ECHR judgment of July 18, 2019 in the case of “Vazagashvili and Shanava v. Georgia” (application No. 50375/07).
In 2007, the applicants were assisted in preparing the application. Subsequently, the application was communicated to Georgia.
In the case, the application on the lack of independence and impartiality in the course of investigative actions against law enforcement officers, as well as the apparent disproportion of the punishment imposed on the gravity of the act committed, was successfully considered. The case contained a violation of Article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
On 2 May 2006 the applicants' son was killed by the police. The initial investigation into his death was discontinued. The investigation was subsequently resumed, and in 2015, five high-ranking police officers were convicted of double murder under aggravating circumstances, or for abuse of power, or for obstruction of justice. It was established that the entire contested police operation was based on documents forged by a superior police officer for the sole purpose of killing passengers in the car of the applicants' son and thereby taking revenge on one of them.
QUESTIONS OF LAW
Regarding compliance with Article 2 of the Convention (procedural aspect). The first investigative actions were carried out immediately after the police operation by the same officers who participated in this operation. The evidence gathered by these officers was subsequently referred to by prosecutors during the first stage of the investigation into the proportionality of the use of force by police officers. Thus, the first and most important investigative actions carried out by the relevant authorities clearly did not meet the requirements of independence and impartiality, and such a procedural flaw could not but obscure the subsequent course of the investigation.
The prosecution authorities did not want to involve the applicants in the case by giving them the opportunity to freely use the necessary status of victims. Without such a procedural status, the applicants could not appeal to the court the decision of the prosecutor's office to terminate the investigation. The prosecution authorities did not duly take into account the testimonies of two independent witnesses, who confirmed that the passengers in the applicant's car did not try to provide armed resistance to the police officers. However, a proper assessment of this fact was absolutely necessary in order to draw objective conclusions regarding the proportionality of the use of force by police officers. These considerations are sufficient to come to the conclusion that this part of the initial investigation was not thorough, objective and, as was later established by the results of the resumed investigation, complete.
After the criminal investigation into the police operation was resumed in 2012, five senior officials from the Ministry of the Interior were convicted in connection with the incident for double aggravated murder, or abuse of power, or obstruction of justice. However, the Court was not convinced that the outcome of the resumed criminal proceedings restored the applicants' rights to a sufficient degree. A belated recognition of the fact that the applicants' son was killed in aggravated circumstances more than nine years after the murder, together with significant periods of inaction by the investigating authorities, clearly indicated that he was evading access to justice.
After the resumption of the investigation, the applicant, for a long period of time, even in the absence of victim status, conducted the investigation himself, interrogating various key witnesses and collecting other evidence. Despite the fact that there was already material evidence of the involvement of the relevant police officers in the unlawful use of force against the applicants' son, the authorized authorities of the respondent Government, however, it took almost three years to complete the preliminary investigation and bring the case to court . The conviction in the murder case was later issued on the basis of, inter alia, evidence collected by the applicant himself.
The Court could not fail to note that the murder of the applicant as a result of the bombing of his son’s grave was caused by his active public activities aimed at clarifying the circumstances of the actions of the police officers responsible for the death of his son. Performing the task of the investigator, which should have been performed by the relevant authorities, the applicant risked becoming a victim of revenge. The Court emphasized that the tragic events of the present case are another example of how tangibly detrimental the consequences of a lack of due diligence on the part of the authorities responsible for investigating crimes against life, especially in cases of corruption in the police, can be.
The applicant was not granted victim status as part of a resumed investigation. Her inability to take part in the trial after the death of her husband (who died as a result of a bomb explosion at the grave of their son) deprived her of the opportunity to claim and receive appropriate compensation for the harm that she and her dead husband had suffered as a result of the killing of their son by police officers.
Despite the fact that it is necessary to respect the choice of domestic courts regarding appropriate penalties for ill-treatment and murder, the Court must intervene in cases of apparent discrepancy between the severity of the acts of the State representatives and the severity of the punishment imposed on them. This is extremely important for maintaining public confidence, ensuring the rule of law and preventing any manifestation of tolerance towards illegal actions of state representatives or the appearance of conspiracy with them.
In the applicants ’case, although Georgian legislation allowed for a heavier sentence, either 20 years of imprisonment, or life imprisonment, the court initially sentenced two convicted prisoners for murder of the applicants’ son under aggravating circumstances to 16 years in prison. Moreover, when imposing such a punishment, the court knew that the term would be further reduced by a quarter as a result of the automatic application of the provisions of the amnesty law. It was possible to regret that when the law on amnesty was being drafted, the legislator did not give due importance to the need to punish serious police misconduct with unbending rigor. When a state representative, in particular a law enforcement officer, is convicted of a crime that violates Article 2 of the Convention, amnesty or pardon should not be allowed. When punishing law enforcement officers for serious crimes against life, government authorities are expected to be even more severe than punishing ordinary criminals, since in this case we are talking not only about the individual criminal liability of the perpetrators, but also about the state’s obligation to combat impunity , which criminals, in their opinion, use because of their official position, and maintain public confidence and respect for law enforcement steme.
For two police officers who were found guilty of aggravated murder, the court did not prohibit holding public office. They could again join the ranks of law enforcement officials after serving their sentence. If the perpetrators of such a particularly serious crime could retain the right to hold public office in the future, this would be absolutely unacceptable and would give the public the wrong signal. The punishment imposed on the two police officers who killed the applicants' son and his friend in difficult circumstances, with ill-intentioned intent and using the law enforcement system only for this purpose, was not adequate in relation to the crimes committed.
In view of the foregoing, despite the condemnation of five police officers, the criminal law system was far from rigorous, and it could not be said that it had a sufficiently restraining effect to prevent the commission of similar crimes in the future.
The case contained a violation of Article 2 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicants EUR 45,000 in respect of non-pecuniary damage.
The Court also held that there had been a violation of Article 2 of the Convention in its substantive aspect. The Georgian courts have clearly proved that the authorities of the respondent Government were responsible for the murder of the applicants' son.