MANUKYAN v. GEORGIA
Inadmissible
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
1. The applicant, Mr Karen Manukyan, is a Georgian national, who was born in 1982 and lives in Rustavi. He was represented before the Court by Mr Zaza Khatiashvili and Mr Levan Javakhadze, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 2 September 2004 a married couple, Mr E.M. and Mrs N.K, lodged a criminal complaint with the police, alleging that they had been victims of kidnapping and extortion. On 7 September 2004 criminal proceedings were initiated under Articles 143 § 2 (a) and (b), 181 § 2 (a) and (b) and 236 §§ 1 and 2 of the Criminal Procedure Code of Georgia for aggravated unlawful deprivation of liberty, extortion and unlawful purchase and possession of firearms. 4. On 13 September 2004 the applicant was arrested in connection with the above proceedings. As disclosed by the record of a search of the applicant’s vehicle, which according to the applicant had been falsified, several items of evidence were found in the vehicle and collected for further examination, including one hand grenade, several cartridges and a face mask. 5. The applicant alleges that on the same date several police officers subjected him to ill-treatment upon his transfer to the Ministry of Internal Affairs of Georgia, with the aim of obtaining a confession to the charges against him. The police officers allegedly tied the applicant to a chair and beat him for five hours, the applicant receiving a particularly large number of blows to the head. The beatings were allegedly encouraged and supervised by two senior police officers, Mr B. Kh. and Mr. J. J., who threatened to kill the applicant if he did not plead guilty. 6. Subsequently, the applicant was transferred to a temporary detention centre, where, upon admission, he was visually examined by a duty officer in the presence of another prison officer. According to the record drawn up by the duty officer and duly signed by the applicant (“the record of 13 September 2004”), multiple scratches and reddened areas were identified on the applicant’s neck. The record also stated that the applicant had said that he had sustained those injuries prior to his arrest. 7. At a photo identity parade held on 14 September 2004, the victims identified the applicant as one of their kidnappers. 8. On 17 September 2004 a department head of the Tbilisi City Prosecutor’s Office, relying on the record of 13 September 2004, instructed the Vake-Saburtalo district prosecutor to inquire into the origin of the applicant’s injuries and take any lawful actions required. As disclosed by the case file, the above request has not resulted in any actual investigative actions. 9. On 25 April 2006 the applicant and three co-accused were convicted on multiple charges of aggravated kidnapping, extortion, hostage-taking, unlawful purchase and possession of firearms, and causing both grave and minor bodily injuries, committed while acting in an organised, armed criminal gang. The applicant was sentenced to thirteen years’ imprisonment. The applicant’s conviction was primarily based on the victims’ statements, the results of the identity parade, the record of the search of the applicant’s vehicle, statements from the police officers who had conducted the search, and an analysis of the incoming and outgoing mobile phone calls of the applicant and his three co-accused. According to the transcript of the trial hearing, both victims identified the applicant in court as the perpetrator. The court rejected the applicant’s alibi and supporting witness testimonies as unsubstantiated, reasoning that the alibi had been made up with the sole purpose of evading criminal responsibility. 10. In his appeal dated 30 May 2006, the applicant reiterated all the arguments made by him at the first-instance hearing. Notably, the applicant challenged the results of the search of his vehicle and complained of inaccurate assessment of evidence by the trial court and also about the dismissal of his alibi. The applicant did not make allegations of ill-treatment. 11. On 29 January 2007 the Tbilisi Court of Appeal, whilst whilst rejecting one of the aggravating circumstances modifying the qualification of the offences, maintained the applicant’s conviction and his sentence of thirteen years’ imprisonment. The appellate court endorsed the reasoning of the first-instance court concerning the conclusiveness of the incriminating evidence. On 25 July 2007 the Supreme Court of Georgia rejected the applicant’s appeal on points of law. 12. On 10 October 2007 the applicant’s lawyer lodged a criminal complaint with the General Prosecutor of Georgia and, relying on Article 3 of the Convention, requested the initiation of a criminal investigation of the applicant’s allegations of ill-treatment. The lawyer denounced the failure of the prosecuting authorities to carry out the prosecutor’s instructions of 17 September 2004, and to conduct an inquiry into the circumstances in which the applicant had sustained his injuries. The lawyer particularly stressed the relevant authorities’ failure to question the applicant in connection with his injuries. In support of the above request, the lawyer provided the General Prosecutor of Georgia with a copy of the record of 13 September 2004 assessing the applicant’s injuries, the applicant’s statement describing ill-treatment he stated he had suffered – including the names of some of the alleged perpetrators, and a copy of the prosecutor’s decision of 17 September 2004. 13. The above complaint was forwarded to the Tbilisi City prosecutor on 20 October 2007 with a request to report back. 14. On 1 November 2007 criminal proceedings were initiated by the prosecuting authorities in connection with the applicant’s allegations of ill-treatment on 13 September 2004. On 5 January 2008, while being questioned as a witness, the applicant maintained his allegations of ill-treatment and named the key suspects again. On 24 January 2008 a forensic examination established that the applicant’s injuries as described in the record of 13 September 2004 were of a minor nature, causing no damage to his state of health. 15. As disclosed by the relevant criminal case file submitted by the Government, several witnesses were questioned, including two of the alleged suspects named by the applicant and the two investigators and the prosecutor in charge of the criminal case against the applicant. They all denied the applicant’s allegations. Several other investigative actions were also carried out for the purpose of verifying the applicant’s claims. According to the Government, no evidence was found to substantiate the applicant’s allegations. 16. On 6 February 2005 the applicant was transferred to the psychiatric wing of the prison hospital with symptoms of post-traumatic stress disorder. By that time he had developed insomnia, frequent headaches and dizziness. He complained in particular of depression, irritability and tinnitus. Following a psychiatric evaluation, the applicant was diagnosed as suffering from emotionally unstable personality disorder and post-traumatic nonpsychotic cerebral syndrome. The medical report of the applicant’s treatment in the prison hospital between 6 February and 4 May 2005 noted that the applicant had suffered from concussion several times in the past. The report also noted that the applicant had never been registered with any psychiatric hospital in the past and that his parents did not suffer from any genetically transmissible diseases. 17. The applicant was discharged from the prison hospital after four months of treatment and returned to Tbilisi no. 1 Prison on 4 June 2005. 18. On 30 October 2007 the applicant’s lawyer wrote a letter to the governor of Tbilisi no. 1 Prison, where the applicant was an inmate at the material time, inquiring about the availability of a psychiatrist in the prison. In a reply of 5 November 2007, the prison governor informed the lawyer that the applicant had been transferred to Rustavi no. 6 Prison. He further maintained in general terms that a psychiatrist from the prison hospital was asked to attend whenever the need arose. 19. In September 2010 the applicant raised new medical grievances with the prison authorities. Notably, he complained of pain in the waist area and after a medical check-up was diagnosed with radiculopathy. The applicant was prescribed relevant drug-based treatment on an out-patient basis. 20. As disclosed by his medical file, the applicant subsequently had periodic consultations with various specialists, including a psychiatrist. The most recent consultation, on 15 August 2011, indicated that the applicant’s mental condition was stable, with no signs of psychosis. 21. The relevant provisions of the Code of Criminal Procedure, as in force at the material time, read as follows: Article 261 – Obligation to initiate a preliminary investigation “Upon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. ...” Article 263 – Information concerning the commission of a crime “1. A preliminary investigation shall be opened on the basis of information concerning the commission of a crime brought to the attention of the investigator or the public prosecutor by a natural person or other legal entity ... reported in the media, or brought to light during the investigation of a case by the authority in charge of the investigation ...”