CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 14 décembre 2023

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GEORGIA (Application no. 8827/19)         JUDGMENT   STRASBOURG 14 December 2023           This judgment is final but it may be subject to editorial revision.   In the case of Vladimer Mtchedlishvili v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Stéphanie Mourou-Vikström , President ,   Lado Chanturia,   Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   8827/19) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 24 January 2019 by a Georgian national, Mr Vladimer Mtchedlishvili (“the applicant”), who was born in 1980 and lives in Sighnaghi, Georgia and who was represented by Ms   T. Samkharadze, Ms A. Nasrashvili and Ms S. Verdzeuli, lawyers practising in Tbilisi; the decision to give notice of the complaints under Article   3 of the Convention to the Georgian Government (“the Government”), represented by their Agent, Mr B.   Dzamashvili, of the Ministry of Justice, and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 23 November 2023, Delivers the following judgment, which was adopted on that date: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s complaints under Article   3 of the Convention concerning his alleged ill‑treatment, and the alleged inadequacy of the investigation conducted in that regard. 2 .     According to the applicant’s administrative arrest report, he was arrested at 10.30 p.m. on 15   May 2017 for disobeying lawful orders of the police and was taken to a nearby police station. Three police officers took part in his arrest (G.N., G.T. and S.K.). The report indicated that the applicant had been drinking beer in a public square and “became aggressive and verbally insulted police officers in response to [the officers’] instructions to stop [drinking in public] as it was a breach of the [law] ...”. The report indicated that the applicant had displayed “redness on his left cheek and left side” which was the result of “resistance shown during arrest”. The applicant refused to sign the report. 3 .     At 12.20 a.m. on 16 May 2017 the applicant was placed in the temporary detention facility of the same police station. According to the report drawn up by a paramedic, small bruises and haematomas were found around the left area of the head, specifically on the left temple and the left cheek. He also had scratches, haematomas and redness around the left side of his body. The applicant explained that he had sustained the injuries “while resisting arrest” and complained of “physical and verbal” assault by G.N., one of the three officers who arrested him. The report was signed by the applicant. At an unspecified time paramedics were called again because the applicant complained of pain. A prosecutor was informed of the applicant’s injuries and complaints. 4 .     The applicant was released on 16   May 2017, after a first-instance court found him guilty of an administrative offence in respect of insulting law ‑ enforcement officers and refusing to comply with their lawful orders to stop drinking and swearing in public. He was given a fine in the amount of 300 Georgian laris (approximately 112 euros). The conviction was upheld by a final decision of the Tbilisi Court of Appeal dated 29   June 2017. 5.     On 16 May 2017 the applicant was interviewed by the prosecutor. He stated that on the evening of 15   May 2017 he had been drinking beer in public together with other individuals. He indicated that he had not shown active resistance but the individuals gathered there had asked the police officers not to arrest the applicant. He stated that he had been beaten by G.N. after they had entered an office to the left of the entrance to the police station. He had then been placed in a detention facility of the police station. A paramedic had had to be called because of the pain he was experiencing. He added that he still experienced “terrible” pain in the abdominal area. 6.     On 17   May 2017 a criminal investigation was opened by the Kakheti Regional Prosecutor’s Office into the offence of exceeding official powers. 7 .     The following day – 18   May 2017 – the applicant called an ambulance. He was taken to a private clinic. An X-ray examination revealed fractured ribs (6th, 7th and 8th ribs) on the left side. The authorities ordered a further X-ray examination which determined that only the 6th and 8th ribs had been fractured. A forensic expert examined the applicant and compared the two X ‑ ray reports. He concluded that the applicant had sustained fractures of the 6th and 8th ribs on the left side (and bruises on the left eye socket, the left hip and the left thigh). The expert indicated that the timing of the injuries could have coincided with that given by the applicant, or they could have been inflicted a day before or after that date; it was impossible to determine the exact time when the injuries had been inflicted. The expert clarified that it would have been possible for the paramedics who had examined the applicant at the temporary detention facility not to have noticed the rib fractures as only an X-ray examination was capable of conclusively determining the existence of fractures. It would also have been possible for the applicant to have moved around with those fractures until they were eventually revealed. 8.     