European Court of Human Rights

 

 

FIFTH SECTION

CASE OF KVIRIKASHVILI v. GEORGIA

(Application no. 34720/16)

 

 

 

 

JUDGMENT

STRASBOURG

28 April 2022

 

This judgment is final but it may be subject to editorial revision.

In the case of Kvirikashvili v. Georgia,

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

          Ganna Yudkivska, President,
          Lado Chanturia,
          Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 34720/16) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 27 May 2016 by a Georgian national, Mr Paata Kvirikashvili, born in 1961 and living in Tbilisi (“the applicant”), who was represented by lawyers of the European Human Rights Advocacy Centre (London) and the Georgian Young Lawyers’ Association (Tbilisi).

the decision to give notice of the complaints under Article 3 of the Convention to the Georgian Government (“the Government”), represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice, and to declare the remainder of the application inadmissible;

the parties’ observations;

Having deliberated in private on 24 March 2022,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns, under Article 3 of the Convention, the alleged ill‑treatment of the applicant by police officers, and the alleged inadequacy of the investigation conducted in that regard.

2.  On 31 August 2014, at around 9 p.m., the applicant was stopped by two police officers, G.D. and L.J., for allegedly violating traffic rules. The applicant objected to being fined, following which the police officers pushed him against his car and G.D. punched him in the head. This episode was recorded on a camera fixed onto the police vehicle. A verbal altercation subsequently erupted, which, according to the applicant, ended in his physical assault by both police officers. That episode was not recorded on a camera although there were people at the nearby petrol station who, according to the applicant, witnessed it. The applicant was then handcuffed and arrested. According to the report on his administrative arrest, because of his resistance the police had to use physical force, as a result of which the applicant hit his head on the ground and sustained injuries to his left cheek and his skull, and tore his T-shirt.

3.  The applicant was taken to a police station where, because of the deterioration in his condition, a doctor was called for him. He was subsequently transferred to a temporary detention centre, where he underwent a visual examination. According to the report of the examination, the applicant had excoriations in the area of the skull, right eyebrow, left cheek and ear. He also had bruises across both wrists. As was indicated in the report, he claimed that the two police officers, who had effected his arrest, had physically and verbally assaulted him.

4.  On 1 September 2014 the Tbilisi City Court convicted the applicant of disobeying the lawful orders of law enforcement officers and imposed a fine of 600 Georgian laris. The decision was confirmed by the Tbilisi Court of Appeal on 30 September 2014.

5.  On 2 September 2014 the applicant, during an interview with a prosecutor, reiterated his allegations of having experienced physical and verbal abuse by both police officers. On the same date he underwent, at his own request, a medical examination which established that he had numerous bruises, haematomas and lesions on his head and body. He further complained of pain in the right part of his chest and right armpit, noting that it intensified when he breathed and moved, and of suffering from numbness in both of his forearms. On 10 September 2014 an X-ray examination showed that his fifth and seventh ribs were broken. The final report, issued by the National Forensic Bureau on 26 September 2014, concluded that the multiple injuries had been caused by a blunt object; they were of a less serious nature and could have been inflicted on the date of the incident.

6.  On 24 October 2014 the General Inspection Department of the Ministry of the Interior (“the MIA”), acting on a complaint by the applicant of 4 September 2014, issued a reprimand with respect to both police officers on account of verbally (both officers) and physically (G.B.) assaulting the applicant.

7.  On 7 November 2014 an investigation was opened into the applicant’s allegations under Article 333 of the Criminal Code (exceeding official authority). In his interview of 11 November 2014, the applicant described in detail the circumstances of his arrest and his alleged ill-treatment. The applicant’s request to reclassify the alleged acts as inhuman and degrading treatment (Article 144³ of the Criminal Code) was rejected, as were several other of his procedural requests. On 1 December 2015 the applicant was informed of a decision of 24 November 2015 granting him victim status. He was also informed that G.D. had been charged with exceeding official authority on account of punching him in the head, and that no charges were being pressed concerning his beating by both officers.

8.  On 18 October 2016 the Tbilisi City Court convicted G.D. as charged on account of punching the applicant in the head. He was sentenced to five years’ imprisonment as the main sentence, and to one year and six months’ deprivation of the right to hold an official position as an ancillary sentence. On 28 December 2016 a plea bargain agreement, concluded between G.D. and the prosecutor’s office, was confirmed by the Tbilisi Court of Appeal, and G.D.’s prison sentence was replaced by a suspended prison term of five years.

9.  In August 2015 the applicant brought a civil claim against the MIA, with the police officers acting as third parties, claiming compensation for non-pecuniary damage for unlawful deprivation of liberty and infliction of damage to his health. On 16 May 2018 the Tbilisi City Court found that the applicant had suffered damage to his health during his administrative arrest and awarded him 2,000 Georgian laris (about 660 euros) in respect of non‑pecuniary damage. Without drawing any explicit conclusion concerning the link between the force used by the police officers and the applicant’s fractured ribs, the court noted that although the results of the applicant’s X‑ray examination had been delayed, the applicant had already complained about pain and breathing difficulties on 2 September 2014, and moreover he had acted diligently in requesting a comprehensive medical examination at the earliest opportunity after his release. That decision was confirmed by the Tbilisi Court of Appeal and the Supreme Court of Georgia on 16 April and 10 September 2019 respectively.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

10.  The applicant alleged a breach of Article 3 of the Convention under its substantive and procedural limbs. The Government submitted that the application was inadmissible because the applicant had lost his victim status on account of the conviction of one of the police officers and the award of compensation for non-pecuniary damage. They also alleged that the force used against the applicant had been necessary and proportionate in order to effect his arrest. The applicant replied that the investigation conducted into his allegations of ill-treatment had not been adequate, thus failing to provide sufficient redress, nor had the monetary damages awarded been adequate. He further maintained that he had been beaten by both police officers, as a result of which he had suffered multiple injuries, including fractured ribs.

