CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 18 septembre 2018

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s7E985A65 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; font-size:1pt } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s39A7D870 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s98B27CD7 { font-family:Arial; font-weight:bold; color:#1f497d } .s4B243ECC { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; page-break-inside:avoid; page-break-after:avoid } .s959B95E9 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sF7A4323 { margin-top:36pt; margin-bottom:0pt; text-align:left } .s88036C24 { width:29.79pt; display:inline-block } .s4ABA8125 { width:197.98pt; display:inline-block } .sAFF36EC2 { width:18.78pt; display:inline-block } .s6C2D746E { width:198.98pt; display:inline-block }     FIFTH SECTION DECISION Application no. 4800/10 Aza SHAVLOKHOVA against Georgia   The European Court of Human Rights (Fifth Section), sitting on 18   September 2018 as a Committee composed of:   André Potocki, President,   Mārtiņš Mits,   Lado Chanturia, judges, and Milan Blaško, Deputy Section Registrar, Having regard to the above application lodged on 18 January 2010, Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant, Having deliberated, decides as follows: THE FACTS 1.     The applicant, Ms Aza Shavlokhova, is a Russian national, who was born in 1958 and lives in Tskhinvali, South Ossetia, Georgia. She was represented before the Court mainly by Ms N. Katsitadze, Ms T. Abazadze and Ms N. Jomarjidze, lawyers practising in Tbilisi. 2.     The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice. The Russian Government did not wish to intervene as a third party. 3.     The facts of the case, as submitted by the parties, may be summarised as follows. A.     The circumstances of the case 4.     On 27 March 2006 the applicant’s son, A.T., was killed during the quelling of a prisoners’ riot in Tbilisi Prison no. 5 (hereinafter referred to as “the prison riot” and “the Tbilisi prison”) by law-enforcement agents of the Ministry of Justice, the authority in charge of the penal system at the material time. A.T. had been detained on remand in that prison in relation to a criminal case initiated against him for theft. According to reports of various non-governmental organisations, seven inmates, including the applicant’s son, were killed during the prison riot, whilst seventeen others received bodily injuries. 5.     On 17 July 2007 the applicant, who was represented by a qualified lawyer who was practising in Tbilisi, enquired for the first time with the General Public Prosecutor’s Office (“the GPPO”) whether a criminal investigation had been launched into the lawfulness of the actions of the law-enforcement agents during the prison riot. In the affirmative, the lawyer asked whether the applicant could be considered as a victim in the relevant criminal proceedings. 6.     In reply, the GPPO informed the applicant, by its resolution dated 13   August 2007, that a criminal case had been launched and was pending before a court of appeal against a number of inmates of the Tbilisi prison for complicity to disobey lawful orders of the prison administration and commit violence. The prosecution authority further stated that the applicant could not be considered a victim as, despite her son’s death, it was established that the law-enforcement agents had not exceeded the limits of the permissible use of force during the quelling of the prison riot. Since there were no grounds to consider that A.T.’s death had been caused by the agents’ wrongful actions, neither the deceased nor his family member could therefore be deemed a victim within the meaning of Article 68 § 1 of the Code of Criminal Procedure (“the CCP”) (see paragraph 14 below). 7.     On 2 October 2007 the Registry of the Tbilisi Court of Appeals confirmed to the applicant that the criminal case mentioned in the prosecutorial resolution of 13 August 2007 related exclusively to the charges pressed against various inmates of the Tbilisi prison implicated in the alleged instigation of the prison riot. That case did not concern the circumstances surrounding her son’s death in any way. 8.     On 22 January 2008 the applicant’s lawyer again enquired with the GPPO whether a criminal investigation into A.T.’s death had been launched. In the affirmative, the lawyer requested that the applicant be involved in the proceedings as a victim. 9.     The GPPO replied by a resolution dated 27 February 2008. That resolution repeated word for word the previous resolution of 13   August 2007. Notably, without clearly answering whether a criminal case into her son’s death had ever been launched, the GPPO merely stated that the   applicant was not entitled to victim status because it was established that the law-enforcement agents had not exceeded the limits of the permissible use of force during the quelling of the prison riot. 10.     