CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 26 avril 2011

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display:inline-block } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }   SECOND SECTION         CASE OF ENUKIDZE AND GIRGVLIANI v. GEORGIA   (Application no. 25091/07)                   JUDGMENT       STRASBOURG   26 April 2011     FINAL   26/07/2011   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Enukidze and Girgvliani v. Georgia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Françoise Tulkens, President,   Ireneu Cabral Barreto,   Vladimiro Zagrebelsky,   Danutė Jočienė,   Dragoljub Popović,   András Sajó, judges,   Irakli Adeishvili, ad hoc judge, and Stanley Naismith, Section Registrar, Having deliberated in private on 27   April 2010 and 22   March 2011, Delivers the following judgment, which was adopted on the last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 25091/07) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Georgian nationals, Mrs Irina Enukidze and Mr Guram Girgvliani (“the applicants”), on 11 June 2007 and 17 March 2008 respectively. On 24   August 2007, Mrs Irina Enukidze (“the first applicant”) died. On   17   March 2008 Mr Guram Girgvliani (“the second applicant”), her husband, informed the Court of his intention to pursue the proceedings in his own name as well as on behalf of his late wife. For the sake of the readability and other practical considerations, the Court will continue referring to both applicants in the present judgment. 2.     The applicants were represented by Mr Shalva Shavgulidze and Mr   Davit Jandieri, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr   Levan Meskhoradze. 3.     The applicants alleged, in particular, that their son had been killed by Ministry of the Interior officials because he had upset senior officials in that Ministry as well as the Minister’s wife, and that the investigation carried out by the authorities had not been effective. 4.     On 24 June 2008 the Court decided to communicate the complaints under Articles 2, 6   §   1 and 13 of the Convention to the Government (Rule   54   §   2(b) of the Rules of Court) and to rule on the admissibility and merits of the application at the same time (Article   29   §   3 of the   Convention). On the same date it also requested the Government to submit a copy of all the criminal case materials related to the homicide of the applicants’ son, both on paper and on data storage devices, including the fourteen exhibits (see paragraph   159 below), as well as a copy of the full file concerning the criminal proceedings directed against L.B.-dze under Article   371-1 of the Criminal Code (see paragraph 194 below). 5.     On 22 December 2008, as well as filing their observations on the admissibility and merits of the present application, the Government submitted eight volumes of documentary evidence related to the homicide case only. Volume no. 8 confirmed that video recordings, including the fourteen exhibits, also formed part of that criminal case file. However, none of those recordings was enclosed. As to the file concerning the criminal proceedings against L.B.-dze, the Government did not produce a single item of evidence, limiting themselves to the explanation that, after having examined a number of witnesses, the relevant domestic authorities had discontinued those proceedings. 6.     The applicants submitted their observations in reply, together with their claims for just satisfaction, on 24 May and 9 July 2009. The Government commented on the applicants’ submissions on 14 July 2009. 7.     On 6 October 2009 the Court decided to hold a hearing on the admissibility and the merits of the case. 8.     On 9 November 2009 the Court drew the Government’s attention to their failure to submit the fourteen exhibits and other video recordings which formed part of the homicide case as well as the case materials concerning the criminal proceedings against L.B.-dze, including the decision on the discontinuation of those proceedings. Referring to its case-law on the respondent States’ obligations under Article 38 of the Convention ( Medova v. Russia , no. 25385/04, §§ 76-80, ECHR 2009 ‑ ... (extracts)), the Court again requested the Government to submit the missing items of evidence, emphasising that they should reach the Court by 1   December 2009 at the latest. 9.     By a faxed letter of 1 December 2009, the Government informed the   Court, without attaching a copy of the relevant postal receipt in support, that the requested items of evidence had been sent by ordinary mail. 10.     On 14 December 2009, reiterating its request for the above ‑ mentioned items of evidence, the Court also invited the Government, in view of the forthcoming hearing, to submit additional documents – the classified internal memo addressed by D.A.