ITEMID: 001-104636
LANGUAGEISOCODE: ENG
RESPONDENT: GEO
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF ENUKIDZE AND GIRGVLIANI v. GEORGIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
JUDGES: András Sajó;Françoise Tulkens;Irakli Adeishvili;Ireneu Cabral Barreto;Vladimiro Zagrebelsky
TEXT: 14. The first applicant was born in 1956. She died on 24 August 2007. The second applicant was born in 1950 and lives in Tbilisi.
15. On 27 January 2006, at around 11 p.m., a group of friends met at the Café Chardin in Tbilisi. In the group were T.S.-aia, the Minister of the Interior’s wife, D.A.-aia, Director of Constitutional Security at the Interior Ministry, his deputy O.M.-ov, V.S.-dze, Director of the General Inspectorate of the Interior Ministry, G.D.-dze, Head of Press at the Ministry and the Minister’s spokesman, and A.K.-dze, a lady friend of T.S.aia. Another woman, Th.M.-dze, a friend of A.K.-dze, was also with them.
16. Mr Sandro Girgvliani, the applicants’ 28-year-old only son, and a friend of his, L.B.-dze, were sitting at another table in the same room.
17. According to the applicants D.A.-aia, O.M.-ov, V.S.-dze and G.D.dze are very well-known public figures in Georgia who, with V.M.shvili, the Georgian Minister of the Interior, played an active part in the so-called Rose Revolution that brought about the resignation of President E. Shevardnadze in November 2003 (see The Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, 8 July 2008). According to the applicants, the government relies on the support of these trusted aides.
18. As submitted by the applicants, on the evening in question Sandro Girgvliani and L.B.-dze, both young bankers, arrived at the Café Chardin later than the group of friends mentioned above. The applicants’ son was actually hoping to see Th.M.-dze, whom he was apparently courting. On entering the café, he went up to the table where T.S.-aia, the Interior Minister’s wife, and her friends were sitting to say hello to Th.M.-dze. After greeting Th.M.-dze with a kiss, he went to sit with L.B.-dze at a nearby table. At one point he signalled to Th.M.-dze to join them at his table and she temporarily changed tables. The discussion between Sandro Girgvliani and Th.M.-dze, which lasted between 20 and 30 minutes, was apparently quite tense, punctuated with lively gestures that suggested they were disagreeing about something. Because of this, A.K.-dze went up to Th.M.dze twice, to ask her if everything was all right and if she needed any help. Th.M.-dze said all was well and she would soon be going back to A.K.dze’s table. When she finally did so the Minister of the Interior’s wife asked her if there was anything wrong. Th.M.-dze said that the young man she had been talking to was a friend and that there was no problem.
19. On 28 January 2006, at about 3 p.m., Sandro Girgvliani’s body was found by three friends, with the help of a local man, near the cemetery in Okrokana, a suburb of Tbilisi, 6.3 km from the Café Chardin.
20. According to an expert report drawn up by forensic specialists on 28 January 2006, after inspecting the crime scene, and the photographs appended to it, Sandro Girgvliani’s body, naked from the waist up, was discovered lying in the snow in the woods near the cemetery. Visual examination of the body revealed numerous parallel linear wounds on the left arm and shoulder, three 8 cm wounds to the neck, a similar wound to the throat and numerous bruises and lesions, some deep, to the chest. A pocketknife was found in the victim’s trouser pocket.
21. The autopsy carried out on 28 January 2006 by the National Forensic Bureau established that the victim had 12 cuts of different sizes on his throat, caused by a sharp object, and one lesion on the left shoulder. Three of the wounds to the throat were deep enough to have damaged the muscles. One of them, measuring 0.5 cm in diameter, had reached the pharynx. According to a State expert who examined a sample of skin taken from the throat, the wounds had been caused by a sharp, pointed object with a handle, probably a knife. A very large number of cuts of different sizes – from 4 to 15 cm long – were found on the left shoulder, the left forearm, the right shoulder, the fingers, the belly, both knees and tibias, the thighs, the forehead, the nose, and around the eyes. Analyses revealed the presence of alcohol but no drugs in the blood. According to the experts, the amount of alcohol in the victim’s blood at the time of death was insignificant (0.35 ‰).
22. The report concluded that death had been caused by the wound to the pharynx. The victim had died of asphyxia when blood from the wound to his pharynx was sucked into the airways. It was a serious, life-threatening wound.
23. On 28 January 2006 criminal proceedings were instituted by the Ministry of the Interior for murder (Article 108 of the Criminal Code). On the same day criminal proceedings were instituted on counts of false imprisonment (Article 143 § 2 of the Criminal Code) and criminal association (Article 179 § 2 of the Criminal Code). Also on the same day, the two cases were joined.
24. On 28 January 2006 L.B.-dze was questioned as a witness. He explained that on 27 January 2006, at around 8 p.m., Sandro Girgvliani, himself and some colleagues of theirs went to the Keiser inn. They ordered various dishes, and beer and vodka. They left the inn at about 1 a.m. The applicants’ son and L.B.-dze took one taxi and their colleagues took another one. On the way, Mr Girgvliani suggested stopping off at the Café Chardin for a coffee. According to L.B.-dze, they met several people they knew in the café and stayed there until about 2 a.m., when they left and started walking down Leselidze Street towards the main road. A silver Mercedes ML pulled up alongside them. Two men got out and grabbed L.B.-dze by the neck to push him into the car. One of them pushed the applicants’ son into the car, holding his hands behind his back.
25. L.B.-dze asked the three kidnappers what they wanted. One of them said that, to start with, he wanted to know what they had in their pockets. L.B.-dze and Sandro Girgvliani showed him their mobile phones, which the man confiscated and placed in the glove compartment. The same man then asked them for proof of identity. L.B.-dze gave him his work pass, which was also confiscated. L.B.-dze and Mr Girgvliani took the men for policemen, but when the car started heading uphill, out of Tbilisi, the applicants’ son asked where they were going, as there was no police station in that direction. By way of an answer, the man sitting next to him elbowed him in the ribs. L.B.-dze asked the same question, but to no avail. Mr Girgvliani then demanded that they show their police badges, and was again elbowed in the ribs. The man sitting next to the driver finally answered that they would soon see where they were going and find out what would happen when they got to “the top”. Everyone then remained silent for a moment. On the way out of Tbilisi, the driver called someone on his mobile phone, saying: “We’re on our way up. The road is fine; you can come up in your car”. Near Okrokana cemetery they stopped the car, pulled L.B.dze and the applicants’ son out and pushed them towards the cemetery. L.B.dze was dragged along by the driver of the vehicle and the man who had been sitting in the front. Suddenly he felt a violent blow to the neck and collapsed. His captors then started kicking him while one of them held a pistol to his head. At the same time, Sandro Girgvliani was being beaten by the third man.
26. A short time later, L.B.-dze saw a fourth man, who had not been in the car. The man came up to him, aimed a gun at him and said he was only getting the punishment he deserved. He then kicked him in the face, fired a shot into the air then walked over to where Sandro Girgvliani was being beaten and started hitting him too.
27. At one point the two men beating Sandro Girgvliani came over to those who were beating L.B.-dze and said “the other bastard’s got away”. They then made L.B.-dze take his clothes off, hit him some more and left him there.
28. L.B.-dze managed to get up, with difficulty, and made his way back to the road. He walked along the road to a service station, where he woke up the watchman. He waited with the watchman until the early morning, when he was able to ask a passer-by to let him use his mobile phone to call the police. When questioned subsequently, the watchman confirmed L.B.-dze’s story.
29. At the end of that interview L.B.-dze said that he was still in shock and could not remember any other details at that time.
30. On 28 January 2006 L.B.-dze was granted civil party status and was questioned again in that capacity. He confirmed his previous statements and added that he had been pistol-whipped around the head.
31. On 28 January 2006 the colleagues with whom Sandro Girgvliani and L.B.-dze had spent the evening until 12.20-12.30 a.m. were all questioned. They confirmed that the applicants’ son and L.B.-dze had taken a taxi. They had not heard about the subsequent events and Sandro Girgvliani’s death until the next day.
32. On 29 January 2006 L.B.-dze was arrested and placed under investigation for concealment of murder.
33. On 29 January 2006 the waiters, the manager and the accountant at the Café Chardin were interviewed. They stated that on Fridays and Saturdays a percussionist played the drums in their café and a DJ played music. One of the waitresses said that table no. 5 had been occupied by G.D.-dze, the spokesperson for the Minister of the Interior, and 6 or 7 other people. According to her, G.D.-dze and his friends had left the café at around 2.40 a.m. She had not noticed any trouble or fight that evening. However, she would not have been able to overhear any unpleasant verbal exchanges between the clients because of the music played between 10 p.m. and 1 a.m. The person who had served coffee to the applicants’ son said that Mr Girgvliani had been joined by a friend who had gone to the toilets. The two had only ordered coffee and had left after about 20 minutes.
34. On 30 January 2006 the investigating authority ordered the heads of all the police stations in Tbilisi to search their districts for silver Mercedes ML cars, to draw up lists of the owners, to get their photographs and their mobile and ordinary phone numbers and to find out about their professional contacts, friends, families and any possible criminal connections. The results of these investigations, which went on until 1 March 2006, were communicated to the investigating authorities by stages.
35. On 30 January 2006, L.B.-dze, when questioned as an accused person, gave new information. He said that a young woman he did not know had joined them at their table in the Café Chardin. The applicants’ son had greeted her warmly. At the same time L.B.-dze had been talking to an acquaintance. He had nevertheless noticed that the discussion between the applicants’ son and the lady concerned had grown tense. He could not hear what they were talking about because Sandro Girgvliani and the lady were sitting very close to each other and the music was loud. After ten minutes the lady had stood up, angry, and gone back to the other table, around which there were other ladies but also some muscular-looking men. Sandro Girgvliani did not tell L.B.-dze who the woman was. No-one in the café had had an argument with Sandro. At the cemetery, when the applicants’ son was being beaten, L.B.-dze had not been able to see him, but he had heard his screams. Later, a fourth man had joined the other assailants. He had a gun. According to L.B.-dze, it was not impossible that that man had someone else with him, as Sandro Girgvliani was a strong man and it would not have been easy to hold him still while they subjected him to the kind of torture indicated by the marks on his body. It was also after that man arrived that the applicants’ son had let out a terrible scream. Sometimes the man in question left Sandro Girgvliani and came over to hit L.B.-dze. As he was being kicked in the face, L.B.-dze had had to cover his face, so he could not see exactly what was happening to his friend and how many men were beating him.
36. On 30 January 2006 L.B.-dze was released, there being no evidence against him.
37. On 30 January 2006 some clients of the Café Chardin who had known Sandro Girgvliani were questioned. They said they had witnessed no altercation in the café.
38. On an unspecified date the investigator in charge of the case asked the mobile phone operators to provide lists of all the numbers which had been in communication on 28 January 2006 from certain antennas in Tbilisi, between midnight and 2 a.m. for some antennas and between 1 and 3.30 a.m. for others. On 31 January and 16 February 2006, the two operators supplied the data concerned in table form.
39. On 30 January 2006 the investigator found that the crime could have been committed for reasons of personal revenge against L.B.-dze, who had left his wife to live with another woman. The Tbilisi City Court then ordered the monitoring of the telephone conversations of L.B.-dze’s ex-wife and his new wife from 31 January to 1 March 2006.
