FIFTH SECTION

DECISION

Application no. 59329/16 Aslan TSUTSASHVILI against Georgia

The European Court of Human Rights (Fifth Section), sitting on 27 May 2021 as a Committee composed of:

Ganna Yudkivska, President, Stéphanie Mourou-Vikström, Lado Chanturia, judges, and Martina Keller, Deputy Section Registrar ,

Having regard to the above application lodged on 5 October 2016,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Aslan Tsutsashvili, is a Georgian national who was born in 1991 and lives in the village of Omalo, Akhmeta municipality, Georgia. He was represented by Ms T. Avaliani and Ms N. Londaridze, lawyers practising in Tbilisi.

2 . The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.

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

4 . The applicant is a Georgian national belonging to the Kist ( a Chechen ethnic group living in Georgia) ethnic minority.

5 . On 23 January 2016 administrative offence and arrest reports were drawn up in respect of the applicant and his father, G.G. According to the reports, at 11.35 a.m. that day the police stopped the applicant ’ s father while driving his car in the city of Akhmeta on account of a breach of the traffic rules requiring his passenger – the applicant – to wear a seatbelt. The administrative arrest report issued in respect of the applicant noted that he had become aggressive towards the police officers, insulting them, and had subsequently resisted arrest. As regards G.G., it was noted that he had insulted the police officers and interfered with the exercise of their duties. The reports were signed by G.G. and the applicant. These documents were sent to the Telavi District Court.

6 . On the same date – 23 January 2016 – the Telavi District Court held a hearing and delivered its decision. It took note of the administrative offence reports (see paragraph 5 above), the parties ’ explanations apparently made at the trial, and concluded, without elaborating on the factual circumstances of the case, that the applicant and his father were each to be fined 250 Georgian laris ((GEL), approximately 94 euros (EUR) at the time) for failure to comply with the lawful orders of the police, in breach of Article 173 of the Code of Administrative Offences (see paragraph 19 below). The applicant and his father were released immediately. An appeal lay against the decision within ten days of its delivery. It does not appear that the applicant availed himself of this opportunity.

7 . Four days later, on 27 January 2016, the applicant lodged an application with the Kakheti regional prosecutor ’ s office. He stated that on 23 January 2016 he had been physically and verbally ill-treated by the officers of the Akhmeta police department on the grounds of his ethnic origin and requested, among other things, that an investigation be opened under Article 333 § 3 (b) and (c) of the Criminal Code (see paragraph 20 below).

8 . On 2 February 2016 a senior investigator of the Kakheti regional prosecutor ’ s office opened an investigation under Article 333 § 3 (b) into the alleged exceeding of official powers by the police in relation to the applicant ’ s arrest.

9 . On the same date the prosecutor questioned the applicant in the presence of his lawyer. The applicant stated that on 23 January 2016 he and his father had disagreed with the police officers regarding the fine imposed, as he had been wearing a seatbelt, as required under the relevant traffic rules. The police officers had rejected their request to check the security cameras located at a nearby petrol station. According to the applicant, the verbal altercation had developed into a fight between him and Officer M.B., and he had been pinned down by two officers who had tied his hands behind his back. Shortly afterwards more officers, including the head and the deputy head of the Akhmeta police department, had arrived at the petrol station and driven the applicant and his father to the police station. The applicant alleged that the officers had been physically ill-treating him while he had been lying on the ground and his beating and the officers swearing at him had continued in the police car. He stated that he had not received any injuries as a result of the incident, and he had not seen a doctor, but he had felt pain in his leg for three days afterwards. The applicant also alleged that at the police station the head of the Akhmeta police department had said that Kists had become too cocky.

10 . On the same day – 2 February 2016 – the investigator ordered a forensic medical examination. The applicant refused to participate, noting that he did not have any injuries, and that his leg pain had passed. The examination was not, therefore, carried out.

11 . On 2 February 2016 the video-footage from the security camera located at the petrol station was obtained. It is soundless, of relatively poor quality, and the field of scope of the recording is limited. However, it shows the applicant approaching the police car, gesticulating vigorously, and the three officers speaking to the applicant and his father. Suddenly a scuffle breaks out and the applicant ’ s father attempts to stand between M.B. and the applicant. After several seconds, the applicant is pinned down by two officers. The applicant ’ s father walks to his car and moves it to a different spot. Reinforcements arrive and the applicant and his father are driven away.

