GOGUADZE v. GEORGIA - 40009/12 (Judgment : Article 3 - Prohibition of torture : Fifth Section Committee) [2019] ECHR 497 (27 June 2019)

In the case of Goguadze v. Georgia ,

The European Court of Human Rights ( Fifth Section ), sitting as a Committee composed of:

Ganna Yudkivska, President,
Síofra O ' Leary,
Lado Chanturia, judges,
and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 4 June 2019 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 40009/12) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") by a Georgian national, Mr Nikoloz Goguadze ("the applicant"), on 21 June 2012 .

2 . The applicant was represented by Ms N. Jomarjidze and Ms K. Shubashvili , lawyers practising in Tbilisi. The Georgian Government ("the Government") were represented by their Agent, Mr B. Dzamashvili , of the Ministry of Justice .

3 . On 16 October 2015 notice of the complaint s concerning the unlawfulness of the applicant ' s initial detention, his alleged ill-treatment , and the ineffectiveness of the ensuing investigation was given to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court .

4 . On 15 September 2016 the Government submitted a unilateral declaration concerning issues raised under the procedural limb of Article 3 of the Convention.

5 . On 3 April 2018 the Court rejected the Government ' s unilateral declaration.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6 . The applicant was born in 1980 and lives in Tbilis i .

A. Background information

7 . The applicant was a member and one of the leaders of a group which called itself the National Religious Movement, which was founded in Tbilisi on 11 May 2011. On 26 May 2011 a police officer drew up a report, which stated that he possessed information that twenty- four individuals, including the applicant, were plotting a violent overthrow of the Government of Georgia. According to the report, all the alleged plotters were located at the Kintsvisi Monastery, in the Kareli region.

8 . On 30 May 2011 a press release was posted on the website of the Ministry of the Interior ("the MoI"), which said that an armed group of twenty-four people had been detained in Kintsvisi on 26 May 2011.

B. The applicant ' s arrest and his alleged ill-treatment

9 . According to the official record of the detention and search of the applicant, which he duly signed, t he applicant was placed under arrest at 6.12 a.m. on 27 May 2011 at Tbilisi police headquarters on suspicion of committing an offence under Article 315 § 1 of the Criminal Code (conspiracy or insurrection intended to change the constitutional order of Georgia by violent means). The report, which stated that he had been arrested after being questioned as a witness, also noted that he had bruises in the tailbone area , buttocks and left thigh, and haemorrhages on his left eye, right cheek and his nose.

10 . At 12.30 p.m. on the same day the applicant was taken to a pre-trial detention centre, where he underwent a visual examination on admission . The report drawn up thereafter confirmed that he had a swollen blue left eye, haemorrhages on his nose, and bruises in the tailbone area .

11 . By a decision of 28 May 2011 a judge, acting at the request of the prosecution, remanded the applicant in custody for fifty-five days. At the detention hearing, the applicant challenged the official report o f his arrest and stated that he had been apprehended on 26 May in Kintsvisi, rather than on 27 May 2011 in Tbilisi. His submission disagreeing with the official record of his arrest was, however, dismissed. Relying in particular on the official record of the arrest, duly signed by the applicant, the Tbilisi City Court judge concluded that his allegations of unlawful detention were unsubstantiated.

12 . The applicant appealed against his pre-trial detention, maintaining his version of the circumstances surrounding the arrest. In particular, he stated that after having be en apprehended in the Kintsvisi Monastery at around 11.30 a.m. on 26 May 2011 , he had been transferred to Kareli police station where he had been beaten . H e had then been transferred to Tbilisi police headquarters, where after having been physically assaulted again, he had been questioned for about six hours. The applicant maintained that the actual time of his arrest was different from the time of the arrest indicated in the official record . In such circumstances , the time-limit of 48 hours referred to in Article 196 of the CCP (see paragraph 36 below ) had been exc e eded , rendering his detention unlawful. On 6 June 2011 t he applicant ' s appeal was rejected by the Tbilisi Court of Appeal as inadmissible . The decision was served on the applicant on 9 June 2011.

13 . On 1 June 2011 the defence counsel of the applicant requested , at their own expense, a forensic medical examination of the applicant. On 22 July 2011 the applicant was examined by five medical specialists who concluded that from neurological and traumatological point of view the applicant ' s condition was not serious. They noted that the bruises and cuts he had allegedly had on 27 May 2011 according to the report on his visual examination , were not visible .

14 . On 15 July 2011 , the applicant was additionally charged with unlawful purchase and possession of firearms, an offence under Article 236 §§ 1 and 2 of the Criminal Code.

