Applicant’s repeated ill-treatment with inhuman torture! Violation of procedural and substantive limb of Article 3 of the Convention
JUDGMENT
OCHIGAVA v. GEORGIA 16.02.2023 (app. no. 14142/15)
SUMMARY
Systematic ill-treatment of the applicant in Tbilisi Prison no. 8 (“Gldani Prison”). Systemic abuse of inmates. Ineffective investigation by the domestic authorities.
The applicant was arrested on suspicion of having committed a robbery, an offence of which he was subsequently convicted. He complained that between June 2011 and August 2012 he was subjected to repeated acts of ill-treatment in Gldani Prison by eleven identifiable prison officers, some of whom held senior positions.
He sued the domestic authorities for the violence he faced during his detention in prison, but the national courts did not recognize the violation of his rights.
The Court concluded that the inhuman and degrading treatment of the applicant and the behavior of the prison officers, who were convicted later, constituted a violence of the procedural and substantive limb of article 3 of the Convention. Despite conviction of certain officers, outcome of procedurally flawed criminal proceedings not constituting sufficient redress.
The Court held that Georgia was to pay the applicant EUR 20,000 in respect of non‑pecuniary damage.
PROVISION
Article 3
PRINCIPAL FACTS
The applicant, Mr Akaki Ochigava, is a Georgian national who was born in 1966 and lives in Tbilisi.
On 2 June 2011 the applicant was arrested on suspicion of having committed a robbery, an offence of which he was subsequently convicted.
On 3 June 2011, as part of his admission procedure to Gldani Prison, a doctor examined the applicant and noted in his medical file that he had no injuries at the time of his admission and was in a good state of health, not suffering from any medical condition.
In September 2012 footage of repeated acts of ill-treatment of inmates at different prison establishments, including and in particular Gldani Prison, was disseminated in the Georgian media (“the prison scandal”).
On 5 November 2012 the Office of the Public Defender of Georgia (“the PDO”), having met the applicant in prison, filed a criminal complaint with the Chief Public Prosecutor’s Office on his behalf and requested that an investigation be launched into the acts of ill-treatment to which the applicant had allegedly been subjected in Gldani Prison. The PDO’s referral letter was accompanied by a written statement from the applicant dated 29 October 2012 which described the alleged acts and listed the names of eleven alleged perpetrators (see paragraphs 10-17 below). On 5 December 2012 the applicant sent an identically worded statement of complaint to the President of Georgia, and the letter was subsequently passed on to the Chief Public Prosecutor of Georgia.
On 17 January 2014 the applicant was released from prison.
A. ALLEGATIONS OF ILL-TREATMENT IN PRISON
According to his statements of complaint dated 29 October and 5 December 2012, between June 2011 and August 2012 the applicant was subjected to repeated acts of ill-treatment in Gldani Prison by eleven identifiable prison officers, some of whom held senior positions. The applicant described the following situations in detail.
The prison staff would arbitrarily impose various excessive restrictions and seek every possible pretext to beat the prisoners in order to assert their power and instil fear in the prisoners. For example, the prisoners were not allowed to speak at a normal volume amongst themselves and could only whisper; during the day they were forbidden to lie down on their beds and could only sit on them. In addition to the physical abuse, the prison staff would also subject the prisoners to constant verbal insults and arbitrarily prevent them from having access to the prison shop, where they would normally buy certain basic items. They would also systematically deny them the right to have family visits.
The beating of newly arrived prisoners was routine practice in Gldani Prison – the so-called “quarantine procedure” – and the applicant was no exception. Thus, on the day of his arrival at Gldani Prison he was beaten so severely by several prison officers and a high-ranking prison officer, O.P., that in addition to sustaining multiple bruises, several of his front teeth were broken.
Another form of ill-treatment alleged by the applicant in his complaints of 29 October and 5 December 2012 was his regular and arbitrary placement in either a place of solitary confinement (karzer) or a small detention cell (fuks) for several days in retaliation for voicing even minor protests against the prison staff’s abuse. The karzer was a cell measuring ten square metres and containing no furniture apart from a folding metal bed. During the day the applicant had to sit on the cement floor, as the bed was folded and attached to the wall with a lock. The prison officers would only unlock the bed and let the applicant use it between 10 p.m. and 8 a.m. As for the fuks, this was an even smaller cell measuring four square metres and containing no furniture. The applicant had to sit and sleep on the tiled floor. Sometimes, he would be placed in the fuks with several other inmates and they all had to stand all the time, as there was insufficient space for them to sit on the floor. At other times, the prison officers would deny him food or the use of a toilet, the toilet being located outside the cell. There were also a few occasions during the applicant’s confinement in the fuks when the prison officers put a special helmet on his head which placed a ball in his mouth and thus prevented him from speaking, all the while continuing to verbally insult him for several hours at a stretch.