40. On 31 January 2006 the investigator requested and obtained from one of the mobile phone operators a list of all the telephone numbers dialled between 10 and 31 January 2006 from the telephone of G.A.-ia, the first Deputy Director of Constitutional Security at the Ministry of the Interior.
41. When questioned on 31 January 2006, Sandro Girgvliani’s lady friend Th.M.-dze made the same statements as on 13 March 2006 (see paragraphs 98-108 below), except that she did not mention Sandro Girgvliani’s having insulted G.D.-dze.
42. According to an expert medical report of 31 January 2006, L.B.-dze had numerous bruises on his face and other parts of his body. They were considered light injuries that did not affect his ability to work.
43. On 6 February 2006 the first applicant was granted civil party status.
44. When questioned on 16 February 2006, A.K.-dze said that the discussion between Th.M.-dze and Sandro Girgvliani had been calm and she had not noticed whether O.M.-ov had left the café to go looking for cigarettes. The remainder of her testimony was the same as that given on 13 March 2006 (see paragraphs 111-112 below).
45. D.A.-aia, V.S.-dze, G.D.-dze and T.S.-aia were also heard on 16 February 2006. The statements they made were essentially the same as those they made on 12 March and 20 June 2006 (see paragraphs 113123 below). However, T.S.-aia, the Minister’s wife, said nothing about asking Th.M.-dze if “everything was all right” when she came back to their table after talking to Sandro.
46. When questioned on 16 February 2006, O.M.-ov said that on the evening of 27 January 2006 he had gone with his friend and hierarchical superior D.A.-aia to the Café Chardin. He had had a drink. He had no recollection of seeing Th.M.-dze change tables. There had been no incident or altercation. He said he had eventually found the cigarettes the Minister’s wife had asked for at an all-night vendor’s near B. supermarket. At about 3 a.m. they had all gone home in good spirits. Other than that, O.M.-ov gave the same account of events as on 22 July 2006 (see paragraph 199 below).
47. Throughout the month of February 2006 shop assistants, night vendors and caretakers of establishments located on Leselidze street were questioned. None of them had noticed anything of relevance.
48. On 28 February 2006 recordings made by the surveillance camera at the home of a wealthy businessman located on the road to Okrokana were seized from the head of security at the property, who also worked as a guard at the Ministry of the Interior. The recordings were of the period between 2 and 3 a.m. on 28 January 2006.
49. On 5 March 2006 the Chief Prosecutor of Georgia, on the basis of “the Ministry of the Interior’s memo of 24 February 2006”, decided to take the case away from the Ministry of the Interior and hand it over to the Tbilisi City Prosecutor’s Office.
50. According to the criminal case file submitted to the Court, the memo in question was a classified internal document sent by D.A.-aia to the Minister of the Interior. It revealed, inter alia, that D.A.-aia was the person responsible in the Ministry of the Interior for elucidating the important aspects of the case. In the first part of the note D.A.-aia reported the same facts to the Minister as those described by L.B.-dze in his statements concerning the kidnapping and the assault that caused Sandro Girgvliani’s death (see paragraphs 25-28 above). It went on to explain that on the night in question he had been in the Café Chardin himself with a group of friends until 3.30 a.m., celebrating V.S.-dze’s birthday. G.A.-ia, his subordinate, had also been invited by V.S.-dze. According to D.A.-aia, he had spoken to G.A.-ia several times on the telephone from the Café Chardin to find out if he was coming. After confirming that he would be coming, G.A.-ia had informed D.A.-aia around 3 a.m. that he would not be able to make it after all.
51. In the same memo, D.A.-aia explained to the Minister that on 2 February 2006 a regional manager from his department had informed him that a Mercedes ML that had been seized as evidence in a criminal case was being taken to Kutaisi. D.A.-aia had taken an interest in the vehicle and, on learning that it was a silver Mercedes ML, had decided to question a number of Ministry employees about it. He had thus been able to establish that on 28 January 2006 around 1.30 a.m. the car had left the courtyard of the Ministry with G.A.-ia and two other Ministry staff members, A.A.uri and A.Gh.-ava, on board. After seeking the necessary information from the mobile phone operator, D.A.-aia had been able to reconstitute G.A.ia’s movements and to conclude that on the night concerned he had been in the vicinity of the cemetery at Okrokana and had spoken on the phone with M.B.dze, another Ministry employee.
52. Lastly, in the same written memo, D.A.-aia informed the Minister that he had asked G.A.-ia if he had been present at the scene of the crime on the night in question. G.A.-ia, strangely unsettled, had denied being there.
53. According to D.A.-aia, all this seemed to indicate that G.A.ia, A.A.uri, A.Gh.-ava and M.B.-dze might have had a hand in committing the crime in question. He asked the Minister to decide what course of action should be taken.
54. On 6 March 2006 the Tbilisi City Prosecutor’s Office cancelled the decision granting the first applicant civil party status on the ground that only the direct victim of the crime, that is, the son, was entitled to civil party status. As the direct victim in this case was dead, the only standing one of his parents could claim was as his heir.
55. On 6 March 2006, L.B.-dze, in his civil party capacity, applied to the investigator in charge of the case, stating that he did not need to be assisted by counsel and that he declined the services of the two lawyers assigned to his case.
56. That same day, L.B.-dze was asked to assist in identifying the presumed perpetrators of the crime, without the assistance of a lawyer.
57. L.B.-dze identified G.A.-ia, the first Deputy Director of Constitutional Security at the Ministry of the Interior, “without any doubt”, as one of the people who had taken part in his kidnapping and assault at the cemetery in Okrokana.
58. L.B.-dze identified A.Gh.-ava, a subordinate of G.A.-ia’s, as “possibly being” the driver of the Mercedes ML, but he could not be certain.
59. L.B.-dze also said that A.A.-uri, another of G.A.-ia’s subordinates, “was probably” the man who had sat next to Sandro Girgvliani in the car. When asked by the prosecutor if he was 100% certain, L.B. said that he could not be 100% sure but that A.A.-uri resembled the man concerned.
60. Finally, when faced with four unknown persons among whom M.B.dze, the second Deputy Director of Constitutional Security at the Ministry of the Interior, had been placed, L.B.-dze said that the man next to M.B.-dze could be one of the perpetrators of the crime, but he was not 100% sure. The man’s face and stature resembled the man who had beaten Sandro, who was the one with whom he had had the least contact.
61. On 6 March 2006 G.A.-ia, A.Gh.-ava and A.A.-uri, but also M.B.dze, were arrested.
62. On 6 March 2006 L.B.-dze was questioned as a civil party.
63. According to the video recording of the interview, the investigator asked L.B.-dze if he wished to be assisted by a lawyer. L.B.-dze said he did not. He then confirmed his previous statements, adding that Sandro Girgvliani had made a phone call to someone from the taxi before suggesting that they stop by the Café Chardin. When they entered the café, L.B.-dze had gone to the toilet and then joined Sandro Girgvliani at a table. By the time Th.M.-dze had joined them at their table, music was playing. Th.M.-dze and the applicants’ son had been sitting quite close to one another, so it had been impossible for him to hear what they were talking about. Anyway, a friend had come to sit and talk to L.B.-dze for 2 to 5 minutes. This last sentence does not appear in the record of the interview included in the case file. According to L.B.-dze, Th.M.-dze and Sandro Girgvliani had not had an argument, but the discussion between them had been tense.
64. L.B.-dze added that he himself had not had any argument with anyone in the café. He could not say for sure whether Sandro Girgvliani had, as he had left him to go to the toilet.
65. L.B.-dze explained that when they had left the café, he and Sandro Girgvliani had not crossed the room together, but they had gone out into the street together. That statement does not appear in the record of the interview in the case file. However, the video recording shows that when L.B.dze said that, the investigator suggested including the following wording in the record, which he dictated himself: “I cannot remember if Sandro and I went out through the café door together. (...) it is possible that I was a little way behind him.” L.B.-dze then added himself that if he remembered rightly, before leaving the café he had gone to the toilet again. The investigator told him to note it down in the record.
66. In answer to the investigator’s question whether anyone could have followed them as they left the café, L.B.-dze said he did not think so.
67. Lastly, the investigator asked L.B.-dze if he thought the assailants had intended to kill him with Sandro. L.B.-dze thought they probably had not, considering that they had just abandoned him there, still alive, instead of killing him.
68. Still on 6 March 2006, L.B.-dze was questioned again, with no lawyer present, about the fourth person who had arrived on the scene later.
69. L.B.-dze said he could not rule out the possibility that the person concerned had not come alone. It was this man who had fired the shot in the air. In answer to a question from the investigator, L.B.-dze replied that he had indeed been invited by an MP into his office in the Parliament to look at a photograph and say whether he recognised the man in it. L.B.-dze had said that he could not be sure, but he thought the man in the photo “looked just like” the fourth man, who had joined them at the cemetery later. The MP had recorded the procedure, with L.B.-dze’s consent, and as the man in the photo was O.M.-ov, the recording had been made public. To the investigator, L.B.-dze said that the man in the photograph resembled the “fourth man”, but that he could be mistaken.
70. When questioned on 6 March 2006, G.A.-ia said that he had been at work late on 27 January 2006 in the evening. Before going home, he had decided to stop by the Café Chardin, with A.A.-uri and A.Gh.-ava, to wish V.S.-dze a happy birthday. He had been invited, he explained. To get there, he had taken a Mercedes ML that was parked in the Ministry courtyard, having been impounded as evidence in a criminal case. G.A.-ia explained that he had given A.A.-uri number plates with the number WAW-293 to put on the car.
71. The three men had stopped the car in Leselidze street near the café. Only G.A.-ia had got out of the car. At the entrance to the café, he found someone he did not know (Sandro Girgvliani) insulting G.D.-dze’s mother. On hearing this, G.A.-ia asked what the problem was. In response, Mr Girgvliani insulted him too and walked away. G.A.-ia decided to follow him “to find out why he was hurling insults”. He returned to the car and asked A.A.-uri, who was at the wheel, to follow the two men. He also asked his two colleagues if they had their pistols on them, as he thought they might need to make an arrest. When they replied that they were not armed, G.A.-ia called M.B.-dze on the phone and asked him to come and help them and to bring his gun.
72. A.A.-uri pulled up alongside Sandro Girgvliani and L.B.-dze, and G.A.-ia got out of the car and asked the two men to show their identity documents. Mr Girgvliani asked him in a very disparaging tone who he was. G.A.-ia said they were from the Ministry of the Interior and asked him for his papers again. Sandro Girgvliani and L.B.-dze insulted him again. The discussion grew more heated and A.A.-uri got out of the car and told them to calm down. Sandro Girgvliani pushed him and A.A-uri fell over. According to G.A.-ia, Mr Girgvliani and L.B.-dze told the other men that they could go anywhere they liked and sort things out. They all decided to get in the car and go somewhere else. They drove twice round the main square in Tbilisi, while G.A.-ia tried to understand why Sandro Girgvliani had been insulting G.D.-dze. Then they stopped the car and told Sandro Girgvliani and his friend to get out, but they refused, saying that was no place to talk and they should go elsewhere. So they had gone to Okrokana, and stopped the car near the cemetery. Then they had all got out and started fighting. It was a bright night and there was fairly good visibility.
