CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 2 avril 2020

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GEORGIA   (Applications nos. 8938/07 and 41891/07 )     JUDGMENT   Art 2 (substantive) • Indiscriminate and excessive use of lethal force during anti-riot operation in prison conducted in uncontrolled and unsystematic manner without clear chain of command • Use of lethal force justified by unlawful violence and risk of insurrection • Authorities’ failure to consider less violent means or possibility of negotiations • Ill-treatment and disproportionate use of force persisting after the end of the operation • Authorities’ failure to provide adequate medical assistance • Government’s failure to account for each of the relevant deaths • Court’s reliance on all material available, including NGO reports, when it is prevented from establishing facts for reasons attributable to State Art 2 (procedural) • Investigation undermined by belated launch, lack of independence and impartiality, insufficient involvement of the deceased’s next of kin and prohibitive delays in proceedings   STRASBOURG   2 April 2020   FINAL   02/08/2020   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Kukhalashvili and others v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Gabriele Kucsko-Stadlmayer,   Ganna Yudkivska,   André Potocki,   Mārtiņš Mits,   Lado Chanturia,   Angelika Nußberger, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 15 October 2019 and 10 March 2020, Delivers the following judgment, which was adopted on the latter date: PROCEDURE 1.     The case originated in two applications (nos. 8938/07 and 41891/07) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Georgian nationals, Ms Sofio Kukhalashvili, Ms   Marina Gordadze and Ms Rusudan Chitashvili (“the applicants”). Ms   Kukhalashvili and Ms Gordadze lodged their application on 26 January, and Ms Chitashvili lodged her application on 14 August 2007. 2.     The applicants were represented by Mr M. Sturua, a lawyer practising in Tbilisi. The Georgian Government (“the Government”) were successively represented by their Agents, Mr D. Tomadze and Mr   L.   Meskhoradze, of the Ministry of Justice. 3.     Relying on Articles 2 and 13 of the Convention, the applicants complained about the deaths of their family members in prison, and of the inadequacy of the investigations subsequently carried out. 4.     On 30 July and 15 October 2007 notice of the applications was given to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A. Background 5.     Ms S. Kukhalashvili (“the first applicant”), Ms M. Gordadze (“the second applicant”) and Ms R. Chitashvili (“the third applicant”) were born in 1977, 1956 and 1938 respectively and live in Georgia. 6.     The first and second applicants are the sister and mother, respectively, of Z.K., a detainee aged twenty-three who died during an armed operation carried out on 27 March 2006 (hereinafter “the anti-riot operation of 27   March 2006”) in Tbilisi Prison no. 5 (“Prison no. 5”) by a special anti ‑ riot squad of the Ministry of Justice (hereinafter “the anti-riot squad”). 7.     The third applicant is the mother of A.B., a twenty-nine-year-old detainee at Prison no. 5 who died during the same operation. 8.     Prior to the anti-riot operation of 27 March 2006, Z.K. and A.B. had been detained in, respectively, cells nos. 81 and 76 of Prison no. 5. 9.     Human Rights Watch (HRW), an organisation which conducted a fact-finding mission in Georgia in May 2006 for the purposes of documenting abuses against prisoners, reported the following on the origins of the riot of 27 March 2006 that took place in Prison no. 5 (see paragraph 110 below): “Much controversy surrounds the exact nature of the disturbance in Tbilisi Prison no. 5. What is clear is that in the very early morning hours of March 27, government authorities arrived at the Republican Prison Hospital to transfer to Tbilisi Prison no.   7   six alleged crime bosses who, according to the government, were attempting to instigate riots in the prison system. People interviewed by Human Rights Watch and others state that these six individuals were beaten during this operation; the government denies that they were ill-treated. As the authorities removed these men from the prison hospital, other detainees began to make noise and burn sheets and other items. This disturbance quickly spread to the nearby Tbilisi Prison no. 1 and Prison no. 5, where many detainees made noise, set fire to linens, escaped from their cells, and barricaded the doors of the prison. Ministry of Justice and Ministry of Interior troops conducted a special operation to end the disturbance in Prison no. 5, resulting in at least seven deaths and numerous injuries.” B.     Facts known to the first and second applicants prior to notice of their application being given to the Government 10.     The first applicant, represented by her lawyer (the same person who represented the applicants in the present case, see paragraph 2 above, hereinafter “the lawyer”), applied to the Prisons Department of the Ministry of Justice (“the Prisons Department”) on 12 April 2006, asking for her brother’s autopsy report and for information about any investigative measure taken in relation to the killing of Z.K. during the anti-riot operation of 27   March 2006. 11.     No reply was received, so the lawyer made the same application on 11   May 2006. He also asked to be informed about the late Z.K.’s status in the proceedings: whether he was a civil party or an accused. 12.     