-aia to the Minister of the Interior (see paragraph 49 below) and the documents concerning the preparation and implementation of the presidential pardon of 24   November 2008 and the four convicts’ release on licence on 5 September 2009 (see paragraphs 204-205 below). 11.     On 15 December 2009 the items of evidence posted by the Government on 1 December 2009 (see paragraph 9 above) finally reached the Court. They consisted of the fourteen exhibits in the homicide case and of certain materials concerning the proceedings against L.B.-dze under Article   371 ‑ 1 of the Criminal Code. The additional documents requested by the Court on 14 December 2009 (see the preceding paragraph) were submitted by the Government on 12 January 2010. 12.     On 26 April 2010 the Government submitted further written comments on the admissibility and merits of the application. Those comments had not been requested by the Court, given its earlier decision to adopt an oral procedure, but were nevertheless included in the case file pursuant to Rule 38 § 1 of the Rules of Court and transmitted to the applicants on the same date. 13.     A hearing took place in public in the Human Rights Building, Strasbourg, on 27 April 2010 (Rule 59 § 3). On the same date the Court advised the parties that the adversarial written procedure was definitively closed and that no further pleadings would be entertained.   There appeared before the Court: (a)     for the Government Mrs   T. Burjaliani, First Deputy Minister of Justice , Mr   L. Meskhoradze , Agent , (b)     for the applicants Mr   Sh. Shavgulidze and Mr D. Jandieri , Counsels , Mr   G. Girgvliani , Applicant , Mrs   K. Kvantaliani , Adviser.   The Court heard addresses by Mrs T. Burjaliani and Mr D. Jandieri . THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 14.     The first applicant was born in 1956. She died on 24 August 2007. The second applicant was born in 1950 and lives in Tbilisi. 1.     Background to the case 15.   On 27 January 2006, at around 11 p.m., a group of friends met at the Café Chardin in Tbilisi. In the group were T.S.-aia, the Minister of the Interior’s wife, D.A.-aia, Director of Constitutional Security at the Interior Ministry, his deputy O.M.-ov, V.S.-dze, Director of the General Inspectorate of the Interior Ministry, G.D.-dze, Head of Press at the Ministry and the Minister’s spokesman, and A.K.-dze, a lady friend of T.S. ‑ aia. Another woman, Th.M.-dze, a friend of A.K.-dze, was also with them. 16.   Mr Sandro Girgvliani, the applicants’ 28-year-old only son, and a friend of his, L.B.-dze, were sitting at another table in the same room. 17.     According to the applicants D.A.-aia, O.M.-ov, V.S.-dze and G.D. ‑ dze are very well-known public figures in Georgia who, with V.M. ‑ shvili, the Georgian Minister of the Interior, played an active part in the so-called Rose Revolution that brought about the resignation of President E. Shevardnadze in November 2003 (see The Georgian Labour Party v. Georgia , no.   9103/04, §§ 11-13, 8 July 2008). According to the applicants, the government relies on the support of these trusted aides. 18.     As submitted by the applicants, on the evening in question Sandro Girgvliani and L.B.-dze, both young bankers, arrived at the Café Chardin later than the group of friends mentioned above. The applicants’ son was actually hoping to see Th.M.-dze, whom he was apparently courting. On entering the café, he went up to the table where T.S.-aia, the Interior Minister’s wife, and her friends were sitting to say hello to Th.M.-dze. After greeting Th.M.-dze with a kiss, he went to sit with L.B.-dze at a nearby table. At one point he signalled to Th.M.-dze to join them at his table and she temporarily changed tables. The discussion between Sandro Girgvliani and Th.M.-dze, which lasted between 20 and 30 minutes, was apparently quite tense, punctuated with lively gestures that suggested they were disagreeing about something. Because of this, A.K.-dze went up to Th.M. ‑ dze twice, to ask her if everything was all right and if she needed any help. Th.M.-dze said all was well and she would soon be going back to A.K. ‑ dze’s table. When she finally did so the Minister of the Interior’s wife asked her if there was anything wrong. Th.M.-dze said that the young man she had been talking to was a friend and that there was no problem. 19.     On 28 January 2006, at about 3 p.m., Sandro Girgvliani’s body was found by three friends, with the help of a local man, near the cemetery in Okrokana, a suburb of Tbilisi, 6.3 km from the Café Chardin. 20.     