73. M.B.-dze had soon come along to assist his colleagues. He had dealt mainly with Sandro. When Sandro Girgvliani had escaped, G.A.-ia had told M.B.-dze not to bother following him. The scuffle had lasted 15 minutes and it must have been 2 a.m. when they left Okrokana.
74. G.A.-ia also maintained that on the way back from Okrokana he had received phone calls from D.A.-aia and G.D.-dze asking him if he was coming to V.S.-dze’s birthday party (cf. paragraph 154 below).
75. When questioned on 6 March 2006, M.B.-dze maintained that after receiving a call for help from his superior, G.A.-ia, around 1.30 a.m., he had taken his weapon and gone to the Ministry of the Interior to pick up an official car, thinking that it would be necessary to arrest someone. When he reached Leselidze street he realised his colleagues had gone, so he called G.A.-ia, who told him they were on their way to Okrokana. When he drove there he spotted the Mercedes ML “which he thought his colleagues were using”. He headed towards the cemetery, where the noise was coming from. He found Sandro Girgvliani lying on the ground and L.B.-dze putting up a fight. His colleagues were accordingly concentrating their efforts on L.B.dze. Sandro Girgvliani had got up again, however, and attacked him. They had started to wrestle. Sandro Girgvliani’s clothes were ripped in the struggle. At one point M.B.-dze thought he saw a knife in Sandro Girgvliani’s hand. He took his gun out and fired into the air. That was when Sandro Girgvliani had taken the opportunity to run away. The struggle had lasted no longer than 15 minutes.
76. M.B.-dze stated that neither he nor his colleagues had used any sharp weapons, and that he could only assume that, after escaping, Sandro Girgvliani must have injured himself on the wire fencing round the tombs or in the bramble bushes.
77. When questioned on 6 March 2006, A.Gh.-ava confirmed G.A.-ia’s account of events. He also said that he and his colleagues had identified themselves to Sandro Girgvliani and L.B.-dze as employees of the Ministry of the Interior. He said that Sandro Girgvliani and L.B.-dze had got into the car of their own free will. A.Gh.-ava confirmed, like M.B.-dze, that it had been a clear night and that none of his colleagues had been carrying a knife or any other sharp object.
78. When questioned on 7 March 2006, A.A.-uri gave exactly the same account as G.A.-ia, A.Gh.-ava and M.B.-dze. As to the origins of Sandro Girgvliani’s wounds, A.A.-uri made the same suppositions as M.B.-dze.
79. On 7 March 2006 a public prosecutor from Tbilisi City Prosecutor’s Office placed G.A.-ia, A.Gh.-ava, A.A.-uri and M.B.-dze under investigation for wilful bodily harm resulting in death (Article 119 of the Criminal Code) and premeditated false imprisonment by a group of persons with life-threatening violence (Article 143 § 2 (a), (c) and (h) of the Criminal Code). On 8 March 2006 they were remanded in custody.
80. On 8 March 2006 L.B.-dze, with no lawyer present, was called to identify the “fourth man”, who had arrived last at the cemetery. According to the video recording of this investigative measure, among the four men in the line-up to be presented to L.B.-dze, O.M.-ov took the third position from the left. The public prosecutor then invited L.B.-dze into the room and asked him to look carefully at the four men. L.B.-dze hesitated before saying: “I can’t be 100% sure ... the man must have been bigger, but I don’t know..., I don’t recognise, let’s say, going by the face..., I could say it was the second man from the left, or the third from the left.” The public prosecutor replied: “So you do not recognise any of these four people for sure.” L.B.-dze explained that he did not “recognise anyone for sure, but the two men he had picked out looked like the assailant who had arrived last at the cemetery”. The public prosecutor then invited him to write the report, including sentences he dictated to him: “Among the four individuals presented to me, I am unable to identify anyone as the individual who on 28 January 2006 committed the unlawful acts against me and against Sandro Girgvliani”. The public prosecutor then asked L.B.-dze to start a new paragraph, and L.B.-dze complied. The doubts and resemblances noted by L.B.-dze are not mentioned in the record of the proceedings, which also contains another error: according to the record, O.M.-ov was in the third position from the right, not from the left as seen in the video recording.
81. When questioned on 8 March 2006, the barman from the Café Chardin explained that the musicians generally played as long as there were still clients in the establishment. A waitress, R.A., said that the percussionist played the bongo drums on Fridays and at the weekend, from 10 p.m. until 2 a.m. On the evening in question R.A. had recognised G.D.-dze and O.M.ov as soon as they had walked into the café. Even if she would not have been able to hear an argument with all the noise, R.A. could safely say that there had been no trouble at Sandro Girgvliani’s table or at the table where G.D.-dze, O.M.-ov and their friends had sat. One of G.D.dze’s friends, whose name she could not recall, had asked her what brands of cigarettes she sold. As she had not had the brand the person wanted, he had gone looking for them elsewhere.
82. On 8 March 2006 the café’s accountant, a waiter L.M., a waitress and three patrons present in the café were questioned. They all said that there had been no trouble that evening. L.M. said he knew G.D.-dze, who had been at table no. 5 with some friends, by sight. They had still been there when he had finished work at 3.30 a.m. According to L.M., music was playing in the café from 10 p.m. to 2 a.m.
83. In spite of what it says in the corresponding reports, the video recordings of the above interviews are not included in the criminal case file submitted to the Court.
84. On 9 March 2006, during a reconstruction at the scene of the crime, L.B.-dze said that the two men who had taken him out of the car and beaten him had stayed with him until the end. Some way off he could see Sandro Girgvliani lying on the ground covering his face with his hands, while the man who had elbowed him in the car to keep him quiet stood over him. L.B.-dze also said that the fourth assailant had probably arrived at the cemetery about ten minutes after them. Before Sandro Girgvliani had run away, L.B.-dze had heard a terrible scream and a shot fired into the air. According to the video recording of this investigative measure, L.B.dze said that when he managed to get to his feet again he started calling Sandro Girgvliani’s name, hoping to find him. He continued to call him, but in vain, after reaching the road. When no answer came he had started walking. He had tried to flag down a car, but no-one would stop for a half-naked man in the state he was in.
85. On 10 March 2006 L.B.-dze was questioned again, with no lawyer present, the prosecutor simply explaining that he had the right to be represented, before proceeding with his questions. He was questioned, inter alia, about the contradiction between his statements to the authorities and those he had made on television concerning the moment when they left the café. On television he had stated that he and Sandro Girgvliani had had no run-in with G.A.-ia when they were leaving the café.
86. L.B.-dze then explained that, first of all, inside the café there had been no incident resembling an argument or an altercation, but he did not exclude the possibility of some “latent conflict” between his friend and the other people in the café. Secondly, outside the café, that is to say, once they had stepped out into the street, there had been no incident or trouble of any kind. He could not, however, exclude the possibility that his friend had exchanged angry words with someone as they left the café, without him noticing. The prosecutor then reminded him that he had stopped off at the toilets when Sandro Girgvliani started making his way out of the café and that he had followed him out but had not been right beside him. L.B.dze agreed that something might have happened to his friend on the way out without him noticing. The prosecutor then dictated the following entry for the record: “I do not remember if there was any trouble when we left the café, because I seem to remember I went to the toilet. So I cannot say whether any incident occurred at that juncture”. The prosecutor explained that by “incident” he meant an exchange of words. L.B.-dze agreed.
87. Insisting heavily on the possibility that an incident might have occurred on the way out of the café, the prosecutor asked L.B.-dze if he could say with any certainty that the accused G.A.-ia had not been there when they left the café. L.B.-dze could not say whether he had or had not been there.
88. The prosecutor then asked L.B.-dze about his statement on television that O.M.-ov could have been one of the men who had assaulted them at the cemetery. The prosecutor reminded him that he had not been able to identify O.M.-ov on 8 March 2006 and asked him for an explanation. According to the video recording, L.B.-dze replied that although he had not been able to identify O.M.-ov, he could not rule out the possibility that he had been at the cemetery. When asked whether O.M.-ov really had been there or not, L.B.-dze repeated that he could not say he had not been there. To include these answers in the record, the prosecutor dictated to L.B.-dze: “I cannot say for sure that O.M.-ov was not one of the people who assaulted us at the cemetery ... I was unable to identify O.M.-ov, but I cannot exclude the possibility that he or any other person took part in the crime.”
89. On 10 March 2006, the second applicant informed the prosecutor that he consented to his wife, the first applicant, being given standing as heir to the civil party, given that, pursuant to Article 68 § 2 of the Code of Criminal Procedure (“the CCP”), both parents could not claim that standing simultaneously. The first applicant was given that status on the same day.
90. On 11 March 2006 statements made by B.E. on 2 March 2006 were verified at the scene of the crime. This young man, who lives in Okrokana, had helped Sandro Girgvliani’s friends to find his body in the woods. B.E. showed the place where, in the gorges of the river that runs past the cemetery, he had first spied the traces of a bloodied body that had fallen down in the snow. With Sandro Girgvliani’s friends they had followed the regular blood stains along the path. The young man confirmed that all along the way the traces of only one injured person had been visible.
91. On 13 March 2006 a test run showed that the offenders would have needed 17 minutes and 33 seconds to drive from the Café Chardin to the cemetery in Okrokana 6.3 km away and back. O.M.-ov would have needed 18 minutes and 20 seconds to get to the B. supermarket 5.5 km from the café.
92. According to a letter from the management of the Café Chardin, dated 14 March 2006, the surveillance camera only covered the area occupied by the bar and did not record pictures.
93. When questioned on 15 March 2006, the bouncers at the café said that they had been in the entrance, between the two doors. The music had been loud and people had had to raise their voices to be heard. They reported that there had been no disturbance inside the café. They would not have been able to hear any argument outside because of the music. They could see out into the street through the large windows, but they would not necessarily have noticed any incident. In any event, their job was not to keep an eye on what went on in the street but to keep an eye on the inside of the café and the entrance.
94. On 13 March 2006 the first applicant said that she had seen Th.M.dze’s interview on television, where Th.M.-dze said that L.Tch.shvili, a chauffer of the Ministry of the Interior, had bought T.S.aia two packets of cigarettes at the start of the evening. Considering that two hours was not enough time for T.S.-aia to have smoked two packets of cigarettes, the first applicant requested that the people present that evening be asked about the real reasons why O.M.-ov had left the café at the same time as her son and L.B.-dze. She also requested that O.M.-ov be asked how it was that the security camera at the B. supermarket showed that he had not gone there that evening.
95. She further requested leave to take part in the above investigative measures, in conformity with Article 69 (i) of the CCP.
96. On 15 March 2006 the first applicant’s requests were rejected by the public prosecutor, on the grounds that the points raised had already been elucidated and there was no need to repeat the investigative measures concerned.
97. However, the applicant subsequently learned that, to clarify the points she had raised on 13 March 2006 the prosecutor had questioned A.K.-dze and Th.M.-dze on 13 March 2006 and D.A.-aia, V.S.-dze, T.S.aia and G.D.-dze on 20 June 2006, without informing her or inviting her to attend the proceedings.
