Communicated on 8 November 2018
FIRST SECTION
Application no. 3963/18
Nino MATKAVA and others
against Russia
lodged on 11 January 2018
STATEMENT OF FACTS
A list of the applicants is set out in the appendix.
A. The circumstances of the case
The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Background
Joint military units of the Russian Federation and the de facto Republic of Abkhazia (hereafter also referred to as “Abkhazia” or “Abkhaz territory”) are stationed as “border guards” near the bridge on the river Khaia which separates Khurcha village, Zugdidi district, Georgia from Nabakevi village, Gali district, de facto Republic of Abkhazia. It has been reported that the population on both the Abkhaz and the Georgian sides has limited freedom of movement. According to the State Security Service of Georgia (SSSG), 190 cases of detention of individuals were reported in the course of 2016 across the administrative boundary line (“ABL”) with Abkhazia. While as a rule those apprehended are released after being detained for a short period of time and after paying a “fine”, some detainees have been reportedly ill-treated.
Following the 2008 conflict in Georgia, the Geneva International Discussions were launched in October 2008 in Geneva, Switzerland, in an effort to address the consequences of the conflict. In February 2009 an agreement was reached to create the Incident Prevention and Response Mechanism (“IPRM”), whose primary objective has been to discuss daily incidents at or near the ABL, address security concerns, and ensure the protection of human rights in the occupied territories. The IPRM comprises members of Georgia, Russia, de facto Republic of Abkhazia and the European Union Monitoring Mission. Following a four-year interruption of its activities, the IPRM resumed its meetings in late May 2016.
2. The killing of Giga Otkhozoria
On 19 May 2016 at around 2.15 p.m. Giga Otkhozoria accompanied his acquaintances, L.A. and R.K., by car from Zugdidi, Georgia to the ABL located in the area of Samegrelo-Zemo Svaneti, Georgia and de facto Republic of Abkhazia. The three of them had wished to take food for a funeral to Nabakevi village which is located in Gali district, Abkhazia.
When Giga Otkhozoria, L.A. and R.K. arrived at the ABL, Giga got out of the car and walked towards the Abkhaz territory across the bridge on the river Khaia in order to seek assistance from the “border guards” for moving the food across the bridge. The guards in question wore military uniforms (unmarked camouflages). Several of them, among whom their head R. K.-O., started a conversation with Giga Otkhozoria which quickly grew into an argument. In order to avoid further escalation of the verbal conflict, Giga headed back. Four guards, namely R. K.-O., A. K., B. K. and A. T, ran after him and caught up with him on Georgia-controlled territory of Khurcha village, Zugdidi district. Then R. K.-O. shot Giga Otkhozoria with his service firearm in the upper thigh, front abdomen and chest. As a result of these injuries, Giga fell to the ground, following which R. K.-O. fired another shot directly to his head. The four guards then ran back into Abkhaz territory.
Georgian police officers drove Giga Otkhozoria to the hospital in Zugdidi immediately after the shooting. Giga Otkhozoria died on the way to the hospital. According to the medical report drawn up in connection with his death, the cause of death was the gunshot wound to his head which had damaged the brain matter with multiple fractures of the face, cranial roof and skull base bones.
3. Investigation into the killing
(a) by the Georgian authorities
The Prosecutor’s Office of Georgia opened an investigation into the killing of Giga Otkhozoria on the day it had happened. The office brought charges in absentia against R. K.-O. for murder and illegal purchase, storage and carrying of firearms. R. K.-O. was declared a wanted person.
In the context of the investigation, a forensic medical report was prepared. It recorded no traces of drugs or alcohol found in the victim’s blood. It also confirmed the wounds, their size and shape, how they were inflicted, as well as the damage to the victim’s body.
On 27 May and 6 July 2016 the Georgian authorities shared case materials of Giga Otkhozoria’s investigation file with the Abkhaz and Russian representatives in the IPRM. The Georgian authorities also asked for the arrest of R. K.-O. and his handover to them.
On 3 October 2016 the Georgian Young Lawyers Association (hereafter “GYLA”) approached the SSSG on behalf of the applicants, inquiring into the progress of the investigation. On 19 October 2016 the SSSG replied that the Georgian representatives to the IPRM had demanded R. K.-O.’s arrest and handover. The reply of the de facto Abkhaz authorities had been that the Abkhaz legislation did not allow the handover of a “citizen of Abkhazia” to another country.
On 26 December 2016 the Zugdidi District Court in Georgia found R. K.-O. guilty as charged and sentenced him in absentia to 12 years imprisonment. In January 2017 the Prosecutor’s Office of Georgia appealed before the Kutaisi Court of Appeal, seeking a longer sentence. The appellate court granted the appeal on 7 March 2017 and increased R. K.-O.’s sentence to 14 years in prison. That decision has not been challenged before the Supreme Court of Georgia and has thus become final. It has not been enforced as the perpetrator has not been handed over to the Georgian authorities.