According to an expert report drawn up by forensic specialists on 28   January 2006, after inspecting the crime scene, and the photographs appended to it, Sandro Girgvliani’s body, naked from the waist up, was discovered lying in the snow in the woods near the cemetery. Visual examination of the body revealed numerous parallel linear wounds on the left arm and shoulder, three 8 cm wounds to the neck, a similar wound to the throat and numerous bruises and lesions, some deep, to the chest. A pocketknife was found in the victim’s trouser pocket. 21.     The autopsy carried out on 28 January 2006 by the National Forensic Bureau established that the victim had 12 cuts of different sizes on his throat, caused by a sharp object, and one lesion on the left shoulder. Three of the wounds to the throat were deep enough to have damaged the muscles. One of them, measuring   0.5   cm in diameter, had reached the pharynx. According to a State expert who examined a sample of skin taken from the throat, the wounds had been caused by a sharp, pointed object with a handle, probably a knife. A very large number of cuts of different sizes – from 4 to 15 cm long – were found on the left shoulder, the left forearm, the right shoulder, the fingers, the belly, both knees and tibias, the thighs, the forehead, the nose, and around the eyes. Analyses revealed the presence of alcohol but no drugs in the blood. According to the experts, the amount of alcohol in the victim’s blood at the time of death was insignificant (0.35   ‰). 22.     The report concluded that death had been caused by the wound to the pharynx. The victim had died of asphyxia when blood from the wound to his pharynx was sucked into the airways. It was a serious, life-threatening wound. 2.     The part of the investigation carried out by the Ministry of the Interior 23.     On 28 January 2006 criminal proceedings were instituted by the Ministry of the Interior for murder (Article 108 of the Criminal Code). On the same day criminal proceedings were instituted on counts of false imprisonment (Article   143 §   2 of the Criminal Code) and criminal association (Article 179 § 2 of the Criminal Code). Also on the same day, the two cases were joined. 24.     On 28 January 2006 L.B.-dze was questioned as a witness. He explained that on 27 January 2006, at around 8 p.m., Sandro Girgvliani, himself and some colleagues of theirs went to the Keiser inn. They ordered various dishes, and beer and vodka. They left the inn at about 1 a.m. The applicants’ son and L.B.-dze took one taxi and their colleagues took another one. On the way, Mr Girgvliani suggested stopping off at the Café Chardin for a coffee. According to L.B.-dze, they met several people they knew in the café and stayed there until about 2   a.m., when they left and started walking down Leselidze Street towards the main road. A silver Mercedes ML pulled up alongside them. Two men got out and grabbed L.B.-dze by the neck to push him into the car. One of them pushed the applicants’ son into the car, holding his hands behind his back. 25.     L.B.-dze asked the three kidnappers what they wanted. One of them said that, to start with, he wanted to know what they had in their pockets. L.B.-dze and Sandro Girgvliani showed him their mobile phones, which the man confiscated and placed in the glove compartment. The same man then asked them for proof of identity. L.B.-dze gave him his work pass, which was also confiscated. L.B.-dze and Mr Girgvliani took the men for policemen, but when the car started heading uphill, out of Tbilisi, the applicants’ son asked where they were going, as there was no police station in that direction. By way of an answer, the man sitting next to him elbowed him in the ribs. L.B.-dze asked the same question, but to no avail. Mr   Girgvliani then demanded that they show their police badges, and was again elbowed in the ribs. The man sitting next to the driver finally answered that they would soon see where they were going and find out what would happen when they got to “the top”. Everyone then remained silent for a moment. On the way out of Tbilisi, the driver called someone on his mobile phone, saying: “We’re on our way up. The road is fine; you can come up in your car”. Near Okrokana cemetery they stopped the car, pulled L.B. ‑ dze and the applicants’ son out and pushed them towards the cemetery. L.B. ‑ dze was dragged along by the driver of the vehicle and the man who had been sitting in the front. Suddenly he felt a violent blow to the neck and collapsed. His captors then started kicking him while one of them held a pistol to his head. At the same time, Sandro Girgvliani was being beaten by the third man. 26.     A short time later, L.B.-dze saw a fourth man, who had not been in the car. The man came up to him, aimed a gun at him and said he was only getting the punishment he deserved. He then kicked him in the face, fired a shot into the air then walked over to where Sandro Girgvliani was being beaten and started hitting him too. 27.     