98. When questioned on 13 March 2006, Th.M.-dze stated that on the evening of 27 January 2006, at around 10.30 p.m., her friend A.K.-dze came to pick her up from her home to take her out for the evening. She had difficulty walking from her building to the car as the streets of Tbilisi were covered with ice. Th.M.-dze saw that A.K.-dze was not alone in the car; there was also the wife of the Minister of the Interior, whom she knew well, together with V.S.-dze, Director of the General Inspectorate of the Interior Ministry, whom she had not met before. The car was driven by V.S.-dze’s chauffeur. They headed for the Café Chardin. They found a table there and the Minister of the Interior’s wife asked V.S.-dze’s chauffeur to go and find her some K-brand cigarettes. The chauffeur, L.Tch.-shvili, left and returned ten minutes later with two packets of K cigarettes. L.Tch.-shvili then left the café and went to wait in the car for the rest of the evening.
99. At around midnight Th.M.-dze received a phone call from Sandro. It appears they had had a tiff and he wanted to make up. She refused to see him, but Sandro Girgvliani insisted. Th.M.-dze misled him into thinking she was at a café in another part of the town and said she did not want to see him. To take the phone call, she had gone out into the café lobby, where the music was not so loud.
100. Some 30-40 minutes after that phone call, D.A.-aia and O.M.ov had joined the Minister of the Interior’s wife and her group of friends. 5 to 10 minutes later, G.D.-dze had also joined them.
101. At about 1.15 or 1.20 a.m. Sandro Girgvliani and L.B.-dze entered the Café Chardin. Sandro Girgvliani went up to Th.M.-dze, gave her a kiss and asked her how she was. He then went to talk to some other people he knew in the room. 15 or 20 minutes later, he signalled to Th.M.-dze that he was about to leave. When Th.M.-dze asked him where he was going Sandro Girgvliani told her he was drunk and had to go home. Instead of leaving, however, he sat down at a nearby table with L.B.-dze and ordered a coffee. He then signalled to Th.M.-dze to come and join him. Th.M.-dze discreetly changed tables a few minutes later. The applicants’ son asked her who the men were with whom she had come to spend the evening. Th.M.-dze said they were friends of her friends and that she did not really know them. So Sandro Girgvliani asked her what she was doing spending her evening with strangers. She said it was of no importance whom she spent her evenings with and expressed surprise that he should have come all the way to the Café Chardin to ask her such a question. Sandro Girgvliani then asked her what she was doing with “that poof”, referring to G.D.-dze, the Minister of the Interior’s spokesman. According to Th.M.-dze, the tone of their conversation, which lasted 15-20 minutes, was “stilted” and Sandro Girgvliani was gesticulating. At one point A.K.-dze left the Minister of the Interior’s wife and her friends and went over to Th.M.-dze to ask her if everything was all right. Th.M.-dze said it was. A.K.-dze then went to the toilet and, on the way back, asked Th.M.-dze what she was doing. Th.M.dze said she would return to their table shortly. At the end of the conversation, Sandro Girgvliani suggested that Th.M.-dze leave the café with him. She said she would join him later and asked him to call her in half an hour. Th.M.-dze then went back to her table. The Minister’s wife asked her if “everything was all right”. Th.M.-dze said she was fine.
102. Ten minutes later Sandro Girgvliani and L.B.-dze got up to leave the café. On his way out, Sandro Girgvliani waved goodbye to Th.M.dze, who waved back and said she would join him later.
103. Th.M.-dze stated that before she said the words “I’ll see you later” she heard the Minister’s wife ask O.M.-ov to go and buy some cigarettes, as there were only 2 or 3 left in the last packet. O.M.-ov, who was sitting next to Th.M.-dze, got up and blocked Th.M.-dze’s view; she had to lean over to tell Sandro Girgvliani she would join him. O.M.-ov went towards the exit at about the same time as Sandro Girgvliani and L.B.-dze. Th.M.-dze could not see the door from where she was sitting, so she did not see who left first, O.M.-ov or Sandro Girgvliani and his friend. She could see the door to the toilets, however, and maintained that she did not see any of the three men go to the toilet before leaving the café.
104. Th.M.-dze waited for Sandro Girgvliani to call her, as arranged, looking at her watch every so often. That was how she could be so sure that O.M.-ov, who had left the café at the same time as Sandro Girgvliani and L.B.-dze, was gone for 30-40 minutes. When Sandro Girgvliani failed to call her, Th.M.-dze got annoyed and said she was leaving. A.K.-dze said they would all soon be leaving anyway. Th.M.-dze got the impression that they were waiting for O.M.-ov to come back before leaving the café.
105. O.M.-ov came back 30-40 minutes later with the cigarettes in his hand. He looked cold. Th.M.-dze asked him if it was cold outside. He said it was. He explained that he had been unable to find any K-brand cigarettes in the vicinity and had had to go further afield – “to the B. supermarket” – to find them.
106. At about 2.50 a.m. the evening came to an end and at about 3 a.m. they all got up to leave. V.S.-dze’s chauffeur drove Th.M.-dze and A.K.dze home. D.A.-aia took the Minister of the Interior’s wife home.
107. It was 3.10 a.m. when Th.M.-dze got home.
108. In answer to a question from the prosecutor, Th.M.-dze said she had not had a tense conversation with Sandro Girgvliani or his friend L.B.dze. Apart from calling one of them a “poof”, Sandro Girgvliani had not insulted the people she was with. In answer to another question, Th.M.dze said there was an 80% chance that the other people in the party had not overheard the insult in question, as Sandro Girgvliani was speaking in a normal tone and the music was loud. She also said that when she had gone back to her friends she had not told them what Sandro Girgvliani had called G.D.-dze. She further stated that there had been no contact between the applicants’ son and L.B.-dze and the group of friends at the other table.
109. In a television interview Th.M.-dze stated that O.M.-ov had followed Sandro Girgvliani and L.B.-dze out of the café.
110. Subsequent examination of the video recorded by the surveillance system at the B. supermarket did not reveal that O.M.-ov had gone there on the night in question.
111. When questioned for the second time, on 13 March 2006, A.K.dze stated that she and her friends went to pick up Th.M.-dze from her home around 10.30 a.m. She said she did not notice exactly when Th.M.-dze went over to join Sandro Girgvliani at his table. However, the 510minute conversation between Mr Girgvliani and Th.M.-dze had been calm and Sandro had not spoken at any time to any of the people in the group she was with. A.K.-dze maintained that she did not hear Mr Girgvliani insult anyone. When Th.M.-dze came back to her table, A.K.-dze asked her who the young man was that she had been talking to. Th.M.-dze told her he was a friend and he wanted her to leave with him. A.K.-dze had told her that she might as well go, as that was what he wanted. Th.M.-dze had been in good spirits. A.K.-dze confirmed that O.M.-ov had left the café at one point to buy cigarettes for the Minister of the Interior’s wife. She thought he was gone about 20-25 minutes. She confirmed that at the beginning of the evening the Minister’s wife had had a packet or two of cigarettes with her. A.K.-dze did not smoke. She categorically denied going over to Th.M.dze when she was talking to Sandro, to see if she was all right.
112. According to the record of that interview, the interview was filmed, but contrary to what it says in the file, the video recording was not included in the criminal case file submitted to the Court.
113. When questioned on 12 March and 20 June 2006, D.A.aia reiterated that he had arrived at the café with O.M.-ov at about 11.30 p.m., in his official car. He confirmed that the Minister of the Interior’s wife had asked O.M.-ov to go and fetch some K-brand cigarettes. D.A.-aia had nodded to O.M.-ov to do as she asked and had given him the keys to the official car. D.A.-aia had learned later that outside the café O.M.-ov had asked D.A.-aia’s chauffeur to take the car and go looking for cigarettes. According to D.A.-aia, O.M.-ov was away for 20 minutes and came back with a packet of cigarettes which he said he had bought “near B. supermarket”. According to D.A.-aia, O.M.-ov had appeared calm.
114. D.A.-aia said that he had not smoked on the evening in question. He confirmed that he had spoken to G.A.-ia several times on the telephone to see if he was coming to join the party. After first confirming that he was coming, at about 3 a.m. G.A.-ia said he would not be joining them after all. Since arriving at the café, D.A.-aia had used O.M.-ov’s mobile phone, with his own SIM card in it, as the battery in his own mobile phone was flat.
115. D.A.-aia maintained that no member of his group had had any altercation or incident with the people present in the café.
116. Lastly, D.A.-aia explained that he had immediately informed the Minister of the Interior of what one of his department’s regional directors had reported to him on 2 February 2006 (see paragraphs 50-52 above). The Minister had instructed him in writing to continue investigating and discover the truth of the matter.
117. When questioned on 12 March and 20 June 2006, V.S.dze confirmed what Th.M.-dze had said about the period prior to their arrival at the café. He added, however, that before going he had made a phone call to D.A.-aia telling him to bring their mutual friend G.A.-ia along. According to D.A.-aia, G.A.-ia was supposed to join them, but in the end he did not come.
118. V.S.-dze confirmed that at one point Th.M.-dze had gone over to another table and at another juncture the Minister of the Interior’s wife had sent O.M.-ov to buy her some cigarettes. According to V.S.-dze, O.M.ov had returned 15-20 minutes later. V.S.-dze did not smoke. He too said that there had been no incident or altercation between his friends and any other person in the café.
119. When questioned on 12 March and 20 June 2006, T.S.-aia said that V.S.-dze had come to pick her and A.K.-dze up at her home in his chauffeur-driven official car. They had then gone to pick up Th.M.dze They were at the café by about 11 p.m. D.A.-aia and O.M.-ov arrived at about 12.30 a.m. and G.D.-dze arrived at about 1.15 a.m. The remainder of her account corroborated V.S.-dze’s version of events.
120. T.S.-aia did add, however, that when Th.M.-dze came back to their table after talking to Sandro, she asked her if “everything was all right”. Th.M.-dze, who was calm, said she was fine. T.S.-aia confirmed that later in the evening she had asked O.M.-ov to go and get her some Kbrand cigarettes. O.M.-ov had returned 20-25 minutes later. She further stated that shortly after they reached the café, V.S.-dze’s chauffeur had brought her two packets of cigarettes which he had bought near the B. supermarket. T.S.aia also said that there had been no altercation between her friends and any of the other people present in the café. Come midnight they had all wished V.S.-dze a happy birthday
121. D.A.-aia had driven T.S.-aia home in his official car. O.M.ov and G.D.-dze were with them in the car.
122. When questioned on 20 June 2006, G.D.-dze explained that his friend the Minister’s wife had called to say that she was dining at the Café Chardin and invited him to join her. G.D.-dze got to the café around 11.50 p.m. In answer to a question from the prosecutor, G.D.-dze said that he did not usually smoke, but on the evening in question he had smoked the cigarettes that were on the table. Indeed, everyone in the party, except D.A.aia and V.S.-dze, had smoked the same cigarettes. At one point he had noticed that there were none left, but later someone had brought some more. He had not noticed who had gone to buy more cigarettes.
123. G.D.-dze did not know whether their colleague G.A.-ia had also been expected in the café that evening. He had no knowledge of any incident or altercation between his friends and anyone else in the café that evening and he had not heard anyone insult him.