On 8 April 2008 the GPPO addressed a third resolution to the applicant in reply to her further query dated 11 March 2008. The wording of that third resolution was absolutely identical to the two previous ones (see paragraphs 6 and 9 above). 11.     On 25 November 2008 the GPPO issued a fourth resolution in reply to the applicant’s additional query of 22 November 2008. The text of that resolution slightly differed from the three previous ones in so far as it acknowledged, for the first time, that a separate criminal investigation had been launched into the alleged excessive use of force by the law ‑ enforcement agents during the prison riot of 27 March 2006. Otherwise, the resolution of 25   November 2008 repeated word for word the previous reasons as to why the applicant could not validly be considered a victim (see paragraphs 6, 9   and 10 above). The resolution of 25 November 2008 was served on the applicant’s lawyer on 28 November 2008. 12.     On 16 July 2009 the applicant’s lawyer enquired again with the GPPO whether a criminal case into A.T.’s death had been opened, whether the actions of the law-enforcement agents during the prison riot disclosed signs of a criminal offence and, in the affirmative, whether his client was entitled to victim status under Article 68 § 1 of the CCP. 13.     By a letter of 18 July 2009, the GPPO confirmed to the applicant’s lawyer that a criminal investigation into the alleged excess of the use of force by the law-enforcement agents had been pending. No further details were given. B.     Relevant domestic law 14.     According to Article 68 § 1 of the CCP, as that provision stood at the material time, an individual who sustained direct injury as a result of a criminal offence was to be granted victim status in the relevant criminal proceedings. 15.     Pursuant to Article 242 § 2 of the CCP, as that provision stood at the material time, the right to appeal against any decision taken by an investigator or prosecutor within the framework of a particular set of criminal proceedings was exclusively reserved for a person formally representing a party to those criminal proceedings, such as a suspect, an accused, a victim, a civil plaintiff or a civil respondent, or his/her legal representative. COMPLAINTS 16.     The applicant complained under Articles 2, 3 and 13 of the Convention about the excessive use of force by the law-enforcement agents during the prison riot of 27 March 2006, which had resulted in her son’s death, and the lack of an effective criminal investigation in that respect. THE LAW 17.     The applicant complained about the killing of her son by State agents and the relevant authorities’ failure to investigate the incident. She relied on the following provisions of the Convention: Article 2 “1.   Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” (...) Article 3 “No one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Article 13 “Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” A.     The parties’ submissions 18.     The Government objected, amongst other things, that the applicant had failed to demonstrate due diligence and take the appropriate initiative to lodge her application with the Court with due expedition as required by the six-month rule laid down in Article 35 § 1 of the Convention. They stressed in that connection that the applicant had never requested the initiation of a criminal investigation into her son’s death. What she had done was merely to enquire with the authorities as to whether they had done so of their own motion, and even that had been done almost sixteen months after the relevant life-taking incident (see paragraphs 4 and 5   above). In reply to the applicant’s belated query, the prosecution authority had informed her, by its resolution of 13 August 2007, that she had not been entitled to victim status because her son’s death had not been imputable to the law-enforcement agents’ criminal actions. Having received such a reply, the applicant should have realised that there was no effective domestic investigation and lodged her application with the Court within the following six months. However, the present application had been lodged as late as 18   January 2010. 19.     