Last Updated on November 22, 2019 by LawEuro
FIFTH SECTION
DECISION
Application no. 7156/11
Shota SHANIDZE
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 17 September 2019 as a Committee composed of:
Ganna Yudkivska, President,
Síofra O’Leary,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having regard to the above application lodged on 29 December 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Shota Shanidze, is a Georgian national who was born in 1989. He was represented before the Court by Mr M. Chikovani, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 1 September 2008 the applicant, an inmate who had escaped from the Khoni Psychiatric Hospital where he had been confined for involuntary treatment, was arrested on suspicion of aggravated murder, aggravated attempted murder, illegally acquiring and carrying firearms, and hooliganism.
5. On 22 September 2008 an investigator ordered an inpatient forensic psychiatric examination of the applicant, given his history of serious mental illness. The inpatient expert examination was to be conducted by three experts of the National Forensic Bureau (“the NFB”). They were given questions to answer as part of the examination, including some put by the defence.
6. On 21 October 2008 the NFB experts issued report no. 3298/26-131 (“the State expert examination”), which stated that the applicant had been suffering from an organic personality disorder at the time the alleged crimes had been committed. The diagnosis was confirmed, among other observations, by his history of cranial trauma and accompanying anti-social behaviour, emotional instability, and aggressiveness. In the experts’ opinion, however, the condition did not affect his ability to understand the wrongfulness of his actions. The report also stated that the applicant did not show any symptoms of psychosis; some of his statements were to be assessed as incompatible with the clinical picture of known forms of mental illness and were therefore simulated. The panel of experts concluded that the applicant suffered from a chronic condition, but that it did not belong to any category of incurable illness, require compulsory treatment in a specialist psychiatric hospital or prevent him from serving his sentence.
7. On 2 December 2008 the applicant requested to undergo a comprehensive panel-based psychiatric examination. He based his request on two grounds: (i) that the prosecution had failed to provide important information concerning his mental health and prior history of treatment on the basis of which the NFB had carried out its examination, and (ii) that the defence’s request concerning the participation of experts on their behalf in the examination process had been rejected. The first-instance court dismissed the request, suggesting that the applicant could challenge the conclusions of the NFB report by cross-examining the experts involved when the report was presented in court.
8. On 23 January 2009 the court joined to the file the documentation attesting to the applicant’s prior mental health issues and treatment. It also granted a request by the applicant to question the three NFB experts and two of the doctors who had supervised his earlier treatment in mental health facilities.
9. On 10 March 2009 the applicant obtained an alternative expert opinion from a private facility – the Psychodiagnostic and Psychotherapy Centre – which had carried out an outpatient forensic psychiatric examination (“the private expert examination”). The examination was performed by two experts and the applicant was diagnosed with an organic (schizophrenia-like) personality disorder and considered to have been incapable of understanding the wrongfulness of his actions at the time the crime was committed; he had posed a threat to others and had needed compulsory psychiatric treatment.
10. On 13 March 2009 M.G., the applicant’s former psychiatrist at the Khoni Psychiatric Hospital in June to July 2008, was questioned in relation to the applicant’s involuntary placement and treatment in that facility. She stated that the applicant had been diagnosed with reactive psychosis, a temporary mental disorder. In her opinion, the applicant could have been unable to understand the wrongfulness of his actions owing to that diagnosis, but only experts could have provided a conclusion as to whether he had been of unsound mind. M.G. stated that, during the applicant’s placement in the hospital, she had developed some doubts as to whether he had been simulating some of his symptoms, but as more evidence had been needed to reach a conclusion on that matter, the diagnosis had remained unchanged. S.S., the second doctor involved in the applicant’s treatment, gave an identical statement.
