Last Updated on April 21, 2020 by LawEuro
FIFTH SECTION
CASE OF AMIRIDZE v. GEORGIA
(Application no. 15351/09)
JUDGMENT
STRASBOURG
26 March 2020
This judgment is final but it may be subject to editorial revision.
In the case of Amiridze v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ganna Yudkivska, President,
Yonko Grozev,
Lado Chanturia, judges,
and Victor Soloveytchik, Deputy Section Registrar,
Having regard to:
the application against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Zaza Amiridze (“the applicant”), on 13 March 2009;
the decision to give notice of the complaints concerning the alleged insufficient reasoning of the judgments convicting the applicant, and the alleged hindrance by the State in the effective exercise of the applicant’s right of application to the Georgian Government (“the Government”) and to declare inadmissible the remainder of the application;
the parties’ observations;
Having deliberated in private on 3 March 2020,
Delivers the following judgment, which was adopted on that date:
1. The case concerns, in substance, the alleged inadequacy of reasons provided in the judgments convicting the applicant, and the alleged interference by the State with the effective exercise of the applicant’s right of application by means of, among other things, compromising his ability to communicate in full confidence with his lawyers.
THE FACTS
2. The applicant was born in 1977 and lives in Gori. He was represented by Ms L. Mukhashavria, Mr N. Kvaratskhelia and Mr G. Mariamidze, lawyers practising in Georgia.
3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised as follows.
I. Criminal proceedings against the applicant
5. On 6 December 2006 Ms J.I. (“the victim”), a national of Kyrgyzstan, notified the police that she had been a victim of human trafficking. She implicated the applicant and a certain Ms A.M. According to the victim, she had been A.M.’s guest, together with two other women, also nationals of Kyrgyzstan, and A.M. and the applicant had forced her into prostitution.
6. On 7 December 2006 Ms N.E. and Ms N.U., nationals of Kyrgyzstan who had been staying at A.M.’s home, confirmed the victim’s account of events. They stated, among other things, that the victim had been forced by the applicant and A.M. to engage in sexual activities with men in exchange for money. That money would subsequently be split between the applicant and A.M.
7. On 7 December 2006 the applicant was arrested. During his questioning on the same date, the applicant noted that he had met three women at A.M.’s place. He had not inquired about their identity or where they were from. According to the applicant, they all went to a restaurant, but he never assaulted any of the three women.
8. On 7 December 2006 R.Ts. was questioned. He stated that he had come to know the three women staying at A.M.’s place through the applicant who had brought them to a restaurant on one occasion. According to R.Ts., he became friends with one of the three women. She told him that the victim wanted to escape, fearing physical retribution from the applicant for having lost his phone, and R.Ts. helped her to leave the city.
9. On 8 December 2006 the applicant was charged, together with A.M., with human trafficking. According to the charges, the victim was staying at A.M.’s home at the latter’s invitation and the applicant used physical force and threats thereof to compel the victim to engage in sexual activities with men in exchange for money. The money would subsequently be split between him and A.M.
10. On 21 December 2006 Mr V.G. gave a statement to the investigating authorities. He noted that A.M. had been his next-door neighbour and the two had been on friendly terms. According to V.G., in October 2006 A.M. had three female guests: J.I. (the victim), N.E., and N.U., all Kyrgyzstani nationals. One evening V.G. suggested that they all go to a restaurant. The applicant joined them, presenting himself as A.M.’s friend. Towards the end of that evening V.G. asked A.M. to translate to the victim that he would like to spend the night with her. Subsequently V.G. took the victim to A.M.’s home and had sexual intercourse with her. V.G. explained that he had not paid, as A.M. would not have asked him to pay given their friendship. After about a month he learned from one of the two Kyrgyzstani women also staying at A.M.’s place that A.M. and the applicant had been forcing the victim to engage in sexual encounters with men in exchange for money.
11. During the court hearing of 21 March 2007 the victim confirmed her pre-trial statement, noting that she had been forced into prostitution by the applicant and A.M. On 28 March 2007N.E. and N.U. changed their statements alleging police pressure at the investigation stage; they now stated that instead of being forced, the victim had actively sought men for sexual encounters in exchange for money.
12. During the court hearing of 4 April 2007 V.G. retracted his earlier statement stating that he had been drunk at the time of giving the statement and had been misled by the investigator. Subsequently, on 17 April 2007, he submitted a written statement to the Gori City Court, according to which he maintained his pre-trial statement and requested the court to rely on its content. He explained that the retraction had been caused by his pity for A.M., the latter being his next-door neighbour.
