On 18 June 2024, the Special Investigation Service of Georgia published a statement informing the public that it did not consider it appropriate to reopen the investigation into the unlawful killing of Temirlan Machalikashvili.

Social Justice Center, which is defending the interests of the Machalikashvili family before the European Court of Human Rights and at the level of the national investigation, considers the decision of the Special Investigation Service to be unjustified and continues the trend of unfair, ineffective, and politicized justice in this case. At the same time, this decision once again proves that the Special Investigation Service is not an independent agency and does not have the institutional resources to investigate serious and politicized cases of crimes committed by law enforcement agencies.

• Review of the decision of the Special Investigation Service

According to the statement of the Special Investigation Service, the Service decided on the cases of the "Tsintsabadze group" on the basis of the recommendations of the Committee of Ministers of the Council of Europe and, within the framework of this group of cases, considered that it was not appropriate to open an investigation into the case of the unlawful killing of Temirlan Machalikashvili. The Special Investigation Service based its assessment on several arguments:

1. According to the Service, on 19 January 2023 the ECHR issued a judgment on this case, in which it found a violation of the procedural aspect of Article 2 of the Convention and declared the application inadmissible as regards the violation of Article 3 and did not consider it necessary to rule on the violation of Article 13. As no violation of the substantive parts of the Convention articles was found, the Service considered that it had no direct obligation to investigate. After the CoE Committee of Ministers renewed the discussion on the progress of the implementation of the decision on the Temirlan Machalikashvili case in March 2024 and invited the Services to discuss the advisability of reopening the investigation, the Service discussed and considered it inappropriate, as in its opinion the Prosecutor's Office had conducted an impartial investigation into the Machalikashvili case, collected evidence, interviewed all the persons involved and carried out important expertise.
2. Moreover, according to the justification provided by the Special Investigation Service, the procedural flaws established by the European Court in the case were not procedural errors of such a magnitude that they could have affected the outcome of the case. At the same time, they cannot be corrected in the context of a new investigation.
3. According to the Special Investigation Service, although the initial investigation in the case of Temirlan Machalikashvili was conducted by the State Security Service, which, according to the European Court of Human Rights, cannot be considered an independent authority, there would still be a risk of evidence being destroyed if the investigation were conducted by the Special Investigation Service.
4. In addition, although the European Court considered it a shortcoming that the Prosecutor's Office was limited in its evaluation of the planning and control phase of the operation, the Service explains in the resolution that this shortcoming cannot be considered a problem, as the State Security Service is not obliged to compile such documents.
5. According to the service, although the ECHR found that the State Security Service employees who participated in and were associated with the special operation were questioned later, there is no evidence that the delayed questioning of the Special Forces had any criminal intent.
6. The Special Investigation Service is of the opinion that, although the ECHR considered it a violation that Temirlan Machalikashvili's family and lawyers were not given access to the confidential materials of the criminal case, the delayed disclosure of the confidential materials of the case to the applicants did not cause the substantial damage that would affect the results of the investigation.

The Special Investigation Service made the above-mentioned decision based only on the investigative materials prepared by the Tbilisi Prosecutor's Office and did not conduct a full, complete and impartial investigation.

The Special Investigation Service took one year to make this negative decision, and during this period the agency never responded to any of our petitions and statements, nor did it interview the family members of Temilan Machalikashvili. 1 year after the entry into force of the European Court's decision, we learned about the refusal of the investigation through a press release published on the official website of the agency. The manner in which the agency has been working on this case further illustrates the problem of its politicization and impartiality.

• Assessment of Social Justice Center

Social Justice Center considers that the decision of the Special Investigation Service is formal, not properly investigated, unjustified and contradicts the obligation to execute the ECHR judgment.

The European Court of Human Rights considered that the violation of the standards of impartiality and effectiveness of the investigation in the case of the unlawful killing of Temirlan Machalikashvili violated the procedural aspect of the right to life and considered that due to the ineffective investigation it was impossible to discuss various issues, including the violation of the essential part of the right to life. Therefore, the Special Investigation Service should have taken into account that the violation of essential aspects was not found by the European Court due to the fundamental shortcomings of the investigation and the lack of relevant evidence.

In its judgement, the European Court of Human Rights found that the state had violated fundamental principles of investigation in this case, including, according to the Court, the following

1. The principle of institutional impartiality of the investigation was violated in this case because, at the initial stage of the investigation, the most important evidence (including the grenade and the firearms) was examined by the very agency that conducted the operation and had to assess the question of the guilt of its employees. The reliability of this evidence had a direct impact on the investigation.
2. The Prosecutor's Office failed to properly assess such important facts as the traces of blood on Temirlan Machalikashvili's mobile phone and the presence of headphones. The proper examination of these issues was essential to counter the family's version, which suggested that Temirlan Machalikashvili was lying in bed with a mobile phone and headphones during the special operation and may not have realised what was happening.
3. The applicants' participation in the investigation process was deficient and the State failed to ensure their effective participation in the investigation, since Temirlan Machalikashvili's father, Malkhaz Machalikashvili, was not recognised as the victim's successor at any stage of the investigation, which prevented the Machalikashvili family from appealing against the decision of the Tbilisi Prosecutor's Office to close the investigation into the unlawful killing of Temirlan Machalikashvili. The European Court emphasised that, although the victim's family and lawyers were not recognised as successors, Machalikashvili's family and lawyers had the opportunity to review the case materials, but they were limited in their right to review the content of the testimonies of the special forces involved in the case in a timely manner, and the results of the investigation were later presented to the family.
4. At the investigation stage, the delay in questioning the Special Forces created a risk that the statements of the Special Forces could be contradicted.
5. The government failed to provide documents and reports relating to the planning and conduct of the special operation, which limited the ability to properly investigate this part of the case.