On 15 May 2006 an investigator from the Prisons Department replied to the lawyer, saying that Z.K. did not yet have any status in the proceedings concerned and that the autopsy report could be consulted on the premises. 13.     According to that report, dated 18 April 2006, there was a bullet wound on the right side of Z.K.’s body, behind the armpit, and a bullet wound on the left hip. The first bullet had pierced the ribs and pleura before becoming lodged in the right lung. The second bullet had pierced the left hip from bottom to top, and entered the stomach and damaged the intestines and diaphragm before becoming lodged in and shattering the thorax bone. Severe haemorrhaging that had occurred after these injuries had caused his death. 14.     On 11 July 2006 the lawyer contacted the General Public Prosecutor’s Office (“the GPPO”), challenging the investigator’s reply of 15   May 2006. Observing that nearly four months had elapsed since Z.K.’s death, he requested access to the file and asked to be informed of progress in the investigation. Pointing out that, according to the autopsy report – the only document in his possession – Z.K.’s death had been caused by firearm injuries, the lawyer requested that Z.K. be granted victim status on account of the armed operation of 27 March 2006. 15.     In his reply of 29 July 2006, D.Z., a prosecutor from the GPPO in charge of supervising investigations by the Ministry of Justice, stated that civil-party status could not be granted to a deceased person. Even if a relative of the deceased could be granted such status, this could not happen in Z.K.’s case, because the lethal force used against him had been used by representatives of the State “in a moment of extreme urgency in order to quell the rioting by the prisoners and prevent them from committing crimes”. As Z.K. had therefore not been injured as a result of an unlawful act, there were no grounds under Article 68 § 1 of the Code of Criminal Procedure (“the CCP”) to grant his relatives civil-party status in the case. 16.     On 14 August 2006 the lawyer wrote to the GPPO again, addressing the prosecutors who were hierarchically superior to D.Z., stating that it was important for the first and second applicants to know about the exact circumstances of their family member’s death. The lawyer accordingly requested access to the file and permission to inspect the document concluding that lethal force had been used against Z.K. “in a moment of extreme urgency in order to quell the rioting by the prisoners and prevent them from committing crimes”. 17.     On 17 August 2006 D.Z. refused the request, reiterating his reasoning of 29 July 2006 and adding that persons who were not party to the trial could not inspect material in the case file. 18.     On 24 August 2006 the lawyer applied to Tbilisi City Court on behalf of the first and second applicants under Article 242 § 1 of the CCP, requesting that the reply from D.Z. of 17 August 2006 be declared unlawful, that civil-party status be granted to the first applicant, and that she be given permission to inspect the file. As he received no reply, the lawyer wrote to the Tbilisi City Court again, requesting that his application be examined immediately and in his presence, at a hearing. 19.     Ruling in the absence of the parties on 10 October 2006, the Tbilisi City Court declared the application inadmissible on the grounds that, under Article 242 § 1 of the CCP, only a decision to terminate criminal proceedings or a preliminary investigation, or a refusal to order an expert report could be the subject of an appeal to the courts. That decision was final. 20.     The lawyer appealed nonetheless. He pointed out that the prosecuting authorities’ refusal and the court decision of 10 October 2006 amounted to a violation of Article 2 of the Convention. 21.     On 19 October 2006 the Tbilisi City Court reiterated that no appeal lay against the decision of 10 October 2006. 22.     On 1 November 2006, the lawyer applied personally to the General Public Prosecutor, pointing out that the first applicant was entitled to detailed information about the investigative measures implemented in the case and the evidence gathered that had led to the conclusion that the State had not violated its obligations under Article 2 of the Convention. He observed that, according to the news reported in a number of national newspapers, the force used against the inmates of Prison no. 5 had been excessive. 23.     D.Z. replied on 7 November 2006, repeating the same arguments as those set out in his letter of 29 July 2006 (see paragraph 15 above). C.     Facts known to the third applicant prior to notice of her application being given to the Government 24.     According to a death certificate issued on 30 March 2006 by the relevant office of the Health Ministry, the third applicant’s son died on 27   March 2006 “during the unrest in Tbilisi Prison no. 5” for “reasons unknown”. According to that certificate, numerous bullet wounds had damaged his internal organs and brain. 25.     On 16 February 2007 the third applicant wrote to the Tbilisi city prosecutor’s office saying that, in her view, the use of lethal force against her son had been excessive and unlawful, given the many injuries found on his body. She sought leave to take part in the proceedings and also asked for the documents pertaining to the investigation to be sent to her. The third applicant specified that the interests of her deceased son could not be properly defended without her participation. 26.     As she received no reply, the third applicant reiterated her request on 20   March 2007 before the GPPO, the body which was hierarchically superior to the city prosecutor’s office. 