Apart from being subjected to “routine” violence and verbal insults like any other prisoner in Gldani Prison, the applicant was apparently singled out and specifically targeted because he would not abide by the arbitrary restrictions imposed by the prison staff and would always try to voice his objections to their abusive conduct. Owing to the continuous nature of his ill‑treatment in Gldani Prison (for example, being beaten at least several times a week), the applicant was unable to specify the exact dates of every such occasion in his complaints of 29 October and 5 December 2012, except for the two major ill-treatment incidents in November 2011 (“the November 2011 incidents”).
As regards the two November 2011 incidents, after attempting to send a complaint of the abusive practices at the prison to the President of Georgia in October 2011, the applicant received a particularly severe beating from the prison officers at the very beginning of November 2011 and consequently his spine was so badly injured that he lost the ability to walk. Given the severity of the incident, the applicant was placed in the medical wing of the prison and the head of the prison was obliged to report the applicant’s injuries to his superiors. As a result, on 5 November 2011 an internal inquiry was opened by the Investigation Department of the Ministry of Prisons (“the Department”). However, an investigator from the Department who came to Gldani Prison on 15 November 2011 to obtain a statement from the applicant allegedly advised him to say that he had fallen out of bed. As the applicant initially refused to sign such a statement, the investigator called prison officers to the interview room. The officers took the applicant to a different room and broke most of his fingers by hitting both of his hands with a baseball bat. The applicant then gave in to the investigator’s demands and signed the statement, dated 15 November 2011, confirming that his spinal trauma was due to his falling out of bed and that he had had no complaints against the prison staff. After that interview, the applicant was returned directly to his cell without being provided with any medical treatment for his broken fingers, and it was only his cellmates who helped him to bandage his hands.
On 5 December 2011 the Department issued a decision refusing to institute a criminal investigation, in the light of the applicant’s statement of 15 November 2011.
The applicant also described two episodes of ill-treatment which had occurred in the shower room of Gldani Prison, but without providing information as to when exactly those incidents had happened. On one such occasion the prison officers stripped him naked in the shower room, splashed him with cold water and beat him severely with truncheons. After yet another incident of ill-treatment in the shower room, which ended with the applicant fainting as a result of a severe beating, the applicant regained consciousness and found himself being handcuffed to a pipe in the prison morgue among dead bodies.
B. THE APPLICANT’S MEDICAL FILE
According to the medical file available to the Court, in January 2012 the prison authority assigned the applicant a wheelchair.
On 1 November 2012 the applicant was transferred from Gldani Prison to the prison hospital. After an initial medical examination at the hospital he was then transferred to civilian hospitals for additional medical check-ups. As a result of all those examinations, the applicant was diagnosed with severe trauma to the spine which prevented him from walking, and he was prescribed an immediate operation. Shortly afterwards, an operation on his spine was performed in a civilian hospital, as a result of which his condition improved and he was able to walk with the help of crutches.
Additional medical examinations conducted in November 2012 further confirmed that the applicant had been infected with viral hepatitis C (HCV) and had cirrhosis of the liver, and that most of his fingers were deformed as a result of multiple fractures which had been left untreated.
Between 25 March and 25 September 2013 the applicant was in the prison hospital once again, where he received treatment for his HCV, cirrhosis of the liver and an emotionally unstable personality disorder.
On 28 March 2014 the applicant was classed as having a permanent disability.
After his release from prison, the applicant continued to receive medical treatment for his various conditions. In 2014 he underwent another operation on his spine.
THE DECISION OF THE COURT…
I. ADMISSIBILITY
Although the Government did not raise any objection in this regard either, the Court observes, of its own motion, that the particular circumstances of the present case – notably, the fact that several prison officers were eventually convicted of the systematic ill-treatment of inmates at Gldani Prison – may reasonably be deemed to call into question the validity of the applicant’s victim status for the purposes of Article 34 of the Convention. In this connection, it should be restated that the question of whether or not an applicant has lost victim status in Convention proceedings is a matter of compatibility ratione personae, which forms part of the Court’s own jurisdiction and is not contingent upon the existence of an objection from the Government on the matter (compare, for example, Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 70, ECHR 2016 (extracts)).
