BEKAURI AND OTHERS v. GEORGIA

FOURTH SECTION

DECISION

Application no. 312/10
Giorgi BEKAURI and others
against Georgia

The European Court of Human Rights (Fourth Section), sitting on 15 September 2015 as a Committee composed of:

Ledi Bianku, President,
Nona Tsotsoria,
Paul Mahoney, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 15 December 2009,

Having regard to the declaration submitted by the respondent Government on 27 May 2015 requesting the Court to strike the application out of the list of cases and the applicants’ reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. A list of the applicants is set out in the appendix. They are all Georgian nationals and are represented before the Court by Ms T. Abazadze, Ms K. Shubashvili and Ms T. Dekanosidze, lawyers practising in Tbilisi.

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

A. The incident of 15 June 2009

3. Between early April and late June 2009 thousands of opposition supporters held demonstrations in various parts of Tbilisi, as well as in a few other major cities of the country, on a daily basis, demanding resignation of President M. Saakashvili and his Government. During that period there were several incidents where the police used allegedly excessive force against demonstrators. The present application concerned one of such incidents, which occurred on 15 June 2009.

4. In particular, in the morning of 15 June 2009 fifty members and supporters of a youth opposition group, including all ten applicants, gathered in front of the Tbilisi police headquarters to protest the arrest of opposition activists which had occurred a few days earlier. After having tolerated the demonstration for some twenty minutes, police officers proceeded to its forceful dispersal.

5. According to applicants nos. 1, 3, 5, 6 and 8 (Mr Bekauri, Mr Meskhi, Mr Chitarishvili, Mr Maisuradze and Mr Tsuladze), they received from the dispersing police officers a series of violent blows made with truncheons on their spines, heads and hands. After the dispersal, a number of protesters, including the five applicants, were arrested and taken inside of the building of the police headquarters. The captive protestors, including the five applicants, were then forced to lay on the ground, while police officers were insulting, kicking and hitting them with rubber truncheons.

B. Proceedings initiated against six applicants for administrative offences

6. On the same day, 15 June 2009, applicants nos. 2-7 (Mr Tchikashvili, Mr Meskhi, Mr Sabanadze, Mr Chitarishvili, Mr Maisuradze and Mr Sikharulidze) were charged by the police with administrative offences.

7. After having conducted separate trials, different judges of the Tbilisi City Court found, by their decisions of 15 June 2009, the above-mentioned six applicants guilty of breach of public order and resistance to lawful order of police officers.

8. With the exception of applicant no. 6 (Mr Maisuradze), the remaining five applicants (nos. 2, 3, 4, 5 and 7) waived their right to appoint a legal counsel for the trial.

9. Whilst applicants nos. 2, 3, 4 and 5 (Mr Tchikashvili, Mr Meskhi, Mr Sabanadze and Mr Chitarishvili) were sentenced to administrative detention for the duration of 30 days, applicants nos. 6 and 7 (Mr Maisuradze and Mr Sikharulidze) were ordered to pay a fine of 400 Georgian Laris (some 180 Euros (EUR)) each.

10. Applicants nos. 2, 3, 5, 6 and 7 (Mr Tchikashvili, Mr Meskhi, Mr Chitarishvili, Mr Maisuradze and Mr Sikharulidze) appealed, on 23 June 2009, against their convictions of 15 June 2009. Their appeals were rejected as inadmissible by the Tbilisi Court of Appeals on 24, 25, 26 and 29 June 2009.

11. As to applicant no. 4 (Mr Sabanadze), he failed to appeal against his conviction of 15 June 2009.

D. Five applicants’ criminal complaints about police abuses

12. On 19 June 2009 applicants nos. 1, 3, 5, 6 and 8 (Mr Bekauri, Mr Meskhi, Mr Chitarishvili, Mr Maisuradze and Mr Tsuladze) filed criminal complaints with the Chief Public Prosecutor’s office with respect to their ill-treatment by police officers during the dispersal of the street protest as well as inside of the Tbilisi police headquarters on 15 June 2009.

13. Subsequently, on 9 and 20 July and 3 August 2009 the same five applicants enquired about a progress in the investigation.

14. On 17 August 2009 the Tbilisi City prosecutor’s office replied to the above-mentioned five applicants that a criminal investigation had been launched into a possible police abuse during the incident of 15 June 2009. However, given that none of the applicants had been granted victim status, no information about the investigation could be disclosed to them.