At one point the two men beating Sandro Girgvliani came over to those who were beating L.B.-dze and said “the other bastard’s got away”. They then made L.B.-dze take his clothes off, hit him some more and left him there. 28.     L.B.-dze managed to get up, with difficulty, and made his way back to the road. He walked along the road to a service station, where he woke up the watchman. He waited with the watchman until the early morning, when he was able to ask a passer-by to let him use his mobile phone to call the police. When questioned subsequently, the watchman confirmed L.B.-dze’s story. 29.     At the end of that interview L.B.-dze said that he was still in shock and could not remember any other details at that time. 30.     On 28 January 2006 L.B.-dze was granted civil party status and was questioned again in that capacity. He confirmed his previous statements and added that he had been pistol-whipped around the head. 31.     On   28 January 2006 the colleagues with whom Sandro Girgvliani and L.B.-dze had spent the evening until 12.20-12.30 a.m. were all questioned. They confirmed that the applicants’ son and L.B.-dze had taken a taxi. They had not heard about the subsequent events and Sandro Girgvliani’s death until the next day. 32.     On 29 January 2006 L.B.-dze was arrested and placed under investigation for concealment of murder. 33.     On 29 January 2006 the waiters, the manager and the accountant at the Café Chardin were interviewed. They stated that on Fridays and Saturdays a percussionist played the drums in their café and a DJ played music. One of the waitresses said that table no. 5 had been occupied by G.D.-dze, the spokesperson for the Minister of the Interior, and 6 or 7 other people. According to her, G.D.-dze and his friends had left the café at around 2.40 a.m. She had not noticed any trouble or fight that evening. However, she would not have been able to overhear any unpleasant verbal exchanges between the clients because of the music played between 10   p.m. and 1   a.m. The person who had served coffee to the applicants’ son said that Mr Girgvliani had been joined by a friend who had gone to the toilets. The two had only ordered coffee and had left after about 20 minutes. 34.     On 30 January 2006 the investigating authority ordered the heads of all the police stations in Tbilisi to search their districts for silver Mercedes ML cars, to draw up lists of the owners, to get their photographs and their mobile and ordinary phone numbers and to find out about their professional contacts, friends, families and any possible criminal connections. The results of these investigations, which went on until 1 March 2006, were communicated to the investigating authorities by stages. 35.     On 30 January 2006, L.B.-dze, when questioned as an accused person, gave new information. He said that a young woman he did not know had joined them at their table in the Café Chardin. The applicants’ son had greeted her warmly. At the same time L.B.-dze had been talking to an acquaintance. He had nevertheless noticed that the discussion between the applicants’ son and the lady concerned had grown tense. He could not hear what they were talking about because Sandro Girgvliani and the lady were sitting very close to each other and the music was loud. After ten minutes the lady had stood up, angry, and gone back to the other table, around which there were other ladies but also some muscular-looking men. Sandro Girgvliani did not tell L.B.-dze who the woman was. No-one in the café had had an argument with Sandro. At the cemetery, when the applicants’ son was being beaten, L.B.-dze had not been able to see him, but he had heard his screams. Later, a fourth man had joined the other assailants. He had a gun. According to L.B.-dze, it was not impossible that that man had someone else with him, as Sandro Girgvliani was a strong man and it would not have been easy to hold him still while they subjected him to the kind of torture indicated by the marks on his body. It was also after that man arrived that the applicants’ son had let out a terrible scream. Sometimes the man in question left Sandro Girgvliani and came over to hit L.B.-dze. As he was being kicked in the face, L.B.-dze had had to cover his face, so he could not see exactly what was happening to his friend and how many men were beating him. 36.     On 30 January 2006 L.B.-dze was released, there being no evidence against him. 37.     On 30 January 2006 some clients of the Café Chardin who had known Sandro Girgvliani were questioned. They said they had witnessed no altercation in the café. 38.     