13. On 22 May 2007 the Gori Regional Court found the applicant guilty as charged (see paragraph 9 above), and sentenced him to twelve years’ imprisonment. A ban of three years on his holding a public office or carrying out professional activities was imposed as an additional sentence. A.M. was also found guilty.
14. The Gori City Court based the applicant’s conviction on various items of evidence, including the search and seizure reports, the victim’s account and the witness testimony. Among other evidence, the court relied on the pre-trial statement given by V.G. (see paragraph 10 above). The Gori City Court noted that the parties had neither contested V.G.’s submissions explaining the retraction (see paragraph 12 above), nor requested that he be recalled as a witness.
15. As regards the retraction of statements by N.E. and N.U. (compare paragraphs 6 and 11 above), the court did not consider their submissions trustworthy. It noted in this respect that three investigators and one interpreter had stated that no pressure had been exerted on these witnesses, the latter having voluntarily cooperated with the investigation.
16. The court also took into account the statement given by R.Ts. – the man who helped the victim to escape (see paragraph 8 above). However, it noted that R.Ts. had partly changed his pre-trial statement to suggest that, even if he helped the victim escape, it had been the victim who had proactively sought sexual encounters. The court considered that R.Ts. had altered his initial statement in order to support N.E.’s version of the events as the latter had become his close friend.
17. The Gori City Court rejected the respective witness statements given by A.M.’s mother and son who had suggested, among other things, that the victim had been seeking sexual encounters voluntarily and to A.M.’s dismay. The Court considered that these statements aimed at shielding A.M. from criminal responsibility. The court further noted that A.M.’s mother had in fact admitted having heard the victim screaming on one occasion and A.M.’s son admitted, contrary to the defendants’ submissions, having witnessed the victim being driven by various men away from their house, where she had been living temporarily.
18. The applicant appealed on 20 June 2007 arguing that he had not subjected the victim to conditions akin to slavery and that the domestic court had erred in its application of the law and the assessment of the evidence in that regard. He further stated, among other things, that the first-instance court had unfairly rejected witness statements given by A.M.’s mother and son, and had not given due consideration to the witness statements given by N.E. and N.U. It does not appear that the applicant requested that any witnesses be questioned again.
19. During the appellate proceedings before the Tbilisi Court of Appeal the applicant requested that the victim be questioned again in relation to allegedly having lied about having been pregnant and having stayed at a hotel. The request was dismissed on the grounds that the circumstances referred to by the applicant had not been newly discovered and, according to the established procedure, should have been raised before the lower court.
20. In his testimony before the appellate court the applicant suggested that his prosecution had been fabricated by the law-enforcement authorities as a punishment for his alleged refusal to offer a bribe to a judge of the Gori City Court who they had allegedly wanted to arrest. The applicant stated that he had not mentioned this fact before the lower court as he had worked as a bailiff at the same court before having been arrested.
21. On 29 January 2008 the Tbilisi Court of Appeal upheld the applicant’s conviction (see paragraphs 13-14 above). The appellate court concluded that the lower court had (i) adequately reasoned its judgment; (ii) duly addressed the submissions made by the applicant; (iii) established all the relevant facts by means of a correct analysis of the case-file material; and (iv) had given correct legal analysis of those facts. In support of its position, the appellate court reproduced in its judgment the relevant findings of the lower court (see paragraphs 13-17 above). The Court of Appeal also clarified – in response to the applicant’s argument about the application of the relevant provision of the Criminal Code – that the crime of human trafficking, as defined by law, had multiple independent elements and that if one was proved, the absence of another did not absolve a defendant of criminal responsibility. The applicant appealed on 28 February 2008.
22. On 15 September 2008 the Supreme Court of Georgia declared the applicant’s appeal on points of law inadmissible. Quoting the relevant provision of the Criminal Procedure Code, the court held that “the case [was] not important for the development of the law and coherent judicial practice, the [contested] judgment [did] not differ from the Supreme Court’s existing practice in such matters, and the appellate court [had] not committed any major procedural flaws during its examination which could have significantly affected its outcome.”
II. The application to the Court
23. On 13 January 2009 the applicant and his lawyers started preparing the application to the Court. The applicant met his representatives on 13 January, 6 February, and 4 March 2009. All three meetings were held in the meeting room of Tbilisi Prison No. 1 (“the meeting room”).
