THIRD SECTION

Applic ation no. 40085/09 Vartazar EGI ZARYAN against Georgia lodged on 2 July 2009

STATEMENT OF FACTS

1. The applicant, Mr Vartazar Egizaryan , is a Georgian national, who was born in 1982 and lives in Tbilisi. He is represented before the Court by Ms Natia Katsitadze and Ms Joanna Evans, lawyers practising in Tbilisi and London.

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

A. Background

3. Soon after the change of power took place in Georgia in November 2003, political tensions escalated between the central government in Tbilisi and the local government of the Ajarian Autonomous Republic (“the AAR”) (see also Georgian Labour Party v. Georgia , no. 9103/04, §§ 11-13 and 112-113, ECHR 2008) . Clashes between supporters of and opposition to the then Head of the AAR, Mr Aslan Abashidze , took place on various dates in different cities and villages of the AAR. The tension started rapidly deteriorating as of March 2004, and already in April various high ranking military officials of the AAR declared their disobedience to the central authorities in Tbilisi. Consequently, the local authorities ordered planting mines on the edge of Choloki River which represented an administrative border between the Autonomous Republic and the rest of the country.

4. The situation stabilised only after Mr Aslan Abashidze and his entourage finally agreed on 6 May 2004, after rounds of negotiations with Tbilisi, to quit their posts in the AAR and leave the country.

5. Whilst that information was never officially confirmed, according to various media sources, on 6 May 2004 the President of Georgia deployed the Ministry of the Interior ’ s forces to the AAR to conduct mine clearance. It was further reported that more than 200 anti-vehicle mines were discovered and cleared on the edge of Choloki River in May 2004. In addition, some 128 mines were cleared on a seaside zone adjacent to various villages of the AAR.

B. Incident of 21 August 2004

6. In August 2004, during a high tourist season, the applicant went on vacation to the seaside village of Chakvi , in the AAR.

7. On 21 August 2004 he and his friends were driving a car on the beach of Chakvi , when suddenly their car blew up. The applicant and one of his friends received serious, life-threatening injuries and were immediately taken to a hospital in Batumi, where the applicant underwent an amputation of both shanks. All the costs associated with that urgent treatment in the hospital and the subsequent, post-surgery treatment with various relevant medication (with the overall costs amounting to some 3,500 euros), as well as the procurement of special prostheses for his lost limbs from Germany (the cost of the prostheses amounting to 24,000 euros), were fully covered by the Ministry of Labour, Health and Social Affairs.

8. According to certain media sources, in the aftermath of the incident of 21 August 2004, the authorities conducted an additional mine clearance operation in the relevant seaside zone, by employing certain equipment which had not been available to them before the incident, which resulted in discovery of another landmine on the beach of Chakvi .

9. According to the applicant, prior to the incident of 21 August 2004, the territory where the explosion occurred had never been marked or sealed, nor had the population been warned that the seaside nearby Chakvi represented a risk zone.

C. Legal proceedings

1. Criminal proceedings

(a) Proceedings aiming at the establishment of responsibility for the landmine planting and explosion

10. On 22 August 2004 the Ministry of Security of the AAR initiated a criminal case against unknown persons, under registration number 041115, in relation to the mine explosion of 21 August 2004 in the village of Chakvi for offences prosecuted under Articles 323(3) and 236 of the Criminal Code (terrorist act and illegal use of explosives). The applicant was granted victim status.

11. On 22 December 2004 criminal case no. 041115 was suspended due to the inability to identify suspects. The applicant appealed against that suspension to the General Public Prosecutor ’ s Office (“the GPO”) on 10 January 2005.

12. On 26 July 2007 the Public Prosecutor of the AAR informed the applicant that another criminal case, under registration number 0411009, had been pending against several former high-ranking officials of the Autonomous Republic, including Mr Aslan Abashidze , for various serious criminal offences, which included the episode of planting mines in the village of Chakvi . The applicant was granted victim status and, after the case had been transmitted to the Batumi City Court for a trial, was recognised as having standing to file a claim for damages against the accused persons in the context of the same criminal proceedings.