27.     When she still received no reply, the third applicant applied to the Tbilisi City Court on 3 April 2007. Reiterating her arguments of 16   February and 20 March 2007, she complained of the lack of a response from the GPPO, a lack of response that she said that she was challenging under Article 242 § 1 of the CCP. Relying on Article 2 of the Convention, she sought an order that the GPPO grant her leave to take part in the proceedings and send her the documents in the investigation file. 28.     In a letter of 5 April 2007, the Tbilisi City Court replied to the third applicant saying that, in accordance with Article 242 of the CCP, only an order by the public prosecutor’s office to terminate criminal proceedings or a preliminary investigation, or a refusal by an investigator to order an expert report could be the subject of an appeal to the courts. It also reiterated that it did not have power to order the GPPO to grant civil-party status to anyone. 29.     On 1 May 2007 the third applicant applied to the GPPO again, repeating her request of 16 February 2007. 30.     On 15 May 2007 D.Z. (see paragraph 15 above) replied that the third applicant could not claim to have civil-party status in the case because none of the grounds under Article 68 § 1 of the CCP applied. Indeed, “the investigation had established” that lethal force had been used against her son “in a moment of extreme urgency” in order to quell the riot and to prevent inmates from committing crimes. 31.     On 22 May 2007 the third applicant asked the GPPO if she could have access to the documents in the file for the investigation which, according to the letter of 15 May 2007, the authorities had carried out before concluding that the use of lethal force had been necessary. She repeated her request for civil-party status in the case. 32.     On 19 June 2007 D.Z.’s hierarchical superior replied in identical terms to those stated in the letter of 15 May 2007. 33.     On 22 May 2007 the third applicant applied to the Tbilisi City Court, challenging the decision contained in D.Z.’s letter of 15 May 2007 under Article 242 of the CCP. 34.     On 28 May 2007 she received the same reply from the City Court as that of 5 April 2007. D.     Facts and evidence adduced by the Government after notice of the applications being given to them 1.     Criminal investigation no. 073060138 launched against the organisers of the prison riot (a)     Investigation by the Ministry of Justice 35.     On 25 March 2006 the Prisons Department received an “operational briefing” that riots were being prepared in various prisons in the country in an effort to reinstate the authority of criminal bosses. M.Z., P.M. and N.M.   – three criminal bosses or “thieves in law” (see Ashlarba v.   Georgia ,   no.   45554/08, §§ 21-24, 15 July 2014) being held in Tbilisi prison hospital – were the organisers of the riots, and they had instructed Z.V., G.A. and L.Ts. – three makurebelis , influential prisoners overseeing the activities of other inmates (see Tsintsabadze v. Georgia , no.   35403/06, §   43, 15   February 2011), who were being held in the same hospital – to incite all their fellow inmates to deliberately injure themselves so that the prison authority would lose control of the situation. Notably, as there had been a crackdown on the criminal underworld after the “Rose Revolution” (see paragraph 140 below), the three criminal bosses in question hoped that the head of the Prisons Department, B.A., would be held responsible for failing to control the situation in the prisons and dismissed from his post, whereupon the reforms which were under way would be stopped. 36.     After the Prisons Department received the briefing, criminal proceedings were instituted on 25 March 2006 by the Investigations Department of the Ministry of Justice in respect of charges of attempting to disrupt order in prison. On the same day audio and video-recordings were secretly made in the prison hospital (see paragraphs 61 and 86 below). An order was given for security measures to be reinforced in relation to the six above-mentioned detainees – the three criminal bosses and the three makurebelis – being transferred to Tbilisi Prison no. 7 and held in solitary confinement. The transfer was to take place at night “in order to avoid complications”. 37.     Accordingly, during the night of 27 March 2006 B.A, the head of the Prisons Department, and his colleagues went to the prison hospital. The   transfer operation began at 12.45 a.m. Once out of the hospital, the above-mentioned six detainees refused to comply, physically resisting the prison officers and succeeding in inciting the other inmates to rebel in support. The transfer was carried out nonetheless, but the prisoners who remained at the prison hospital continued to riot. They started shouting, setting fire to various objects, forcing windows open, and so on. Upon hearing the noise, the inmates in the adjoining prisons, Prisons nos. 1 and 5, began to riot in turn. 38.     The rioting was particularly bad in Prison no. 5, and required intervention by the anti-riot squad in order for the situation to be brought   under control. During that armed operation seven inmates died, and twenty-two inmates and two prison officers were injured. (b)     Initial investigative measures implemented by the Ministry of Justice (inspection of the scene of the rioting in Prison no. 5) 39.     