Upon a request by the Georgian authorities, on 18 March 2017 Interpol issued a red notice for the arrest of R. K.-O. It has remained not acted upon.
On 27 June 2017 the GYLA, as representatives of the applicants, asked the SSSG whether the Georgian authorities had requested the arrest and handover of the perpetrator, as well as inquired about the status of the investigation in Abkhazia.
On 11 July 2017 the SSSG replied that the de facto Abkhaz authorities had terminated the investigation into the applicants’ relative’s murder.
(b) by the de facto Abkhaz authorities
On 20 May 2016 the de facto Abkhaz authorities opened an investigation into the killing of the applicants’ relative and R. K.-O. was charged with his murder. On 22 June 2016 the de facto Military Court of Abkhazia authorised R. K.-O.’s placement under house arrest.
In May and July 2016, representatives of the de facto Abkhaz authorities to the IPRM informed the other parties there that the Abkhaz military prosecutor was investigating the murder, that the suspect had been dismissed from his official position as a security officer in the State Security Agencies and that his service gun had been taken from him, and he had been placed under house arrest. In August 2016 representatives of the de facto Abkhaz authorities to the IPRM provided an update into the investigation.
On 27 January 2017 the GYLA wrote to the Abkhaz Military Prosecutor’s Office and, specifying that the organisation represented the mother and widow of Giga Otkhozoria, informed the prosecution office that the Georgian authorities had conducted an investigation into the killing and that the first-instance court had found R. K.-O. guilty of murder, and had sentenced him to 12 years in prison. The GYLA then asked a number of questions related to the progress of the investigation in Abkhazia.
On 21 April 2017 the Abkhaz Military Prosecutor’s Office terminated the investigation into the murder for lack of sufficient evidence. The office specified in a statement that they had asked the Georgian authorities repeatedly to hand over all evidence collected by them, including video footage and medical expert reports. However, all the Georgian authorities had done was send to them some documents in the Georgian language, without a stamp or a signature, and the Abkhaz authorities had returned those as not useful for the investigation. R. K.-O. was released from house arrest on the same date when the investigation was terminated.
The Delegation of the European Union to Georgia issued a press release on 12 June 2017, deploring the decision of the de facto Abkhaz authorities to drop charges against the suspect of Gita Otkhozoria’s killing.
The applicants have not been granted victim status, nor have they been informed directly by the Abkhaz authorities about the termination of the investigation.
On 15 August 2017 the GYLA wrote to the Abkhaz Military Prosecutor’s Office inquiring into the reasons for which the investigation into the applicants’ relative’s murder had been terminated in Abkhazia. The letter also asked whether the evidence provided by the Georgian authorities to the de facto Abkhaz authorities, gathered during the investigation in Georgia into the killing, had been taken into account. Their inquiry has remained without an answer.
(c) by the Russian authorities
No Russian State authority has opened an investigation into Giga Otkhozoria’s killing.
The GYLA wrote on behalf of the applicants to the Office of the Prosecutor General of the Russian Federation, respectively in January and March 2017, asking about progress in the investigation in Abkhazia. The GYLA also urged the Russian prosecution office to cooperate with the de facto Abkhaz authorities within the context of the investigation and, if the de facto Abkhaz authorities had not conducted an effective investigation, to do so themselves without delay.
The Office of the Prosecutor General of the Russian Federation replied on 21 March 2017, stating that the Republic of Abkhazia is a sovereign state. It also stated that the jurisdiction of the Office of the Russian Federal Prosecutor General did not extend to that territory and indicated that for all questions related to the investigation the applicants had to turn to the competent Abkhaz authorities.
On 28 June 2017 the GYLA wrote to the Investigative Committee of the Russian Federation, requesting confirmation of the status of the investigation in Abkhazia. On 11 July 2017 that committee replied that it had forwarded the inquiry to the Office of the Prosecutor General of the Russian Federation. On 25 July 2017 the Prosecutor General of the Russian Federation, in a letter replying to the inquiry of 28 June 2017, reiterated their comments made in the reply of 21 March 2017.
B. Relevant domestic law
1. Georgian law
According to Article 1(1) of the Constitution of Georgia, “Georgia is an independent, unified and indivisible state, as confirmed by the referendum of 31 March 1991 held throughout the territory of the country, including the Autonomous Soviet Socialist Republic of Abkhazia and the Former Autonomous Region of South Ossetia, and by the Act of Restoration of State Independence of Georgia of 9 April 1991”.
