Communicated on 17 April 2018

FIFTH SECTION

Application no. 34720/16 Paata KVIRIKASHVILI against Georgia lodged on 27 May 2016

STATEMENT OF FACTS

1. The applicant Mr. Paata Kvirikashvili, was born in 1961. He is a Georgian national, who lives in Tbilisi and works as a senior physician at an emergency medical centre. He is represented before the Court by Ms T. Abazadze and Ms N. Jomarjidze, lawyers at the Georgian Young Lawyers ’ Association (“GYLA”) in Tbilisi , and also by Ms J. Evans, Ms. J. Gavron, Mr P. Leach, Ms K. Levin and Ms J. Sawyer, lawyers at the European Human Rights Advocacy Centre in London .

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The applicant ’ s arrest and his alleged ill-treatment

3. On the evening of 31 August 2014, at around 9 p.m., the applicant had stopped his car at a petrol station in Tbilisi. He was immediately approached by two police officers, G.D. and L.J., who accused him of having crossed the solid line. The applicant denied having violated any traffic rules. In the meantime, one of the police officers opened the boot of his car, and seeing a gas bottle installed, requested the applicant to present a permit for the installation. The latter replied that he did not have the permit at hand and would provide it later. In reply the police officer informed the applicant that he would fine him for not having the permit requested. The applicant objected and asked the police officers not to issue a fine. At that moment, according to the applicant, both police officers violently pushed him against his car and G.D. punched him on his head. This episode was recorded on a camera fixed on the police vehicle.

4. Shortly afterwards, when the applicant was already sitting in his car, L.J. handed a protocol to the applicant imposing a fine of 100 Georgian lari (“GEL”) for violating rules on the exploitation of motor-vehicles (Article 119(5) of the Code of Administrative Offences (“CAO”)). A verbal altercation erupted again which ended, according to the applicant, in his physical assault. He was allegedly beaten by both police officers and then handcuffed and arrested. That episode was not recorded on a camera although there were people on the gas station, who according to the applicant, witnessed it.

5. The applicant was then taken to a police department, where, in view of deterioration in his condition, a doctor was called for him. Then he was transferred to a temporary detention centre, where he underwent a visual examination. According to the relevant report, the applicant had excoriations in the area of the skull, right eyebrow, left check and ear. He also had bruises across both wrists. As indicated in the report, the applicant claimed that the two police officers, who had effected his arrest, had physically and verbally assaulted him.

6. In early September 2014, immediately after his release, the applicant underwent comprehensive medical examination. Thus, the report of 11 September 2014 issued by the medical clinic “ Medison ” stated that the applicant ’ s fifth and seventh ribs were broken. Moreover, according to the report of the National Forensic Bureau issued on 26 September 2014, multiple bruises and lesions were noted on the applicant ’ s head and body, including broken ribs. The report concluded that the injuries were caused by a blunt object and could have been inflicted on the date of the incident, 31 August 2014.

2. Administrative proceedings against the applicant

7. On 1 September 2014 the Tbilisi City Court convicted the applicant of disobeying legal orders of law enforcement officers, an administrative offence under Article 173 of the CAO and imposed a fine of 600 GEL. The decision was confirmed by the Tbilisi Court of Appeal on 30 September 2014.

8. On 22 January 2015 the applicant filed an application with the Tbilisi City Court requesting the reopening of the administrative proceedings conducted against him. He relied on the report of the General Inspection of the Ministry of Internal Affairs (“the MIA”), according to which disciplinary sanctions had been imposed on both police officers (see paragraph 10 below). He also enclosed the medical reports in support of his request. By decisions of 4 February and 22 April 2015 respectively, the Tbilisi City Court and the Tbilisi Court of Appeal rejected the applicant ’ s application.

9. In August 2015 the applicant filed a civil claim against MIA with the Tbilisi City Court claiming non-pecuniary damage for unlawful deprivation of liberty and infliction of damage to his health. The case file contains no information concerning the progress, if any, of the above proceedings.

3. The applicant ’ s criminal complaint and subsequent proceedings

10. On 4 September 2014, the applicant complained to the General inspection of the MIA against the police officers G.D. and L.J. On 8 September 2014 he was questioned in that respect. At a later stage he submitted the relevant medical reports in support of his complaint. On 24 October 2014 both police officers were issued with a reprimand.

