FOURTH SECTION
DECISION
Application no. 5358/14
X and Y
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 9 September 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 3 January 2014,
Having deliberated, decides as follows:
THE FACTS
1. The applicants, Mr X (“the first applicant”) and Ms Y (“the second applicant”), are Georgian nationals, who were born in 1987 and 1970 respectively and live in Tbilisi. The second applicant is the first applicant’s mother. The President granted the applicants’ request for their identity not to be disclosed to the public (Rule 47 § 4). They were represented before the Court by Ms L. Mukhashavria, a lawyer practising in Tbilisi.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants and supported by the case file, may be summarised as follows.
1. The first applicant’s alleged ill-treatment
3. The first applicant was arrested on 8 March 2011 on charges of resisting police officers and illegal use of drugs. He had previously been convicted of drug use in 2009. On 10 March 2011 he was placed in Gldani no. 8 Prison. On the same date he was taken to a special temporary cell, where an operative inspector on duty, V.B., offered him the possibility of cooperating with the prison administration. V.B. threatened him with violence if he did not do as ordered by the prison administration. When the applicant remained silent, another prison officer, O.P., who was also present in the cell, asked him whether he wanted to become a so-called “thief in law” (see in this connection Ashlarba v. Georgia, no. 45554/08, §§ 18-24, 15 July 2014, not final yet). The applicant refused to reply. O.P. became angry and started insulting and beating the applicant. He was soon joined by another prison officer, identified subsequently as G.Ts. They both threatened the applicant with sexual violence.
4. After some ten minutes of beatings the first applicant was taken to another cell and handcuffed to the doors half-naked. O.P. again demanded that he cooperate with the prison administration. The applicant did not reply. O.P. brought in another prisoner and threatened the applicant with sexual violence. The applicant subsequently accepted the “offer” by signing a note and undertaking to provide the prison administration with any information that could be of interest to them.
2. Secret video recording of the first applicant’s ill-treatment and release of the footage on television
5. On 18 September 2012, one of the national private television companies, Maestro, broadcast several secret video recordings of alleged ill‑treatment of prisoners in Gldani no. 8 Prison. It later came to light that a major part of that footage had been personally taken by a prison officer, V.B., who had subsequently left Georgia. While abroad he had given a copy of the footage to a Georgian journalist.
6. One of the videos shown on that day by national television and uploaded subsequently to various internet sites depicted the first applicant’s ill-treatment of 10 March 2011. The video, which had been secretly recorded by V.B., lasted for some ten minutes and included scenes of the first applicant being verbally and physically abused. The video ended with the applicant writing a note and undertaking to cooperate with the prison administration.
7. In the footage broadcast by the Maestro channel on 18 September 2012 the first applicant’s face was only partly concealed. Hence, members of his family, including the second applicant, immediately identified him. They also recognised him based on further evidence. After watching the video, the first applicant allegedly attempted to commit suicide.
3. Subsequent criminal proceedings
8. On 19 September 2012 some sixteen officials, among them the head and deputy head of the prison department (an authority in charge of prisons in Georgia), one prison governor and various prison officers, including O.P. and G.Ts., were arrested and charged with several distinct episodes of ill‑treatment and torture, including the first applicant’s case.
9. On 6 June 2013 the Chief Prosecutor of Georgia concluded a plea bargain involving special cooperation with V.B., in which the latter agreed to cooperate with the investigation in return for being absolved of criminal responsibility. On 11 June 2013 another plea bargain was concluded with G.Ts. in which he pleaded guilty in return for a more lenient sentence (see in this connection Natsvlishvili and Togonidze v. Georgia, no. 9043/05, §§ 49-53 and 90-98, ECHR 2014 (extracts)).
