As
disclosed by this decision, on unspecified dates, the TCPO had
separately interviewed the applicant,
the impugned RDPO investigators, Mr M. and Mr A., the
senior officer of the Rustavi police station, Mr G., and ten other
police officers who were directly or indirectly implicated in the
events which took place while the applicant was in custody at the
Rustavi police station on 23 25 May 2001. Whilst the
applicant reiterated his allegations of ill treatment (see
paragraph 9 above), the law-enforcement agents denied them.
- The
decision of 15 March 2007 further disclosed that the TCPO had ordered
and the relevant expert agency examined, on 13 March 2007, the
medical log of the Tbilisi no. 1 Prison containing information on the
applicant's state of health. Thus, the expert report of 13 March
2007, by almost literally reiterating the text of the prison medical
opinion of 16 July 2003 (see paragraph 15
above), confirmed the existence of fractures of the index
fingers, as well as several other traumas to the applicant's body in
general and to his left arm in particular. It was however impossible,
according to that report, to identify the exact date or source of the
finger fractures.
- The
investigation conducted by the TCPO also showed that the applicant
had participated, in 1990-1994, in armed conflicts in two breakaway
regions of Georgia. The applicant made clear to the TCPO that he had
injured his left arm during that conflict.
- The
decision of 15 March 2007 concluded that the investigation had not
disclosed any proof that the applicant had been ill-treated by the
RDPO officers on 23-25 May 2001. It further reasoned that, since the
applicant had first raised this issue only after his conviction of 12
December 2001 had become final, it could be assumed that his
allegations were untrue and solely aimed at the reopening of the rape
case.
- The
applicant appealed against the TCPO decision of 15 March 2007 in
court, requesting its annulment and the continuation of the
investigation. He expressly requested that his appeal be examined at
an oral hearing so that he, as a victim, could plead the factual
circumstances of the case in person. The appeal was dismissed as
unsubstantiated by the Tbilisi City and Appeal Courts on 12 June and
6 September 2007 respectively, the latter decision being final. Both
instances examined the case in
camera, without oral hearings. As
disclosed by the court decision of 6 September 2007, there had
not been an exchange of written submissions between the parties.
3. International Proceedings
- According
to the applicant, as well as lodging his application with the Court
he sent a complaint to the UN Human Rights Committee. He did not
specify the content of this complaint or the date it was lodged
and/or received by the UN Human Rights Committee, nor any details of
any subsequent proceedings.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
- The
applicant complained that he had been ill-treated while he was in
custody at the Rustavi police station on 23-25 May 2001 and that the
competent authorities had not properly investigated the matter. In
substance, he relied on Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
A. Admissibility
1. The parties' initial arguments
- In
their observations on the admissibility and merits of the
application, the Government submitted that, in so far as the
applicant had apparently lodged a complaint with the UN Human Rights
Committee,
his application to the Court should be declared
inadmissible under Article 35 § 2 (b) of the
Convention. They submitted, in support, copies of numerous complaints
lodged by the applicant with the Supreme Court of Georgia. In those
complaints challenging the fairness of the domestic criminal
proceedings, the applicant would always warn the Supreme Court that,
as well as complaining to the Court, he had sent a complaint to
the UN Human Rights Committee. He never specified the
content or date of that complaint, except to state that it was aimed
at “proving his innocence”.
- The
Government further stated that the application to the Court was
belated, as it had not been filed within six months after the Supreme
Court delivered, on 16 April 2002, the
final judgment in the rape case. Referring to the fact that the
applicant had never complained of ill-treatment before either the
prosecution or the judicial authorities in the course of the rape
case, the Government claimed that the complaint under Article 3 of
the Convention should be rejected for non-exhaustion of domestic
remedies.
- Lastly,
the Government claimed that, in view of the contrary findings of the
investigation conducted at the domestic level, the applicant's
allegations of ill-treatment were untrue and should therefore be
rejected as manifestly ill-founded.
