CEDH · CASELAW;COMMUNICATEDCASES;ENG — 18 mars 2013

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .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 } .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 } .s15D92DFC { margin-top:0pt; margin-bottom:36pt } .s9296A950 { margin-top:36pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s76CF415B { page-break-before:always; clear:both } .sD6E2332A { margin-top:12pt; margin-bottom:0pt } .sA36B60A1 { font-family:Arial; font-style:italic }       THIRD SECTION Application no. 50375/07 Yuri VAZAGASHVILI and Tsiala SHANAVA against Georgia lodged on 20 October 2007 STATEMENT OF FACTS   1.     The applicants, Mr Yuri Vazagashvili (“the first applicant”) and Mrs   Tsiala Shanava (“the second applicant”), are Georgian nationals, who were born in 1953 and live in Tbilisi. They are represented before the Court by Mr   G.   Mosiashvili, Mr   M.   Jangirashvili and Ms   I.   Tchkadua, lawyers practising in Tbilisi. 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 3.     On 2 May 2006, at around 9:30 a.m., Mr Zurab Vazagashvili, the applicants’ son, aged 22, and his friend Mr A.   Kh.-ovi, aged 25, were shot dead by police as they were driving in Mr Vazagashvili’s car in a street of Tbilisi. 4.     According to the case materials, at least fifty police officers, including senior officials from the Criminal Police Department of the Ministry of Interior led by that Department’s Deputy Head, Mr I.P.-ava, and masked officers of a riot police unit armed with machine guns, participated in that police operation. More than seventy bullets were shot by the police in the direction of the car; some forty bullets actually hit the car. Experts of a subsequent, post-mortem forensic examination were not able to establish the exact number of bullets which had actually penetrated the body and skull of the applicants’ son due to severe injuries. A third passenger of the car, Mr   B.P. ‑ idze, aged 22, was seriously wounded during the shooting but survived. 5.     On the same day the Ministry of the Interior opened a criminal case against the applicants’ late son and the other passengers of the car for unlawful possession and conveyance of firearms and attempted robbery. All   the preliminary investigative measures, including those directly relating to the examination of the scene of the shooting, were conducted in the context of that investigation which was led by a senior official of the Ministry who had participated himself in the police operation earlier that day. The results of that investigation, the collected evidence, were subsequently transmitted to the Tbilisi City Public Prosecutor’s Office (“the TCPPO”), which relied on that evidence in its own probe into the lawfulness of the police actions (see paragraph 8 below). 6.     Later the same day, Mr I.K.-idze, Head of the Criminal Police Department of the Ministry, stated at a press briefing that the applicants’ son and the two other passengers of the car had committed a robbery of a pawn shop on 30 April 2006 in Tbilisi and had been heading to carry out another robbery of an apartment on 2 May 2006. He added that the men had opened fire at the police and that the police had been obliged to riposte. 7.     The available case materials, which contain statements of numerous eyewitnesses to the shooting on 2 May 2006, suggest that the police fired the first shot and that there had been no retaliation from the car at all. The police continued shooting even after the car had hit the curb stones and stopped. 8.     On 5 May 2006 the TCPPO opened an investigation, under Article 114 of the Criminal Code (killing as a result of the use of force beyond that which was required for arresting a wrongdoer) for excessive use of force by the police during its operation of 2 May 2006. The case was mostly based on the evidence which had been collected by the Ministry of the Interior (see paragraph 5 above). 9.     According to the applicants, which grievances had been voiced before the prosecution authority on occasion, the investigation was not conducted thoroughly and impartially. Notably, the investigators from the TCPPO allegedly ignored witness statements that incriminated the police in the murder of their son, intentionally destroyed and fabricated evidence and denied to the applicants a possibility to participate effectively in the investigation. Notably, the prosecution authority refused to grant, for several weeks, a request by the second applicant to be recognised as a victim in the case. Finally, on 7 July 2006, following numerous complaints by the applicants’ lawyers and involvement of the Public Defender, the TCPPO finally granted victim status to the second applicant. Subsequently, she was invited to get acquainted with case materials at the office of the prosecutor in charge of the investigation; being unable to obtain a photocopy thereof from the prosecutor, the second applicant re-wrote by hand the content of the report which contained the detailed description of the numerous lethal wounds on the body and damaged skull of her late son. 10.     As disclosed by the case materials, the TCPPO questioned only two independent eyewitnesses to the police shooting of 2 May 2006, Ms   M.Ts. ‑ aia and Ms I.G.