Article 3(1§§ p-q) of the Constitution stipulates that criminal law and powers of investigation lie within the exclusive competence of Georgian state authorities. Only the Parliament of Georgia has competence to adopt laws such as the Criminal Code of Georgia and the Criminal Procedural Code of Georgia. Accordingly, Georgia considers Abkhazia as sovereign territory of the Georgian state and officially Georgian laws are applicable in the territory of Abkhazia, Georgia.
According to Article 4(1) of the Criminal Code of Georgia, a person who has committed a crime on the territory of Georgia shall be criminally liable under this Code. Article 2(4) of the Criminal Procedural Code establishes a similar principle, namely that, regardless of the place of commission of the offence, criminal proceedings are to be carried out on the territory of Georgia in accordance with Georgian legislation.
The Law on Occupied Territories, adopted by Georgia in late 2008, defined the status of Abkhazia and established a special legal regime applicable there. Its Article 7(1) provides that “The occupied territories are an integral part of Georgia, to which the legislation of Georgia shall apply. Responsibility for violation of universally recognised human rights defined by the Constitution of Georgia in the occupied territories shall be laid on the Russian Federation, under the norms of international law.”
2. Law of the de facto Republic of Abkhazia
The de facto Constitution of Abkhazia declares the Republic of Abkhazia as a sovereign, democratic state. According to its Articles 36 and 47(5), all legislative authority will be exercised by the Parliament of the Republic of Abkhazia, which has the exclusive competence to adopt a criminal code and a criminal procedural code. Article 75 of the de facto Constitution stipulates that the Prosecutor General of the Republic of Abkhazia and the local prosecutors subordinate to him supervise the legality of criminal investigations.
The objectives of the Criminal Code of Abkhazia, among others, are the protection of the rights and freedoms of individuals, as well as the protection of property, public order and public safety, the environment, the constitutional system, and ensuring peace and the prevention of crime.
According to Article 4 of the Criminal Code “persons who have committed crimes are equal before the law and subject to criminal liability irrespective of their sex, race, nationality, language, origin, property and official status, place of residence, attitude to religion, convictions, membership of public associations or other circumstances”. Article 99(1) stipulates that murder is the intentional causing of death to another person and that it is punishable with deprivation of liberty for a term of six to twelve years. Murder committed by reason of national, racial, religious hatred or blood feud is punishable with deprivation of liberty for a term of eight to fifteen years, life imprisonment, or the death penalty.
According to the Criminal Procedural Code of Abkhazia, proceedings in relation to a criminal case conducted on the territory of Abkhazia, regardless of the place of committing the crime, are to be conducted in conformity with this Code, unless otherwise stipulated by an international treaty of the Republic of Abkhazia. Criminal prosecution on behalf of the state in criminal cases is carried out by the prosecutor, investigator and the inquirer. Where there is suspicion of a crime having been committed, the prosecutor or the other law enforcement officials take measures aimed at establishing the facts and identifying the one(s) responsible.
According to Article 24 of the Criminal Procedural Code, criminal proceedings are terminated in the event of: absence of a crime; expiration of the limitation period for prosecution; death of the suspect or accused; lack of a related complaint by the victim in cases of private prosecution; or absence of a court statement as to the availability of the elements of a crime. The termination of a criminal case entails the immediate ending of the criminal prosecution.
Under Article 42 victims have the right to be recognised as such by a decision of the inquirer, investigator or prosecutor. Victims also have the right to: be informed about the charges brought against the suspect; provide evidence; refuse to testify against themselves, their spouse or other close relatives; have a representative; take part in the investigative measures following the permission of the investigator or inquirer; get acquainted with the records of the investigative measures and expert conclusions; get acquainted with and make copy of all or any of the materials of the criminal case after the investigation has been completed; receive copies of the decision for instituting a criminal case, for recognising their victim status, for terminating or suspending the criminal case, as well as copies of decisions or sentences by the courts; participate in the judicial proceedings; support the prosecution; get acquainted with the record of the hearings and submit comments on it; complain about actions of the investigators, inquirers or prosecutors; and others stipulated in the Code.
Article 421(1(1)) of the Criminal Prosecution Code provides that individuals shall not extradited if the person, whose extradition is sought by a foreign state, is a citizen of the republic of Abkhazia.
The Law on State Security Agencies of 1995, amended in 2009, provides that the unified system of state security agencies consists of (1) Security Service of the Republic of Abkhazia; (2) State Security Agencies in the Armed Forces of the Republic of Abkhazia ad other military formations (military counterintelligence); (3) Border Division of the Security Service of the Republic of Abkhazia. Under the law the Border Security Agencies protect the state border of the republic of Abkhazia and the State Security Agencies monitor compliance with the rules applicable to the state border and the check-points across it, as well as the customs regime. Furthermore, the State Security Agencies are entitled to check individuals’ documents if they are suspected of having committed an offence the investigation of which falls within the prerogatives of the state security agencies, and to have their employees keep and carry service weapons and special devices the use and application of which is to be carried out in accordance with Abkhaz legislation.
