THIRD SECTION
Application no. 5168/06
Vazha BAGHASHVILI against Georgia
and 2 other applications
(see list appended)
STATEMENT OF FACTS
1. The applicants are either Georgian or Russian nationals (see the annex). The facts of their cases, as submitted by them, may be summarised as follows.
A. Baghashvili v. Georgia, no. 5168/06
2. On 11 December 1999 the applicant’s son, Mr Zviad Baghashvili, was shot dead by a police officer, Mr N.A.-shvili, in a street. The incident occurred in the context of a police attempt to apprehend Mr Baghashvili who had been reported of having committed a breach of public order.
3. On the same day criminal proceedings were initiated by the Signaghi District public prosecutor’s office against the perpetrating police officer for an offence prosecuted under Article 187(3) of the Criminal Code – abuse/excessive use of official power entailing particularly grave consequences.
4. On 20 December 1999 the applicant was granted victim status in the proceedings. A number of investigative actions were subsequently conducted, which included an examination of an eyewitness who gave a statement that the police officer had fired a shot from his service pistol in the direction of the applicant’s son without any prior warning.
5. Consequently, on 6 January 2000 an additional charge of murder was preferred by the prosecution authority against Mr N.A.-shvili. As a measure of pre-trial restraint, the officer was placed under police supervision by a court order of 18 April 2000. That measure was never replaced by detention on remand throughout the proceedings.
6. On 5 February 2001 the investigation was terminated, and the prosecutor transmitted the case file to a court for trial. However, on 6 July 2001 the Tbilisi Regional Court, referring to the insufficiency of evidence in the file, remitted the case to the prosecutor for an additional investigation. That procedural decision then became a subject of a series of further appeals by both parties but ultimately remained intact, and on 7 September 2002 the investigation resumed.
7. On 2 November 2002 the prosecutor in charge of the case, after having removed, for various procedural reasons, from the case file a number of items of evidence against the police officer, issued a resolution terminating the criminal proceedings for want of a criminal offence. That resolution then became a subject of judicial complaints by the applicant, followed by a series of remittals between various levels of jurisdiction, with the Tbilisi Regional Court finally upholding it on 2 August 2005.
B. Kiziria v. Georgia, no. 4728/08
8. On 23 February 2006, the applicant’s son, Mr Butkhuz Kiziria, born in 1980, and his two friends, whilst they were driving a car in the village of Vartsikhe, Baghdati Region, were shot dead by officers of the Imereti Regional Police Department of the Ministry of the Interior. The incident occurred in the context of a police operation to apprehend the passengers of the car who were considered to have been illegally conveying firearms.
9. On 24 February 2006 the Imereti Regional Police Department of the Ministry of the Interior launched criminal proceedings against the applicant’s son and the two other late persons for illegal conveyance and use of firearms against the police. All preliminary investigative measures, including those directly relating to the examination of the scene of the shooting, were conducted in the context of that investigation.
10. According to a report dated 6 April 2006 on a post-mortem examination of the applicant’s son, he had died as a result of numerous bullets (the exact number of those could not be established), which, shot by machine guns, had damaged almost all of his vital organs.
11. The results of the above-mentioned investigation, the collected evidence, were subsequently transmitted to the Public Prosecutor’s Office of West Georgia. The prosecution authority relied on that evidence in its own probe, initiated on 8 May 2006, into the lawfulness of the police actions during the incident of 23 February 2006. Notably, the authority opened a case against the relevant police officers for an offence prosecuted under Article 114 of the Criminal Code – killing as a result of the use of force beyond that which was required for arresting a wrongdoer. On 19 May 2006 the applicant was granted victim status in those proceedings.
12. On 31 December 2006 the public prosecutor in charge of the case issued a resolution discontinuing the proceedings against the police officers for want of a criminal offence. The applicant filed a judicial complaint against that resolution, which was rejected as manifestly ill-founded by the Kutaisi City Court and the Kutaisi Court of Appeals on 28 March and 29 June 2007 respectively.
C. Shavlokhova v. Georgia, no. 4800/10
13. The applicant’s son, Mr Alexander Tskhovrebov, who was born in 1980, was killed by agents of a special forces squad of the Ministry of Justice, which authority was in charge of the penitentiary system at the material time, during a riot in Tbilisi Prison no. 5 on 27 March 2006. He had been detained on remand in that prison in relation to a criminal case pending against him for theft.
14. According to various international and domestic human rights observers, seven inmates, including the applicant’s son, were killed by the special forces during the incident of 27 March 2006, whilst seventeen others received serious bodily injuries.
