Amicus Curiae

Public Defender Proposes Prosecutor’s Office to Launch Investigation into Alleged Official Misconduct of Persons Responsible for Investigating Murder of Juveniles on Khorava Street

The right to life obligates the state to carry out an effective investigation into any case of deprivation of life, which implies carrying out active investigative actions for identifying all persons responsible for the offense.

The Public Defender has examined the murder of juveniles on Khorava Street and detected several flaws in the investigation, which resulted in failure of the investigative bodies to obtain and adduce enough evidence to convict all persons involved in the murder of Davit Saralidze.

In our opinion, the fact that the state has failed to fully fulfill its procedural obligation, i.e. to ensure effective and thorough investigation, may serve as the basis for violation of the right to life enshrined in the European Convention on Human Rights.

Along with thorough examination of the case materials, the Public Defender listened to the questioning of prosecutors and investigators by the parliamentary fact-finding commission. As a result of analyzing the non-conducted or delayed investigative actions, as well as the answers relating to the investigative tactics provided by the persons responsible for the investigation during their questioning at the session of the parliamentary commission, the Public Defender came to a conclusion that the investigation tactics might not serve the public interest of full identification of offenders. The Public Defender considers that the answers given to the commission by the persons responsible[1] for the investigation were not substantiated in relation to the following questions: Why certain investigative actions were not carried out or were carried out late? Why certain investigative actions were not carried out in relation to the main figures, whereas they were carried out in relation to other people, including less important figures. It is unclear for the Public Defender's Office which particular strategy or legitimate aim conditioned the inactivity of the investigation in a number of directions.

List of investigative actions that were not carried out or were carried out late

The investigation delayed or has not carried out the investigative actions, which would have created relatively high probability of identification of offenders:

  1. The exact parameters of the shed have not been documented, and later the shed was dismantled. This circumstance prevented preservation of the incident site as evidence;
  2. Clothes of M.K., one of the participants of the conflict, have not been searched or seized; the investigation did not even try to obtain the clothes by searching the house;[2]
  3. M.K’s nail samples have not been seized;[3]
  4. Nail samples of G.M, one of the participants of the fight, have not been seized;[4]
  5. Nail samples of D.G, one of the participants of the fight, have not been seized;[5]
  6. Secret investigative action - secret audio-video recording of the participants of the fight – M.K, D.Gh. and T.N. – has not been carried out; [6]
  7. No telephones or telephone communications between the persons, who had communicated between each other and outsiders before and after the crime (G.M, A.D, A.S, T.Ch, D.Gh, L.K, T.K., M.S. and M.S.’ spouse), have been immediately obtained or examined.
  8. M.S. has not been interrogated during the investigation;
  9. –M.S.’s spouse - T.K. and sister of the spouse - L.K. have not been interrogated during the investigation;
  10. Footage of the video surveillance cameras have not been instantly examined in the very first days of the investigation (only a warning was issued to retain them);
  11. No witnesses have been questioned for the purpose of specifying in detail the role, position and chronology of actions of all the persons in the shed;
  12. D.Gh., one of the participants of the conflict, has not been interrogated in the first days of the investigation. He was interrogated only after 13 days;
  13. T.N., one of the participants of the conflict, has not been interrogated in the first days of the investigation. He was interrogated only after 15 days;
  14. No forensic examination has been conducted in the first days of the investigation. Examination of G.M.’s back injury was appointed in 10 days after receiving information about wounding;
  15. No investigation has been launched or carried out into G.M.'s bodily injury, despite the fact that the investigation had been aware of the injury by December 2 and it was reasonably possible to identify the offender according to the case materials available by that time.
  16. No secret surveillance has been carried out in relation to M.S., M.S.’s spouse, the persons involved in the incident: A.S., M.K., G.M., D.Gh., G.I., T.N. and A.S.

Legal consequences of ineffective investigation according to national legal and European rights standards

The above-mentioned list includes the main drawbacks, which, due to unreasonable answers, leads to a suspicion that the investigation tactics was not effective. As a result, we received an ineffective investigation, which is the basis for the violation of the fundamental human right.