12 . On 3 February 2016 the investigator questioned the cashier of the petrol station, T.Kh., who had witnessed the incident. He stated that it had been G.G. and the applicant who had become aggressive after the police officers had informed them about the fine. According to T.Kh., the applicant and his father had approached the police car, sworn at the officers loudly and refused to calm down despite the instruction to that end by the officers. Then the applicant had suddenly hit M.B. in the face, and torn the latter ’ s jacket during the ensuing scuffle. At that moment, two other police officers had caught the applicant and restrained him on the ground until reinforcements had arrived and driven the applicant and his father away.

13 . On the same day the investigator questioned the three police officers (M.B., M.Gh., and I.M.) involved in the incident. M.B. denied any allegations of ill-treatment or insults hurled at the applicant on the grounds of his ethnicity. He noted that the applicant and his father had disagreed with the fine and had approached the police car and argued with the officers as the latter were drawing up the necessary paperwork. According to M.B., the applicant had sworn at the officers, threatening them and stating that he would not pay the fine. The officers had explained to him that he had the possibility of lodging an appeal against the fine, and had asked the applicant and his father to calm down and return to their car, but to no avail. M.B. stated that the applicant had hit him in the face, however he had not received any visible injury as a result. Furthermore, the applicant had torn his jacket in the underarm area. The investigator visually examined M.B. ’ s jacket and noted that it had been repaired in the area indicated by M.B. M.B. stated that the applicant had been pinned down by I.M. and M.Gh. in order to restrain him until the arrival of reinforcements. As regards G.G., M.B. stated that he had been hindering the officers from restraining the applicant, therefore he had also been arrested and taken to the police station. Afterwards, the applicant and G.G. had been taken to the Telavi District Court, where they had been fined and released. The two other officers – I.M. and M.Gh. – gave similar statements.

14 . On 4 February 2016 the head of the Akhmeta police department, his deputy, and eight other officers were questioned. They all stated that neither during the applicant ’ s arrest nor subsequently at the police station had he been physically ill-treated or insulted based on his ethnic background.

15 . On 5 February 2016 the applicant ’ s father was questioned. He stated that the applicant had started arguing about the fine, the argument had developed into a scuffle between the police officer and his son, and the latter had then been restrained. G.G. also stated that he had not seen his son being physically ill-treated or heard him being insulted based on his ethnic origin, nor had he experienced such treatment himself.

16 . On 14 December 2016 D.J., the cleaner of the petrol station, stated that she had arrived at the scene of the incident at the moment when the applicant had been being pinned to the ground by the police officers. She stated that no physical ill-treatment or verbal insults had taken place during what she had witnessed of the incident.

17 . On 5 July 2016 the applicant complained to the Chief Prosecutor ’ s Office about the ineffectiveness of the investigation and its length. He also inquired about the progress made and requested to be granted victim status. On 11 August 2016 the Kakheti regional prosecutor ’ s office responded that the criminal investigation was ongoing, and the applicant had the rights afforded to a witness. As to the question regarding his possible victim status, it would be decided based on the results of the investigation.

18 . The criminal investigation appears to still be ongoing.

19 . Under Article 173 of the 1984 Code of Administrative Offences, as in force at the material time, non-compliance with a lawful order or request of a law-enforcement officer or a person with an equivalent status, as well as verbally insulting or carrying out other insulting acts towards such individuals during the exercise of their official duties, constituted an administrative offence, punishable with a fine (from GEL 250 to GEL 2,000) or up to fifteen days ’ administrative imprisonment.

20 . Article 333 § 1 (“Exceeding official powers”) of the 1999 Criminal Code, as in force at the material time, provided as follows:

“The exceeding of official powers by an official or a person equivalent thereto which has resulted in a substantial violation of the rights of physical or legal persons, or of the lawful interests of the public or the State, shall be punished by a fine or up to three years ’ imprisonment, with a deprivation of the right to hold office or to carry out a particular activity for up to three years.”

