Enukidze and Girgvliani VS Georgia

Case # 25091/07

Verdict

ii.  Application of these principles in the present case

244.  It is undisputed that the investigation into the death of the applicants’ son was indeed carried out. However, having due regard to the relevant circumstances of the case, the Court has very serious misgivings about the integrity and efficiency of that investigation, which the Government have not been able to dispel either in their written observations or in their oral pleadings.
(ά)  As regards the part of the investigation carried out by the Ministry of the Interior
245.  The Court notes that the very first investigative steps undertaken by the Ministry of the Interior after the discovery of Sandro Girgvliani’s body on 28 January 2006 established the following two facts – that the deceased’s and L.B.-dze’s presence in the Café Chardin had coincided with that of the Minister of the Interior’s wife’s group of friends, mostly consisting of senior officers from the same Ministry, and that upon leaving that café the two victims had been assaulted by unknown persons behaving like policemen (see the statements given by L.B.-dze and the café’s staff to the investigator on 28, 29 and 30 January 2006, paragraphs 24-30, 33 and 35 above). Furthermore, as disclosed by the early statements of Th.M.-dze, Sandro Girgvliani’s lady friend who had been a direct link between him and the Minister of the Interior’s wife’s group in the café, as well as by the investigator’s sudden interest in the telephone numbers dialled and received during the relevant period by G.A.-ia, by 31 January 2006 at the latest the investigator already knew about the connection between the applicants’ son and the above-mentioned group and had certain grounds to suspect G.A. ia, First Deputy Director of Constitutional Security (see paragraphs 40 and 41 above). In addition, as alleged by the applicants and conceded by the Government themselves, on 31 January and 1 February the investigator had also seized the records of the telephone numbers which had been in communication with A.Gh.-ava and M.B.-dze, which fact proves that the investigator had already developed some suspicion by that time against those two law-enforcement officers, too (see paragraphs 185 and 223 above).
246.  However, despite those circumstances implicating the representatives of the Ministry of the Interior from the early stage of the investigation, the same authority remained in charge of the investigation for a significant period of time, until 5 March 2006 (see paragraph 49 above). During that period, the Ministry conducted numerous important investigative actions, such as questioning relevant witnesses, collecting data about the mobile telephone numbers which had been in communication at the material time via the relevant antennas in Tbilisi, including, as noted above, the numbers of the Ministry officials concerned, seizing the recording from the surveillance camera along the Tbilisi-Kojori road, which piece of evidence later became crucial for the verification of the alleged involvement of O.M.-ov, and so on (see paragraphs 24-48).
247.  That institutional connection and even hierarchical subordination between the implicated senior officers of the Ministry of the Interior and the investigators in charge of the case is even more striking when assessed against the fact that D.A.-aia, a member of the Minister’s wife’s group in the café and, at the same time, G.A.-ia’s direct superior, was subsequently the person responsible in the Ministry for the investigation of Sandro Girgvliani’s death. The inappropriateness of that conflict of interests was, in the eyes of the Court, further exacerbated by its being hidden from the public: the only mention of D.A.-aia’s involvement in the investigation appeared in the Ministry’s memo of 24 February 2006, which was a classified internal document at that time (see paragraphs 10 and 50 52 above).
248.  The contents of that memo further confirm that, at least by 2 February 2006, D.A.-aia already knew about the possible involvement of his colleagues in the crime, yet he did not withdraw from the case. Furthermore, if D.A.-aia’s statements can be relied on, the Court is struck by the fact that even the Minister of the Interior, upon learning the facts implicating his subordinates and possibly his wife, did not immediately remove the file from the hands of his Ministry, which would have been the only professional and discreet solution in the circumstances, but, on the contrary, instructed D.A.-aia to continue investigating (see paragraph 116 above).
249.  In the light of the foregoing, the Court finds that the investigation conducted by the Ministry of the Interior between 26 January and 5 March 2006, during which period the decisive items of evidence were collected, manifestly lacked the requisite independence and impartiality, which procedural deficiency prejudiced the subsequent developments in the investigation (see, as a recent authority, Kolevi v. Bulgaria, no. 1108/02, §§ 208 and 212, 5 November 2009).
(β)  As regards the part of the investigation carried out by the Tbilisi City Prosecutor’s Office
250.  Turning to the circumstances surrounding the investigation conducted by the Tbilisi City Prosecutor’s Office, the Court considers that one of the most serious omissions was that authority’s obstinate refusal to grant the applicants leave to take part in important investigative measures, despite their strenuous efforts to remain involved. It is regrettable that, under the relevant domestic law and practice (see Article 69 (j) of the CCP), the applicants could not have any access whatsoever to the relevant case materials during the investigation stage. The Court deplores that the prosecution authority did not even inform the applicants of the findings made in the course of the investigation measures conducted in their absence (see, for instance, paragraphs 94-97, 137 and 138 above). As a result, the applicants were left in a complete vacuum as regards the progress of the investigation, which clearly deprived them of the opportunity to safeguard their legitimate procedural interests as it unfolded (see Slimani v. France, no. 57671/00, §§ 44 and 46-48, ECHR 2004 IX (extracts); Orhan v. Turkey, no. 25656/94, § 346, 18 June 2002; Beker v. Turkey, no. 27866/03, § 49, 24 March 2009 , and Güleç, cited above, § 82).
251.  Neither, the Court notes, was the second civil party, L.B.-dze, able to effectively participate in the investigative measures, given that, apart from lacking qualified legal counsel, he too was denied access to the case materials during the investigation stage. However, being the only survivor of and eyewitness to the crime, L.B.-dze was a source of information of paramount, undeniable importance, and the Court considers that the relevant domestic authorities were consequently under the particularly compelling obligation to take active measures to provide him with all the necessary means to ensure the full and effective realisation of his procedural rights.