10. By a decision of 14 June 2013, the Tbilisi City Court confirmed the plea bargains concluded with V.B. and G.Ts. Accordingly, V.B. was absolved of criminal responsibility, while G.Ts was sentenced to two years’ imprisonment and a fine in the amount of 2,000 Georgian laris. By virtue of an Amnesty Law of 18 December 2012, G.Ts.’s prison sentence was reduced to one year and six months. As regards O.P., his final prison sentence for four different episodes of ill-treatment, including the first applicant’s case, after the application of the Amnesty Law and the respective provisions concerning the calculation of prison sentences, amounted to six years and nine months. He was additionally banned from holding a public position for a year and six months.
11. The Tbilisi City Court delivered the above decision at a closed hearing on 14 June 2013 and it was served on the first applicant on 27 June 2013.
B. Relevant domestic law
12. The relevant provision concerning a “procedural agreement” (“საპროცესო შეთანხმება” in Georgian, saprotseso shetankhmeba), or plea bargain, as introduced into the new Code of Criminal Procedure of Georgia (entered into force on 1 October 2010) and applicable at the material time, reads as follows:
Article 217 §§ 2 and 3
“2. The injured party has no right to appeal against a plea bargain.
3. A plea bargain does not prevent the injured party from lodging a civil complaint.”
COMPLAINTS
13. The first applicant complained, under Article 3, taken separately and in conjunction with Article 13 of the Convention, of ill-treatment in Gldani no. 8 Prison and the inadequacy of available domestic remedies in this regard. He also claimed that Article 6 of the Convention in conjunction with Article 13 had been violated on account of the fact that although investigated, his ill-treatment had led to the conclusion of procedural agreements with the implicated prison officers and that he had been deprived of the opportunity to challenge those procedural agreements in court. He also complained, under Article 8 of the Convention, that a video recording of his ill-treatment had been broadcast by a national television channel in an inappropriate manner. He emphasised in this regard that his face had been improperly revealed, enabling members of his family, including the second applicant, to identify him.
14. The second applicant claimed that her son’s ill-treatment, the subsequent criminal proceedings and the broadcasting of the relevant video recording nationwide had caused her irreparable damage, in violation of Articles 3 and 8 of the Convention.
THE LAW
1. As regards the first applicant’s ill-treatment and the subsequent criminal proceedings
15. The Court reiterates that Article 35 § 1 of the Convention permits it to deal with a matter only if the relevant complaint has been lodged within six months of the date of the final decision in the process of exhaustion of domestic remedies (see, among others, Post v. the Netherlands (dec.), no. 21727/08, 20 January 2009, and Otto v. Germany (dec.), no. 21425/06, 10 November 2009). The time-limit starts to run on the date following the date on which the final decision has been pronounced in public, or on which the applicant or his representative was informed of it, and expires six calendar months later, regardless of the actual duration of those calendar months (see Otto (dec.) cited above, and Kadiķis v. Latvia (no.2) (dec.), no. 62393/00, 25 September 2003). Compliance with the six-month deadline is determined using criteria specific to the Convention and not those of each respondent State’s domestic legislation (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 52-56, 29 June 2012, with further references therein).
16. The Court further notes, in line with its well-established case-law, that for the purposes of Article 35 § 1 of the Convention, the date of introduction of the application is as a rule the date of the postmark recording the date on which the application was sent (see Korkmaz v. Turkey (dec.), no. 42589/98, 5 September 2002; Arslan v. Turkey (dec.), no. 36747/02, ECHR 2002-X (extracts); Růžičková v. the Czech Republic (dec.), no. 15630/05, 16 September 2008; Gaspari v. Slovenia, no. 21055/03, § 35, 21 July 2009; and Brežec v. Croatia, no. 7177/10, §§ 28-30, 18 July 2013).
17. Turning to the circumstances of the present case, the Court notes that the final decision on a domestic level concerning the circumstances of the first applicant’s ill-treatment and the ensuing criminal proceedings was delivered by the Tbilisi City Court on 14 June 2013. It was served on the first applicant on 27 June 2013 and he could not appeal against it (see above paragraph 12). Hence, for the purposes of the six-month rule, the latest date for submitting an application before the Court as far as the first applicant’s complaints under Article 3 of the Convention are concerned was midnight on 27 December 2013 (see Otto (dec.) cited above; see also Sabri Güneş [GC], §§ 60-62, cited above, and Abashidze v. Georgia (dec.), no. 47974/07, § 7, 4 September 2012).
