PARTLY DISSENTING OPINION OF JUDGE GNATOVSKYY

1. I concur with the Court’s conclusions in this case, with one major exception. To my regret, I cannot agree with my colleagues that there has been no violation of Article 2 in its substantive aspect. In my view, such a finding is problematic in the particular circumstances of the case and undesirable in terms of the future development of the Court’s jurisprudence on similar matters.

2. The case concerns events of the early morning of 26 December 2017, in the village of Duisi in Georgia, where a 19-year-old Georgian citizen, T.M., while in his bed at home, was fatally shot in the head by a member of the thirty-two ‑ officer team of the Special Assignment Unit (SAU) of Georgia’s State Security Service (SSS) which had entered his family’s house at around 3.45 ‑ 4 a.m. to arrest him on charges of providing material support to an ISIS ‑ related terrorist group. The application was lodged by T.M.’s father, mother, grandmother and sister (“the applicants”), who complained under Articles 2, 3 and 13 of the Convention.

3. The most important divergence between the accounts provided by the Government and by the applicants related to the events that had unfolded in T.M.’s bedroom and had resulted in his being shot in the head by an SSS officer. According to the investigation materials quoted by the Government, “T.M., having disregarded the request of the first officer to show his hands and surrender to the arrest, attempted to detonate a hand grenade and as a result was shot in the head” (see paragraph 10 of the judgment). Conversely, the applicants submitted that it had not been proven in a convincing manner by the investigation that T.M. had been holding a hand grenade when the SAU officers had entered his bedroom. According to the applicants, the SAU officers had mishandled the process of seizing, examining and testing the hand grenade; they had also failed to provide satisfactory explanations concerning issues such as T.M.’s exact position at the moment the officers had entered his bedroom; the sequence of events before and during the shooting, including the possibility that the applicant had had his mobile telephone and headphones with him; and the question whether a warning had been issued to T.M. (see paragraph 74 of the judgment). The applicants also stressed that their house had been under the exclusive control of the SSS for at least three hours before the search of T.M.’s bedroom and that this raised serious doubts as to the origin of the hand grenade in the bedroom (see paragraph 51 of the judgment).

4. The Chamber has unanimously found a violation of Article 2 in its procedural aspect as it has been convincingly established that the investigation of T.M.’s killing displayed a number of serious deficiencies. They included, as summarised in paragraph 97 of the judgment:

“... the defective initial investigative response, including the way in which important evidence was gathered and handled, the superficial examination of the planning and control phase of the operation, the delay in interviewing the SSS officers, and the denial of victim status to the first applicant, which prevented the applicants from appealing against the decision of the prosecutor’s office ...”

5. As regards the substantive aspect of Article 2, the judgment first deals with the key issue of the burden of proof. Paragraph 104 of the judgment contains this crucial passage:

“... the situation in the present case cannot be equated to a death in custody or to other situations where the authorities were in control, with the result that the burden of proof may be regarded as resting on the State ...”

6. Further arguments for finding no violation of the substantive aspect of Article 2 are also advanced. In that same paragraph the Chamber notes:

“... a hand grenade with blood stains which corresponded to the genetic profile of T.M. was seized from the latter’s bedroom ... and ... it cannot be said that the authorities failed to provide a plausible explanation for the events leading to the death of T.M. ...”

The Chamber then states:

“... the evidence before it renders impossible the assessment of the above conflicting versions, irrespective of the fact that this derives, at least in part, from the shortcomings of the investigation. While it is undisputed that T.M. died as a result of the fatal wound he received in the course of the security operation for his arrest, no judicial assessment of the exact circumstances which led to the firing of the fatal shot was conducted at the domestic level ...”

Further arguments are added in paragraph 105 of the judgment, such as the lack of a “sound basis on which to assess the situation in which the officer, who was required to react in the heat of the moment, found himself”, reference to the duty of the European Court of Human Rights to “be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case” and a reminder that “errors of judgment or mistaken assessments, unfortunate in retrospect, will not per se entail responsibility under Article 2 of the Convention” (references omitted). The subsequent paragraph concludes with a finding of no violation of the substantive aspect of Article 2 “in the specific circumstances of the present case”.

