Communicated on 26 May 2014
FOURTH SECTION
Application no. 57047/08
Kakha PARJIANI against Georgia
lodged on 24 July 2008
STATEMENT OF FACTS The applicant, Mr Kakha Parjiani, is a Georgian national, who was born in 1978 and lives in the village of Latali. He is represented before the Court by Ms. N. Katsitadze and Ms. Vanda Jijelava, lawyers practising in Tbilisi.
A. The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The incident of 22 October 2005 and the applicant’s conviction
On 21 October 2005 the Special Police Forces (SPF) of the Ministry of the Interior, together with local police officers of the Samegrelo-Zemo Svaneti region, arranged an ambush nearby the town of Mestia to apprehend certain suspects. The police forces were split in two joint groups of SPF and local police officers – one group being located on each side of a bridge. According to the official version of the events of 22 October 2005, which is contested by the applicant, on 22 October 2005, at 2 a.m., the applicant and two unidentified individuals, all three being armed with machine-guns, were driving in a car in the direction of Mestia. When the car approached the first group of the police forces, the SPF officers signalled the applicant, who was at the wheel, to stop the car, but to no avail. After the police fired several warning shots in the air to make the applicant stop the car, those in the car responded with direct open fire. As the result of the return fire by the SPF, the car was damaged and stopped, having passed the second police group on the other side of the bridge. Then the applicant jumped out of the car and fired his gun towards the policemen. As the police fired back, the applicant got wounded and fell down. At this point, when the exchange of fire was still in course, the two unidentified persons jumped out of the car and managed to escape the scene on foot, also taking the applicant’s machine-gun away. The wounded applicant was apprehended by the police and taken to the nearest hospital. According to the applicant’s version of the events, he was driving in a car to Mestia alone. When he approached the bridge, he saw masked gunmen pointing their guns at several civilians who were laying on the ground. As he continued his way driving through the bridge, the masked gunmen started shooting at his car from both sides of the bridge. After he crossed the bridge and reached the other side of the road, three masked gunmen started to shoot directly at him from the front side of the vehicle. At this point he got several wounds in his chest and leg. As the shots were still being fired at him, the applicant, raising his hand as a sign of surrender, attempted to jump out of the damaged and slowly moving vehicle to avoid more wounds. However, having lost his strength due to the wounds, he fell out of the car on the ground and lost consciousness. When the applicant regained his consciousness, he was alone in a civilian vehicle parked outside the hospital in Mestia. The applicant stresses that the gunman never signalled him to stop and he was not carrying a weapon on the night of 22 October 2005. Two SPF officers were also wounded during the incident, whose injuries later were qualified as life-threatening by medical experts. A criminal investigation was opened against the applicant and his unidentified accomplices regarding the shooting incident of 22 October 2005, but at a later stage of the investigation the criminal case against applicant’s accomplices was separated from the applicant’s case. As stated in the crime scene report of 22 October 2005, twenty bullet shells were found next to the applicant’s car. Ballistic expertise later concluded that fourteen of these bullets were fired from three different machine-guns not belonging to the SPF officers. On 30 October 2005 the applicant was indicted for attempted aggravated murder and violently resisting to the police – both offences committed by a group. On the same day he was remanded in pre‑trial detention by the Zugdidi Regional Court, which decision was upheld, at the final instance, by the Kutaisi Court of Appeal on 10 November 2005. Due to the applicant’s poor state of health and his placement in a hospital, criminal proceedings were stayed twice. On 12 June 2006 his pre‑trial detention was also lifted on medical grounds. On 6 February 2007 the Zugdidi Regional Court found the applicant guilty of imposed charges and sentenced him to thirteen years’ imprisonment. On 21 May 2007, slightly modifying the conviction, the Kutaisi Court of Appeal found the applicant guilty only in aggravated attempted murder committed by a group and sentenced him to ten years’ imprisonment. The applicant’s conviction was based on multiple witnesses’ statements, including three eyewitnesses, the crime scene report, the ballistic expertise, and other evidence. On 24 January 2008 the Supreme Court of Georgia found the applicant’s cassation claim inadmissible for being manifestly ill-founded. In February 2013 the applicant was released from serving his outstanding sentence under an amnesty law.
