The award of excessive amounts for a court stamp and fees violated the right to access to court! The court fees should be according to the ability of the party to pay them!
JUDGMENT
Chorbadzhiyski and Krasteva v. Bulgaria 02.04.2020 (app. no. 8938/07 and 41891/07)
SUMMARY
The case concerned the death of the applicants’ relatives during a police operation to quell a riot in a
prison where they were being held.
The Court first of all found various failings in the authorities’ investigation into the circumstances in
which an anti-riot force had put down disturbances in the prison, when the applicants’ relatives had
been killed. For instance, the initial investigatory steps had been taken by the same institution, the
prison department, which had ordered and executed the anti-riot measures.
The Court also found that while the law-enforcement officers might have been justified in deciding
to use lethal force in the face of shots being fired by prisoners during the riot, the level of force used
had not been absolutely necessary. That was shown, among other things, by the lack of proper
planning of the law-enforcement response, the fact that the use of lethal force had been
indiscriminate and excessive, and because the authorities had failed to provide adequate medical
assistance to prisoners afterwards.
COMMENT
An outstanding EGHR decision. Regarding the payment of court fees and court fees in general, the Court sets as a key tool the principle of proportionality, the principle of predictability and stipulates that the amount should be proportional to the ability of the party to pay them, to assess the stage of the procedure in which this obligation is imposed and the existence a flexible legal regime or judicial possibility to enable a party to benefit from a full or partial exemption from their payment or from their reduction. The last Greek legislative change where a court stamp is paid in the recognition lawsuits (which had been abolished earlier) and in fact in the lawsuits that have been brought before the legislative change (ie mandatory payment in pending cases where the lawsuits were from the beginning recognizable or had been converted through offers sufficient grounds for violation of the right of access to a court), creates sufficient grounds for violation of the right of access to court (Article 6 par. 1 of the ECHR).
PROVISION
Article 6§1
PRINCIPAL FACTS
The applicants, Sofio Kukhalashvili, Marina Gordadze and Rusudan Chitashvili, are three Georgian
nationals who were born in in 1977, 1956, and 1938 respectively and live in Georgia.
The first and second applicants are the sister and mother of Z.K. while the third applicant is the
mother of A.B. Both men were prisoners in Tbilisi Prison no. 5 who died during a police anti-riot
operation at the prison in March 2006. They were aged 23 and 29 respectively.
The anti-riot operation took place after disturbances when the authorities removed six alleged highprofile
criminal bosses and their close associates from a prison hospital. The authorities’ aim was to
reduce the criminal bosses’ alleged influence in the prison system but as they were removed by
force disturbances broke out in two nearby prisons, Prison no. 1 and no. 5.
The authorities subsequently used an anti-riot squad to bring the disturbances in Prison no. 5, where
the rioting was particularly bad, under control. The incident led to the death of seven inmates and
the injury of 22 inmates and two prison officers.
The applicants subsequently obtained documents from prosecutors on the death of their relatives,
showing that both had suffered gunshot wounds. Prosecutors stated separately to each family that lethal force had been used against Z.K. and A.B. “in a moment of extreme urgency”. Prosecutors refused to give the applicants the status of civil parties in the cases of their relatives’ death.
Information supplied by the Government to the Strasbourg Court shows, among other things, that
the authorities carried out investigations into the riot and the use of force by the police.
Six prisoners – the alleged criminal bosses and their close associates – were ultimately charged as
instigators of the riot and given prison sentences. The trial court established that inmates of Prison
no. 5 had thrown pieces of brick and iron at prison officers and that the anti-riot squad had
responded with rubber bullets. Inmates had then fired Makarov pistols and gas weapons, carrying on
resisting until the intervention of prison officers and anti-riot forces.
Prosecutors also began separate cases concerning a possible abuse of power by the police and
prisoner officers for opening fire during the riot and on possible murder related to the deaths of Z.K.
and A.B. Some investigative measures were taken in the first case but it is not clear whether any
were taken as regards Z.K. and A.B.
THE DECISION OF THE COURT…
Article 2 and Article 13
Obligation to investigate
The Court first examined the applicants’ complaints from the point of view of the State’s duty to
carry out an effective investigation into unlawful or suspicious deaths (the procedural aspect of
Article 2), reiterating its case-law on that subject.
According to information provided by the Government, an investigation into the use of force by
officers at the prison had not begun until June 2006, which for the Court was far too long a delay
given the scale of the incident and the prospect that it would not be possible to recover important
information after such a long time.