On 18   May 2017 the investigating authorities interviewed the officers who had arrested the applicant. According to their statements, at around 10   p.m. on 15   May 2017 they noticed the applicant and other individuals who had been swearing and drinking beer in a public square. An individual from the group apologised and promised that there would be no more swearing or public drinking but the officers had to return shortly afterwards because the promise was not kept. G.N. asked them to stop drinking in public. In reply, the applicant filled a glass, held it in front of G.N.’s face and spoke humiliating words towards the police officers. According to G.N., that was the moment when he and his colleagues decided to arrest the applicant, but they encountered resistance from the members of the group and the applicant himself, who was moving his arms and legs back and forth and was not willing to be placed in the police vehicle. G.N. explained that he and his partners had become unable to overcome the applicant’s resistance and found themselves in need of back-up. Once the applicant and the group of individuals had learned that reinforcements had been called, they stopped resisting and the applicant agreed to walk to the nearby police station (approximately forty metres away). Being under the influence of alcohol, the applicant refused to sign the record of his administrative arrest or to take a test to measure his level of alcohol intoxication. The officers denied having ill-treated the applicant. 9 .     In May and June 2017 the prosecutor interviewed various other witnesses about the events of 15-16 May 2017. This included inspectors from the temporary detention facility; paramedics; the head of the police station; the applicant’s friend (D.D.) and a relative (T.G.). D.D. confirmed the fact of drinking on the stairs of a public building. He stated that there had been no aggressive behaviour on anyone’s part on the ground but he could not testify as to what had happened during the period of his brief absence from the site. T.G. testified that the applicant had voluntarily complied with the officer’s request and followed him to the nearby police station with no physical resistance of any kind shown by him or other individuals. 10 .     On 27 May and 2   June 2017 the investigator reviewed footage recorded by the external and internal video-surveillance cameras of the administrative building of the Sighnaghi police station and those belonging to a nearby pharmacy. According to the relevant reports, the internal camera located at the police station had only recorded the reception area where the footage did not disclose any violence by the police against a civilian (the footage only showed the right side of the applicant’s face with no apparent injuries). One report referred to the period between 10.49 and 10.54 p.m. on 15   May 2017 and stated that several individuals dressed in civilian and police clothes were having a conversation near a car parked on the road alongside the Sighnaghi police station. Following the conversation, two police officers took one civilian to the police station. The investigator stated that no signs of resistance towards the police officers had been identified in that footage. 11.     On 10   January 2018 the prosecutor in charge of the investigation granted the applicant the procedural status of a victim with full access to the criminal case file. 12.     On various dates in 2020 several police officers and the prosecutor who had recorded the applicant’s initial complaints were questioned. In June 2021 the applicant was questioned again. 13 .     On 14   November and 3   December 2022 the Government provided the Court with a factual update regarding the ongoing criminal investigation, along with copies of reports regarding the footage depicting the applicant’s arrest and the relevant original video-recordings. According to this material, on 11   November 2022 the video material depicting the applicant’s arrest was assessed by an investigator from the prosecutor’s office. According to the resulting report, several files were available in respect of the events. One of the recordings depicted the circumstances between 10.49 and 10.54 p.m. (already assessed in 2017 – see paragraph   10 above). As concerns the remaining recordings, they related to the period between 10.40 and 10.49 p.m. The investigator stated that it was impossible to identify the faces of the individuals concerned, but it was clear that one person was being escorted by two police officers while about six civilians were following them, attempting to block the road for the first three individuals. The report went on to note: “The conflict between the opposing parties continues at the car parked near the road. Persons depicted in the video-recording attempt to put one of the individuals in the car but the act of showing resistance is clearly visible. The person who shows resistance is helped by individuals who have followed them. At the end of the [first] recording, they are still gathered at the car. Then the following recording ... which was made between 22:45:00 and 22:49:59 ... was [viewed]. The video shows the same situation: the opposing parties are attempting to show resistance. After the end of the recording the following file was opened ... It was made between 22:50:00 and 22:54:59... According to that recording ..., the situation calms down and the tension subsides. ...” 14.     The investigation is ongoing. THE COURT’S ASSESSMENT ALLEGED VIOLATION OF ARTICLE   3 OF THE CONVENTION 15.     The applicant alleged a breach of Article 3 of the Convention under its substantive and procedural limbs. 16.     The Government submitted that the applicant’s complaint was premature. Alternatively, there had been no violation of the provision in question, because the applicant had failed to provide a consistent account of the circumstances of his alleged ill-treatment and it had not been established that the injuries revealed after his release had had a causal link with the arrest and detention. They also submitted that the force used against the applicant had been necessary and proportionate in order to effect his arrest, and that the criminal investigation into the matter had been effective. The applicant replied that the video material submitted by the Government (see paragraph   13 above) did not reveal resistance but only that a “commotion” had taken place near the police car, and that he had been ill-treated after his arrest. The applicant also stated that the investigation had been ineffective. 