C . The applicant ' s trial

15 . On 21 July 2011 the applicant ' s trial started . The applicant reiterated his allegation that h e had been detained on 26 May in Kintsvisi and not on 27 May in Tbilisi . He also complained of the physical and psychological abuse to which he had been subjected in Kintsvisi, then in the Kareli police station and finally at Tbilisi police headquarters. In particular, he alleged that he had been punched in the face by one of the officers of the Special Forces in Kintsvisi and then severely beaten by the same officer and several others in the Kareli police station. In Tbilisi he had been subjected to further abuse and psyshological pressure with the prupose of extracting a confession from him .

16 . On 12 August 2011 the applicant was convicted as charged and sentenced to twelve years ' imprisonment. The judge relying on the official record of the detention and search of the applicant dismissed his submission that he had been arrested in Kintsvisi rather than Tbilisi. The court did not address the applicant ' s ill-treatment allegations .

17 . The applicant appealed. His conviction was upheld by the Tbilisi Court of Appeal on 22 November 2011. By a decision of 12 March 2012 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible .

18 . The applicant was released from prison on 13 January 2013 under the Amnesty Act of 28 December 2012 .

D . Investigation into the alleged ill-treatment of the applicant

19 . On 28 May 2011 the applicant was transferred to Tbilisi no. 8 Prison. O n admission he underwent a visual examination which confirmed bruises and haemorrhages on his body and face (see paragraph s 9 - 10 above) . On 1 June 2011 t he prison administration sent a copy of th e above report together with the applicant ' s complaint about his alleged ill-treatment to the Chief P rosecutor ' s Office of Georgia and requested the initiation of proceedings.

20 . On 4 June 2011 a n investigation was begun under Article 333 § 1 of the Criminal Code into the offence of exceeding official authority . The applicant repeatedly asked to be questioned in that regard, but his requests were ignored by the authorities. On 29 August 2011 he sent a letter to the prosecutor ' s office complaining of the ir inactivity . While maintaining his allegations, he requested that criminal proceedings be initiated against those who had committed unlawful acts against him . In support of his allegations he submitted a photo, allegedly taken during his initial questioning, showing injuries on his face .

21 . On 2 September 2011 the applicant was questioned by an investigator at Tbilisi no. 8 Prison. He reiterated his version of events concerning his arrest and subsequent ill - treatment. He claimed that he had been punched in the face by one of the officers of the Special Forces in Kintsvisi. Then, he had been beaten by several officers in the Kareli police department. One of them, according to the applicant, had been wearing a mask. In Tbilisi two police officers had further subjected him to physical and psychological abuse .

22 . The applicant subse quently filed several complaints criticising the lack of progress in the investigation and particularly the fact that his detailed statement had not given rise to a number of f urther procedural measures . I n re sponse to one of his complaint s , b y a letter of 11 December 2011 , he was told that he was not a party to the criminal proceedings in question and hence had no right to lodge any applications or to request that certain investigative steps be taken.

23 . During 2012 the Office of the Public Defender of Georgia, acting at the request of the applicant, sent three requests for information to the Office of the Chief Prosecutor of Georgia concerning the investigation into the alleged ill-treatment of the applicant. All three letters remained unanswered.

24 . On 18 December 2012 the applicant was questioned again. He confirmed his account of events as given in his statement of 2 September 2011 , describing in a more detailed manner his arrest operation and the alleged ill-treatment that followed. He claimed that his beating at the Kareli police department had lasted for about an hour and that among others he had been severely beaten on his coccyx with a rubber truncheon. The applicant also provided a physical description of the officers allegedly implicated in his ill-treatment and claimed that he could identify at least two of them. As to the abuse he allegedly suffered at Tbilisi police headquarters, he claimed that he could identif y both of the men involved , as they had body type of a wrestler . They also had , as the applicant could remember, damaged ears, an identifiable feature of wrestlers.

25 . On 7 February 2013 the applicant filed a complaint with the Chief Prosecutor of Georgia, criticising the lack of progress in the investigation. That complaint was followed by others to the Minister of Justice, the Chief Prosecutor ' s Office and the investigator in charge of the case.

26 . On 25 February 2013 the applicant was questioned once again. This time along with providing details of his alleged ill-treatment, the applicant gave the investigator several photographs and a video footage depic ting one of the officers of the Special Forces allegedly involved in his ill-treatment.

