CEDH · CASELAW;COMMUNICATEDCASES;ENG — 11 mars 2013

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s3E839E41 { margin-top:12pt; margin-bottom:30pt; text-align:center } .s58ABC179 { margin-top:30pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s2D57E2E { font-family:Arial; font-weight:bold; text-decoration:underline; text-transform:uppercase } .s87F05BA2 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s11869A80 { margin-top:0pt; margin-bottom:18pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sD5DF731 { margin-top:0pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s984A15CA { margin-top:6pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s1913A4C6 { margin-top:6pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify } .sEC177689 { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .s76CF415B { page-break-before:always; clear:both } .s6B505E72 { margin:0pt; padding-left:0pt } .sC0A0280 { margin-left:15.01pt; text-align:justify; padding-left:6.29pt; font-family:Arial; font-weight:bold } .s3537C2D6 { font-weight:normal } .s3469B2D0 { margin-left:15.01pt; text-align:justify; padding-left:6.29pt; font-family:Arial } THIRD SECTION Application no. 2228/10 Gulnara GAMTSEMLIDZE and others against Georgia lodged on 8 January 2010 STATEMENT OF FACTS   1.     A list of the applicants is set out in the appendix. 2.     The first and second applicants are, respectively, the mother and wife of Mr Giorgi Gamtsemlidze, who was killed during a police chase on 8   May 2008   (see paragraph 4-6 below), whilst the third, fourth and fifth applicants are his minor children. All of them are Georgian nationals, live in Tbilisi and are represented before the Court by Ms Natia Katsitadze and Ms   Tamar   Abazadze, members of the Georgian Young Lawyers’ Association (GYLA). 3.     The facts of the case, as submitted by the applicants, may be summarised as follows. A.     The police chase of 8 May 2008 4.     On 8 May 2008, at around 1:20 a.m., two patrol police officers, V.A. ‑ shvili and L.J.-shvili, who served at the Tbilisi and Mtskheta-Mtianeti Department of the Patrol Police of the Ministry of the Interior at that time, started pursuing a vehicle that was speeding in a central district of Tbilisi. 5.     The patrol officers requested the speeding driver, Mr Giorgi Gamtsemlidze, to obey by their orders and stop his car, but the latter refused. At some point, at the end of Zandukeli Street, the speeding car hit the curb stones, the driver got out and attempted to escape by running over the roof of an adjacent garage box from which he then jumped down into the yard of a house situated at Zandukeli Street no. 2. 6.     One of the police patrol officers, V.A.-shvili, ran after Mr   Gamtsemlidze. The officer pulled out his service pistol during the chase and made a shot (either accidentally or not, this issue being in dispute between the official version of the events and that of the applicants) which mortally wounded Mr Gamtsemlidze in the back of his neck. He died almost immediately, before an ambulance, called by the police officers, could arrive. B.     Investigation 7.   Immediately after the incident, the Tbilisi City Public Prosecutor’s Office (“the TCPPO”) launched, at 1:35 a.m. a criminal probe against the patrol officer V.A.-shvili for an offence prosecuted under Article 144 of the Code of Criminal Procedure – killing as a result of the use of force beyond that which was required for arresting a wrongdoer. 8.     Investigators from the TCPPO examined the scene of the crime between 2:30-3:35 a.m. As disclosed by a verbatim record of that examination, they did not report to have discovered any weapon at the scene. 9.     Simultaneously, the Tbilisi and Mtskheta-Mtianeti Department of the Patrol Police of the Ministry of the Interior launched a second investigation into the circumstances of the incident. That second investigation was directed against late Giorgi Gamtsemlidze for an offence prosecuted under Article 236 of the Criminal Code – unlawful possession and conveyance of a gun. Within the framework of that second investigation, investigators from the above-mentioned Department of the Patrol Police conducted, between 2:40 a.m. and 4:20 a.m., another examination of the scene of the crime. Among other descriptions, the investigators reported to have discovered a gun on the roof of the garage box (see paragraph 5 above). According to them, the gun was loaded, and the investigators had to unload it before sealing. 10.     On 9 May 2008 the two criminal cases, which had been separately initiated by the TCPPO and the Ministry of the Interior, were joined. The Ministry transmitted the collected evidence, which concerned the alleged involvement of Giorgi Gamtsemlidze in a firearms offence, to the prosecution authority. The latter authority then re-qualified the charge against V.A.-shvili (see paragraph 7 above) into that under Article 166 of the Criminal Code – involuntary manslaughter. 11.     Subsequently, the TCPPO interviewed several persons related to the incident –accused V.A.-shvili, the second police officer who had participated in the chase, L.J.-shvili, two residents of Zandukeli Street no.   2 who eye- and ear-witnessed to the incident and certain other witnesses – and conducted various crime detection tests. 1.     Statements made by V.A.-shvili 12.     In his statement given to the TCPPO on 8 May 2008, V.A. ‑ shvili, who was considered a suspect at that time, stated that he had run after Giorgi Gamtsemlidze in the direction of the house situated at Zandukeli Street no. 2 after having turned off the headlights of his car and pulled out and loaded his service gun. He specified that he had not noticed anything resembling a gun in the hands of Giorgi Gamtsemlidze nor had he made any oral warning during the foot pursuit. The police officer stated that he had made an accidental shot from his gun after having reached Mr   Gamtsemlidze in the yard of above-mentioned house and started having a tussle with the latter in that yard. Having noticed that the young man was wounded in the back neck, he and his partner officer, L.J.