252.  A conspicuous example of the vulnerability of L.B.-dze’s position during the investigation was the following episode. Being unaware of the evidence in the criminal case file at that time, which included accused G.A. ia’s theory according to which his altercation with Sandro Girgvliani had started in the entrance to the Café Chardin, L.B.-dze obviously had no means of knowing how important it was to recall accurately whether he had gone through the café door together with Sandro Girgvliani and whether he had seen his friend have an altercation with anybody on the way out. Consequently, L.B.-dze was totally unprepared for answering the prosecutor’s dubious but insistent line of questioning in that respect. Indeed, the Court notes that it was only at the trial stage, after L.B.-dze had familiarised himself with the case materials, that he finally realised why the public prosecutor had been strongly supporting the hypothesis that he and Sandro Girgvliani might have left the café separately (see paragraphs 65, 71, 86-87 and 165 above).
253.  The Court cannot overlook other episodes in which the Tbilisi City Prosecutor’s Office carried out investigative measures in a clearly misleading manner. For example, as disclosed by the video recording of the identification parade of 8 March 2006, L.B.-dze tentatively suggested that O.M.-ov resembled one of the assailants. However, the public prosecutor failed to note the suggested resemblance in the relevant written records. Then again, when questioned on 10 March 2006, L.B.-dze reiterated his suspicions concerning O.M.-ov’s possible involvement in the crime, but instead of treating that serious allegation with the requisite vigilance (see Brecknell v. the United Kingdom, no. 32457/04, §§ 70 and 75, 27 November 2007), the prosecutor re-phrased that statement in the written records in such a manner as to ignore the real content and importance of the information received (see paragraph 80 above). A similar discrepancy between what was actually said by L.B.-dze as regards the circumstances surrounding his and Sandro Girgvliani’s leaving the Café Chardin and what was recorded by the prosecutor occurred during the first interview of 6 March 2006. Nor did the prosecutor note L.B.-dze’s statement according to which a friend had come to sit with him exactly at the same time as Sandro Girgvliani was having a stilted conversation with Th.M.-dze at the same table (see paragraphs 63 and 65 above). The Court considers this to be a distortion of the witness’s statements in the written records by the public prosecutor.
254.  The Court deplores that, despite the applicants’ reiterated requests, the prosecuting authority did not identify and question, for the purposes of the investigation, those persons with whom both the four convicts and the members of the Minister of the Interior’s wife’s group had been in communication during the night in question. Such a measure was indispensable for the verification of the applicants’ allegation that there had existed some sort of complicity between the direct perpetrators of the crime and the Minister of the Interior’s wife’s group in the café. The Court observes, for instance, that, as disclosed by the case file, one particular telephone number – 8 77 79 89 60 – was dialled most often on the night in question by both G.A.-ia, one of the perpetrators, and the senior officers of the Ministry of the Interior present in the café. D.A.-aia even testified that the number belonged to their common friend M-eli. That statement, in its turn, contradicted the information disclosed by the relevant mobile phone company, according to which the number in question belonged to a certain K.N.-dze from the limited liability company “Falko”. Despite those manifest contradictions, the domestic authorities did not take the trouble to establish the real identity of the owner of that number and secure his appearance as a witness, so that every party to the proceedings could find out what that person had been discussing with both the senior officers of the Ministry of the Interior in the Café Chardin and G.A.-ia at the time when the latter, together with his colleagues from the Ministry, had been committing the crime against Sandro Girgvliani and L.B.-dze.
255.  As to the Government’s assertion that the investigation authorities had, in reality, questioned all the persons with whom the four perpetrators had been in telephone communication during the period question but had decided not to include that information in the criminal case file, the Court considers that, if accepted, that assertion would only exacerbate the situation. Indeed, the Government’s suggestion corroborates the applicants’ complaint, which they strenuously attempted to prove at the domestic level, that the investigators had concealed important items of evidence (see paragraphs 186 and 224 above). The Court considers that the identification of all those persons whom the four convicts had contacted during the relevant period was clearly relevant to a thorough and objective examination of the case. As to the consideration of the respect for those persons’ privacy, apart from having difficulty in finding the force in that unelaborated and ambiguous argument, the Court would simply note that the prosecution authority could have allowed the applicants and the domestic courts to have those persons examined at least as anonymous witnesses (cf., amongst many other authorities, Kornev and Karpenko v. Ukraine, no. 17444/04, § 56, 21 October 2010).
256.  The Court is further struck by the prosecution authority’s failure to elucidate the circumstances in which Sandro Girgvliani had received numerous wounds to various parts of his body, in particular those inflicted on his throat. Thus, whilst the forensic expert established that most of those wounds, including the fatal one to the pharynx, had been caused by a sharp, pointed object with a handle, probably a knife, the prosecution authority did not take the trouble to investigate and explain, in the context of the specific facts of the case, exactly how, with what sharp weapon and by whom amongst the four accused persons, those wounds could have been inflicted (see Vachkovi v. Bulgaria, no. 2747/02, § 91, 8 July 2010). The Court has no doubt that the establishment of that crucial element could have had an impact, inter alia, on the proper classification of the crime (see paragraphs 271 and 272 below). Instead, despite the serious indications calling for caution, the prosecution authority merely accepted the explanation of the accused that they had not used any sharp weapons and that Sandro Girgvliani must have received those wounds “on the wire fencing” or “in the bramble bushes”, which gratuitous assertion directly contradicted the qualified State expert’s conclusions as to the origins of the wounds (see Velikova v. Bulgaria, no. 41488/98, § 73, ECHR 2000 VI).