11.  Even if it accepts that the domestic courts, by convicting G.D., acknowledged that the applicant had been ill-treated by the police, the Court must still examine whether there was sufficient redress in the form of an adequate investigation and compensation (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010). The question of whether the applicant may still claim to be a victim of a violation of Article 3 of the Convention in respect of his ill-treatment is therefore closely linked to the merits of his complaint under that provision. The Court, thus, decides to join this matter to the merits.

12.  It also notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

13.  The relevant general principles were summarised by the Court in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, 100-01, 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; for the most recent summary of its case-law concerning the authorities’ obligation to carry out an effective investigation into serious allegations of ill-treatment see X and Others v. Bulgaria [GC], no. 22457/16, §§184-91, 2 February 2021).

14.  The Court observes that the applicant complained about his ill‑treatment by both police officers on the very same day as his arrest. He already had by that time some medical evidence which supported his allegations (see paragraphs 2-3 above). The General Inspectorate of the Ministry of the Interior (the Ministry in charge of the police), having interviewed the police officers, issued a reprimand with respect to both of them (see paragraph 6 above). However, a proper criminal investigation, which resulted in the identification and punishment of one police officer for his punching the applicant in the head before the arrest, was opened only with a two-month delay. Moreover, while focusing on the moments before his arrest, it failed to clarify how force had been used against the applicant during the actual arrest and whether the use of force had been strictly necessary in the circumstances (see Boris Kostadinov v. Bulgaria, no. 61701/11, § 53, 21 January 2016, with further references). In that connection, the Court considers that the applicant was consistent in his allegations of being beaten by both police officers during the actual arrest. His allegations were also supported by medical evidence (see paragraphs 2-3 and 5 above). The fact that there was a delay in the applicant having an X-ray examination of his fractured ribs, although he had already complained about the pain and his difficulties in breathing on 2 September 2014, that is two days after the alleged incident, cannot relieve the relevant authorities of their duty to take all possible steps to establish the truth. At no point during either the disciplinary inquiry or the actual criminal investigation was a forensic medical examination ordered with a view to establishing the cause and origin of the applicant’s fractured ribs (see Mammadov and Others v. Azerbaijan, no. 35432/07, § 125, 21 February 2019; see also Pertaia v. Georgia [Committee], 44888/16, § 38, 13 January 2022). The applicant acknowledged that he had resisted the arrest. The Government did not claim, however, that he had suffered fractured ribs as a result of justified use of force during his arrest. They did not explain the origin of this injury, limiting the scope of the investigation to the examination of a single blow inflicted on the applicant before the arrest (compare Shishkin and Others v. Russia [Committee], no. 30050/09, §§ 92‑97, 1 September 2020; see also Minin and Others v. Russia [Committee], no. 29120/06 and 8 others, § 146, 27 July 2021; see also Girgvliani v. Georgia, no. 25091/07, §§ 256 and 266, 26 April 2011). The Court, accordingly, considers that the investigation, given its narrow scope, the delay and the failure to conduct a timely forensic examination, cannot be said to have been adequate and sufficient.

15.  As regards the applicant’s civil claim, the Tbilisi City Court examined a possible link between the force used by the police officers and the applicant’s fractured ribs and awarded him a compensation (see paragraph 9 above). However, in cases of wilful ill-treatment, the breach of Article 3 cannot be remedied only by an award of compensation to the victim (see Gäfgen, cited above, §§ 116 and 119; see also Shestopalov v. Russia, no. 46248/07, § 56, 28 March 2017).

16.  The Court, thus, finds that the authorities failed to carry out an effective criminal investigation into the applicant’s allegations of ill‑treatment and that the applicant may still claim to be a “victim” of a breach of his rights under Article 3 of the Convention on account of his ill-treatment by the police (see Barovovo v. Russia, no. 9183/09, §§ 45-46, 15 June 2021). It therefore dismisses the Government’s objection in that regard. In view of this finding, the Court considers that it is not necessary to examine whether the compensation awarded to the applicant by the domestic courts constituted sufficient compensation for the damage sustained as a result of ill-treatment (see Shishkin and Others, cited above, § 90).

17.  The Court concludes that there has accordingly been a violation of Article 3 of the Convention under its substantive and procedural aspects.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

18.  The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage, and 2,799.13 pounds sterling and 416 United States dollars (USD) in respect of costs and expenses incurred before the Court.

19.  The Government submitted that the applicant had already been awarded about EUR 660 on account of non-pecuniary damage by the domestic courts, and that his additional claim in this respect was exaggerated. They further argued that the applicant had failed to show that he had actually incurred the legal costs claimed. As to the sum of USD 416 for administrative expenditure, they alleged that it was exorbitant.

20.  Taking into account the amount awarded to the applicant by the domestic courts, the Court awards the applicant EUR 3,000, plus any tax that may be chargeable.

21.  Having regard to the documents in its possession, the Court considers it reasonable to award the applicant EUR 2,800 covering costs and expenses under all heads for the proceedings before the Court, plus any tax that may be chargeable to him.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1.      Declares the application admissible;

2.      Holds that there has been a violation of Article 3 of the Convention under its substantive and procedural limbs;

3.      Holds

(a)  that the respondent State is to pay the applicant, within three months, the following amounts, to be converted into the currency of the respondent State at the rate applicable at the date of settlement:

(i) EUR 3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(ii) EUR 2,800 (two thousand eight hundred euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

4.      Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 28 April 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

                       

            Martina Keller                                                 Ganna Yudkivska
          Deputy Registrar                                                      President