The applicant first replied that it was the respondent State’s own duty to open a criminal case and conduct an effective investigation when large-scale violent incidents, such as the prison riot in the present case, occur. She further stated that the reason why she had enquired about the existence of a criminal investigation into her son’s death with a delay was that she lived in South Ossetia, a conflict-stricken region of Georgia, and that her geographic situation had prevented her from communicating properly with the central authorities. The applicant disagreed that the prosecutorial resolution of 13 August 2007 should be taken as the starting point for the purposes of the six-month rule because that resolution contained bare assertions only, and she had thus been entitled to seek for additional explanations from the GPPO. Furthermore, it did not transpire from the resolution of 13 August 2007 that a criminal case into her son’s death had ever been launched. She obtained confirmation of the latter fact much later. Notably, the first time she had learnt about the existence of a criminal investigation into her son’s death was the prosecutorial resolution of 25   November 2008 (see paragraph 11 above). Thus, it was with the latter resolution that she had realised for the first time her inability to obtain victim status in relation to the criminal case relating to her son’s death. 20.     The applicant emphasised that the resolution of 25 November 2008, which was nothing more than a decision on rejecting her request for victim status, had resulted in her total exclusion from the relevant proceedings. Indeed, without that procedural standing, she could neither enquire about the progress in the investigation, nor request case materials, nor exercise any other procedural right. She further considered that that decision, together with all the preceding, similarly worded resolutions, had contained findings that clearly excluded the State agents’ responsibility for her son’s killing. Nevertheless, the applicant maintained that she had still acted with the requisite due diligence at domestic level. Given the large scale of the prison riot of 27 March 2006, where seven prisoners were killed, it was reasonable to have waited longer for the results of the investigation, if any, before applying to the Court. In the particular circumstances of the present case, the applicant claimed that the six months should be calculated from the GPPO’s most recent letter dated 18 July 2009 (see paragraph 13 above). B.     The Court’s assessment 21.     The Court reiterates that, pursuant to the principle of legal certainty, which is a cornerstone of the six-month rule contained in Article 35 § 1 of the Convention, a victim of an action allegedly in contravention of Articles   2 and 3 of the Convention must take steps to keep track of the relevant criminal proceedings or lack thereof, and to lodge his or her application with due expedition once he or she becomes, or should have become, aware of the lack of any effective criminal investigation   (see, amongst many other authorities, Akhvlediani and Others v.   Georgia   (dec.), no.   22026/10, §§ 23-29, 9 April 2013; Manukyan v.   Georgia   (dec.), no.   53073/07, 9   October 2012; Ekrem Baytap v.   Turkey   (dec.), no.   17579/05, 29 April 2010; Mađer v. Croatia , no. 56185/07, § 84, 21   June 2011; Stanimirović v.   Serbia , no.   26088/06, §   29, 18   October 2011; Nasirkhayeva v. Russia (dec.), no.   1721/07, 31 May 2011; and Finozhenok v.   Russia (dec.), 3025/06, 31   May 2011). Where time is of the essence for resolving an issue in a case, there is a burden on the applicant to ensure that his or her claims are raised before both the relevant domestic authorities and the Court with the necessary expedition to ensure that they may be properly and fairly resolved (see amongst others, Bayram and Yıldırım v.   Turkey   (dec.), no. 38587/97, ECHR 2002-III, and Aydin and Others v.   Turkey   (dec.), no. 46231/99, 26   May 2005). Indeed, with the lapse of time, memories of witnesses fade, witnesses may die or become untraceable, evidence deteriorates or ceases to exist, and the prospects that any effective investigation can be undertaken will increasingly diminish, and the Court’s own examination and judgment may be deprived of meaningfulness and effectiveness (see Varnava and Others v.   Turkey   [GC], nos.   16064/90 and 8   others, § 161, ECHR 2009). 22.     The Court observes that the prison riot, during which the applicant’s son was killed, occurred on 27 March 2006, whereas the applicant expressed her interest towards the investigation for the first time as late as 17 July 2007. Thus, according to the case file for almost sixteen months she did not show any interest in having the cause of her son’s death elucidated or to be involved as a victim in a criminal investigation at domestic level, despite the fact that she was never contacted by the authorities throughout this long period (compare with very similar factual situations in the cases of Manukyan , the decision cited above, § 30, and Akhvlediani and Others , the decision cited above, § 25, see also Deari and Others v. “the former Yugoslav Republic of Macedonia” (dec.), no.   54415/09, 6 March 2012). The applicant justified that significant period of inactivity by making reference to the purported difficulties in her communication with the central authorities (see paragraph 19 above). However, the Court does not find that explanation convincing as, even if she lived in a conflict-stricken and remote region of Georgia, her interests