24. The meeting room measured about 20 square metres and was divided into four parts by thin boards of approximately 2 metres in height. Each partition was equipped with a door but had no ceiling or sound insulation. The largest part was occupied by the representative of the prison administration, while the remaining three sections of approximately 3 square metres each were designated for the use of prisoners.
25. The door was kept open during meetings between the applicant and his representatives at the request of the representative of the prison administration. The latter allegedly requested the applicant to sit onto the right side of the table in order that the representative could observe him from a distance of 2 metres. The meeting rooms were also equipped with video cameras.
26. On 16 February 2009 one of the applicant’s representatives lodged an application with the head of the Prisons Department, asking him to explain the legal basis for the way in which the meeting room in the prison had been arranged and how long it would take to improve those arrangements (see paragraphs 24-25 above), which rendered the applicant’s right to defence difficult to exercise. A similar request was addressed to the Minister of Prisons, Probation, and Legal Assistance on 19 February 2009 (“the Minister of Prisons”). No response appears to have been received from either of the authorities.
27. On 25 February 2009 one of the applicant’s representatives was allegedly refused a meeting with the applicant by the prison authorities without being given any reason. The applicant’s representative wrote separate applications to three different authorities: the prison director, the director of the Prison Department and the Minister of Prisons. In all three applications an explanation for the refusal and its legal grounds was requested. It was also noted, in the context of the ease of access to the applicant, that the representatives had managed to meet him on previous occasions “without any problems”. Unlike the applications addressed to the prison director and the director of the Prison Department, the one addressed to the Minister of Prisons contained an apparent typing error, indicating 25 February 2006 instead of 25 February 2009 as the date of the incident.
28. On 4 March 2009 the applicant met with his representative. The latter provided the applicant with the application form and case material, which were allegedly confiscated immediately after the representative had left the prison. On 9 March 2009 the applicant’s representative informed the head of the Prisons Department, the director of Tbilisi Prison No. 1 and the Minister of Prisons of the alleged confiscation of the relevant materials.
29. The application and its supporting documentation were submitted to the Court on 13 March 2009.
30. On 26 March 2009 the applicant received a response from the Deputy Minister of Prisons in respect of his applications concerning the alleged refusal to allow a meeting with his representatives and the alleged confiscation of materials (see paragraphs 27-28 above). The reply was based on the explanations given by the prison director that (i) the latter had not been employed in the prison concerned on 25 February 2006 and could not have refused to allow the meeting between the applicant and his representatives on that date, and (ii) the allegation as to the confiscation of case-file materials was untrue as the prison official merely visually inspected the applicant without confiscating the materials from him.
III. Subsequent developments
31. On 5 February 2013 Gori City Court applied the Amnesty Act of 2012 to the applicant’s conviction and reduced the sentence to nine years’ imprisonment.
32. On 30 September 2013 the applicant’s remaining time in prison (two years, two months and seven days) was suspended on probation, and he was granted early release.
RELEVANT LEGAL FRAMEWORK
33. The Criminal Code (1999), as it was worded at the material time, defined the crime of human trafficking as follows:
Article 143(1) [Human trafficking]:
“1. The purchase or sale of human beings, or any unlawful transactions in relation to them, as well as the recruitment, carriage, concealment, hiring, transportation, handing-over, harbouring or receiving of human beings carried out by means of threats, the use of force or other forms of coercion, abduction, blackmail, fraud, deception, by abuse of a position of vulnerability or power or by means of giving or receiving payment or benefits to achieve the consent of one person [to being under the] control [of] another person, for the purpose of exploitation shall be punished by imprisonment for a term of seven to twelve years, with deprivation of the right to hold an official position or to carry out a particular activity for one year.
2. The same action committed:
a) knowingly against a pregnant woman;
b) knowingly against a helpless person or a person who financially or otherwise depends on the offender;
c) by abusing an official position;
shall be punished by imprisonment for a term of nine to twelve years, with deprivation of the right to hold an official position or to carry out a particular activity for two years.
