MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1362/H46-8

5 December 2019

1362nd meeting, 3-5 December 2019 (DH) Human rights   H46-8 Tsintsabadze group v. Georgia (Application No. 35403/06) Supervision of the execution of the European Court’s judgments Reference documents CM/ResDH(2017)287, CM/ResDH(2018)351, DH-DD(2018)767, DH-DD(2019)1282, CM/Del/Dec(2018)1324/H46-6

 

Application	Case	Judgment of	Final on	Indicator for the classification
35403/06	TSINTSABADZE	15/02/2011	18/03/2011	Complex problem
25091/07	ENUKIDZE AND GIRGVLIANI	26/04/2011	26/07/2011
18996/06	MIKIASHVILI	09/10/2012	09/01/2013
19634/07	DVALISHVILI	18/12/2012	18/03/2013
21571/05	MINDADZE AND NEMSITSVERIDZE	01/06/2017	01/09/2017
2316/09	KEKELIDZE	17/01/2019	17/01/2019
7088/11	GABLISHVILI AND OTHERS	21/02/2019	21/05/2019
40009/12	GOGUADZE	27/06/2019	27/06/2019
4728/08	Ramin KIZIRIA	11/03/2014	Decision with undertakings
5168/06	Vazha BAGHASHVILI	18/03/2014
39726/04	Sulkhan MOLASHVILI	30/09/2014
8177/12	Malkhaz MZEKALISHVILI	10/02/2015
58228/09	Emzar KOPADZE	10/03/2015
28103/11	Lasha LANCHAVA	23/06/2015
22318/10	STUDIO MAESTRO LTD AND OTHERS	30/06/2015
60864/10	Davit CHANTLADZE	30/06/2015
312/10	Giorgi BEKAURI AND OTHERS	15/09/2015
65128/10	Vazha GEGENAVA AND OTHERS	20/10/2015
2146/10	Aleksandre MANUKIAN	31/01/2019

Case description

This group of cases[1] concerns notably ineffective investigations into allegations of breaches of the right to life, torture and other forms of ill‑treatment imputable to state agents (law enforcement officers of the Ministry of Internal Affairs (“MIA”), the Department of Constitutional Security, the Ministry of Corrections, the Ministry of Justice, the Public Prosecutor’s Office) (procedural violations of Articles 2 and 3).

As regards the judgments, two cases concern ineffective investigations into a death following an assault by private individuals and into a death in prison or following kidnapping and beating by officials of the MIA.[2]

The other six cases concern ineffective investigations into allegations of ill-treatment during arrest or in police custody.[3] In these cases, the Court also found a substantive violation of Article 3 due to the excessive use of force by the police or the prison officers in the course of the applicants’ arrest, or ill-treatment in custody or torture with the aim of obtaining a confession.

As regards the friendly settlements, the government acknowledged the existence of similar procedural violations of Articles 2 and 3 and undertook to conduct effective investigations into the allegations of violations of the right to life and ill-treatment by law enforcement officers.

The Court identified notably the following procedural shortcomings in the investigations carried out by the Public Prosecutor’s Office or by the MIA:

-       Failure by the investigating bodies to act with due expedition;

-       Lack of independence and impartiality: institutional connection (or even hierarchical subordination) between the state agents allegedly involved in the incidents (or the implicated senior ministry officials) and the investigative bodies (or the investigators in charge of the case)

-       Inadequacy of investigations and non-participation of victims: failure to initiate investigations propio motu despite the existence of sufficient evidence of an assault on the applicant’s life;

-       absence of appropriate forensic/handwriting expertise or belated and inadequate medical examination to identify the origin of the injuries; conclusions mainly based on the statements of the persons involved in the incidents (police officers, inmates, prison staff) without having identified or interviewed a number of other potential witnesses; denial of victims’ access to the investigations and no information about the investigative steps taken or about the findings made; failure to declare the applicant a victim in the course of the criminal investigation; failure to ensure the holding of the accused in separate cells to avoid collusion; failure to reach definite results by the investigating bodies despite clear instructions given by the domestic courts.

