FIFTH SECTION

DECISION

Application no. 57047/08 Kakha PARJIANI against Georgia

The European Court of Human Rights (Fifth Section), sitting on 15 May 2018 as a Committee composed of:

André Potocki , President, Mārtiņš Mits , Lado Chanturia , judges, and Milan Blaško , Deputy Section Registrar ,

Having regard to the above application lodged on 24 July 2008,

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 Kakha Parjiani , is a Georgian national, who was born in 1978 and lives in the village of Latali . He was represented before the Court by Ms T. Abazadze , Ms T. Dekanosidze , Ms N. Jomarjidze , and Ms K. Shubashvili , lawyers practising in Tbilisi.

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

A. The circumstances of the case

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

4. 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 a police raid near the town of Mestia to apprehend certain suspects. The SPF and the police forces were split into two joint groups located on both sides of a bridge.

5. According to the official version of events, as established by courts at all three levels of jurisdiction in criminal proceedings against the applicant, on 22 October 2005 the applicant and two unidentified individuals, armed with machine-guns, were driving in the direction of Mestia . As the car approached the first group of the police forces, the latter signalled the applicant to stop the car, but he drove past them. The police fired a warning shot in the air. Those in the car responded directly by opening fire. As a result of the return fire by the SPF, the car was damaged and stopped. The applicant jumped out of the car and opened fire at the policemen. The shootout between the police and those in the car left the applicant and two members of SPF injured. The two unidentified suspects fled and took the firearms, including that of the applicant.

6. According to the applicant ’ s version of events, he was alone in the car, the policemen did not request him to stop, he did not carry any weapons, and as he continued driving across the bridge, the masked gunmen started shooting at his car from both sides of the bridge, even after he attempted to stop the car, leaving him wounded and unconscious.

7. On 22 October 2005 a criminal investigation was opened against the applicant and the two unidentified men regarding the incident, and subsequently continued only in respect of the applicant. Ten members of the SPF (including the two wounded officers) and three local police officers participating in the raid were questioned by an investigator and granted victim status. The applicant was charged with attempted aggravated murder and violent resistance to the police, committed as part of a group.

8 . On 25 November 2005 the applicant ’ s mother addressed the President of Georgia and requested “ immediate investigation of the crime committed by police officers. ” On 21 December 2005 her request was forwarded for examination to the Samegrelo-Zemo Svaneti Regional Main Division of the Ministry of the Interior, the body conducting the investigation against the applicant.

9 . On 6 December 2005 the applicant addressed the Chief Prosecutor concerning alleged irregularities of the investigation pending against him. Among other complaints, he noted that the charges against him were based solely on the statements of the policemen who themselves had opened fire without any grounds, and they possibly sustained the injuries during the crossfire from the two sides of the bridge. He requested that the investigation be conducted objectively and separate criminal proceedings be instituted against the law-enforcement officers if signs of criminal behaviour were revealed.

10 . On 22 December 2005 the Chief Prosecutor ’ s Office instructed the investigative authorities to carry out certain additional investigative measures in relation to the charges against the applicant. No mention was made of the applicant ’ s allegation concerning the excessive use of force by the police officers.

11 . On 11 January 2006 the preliminary investigation against the applicant was completed.

12 . On the same day the applicant lodged an application with the investigator against the completion of the preliminary investigation. Referring to his complaint of 6 December 2005 (see paragraph 9 above), the applicant requested that a comprehensive investigation be carried out in respect of his allegations.

13 . On 13 January 2006 the investigator rejected the applicant ’ s application as unsubstantiated. According to the decision which was not amenable to appeal, all necessary investigative activities had been duly implemented and the case was ready to be sent to trial.

14. The criminal case against the applicant was sent to the court of first instance for trial on 24 January 2006.

15. The applicant voiced his version of the events during the criminal trial against him without invoking Article 50 of the Code of Criminal Procedure (see paragraph 22 below) either explicitly or in substance.

16. On 6 February 2007 the Zugdidi City Court found the applicant guilty of aggravated attempted murder and assault against law-enforcement officers and sentenced him to thirteen years ’ imprisonment. His version of the events was rejected as unsubstantiated in view of the expert evidence and witness statements.

17. On 21 May 2007 the Kutaisi Court of Appeal modified the conviction. It found the applicant guilty only of aggravated attempted murder committed as part of a group and sentenced him to ten years ’ imprisonment.

18. On 24 January 2008 the Supreme Court of Georgia declared the applicant ’ s appeal on points of law inadmissible as manifestly ill-founded.

19 . On 27 June 2008 the applicant filed another complaint requesting the prosecutor ’ s office to launch an investigation into the alleged excessive use of force by the policemen against him on the night of 22 October 2005.

20 . On 7 July 2008 the District Prosecutor ’ s Office for the Samegrelo ‑ Zemo Svaneti region, referring to the official version of events as established by the domestic courts in criminal proceedings against the applicant, responded that the police forces had not used excessive force on 22 October 2005.

21. In February 2013 the applicant was granted early release from prison on the basis of an Amnesty Act of 2012.

B. Relevant domestic law

22 . The Code of Criminal Procedure (1998) in force at the material time, and in so far as relevant, provided as follows:

Article 50: Decision of a court ...

