FOURTH SECTION

DECISION

Application no . 28297/10 Tengiz BERIDZE 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 30 April 2010 ,

Having regard to the declaration submitted by the respondent Government on 27 February 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 Tengiz Beridze , is a Georgian national, who was born in 1960 and lives in Batumi . He was represented before the Court by Ms K. Bekauri and Ms Ts. Javakhishvili , lawyers practising 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 June 2009 thousands of opposition supporters held street protests in various parts of Tbilisi, as well as in a few other major cities of Georgia, on a daily basis, demanding resignation of President Saakashvili and his Government. Protesters set up overnight camps which were composed of small tent dwellings looking like jail cells. Those mocked-up cells were to symbolise, in the protesters ’ view, the country ’ s descent into a “Police State”.

5 . The applicant was one of those activists who had been dwelling, since 23 April 2009, in a protest camp situated in Ingorokva Street, Tbilisi, in front of the Office of the General Inspection of the Ministry of the Interior (“the Ministry ’ s building”).

6. Between 23 and 25 April 2009 the applicant and his other fellow protesters witnessed how certain persons standing on a balcony of the Ministry ’ s building were regularly firing from pneumatic rifles in the direction of the mocked-up cells; relevant pellets were then discovered on the territory of the camp.

7 . On 25 April 2009, at around 4:30 p.m., the applicant, whilst visiting his fellow protesters in one of the mocked-up jail cells of the camp, suddenly felt pain in the right cheek, which started bleeding. He was immediately provided with medical care for the open injury on his cheek, which was then confirmed, by a medical expert, to have been inflicted by a pellet fired from a pneumatic rifle. Several protesters saw how a person standing on the balcony of the Ministry ’ s building with a pneumatic rifle continued firing in their direction even after the applicant had been injured. They managed to film on their mobile phones two persons, with more or less identifiable faces, standing on the balcony of the Ministry ’ s building with a pneumatic rifle in hands.

8 . On 25 April 2009 the Ministry of the Interior opened a criminal case for infliction of less serious bodily injury to the applicant. He was granted victim status. On the same day the applicant requested that a number of investigative measures be implemented, including interviewing him and several other eyewitnesses. He also requested that the video footage of the persons standing on the balcony of the Ministry ’ s building be added into the file. He reiterated his request on 28 April 2009. However, both his requests went unanswered.

9 . On 23 July and 8 September 2009 the applicant, complaining about the absence of any progress in the investigation, requested the Tbilisi City prosecutor ’ s office to get involved in it. He denounced that there was no institutional independence between the investigative body, the Ministry of the Interior, and the suspects – agents of the General Inspection Office of the same Ministry.

10 . In reply, on 7 August and 15 October 2009 the Tbilisi City prosecutor ’ s office advised the applicant that there was no ground for withdrawal of the Ministry of the Interior from the investigation of the case at that stage. On the other hand, the prosecution authority acknowledged a need for speeding up the investigation.

11. On 29 June 2010 the applicant enquired again with the Ministry of the Interior about a progress in the investigation. N o reply followed .

THE LAW

12. On 15 September 2014 the application was communicated to the Government under Articles 3 and 11 of the Convention.

13. 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.

14. The declaration provided as follows:

“The Government acknowledge that, in the particular circumstances of the instant case, there was a violation of the applicant ’ s rights under Articles 3 and 11 of the Convention, in particular due to certain deficiencies identified in the course of the investigation launched with respect to the applicant ’ s injury sustained during his participation in the street protest on 25 April 2009.

Within the framework of the present declaration, the Government undertake to assign the case to an independent investigator (outside the system of the Ministry of the Interior) and ensure effective investigation into the applicant ’ s allegations, under close scrutiny of a competent high-ranking prosecutor and in full compliance with the principles established by the Court.

In addition, the Government declare that they are prepared to pay to Mr Beridze 4,500 (four 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 . ...”

15. The applicant was invited to submit his comments on the Government ’ s unilateral declaration by 1 April 2015 , but failed to do so. A reminder was sent to the applicant on 22 June 2015 but was similarly left without any answer.

16 . 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”.

17 . 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.

18 . 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 (de c.), no. 72874/01, §§ 23 ‑ 30, 21 April 2015).

19 . To this end, the Court has examined the declaration submitted by the Government in the present case carefully 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).

20 . 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 interference with the right to hold a peaceful demonstration, in breach of 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).

21 . 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)).

22 . 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 ).

23 . 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).

24 . 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 Article s 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