FOURTH SECTION

DECISION

Application no . 65969/09 Dachi TSAGURIA against Georgia

The European Court of Human Rights (Fourth Section), sitting on 15 September 2015 as a Committee composed of:

Ledi Bianku, President, Nona Tsotsoria, Paul Mahoney, judges, and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 7 December 2009,

Having regard to the declaration submitted by the respondent Government on 27 May 2015 requesting the Court to strike the application out of the list of cases and failure of the applicant to reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Dachi Tsaguria, is a Georgian national, who was born in 1982 and lives 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. Between early April and late June 2009 thousands of opposition supporters held demonstrations in various parts of Tbilisi, as well as in a few other major cities of the country, on a daily basis, demanding resignation of President M. Saakashvili and his Government. During that period there were several incidents where the police used allegedly excessive force against demonstrators. The present application concerned one of such incidents, which occurred on 15 June 2009.

5. In particular, in the morning of 15 June 2009 fifty members and supporters of a youth opposition group, of which the applicant was the leader, gathered in front of the Tbilisi police headquarters to protest the arrest of opposition activists which had occurred a few days earlier. After having tolerated the demonstration for some 15-20 minutes, police officers proceeded to its forceful dispersal.

6. According to the applicant ’ s allegations, he received from the dispersing police officers a series of violent blows made with truncheons on his spine, head and hands. After the dispersal, a number of protesters, including the applicant, were arrested and taken inside of the building of the police headquarters. Allegedly, the captive protestors were forced to lay on the ground, while police officers were insulting, kicking and hitting them with rubber truncheons.

7. On the same day, 15 June 2009, the applicant was charged with the administrative offences of breach of public order and resistance to lawful order of a police officer. Allegedly, without having been granted sufficient time and facility to acquaint with the case materials or to appoint a lawyer, the applicant was taken from the Tbilisi police headquarters to a court for an administrative trial.

8. By a decision of 15 June 2009, the Tbilisi City Court, having briefly heard oral statements from the applicant and the police officer who had been at the place of the dispersal of the demonstrators, found the applicant guilty of the administrative offences with which he had been charged a few hours earlier. Notably, the court found it established that the applicant had been professing insults towards police officers in a street and continued to do so event despite a police officer ’ s warning. The applicant was sentenced to administrative detention for the duration of thirty days.

9. The applicant was then escorted, in the evening of 15 June 2009, from the Tbilisi City Court to a short remand prison no. 2 of the Ministry of the Interior, where he served his sentence.

10. On 16 and 17 June 2009 the applicant, referring to his alleged ill ‑ treatment by the police officers during the dispersal of the demonstration as well as after his arrest inside of the Tbilisi police headquarter, requested the Chief Public Prosecutor ’ s Office to launch an investigation into those two separate episodes of police abuse.

11. On 16, 17 and 22 June 2009 the applicant repeatedly complained to the Governor of the short remand prison no. 2 that he had not been provided with adequate medical care for his traumas received as a result of his beating by the police on 15 June 2009. In particular, he requested to be examined by a neuropathologist. He also complained about unsanitary conditions of his detention, noting, in particular, the absence of any hygienic items in his cell and the inability to take a shower.

12. On 22 June 2009 the applicant appealed against the Tbilisi City Court ’ s decision of 15 June 2009, complaining that he had not been explained any of his procedural rights upon the arrest and had not been given a possibility of appointing a lawyer.

13. By a decision of 25 June 2009, the Tbilisi Court of Appeals dismissed the applicant ’ s appeal as ill-founded and upheld his conviction of 15 June 2009. In its reasoning part, the court noted, amongst other things, that the applicant had not requested the assistance of a lawyer before the lower court.

14. On 27 August 2009 the applicant enquired with the prosecution authority about a progress in the investigation launched with respect to his criminal complaints against the police abuses. No reply followed.

THE LAW

15. On 15 September 2014 the application was communicated to the Government under Articles 3, 6 §§ 1 and 3 and 11 of the Convention.

16. By a letter of 27 May 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.

17. The declaration provided as follows:

“The Government wish to express their regretful acknowledgement of:

- Certain deficiencies as regards Article 3 of the Convention, including a violation under its procedural limb on account of shortcomings identified in the course of the investigation into Mr Tsaguria ’ s injuries allegedly sustained on 15 June 2009 as well as concerning the lack of medical care and the applicant ’ s inability to maintain his personal hygiene in prison no. 2 of the Ministry of the Interior;

- a violation of Article 6 § 1 and 3 of the Convention as the applicant was not given adequate time and facilities in order to prepare for his defence ... ;

- a violation of Article 11 of the Convention on account of the disproportionate administrative sanction – 30 days of detention; ...

The Government, in the light of the particular facts of the applicant ’ s case, undertake:

- to conduct prompt and effective investigation into the applicant ’ s allegations of ill-treatment on 15 June 2009;

- to pay 3,500 (three thousand five hundred) Euros to cover any and all pecuniary or non-pecuniary damages as well as costs and expenses, plus any tax that may be chargeable to the applicant. 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 ... ”

18. The applicant was invited to submit his comments on the Government ’ s unilateral declaration by 13 July 2015, but failed to do so.

19. 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”.

20. 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). In this respect, the applicant ’ s failure to reply to the Government ’ s declaration should be interpreted as his refusal to accept it.

21. 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).

22. 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 SulwiÅ„ska v. Poland (dec.), no. 28953/03, 18 September 2007).

23. It recalls that it has already established in a number of cases, including those brought against Georgia, its practice concerning complaints about the allegations of ill-treatment by the police and lack of adequate investigation in that respect (see, for example, Begheluri v. Georgia , no. 28490/02, §§ 105-112, 7 October 2014; Davtyan v. Georgia , no. 73241/01, §§ 35-47, 27 July 2006) as well as about the fairness of the administrative proceedings launched as a means of interference with the right to hold a peaceful demonstration, in breach of Article 6 §§ 1 and 3 and Article 11 of the Convention (see, for example, Kakabadze and Others v. Georgia , no. 1484/07, §§ 84 ‑ 93, 2 October 2012; Osmani and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no. 50841/99, ECHR 2001 ‑ X; and Galstyan v. Armenia , no. 26986/03, §§ 100 ‑ 102, 15 November 2007).

24. Having regard to the nature of the admissions contained in the Government ’ s declaration, as well as the amount of the compensation proposed – which is fully adequate in the particular circumstances of the present case (compare also with Botchorishvili v. Georgia (dec.), no. 652/10, 30 June 2015) – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).

25. Moreover, in light of the above considerations, 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 (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).

27. In view of the above, it is appropriate to strike the case out of the list .

For these reasons, the Court, unanimously,

Takes note of the terms of the respondent Government ’ s declaration under Articles 3, 6 §§ 1 and 3 and 11 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;

Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.

Done in English and notified in writing on 8 October 2015 .

Fatoş Aracı Ledi Bianku Deputy Registrar President