Between 6.10 and 9.05 a.m. on 27 March 2006 a group of five investigators from the Ministry of Justice carried out an inspection of the scene of the rioting in Prison no. 5. According to the relevant investigation report, the group came out onto the first floor of the prison through a metal door on which the lock had been neither damaged nor forced. They made the following findings in respect of the upper floors. (i)     Second floor – dormitory no. 3 40.     The investigators entered the first corridor of dormitory no.   3   through a metal door that was in working order. In the corridor, they saw iron beds and pieces of wire meshing on the floor. The four cells in the corridor had no doors and they saw prisoners inside them being guarded by armed and hooded officers. The investigators seized two rubber bullet cases (38 mm calibre) found in the corridor. 41.     In the second corridor of dormitory no. 3, dismantled metal beds and doors lay on the floor. Only two out of eleven cells had doors on them, and these were closed. In the cells without doors, the investigators saw prisoners being guarded by armed and hooded officers. The investigators seized six rubber bullet cases (38 mm calibre) found in this corridor. At the end of the corridor a metal door opened out onto the staircase to dormitories nos. 2 and   4. The ground was covered with bits of paper and fragments of metal objects, and four metal doors and an iron bed lay on the ground. According to the report, it was “clear that the prisoners [had] attempted to barricade access to dormitory no. 3 with those objects”. 42.     Of the four cells in the third corridor of dormitory no. 3, two had doors and these were closed. In the cells without doors, the investigators could see prisoners being guarded by armed and hooded officers. In this corridor, rubber bullet cases lay “scattered” on the ground. There were also metal objects on the ground and a dismantled iron bed. (ii)     Third floor – dormitory no. 4 43.     The above-mentioned staircase (see paragraph 41 in fine above) led to the third floor. The metal door to dormitory no. 4 was in place, but did not fully open because of barricades that had been put up behind it. The lock was in working order and did not appear to have been forced. The four cells in the first corridor had no doors. The prisoners there were being guarded by armed and hooded officers. In the corridor, two dismantled iron beds were visible, in addition to mattresses and duvets. The investigators found a pistol (serial number BA7812) with a magazine and four bullets lying in front of cell no. 74a. In front of cell no. 87a, they also found a Magnum pistol (serial number 77311) with a magazine and a bullet, as well as a Valtro Combat pistol with a magazine and two bullets. The investigators also seized bullet cases from automatic weapons, three bullet cases from pistols and fragments of various metal objects. 44.     The eleven cells in the second corridor of dormitory no. 4 were missing doors. The prisoners in those cells were being guarded by armed and hooded officers. Two iron beds and various objects lay on the floor in that corridor. An Adler and a Makarov pistol with a magazine and three bullets were found in front of cell no. 71. A Valtro-2000 pistol and a magazine and three bullets were found in front of cell no. 76. The investigators seized four bullet cases (9 mm calibre), thirty-seven bullet cases from automatic weapons and fragments of various metal objects 45.     Four cells in the third corridor of dormitory no. 4 were missing doors. The inmates in the cells were being guarded by armed and hooded officers. An iron bed and fragments of metal objects were lying on the floor in the corridor. The investigators seized six bullet cases from automatic weapons (9 mm calibre). 46.     At the end of the second corridor of dormitory no. 4, a metal door, which was still in place, opened onto staircases leading to dormitories nos. 3   and 5. Objects of all kinds could be seen in the staircase, including two metal doors and two iron beds. The investigators seized a bullet case (9 mm calibre). (iii)     Fourth floor – dormitory no. 5 47.     The metal door to the first corridor of dormitory no. 5 was in place. Of the four cells in the corridor, one had no door. Inmates in this cell could be seen being guarded by armed and hooded guards. The three other cells were closed. Two dismantled iron beds could be seen in the corridor. 48.     In the second corridor of dormitory no. 5, two out of eleven cells were missing doors. Two dismantled metal beds and various objects could be seen on the floor in the corridor. Rubber bullet cases (38 mm calibre) lay scattered on the floor, and the investigators seized seven of these. 49.     In the third corridor of dormitory no. 5, one cell had no door. The three other cells were closed. (c)     Further investigative measures implemented by the Ministry of Justice 50.     Between 9.30 and 11.15 a.m. on 27 March 2006 two inspectors from the Ministry of Justice inspected the scene of the rioting in Prison no. 1. The damage observed in the corridors of the prison appeared to be less serious than that described above. However, the relevant report indicates that the prison warden’s office in dormitory no. 4, the watchtower of the top floor exercise yard and the upstairs loft had been burnt. 51.     