FOURTH SECTION

DECISION

Application no . 2228/10 Gulnara GAMTSEMLIDZE and others against Georgia

The European Court of Human Rights (Fourth Section), sitting on 1 April 2014 as a Chamber composed of:

Ineta Ziemele, President, Päivi Hirvelä, Ledi Bianku, Nona Tsotsoria, Paul Mahoney, Krzysztof Wojtyczek, Faris Vehabović, judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 8 January 2010,

Having regard to the declaration submitted by the respondent Government on 10 September 2013 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.

2. The first and second applicants are, respectively, the mother and widow of Mr Giorgi Gamtsemlidze, who was born in 1976 and killed during a police chase on 8 May 2008 (see paragraph 5 below), whilst the third, fourth and fifth applicants are his children. All of them are Georgian nationals, live in Tbilisi and were represented before the Court by Ms Natia Katsitadze and Ms Tamar Abazadze, members of the Georgian Young Lawyers ’ Association (GYLA).

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

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

5. On 8 May 2008, at around 1:20 a.m., two patrol police officers, V.A. and L.J., who served at the Tbilisi and Mtskheta-Mtianeti Department of the Patrol Police of the Ministry of the Interior, started pursuing a vehicle that was speeding in a central district of Tbilisi. At some point, the car hit the curb stones, and the driver, Mr Giorgi Gamtsemlidze, got out and attempted to escape by running over the roof of an adjacent garage box. One of the police patrol officers, V.A., ran after him. The officer pulled out his service pistol during the chase and fired a shot which mortally wounded Mr Gamtsemlidze in the back of his neck. The latter died almost immediately, before an ambulance, called by the police officers, could arrive.

6. Immediately after the incident, the Tbilisi City Public Prosecutor ’ s Office (“the TCPPO”) launched, at 1:35 a.m. a criminal probe against the patrol officer V.A. for an offence prosecuted under Article 144 of the Code of Criminal Procedure – killing as a result of the use of force beyond that which was required for arresting a wrongdoer. Investigators from the TCPPO examined the scene of the crime between 2:30-3:35 a.m. As disclosed by a verbatim record of that examination, they did not report to have discovered any weapon at the scene.

7. Simultaneously, the Tbilisi and Mtskheta-Mtianeti Department of the Patrol Police of the Ministry of the Interior launched a second investigation into the circumstances of the incident. The latter investigation was directed against late Mr Gamtsemlidze for offence prosecuted under Article 236 of the Criminal Code – unlawful possession and conveyance of a gun. Within the framework of that second investigation, investigators from the above ‑ mentioned Department of the Patrol Police conducted, between 2:40 a.m. and 4:20 a.m., another examination of the scene of the crime. Among other descriptions, the investigators reported to have discovered a gun on the roof of the garage box (see paragraph 5 above).

8. On 9 May 2008 the two criminal cases, which had been separately initiated by the TCPPO and the Ministry of the Interior, were joined. The Ministry transmitted the collected evidence, which concerned the alleged involvement of Mr Gamtsemlidze in a firearms offence, to the prosecution authority. The latter authority then re-qualified the charge against V.A. (see paragraph 6 above) into that under Article 166 of the Criminal Code – involuntary manslaughter.

9. In his statement given to the TCPPO on 8 May 2008, V.A., who was considered a suspect at that time, stated that he had run after Mr Gamtsemlidze after having turned off the headlights of his car and pulled out and loaded his service gun. He specified that he had not noticed anything resembling a gun in the hands of the suspect nor had he made any oral warning during the foot pursuit. The police officer stated that he had made an accidental shot from his gun after having reached Mr Gamtsemlidze in the yard of above-mentioned house and started having a tussle with the latter in that yard.

10. When questioned as a witness on 8 May 2008, L.J. mostly confirmed the account of the events as was given by V.A. Thus, L.J. stated that he had not noticed anything resembling a gun in the hands of Giorgi Gamtsemlidze during the foot pursuit. He and his partner police officer had merely thought that since the young man was trying to escape from them, it was already suspicious and meant that the man might be carrying an illegal item.