3. The same action committed:
a) repeatedly;
b) against two or more persons;
c) by taking the victim abroad;
d) using violence dangerous to life or health (or the threat thereof);
shall be punished by imprisonment for a term of twelve to fifteen years, with deprivation of the right to hold an official position or to carry out a particular activity for three years. …
NB:
1. For the purposes of the present [Article] and Article 143(2), exploitation is [considered to mean] the use of human beings for their involvement in forced labour or services, criminal or other antisocial activities or prostitution, their sexual exploitation or the provision of other types of services, and placing them in situations similar to slavery or modern-day forms of slavery, as well as forcing the removal, transplantation or other use of an organ, part of an organ or tissue of a human body. Subjecting a human being to modern-day slavery shall mean the confiscation of his or her personal identification documents; [imposing] a limitation on freedom of movement; a prohibition on the maintenance of contacts with family (including written and telephone communication); cultural isolation; keeping a person in degrading conditions; or forcing the person to perform work without payment or with inadequate payment. A person’s consent to his or her premeditated exploitation is irrelevant [for the purposes of the present provision]. …”
THE LAW
I. SCOPE OF THE CASE
34. In his reply to the Government’s observations, the applicant raised new complaints about his inability to have the criminal proceedings re-opened and the domestic courts’ refusal to grant his application to have the criminal record expunged. The Court notes that these new complaints are not an elaboration of the applicant’s original complaints, on which the parties have commented. The Court considers, therefore, that it is not appropriate to take up these matters in the context of the present case.
II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
A. Reasoning of the domestic court judgments
35. Relying on Article 6 §§ 1 and 3 (d) of the Convention the applicant complained that the domestic courts had insufficiently reasoned his conviction. Being the master of the characterisation to be given in law to the facts of a case (see Molla Sali v. Greece [GC], no. 20452/14, § 85, 19 December 2018, with further references), the Court found it appropriate to give notice of this complaint to the Government solely under Article 6 § 1 of the Convention, which reads as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
1. The parties’ submissions
36. The Government maintained that the domestic legislation and its implementation aimed at combatting human trafficking were in full compliance with international and European standards, and that the domestic courts had provided sufficient reasons justifying the applicant’s conviction.
37. The applicant maintained that the domestic courts failed to provide sufficient reasons in their judgments of conviction, especially in relation to their treatment of various witness statements available in the case-file materials. Furthermore, the applicant provided the Court with a letter dated 29 March 2019 written by a person claiming to be a former judge of the Gori City Court. The person in question suggested that he had heard rumours that the law-enforcement authorities had wanted to frame him for corruption, and the applicant’s prosecution and the eventual conviction must have been fabricated owing to the applicant’s alleged refusal to cooperate with law-enforcement authorities in that respect.
2. The Court’s assessment
38. The relevant general principles concerning the issue of alleged unfairness resulting from reasoning given in respect of a judgment – as well as the administration of evidence by the domestic courts – have been summarised by the Court, among other authorities, in the cases of Moreira Ferreira v. Portugal (no. 2) ([GC]no. 19867/12, § 83, 11 July 2017), and Rostomashvili v. Georgia, (no. 13185/07, §§ 54-55, 8 November 2018).
39. The Court further notes that where the domestic judicial authorities are confronted by several conflicting versions of the truth, offered by the same person, their final preference for a statement given to the investigating authorities over one given in an open court does not in itself raise an issue under the Convention where this preference is substantiated and the statement itself was given of the person’s own volition (see, among other authorities, Lutsenko v. Ukraine, no. 30663/04, § 49, 18 December 2008, and Doorson v. the Netherlands, 26 March 1996, § 78, Reports 1996‑II).
40. Turning to the circumstances of the present case, the Court observes that all of the applicant’s misgivings concerning the domestic courts’ treatment of witness evidence were given an explicit reply by the first-instance court (see paragraphs 13-17 above). The Court finds it particularly important to note that the Gori City Court duly justified its approach when relying on the pre-trial statements of V.G., and noted the absence of the applicant’s objections or requests to recall the witness concerned (see paragraph 14 above). In such circumstances, the Court does not find the Tbilisi Court of Appeal’s method of succinctly endorsing the lower court’s findings (see paragraph 21 above) arbitrary or unreasonable.
41. As regards the Tbilisi Court of Appeal’s refusal to question the victim anew, the Court notes that the refusal was duly reasoned. In particular, the appellate court found that the request did not relate to any newly discovered circumstances and was therefore to be dismissed (see paragraph 19 above). This approach of the appeal court, in the Court’s view, is justifiable, particularly since the victim had been examined before the trial court with the participation of the applicant and his lawyer (see paragraph 11 above).