11. On 20 March 2009 the applicant withdrew his request to question the NFB experts.
12. On 24 March 2009 Z.B., a professor in psychiatry and co-author of the report of the private expert examination commissioned by the applicant, was questioned before the first-instance court. He gave details about the applicant’s prior medical history and involuntary treatment in the relevant facility, stating that he suffered from an organic (schizophrenia-like) hallucinatory disorder, could not have been of sound mind at the material time, and had been dangerous to the public. He stated that the applicant’s condition was not simulated, especially considering that he had suffered from mental health problems since 2005. The applicant’s condition was chronic. Referring to the applicant’s prior examinations, Z.B. noted that a computer tomography and encephalogram would have been desirable for a full picture regarding the applicant’s condition. As regards the reactive psychosis, a different type of diagnosis, it might have coexisted with his diagnosis but had to have ended at a certain date. Z.B. noted that as the applicant’s expert examination had been carried out on an outpatient basis, there had been fewer meetings with him – approximately five.
13. On 25 March 2009, given the conflicting conclusions in the reports resulting from the two examinations, the applicant requested to be admitted to the NFB for an inpatient panel-based forensic psychiatric examination with the participation of State experts and experts of his own choosing. The first‑instance court dismissed the request, concluding that it would delay the proceedings, and stating that it would “comprehensively assess the inpatient forensic psychiatric [examination] and the alternative outpatient [examination and] all the evidence with regard to Mr Shanidze’s mental health”.
14. On 14 April 2009 applicant’s lawyer asked the first-instance court to find the NFB report of 21 October 2008 inadmissible. On 22 April 2009 the court concluded that as there had been no substantial violation of the Code of Criminal Procedure (“the CCP”), it could not consider the evidence inadmissible.
15. On 11 May 2009 the Mtskheta District Court convicted the applicant of aggravated murder, aggravated attempted murder, illegally acquiring and carrying firearms, and hooliganism, finding him mentally sound on the basis of the NFB report. The court reasoned that the expert examination performed by the State facility was more convincing on account of being carried out by State experts than the one performed by private experts. It further noted the statement given by the applicant’s former psychiatrist (see paragraph 10 above) that the applicant had been suspected of simulating his symptoms. The applicant was sentenced to thirty-three years and twenty‑five days’ imprisonment. The applicant appealed.
16. On 26 January 2010 the Tbilisi Court of Appeal (“the appellate court”) examined the applicant’s request to undergo an inpatient panel‑based forensicpsychiatric examination at the NFB (“the panel-based expert examination”). The appellate court granted the applicant’s request and ordered his transfer to the NFB for the examination, together with his entire case file,“in order to implement the expert examination commissioned by the defence”.
17. On 3 February 2010 the applicant was placed in the inpatient psychiatric unit of the NFB. At his request, the expert examination was carried out by a new expert panel composed of State experts and experts chosen by him.
18. On 16 February 2010 the panel-based expert examination was completed and the applicant was returned to prison.
19. On 2 March 2010 the applicant submitted a request to the appellate court to examine the experts who had participated in the panel-based expert examination on his behalf.
20. On 9 March 2010 the applicant submitted before the appellate court that he had not yet received the results of the panel-based expert examination. On the same date the appellate court examined his request of 2 March 2010 and considered it premature, noting that the defence should resubmit it after producing the relevant report before the court.
21. The appellate court held three more hearings, on 16, 23 and 30 March 2010. On the last mentioned date it delivered its judgment. It does not appear that the applicant either produced the expert report or complained that it had not been received.
22. On 30 March 2010 the appellate court upheld the applicant’s conviction by the lower court in full. As concerns the assessment of the evidence regarding the applicant’s mental health, the court stated that the first-instance court had duly assessed the evidence produced by the parties. The appellate court also noted that, at the request of the defence, the applicant had been placed in the NFB and had undergone a panel-based psychiatric examination, but that the resulting report had never been submitted to it by the applicant’s lawyers.