17.     The Court notes that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. They must therefore be declared admissible. 18.     The relevant general principles were summarised by the Court in Bouyid v.   Belgium ([GC], no.   23380/09, §§   81-88, 100-01, and 114‑23, ECHR 2015), El-Masri v. the former Yugoslav Republic of Macedonia ([GC], no.   39630/09, §§   151-53 and 182-85, ECHR 2012), and Mikiashvili v.   Georgia (no.   18996/06, §§ 69-72, 9 October 2012). 19.     Turning to the circumstances of the present case, it is undisputed that various injuries were observed on the applicant following his arrest (see paragraphs   2-3   above). Two days after his release, it emerged that he had had fractured ribs on the side where redness had been observed and in respect of which he had made complaints of intense pain (see paragraphs   3 and 7 above). While the State forensic expert could not determine the exact timing of the rib fractures, he did not exclude the possibility that they might have been inflicted on the date of the applicant’s arrest (see   paragraph   7 above). Accordingly, the Court considers that the diagnosis of fractured ribs is also linked to his arrest and the authorities were required to carry out an effective criminal investigation into the applicant’s complaints. 20.     In this regard, the Court notes that the authorities opened a criminal investigation into the incident, and a number of relevant and timely investigative measures were undertaken. The applicant was also granted the procedural status of a victim, with full access to the case file material. 21.     However, the Court cannot overlook that the investigation has failed to shed light on important questions regarding the applicant’s allegations. Namely, the authorities did not identify the exact timeline of the events, including what happened between the applicant’s arrest and his subsequent placement at the detention facility (compare paragraphs   2 and 3 above). Importantly, the forensic expert was not asked to determine whether the applicant’s injuries could have been received by resisting arrest, as depicted in the video material available in the case file. Moreover, the investigation has not assessed the intensity of the resistance shown by the applicant during arrest, the degree of the force used by the police officers, or the proportionality of any such measures. Finally, the criminal investigation has been ongoing for over six years, with significant periods of inactivity (for instance, the footage relied on by the Government to argue that the applicant was injured while he resisted arrest was assessed at domestic level more than five years after the incident). No explanation was provided in this regard. Noting the recurrent nature of the problem of protracted criminal investigations, particularly in cases concerning allegations of ill-treatment involving representatives of the law-enforcement authorities (see, inter alia , Mikeladze and Others v.   Georgia , no.   54217/16, §   68, 16   November 2021, with further references), the Court finds this delay unjustified. 22.     The foregoing considerations are sufficient for the Court to conclude that there has been a violation of the procedural aspect of Article   3 of the Convention. 23.     As regards the complaint under the substantive aspect of Article   3 of the Convention, the Court cannot overlook that a scuffle broke out during the applicant’s arrest, with the apparently inebriated applicant – aided by other individuals gathered on the site – resisting arrest (see paragraph   13 above). It is entirely possible, as argued by the Government, that the officers may have needed to resort to physical force to prevent further disruption and calm these individuals down. Importantly, the applicant omitted to mention this incident in his submissions before the Court, thereby undermining the credibility of his account. 24.     In such circumstances, and reiterating that the Court must be cautious in taking on the role of a first-instance tribunal of fact where this is not rendered unavoidable by the circumstances of a particular case (see Adam v.   Slovakia , no.   68066/12, §   52, 26   July 2016), it is impossible to exclude either the Government’s or the applicant’s account of events. As a result, the Court is unable to conclude “beyond reasonable doubt” that the arresting officers subjected the applicant to treatment prohibited by Article 3 of the Convention, as alleged by him. 25.     The Court therefore concludes that there has been no violation of Article   3 of the Convention in its substantive limb. APPLICATION OF ARTICLE 41 OF THE CONVENTION 26.     The applicant claimed 35,000 euros (EUR) in respect of non ‑ pecuniary damage. 27.     The Government submitted that the claim was excessive. 28.     Having regard to the nature of the violation found and ruling on an equitable basis, the Court awards the applicant EUR   3,000 in respect of non ‑ pecuniary damage, plus any tax that may be chargeable. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been no violation of the substantive aspect of Article   3 of the Convention; Holds that there has been a violation of the procedural aspect of Article   3 of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR   3,000 (three thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 14 December 2023, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.     Martina Keller   Stéphanie Mourou-Vikström   Deputy Registrar   President