{"id":1390,"date":"2023-03-21T11:22:43","date_gmt":"2023-03-21T10:22:43","guid":{"rendered":"https:\/\/dissect.ugent.be\/?p=1390"},"modified":"2023-07-17T07:59:09","modified_gmt":"2023-07-17T06:59:09","slug":"machalikashvili-and-others-v-georgia","status":"publish","type":"post","link":"https:\/\/dissect.ugent.be\/es\/machalikashvili-and-others-v-georgia\/","title":{"rendered":"Machalikashvili and Others V. Georgia: The Critical Importance of the Burden and Standard of Proof to Human Rights Adjudication"},"content":{"rendered":"\n

By\u00a0Prof. Christopher Roberts<\/a><\/p>\n\n\n\n[This post first appeared on\u00a0Strasbourg Observers<\/a>]<\/em><\/p>\n\n\n\n

Machalikashvili and Others v. Georgia <\/em>concerned the killing of T.M. by members of the Counter-Terrorism Department of the State Security Service (\u2018SSS\u2019) of Georgia on 26 December 2017. The precise circumstances in which this killing took place, as well as the integrity and comprehensiveness of the investigation subsequently conducted into the killing, were disputed. At central issue in the case were the issue of the distinction between the procedural and substantive obligations that flow from Article 2 of the European Convention on Human Rights, and the appropriate allocation of the burden of proof in cases involving killings conducted by government forces. While allocation of the burden of proof may sound like a relatively obscure technical procedural issue, in many cases, including this one, it is perhaps the most important part of human rights complaint adjudication.<\/p>\n\n\n\n

Facts<\/h2>\n\n\n\n

Around 3:45 a.m. on 26 December 2017 members of an SSS Special Assignment Unit consisting of 32 officers entered the home of T.M. and his family. Shortly thereafter T.M. was shot in the head in his bedroom. According to the authorities, this was due to his refusal to show his hands and surrender, and his subsequent attempt to detonate a hand grenade. Following the shooting T.M. was transferred to a hospital, though there was no ambulance accompanying the SSS unit during the operation.<\/p>\n\n\n\n

A criminal investigation was opened and an investigation commenced in light of the shooting. An investigator from the Kakheti Regional Prosecutor\u2019s Office arrived and surveyed the scene at 4:00 p.m. the same day. A hand grenade had already been taken from the scene, and was subsequently destroyed during a forensic examination. Another forensics examination suggested \u2018that T.M. had been in a lying down position with his head slightly elevated\u2019 when he was shot (para 37).<\/p>\n\n\n\n

Members of T.M.\u2019s family, applicants in the case at the European Court of Human Rights (\u2018the Court\u2019), requested victim status during the subsequent investigations, but their request was refused. They also lodged multiple complaints concerning the scope and nature of the investigations undertaken. Among other things, the applicants \u2018criticised the fact that the initial investigative measures had been undertaken by the SSS in breach of the institutional independence requirement, thus prejudicing the whole investigation\u2019; \u2018alleged that the scope of the investigation was narrow, overlooking, despite their numerous requests, the planning stage of the special operation\u2019; and \u2018alleged that in view of the time of the applicant\u2019s last mobile telephone communication, it was likely that he had been using his mobile telephone and the headphones at the time of the special operation, and, hence had not heard the SSS officers entering his bedroom\u2019 (para 51). More broadly, the applicants \u2018complained to the prosecution authority that the investigation was not being conducted thoroughly and impartially\u2019 (para 53). The national criminal investigation was discontinued on 25 January 2020.<\/p>\n\n\n\n

Summary of the Judgment<\/h2>\n\n\n\n

The Majority Opinion<\/h3>\n\n\n\n

The majority found that the investigation in question had violated the procedural requirements of Article 2, due to \u2018the defective initial investigative response, including the way in which important evidence was gathered and handled\u2019; \u2018the superficial examination of the planning and control phase of the operation\u2019; \u2018the delay in interviewing the SSS officers\u2019; and \u2018the denial of victim status to the first applicant, which prevented the applicants from appealing against the decision of the prosecutor\u2019s office\u2019 (para 97).<\/p>\n\n\n\n

However, the majority found no violation of the substantive requirements of Article 2. The Court noted \u2018that the Government failed to submit any documents or files providing for the procedures that the SAU employed before, during, and after the operation in question\u2019; that \u2018[f]ormal reports concerning the manner in which the operation was prepared and\/or in which it unfolded [we]re also missing from the investigation file\u2019; and that \u2018the Government provided no explanation\u2019 for those absences (para 102). Despite these statements, the Court observed that \u2018there is nothing to suggest that the SAU officers were not intending to carry out an arrest, as per the stated purpose of the operation\u2019; accepted \u2018the Government\u2019s argument that the SSS were expecting armed resistance from T.M.\u2019; indicated that the authorities had \u2018provide[d] a plausible explanation for the events\u2019 in question; and concluded that there was \u2018insufficient evidence on which to conclude, beyond reasonable doubt, that T.M. died in circumstances engaging the responsibility of the State\u2019 (paras 102, 105-6).<\/p>\n\n\n\n

