The Human Rights Education and Monitoring Center (EMC) addresses the Prosecutor’s Office on the case of Temirlan Machalikashvili’s murder and asks to assess the legitimacy of detention operation carried out in Duisi village on the 26^thof December 26^th, 2017, Risk Minimization Plan for the abuse of power and violation of rights during the stages of its planning and implementation, as well as timelines and adequacy of medical assistance provided for Temirlan Machalikashvili. Furthermore, EMC believes that on the basis of subparagraph ‘C’, paragraph 3, article 333 of the Criminal Code of Georgia, for the case on the abuse of official authority that has been studied in the Prosecutor’s Office, legal liability should be examined not only for the employee who actually fired at Machlikashvili, but for other employees of the State Security Service, who led planning and implementation stages of the operation too.

Article 2 of the European Convention on Human Rights (right to life) prohibits murder by the state agents intentionally as well as negligently and only deems such case admissible if it represents an absolute necessity for the purposes of preserving life or protecting from illegal violence. When examining State’s liability under article 2, The European Court discusses an obligation to preserve life during planning and implementation of operation. According to the Court, in order to comply with Article 2, everything must be done to minimize cases of ‘negligent’ homicide or usage of lethal force. [1] For this purpose, Law enforcement officers, should have an access to neutralizing remedies (such as water cannons or rubber bullets) during the operation, automatically eliminating the necessity of using lethal force. [2] In addition, rights and responsibilities of the law enforcers involved in different stages of operation should be clearly defined and relevant training should be provided. [3]

When discussing the obligation of protecting life, the European Court focuses on providing adequate medical assistance to persons injured during the special operation. The court does not consider it as a necessary precondition to save persons’ life as a result of medical assistance, but, despite this, it examines possible negligence of law enforcers to protect person’s life, in case of delayed call for an emergency service for instance. [4]

For such cases, the European Court imposes the burden of proof on State and asks to provide convincing argument about the necessity of shooting, after the applicant manages to demonstrate the abuse of authority by prima facie evidences. The court, when determining the credibility of argument, focuses on the effectiveness of investigation, in the context of general circumstances including ascertaining threats created by the deceased person. [5] For determining the absolute necessity of using the force, the Court uses conclusions on the ‘ seriousness’ of investigation when the deficiencies of investigation concern identification of a law enforcer causing threat to life, absence of experts’ conclusions, or procrastination of the investigation. [6] Absence of providing evidence by the State in the part of planning and controlling the operation, for instance, is a sign of deficiencies in measures for protecting life and, therefore, is used against the State. [7] It is also worth noting that the Court is critical towards automatic sharing of the version submitted by the law enforcers on the cases of death caused by the law enforcement officers. [8] Policemen’s testimony, in general, is given a suspicious value of proof for the cases of the abuse of authority by the State. [9]

In accordance to the above mentioned standards, in its extensive statements submitted to the Prosecutor’s Office, EMC indicates that general legal regime considered under the Criminal Procedural Code of Georgia and not a special legal regime considered for counterterrorist operations, should apply to the detention operation carried out in Duisi village on December 26^th, 2017. Consequently, taking into consideration Temirlan Machalikashvili’s activities and his ordinary way of life, it is unclear why it became necessary for his detention to conduct a large-scale, armed operation, aimed at demonstrating force, involving risks of violating rights from the very beginning. Furthermore, if the State Security Service had a court’s decision on the detention, excluding the immediate necessity of special detention, questions marks raise on why the detention was not carried out during the day time, according to the rule defined by the law. This problem is directly related to the minimization of risks during the detention which, as stated above, is strictly examined by the European Court under the obligation to protect life.

For the present case, EMC asks the investigation to strictly examine the important circumstances related to the planning and implementation of Machalikashvili’s detention by the State Security Service, including the minimization plan for the usage of lethal force:

1. Who were the agencies and persons responsible for planning and conducting the special operation, what was their action strategy and plan and how effective was the coordination process between them?
2. How sufficient is justification of the State Security Service on the assessment of scale and forms of resistance expected from the persons to be detained?
3. Did the State Security Service consider a Risk Minimization plan when planning the operation? Were the members of Special Forces equipped with less harmful coercive means and what was their usage instruction?
4. In the moment of using lethal force, how was the obligatory rule of security kept by the members of Special Forces?
5. Were the members of special operation trained on the rules of using firearms, when were they trained and how relevant was the content of training?
6. Did the State Security Service have emergency vehicles as well as doctors mobilized in the field of detention?
7. Which Agency was in charge of coordinating timely hospitalization of Temirlan Machalikashvili and how timely/instant was this process?

In addition, EMC notes that, due to the fact that only the State Security Service had a full control over the place of the scene for several hours after the wounding of Machalikashvili and they allegedly removed the grenade owned by the Machalikashvili, the validity of the evidence becomes disputable. Furthermore, forms and conditions of obtaining substantive and direct evidence, raises serious questions on impartiality and independence of investigation on the case of alleged abuse of authority by the members of State Security Service.

EMC represents interests of the family of Temirlan Machalikashvili against the investigation on the case of alleged abuse of authority. It should be noted that, despite the request, Machalikashvili’s family has not yet been granted a status of victim’s assignment and this was appealed to the superior prosecutor by the EMC. In the conditions of absence of the status of victim’s assignment, attorneys of EMC are provided with an access to the part of the case material (despite secret materials), however, for the full participation in the case and its adequate assessment, it is essential for the status of victim to be granted to the family of Machalikashviliin a timely manner.

Taking into consideration high public interest, as well as the importance of public control over the investigation, EMC will continue informing public regarding the process of investigation and important news related to the case.