23. It appears from the case-file that on 23 April 2010 the applicant lodged an appeal on points of law against the appellate court’s judgment. He submitted, among other things, that in so far as the appellate court’s finding regarding his failure to submit the results of the panel-based expert examination was concerned, it had been a “right rather than an obligation” to present them. The applicant further noted that as two experts participating in the examination on his behalf had noted their inability to observe him without impediments, “a report reached in such circumstances [could not] be called a report …”
24. On 1 July 2010 the Supreme Court of Georgia rejected as inadmissible an appeal by the applicant on points of law.
B. Relevant domestic law
25. Article 28 § 2 of the Code of Criminal Procedure (“CCP”), as in force at the material time, provided that a criminal prosecution would be discontinued if the offence had been committed by a person who had been certified of unsound mind as a result of a State forensic psychiatric examination.
26. Article 356 of the CCP provided that an expert examination could be commissioned by means of a decision of a court, on the basis of a request by the defence. Article 364 of the Code provided that the defence could arrange for an expert examination at their own initiative and expense. An alternative expert opinion would be admitted into evidence and assessed alongside the other evidence.
COMPLAINT
27. The applicant complained under Article 6 of the Convention that he had not benefited from a fair trial on account of the manner in which the domestic courts had approached the expert evidence concerning his mental health.
THE LAW
28. The applicant complained that in finding him mentally sound to be convicted of the crimes charged, the domestic courts had only relied on the findings of the State expert examination and had failed to give due consideration to the contrasting findings of the alternative private expert examination report obtained by the defence during the proceedings before the trial court. He relied on Article 6 of the Convention, the relevant part of which reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
A. The parties’ submissions
1. The Government
29. The Government submitted that, the application was inadmissible because the applicant had abused the right of application. In particular, he had failed to provide the Court, at the time of submitting the application, with all the information regarding his complaint such as, among other things, the fact that at his request the appellate court had agreed to order an inpatient panel-based expert examination at a State facility involving two experts chosen by him. However, it was because of his own failure to submit the results of that examination that the appellate court had decided on his case without the relevant findings of the experts.
30. The Government also submitted that the application was manifestly ill-founded, arguing that the domestic courts had duly reasoned their decisions to rely on the results of the State expert examination rather than the findings of the alternative private expert examination commissioned by the applicant at the trial stage, and that, in any event, the applicant had failed to submit to the appellate court the results of the panel-based expert examination ordered by that court at his own request based on his complaint regarding the insufficiency of the earlier findings.
2. The applicant
31. The applicant submitted that, at the time of the appeal hearing on 9 March 2010, he had not been aware of the findings of the alternative panel-based expert examination, of which he had duly informed the appellate court. He further submitted that the application lodged with the Court had included a copy of the appellate court judgment dated 30 March 2010. That judgment had noted that he had been placed in the NFB for examination by a panel of experts, but that the defence had not submitted the resulting report to the appellate court for consideration. The Court had therefore been in possession of information regarding the events that had occurred in his case, and he could not therefore be considered to have had any intention of misleading it or of having it decide the matter without full knowledge of all the facts.
32. The applicant reiterated that the first-instance and appellate courts’ reliance on the findings of the State expert examination as opposed to the results of the private expert examination commissioned by him at the trial stage had been in breach of Article 6 § 1 of the Convention.
B. The Court’s assessment
33. The Court reiterates that an application may be rejected as an abuse of the right of individual application if, among other reasons, it was knowingly based on untrue facts. The submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information. However, even in such cases, the applicant’s intention to mislead the Court must always be established with sufficient certainty (see Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014, with further references).
34. Turning to the circumstances of the present case, the Court takes note of the applicant’s argument that at the time of lodging the application with the Court he had submitted a copy of the appellate court’s judgment against him which had indicated the existence of a court-ordered alternative panel-based expert examination concerning him, as well as the fact that its results had not been submitted to the appellate court. However, even accepting that this fact can exclude the existence of any intention on his part to mislead the Court for the application to be inadmissible on account of the abuse of the right of individual application, the Court notes that the latter is inadmissible on another ground.