had always been represented by the lawyer practising in the capital city (see paragraph 5   above). Whilst, as the applicant argued, the relevant domestic authorities might have been expected, given the scale of the violent incident, to launch of their own motion an investigation into the law-enforcement agents’ actions during the prison riot (see paragraph 19 above), this consideration could not have relieved the applicant of her own, individual obligation, which follows from Article   35 §   1 of the Convention, to undertake elementary steps and seek information from the relevant authorities about the investigation’s progress or the lack thereof in a timely manner (compare with, amongst many others, Bayram and Yıldırım , the decision cited above, and also Gasyak and Others v.   Turkey , no. 27872/03, § 58, 13 October 2009). 23.     Moreover, the Court observes that, in its first reply to the applicant’s query, the prosecution authority clearly advised her, as early as 13   August 2007, that she could not obtain victim status in an investigation concerning her son’s death. The authority went as far as clearly excluding criminal liability of the law-enforcement agents for the death of the applicant’s son. The Court considers, in line with the applicant’s own acknowledgement of these procedural shortcomings (see paragraphs 6 and 20 above), that such a reply, which represented a formal prosecutorial decision, not only deprived her of any real chances to be involved in an investigation into the causes of her son’s death but, what is more, undermined the eventual effectiveness of any such investigation by prejudging its outcome. As the applicant, who was not a party to the proceedings, was not entitled to appeal against that prosecutorial decision (see paragraph 15 above and compare, for instance, with Sidiani-Aprasidze v. Georgia (dec.) [Committee], no.   32220/07, §   20, 10   March 2015), she should have immediately become aware, in the light of that decision, of the futility of any further wait for a possible change in the authority’s position and lodged her application with the Court without undue delay. 24.     Instead, the applicant chose to continue making repeated, identical enquiries with the prosecution authority, without referring to any significant new developments, in reply to which the said authority issued, on 27   February, 8 April and 25 November 2008, three additional resolutions. Those resolutions represented mere templates, mostly paraphrasing the wording of the original one of 13 August 2007, without providing any other valuable information. The applicant’s contact with the GPPO after 13   August 2007 had the mere effect of the authority undertaking worthless activities at regular intervals (compare with Manukyan , the decision cited above, § 32). Even assuming that, as the applicant has suggested, for the purposes of bringing her application, it was important for her to first hear from the domestic authorities that a criminal investigation into her son’s death had been launched, the Court notes that such an indication was contained in the latest prosecutorial resolution dated 25   November 2008. That resolution was served on the applicant on 28   November 2008 (see paragraph 11 above) but that fact did not prompt her to lodge her application with the Court within the following six months. 25.     Finally, having regard to the circumstances of the present case, the Court cannot discern any valid reason as to why it should accept the applicant’s unsubstantiated assertion that the six-month rule ought to be calculated necessarily from the GPPO’s latest letter of 18 July 2009. It cannot be excluded that the applicant’s reference to that letter might have been an attempt to justify her lack of due diligence at domestic level in order to become eligible to bring her application to the Court under Article   35 § 1 of the Convention. However, this can hardly be considered to be compatible with the principle of legal certainty (compare with, as a recent authority, Parjiani v. Georgia (dec.) [Committee], no. 57047/08, §   35, 15 May 2008, and see also Akhvlediani and Others , the decision cited above, § 27). In view of the above-mentioned, the Court concludes that, irrespective of any time-limits that might be envisaged by the relevant national law for bringing criminal complaints about violence committed by State agents (see Akhvlediani and Others , cited above, § 28, and Subari and Kobidze v. Georgia (dec.) [Committee], no. 37678/10 and 37789/10, §   14, 27 May 2014), the unexplained inactivity of the applicant at domestic level fell foul of the major purpose of the six-month rule (see also Baybora and Others v. Cyprus (dec.), no. 77116/01, 22 October 2002). 26.     It follows that the present application has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 11 October 2018.   Milan Blaško   André Potocki   Deputy Registrar   President