Information Note on the Court’s case-law 239

April 2020

Kukhalashvili and Others v. Georgia - 8938/07 and 41891/07

Judgment 2.4.2020 [Section V]

Article 2

Article 2-1

Effective investigation

Article 2-2

Use of force

Indiscriminate and excessive use of lethal force during anti-riot operation in prison conducted in uncontrolled and unsystematic manner without clear chain of command: violation

Facts – In 2006, an anti-riot operation was conducted in a Tbilisi prison in which at least seven inmates, including members of the applicants' families, were killed by the anti-riot forces. Dozens of other inmates were seriously injured.

Law

Article 2 (procedural aspect): The investigation into the law‑enforcement agents' use of force had been launched after a three-month delay by the same unit from the Ministry of Justice which had given the order to storm the prison and had been in direct command of the anti-riot squad. The investigation had not examined the planning of the anti-riot operation or the use of lethal or physical force. In addition, as evident from the statements of senior prosecution officials, the State authorities had been predisposed to discount any wrong doing on the part of the law-enforcement agents. The investigation had therefore lacked independence and impartiality. The involvement of the deceased's next of kin and public scrutiny into the relevant investigation had been virtually non-existent. Lastly , the investigation had not produced any conclusive findings. The delays in proceedings had been prohibitive. In the light of the foregoing, the investigation had been ineffective.

Conclusion : violation (unanimously).

Article 2 (substantive aspect)

(a) Methodology of the Court’s scrutiny – The domestic courts had not been given a chance to establish the relevant facts because the proceedings regarding the alleged abuse of power by State agents during the anti-riot operation had still been ongoing. And th ere had been no parliamentary inquiry, even though such a massive incident had shaken the country and attracted significant international attention. In such circumstances, when the Court was prevented from having knowledge of the exact circumstances surrou nding the anti-riot operation for the reasons objectively attributable to the State authorities, it was for the respondent Government to explain, in a satisfactory and convincing manner, the sequence of events and to exhibit solid evidence that could refut e the applicants’ allegations. If the Government failed to do so, the Court might then draw strong inferences. Since it was ultimately for the Court to make its own findings and reach its own conclusions on the applicants’ allegations, it drew on all the m aterial available, including the factual findings of the relevant domestic and international human rights observers and the results of the investigation launched against the six riot organisers.

(b) Whether the use of lethal force was legitimate – The use of lethal force for purely punitive, retaliatory purposes, even if those purposes targeted alleged members of the criminal underworld, could not be justified under Article 2 § 2.

The Government’s argument that there had existed an imminent and real danger to the lives of prison guards as a result of the gunshots coming from some of the most aggressive prisoners behind the barricades had been sufficiently convincing. The law-enforcement officers could indeed have subjective good reasons to believe that the use of force had been necessary. The conduct of the inmates had shown certain signs of being an attempted uprising. In the light of the foregoing, the respondent State could resort to measures involving potentially lethal force.

(c) Whether the use of lethal force was proportionate – The authorities had been aware of the criminal bosses' plans to instigate disobedience in prisons well before the incident. Nevertheless, the officers of the anti-riot squad had not received specific inst ructions and orders from their superiors regarding the requisite form and intensity of any use of lethal force in order to keep the likelihood of casualties to a minimum. Having recourse to automatic weapons within the close confines of the prison walls wo uld necessarily have meant that the risk of causing fatalities had been inordinately high. The Government had failed to produce any evidence to show that the anti-riot squad had acted in a controlled and systematic manner, under a clear chain of command. A ccording to the evidence collected by Human Rights Watch, the competent authorities had not even known exactly who had been in charge of the anti-riot operation.

The competent authorities had not even considered using alternative, less violent means of sup pressing the incident in the prison, such as teargas or water cannons. This had been apparently a consequence of the lack of any strategic planning as to how the anti-riot operation would be carried out. Moreover, as reported by Amnesty International and H uman Rights Watch, the gunshots in the inmates' direction had come not just from the anti-riot squad inside the building, but also from shooters situated outside on the roofs of neighbouring buildings, with stray bullets entering prison cells through the w indows. Those facts had shown that the use of lethal force by the anti-riot squad had been indiscriminate and excessive. Furthermore, as reported by Human Rights Watch, no serious attempts had been made to conduct negotiations with the prisoners behind the barricades, even though the latter had clearly shown readiness to enter into such negotiations. In this respect, it was appropriate to restate that a prison population was by its nature a vulnerable group, in need of the protection by the State.

According to the relevant international reports, the authorities had failed to provide adequate medical assistance to the prisoners after the termination of the anti-riot operation. Since the hazard had been predictable, the relevant authorities' obligation to come up with a proper medical evacuation plan had been even greater. Furthermore, according to credible reports, numerous detainees had been ill-treated and even shot in their cells, even though they were no longer putting up resistance. Lastly, neither the co mpetent domestic authorities nor the respondent Government had provided information regarding the individual fates of the applicants’ family members who had been killed during that operation. Having regard to the treatment to which the State agents subject ed the detainees after the termination of the anti-riot operation, the Government's failure to account for each of the relevant deaths had appeared to be a particularly grave shortcoming, a consequence of the seriously defective domestic investigation.

Con clusion : violation (unanimously).

Article 41: EUR 40,000 for the first and second applicants jointly and EUR 32,000 for the third applicant in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See concerning the effective investigatio n: Kolevi v. Bulgaria , 1108/02, 5 November 2009, Information Note 124 ; Şandru and Others v. Romania , 22465/03, 8 December 2009, Information No te 125 ; Giuliani and Gaggio v. Italy [GC], 23458/02, 24 March 2011, Information Note 139 ; Enukidze and Girgvliani v. Georgia , 25091/07, 26 April 2011, Information Note 140; Mustafa Tunç and Fecire Tunç v. Turkey [GC], 24014/05, 14 April 2015, Information Note 184 . See also concerning the use of force: Mansuroğlu v. Turkey , 43443/98, 26 Febr uary 2008, Information Note 105 ; Finogenov and Others v. Russia , 18299/03 and 27311/03, 20 December 2011, Information Note 147 ; Kavaklıoğlu and Others v. Turkey , 15397/02, 6 October 2015, Information Note 189 ; Tagayeva and Others v. Russia , 26562/07 et al., 13 April 2017, Informatio n Note 206 )

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