The Court reiterated that a decision or measure favourable to an applicant is not in principle sufficient to deprive that person of his or her status as a “victim”, within the meaning of Article 34 of the Convention, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, for instance, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V, with further references). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, with particular regard to the nature of the right alleged to have been breached (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).
In the present case, despite the fact that the seven police officers were convicted in relation to the applicant’s ill-treatment, the Court attached particular significance to the fact that no compensation was awarded by the domestic civil courts. In this connection, the Court further noted that the Government did not claim that it would be open to the applicant, following the conviction of the prison officers, to submit a fresh civil action for damages against the State, or, if such a possibility existed, that it would have had any incidence on the applicant’s standing under Article 34 of the Convention. In such circumstances, the Court concluded that the applicant has retained his victim status within the meaning of the above-mentioned provision.
As regards the Government’s objection regarding the six-month rule, the Court had to ascertain whether the applicant, at the time of lodging his application with the Court, had been aware, or should have been aware, for more than six months, of the lack of any effective criminal investigation. His inactivity before lodging a criminal complaint at the domestic level is not as such relevant for the assessment of the fulfilment of the six-month requirement. However, if the Court were to conclude that before the applicant petitioned the competent domestic authorities he was already aware, or ought to have been aware, of the lack of any effective criminal investigation, it is obvious that his subsequent application with the Court has a fortiori been lodged out of time, unless new evidence or information arose in the meantime which would have given rise to a fresh obligation on the authorities to take further investigative measures (see Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 272, ECHR 2014 (extracts)).
In this connection, the Court was not convinced by the Government’s suggestion that the applicant should have realised that there was no prospect for an effective criminal investigation after the prosecutorial decision of 5 December 2011 refusing to open a criminal case in relation to the early November 2011 incident, because the subject matter of the present case is not only that isolated incident, but the claim that the applicant was subjected to systematic acts of ill-treatment during his time in Gldani Prison between July 2011 and August 2012. As regards the fact that the applicant first opened up to the competent authorities about the systematic abuse in Gldani Prison in October and December 2012, that is, only after the changes in government had occurred, the Court reiterated that the psychological effects of ill-treatment inflicted by State agents may undermine a victim’s capacity to take the necessary steps to bring proceedings against a perpetrator without delay. Such a barrier may become particularly difficult to overcome when, as in the applicant’s case, victims continuously remain under the control of those implicated in the ill-treatment following the incident (see Mocanu and Others, cited above, § 274, ECHR 2014 (extracts), and Mafalani v. Croatia, no. 32325/13, § 82, 9 July 2015). Moreover, there were findings by domestic and international observers about the fact that prison officers systematically resorted to violent or otherwise unlawful measures to prevent the abuse being reported (see paragraphs 42 and 43 above, and compare Gablishvili and Others v. Georgia, no. 7088/11, §§ 36 and 37, 21 February 2019). With the above considerations in mind, the Court concluded that, in the particular circumstances of the present case, the applicant, who himself acknowledged before the domestic authorities that he had been too intimidated while he had been in the hands of the officers at Gldani Prison, cannot be reproached for not voicing his grievances before the domestic authorities earlier than he did. Furthermore, his vulnerability in prison amounted to a plausible and acceptable explanation for his inactivity from early June 2011, when he was placed in Gldani Prison, until October 2012, when the changes in the ruling forces occurred (ibid., §§ 44 and 45, see also Mocanu and Others, cited above, § 275).
As regards the applicant’s conduct after October 2012, the Court was satisfied that throughout 2013 and 2014, and until the lodging of the present application in March 2015, the applicant made repeated attempts at regular intervals to enquire about the investigation’s progress, in the hope of an effective outcome (see paragraphs 25 and 29 above, and compare Gablishvili and Others, cited above, § 50). In the light of the foregoing, the Court did not see any reason to conclude that, at the time of lodging his application with the Court on 11 March 2015, the applicant had been aware, or should have been aware, for more than six months, of the lack of prospects for an effective criminal investigation. The Government’s objection must therefore be dismissed.
The Court held that the application should be declared admissible.
II. SUBSTANTIVE LIMB
The applicant argued that sufficiently strong, clear and concordant evidence had been submitted to the Court to confirm that he had been subjected to repeated acts of ill-treatment at the hands of the officers at Gldani Prison between June 2011 and August 2012. He further argued that the investigation conducted by the authorities into his allegations of ill-treatment had not been thorough, effective or independent.