Article 333 § 3 (b) and (c) provided that the use of violence or a weapon or insulting the victim ’ s personal dignity, respectively, constituted aggravating factors of the offence.

COMPLAINTS

21 . The applicant complained under Article 3 of the Convention that the police had used excessive force and discriminatory language during his arrest. He also complained that the investigation into his allegations of ill ‑ treatment had not been effective.

22 . The applicant also relied on Articles 13 and 14 of the Convention and Article 1 of Protocol No. 12 to the Convention in respect of the same complaints.

THE LAW

23 . The applicant complained, under Article 3 of the Convention, that the police had used excessive force and discriminatory language during his arrest, and that the authorities had failed to carry out an effective investigation into his allegations. Article 3 reads:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

24 . The Government submitted that the applicant had failed to substantiate his allegations of ill-treatment and discrimination, and that the criminal investigation into the matter had been effective.

25 . The relevant general principles are summarised in, among other authorities, Bouyid v. Belgium [GC], no. 23380/09, §§ 81-88 and 114‑23, ECHR 2015.

26 . Turning to the circumstances of the present case, the Court observes that the material in the case file demonstrates that the applicant disagreed with the officers who had been issuing him with a fine (see paragraphs 5 - 6 and 12 above). The applicant confirmed this, but stated that the police had used unjustified and excessive force and discriminatory language towards him (see paragraph 9 above). However, as regards the latter allegations, the eyewitness to the incident explicitly refuted them, stating that, to the contrary, it had been the applicant who had been physically and verbally aggressive towards the police officers (see paragraph 12 above). Furthermore, the applicant ’ s father denied having personally witnessed the alleged ill-treatment (see paragraph 15 above). Nor does the footage from the security camera confirm the applicant ’ s allegations (see paragraph 11 above). What is more, despite claiming to have been physically ill-treated while pinned down on the ground and while in the police car, the applicant admitted that he had suffered no injuries and had not needed to see a doctor, and that was why he had refused to participate in a medical examination ordered by an investigator (see paragraphs 9 - 10 above). In the light of these circumstances, the Court does not consider that the applicant has made out an arguable claim as to the existence of ill-treatment contrary to the substantive limb of Article 3 of the Convention.

27 . Assuming the applicability of Article 3 of the Convention under its procedural limb, the Court observes that the domestic authorities opened the criminal investigation into the applicant ’ s allegations promptly (see paragraphs 7 - 8 above). The investigation was carried out by a prosecutor ’ s office which – and this was not disputed by the applicant – was institutionally and practically independent from the Ministry of the Interior in charge of the police. While the criminal investigation appears to be ongoing, the Court reiterates that the procedural obligation under Article 3 is that of means, and not every investigation should necessarily be successful or come to a conclusion which coincides with the claimant ’ s account of events (see Kardisauskas v. Lithuania , no. 62304/12, § 65, 7 July 2015). In this regard, a number of important investigative steps were carried out within several months of the incident and did not confirm, in the slightest, the veracity of any of the applicant ’ s allegations (see paragraphs 8 ‑ 16 above). In the particular circumstances of the case, the Court considers that the authorities were under no obligation to conduct a more in-depth investigation into the applicant ’ s allegations than that which they had already conducted (see Svoboda and Others v. the Czech Republic (dec.), no. 43442/11, § 60, 4 February 2014; Toncu v. the Republic of Moldova (dec.), no. 26710/08, § 49, 13 November 2014; and Tanış v. Turkey (dec.), no. 15442/08, § 51, 9 February 2016).

28 . 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.

29 . Relying on Articles 13 and 14 of the Convention and Article 1 of Protocol No. 12 to the Convention, the applicant reiterated his complaints concerning the allegedly excessive force and discriminatory language used during his arrest, and the alleged ineffectiveness of the criminal investigation.

30 . Having regard to its findings in respect of the identical complaints under Article 3 of the Convention (see paragraphs 26 - 28 above), the Court considers this part of the application to also be manifestly ill-founded. It must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 June 2021 .

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Martina Keller Ganna Yudkivska Deputy Registrar President