-shvili had immediately called for an ambulance which had arrived, together with other patrol police patrol vehicles, a few minutes later. 13.     When questioned on 18 June 2008 already in the capacity of an accused, V.A.-shvili mostly reiterated his previous statement of 8   May 2008, emphasising again that he had not noticed a gun in the hands of Giorgi Gamtsemlidze in the yard of the house at Zandukeli Street no. 2. He added that a gun had first been discovered by his partner office, L.J. ‑ shvili on the roof of the garage box. 14.     However, when questioned by the trial court on 30 December 2008, V.A.-shvili stated that he had seen Giorgi Gamtsemlidze, when the latter was running over the roof of the garage box towards the yard of the house, having a movement of his hand towards the waist as if wishing to pull out something from the belt. V.A.-shvili then stated for the first time that, during the foot pursuit, he had ordered twice Giorgi Gamtsemlidze to stop running, on pain of using force against him. 2.     Statements by L.J.-shvili 15.     When questioned as a witness on 8 May 2008, L.J.-shvili mostly confirmed the account of the events as was given by V.A.-shvili in his two early statements (see paragraphs 12 and 13 above). Thus, L.J.-shvili stated that he had not noticed anything resembling a gun in the hands of Giorgi   Gamtsemlidze during the foot pursuit. He and his partner police officer had merely thought that since the young man was trying to escape from them, it was already suspicious and meant that the man might be carrying an illegal item. L.J.-shvili stated that after his partner, V.A. ‑ shvili, had made a shot which wounded Giorgi Gamtsemlidze, he had immediately called, using the phone of their patrol vehicle, for an ambulance. After that, L.J.-shvili had started examining with a flashlight the territory surrounding Giorgi Gamtsemlidze’s car and suddenly noticed a gun lying on the roof of the garage box situated at Zandukeli Street no. 2. After arrival of the ambulance and other police patrol officers at the scene, L.J.-shvili had shown the discovered gun to those officers and gave them an account of the incident. 16.     When questioned by the trial court on 9 October 2008, L.J. ‑ shvili stated he had not heard his partner V.A.-shvili giving any verbal warning or order to Giorgi Gamtsemlidze – “I don’t think that V.A.-shvili had sufficient time for giving a warning...I don’t remember to have heard any warning...” 3.     Statements by residents of Zandukeli Street no. 2 17.     A resident of Zandukeli Street no. 2, O.T.-shvili, was the only eyewitness to the incident. When questioned for the first time by the TCPPO on 8 May 2008, he stated that he had first heard a sound of a car crash which followed, within several seconds, by a gunshot, the sound of someone running on the roof of the garage and finally the sound of something/someone hitting the ground. He then had gotten out from his bed to go to the balcony which was overlooking the yard, from which he had seen that a young man was lying on the ground, near the garage, whilst 3 or 4 police patrol officers were standing on the roof of the garage and 4 or   5 other officers were about to enter the yard. O.T.-shvili further stated that he had then returned to his bedroom to put a shirt on and a few minutes later had looked out from the balcony again, noticing that police officers had displaced the body of the young man by some five meters from the initial place, away from the garage. 18.     In reply to the investigators’ questions, O.T.-shvili emphasised with confidence that the time lapse between the sounds of a car crash and a shot had been no more than several seconds. He also stated that he had not heard anyone giving an order to drop a gun or to stop running and had not seen any weapon or other object lying on the roof of the garage box. He specified that the whole of the yard and, in particular the roof of the garage, had been well illuminated by street lights. 19.     When questioned by the trial court on 5 December 2008, O.T.-shvili stated that he had seen and heard how certain police officers had dropped a gun on the roof of the garage after the body of the young man had been taken by the ambulance. He also complained that certain people from the prosecution authority had been discouraging him from testifying before the court. 20.     On 12 January 2009 the trial court, granting a request from both the prosecutor and the accused police officer, V.A.-shvili, removed O.T. ‑ shvili’s witnesses statements from the case file for being self ‑ contradictory. Subsequently, O.T.-shvili was prosecuted, in a separate set of criminal proceedings, for having given self-contradictory statements during the pre-trial investigation and the trial. 21.     Another resident of Zandukeli street, M.G.-uri, who was an ear ‑ witness to the incident, when questioned during the pre-trial investigation and the trial on 8 May and 9 October 2008 respectively, similarly stated that no more than several second had lapsed between the sounds of a car crash and a gunshot. He also stated that he had not heard anyone giving an order to cease resistance to the police. 4.     Statements by other police patrol officers 22.     According to the police patrol officers’ statements, those who had arrived at the scene of the incident of 8 May 2008, they had appeared at the scene two or three minutes after having received an official notification about the incident. Upon arrival there, they had seen that L.J.