Communicated on 14 January 2014
THIRD SECTION
Application no. 37701/08
Gela KIKILASHVILI and Fridon GURASHVILI against Georgia
and 1 other applications
(see list appended)
STATEMENT OF FACTS
1. The applicants are Georgian nationals (see appendix). They are represented before the Court by Mr I. Khatiashvili, a lawyer practising in Tbilisi.
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the cases
1. Kikilashvili and Gurashvili v. Georgia, application no. 37701/08
3. The applicants were arrested on 15 December 2004 by four police officers, R. M., G. K., Kh. T. and Z. M. They were taken to the Sighnaghi police station, where the same police officers allegedly ill-treated them with the aim of making them confess to murder. As a result, Mr Gurashvili (“the second applicant”) gave a self-incriminatory statement and was released on 17 December 2004, while Mr Kikilashvili (“the first applicant”) refused to plead guilty and was detained until 19 December 2004. Following their release, both underwent a medical examination, which established that they had sustained multiple bruising all over their bodies and faces.
4. On 29 December 2004 Kakheti district prosecutor’s office, in response to a complaint lodged by the applicants, instituted criminal proceedings under Article 335 of the Criminal Code (on the giving of evidence under duress). Two of the four police officers, R. M. and G. K., were subsequently charged with unlawfully detaining the applicants and coercing them into giving false evidence (Articles 147 and 335 of the Criminal Code), while the remaining two officers were charged under Article 147 only.
5. In September 2006 the applicants complained to the General Prosecutor of Georgia of the inadequacy of the investigation. They claimed that no investigation had been conducted into their ill-treatment allegations, as required under Article 3 of the Convention.
6. In April 2007 the applicants again complained of the ineffectiveness of the investigation. They also claimed that the prosecution wanted to enter into a plea bargain with the police officers and that this was unacceptable, since the four of them had been implicated in torture.
7. On 23 October 2007 the Sagarejo District Court convicted the four police officers as charged, but refused to deal with the applicants’ civil claim. At the same time, the trial court adopted a separate ruling in which it noted the applicants’ ill-treatment allegations. The ruling was forwarded to the prosecutor’s office for further action.
8. The applicants appealed against the first-instance court decision, claiming that, like the pre-trial investigation, it had simply omitted the fact that the first applicant had also implicated the head of the Sighnaghi police and his deputy in his ill-treatment. They also complained that their ill‑treatment allegations had been ignored and that their civil claim had still not been dealt with. The applicants reiterated their argument concerning the ineffectiveness of the investigation and the wrong classification given to the police officers’ actions. They alleged that Articles 3 and 13 of the Convention had been violated in that respect. Lastly, they asked the appeal court to grant their civil claim in full and to increase to the maximum the sentence imposed on the four police officers.
9. The police officers in the meantime entered into a plea bargain with the prosecution, whereby they pleaded guilty to the charges and were offered a suspended sentence in return.
10. The plea bargain was approved by the Tbilisi Court of Appeal on 24 December 2007. The appeal court dismissed the applicants’ appeal without addressing it on the merits.
11. That decision by the Tbilisi Court of Appeal was final. Nevertheless, the applicants filed a complaint with the General Prosecutor of Georgia. Reiterating their ill-treatment allegations, they specifically denounced the prosecution for entering into a plea bargain with the police officers implicated in the ill-treatment. They emphasised in this connection that the police officers had been in hiding, so it would have been physically impossible, let alone the legal complications, to conclude a plea bargain with them. The applicants also reiterated their allegations with respect to the head of the Sighanghi police. Relying on Article 3 of the Convention, they requested, inter alia, the initiation of criminal proceedings against the head of the Sighnaghi police. According to the case file, the above complaint was not dealt with.
2. Mzekalishvili v. Georgia, application no. 8177/12
12. The applicant, who was a minor at the material time, suffers from certain physical disorders. In 2006 he was recognised as category-2 disabled.
13. The applicant was arrested on 6 April 2010 in the city of Telavi. He was immediately taken to the Telavi police station, where he was allegedly beaten by several police officers with the aim of making him confess to several counts of robbery.
14. On 9 April 2010 following his transfer to Tbilisi no. 5 prison for minors and women (“the prison for minors”), the applicant underwent a visual examination. As a result, along with some clear traces of old injuries, several fresh bruises were noted on his right leg.
15. On 16 April 2010 representatives of the office of the Public Defender of Georgia (“the PDO”) interviewed the applicant concerning his ill-treatment allegations. They visually examined the applicant, identifying multiple bruises and excoriations all over his body and face. The report drawn up thereafter includes the applicant’s detailed account of his alleged ill-treatment, describing the chain of events and indicating the time, location and duration of the beatings and the names of some of the prison officers concerned. The representatives of the PDO concluded that the applicant required an urgent forensic examination and a consultation with a psychiatrist. Subsequently, he was seen by a traumatologist, who confirmed that he had sustained multiple bruises and excoriations on his body and face.
16. On 19 April 2010 the applicant lodged a criminal complaint with the Chief Prosecutor of Georgia. In his complaint, which was supported by his detailed statement, the applicant requested the initiation of criminal proceedings into his allegations of ill-treatment. He also asked the prosecution authorities to grant him formal victim status in the proceedings, to arrange a comprehensive medical examination and to organise an identification parade allowing him to identify the police officers involved.
