GVANTSELADZE proti Gruzii

FIFTH SECTION

DECISION

Application no. 32545/20
Zhana GVANTSELADZE
against Georgia

The European Court of Human Rights (Fifth Section), sitting on 22 September 2022 as a Committee composed of:

Stéphanie Mourou-Vikström, President,

Lado Chanturia,

Mykola Gnatovskyy, Judges,

and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 32545/20) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 25 June 2020 by a Georgian national, Ms Zhana Gvantseladze, who was born in 1947 and lives in Borjomi (“the applicant”) who was represented by Mr K. Kobakhidze, a lawyer practising in Tbilisi;

the decision to give notice of the complaints under Articles 2 and 13 of the Convention to the Georgian Government (“the Government”), represented by their Agent, Mr B. Dzamashvili, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the alleged lack of an effective investigation into the death of the applicant’s son. The applicant relied on Articles 2 and 13 of the Convention.

2. The applicant’s son was allegedly murdered alongside another person on 5 February 2008. Criminal proceedings were immediately initiated under Article 109 § 3 (a) of the Criminal Code of Georgia (aggravated murder) and have been pending ever since. In the period between February 2008 and March 2015 the applicant was denied the status of victim on at least seven occasions. In the refusal letter, sent on 2 March 2015, a supervising prosecutor informed her that she could appeal against the prosecutorial decision withholding her victim status before the domestic courts within the time-limit of ten days. The applicant failed to do so. In another letter of 7 May 2015, she was once again reminded by the prosecutor’s office of the possibility to lodge a complaint with the domestic courts, however in vain. The applicant eventually filed an application with the first-instance court on 4 June 2018; her application was, however, dismissed as time-barred on 19 June 2018 for the failure to comply with the ten-day time-limit. It appears from the case file that in March 2020, the applicant complained about the ineffectiveness of the ongoing investigation with the Public Defender of Georgia. In reply, on 16 March 2020, she was informed that it was beyond the Public Defender’s mandate to intervene into the ongoing criminal proceedings.

THE COURT’S ASSESSMENT

3. The applicant complained under Articles 2 and 13 of the Convention that the national authorities had failed to conduct an effective investigation into the alleged murder of her son and that she had not been granted the status of a victim in those proceedings.

4. The Government contended, among others, that the complaint under Article 2 of the Convention had been lodged out of time, as the applicant had failed to demonstrate due diligence and take appropriate initiative to lodge her application with the Court with due expedition, the latest within six months after the domestic court’s decision of 19 June 2018. The applicant, on her part, claimed that the reply of the Public Defender dated 16 March 2020 to her complaint should have been taken as a starting point for the calculation of the six-month period in the present case.

5. The Court notes that the applicant’s son was allegedly murdered on 5 February 2008 and the criminal investigation started on 6 February 2008. The applicant, however, lodged her application with the Court on 25 June 2020, that is with more than twelve years’ delay. Noting that, according to the case file, the absolute majority of the investigative actions were conducted in the first few years of the investigation, with the applicant last being interviewed in September 2013, the Court considers that the standstill in the investigation dates back to the above date, well before 25 June 2020, when the present application was lodged. Thus, the applicant remained passive in respect of the seemingly dormant investigation for more than nine years (compare Açış v. Turkey, no. 7050/05, §§ 41-42, 1 February 2011; Utsmiyeva and Others v. Russia (dec.), no. 31179/11, § 36, 26 August 2014, and Obajdin v. Croatia, no. 39468/13, § 34, 4 July 2017).

6. Even if taking the prosecutorial refusal to grant the applicant the victim status as a point of departure for the purposes of the Court’s assessment (see in this connection Shavlokhova v. Georgia (dec.), no. 4800/10, § 23, 18 September 2019), and disregarding the fact that the applicant’s relevant application with the court was found to be time-barred, the Court considers that 19 June 2018, as suggested by the Government, should be considered as the latest starting point for the calculation of the six-month period. The Court cannot discern any valid reason as to why it should accept the applicant’s unsubstantiated assertion that the six-month rule ought to be calculated from 16 March 2020, the date of the Public Defender’s reply. It cannot be excluded that the applicant’s reference to that letter might have been an attempt to justify her lack of due diligence at domestic level in order to become eligible to bring her application to the Court under Article 35 § 1 of the Convention (see ibid. § 25; see also, Parjiani v. Georgia (dec.) [Committee], no. 57047/08, § 35, 15 May 2018; Akhvlediani and Others v. Georgia (dec.), no. 22026/10, §§ 27-28; and Subari and Kobidze v. Georgia (dec.) [Committee], no. 37678/10 and 37789/10, § 14, 27 May 2014; contrast Shavadze v. Georgia, no. 72080/12, § 26, 19 November 2020).

7. The Court, hence, considers that the applicant has failed to comply with the six-month time-limit as required by Article 35 § 1 of the Convention, and her complaint under Article 2 must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

8. As to the complaint under Article 13 of the Convention, the Court, in the light of all the materials in its possession, considers it manifestly ill‑founded. Accordingly, this complaint must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 13 October 2022.

Martina Keller Stéphanie Mourou-Vikström
Deputy Registrar President