The Human Rights Education and Monitoring Center (EMC) evaluates the government's observations on the Machalikashvili family's application before the European Court of Human Rights. The European Court commenced the examination of the case of death of Temirlan Machalikashvili in an expedited manner and the proceedings are in the last stage of communication of the application to the government.

EMC submitted the application to the European Court on June 6, 2019. On October 23, 2019, the European Court started communication proceedings with the Government of Georgia. However, the process was deferred due to the pandemic, and we were informed of the positions of the government on September 1, 2020. On November 21, 2021, EMC responded to the Government's observations and responses and submitted its written justification to the European Court.

In the application submitted to the European Court, the applicants, Temirlan Machalikashvili's father - Vakha Machalikashvili, mother - Medico (Aiza) Margoshvili, sister - Nata Machalikashvili and grandmother Elene Machalikashvili have raised complaints on the alleged violation of Article 2 (Right to life), Article 3 (Prohibition of torture, inhuman or degrading treatment or punishment) and Article 13 (Right to an effective remedy) of the European Convention on Human Rights.[1]

The document below outlines the government's positions and our response to them.

The apparent factual inaccuracies in the Government's observation regarding Temirlan's illegal connections

The government repeated before the Strasbourg court the baseless allegations regarding Temirelan Machalikashvili’s support of terrorism and attempts to dehumanize him, which had time and again been criticized by the EMC at the national level.[2]

In particular, in its comments, government provided a detailed description of the factual circumstances of the counter-terrorist operation on Beri Gabriel Salosi Street on November 21-22, 2017, and sought to highlight the link between Ahmed Chataev (and members of his terrorist group) and Temirlan Machalikashvili. Although the Machalikashvili family was not allowed to exercise their defence rights until the termination of the criminal case against Temirlan, the state still disregarded the presumption of innocence of Temirlan Machalikashvili and made one-sided allegations that the case contained enough evidence to prove Machalikashvili’s involvement with the members of  Chataev's gang. However, beyond the erroneous statements, the State has not been able to provide any real evidence of these allegations. As EMC has repeatedly pointed out, the evidence in the case is fragmentary, unverified and inaccurate and does not allow conclusions to be drawn on Temirlan's guilt.

Positions presented by the Government on the planning stage of the special operation of 26 December 2017 and the applicant's arguments

In response to the applicants' arguments concerning the shortcomings in the planning of the special operation of 26 December 2017, the State sought to exclude the jurisdiction of the Human Rights Court by referring to the need by the State to exercise political decision-making authority in the fight against terrorism. The state highlighted the threat of armed resistance by Temirlan Machalikashvili during the arrest. However, we have reiterated before the European Court that the rulings of the Tbilisi City Court on the arrest of Temirlan and the search of his residence did not contain any evidence of his possible armament. The operation to arrest Temirlan Machalikashvili was carried out on the basis of the Criminal Code and the special regime of the counter-terrorist operation provided by the Law of Georgia on Combating Terrorism did not apply to the case.  In addition, the order to detain Temirlan Machalikashvili was issued on December 23, giving state authorities sufficient time to plan the operation and take into account the possible threats. Consequently, it is unreasonable to compare the Temirlan Machalikashvili arrest operation with the exceptional counter-terrorist operations in which the state has to deal with particularly large-scale and unexpected terrorist threats and make political decisions in that regard.[3]

While the State assumption that there was a risk of armed resistance on the part of the detainees on 26 December 2017 was unfounded, even if this were true, the state had an obligation to consider the following issues at the planning stage of the special operation: the type of weapon the detainees might have; Non-lethal methods of detention and negotiation techniques to ensure peaceful surrender; Ensuring the safety of third parties in the vicinity in case of armed conflict; Daily routine of detainees and the best place and time for their detention. The government failed to submit any documents reflecting the analysis of the above issues in the planning of the special operation of December 26, 2017 and the reduction of threats to human life.

1. The testimonies of senior State Security officials indicate that the expectation of armed resistance by the detainees was based solely on the general experience of the counter-terrorist operation on Beri Gabriel Salosi Street on 21-22 November, 2017 and not on assessing the threats posed by specific individuals in this situation. [4]
2. The special forces participating in the arrest operation received only oral and general instructions about the possible danger of the detainees being linked to Ahmed Chataev's terrorist group and the chances of them resisting arrest;
3. The State has not provided information on the detailed instructions for the use of force by each of the Special Forces commandos, their training and specific roles in relation to a particular special operation. As it is clear from the testimony of one of the special forces officer, he was not even informed about which bedroom belonged to Temirlan Machalikashvili.

Under these conditions, the special forces were awarded unreasonably wide discretion, which further increased the risk of excessive use of force and loss of life during the special operation. [5]

In addition, it should be noted that conducting a special operation at night is contrary to the requirements of the Criminal Code of Georgia, which stipulates that an investigative action is allowed only during the daytime, except in cases of urgency/emergency. [6]

Special operation of December 26, 2017

The state failed to provide satisfactory evidence on the proportionality and necessity of the use of force against Temirlan Machalikashvili on 26 December 2017.[7] The Government's arguments that the shooting at Temirlan was carried out under the condition of necessary defense are entirely based on the testimony of the Special Forces participating in the special operation and are not convincing due to the following circumstances:

1. The commandos were interviewed for the first time on February 1-2, 2018 - 5 weeks after the special operation, which significantly increased the risks of coordination between them, especially when commandos were the only eyewitnesses to the incident. [8]
2. No detailed questions were asked to the commandos regarding the circumstances relevant to the case. The prosecution did not seek to resolve the discrepancies between the testimonies and establish the suspicious circumstances. [9] For example, the Prosecutor's Office did not investigate whether Temirlan Machalikashvili would be able to resist while lying down, whether the commandos issued a warning about the use of weapon, whether it would be possible to avoid Tamirlan's alleged resistance without lethal means, and why the firing squad moved the hand grenade without ordering the ballistic expert team.
3. In order to verify the testimony, the Prosecution Office did not request the records of the handheld transceiver of the special forces and the telephone communications between the special forces and the SSSG officials during the special operation.

