FOURTH SECTION

DECISION

Application no . 32220/07 Dodo SIDIANI-APRASIDZE against Georgia

The European Court of Human Rights ( Fourth Section ), sitting on 10 March 2015 as a Committee composed of:

George Nicolaou , President, Nona Tsotsoria , Krzysztof Wojtyczek , judges, and Fatoş Aracı , Deputy Section Registrar ,

Having regard to the above application lodged on 23 July 2007 ,

Having regard to the decision of 21 May 2013 ,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mrs Dodo Sidiani-Aprasidze, is a Georgian national who was born in 14 August 1946 and lives in the village of Etseri, Georgia. She was represented before the Court by Mr M. Jangirashvili, a lawyer practising in Georgia.

2. The Georgian Government (“the Government”) were represented by their Agent, 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.

1. The police operation of 24 March 2004

4. On 24 March 2004, at around 7:30 p.m., the Ministry of the Interior and the Ministry of National Security jointly launched an anti-criminal operation in the village of Etseri, situated in Svaneti, a north-eastern mountainous region of Georgia, where the Aprasidze family was living. The aim of that operation was to apprehend the male members of the family – the father and his three sons – who had been evading justice for decades . Those suspects had been wanted for various serious offences – multiple murder s , numerous episodes of armed robbery, kidnapping, extortion and so on .

5. Squads of special forces of both Ministries and military helicopters took part in the operation, besieging the Aprasidzes ’ two family houses situated in close proximity to each other in the village. At the time of the anti-criminal operation , apart f rom the four men of the family , there were two women, including the applicant, and fo u r minor children at home.

6. According to an official version of the events, which was later disputed by the applicants, the Aprasidzes put up armed resistance to the law-enforcement agents, damaging one of the military helicopters with a rocket launcher . The authorities became obliged to respond with fire, as a result of which the head of the family, the applicant ’ s husband, and their youngest son, were killed, whilst the applicant ’ s two other sons were wounded by the shooting s and captured alive. As to the women of the family, including the applicant herself , and the minor children, having found a solid shelter in the basement of the house, they were spared from random bullets during the exchange of fire .

2. Investigation into the police actions

7. On 26 March 2004 the General Inspection Department of the Ministry of the Interior, without involving any surviving members of the Aprasidze family , either the applicant or her two wounded sons, as victims, opened an internal probe into the lawfulness of the actions of the Ministry ’ s special unit during the operation of 24 March 2004. After a number of investigative measures, the Department concluded, on 23 June 2004, that the use of force by the law-enforcement agents had been fully proportionate in the circumstances.

8. On 13 November 2004 the Public Prosecutor ’ s Office of the Mingrelia and Upper Svaneti Region, endorsing the Ministry of the Interior ’ s conclusion of 23 June 2004 and without conducting any further investigation of its own , issued a resolution refusing to institute criminal proceedings for excessive use of force by the law-enforcement agents. At that time, the applicant was still not granted either victim or any other procedural status and thus did not represent a party to the proceedings.

9. According to the case materials, the applicant incidentally learnt of the existence of the prosecutorial resolution of 13 November 2004 on 24 February 2005.

10. Subsequently, on 15 March 2005 the applicant filed an appeal against it with the Zugdidi District Court. She requested that the resolution be annulled and a criminal investigation into the police actions be opened. The applicant expected to have her appeal examined by the court within the following fifteen days, pursuant to Article 242 of the Code of Criminal Procedure ( “the CCP”, see paragraph 1 2 below) .

11. T he Zugdidi District Court registered the applicant ’ s appeal of 15 March 2005 on 1 7 March 2005, but never examined either within or after the expiration of the fifteen days ’ period provided for by Article 242 of the C CP. Despite that fact, the applicant never enquire d either with the Zugdidi District Court or higher judicial instances about the reasons for the non-examination of her appeal of 15 March 2005.

B. Relevant domestic law

12. Pursuant to Article 242 §§ 1 (a) and 4 of the Code of Criminal Procedure, as it stood at the material time, an investigative or prosecutorial authority ’ s decision refusing to launch criminal proceedings could be appealed to a court within fifteen days after the party concerned had been informed of that decision; t he court, after having registered such an appeal, disposed of further fifteen days maximum for its examination.

13. As stated by Article 242 § 2, the right to appeal against the decision refusing to launch criminal proceedings could be exercised only by a person formally representing a party to the criminal proceedings, such as a suspect, an accused, a victim, a civil plaintiff and a civil respondent, or his/her legal representative.