27 . In the meantime, between January and April 2013 the investigator in charge questioned various officials from the MoI , among them police officers of the Kareli police station . They all denied having seen either the applicant or any of the other detainees being ill-treated. The investigator also interviewed the staff of the local emergency service . They confirmed that on 26 May 2011 an ambulance had been called for one of the detainees at the Kareli police station . While examining him they had observed multiple haemorrhages on his back. They had also seen twenty to twenty - five other detainees at the police station , although they had not witnessed any fact of violence themselves . Within the same period of time, the investigation also questioned the twenty-three co-defendants of the applicant. They all claimed that they had been ill-treated on the day of the arrest by members of the Special Forces.

28 . According to the case file, on 3 May 2016 the investigation into the offence of exceeding official authority by the police was transferred from the Shida Kartli Prosecutor ' s Office to the Chief Prosecutor ' s Office of Georgia . On 13 June 2016 the investigator in charge obtained a medical record from Tbilisi no. 8 Prison, according to which the following injuries were observed on the applicant on 28 May 2011 : small bruise s on his nose and left eye , large haemorrhages in the area of his buttocks, left thigh and the tailbone. According to the record, the applicant claimed to have sustained those injuries prior to his arrest.

29 . In June 2017 the investigator questioned two former high officials of the Kareli police. He also obtained video recordings that were apparently available online in connectio n with the Kintsvisi operation.

30 . On 19 July 2017 the offence under the investigation was reclassified into an offence of exceeding power by using violence , an offence under Article 333 § 3 (b) of the Criminal Code. The responsible prosecutor concluded that there was sufficient medical evidence to show that the applicant and other detainees had sustained various injuries on 26 May 2011. In support of his conclusion he also referred to the statements of the twenty-three co-defendants of the applicant, who had all confirmed the fact of their enduring physical and psychological abuse on the day of the arrest. Most of them , according to the prosecutor, had not voiced their ill-treatment allegations at the initial stage of the investigation out of fear of further abuse and also in exchange for plea bargain that the prosecution had concluded with them.

31 . In May 2018 twelve co-defendants of the applicant were questioned again. They provided detailed description of their individual experience of the ill-treatment focusing in addition on the physical description of the officers involved . They claimed that the officers of the Special Forces spoke Megrelian (a Kartvelian language spoken in certain regions of western Georgia ).

32 . On 25 July 2018 the applicant sent yet a nother letter to the Chief Prosecutor ' s Office complaining of the lack of progress in the investigation. He criticised the fact that despite having consistently maintain ed that he could identify the officers who had ill-treated him, no arrangements had been made for an identification procedure to be undertaken for over seven years. He also requested that the two investigators who had drawn up the record on his arrest and personal search and who had participated in questioning him on 26 and 27 May 2011 be interview ed , and that further interviews take place with several other officials who had been involved in his arrest . While requesting that a number of other specific investigative measures be undertaken , the applicant again asked the prosecution authorities to grant him victim status and also to reclassify the offence under the investigation from abuse of power (an offence under Article 333 of the Criminal Code) to torture (an offence under Article 144 § 1 of the Criminal Code). The applicant ' s letter has apparently gone unanswered .

33 . In July-September 2018 some additional investigative acts were undertaken , including the questioning of the medical staff of the Ministry of the Interior and Tbilisi no. 8 Prison , and of clerics from the Kintsvisi Monastery . The latter while confirm ing having see n the applicant and his entourage assaulted when arrested, also provided information about the appearance of those involved in the arrest operation. They also claimed hearing the officers speak Megrelian .

34 . According to the case-file the proceedings are still pending.

II. RELEVANT DOMESTIC LAW

35 . The relevant general provisions of the Code of Criminal Procedure ("the CCP") concerning the initiation of an investigation and granting victim status read , at the material time, as follows :

Article 56. Granting victim status

" 1. A victim enjoys all the rights of a witness and bears all [related] obligations.

...

5. The decision to grant the status of a victim ... is taken by a prosecutor. "

Article 57. Rights of a victim

"A victim has the right

(a) To be informed about the substance of any charges brought against an accused;

(b) To give evidence in court ... in connection with the damage suffered;

(c) To receive , free of charge , a copy of a decision to terminat e a criminal prosecution and/or investigation, a copy of a judgment, or a copy of another court interlocutory decision;

...

(g) To request that a prosecutor introduc e special protective measures if his or her life, health and/or property or that of his or her family member or a close relative is under threat;

(h) To be informe d about his or her rights and duties;

(i) To enjoy other rights provided for by the current Code. "

Article 100. Obligation to initiate an investigation

"1. An investigator and/or a prosecutor is obliged to initiate an investigation upon receipt of information concerning the commission of a crime. When an investigator decides to initiate an investigation, he or she shall immediately inform a prosecutor."