The Court further identified the following shortcomings in the judicial proceedings brought against state agents:

-       failure to hold adversarial public proceedings and delivery of the final decision in camera;

-       conclusions based mainly on testimony given by the police officers involved in the incidents;

-       refusal to provide the applicants with sufficient time and facilities to study the case materials and the disregard of their numerous requests for the collection of additional evidence directly relevant to the establishment of the truth;

-       inadequate sentencing (certain sentences initially imposed were halved by presidential pardon with subsequent release on licence).

Other violations found by the Court in the present cases:

-       non-compliance by the authorities with their obligation to furnish all necessary facilities to the European Court (Article 38);[4]

-       unlawful deprivation of liberty (Article 5 §§ 1 and 3) and unfair criminal trial (Article 6).[5]

Status of execution

In their previous action plans the authorities already mentioned that in all cases the investigations had been reopened (or continued) by the Prosecutor’s Office, which is independent “institutionally and in practice” from those implicated in the events. They also described in detail the investigative steps taken in each case. In September 2018 the Committee recalled the importance of swiftness for the re-opened investigations in order to avoid prescription or the loss of evidence and expressed regret that in three cases the authorities intended to close the investigations in view of the absence of results and of further evidentiary opportunities. Consequently, the Committee requested more precise information on the possibilities to obtain an independent review of possible closure decisions.

The Committee also decided to adopt a final resolution in Surmanidze and Others where the reopening led to the identification of the perpetrators who were brought to justice.

On 25 October 2019, the authorities provided an updated action plan (see DH-DD(2019)1282) which may be summarised as follows.

Individual measures:

1)     Investigations[6] having led to the identification of perpetrators (and in some cases to their punishment):

a) Enukidze and Girgvliani (procedural violation of Article 2): The authorities already submitted in the previous action plan that in the context of investigations into the impugned incident the former president of Georgia, the former Minister of the Interior and other high level officials were sentenced to imprisonment for unlawful deprivation of liberty, false investigations or for having afforded privileged conditions of detention, etc. In addition to the above information, the authorities informed that one of those persons, Mr Davit Akhalaia – the former Head of the Constitutional Security Department (who was found in Greece but his extradition was refused) was found guilty, in absentia, by the Tbilisi City Court, on 29 October 2018, which sentenced him to a term of imprisonment of seven years and six months and banned him from holding office for one year and six months.

b) Mikiashvili (events of 2005 substantive and procedural violation of Article 3): On 3 April 2018, the Prosecutor's Office charged three former MIA employees with abuse of power; the case is now pending at the Tbilisi City Court.

c) Dvalishvili (substantive and procedural violation of Article 3): Following further investigatory measures, the Prosecutor's Office charged two former MIA employees with abuse of power. On 22 February 2019 they were found guilty by the Tbilisi City Court for exceeding official powers (Article 333 (3)(b) of the Criminal Code).

d) Gegenava and Others (procedural violation of Article 3): In the previous action plan the authorities submitted that on 25 May 2018 three former employees of the department of legal regime of Rustavi prison no. 6 were found guilty and each sentenced to terms of four years and eight months. In addition, they indicated that on 17 September 2018 the same sentence was imposed by Tbilisi City Court on the former director, former deputy director and former head of Legal Regime Division. The sentences of all above mentioned persons were reduced to one year and six months by an Amnesty Act.

2)     Investigations having led to no result and which will be closed:

a) Tsintsabadze (procedural violation of Article 2): The authorities reiterated that, despite the numerous investigative measures already taken, no further evidence could be found regarding the circumstances of the death of the applicant’s son. Nevertheless, they questioned several new witnesses, including the investigator of this case at the material time. Moreover, upon the motion of the applicant’s representative, the expert was questioned again. The authorities indicated that the investigation will be terminated on the basis of “lack of corpus delicti”.

b) Mikiashvili (events of 2006; procedural violation of Article 3): The authorities reiterated the information that despite having interrogated all relevant witnesses and having taken numerous other investigative measures, the possibility to obtain any information has been completely exhausted and no credible evidence has been obtained that the applicant was subjected to ill-treatment. The authorities indicated that the criminal case shall consequently be closed on the basis of “lack of corpus delicti”.