17. In his reply of 28 April 2010 an investigator from the Kakheti district prosecutor’s office informed the applicant that criminal proceedings had already been initiated under Article 332 of the Criminal Code (abuse of power) on 16 April 2010 and that a forensic examination was due to take place soon. The applicant’s remaining requests were dismissed.
18. In May 2010 the applicant underwent a forensic medical examination, which confirmed that he had sustained multiple bruising and excoriations on his body and face. The results were immediately forwarded to the prosecutor’s office, along with other pieces of evidence, based on which the applicant requested that more serious charges be brought against the police officers. In particular, he requested that the charges be changed to ill-treatment. His request was again refused.
19. The applicant subsequently filed several complaints concerning the ineffectiveness and inadequacy of the investigation, challenging, inter alia, the allegedly wrong classification given to the police officers’ actions. They were all, however, dismissed by the prosecution. The applicant’s latest complaint addressed to the chief prosecutor of Georgia and the Minister of Justice was dismissed by the prosecutor’s office on 5 August 2011. As disclosed by the case file, the investigation is still pending. At no stage of the proceedings was the applicant, despite his repeated requests, granted victim status.
20. As regards the criminal proceedings against the applicant, on 9 November 2010 he was convicted of several counts of robbery. The conviction was upheld on appeal on 14 July 2011. On 23 November 2011 the President of Georgia pardoned the applicant. As a result, the applicant was released on 5 April 2012.
B. Relevant domestic law
21. The relevant provisions concerning a “procedural agreement” (“საპროცესო შეთანხმება” in Georgian, saprotseso shetankhmeba), or plea bargaining, as introduced into the Criminal Code on Procedure on 13 February 2004 and applicable at the material time, read as follows:
Article 15
“A procedural agreement may be reached in accordance with the principle of the independence of the judiciary. A procedural agreement contributes to a faster and more efficient justice system.”
Article 679-1
“1. A court may deliver a judgment based on a procedural agreement without examining the merits of the case before it. The procedural agreement is based on an agreement regarding the responsibility of the accused or the sentence. It is a prerogative of the prosecution to propose a procedural agreement. ...
5. On the basis of the procedural agreement, the prosecutor may request a reduction of sentence for the defendant, or decide to lessen some of the charges brought against him or abandon a number of them on condition that the accused plead guilty on all counts.
6. Before deciding on a reduction of sentence or lessening of charges, the prosecutor must consider (a) the severity of the sentence to which the accused is liable, as well as the seriousness of the illegality of the acts and the guilt of the accused; (b) the use of the State’s resources in the way that most favours the general interest. ...
Article 679-8
“1. A prosecutor is obliged to inform an injured party about the conclusion of a plea bargain.
2. An injured party has no right to appeal a plea bargain.
3. A plea bargain does not prevent the injured party from filing a civil complaint. “
COMPLAINTS
1. Kikilashvili and Gurashvili v. Georgia, application no. 37701/08
22. The applicants complain, under Articles 3 and 13 of the Convention, that they were ill-treated by the police and that no effective investigation was conducted in this regard.
2. Mzekalishvili v. Georgia, application no. 8177/12
23. The applicant complains, under Articles 3 and 13 of the Convention, that he was ill-treated by the police and that no effective investigation has been conducted in this regard.
COMMON QUESTIONS
1. Were the applicants subjected to inhuman and degrading treatment in breach of Article 3 of the Convention?
2. Have the competent domestic authorities conducted an adequate investigation into the applicants’ allegations of ill-treatment, as required by the procedural obligation under Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV)? In particular,
- Did the relevant authorities adequately examine the applicants’ allegations that they had been ill-treated by the police?
- Did the investigations satisfy the requirements of effectiveness and thoroughness, with regard to the lines of inquiry pursued by the authorities (see, mutatis mutandis, Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 256 and 270-272, 26 April 2011; Dimitrova and Others v. Bulgaria, no. 44862/04, §§ 74-86, 27 January 2011; Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009)?
3. Did the applicants have an effective domestic remedy for their complaints, under Article 3 of the Convention concerning the ineffectiveness of the investigations, as required by Article 13 of the Convention?
CASE-SPECIFIC QUESTION
1. Kikilashvili and Gurashvili v. Georgia, application no. 37701/08
- Was the plea bargain concluded with the police officers in conformity with the respondent State’s procedural obligations vis-à-vis the applicants under Article 3 of the Convention?
- Were the applicants duly informed about the initiation of plea bargain negotiations (Article 679-8 of the Criminal Code of Procedure)?
2. Mzekalishvili v. Georgia, application no. 8177/12
- Was it compatible with the relevant domestic procedural regulations and the requirements under the procedural limb of Article 3 of the Convention that the applicant was not granted victim status in the relevant proceedings?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
37701/08
23/06/2008
Gela KIKILASHVILI
16/09/1980
Jugaani
Fridon GURASHVILI
06/12/1985
Tibaani
Ioseb KHATIASHVILI
8177/12
03/02/2012
Malkhaz MZEKALISHVILI
14/01/1994
Ioseb KHATIASHVILI
Full & Egal Universal Law Academy