FOURTH SECTION

DECISION

Application no . 11323/08 Otar SURMANIDZE and others against Georgia

The European Court of Human Rights (Fourth Section), sitting on 24 June 2014 as a Committee composed of:

George Nicolaou , President, Nona Tsotsoria , Paul Mahoney , judges,

and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 21 February 2008,

Having regard to the formal declaration setting out the conditions of a friendly settlement of the case,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. A list of the applicants is set out in the appendix. They are all Georgian nationals and were represented before the Court by Ms K. Mekhuzla, a lawyer 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. On 12 January 2006 Mr Roman Surmanidze, the son of the first and second applicants, and Mr Marad Artmeladze, the son of the third and fourth applicants, as well as another young man, were all shot dead in a street, near metro station Samgori in Tbilisi by agents of the Department of Constitutional Security of the Ministry of the Interior. The shooting occurred in the context of a police operation aimed at apprehending the group of the three young men who had been suspected of conspiracy to assist a prison escape.

5. On the same day, 12 January 2006, the Tbilisi City Public Prosecutor ’ s Office (“the Tbilisi Prosecutor”) initiated a criminal case under registration no. 1006805 against the applicants ’ sons and the third late person for disobedience of lawful orders of and putting armed resistance to the police. A number of various investigative measures, including the examination of the scene of the shooting, the questioning of the law ‑ enforcement officers who had participated in the operation of 12 January 2006 and of two independent eyewitnesses, were conducted in the course of that investigation.

6. On 18 June 2006 the Tbilisi Prosecutor opened another criminal case, under registration no. 10078171, against the police officers who had participated in the anti-criminal operation of 12 January 2006 for an offence prosecuted under Article 114 of the Criminal Code – killing as a result of the use of force beyond that which was required for arresting a wrongdoer. The families of the killed men were not granted victim status.

7. By a decision of 25 June 2007, the Tbilisi Prosecutor, relying on the evidence collected in the course of criminal case no. 1006805 concerning the alleged criminal activity of the killed men (see paragraph 5 above), decided to discontinue the investigation in case no. 10078171. The prosecution authority stated that the collected evidence did not disclose any criminal offence in the actions of the law-enforcement officers during the operation of 12 January 2006.

8. On 10 July 2007 the lawyer, acting again on behalf of the first and third applicants, filed a complaint against the prosecutorial decision of 25 June 2007 with the Tbilisi City Court. The lawyer referred to a number of lacunas and contradictory findings in the investigation of the killing of his clients ’ sons.

9. By a decision of 31 July 2007, the Tbilisi City Court, after having examined it on the merits, dismissed the complaint of 10 July 2007 as unsubstantiated.

10. On 8 August 2007 the applicants ’ lawyer appealed against the decision of 31 July 2007, but the appeal was left without examination by the Tbilisi Court of Appeals on 22 August 2007. The appellate court explained that the lawyer had failed to prove that he had received specific instructions/consent from his clients – the first and third applicants – to lodge an appeal against the lower court ’ s decision.

11. The first and third applicants then complained in person about the Tbilisi Court of Appeals ’ refusal to examine their lawyer ’ s appeal of 8 August 2007. In reply, the registry of the Tbilisi Court of Appeals advised the two applicants, on 12 November 2007, that the decision of 22 August 2007 had been final and that no further appeal lay against it.

COMPLAINT

12. Relying on Article 2 of the Convention, taken separately and in conjunction with Article 13, the applicants complained about the killing of their sons by the law-enforcement agents on 12 January 2006 and the relevant authorities ’ failure to ensure an effective investigation in that respect.

THE LAW

13. On 22 May 2013 the Court gave notice of the application to the Government under Article 2 of the Convention.

14. On 29 April 2014 the Government informed the Court that they wished to effect a friendly settlement with the applicants, for the purposes of which they submitted a formal declaration couched in the following terms:

“Considering the factual and legal circumstances of the case, the Government of Georgia wish to express t[heir] regretful acknowledgment of a violation of Article 2 of the Convention under its procedural limb.

Given the failure to conduct effective investigation into the alleged use of force against Mr Roman Surmanidze and Mr Marad Artmeladze,

The Government within the scope of the present declaration [are] prepared to:

- ensure effectiveness of the ongoing investigation at the domestic level regarding the alleged excessive use of force against Mr Roman Surmanidze and Mr Marad Artmeladze;

- pay 10,000 (ten thousand) Euros to Mrs Aniko Surmanidze and Mr Otar Surmanidze to cover any pecuniary or non-pecuniary damages and costs of expenses;

- pay 10,000 (ten thousand) Euros to Mrs Manana Artmeladze and Mr Mikheil Artmeladze to cover any pecuniary or non-pecuniary damages and costs of expenses.

Th[ese] sum[s] will be converted into Georgian Laris at the rate applicable on the date of payment, will be free of any taxes that may be applicable and will be payable within three months from the date of notification of the decision taken by the Court to strike the case out of its list of cases. In the event of failure to pay th[ese] sum[s] within the said three-month period, the Government undertake 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.

The fulfilment of the above-mentioned conditions will constitute the final resolution of the case.”

15. By a letter of 23 May 2014, the applicants ’ representative informed the Court that her clients were prepared to accept the Government ’ s friendly settlement proposals as made in their formal declaration of 29 April 2014.

16. The Court takes note of the friendly settlement reached between the parties. In this connection, it reiterates that the fundamental character of Article 2 of the Convention always requires that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios , agents of the State (see, amongst many others, Enukidze and Girgvliani v. Georgia , no. 25091/07, §§ 241 ‑ 243, 26 April 2011). That being so, the Court attaches particular significance to the Government ’ s undertaking to conduct an effective investigation into the relevant life-taking incident.

17. The Court is thus satisfied that the settlement is based on respect for human rights as defined in the Convention and its Protocols and finds no reasons to justify a continued examination of the application. In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases in accordance with Article 39 of the Convention.

FatoÅŸ Aracı George Nicolaou              Deputy Registrar President

Appendix