- The
applicant conceded, in his observations in reply, that he had sent a
complaint to the UN Human Rights Committee. As disclosed further by
his submissions, he has never received any reply to this complaint.
- The
applicant denounced the Government's assertion that he had not
complained of ill-treatment in the course of the rape case. However,
he did not specify as to when exactly, and before which of the
domestic authorities, that issue had been raised.
2. Additional information submitted by the Government on the
Court's request
- Being
unable to rule on the Government's objection of the involvement of
the UN Human Rights Committee in the light of the parties'
above-mentioned arguments, the Court decided, on 6 May 2008, that
further information be solicited from them, under Rule 54 § 2
(a) of the Rules of Court, on that specific point (see paragraph 6
above).
- The
parties were thus invited to inform the Court whether the applicant's
individual communication had ever been received and registered at the
UN Human Rights Committee, whether any proceedings had been
instituted on that basis and, if so, whether those proceedings
concerned the same facts and complaints as those pending before the
Court under Article 3 of the Convention (see Folgero and
Others v. Norway (dec.), no. 15472/02, 14 February
2006).
- In
their reply of 18 June 2008, the Government informed the Court that
the UN Human Rights Committee had not confirmed the submission of an
individual communication by the applicant.
3. The Court's assessment
(a) The objection of involvement in another procedure
of international investigation or settlement
- The
Court reiterates that Article 35 § 2 (b) of the Convention aims
at avoiding the plurality of international procedures in the same
case (see Smirnova and Smirnova v. Russia (dec.),
nos. 46133/99 and 48183/99, 3 October 2002). In considering
this issue, the Court has to verify whether applications to different
institutions concern substantially the same person, facts and
complaints. Even the same facts can give rise to different complaints
before the Court and another procedure of international settlement
and thus can exclude the applicability of Article 35 § 2 (b) of
the Convention (see Pauger v. Austria, no. 16717/90,
Commission decision of 9 January 1995, (DR) 80 A, p. 24;
Evaldsson and Others v. Sweden (dec.), no. 75252/01, 28
March 2006).
- The
Court would accept that the UN Human Rights Committee, set up under
the International Covenant on Civil and Political Rights, is indeed a
“procedure of international investigation” within the
meaning of Article 35 § 2 (b) of the Convention
(see Hill v. Spain (dec.), no. 61892/00, 4 December
2001). However, regard being had to the circumstances of the present
case – in particular, the Government's reply of 18 June
2008 (see paragraph 41 above) – the Court finds it
established that the UN Human Rights Committee has never received an
individual communication from the applicant. Consequently, no
proceedings before that institution could be said to have been
pending involving the complaints raised before the Court.
- The
Government's plea of inadmissibility under Article 35 § 2 (b) of
the Convention should therefore be dismissed.
(b) The objection on the grounds of non-exhaustion,
and the belated and manifestly ill-founded nature of complaint
- The
Court first notes that it was a matter of disagreement between the
parties whether or not the applicant had complained of ill-treatment
in the course of the rape case. In the absence of any evidence
supporting the applicant's version of events, the Court finds that
this complaint was first made by the applicant only after the final
Supreme Court decision of 16 April 2002.
- However,
the Court does not consider that the applicant was only able to
challenge the alleged ill-treatment in the course of the criminal
proceedings related to the rape case. It is the Court's
well established case law that a separate complaint with
the aim of holding State agents in charge of detained applicants
criminally liable for alleged acts of ill treatment is, in the
normal course of events, an effective remedy (see, among many
others, Ramishvili and Kokhreidze v. Georgia (dec.),
no. 1704/06, 26 June 2007; Davtian v. Georgia (dec.),
no. 73241/01, 6 September 2005; Trubnikov v. Russia
(dec.), no. 49790/99, 14 October 2003). Since the
applicant did lodge such complaints with the competent domestic
authorities, on the basis of which two different sets of proceedings
were pending in 2004-2006 (see paragraphs 16-22
above), the Government's objections of non-exhaustion and
belatedness should be dismissed.