c) Baghashvili (procedural violation of Article 2): The criminal case will be closed soon, as, despite numerous investigative measures, it appeared impossible to conclude, on the basis of the available evidence, that the alleged perpetrator committed manslaughter by exceeding his powers during the victim’s apprehension.

d) Kiziria (procedural violation of Article 2): The investigation, re-opened on 31 January 2015, could not lead to the collection of objective evidence confirming the guilt of any specific person and will be terminated, although several high-level regional police officers at the material time (head of criminal police department, chief and deputy chief of police main division, etc.) as well as other witnesses (taxi driver, residents of the village, a relative of the deceased person) were interrogated.

In addition, the investigators analysed the video footage collected from the TV broadcasters and asked for the full video and the names of the participants in the special operation. However, according to MIA, this information was not preserved.

e) Mzekalishvili (procedural violation of Article 3): In the course of the re-opened investigation all persons who could have any connection with the present criminal case, as well as other individuals, were additionally questioned. The interrogated police officers firmly denied doing any harm to the applicant during his arrest. Moreover, two other persons, arrested and placed in temporary solitary confinement together with the applicant, also denied that there had been ill-treatment and stated that they had not noticed any injuries on the applicant’s body. The authorities consider that all the possible measures have been taken and the investigation will be terminated.

f) Kopadze (procedural violation of Article 3): Despite the fact that several dozen witnesses were interrogated during the investigation that was re-opened in May 2015, no evidence was found corroborating an ill-treatment-related offence. This was mainly due to the length of time that elapsed since the incident (2009), the non-preservation of the list of inmates held in the same dormitory with the applicant, the death of the sole eyewitness, etc. The authorities stated that the investigation will be terminated.

3)     Review of decisions terminating investigations

According to Article 106.1 of the Code of Criminal Procedure, a victim may appeal before a superior prosecutor a prosecutor’s decree terminating an investigation and/or a criminal prosecution. The superior prosecutor’s decision on the appeal is final and may not be appealed, except when a particularly serious crime, or a crime under jurisdiction of the State Inspector’s Service (SIS), has been committed. In this case, the victim may appeal the decision of the superior prosecutor to a district (city) court.

The authorities submitted that in Bagashvili, since a particularly serious crime was allegedly committed (intentional killing), the applicant’s representative has the right to appeal to a court the decision terminating the investigation.

As regards Tsintsabadze, Kiziria and Gegenava, concerning alleged crimes under jurisdiction of the SIS, an appeal before a court became possible as from 1 November 2019, when SIS became operational. The issue whether appeals may cover cases in which the facts occurred before that date remains to be regulated by the domestic courts’ case- law.

            4) The victim status of the applicants

According to Article 56 §§ 5 and 6 of the Code of Criminal Procedure, as amended on 21 July 2018, the prosecutor’s failure to recognise a person as a victim may be appealed to a superior prosecutor. The decision of the latter is final, except when a particularly serious crime or a crime under the jurisdiction of the SIS was committed. In such cases the decision may be appealed to a court. The same procedure exists where victim status is annulled.

The applicants in Bagashvili, Tsintsabadze, Kiziria and Gegenava have been granted a victim status. As regards Mikiahsvili, Mzekhalishvili and Kopadze, they have not been granted this status, but the authorities stated that on 14 December 2018 the Constitutional Court of Georgia ruled that granting victim status to a person is a prerequisite for accessing the rights ensured under criminal legislation. Accordingly, a person has an even greater interest in challenging the decision of the prosecutor regarding the victim status before a court. In the light of the Constitutional Court’s above-mentioned judgment, the authorities conclude that now, in case of refusal to grant victim status, or the annulment of such status, the right to appeal to a court is accessible to victims of all types of crimes, including the applicants.

5) Investigations still pending

As regards the remaining four judgments[7] concerning substantive and procedural violations of Article 3 and six friendly settlements[8] concerning procedural violations of Article 3, the authorities presented numerous investigative measures already undertaken as well as the measures planned. The investigations in these cases are still ongoing (for more details, see the updated action plan).

