Přehled
Rozhodnutí
FOURTH SECTION
DECISION
Application no. 4731/10
Vakhtang MENABDE
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 13 October 2015 as a Committee composed of:
Krzysztof Wojtyczek, President,
Faris Vehabović,
Yonko Grozev, judges,
and Fatoş Aracı, Deputy Section Registrar,
Having regard to the above application lodged on 18 January 2010,
Having regard to the declaration submitted by the respondent Government on 9 July 2015 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
1. The applicant, Mr Vakhtang Menabde, is a Georgian national, who was born in 1987 and lives in Tbilisi. He was represented before the Court by Ms T. Abazadze and K. Shubashvili, lawyers practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice.
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. Between early April and late June 2009 thousands of opposition supporters held demonstrations in various parts of Tbilisi, as well as in a few other major cities of the country, on a daily basis, demanding resignation of President M. Saakashvili and his Government. In the light of those ongoing protests, the Office of Public Defender of Georgia established a 24‑hour monitoring group for the purposes of recording human right breaches.
5. During the above-mentioned period there were several incidents where the police allegedly used excessive force against demonstrators. The present application concerned one of such incidents which occurred on 15 June 2009.
6. In particular, in the morning of 15 June 2009 some fifty members and supporters of a youth opposition group gathered in front of the Tbilisi police headquarters to protest the arrest of opposition activists which had occurred a few days earlier. The applicant, who was a member of the above‑mentioned monitoring group of the Public Defender’s Office, also attended the street protest, in performance of his professional duties.
7. After having tolerated the protest for some fifteen-twenty minutes, police officers proceeded to its forceful dispersal. According to the applicant, he received from the dispersing police officers a series of blows made with truncheons on his spine, head and hands. After the dispersal, a number of protesters, including the applicant, were taken inside of the police headquarters. The applicant was placed in a cell. However, fifteen minutes later a police officer released him, explaining that he had been arrested by mistake.
8. On 23 June 2009 the Public Defender of Georgia applied to the Chief Public Prosecutor on behalf of the applicant, requesting the initiation of criminal proceedings on account of the applicant’s alleged ill-treatment and unlawful deprivation of liberty by officers of the Tbilisi police headquarters.
9. On 17 August 2009 the Chief Public Prosecutor’s Office replied to the Public Defender, noting that a general criminal investigation into the incident of 15 June 2009 had been opened and that results of that investigation would be made public in due course.
10. On 21 October 2009 the Public Defender enquired about a progress in the investigation, if any. The same enquiries were filed with the prosecution authority by the applicant’s lawyer on 20 November and 25 December 2009, but no reply followed.
THE LAW
11. On 15 September 2014 the application was communicated to the Government under Articles 3 and 5 of the Convention.
12. By a letter of 9 July 2015 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
13. The declaration provided as follows:
“The Government wish to express their regretful acknowledgement of a violation of:
- Article 3 of the Convention under its procedural limb on account of shortcomings identified in the course of the investigation into the applicant’s injuries allegedly sustained during the demonstration of 15 June 2009;
- Article 5 §§ 1 and 2 of the Convention on account of the deprivation of the applicant’s liberty.
Considering the fact that the relevant domestic law enforcement authorities are best placed, by virtue of the power to conduct an effective criminal investigation, to determine the applicant’s complaints under the substantive limb of Article 3 of the Convention with regard to the injuries allegedly sustained during the demonstration of 15 June 2009,
The Government, in the light of the particular facts of the applicant’s case, undertake:
- to conduct prompt and effective investigation into the applicant’s allegations of ill-treatment during the demonstration of 15 June 2009;
- to pay 4,500 (four thousand five hundred) Euros to cover any and all pecuniary or non-pecuniary damages as well as costs and expenses, plus any tax that may be chargeable to the applicant. This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that may be applicable. It will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points...”
14. By a letter of 16 September 2015 the applicant indicated that he was not fully satisfied with the terms of the unilateral declaration. In particular, whilst accepting Government’s acknowledgement of a violation of his rights under the procedural limb of Article 3 as well as under Article 5 §§ 1 and 2 of the Convention, he still expressed his disappointment about the absence of a clear acknowledgement of a violation of Article 3 under its substantive limb as well. He also requested that the Government should increase the amount of the compensation payable to him.
15. Article 37 of the Convention provides that it may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to one of the conclusions specified, under (a), (b) or (c) of paragraph 1 of that Article. Article 37 § 1 (c) enables the Court in particular to strike a case out of its list of cases:
“for any other reason established by the Court, it is no longer justified to continue the examination of the application”.
16. The Court reiterates that in certain circumstances, it may strike out an application under Article 37 § 1 (c) on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Taktakishvili v. Georgia (dec.), no. 46055/06, 16 October 2012).
17. It further recalls that it may accept a unilateral declaration even in the absence of prior friendly settlement negotiations (see Union of Jehovah’s Witnesses and Others v. Georgia (dec.), no. 72874/01, §§ 23‑30, 21 April 2015).
18. To this end, the Court has examined the declaration submitted by the Government in the present case in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey (preliminary issues) [GC], no. 26307/95, §§ 75‑77, ECHR 2003‑VI; WAZA Spółka z o.o. v. Poland (dec.), no. 11602/02, 26 June 2007; and Sulwińska v. Poland (dec.), no. 28953/03, 18 September 2007).
19. As regards the applicant’s arguments, the Court does not consider them as valid objections capable of outweighing the significance of the Government’s unilateral declaration. The Court considers that, in the particular circumstances of the present case, the Government’s acknowledgement of a violation of Article 3 of the Convention under its procedural limb, coupled with their remedial undertaking to conduct effective investigation, is rational and comprehensive enough to embrace the core of the matter and would no longer allow the applicant to claim to be a victim of a continued violation under this provision (see, for instance and as a recent authority, Prądzyński v. Poland (dec.), no. 49284/10, 25 March 2014, and also compare with Danelia v. Georgia, no. 68622/01, §§ 40-46, 17 October 2006, where, in the similar absence of meaningful criminal investigations at the domestic level, the Court was unable to assess the complaint under substantive limb of Article 3 of the Convention; see also Bekauri and Others v. Georgia (dec.), no. 312/10, 15 September 2015).
20. Indeed, the Court recalls that it has already established in many cases, including those brought against Georgia, its practice concerning complaints about the allegations of ill-treatment by the police and lack of adequate investigation in that respect (see, amongst many others, Begheluri v. Georgia, no. 28490/02, §§ 105-112, 7 October 2014; and Davtyan v. Georgia, no. 73241/01, §§ 35-47, 27 July 2006).
21. Having regard to the nature of the admissions contained in the Government’s declaration, as well as the amount of the compensation proposed to the applicant – which is fully adequate in the particular circumstances of the present case (compare with Botchorishvili v. Georgia (dec.), no. 652/10, § 7 30 June 2015; Batiashvilebi v. Georgia (dec.), no. 75737/11, § 9, 30 June 2015, and Bekauri and Others, the decision cited above) – the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1 (c)).
22. Moreover, in light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine).
23. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application could be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
24. In view of the above, it is appropriate to strike the case out of the list.
For these reasons, the Court, unanimously,
Takes note of the terms of the respondent Government’s declaration under Articles 3 and 5 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 5 November 2015.
Fatoş Aracı Krzysztof Wojtyczek
Deputy Registrar President