-shvili was watching over a gun on the roof of the garage box, whilst V.A.-shvili was holding a head of a wounded young man. 5.     Crime detection tests 23.     The gun which had been found on the roof of the garage box was subjected to a number of crime detection tests (dactyloscopy and other) during the pre-trial investigation. However, none of those tests could establish that the gun had either been held in the hands or necessarily carried by Giorgi Gamtsemlidze on his person on the night of the incident (notably, the gun did not carry any fingerprints nor could it be established with certainty that the gun contained exact microscopic marks of his clothing). Nor, as the relevant official records showed, had this gun ever been in Mr Gamtsemlidze’s registered possession. 24.     The results of a dactyloscopyc test further established that the fingerprints taken from the window of the right front door of the car which had been driven by Giorgi Gamtsemlidze during the police chase of 8   May 2005 did not correspond to his hand prints. However, certain other tests established that Mr Gamtsemlidze had indeed occupied the driver’s seat of the car. 25.     As to V.A.-shvili’s service pistol, the results of a ballistic test showed that the lethal shot had been fired at a very close to the target, Giorgi Gamtsemlidze’s neck, up to about 5 centimetres. It could indeed have been made in the circumstances (as described by V.A.-shvili, during a tussle, see paragraph 12 above), with the bullet travelling upwards in relation to Mr Gamtsemlidze’s neck and head. C.     Trial 26.     By a judgment 16 January 2009, the Tbilisi City Court convicted V.A.-shvili of involuntary manslaughter (the offence prosecuted under Article 116 of the Criminal Code), sentencing him to two years in prison and two years on probation. The convict was also ordered to pay 41,500   Georgian laris (some 20,000 euros) to the first applicant in non ‑ pecuniary damage. 27.     The first applicant then appealed against the judgment of 16   January 2009, referring to a number of shortcomings of the investigations, some of which had first been voiced by her before the prosecution authority during the pre-trial stage. Thus, she complained that (i) the investigation had failed to establish whom the gun, which had allegedly been discovered on the roof of the garage box, had in reality belonged to and whether or not it could have been planted by the implicated patrol police officers, that (ii)   the prosecution authority and the trial court had not given a proper consideration to the fact that the convict had used his service pistol against her son without a prior warning, in breach of the relevant legal regulations, that (iii) no proper consideration had been given to the fact that the preliminary investigative measures at the scene of the crime had been effectuated by officers of the Ministry of the Interior and that (iv)   the statements of the eyewitness to the incident, O.T.-shvili, had arbitrarily been ignored by the authorities. 28.     On 11 March 2009 the Tbilisi Court of Appeals, dismissing the victim’s appeal, upheld the judgment of 16 January 2009 in full. By a decision of 2 July 2009, which was served on the applicant on 11 July 2009, the Supreme Court, rejecting the applicant’s cassation claim as inadmissible, finally terminated the proceedings. COMPLAINTS 29.     The applicants complain under Article 2 of the Convention that Giorgi Gamtsemlidze was killed as a result of an excessive use of force by the police patrol officer and that the investigation into the crime was inadequate. The latter, procedural part of the complaint was also reiterated under Article 13 of the Convention. 30.     Relying on Article 6 § 1 of the Convention, the applicants further complain that the criminal proceedings against the police officer V.A. ‑ shvili were unfair and resulted in an unjustifiably lenient punishment for him. QUESTIONS TO THE PARTIES   1.     In the light of the outcome of the domestic criminal proceedings against V.A.-shvili, may the applicants still claim to be victims of a violation of Article 2 the Convention, within the meaning of Article 34?   2.     In the affirmative, has right to life of the first applicant’s son, ensured by Article 2 of the Convention, been violated in the present case?   –     In particular, did Mr Giorgi Gamtsemlidze’s death result from a use of force which was absolutely necessary for the purposes of paragraph 2   (b) of this Article?   2.     Furthermore, having regard to the procedural protection of the right to life (see paragraph 104 of Salman v. Turkey [GC], no.   21986/93, ECHR   2000-VII), was the investigation in the present case by the domestic authorities in breach of Article 2 of the Convention?   –     Notably, what is the significance of the fact, if any, that certain preliminary investigative measures were conducted by the Ministry of the Interior (compare, for instance, with Enukidze and Girgvliani v.   Georgia , no.   25091/07, §§ 245-249, 26 April 2011)?   –     Was the first applicant sufficiently involved in the monitoring of the investigation of her son’s killing (idem, § 250)?   –     Were the witness statements of O.T.-shvili given a thorough and objective consideration by the relevant domestic authorities (compare, for instance, with Tsintsabadze v. Georgia , no.   35403/06, §§   88 ‑ 93, 15   February 2011)? Appendix   Mrs Gulnara GAMTSEMLIDZE (“the first applicant”) was born on 13/05/1952. Mrs Salome SHONIA (“the second applicant”) was born on 18/08/1983. Ms Marina GAMTSEMLIDZE (“the third applicant”) was born on 19/10/1997. Ms Liza GAMTSEMLIDZE (“the fourth applicant”) was born on 03/02/2002. Mr Saba GAMTSEMLIDZE (“the fifth applicant”) was born on 17/10/2005.