- As to the Government's argument that, in view of the
findings of the domestic investigation, the applicant's complaint of
ill treatment is manifestly ill-founded, the Court considers
that this issue requires an examination on the merits.
(c) Conclusion
- In
view of the above, the Court concludes that the applicant's
complaints under Article 3 of the Convention cannot be rejected on
the basis of the Government's objections. It further notes that they
are not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
1. The parties' arguments
- The
Government denounced the applicant's allegation of ill treatment
as untrue, referring to the contrary findings of the TCPO in criminal
case no. 042068005 (see paragraphs 24-30
above). They reiterated that the RDPO and Rustavi police
officers had denied that the applicant had been subjected to any form
of physical or psychological abuse while he was in custody at the
Rustavi police station on 23-25 May 2001.
- The
Government further emphasised that the applicant's medical
examination, conducted on the initiative of the TCPO, could not
identify the exact source and date of the fractures of the
applicant's index fingers. They also referred to the applicant's own
recognition of the fact that he had been wounded in armed conflict
(see paragraph 29 above), thus
suggesting that these fractures could have occurred then.
- According
to the Government, despite the exhaustion of all possible
investigative measures, the TCPO could not obtain any proof that the
applicant had been ill-treated. That being so, as well as claiming
that the prosecution authority had fully complied with its procedural
obligations under Article 3 of the Convention, the Government
submitted that the applicant's complaint was also ill-founded under
the substantive limb of this provision.
- The
Government invited the Court to take into account that the applicant
had never raised any similar complaint in the course of the rape
case. Thus, for example, when complaining, on 11 July 2001, that
procedural violations had been committed by investigator M., the
applicant did not raise any issue of ill-treatment. Likewise, in his
first complaint to the GPO after the final decision of 16 April 2002,
no such complaint was made (see paragraphs 12
and 16 above). In the Government's view, these factors
suggested insincerity on the part of the applicant. His allegations
of ill treatment were therefore invented with the aim of
reopening the rape case.
- In
reply, the applicant reiterated the circumstances of his alleged
ill treatment at the Rustavi police station on 23-25 May 2001,
as a result of which his jaw, two teeth and three fingers had been
broken. He claimed that the criminal investigation into those
circumstances led by the TCPO had not been accurate or objective. The
applicant asserted that he had never been interviewed during the
course of that investigation, contrary to what had been stated in the
decision of 15 March 2007 (see paragraph 27 above). In support of
this assertion, he submitted a letter dated 31 October 2007 from the
governor of Tbilisi no. 1 Prison, confirming that the prosecutor who
had signed the decision had not entered the prison since January
2007. The applicant further stated that his state of health had never
been examined in the course of the TCPO's investigation. He also
claimed that one of the perpetrators, Mr G., said to have been
interviewed in the course of the investigation (see
paragraph 27 above), had in reality died well before criminal case
no. 042068005 had opened.
- The
applicant further complained that the TCPO had not questioned his
wife, neighbours or Mr S., the advocate who had assisted him in the
course of the rape case. He claimed that those witnesses could have
testified that he had been ill-treated while in police custody on
23-25 May 2001. The applicant also stated that the domestic courts
had dispensed with oral hearings when examining his appeal against
the TCPO's decision of 15 March 2007. He stated that, since he
was a victim in those proceedings, his presence at oral hearings was
essential.
- Lastly,
the applicant asserted that, as he did not have an advocate and had
been denied visits in prison by his relatives for the past eleven
months, he had been unable to obtain documents which could prove some
of his above allegations.
2. The Court's assessment
(a) The allegation of ill-treatment
- The
Court reiterates that Article 3 of the Convention enshrines one
of the fundamental values of democratic societies, and as such
prohibits in absolute terms torture or inhuman or degrading treatment
or punishment (see, for example, Aksoy v. Turkey, judgment of
18 December 1996, Reports of Judgments and Decisions 1996-VI,
p. 2278, § 62; Aydın v. Turkey, judgment of 25
September 1997, Reports 1997-VI, § 81). The Court has
held on many occasions that the authorities have an obligation to
protect the physical integrity of persons in detention, and that in
assessing evidence it has generally applied the standard of proof
“beyond reasonable doubt” (see, among others, Farbtuhs
v. Latvia, no. 4672/02, § 54, 2 December 2004).
