JOINT PARTLY DISSENTING OPINION OF JUDGE S CABRAL BARRETO, JOČIENĖ AND POPOVIĆ

We voted along with the majority of the chamber in finding a violation of the procedural limb of Article 2 of the Convention , but we also believe there was a violation of Article 2 in its substantive limb in the present case. Our reasons are the following.

The Court reiterated in the Çakıcı v. Turkey case ([GC], no. 23657/94 , § 86 , ECHR 1999-IV) that Article 2 of the Convention , which safeguards the right to life , ranks as one of the most fundamental provisions in the Convention and , together with Article 3 of the Convention , enshrines one of the basic values of the democratic societies that make up the Council of Europe (see McCann and Others v. the United Kingdom judgment of 27 September 1995 , §§ 146-47 , Series A no. 324). The obligation imposed is not exclusively concerned with intentional killing resulting from the use of force by agents of the State. Th e first sentence of Article 2 § 1 also imposes a positive obligation on States to protect the right to life by law.

In this connection we consider that th e first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life , but also to take appropriate steps to safeguard the lives of those within its jurisdiction. The Court ’ s task is , therefore , to determine whether , given the circumstances of the case , the State did all that could have been required of it to prevent the applicant ’ s life from being avoidably put at risk (see L.C.B. v. the United Kingdom , no. 23413/94 , § 36 , Reports 1998-III).

Furthermore, the Court stated in Ertak v. Turkey , ECHR 2000 ‑ V, § 132, that “the authorities are under an obligation to account for individuals under their control”.

Coming to the circumstances of the present case , we firstly find it clearly established that Mr Sandro Girgvliani, who lost his life on 28 January 2006, was indeed under the control of State agents who put his life at mortal risk and were the perpetrators of the crime.

In support of this position we would like to stress the following facts: A.) The perpetrators of the crime as a result of which Mr Sandro Girgvliani lost his life were senior officers of the Ministry of the Interior. B.) At their first contact with Mr Sandro Girgvliani and the other victim on the night in question, the perpetrators of the crime presented themselves to the victims as police officers. C.) One of the police officers involved tried to take down the victims ’ identity. D.) The perpetrators used cars from the garage of the Interior Ministry to commit the crime. Only police officers had access to such cars. E.) When the crime was committed the police officers concerned were in possession of their service weapons. Although it is true that they did not use those weapons to put an end to the victim ’ s life, it was established that the weapons were fired in the course of the events which led to Mr Sandro Girgvliani ’ s death. F.) One of the perpetrators relied on his hierarchical superiority to mobilise accomplices and involve them in the crime. This is worth emphasising because it supports our finding that the perpetrators used their official positions in committing the crime. G.) Mr Sandro Girgvliani lost his life as a result of being severely beaten by police officers in a place where no help was available, when the very people who beat him were supposed, by virtue of their position, to assist victims in similar situations. The perpetrators of the crime were not merely acting ultra vires ; they deliberately committed a crime, even though their main and by far their most important duty was precisely to prevent crime.

Secondly, an important question is whether the action of the perpetrators of the crime in this case is attributable to the State or not. Our answer to this question is affirmative, without a doubt.

The State is responsible under international law for the acts of its agents. The perpetrators in the present case were State agents – high ranking police officers – acting as such. The State cannot absolve itself of its obligation under international law by alleging that the motives of its agents were contrary to State policy. The international-law responsibility of the State for the acts of its agents is independent of any motives they may have had.

Furthermore, the obligation is incumbent upon the State, under both international and internal law, to choose its agents carefully. In doing so the State must follow strict criteria and apply high professional standards in order to achieve a high quality of performance of its duties and obligations towards its own citizens, as well as the international community. The Court clearly stated in Abdullah Yilmaz v. Turkey (no. 21899/02, § 57) that “the State is under obligation to ensure a high level of competence of the professionals” in its service. We fully subscribe to this rule and consider it binding in all relevant cases before our Court.

It is clear in our opinion that Georgia failed in its obligation to recruit its police officers with due diligence in order to meet the standards required by the Convention.

The perpetrators in th e present case were law-enforcement agents, senior officers of the Ministry of the Interior who, by the very nature of their office, were expected to behave at all times, whether on or off duty, in a manner befitting their status as law-enforcement officers responsible for preserving public order, promoting public safety and preventing and investigating crimes. They should have done everything possible to prevent the applicant ’ s life from being avoidably put at mortal risk.

Therefore, by failing to choose proper law-enforcement officers the State placed itself in breach of Article 2 of the Convention in its substantive limb. Even if the officers in question were driven by their own private motives, which in our opinion is doubtful and remains unestablished, it is evident that the law-enforcement system did not meet the required standards in the present case. This provides grounds for our finding that the action of the police officers who perpetrated the crime, resulting in the death of an innocent man, must be, and according to the case-file actually is, directly imputable to the Georgian State . That is why we consider that there has been a violation of Article 2 in its substantial limb, along with all the other violations of the Convention found in this case.

As regards just satisfaction under Article 41, the finding of a double violation of Article 2 of the Convention calls, in our opinion, for a much higher award in respect of non-pecuniary damage.