257.  The Court also finds it disturbing that the prosecution authority and the Prisons Department – the latter agency, it should be noted, being headed by the brother of D.A.-aia (see paragraphs 127-129 above) – failed to ensure that the four accused were remanded in separate cells, as was clearly required by section 86 § 2 of the law on detention at the material time. Irrespective of whether that fact allowed the applicants to coordinate their statements, the Court attaches importance to the fact that such manifest disregard of the law could hardly have been conducive to the maintenance of the applicants’ and the public’s trust in the investigation.
258.  All the above considerations are sufficient for the Court to conclude, even without enquiring into other relevant circumstances, that the part of the investigation carried out by the Tbilisi City Prosecutor’s Office manifestly lacked the requisite thoroughness, objectivity and, most importantly, integrity. In addition, by not allowing the applicants and the second civil party to have access to the criminal file or at least to be regularly updated on the developments in the investigation, coupled with certain other serious omissions, the prosecution authority fell short of its obligation to safeguard the interests of the next of kin and to ensure that the investigation received the required level of public scrutiny (see Medova, cited above, § 109).
(γ)  As regards the judicial proceedings
259.  The Court considers that a major deficiency in the judicial proceedings was the domestic courts’ persistent refusal to provide the applicants with sufficient time and facilities to study the case materials, thus depriving them of the opportunity to prepare their position for and participate effectively in the trial. Indeed, it is striking that, in such a particularly complex case, the proceedings at first instance lasted only nine days (see paragraphs 146 and 171 above), during which period it was hardly feasible either for the civil parties or even for the judges to study the voluminous case materials. Of particular concern is the fact that the applicants did not have access to the fourteen exhibits, which items represented the backbone of the case, examined in their original form in public and adversarial proceedings. The importance of having direct access to the video materials concerned, rather than to their written transcripts, gains additional weight in the light of the prosecution authority’s propensity to distort the facts in the relevant written records, as noted above by the Court (see paragraphs 252 and 253 above).
260.  Considering that the accused, in keeping with Article 76 § 3 of the CCP, had unrestricted access to the case materials from the investigation stage, the applicants, as the civil party, found themselves in a clearly disadvantageous position during the trial. However, the Court reiterates that, in the normal course of events, a criminal trial, with an adversarial procedure before an independent and impartial judge, must be regarded as furnishing the strongest safeguards of an effective procedure for the finding of facts and the attribution of criminal responsibility (see Brecknell, cited above, §§ 65 and 66). The Court, sharing the applicants’ arguments, notes that, in the particular circumstances of the present case, the prosecution authority’s procedural rights could not compensate for the absence of those of the civil party because that authority, as noted above, manifestly lacked integrity in the conduct of the investigation and interest in the applicants’ cause.
261.  Furthermore, in addition to their failure to examine the above-mentioned fourteen exhibits properly, the domestic courts also disregarded the applicants’ numerous requests for the collection of additional evidence directly relevant to the establishment of the truth in the case. For instance, although such information was necessary for the verification of the possible complicity between the four perpetrators and some of the persons present at the Minister of the Interior’s wife’s table in the Café Chardin, the domestic courts refused to secure and duly examine the records of all the telephone calls made and received by all the above-mentioned persons on the night in question. It is further regrettable that the courts disregarded the applicants’ allegation that the investigative authorities of the Ministry of the Interior and of the Tbilisi City Prosecutor’s Office had destroyed or concealed evidence as they had introduced into the criminal file only a selection of the records of the calls made and received by the perpetrators, whereas they had in fact obtained the relevant information from the mobile phone companies in its entirety (see also the Court’s findings at paragraph 254 above). The Court reaffirms in this connection that for an investigation into a death to be effective, the domestic authorities must take such steps as are necessary to secure all relevant evidence (see, for example, Rantsev, cited above, § 241).
262.  The Court is particularly struck by the fact that, when L.B.-dze, in line with his previous pre-trial statements, reiterated during the trial, this time in a particularly convincing manner and for the attention of both the prosecution and the judicial authorities, that O.M.-ov had been the fourth assailant who had participated, with particular cruelty, in the attack on him and Sandro, those authorities, contrary to their obligation of vigilance, chose to close their eyes to that serious and credible accusation. The authorities remained inexplicably inactive even after the applicants explicitly requested the initiation of criminal proceedings against O.M.-ov on the strength of the incriminating statements of L.B.-dze, the direct victim (see paragraph 200 above). In the Court’s opinion the placement under investigation of O.M. ov, who had formed part of the group present at the Minister’s wife’s table in the café, was an indispensable measure for the verification of the applicants’ allegation of the existence of complicity between the perpetrators and that group (see, mutatis mutandis, Brecknell, cited above, §§ 70-71; Kolevi, cited above, § 201; and Slimani, cited above, § 29).
263.  The Court observes that there existed other suspicious circumstances which, had they been duly noted and assessed by the domestic courts, could have shed additional light on the applicants’ above mentioned allegation of complicity. Notably, whilst G.A.-ia had stated, in his pre-trial deposition, that on the way back from Okrokana cemetery, that is after the commission of the crime, he had received phone calls from G.D.-dze asking whether he was joining their party in the café, the latter, when questioned during the trial, suspiciously denied having received any information about G.A.-ia possibly joining their group (see paragraphs 74 and 155 above). At the same time, as disclosed by the records of the telephone calls which formed part of the criminal case materials, the Court notes that G.D.-dze and G.A.-ia had indeed been in communication on the night in question at 1.50, 1.56, 2.01 and 2.05 a.m. That being so, the Court finds it highly regrettable that the domestic authorities failed to explain that manifest discrepancy between the statements of G.A.-ia and G.D.-dze and their inconsistency with the facts as established by the records of the telephone calls.
