Information Note on the Court’s case-law 231

July 2019

Vazagashvili and Shanava v. Georgia - 50375/07

Judgment 18.7.2019 [Section V]

Article 2

Article 2-1

Effective investigation

Manifest disproportion between seriousness of act committed by State agents and punishment imposed: violation

Facts – On 2 May 2006 the applicants’ son was shot dead by the police. The initial investigation into his death was discon tinued. The investigation was subsequently reopened and in 2015 five high-ranking officers were convicted of either double aggravated murder or malfeasance or perverting the course of justice. It was established that the whole police operation in issue had been mounted on the basis of the documents fabricated by a senior officer with the sole aim of assassinating the passengers of the applicants’ son’s car and thus taking a personal revenge against one of them.

Law – Article 2 ( procedural aspect ): The very first investigative measures had been undertaken, in the immediate aftermath of the police operation, by the same officers who had participated in that operation. The evidence collected by those officers had later been relied on by the prosecution authorit y during the first stage of the investigation into the proportionality of the use of force by the police. As such, the primary and most decisive investigative steps taken by the relevant authorities had manifestly fallen afoul of the requisite requirements of independence and impartiality, and such a procedural deficiency could not but taint the subsequent developments in the investigation.

The prosecutor’s office had been unwilling to involve the applicants by allowing them to benefit uninhibitedly from t he requisite victim status. Without the latter procedural standing, the applicants had been unable to appeal to a court against the prosecutorial decision terminating the investigation. The prosecution authority had failed to give due consideration to the statements of two independent witnesses who had confirmed that the passengers in the applicants’ son’s car had never put up any armed resistance to the police. A proper assessment of the latter fact had, however, been indispensable for the purposes of reac hing objective conclusions regarding the proportionality of the use of force by the police. Those considerations were sufficient to conclude that that part of the original investigation had manifestly lacked the requisite thoroughness, objectivity and, as had subsequently been revealed by the results of the reopened investigation, integrity.

After the criminal investigation into the police operation had been reopened in 2012, five high-ranking officers of the Ministry of the Interior had been convicted in r elation to that incident of double aggravated murder, malfeasance or perverting the course of justice. However, the Court was not convinced that the outcome of the reopened criminal proceedings had constituted sufficient redress for the applicants. The bel ated acknowledgement of the fact of the aggravated murder of the applicants’ son, more than nine years after the killing had taken place, coupled with the significant periods of total inactivity on the part of the investigation authorities, had clearly amo unted to procrastinated justice.

After the reopening of the investigation, it was the first applicant who, even in the absence of the relevant victim status, had borne the burden of the investigation, by interviewing the various key witnesses and collecti ng other evidence, for a considerable period of time. Despite the fact that there had already existed substantial evidence implicating the relevant police officers in the unlawful use of the lethal force against the applicants’ son, it still had taken the relevant domestic authorities almost three years to terminate the investigation and transfer the case for trial. It was partly on the basis of the evidence collected by the first applicant himself that the conviction for his son’s murder had been later sec ured.

The Court could not fail to note that the first applicant’s assassination – in a bomb blast caused by a device planted at his son’s grave – had been prompted by his incessant public activities aimed at shining a light on the activities of the police office rs responsible for the killing of his son. By taking over the investigative role, which should normally have been the responsibility of the relevant authorities, the first applicant had put himself at almost certain risk of retaliation. The Court underline d that the tragic development in the present case could be seen as yet another vivid example of how tangibly deleterious the consequences of a lack of due diligence on the part of the authorities investigating life-endangering crimes could be, particularly where police corruption was involved.

The second applicant had not been granted victim status in the reopened investigation. Her inability to take part in the trial after her husband’s death (he had been assassinated in a bomb blast at his son’s grave) ha d impaired the possibility of seeking and obtaining adequate compensation for the damage which she and her already late husband had sustained as a result of the killing of their son by the police.

Although substantial deference had to be granted to the na tional courts in the choice of appropriate sanctions for ill-treatment and homicide, the Court had to intervene in cases of manifest disproportion between the seriousness of the act committed by State agents and the punishment imposed. That was essential f or maintaining public confidence, ensuring adherence to the rule of law and preventing any appearance of tolerance of or collusion in unlawful acts committed by State agents.

In the applicants’ case, although domestic law permitted the trial court to impos e a higher sentence – either twenty years in prison or life imprisonment –, it had initially handed down sixteen-year prison sentences for the two authors of the aggravated murder of the applicants’ son. When handing down those sentences, the trial court h ad known that the sentences were subject to a further reduction, by a quarter, pursuant to automatic provisions of the Amnesty Act. It was a matter of regret that the domestic legislator, when enacting the Amnesty Act, had not given due consideration to th e need to punish serious police misconduct with unbending stringency. When an agent of the State, in particular a law-enforcement officer, had been convicted of a crime that violated Article 2, the granting of an amnesty or pardon should not be permissible . States were expected to be all the more stringent when punishing their own law-enforcement officers for the commission of such serious life endangering crimes than they were with ordinary offenders, because what was at stake was not only the issue of the individual criminal-law liability of the perpetrators but also the State’s duty to combat the sense of impunity the offenders might consider they enjoy by virtue of their very office, and to maintain public confidence in and respect for the law-enforcemen t system.

The two police officers who had been found guilty of aggravated murder had not been banned from public service by the domestic courts. They could have potentially re-joined the law-enforcement system after they had served their prison sentences. As a matter of principle, it would be wholly inappropriate and would send the wrong signal to the public if the perpetrators of the very serious crime in question were able to maintain eligibility for holding public office in the future. The sentences impo sed upon the two police officers who had murdered the applicants’ son and his friend in the egregious circumstances – with malice aforethought, employing the law-enforcement machinery for that unique purpose – had not constituted fully adequate punishment for the crime committed.

In the light of the foregoing, despite the eventual conviction of the five police officers, the criminal-law system had proved to be far from rigorous and could not be said to have had sufficiently dissuasive effect for prevention of similar criminal acts in the future.

Conclusion : violation (unanimously).

Article 41: EUR 50,000 in respect of non-pecuniary damage.

The Court also held, unanimously, there had been a violation of the substantive aspect of Article 2. The domestic courts had made it crystal clear that the killing of the applicants’ son had been attributable to the respondent State.

(See also Hasan Köse v . Turkey , 15014/11, 18 December 2018, Information Note 224 ; Kolevi v. Bulgaria , 1108/02, 5 November 2009, Information Note 124 ; Šilih v. Slov enia [GC], 71463/01, 9 April 2009, Information Note 118 ; Enukidze and Girgvliani v. Georgia , 25091/07 , 26 April 2011; Armani Da Silva v. the United Kingdom [GC], 5878/08, 30 March 2016, Information Note 194 ; and compare Bektaş and Özalp v. Turkey , 10036/03 , 20 April 2010; and Nik olova and Velichkova v. Bulgaria , 7888/03, 20 December 2007, Information Note 103 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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