Such proof may follow from the coexistence of sufficiently strong,
clear and concordant inferences or of similar unrebutted presumptions
of fact (see Anguelova v. Bulgaria, no. 38361/97,
§ 111, ECHR 2002 IV; Shamayev and Others v. Georgia
and Russia, no. 36378/02, § 338, ECHR 2005 III).
- Turning
to the circumstances of the present case, the Court first notes that
the domestic proceedings did not identify any tangible proof that the
applicant had been ill-treated at the Rustavi police station on
23 25 May 2001. Going beyond the domestic authorities'
findings of fact and applying a particularly thorough scrutiny (see,
among other authorities, Talat Tepe v. Turkey,
no. 31247/96, § 49, 21 December 2004), the Court
itself is unable, in view of the meagre medical material in its
possession (see paragraphs 11, 15 and 28
above) and on the sole basis of
the applicant's assertions,
to consider the impugned ill-treatment in custody an
established fact “beyond reasonable doubt” (see Davtian
v. Georgia, no. 73241/01, § 38, 27 July 2006;
Danelia v. Georgia, no. 68622/01, §§ 42
and 43, 17 October 2006). This lack of information is notably
due to the shortcomings in the investigations conducted by the
competent authorities (see paragraphs 71 and
73-76 below).
58. Consequently, the Court cannot establish a substantive
violation of Article 3 of the Convention as to the applicant's
ill-treatment in custody.
(b) The alleged inadequacy of the investigation
(i) General principles
- Where
an individual raises an arguable claim that he or she has been
seriously ill-treated by the police in breach of Article 3, that
provision,
read in conjunction with the State's general duty
under Article 1 of the Convention to “secure to
everyone within their jurisdiction the rights and freedoms defined in
... [the] Convention”, requires by implication that there
should be an effective official investigation. This investigation
should be capable of leading to the identification and punishment of
those responsible (see Assenov and Others v. Bulgaria,
judgment of 28 October 1998, Reports 1998 VIII,
p. 3290, § 102; Labita v. Italy [GC],
no. 26772/95, § 131, ECHR 2000 IV). Otherwise, the
general legal prohibition of torture and inhuman and degrading
treatment and punishment would, despite its fundamental importance,
be ineffective in practice and it would be possible in some cases for
agents of the State to abuse the rights of those within their control
with virtual impunity (see, among other authorities, Labita,
cited above, § 131).
- Even
where the Court is unable to reach any conclusions as to whether
there has been, in substance, treatment prohibited by Article 3
of the Convention, the procedural limb of Article 3 may still be
invoked, deriving, at least in part, from the failure of the
authorities to react effectively to such complaints at the relevant
time (see Khashiyev and Akayeva v. Russia, nos. 57942/00
and 57945/00, § 178, 24 February 2005). An obligation
to investigate is not an obligation of result, but of means (see Paul
and Audrey Edwards v. the United Kingdom, no. 46477/99,
§ 71, ECHR 2002 II).
- For
an investigation to be effective, it may generally be regarded as
necessary for the persons responsible for and carrying out the
investigation to be independent from those implicated in the events
(see Barbu Anghelescu v. Romania, no. 46430/99, § 66,
5 October 2004). This means not only a lack of hierarchical or
institutional connection but also practical independence (see, in
particular, Ergı v. Turkey, judgment of 28 July
1998, Reports 1998-IV, §§ 83-84).
