CASE OF ELIBASHVILI v. GEORGIA

FIFTH SECTION

CASE OF ELIBASHVILI v. GEORGIA

(Application no. 45987/21)

JUDGMENT
 

STRASBOURG

22 February 2024

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

In the case of Elibashvili v. Georgia,

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

 Carlo Ranzoni, President,
 Mattias Guyomar,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 45987/21) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 7 September 2021 by a Georgian national, Ms Manana Elibashvili (“the applicant”), who was born in 1956, lives in Tours (France) and was represented by Ms N. Londaridze, a lawyer practising in Tbilisi;

the decision to give notice of the complaints under Articles 2 and 13 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;

the decision to reject the Government’s objection to examination of the application by a Committee;

Having deliberated in private on 1 February 2024,

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

SUBJECT MATTER OF THE CASE

1.  The case concerns the death of the applicant’s son by drowning, following a police chase. The applicant complained under Articles 2 and 13 of the Convention.

2.  On 1 August 2016, between 2.30 a.m. and 3 a.m., the applicant’s son, Z.E., was allegedly driving at a high speed on the left bank of River Mtkvari in Tbilisi when he was ordered to pull over by two police officers who were out on patrol. Z.E. disobeyed, apparently accelerating his car, and the police officers gave chase in their police vehicle. Soon afterwards, Z.E. lost control of his car and crashed into a parked minivan. According to the statements of the two police officers, Z.E. then left his car and ran in the direction of a dark, bushy field. The two police officers started chasing him on foot but soon lost sight of him. They returned to their vehicle. In the meantime, five more police patrol vehicles stopped at the scene of the incident. According to the investigation case file, all of the police officers present searched again for Z.E. at the scene but could not find him in the dark. The police officers then left the scene, and Z.E.’s car was removed to a police car park.

3.  On the same day, one of the police officers who had chased the applicant drew up a traffic incident report, noting that at around 3 a.m. he and his colleague had spotted a vehicle driving at high speed. Despite an order to pull over, the driver had continued to speed up until he crashed into a parked car. According to the report, the driver had then fled the scene. The police officer noted in the report that they had requested the removal of the vehicle to a police car park and had then left the scene. The report mentioned neither the identity of the applicant’s son (his identity documents and other personal belongings were later found in his car), nor the fact that the two police officers had pursued him on foot and had lost sight of him, or that the other police officers who had arrived at the scene had also searched for him, unsuccessfully.

4.  On 3 August 2016 the body of the applicant’s son was found in the river. A criminal investigation into the offence of inciting suicide was started on the same date by the police and a number of investigative measures were carried out. The two police officers involved in the incident were questioned on 7 August 2016. They both stated that, after the crash, they had stopped their car and pursued Z.E. on foot. They had, however, soon lost him in the dark and had returned to their car. The other police officers who had arrived at the scene of the crash had also searched the area in vain. In reply to specific questions, the police officers stated that they had not seen the river flowing nearby, and that they had not heard the sound of anyone falling into the water.

5.  On 8 August 2016 the police investigator in charge sought to obtain closed‑circuit television (CCTV) footage from several road-traffic cameras situated in the relevant area. On 17 August 2016 the person in charge of such matters at the Tbilisi car-patrol police provided the investigator with part of the recordings, noting that the remaining cameras had not been working on the day of the incident. On 31 August 2016 the investigator requested additional video footage. On 3 September 2016 he was told that the footage was no longer available as the relevant storage period had expired on 31 August 2016.

6.  On 21 September 2016 the applicant complained to the supervising prosecutor that the investigation was not adequately examining all the relevant circumstances surrounding her son’s death and that, among other things, important CCTV footage from the cameras in the area had not been obtained and examined.

7.  On 23 September 2016 a forensic medical report was published, according to which the death of Z.E. had been caused by asphyxia as a result of suffocation in water. Multiple bruises and haemorrhages were also identified on his face and lower limbs. The level of alcohol in his blood was established at 0.68%.

8.  On 25 November 2016 the applicant was granted the status of a victim in respect of the investigation. The next day the investigator sought to obtain CCTV footage from private properties in the area but were told that no such footage was available. In December 2016 the investigator sought to obtain additional footage from road-traffic cameras, as well as from private CCTV cameras. However, they were informed that the recordings were no longer available.

9.  In December 2016 the remaining police officers were interviewed. They all maintained that by the time they had arrived at the scene, Z.E. had already disappeared; they had searched the area using a flashlight but had not seen or heard anything.

10.  On 6 November 2017, following several complaints by the applicant, the case was transferred for further investigation to the Tbilisi prosecutor’s office. All the relevant witnesses were interviewed again, and in August 2020 the investigation was extended to cover the offence of neglect of official duties. During their additional questioning, the two police officers who had pursued Z.E. stated that they had not called the rescue services because they had not thought that Z.E.’s life was at risk. According to their statements, they had reached the edge of the cliff during their search but had not seen the river and had not heard the sound of anyone falling into the water. Furthermore, they had been unable to see anything in the dark and, for that reason, they had not gone down the cliff to further inspect the area.

11.  According to the case file, the investigation is still ongoing, and no one has been charged to date.

THE COURT’S ASSESSMENT

12.  Relying on Articles 2 and 13 of the Convention, the applicant complained about the death of her son and the lack of an effective investigation in that respect. Being master of the characterisation to be given in law to the facts of the case (see Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, §§ 114, 124 and 126, 20 March 2018), the Court considers that the complaint falls to be examined solely under Article 2.