As regards the Article 6 violation in Mindadze and Nemsitsveridze, the authorities submitted that the investigating authorities interrogated a number of witnesses, including doctors, police officers and investigators and also the applicants. The applicants stated that due to the fact that 15 years have passed since the incidents they cannot remember the case details and do not wish to cooperate with the investigation. Furthermore, they confirmed that they are not going to apply to national courts to reopen their criminal cases/ This, according to the authorities, will make it objectively impossible to reopen proceedings.

General measures:

In September 2018, the Committee welcomed the constitutional changes adopted to strengthen the independence of the Prosecutor’s Office, but expressed regret that certain recommendations made by the Venice Commission on this issue were not followed. It also noted with interest the plans to establish the SIS and invited the authorities to submit detailed information on the adopted law and the final set-up of the SIS. The Committee noted also with interest the recent measures, including the training sessions and other preventive measures.

The Committee called upon the authorities to accelerate and reinforce their reform efforts including the further development of independent review of investigative decisions, taking full advantage of all the possibilities offered by the Council of Europe Action Plan 2016–2019 for Georgia, and invited them to urgently submit information on the general measures taken or envisaged in response to the violation of Article 6 found in Mindadzeand Nemsitsveridze .

The information submitted by the authorities in response to this decision can be summarised as follows (for full details, see the updated action plan of October 2019):

A) As regards the investigative competence of the SIS, the authorities stated that according to Article 19 of the Law on State Inspectors’ Service, adopted on 21 July 2018, the investigative competence of the latter shall cover certain crimes stipulated in the Criminal Code.[9] The Chief Prosecutor’s Office supervises the investigations carried out by the SIS. Moreover, with the aim to facilitate this supervision, the General Prosecutors’ Office is planning to establish a special department within his Office. The prosecutorial supervision of crimes committed by prosecutors is fulfilled by the General Inspection of the Chief Prosecutor's Office.

The authorities mentioned that the 2018 law was positively assessed by the Office of the United Nations High Commissioner for Human Rights (OHCHR), the European Committee for the Prevention of Torture (CPT), and the Public Defender.  SIS became operational on 1 November 2019. Information concerning its activities and impact will be provided in due course to the Committee.

B) As regards the classification of crimes, the authorities stated that the Division of Human Rights Protection of the Prosecutor's Office has prepared a recommendation on the appropriate criminal classification of acts of ill-treatment[10] which was positively evaluated by a Council of Europe expert. Moreover, the monitoring of the implementation of the above recommendation for a period of ten months of 2017 and eleven months of 2018 revealed that the rate of correct legal classification and prosecution of ill-treatment cases has increased significantly. Similarly, the Public Defender, in her special report, also indicated some improvement in the classification of ill-treatment related crimes.[11]

C) As regards measures aimed at eradicating torture, the Inter-Agency Coordinating Council against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment elaborated its action plan for 2019-2020, which was finalised in May 2019, with the aim of strengthening the legal, procedural and institutional mechanisms for combating ill-treatment.

D) As regards statistics, the authorities indicated that, during the nine months of 2019, 13 investigations were initiated into alleged ill-treatment in penitentiary facilities, and 222 investigations into alleged police
ill-treatment, while criminal prosecutions were launched with respect to 15 persons in 2018 and 144 persons from 2013 to 2017.

E) As regards video surveillance in detention facilities, the authorities stated that the time-frame for storing video surveillance recordings in prisons was extended from five to 30 days by a Minister of Justice decree. The video surveillance system has also been upgraded in temporary solitary confinement facilities of the MIA. The authorities also submitted that the CPT, in its 2019 report, positively mentioned the introduction of compulsory body cameras for police patrol officers (and the ongoing installation of cameras in patrol cars) with extended period of footage preservation.

F) As regards the training and awareness raising measures, during 2018 and 9 months of 2019 numerous training sessions on the prevention of ill-treatment have been organised for police officers, penitentiary officers, prosecutors and judges.

G) The authorities also submitted that there is a tendency for all alleged ill-treatment cases to be investigated by the Prosecutor’s Office, instead of the bodies to which the allegations of ill-treatment are made. Moreover, the CPT observed that information on injuries was systematically reported to competent prosecutors, in response to the recommendations of the Public Defender, and medical assistance units were opened in eight solitary confinement facilities.