- The
investigation must be thorough. That means that the authorities must
always make a serious attempt to find out what happened and should
not rely on hasty or ill-founded conclusions to close their
investigation or otherwise base their decisions (see Assenov and
Others, cited above, §§ 103 et seq.). They must
take all reasonable steps available to them to secure the evidence
concerning the incident, including, inter alia, eyewitness
testimony and forensic evidence (see Tanrıkulu v. Turkey
[GC], no. 23763/94, ECHR 1999-IV, § 104 et seq.; Gül
v. Turkey, no. 22676/93, § 89, 14 December
2000). Any deficiency in the investigation which undermines its
ability to establish the cause of injuries or the identity of the
persons responsible will risk falling foul of this standard.
- Finally,
the investigation must be expeditious. Under Article 3 of the
Convention, the Court shall enquire whether the relevant domestic
authorities reacted promptly to the complaints at the relevant time
(see Corsacov v. Moldova, no. 18944/02, § 70, 4
April 2006).
(ii) Application of the above principles to the
present case
- The
Court considers that the applicant's allegations made before the
domestic authorities contained enough specific information –
the date, place and nature of the ill-treatment, the identity of the
alleged perpetrators, the causality between the alleged beatings and
the asserted health problems, etc., to constitute an arguable claim
in respect of which those authorities were under an obligation to
conduct an effective investigation (see Davtian,
judgement cited above, § 42; Petropoulou-Tsakiris v.
Greece, no. 44803/04, § 47, 6 December 2007).
- Another
issue to be determined is the period during which the competent
authorities were under the obligation to investigate the applicant's
allegations. This period started in May 2004, when the applicant,
according to the case file, first lodged the complaint of
ill-treatment, and ended on 6 September 2007, when the domestic
courts finally endorsed the termination of the investigation process
(see paragraphs 17, 31 and 45 above).
- The
Court considers it appropriate to examine this period of
approximately three years and four months, in the light of the
investigative measures undertaken by the domestic authorities prior
to and after 24 January 2006 (see paragraph 24 above).
- As
to the period prior to 24 January 2006, the complaint of
ill treatment was made by the applicant in his application for
the reopening of the rape case and in his separate request to hold
investigator M. criminally liable (see
paragraphs 17 and 22 above).
-
In so far as the reopening proceedings were concerned, the Court
notes that the preliminary enquiry into the applicant's complaints of
ill treatment and other abuses of power allegedly committed by
investigator M. was not independent. Notably, the enquiry was
entrusted to the same division of the prosecution authority –
the RDPO – of which the alleged perpetrator, Mr M., was a
member, even though the applicant clearly objected to such an obvious
conflict of interests (see Toteva v. Bulgaria, no. 42027/98,
§ 63, 19 May 2004; Oğur v. Turkey [GC],
no. 21594/93, §§ 91-92, ECHR 1999-III).
- Furthermore,
the prosecution authorities cannot be said to have conducted a
thorough investigation, as the applicant himself was never
interviewed during its progress (see Petropoulou-Tsakiris,
cited above, §§ 50 and 53; Batı and Others v.
Turkey, nos. 33097/96 and 57834/00, § 134, ECHR
2004 IV (extracts)). This shortcoming was also noted by the
Supreme Court of Georgia, but was not remedied afterwards (see
paragraphs 18-21 above).
- As
regards the applicant's separate request for Mr M.'s prosecution, the
surrounding domestic proceedings disclose that his complaint of
ill treatment was left by the GPO without any consideration
whatsoever. Whilst conducting a verification of the applicant's
allegations about extortion and falsification of expert opinions, no
similar enquiry was made, and consequently no reply was given, with
respect to the allegation of physical abuse by this investigator. Nor
did the Tbilisi Regional and Appeal Courts explain how this
inexplicable oversight of part of the applicant's allegations could
have constituted a “comprehensive” enquiry by the GPO
(see paragraphs 22 and 23 above).
- In
the light of the above observations, the Court considers that the
enquiries which had been relied on by the competent authorities to
refuse to initiate criminal proceedings concerning the applicant's
alleged ill treatment in custody, manifestly lacked the required
independence and thoroughness. This situation, which lasted between
May 2004 and January 2006, suffices for the Court to find that the
national authorities neglected their obligation to investigate
effectively the applicant's claim of ill-treatment.
