TEDLIASHVILI AND OTHERS v. GEORGIA

FOURTH SECTION

DECISION

Application no. 64987/14
Inazi TEDLIASHVILI and others
against Georgia

The European Court of Human Rights (Fourth Section), sitting on 24 November 2015 as a Committee composed of:

Krzysztof Wojtyczek, President,
Nona Tsotsoria,
Gabriele Kucsko-Stadlmayer, judges,
and Fatoş Aracı, Deputy Section Registrar,

Having regard to the above application lodged on 17 September 2014,

Having regard to the declaration submitted by the respondent Government on 3 April 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 who live in Gori, and are represented before the Court by Ms J. Evans, Ms J. Gavron, Mr V. Grigoryan, Ms N. Jomarjidze, Mr Ph. Leach, Ms K. Levin, Ms K. Shubashvili, Ms T. Dekanosidze and Ms T. Abazadze, lawyers from the European Human Rights Advocacy Centre in London and Georgian Young Lawyers’ Association in Tbilisi.

2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.

3. The facts of the case, as submitted by the parties, may be summarised as follows.

4. On 30 April 2011 Mr Kakhaber Tedliashvili, the first and second applicants’ son and the father of the third applicant, was discovered hanged with a medical bandage in the solitary confinement cell of Rustavi prison no. 6 (“the Rustavi prison”). He had been serving a prison sentence of thirteen years and six months for an aggregate of firearms and drug offences in that prison since August 2008.

A. Facts preceding Mr K. Tedliashvili’s death in prison

5. According to the applicants’ version of the events which had purportedly preceded his death, it was in the spring of 2010 that M. K. Tedliashvili’s relations with several security officers of the Rustavi prison had deteriorated. Notably, he had been requested to cooperate with them by becoming their “informant” in the prison. As Mr Tedliashvili had refused that cooperation, the prison officers had started bullying him, threatening with the use of force and/or denouncing him as an actual “informant” to his fellow prisoners.

6. When the first and second applicants had visited their son in prison in the autumn of 2010, the latter confided in them that the prison security officers had started beating him (one of the beatings had even led, allegedly, to a broken leg). The fact of his ill-treatment was later confirmed by statements of two other inmates of the Rustavi prison.

7. Starting from January 2011 and until his death, Mr Tedliashvili had regularly placed telephone calls to his parents from prison, expressing his fear of the prison officers, naming, in particular, two persons – Mr V.K. and Mr J.I. During those telephone conversations, Mr Tedliashvili would reiterate that his days were counted and that the two above-mentioned prison officers, with connivance of the governor of the prison, Mr D.M., had wanted him dead.

8. On 8 April 2011 Mr K. Tedliashvili had publicly voiced his fears for his life for the first time by addressing written complaints to the governor of the prison, Mr D.M, and the Public Defender of Georgia. Reiterating all the details of his conflict with the two prison security officers and the death threats received from them, he had requested the two authorities to undertake urgently all the necessary measures aimed at saving his life in prison.

9. Subsequently, on 11, 12, 13 and 18 April 2011 the first and second applicants filed with the Minister of Justice, the Minister of Custodial Institutions, the Chief Public Prosecutor’s Office and the President of the Human Rights Committee of the Parliament of Georgia similar requests to secure their son’s life and well-being in the Rustavi prison. All those complaints and requests were left without any reaction.

B. Criminal investigation

10. On 30 April 2011, immediately after Mr K. Tedliashvili was discovered hanged, an internal investigative unit of the Ministry of the Custodial Institutions (“the prison investigative unit”) launched a criminal investigation for instigation to commit suicide (criminal case no. 073110264). One of the first investigative measures was a forensic examination of the body, conducted by State experts.

11. On 3 May 2011 the prison investigative unit launched another criminal investigation with respect to Mr Tedliashvili’s death for possible abuses of power committed by prison staff against the late person (criminal case no. 42118015)

12. Between 4 May and 17 June 2011, the first and second applicants, calling for a prompt and objective investigation of the suspicious death of their son, repeatedly requested the prison investigative unit to provide them with all the available case materials concerning the above two investigations, including a copy of the results of the forensic examination.

13. By its replies of 20 May and 14 July 2011, the prison investigative unit refused to give access to the case materials on account of the fact that neither of the applicants represented a procedural party to either of the ongoing criminal cases.

14. Between September 2011 and March 2012, the Public Defender’s Office, the authority acting on behalf of the applicants, and the Chief Public Prosecutor’s Office exchanged correspondence in relation to the progress of the investigation of Mr K. Tedliashvili’s death. That exchange revealed the fact that the two criminal cases nos. 073110264 and 42118015 had been transmitted from the prison investigative unit to the Chief Public Prosecutor’s Office and joined on 14 August 2012. The investigation was still pending in its early stage, without having identified any individual suspect.

15. In early August 2013 the first applicant was summoned by the prosecution authority and interviewed in the capacity of a witness. She shared with the investigator everything she knew about a conflict between her son and the Rustavi prison security officers, Mr V.K. and Mr J.I.

16. On 6 and 16 September 2013 the first and second applicants enquired with the prosecution authority about a progress in the investigation. A prosecutor’s reply of 24 September 2013 disclosed that the criminal case concerning the death of their son had been joined, on 16 October 2012, with another criminal case opened by the prosecution authority against the two impugned security officers of the Rustavi prison, Mr V.K. and Mr J.I., on account of systemic ill-treatment of prisoners detained in that institution. The applicants further learnt that the status of victim could not be granted to them as the results of the ongoing investigation could not yet indicate beyond reasonable doubt that their son had died as a result of any type of undue treatment committed by the two suspects.