15. On the same day an investigative department of the Ministry of Justice opened a criminal case, which was given registration number 073060138, into the circumstances surrounding the prison riot. All preliminary investigative measures were conducted by that authority.
16. On 19 May 2006 the Ministry of Justice transmitted criminal case no. 073060138 to the General Prosecutor’s Office (“the GPO”).
17. On 17 and 30 July 2007 the applicant enquired with the GPO about a progress in the above-mentioned investigation of the incident of 27 March 2006, requesting that victim status be granted to her.
18. On 13 August 2007 the GPO replied that criminal case no. 073060138 was already pending before the Tbilisi Court of Appeal against six inmates of Prison no. 5 for the offence of obstruction to the functioning of the prison authority. The GPO stated that the applicant was not entitled to be granted victim status. Thus, whilst the applicant’s son had been killed by a gunshot, it was established through the evidence collected by the investigation that the law-enforcement agents had been obliged, in the circumstances, to open fire in order to quell the violent prison riot. In any event, the prosecution authority further stated, only the applicant’s late son could personally claim to be a victim.
19. On 27 September, 19 October and 20 November 2007 the applicant enquired with the Tbilisi Court of Appeals whether her late son had ever been granted any procedural status in relation to the pending criminal proceedings (no. 073060138) and whether the issue of his killing had ever been addressed in the context of those proceedings.
20. On 27 November 2007 the Tbilisi Court of Appeal replied to the applicant that the pending criminal case (no. 073060138) related exclusively to the determination of criminal charges against six inmates of Prison no. 5 who had been accused of having plotted the prison riot on 27 March 2006.
21. Subsequently, on an unspecified date, the applicant learnt that, after criminal case no. 073060138 had been transferred from the Ministry of the Justice to the GPO on 19 May 2006, the latter authority had opened another criminal case, under registration number 74068237, in order to investigate whether the use of force by the law-enforcement agents during the prison riot of 27 March 2006 had been proportionate.
22. That being so, on 22 January, 8 and 20 October, 18 and 21 November 2008 and 16 July 2009 the applicant repeatedly enquired with the GPO about a progress in the proceedings related to that second criminal case (no. 74068237), requesting information about whether her late son had been granted victims status. If that was not the case, she requested that that status be now granted to her.
23. In reply, the applicant received several letters from the GPO (dated 29 February, 11 April, 16 October and 28 November 2008), which were worded similarly to that authority’s previous letter of 13 August 2007 (see paragraph 18 above). Notably, the applicant was advised that only her late son could qualify to be a direct victim in the proceedings and that, in any event, the investigation had shown that the use of force by the special forces had in actual fact been inevitable for the purposes of quashing the prison riot.
24. The latest letter from the GPO, dated 22 July 2009, advised the applicant that criminal case no. 74068237 was still pending in the stage of preliminary investigation. It is not known from the case file whether any progress in the investigation has been made since then, and what the current stage of the proceedings is.
COMPLAINTS
The applicants mainly complained under Article 2 of the Convention that their sons had been killed by law-enforcement agents and that no effective investigations had been conducted into those killings. Some of them also relied on other provisions of the Convention with regard to the same grievances (see the annex).
QUESTIONS TO THE PARTIES
1. Has right to life of the applicants’ sons, ensured by Article 2 of the Convention, been violated in the present case?
– In particular, did the applicants’ sons’ deaths result from a use of force which was absolutely necessary for the purposes of paragraph 2 (b) of this Article?
2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), were the criminal investigations in the present cases by the domestic authorities in breach of Article 2 of the Convention?
APPENDIX
No.
Application no.
Lodged on
Applicant name
nationality
date of birth
place of residence
Represented by
Additional complaints
5168/06
01/02/2006
Mr Vazha BAGHASHVILI,
Georgian national,
30/01/1949,
Village of Bodbe, Georgia.
Ms Manana KOBAKHIDZE,
Ms Tamar GABISONIA,
Ms Sophio JAPARIDZE,
Mr Lasha TCHINTCHARAULI.
Citing Articles 3, 6 and 13 of the Convention, the applicant reiterated his complaint about the lack of an effective investigation into the killing of his son.
4728/08
18/12/2007
Mr Ramin KIZIRIA
Georgian national,
(the date of birth is unknown),
Kutaisi, Georgia.
None.
None.
4800/10
18/10/2009
Mrs Aza SHAVLOKHOVA
Russian national,
14/04/1958,
Tbilisi, Georgia.
Ms Natia KATSITADZE,
Mr Philip LEACH,
Ms Joanna EVANS.
Citing Articles 3 and 13 of the Convention, the applicant reiterated her complaint about the lack of an effective investigation into the killing of her son, which had caused her an additional suffering.
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