13.  The Government submitted that the application was inadmissible for failure to comply with the six-month time-limit or as being premature. Having regard to the Court’s relevant case-law and in view of the circumstances of the present case, the Court dismisses both inadmissibility pleas (see Machalikashvili and Others v. Georgia, no. 32245/19, §§ 68-69, 19 January 2023; see also Shavadze v. Georgia, no. 72080/12, §§ 26-27, 19 November 2020; Mikeladze and Others v. Georgia, no. 54217/16, § 51, 16 November 2021; and Gaidukevich v. Georgia, no. 38650/18, § 51, 15 June 2023). It further considers 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.

14.  Starting with the procedural limb of the complaint, the general principles concerning the effectiveness of a criminal investigation under Article 2 of the Convention have been summarised in Mustafa Tunç and Fecire Tunç v. Turkey ([GC], no. 24014/05, §§ 172-81, 14 April 2015) and Nicolae Virgiliu Tănase v. Romania ([GC], no. 41720/13, §§ 165-68, 25 June 2019).

15.  The Court observes that the authorities opened a criminal investigation into the death of the applicant’s son without delay, and that a number of relevant and timely investigative measures, including the questioning of witnesses and the conduct of forensic examinations, were undertaken. It also notes that the applicant was granted the status of a victim in respect of the criminal investigation and could access the material in the case file and make relevant submissions.

16.  At the same time, the Court cannot overlook the fact that the link between the death of the applicant’s son and his being pursued by the police was apparent as early as 3 August 2016, and even though the relevant domestic regulations provided that offences allegedly committed by police officers were to be investigated by a prosecutor’s office, the investigation had been assigned to the police (see paragraph 4 above). It was only fifteen months later that the investigation was taken over by the prosecutor’s office. Hence, the most crucial stage of the investigation was conducted by an authority lacking sufficient independence from the police officers whose responsibility might have been engaged in the incident (see Shavadze, cited above, § 35; see also Edzgveradze v. Georgia, no. 59333/16, § 40, 20 January 2022, and Machalikashvili and Others, cited above, § 87, with further references). Moreover, several major deficiencies in the investigation are directly linked to that phase.

17.  Firstly, noting that video surveillance footage may constitute evidence that is critical for establishing the circumstances of the relevant events (see M.H. and Others v. Croatia, nos. 15670/18 and 43115/18, § 271, 18 November 2021, with further references), the Court considers that the manner in which the CCTV evidence was gathered and handled in the present case was unsatisfactory. It appears that the majority of the requests to seize and obtain either road-traffic or private CCTV footage were made belatedly, with potentially important evidence being lost or deleted in the meantime (see paragraphs 5-6 and 8 above).

18.  Secondly, the inconsistencies between the statements of the two police officers and the traffic accident report which had been drawn up immediately after the incident on 1 August 2016 were not addressed. No explanation was provided as to why the initial traffic accident report failed to provide a full description of the incident. Thus, the fact that the applicant’s son had been pursued by the police on foot before disappearing in the dark, and the alleged involvement of other police officers in the search, were omitted altogether from the report (see paragraph 3 above). As the Court has previously pointed out, sometimes lives are lost as a result of failures in the overall system rather than individual error entailing criminal or disciplinary liability. In complex police operations failings could be institutional, individual or both (see Armani Da Silva v. the United Kingdom [GC], no. 5878/08, § 284, 30 March 2016). The domestic authorities in the present case have not come to any conclusions about possible shortcomings in that respect.

19.  Also, the remaining police officers were first interviewed with almost a four-month delay (see paragraph 9 above). In the absence of an explanation provided by the Government, the Court finds such a delay unjustified (see Ramsahai and Others v. the Netherlands ([GC], no. 52391/99, § 331, ECHR 2007‑II; see also Machalikashvili and Others, cited above, § 92, with further references).

20.  Last but not least, the investigation has already been ongoing for more than seven years. The Government have not provided any explanation for such a lengthy investigation. Noting the recurrent nature of the problem of protracted criminal investigations, particularly in cases concerning suspicious deaths and/or ill-treatment involving representatives of the law-enforcement authorities (see Shavadze, § 36, with further references; Mikeladze and Others, § 68, with further references; and Gaidukevich, § 63, all cited above), the Court finds this delay unjustified.

21.  The foregoing considerations are sufficient for the Court to conclude that the criminal investigation into the death of the applicant’s son has not been effective, in breach of the procedural limb of Article 2 of the Convention.

22.  As regards the issue of the alleged responsibility of the respondent State for the death of the applicant’s son, the Court considers, in view of the material available in the case file, that it is not in a position to reach any definite findings under the substantive limb of Article 2 of the Convention. Accordingly, the Court will not examine this complaint (see Sakvarelidze v. Georgia, no. 40394/10, §§ 49-50, 6 February 2020, and M.H. and Others v. Croatia, cited above, §§ 165-66).

23.  The applicant claimed 50,000 euros (EUR) in respect of non‑pecuniary damage on account of the mental suffering caused to her by the death of her son and the ineffective investigation into the incident. She did not request any pecuniary award or the reimbursement of costs and expenses.

24.  The Government submitted that the applicant could have claimed compensation in the domestic courts in accordance with the Civil Code.

25.  The Court, ruling on an equitable basis, awards the applicant EUR 12,000 in respect of non-pecuniary damage, plus any tax that may be chargeable.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a)  that the respondent State is to pay the applicant, within three months, EUR 12,000 (twelve 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;

Done in English, and notified in writing on 22 February 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Carlo Ranzoni
 Deputy Registrar President