The results of the examination carried out by the Public Defender's Office indicate that we are dealing with one or both elements of official misconduct: negligence or abuse of power, depending on the subjective signs behind the actions - intentional ineffective investigation or unprofessional approach and/or superficial fulfillment of duties caused by negligence.

The Strasbourg Court has considered a number of cases and held that investigation was ineffective due to the failure to obtain or timely obtain possible and urgent evidence, and therefore found violation of the right to life, since the state had failed to fulfill the procedural obligation.[7] The Court also clearly stated that the state has procedural obligation not only when a representative of the state is directly responsible for the death of a person, but in any other case of premeditated murder.[8]

The European Court declares that the state’s obligation for effective investigation means not the unconditional achievement of the result, i.e. identification of offenders, but application of all resources.[9] The state must take all reasonable steps to obtain evidence relating to the offense.[10] Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of the standard of effective investigation.[11]

Since the European Court has found violation of the right to life due to the failure of the state to carry out urgent, possible and reasonable investigative actions to obtain evidence in a number of cases, it is clear that failure to carry out such actions represents a violation of the law and official misconduct.

The state should take adequate steps to identify and duly punish all the persons, whose deliberate and coordinated or/and negligent actions ultimately resulted in violation of the right to life.

Identification of the persons who committed official negligence or abused power within the framework of this particular investigation would be a reasonable step taken by the state, since this would have preventive effect on future cases of ineffective investigation.

Conclusion

Based on the above, in accordance with paragraph “c” of Article 21 of the Organic Law on the Public Defender, the Public Defender is addressing the Prosecutor's Office of Georgia with a proposal to launch an investigation into the offence allegedly committed by the persons responsible for the investigation in order to save certain individuals from being held responsible and/or their indifferent attitude towards performing duties.

The Prosecutor's Office of Georgia is obliged to consider the Public Defender’s proposal and inform the Public Defender of the results of the consideration of the proposal within 20 days.



[1] The commission questioned the following persons: Zviad Pkhakadze, Head of the Department of Tbilisi Prosecutor's Office responsible for procedural guidance of investigations ongoing at the bodies of the Ministry of Internal Affairs, Kakhaber Siradze, Head of the First Division of the Detectives Unit of Tbilisi Police Department of the Ministry of Internal Affairs, Shalva Bedoidze, Head of the Tbilisi Police Department of the Ministry of Internal Affairs, Ioseb Sigua, Head of the Detectives Unit of Tbilisi Police Department of the Ministry of Internal Affairs, and Irakli Pipia, assistant-investigator of the First Division of the Detectives Unit of Tbilisi Police Department of the Ministry of Internal Affairs http://parliament.ge/ge/saparlamento-saqmianoba/komisiebi-da-sabchoebi-8/fact-finding-commission/anonsi/7-ivlisi-komisia-2018.page

[2] The mentioned investigative action was carried out in relation to other participants of the incident, including the persons who were less related to the crime.

[3] See footnote 2.

[4] See footnote 2.

[5] See footnote 2.

[6] It is interesting that the mentioned action was carried out in relation to G.B., G.M. and A.D. It should be noted that the practice of carrying out this investigative action will become the subject of study for the Public Defender in the context of human rights.

[7] Judgment of the European Court of Human Rights - MİHDİ PERİNÇEK v. TURKEY, 29/05/2018, para. 69–81; Judgment of the European Court of Human Rights - CASE OF MURADYAN v. ARMENIA 24/11/2016 para. 137-154; Judgment of the European Court of Human Rights - CASE OF BAŞBİLEN v. TURKEY, 26/04/2016, para. 71-83.

[8] Judgment of the European Court of Human Rights - Šilih v. Slovenia, 09/04/2009, para. 156-57; Judgment of the European Court of Human Rights - SUHEYLA v. TURKEY, 24/05/2005, para164.

[9] Judgment of the European Court of Human Rights - Šilih v. Slovenia - CASE OF AGARKOVA v. RUSSIA; 15/05/2018, para. 57; CASE OF LEONIDIS v. GREECE 08/01/2009, para. 68.

[10] Judgment of the European Court of Human Rights - PAUL AND AUDREY v. THE UNITED KINGDOM, ECHR 2002‑II para. 71.

[11] Ibid.

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