Georgian Government settles cases of excessive police force during 2009 protests against President Saakashvili

25 November 2015

იხილეთ სტატიის ქართული ვერსია

The Georgian Government has made unilateral declarations[1] in two cases relating to the police’s alleged use of excessive force while dispersing protesters. In April 2009, thirteen opposition parties decided to hold a rally to call for the resignation of President Mikheil Saakashvili. The ensuing protests, against certain actions of the incumbent administration, including arrests of opposition activists, lasted until June that year.

On 15 June 2009, the applicants in two such cases, Bekauri and others v Georgia and Menabde v Georgiawere gathered outside the Tbilisi police headquarters with supporters of the youth opposition group to protest the arrest of opposition activists a few days previously. Twenty minutes after the protest had begun, police officers began to disperse the crowd, allegedly by beating protesters with rubber truncheons. A criminal investigation was launched into possible police abuse during the protests on 17 August 2009. The applicants in the cases were represented by the European Human Rights Advocacy Centre, based at Middlesex University, and the Georgian Young Lawyers Association (Tbilisi).

Bekauri and others v Georgia (No. 312/10)

There were ten applicants in this case, all of whom belong to Ratom? (English: “Why?”) and complain that they were subject to violence at the hands of police officers dispersing the protesters. On the day of the protest, five of the applicants were arrested, taken to police headquarters, and forced to lay on the ground, while the police insulted, kicked and hit them with rubber truncheons. Six of the applicants were charged with and found guilty of administrative offences, namely breaching public order and resisting the lawful order of police officers. In their application to the European Court of Human Rights, these applicants argued a violation of their right to a fair trial (Art. 6 §§ 1 and 3 of the European Convention on Human Rights – ECHR). The five applicants who had been arrested and taken into police headquarters alleged substantive and procedural violations of the prohibition of torture and ill-treatment (Art. 3). Finally, all the applicants claimed that their right to freedom of assembly (Art. 11) had been breached.

The Government’s unilateral declaration acknowledged a violation of the procedural limb of Art. 3, in connection with the lack of an effective investigation into the applicants’ alleged ill-treatment by the police. With regards to the substantive limb of Art. 3, the Government reasoned that only an effective criminal investigation would be able to clarify whether police abuse had taken place, and until this happens, it is not possible to prejudge whether a violation had occurred. Thus the Government undertook to conduct a prompt and effective investigation into the five applicants’ claims of ill-treatment. The unilateral declaration also acknowledged the violations of Art. 6 §§ 1 and 3 (with respect to three of the applicants) and Art. 11 (with respect to all applicants).

However, whilst welcoming the acknowledgement of a violation of their right to freedom of assembly, two of the applicants refused to accept the Government’s unilateral declaration. Giorgi Shikharulidze was among the six applicants charged with administrative offences, but did not receive an acknowledgement of a breach of his right to a fair trial, under Art. 6 §§ 1 and 3.  He suggested that the Government owed him an apology and further compensation. Luka Tsuladze expressed his disappointment that the Government had not acknowledged a violation of the substantial limb of Art. 3, as well as the procedural limb.

The European Court examined the terms of the Government’s unilateral declaration and the objections made by these applicants.  It did not consider these to be valid objections “capable of outweighing the significance of the Government’s unilateral declaration”.  It found that Mr Shikharulidze’s Art. 6 complaint was inadmissible because the fine payable for the administrative offence was “minor” and that he had “not suffered a significant disadvantage” (under Art. 35§3(b) ECHR). The Court similarly dismissed Mr Tsuladze’s complaint, as the Court was satisfied with the Government’s acknowledgement of a procedural violation of Art. 3 and its undertaking to conduct an effective investigation.  It concluded that this meant the applicant could no longer claim to be a victim of a continued violation.  However, it also noted that the application could be returned to the Court if the Government failed to comply with the terms of its unilateral declaration (under Art. 37§2).

The applicants were together awarded a total of €25,000 to cover all costs and damages.

Menabde v Georgia (No. 4731/10)

The applicant in this case, Vakhtang Menabde, is a member of the monitoring group of the Public Defender’s Office which attended the protests mentioned above. He too received blows with rubber truncheons to his spine, head and hands. During the subsequent arrests, Mr Menabde was also taken to police headquarters, but was released fifteen minutes later; a police officer explained that he had been arrested by mistake. In his application to the European Court, Mr Menabde argued violations of the substantive and procedural limbs of Art. 3 and the right to liberty, because of his arrest and the lack of explanation given for it (Art. 5 §§ 1, 2 and 5).

Once again, in this case, the Government’s unilateral declaration acknowledged a violation of the procedural limb of Art. 3, due to the lack of an effective investigation of the alleged ill-treatment by the police, and undertook to conduct a prompt and effective investigation into the events of 15 June 2009.  The unilateral declaration also acknowledged the Art. 5 violations. However, the Government did not acknowledge a violation of the substantive limb of Art. 3, for the same reasons as outlined in Bekauri and others v Georgia. Mr Menabde also objected to the terms of the unilateral declaration, on the basis that there was no acknowledgment of a violation of the substantive element of Art. 3. Relying on its case law, including its reasoning in Bekauri (above), the Court similarly dismissed his objection and struck the case out of the list.

The Government awarded Mr Menabde €4,500 to cover all costs and expenses.

These cases form part of a series of settlements made by the Georgian Government with regards to cases lodged at the European Court. Earlier in 2015, two of EHRAC’s cases were resolved through friendly settlements and unilateral declarations; Studio Maestro Ltd. & others v Georgia also related to violence during the 2009 protests, and journalists’ ability to document it. Protest-related cases remain prevalent not only in Georgia, but throughout the South Caucasus region.

[1] In a case before the European Court of Human Rights, where a friendly settlement procedure has been unsuccessful, the respondent Government may make a declaration acknowledging the violation of the European Convention on Human Rights and undertaking to provide the applicant with redress. For more information, please see the European Court’s 2012 document on unilateral declarations, and the Rules of Court.