CEDH · PRESS;CHAMBERJUDGMENTS;ENG — 8 juin 2010

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Georgia (application no. 18183/05)   AUTHORITIES’ FAILURE TO INVESTIGATE ATTACK ALLOWED PURSUIT OF PRIVATE REVENGE   Unanimously   Violation of Article 2 (right to life) in its procedural limb (investigation) of the European Convention on Human Rights     Principal facts   The applicants, Guivi Khaindrava and his wife, Mari Dzamashvili, are Georgian nationals who were born in 1938 and 1959 respectively and live in Tbilissi.   In 1997 Mr Khaindrava was attacked in his home; the assailants kicked and struck his head with the butt of a gun. The next day his family filed a complaint but no action was taken, so he went to look for his attackers, D.P. and G.T. He found them and took them to his house, where on 24 September 1998 he arranged a meeting with the district prosecutor of Martvili and his deputy, so that they could question the assailants and react at last to his complaint.   The meeting was filmed by the applicant. The assailants could be seen confirming the assault of 1997 and explaining that it had been organised by A.G. with the promise of a reward of 50,000 US dollars if Mr Khaindrava was killed or 1,500 dollars for non-lethal injuries. There had been a long-standing rivalry between him and A.G., who was the father of two high-ranking local police officers. The video footage showed that D.P. and G.T. were wanted for various offences, including murders and abductions, and that one of them had been on the run since escaping from prison. At the end of the meeting, Mr Khaindrava told the prosecutors that it was now for them to act, and that if he was obliged to take revenge himself, they would be responsible for the consequences. The district prosecutor then suggested to the criminals that they give themselves up in return for a “human gesture” and assistance with rehabilitation, but they refused.   In January 2000 Mr Khaindrava was arrested and charged, in particular, with extortion, illegal transport of weapons and unlawful confinement, in a case concerning the kidnapping of one of A.G.’s sons dating back to 1994. According to Mr Khaindrava, A.G.’s sons – senior police officers – fearing that he would seek revenge on their father, wanted to ensure their father’s safety by arresting him. The applicant was sentenced to seven years’ imprisonment. In the criminal proceedings against him, a third person who had been involved in his assault in 1997 (Ko-ia) – a middleman for A.G. – stated that on the night of the attack he had gone with D.P. and G.T., all three of them being drunk after a party, to beat up Mr Khaindrava at his house. Not having killed him that night, the three assailants had then attempted for several weeks, in vain, to carry out the murder so that they could claim the 50,000 dollars promised by A.G. Instead of that, they had been caught one day by the applicant, who had tied them up and taken them to his house. Ko-ia also stated that D.P.’s address was known to a person whose name he revealed and who had already brought all these facts to the attention of the authorities.   In a complaint of 17 May 2001 the applicant requested the Prosecutor General to bring criminal proceedings. The video of 24 September 1998 was given to the district prosecutor of Martvili in June 2001 with a transcription of the conversations, as well as the results of an internal administrative inquiry into the matter. After examination of the evidence the case was discontinued, but reopened in March 2002 following an appeal to a higher administrative authority. When questioned about the assault, the applicant and Ko-ia then refused to testify as they had doubts about the independence of the Martvili public prosecutor’s office. That office discontinued the proceedings but the case was subsequently referred back to it by the Prosecutor General’s office for further examination.   On 27 May 2002 the second applicant reiterated her request to the public prosecutor of Martvili that measures be taken concerning the assault on her husband’s life, and her lawyer called for the investigation to be pursued. Following the publication in a national newspaper of an open letter by the second applicant, the public prosecutors who had taken part in the meeting of 24 September 1998 were questioned and stated that, as soon as they had returned to their office that day, one of them had verbally informed the regional public prosecutor and the competent police forces.   Mr Khaindrava applied to the Prosecutor General on 10 March 2004, requesting him to bring criminal proceedings. He stated that the policy of the new government – which had come to power after the “Rose Revolution” – to bring proceedings against civil servants who had enjoyed impunity under the previous regime, made him hopeful for the outcome of the investigation in his case. His request was referred to the regional public prosecutor’s office of Samegrelo-Zemo Svaneti, but no action was taken.     Complaints, procedure and composition of the Court   Relying in particular on Article 2, the first applicant alleged that the authorities had ignored his repeated requests for an investigation into the assault on his life. The applicants also relied on Articles 6 (right to a fair trial) and 13 (right to an effective remedy) in complaining of the prosecution authorities’ inaction.   The application was lodged with the European Court of Human Rights on 7 April 2005.   Judgment was given by a Chamber of seven judges, composed as follows:   Françoise Tulkens (Belgium), President, Danutė Jočienė (Lithuania), Dragoljub Popović (Serbia), András Sajó (Hungary), Nona Tsotsoria (Georgia), Kristina Pardalos (San Marino), Guido Raimondi (Italy), Judges , and also Sally Dollé , Section Registrar .     