124. When questioned on 12 March 2006, V.S.-dze’s chauffeur confirmed that he had bought two packets of K-brand cigarettes for the Minister of the Interior’s wife at the start of the evening. Later, when he was waiting in the car for the party to end, O.M.-ov had called him and taken him to a nearby car park where D.A.-aia’s official car was parked. L.Tch.shvili had closed his car and walked towards O.M.-ov. As he passed by the Café Chardin he saw G.A.-ia, who was walking fast. He greeted him, but received no reply. G.A.-ia was alone. In the car park O.M.-ov told L.Tch.-shvili that he had been drinking and did not want to take D.A.aia’s official car to go and buy some cigarettes. He asked L.Tch.-shvili to drive. They drove off in search of the cigarettes and found some near the B. supermarket. They got back to the café about 30 minutes later.
125. On 22 March 2006 the statements made by G.G., one of Sandro Girgvliani’s friends who had discovered the body, were verified at the scene of the crime. He explained that the police had arrived before them and there were many footprints in the snow at the cemetery. G.G. pointed out the place under a tree where he had seen what looked like the red imprint left by a bloodied face. The friends had gone through the cemetery and started to explore the river gorges. They asked a young village lad who was out bird-hunting (see paragraph 19 above) to help them. The lad spotted what looked like a large blood stain in the snow some way off. They saw that it led to other stains, some of which indicated that Sandro Girgvliani had had to lie down in the snow to rest at regular intervals. At one point they realised that the applicants’ son must have fallen off a ledge and tried to climb back up into the wood. At the edge of the wood he had turned into the bushes and fallen in the brambles.
126. On 23 March 2006 the first applicant complained to the investigator in charge of the case that, in breach of section 86 § 2 of the law on detention, the four accused were sharing the same cell in prison no. 7 in Tbilisi. She argued that this gave them an opportunity to coordinate their stories to prevent the truth from emerging. She requested that the detainees be separated forthwith, in conformity with Article 161 § 1 of the CCP.
127. That same day the first applicant submitted the same request to B.A.-aia, the director of the Prisons Department of the Ministry of Justice, and also to the Chief Public Prosecutor.
128. On 30 March 2006 the first applicant complained to the Public Prosecutor’s Office that she had received no reply to her complaint of 23 March 2006.
129. On 29 March 2006 the first applicant complained to the investigator in charge of the case that B.A.-aia, the above-mentioned director of the Prisons Department, who was also the brother of D.A.-aia, was making sure the four accused were as comfortable as possible in prison, inter alia, by allowing them access to alcohol and drugs. The detainees in the neighbouring cells would often hear them laughing and having a good time. The first applicant maintained that B.A.-aia was treating them like that to prevent them from incriminating his brother D.A.-aia. She requested that the authorities stop supplying the accused with drink and drugs and test them within 48 hours to detect the presence of alcohol and drugs in the bloodstream. She also requested authorisation to take part in this verification procedure as the civil party’s heir.
130. No action was taken on this complaint.
131. On 27 April 2006 the head of the Prison Department’s welfare service informed the first applicant that the four accused had indeed been placed in the same cell from 8 to 23 March 2006, because of renovation work in Tbilisi’s prison no. 7. Once the work was completed, they had been separated. The documents submitted to the Court by the Government for the hearing confirm that the accused were placed in the same cell. There is also documentary evidence that on 21 February and 25 March 2006 a company did some renovation work in prison no. 7.
132. On 28 April 2006 section 86 § 2 of the law on detention was amended and the words “persons under investigation in the same criminal case shall be detained separately” were deleted.
133. The first applicant considered that the comfort and leniency clearly shown to the four accused by the authorities was designed to prevent them from incriminating the senior Ministry of the Interior officials and the Minister’s wife who had been at the Café Chardin. She submitted that, in actual fact, G.A.-ia, A.A.-uri and A.Gh.-ava, three of the accused, had gone to the café after being summoned there by telephone to punish her son for having insulted the Minister of the Interior’s spokesman.
134. On 25 April 2006 the Tbilisi City Prosecutor’s Office asked the Department of Constitutional Security of the Ministry of the Interior, directed by D.A.-aia, for a copy of the criminal case file in which the Mercedes ML featured as evidence.
135. The file shows that the vehicle was seized on 19 October 2005 as having been acquired with the proceeds of crime. On 13 December 2005, when the investigation into the present case was under way, the owner of the car lodged a complaint with the Chief Public Prosecutor’s Office and the Minister of the Interior, claiming that on 6 December 2005 he had seen his car being driven in Tbilisi with new number plates (WAW – 293). He said he had followed the car and taken photos of it, and had asked the driver by what right he was driving a car known to have been seized. In response, the chauffeur had threatened him. Saying that he could identify the driver, the owner of the car demanded that an investigation be opened without delay. On 13 December 2005 the Chief Public Prosecutor’s Office referred the complaint to the Department of Constitutional Security of the Ministry of the Interior for “immediate verification”. However, the complaint was not followed up. On 4 February 2006 the investigator in charge of the case took the car keys from G.A.-ia to send the vehicle to Kutaisi and discovered that the seals had been broken. He immediately informed his superior in Kutaisi and asked him to take action.
136. On 1 May 2006, at the request of the investigator in charge of the case of Sandro Girgvliani and L.B.-dze, the Tbilisi City Court decided to dismiss the four accused from their respective posts in the Ministry of the Interior.
137. On 1 May 2006 the first applicant requested that the Minister’s wife, G.D.-dze, D.A.-aia, V.S.-dze, O.M.-ov, A.K.-dze and Th.M.-dze be heard again in her presence, given that the recording made by the surveillance camera at B. supermarket that she had managed to obtain did not reveal that O.M.-ov had gone there on the night in question. She pointed out that a similar request she had made on 13 March 2006 had been rejected on the grounds that the points raised had already been elucidated. She asked to be informed of the investigative measures which had helped elucidate the points raised in her complaint, as well as the conclusions that had been reached.
138. On 9 May 2006 her request was rejected because the people concerned had already been heard several times precisely to clarify the questions raised by the applicant in her complaint. To see the content of their statements she would have to wait for the case to be referred for trial, when she would have access to the criminal file.
139. On 3 May 2006 the investigator invited the applicants and the first applicant’s father to be questioned about the applicant’s public statement that someone, acting through a third party, had offered her family a sum of money in exchange for their silence. On 4 May 2006 the applicants and the first applicant’s father explained that they had expressed their indignation at such a proposal and that the person who had delivered the message could be risking his life if ever the truth were to come out. The person concerned had told them that if they did not accept the money and remain silent, their lives could be in danger.
140. The file shows that on 3 May 2006 the prosecuting authorities offered the four accused, in the presence of their lawyer, a plea-bargaining arrangement. In particular, they were offered a suspended sentence in return for identifying any senior Ministry of the Interior official or other person who had had a hand in the crime.
141. According to the relevant video recordings, the four accused rejected that proposal. A.A.-uri replied: “Everyone who was there is now in prison.” A.Gh.-ava said: “I am naming no names, like I said the first time I was questioned, I know nothing and nobody was involved.” M.B.dze declared that nobody else, including the Minister of the Interior’s wife’s friends, was involved in the crime. After reading the offer in full, he repeated that, “dear to him as his freedom was”, he could not accept. G.A.ia said: “I cannot name any senior officials who were involved in the case.” The public prosecutor asked for an explanation. G.A.-ia said that he could not accept the offer. The public prosecutor asked him again: “You mean nobody else was involved – is that it?” G.A.-ia said yes. With the help of the public prosecutor and his lawyer, he stated in the record: “No member of the Ministry of the Interior or any other person was involved in this crime; so I cannot name anybody and must therefore reject the offer.”
142. On 18 May 2006, one of the mobile telephone operators gave the public prosecutor a CD with the list of numbers G.A.-ia had been in contact with on the night in question, showing the location of the antennas covering the various calls. The list showed that G.A.-ia had been near the “Chardin” antenna at 1.56 a.m. and that later, at 2.17 and 2.35 a.m., he had had two telephone conversations via the “Okrokana” antenna. At 2.54 a.m. he was already back in the centre of Tbilisi near the main square and the Café Chardin. For the other calls, the number G.A.-ia had spoken to was indicated, but not for the two above-mentioned calls. However, cross-checking this information with other information found in another volume of the case file shows that at 2.17 and 2.35 a.m. D.A.-aia called G.A.-ia in Okrokana.
143. On 16 May 2006 the four accused refused to have their statements verified at the scene of the crime.
144. On 21 June 2006 the preliminary investigation was closed. The first applicant and L.B.-dze were given five volumes of the criminal case file for consultation. On 22 June 2006 the whole case concerning both Sandro Girgvliani and L.B.-dze was sent before the Tbilisi City Court for trial.
145. On 20 June 2006 G.A.-ia, A.A.-uri, A.Gh.-ava and M.B.-dze were charged with wilful bodily harm resulting in death, and premeditated false imprisonment by a group of persons with life-threatening violence and destruction of another person’s property (Articles 119 and 143 § 2 (a), (c) and (h) and 187 § 1 of the Criminal Code). G.A.-ia was also charged with abuse of authority under Article 333 § 1 of the Criminal Code. Appended to the indictment was a list of the items of evidence collected by the prosecuting authorities during the investigation.
146. On 27 June 2006 the Tbilisi City Court commenced its examination of the case. As the first applicant had not had access to the materials in the case file during the investigation, in conformity with Article 69 (j) of the CCP, and had not been informed of the referral of the case for trial until 24 June 2006, she said she needed an extra three days to study the five volumes of the criminal case file and prepare her position. She pointed out in this connection that, unlike the civil party, the accused had had unrestricted access to the file throughout the preliminary investigation, in keeping with Article 76 § 3 of the CCP.
147. On 27 June 2006 her request was refused on the grounds that the first applicant and her lawyer had had access to the file during the investigation and after the case had been referred for trial, and they would have access to it throughout the trial.
148. At the hearing on 27 June 2006 L.B.-dze reiterated in full the various statements he had made during the investigation. He explained that he and Sandro Girgvliani had left the café together. G.A.-ia had also been armed and both he and A.Gh.-ava had beaten him. He had been forced at gunpoint to take his clothes off. His assailants had taken his clothes away, leaving him in his underpants and socks. He had not been fully able to identify O.M.-ov, but could only be 70% sure that the man in the photograph was one of the assailants (see paragraph 80 above).
149. At the hearing on 29 June 2006 Th.M.-dze fully confirmed the various statements she had made during the investigation. In her opinion Sandro Girgvliani had guessed she was at the Café Chardin because he had heard the sound of the bongo drums during their telephone conversation (see paragraph 99 above). When she talked to Sandro Girgvliani at his table, she had her back to her friends and could not tell whether G.D.-dze had heard Sandro Girgvliani insult him. Th.M.-dze had not smoked any K-brand cigarettes. According to her, only the Minister’s wife had smoked those cigarettes. At the table nobody had asked whether G.A.-ia was supposed to join them.
150. On 30 June 2006 D.A.-aia fully confirmed the statements he had made during the investigation. Notably, he reiterated that the mobile phone he had used in the café was O.M.-ov’s, with his own SIM card in it, as the battery in his own mobile phone was flat. He added that the telephone number (8 77 79 89 60) that featured most frequently in the lists of calls made and received by each of the Ministry of the Interior officials present in the café that night was the number of a colleague of his called M-eli.
