THIRD SECTION

Application no. 11323/08 Otar SURMANIDZE and others against Georgia lodged on 21 February 2008

STATEMENT OF FACTS

1. The applicants are Georgian nationals (see the annex). The facts of their cases, as submitted by them, may be summarised as follows.

2. On 12 January 2006 Mr Roman Surmanidze, the son of the first and second applicants, Mr Marad Artmeladze, the son of the third and fourth applicants, and another young man were 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. According to an official version of the events, which is disputed by the applicants, the police opened fire against the group of the young men only as a response to the latter ’ s armed resistance.

3. On the same day the Tbilisi City Public Prosecutor ’ s Office (“the TCPPO”) initiated a criminal case under registration no. 1006805 against the applicants ’ sons and the third late person for an offence prosecuted under Article 353 § 2 of the Criminal Code – disobedience of lawful orders 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. Neither of the applicants was involved in any capacity in those criminal proceedings.

4. On 25 September 2006 the third applicant ’ s complaint about the killing of his son, Mr Marad Artmeladze, during the police operation of 12 January 2006 and the lack of effective investigation in that respect was submitted to the General Public Prosecutor ’ s Office. The prosecution authority, acting through the TCPPO, replied on 17 October 2006, noting that an intensive investigation into the circumstances surrounding the shooting of 12 January 2006 was underway in the context of criminal case no. 1006805.

5. On 22 May and 13 June 2007 the first and third applicants ’ duly authorised lawyer, Mr L.T., enquired with the TCPPO as to which investigator was in charge of the criminal case concerning the killing of his clients ’ sons and requested access to the relevant case materials. By a reply of 14 June 2007, the investigator in charge of case no. 1006805 stated that the request for access to the case file could not be granted as the killed men had not been given status of accused persons and did not thus represent parties to the criminal proceedings.

6. On 18 June 2006 the TCPPO opened another criminal case, under registration no. 10078171, against the officers who had participated in the operation of 12 January 2007 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. On 25 June 2007 the TCPPO, relying on the evidence collected in the course of criminal case no. 1006805 concerning the alleged criminal activity of the killed men (see paragraph 3 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. Notably, the use of the armed force by the police was considered to have been necessary and proportionate in the circumstances. A copy of the prosecutorial decision, containing a reminder about the possibility of appealing against it within fifteen days, was served on the first and third applicants ’ lawyer, Mr L.T., on the same day.

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. 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.

9. 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.

10. 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 appellate court advised the applicants, on 12 November 2007, that the decision of 22 August 2007 had been final and that no further appeal lay against it.

COMPLAINTS

11. Relying on Article 2 of the Convention, taken separately and in conjunction with Article 13, the applicants ’ complain 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 this respect.

QUESTIONS TO THE PARTIES

1. Has right to life of the applicants ’ sons , ensured by Article 2 of the Convention, been violated in the present case?

- In particular, d id the applicants ’ sons ’ death result from a use of force which was absolutely necessary for the purposes of paragraph 2 (b) of this Article?

2. Having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no. 21986/93, ECHR 2000-VII), w ere the criminal investigation s in the present case s by the domestic authorities in breach of Article 2 of the Convention?

- In particular, and among other aspects of the relevant criminal proceedings, what was the significance of the fact, if any, that the applicants ’ lawyer ’ s appeal of 8 August 2007 was left without examination by the Tbilisi Court of Appeals?

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