THE LAW

15. On 29 September 2014 the Court communicated to the Government (i) the complaints under Article 3 lodged by applicants nos. 1, 3, 5, 6 and 8 (Mr Bekauri, Mr Meskhi, Mr Chitarishvili, Mr Maisuradze and Mr Tsuladze), (ii) the complaints under Article 6 §§ 1 and 3 lodged by applicants nos. 2-7 and (iii) the complaints under Article 11 of the Convention lodged by all ten applicants.

A. The Government’s unilateral declaration

16. By a letter of 27 May 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application.

17. To that end, the Government acknowledged:

(i) a violation of Article 3 of the Convention on account of the lack of effective investigation of the alleged ill-treatment by the police of applicants 1, 3, 5, 6 and 8 (Mr Bekauri, Mr Meskhi, Mr Chitarishvili, Mr Maisuradze and Mr Tsuladze) during the dispersal of the street protest and/or inside of the Tbilisi police headquarters,

(ii) a violation of Article 6 §§ 1 and 3 with respect to the judicial determination of the administrative offences imputed to applicants nos. 2, 3 and 5 (Mr Tchikashvili, Mr Meskhi and Mr Chitarishvili),

(iii) and a violation of Article 11 with respect to all ten applicants’ inability to proceed with a street protest of 15 June 2009.

18. The Government specified that given that only an effective criminal investigation at the domestic level was capable of clarifying whether or not applicants nos. 1, 3, 5, 6 and 8 (Mr Bekauri, Mr Meskhi, Mr Chitarishvili, Mr Maisuradze and Mr Tsuladze) had been subjected to police abuses in breach of Article 3 of the Convention, they were not in a position to prejudge the final outcome of the domestic investigation by admitting to a violation of the material aspect of Article 3 of the Convention.

19. To remedy the situation caused by the above-mentioned breaches of the Convention, the Government undertook (a) to conduct effective investigation of the relevant five applicants’ (Mr Bekauri, Mr Meskhi, Mr Chitarishvili, Mr Maisuradze and Mr Tsuladze) allegations of ill‑treatment, and (b) to pay the applicants in respect of any and all pecuniary or non-pecuniary damages as well as costs and expenses, plus any tax that may be chargeable to the applicants, the following amounts:

(i) to Mr Meskhi and Mr Chitarishvili EUR 4,500 (four thousand and five hundred euros) each;

(ii) to Mr Bekauri, Mr Maisuradze and Mr Tsuladze EUR 3,500 (three thousand five hundred euros) each;

(iii) to Mr Tchikashvili EUR 1,500 (one thousand five hundred euros);

(iv) to Mr Sabanadze, Mr Sikharulidze, Mr Kadagidze and Ms Kobalia EUR 1,000 (one thousand euros) each.

20. The Government specified that these sums will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that may be applicable and payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay these sums within the said three-month period, the Government undertook to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

21. On the basis of the above-mentioned acknowledgements and undertakings, the Government invited all ten applicants to waive any further claims by agreeing to a final resolution of the case and suggested that the Court strike should out the whole of the application.

A. As regards applicants nos. 1-6, 9 and 10

22. By a letter of 13 July 2015 applicants nos. 1-6, 9 and 10 (Mr Bekauri, Mr Tchikashvili, Mr Meskhi, Mr Sabanadze, Mr Chitarishvili, Mr Maisuradze, Mr Kadagidze and Ms Kobalia) informed the Court that they accepted the terms of the settlement as proposed in the Government’s declaration, thus waiving their other claims, and did not object to the strike‑out of the application.

23. The Court finds that following unambiguous agreement by Mr Bekauri, Mr Chikashvili, Mr Meskhi, Mr Sabanadze, Mr Chitarishvili, Mr Maisuradze, Mr Kadagidze and Ms Kobalia to the terms of the declaration made by the Government, the case should be treated, in substance, as a friendly settlement between the parties. It therefore takes note of the terms of this friendly settlement. Reminding the applicants that the supervision of the execution of the friendly settlement terms is the prerogative of the Committee of Ministers (Article 39 § 4 of the Convention), the Court is satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application.

24. In view of the above, it is appropriate to strike the case out of the list Article 39 of the Convention.

B. As regards applicants nos. 7 and 8

25. By a letter of 13 July 2015 applicants nos. 7 and 8 (Mr Sikharulidze and Mr Tsuladze) informed the Court that they were not in a position to accept the Government’s unilateral declaration for the following reasons.