151. However, the criminal case materials contained a letter dated 2 March 2006 issued by the relevant mobile company, according to which the telephone number 8 77 79 89 60 belonged to a certain K.N.-dze from the limited liability company “Falko”. Furthermore, the records of the telephone calls made and received by some of the persons involved, which had been obtained by the investigation at various stages and included in the case file, disclosed that the number in question had been contacted during the night in question by:
- G.A.-ia at 12.31 a.m., 1.04 a.m., 1.26 a.m., 1.46 a.m., 2.01 a.m. and 2.12 a.m.;
- D.A.-aia at 1.28 a.m.;
- G.D.-dze at 1.32 a.m., 1.36 a.m., 1.45 a.m.;
- O.M.-ov at 1.26 a.m. and 1.27 a.m.
In addition, those records also showed that G.D.-dze and V.S.-dze had contacted another telephone number – 877 76 76 90 – several times between 1.50 and 1.55 a.m., and that D.A.-aia had called G.D.-ze at 1.56 a.m.
152. Giving evidence on 30 June 2006, the Minister’s wife T.S.-aia fully confirmed the various statements she had made during the investigation. She added that she had not been told that G.A.-ia had also been invited to the party. D.A.-aia had often been on the telephone, but she had not heard what he was talking about because of the noise.
153. On 30 June 2006 V.S.-dze also fully confirmed the statements he had made during the investigation. He stated that he had learnt from D.A.ia that G.A.-ia had been supposed to join their party in the café.
154. Also on 30 June 2006, G.D.-dze fully confirmed the statements he had made during the investigation, adding that he had not been told that G.A.-ia had also been invited to the party (cf. paragraph 74 above). He also said that it was not impossible that D.A.-aia or someone else had used his telephone, which he had left on the table. At one point someone had called his number asking to speak to D.A.-aia. He himself had not made any calls to the accused. G.D.-dze also added that nobody had insulted him in the café.
155. In their testimonies on 30 June 2006, O.M.-ov and A.K.-dze fully confirmed the statements they had made during the investigation. O.M.ov said that he had been unaware that their group in the café had been waiting for G.A.-ia. A.K.-dze said that she could not really remember, but did not exclude the possibility that she had gone over to Sandro Girgvliani’s table to say something to Th.M.-dze.
156. At the hearing on 3 July 2006, L.Tch.-shvili confirmed the statements he had made during the investigation. He added that O.M.ov had called him from a number he did not recognise.
157. Also on 3 July 2006, G.A.-ia confirmed the statements he had made during the investigation, adding that as Deputy Director of the Ministry of the Interior he had no need to receive instructions from anybody to arrest an individual who was breaking the law under his nose. He acknowledged, however, that as time passed the discussion had gone beyond the limits of a routine job. Sandro Girgvliani had insulted G.D.-dze’s mother and the “mothers of the KGB” who were inside the café. G.A.-ia said that he had not been carrying a gun that evening. On the way to Okrokana he had called G.D.-dze’s number to speak to D.A.-aia, whom he had been unable to contact by any other means.
158. On the same day A.A.-uri, A.Gh.-ava and M.B.-dze refused to testify and remained silent.
159. Still on 3 July 2006, the first applicant requested that the court, in conformity with Articles 69 (j), 439 § 4, 440 § 1 and 485 § 2 of the CCP, examine the following items of evidence publicly and with the participation of the parties (“the fourteen exhibits”):
i. the video of the verification of L.B.-dze’s statements, recorded at the scene of the crime on 9 March 2006;
ii. the video of the verification of G.G.’s statements, recorded at the scene of the crime on 22 March 2006;
iii. the video of the verification of B.E.’s statements, recorded at the scene of the crime on 11 March 2006;
iv-vii. the videos of 6 March 2006 showing L.B.-dze identifying G.A.ia, A.A.-uri, A.Gh.-ava and M.B.-dze;
viii. the video of 8 March 2006 showing L.B.-dze identifying O.M.ov;
ix. the video of 6 March 2006 showing L.B.-dze’s second interview;
x. the video of 10 March 2006 showing L.B.-dze’s additional hearing;
xi. the two video cassettes of 13 March 2006 showing Th.M.-dze’s additional questioning;
xii. the compact disc containing the images recorded by the surveillance camera at the home of B.P., a wealthy businessman, on the road from Tbilisi to the Okrokana cemetery (the Tbilisi-Kojori road);
xiii. four compact discs of 13 March 2006, with recordings of Th.M.dze’s additional questioning;
xiv. a sketch tracing the presumed movements of Sandro Girgvliani at the scene of the crime.
160. On 3 July 2006 the court allowed this request only in respect of the exhibits numbered iii and xii above, but only ordered the publication of a written summary of the two video recordings concerned. The court pointed out that the people whose statements were recorded on the other CDs concerned had already been heard by the court. Furthermore, the records of these investigative measures, which had been filmed, were in the case file and the applicant had never challenged them.
161. On 5 July 2006 the first applicant requested that the evidence in the case file be made public and examined at the hearing, in keeping with Article 484 of the CCP.
162. The court rejected that request on the same day, holding that the evidence had already been examined in public and it was not necessary to examine it again.
163. On 5 July 2006 L.B.-dze’s lawyer requested that the two mobile phone operators be asked to supply records of all the telephone calls made and received by the four accused but also by the seven people who had sat at the same table in the café as the Minister of the Interior’s wife. The first applicant joined in this request, arguing that the case file did not contain necessary information concerning telephone calls that might have been made between the four accused and their friends in the café, or between the accused, their friends in the café and V.S.-dze’s chauffeur waiting in the car. She maintained that without that information it was impossible to know whether G.A.-ia had really had an altercation with her son which had nothing to do with the Ministry of the Interior officials sitting in the café, or whether, as she suspected, after being insulted by her son the officials had called G.A.-ia to come and punish Sandro.
164. That request was rejected on 5 July 2006.
165. At the hearing on 5 July 2006 L.B.-dze asked to be heard again. He then said that now he had seen O.M.-ov again and listened to him and observed him when the court had heard him as a witness, he could now say with certainty that he was indeed the man who had joined the other assailants at the cemetery and participated, with particular cruelty, in the attack on him and Sandro. L.B.-dze further stated that he had also been observing M.B.-dze since the start of the trial and was now convinced that he had not been present in Okrokana. What he had said about the behaviour of the fourth man, who had arrived at the cemetery after the others, therefore concerned O.M.-ov and not M.B.-dze. L.B.-dze further explained that at the time of the investigation he had believed that the public prosecutor and he were on the same side. Later, however, he had realised that the prosecutor was strongly backing the hypothesis of an altercation between Sandro Girgvliani and G.A.-ia in the entrance to the café. During the different identification parades on 6 March 2006 the prosecutor had advised him not to request the assistance of a lawyer, as the suspects had just been arrested and no time should be lost. The prosecutor had also advised L.B.-dze that it would be “better” if he could not identify O.M.-ov.
166. On 5 July 2006 L.B.-dze was placed under investigation for intentionally perverting the course of justice with manifestly contradictory statements (see paragraphs 194-203 below).
167. On 5 July 2006 the president of the court decided to allow the parties an hour to prepare their closing statements. The first applicant protested that she needed a week, because she had not had time to familiarise herself properly with the case file, either between the time when the case was referred for trial and the start of the trial or during the actual trial, which had only lasted nine days. If she was to be able to defend her rights, she needed a week.
168. Her request was rejected.
169. On 5 July 2006 L.B.-dze’s lawyer, having regard to the available records of a selection of the telephone calls made and received by G.A.ia, D.A-aia, G.D.-dze and O.M.-ov on the night in question, asked the judge to order the two mobile phone operators in Tbilisi to communicate the names of the subscribers with the telephone numbers 8 77 79 89 60, 8 77 48 48 45, 8 99 96 00 01 and 8 99 75 10 89 (see paragraphs 150-151 above). The first applicant additionally requested that the records of the phone calls of A.A.uri, A.Gh.-ava and M.B.-dze, as well as all those present at the Minister’s wife’s table, also be provided. The public prosecutor objected that that information had nothing to do with the charges.
170. The judge rejected these requests the same day. The lawyers then challenged the judge, arguing that if he did not consider it necessary to obtain information so important for the case, he was clearly partial and incapable of pronouncing a fair judgment. The judge rejected the challenge outright.
171. On 6 July 2006 the Tbilisi City Court, in view of the abrogation on 28 April 2006 of Article 119 of the Criminal Code, reclassified the offences as crimes under the new Article 117 § 6 of that code. It thus found G.A.ia guilty of premeditated false imprisonment by a group of persons with lifethreatening violence (Article 143 § 2 (a), (c) and (h) of the Criminal Code), wilful bodily harm resulting in death (Article 117 § 6 of the Criminal Code), abuse of authority (Article 333 § 1 of the Criminal Code) and destruction of another person’s property (Article 187 § 1 of the Criminal Code). A.A.-uri, A.Gh.-ava and M.B.-dze were found guilty of the crimes provided for in the above-mentioned Articles 143 § 2 (a), (c) and (h), 117 § 6 and 187 § 1.
172. G.A.-ia was sentenced to 8 years’ imprisonment (7 years under Article 143 § 2 (a), (c) and (h), 6 years under Article 117 § 6, 1 year under Article 333 § 1 and 1 year under Article 187 § 1 of the Criminal Code). The other three accused were sentenced to 7 years’ imprisonment each (6 years under Article 143 § 2 (a), (c) and (h), 6 years under Article 117 § 6 and 1 year under Article 187 § 1 of the Criminal Code).
173. The prosecution appealed against that decision, asking for the sentences to be increased to eight and nine years respectively. The first applicant joined in the appeal, in conformity with Article 25 § 1 of the CCP. She did not consider it worthwhile lodging a separate appeal as the appeal court would have examined the case only within the framework of the charges specified in the first-instance judgment (Article 450 of the CCP) and would not have been able to reclassify them as aggravated murder (Article 109 of the Criminal Code) as she would have wished, or to refer the case for additional investigation (Articles 498 and 501-504 of the CCP).
174. On 18 July 2006 the offenders were placed in Avchala prison no. 10.
175. On 20 and 26 July and 11 September 2006 the first applicant appealed to the president of the court that examined the case at first instance and on 3 August 2006, to the president of the criminal section of that court, requesting access to the fourteen exhibits in the case file before it was sent to the Court of Appeal (Articles 69 (j) and 485 § 2 of the CCP). The president of the court did not reply. The first applicant reiterated her request on 11 September 2006. On 18 September 2006 she was told that the case file containing the exhibits had already been sent to the Court of Appeal.
176. On 6, 17 and 30 October, 24 November and 8 December 2006 the first applicant asked the Tbilisi Court of Appeal to give her access to the fourteen exhibits in question. She pointed out that on 3 July 2006 the court of first instance had rejected the same request and that she had applied in vain to the president of the court on 20 and 26 July and 11 September 2006. She argued that without access to the evidence concerned she would be unable to properly defend her rights in the appeal proceedings.
177. No reply was received to any of these requests, except that of 8 December 2006, which was rejected on the same day. The applicant later challenged that decision, together with the appeal court’s judgment, on points of law.