- As
to the subsequent period, the Court observes that it was only after
the communication of the applicant's complaint to the respondent
Government (see paragraph 3 above), that the GPO decided to open a
criminal case, on 24 January 2006, that is almost two years after the
applicant lodged a request to that end (see
paragraph 22 above).
- The
Court first notes that the GPO withdrew the criminal case from the
regional prosecution authorities, of which investigator M. was a
member at that time, and assigned it to the TCPO (see
paragraph 25 above), which agency was not responsible for the
purported perpetrators (see, by contrast, paragraph 68 above).
Secondly, the Court rejects the applicant's argument that he was not
interviewed by the TCPO, because he explicitly acknowledged the
opposite in his letter of 20 August 2006 (see paragraph 26 above).
However, the Court finds it conflicting with the relevant principles
of an effective investigation that the TCPO relied heavily on the
information provided by the RDPO and Rustavi police officers directly
or indirectly implicated in the impugned events, without seeking any
information from the applicant's witnesses (see, for example, Ergı,
cited above, §§ 83-84) or confronting the applicant
himself with Mr M., Mr A. and Mr G.,
whom the former had directly incriminated (see Davtian,
judgement cited above, § 46). The Court attaches further
importance to the fact that the TCPO did not consider interviewing
the Tbilisi no. 5 Prison doctor who had examined the applicant
at the material time and allegedly refused to report the signs of
ill-treatment on his body (see paragraph 11
above). Lastly, instead of ordering an independent and
thorough medical examination of the applicant's state of health
(ibid.), the TCPO limited the expert's enquiry to reading the
prison medical log (see paragraph 28 above).
- The
Court further deplores that the termination of the above
investigation was upheld by the domestic courts sitting in
camera, without holding oral
hearings. Nor could it be inferred from the case file that
a transparent and adversarial procedure in writing took place
instead (see paragraph 31 above). The Court observes in
this connection that a public and adversarial judicial review,
even if the court in question is not competent to pursue an
independent investigation or make any findings of fact, has the
benefit of providing a forum guaranteeing the due process of law in
contentious proceedings involving an ill-treatment case, to which the
applicant and the prosecution authority are both parties (see
Ramishvili and Kokhreidze, decision, cited above; Belevitskiy
v. Russia, no. 72967/01, § 61, 1 March 2007).
- In
the light of the above-mentioned shortcomings in the investigations
conducted by the domestic authorities, the Court concludes that they
were not effective.
- There
has accordingly been a violation of Article 3 of the Convention
in its procedural limb.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
- The applicant complained under Article 6 § 1 of
the Convention that there had been procedural violations during the
preliminary investigation and the trial in the rape case. He
maintained his innocence, complaining that the domestic courts had
assessed the circumstances of the case incorrectly.
- This
complaint was made in the application lodged with the Court on
17 March 2003. However, the final domestic decision
in the criminal proceedings against the applicant, within the meaning
of Article 35 § 1 of the Convention, was delivered by the
Supreme Court on 16 April 2002. The applicant attended the cassation
hearing. As further revealed by the contents of the case file, by the
time of lodging, on 23 May 2002, his request for reopening with the
GPO, the applicant already had knowledge of the cassation decision
(see paragraph 16 above).
- It
follows that this part of the application was introduced out of
time
and must be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If 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.”
- The
Court notes that at no stage of the proceedings did the applicant
submit a claim for just satisfaction. Accordingly, the Court makes no
award of this kind.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 3 of the
Convention admissible and the remainder of the application
inadmissible;
- Holds that there has been no violation of
Article 3 of the Convention under its substantive limb;
3. Holds that there has been a violation of Article 3 of the
Convention under its procedural limb.
Done in English, and notified in writing on 29 July 2008, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Françoise Elens-Passos Françoise
Tulkens
Deputy Registrar President