Article 103. Time-frame for an investigation

"1. An investigation shall be conducted within a reasonable time, which shall not exceed the limitation period set out for the prosecution of the relevant offence under the Criminal Code of Georgia."

36 . The relevant provisions of the CCP concerning initial detention and habeas corpus proceedings , as they stood at the material time , read as follows:

Article 176. G rounds and rules for the release of a detaine e

" 1. A detaine e shall be released, if

...

(g) the period of detention as provided for in the current Code has expired;

...

(e ) There was a substantial breach of a rule of criminal procedure at the time of detention; ...

2. The decision to release a detaine e shall be taken by a prosecutor or a judge."

Article 196. First appearance of a detainee in court

" 1. No later than 48 hours after an arrest, the prosecutor shall request that a magistrate judge, determined according to the place of the investigation, apply a measure of constraint.

...

3. If a request as provided for in the present Article is not filed with a magistrate judge within 48 hours of the arrest, the detainee shall be released immediately."

37 . Pursuant to Article 207 of the CCP a one-time appeal lay against the decision taken by a judge during the first appearance of a detainee in court. Th e appeal had to be submitted to a court of appeal within forty-eight hours of the decis ion of the first-instance court and had to be examined by the court of appeal within the subsequent seventy-two hours.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

38 . The applicant complained that he had been ill-treated on the day of his arrest and that no effective investigation had been conducted into his allegations of ill-treatment. He relied on A rticle 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

39 . The Government submitted that the applicant ' s complaint s unde r Article 3 of the Convention were inadmissible for non-exhaustion of domestic remedies . They claimed that the relevant criminal proceedings were still ongoing . I n addition , according to the Government, the investigation satisfied the requirements of independence, thoroughness and effectiveness, which implied that the applicant ' s complaint s w ere premature.

40 . The applicant contested the Government ' s objection. He maintained , with reference to the Court ' s case-law ( referring to Narin v. Turkey , no. 18907/02 , § 43, 15 December 2009; Mikheyev v. Russia , no. 77617/01, § § 84 and 121 , 26 January 2006 ; and Denis Vasilyev v. Russia , no. 32704/04 , § § 90-91 , 17 December 2009 ) that the length of the proceedings coupled with their inefficiency exempted him from the obligation to continue wait ing for the outcome of the impugned investigation .

41 . The Court considers that the Government ' s inadmissibility plea should be joined to the merits of this case , since it is closely linked to the substance of the applicant ' s complaint of the relevant authorities ' failure to conduct an effective investigation (see Denis Vasilyev, cited above, § 91 , and Asllani v. the former Yugoslav Republic of Macedonia , no. 24058/13 , § 54, 10 December 2015, with further references therein ) . The Court further notes that th e applicant ' s complaint s under Article 3 of the Convention are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Moreover, they are not inadmissible on any other grounds. They mus t therefore be declared admissible , without prejudice to the decision ultimately to be taken on the Government ' s preliminary objection of non-exhaustion of domestic remedies.

B. Merits

1. The parties ' submissions

42 . The applicant maintained that the Special Forces and the police had ill-treated him for the purpose of punishing him and also in order to extract a confession . He claimed that the case file contained sufficient evidence that his injuries had been inflicted by officers of the Special Forces and the police on the day of his arrest . While r eferring to a number of his detailed statements given in the course of the trial and the ongoing investigation (see paragraphs 12 , 15 , 21 and 24 above) and also on the basis of the available medical and witness evidence, t he applicant claimed to have made a prima facie case of ill-treatment, which the Government failed to rebut.

43 . As to the procedural aspect of his complaint, t he applicant submitted that the investigation that had initially been conducted by the Shida Kartli Prosecutor ' s Office and then taken over by the Chief Prosecutor ' s Office had not compl ied with the requirements of Article 3 of the Convention. Most of the investigative measures had been undertaken with substantial delays . There had been several major period s of total inactivity , notably between September 2011 and December 2012, April 2013 and May 2016 , June 2016 and July 2017, and then September 2017 and April 2018 , and the Government had not provided any arguments capable of explaining these gaps . Furthermore, the investigative authorities ha d failed to arrange a medical examination of the applicant in order to assess the degree of injuries he had sustained , ha d not questioned a number of important witnesses - among them those who had been in contact with the applicant during the first few hours of his arrest and the alleged ill-treatment - and ha d failed to arrange an identification procedure in respect of those implicated by the applicant in his ill-treatment . The applicant further alleged that, o n top of these deficiencies, he ha d not been granted victim status in the relevant proceedings , which ha d prevented him from having access to the investigative file or even simply being informed o f the progress of the investigation . The only information the applicant possessed about the ongoing proceedings in connection with his alleged ill-treatment, was the information that he ha d received from the Court, after notice of the application had been given to the parties. Lastly, the applicant criticised the fact that , despite his repeated requests , the investigation so far ha d been conducted under Article 333 of the Criminal Code ( exceeding official authority ) instead of Article 144 § 1 of the Criminal Code (torture). In view of the passage of time, t he above deficiencie s cumulatively implied that the investigation , which ha d been ongoing for more than seven and a half years , was in brea ch of A rticle 3 of the Convention.