H) Measures regarding the Article 6 violation in the Mindadze and Nemsistveridze case: According to the amendments of 21 July 2018 to the Criminal Procedure Code (Article 191¹), if, at any stage of criminal proceedings, a judge suspects that an accused/convict has been subjected to torture, degrading or inhuman treatment, or if the accused/convict himself/herself has stated it before court, the judge shall request  an appropriate investigating body to examine the case and may also  adopt a ruling which is addressed to the  General Director of the Special Penitentiary Service in order for the latter to take the measures necessary for safeguarding the  security of the complainant.

Moreover, under the joint Programme between the European Union and the Council of Europe, research was conducted into the “Application of the Standards of the European Convention on Human Rights by the Common Courts of Georgia”. A total of 3 000 judgments given from 2013 to 2016 were examined. The research demonstrated that the application by domestic courts of the ECHR standards as developed by the Court’s case-law has significantly improved. The Court’s case-law concerning the prohibition of torture is correctly applied by the national courts and reflected in their judgements.

As regards the guarantees regarding lawyers’ participation in interrogations, the authorities stated that the accused has the right to freely choose and replace his/her defence lawyer, while in certain cases a lawyer’s participation in interrogations is mandatory. The state-funded Legal Aid Service provides free legal assistance at any stage of the case to socially vulnerable citizens when an indigent defendant requests defence counsel or where legal representation is mandatory the defendant has not appointed a lawyer of their choice.

Analysis by the Secretariat

Individual measures:

As regards the reopened investigations since the Court’s 19 judgments and decisions in the Tsintsabadze group, covering events from 1999 to 2011, only four new investigations have led to the identification of perpetrators, six investigations have led to no result despite the new investigative measures taken by the Prosecutor’s Office, while ten other investigations are still pending.

In view of the above, it would be useful to reiterate that the authorities’ promptness in reopening investigations following the Court’s judgments is of crucial importance in order to avoid, to the extent possible, prescription or the loss of evidence through the passage of time. This becomes even more pressing in the light of the new judgments referring to more recent violations (for example Goguadze). The general measures adopted and presented by the authorities, such as the creation of the SIS, appear to have improved the classification of and investigations into ill-treatment related crimes.

As regards Tsintsabadze, Mikiashvili (events of 2006), Bagashvili, Kiziria, Mzekalishvili and Koapdze

In this context, it is a source of regret that the number of cases where the authorities indicated their intention to close the investigations, in view of the absence of results, is growing. The authorities could therefore be urged by the Committee to make full use of the new legislative and other measures adopted in order to carry out effective investigations into the cases where this is still possible. In particular, the possibility needs to be explored of appealing decisions terminating investigations to a court not only for serious crimes but also the crimes under jurisdiction of the SIS (such as the cases in this group) even though it became operational on 1 November 2019. As the authorities indicated, the issue whether appeals may cover cases in which the facts occurred before that date remains to be regulated by the domestic courts’ case-law. Consequently, the Committee, underlining the crucial importance of this issue, may invite the authorities to present more precise information. 

As regards Gegenava and Others, Mikiashvili andDvalishvili

It is also noted that in some cases the new investigations led to the identification and punishment of perpetrators, or the remittal of the cases to courts. In this context, given that the terms of the friendly settlement have been executed in Gegenava and Others (the perpetrators were identified brought to justice and initially sentenced to approximately five years’ imprisonment each), this case could be closed. At the same time, it would be useful to receive information on the subsequent trial in Mikiashvili as well on the sentences imposed on the perpetrators of ill-treatment in Dvalishvili.

As regards Mindadze and Nemsitsveridze

Despite the victims’ refusal to cooperate with the investigation, the authorities are nevertheless encouraged to pursue all reasonable steps addressing, inter alia, the violations of Article 6 of the Convention linked to the extraction of confessions from the applicants under torture.

As regards the right of the applicants to appeal to a court the refusal to grant them a victim status

The judgment of the Constitutional Court of 14 December 2018, granting such a right in case of all types of crimes, may be welcomed by the Committee as an important step forward in the protection the rights of victims. The authorities are invited to present information about the use of this opportunity by the applicants of this group.