-dze, and that occurred in February 2007. Whilst those witnesses reported that the police had started the shooting and continued it even after the car had violently hit the curb stones and stopped, the prosecutors ignored those statements, giving precedence to the opposite statements of the police officers who had participated in the operation. 11.     According to the results of a ballistic test commissioned by the TCPPO, during the operation of 2 May 2006 the passengers of the car shot at the police through Mr Vazagashvili’s car’s rear window, through a hole in its left upper corner. However, the case file contains a video footage, filmed by the cameramen of the Ministry of the Interior, of the state of the car immediately after the shooting had ended. This footage shows that the glass of the car’s back window was wholly intact, without any holes or other damages. There also exists a verbatim record of the examination of the car after it had been taken from the scene of the crime to a special parking area of the Ministry of the Interior. This record similarly attests that the car’s rear window was undamaged at that time. Furthermore, an alternative ballistic investigation commissioned by the Public Defender of Georgia established that no shot had been made from the saloon of Mr   Vazagashvili’s car. 12.     The second applicant decided to commission another independent ballistic examination and, on 20 April 2007, filed a request with the TCPPO to that end. However, her request could not be granted, as she only then learnt that on 19 April 2007 her status of victim had been annulled by a prosecutorial decision, whilst the investigation had been closed the day after, on 20 April 2007, for want of a criminal offence. No longer having victim status, the second applicant became unable to appeal against the closure of the investigation to a court. The absence of the requisite standing for filing such a judicial appeal was confirmed to the second applicant by the Tbilisi City Court and the Tbilisi Court of Appeals on 6 August 2007 and 4 July 2008 respectively. 13.     In an unrelated set of criminal proceedings, the Ministry of the Interior suspended, on 25 May 2007, the first applicant’s registered title over his vehicle, temporarily removing it from his possession pending an investigation in those proceedings. Notably, he was suspected of having purchased a stolen vehicle through certain administrative machinations. The first applicant then complained about the interference with the possession of his car to a court, but the case file does not account for further developments and final outcome in these proceedings, if any. According to the case file, the investigation is still currently pending before the Ministry. COMPLAINTS 14.     The applicants complain under Article 2 of the Convention about the murder of their son by the police on 2 May 2006 and the absence of an adequate investigation in that regard. The latter, procedural part of the complaint, with an emphasis on the inability to lodge a judicial complaint against the closure of the investigation by the TCPPO, was also reiterated under Articles 6 and 13 of the Convention. 15.     Relying on Article 3 of the Convention, the second applicant complains that, instead of providing her with a photocopy, the prosecution authority made her to re-write by hand the report on the post-mortem forensic examination of the body of her son, which arbitrary decision was aimed at causing her additional suffering. 16.     Relying on Article 1 of Protocol No. 1, the first applicant considers that the Ministry of the Interior purposefully put into question the registration of the property title over his car in an attempt of indirect pressure and discouragement from maintaining interest in the investigation of his son’s murder. 17.     Articles 7 and 14 of the Convention were cited by the applicants without any explanation.   QUESTIONS TO THE PARTIES   1.     Has right to life of the applicants’ son, ensured by Article 2 of the   Convention, been violated in the present case?   –     Did the applicants’ son’s death result from a use of force which was absolutely necessary for the purposes of paragraph 2 (b) of this Article?   2. 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?   –     What is the significance of the fact that the preliminary investigative measures, in particular those relating to the examination of the scene of the shooting, 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)?   –     Were the applicants, as the victim party, sufficiently involved in the monitoring of the investigation of their son’s killing (idem, §   250)? In this respect, what was the significance of the fact that the second applicant was obliged, in the absence of a photocopy thereof, to re-write by hand the report on the post-mortem forensic examination of her son?   –     Was it compatible with the relevant domestic procedural regulations and the requirements under the procedural limb of Article   2 of the   Convention that the second applicant was deprived of her victim status and became unable to appeal against the prosecutorial decision to discontinue the investigation?   –     Were the various independent witness statements, which related to the circumstances of the police operation of 2 May 2006, 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)?