March 17, 2023
Machalikashvili and Others v. Georgia concerned the killing of T.M. by members of the Counter-Terrorism Department of the State Security Service (‘SSS’) 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.
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.
A criminal investigation was opened and an investigation commenced in light of the shooting. An investigator from the Kakheti Regional Prosecutor’s 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 ‘that T.M. had been in a lying down position with his head slightly elevated’ when he was shot (para 37).
Members of T.M.’s family, applicants in the case at the European Court of Human Rights (‘the Court’), 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 ‘criticised 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’; ‘alleged that the scope of the investigation was narrow, overlooking, despite their numerous requests, the planning stage of the special operation’; and ‘alleged that in view of the time of the applicant’s 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’ (para 51). More broadly, the applicants ‘complained to the prosecution authority that the investigation was not being conducted thoroughly and impartially’ (para 53). The national criminal investigation was discontinued on 25 January 2020.
The majority found that the investigation in question had violated the procedural requirements of Article 2, due to ‘the defective initial investigative response, including the way in which important evidence was gathered and handled’; ‘the superficial examination of the planning and control phase of the operation’; ‘the delay in interviewing the SSS officers’; and ‘the denial of victim status to the first applicant, which prevented the applicants from appealing against the decision of the prosecutor’s office’ (para 97).
However, the majority found no violation of the substantive requirements of Article 2. The Court noted ‘that 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’; that ‘[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’; and that ‘the Government provided no explanation’ for those absences (para 102). Despite these statements, the Court observed that ‘there is nothing to suggest that the SAU officers were not intending to carry out an arrest, as per the stated purpose of the operation’; accepted ‘the Government’s argument that the SSS were expecting armed resistance from T.M.’; indicated that the authorities had ‘provide[d] a plausible explanation for the events’ in question; and concluded that there was ‘insufficient evidence on which to conclude, beyond reasonable doubt, that T.M. died in circumstances engaging the responsibility of the State’ (paras 102, 105-6).
In justification of this holding, the Court stated that it ‘must 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,’ and that ‘errors of judgment or mistaken assessments, unfortunate in retrospect, will not per se entail responsibility under Article 2 of the Convention’ (para 105). Perhaps most essentially, the Court held that it had ‘no sound basis to find that T.M. was under the control of the SAU officers at the moment when they entered the room’ and that ‘the 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’ (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.
Judge Gnatovskyy partially dissented in the case. While he agreed with the majority’s finding of a violation of the procedural dimension of Article 2, he would have found a violation of that article’s substantive requirements as well. His dissent directly confronted the majority’s 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,
‘[t]here exists clear authority … 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’s allegations … 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’ (dissent, para 10).
Judge Gnatovskyy also noted that his dispute with the majority was not merely academic—rather, as he put it, the approach of the majority ‘risks dangerously lowering the standard of protection of the right to life’ (dissent, para 10). In contrast to the approach adopted by the majority, Judge Gnatovskyy called on ‘the 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’s allegations’ (para 15).
Identifying the core of the problem with the judgment in Machalikashvili 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—an 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.
Some points above and beyond Judge Gnatovskyy’s 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 ‘beyond reasonable doubt’ (para 106). This statement of the majority’s 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 ‘beyond a reasonable doubt’ is inappropriate in the human rights context (see, e.g., the Inter-American Court of Human Rights’ decision in Velásquez Rodríguez v. Honduras, para 134), however, and the fact that the European Court has indicated that while it utilizes the formula of ‘beyond a reasonable doubt,’ ‘it has never been [the Court’s] purpose to borrow the approach of the national legal systems that use that standard’ (El-Masri v. the former Yugoslav Republic of Macedonia, 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.
While other statements by the majority employ alternative language—questionable in itself, as the varying language employed suggests a lack of clarity relative to the essential issue of the standard of proof—all the language deployed suggests an overly demanding standard is required. At different points the majority suggests the state has provided a ‘plausible account,’ and elsewhere that the Court has ‘no sound basis’ to reach various holdings advanced by the applicants (paras 104-6). If taken seriously the language employed by the Court around ‘plausibility’ suggests that, in order to succeed, applicants would have to advance sufficient evidence to render the state’s case completely ‘implausible’—a standard hard to distinguish from that of proof beyond a reasonable doubt. Requiring ‘sound basis’ suggests a slightly diminished standard of proof, but still a high standard, similar perhaps to the intermediate standard of ‘clear and convincing evidence.’ This standard too would be challenging to meet in reality.
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.
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. 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.
Machalikashvili 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’s powerful words in his dissent, the judgment ‘risks dangerously lowering the standard of protection of the right to life.’ 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.
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, 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, 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.