The main evidence of Temirlan Machalikashvili's alleged resistance is a hand grenade removed from Temirlan's room, on which, according to a genetic examination, traces of Temirlan Machalikashvili's blood were found. However, according to the conclusion of the fingerprint examination, no fingerprints of Temirlan Machalikashvili were found on the grenade.

In addition, the deficiencies identified in the process of removing, storing and examining the grenade call into question the reliability of this evidence:

1. The state could not explain the reason as to why the State Security Service exercised complete control over Temirlan’s bedroom between the period of 03:30 - 04:00, time of the shooting, and 07:00, start of the search, while the Machalikashvili family was detained on the first floor of the house.
2. The State explained that technical error lead to inaccuracies related to the numbering and dating of the grenade packaging, although contradictory evidence in this regard casts doubt on this version.
3. The State could not substantiate the need for a ballistic examination ordered by the State Security Service and the detonation of a hand grenade, as the verification of the grenade was not related to a significant legal outcome for either Temirlan Machalikashvili's death or the ongoing investigation against Temirlan Machalikashvili. The detonation of the grenade made it impossible to verify the conclusions of the expert examination and to conduct additional examination.

Ineffectiveness of the ongoing investigation into the murder of Temirlan Machalikashvili further casts doubt on the credibility of the version presented by the state.

Ineffectiveness of the investigation

The investigation into the case of Temirlan Machalikashvili's death was carried out with significant violations from the beginning.

Violation of the principle of independence

The removal of pieces of evidence relevant to the case, including a hand grenade, from Temirlan Machalikashvili's room was carried out by the colleagues of the shooters from the State Security Service, contrary to the principle of institutional independence of the investigation.[10] The evidence was kept at the State Security Service for 5 weeks, during which period the genetic, fingerprint and ballistic examinations were performed on the grenade. In addition, State Security Service investigators did not secure the scene until prosecutors arrived, which increased the risk of losing and destroying important evidence.

Statement made by the State Security Service spokesperson a few hours after the special operation revealed that the state shared the story about Temirlan’s the armed resistance, which, from the outset, called into question the possibility of conducting an objective investigation.

Limited scope of investigation

The investigation into Temirlan Machalikashvili's case was limited to assessing the need to use force against Temirlan and did not cover such important issues as planning of a special operation and reducing the risk of  threat to life and possible falsification and destruction of evidence. SSG officials were first questioned about the planning of the special operation in August 2019, 20 months after the special operation, and they were not asked any relevant questions about the detailed instructions, elaborated documents and specific role of the Special Forces during the planning phase.

Shortcomings in obtaining evidence

Despite the applicants' repeated requests, the Prosecutor's Office was unable to locate the headphones shown in the photos taken in Temirlan Machalikashvili's room. The investigation also failed to determine the location of Temirlan Machalikashvili's mobile phone at the time of the shooting and did not provide an examination of bloodstain-like marks found on it.

Denial of victim status and access to classified materials

During the investigation, Malkhaz Machalikashvili was denied victim status, without justification, which made it impossible for him to appeal the prosecutor's decision to terminate the investigation. In addition, the Machalikashvili family was given access to the evidence - the testimony of the Special Forces in January 2020, a few days before the termination of the investigation. The Prosecutor's Office denied the request of the Machalikashvili family to conduct an additional investigative experiment to verify their version of the events that took place.

Article 3 of the Convention

The State rejected the applicants' substantiated arguments concerning ill-treatment during the special operation and gave priority to the testimony of the Special Forces in order to establish the factual circumstances relevant to the case.

At the planning stage of the special operation of December 26, 2017, the State Security Service did not consider the presence of the Machalikashvili family at home and the alternative strategy for arresting Temirlan Machalikashvili. Although the case includes explanations from members of the Machalikashvili family and the report of the Center for Psychosocial and Medical Rehabilitation of Torture Victims about the severe mental suffering they experienced, the state considered the special operation carried out at night by armed and masked commandos as a proportional measure to decrease the risks of armed resistance. At the same time, the State considered that pointing weapons at the applicants and the ordering them to stay on the ground served the security interests even though none of them had been charged with any crime and did not resist the Special Forces.

The Prosecutor's Office did not launch an independent investigation into the ill-treatment, and the participants of the special operation were questioned about this fact only 20 months after the special operation. In this case, too, the prosecution was satisfied with the general responses of the Special Forces denying the ill-treatment and did not ask additional questions to resolve the discrepancies between the testimonies. This shows that the state did not make any real attempt to establish the circumstances of the case and based its findings only on the testimonies of the Special Forces.

Conclusion

In view of the above, we consider that the allegations in the application on behalf of the Machalikashvili family on the violation of Articles 2, 3 and 13 of the Convention are well-founded and well-substantiated; in our view and in accordance with well-established case law of the European Court, the Court must share these arguments.

Given the evidently ineffective ongoing investigation and the eventual termination of the investigation into the case, in January 2020, the European Court remains the only legal mechanism with real potential to restore the rights of the Machalikashvili family. The most effective means of restitution integrum will be to oblige the Government of Georgia to reopen the case at the domestic level, which means conducting an effective and fair investigation of the case and prosecuting those responsible. This is the central interest and request of the Machalikashvili family before the European Court.

EMC will continue to inform the public regarding the ongoing proceedings in the case of Machalikashvili and others v. Georgia, at the European Court of Human Rights.

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