COMPLAINTS

14. Relying on Articles 2 and 3 of the Convention, the applicant complained in her own name as well as on behalf of the killed husband and youngest son about the disproportionate use of force by the law enforcement agents during the police operation of 24 March 2004 and the absence of an effective criminal investigation thereof .

THE LAW

15. The applicant complained under both the substantive and procedural limbs of Articles 2 and 3 of the Convention about the circumstances surrounding the police operation of 24 March 2004. These provisions read, in so far as relevant, as follows:

Article 2

“1. Everyone ’ s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary: ...

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained.”

Article 3

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

A. The parties ’ submissions after the communication of the application

16. The Government submitted their observations, where the major objection was the applicant ’ s failure to comply with the six-month rule contained in Article 35 § 1 of the Convention . They explained that the applicant could not legitimately expect to have her appeal of 15 March 2005 against the prosecutorial resolution of 13 November 2004 examined by the Zugdidi District Court because she, who did not represent a formal party to the criminal proceedings, did not possess the right to appeal against it at all, pursuant to Article 242 § 2 of the Code of Criminal Proceedings (see paragraph 13 above). Consequently, the applicant should have lodged her application, at the latest, within six months after having learnt, on 24 February 2005, of the existence of the above-mentioned prosecutorial resolution, which she never did.

17 . The Government ’ s observations were transmitted by the Court to the applicant, who was given time until 6 March 2014 to submit her observations in reply. However, the applicant did not reply. She remained silent even after the Court ’ s strike-out warning of 17 March 2014 had been served on her by registered post on 20 March 2014.

B. The Court ’ s assessment

18. Noting the applicant ’ s failure to respond to its correspondence after the communication of the application, the Court, nevertheless, does not deem it necessary to address the question of whether the applicant ’ s lasting silence should be understood as the sign of the loss of the intention to pursue the proceedings, within the meaning of Article 37 § 1 (a) of the Convention, as the application is any event inadmissible under Article 35 § 1 for failu re to comply with the six-month time-limit.

19. Thus, the Court observes that the applicant, who was never granted victim status and thus did not represent a formal party to the criminal proceedings, could not, pursuant to Article 242 § 2 of the CCP exercise the right of judicial appeal against the prosecutorial res olution of 13 November 2004 refusing to launch a criminal investigation for the excessive use of force by the police (see paragraphs 8 and 13 above). That being so, the applicant should have applied to the Court within six months after having learnt, on 24 February 2005 (see paragraph 9 above), of the existence of the impugned prosecutorial resolution, that is by 24 August 2005 at the latest. However, the application was lodged with the Court only on 23 July 2007 , which is almost a two ‑ year delay.

20. Even assuming that the applicant could be excused for her procedurally inappropriate attempt to appeal, on 15 March 2005, against the prosecutorial resolution of 13 November 2004, then her subsequent failure to enquire about the reasons for the non-examination of her appeal after the expiry of the relevant statutory period of fifteen days (see Article 242 §§ 1 (a) and 4 of the C CCP) would amount to the absence of due diligence. T he Court reiterates that such a negligent behaviour is contrary to the principle of legal certainty, which is a cornerstone of the six-month rule contained in Article 35 § 1 of the Convention, whereby a victim of an action allegedly in contravention of Articles 2 and 3 of the Convention must take steps to keep track of the relevant criminal proceedings or lack thereof, and to lodge his or her application with due expedition once he or she becomes or should have become aware of the lack of any effect ive criminal investigation (see, amongst many other authorities, Akhvlediani and Others v. Georgia (dec.), no. 22026/10, §§ 23-29, 9 April 2013 ; Manukyan v. Georgia (dec.), no. 53073/07, 9 October 2012 ; Ekrem Baytap v. Turkey (dec.), no. 17579/05, 29 April 2010; Mađer v. Croatia , no. 56185/07, § 84, 21 June 2011; Stanimirović v. Serbia , no. 26088/06, § 29, 18 October 2011; Nasirkhaeva v. Russia (dec.), no. 1721/07, 31 May 2011; and Finozhenok v. Russia (dec.), 3025/06, 31 May 2011).

21. In view of the foregoing, the Court concludes that the applicant failed to act with due diligence and expedition and within six months after having learnt, on 24 February 2005, of the relevant domestic authorities ’ refusal to proceed with a criminal investigation. It follows that her application, which was introduced as late as 23 July 2007, is clearly belated and must be rejected in accordance with 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 2 April 2015 .

Fatoş Aracı George Nicolaou Deputy Registrar President