In view of the European Court's assessments, the Social Justice Center has repeatedly applied to the Special Investigation Service and submitted numerous applications and petitions requesting immediate investigative/procedural measures under the conditions of the resumption of the investigation, including 1. Renewed and additional questioning of high-ranking officials of the State Security Service; 2. Examination of the correspondence of the State Security Service employees and renewed questioning to evaluate numerous errors in their interrogations. 3. Carrying out an investigative experiment (which is essential and which was refused by the Tbilisi Prosecutor's Office) to investigate possible falsification of evidence. As mentioned above, the Special Investigation Service did not respond to any of our statements and petitions for a year.

As it is clear from the statement of the Special Investigation Department, the department did not take into account the evaluations presented in the decision of the European Court and presented the fundamental violations identified by the Court in this case as minor procedural violations that cannot affect the results of the investigation. For us, it is unreasonable and doubtful how the Special Investigation Service can consider the issue of the institutional impartiality of the investigation, the failure to establish the facts of fundamental importance to the case, and the fundamental errors in the testimony of the Special Forces as minor procedural violations. It should be noted that this evaluation exactly repeats the position of the Ministry of Justice on this case, which it publicly presented after the publication of the European Court's decision.

The working manner of the Special Investigation Service in the mentioned cases and the argumentation presented once again demonstrate the problem of institutional independence and impartiality of this agency, which has been numerously criticized by the Venice Commission, the European Union, and local actors.

We argued before the Inquiry that these investigative measures may have had a decisive impact on the investigation and the establishment of the truth in this case.

The principle of a thorough investigation requires the investigation to take all measures to establish the truth and, to this end, the investigation should have shown that it made a good faith effort to verify all suspicions, questions and versions and to collect the necessary evidence. Unfortunately, the Special Investigation Service did not act with integrity and due diligence and unreasonably refused to reopen the investigation without proper communication with the victim's family and their lawyers.

• Failure to implement the European Court's decision is a failure to fulfil the obligation imposed by the Convention and is an alarming trend

It has been one year since the European Court of Human Rights decision on the unlawful killing of Machalikashvili came into force, and the Georgian government is obliged to implement it. It should be noted that the effective implementation of the judgments of the European Court of Human Rights is obligatory for all Member States. Enforcement of the decision includes not only the payment of compensation to the applicant, but also the restoration of the violated right, which in similar cases includes the resumption of the investigation.

Enforcement of the European Court's decision in the Machalikashvili case meant, first of all, re-examination of the case and resumption of the investigation, taking into account the fundamental shortcomings identified by the Court in the course of the investigation.

On 11-14 March, the Committee of Ministers of the Council of Europe discussed the issue of the implementation of the Tsintsabadze group of cases, which includes the Machalikashvili case. The Committee of Ministers expressed its deep concern about the protracted investigation of several cases related to the Tsintsabadze group, including the Machalikashvili case, and urged the government to take all necessary measures to complete them expeditiously and comprehensively. The Committee also requested the Government to provide the Committee with summary information on the measures taken and planned to remove the obstacles encountered in the investigation of the above-mentioned cases. In particular, the Committee urged the Special Investigation Service to immediately review the case material in accordance with the ECHR judgment and to inform the Committee and the family of the deceased of the resumption of the investigation. The Committee of Ministers scheduled the next discussion on the monitoring of the execution of the mentioned case at the meetings in 2025.

The decision of the Special Investigation Service, published on 18 June, represents the Georgian government's manifest refusal to implement the decision of the European Court of Human Rights, which is contrary to its obligations under the European Convention on Human Rights.

It should be noted that the process of implementation of the European Court's judgments by the Georgian government is already difficult and problematic. According to the 2023 data, a total of 180 decisions of the European Court against Georgia have been referred to the Committee of Ministers for enforcement. Of these, the Committee of Ministers has suspended the monitoring of only 104 cases (57% of cases), while the monitoring of the remaining cases (pending cases) is ongoing. According to this indicator, Georgia ranks last among Council of Europe member states, after Azerbaijan and Serbia. The high rate of ongoing unenforceable judgments indicates that the state has not taken the necessary steps to finally enforce them and is hindering the fulfilment of its international obligations.

• Further steps by the Machalikashvili family and the Social Justice Centre

The Social Justice Centre plans to immediately apply to the Committee of Ministers of the Council of Europe to consider an interim resolution on the matter at the Committee's meeting scheduled for September this year. It is fundamentally important to wait for the Committee of Ministers' assessment and decision on the Special Investigation Unit's decision.

It is essential to await the assessment and decision of the Committee of Ministers on the decision of the Special Investigation Service. In its communication to the Committee, the Social Justice Centre calls, inter alia, for the application of Article 46, Part 4 of the European Convention on Human Rights, which allows the Committee to apply to the European Court of Human Rights to rule on the violation by the State of its enforcement obligations.

It should be noted that the members of the Temirlan Machalikashvili family and the Social Justice Centre, which represents the interests of the Temirlan Machalikashvili family, have not yet received the explained written decision of the service. Accordingly, upon receipt of the Special Investigation Service's decision, we will publicly present a detailed legal assessment of the decision.

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