On an unspecified date the investigator in charge of the case asked the mobile phone operators to provide lists of all the numbers which had been in communication on 28 January 2006 from certain antennas in Tbilisi, between midnight and 2 a.m. for some antennas and between 1   and 3.30   a.m. for others. On 31 January and 16 February 2006, the two operators supplied the data concerned in table form. 39.     On 30 January 2006 the investigator found that the crime could have been committed for reasons of personal revenge against L.B.-dze, who had left his wife to live with another woman. The Tbilisi City Court then ordered the monitoring of the telephone conversations of L.B.-dze’s ex-wife and his new wife from 31 January to 1 March 2006. 40.     On 31 January 2006 the investigator requested and obtained from one of the mobile phone operators a list of all the telephone numbers dialled between 10 and 31 January 2006 from the telephone of G.A.-ia, the first Deputy Director of Constitutional Security at the Ministry of the Interior. 41.     When questioned on 31 January 2006, Sandro Girgvliani’s lady friend Th.M.-dze made the same statements as on 13 March 2006 (see paragraphs   98-108 below), except that she did not mention Sandro Girgvliani’s having insulted G.D.-dze. 42.     According to an expert medical report of 31 January 2006, L.B.-dze had numerous bruises on his face and other parts of his body. They were considered light injuries that did not affect his ability to work. 43.     On 6 February 2006 the first applicant was granted civil party status. 44.     When questioned on 16 February 2006, A.K.-dze said that the discussion between Th.M.-dze and Sandro Girgvliani had been calm and she had not noticed whether O.M.-ov had left the café to go looking for cigarettes. The remainder of her testimony was the same as that given on   13   March 2006 (see paragraphs 111-112 below). 45.     D.A.-aia, V.S.-dze, G.D.-dze and T.S.-aia were also heard on   16   February 2006. The statements they made were essentially the same as those they made on 12 March and 20 June 2006 (see paragraphs   113 ‑ 123 below). However, T.S.-aia, the Minister’s wife, said nothing about asking Th.M.-dze if “everything was all right” when she came back to their table after talking to Sandro. 46.     When questioned on 16 February 2006, O.M.-ov said that on the evening of 27 January 2006 he had gone with his friend and hierarchical superior D.A.-aia to the Café Chardin. He had had a drink. He had no recollection of seeing Th.M.-dze change tables. There had been no incident or altercation. He said he had eventually found the cigarettes the Minister’s wife had asked for at an all-night vendor’s near B. supermarket. At about 3   a.m. they had all gone home in good spirits. Other than that, O.M.-ov gave the same account of events as on   22 July 2006 (see paragraph   199 below). 47.     Throughout the month of February 2006 shop assistants, night vendors and caretakers of establishments located on Leselidze street were questioned. None of them had noticed anything of relevance. 48.     On 28 February 2006 recordings made by the surveillance camera at the home of a wealthy businessman located on the road to Okrokana were seized from the head of security at the property, who also worked as a guard at the Ministry of the Interior. The recordings were of the period between 2   and 3 a.m. on 28 January 2006. 49.     On 5 March 2006 the Chief Prosecutor of Georgia, on the basis of “the Ministry of the Interior’s memo of 24 February 2006”, decided to take the case away from the Ministry of the Interior and hand it over to the Tbilisi City Prosecutor’s Office. 50.     According to the criminal case file submitted to the Court, the memo in question was a classified internal document sent by D.A.-aia to the Minister of the Interior. It revealed, inter alia , that D.A.-aia was the person responsible in the Ministry of the Interior for elucidating the important aspects of the case. In the first part of the note D.A.-aia reported the same facts to the Minister as those described by L.B.-dze in his statements concerning the kidnapping and the assault that caused Sandro Girgvliani’s death (see paragraphs 25-28 above). It went on to explain that on the night in question he had been in the Café Chardin himself with a group of friends until 3.30 a.m., celebrating V.S.-dze’s birthday. G.A.-ia, his subordinate, had also been invited by V.S.-dze. According to D.A.-aia, he had spoken to G.A.-ia several times on the telephone from the Café Chardin to find out if he was coming. After confirming that he would be coming, G.A.-ia had informed D.A.-aia around 3 a.m. that he would not be able to make it after all. 51.     In the same memo, D.A.-aia explained to the Minister that on 2   February 2006 a regional manager from his department had informed him that a Mercedes ML that had been seized as evidence in a criminal case was being taken to Kutaisi. D.A.