On January 19, the European Court of Human Rights published its decision regarding the case of Machalikashvili and others v. Georgia. The decision partially upheld the claim of the applicants and established a procedural violation of the right to life due to the fundamental violations revealed in the investigation of the deprivation of the life of Temirlan Machalikashvili. To a large extent, it was due to the flaws in the investigation that the court failed to answer the key question - whether the force used against Temirlan was disproportionate, and therefore failed to recognize the substantive violation of the right to life. Moreover, the Court did not consider it necessary to independently assess the violation of the right to home remedy of effective legal protection, as this issue is fully covered under the procedural aspect of Article 2.

The Social Justice Center offers an overview of the decision, which presents the court's assessment of all key issues.

• Procedural part of the violation of the right to life

In the procedural violation of the right to life, the court assessed the independence and adequacy of the investigation and the involvement of the victim in the investigation process and found that in no aspect did the investigation meet the standard set by Article 2 of the European Convention on Human Rights.

• Independence of investigation

The European Court shared the applicant's arguments regarding the violation of the principle of independence of the investigation. In particular, the court pointed out that immediately after the end of the special operation, the initial investigative actions, including the search of Temirlan's room and the retrieval of the most important evidence in the case - a hand grenade, were carried out by investigators of the State Security Service, who cannot be considered independent entities from the persons participating in the special operation. According to the court's assessment, the investigation, which the prosecutor's office launched in the case of the deprivation of the life of Temirlan Machalikashvili, was based on the investigative actions initially carried out by the SSSG. The Court pointed out that, as it has repeatedly explained in similar contexts, initial “ procedural deficiencies [ investigative in terms of independence and impartiality of actions ] threatens the further development of the investigation ."

• Adequacy of investigation

In assessing the adequacy of the investigation, the court focused on several factors. First, the court discussed whether the scope of the investigation was adequate and whether it included part of the planning and implementation of the special operation. In this aspect, the Court noted that, as a result of the applicants' repeated requests, the senior officers of the Security Service, after a delay of 20 months, were interviewed regarding the circumstances of the planning and conduct of the special operation. Despite this, according to the court's assessment, the investigation in this part was limited due to the fact that there were no documents and/or reports showing the process of planning and implementation of the special operation in the case.

In addition, the court once again emphasized the circumstances of obtaining evidence and the fundamental problem of the independence of the investigation in this regard. According to the court 's explanation, the search of Temirlan's room " was conducted by SSSG investigators , who were not sufficiently independent from the special forces . After the search , the scene was not protected and its original condition was not preserved, which had a direct impact on the investigation… For example , the court pointed out that the investigation could not determine the location of the mobile phone taken from Temirlan's room at the time of the shooting and the origin of the traces of blood on it, as well as the fact of the presence of headphones at the scene . Determining these circumstances was important to determine Temirlan's actions at the time of the shooting and to verify the reliability of the version developed by the state. As for the original location of the hand grenade, the court considered that that its relocation might have been necessary to find emergency medical care for Temirlan. Here, the court noted that the hand grenade was neutralized by the SSSG employees themselves, and they removed it from the scene.

The court also took into account that the persons participating in the special operation were the only eyewitnesses to the use of force against Temirlan, and therefore their testimony had significant evidentiary value. Therefore, the court found it unjustified that the special forces were interrogated with a delay of 5 weeks, since the delay in the interrogation created the risks of conferring the versions among themselves. In addition, with the passage of time, it became difficult for the special forces to recall the details of the case. In this regard, the court noted that it was not clear from the case materials that the special forces drew up any report on the conduct of the special operation. According to the court, these circumstances " may create an impression on the applicants and the public , that the members of the security forces were operating in a vacuum and , therefore , were not accountable for their actions before the judicial authorities . " Finally, the court came to the conclusion that the delay in the investigation by the special forces indicated to the inadequacy of the investigation.

• Participation of the victim in the process

The court separately discussed participation of the victim in the process as one of the important components of an effective investigation. In this regard, the court noted that the applicants were granted access to the testimonies of the special forces – “the only direct evidence regarding the planning and execution phase of the special operation " - only a few days before the investigation was closed. Accordingly, they were limited in their ability to effectively participate in the investigation, especially when the summary decision of the Prosecutor's Office regarding the termination of the investigation in the case was based on the version developed in the testimonies of the special forces. The State has not presented any arguments to justify the belated introduction of this evidence to the applicants.

In addition, according to the court's assessment, because the Prosecutor's Office refused to grant the applicant victim status, he was unable to appeal the prosecutor's decision to terminate the investigation. The court noted that a similar problem was revealed in other cases against Georgia. The court emphasized that judicial control over the prosecutor's decisions is an important guarantee to ensure accountability and transparency of state bodies. Accordingly, the court concluded that " as a result of a refusal to grant the applicant the status of a victim , it made it impossible for him to exercize an important procedural right ."