44 . The Government contended that the investigation into the allegations of the applicant ha d been effective and thorough. They stressed that it had been initiated promptly, on 4 June 2011. The applicant had first been interviewed on 2 September 2011 and then on 18 December 2012. Between December 2012 and April 2013 some twenty-three witnesses had been interviewed . In January 2013 six additional witnesses had been questioned, followed by several more between February and April 2013. According to the Government, o n 3 May 2016 the criminal case had been transferred to the Chief Prosecutor ' s Office. Following the transfer , a number of witnesses had been re - interviewed in June 2017 and several video recordings of the events that had taken place on 26 May 2011 had been examined for the purpose of identifying those who had been involved in the operation at issue. While providing other detailed information about the various investigative measures that had been undertaken in 2017 and 2018, the Government maintained that the ongoing proceedings were capable of identifying and punishing those responsible for the applicant ' s alleged ill - treatment and that there was no room for the Court to declare the investigation to have b e en ineffective at this stage of the proceedings .

45 . The Government also noted that further forensic examination of the medical evidence available in the case file had been ordered with a view to establishing the severity of the applicant ' s injuries in the immediate aftermath of the alleged incident. With the results of the above examination the relevant authorities would be in a position to re consider granting the applicant the victim status and also amending the legal qualif ication of the investigation .

2. The Court ' s assessment

(a) The general principles

46 . The relevant general principles were summarised by the Court in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-90 and 114-23, ECHR 2015; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151-53 and 182-85, ECHR 2012, and Mikiashvili v. Georgia , no. 18996/06, §§ 69-72, 9 October 2012).

(b) Application of these principles to the circumstances of the current case

47 . The Court considers it appropriate, given the Government ' s non exhaustion argument , to address first the applicant ' s complaint concerning the ineffectiveness of the investigation.

(i) Procedural aspect of the complaint

48 . The Court observes at the outset that the applicant ' s allegations under Article 3 of the Convention, as set out in his complaints lodged with the domestic authorities, that he was ill-treated on the day of his arrest, were arguable (see also paragraph s 53 and 54 below) . Article 3 thus required the authorities to conduct an effective investigation. As to the investigation as such, it notes that while providing detailed information about the various investigative measures that the relevant authorities had undertaken throughout the ongoing investigation , which has already lasted almost eight years , the Government failed to provide any explanations for several major periods of inactivity. Thus, although the criminal proce edings started promptly, within only a couple of days of the alleged incident (see paragraph 20 above), it seems that the only investigative measure that was undertaken within the initial eighteen months of the investigation was the questioning of the applicant on 2 September 2011 ( see paragraph 21 above ). The investigating authorities did not arrange a medical examination of the applicant, d espite hi s showing visible signs of injuries (see paragraph s 9 , 10 , and 19 above) . Such an examination on the day of his arrest would not only have ensured that t he applicant would have been fit for questioning in police custody but would also have enabled the Government to discharge their burden of providing a plausible explanation for those injuries (see, inter alia, Parnov v. Moldova , no. 35208/06, § 30, 13 July 2010, and Türkan v. Turkey , no. 33086/04, § 42, 18 September 2008). The only medical examination the applicant had wit hin the relevant period of time was conducted at his own request outside the scope of the initiated criminal proceedings and at his own expense (see paragraph 13 above ).

49 . The Court , thus, considers that the initial and most crucial stage of the investigation in the current case was marred by total lack of action. In this connection, it notes the conclusions of the European Committee for Prevention of Torture according to which a medical examination, together with the right of access to a lawyer and the right to inform a third party of the detention, constitute fundamental safeguards against the ill-treatment of detained persons which should apply from the very outset of deprivation of liberty (see the 2nd General Report of the European Committee for Prevention of Torture, CPT/Inf/E (2002) 1 - Rev. 2006, § 36).