A forensic examination of the body of A.B., the third applicant’s son, was carried out on 27 March 2006. According to the expert who carried out the examination, the body had: four injuries to the left thigh, one of which was a long thin wound and still bloody, and another of which revealed fragments of broken bone; two injuries to a toe on the right foot and a fracture in the same place; two injuries and a fracture to the left elbow; and an injury to the right side of the back. The back injury extended to the pleura and the spine, and entered the skull via the neck. The skull was fractured. A piece of yellow metal was removed from the skull and “sent to the investigating authorities”. There were numerous red lesions on the lower back, the nose, the forehead, around the left eye and on the left hand, and the right nostril was torn. The internal organs were examined. It was established that various types of alcohol were present in the blood. The expert concluded that death had occurred between six and eight hours before the autopsy, and had been caused by numerous firearm injuries. The bullets had damaged the internal organs and the spine and had caused broken bones. With regard to the many red lesions observed on the body, the expert concluded that they had been sustained when A.B. had still been alive and had been caused by a blunt object or blunt objects. 52.     Two prison officers were injured during the anti-riot operation of 27   March 2006 – K.M. and M.S., heads of two dormitories, who participated in the operation. According to medical reports of 30 March 2006, K.M. presented a non-perforating wound to the left forearm, caused by a firearm, whilst M.S. had a perforating wound to the thigh, also caused by a firearm. The injury sustained by M.S. was classified as a minor injury resulting in him being unfit to work for a short period of time. 53.     In the course of the investigation in the case, evidence from various prison officers was heard, and the officers made the following statements. (i)     Statements of K.M. and M.S., two injured prison officers 54.     K.M. (see paragraph 52 above) was questioned on 5 April 2006 and his version of events was as follows. He was on duty in Prison no. 5 during the night of 26-27 March 2006 and after 1 a.m. a colleague informed him that a disturbance had started at the prison hospital. He immediately informed the deputy director of the Prisons Department, who left for the hospital. K.M. himself went to Prison no. 5 to reinforce the outside security arrangements and prepare for a possible attempted breakout. Shortly afterwards the disturbance spread to Prison no. 5. Amongst the shouting and noise, the prisoners were throwing burning mattresses, sheets and clothes out of the windows. Prison officers and police officers arrived. A while later the directors of the Prisons Department also arrived. K.M. went up onto watchtower no. 1, from where one could see into Prison no. 5, and observed that the inmates were moving freely about the building and even trying to get out. The roof of Prison no. 1 caught fire. The police drove a car equipped with a loudspeaker into the yard of Prison no. 5 to address the inmates. Each appeal for calm was greeted by louder noise from the inmates. The Prisons Department then urgently summoned all off-duty officers. Security was reinforced on every watchtower around the prison. At the same time firefighters and the anti-riot squad of the Ministry of Justice arrived. The anti-riot forces were deployed at a distance of 30-40 metres from the building, as burning objects and metal objects were falling from the windows. During that time the President of the Parliamentary Human Rights Committee spoke to the inmates through a loudspeaker, appealing for calm. 55.     At one point the governor of Prison no. 5 came to tell K.M. that he was going to go into the prison to talk to the inmates. K.M. and M.S. (see paragraph 52 above) decided to go with him. They could not gain access to the dormitories through the main entrance, as the door was blocked from the inside. They therefore used a back door. When they got to the first floor the officers of the anti-riot squad were already there. It was relatively calm on the first and second floors, but loud noise could be heard coming from the third floor (dormitory no. 4), to which they had no access as the door had been barricaded from the inside. They therefore went up to the fourth floor before going back down to the third floor and using another door to get to dormitory no. 4. The prison governor, who was first in line, was followed by K.M., M.S. and several other prison officers, who were themselves followed by anti-riot officers. Unlike the anti-riot officers, the prison officers were not armed and were not carrying truncheons or wearing hoods. K.M. and the governor were wearing black uniforms, and M.S. was in civilian clothes. The group entered the corridor, with the governor appealing to the inmates for calm and explaining that the old prison building might collapse and kill thousands of people. When the group turned right in the corridor, they were confronted with barricades. The prison officers attempted to dismantle them, but the inmates started throwing pieces of brick and iron in their direction. The anti-riot officers then fired rubber bullets. In response, five or six shots rang out very close by. M.S. fell down. Other shots rang out and K.M. felt his arm go warm. He did not realise that he had been injured until he was out in the prison yard. When M.S. and K.M. were injured, the anti-riot squad passed in front of them, shouting that some of their men had been injured, and opened fire with their automatic weapons. 56.     When giving evidence on 11 April 2006, M.S. said that as the appeals for calm issued in the prison yard had been unsuccessful, a decision had been taken to “take the prison by storm”. Apart from that, he related the same facts as K.M. Unlike G.P. (see the following paragraphs), M.S. stated that he had not seen in which direction the anti-riot officers had fired their automatic weapons. (ii)     Statements of the governor of Prison no. 5 57.     