In justification of this holding, the Court stated that it \u2018must be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case,\u2019 and that \u2018errors of judgment or mistaken assessments, unfortunate in retrospect, will not per se entail responsibility under Article 2 of the Convention\u2019 (para 105). Perhaps most essentially, the Court held that it had \u2018no sound basis to find that T.M. was under the control of the SAU officers at the moment when they entered the room\u2019 and that \u2018the situation in the present case cannot be equated to a death in custody or to other situations where the authorities were in control, with the result that the burden of proof may be regarded as resting on the State\u2019 (paras 105, 104). The majority also found a complaint under Article 3 inadmissible; held that there was no need to examine the complaint under Article 13; and awarded the applicants 10,000 EUR in just satisfaction and 15,000 EUR for costs and expenses.<\/p>\n\n\n\n

The Partly Dissenting Opinion<\/h3>\n\n\n\n

Judge Gnatovskyy partially dissented in the case. While he agreed with the majority\u2019s finding of a violation of the procedural dimension of Article 2, he would have found a violation of that article\u2019s substantive requirements as well. His dissent directly confronted the majority\u2019s reasoning as to the burden of proof. In the first place, in contrast to the majority, Judge Gnatovskyy noted the key question was whether the events at issue lay within the exclusive knowledge of the authorities, which, as he noted, they did (see dissent, paras 8-9). As he observed,<\/p>\n\n\n\n

\u2018[t]here exists clear authority \u2026 for the proposition that strong presumptions of fact arise in respect of injuries and death that occur in situations where the events lie wholly or in large part within the exclusive knowledge of the authorities. In such cases, the burden of proof shifts and it is for the respondent Government to explain, in a satisfactory and convincing manner, the sequence of events and to provide solid evidence to refute the applicant\u2019s allegations \u2026 In the absence of such explanation, the Court can draw inferences which may be adverse to the Government. In my view, the Court should have adhered to the same approach in the present case as none of the arguments presented by the Government amounted to a satisfactory and convincing explanation\u2019 (dissent, para 10).<\/p>\n\n\n\n

Judge Gnatovskyy also noted that his dispute with the majority was not merely academic\u2014rather, as he put it, the approach of the majority \u2018risks dangerously lowering the standard of protection of the right to life\u2019 (dissent, para 10). In contrast to the approach adopted by the majority, Judge Gnatovskyy called on \u2018the Court to be more demanding in situations where no effective investigation has been carried out and where the Government has failed to explain the sequence of events in a satisfactory and convincing manner and provide solid evidence to refute the applicant\u2019s allegations\u2019 (para 15).<\/p>\n\n\n\n

Analysis<\/h2>\n\n\n\n

Identifying the core of the problem with the judgment in Machalikashvili <\/em>is straightforward due to the fact the powerful, compelling dissent by Judge Gnatovskyy goes clearly and directly to the heart of the matter. As the language of the majority makes clear, everyone is uncertain exactly what happened\u2014an unsurprising position for an international court to be in. In such circumstances, the approach adopted towards the burden and standard of proof is essential. In contrast to the majority, Judge Gnatovskyy gets this issue right: the burden of proof must be on the state in cases in which only they can access the information needed to clarify what transpired.<\/p>\n\n\n\n

Some points above and beyond Judge Gnatovskyy\u2019s reflections on the burden of proof will be helpful, in terms of more fully explicating the issues involved. In the first place, the majority at one point suggested it reached its finding because the case against the state had not been proven \u2018beyond reasonable doubt\u2019 (para 106). This statement of the majority\u2019s is well-grounded in the language previously used by the European Court. It appears to disregard, and perhaps be ignorant of, the fact that multiple human rights bodies have noted the standard of \u2018beyond a reasonable doubt\u2019 is inappropriate in the human rights context (see, e.g., the Inter-American Court of Human Rights\u2019 decision in Vel\u00e1squez Rodr\u00edguez v. Honduras<\/a>, para 134), however, and the fact that the European Court has indicated that while it utilizes the formula of \u2018beyond a reasonable doubt,\u2019 \u2018it has never been [the Court\u2019s] purpose to borrow the approach of the national legal systems that use that standard\u2019 (El-Masri v. the former Yugoslav Republic of Macedonia<\/a>, para 151). To the extent the majority is imposing on the claimants the burden of proof beyond a reasonable doubt, therefore, they are both adopting a standard directly opposed to precedent as well as a close to impossible standard for applicants to meet.<\/p>\n\n\n\n

