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Case of Temirlan Machalikashvili in the parliamentary report of the Public Defender of Georgia

18.04.2018

 
Reginfo.ge

“Unlike the previous report period, the death of Temirlan Machalikashvili in the special operation in Pankisi Gorge in December 2017 still raises issue of effective defense of the right to life,” the Parliamentary Report of the Public Defender of Georgia reads, which reviews the state of human rights in Georgia in 2017.

“The defense of the right to life will be ensured in this case if the state will implement its positive obligation adequately – will effectively, timely and impartially investigate the fact, where allegedly the representatives of state authority violated the human rights.”

Public Defender Nino Lomjaria underlines the April 26, 2011 ruling of the European Court of Human Rights into the case Enukidze and Girgvliani vs Georgia, which states that “the effective investigation required under Article 2 serves to maintain public confidence in the authorities’ maintenance of the rule of law, to prevent any appearance of collusion in or tolerance of unlawful acts and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Investigation findings shall rely on thorough, impartial and objective analysis of all tangible elements.”

Nino Lomjaria said, fight against terrorism is one of the main challenges of the modern world but in parallel to that, defense of fundamental human rights is the major responsibility of the state. 

July 2017 recommendation of the Committee of Ministers of the Council of Europe again reminded the states to consider proportionality and reasonability of all actions when fighting against grave crimes including terrorism. 

The Public Defender said, it is important to note that in this particular case, [law enforcement bodies] had planned special operation to arrest a person charged in criminal offence. The arrest plan and control of the special operation shall become subject of particular examination from the very moment the officers received court judgment to start operation. 

“Analysis of these circumstances will demonstrate whether the institution, responsible for the special operation, considered all opportunity to use proportional power during the operation, in order to avoid irreversible result – the death. This key factor evaluates how the state tried to defend Machalikashvili’s right to life – the state shall determine through effective investigation whether their representatives acted in accordance to the law.
In order to evaluate the proportionality of the used power, the circumstances developed during the special operation shall also be studied in details among them it should be estimated whether law enforcement officers had warned the other side about possible use of guns. 

Together with the proportionality of the used power, it is important to assess which legal and factual circumstances indicated at the necessity to arrest Temirlan Machalikashvili. For that reason, in the frame of the investigation of this case, it is important to study and evaluate the materials of the criminal case (documents, evidence) in the frame of which arrest of Temirlan Machalikashvili was planned. It is important that in accordance to the case law of the European Court of Human Rights, the family members of the victim received status of the victim’s legal representative and to ensure their participation in the process of investigation that is necessary to defend their legal rights,” the report of the Public Defender reads.

In accordance to the January 23, 2018 letter of the Chief Prosecutor’s Office of Georgia, the lawyer appealed the Tbilisi prosecutor’s office to grant victim status to Temirlan Machalikashvili but the prosecutor’s office refused though she was allowed to get acquainted with the criminal case materials. The Chief Prosecutor’s Office reported that the chief prosecutor of Georgia met the family members and advocates of Temirlan Machalikashvili and informed them about the investigation progress. At the same time, the advocates are not allowed to get acquainted with the case materials processed by the State Security Service of Georgia. 

Public Defender stated that it is important to determine whether medical assistance was provided timely and adequately after the use of firearms.

The parents claim that after the gunshot they were locked in the room and did not see how the wounded son was taken from the house. In accordance to the February 23, 2018 letter of the State Security Service, they called emergency medical service but until the brigade arrived they took the wounded young man to the medical clinic. 

In accordance to the letter of February 28, 2018 of the LEPL Center for the Coordination of Emergency Cases and Emergency Service, the emergency medical service, who had left for the call, met the patient on their way at 04:26 am. 

It is noteworthy that LEPL State Regulations Agency for Medical Activities started a probe into the case based on the petition of the Public Defender’s Office.

Chief prosecutor’s office refused the Public Defender of Georgia to get acquainted with the case materials of Temirlan Machalikashvili’s case as an exception but provided with the information about the ongoing investigation activities. 

The Public Defender recommended the prosecutor’s office: to conduct concrete investigative operations to evaluate the proportionality of the used power – Temirlan Machalikashvili’s detention plan and control over the operation; the plan of the special unit before the arrest of Machalikashvili; factual and legal grounds of Temirlan Machalikashvili’s arrest; relevance and quality of the provided medical assistance; provide the family members with the information about the ongoing investigation procedures and help them to get acquainted with the documents.

At the same time, the Public Defender requests the State Security Service to elaborate detailed instruction for the special operations against terrorist acts, which will reduce risks of the abuse of power and will meet the international standards.

Special unit officers deadly wounded 19-year-old Temirlan Machalikashvili in the head in his bedroom on December 26, 2017. During fortnight he was in coma in the hospital. On January 10, 2018 he deceased. Doctors said the patient died of heart failure.

The SSSG, on December 26, as a result of special operations in Pankisi Gorge and Tbilisi arrested 4 persons for the alleged support to terrorism. They blamed Temirlan Machalikashvili in assisting the international terrorist Akhmed Chataev and his allies. However, the prosecutor’s office has not imposed charge on Machalikashvili yet. Few more persons were arrested later. They are sentenced to imprisonment. The court is discussing the case during closed trials.

 
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