Shavadze v. Georgia (Application no. 72080/12)

A selection of key paragraphs can be found below the judgment.

31.  The Court has previously emphasised that where an individual is taken into custody in good health and dies at the hands of the security forces, the obligation on the authorities to account for the treatment of that individual is particularly stringent (see Meryem Çelik and Others v. Turkey, no. 3598/03, § 61, 16 April 2013). … Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see, among other authorities, Salman v. Turkey [GC], no. 21986/93, §§ 97-100, ECHR 2000-VII, and Aktaş v. Turkey, no. 24351/94, §§ 289-91, ECHR 2003-V (extracts)). 

32.  The obligation to carry out an effective investigation into unlawful or suspicious deaths is well established in the Court’s case-law. Even where there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities is vital for maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. In order to comply with the requirements of Article 2 of the Convention, the investigation must be effective in the sense that it is capable of leading to the establishment of the relevant facts and to the identification and, if appropriate, punishment of those responsible.…The authorities must take reasonable steps available to them to secure the evidence concerning an incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. The requirements of promptness and reasonable expedition are implicit in this context (see, as a recent authority, Vazagashvili and Shanava  Georgia, no. 50375/07, §§ 80‑81, 18 July 2019, with further references). … 

35.  The Court notes that the applicant’s husband died on 16 August 2008 at the hands of officers of the Ministry of the Interior. However, the very first investigative measures were carried out, in the immediate aftermath of his death, by investigators of the same authority, and not by the prosecution authority, contrary to what was required by the relevant domestic law (see paragraph 18 above). Although the prosecution authority took charge of the investigation at a later stage, the public prosecutors relied, as was acknowledged by the Government, exclusively on the evidence previously collected by the Ministry (see paragraph 11 above). That being so, the Court considers that the primary and most decisive investigative steps taken by the investigators of the Ministry of the Interior, apart from apparently constituting an unexplained deviation from the domestic procedural rules, manifestly fellfoulof the requisite requirements of independence and impartiality under Article 2 of the Convention. Such a procedural deficiency could not but taint the subsequent developments in the investigation (see, for instance, Vazagashvili and Shanava, cited above, § 87, and Enukidze and Girgvliani  Georgia, no. 25091/07, §§ 245-49, 26 April 2011). As regards the conduct of the investigation after it had been taken over by the regional prosecutor’s office on 18 August 2008, the Court is particularly concerned by the latter authority’s inexplicable, persistent and, therefore, possibly deliberate refusal to involve the applicant by allowing her to benefit fully from the civil-party status she was entitled to. Without that procedural standing, the applicant was not able to exercise any procedural rights at all (see paragraphs 18-20 above). She could not obtain any information about the investigation and was not even allowed to consult the report on the post-mortem forensic examination of her husband’s body (see also paragraph 39 below, and compare with Vazagashvili and Shanava, cited above, § 88). 

36.  The Court further observes that, according to the case file, to date, the investigation into the killing of the applicant’s husband – opened on 16 August 2008 – has not produced any conclusive findings. Such a prohibitive delay points to the domestic authorities’ failure to comply with the requirements of promptness and reasonable expedition (see, for instance,Starčević v. Croatia, no.80909/12, § 58, 13 November 2014). … In this connection, the Court reiterates that justice delayed is often justice denied, as the existence of unreasonable periods of inactivity and a lack of diligence on the authorities’ part in conducting the proceedings renders the investigation ineffective irrespective of its final outcome (see, as a recent authority, Vazagashvili and Shanava, cited above, § 89). 

37.  Thus, having regard to the lack of independence and impartiality of the initial investigation, the exclusion of the deceased’s next of kin from and the prohibitive delays in the proceedings, the Court considers that the criminal investigation into the death of the applicant’s husband has been ineffective and in breach of the respondent State’s procedural obligations under Article 2 of the Convention.

38.  As regards the complaint under the substantive aspect of Article 2 of the Convention, the Court observes that it was not in dispute between the parties thatSh. had been killed by State agents, notably the officers of the Ministry of the Interior who had taken part in the arrest and escorting of R.Sh. The burden of proof is therefore on the Government to provide a satisfactory and convincing explanation as to how exactly the events in question unfolded (see, among many other authorities, Khayrullina v  Russia, no. 29729/09, §§ 69-72, 19 December 2017), the absence of which will, according to the Court’s well-established case-law, entail a violation of Article 2 of the Convention in its substantive part …