Overall, the Court shared all the fundamental arguments that the applicants had raised with the investigating authorities, and then in the application submitted to Strasbourg. The flaws revealed in the conduct of the initial investigative actions, including the collection of evidence important to the case, the improper investigation of the issue of planning and control of the special operation, the delayed questioning of the special forces and the refusal to grant the applicant victim status became the basis for the court to establish a procedural violation of the right to life.

• A substantive part of the violation of the right to life

While discussing the substantive part of the violation of the right to life, the Court considered that the national legislation clearly prescribes the framework for the use of lethal force. Regarding the circumstances of the special operation, the court pointed out that the State Security Service did not face a spontaneous challenge during the special operation, as it had three days to plan the operation to arrest Temirlan. In addition, the court emphasized that the special operation was not conducted to prevent a terrorist act. The court also noted that " the state did not present the documents and materials that the State Security Service used for the operation, at the time of the planning, duration and the completion of the operation. Formal accounts of how the operation was planned and developed are also not found in the investigation materials , and the government has not provided a proper explanation for this ."

According to the court, the circumstances of Temirlan's death are not similar to those in cases where the death occurs in custody, or in other situations where state authorities exercise effective control. Based on this, the Court held that the burden of proof regarding the proportionality of the use of force should not be shifted to the State. In this regard, the court considered that the key question was related to Temirlan's behavior at the moment when the special forces broke into his room. In this regard, the court emphasized the existence of two conflicting versions. In particular, according to the version of the investigation, a shot was fired at Temirlan after he tried to activate the hand grenade. In contrast, the applicants indicated that Temirlan was most likely using a mobile phone at the time of the raid by the special forces. The mere fact that the hand grenade recovered from Temirlan's room had traces of his blood on it was enough for the Strasbourg court to find the state's version convincing when assigning the burden of proof. In such circumstances , the court considers that the evidence before it makes it impossible to evaluate these two conflicting versions , despite the fact that it stems , at least in part, from the shortcomings of the investigation . " While discussing the issue of the burden of proof, the court also indicates that it considers that the objective of the special operation was to arrest Temirlan as part of a terrorism-related investigation and, in light of the November 21-22, 2017 special operation, the SSSG could have anticipated that Temirlan could have been armed.

In addition, the court took into account that the circumstances of the case related to the use of force were not assessed by the national court. According to the court's position, it cannot fulfill the role of a court of first instance because it is detached from the local circumstances and does not have opportunity to assess the circumstances in which the special forces took the shot and whether Temirlan was under their effective control at the time the special forces entered the room.

The court also noted that the SSSG anti-terrorist department failed to organize an ambulance at the scene of the operation, which delayed the transfer of Temirlan to the hospital and the provision of artificial respiration. However, given that Temirlan was treated with emergency care by SSSG medical staff, no association was found between delay in hospitalization and death.

To summarize, according to the court's conclusion, the liability of the state in Temirlan's death and the substantive violation of Article 2 of the Convention could not be proven beyond reasonable doubt.

• Judge Gnatovskyy’s dissenting opinion on this issue

According to the dissenting opinion of Gnatovskyy, one of the judges of the fifth section, the substantive violation of the right to life should have been established, on top of procedural violation. In the dissenting opinion, Judge Gnatovskyy criticized the court's assessment of a key issue related to the proportionality of the use of force, namely the issue of aassigning the burden of proof. According to Gnatovskyy, the version developed by the state was called into question by a number of circumstances indicated by the applicants, including the circumstances of the removal and examination of the hand grenade. According to Gnatovskyy, in similar cases, when the contested events are completely or mostly within the exclusive knowledge of the government, the established practice of the European Court provides for the imposition of the burden of proof on the government. According to the author of the dissenting opinion, procedural violation of the right to life is directly related to its substantive violation , because determining the truth in the case is only possible through investigation. Accordingly, the State had a duty to investigate the case effectively and to provide a reasonable and convincing explanation regarding the proportionality of the use of force, which it failed to provide.

• Assessment of violation of Article 3 of the Convention

The court considered inadmissible the part of the applicants' claim, in which they argued about the inhumane and degrading treatment during the special operation. The court did not consider it necessary to question the necessity and reasonableness of conducting the operation at night, with the participation of 32 armed and masked special forces. According to the court, such operations inevitably cause negative emotions and, accordingly, “had a heavy impact on the applicants”. However, the court considered that the evidence in the case did not indicate that the special operation was aimed at instilling fear in the applicants or degrading them. And the stress the applicants were subjected to during the operation, in the opinion of the court, did not exceed the limit that is expected during this type of operation. The court also took into account the fact that the applicants did not complain about improper treatment during the first interview, and the first applicant (Vakha Machalikashvili) refused the offered medical examination.

• summary

The Social Justice Center plans to appeal the decision made by the court on the substantive aspect of the right to life at the Grand Chamber of the European Court, because it considers that this decision is not in line with the jurisprudence of the European Court, and this is important for the full restoration of the rights of the applicants in this case and for the development of clear and consistent case law for similar cases in the future. In this regard, the dissenting opinion of the member judge of the Chamber strengthens the position of our claim. The decision can be appealed at Grand Chamber in the period of 3 months.

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