7. Unfortunately, I remain unconvinced by the arguments put forward in the judgment to support the finding of no violation of Article 2 in its substantive aspect. I will concentrate mostly on the question of the burden of proof, after which I will briefly address other problematic statements that purportedly have a bearing on the conclusion regarding the substantive aspect of Article 2.

8. Indeed, the key problematic issue in this case concerns the relationship between the substantive and procedural limbs of Article 2 of the Convention. My first and predominant concern about the path of argumentation chosen by my colleagues is that it stands in contradiction to the case ‑ law of the Court on the standard and burden of proof as applied in situations where the events lie wholly, or in large part, within the exclusive knowledge of the authorities. This is different from the question whether the authorities were in full physical control of the victim , which is dealt with in paragraphs 104 and 105 of the judgment in a rather contradictory manner (see below). However, it is the former question which is critical for the present case.

9. It must be noted that the authorities had exclusive control of the key evidence that could shed light on the disputed events. It was up to the authorities to establish to the extent possible through an effective official investigation whether, as the Government claimed, T.M. had been about to detonate a hand grenade in response to the oral warning issued by an SSS officer or, as the applicants asserted, he had been using his mobile telephone while wearing earphones and had not heard the warning (if any), and the hand grenade had later been planted by the SSS.

10. There exists clear authority, representing what is in my view a positive development in the Court’s case-law, for the proposition that strong presumptions of fact arise in respect of injuries and death that occur in situations where the events lie wholly or in large part within the exclusive knowledge of the authorities. In such cases, the burden of proof shifts and it is for the respondent Government to explain, in a satisfactory and convincing manner, the sequence of events and to provide solid evidence to refute the applicant’s allegations (see, in particular, Tagayeva and Others v. Russia , nos. 26562/07 and 6 others, § 586, 13 April 2017, and Mansuroğlu v. Turkey , no. 43443/98, § 80, 26 February 2008). In the absence of such explanation, the Court can draw inferences which may be adverse to the Government. In my view, the Court should have adhered to the same approach in the present case as none of the arguments presented by the Government amounted to a satisfactory and convincing explanation . Instead, the majority satisfied themselves with a plausible version of events provided by the Government (see paragraphs 104 and 106 of the judgment). If adopted by the Court beyond the limits of the present case, this approach risks dangerously lowering the standard of protection of the right to life.

11. As already mentioned, the judgment makes the point that “the situation in the present case cannot be equated to a death in custody or to other situations where the authorities were in control” (see paragraph 104 of the judgment). Having dealt with the issue of the burden of proof in the preceding three paragraphs of this opinion, I would further point out that the actual statement that the authorities were not in control is also problematic, not because there is convincing evidence that the victim was under the arresting officers’ full control, but because it is simply impossible to know to the required degree of certainty what exactly happened in T.M.’s bedroom immediately before and for several hours after he was shot in the head. The judgment in a way confirms this, in a rather self-contradictory manner, in paragraph 105, where it states that the Court “has no sound basis on which to ... find that T.M. was under the control of the SAU officers at the moment when they entered the room”. Indeed, the Court does not know whether T.M. was under the control of the officers when the fatal shot was fired, and therefore the appropriate standard is that which falls to be applied in situations “where the events lie wholly, or in large part, within the exclusive knowledge of the authorities”.

12. It is also necessary to deal with the arguments advanced in the judgment that may be construed as supporting the choice not to find a violation under the substantive limb of Article 2. First, while I agree with the assessment as to the existence and scope of the legal framework for the use of lethal force by law enforcement officers, including the SAU/SSS (see paragraph 100 of the judgment), the assessment of the planning phase of the operation set out in paragraphs 101 ‑ 102 appears unduly lenient. As correctly stated in paragraph 102:

“... the Government failed to submit any documents or files providing for the procedures that the SAU employed before, during, and after the operation in question ... Formal reports concerning the manner in which the operation was prepared and/or in which it unfolded are also missing from the investigation file and the Government provided no explanation in this regard ...”