Article 15 of the Law on State Security Agencies provides that employees of those agencies, in performing their duties, represent the government and are under the protection of the state. Any action preventing the performance of official duties by officials of the State Security Agencies, insulting their honour and dignity, threats, resistance, violence or encroachment on their life, health and property in connection with the performance of their official activities attracts liability as envisaged in Abkhaz legislation.
The Law on the Status of Servicemen provides in its Article 26 that servicemen, depending on the nature and severity of any alleged offence committed by them, can be subject to disciplinary, administrative, material, civil and/or criminal responsibility.
The Law on the State Border provides in its Article 3 that protection of the State border is to be carried out by the border troops within the border areas and by the armed forces in the airspace and underwater. The state border is to be protected in order to prevent any unlawful crossing.
Article 38 of the Decree of the President of the Republic of Abkhazia of 2013 “On approval of the Regulation on Military Service in the State Security Service of the Republic of Abkhazia” provides that servicemen may be removed from military service, among other things, before the expiry of their terms of service. According to Article 39, military servicemen engaged in service on a contractual basis can be dismissed early if they had been found guilty of a criminal offence or of an offence discrediting the honour of a serviceman.
3. Law of the Russian Federation
Article 105 of the Criminal Code of Russia establishes criminal responsibility for murder. Article 105(1) stipulates that murder is the intentional causing of death of another person which is punishable with deprivation of liberty for a term of six to 15 years.
Article 21(1)(2) of the Criminal Procedural Code determines that responsibility for criminal prosecution on behalf of the state lies with the prosecutor, the investigator and the inquirer, who have to take measures, stipulated in the present Code, to establish the fact of the crime and to identify the person, or persons, guilty of committing the crime.
COMPLAINTS
The applicants complain under Article 2 of the Convention about their relative’s killing as a result of unlawful use of force by representatives of the de facto Abkhaz authorities and about the lack of an effective investigation into the killing. They also complain under Article 13 in conjunction with Article 2 of the Convention that they did not have an effective domestic remedy to challenge the absence of an effective investigation into the killing.
QUESTIONS TO THE PARTIES
A. In respect of compatibility of the application ratione personae and ratione loci
1. Do the facts complained of fall within the jurisdiction of the respondent State within the meaning of Article 1 of the Convention? In particular:
a) Are the complaints made by the applicants compatible, ratione personae, with the provisions of the Convention, given that they concern alleged acts and failure to act on the part of representatives of the de facto Abkhaz authorities?
b) Are the complaints made by the applicants compatible, ratione loci, with the provisions of the Convention, given that they concern facts which allegedly took place on Georgian, and subsequently on Abkhaz, territory?
B. In respect of other admissibility requirements
1. Did the applicants introduce their application within the time-limit of six month as required by Article 35 § 1 of the Convention?
2. Were there effective domestic remedies in respect of the applicants’ complaints under Article 2 of the Convention and, if yes, what exactly were those remedies? If there were domestic remedies, did the applicants exhaust them as required by Article 35 § 1 of the Convention? If they did not exhaust them, did they have a realistic opportunity to exhaust them?
C. In respect of the complaints
1. Has the right to life of Giga Otkhozoria, guaranteed by Article 2 of the Convention, been violated in the present case?
2. Having regard to the procedural protection of the right to life (see Salman v. Turkey [GC], no. 21986/93, § 104, ECHR 2000-VII), did the domestic authorities carry out an effective investigation, as required by Article 2 of the Convention?
In connection with the above questions, and having regard to the States’ obligations under Article 38 of the Convention (see Tahsin Acar v. Turkey [GC], no. 26307/95, § 254, ECHR 2004‑III), the Respondent Government are requested to submit to the Court a copy of the entire investigation file in the criminal investigation opened by the de facto Abkhaz authorities in relation to the killing of Giga Otkhozoria.
APPENDIX
Nino MATKAVA is a Georgian national who was born in 1986, lives in Zugdidi and is represented by G. Tabatadze Akaki OTKHOZORIA is a Georgian national who was born in 2008, lives in Zugdidi and is represented by G. Tabatadze Ketevan OTKHOZORIA is a Georgian national who was born in 2004, lives in Zugdidi and is represented by G. Tabatadze Julieta TCHANTURIA is a Georgian national who was born in 1956, lives in Zugdidi and is represented by G. Tabatadze
Full & Egal Universal Law Academy