G.P., the governor of Prison no. 5, gave evidence on 7 April 2006. According to him, at approximately 2.15 a.m. on 27 March 2006 inmates at his prison started a disturbance, following the unrest in the prison hospital. Considering that the disturbance could spread throughout the prison, he telephoned B.A, the head of the Prisons Department, to tell him that he did not have the means to bring the situation under control alone and was therefore declaring a state of emergency in the prison and requesting assistance. While waiting for help, G.P. decided to allow the guards of all the dormitories to leave their post, close the doors of their dormitories and the entrances to the building, and distribute weapons to their officers. The security around the prison was reinforced to bar any escape attempt. In the meantime, the inmates had succeeded in getting out of their cells and were freely circulating in the corridors of the dormitories. Burning objects and pieces of brick and iron were falling from the windows. The anti-riot squad, B.A., firefighters and the police arrived. At about 2.45 a.m. the decision was taken to take the prison by storm. G.P. then suggested to his deputies and other colleagues that they should get ahead of the anti-riot squad in order to avoid the members of the squad having direct contact with the inmates. He hoped that once they saw familiar faces, the inmates would become more compliant. The prison officers opened the main door and entered the building, accompanied by the anti-riot officers. The lower floors of the prison were empty. The entrance to the third floor (dormitory no. 4) was barricaded. The prison officers started to take down the barricades. While doing so, G.P. appealed to the inmates on the other side of the barricades for calm. In reply, the inmates swore at them, throwing pieces of brick and iron, whereupon the anti-riot officers fired rubber bullets at them. In response, four or five shots rang out on the inmates’ side and M.S. fell down. K.M. was also injured. G.P. and a member of the anti-riot squad took M.S. out of the corridor. At that moment the anti-riot squad, who were positioned in the stairway, moved into the corridor and opened fire using their automatic weapons. According to G.P., the officers aimed at the ceiling and the walls. The inmates scattered and returned to their cells. (iii)     Statements of the dormitory guards of Prison no. 5 58.     When questioned on 8 April 2006, R.O., the guard of dormitory   no.   3, gave the same description of the general situation as the other above-mentioned prison officers. He stated that he had been told by his colleagues from dormitories nos. 4 and 5 that five inmates, including A.B. (the third applicant’s son), had been behaving particularly aggressively and had been seen destroying the cells. 59.     When giving evidence on 8 April 2006, Z.D., the guard of dormitory no. 4, stated that on 27 March 2006 the nineteen cells of the dormitory had housed 900 inmates. He explained that guards such as himself were never armed and, moreover, did not have the keys to the dormitories where they were shut in with the inmates. The doors to the dormitories were locked from the outside after each round. That was why when the riot had broken out in dormitory no. 4, which housed the “toughest” inmates, his life had been in danger. Z.D. said that when he had gone on duty at 8 p.m. on 26   March 2006 he had checked all the locks on the cell doors. At about 1.30 a.m. he had heard noises coming from the prison hospital. The inmates had been shouting “they’re duffing up the [criminal] bosses!” and urging all the prisoners to riot. A few seconds later the inmates of dormitory no. 4 had started banging on their cell doors. Z.D. had had the impression that they were using iron beds or tables to force open their cell doors which opened onto the corridor. In about five minutes the guard from dormitory no. 2 had come to open the door to let Z.D. out. They had closed the door behind him from the outside. Z.D. explained that all the cell doors were made of wood reinforced with metal sheets. The door frames were also made of wood. These old doors could only be locked with padlocks, and it was not difficult to break them down. Z.D. stated that in dormitory no. 4 two inmates from cell no. 76, A.B. (the second applicant’s son) and G.Dj., and an inmate from cell no. 78, K.Q., had been the first to start rioting following the rioting that had started in the prison hospital. They had been the first to break the window bars in their cell doors before putting their heads out and urging the prisoners to riot. (d)     Charges against the organisers of the prison riot and the transfer of the case to the prosecuting authority 60.     The investigative measures detailed above gave rise to charges being filed against M.Z., P.M. and N.M., the three criminal bosses or “thieves in law”, and against Z.V., G.A. and L.Ts., the three makurebelis who were subordinate to the bosses (hereinafter “the six riot organisers”, see paragraph   36 above). Those charges were filed on 13 April 2006. 61.     