11. On 7 November 2014, an investigation was initiated under Article 333 of the Criminal Code (exceeding official authority). The applicant, who was informed about the launch of the investigation by the Ombudsman ’ s office of Georgia, r equested the requalification of the charges from Article 333 (exceeding official authority) into article 144 3 (Inhuman and degrading treatment). He also requested that he be granted victim status. After submitting several identical requests, the applicant was informed that the investigation was pending, that no charges had been brought against concrete persons, and that there was no basis for granting him a victim status.

12. On 1 December 2015, the responsible investigator called the applicant to inform him that G.D. had been charged with exceeding official authority and that the next day the case would be transferred to court. On the same date, he was invited to the prosecutor ’ s office where he was provided with a copy of the decision of 24 November 2015 granting him victim status. Having reviewed the decision, the applicant noted in writing that he disagreed with the formulation of the indictment, as there was no mention of the second episode of his beating, which involved both police officers, and which resulted in his injured ribs.

13. On 3 and 6 December 2015, the applicant wrote letters to the Prosecutor ’ s Office of Georgia and Tbilisi Prosecutor ’ s Office challenging the scope of the investigation, and reiterating his request for the requalification of the charges brought against Mr. G.D into the offence of ill ‑ treatment. He also maintained his allegation against the second police officer. The applicant pointed out that the investigation was not thorough and that none of the eyewitnesses identifiable from the relevant video ‑ recordings had been questioned by the investigator.

14. In reply, the Tbilisi Prosecutor ’ s Office maintained that the criminal case file had already been forwarded to the Tbilisi City Court and that the applicant had been recognised as a victim in the criminal case.

15. On 18 October 2016 the Tbilisi City Court convicted Mr. G.D as charged. He was sentenced to five years ’ imprisonment as a main sentence and to one year and six months ’ deprivation of the right to hold an official position, as an ancillary sentence. On 28 December 2016, a plea bargain agreement, concluded between Mr. G.D and the prosecutor ’ s office, was confirmed by the Tbilisi Court of Appeal and Mr. G.D ’ s imprisonment sentence was replaced by five years ’ suspended prison term.

B. Relevant domestic law

16. The relevant Articles of the Criminal Code (as in force at the material time) read as follows:

Article 333 - Exceeding official authority

“ 1. The exceeding of official authority by an official or a person equivalent thereto that has resulted in a substantial violation of the rights of physical or legal persons, or of the lawful interests of the public or State, shall be punished by a fine or imprisonment for up to three years, with a deprivation of the right to hold an official position or to carry out a particular activity for up to three years.

2. The exceeding of official authority by a public political official, shall be punishable by a fine or imprisonment for a term of three to five years, with deprivation of the right to hold an official position or to carry out a particular activity for up to three years.

3. The act provided for in paragraphs 1 or 2 of this Article which has been committed:

a) repeatedly ;

b) using violence or a weapon;

c) by offending the personal dignity of the victim,

shall be punishable by imprisonment for a term of five to eight years, with deprivation of the right to hold an official position or to carry out a particular activity for up to three years.”

Article 144(3) - Degrading or inhuman treatment

“ 1. Degrading or coercing a person, or exposing a person to inhuman, degrading and humiliating conditions as a result of which he or she suffers severe physical and psychological pain, shall be punished by a restriction of liberty for up to three years or by imprisonment for a term of two to five years.

2. The same act committed:

a) by an official or a person holding equivalent position;

b) by abusing official position;

c) repeatedly ;

d) against two or more persons;

e) by more than one person;

f) by violating equality of persons, or due to their race, colour, language, sex, religion, belief, political or other views, national, ethnic, social belonging, origin, place of residence, material status or title;

g) knowingly against a pregnant woman, a minor, a person detained or otherwise deprived of freedom, a helpless person or a person dependent on the offender materially or otherwise;

h) by contract;

i ) for the purpose of taking a hostage,

shall be punishable by imprisonment for a term of four to six years, with or without deprivation of the right to hold an official position or to carry out a particular activity for up to five years.”

COMPLAINTS

17. The applicant complains under Article 3 of the Convention that he was ill ‑ treated by police during his arrest and that no adequate investigation of his allegations has been conducted .

QUESTIONS TO THE PARTIES

1. Was the applicant subjected to inhuman and degrading treatment in breach of Article 3 of the Convention at the time of his arrest?

2. Did the State authorities in the present case comply with their procedural obligation under Article 3 of the Convention to conduct an adequate and effective investigation into the allegations of the applicant ’ s ill ‑ treatment?