17. Between November 2013 and May 2014, the first and second applicants repeatedly complained before the relevant prosecutor’s office about the inability to obtain the status of victim and thus be involved in the investigation so that they could at least somehow influence the ongoing investigation’s apparent failure to elucidate the facts surrounding their son’s suspicious death. Those requests were rejected by the regional prosecutor’s letters on 13 March and 19 June 2014, in which the authority would constantly remind the applicants that the current results of the investigation did not allow a suspicion that their son had been a victim of any undue treatment by the two officers of the Rustavi prison.

COMPLAINTS

18. The applicants complain on behalf of late Mr K. Tedliashvili and in their own name under Article 2 of the Convention, this provision invoked separately and in conjunction with Article 13, about either the direct implication of the two prison officers, Mr V.K. and Mr J.I, in the suspicious death, or at least the relevant authorities’ failure to protect life, of Mr K. Tedliashvili in prison and about the absence of effective investigation in that regard.

THE LAW

19. On 1 December 2014 notice of the application was given to the Government.

A. The Government’s unilateral declaration

20. By a letter of 3 April 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. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

21. The declaration provided as follows:

“The Government wish to express their regretful acknowledgement of a violation of the applicants’ rights under the procedural limb of Article 2 of the Convention on account of the deficiencies identified in the course of the investigation into the death of Mr Kakhaber Tedliashvili.

The Government, within the framework of the present declaration, undertake to ensure the effectiveness of the ongoing investigation into the applicants’ allegations under close scrutiny by a competent high-ranking prosecutor and in full compliance with the principles established by the Court in order to ascertain, amongst other things, whether the relevant authorities took all necessary measures and in good time aimed at securing Mr Kakhaber Tedliashvili’s life and well-being in prison.

In addition, in the light of the above considerations and taking into account the factual circumstances of the case, the Government undertake to pay the total sum of 10,000 (ten thousand) Euros to the applicants to cover any and all pecuniary or non-pecuniary damages as well as costs and expenses, plus any tax that may be chargeable to them. This sum 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. It will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this 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. ...”

22. By a letter of 13 July 2015, the applicants informed the Court that they were not in a position to accept the Government’s unilateral declaration for the following reasons. Thus, whilst welcoming the acknowledgement of a violation of Article 2 of the Convention on account of the absence of an effective criminal investigation into the death of Mr Tedliashvili, they expressed their disappointment about the absence of a clear acknowledgement of a violation of Article 2 under its substantive limb as well. Maintaining their hypothesis that the two prison officers’ criminal complicity had been at cause of Mr Tedliashvili’s suspicious death in prison, they argued that the respondent State should have assumed the direct, substantive responsibility for that crime. They also requested that the Government should increase the amount of the compensation payable to them.

23. 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”.

24. 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).

25. 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).

26. 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).

27. As regards the applicants’ arguments, the Court does not consider them as valid objections capable of outweighing the significance of the Government’s unilateral declaration. The applicants’ claim that the prison officers had been linked to the taking of Mr Tedliashvili’s life is, at this stage, nothing but a supposition which calls for close scrutiny at the hands of competent and objective investigators at the domestic level. The Court is thus of the opinion that, in the particular circumstances of the present case, the Government’s acknowledgement of a violation of Article 2 of the Convention under its procedural limb, coupled with their remedial undertaking to proceed with an effective investigation at the national level, 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, mutatis mutandis, 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).

28. Indeed, the Court has established in a number of cases, including those brought against Georgia, its practice concerning complaints about suspicious deaths of individuals detained at State custodial institutions (see, for example, Tsintsabadze v. Georgia, no. 35403/06, §§ 71-95, 15 February 2011; and Mojsiejew v. Poland, no. 11818/02, § 65, 24 March 2009). It reiterates that, in such situations, the fundamental character of Article 2 of the Convention requires that there should be some form of an effective official probe in order for the cause of the death of a prisoner to be elucidated (see Tsintsabadze, cited above, §§ 94 and 95; see also Makharadze and Sikharulidze v. Georgia, no. 35254/07, §§ 87‑89, 22 November 2011).

29. That being so, the Court, having closely examined the terms of the Government’s unilateral declaration, attaches particular significance to the Government’s express undertaking to conduct a probe into the cause of the applicant’s death in prison. Furthermore, the Court finds that the amount of the compensation that the Government propose to pay to the applicants jointly is fully adequate in the circumstances of the present case.

30. In light of these considerations, the Court finds that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)). Moreover, 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).

31. 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).

B. The remainder of the application

32. The applicants reiterated their complaint about the ineffectiveness of the criminal investigation into the death of Mr K. Tedliashvili under Article 13 of the Convention, this provision invoked in conjunction with Article 2.

33. However, having regard to the terms of the Government’s unilateral declaration, notably their explicit undertaking to conduct an effective criminal investigation, the Court considers that the same issue does not merit a second, separate examination under Article 13 of the Convention.

34. It thus finds that the applicants’ complaints under Article 13 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government’s declaration under Article 2 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike a part of the application 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 17 December 2015.

Fatoş AracıKrzysztof Wojtyczek
              Deputy RegistrarPresident

Appendix    Mrs Inazi TEDLIASHVILI (“the first applicant”) was born on 14 October 1967.

     Mr Badri TEDLIASHVILI (“the second applicant”) born on 9 June 1963.

     Ms Ina LOTSULASHVILI (“the third applicant”) was born on 11 March 2004.

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