According to an expert report issued on 4 May 2006, a secret video ‑ recording of a meeting between several organisers of the riot lasted about twenty-five minutes and showed no signs of having been edited (see paragraph 36 above). According to a transcript of the intelligible parts of the conversation, the organisers agreed that they would lie by saying that during an inspection the prison officers had started beating them. They would then ring the emergency number for prisoners’ rights and various NGOs and journalists, so that the following day there would be twenty-four-hour reports on a television channel renowned for its criticism of the authorities. This would, they said, allow them to “get on their feet again”. It was not possible to decipher the rest of the conversation because of substantial background noise. 62.     By a decision of 19 May 2006 the GPPO decided to relieve the investigators of the Ministry of Justice of the criminal case. The decision does not state the reasons for the transfer of the case. However, the following information is mentioned. After hearing the appeals for calm by the prison officers who preceded the anti-riot squad in the corridor, the prisoners “came towards [the prison officers and the anti-riot squad]”, “which obliged the anti-riot forces to fire rubber bullets”. The inmates responded to those shots with “a number of” shots, injuring two prison officers. “The decision was then immediately taken to open fire in response. Following a mutual exchange of shots, seven inmates died and twenty-two were injured.” After that, “the situation returned to normal and the inmates returned to their cells and stopped resisting the officers.” This also had a positive effect on the inmates of Prison no. 1, who calmed down without any recourse to force being necessary. 63.     According to a ballistics report of 25 May 2006, two of the six pistols seized on 27 March 2006 (see paragraphs 39-49 above) with magazines and seven bullets were Makarov pistols (9 mm calibre); one had no serial number and the other was numbered BA7812. The weapons had been used since they had last been cleaned. The seven bullets were projectiles for Makarov or Stechkin-APS pistols. Eight 9 mm cases corresponded to the Makarov and Stechkin-APS bullets; four of these had been fired by the Makarov with no serial number, two others by the Makarov BA7812, and the two last ones by an unidentified Makarov. The four other pistols seized were special defence weapons (9 mm calibre) for blank cartridges, rubber bullets, or gas or lead bullets. These weapons were in working order and had been used since they had last been cleaned, since traces of powder had been found in the barrels. Three bullets (9 mm calibre) found with one of the weapons were usable in one of the weapons; two of them were rubber bullets and the third an irritant (CS gas). 64.     By a decision of 21 June 2006 an investigator from the GPPO noted that part of the case – the part relating to the six riot organisers – was ready and should be set down for trial. However, in his view, it was necessary to verify whether the order to open fire on the inmates had been lawful. He therefore decided to sever the aspects relating to a possible abuse of power by the prison and law-enforcement officers from the criminal case relating to the six organisers of the riot, and to open a new case in order to investigate that possible charge (see paragraphs 76-84 below). According to the statement of facts given in that decision, on 27 March 2006 there was a risk of a breakout by the inmates of Prison no. 5 and a danger to the prisoners’ lives on account of the fire that had been started. While the prison officers forming a barrier between the anti-riot squad and the inmates were appealing for calm, the prisoners “were throwing pieces of brick and iron at them”, “which was why the anti-riot squad fired rubber bullets at the inmates”. The inmates responded by firing “Makarov and gas pistols”, slightly injuring two prison officers. Despite “subsequent attempts by the prison officers and the anti-riot officers to quell the violence”, the prisoners continued “firing their two Makarov [pistols] and four [other] pistols”, which “obliged the anti-riot forces to open fire”. This meant that the situation could be brought under control. 65.     By a decision of 23 October 2006 the GPPO decided to sever the case relating to the deaths of Z.K. and A.B. from the case concerning possible abuse of power by the law-enforcement officers (see paragraph 64 above and paragraphs 76-84 below), in order to determine the causes and circumstances of their death (see also paragraph 85 below). In that new case, criminal proceedings for murder were instituted (an offence prosecuted under Article 108 of the Criminal Code). 66.     In the meantime, the six riot organisers had been committed for trial. 67.     On 22 January 2007 B.A., the head of the Prisons Department, was questioned by the GPPO within the framework of the criminal case directed against the six riot organisers. The record of the interview states that at approximately 1 a.m. on 27 March 2006 B.A. went to the prison hospital after learning that a riot was being fomented (see paragraph 57 above). At 1   a.m. he reported to the Minister of Justice that the six riot organisers had physically resisted prison officers while being transferred, that they had urged the other inmates to rebel, and that the situation had degenerated. He described the conduct of the inmates who had started rioting, informed the minister that they had started a fire, and suggested that there was a risk of a breakout. On the basis of that information, a state of emergency “was declared” by the Ministry of Justice, in accordance with a ministerial order of 12 February 2001 (“order no. 60”), and a crisis unit composed of the Minister of Justice, two Deputy Ministers of Justice and B.A. himself was “set up”. The Minister of Justice went to Prison no. 5 to examine the situation and hear B.A.’s explanation. According to B.A., when appeals for calm issued by the Ombudsman, the President of the Human Rights Parliamentary Committee, police officers and prison officers were unsuccessful, and when the fire that had been started in “Prison no.   5   took hold”, the lives of 4,000 prison inmates were in danger, and the risk of a massive prison breakout became real. A decision was then taken to intervene. 