2. The applicant’s injuries and medical treatment
On 22 October 2005 the applicant was brought to the hospital in Mestia immediately after the shooting incident, and a prompt surgery followed. According to the medical report available in the file, the applicant received multiple machine-gun wounds causing an extensive loss of blood: three wounds – in the left side of his chest, two – in his left thigh, and several scratch wounds – in his left heel. All of the applicant’s wounds were perforating. On 29 October 2005, as the applicant became fit for transportation, he was transferred to a more advanced hospital with better facilities in the city of Zugdidi. Further examinations revealed that the applicant’s radial nerve had been damaged due to one of the chest wounds, which caused problems with moving his left upper extremity, whereas the wounds in his thigh caused problems with moving his leg. On 2 November 2005 the applicant, being meanwhile remanded in pre-trial detention, was yet again transferred to #14 prison medical establishment in Tbilisi. Beyond continued standard post-operation treatment, since the applicant was still suffering from pain and difficulties with moving his left upper and lower extremities, he underwent additional medical examinations. Namely, in connection to his damaged median and radian nerves, he was examined and treated by vascular and microvascular surgeons. On 5 April 2006 the applicant was discharged from #14 prison medical establishment given a significant improvement of his health condition. On 9 May 2009 the applicant, being already convicted and imprisoned, was admitted to a prison medical establishment with complications involving his lungs. On 10 May 2009 he was enrolled in the anti-tuberculosis programme. On 21 May 2009 he was transferred to the prison medical establishment for tuberculosis patients for further specialized medical examination and treatment.
3. The applicant’s attempts to challenge the alleged excessive use of force by the police
No criminal investigation has ever been opened regarding the alleged excessive use of force by the police against the applicant. However, the following relevant developments stem out from the criminal proceedings directed against the applicant. From the very beginning of the investigation against the applicant, he and his lawyer maintained that the applicant was a victim, not a perpetrator, of the events of 22 October 2005, during which he was caught between the fire coming from the two police groups located on different sides of the bridge. Reiterating this argument to the investigator of the case, on 28 and 30 October 2005 the applicant refused to sign the reports recognizing him first as a suspect and then as an accused in the criminal case. On 30 November 2005, during the court hearing on remand, in the presence of the prosecutor, the applicant’s lawyer stated before the court that the applicant was in fact a victim of the excessive and almost fatal use of force by the police on 22 October 2005. As per the expert report of 15 November 2005, which was compiled after an external examination of the applicant’s vehicle, the bullet holes on the car, including the one on the front windshield, were inflicted by perforating gunshots fired at the vehicle from the front, left and right sides from “not a close distance”. The national courts rejected the repeated requests of the applicant and his lawyer to conduct an examination of the interior of the car to look for possible blood traces in order to establish whether or not the applicant was indeed wounded inside the car. In his letter of complaint of 6 December 2005 addressed to the Prosecutor General of Georgia, the applicant’s lawyer stated, inter alia, that on 22 October 2005 the applicant, being unarmed, came under the indiscriminate gunfire from the part of the two groups of the police, and that there was a high likelihood that the SPF officers were wounded by the gunshots fired by their own colleagues from the other side of the bridge. In the letter the applicant’s lawyer explicitly requested the Prosecutor General to open an investigation into the alleged acts of the police on 22 October 2005. The same argument about the applicant and the SPF officers being wounded as the result of the indiscriminate gunfire coming from the police forces was repeatedly voiced by the applicant and his lawyer during the trials at the first two court instances as well as in the applicant’s appellate and cassation complaints. In their letter of 27 February 2006 addressed to the President of Georgia, which was subsequently transmitted to the Prosecutor General of Georgia, the applicant’s parents once again reiterated the same argument, claiming that their son had been prosecuted on fabricated charges just to conceal the wrongdoings of the police forces committed on 22 October 2005. On 27 June 2008 the applicant’s lawyers filed another complaint with the respective prosecutor’s office requesting the launch of an investigation into the alleged excessive use of force by the policemen against the applicant on the night of 22 October 2005. On 7 July 2008 the District Prosecutor’s Office for the Samegrelo‑Zemo Svaneti, reiterating the official version of the events, informed the applicant’s lawyers in writing that the police forces had not used excessive force on 22 October 2005.
COMPLAINTS The applicant invokes Article 2 of the Convention, taken separately as well as in conjunction with Article 13 of the Convention, complaining about the excessive use of force by the police, which resulted in infliction of multiple life-threatening wounds on him, and about the lack of adequate investigation thereof.
QUESTIONS TO THE PARTIES
1. Was the applicant’s right to life, ensured by Article 2 of the Convention, violated in the present case? In particular, was the use of force by the police on 22 October 2005 absolutely necessary for the purposes of paragraph 2 (b) of this Article?
2. In relation to the incident of 22 October 2005, did the domestic authorities fulfil their obligations vis-à-vis the applicant with regard to the procedural limb of the right to life as provided for under Article 2 of the Convention (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII; and paragraph 131 of Labita v. Italy [GC], no. 26772/95, ECHR 2000-IV)?
3. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 2 of the Convention, as required by Article 13 of the Convention?
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