Communicated on 30 November 2016

FOURTH SECTION

Application no. 59329/16 Aslan TSUTSASHVILI against Georgia lodged on 5 October 2016

STATEMENT OF FACTS

1. The applicant, Mr Aslan Tsutsashvili , is a Georgian national of Kist [1] origin who was born in 1991 and lives in the village of Omalo . He is represented before the Court by Ms Tamar Avaliani , a lawyer practising in Tbilisi.

A. The circumstances of the case

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

3. On 23 January 2016 the applicant and his father were approached by two police officers after they had stopped their car at a petrol station in Akhmeta . One of the officers said that the applicant had not been wearing a seat belt and asked to see his identification documents. A clicking sound made by the glove compartment allegedly irritated the police officer, who started insulting the applicant and threatened to break his fingers.

4. The applicant disagreed with the police officer ’ s decision to fine him, arguing that he had been wearing a seat belt, which could be confirmed by checking the security cameras at the petrol station. This discussion allegedly further irritated the officer, M.B., who insulted the applicant and made rude comments about his ethnic origin. He allegedly attempted to hit the applicant but his father intervened and stood between the two men. The applicant was then pushed to the ground and handcuffed. He was allegedly beaten by the police officers after being handcuffed.

5. Two more police cars arrived. The chief of Akhmeta police station and his deputy allegedly insulted the applicant and his father, who were then forced into separate police vehicles and driven to the police station. They were fined by the Telavi District Court for committing the administrative offence of disobeying police orders and were released the same day.

6. According to the case file, M.B., who was allegedly the most aggressive of the police officers during the applicant ’ s arrest, had reportedly behaved aggressively on the grounds of a dislike of other ethnicities while working at a police station in the village of Duisi prior to the incident in question. Despite a request by local people to have him dismissed M.B. had allegedly been transferred instead to the Akhmeta regional police station, where he worked at the time of the applicant ’ s arrest.

7. On an unspecified date in January 2016 the applicant asked the prosecutor ’ s office to open an investigation into the alleged racially motivated physical and verbal abuse by the police officers during his arrest.

8. On 2 February 2016 an investigation was opened under Article 333 of the Criminal Code (exceeding official powers) and the applicant was questioned as a witness. He provided a detailed description of the alleged ill-treatment and identified the police officers who had carried out his arrest. He further indicated that his version of events could be confirmed by checking the petrol station ’ s security camera recordings.

9. On 21 March, 11 May, and 18 May 2016 the applicant applied to the regional prosecutor ’ s office for information on the progress of the investigation, to have the security camera recordings retrieved from the site of the incident and to be granted victim status. He also requested that his complaints be reclassified under Articles 144 § 3 (degrading or inhuman treatment) and 142 § 1 (racial discrimination) of the Criminal Code. The requests were rejected on the grounds that they had been filed by an unauthorised party. The prosecutor ’ s office stated that a decision on victim status would be taken after the conclusion of the investigation.

10. On 5 July 2016 the applicant complained to the Chief Prosecutor ’ s Office about the ineffectiveness of the investigation and its length. He repeated the requests he had made to the regional prosecutor ’ s office. On 22 July 2016 his complaint was sent back to the regional prosecutor ’ s office, which rejected his requests on 11 August 2016. The applicant submits that from that date it became futile for him to wait any longer for the conclusion of the domestic investigation owing to its ineffectiveness.

B. Relevant domestic law and practice

1. Criminal Code

11. The relevant provisions of the Criminal Code are as follows:

Article 333 § 1 (Exceeding official powers)

“The e xceeding of official powers by an official or a person equ ivalent 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. ”

Article 144(1) § 1 (Torture)

“ Torture, that is exposing an individual , their close relative , or a person who is dependent on them materially or otherwise , to such conditions or treating them in a manner that by its nature, intensity or duration causes severe physical pain or psychological or moral anguish, and which aims to obtain information, evidence or a confession, to threaten or coerce, or to punish the individual for the act committed by them or a third person, shall be punished by imprisonment for a term of seven to ten years and a fine . ”

Article 144(2) (Threat of torture)

“ The threat of the creation of conditions or of the application of the treatment or punishment specified in Article 144 ( 1 ) of this Law, carried out for the same purpose, shall be punished by a fine or imprisonment for up to two years. ”

Article 144(3) § 1 (Degrading or inhuman treatment)

“ Degrading or coercing a person, or exposing a n individual to inhuman, degrading and humiliating conditions as a result of which they suffer 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. ”

12. Articles 144(1) § 2 and 144(3) § 2 contain a list of aggravating factors with respect to the relevant crimes which include: (a) commission of the crime by a person holding an official position, (b) abuse of official position, (c) recidivism, (d) there being two or more victims, (e) there being more than one perpetrator, (f) an infringement of the equality of persons “ 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 .”

2. Annual Report by the Public Defender of Georgia

13. The relevant parts of the 2015 Annual Report by the Public Defender of Georgia read as follows:

“ Introduction

... T he year 2015 has seen an increase in the number of recommendations sent by the Public Defender ’ s Office to the Office of the Chief Prosecutor concerning investigations into cases of alleged ill-treatment committed by the police authorities.

... It is disconcerting that despite the indications of torture or inhuman or degrading treatment allegedly committed in 11 recommendations sent by the Public Defender to the Chief Prosecutor, the investigations were opened under Article 333 of the Criminal Code.”

Independent, Effective and Impartial Investigation

... Cases studied by the Public Defender ’ s Office during the reporting period demonstrate that the effective investigation of alleged ill-treatment committed by the law enforcement agents against individuals at liberty or in penitentiary institutions remains an important problem. Granting of victim status, promptness of the investigation, qualification of the alleged actions and most importantly, lack of institutional independence of the investigation are particularly problematic.”

14. The Report contains a R ecommendation addressed to the Chief Prosecutor ’ s Office “to open investigations into cases of alleged ill ‑ treatment under Articles 144(1), 144(2) and/or 144(3) instead of Article 333 of the Criminal Code.”

COMPLAINTS

15. The applicant complains under Articles 3 and 13 of the Convention that there was no effective investigation of his complaints of ill-treatment by the police officers during his arrest.

16. He further complains under Article 14 of the Convention and Article 1 of Protocol No. 12 that the verbal and physical abuse and the absence of an effective investigation into his alleged ill-treatment stemmed from the authorities ’ discriminatory attitude to his ethnic origin.

QUESTIONS TO THE PARTIES

1. Has there been a violation of Article 3 of the Convention? In particular:

(a) Has the applicant been subjected to inhuman or degrading treatment during the incident of 23 January 2016?

(b) Having regard to the procedural protection from inhuman or degrading treatment (see, mutatis mutandis , Identoba and Others v. Georgia , no. 73235/12 , §§ 66-67, 12 May 2015 and Bouyid v. Belgium [GC], no. 23380/09, §§ 114-123, ECHR 2015) , was the investigation in the present case by the domestic authorities in breach of Article 3 of the Convention?

2. Has the applicant suffered discrimination on the grounds of his ethnic origin, contrary to Article 14 of the Convention, read in conjunction with Article 3 of the Convention, and/or contrary to Article 1 of Protocol No. 12?

3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 3 and 14 of the Convention and Article 1 of Protocol No. 12, as required by Article 13 of the Convention?

[1] . A Chechen ethnic group living in Georgia .