Further, paragraph 103 provides a clear example of deficient planning of the “operation involving a large number of armed officers and aimed at arresting, according to the official version of events, a potentially armed terrorist” in so far as the authorities failed to arrange for an ambulance to be present, even if there is no evidence that the presence of the ambulance would actually have saved T.M.’s life given the gravity of the injury that he sustained (see paragraph 39 of the judgment). Unfortunately, the majority refrain from drawing any conclusions from these failures by the authorities other than to say that “there is nothing to suggest that the SAU officers were not intending to carry out an arrest, as per the stated purpose of the operation” and they accept the Government’s assertion that the authorities had valid reasons to expect armed resistance from T.M. (see paragraph 102 of the judgment).

13. Reference is also made to the fact that “a hand grenade with blood stains which corresponded to the genetic profile of T.M. was seized from the latter’s bedroom” in paragraph 104 in support of the plausibility of the version of events presented to the Court by the Government. This reference appears to be rather unfortunate as it merely repeats the Government’s version of events which, in the absence of an effective investigation, carries no more weight than the applicants’ allegation that a hand grenade was planted in T.M.’s bedroom by the arresting officers. It is noteworthy that, according to the fingerprint analysis described in paragraph 34 of the judgment, traces on the hand grenade were not sufficient or suitable for identification purposes and thus no useable fingerprints could be obtained. As regards the presence of T.M.’s blood on the hand grenade, this does not appear to be in any way conclusive, as immediately after the incident his blood was present on a number of surfaces in the room (see, for example, paragraphs 42 ‑ 43 of the judgment).

14. In sum, the resolution of the present case hinges on the need to assess whether the shooting of T.M. satisfied the “absolute necessity” standard under Article 2 § 2 of the Convention on the basis of conflicting accounts provided by the applicants and the Government, the latter having failed to conduct an effective investigation of the incident in compliance with the standards formulated in the Court’s case ‑ law. Whilst the violation of the procedural limb of Article 2 is rather uncontroversial, I have major concerns that the finding of no violation of the substantive aspect of the right to life may send a wrong message to the States parties to the Convention.

15. As aptly mentioned in a recent monograph on the Court’s case-law related to the right to life, “the ECtHR’s interpretation and application of Article 2(2) has resulted in a difficult combination of apparently robust norms with a generally sympathetic approach to contextual contingencies” [2] . Such a “sympathetic approach” to exceptions regarding the use of lethal force by State agents cannot, nevertheless, be unlimited. In my view, it is highly desirable for the Court to be more demanding in situations where no effective investigation has been carried out and where the Government has failed to explain the sequence of events in a satisfactory and convincing manner and provide solid evidence to refute the applicant’s allegations.

16. Quite separately from the present case, in which I believe Article 2 was violated in both its procedural and substantive aspects, there may be situations where the Court, in addressing an alleged violation of the substantive aspect of Article 2 whilst also finding that the authorities failed to carry out an effective investigation, is faced with a sort of non liquet situation. A solution to this problem, worth considering in some (admittedly not all) such cases, may be to refrain from sending, in the same judgment, two contradictory signals – one of violation and one of no violation. A violation of the procedural aspect of Article 2 is still a violation of one of the most fundamental rights enshrined in the Convention. It may therefore be preferable to analyse both aspects while nevertheless distilling that analysis into a single conclusion that there has been a violation of the Article as a whole. Otherwise, it will be far too easy, for those minded to downplay the significance of the Court’s finding of a violation, to say that no violation of the substantive aspect is a more important outcome of the case than the violation of the procedural obligation. In other words, when the authorities fail to investigate effectively and to furnish the Court with the information it requires to come to a definitive conclusion as to the presence or absence of a violation, they should not be “rewarded” with a finding of no violation that can then easily be publicised in a light favourable to them. This suggestion applies only to some cases, but it may be a reasonable option in the modern world of information and misinformation, truth and post-truth.

APPENDIX

No.

Applicant’s Name

Year of birth

Nationality

Place of residence

1

Malkhaz MACHALIKASHVILI

1968

Georgian

Duisi

2

Elene MACHALIKASHVILI

1949

Georgian

Akhmeta

3

Nata MACHALIKASHVILI

1989

Georgian

Duisi

4

Aiza MARGOSHVILI

1971

Georgian

Duisi

[1] Rectified on 1 February 2023: “Ms T. Samkharadze” has been added

[2] Stephen Skinner, Lethal Force, the Right to Life and the ECHR: Narratives of Death and Democracy , (Hart Publishing, 2019), p. 84.