68.     With regard to the conduct of the inmates of Prison no. 5 and the order in which shots were heard on both sides, B.A. related the same facts as K.M. and M.S. (see paragraphs 54-56 above). According to B.A., once K.M. and M.S. were injured, the situation “spiralled out of control”. In his view, the likelihood of a massive breakout and the death of inmates in the fire increased. The crisis unit then decided to order the anti-riot squad to “take all necessary measures in accordance with the law to reinstate order, and if necessary use firearms within the statutory limits in force”. Following the measures taken, and “with the use of firearms”, according to B.A., “the mass disorder and insurrection by the prisoners were quelled” by about 4   a.m. The damage suffered by the Prisons Department amounted to 50,737 Georgian laris (GEL – approximately 16,500 euros (EUR)). In answer to the only question asked by the investigator, B.A. replied that in similar situations the crisis unit acted in accordance with the rules on detention and weapons, order no. 60, the joint action plan of January 2003, and the rules governing anti-riot forces (see paragraphs 96-107 below). (e)     Trial stage of the case brought against the six riot organisers 69.     Between February and March 2007 the Tbilisi City Court held several trial hearings in the case brought against the six riot organisers. The following witnesses were heard by the trial court. 70.     B.A, the head of the Prisons Department, when giving evidence in court, said that once he had been informed by the hospital authorities that the six riot organisers had been taken away and were waiting in the corridor for their transfer to Tbilisi Prison no. 7, he had ordered them to be put in a van parked in the hospital yard for that purpose. He claimed that none of them had been taken to the hospital director’s office (compare paragraphs   71-73 below). A few minutes later B.A. had been informed that the inmates in question were refusing to be transferred. At the same time, rioting could be heard. He had then summoned the anti-riot officers, who had formed a corridor along which the six inmates had passed before being transferred. With regard to the remaining events, he related the same facts as those recounted on 22 January 2007 (see paragraph 67-68 above). 71.     Z.V. and G.A., two of the six riot organisers (see paragraph 35 above), claimed before the court that on the night of 27 March 2006 they had been woken by a guard who had summoned them to the hospital director’s office for a meeting with B.A. In that office they had met B.A., who had been accompanied by the prison governor of Prison no. 7, a number of people wearing hoods, P.M. (another co-accused), and several prison officers, one of whom had been filming the meeting. B.A. had questioned Z.V. and G.A. “about the date [of the meeting between the organisers of the riot]”. The two inmates had replied that “they could not remember”. B.A. had then struck G.A., who had hit him back. The people wearing hoods had then started kicking and punching Z.V. and G.A. and beating them with their truncheons and the barrel of their guns. The two inmates had been unconscious when they had been transferred to Prison no. 7, where they had been beaten again. 72.     L.Ts., another of the six riot organisers, stated that, having been woken by a guard, he had been summoned to the hospital director’s office. He had seen a lot of people in the corridor and anti-riot officers, who had started beating him with their truncheons. At the same time Z.V. and G.A. were being beaten in the hospital director’s office (see the preceding paragraph). After being transferred to Prison no. 7 at the same time as the other two inmates, L.Ts. had been stripped naked and again kicked, punched and beaten with a truncheon. According to L.Ts., he and Z.V. had had marks on their body as a result of the violence, and G.A. had had such marks on his face. 73.     The director of the prison hospital stated before the court that with the aid of informers among the inmates, he had learnt that a riot was being prepared. He had informed B.A. accordingly, who on 27 March 2006 at about 1 a.m. had come to the hospital and ordered the director to bring the six riot organisers to the director’s office, with a view to transferring them. When the trouble had started, B.A. had summoned thirty members of the anti-riot squad to assist with the transfer. The anti-riot officers had not stayed at the hospital because the situation there had quickly returned to normal. They and B.A. had gone to Prisons nos. 1 and 5, which had also started to have problems. 74.     By a judgment of 2 April 2007 the Tbilisi City Court convicted M.Z., Z.V., G.A. and L.Ts. of refusing to obey the lawful orders of prison officers, disrupting order in prison, and assaulting prison officers or creating a group for that purpose and actively participating in that group (Article 378 §§   1 and 3 of the Criminal Code). They were sentenced to   six   years’ imprisonment each. N.M. was sentenced to seven