178. On 8 December 2006 the applicant asked the Court of Appeal:
- to order the two mobile phone operators to produce the records of the telephone calls made and received between midnight and 12 noon on 28 January 2006 on the telephone numbers of the four accused, the seven people who were at the same table in the café as Th.M.-dze, and also L.Tch.-shvili, stating the location of the corresponding antennas;
- to give her access to the recording made by the surveillance camera at the home of a wealthy businessman on the road to Okrokana between midnight and 12 noon on 28 January 2006. The applicant explained that only a recording covering the period between 2 and 3 a.m. had been included in the case file by the investigating authorities and that did not show the traffic using that road before 2 a.m. and after 3 a.m.;
- to question G.D.-dze, Th.M.-dze, T.S.-aia and A.K.-dze in order to double-check the telephone numbers these people had used on the night in question.
179. On 8 December 2006 the applicant’s request was rejected.
180. On 8 December 2006 the applicant asked the Court of Appeal to summon the two Ministry of the Interior investigators who had been in charge of the investigation prior to 5 March 2006, to question them about the records they had seized from the mobile phone companies but not included in the case file. She also asked the Court of Appeal to obtain those records and any other evidence the investigators might have gathered and not included in the case file.
181. Her request was rejected.
182. On 11 December 2006 the four accused refused to attend the hearing and informed the Court of Appeal that they would be represented by counsel.
183. On the same date, 11 December 2006, the Tbilisi Court of Appeal upheld the first-instance judgment in full. Concerning L.B.-dze’s identification of O.M.-ov, it found the allegation ill-founded, pointing out that, in any event, M.B.-dze had confessed to being the fourth assailant, who had arrived last at the cemetery. Lastly, the Court of Appeal explained that the court of first instance would not have been able to examine the question of O.M.-ov’s involvement anyway, as O.M.-ov was not concerned by the criminal case as referred for trial (Article 450 of the CCP).
184. On 19 December 2006 and 4 January 2007, the first applicant applied to the Court of Appeal to give her access to the fourteen exhibits, to enable her to defend her rights at least in cassation. She received no reply.
185. On 21 December 2006 the first applicant applied to the Principal State Prosecutor, requesting the investigators who had been in charge of her son’s case to be placed under investigation for abuse of authority and destruction of evidence. In particular she maintained:
- that the offenders’ deeds had been deliberately misclassified as wilful bodily harm resulting in death, when her son had in fact been the victim of a crime under Article 109 of the Criminal Code, namely aggravated murder (committed by a group, with particular cruelty, out of self-interest, to order);
- that the investigating authorities had failed to consider the possibility suggested by various aspects of the case that D.A.-aia, V.S.-dze, G.D.-dze, O.M.-ov, T.S.-aia, Th.M.-dze and A.K.-dze or any one of them had been involved in the crime;
- that the investigating authorities of the Ministry of the Interior in charge of the investigation between 28 January and 5 March 2006 had destroyed evidence. In particular, the applicant alleged that she had obtained, by chance, a copy of the decisions of 31 January and 1 February 2006 in which the Tbilisi City Court found lawful such investigative measures as requiring the mobile phone companies to submit the records of all the phone calls made and received between 10 January and 31 January 2006 on the telephones of A.Gh.-ava and M.B.-dze. However, the records of those calls, the records of their seizure, the investigators’ request for the Tbilisi City Court to allow the seizure and the two decisions mentioned above had not been included in the case file, so the court had not been able to examine them. As they were missing from the case file, the applicant presumed that the evidence must have been destroyed or concealed. In its stead, on 11 May 2006 the investigating authorities of the Tbilisi City Prosecutor’s Office had placed in the case file, for the same telephone numbers, a selection of the records of the calls concerned, namely, those made between 1.28 and 2.58 a.m. on 28 January 2006. That incomplete information, however, did not serve the purpose of an effective investigation.
186. The Chief Public Prosecutor having failed to reply, the applicant reiterated her request on 16 February 2007, demanding a prompt reply.
187. The Chief Public Prosecutor again failed to reply.
188. On 11 January 2007 the first applicant lodged a cassation appeal against the appeal judgment of 11 December 2006 and all the procedural decisions pronounced in the appeal proceedings, including the decision of 8 December 2006 denying her access to the different items of evidence. In particular, she asked for the judgment of the Court of Appeal to be quashed, the procedural decisions set aside and the case referred to the Tbilisi Court of Appeal for fresh examination. The applicant stressed that her aim was to have a full and exhaustive investigation carried out. If this had been done earlier, the complicity between the four accused and the Minister’s wife’s friends in the café would have been demonstrated.
189. On 16 February 2007 the first applicant asked the Supreme Court of Georgia, when examining her appeal, to grant her access to the fourteen exhibits. She reiterated that without examining that evidence she would not be able to defend her interests as a civil party (Articles 15 §§ 3 and 5, 69 (k), 447 § 1 and 485 § 2 of the CCP). Her request went unanswered.
190. L.B.-dze and the four convicted persons also lodged cassation appeals.
191. On 27 July 2007, the Supreme Court of Georgia, acting as final court of appeal, found that the guilt of the four officials concerning the destruction of another person’s property (Article 187 § 1 of the Criminal Code) had not been validly demonstrated and acquitted them of that charge, reducing each of their prison sentences by six months, but upheld the remainder of the earlier judgment.
192. Concerning the complaint about the repeated refusal of access to evidence, the Supreme Court noted that the matter had been examined at first instance and that there had subsequently been no particularly important grounds to justify its further examination in application of Article 553 § 4 of the CCP. In addition, no appeal had been lodged against the decisions of the court of first instance. Lastly, the purpose of the first applicant’s demands had mainly been to prosecute persons external to the criminal case in point as brought against the four accused persons. However, a court was not a criminal prosecution body under Articles 15 § 5 and 439 § 3 of the CCP and the scope of its deliberations was confined to the charges in the indictment (Article 450).
193. The Supreme Court’s decision was served on the parties and the civil parties on 30 July 2007.
194. After accusing O.M.-ov at the hearing on 5 July 2006, L.B.-dze was charged with perverting the course of justice by making manifestly contradictory statements (Article 371-1 of the Criminal Code).
195. On 11 July 2006 he was questioned in this connection in the presence of his lawyer. He explained that at the different identification parades on 6 March 2006 (see paragraph 56 above) he had not been assisted by any lawyer who could have advised him. The investigator, on the other hand, had impressed on him that it would be “extremely serious if he identified the wrong person and that he should think carefully”. L.B.-dze had been able to identify G.A.-ia without any doubt. The investigator had then told him that for the other suspects it would be sufficient for him to say whether there was a physical resemblance. L.B.-dze remembered that when he had been invited into an MP’s office he had said that the man in the photograph looked like the fourth man, who had arrived later at the cemetery, but as he was not certain, he preferred not to incriminate him. He had not really been able to dispel his doubts until he had seen O.M.-ov give evidence in court. Only then had he been convinced, by the way O.M.-ov moved and spoke, that he was indeed the fourth assailant. To make absolutely sure, however, he had borrowed a video recording of O.M.-ov’s hearing from the first applicant which had apparently been made in secret. After watching the recording several times, L.B.-dze had been able to identify O.M.-ov with certainty. He repeated that he could not exclude the possibility that there had been more than four assailants at the cemetery, but he had only seen four. L.B.-dze pointed out that he had said several times in court that he did not know who M.B.-dze was. He also specified that on 6 March 2006 he had not identified that person as the fourth assailant (see paragraph 60 above). The fourth assailant had kicked him in the face, held a gun against his head and eye and threatened to kill him, and pistol-whipped him. He had then gone over to hit Sandro Girgvliani before coming back to him again. According to L.B.-dze, when it was all over and he found himself alone with his assailants, O.M.-ov had suggested to his friends that they take a photograph of their bruised and naked victim with a mobile phone.
196. At the end of the record of that interview it is mentioned that the lawyer had wanted to ask L.B.-dze some additional questions, but the investigator would not authorise it.
197. On 12 July 2006 L.B.-dze, as an accused person, requested that criminal proceedings be brought against O.M.-ov, with himself as a civil party, and that a thorough medical check-up be carried out to determine how serious the after-effects of the ill-treatment he had suffered on 28 January 2006 were.
198. On 13 July 2006 his request was rejected, on the grounds that the criminal case being investigated was against L.B.-dze, for perverting the course of justice, not against O.M.-ov. The right of application to the prosecuting authorities was explained to him.
199. On 22 July 2006 O.M.-ov was questioned as a witness in the case. He said that at around midnight on 27 January 2006 D.A.-aia had called him in his office and asked him to go down to the courtyard of the Ministry so they could take the official car together. They were already in town when D.A.-aia told him that he was going to the Café Chardin to wish V.S.-dze a happy birthday. As D.A.-aia’s mobile phone battery was flat O.M.-ov lent him his and D.A.-aia put his SIM card in it. In the café O.M.-ov found the Minister’s wife, the young women mentioned earlier and V.S.-dze. O.M.ov ordered an alcoholic beverage. About an hour and a half after they arrived in the café, the Minister’s wife asked him to go and find her some K-brand cigarettes, a brand they did not stock in the café. D.A.-aia gave him his car keys. He had been drinking, however, and did not want to drive, so, using G.D.-dze’s mobile phone he called V.S.-dze’s chauffeur to drive him. Before leaving the café, he went to the toilet. Outside, he met V.S.-dze’s chauffeur, who took him away in D.A.-aia’s car in search of cigarettes. They bought the cigarettes from a night vendor near the B. supermarket. He then went back to the café. He must have been away for 20-25 minutes. According to O.M.-ov, the statement made by L.B.-dze on 5 July 2006 was untrue and merely the result of pressure brought to bear by the first applicant and anti-Government activists.
200. On 6 July 2006 the first applicant applied to the Chief Public Prosecutor requesting that, in the light of L.B.-dze’s statement of 5 July 2006, and in conformity with Articles 22, 261 and 263 § 1 of the CCP, O.M.-ov be arrested immediately as a prime suspect and placed under investigation, and that she be given status in the case as the civil party’s heir. She requested that the case be taken away from the Tbilisi City Prosecutor’s Office, which had failed to conduct an effective investigation, and that the Chief Public Prosecutor’s Office take charge of the investigation of O.M.-ov’s case.
201. On 11 July 2006 her request was referred to the Tbilisi City Prosecutor’s Office, which informed the first applicant on 25 July 2006 that, in the framework of the criminal proceedings against L.B.-dze, the statement he had made on 5 July 2006 would be verified and an “objective and lawful” decision taken.
202. On 3 August 2006 the first applicant requested that the criminal proceedings against L.B.-dze be taken out of the hands of the Tbilisi City Prosecutor’s Office for the reasons mentioned above and that the Chief Public Prosecutor’s Office take charge of the case. That request was rejected as unfounded by a prosecutor from the Chief Public Prosecutor’s Office on 4 August 2006.
203. Neither the first applicant nor her lawyer found out what the outcome of the criminal proceedings against L.B.-dze had been. On receiving the observations of the Government (see paragraphs 5 above and 294 below), the applicant party learned that the case had been discontinued.
204. On 24 November 2008 the President of Georgia, along with pardoning 363 other prisoners, decided to grant G.A.-ia, A.A.uri, A.Gh.ava and M.B.-dze a measure of clemency and reduce the remainder of their respective sentences by half.