Decision of the Court   Admissibility of the application   It was not in dispute that D.P. and G.T. had intended to inflict lethal wounds on the first applicant, as they had kicked and struck his head with the butt of a gun. They had thus subjected him to treatment which, in view of the nature and degree of violence used, had put his life in danger, even though he had ultimately survived. Article 2 was therefore applicable.   Moreover, the procedural obligation to conduct an effective investigation for the purposes of Article 2 could be regarded as detachable from the substantive aspect of that provision and binding on the State even when the events in question pre-dated the entry into force of the Convention in respect of that State (20 May 1999 in the case of Georgia).     Article 2   It was not in dispute that the treatment to which the applicant was subjected had endangered his life. The investigations into the assault therefore had to be comprehensive, impartial and diligent, and the authorities had an obligation of means to take any measures that were reasonably accessible to them in order to gather evidence concerning the incident.   The assault on the applicant’s life had sufficiently been brought to the attention of the public prosecutor’s office, which had thus had an obligation to verify the information promptly and, if necessary, to prosecute. That obligation had not been affected by the legislative reform of 25 March 2005. The authorities, however, had not reacted, in spite of the meeting between the public prosecutors and the presumed assailants and of the applicant’s repeated requests.   It appeared from the case file that the applicant, the assailants, the presumed organiser, the district prosecutor and his deputy, all knew each other well. The public prosecutors, being linked to prominent figures in the community by various connections, had probably chosen not to respond to the applicant’s requests made in accordance with the law. The Court strongly condemned the fact that the authorities’ failure to discharge their essential duties had allowed the pursuit of private revenge, which had only been put to end, according to the applicant himself, by his arrest in 2000.   The Court further noted that when Ko-ia had been questioned in April 2000, the public prosecution authorities had again been informed about the assault on the applicant’s life but had not reacted. In addition, the applicant had clearly requested an investigation into the assault and the lack of response by the authorities, who must have been aware of the situation even if there had been no formal complaint. Moreover, the requests by the applicant and Ko-ia to have the public prosecutors removed from the case, alleging that the public prosecutor’s office of Martvili lacked independence, were clear and could not be regarded as frivolous. Lastly, there was nothing to suggest that further investigative acts – in particular, verification of Ko-ia’s statements, a confrontation between him and the applicant, searches to find D.P. – had been performed before the last discontinuance of the investigation. As regards the findings of the internal inquiry within the prosecution service, which had apparently been used in the criminal investigation, the Government had not provided them or any other document from the administrative inquiry file.   In addition, the Prosecutor General’s office, faced with the inaction of the regional prosecutor’s office, despite its attempt to secure the latter’s cooperation, had not reacted effectively, even when prompted to do so by the applicant. The fact that the Prosecutor General’s office had left the inquiry to be carried out by the prosecutor’s office of Martvili, even though that choice had been challenged, had also failed to ensure the requisite hierarchical, institutional and practical independence on the part of officials responsible for such an inquiry.   The Court concluded that Georgia had failed in its obligations to carry out an effective investigation in a case concerning an assault on the first applicant’s life, and that there had therefore been a violation of Article 2 in its procedural aspect.   Finding that it had examined the principal legal question raised by the application, the Court did not find it necessary to examine separately the applicants’ complaints under Articles 3, 6 and 13.   Under Article 41 (just satisfaction), the Court held that Georgia had to pay the first applicant 12,000   euros in respect of non-pecuniary damage.   ***   The judgment is available only in French. This press release is a document produced by the Registry. It does not bind the Court. The judgments are available on its website .   Press contacts Céline Menu-Lange (tel: + 33 (0)3 90 21 58 77) or Stefano Piedimonte (tel: + 33 (0)3 90 21 42 04) Tracey Turner-Tretz (tel: + 33 (0)3 88 41 35 30) Kristina Pencheva-Malinowski (tel: + 33 (0)3 88 41 35 70) Frédéric Dolt (tel: + 33 (0)3 90 21 53 39) Nina Salomon (tel: + 33 (0)3 90 21 49 79)   The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights. [1] Under Article 43 of the Convention, within three months from the date of a Chamber judgment, any party to the case may, in exceptional cases, request that the case be referred to the 17 ‑ member Grand Chamber of the Court. In that event, a panel of five judges considers whether the case raises a serious question affecting the interpretation or application of the Convention or its protocols, or a serious issue of general importance, in which case the Grand Chamber will deliver a final judgment. If no such question or issue arises, the panel will reject the request, at which point the judgment becomes final. Otherwise Chamber judgments become final on the expiry of the three-month period or earlier if the parties declare that they do not intend to make a request to refer. All final judgments   are transmitted to the Committee of Ministers of the Council of Europe for supervision of their execution. Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution .