FIFTH SECTION

CASE OF KEKELIDZE v. GEORGIA

( Application no. 2316/09 )

JUDGMENT

STRASBOURG

17 January 2019

This judgment is final but it may be subject to editorial revision.

In the case of Kekelidze v. Georgia ,

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

Síofra O ’ Leary, President, Lәtif Hüseynov , Lado Chanturia , judges, and Milan Blaško , Deputy Section Registrar ,

Having deliberated in private on 1 1 December 2018 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 2316/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Gocha Kekelidze (“the applicant”), on 15 December 2008 .

2 . The applicant was represented by Ms D. Tchanidze , a lawyer practising in Batumi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze , of the Ministry of Justice.

3 . On 7 May 2013 the application was communicated to the Government .

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4 . The applicant was born in 1977 and lives in Batumi .

A. The applicant ’ s arrest and alleged ill-treatment

5 . On 2 September 2008 at 10 .0 5 a.m. the applicant was arrested (together with his friend Z.B.) in Batumi on suspicion of possession of illegal drugs , by members of the Special Operation s Unit ( სოდის სამმართველო) of the Ministry of Internal Affairs (“the MIA”) . According to the report of his detention and personal search, he physically resisted the arrest. As a result he sustained injuries to his face and both legs when being forced out of his car and on to the ground . The applicant signed th is report without making any written comments .

6 . A t 5 : 35 p.m. on the same day the applicant underwent an external visual examination at the Batumi no. 1 temporary detention centre. A report drawn up thereafter recorded multiple injuries on the applicant ’ s body , including bruises and abrasions on his face and head, both legs, and the waist area, and black and swollen eyes . A note was made to the effect that the applicant could not remember in what circumstances he had sustained those injuries and that he had no complaints about the arresting officers.

7 . Soon afterwards an ambulance was called for the applicant. He was pre- diagnosed as suffering from possible concussion and was recommended for a transfer to a medical establishment. An hour later an ambulance was called again. After the applicant had been examined , he was diagnosed with a closed head injury and concussion ; bruises were noted on his chest and waist area and it was recommended that he undergo inpatient treatment in a hospital neurosurg ery department .

8 . At 10. 10 p.m. the applicant was taken to Batumi hospital. After a brain tomography examination and other medical check-ups the diagnosis of a head injury was not confirmed. H e was diagnosed instead with a fracture of the maxillary sinus on the right side , multiple bruises , and excoriations on his face and body. He was then taken back to the temporary detention centre.

B . The investigation into the applicant ’ s allegations of ill-treatment

9 . On the same night the applicant ’ s lawyer called the hotline of the office of the Prosecutor General of Georgia, complaining that the applicant had been ill-treat ed . On 4 September 2008 criminal proceedings were initiated under Article 118 § 2 of the Criminal Code of Georgia (causing less serious bodily injury). On the same date the investigator dealing with the case ordered a forensic examination of the applicant . Having visually examined the applicant, the medical expert concluded on 10 September 2008 that the applicant had multiple scratches and bruises all over his body and face, as well as black eyes and a fracture of the right maxillary sinus. He noted that the injuries could have been sustained on 2 September 2008 by the impact of a hard blunt object, and cumulatively belonged to the category of less serious bodily injuries causing long-lasting damage to health.

10 . On 4 September 2008 the applicant was question ed in connection with the circumstances of his arrest. He maintained his allegations of ill treatment , claiming that he had been beaten during the arrest as well as after he was transferred to the Special Operation s Unit at the MIA. He further dismissed the accusation that he had resisted arrest as untrue. On 6 September 2008 the investigator questioned two employees of the Batumi no. 1 temporary detention centre. They both confirmed that the applicant had had multiple injuries when he had arrived at the detention centre , and that in reply to their question he had claimed that he had sustained those injuries during the arrest. He had not provide d any additional details , and had not made any complain ts against the arresting police officers .

11 . On 17 November 2008 the investigator decided to continue the investigation under Article 333 § 1 of the Criminal Code of Georgia (abuse of power). In the meantime , on 15 November 2008 , the applicant ’ s lawyer lodged a complaint with the General Prosecutor ’ s Office denouncing the investigation as ineffective . He complained about the fact that no identification parade had been carried out: this would have allowed the applicant to identify the police officers who had ill-treated him during the arrest . N or was this done in respect of the time after he was transfer red to the Special Operation s Unit , where he had stayed for about seven hours . H e also noted that he had requested footage from the video surveillance cameras in the street where the arrest operation had taken place, but that his request had received no response . By a letter of 15 January 2009 the prosecutor dealing with the case informed the applicant ’ s lawyer that the investigation was still pending , and that in view of the conflicting evidence it was impossible to establish whether the force used against the applicant during the arrest had been proportionate or not. The applicant ’ s lawyer was also informed that the surveillance cameras in question had not been working on the day of the applicant ’ s arrest, so no video recording could have been obtained .

12 . According to the Government, at the time they submitt ed their observation s t he investigation of the applicant ’ s allegations of ill-treatment was still pending.

C . The applicant ’ s conviction

13 . According to the bill of indictment, the applicant was charged with various drug offences under Article 260 § 3 (a) and Article 273 of the Criminal Code. On 18 March 2009 the Batumi City Court c onvicted the applicant as charged and sentenced him to fourteen years and three months ’ imprisonment and a fine. His conviction was confirmed by the Kutaisi Court of Appeal and the Supreme Court of Georgia on 23 September and 18 November 2009 respectively.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

14 . The applicant complained that he had been ill-treated by police during the arrest , and that no effective investigation had been conducted in th is respect. He relied on Article 3 of the Convention , which reads as follows:

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

A. Admissibility

15 . The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. The parties ’ submissions

16 . The applicant maintained his allegations of ill-treatment , stressing particularly the severity of the injuries he had sustained as a result . He submitted that at least ten armed police officers had been involved in his arrest , and that he had not resisted them , as it would have been senseless to do so .

17 . The Government did not dispute that force had been used against the applicant during the arrest. They challenged, however, with reference to the report on the applicant ’ s arrest and personal search, the veracity of his statement that he had not resisted the arrest. While emphasising the fact that he had duly signed that report, they also noted that none of the eyewitnesses had corroborated the applicant ’ s version of the events. The Government further submitted that the degree of force used had been no more than an adequate and proportionate response to the applicant ’ s vigorous resistance against the officers concerned .

18 . As regards the investigation, the Government claimed that it was prompt, adequate and effective. T he proceedings had started immed iately after the prosecutor ’ s office had receiv ed a report via the hotline . All the investigative measures had been conducted by the prosecutor ’ s office , with the investigators having no institutional affiliation with the Special Operation s Unit of the MIA that had arrested the applicant. The forensic examination of the applicant was ordered on 4 September 2008 , two days after the arrest . It concluded that the applicant ’ s various injuries cumulatively belonged to the category of less serious bodily injuries causing lo ng -lasting damage to his health . Against this background , and emphasising that the applicant ha d been granted effective access to the investigative process, the Government a sked the Court to find no violation of Article 3 of the Convention.

2 . The Court ’ s assessment

(a) The general principles

19 . The relevant general principles were recently summarised by the Court in the case of Bouyid v. Belgium ( [GC], no. 23380/09 , §§ 81-90 and 114-23, ECHR 2015 ; see also El- Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09 , §§ 151-53 and 182-85, ECHR 2012 , and Mikiashvili v. Georgia , no. 18996/06 , § § 69 -72 , 9 October 2012).

(b) Application of the se principle s to the circumstances of the current case

( i ) Alleged ill-treatment of the applicant during the arrest

20 . The Court observes that in the course of the investigation into the applicant ’ s allegations , the relevant investigation authorities advanced a n account of the origin of the applicant ’ s injuries, explaining that the injuries had been sustained by him in the course of his arrest and that the police officers had not used force against the applicant after the arrest . In view of this explanation, advanced by the domestic authorities themselves and maintained by the Government in the current proceedings, the Court will assess whether the use of force during the applicant ’ s arrest was excessive, presuming that that use of force resulted in all the injuries in issue.

21 . The Court observes that there is objective medical evidence showing that at the time of his arrest the applicant sustained multiple injuries to his body and face. He also sustained a fracture to the right maxillary sinus . It is not dispute d between the parties that the applicant sustained those injuries in the context of his arrest. It should thus be determined under the substantive limb of Article 3 of the Convention whether the use of physical force was “strictly necessary” , having regard to the applicant ’ s conduct.