35. In particular, the core of the applicant’s complaint before the Court concerns the manner in which the expert evidence was dealt with at domestic level. The applicant complained that the findings of the State experts had been unduly considered more important than the report issued by private experts. The Court reiterates in this connection the general principles summarised in its case-law (see Matytsina v. Russia, no. 58428/10, § 169, 27 March 2014, andJ.M. and Others v. Austria, nos. 61503/14 and 2 others, §§ 115-120, 1 June 2017). The Court has already found that in ascertaining the procedural position of experts and their role in domestic proceedings, one must not lose sight of the fact that the opinion given by any court-appointed expert is likely to carry significant weight in the domestic court’s assessment of the issues within that expert’s competence (see Poletan and Azirovikv. the former Yugoslav Republic of Macedonia, no. 26711/07 and 2 others, § 94, 12 May 2016). Furthermore, the requirement of a fair trial does not impose on a trial court an obligation to order an expert opinion or any other investigative measure merely because a party has requested it (ibid., § 95).
36. Against this background, the Court notes that the first-instance court explained its reliance on the findings of the State experts as opposed to the report given as a result of the private expert examination noting that the first report had been more convincing on account of having been carried out by State experts. In this connection, the first-instance court also relied on witness statements, including one by a psychiatrist who had treated the applicant as part of the latter’s compulsory placement in a psychiatric facility and suspected him of simulating his symptoms (see paragraph 10 above). The Court also takes note of the fact that the applicant did not use his opportunity to question the relevant State experts in respect of their findings concerning his mental health (see paragraph 11 above).
37. Furthermore, and more importantly, the appellate court gave the applicant an opportunity to challenge the first-instance court’s approach to the expert evidence by granting his request to undergo an alternative panel-based expert examination with the participation of State experts as well as private experts of his own choosing (see paragraph 16 above). The result of that examination therefore carried significant weight for the applicant’s position at domestic level as it would address the alleged contradictions between the State and private expert reports produced before the lower court. However, the applicant failed to submit the report of the alternative panel-based expert examination before the appellate court. The appellate court’s reasoning suggests that, as the party requesting the performance of the examination, it was for the applicant to submit the results to the court (see paragraphs 16, 20, and 22 above). While the applicant stated that he had not been in possession of the resulting report at the time of the appellate court’s hearing on 9 March 2010 (see paragraphs 20 and 31 above), the Court does not lose sight of the fact that that court held three other hearings after that date – on 16, 23 and 30 March 2010 – before delivering its judgment on the last mentioned date (see paragraphs 21-22 above). The applicant neither explained that the report had not been received nor requested adjournment of the proceedings pending the outcome of the examination. In this connection, when issuing the judgment the appellate court explicitly noted the failure of the defence to submit the report of the alternative panel-based expert examination (see paragraph 22 above). Furthermore, the Court pays particular regard to the fact that the applicant did not address the matter in his appeal on points of law. On the contrary, he merely noted that it had been a right rather than an obligation to submit the report to the domestic courts (see paragraph 23 above). In other words, the applicant did not dispute the appellate court’s finding that it had been his obligation to present the findings of the expert examination, nor did he suggest that he had not yet been in possession of its results.
38. In such circumstances, considering the applicant’s failure to submit the results of the panel-based expert examination to the appellate court and the Supreme Court, as well as this Court, and his silence on the question of whether or not the report had been made available to him, despite the fact that the examination was terminated in February 2010 (see paragraph 18 above), the appellate court’s reliance on the lower court’s findings, including in relation to the granting of precedence to the report given by the State rather than the private experts (compare paragraphs 15 and 22 above) was not arbitrary. It has not therefore been shown that the proceedings against the applicant were unfair within the meaning of Article 6 § 1 of the Convention.
39. Accordingly, the applicant’s complaint under Article 6 § 1 is manifestly ill-founded. The application must therefore be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 10 October 2019.
Milan Blaško Ganna Yudkivska
Deputy Registrar President
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