26. Applicant no. 7, Mr Sikharulidze, whilst welcoming the acknowledgment of a violation of his right under Article 11 of the Convention, suggested that the Government still owed him apology and compensation for a violation of his rights under Article 6 §§ 1 and 3 of the Convention.

27. As to applicant no. 8, Mr Tsuladze, whilst similarly noting with satisfaction the acknowledgement of a violation of his right under Article 11 of the Convention by the Government, he expressed his disappointment about the absence of a clear acknowledgement of a violation of Article 3 under both substantive and procedural limbs. He also requested that the Government should increase the compensation payable to him.

28. The Court reiterates that Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list of cases:

“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.

29. It also reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Taktakishvili v. Georgia (dec.), no. 46055/06, 16 October 2012).

30. The Court further recalls that it may accept a unilateral declaration even in the absence of prior friendly settlement negotiations (see Union of Jehovah’s Witnesses and Others v. Georgia (dec.), no. 72874/01, §§ 23‑30, 21 April 2015).

31. To this end, the Court has examined the declaration submitted by the Government in the present case in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issues) [GC], no. 26307/95, §§ 75‑77, ECHR 2003‑VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).

32. As regards the two applicants’ arguments, the Court does not consider them as valid objections capable of outweighing the significance of the Government’s unilateral declaration. Thus, Mr Sikharulidze’s complaint under Article 6 §§ 1 and 3 of the Convention is in any event inadmissible under Article 35 of the Convention for another reason (see paragraphs 37‑44 below). As regards Mr Tsuladze’s argument, the Court considers that, in the particular circumstances of the present case, the Government’s acknowledgement of a violation of Article 3 of the Convention under its procedural limb, coupled with their remedial undertaking to conduct effective investigation, is rational and comprehensive enough to embrace the core of the matter and would no longer allow the applicant to claim to be a victim of a continued violation under this provision (see, for instance and as a recent authority, Prądzyński v. Poland (dec.), no. 49284/10, 25 March 2014, and also compare with Danelia v. Georgia, no. 68622/01, §§ 40-46, 17 October 2006, where, in the similar absence of meaningful criminal investigations at the domestic level, the Court was unable to assess the complaint under substantive limb of Article 3 of the Convention).

33. Indeed, the Court recalls that it has already established in many cases, including those brought against Georgia, its practice concerning complaints about the allegations of ill-treatment by the police and lack of adequate investigation in that respect (see, amongst many others, Begheluri v. Georgia, no. 28490/02, §§ 105-112, 7 October 2014; Davtyan v. Georgia, no. 73241/01, §§ 35-47, 27 July 2006).

34. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of the compensation proposed to Mr Sikharulidze and Mr Tsuladze – which is fully adequate in the particular circumstances of the present case (compare also with Botchorishvili v. Georgia (dec.), no. 652/10, § 7 30 June 2015 and Batiashvilebi v. Georgia (dec.), no. 75737/11, § 9, 30 June 2015) – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

35. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).

36. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

37. In view of the above, it is appropriate to strike the case out of the list.

C. The inadmissible remainder

38. Applicant no. 7, Mr Sikharulidze, also complained, under Article 6 §§ 1 and 3 of the Convention, that the judicial examination of the administrative charges against him was unfair and that he was innocent of the offences imputed to him.

39. The Government objected that since the administrative sanction following from the judicial review of the administrative charges preferred against applicant no. 7 resulted in a minor fine of some EUR 180 (see paragraph 8 above), those proceedings could not attract applicability of Article 6 § 1 of the Convention under its criminal limb (contrast with Menesheva v. Russia, no. 59261/00, §§ 95-97, ECHR 2006‑III).

40. The applicant disagreed with the Government’s objection, maintaining that the criminal head of Article 6 of the Convention was applicable to his case.

41. However, setting aside the question of the applicability of Article 6 §§ 1 and 3 of the Convention to proceedings in question, the Court attaches significance to the very fact that the outcome of the impugned proceedings was of a petty nature – the applicant was ordered to pay some EUR 180. In this respect, the Court recalls that Article 35 of the Convention, as amended by Protocol No. 14, provides for a new admissibility requirement which reads as follows:

“3. The Court shall declare inadmissible any individual application submitted under Article 34 if it considers that: ...