Furthermore, the authorities had initially refused to open a separate investigation into the alleged
disproportionate use of force, assessing that that ground had already been covered by the
investigatory steps in the criminal case against the six alleged riot organisers. However, that
investigation had been carried out by the same body which had organised the anti-riot action, the prisons department. Nor had that investigation examined the planning of the operation or the use of lethal or physical force resulting in prisoner deaths and injuries.
Even after the authorities had opened a separate criminal enquiry into the use of force in June 2006,
the applicants had not been involved as victims, depriving them of major procedural rights. The
participation of Z.K. and A.B.’s families and public scrutiny of the investigation had thus been
virtually non-existent. Lastly, it had still not led to any conclusive findings, a prohibitive delay
incompatible with the obligations of Article 2.
The Court concluded that the criminal investigation into the use of force by the law-enforcement
officers appeared to have been ineffective, given its belated launch, its lack of independence and
impartiality, the lack of involvement of the next of kin, and the prohibitive delays. There had thus
been a violation of the procedural limb of Article 2. Given that conclusion, the Court found that no
separate issue arose under Article 13.
Use of force
The Court next examined whether the use of lethal force against the applicants’ relatives had been
legitimate (the substantive aspect of Article 2).
The Court had no direct information about the events at the prison and had to rely on domestic
findings. However, the courts were still examining the use of force while no parliament inquiry had
been carried out, which the Court found regrettable given the scale of the incident.
It was therefore the respondent Government’s task to explain in a satisfactory and convincing
manner the sequence of events and to produce solid evidence to refute the applicants’ allegations of
the disproportionate use of lethal power by State agents. If the Government failed to do so, the
Court could draw strong inferences.
The Court could also draw on all the evidence at its disposal, including reports by human rights
organisations, such as those produced by Amnesty International and Human Rights Watch in this
case. The factual findings the Court reached had to be based on the standard of proof “beyond
reasonable doubt”.
Looking at the evidence to hand, the Court found that the conduct of the inmates who had
barricaded themselves into Prison no. 5 and had fired at the law-enforcement officers during the
disturbances showed certain signs of being an attempted uprising. The respondent State, confronted
with the unlawful violence and the risk of an insurrection, could therefore resort to measures
involving potentially lethal force, which could be reconcilable with the aims set out in Article 2 § 2 (a)
and (c) of the Convention. However, the question remained whether the recourse to lethal force was
“absolutely necessary”, especially in the light of the number of people left dead or injured.
When assessing the proportionality of the use of lethal force, the Court noted that the authorities
had been aware that it was possible that the six alleged criminal bosses and their associates would
instigate troubles at the prison during their removal. However, the anti-riot squad had received no
specific instructions or orders on the form and intensity of any lethal force that would keep the
likelihood of casualties to a minimum.
Nor had the Government shown that the anti-riot squad had acted in a controlled and systematic
manner with a clear chain of command. According to evidence collected by Human Rights Watch,
the authorities had not even known exactly who was in charge of the anti-riot operation.
Apparently the authorities had also not thought of using tear gas or water cannons, which was
apparently a consequence of the lack of strategic planning, and no sufficient consideration had been
given to the possibility of easing the crisis by conducting negotiations with the barricaded prisoners.
The authorities had furthermore failed to provide adequate medical assistance to inmates in Prison
no. 5 after the anti-riot operation, although such arrangements should have been made.
The Court observed that there were credible reports, documented both by domestic and
international observers, that numerous detainees had been ill-treated by special forces agents and
even shot in their cells, despite the fact that they had no longer been putting up resistance.
Lastly, neither the domestic authorities nor the respondent Government had provided information
about the individual fates of the applicants’ two relatives, who had been killed during the operation.
The Court concluded that Z.K. and A.B. had died as a result of lethal force which, although pursuing
legitimate aims under Article 2, could not be said to have been “absolutely necessary” within the
meaning of that provision.
The Court reiterated that the anti-riot operation had not been conducted in a controlled and
systematic manner and law-enforcement agents had not received clear orders and instructions
aimed at minimising the risk of casualties. The authorities had not considered less violent means of
dealing with the security incident, including the possibility of solving the crisis by negotiations.
The use of lethal force during the anti-riot operation had been indiscriminate and excessive and the
authorities had failed to provide adequate medical assistance to those affected. They had also failed
to account for the individual circumstances of the deaths of Z.K. and A.B.
The Court concluded that the anti-riot operation had resulted in a violation of Article 2 in its
substantive aspect.
Just satisfaction (Article 41)
The Court held that Georgia was to pay 40,000 euros (EUR) jointly to the first and second applicants
and EUR 32,000 to the third applicant in respect of non-pecuniary damage. It also held that Georgia
was to pay EUR 5,400 to the first and second applicants jointly and EUR 3,400 to the third applicant
in respect of costs and expenses.