“1. If appropriate grounds exist, a court issues a decision by which it draws the attention of a State organ, a public organisation, political entity or a person holding an office to the violation of the law established as part of the case, [as well as] the causes and circumstances aiding the commission of a crime that require adequate response.

2. A decision may also be issued by a court if a violation of citizen ’ s rights or other violations of the law are revealed and were committed during the preliminary investigation or by the lower courts examining the case. ...

4. Necessary measures in response to a decision shall be carried out within a month [of the issuance of such decision] and the results be notified to the court...”

Article 450: Scope of a judicial examination

“Judicial examination of a case is carried out against the accused only within the scope of the charges against him or her ... except when a prosecutor amends the charges in favour of the accused.”

COMPLAINTS

23. The applicant complained under Articles 2 and 13 of the Convention about the use of disproportionate potentially lethal force by the police during the arrest operation, and the failure of the authorities to investigate the matter.

THE LAW

24. Relying on Articles 2 and 13 of the Convention the applicant complained about the disproportionate use of potentially lethal force by the police, and the failure of the relevant authorities to investigate the matter.

25. The Government submitted that the applicant had failed to comply with the six-month rule in respect of his complaints. Even assuming the effectiveness of the criminal investigation against the applicant as a remedy for his complaints, the completion of that investigation and the refusal of the investigator dated 13 January 2006 to pursue the applicant ’ s grievances ought to have made the latter aware of the delimited scope of the case and the futility of that remedy. They further maintained that Article 50 of the Code of Criminal Procedure was not accessible to the applicant in view of its discretionary nature.

26. The applicant maintained that the criminal investigation and trial against him constituted an effective remedy in respect of his allegations under the Convention, and that the six-month period started to run after the final decision of the Supreme Court was rendered in his case.

27. The Court reiterates that as a rule, the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Where no effective remedy is available to the applicant, the period runs from the date of the acts or measures complained of, or from the date of the knowledge of that act or its effect on or prejudice to the applicant (see Dennis and Others v. the United Kingdom ( dec. ), no. 76573/01, 2 July 2002). Where an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 § 1 to take the start of the six-month period from the date when the applicant first became or ought to have become aware of those circumstances (see, among others, El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 136, ECHR 2012, and Mocanu and Others v . Romania [GC], nos. 10865/09 and 2 others, § 260, ECHR 2014 (extracts)).

28. The Court has refrained from indicating in its case-law a specific period for establishing when the applicant should perceive the investigation as ineffective for the purposes of calculating the six-month period. The determination of the exact point in time that this occurs necessarily depends on the circumstances of the case and it is difficult to determine it with precision (see Mocanu and Others , cited above, § 266, and Nasirkhayeva v. Russia ( dec. ), no. 1721/07 , 31 May 2011).

29. In cases concerning allegations under Articles 2 and 3 of the Convention, applicants are expected to be diligent and to take steps to keep track of the investigation ’ s progress, or lack thereof, and to lodge their applications with due expedition once they are, or should have become, aware of the lack of any effective criminal investigation (see Mocanu and Others , cited above, §§ 262 ‑ 264 and 268, with further references, and Huseynova v. Azerbaijan , no. 10653/10, § 87, 13 April 2017 ).

30. The Court notes that the applicant did not lodge a separate criminal complaint against the police officers regarding their alleged use of excessive force during the incident of 22 October 2005 . He did, however, submit a complaint to that end to the Chief Prosecutor ’ s Office on 6 December 2005 as part of the criminal investigation regarding that incident that was opened against him (see paragraph 9 above). Even assuming that, i n the circumstances of the case, the criminal proceedings initiated against the applicant may, at their initial stage, have served as an appropriate venue for complying with his due diligence obligation to alert the authorities of his complaints concerning the use of excessive force by the police, the application is in any event inadmissible for reasons set out below.

31. The applicant never received an explicit response to his complaint lodged before the Chief Prosecutor ’ s Office on 6 December 2005. Neither did the instructions issued by the latter to the investigative authority in charge of the applicant ’ s case refer to the applicant ’ s allegations against the police officers (see paragraph 10 above). Finally, the preliminary investigation against the applicant was completed on 11 January 2006 (see paragraph 11 above). The applicant ’ s appeal against that decision was explicitly rejected in a resolution which was not amenable to appeal (see paragraph 13 above).

32. Accordingly, the unambiguous refusal of the investigator dated 13 January 2006 to pursue the applicant ’ s grievances under Article 2 of the Convention ought to have made it evident that no investigation had been instigated, and that there was no immediate, realistic prospect of an effective investigation being provided in the future.

36. Accordingly, the investigator ’ s final refusal to pursue the applicant ’ s complaint concerning the allegedly excessive use of force by the police ought to have made him aware, on 13 January 2006 at the latest, that no effective investigation had been instigated and there was no immediate, realistic prospect of such an investigation being provided in the future. The six ‑ month time-limit therefore started to run on 13 January 2006, whereas the application was introduced on 24 July 2008 .

37. In the light of the foregoing, the Court finds that the application is inadmissible for the applicant ’ s failure to comply with the six-month rule and it must be rejected under Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 7 June 2018 .

Milan BlaÅ¡ko André Potocki              Deputy Registrar President