Disciplinary investigations and penalties imposed on law enforcement agents

Lastly, it is noted that state agents who have been charged with crimes involving ill-treatment should be suspended from duty during the investigation or trial and dismissed if they are convicted, in conformity with the established case-law of the Court (e.g. Gäfgen v. Germany § 125). Thus, the Committee may wish to invite the authorities to provide information on disciplinary measures taken against the state agents who are still under investigation or have been convicted for their engagement in acts of torture and other forms of ill-treatment.

General measures:

Investigative competence of the SIS

The fact that the SIS became fully operational on 1 November 2019 is an important step forward with real potential to ensure the effectiveness of investigations.  The SIS is based on the pre-existing institution of the Office of the Personal Data Protection Inspector. According to the authorities, the new institution is genuinely independent and ensures effective investigations into any cases of possible ill-treatment of persons deprived of their liberty by the public authorities.

 

Nevertheless, some concerns still remain. In particular, according to the CPT 2019 report on Georgia, the scope of the new legislation is relatively narrow as it excludes senior (political level) officials, and the Prosecutor’s Office retains full control over the investigation process, including which agency should carry out an investigation (the SIS, the Prosecutor’s Office, the MIA or the Ministry of Justice).[12]

Consequently, the authorities should take legislative and/or other measures to further enhance the independence and effectiveness of the SIS. In addition, the authorities could be invited to issue, at the highest possible political level, clear, public messages of zero tolerance of ill-treatment by law enforcement agents, showing their determination to eradicate such incidents through the adequate and dissuasive punishment of all officials involved in such acts.

The classification of ill-treatment-related crimes

In the previous notes on this group of cases, as well as in its recent decision (September 2019) in the Identoba and Others group, the Committee underlined the crucial importance of the correct classification of crimes and the impact of this on the effective investigation of the cases at issue. While the information presented by the authorities regarding the classification of ill-treatment-related crimes is interesting, issues remain.

It appears that very often, law enforcement officials are charged with abuse of official powers (Article 333 of the Criminal Code) rather than the more serious charge of torture or other forms of ill-treatment. This lenient practice has been highlighted by the Public Defender.[13] Nevertheless, the recent legislative amendments to the Criminal Procedure Code authorise covert investigative actions in cases of official misconduct (Chapter XXXIX of Criminal Code), including Article 333 of the Criminal Code. The Committee of Ministers has already positively noted these amendments in its decision of June 2019 in the Merabishvili case (CM/Del/Dec(2019)1348/H46-8). Even so, the authorities could be urged to adopt further measures to enhance the correct classification of offences involving ill-treatment, and to eradicate impunity for these serious human rights violations.

Statistical data

The statistics provided by the authorities to date are purely quantitative, merely giving the number of investigations into ill-treatment in 2019, and of prosecutions from 2013 to 2018.  In order for the Committee to be able to properly assess progress in this domain, more detailed information is required about these investigations, prosecutions and trials, including their actual outcome, preferably covering the years 2013‑2019.

Video surveillance of detention facilities

The extension of the time-frame for storing video surveillance recordings in prisons, as well as the technical upgrading of the video surveillance systems in temporary solitary confinement facilities of the MIA, are positive steps which may both prevent ill-treatment and facilitate the timely identification and adequate, dissuasive punishment of perpetrators of ill-treatment. Consequently, the Committee may wish to welcome the above measures.

Training and measures concerning notably torture-tainted trials

Training targeting law enforcement officials, prosecutors and judges may be welcomed by the Committee. The authorities could be encouraged to continue and to step up training on the prohibition of ill-treatment, drawing also on Council of Europe expertise and training courses such as the HELP course on the prohibition of ill-treatment. More detailed and updated information could be sought. 

As regards measures adopted to prevent similar violations of Article 6 (Mindadze and Nemsistveridze), the Committee could welcome the latest amendments of the Code of Criminal Procedure aimed at eradicating ill-treatment and torture-tainted trials, and invite the authorities to provide more detailed information about the application of the new legislation by domestic courts and the results achieved to date.

Financing assured: YES