11. The gun which had been found on the roof of the garage box was subjected to a number of crime detection tests (dactyloscopy and other) during the pre-trial investigation. However, none of those tests could establish that the gun had either been held in the hands or carried by Giorgi Gamtsemlidze on his person on the night of the incident.

12. O.T., a resident of the street in which the police chase and the killing of Mr Gamtsemlidze had occurred, was the only independent eyewitness to the incident. When questioned for the first time by the TCPPO on 8 May 2008, he stated that he had first heard a sound of a car crash which followed by a gunshot, the sound of someone running on the roof of the garage and finally the sound of something/someone hitting the ground. He had then gotten out from his bed to go to the balcony which was overlooking the yard, from which he had seen that a young man was lying on the ground, near the garage, whilst a few police patrol officers were standing on the roof of the garage. In reply to the investigators ’ questions, O.T. stated that he had not heard anyone giving an order to drop a gun or to stop running and had not seen any weapon or other object lying on the roof of the garage box. When questioned by the trial court on 5 December 2008, O.T. added that he had seen and heard how certain police officers had dropped a gun on the roof of the garage after the body of the young man had been taken by the ambulance. He also complained that certain people from the prosecution authority had been discouraging him from testifying before the court.

13. By a judgment 16 January 2009, the Tbilisi City Court convicted V.A. of involuntary manslaughter (the offence prosecuted under Article 116 of the Criminal Code), sentencing him to two years in prison and two years on probation. The convict was also ordered to pay 41,500 Georgian Laris (some 20,000 Euros) to the first applicant in non-pecuniary damage.

14. The first applicant then appealed against the judgment of 16 January 2009, referring to a number of shortcomings of the investigation, some of which had first been voiced by her before the prosecution authority during the pre-trial stage. Thus, she complained that ( i ) the investigation had failed to establish whom the gun, which had allegedly been discovered on the roof of the garage box, had in reality belonged to and whether or not it could have been planted by the implicated patrol police officers, that (ii) the prosecution authority and the trial court had not given a proper consideration to the fact that the convict had used his service pistol against her son without a prior warning, in breach of the relevant legal regulations, that (iii) no proper consideration had been given to the fact that the preliminary investigative measures at the scene of the crime had been effectuated by officers of the Ministry of the Interior and that (iv) the statements of the eyewitness to the incident, O.T., had arbitrarily been ignored by the authorities.

15. On 11 March 2009 the Tbilisi Court of Appeals, dismissing the victim ’ s appeal, upheld the judgment of 16 January 2009 in full. By a decision of 2 July 2009, which was served on the applicant on 11 July 2009, the Supreme Court, rejecting the applicant ’ s cassation claim as inadmissible, finally terminated the proceedings.

COMPLAINTS

16. The applicants complained under Article 2 of the Convention that Mr Giorgi Gamtsemlidze had been killed as a result of excessive use of force by the police patrol officer and that the investigation into the crime had been ineffective. The latter, procedural part of the complaint had been reiterated under Article 13 of the Convention. Relying on Article 6 § 1 of the Convention, the applicants further complained that the criminal proceedings against the police officer, V.A., had been unfair and had resulted in an unjustifiably lenient punishment.

THE LAW

A. As regards the complaints under Article 2 of the Convention

17. On 11 March 2013 the Court gave notice of the application to the Government under Article 2 of the Convention.

18. After the failure of attempts to reach a friendly settlement, by a letter of 10 September 2013 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the communicated part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

19. The declaration provided as follows:

“Considering the factual and legal circumstances of the case, the Government of Georgia wish to express their regretful acknowledgement of violations of Article 2 of the Convention under its substantive and procedural limbs.