50 . Subsequently, a lmost sixteen months later , in December 2012 , the investigation resumed with the applicant being questioned first , before multiple other witnesses were also questioned (see paragraph s 24 - 27 and 44 above) . T his intensive phase of the investigation ended in April 2013 and was followed by a nother major period of total inactivity lasting until May 2016 (see paragraph 28 above). The Government did not provide any reason for the three-year gap in the proceedings . In May 2016 the case was transfer red to the Chief Prosecutor ' s Office , but this just resulted in the proceedings being stall ed for yet another year . Between June and S eptember 2017 several investigative steps were taken followed by another intensive phase of investigation in April -September 2018. According to the case-file, the proceedings are still pending and not a single suspect has been identified to date .

51 . T he Court has emphasised on previous occasions that although there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 323, ECHR 2014 (extracts); Bouyid , cited above, § 133; and Asllani , cited above, §§ 59-60). Without going into the substance of each and every investigative measure undertaken by the respondent Government so far, the Court would note the following: almost eight years into the investigation, the relevant authorities have failed , according to the case file, to identify the unit of the Special Forces that had conducted the arrest operation of the applicant and his group. Thus, n ot a single officer who had participated in the Kintsvisi special operation has been question ed so far . This failure , in itself , is sufficient for the Court to question the whole purpose and direction of the ongoing investigation.

52 . To conclude , the Court considers that the respondent Government have failed to provide any plausible reasons to justify the length of the proceedings (see Kekelidze v. Georgia [Committee], no. 2316/09, § 31, 17 January 2019). The unjustified delays in the current case coupled with a number of failings discussed above, have significantly prejudiced the effectiveness of the investigation (see Mikheyev , § 113, and Asllani , § 66, both cited above), which leads the Court to the conclu sion that the investigation has been ineffective for the purposes of Article 3 of the Convention. For these reasons, it does not consider that it was necessary for the applicant to wait for the completion of the criminal proceedings before filing his complaints with the Court, as their conclusion would not remedy the overall delay in any way. The Court accordingly dismisses the Government ' s objection concerning non-exhaustion of domestic remedies and finds a violation of Article 3 of the Convention under its procedural aspect (see Asllani , §§ 67-68, and Mikheyev, § 121, both cited above).

(ii) Substantive aspect of the complaint

53 . As to the applicant ' s complaint under the substantive limb of Article 3 of the Convention, the Court observes that there is objective evidence showing that on the day of the arrest the applicant had various injuries to his body and face (see paragraphs 9 , 10 , and 19 above ). T he Government did not contest the findings of the visual examinations of the applicant. Moreover, they never argued that he had sustained those injuries prior to his arrest or that he had resisted the arrest or that use of force against him had otherwise been justified. On the contrary, in support of their observations, the Government submitted a copy of the prosecutorial decision on requalification of the investigation (dated 19 July 2017), according to which the prosecutor had concluded that there was sufficient evidence to show that the applicant had sustained those injuries during the arrest operation (see paragraph 30 above). Furthermore, as a part of their observations the Government submitted to the Court statements of various witnesses, who had corroborated , to a significant extent , the version of events as alleged by the applicant ( see paragraphs 30 , 31 and 33 ).

54 . In view of the facts of the case, the Court considers it particularly important to point out that, in respect of a person who is deprived of his liberty, or, more generally, is confronted with law-enforcement officers, any recourse to physical force which has not been made strictly necessary by his own conduct diminishes human dignity and is, in principle, an infringement of the right set forth in Article 3 (see Bouyid, cited above, § 88). Against this background, the Government ' s argument that the re is no conclusive medical evidence showing the scale and gravity of the applicant ' s injuries appears to be irrelevant . In any event , as concluded above, the eviden tial situation in the case is the result of a deficient investigation into the applicant ' s allegations , the responsibility for which lies entirely with the Government .

55 . To sum up, the Government have admitted that the applicant had been under their authority on 26-27 May 2011 , whatever his status under the nation al law was at the relevant time , and that he had sustained those injuries within that period of time. The y failed to provide a plausible explanation of how these injuries had been caused. Taken cumulatively with the evidence in the case file and t he applicant ' s detailed and consistent description of the ill-treatment he complained of (see paragraph s 12 , 15 , 19 , 21 , and 24 above), the Court finds that those injuries were the result of ill - treatment to which the applicant had been subjected on the day of his arrest. The Court thus concludes that there has been a violation of Article 3 of the Convention under its substantive limb as well.

II . ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION

56 . The applicant complained under Article 5 § 1 of the Convention that he had been de facto detained on the morning of 26 May 2011 in Kintsvisi , while his arrest had only been documented with an official record of the detention at 6.12 a.m. on 27 May 2011 in Tbilisi . Article 5 of the Convention in its relevant part reads as follows:

"1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;"

A. The parties ' submissions

57 . The Government submitted that the applicant had failed to exhaust domestic legal remedies in connection with his Article 5 complaint. Their argument had two main points. Firstly, the criminal trial conducted against the applicant had not been , according to the Government, the proper and appropriate venue for him to voice his allegations of unlawful detention. Secondly, the applicant had failed to avail himself of an available remedy, notably a criminal complaint under Article 147 of the Criminal Code (premeditated unlawful detention). There could be no question about whether that remedy had been availab le to the applicant since his lawyer had had recourse to a similar remedy, albeit in relation to the allegations of ill-treatment. In the alternative, the Government submitted that the applicant ' s complaint under Article 5 § 1 of the Convention was inadmissible for being lodged with the Court out of the six months ' time - limit . They claimed, in particular, that in the absence of a criminal complaint by the applicant alleging unlawful detention, he had been expected to lodge a relevant complain t with the Court within six months from the day of his purported de facto arrest on 26 May 2011 , that is on 26 November 2011 the latest.

58 . The applicant contested the Government ' s view, arguing that he had properly exhausted domestic remedies. With reference to his letter of 29 August 2011 (see paragraph 20 above) , he submitted that he had duly raised the issue of unlawful detention with the prosecution authorities and that he had therefore expected them to initiate a criminal investigation into that complaint alongside his allegations of ill-treatment. As to his criminal trial, he maintained that the domestic courts had addressed his allegations of unlawful detention but had dismissed them as unsubstantiated.

B. The Court ' assessment

59 . The Court notes that the Government pleaded both non-exhaustion of domestic remedies and the six-month rule as alternative inadmissibility grounds. The applicant, for his part, maintained that he had used all the forums at his disposal to voic e his allegations. In view of the variety of remedies either mentioned by the Government or allegedly pursued by the applicant, the Court finds it appropriate to first determin e the remedy which, in the light of its relevant case-law (see Lelyuk v. Ukraine , no. 24037/08, §§ 35-36, 17 November 2016, with further references therein ), was capable of most effectively providing redress for the alleged violation.

60 . The applicant was arrested within the scope of criminal proceedings conducted against him (see paragraph 9 above). He had at his disposal habeas corpus proceedings (see paragraph 36 above). If not the only preventive remedy available to the applicant, such proceedings clearly constituted the most effective one as they could have led to his immediate release if his initial detention had been ruled unlawful (see , in this respect , Article 176 of the CCP cited in paragraph 36 above; see also, Selahattin Demirtaş v. Turkey (no. 2) , no. 14305/17 , § 132, 20 November 2018, and Krasniqi v. Croatia , no. 4137/10 , § 27, 10 July 2012; contrast with Lelyuk , cited above, in which the Court concluded that obtaining a judicial declaration of the unlawfulness of detention by the applicant three year s later, and after his release , could not be regarded as providing sufficient redress). According to the case file, the applicant availed himself of that remedy . He complained that the time - limit of 48 hours referred to in Article 196 of the CCP (see paragraph 36 above) had been exceeded . He, thus challenged the lawfulness of his detention, but unsuccessfu l l y (see paragraphs 11 and 12 above ).

61 . As the applicant pursued a preventive remedy which could have put an end to the alleged violation, the Court considers that he cannot be criticised for not pursuing other remedies (see Horváth v. Slovakia , no. 5515/09 , §§ 69 and 78 , 27 November 2012, and Kakabadze and Others v. Georgia , no. 1484/07 , § 54, 2 October 2012 , with further references therein ). The Court thus dismisses the Government ' s first objection.

62 . As to the Government ' s second inadmissibility plea based on the argument that the applicant failed to comply with the six months ' rule , as the Court has already noted above, the applicant complained about the unlawfulness of his initial detention during his first appearance in court in the course of the pre-trial proceedings (see paragraph 11 above, and Articles 176 and 196 of the CCP cited in paragraph 36 above). His allegation was dismissed by a judge on 28 May 2011, which decision was confirmed on appeal by the Tbilisi Court of Appeal on 6 June 2011 . The appeal court decision was served on the applicant on 9 June 2011. In such circumstances, it follows that on 9 June 2011 , with the decision of the Tbilisi Court of Appeal confirming the official version of events, it should have become evident to the applicant that subsequent complaints in that regard would have been to no avail.