18. The Court observes in this connection that the application form was indeed dated and signed by the applicants’ representative on 27 December 2013. However, as the relevant postmark on the envelope shows, it was not posted until 3 January 2014 – the date which the Court considers reasonable to accept as the date of introduction of the application (see Arslan (dec.), Kadiķis (dec.), Otto (dec.), Růžičková (dec.), all cited above; see also Anchugov and Gladkov v. Russia, nos. 11157/04 and 15162/05, § 72, 4 July 2013). In such circumstances, the Court is led to conclude that this part of the application was introduced outside the six-month time-limit established by the Convention. Thus, the first applicant’s central complaints under Article 3 of the Convention have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
19. The remainder of the first applicant’s complaints under Article 3 in conjunction with Article 13 and Article 6 taken separately and in conjunction with Article 13 of the Convention, concerning the very same criminal proceedings are – without elaborating on other potential grounds for their rejection – consequently also inadmissible under Article 35 §§ 1 and 4 of the Convention.
2. As regards the broadcasting of the video footage on television
20. The Court notes that the applicants complained, under Article 3 (the second applicant) and Article 8 (both applicants) of the Convention, about the public broadcasting of a video of the first applicant’s ill-treatment by Maestro television in an inappropriate manner. According to the case-file, they did not pursue this issue before either of the authorities at domestic level. They claimed, however, in general terms before the Court, without elaborating further on that point, that at the material time the practice of making public secret audio and video recordings was regular and systematic. They also alleged that no adequate legislative framework was in place to prevent future similar violations.
21. The Court does not consider it necessary to examine whether the applicants were required to exhaust domestic remedies in this respect, since even if it enters into the applicants’ argument of the systemic nature of the practice and the alleged legislative gap complained of, the complaints concerning broadcasting of the video footage must be rejected for failure to comply with the six-month rule.
22. Thus, the Court reiterates that if no remedies are available in domestic law or if they are judged to be ineffective, the six-month time‑limit in principle runs from the date of the act complained of (see, among many others, Hazar and Others v. Turkey (dec.), no. 62566/00, 10 January 2002, and Valašinas v. Lithuania (dec.), no. 44558/98, 14 March 2000) or from the date when the applicant first became aware of such an act or had knowledge of its adverse effects (see Dennis and Others v. the United Kingdom (dec.), 76573/01, 2 July 2002; Varnava and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, § 157, ECHR 2009; and Arslan (dec.) cited above). In the current case, the video recording depicting scenes of the first applicant’s ill-treatment was released on 18 September 2012. If the applicants considered from the very outset that no effective remedy had been available to them to complain about that fact, they should have lodged their application within six months of that very date, that is by 18 March 2013 at the latest (see Lenev v. Bulgaria, no. 41452/07, §§ 136‑138, 4 December 2012).
23. The Court emphasises in that connection that the criminal proceedings instituted after the public broadcasting of the various videos of the ill-treatment did not concern the issue of their public dissemination. The applicants could not have expected that their ensuing complaints would be addressed within the context of the above proceedings, particularly given that the criminal proceedings at issue had been instituted against individual public officials implicated in ill-treatment in prisons, while the video had been broadcast by a private television channel.
24. In view of all the above, the Court considers that the applicants’ complaints under Article 3 (the second applicant) and Article 8 of the Convention (both applicants), as far as the manner in which the video of the first applicant’s ill-treatment was broadcast by Maestro Television is concerned, are inadmissible for failure to comply with the six-month rule. It accordingly concludes that these complaints must similarly be rejected pursuant to Article 35 §§ 1 and 4 of the Convention.
25. As to the remainder of the second applicant’s complaints under Article 3 of the Convention (see above paragraph 14), the Court concludes that they 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
Declares the application inadmissible.
Fatoş AracıIneta Ziemele
Deputy RegistrarPresident
Full & Egal Universal Law Academy