264.  It is noteworthy that even G.A.-ia’s own story about the origins of his altercation with Sandro Girgvliani suggested that the applicants’ son must have been familiar with and apparently in conflict with at least some of the representatives of the Ministry of the Interior, and in particular with G.D.-dze. G.A.-ia said that he had heard Sandro Girgvliani insulting “G.D. dze’s mother” and the “mothers of the KGB” who had been in the café. A reasonable observer could infer from G.A.-ia’s statement that Sandro Girgvliani must have known the people whom he was insulting. Another detail that supports the hypothesis that there might have been some kind of connection and latent animosity between the applicants’ son and G.D.-dze is the fact that, in his private conversation with Th.M.-dze, Sandro Girgvliani offensively referred to the Minister of the Interior’s spokesman as “that poof” (see paragraphs 71, 101 and 158 above).
265.  Having further examined the records of the telephone calls which formed part of the criminal case materials, the Court also notes that Sandro Girgvliani’s ill-treatment must have occurred between 2.12 and 2.54 a.m., as during that period G.A.-ia had been in the vicinity of Okrokana cemetery. These records establish that somebody contacted G.D.-ze from D.A.-aia’s number at 2.08, 2.17, 2.23 and 2.25 a.m. That being so, the Court is struck by the fact that neither the prosecution nor the domestic courts attempted to clarify who from the Minister of the Interior’s wife’s group – D.A.-ia, the owner of the mobile phone, or perhaps even O.M.-ov (given that D.A. ia’s SIM card had been placed in the latter’s mobile phone, see paragraph 114 above) – had been calling G.A.-ia with such suspicious insistence, at intervals of only 9, 6 and 2 minutes, at the precise time when the latter, with his colleagues from the Ministry, kidnapped Sandro Girgvliani and L.B. dze and was either on the way to Okrokana or already beating the victims.
266.  The Court deplores that, despite these very serious indications calling for particular caution in this regard, the authorities turned a blind eye to the applicants’ credible allegation of complicity between some of the persons from the Interior Minister’s wife’s group in the café and the direct perpetrators of the crime. Such a selective approach by the domestic authorities is unacceptable for the Court because, in order for an investigation to be effective, its conclusions must always be based on thorough, objective and impartial analysis of all relevant elements. Failing to follow an obvious line of inquiry undermines the investigation’s ability to establish the circumstances of the case and the person responsible (see Kolevi, cited above, § 201, and Velikova, cited above, § 82).
267.  In the light of the above considerations, the Court concludes that the applicants were arbitrarily denied the right to participate effectively in the judicial proceedings and that the conduct of those proceedings confirmed the domestic authorities’ manifest reluctance to uncover, in an objective and conclusive manner, the whole truth about the circumstances surrounding Sandro Girgvliani’s kidnapping and death on 28 January 2006.
(δ)  As regards the adequacy of the punishment of the convicted persons
268.  The Court recalls that, while it largely defers to the national courts’ choice of sanctions for ill-treatment and homicide, it nevertheless must, as the ultimate watchdog of the protection of Articles 2 and 3 of the Convention, the two most fundamental provisions, exercise a power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed. Otherwise, the States’ duty to carry out an effective investigation would lose much of its meaning, and the rights enshrined in the above-mentioned provisions would be ineffective in practice (see Nikolova and Velichkova v. Bulgaria, no. 7888/03, § 61, 20 December 2007; Fadime and Turan Karabulut v. Turkey, no. 23872/04, § 46, 27 May 2010; and Okkalı v. Turkey, no. 52067/99, § 73-76, ECHR 2006 XII (extracts)).
269.  In the present case, the Court considers it necessary to address not only the severity of the sentences as initially imposed by the domestic courts but also the manner of their subsequent implementation.
270.  The Court notes that the question of the sentences imposed on the four senior Ministry of the Interior officials is intrinsically related to the criminal classification of the offences by the domestic courts. Admittedly, it is normally not the Court’s task to verify whether the sentence correctly applied the criminal law provisions, or to rule on the degree of individual liability of the officials in question. However, keeping in mind its obligation under Article 2 of the Convention to apply particularly close scrutiny in cases of homicide inflicted at the hands of State agents, irrespective of whether they acted within or outside the exercise of their official duties, the Court is unable to overlook the fact that the investigation authorities failed to sufficiently prepare the relevant evidentiary basis, or that the domestic courts did not take the trouble to discuss in their decisions the exact nature of the treatment which had caused the death (see, for example, Velikova, cited above, § 73, and Okkalı, cited above, § 73).
271.  The Court notes, for example, that the autopsy report and other evidence showed that, prior to his death, Sandro Girgvliani had been stripped from the waist up and received numerous wounds to different parts of his body inflicted by a sharp, pointed object with a handle, probably a knife. The prosecution and the judicial authorities found that his death had been caused by the treatment inflicted by the four officers. The only possible logical corollary to these two established facts is that the perpetrators first stripped Sandro Girgvliani at Okrokana cemetery, which in itself was a form of deliberately debasing treatment, and then at least one of the group started vigorously cutting him with an unidentified sharp weapon.
272.  Looking more closely at the nature of those wounds – numerous cuts from 4 to 15 cm long all over the body, including deep wounds to the throat, one of them, the fatal one, piercing the pharynx (for more details, see paragraphs 20-22 above) – the Court cannot but conclude that Sandro Girgvliani was subjected to particularly cruel, life-threatening inhuman treatment. Furthermore, where the perpetrator(s) slashed such a vulnerable area of the victim’s body as the throat twelve times with a sharp weapon, it is only reasonable to assume that the perpetrator(s) actually intended to take Sandro Girgvliani’s life. Another element which emphasises the deliberately life-endangering nature of the attack was the threat and the use of a gun by at least one of the assailants. All things considered, the Court finds it regrettable that, when classifying the offence and passing sentences of from 7 to 8 years’ imprisonment, the adequacy of which punishment is in actual fact doubtful, the domestic courts failed to take into account such manifestly aggravating circumstances as the debasing and particularly cruel nature of the treatment inflicted on the victim, quite deliberately, by the State agents.