The Government replied that the applicant had failed to prove the existence of acts of ill-treatment beyond reasonable doubt, and that the domestic investigating authorities had done everything reasonably possible to verify the well-foundedness of his allegations.
The relevant general principles were summarised by the Court in the case of Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88 and 114‑23, ECHR 2015).
The Court considered it appropriate to start with the applicant’s complaint under the procedural limb of Article 3 of the Convention in examining the merits of the application.
i) Effectiveness of the investigation
The Court observed that whilst the applicant formally voiced his complaint of ill-treatment as early as October 2012, it took the competent domestic authorities more than five years to identify the perpetrators and secure convictions in relation to some of them. There were periods of unexplained inactivity on the part of the investigating authorities between 2012 and 2016, when they failed to conduct the most basic investigative measures repeatedly requested by the applicant, and, moreover, for a significant period of time during the pre-trial stage the latter was unjustifiably denied the requisite procedural standing of an aggrieved party, standing which would have enabled him to closely follow the investigation, assess its reliability and contribute to its proper conduct (see paragraphs 24-34, and compare Mindadze and Nemsitsveridze v. Georgia, no. 21571/05, § 108, 1 June 2017). In this regard, the Court reiterated that “justice delayed is often justice denied”, as the existence of unreasonable periods of inactivity and a lack of diligence on the authorities’ part in conducting the proceedings may render the investigation ineffective (compare Lopatin and Medvedskiy v. Ukraine, nos. 2278/03 and 6222/03, § 75, 20 May 2010, and Vazagashvili and Shanava v. Georgia, no. 50375/07, § 89, 18 July 2019, with further references therein).
Furthermore, whilst the domestic authorities secured convictions and imposed custodial sentences in relation to some of the prison officers with respect to some of the incidents of ill-treatment, which was indeed a positive development, they clearly did not investigate a number of other serious incidents, namely: the applicant’s alleged beating in early November 2011 which resulted in his spinal injury; his beating in the shower room which resulted in his fainting and then regaining consciousness in the prison morgue; and his alleged arbitrary placement in degrading conditions in a karzer and a fuks, disciplinary cells. The Court also noted that the applicant consistently and convincingly stated before the domestic authorities that not only the seven convicted prison officers but also a number of other senior prison officers had participated in his ill-treatment in Gldani Prison, but the role of those additional perpetrators was not elucidated. It thus considered that the authorities turned a blind eye to the applicant’s credible allegation of complicity between the convicted people and the other senior prison officers. Such an inexplicably selective approach on behalf of the investigative authorities sits ill with the respondent State’s procedural obligations under Article 3 of the Convention 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, and this obviously includes conducting an adequate probe into credible allegations of criminal complicity (compare, in the context of similar procedural obligations under Article 2, Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 254 and 266, 26 April 2011). In the light of the foregoing, the Court considered that, despite the conviction of the seven prison officers it has brought along (compare Vazagashvili and Shanava, cited above, § 91), the outcome of the procedurally flawed criminal proceedings could not be considered to have constituted sufficient redress for the applicant.
Given that effective deterrence against serious acts such as intentional attacks on the physical integrity of a person requires efficient criminal-law response (compare, for instance, Jeronovičs v. Latvia [GC], no. 44898/10, § 76, 5 July 2016; Mihhailov v. Estonia, no. 64418/10, § 81, 30 August 2016; and Pulfer v. Albania, no. 31959/13, § 71, 20 November 2018), and the findings in the preceding paragraphs pointing to significant deficiencies in the respondent State’s response in the present case, the Court found that there has been a violation of the procedural limb of Article 3 of the Convention.
ii) Ill-treatment
The Court observed that the domestic criminal courts, after acquainting themselves with the evidence and examining the facts of the case, found that seven prison officers who had been acting in an official capacity were guilty of the systematic ill-treatment of inmates at Gldani Prison, including the applicant. They identified five separate instances when the applicant personally had been ill-treated. The courts also found that the aim of the officers’ systematic abuse of the prisoners had been to instil fear and thus obtain their complete submission and therefore control. In the eyes of the Court, those findings of the domestic courts, which were not even disputed by the Government, make it clear that the applicant’s ill-treatment, the certain acts of which cannot but be qualified as torture, was directly attributable to the respondent State (compare, for instance, Vazagashvili and Shanava, cited above, § 97) and committed by representatives of the prison authority as part of both systematic and systemic abuse of inmates of Gldani Prison at the material time.
Just satisfaction (Article 41)
The Court held that Georgia was to pay the applicant EUR 20,000 in respect of non‑pecuniary damage.