13. According to the case file, the above-mentioned criminal case, no. 0411009, against the former officials of the AAR is still pending at first instance, before the Batumi City Court.

(b) Proceedings aiming at the establishment of responsibility for the defective landmine clearance

14. On 28 May 2008 the applicant requested the Public Prosecutor of the AAR to initiate a criminal case for the relevant State agency ’ s failure to effectively conduct mine clearance in the vicinity of Chakvi in the aftermath of the conflict between the central and Ajarian authorities in May 2004. The prosecution authority replied on 20 June 2008, referring the applicant to his involvement in criminal case no. 0411009.

15. On 2 July 2008 the applicant appealed against the Ajarian Public Prosecutor ’ s reply of 20 June 2008 to the GPO, reiterating that the relevant State authorities had failed in their obligation to conduct mine clearance in Chakvi effectively, which had almost cost him his life and resulted in his lifetime disability. He specified that he wished to have the individual officials responsible for that negligent demining operation criminally punished. His appeal was never examined.

16. On various dates in August and September 2008 the applicant enquired with different central and Ajarian authorities as to which exactly agency had been responsible for conducting mine clearance in May 2004. The authorities replied in September and October 200 8 that they did not possess that information.

2. Civil Proceedings

17. On 28 July 2005 the applicant sued the Ministry of the Interior of Georgia for the incident of 21 August 2004. He claimed that it was within that Ministry ’ s responsibility to conduct mine clearance in Chakvi and on the edges of Choloki River in May 2004 in due time and with the requisite thoroughness. As the Ministry had clearly failed in that positive obligation, it was now responsible to pay him, under the relevant rules on tort, a compensation for pecuniary and non-pecuniary damages.

18. By a judgment of 24 October 2006, the Tbilisi City Court dismissed the applicant ’ s civil action. With respect to the claim for pecuniary damage, the court referred to the fact that the State had already provided him with the relevant medical treatment and prostheses free of charge. As to his claim for non-pecuniary damage, the court stated that the factual circumstances of the case could not establish negligence on behalf of the Ministry of the Interior during the mine clearance operation. Notably, it could not be established that the Ministry or any other State agency had known, prior to the incident of 21 August 2004, that the beach in the vicinity of Chakvi had been mined.

19. The judgment of 24 October 2006 was upheld by the Tbilisi Court of Appeals ’ decision of 14 May 2008. The appellate court fully endorsed the reasons given by the lower instance.

20. On 18 February 2009 the Supreme Court of Georgia, rejecting the applicant ’ s cassation claim against the appellate decision of 14 May 2008, finally terminated the civil proceedings.

COMPLAINTS

21. The applicant complained under Article 2 of the Convention about the respondent State ’ s failure to conduct mine clearance in Chakvi in due time and manner, as a result of which negligence he had received serious, life-threatening injuries and become disabled. He also complained about the prosecution authority ’ s failure to investigate and punish those officials who had been responsible for that defective mine clearance and about the civil courts ’ unjustified dismissal of his claim for damages.

22. Citing Article 6 § 1 of the Convention, the applicant complained about the length of the civil proceedings.

23. Lastly, citing Article 13 of the Convention in conjunction with Article 2 and Article 1 of Protocol No. 1, the applicant reiterated his dissatisfaction with the relevant authorities ’ refusal either to launch a criminal investigation for the negligent mine clearing operation of May 2004 or to allow his claim for damages.

QUESTIONS TO THE PARTIES

1. Given that the costs of the relevant medical treatment and artificial legs for the applicant were covered by the respondent State, may the applicant still claim, in the circumstances of the present case, to be a victim of a violation of Article 2 of the Convention , within the meaning of Article 34?

2. In the affirmative, did the respondent State fail in its positive obligations to undertake adequate measures aimed at the protection of the applicant ’ s right to life, as ensured by Article 2 of the Convention, from the threat of landmines (cf., Paşa and Erkan Erol v. Turkey , no. 51358/99, §§ 28-38, 12 December 2006) ?