273.  In any event, it is not so much the initial sentences imposed on the offenders as the subsequent manner of their implementation which is at the core of the problem. The Court is struck by the fact that on 24 November 2008 the President of Georgia found it appropriate to pardon State agents convicted of such a heinous crime by reducing the remainder of their sentences by half. Then, as if that measure of clemency was not generous enough, on 5 September 2009 the prison authority recommended and the relevant domestic court granted the convicts’ release on licence. The Government referred to the necessity of holding offenders accountable before the public at large (see paragraph 229 above). The Court observes in that respect that Georgian society was expected to accept the fact that three years and six months of imprisonment (see paragraphs 61 and 205 above) was sufficient punishment for senior officers of the Ministry of the Interior who had wantonly ill-treated and killed an innocent man.
274.  However, the Court considers that when an agent of the State, in particular a law-enforcement officer, is convicted of a crime that violates Article 2 of the Convention, the granting of an amnesty or pardon can scarcely serve the purpose of an adequate punishment (see, mutatis mutandis, Okkalı, cited above, § 76, and Abdülsamet Yaman v. Turkey, no. 32446/96, § 55, 2 November 2004). On the contrary, the Court expects States to be all the more stringent when punishing their own law enforcement officers for the commission of such serious life endangering crimes than they are with ordinary offenders, because what is at stake is not only the issue of the individual criminal-law liability of the perpetrators but also the State’s duty to combat the sense of impunity the offenders may consider they enjoy by virtue of their very office and to maintain public confidence in and respect for the law-enforcement system (see, mutatis mutandis, Nikolova and Velichkova, cited above, § 63). In this regard, the Court considers that, as a matter of principle, it would be wholly inappropriate and would send a wrong signal to the public if the perpetrators of the very serious crime in question maintained eligibility for holding public office in the future (see, Türkmen v. Turkey, no. 43124/98, § 53, 19 December 2006, and Abdülsamet Yaman, cited above, § 55).
275.  In the light of the foregoing, the Court concludes that the sentences as initially imposed upon the convicts by the domestic courts and actually implemented by the relevant domestic authorities did not constitute adequate punishment for the crime committed. That unreasonable leniency deprived the criminal prosecution of the four officers of any remedial effect under Article 2 of the Convention (see Nikolova and Velichkova, cited above, §§ 58-64 and 75).
(ε)  Concluding remarks
276.  Summarising its findings above, the Court reiterates that the investigation into the death of Sandro Girgvliani manifestly lacked the requisite independence, impartiality, objectivity and thoroughness. On the contrary, the relevant circumstances of the case allow the Court to draw the conclusion that the domestic authorities were lacking in candour in the conduct of the investigation. Even if the failings of some of those authorities would not alone have been sufficient for a finding of the inadequacy of the investigation, their coexistence, cumulative effect is more than enough in this regard. Indeed, the Court is struck by how the different branches of State power – the Ministry of the Interior, as regards the initial shortcomings of the investigation, the Public Prosecutor’s Office, as regards the remaining omissions of the investigation, the Prisons Department, as regards the unlawful placement of the convicts in the same cell, the domestic courts, as regards the deficient trial and the convicts’ early release, the President of Georgia, as regards the unreasonable leniency towards the convicts, and so on – all acted in concert in preventing justice from being done in this gruesome homicide case.
277.  However, the Court reiterates, in line with its findings above (see paragraph 274), that when a suspicious death has been inflicted at the hands of a State agent, particularly stringent scrutiny must be applied by the relevant domestic authorities to the ensuing investigation. Otherwise, the State risks instilling a sense of impunity in its agents, by appearing to tolerate their life-threatening acts, which could open the way to more wanton crimes such as that committed in the present case.
278.  There has therefore been a violation of Article 2 of the Convention under its procedural limb.
2.  As to whether the death is imputable to the respondent State
(a)  The parties’ arguments
279.  The Government submitted that there had been no violation of Article 2 of the Convention given that, firstly, the results of the meticulous investigation of the case conducted by the relevant domestic authorities had established that the life of the applicants’ son had not been taken “intentionally”, within the meaning of paragraph 1 of that provision. The absence of intent was confirmed by the fact that when, at Okrokana cemetery, the applicants’ son had escaped his attackers, one of them had fired a gun in the air and not in his direction.
280.  Secondly, the Government argued that the perpetrators had not been acting in an official capacity when the assault had taken place, but rather as ordinary individuals. They had committed wilful bodily harm out of revenge, on purely personal grounds, not within the framework of a police operation; they had not been acting on any order from their superiors. On the contrary, the crime had occurred in the context of a private visit to a friend’s birthday party. Consequently, the Government argued, the situation in question was distinguishable from those, for example, in the cases of Leonidis v. Greece (no. 43326/05, § 58-66, 8 January 2009) and Karagiannopoulos v. Greece (no. 27850/03, §§ 56-64, 21 June 2007).
281.  The Government further submitted that, even if G.A.-ia had acknowledged presenting himself to the applicants’ son and L.B.-dze as a law-enforcement agent of the Ministry of the Interior, L.B.-dze had noted in his interrogation on 28 January 2008 that the perpetrators had been wearing dark-coloured civilian clothes. Consequently, it was obvious that the victims could not have identified the perpetrators as police officers. Furthermore, the men had not used their official firearms or any car belonging to the Ministry of the Interior. Instead, without the authorisation of the Ministry, G.A.-ia had used a seized car that belonged to a private person, for which abuse of authority he had subsequently been duly punished.
282.  In reply, the applicants maintained that the State should bear responsibility for the death of their son, given that the perpetrators, senior officers of the Ministry of the Interior, had presented themselves to the victims as police officers and that one of them had even tried to take down the victims’ identity. Furthermore, it was an established fact that the perpetrators had been driving official Ministry cars and had used their firearms as well as their professional relations to commit the crime. For example, G.A.-ia had used his hierarchical superiority to mobilise his colleagues to take the action they took. The applicants argued that the death had thus been brought about by the human and material resources of the State and that, in such circumstances, the respondent State could not be absolved from liability under the substantive aspect of Article 2 of the Convention.
283.  The applicants further submitted that Article 2 of the Convention should not be understood as outlawing only deliberate homicide; there did not exist a right or authorisation to take somebody’s life under any circumstances. The death in question should engage the responsibility of the State irrespective of the classification of the impugned acts by the domestic courts (see, for example, Leonidis, cited above, §§ 58 and 59). The applicants also stated that, despite the internal investigation’s refusal to elucidate O.M.-ov’s role in Sandro Girgvliani’s death, the Government’s failure to submit to the Court the relevant criminal case materials in their entirety further corroborated the assumption that the homicide had been committed on orders given by the offenders’ superiors from the Ministry of the Interior who had been present in the Café Chardin on the night in question.
(b)  The Court’s assessment
i.  General principles
284.   The Court reiterates that, in view of the fundamental nature of the right to life, the circumstances in which deprivation of life may be justified must be strictly construed. Article 2 does not grant a carte blanche. Unregulated and arbitrary action by State agents is incompatible with effective respect for human rights. This means, amongst other things, that the State must ensure, by putting in place a system of adequate and effective safeguards against arbitrariness and abuse of force, that its agents duly understand the limits of their power and that, in their actions, they are guided not only by the letter of the relevant professional regulations but also pay due regard to the pre-eminence of respect for human life as a fundamental value (see, mutatis mutandis, Abdullah Yilmaz v. Turkey, no. 21899/02, § 56, 17 June 2008; Leonidis, cited above, 54-57).
285.  In assessing evidence, the Court has generally applied the standard of proof “beyond reasonable doubt” (see Ireland v. the United Kingdom, 18 January 1978, § 161, Series A no. 25). However, such proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, as in the case of persons within their control in custody, strong presumptions of fact will arise in respect of injuries and death occurring during such detention. Indeed, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation (see Ertak v. Turkey, no. 20764/92, § 32, ECHR 2000-V).
286.  The Court is sensitive to the subsidiary nature of its role and recognises that it must refrain from taking on the role of a first-instance tribunal of fact unless this is rendered unavoidable by the circumstances of a particular case. Nonetheless, where allegations are made under Articles 2 and 3 of the Convention the Court must apply a particularly thorough scrutiny even if certain domestic proceedings and investigations have already taken place. The Court is not bound by the findings of domestic courts, and cogent elements may require it to depart from and set aside these findings (see Aktaş v. Turkey, no. 24351/94, § 271, ECHR 2003 V (extracts), and Leonidis, cited above, § 59).
ii.  Application of these principles in the present case
287.  In reply to the Government’s argument about the “meticulousness” of the domestic investigation into the death of the applicants’ son, the Court refers to its comprehensive findings concerning the various unexplained discrepancies and serious omissions made by the relevant domestic authorities during that investigation (see paragraphs 245- 276 above).
288.  However, the Court considers that, in the particular circumstances of the present case, the respondent State’s failure to account sufficiently for the suspicious death should be limited only to its procedural obligations under Article 2 of the Convention.
289.  Notably, the Court, sharing the Government’s arguments, attaches particular importance to the fact that, even if Sandro Girgvliani met his death at the hands of the State agents, the perpetrators were not acting in the exercise of their official duties. On the contrary, according to the circumstances of the case as established by the domestic courts, the crime was committed in the context of the perpetrators’ private celebration of their friend’s birthday. They were not engaged in any planned police operation or in a spontaneous chase (see, by contrast, Leonidis, cited above, § 58). As to the applicants’ claim that their son was killed on orders given by the offenders’ superiors from the Ministry of the Interior who were present in the Café Chardin (see paragraph 283 above), the Court, having due regard to the material in its possession, considers that there is an insufficient evidentiary basis on which to make, applying the relevant standard of proof of “beyond reasonable doubt”, such a far-reaching conclusion of fact.
290.  Admittedly, the States are expected to set high professional standards within their law-enforcement systems and ensure that the persons serving in these systems meet the requisite criteria (see, mutatis mutandis, Abdullah Yilmaz, cited above, §§ 56 and 57). However, having regard to the particular circumstances of the present case, the Court is not convinced that the private acts of G.A.-ia, A.A.-uri, A.Gh.-ava and M.B.-dze should be held imputable to the Georgian State as a whole just because these individuals happened to be its agents (see, mutatis mutandis, Çelik v. Turkey (no. 2), no. 39326/02, § 33, 27 May 2010). Indeed, the impugned acts were so flagrantly abusive and so far removed from the perpetrators’ official status, that their serious criminal behaviour cannot engage the State’s substantive international responsibility.
291.  There has thus been no violation of the substantive limb of Article 2 of the Convention.
II.  OBSERVANCE OF ARTICLE 38 OF THE CONVENTION
292.  The relevant provisions of Article 38 § 1 of the Convention, as they stood at the material time, read as follows:
“If the Court declares the application admissible, it shall
(a)  pursue the examination of the case, together with the representatives of the parties, and if need be, undertake an investigation, for the effective conduct of which the States concerned shall furnish all necessary facilities;
293.  The applicants complained that the Government had submitted only part of the evidence necessary for the examination of the application, and even that had been done with a significant delay. In particular, the applicants denounced the fact that the Government had not submitted all of the images recorded by the surveillance camera at the home of the businessman on the Tbilisi-Kojori road between 2.00 and 3.00 a.m. on 28 January 2006 (see paragraph 48 above).
294.  In their written comments of 26 April 2010 (see paragraph 12 above), the Government explained that the reason for the delayed submission of the fourteen exhibits had been the necessity to make additional copies of the relevant CDs. As to the submission of the criminal case materials related to the proceedings against L.B.-dze under Article 371 1 of the Criminal Code (see paragraph 4 above), this had been delayed by the fact that, at the time when the Court had requested those materials, the relevant proceedings were still pending before the Chief Public Prosecutor’s Office. In any event, given that the Court had eventually obtained all of the requested documents and material evidence, the Government argued that the situation was distinguishable from the case of Medova v. Russia (cited above, §§ 126-133) and that, consequently, no violation of Article 38 of the Convention had occurred.
295. Noting that Article 29 § 3 of the Convention, as that provision stood at the material time, was applied at the time of communication of the present application (see paragraph 4 above), the Court considers that, in the consequent absence of a separate decision on admissibility, it retained jurisdiction under Article 38 of the Convention, as it read at the material time, to examine the relevant events which took place during the subsequent proceedings.
296. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted under Article 34 of the Convention that States should furnish all necessary facilities to make possible a proper and effective examination of applications (see Tanrıkulu v. Turkey [GC], no. 23763/94, § 70, ECHR 1999-IV). This obligation requires the Contracting States to furnish all necessary facilities to the Court, whether it is conducting a fact-finding investigation or performing its general duties as regards the examination of applications. Failure on a Government’s part to submit such information which is in their hands, without a satisfactory explanation, may not only give rise to the drawing of inferences as to the well-foundedness of the applicant’s allegations, but may also reflect negatively on the level of compliance by a respondent State with its obligations under Article 38 of the Convention (see Medova, cited above, § 76, and Timurtaş v. Turkey, no. 23531/94, § 66, ECHR 2000-VI).
297.  Returning to the relevant circumstances of the present case, the Court notes that by the specified 22 December 2008 deadline the Government had submitted only the documentary materials of the homicide case, in eight volumes. However, the fourteen exhibits, which consisted of 23 CDs and a sketch (see paragraph 159 above), as well as the materials concerning the proceedings against L.B.-dze under Article 371-1 of the Criminal Code, were missing. That omission was contrary to the Court’s clear indication that the materials in both cases should be submitted in their entirety, including all evidence on paper and on data storage devices (see paragraph 4 above).
298.  The Court further notes that the Government submitted the major part of those missing items of evidence as late as 15 December 2009, that is almost a year later, and even then only as a result of the Court’s insistent demands. The Court cannot take seriously the Government’s explanation, as regards the fourteen exhibits, that so much time was needed to copy some 23 CD’s. As to the criminal proceedings against L.B.-dze, the Court first notes that they were conducted by the Tbilisi City Prosecutor’s Office and not by the Chief Public Prosecutor’s Office, as claimed by the Government. It is noteworthy that the applicants’ requests for those criminal proceedings to be taken out of the hands of the City Prosecutor and given to the Chief Prosecutor were rejected as unfounded on 4 August 2006 (see paragraph 202 above). Subsequently, as the Government asserted in their observations of 22 December 2008, those proceedings were discontinued. Consequently, even assuming that at the time of the Court’s first request for the relevant criminal file, made on 24 June 2008, those proceedings were indeed pending at the domestic level, the Court is still unable to understand what prevented the Government from submitting the file subsequently, after the alleged termination of the proceedings, together with their observations of 22 December 2008.
299.  Furthermore, after having viewed all the recordings forming the fourteen exhibits in question, the Court notes that the images recorded by the surveillance camera on the Tbilisi-Kojori road were not presented in their entirety – far from it. According to the minutes concerning the seizure of the camera recordings by the investigative authority, they covered the period between 2.00 and 3.00 a.m. on 28 January 2006 (see paragraph 48 above). However, despite the Court’s repeated requests for the full recordings, the Government submitted images which accounted for events on the Tbilisi-Kojori road (the rare passage of cars) during the following ten disconnected and extremely short periods (the time is given in a.m.): (i) 2:13:30 – 2:13:41, (ii) 2:17:16 – 2:17:30, (iii) 2:17:37 – 2:17:41, (iv) 2:24:36 – 2:24:37, (v) 2:41:03 – 2:41:08, (vi) 2:42:37 – 2:42:42, (vii) 2:45:42 – 2:45:53, (viii) 2:46:48 – 2:46:51, (ix) 2:46:58 – 2:47:07 and (x) 2:47:10 – 2:47:20. The total length of the recordings submitted is thus about 68 seconds, instead of the requisite 1 hour.
300.  The Court further notes that the Government also failed to submit the video recordings of the interviews with the staff of the Café Chardin and with A.K.-dze (see paragraphs 83 and 112 above).
301.  In the light of the foregoing, the Court finds that the Government’s explanations for their delay and the partial failure to submit the requested items of evidence are not convincing. Of particular concern is the failure to submit all the images showing the passage of cars on the Tbilisi-Kojori road during the whole period between 2.00 and 3.00 a.m. In the eyes of the Court the submission of that particular item of evidence in its entirety was relevant for the examination of the complaint under Article 2 of the Convention, as it could have corroborated or, on the contrary, refuted the applicants’ allegation that O.M.-ov had left the Café Chardin to join his colleagues from the Ministry of the Interior in severely ill-treating and killing their son. The Government failed to justify that omission in their written observations and remained silent even after the applicants had explicitly reproached them on that account during the public hearing on 27 April 2010.
302.  Referring to the importance of a respondent Government’s cooperation in Convention proceedings and being mindful of the difficulties associated with the establishment of facts in complex cases of such a nature, the Court finds that, in the present case, the Georgian Government fell short of their obligations under Article 38 of the Convention.
III.  OTHER ALLEGED VIOLATIONS OF THE CONVENTION
A.  The complaints under Article 6 § 1 of the Convention
303.  The applicants complained that the criminal proceedings in the murder case had been arbitrary, as demonstrated by the inadequate investigative measures, the unjustified leniency in the criminal classification of the four perpetrators’ acts and the authorities’ reluctance to engage the liability of other senior officials of the Ministry of the Interior implicated in the incident. Those shortcomings in the criminal proceedings, the applicants alleged, impaired the effective exercise of their right to claim civil damages.
304.  The applicants also complained, without providing any relevant explanation, that the principle of the equality of arms had been breached to their detriment in the course of the civil proceedings (see paragraphs 206 209 above).
305.  The Government disagreed, arguing that the complaint about the criminal proceedings was incompatible ratione materiae with Article 6 § 1 of the Convention, since the applicants, as a civil party, had pursued purely punitive purposes (compare with Perez v. France [GC], no. 47287/99, §§ 69-70, ECHR 2004 I). They also reproached the applicants for having instituted the civil proceedings as late as two years after the termination of the criminal ones. In any event, the Government argued, referring to the above-mentioned case of Perez, the outcome of the criminal proceedings was not, according to the relevant Georgian law and as distinct from French law, decisive for the determination of the amount of the civil damages. The Government also noted that the first instance court had awarded the applicants GEL 40,000 (approximately EUR 16,832) in respect of non pecuniary damage, which was allegedly the highest amount ever awarded in that respect by the Georgian courts.
306. Noting that the applicants’ complaint about the arbitrariness of the criminal proceedings is based on the same facts as those examined under Article 2 of the Convention, the Court considers that the issue of its admissibility must be joined to the merits. However, having regard to its comprehensive factual and legal findings above and without prejudice to the question of the applicability of Article 6 § 1 with regard to the civil aspect of the criminal proceedings, the Court finds that all the grievances of the applicants have been fully absorbed by the examination of the complaints under Article 2 of the Convention and there is no call to examine these issues again under Article 6 § 1 of the Convention.
307.  As to the complaint about the fairness of the civil proceedings, the Court notes that it was not properly elaborated, as the applicants failed to adduce any specific evidence in support of it (see paragraph 304 above). Consequently, this limb of the applicants’ complaints under Article 6 § 1 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
B.  The complaints under Articles 3 and 13 of the Convention
308.  Relying on Articles 3 and 13 of the Convention, the latter provision being invoked in conjunction with Article 2, the applicants also complained that their son had been tortured prior to being killed and that the investigation into his death had not been an effective remedy. In respect to the latter complaint, the applicants denounced the domestic authorities’ failure to react on their criminal complaints of 21 December 2006 and 16 February 2007, in which they had requested the initiation of criminal proceedings against the investigators in charge of the case for abuse of authority and destruction of evidence.
309.  The Government disagreed.
310.  The Court notes that the complaints under Article 3 and 13 of the Convention are closely linked to those examined under Article 2 of the Convention and must therefore likewise be declared admissible.
311.  However, having regard to the grounds on which it has found a violation of Article 2 of the Convention, the Court considers that no separate issues arise under Articles 3 and 13 of the Convention (see Nikolova and Velichkova, cited above, §§ 77 and 78, and Angelova and Iliev v. Bulgaria, cited above, § 106).
IV.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
312.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
313.  The applicants claimed EUR 300,000 for non-pecuniary damage.
314.  The Government submitted that there was no call to make an award in respect of that claim, since there had been no violation of any provisions of the Convention in the present case. They also considered the amount claimed excessive.
315.  Having regard to its conclusions under Article 2 of the Convention, the Court has no doubt that the applicants suffered intense distress and frustration on account of the respondent State’s failure to conduct a meaningful investigation capable of uncovering the whole truth about the death of their son and leading to the adequate punishment of all those responsible. Making its assessment on an equitable basis, the Court awards the second applicant, Mr Guram Girgvliani, EUR 50,000 under this head (see paragraph 1 above).
B.  Costs and expenses
316.  Each of the applicants’ two representatives claimed EUR 5,000 for the legal assistance they had provided to the applicants. It was not clear from their submissions whether the amounts claimed were for the work done at the domestic level or in the proceedings before the Court. The amounts were not itemised, nor were any invoices, contracts or other documents attached in support. The representatives also submitted bills disclosing that the applicant had incurred postal, telephone, fax and translation expenses in the overall amount of GEL 924 (approximately EUR 388 ).
317.  The Government replied that the amounts claimed by the representatives for the legal assistance were totally unsubstantiated and excessive.
318.  In the light of its well-established case-law on the matter (see, for instance, Ghavtadze v. Georgia, no. 23204/07, §§ 118 and 120, 3 March 2009, and Saghinadze and Others v. Georgia, no. 18768/05, § 164, 27 May 2010), and having due regard to the insufficient documentary evidence in its possession, the Court considers that Mr Guram Girgvliani should only be awarded EUR 388 for the various administrative expenses.
C.  Default interest
319.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

Georgian Translation by Interpresnews