ECHR decision of 02 April 2020 in the case "Kukhalashvili and others v. Georgia" (aplications N 8938/07 and 41897/07).
In 2007, the applicants were assisted in preparing their aplications. The aplications were subsequently consolidated and communicated to Georgia.
The case successfully dealt with aplications about the indiscriminate and excessive use of lethal force during the operation to suppress riots in the pre-trial detention center, conducted in an uncontrolled and disorganized manner without a clear order from above. The case violated the requirements of article 2 of the Convention for the protection of human rights and fundamental freedoms.
In 2006, a riot control operation was carried out in a pre-trial detention facility in Tbilisi, during which seven prisoners, including members of the applicants ' families, were killed by security forces. Dozens of other prisoners were seriously injured.
POINT OF LAW
Regarding compliance with article 2 of the Convention (procedural and legal aspect). The investigation into the use of force by law enforcement officers was initiated three months late by the same division of the Ministry of justice of Georgia that ordered the assault on the detention facility and directly directed the division that suppressed riots in this facility. The investigation did not address the issue of how to plan a riot control operation in a pre-trial detention facility, or the use of lethal fire or physical force. In addition, it is clear from the testimony of senior members of the Prosecutor's office that the state authorities were initially determined to ignore any violations by law enforcement officials. Consequently, the investigation was neither independent nor impartial. The participation of close relatives of the victims in the investigation and public control over the investigation were not actually carried out. In conclusion, the investigation has not reached any concrete conclusions. Periods of inactivity during the investigation were unacceptable. In view of the above, the investigation in the present case was not effective.
The case violated the requirements of article 2 of the Convention (procedural and legal aspect) (adopted unanimously).
Regarding compliance with article 2 of the Convention (substantive aspect).
(a) The methodology of the audit carried out by the European Court of justice. The Georgian courts were not given the opportunity to establish the relevant factual circumstances, since the proceedings on the alleged abuse of power by representatives of state authorities during the operation to suppress the riots were still pending. There was no parliamentary review of this circumstance, although such a large-scale incident shocked the country and attracted close international attention. In this regard, the European Court was not able to establish exactly the events of the suppression of riots in the pre-trial detention center for reasons objectively determined by the position of the state authorities, so it was the Georgian authorities who had to properly and convincingly state the sequence of events and provide strong evidence that could refute the applicants ' arguments. If the Georgian authorities had not done so, the European court of Justice could then have drawn its own conclusions. Since it was up to the European Court to establish the facts and draw conclusions about the applicants ' arguments, it used all available materials, including the conclusions on the facts of the case made by the relevant Georgian and international human rights monitors, and the results of the investigation of the case brought against the six organizers of the riots.
(b) whether the use of lethal force was lawful. The use of lethal force solely for punitive or repressive purposes, even if these purposes involve members of the criminal community, cannot be justified under article 2, paragraph 2, of the Convention.
The Georgian authorities ' argument that there was an immediate and real threat to the lives of the remand prison guards due to shots fired by the most aggressive prisoners on the barricades was quite convincing. Law enforcement officials may indeed have had subjectively valid reasons to believe that the use of force was necessary. The prisoners ' actions indicated an attempt to start a riot. In the light of the above, the Georgian authorities may have resorted to measures that included the possibility of using lethal force.
(c) whether the use of lethal force was proportionate to the circumstances of the case. The authorities knew long before the disputed events about the plans of criminal authorities to provoke riots in correctional institutions. However, members of the riot control unit did not receive specific instructions or orders from their supervisors regarding the required form and intensity of any use of fire to kill in order to minimize casualties. The use of automatic firearms in confined areas of a pre-trial detention facility would inevitably mean that the risk of causing fatal harm was unusually high. The Georgian authorities did not provide any evidence that the riot control unit operated under control and was organized in accordance with clearly received orders. According to evidence collected by human rights watch, the relevant authorities did not even know exactly who was in charge of the riot control operation.
The authorized authorities did not consider alternative, less violent methods of suppressing riots in the pre-trial detention center, such as the use of tear gas or water cannons. This was obviously the result of a lack of any strategic planning regarding the conduct of the riot control operation. Moreover, according to Amnesty international and human rights watch, shots were fired at the prisoners not only by members of the riot control unit inside the building, but also by shooters located on the roofs of nearby houses (random shots that hit the Windows). These facts indicated that the use of lethal weapons by members of the riot control unit was arbitrary and excessive. In addition, according to human rights watch, there were no serious attempts to negotiate with the rioting prisoners, although they clearly showed a willingness to engage in such negotiations. In this regard, it was appropriate to repeat that the persons held in the pre-trial detention facility were a vulnerable group in need of state protection.
According to the relevant reports of international organizations, after the end of the operation to suppress the riots, the Georgian authorities were unable to organize proper medical care for the injured prisoners. Since the unrest was predictable, the responsibility of the relevant authorities to develop an appropriate medical evacuation plan was even higher. In addition, there are reliable reports that many prisoners were ill-treated and even shot at in their cells, even though they no longer resisted. In conclusion, neither the competent authorities at the time under review, nor the Georgian authorities, in the course of the proceedings before the European Court of justice, provided information on the fate of each of the applicants ' family members who died during the disputed operation. Given the way in which the Georgian authorities treated prisoners after the end of the riots in the detention facility, the failure of the Georgian authorities to provide information on each death of prisoners is a particularly serious violation resulting from the extremely negligent conduct of the domestic investigation.
The case was a violation of the requirements of article 2 of the Convention (substantive aspect) (adopted unanimously).
In the application of article 41 of the Convention. The court awarded the first and second applicants jointly 40,000 euros and the third applicant 32,000 euros in respect of non-pecuniary damage, but the claim for pecuniary damage was rejected.