-aia had taken an interest in the vehicle and, on learning that it was a silver Mercedes ML, had decided to question a number of Ministry employees about it. He had thus been able to establish that on 28 January 2006 around 1.30 a.m. the car had left the courtyard of the Ministry with G.A.-ia and two other Ministry staff members, A.A. ‑ uri and A.Gh.-ava, on board. After seeking the necessary information from the mobile phone operator, D.A.-aia had been able to reconstitute G.A. ‑ ia’s movements and to conclude that on the night concerned he had been in the vicinity of the cemetery at Okrokana and had spoken on the phone with M.B. ‑ dze, another Ministry employee. 52.     Lastly, in the same written memo, D.A.-aia informed the Minister that he had asked G.A.-ia if he had been present at the scene of the crime on the night in question. G.A.-ia, strangely unsettled, had denied being there. 53.     According to D.A.-aia, all this seemed to indicate that G.A. ‑ ia, A.A. ‑ uri, A.Gh.-ava and M.B.-dze might have had a hand in committing the crime in question. He asked the Minister to decide what course of action should be taken. 3.     The part of the investigation carried out by the Tbilisi City Prosecutor’s Office 54.     On 6 March 2006 the Tbilisi City Prosecutor’s Office cancelled the decision granting the first applicant civil party status on the ground that only the direct victim of the crime, that is, the son, was entitled to civil party status. As the direct victim in this case was dead, the only standing one of his parents could claim was as his heir. 55.     On 6 March 2006, L.B.-dze, in his civil party capacity, applied to the investigator in charge of the case, stating that he did not need to be assisted by counsel and that he declined the services of the two lawyers assigned to his case. 56.     That same day, L.B.-dze was asked to assist in identifying the presumed perpetrators of the crime, without the assistance of a lawyer. 57.     L.B.-dze identified G.A.-ia, the first Deputy Director of Constitutional Security at the Ministry of the Interior, “without any doubt”, as one of the people who had taken part in his kidnapping and assault at the cemetery in Okrokana. 58.     L.B.-dze identified A.Gh.-ava, a subordinate of G.A.-ia’s, as “possibly being” the driver of the Mercedes ML, but he could not be certain. 59.     L.B.-dze also said that A.A.-uri, another of G.A.-ia’s subordinates, “was probably” the man who had sat next to Sandro Girgvliani in the car. When asked by the prosecutor if he was 100% certain, L.B. said that he could not be 100% sure but that A.A.-uri resembled the man concerned. 60.     Finally, when faced with four unknown persons among whom M.B. ‑ dze, the second Deputy Director of Constitutional Security at the Ministry of the Interior, had been placed, L.B.-dze said that the man next to M.B.-dze could be one of the perpetrators of the crime, but he was not 100% sure. The man’s face and stature resembled the man who had beaten Sandro, who was the one with whom he had had the least contact. 61.     On 6 March 2006 G.A.-ia, A.Gh.-ava and A.A.-uri, but also M.B. ‑ dze, were arrested. 62.     On 6 March 2006 L.B.-dze was questioned as a civil party. 63.     According to the video recording of the interview, the investigator asked L.B.-dze if he wished to be assisted by a lawyer. L.B.-dze said he did not. He then confirmed his previous statements, adding that Sandro Girgvliani had made a phone call to someone from the taxi before suggesting that they stop by the Café Chardin. When they entered the café, L.B.-dze had gone to the toilet and then joined Sandro Girgvliani at a table. By the time Th.M.-dze had joined them at their table, music was playing. Th.M.-dze and the applicants’ son had been sitting quite close to one another, so it had been impossible for him to hear what they were talking about. Anyway, a friend had come to sit and talk to L.B.-dze for 2   to   5   minutes. This last sentence does not appear in the record of the interview included in the case file. According to L.B.-dze, Th.M.-dze and Sandro Girgvliani had not had an argument, but the discussion between them had been tense. 64.     L.B.-dze added that he himself had not had any argument with anyone in the café. He could not say for sure whether Sandro Girgvliani had, as he had left him to go to the toilet. 65.     L.B.-dze explained that when they had left the café, he and Sandro Girgvliani had not crossed the room together, but they had gone out into the street together. That statement does not appear in the record of the interview in the case file. However, the video recording shows that when L.B. ‑ dze said that, the investigator suggested including the following wording in the record, which he dictated himself: “I cannot remember if Sandro and I went out through the café door together. (...) it is possible that I was a little way behind him.” L.B.-dze then added himself that if he remembered rightly, before leaving the café he had gone to the toilet again. The investigator told him to note it down in the record. 66.     In answer to the investigator’s question whether anyone could have followed them as they left the café, L.B.-dze said he did not think so. 67.     Lastly, the investigator asked L.B.-dze if he thought the assailants had intended to kill him with Sandro. L.B.-dze thought they probably had not, considering that they had just abandoned him there, still alive, instead of killing him. 68.     Still on 6 March 2006, L.B.-dze was questioned again, with no lawyer present, about the fourth person who had arrived on the scene later. 69.     L.B.-dze said he could not rule out the possibility that the person concerned had not come alone. It was this man who had fired the shot in the air. In answer to a question from the investigator, L.B.-dze replied that he had indeed been invited by an MP into his office in the Parliament to look at a photograph and say whether he recognised the man in it. L.B.-dze had said that he could not be sure, but he thought the man in the photo “looked just like” the fourth man, who had joined them at the cemetery later. The MP had recorded the procedure, with L.B.-dze’s consent, and as the man in the photo was O.M.-ov, the recording had been made public. To the investigator, L.B.-dze said that the man in the photograph resembled the “fourth man”, but that he could be mistaken. 70.     When questioned on 6 March 2006, G.A.-ia said that he had been at work late on 27 January 2006 in the evening. Before going home, he had decided to stop by the Café Chardin, with A.A.-uri and A.Gh.-ava, to wish V.S.-dze a happy birthday. He had been invited, he explained. To get there, he had taken a Mercedes ML that was parked in the Ministry courtyard, having been impounded as evidence in a criminal case. G.A.-ia explained that he had given A.A.-uri number plates with the number WAW-293 to put on the car. 71.     The three men had stopped the car in Leselidze street near the café. Only G.A.-ia had got out of the car. At the entrance to the café, he found someone he did not know (Sandro Girgvliani) insulting G.D.-dze’s mother. On hearing this, G.A.-ia asked what the problem was. In response, Mr   Girgvliani insulted him too and walked away. G.A.-ia decided to follow him “to find out why he was hurling insults”. He returned to the car and asked A.A.-uri, who was at the wheel, to follow the two men. He also asked his two colleagues if they had their pistols on them, as he thought they might need to make an arrest. When they replied that they were not armed, G.A.-ia called M.B.-dze on the phone and asked him to come and help them and to bring his gun. 72.     A.A.-uri pulled up alongside Sandro Girgvliani and L.B.-dze, and G.A.-ia got out of the car and asked the two men to show their identity documents. Mr Girgvliani asked him in a very disparaging tone who he was. G.A.-ia said they were from the Ministry of the Interior and asked him for his papers again. Sandro Girgvliani and L.B.-dze insulted him again. The discussion grew more heated and A.A.-uri got out of the car and told them to calm down. Sandro Girgvliani pushed him and A.A-uri fell over. According to G.A.-ia, Mr Girgvliani and L.B.-dze told the other men that they could go anywhere they liked and sort things out. They all decided to get in the car and go somewhere else. They drove twice round the main square in Tbilisi, while G.A.-ia tried to understand why Sandro Girgvliani had been insulting G.D.-dze. Then they stopped the car and told Sandro Girgvliani and his friend to get out, but they refused, saying that was no place to talk and they should go elsewhere. So they had gone to Okrokana, and stopped the car near the cemetery. Then they had all got out and started fighting. It was a bright night and there was fairly good visibility. 73.     M.B.-dze had soon come along to assist his colleagues. He had dealt mainly with Sandro. When Sandro Girgvliani had escaped, G.A.-ia had told M.B.-dze not to bother following him. The scuffle had lasted 15   minutes and it must have been 2 a.m. when they left Okrokana. 74.     G.A.-ia also maintained that on the way back from Okrokana he had received phone calls from D.A.-aia and G.D.-dze asking him if he was coming to V.S.-dze’s birthday party (cf. paragraph   154 below). 75.     When questioned on 6 March 2006, M.B.-dze maintained that after receiving a call for help from his superior, G.A.-ia, around 1.30 a.m., he had taken his weapon and gone to the Ministry of the Interior to pick up an official car, thinking that it would be necessary to arrest someone. When he reached Leselidze street he realised his colleagues had gone, so he called G.A.-ia, who told him they were on their way to Okrokana. When he drove there he spotted the Mercedes ML “which he thought his colleagues were using”. He headed towards the cemetery, where the noise was coming from. He found Sandro Girgvliani lying on the ground and L.B.-dze putting up a fight. His colleagues were accordingly concentrating their efforts on L.B. ‑ dze. Sandro Girgvliani had got up again, however, and attacked him. They had started to wrestle. Sandro Girgvliani’s clothes were ripped in the struggle. At one point M.B.-dze thought he saw a knife in Sandro Girgvliani’s hand. He took his gun out and fired into the air. That was when Sandro Girgvliani had taken the opportunity to run away. The struggle had lasted no longer than 15 minutes. 76.     M.B.-dze stated that neither he nor his colleagues had used any sharp weapons, and that he could only assume that, after escaping, Sandro Girgvliani must have injured himself on the wire fencing round the tombs or in the bramble bushes. 77.     When questioned on 6 March 2006, A.Gh.-ava confirmed G.A.-ia’s account of events. He also said that he and his colleagues had identified themselves to Sandro Girgvliani and L.B.-dze as employees of the Ministry of the Interior. He said that Sandro Girgvliani and L.B.-dze had got into the car of their own free will. A.Gh.-ava confirmed, like M.B.-dze, that it had been a clear night and that none of his colleagues had been carrying a knife or any other sharp object. 78.     When questioned on 7 March 2006, A.A.-uri gave exactly the same account as G.A.-ia, A.Gh.-ava and M.B.-dze. As to the origins of Sandro Girgvliani’s wounds, A.A.-uri made the same suppositions as M.B.-dze. 79.     On 7 March 2006 a public prosecutor from Tbilisi City Prosecutor’s Office placed G.A.-ia, A.Gh.-ava, A.A.-uri and M.B.-dze under investigation for wilful bodily harm resulting in death (Article 119 of the Criminal Code) and premeditated false imprisonment by a group of persons with life-threatening violence (Article 143 § 2 (a), (c) and (h) of the Criminal Code). On 8 March 2006 they were remanded in custody. 80.     On 8 March 2006 L.B.-dze, with no lawyer present, was called to identify the “fourth man”, who had arrived last at the cemetery. According to the video recording of this investigative measure, among the four men in the line-up to be presented to L.B.-dze, O.M.-ov took the third position from the left. The public prosecutor then invited L.B.-dze into the room and asked him to look carefully at the four men. L.B.-dze hesitated before saying: “I can’t be 100% sure ... the man must have been bigger, but I don’t know..., I don’t recognise, let’s say, going by the face..., I could say it was the second man from the left, or the third from the left.” The public prosecutor replied: “So you do not recognise any of these four people for sure.” L.B.-dze explained that he did not “recognise anyone for sure, but the two men he had picked out looked like the assailant who had arrived last at the cemetery”. The public prosecutor then invited him to write the report, including sentences he dictated to him: “Among the four individuals presented to me, I am unable to identify anyone as the individual who on   28   January 2006 committed the unlawful acts against me and against Sandro Girgvliani”. The public prosecutor then asked L.B.-dze to start a new paragraph, and L.B.-dze complied. The doubts and resemblances noted by L.B.-dze are not mentioned in the record of the proceedings, which also contains another error: according to the record, O.M.-ov was in the third position from the right, not from the left as seen in the video recording. 81.     When questioned on 8 March 2006, the barman from the Café Chardin explained that the musicians generally played as long as there were still clients in the establishment. A waitress, R.A., said that the percussionist played the bongo drums on Fridays and at the weekend, from 10 p.m. until 2   a.m. On the evening in question R.A. had recognised G.D.-dze and O.M. ‑ ov as soon as they had walked into the café. Even if she would not have been able to hear an argument with all the noise, R.A. could safely say that there had been no trouble at Sandro Girgvliani’s table or at the table where G.D.-dze, O.M.-ov and their friends had sat. One of G.D. ‑ dze’s friends,   whose name she could not recall, had asked her what brands of cigarettes she sold. As she had not had the brand the person wanted, he had gone looking for them elsewhere. 82.     On 8 March 2006 the café’s accountant, a waiter L.M., a waitress and three patrons present in the café were questioned. They all said that there had been no trouble that evening. L.M. said he knew G.D.-dze, who had be