63 . The applicant stated that he had in addition pursued a criminal remedy and that the inadequacy of that remedy had only become obvious to him in late December 2011, when he had been repeatedly refused victim status in the ongoing criminal proceedings (see paragraph 22 above). The Court does not accept the applicant ' s argument. Leaving aside the question of whether , in the light of the unsuccessful habeas corpus proceedings , the applicant also needed to resort to a criminal remedy before applying to the Court, it notes that the applicant did not voice his grievances under Article 5 of the Convention in a sufficiently explicit way in any of his complaints to the prosecution authorities (see paragraph s 19 , 21 and 23 above ). Although he referr ed to the fact of his arrest at the Kintsvisi Monastery, he did not allege that it had been unlawful or that it had amounted to an unrecorded detention. The applicant, in the Court ' s view, had no basis to expect the prosecution authorities to investigate the allegations of initial unlawful detention on their own initiative.

64 . The Court thus finds that , in the circumstances of the current case, the relevant date for the calculation of the six-month time-limit was 9 June 2011, when the decision of the Tbilisi Court of Appeal confirming the lawfulness of the applicant ' s arrest and detention was served on him . The current application was lodged with the Court on 21 June 2012. The applicant ' s complaint under Article 5 § 1 of the Convention was thus submitted out of time and is hence inadmissible under Article 35 § § 1 and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

65 . 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."

A. Damage

66 . The applicant claimed 10,000 euros (EUR) in respect of non - pecuniary damage.

67 . The Government maintained that the proceedings were still ongoing , and that accordingly it was premature to make a finding about the non - pecuniary aspect of the damage allegedly suffered by the applicant. In the alternative , they submitted that the amount claim ed was excessive.

68 . Ruling on an equitable basis and having regard to the nature of the violations found, t he Court awards the applicant EUR 10,000 in respect of non-pecuniary damage.

B. Costs and expenses

69 . The applicant claimed 4,965 Georgian Laris ("GEL") (approximately EUR 2,000) in respect of the legal costs incurred before the domestic courts, and GEL 2,444 (approximately EUR 1,000) - in respect of the costs and expenses related to the proceedings before the Court. In support of his claim the applicant submitted several bank transfer forms showing that various third parties had transferred sums to one of his lawyers .

70 . The Government claimed that the supporting evidence was insufficient; the applicant failed to submit a copy of his contract with the lawyer. He also failed to substantiate the reasonableness of the legal costs allegedly incurred. In any event, the Government submitted that the legal costs incurred at the domestic level were related to criminal proceedings conducted against the applicant and had nothing to do with his allegations under Articles 3 and 5 of the Convention brough t before the Court.

71 . According to the Court ' s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quan tum (see, Merabishvili v. Georgia [GC], no. 72508/13, § 370, 28 November 2017).

72 . The Court notes that the applicant did not submit any legal or financial documents showing that he had himself paid or was under a legal obligation to pay any of the sums for which he sought reimbursement. It appears that all expenses in respect of which he submitted supporting documents had been settled by third parties. His exact relationship with those third parties is unclear, and there is nothing to suggest that he is legally bound to reimburse any of those sums. The Court is therefore not satisfied that the expenses were actually incurred by him (see, mutatis mutandis , Öztürk v. Germany (Article 50), 23 October 1984, § 8, Series A no. 85, and Metodiev and Others v. Bulgaria , no. 58088/08, § 59, 15 June 2017). It follows that the applicant ' s claim in respect of costs and expenses must be rejected in full .

C. Default interest

73 . The 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.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Joins to the merits the Government ' s objection that the applicant ' s complaints under Article 3 of the Convention are inadmissible on the ground of non-exhaustion of domestic remedies and reject s it ;

2 . Declares the complaints under Article 3 of the Convention admissible and the remainder of the application inadmissible;

3 . Holds that there has been a violation of Article 3 of the Convention in its procedural limb ;

4 . Holds that there has been a violation of Article 3 of the Convention in its substantive limb ;

5 . Holds

(a) that the respondent State is to pay the applicant, within three months , EUR 10,000 (ten thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage , to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that 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 ;

6 . Dismisses the remainder of the applicant ' s claim for just satisfaction.

Done in English, and notified in writing on 27 June 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Ganna Yudkivska
Deputy Registrar President

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You are here: BAILII >> Databases >> European Court of Human Rights >> GOGUADZE v. GEORGIA - 40009/12 (Judgment : Article 3 - Prohibition of torture : Fifth Section Committee) [2019] ECHR 497 (27 June 2019) URL: http://www.bailii.org/eu/cases/ECHR/2019/497.html Cite as: [2019] ECHR 497, CE:ECHR:2019:0627JUD004000912, ECLI:CE:ECHR:2019:0627JUD004000912