Wild beating of suspect during police interrogation for attempted rape of a minor. 8 years of ineffective investigation by the authorities regarding the conditions of the injuries constitutes inhumane and degrading treatment.

JUDGMENT 

Gogaladze v. Georgia 18.07.2019 (no.8971/10)

see here

SUMMARY 

Ill -treatment of a suspect for the offense of raping a minor by  police officers.

The applicant was arrested and interrogated for the offense of the rape of a minor.

Two months after the incident and while he was in pre –trial detention, he complained of ill-treatment by police officers during the interrogation, and in particular said he was hit on the head and nose. The investigation was incomplete because, although it was particularly difficult as it began two months after the accident when the wounds had healed, no attempt was made by the authorities to investigate the possible causes of the injury.

The Court held that there has been a violation of Article 3 (inhuman and degrading treatment) because the investigation carried out by the authorities revealed significant omissions in collecting and assessing the evidence of the beating incident in question despite the procedural aspects of Article 3, and as a conclusion the authorities did not provide a reasonable explanation of the cause of the applicant’s injuries and held that, having established that there has been a violation of Article 3, there is no need to examine Article 13.

PROVISIONS

Article 3

Article 13

PRINCIPAL FACTS 

The applicant, Nodar Gogaladze, is a Georgian national who was born in 1986 and lives in the village
of Rveli (Georgia).

The case concerned the applicant’s complaint of police ill-treatment after his arrest and of the lack
of an effective investigation, which lasted eight years before being closed by the authorities.

Mr Gogaladze was arrested by Borjomi police on 13 February 2008 for the attempted rape of a
minor. He was questioned as a suspect the same day and then as an accused the following day. He
denied coercion but admitted some aspects of sexual contact with the minor.

He was transferred to Tbilisi Prison No. 5 on 15 February 2008 for two months of pre-trial detention.
On arrival he was found to have a bump on his head and red skin on his nose. He initially stated that
he had no complaints about his treatment by the police, but in April 2008, after being transferred to
Tbilisi Prison No. 8, he told a prosecutor that he had been physically and verbally assaulted at the
police station, with five police officers hitting him on the head.

The authorities opened an investigation, carrying out various measures. The police officers alleged
that Mr Gogaladze had been beaten by the uncle of the victim of the alleged rape, but also noted
that they had not noticed the injuries complained of at the time of his arrest.

A forensic medical examination was ordered in October 2008, which was carried out based on his
medical records. A second forensic examination took place in February and March 2009 but the experts who carried it out could not establish a link between the applicant’s injuries and headaches
and nausea he had complained of at the time.

The investigation was closed by a prosecutor in January 2016 on the grounds of the absence of a
crime. The applicant has apparently not used his right to appeal against that decision to a more
senior prosecutor.

Relying in particular on Article 3 (prohibition of inhuman or degrading treatment) of the European
Convention on Human Rights, Mr Gogaladze complained of being ill-treated by the police and of the
lack of an effective investigation.

THE DECISION OF THE COURT 

The Court reiterates that Article 3 of the Convention enshrines one of the most fundamental values of democratic society. It prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the circumstances and the victims behaviour.

The Court observes that there is no dispute between the parties that the applicant sustained injuries such as a bump on his head and skin maceration on the bridge of his nose (“the injuries”). However, they disagree as to the seriousness, possible timing and causes of those injuries, as well as whether the criminal investigation launched into the matter had been effective.

While the applicants position before the Court regarding the manner in which the injuries were inflicted may not be sufficiently consistent with his account given at domestic level , the Court reiterates the values protected by Article 3 of the Convention and the States obligation to provide a plausible explanation of how injuries were inflicted upon an individual who had been taken into police custody in good health. In this connection, the Court observes that the presence of injuries which, according to the applicant, had been inflicted by police officers was confirmed by the medical report of the doctor who had examined the applicant upon the latters placement in Tbilisi prison no. 5 on 15 February 2008, two days after his arrest. Their existence was never as such called into question. The evidence available to the domestic authorities, including the statements of the police officers who had arrested the applicant, demonstrated that the applicant had not had those particular injuries before his arrest. Therefore his allegations – as set out in the complaint lodged with the domestic authorities – that he had been subjected to treatment breaching Article 3 of the Convention by police officers were arguable. The authorities were thus required to conduct an effective investigation.

The Court notes that a criminal investigation was opened into possible abuse of power by police officers three days after the applicants allegations of ill-treatment. Even accepting that the applicant was responsible for some delay in beginning the investigation as he made his complaint approximately a month and a half following the alleged infliction of the injuries, the Court does not lose sight of the fact that once it had been initiated, the investigation was accompanied by significant shortcomings. In particular, the Court cannot overlook the fact that the first forensic examination to evaluate the applicants injuries was ordered only more than six months after the initial allegations . The forensic expert confined his assessment to the medical documentation available to him. While the expert recommended that a panel of experts evaluate the matter with a view to concluding whether the injuries identified in the medical documentation could have been self-inflicted, the second expert examination to that end was commissioned with a further delay of more than four months. The passage of time was one of the reasons why the panel of experts could not answer the questions presented to it 

Furthermore, the Court notes the unusual length of the investigation, for which the Government provided no explanation. In particular, the investigation was opened on 4 April 2008, and closed on 29 January 2016. Therefore, almost eight years elapsed between the applicants complaint and the prosecutors decision to terminate the investigation. As the Court has emphasised on previous occasions, although there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts.

As regards the scope of the investigation, despite the recommendation by the forensic expert, the scope of the second expert examination was limited to the questions presented by the investigator, which did not include the issue of whether the applicants injuries could have been self-inflicted.Nor was the question of whether the injuries could have been inflicted prior to the arrest, with a delayed appearance, tested by experts. Furthermore, while the expert who had implemented a drug test in respect of the applicant at the police station stated that he had taken three photographs of the applicant with the intention of sending them to the Ministry of Interior, the investigating authorities do not appear to have received or sought to obtain those photographs. Even assuming that the evidence available to the investigating authorities disproved the applicants version of the events as to the exact timing and circumstances in which the injuries had been sustained, the Court observes that no attempt at all was made by the investigating authorities to explore other possible causes of the injuries.

These considerations are sufficient for the Court to conclude that the applicants complaint involving law-enforcement officers using force and causing injuries to a person under their control was not the subject of an effective investigation, as required under the procedural aspect of Article 3 of the Convention.

As to whether the Government satisfactorily established that the applicants injuries were caused otherwise than by – entirely, mainly, or partly – the treatment he underwent while in police custody, the Court pays particular regard to the fact that the Government offered only one possible explanation. In particular, their sole hypothesis as to the possible source of the applicants injuries being beatings by civilians prior to his arrest  is not convincing precisely on account of the failure of the investigation to test that hypothesis and establish whether the signs of such beating could have manifested themselves after two days.

In conclusion, the Court cannot consider that the Government have discharged their obligation to provide a plausible explanation of how those injuries were caused

The foregoing considerations are sufficient for the Court to conclude that there has been a violation of Article 3 of the Convention.

Just satisfaction: 6,000 euros (EUR) (non-pecuniary damage)

The applicant also complained that no effective remedies had been available to him in respect of his complaints under Article 3 of the Convention. He relied on Article 13 of the Convention.

The Court notes that this complaint is linked to the ones examined above, and must therefore likewise be declared admissible.

Having regard to the finding of a violation of Article 3 of the Convention, the Court considers that it is not necessary to examine whether there has also been a violation of Article 13 of the Convention in this case(echrcaselaw.com).


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