(b) the applicant has not suffered a significant disadvantage, unless respect for human rights as defined in the Convention and the Protocols thereto requires an examination of the application on the merits and provided that no case may be rejected on this ground which has not been duly considered by a domestic tribunal.”

42. Having regard primarily to the low amount of fine at stake in the instant case as such, the Court considers that the applicant cannot be said to have suffered a significant disadvantage (compare, amongst many others, with Kudlička v. the Czech Republic (dec.), no. 21588/12, 3 March 2015; Kiousi v. Greece (dec.), no. 52036/09, 20 September 2011; Šumbera v. the Czech Republic (dec.), no. 48228/08, 21 February 2012; and also Gaftoniuc v. Romania (dec.), no. 30934/05, 22 February 2011).

43. Moreover, the Court observes that a complaint relating to judicial examination of administrative offences, already subject of the Court’s well‑established case-law (see, amongst many others, Kakabadze and Others v. Georgia, no. 1484/07, §§ 84‑93, 2 October 2012; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001‑X; Galstyan v. Armenia, no. 26986/03, §§ 100‑102, 15 November 2007; Ashughyan v. Armenia, no. 33268/03, §§ 75‑77, 17 July 2008; and Sergey Kuznetsov v. Russia, no. 10877/04, § 36, 23 October 2008), does not concern an important question of principle, which might justify examining the present application on the merits.

44. Lastly, the Court observes that since the issue of the applicant’s administrative liability was indeed examined, according to the relevant domestic procedural law, by two levels of jurisdiction, during which he was able to present his written and oral arguments, and since this particular safeguard clause under Article 35 § 3 (b) in fine of the Convention is not concerned with the outcome of the proceedings but requires only that the case be considered by domestic courts (compare with Uhl v. the Czech Republic (dec.), no. 1848/12, § 31, 25 September 2012), the requirement of “due consideration by a domestic tribunal” can be said to have been satisfied.

45. It follows that the present application is inadmissible under Article 35 § 3 (b) of the Convention since the applicant has not suffered a significant disadvantage, and thus must be rejected pursuant to Article 35 § 4 thereof.

46. In view of this conclusion it is not necessary to examine the inadmissibility objection (see paragraph 38 above) raised by the Government.

For these reasons, the Court, unanimously,

Decides to strike a part of the application, notably the complaints lodged by applicants nos. 1-6, 9 and 10 (Mr Bekauri, Mr Tchikashvili, Mr Meskhi, Mr Sabanadze, Mr Chitarishvili, Mr Maisuradze, Mr Kadagidze and Ms Kobalia), out of its list of cases pursuant to Article 39 of the Convention;

Takes note of the terms of the respondent Government’s declaration as regards the complaints under Articles 3 and 11 of the Convention lodged by applicants nos. 7 and 8 (Mr Sikharulidze and Mr Tsuladze) and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike a part of the application, notably the complaints under Articles 3 and 11 of the Convention lodged by applicants nos. 7 and 8 (Mr Sikharulidze and Mr Tsuladze), out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 8 October 2015.

Fatoş AracıLedi Bianku
              Deputy RegistrarPresident

Appendix

No

Firstname, LASTNAME

Year of birth / Place of residence 

Mr Giorgi BEKAURI

1988 / Dusheti, Georgia

(applicant no. 1) 

Mr Merab TCHIKASHVILI

1976 / Tbilisi, Georgia

(applicants no. 2) 

Mr Mikheil MESKHI

1985 / Tbilisi, Georgia

(applicant no. 3) 

Mr Giorgi SABANADZE

1986 / Tbilisi, Georgia

(applicant no. 4) 

Mr Giorgi CHITARISHVILI

1988 / Kvareli, Georgia

(applicant no. 5) 

Mr Vakhtang MAISURADZE

1986 / Tbilisi, Georgia

(applicant no. 6) 

Mr Giorgi SIKHARULIDZE

1989 / Kutaisi, Georgia

(applicant no. 7) 

Mr Luka TSULADZE

1980 / Tbilisi, Georgia

(applicant no. 8) 

Mr Zurab KADAGIDZE

1987 / Tbilisi, Georgia

(applicant no. 9) 

Ms Natia KOBALIA

1982 / Tbilisi, Georgia

(applicant no. 10)

 

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