22 . The Court notes that in the present case the police acted in the context of a pre-planned operation. There were more than ten armed police officers involved. The applicant was suspected of possession of illegal drugs (see the relevant police report cited in paragraph 5 above). There was no indication , and the Government did not plead to the contrary, that the applicant pos ed a threat to the police officers. Furthermore, according to the relevant police reports, the applicant did not attempt to run away. He was forced out of his car and pushed immediately to the ground. At no stage was it claimed that any of the police officers were injured, a factor which might have been relevant to assessing whether in fact the applicant had resorted to violence. In such circumstances, particularly given the pre-planned nature of the operation ( s ee in this respect Balçık and Others v. Turkey , no. 25/03 , § 32, 29 November 2007, and Rehbock v . Slovenia , no. 29462/95 , § 72, ECHR 2000 ‑ XII) and the fact that the police officers clearly outnumber ed the unarmed applicant and his friend , the nature and scale of the injuries sustained by the applicant do not appear commensurate with the circumstances of his arrest .

25 . The Court thus concludes that the circumstances of the case disclose a breach of Article 3 of the Convention on account of the excessive use of force against the applicant.

(ii) Alleged lack of an effective investigation

26 . The Court notes at the outset that the applicant ’ s injuries and his related allegations against the police officers were sufficiently serious to reach the “minimum level of severity” required under Article 3 of the Convention. Furthermore, i n view of the requirement that any use of physical force by State officials during an arrest must never be excessive and must be essential in the particular circumstances, the Court considers that the above facts called for an investigation of the applicant ’ s allegations of ill ‑ treatment in order to establish all relevant circumstances of the use of physical force against him.

27 . It should be acknowledged that the investigation was initiated promptly, as soon as the incident was reported by the applicant ’ s lawyer (see, by contrast , Mikiashvili, cited above, § 79) . The forensic examination of the applicant, and the examination of three of the arresting police officers , w ere also conducted within a couple of days (see paragraphs 9 and 10 above). The investigation was conducted by the Prosecutor ’ s Office, a body independent of the MIA . The Court, however, has serious doubts about the thoroughness of the investigation.

28 . Thus, no serious effort was made to verify the applicant ’ s allegations by obtaining additional evidence and searchin g for further witnesses. Although t he incident took place in daylight in the central part of Batumi , t he investigat or simply limited himself to questioning the applicant, his friend , the three arresting officers and two employees of the Batumi temporary detention centre . None of the other police officers involved in the operation or any potential eyewitness es were identified or questioned. Given that the applicant from the very outset consistently challenged the official version of his resisting the arrest, that omission, in the Court ’ s view, remains inexplicable.

29 . Neither did the investigation aim to assess the correlation between the injuries sustained by the applicant and the intensity of the resistance shown, if any. The forensic examination carried out within the scope of the proceedings simply described the applicant ’ s injuries and concluded that they could have been caused as a result of the impact of a blunt object. The examination did not look at the issue of whether the applicant could have sustained all those injuries while lying restrained with his face to the ground. This aspect of the case merited particular attention , given that the applicant was never charged with resisting arrest.

30 . Further more , the applicant alleged that the beatings continued after he w as transfer red to the Special Operation s Unit of the Ministry of Internal Affairs, where he stayed, according to the case file, for about seven hours. This allegation by the applicant was, however, left outside the scope of the investigation. According to the relevant evidence , the pr oceedings were entirely focused on the arrest operation itself and the use of force during that operation.

32 . Having regard to the above-mentioned failings, the Court finds that the investigation into the applicant ’ s ill-treatment was not thorough, adequate or effective. There has accordingly been a violation of Article 3 of the Convention under its procedural limb.

II . THE REMAINDER OF THE APPLICATION

33 . The applicant complained of a violation of Article 5 of the Convention on account of his allegedly unlawful pre-trial detention. He also challenged under Article 6 of the Convention the outcome of the criminal proceedings conducted against him.

34 . The Court finds, in light of all the material in its possession, that the applicant ’ s submissions under Article 5 and Article 6 § 1 of the Convention do not disclose any appearance of an arguable issue under this provision and must be declared inadmissible as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

III . APPLICATION OF ARTICLE 41 OF THE CONVENTION

35 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1. Declares the complaint concerning the applicant ’ s alleged ill-treatment and the lack of effective investigation in that regard admissible and the remainder of the application inadmissible;

2 . Holds that there has been a violation of the substantive aspect of Article 3 of the Convention;

3 . Holds that there has been a violation of the procedural aspect of Article 3 of the Convention.

Done in English, and notified in writing on 1 7 January 2019 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Milan Blaško Síofra O ’ Leary Deputy Registrar President