The Government note that the use of force by the police officer against Mr Gamtsemlidze was not absolutely necessary for the purposes of paragraph 2 (b) of Article 2 of the Convention. In this connection, the Government recall that by the judgment of 16 January 2009 the Tbilisi City Court convicted the police officer in question of involuntary manslaughter, sentencing him to two years in prison and two years on probation. In addition, the City Court examined the victims ’ civil claim and ordered the convict to pay 41,000 Georgian Laris to the first applicant for non ‑ pecuniary damage.

As regards the ineffectiveness of the investigation launched with respect to the use of force against Mr Giorgi Gamtsemlidze, the Government consider that the failure of the authorities to guarantee sufficient involvement of the victim in the investigation and to verify and give objective consideration to the witness statements of Mr O.T. is incompatible with the procedural obligation of effective investigation stemming from Article 2 of the Convention.

The Government, within the scope of the instant declaration and in order to remedy the above-mentioned deficiencies, are thus prepared to:

- re-investigate the case with respect to excessive use of force by the police officer against Mr Giorgi Gamtsemlidze;

- guarantee the applicants ’ right to participate effectively in the investigation in line with the requirements of Article 2 of the Convention;

- pay 20,000 (twenty thousand) Euros to cover any pecuniary and non-pecuniary damages as well as costs and expenses. This amount will be converted into the respondent State ’ s national currency at the rate applicable on the date of payment and be free of any taxes that might be applicable to the applicant. 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 sum within the said three-month period, the Government undertakes 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. ...

The fulfilment of the above-mentioned conditions will constitute the final resolution of the case.”

20. By a letter of 23 October 2013, the applicants indicated that they were not satisfied with the terms of the unilateral declaration on the ground that the Government failed to acknowledge specifically that the investigation into the killing of Mr Gamtsemlidze had lacked independence and impartiality due to the involvement of the Ministry of the Interior at the early stage of the criminal proceedings, which aspect, contravening both the relevant domestic law and the relevant principles under the procedural limb of Article 2 of the Convention, was at the core of their application. The applicants further denounced the amount of the compensation as inadequate.

21. The Court recalls 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 if:

“ for any other reason established by the Court, it is no longer justified to continue the examination of the application” .

22. It also recalls 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 applicants wish the examination of the case to be continued. To this end, the Court will examine carefully the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment ( Tahsin Acar v. Turkey (preliminary issue) [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).

23. The Court notes that it specified in a number of cases the nature and extent of the obligations which arise for the respondent State as regards the respect for a person ’ s right to life as guaranteed by Article 2 of the Convention (see, for example, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, §§ 93-97, ECHR 2005 ‑ VII, McCann and Others v. the United Kingdom , 27 September 1995, § 150, Series A no. 324, and also Makaratzis v. Greece [GC], no. 50385/99, §§ 56-59, ECHR 2004 ‑ XI) . It reiterates, in particular, that the fundamental character of Article 2 of the Convention always requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios , agents of the State (see, amongst many others, Enukidze and Girgvliani v. Georgia , no. 25091/07 , §§ 241 ‑ 243, 26 April 2011).

24. That being so, the Court, having examined the terms of the Government ’ s declaration, attaches particular significance to the Government ’ s express undertaking to conduct effective investigation into the relevant life-taking incident anew. The Court considers that undertaking to be sufficiently broad to cover all relevant aspects of the effectiveness of investigation, including the requirement of its independence and impartiality. Furthermore, the Court also considers that the amount of compensation that the Government propose to pay to the applicants jointly is adequate in the light of the particular circumstances of the present case.

25. In light of the above considerations, the Court considers that it is no longer justified to continue the examination o f 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 ).

26. 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 ( Josipović v. Serbia ( dec. ), no. 18369/07, 4 March 2008).

B. As regards the remainder of the application

27. As to the applicants ’ complaints under Articles 6 § 1 and 13 of the Convention, the Court, hav ing regard to all the evidence in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols. It follows that this part of the application is 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 the part of the application, in so far as it relates to the complaints under Article 2 of the Convention, out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;

Declares the remainder of the application inadmissible.

Fatoş Aracı Ineta Ziemele Deputy Registrar President

Appendix