While other statements by the majority employ alternative language\u2014questionable in itself, as the varying language employed suggests a lack of clarity relative to the essential issue of the standard of proof\u2014all the language deployed suggests an overly demanding standard is required. At different points the majority suggests the state has provided a \u2018plausible account,\u2019 and elsewhere that the Court has \u2018no sound basis\u2019 to reach various holdings advanced by the applicants (paras 104-6). If taken seriously the language employed by the Court around \u2018plausibility\u2019 suggests that, in order to succeed, applicants would have to advance sufficient evidence to render the state\u2019s case completely \u2018implausible\u2019\u2014a standard hard to distinguish from that of proof beyond a reasonable doubt. Requiring \u2018sound basis\u2019 suggests a slightly diminished standard of proof, but still a high standard, similar perhaps to the intermediate standard of \u2018clear and convincing evidence.\u2019 This standard too would be challenging to meet in reality.<\/p>\n\n\n\n

As both the majority and the dissent recognize, the outcome of the case in terms of the substantive requirements of Article 2 hinged most centrally on the approach adopted by the Court to the burden of proof. Should it lie on the applicants, no violation would presumably be found (though even here, it is ambiguous what would have happened had the claimants been required only to show their contentions were more likely than not); should it lie on the state, the Court would find a violation. The majority contended that the situation in question was not one in which the authorities were in control, and that therefore the burden should not be reversed.<\/p>\n\n\n\n

Leaving aside whether or not the majority was correct on the question of control, that is, as Judge Gnatovskyy notes, the wrong issue to focus on. Rather, the key question the Court should ask in such situations is who has access to the relevant information<\/em>. If the information is in the hands of applicants, it is appropriate to place the burden on applicants. If only the state can provide the relevant information, or the state is in a better position to provide that information, the burden must lie on the state. Any other approach would render it possible for a state to avoid liability by refusing to disclose information to the adjudicatory body in question, or perhaps by even failing to collect, or retain, the information in question in the first place.<\/p>\n\n\n\n

Machalikashvili<\/em> is a difficult judgment to read because the majority all but explicitly recognizes this at various points. The majority finds the state conducted an inadequate investigation; that the state failed to provide certain key pieces of information required; and, based on the language the Court utilizes, that the state failed to present a convincing account of what occurred. For all of this to be followed by a finding that the substantive aspect of Article 2 was not violated creates a roadmap states can follow in order to avoid accountability for extrajudicial killings and other serious violations: conduct an inadequate investigation, decline to share essential information with human rights review bodies, and liability will be escaped. To reiterate Judge Gnatovskyy\u2019s powerful words in his dissent, the judgment \u2018risks dangerously lowering the standard of protection of the right to life.\u2019 To put it another way: by shaping its approach to the burden of proof the way it does, the Court supports impunity for human rights violations.<\/p>\n\n\n\n

Conclusion<\/h2>\n\n\n\n

Exactly what took place when SSS members stormed into the bedroom of T.M. may never be known with certainty. Insofar as the Court confronted factual uncertainty in Machalikashvili<\/em>, the case was not unique but rather well within the norm for adjudicatory bodies, which often confront cases in which the facts are uncertain. Questions pertaining to the burden and standard of proof are hence critical to the work of all adjudicatory bodies, even more so to international ones, given their greater distance from the factual situations in question. In Machalikashvili<\/em>, the Court combines an unclear approach to the standard of proof with an approach to the burden of proof that would undermine human rights protection. It can only be hoped the jurisprudential and normative clarity offered by the dissent, with its clear recognition of the need to reverse the burden of proof in cases in which the state has superior access to the information in question, is followed in future cases.<\/p>\n","protected":false},"excerpt":{"rendered":"

By\u00a0Prof. Christopher Roberts [This post first appeared on\u00a0Strasbourg Observers] Machalikashvili and Others v. Georgia concerned the killing of T.M. by members of the Counter-Terrorism Department of the State Security Service (\u2018SSS\u2019) of Georgia on 26 December 2017. The precise circumstances in which this killing took place, as well as the integrity and comprehensiveness of the investigationContinue reading “Machalikashvili and Others V. Georgia: The Critical Importance of the Burden and Standard of Proof to Human Rights Adjudication”<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[7,45,9,6,44,43,46,11],"class_list":["post-1390","post","type-post","status-publish","format-standard","hentry","category-geen-categorie","tag-adjudication","tag-burden-of-proof","tag-echr","tag-evidence","tag-georgia","tag-machalikashvili","tag-standard-of-proof","tag-strasbourg","entry"],"jetpack_featured_media_url":"","_links":{"self":[{"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/posts\/1390","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/comments?post=1390"}],"version-history":[{"count":2,"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/posts\/1390\/revisions"}],"predecessor-version":[{"id":1476,"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/posts\/1390\/revisions\/1476"}],"wp:attachment":[{"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/media?parent=1390"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/categories?post=1390"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/dissect.ugent.be\/es\/wp-json\/wp\/v2\/tags?post=1390"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}