205. As that measure made them eligible for release on licence, the four men applied to the competent body in the Prisons Department of the Ministry of Justice on 14 August 2009 to be released. According to the certificates appended to their requests by the prison authorities, the men’s behaviour had been good (calm, courteous and on good terms with the prison authorities) and none had received any reprimand while in detention. Based on a unanimous favourable decision of the board on 21 August 2009, which described the crime committed by G.A.-ia, A.A.-uri, A.Gh.-ava and M.B.-dze as “physical aggression towards other persons which resulted from a verbal altercation” (“urTierTSelaparakebis niadagze fizikuri Seuracxyofa miayenes moqalaqeebs”), the Tbilisi City Court decided, on 5 September 2009, to release the four convicts on licence. It noted in particular that the men had served two-thirds of their sentences as reduced on 24 November 2008 (Article 72 § 8 of the CCP), and took their good behaviour into account. In the court’s opinion their continued detention was no longer necessary to reform them.
206. On 6 July 2009 the second applicant applied to the Tbilisi City Court requesting that the four men be ordered to pay him 200,000 Georgian laris ((“GEL), approximately 84,000 euros (“EUR”)) for the non-pecuniary damage he had suffered. He said that the pain caused by the murder of his only son and the ill-treatment inflicted on him before he died was a source of immeasurable suffering that would remain with him all his life.
207. To have his claim examined the second applicant had to pay a State tax of GEL 3,000 (approximately EUR 1,262).
208. By a judgment of 5 February 2010, the four individuals were ordered, in first instance, jointly to pay the applicant GEL 40,000 (approximately EUR 16,832) in respect of non-pecuniary damage. It was also decided to refund GEL 600 (approximately EUR 254) of the State tax he had had to pay.
209. As submitted by the applicants on 23 December 2010 and confirmed by the Government on 24 February 2011, the Tbilisi City Court’s judgment of 5 February 2010 had by that time become final and enforceable.
210. The Amendment Act of 28 April 2006 amended Articles 109, 117, 119, 143, 187, 333 and 371-1 of the Criminal Code.
The relevant provisions of the Code read as follows:
Article 59 §§ 1 and 4 (as in force prior to the amendment of 29 December 2006)
“Where several crimes are committed, sentences shall be pronounced for each crime.
If the crimes committed include lesser offences as well as serious or particularly serious crimes, the harshest sentence shall absorb the lighter one, or the sentences for each crime shall be added together, in part or in full, in order to determine the final sentence. However, the final prison sentence shall not exceed 20 years.”
Article 59 § 1 (as amended on 29 December 2006)
“Where several crimes are committed, sentences shall be pronounced for each crime, then added together to determine the final sentence.”
In conformity with Article 12 §§ 2 and 3 of the Criminal Code, the crimes provided for in Articles 117 § 6 and 143 § 2 are serious crimes, whereas those provided for in Articles 187 § 1 and 333 § 1 are lesser criminal offences.
Article 108 – “Murder”
“Murder shall be punishable by 7 to 15 years’ imprisonment.”
Article 109 (as in force prior to the amendment of 28 April 2006) – “Aggravated murder”
“Murder (...);
(f) with particular cruelty; (...)
(h) by a group;
(i) out of self-interest or to order; (...)
shall be punishable by 10 to 20 years’ or life imprisonment.”
Article 117 (as amended on 28 April 2006 and applied in the instant case) – “Wilful grievous bodily harm”
“1. Wilful grievous bodily harm (...) which is life-threatening (...) shall be punishable by 3 to 5 years’ imprisonment.
2. When it results in death, wilful grievous bodily harm shall be punishable by 4 to 6 years’ imprisonment. (...)
5. Wilful grievous bodily harm committed (...);
(e) by a group;
shall be punishable by 7 to 9 years’ imprisonment.
6. The offence provided for in the preceding paragraph, when it results in death, shall be punishable by 8 to 10 years’ imprisonment.
7. Wilful grievous bodily harm committed:
(a) on two or more people;
(b) with particular cruelty;
(c) out of self-interest or to order; (...)
shall be punishable by 9 to 12 years’ imprisonment.
8. The offence provided for in the preceding paragraph, when it results in death, shall be punishable by 10 to 13 years’ imprisonment.”
Article 119 (abrogated on 28 April 2006) – “Bodily harm resulting in death”
“Wilful grievous or less serious bodily harm resulting in death shall be punishable by 3 to 10 years’ imprisonment.”
Article 143 §§ 2 and 3 (as in force prior to 28 April 2006) – “False arrest”
“2. False arrest
(a) by a group, with premeditation; (...)
(c) of two or more people; (...)
(h) with life- or health-threatening violence (...);
shall be punishable by 3 to 10 years’ imprisonment.
3. The offence provided for in the preceding paragraph,
(a) when committed by an organised group;
(b) when it results in the death of the victim (...) ;
shall be punishable by 5 to 15 years’ imprisonment.”
Article 187 § 1 (as in force prior to the amendment of 28 April 2006) – “Destruction of another person’s property”
“Destruction of or damage to another person’s property, resulting in substantial loss, shall be punishable by 100 to 180 hours’ community service or up to one year’s correctional labour or up to 3 years’ imprisonment.”
Article 333 § 1 (as in force prior to the amendment of 28 April 2006) – “Abuse of authority”
“Abuse of authority by a public official (...) which substantially adversely affects the rights of a natural person or other legal entity or the legal interests of society or of the State shall be punishable by a fine (...) or up to 3 years’ imprisonment, and up to 3 years’ disqualification from holding public office (...)”
Article 371-1 (as amended on 28 April 2006) – “Substantially contradictory statements by a witness or a civil party”
“1. Wilful perversion of justice by a witness or a civil party by substantially contradictory statements shall be punishable by a fine or by 1 to 3 years’ imprisonment.
2. The same offence committed out of self-interest or for another private motive shall be punishable by 2 to 4 years’ imprisonment (...)”
211. Pursuant to Article 62 §§ 1 and 2 of the CCP, whilst criminal investigations are normally carried out by the Ministry of the Interior, an investigation into an offence implicating, inter alia, a policeman, an investigator or a senior military or special law-enforcement officer should be entrusted to the Public Prosecutor’s Office.
Pursuant to Article 68 § 2 of the CCP, if a crime resulted in the death of the victim, civil party status should be granted to one of his close relatives. If several relatives share the same bloodline with the deceased victim, the relatives should agree amongst themselves who should act as the civil party.
Article 347 § 2 of the CCP, which enumerated the rights and responsibilities of a victim or a witness participating in an identification parade, was silent about whether the victim or witness was to be assisted by a lawyer during that investigative action.
Pursuant to Articles 498 and 501-504 of the CCP, the trial court is empowered to examine the case only within the scope of the charges as brought by the public prosecutor in the indictment, and to deliver either an acquittal or a conviction on the basis of the indictment and the available case materials. The trial court may not remit the case for additional investigation, unless the prosecutor personally decided to seek an aggravation of the criminal liability during the trial.
The other relevant provisions of the CCP read as follows:
Article 25 § 1
“The civil party and their counsel shall have the right to join the proceedings brought by the public prosecutor.”
Article 69
“The civil party (...) shall have the right: (...) ;
(i) to take part in the investigative measures carried out at their request;
(j) to acquaint themselves with a copy of the full criminal case file and all the evidence once the case has been referred for trial; (...)
(m) to take part in the judicial examination of the case, by submitting evidence and by examining the evidence produced by the other parties (...)”
Article 261
“Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. (...)”
Article 263 § 1
“The preliminary investigation shall be opened on the basis of the information concerning the commission of the crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity, (...), reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation (...)”
Article 439 § 4
“The court shall guarantee the requisite conditions for the presentation and examination of evidence by the parties, while observing its duty to be impartial (...)”
Article 440 §§ 1 and 3
“During the examination of the case, the court of first instance shall ensure the examination of the evidence by (...) studying it and, where necessary, by reading out the records of investigative measures or other documents.
The material in the file of the preliminary investigation may be made public during the judicial examination of the case only in those cases provided for in the present code.”
Article 450
“The court shall examine the case within the framework of the charges brought against the accused, except when the prosecution changes the charges in favour of the accused.”
Article 484 §§ 1 and 3
“At the request of the parties or at the initiative of the court, the clerk of the court shall read out the material collected in the file of the preliminary investigation and the records of the investigative measures. At the same time the question of the reliability, relevance and admissibility of these items of evidence shall be examined.
The documents presented by the parties shall be read out and placed on file.”
Article 485 § 2
“The items of material evidence placed in the file during the preliminary investigation as well as any such evidence submitted to the court by the parties (...) shall be examined by the court in the courtroom with the participation of the parties. (...)”
212. As disclosed by the Government’s submissions, supported by a summary of the relevant official statistical data issued by the relevant department of the Supreme Court of Georgia, in 2006 three persons were convicted of wilful grievous bodily harm resulting in death (Article 117 § 6 of the Criminal Code), all of them being sentenced to eight years’ imprisonment without remission.
213. In the same year, 199 persons were convicted of false arrest by a group, with premeditation and life- or health-threatening violence (Article 143 § 2 of the Criminal Code), 105 of whom were given suspended prison sentences. The duration of those sentences varied from one to eight years – 78 persons were sentenced to three years in prison, 36 persons to four years and 44 persons to five years. In 2007, the prison sentences imposed for the same crimes varied between three and seven years.
214. Still in 2006, 32 persons were convicted of abuse of authority (Article 333 § 1 of the Criminal Code). 17 of them were sentenced to two years’ imprisonment without remission and 15 were given suspended prison sentences. Only on two occasions was the penalty of disqualification from holding public office also pronounced.
215. The Government also submitted numerous (more than 30) judgments delivered by various courts of first instance in 2006 under, inter alia, the above-mentioned three provisions of the Criminal Code. However, the voluminous information contained in those judgments was not presented in an analytical and pertinent summary, nor was it clear whether those judgments were ever upheld by the upper courts and thus became binding in their initial wording.
216. In reply to the Government’s submissions, the applicants likewise submitted numerous decisions delivered by the Supreme Court in 20062008 upholding the lower courts’ convictions under various provisions of the Criminal Code, including Articles 117 § 6, 143 § 2 and 333 § 1. The major part of that voluminous information was not presented in an analytical and pertinent summary and was thus barely comprehensible.
217. However, amongst those decisions, as the applicants emphasised themselves, there were those concerning the case of G.Z.-dze, which attracted publicity in Georgia. Notably, as disclosed by the relevant case materials, in the course of a verbal altercation with a stranger in the street, the fourteen-year-old boy stabbed the stranger in the right shoulder with a folding pocket knife. A subsequent forensic medical report confirmed the injury inflicted was of a superficial nature and did not cause any serious damage. The act was classified as attempted murder, and the boy was sentenced by the Tbilisi Court of Appeal’s decision of 19 March 2007 to seven years’ imprisonment without remission. The Supreme Court of Georgia left that conviction intact by its final decision of 1 November 2007.
VIOLATED_ARTICLES: 2
38
VIOLATED_PARAGRAPHS: 2-1
NON_VIOLATED_ARTICLES: 2
NON_VIOLATED_PARAGRAPHS: 2-1