Statement of Public Defender’s Office on European Court’s Judgement in the Case of Temirlan Machalikashvili

In the case of Temirlan Machalikashvili,[1] the European Court of Human Rights found the violation of the State's positive obligation to the right to life due to the failure to conduct an effective and thorough investigation.

The European Court referred to a number of substantial flaws in the investigation into the death of Temirlan Machalikashvili. Among them, attention was focused on the method of obtaining and processing important evidence, superficial examination of the planning and control of the operation, delayed questioning of the employees of the State Security Service, denial to grant victim status to the applicant, which prevented the family from appealing the decision of the Prosecutor's Office. The court also emphasized the problem of institutional independence of the investigation, as the Prosecutor's Office relied on the results of the investigative actions conducted by the investigator of the State Security Service.

The European Court of Human Rights explained that the location of Temirlan Machalikashvili's mobile phone at the time of the shooting could not be properly established by the investigation, the accusations regarding headphones and hand grenades could not be dismissed, etc.

At the same time, the court could not establish the violation of the right to life in the material part (negative obligation), which implies the intentional, unlawful destruction of a citizen's life by state representatives. The court named the lack of sufficient evidence as the basis of this decision and explained that the reason could be the very failure to conduct a thorough investigation.

The Public Defender stated back in 2020 that the State had failed to fulfill its positive obligation, and assessed the investigation as ineffective. After reviewing the case materials, the Public Defender addressed the Prosecutor General with a proposal[2] to renew the investigation into the criminal case of deprivation of the life of Temirlan Machalikashvili.

According to the Public Defender's position, in the process of investigation of the violation of the right to life, it was necessary and important for the investigative body to obtain information about the control of the special operation. Therefore, for the purpose of ensuring the standard of thorough and complete investigation, it was necessary to obtain/request information about any communication made between the persons responsible for the implementation and supervision of the operation through telephone, calls, short text messages, telephone programmes or social networks during the period of the special operations. In addition, according to the Public Defender, it was necessary to obtain the scanner radio records of all the employees of the State Security Service participating in the operation, which can be particularly important information in the absence of video/audio/photo material, given the fact that the surveillance records reflect the content of real and instant communication. Unfortunately, the Prosecutor's Office did not grant the proposal of the Public Defender.

Based on the judgment of the European Court of Human Rights, after the decision enters into legal force, the agency responsible for the investigation will be the Special Investigation Service. The Public Defender’s Office will continue to monitor the renewed investigation.

[1] "Machalikashvili and others v. Georgia", application N32245/19 19.01.2023

[2] Proposal of the Public Defender of Georgia N15-5/3581 of March 27, 2020.

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