42. As to the appellate court’s silence regarding the applicant’s suggestion, voiced for the first time in the testimony given to that court and not supported by any evidence, that his prosecution had been fabricated to punish him for not cooperating with law-enforcement authorities (see paragraph 20 above), the Court takes note of the fact that it had not been the applicant’s main line of defence but an argument voiced at the later stage of proceedings, in the face of multiple items of incriminating evidence duly considered by the domestic courts. In such circumstances, the applicant’s argument did not require a separate reply, in the light of the principles established in the Court’s case-law (see Moreira Ferreira, cited above, § 84). This finding cannot be offset by the letter dated 29 March 2019 submitted by the applicant to the Court (see paragraph 37 above). The document in question does not appear to have been submitted to the domestic law-enforcement or judicial authorities. Therefore the Court is not in a position to speculate on its provenance, the identity of the author, or its probative value. In any event, the content of the letter in question does not affect the domestic courts’ findings of fact and law based on the evidence available in the case-file material.
43. Finally, the Court notes that the applicant was duly represented throughout the proceedings and was therefore afforded ample opportunity, which he took, to state his case before the domestic courts and to challenge the admissibility and use of the evidence. Therefore the applicant’s complaint under Article 6 § 1 before the Court raises issues which are of no more than a fourth-instance nature, and which the Court has a limited power to review under that provision (see Karpenko v. Russia, no. 5605/04, § 82, 13 March 2012, with further references).
44. It thus follows that the applicant’s complaint under Article 6 § 1 of the Convention is manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
B. The manner in which evidence had been taken
45. The applicant further complained under Article 6 of the Convention that certain evidence had been obtained in breach of procedural legislation regarding wiretapping.
46. However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
47. Accordingly, this complaint is also manifestly ill-founded and must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 34 OF THE CONVENTION
48. The applicant complained that the conditions in the meeting room of Tbilisi Prison No. 1, the authorities’ refusal to allow a meeting with his representative on one occasion, and the confiscation of the materials related to his application before the Court had constituted an undue interference with his right to communicate in full confidence with his lawyers, and to have adequate facilities for the preparation of his defence. He relied on Article 6 § 3 (b)-(c) of the Convention. Being the master of the characterisation to be given in law to the facts of a case (see paragraph 35 above), the Court gave notice of this complaint to the Government under Article 34 of the Convention. The provision in question reads as follows:
“The Court may receive applications from any person, non‑governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”
A. The parties’ submissions
49. The Government submitted that the applicant’s submissions were to be declared inadmissible as manifestly ill-founded. In particular, the applicant had received a response to his applications noting that the applicant’s lawyers had been able to meet him without hindrance, and that the prison guard had not confiscated the case-file materials. As regards the conditions in the meeting room of the prison concerned, the Government noted that the CCTV camera had not made any audio recordings, in line with the prohibition to that end set out in the domestic legislation. Furthermore, the applicant had not been hindered in his exercise of the right of application in view of the fact that he had admitted before the relevant authorities that the meetings with the lawyers had taken place “without any problems”; he had met his representatives on several occasions; the applicant had been able to freely sign the relevant documents; and his lawyers had been able to lodge the application with the Court.
50. The applicant submitted that (a) the conditions in the meeting room made it impossible to have a confidential consultation with his representatives concerning the application to be submitted to the Court, and that the domestic authorities had failed to respond to his complaints in that respect; and (b) his representatives were not allowed to meet him in prison on 25 February 2009. The applicant did not respond to the Government’s submission that the case-file material had not been confiscated from him, but noted that he reiterated the facts and complaints set out in the initial application form.
B. The Court’s assessment
51. The Court reiterates at the outset that a complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Ryabov v. Russia, no. 3896/04, § 56, 31 January 2008, with further references). Therefore, the Government’s submissions on admissibility will be considered in the context of the merits of the applicant’s complaint under Article 34 of the Convention.
52. The Court reiterates that the obligation on a Contracting State under Article 34 of the Convention not to hinder the right of individual application embodies the principle that it is open to individuals to complain of its alleged infringements in Convention proceedings (see, among other authorities, Cano Moya v. Spain, no. 3142/11, § 43, 11 October 2016; Ryabov v. Russia, cited above, § 56; and Poleshchuk v. Russia, no. 60776/00, § 27, 7 October 2004).
53. It is of the utmost importance for the effective operation of the system of individual application instituted by Article 34 of the Convention that applicants or potential applicants are able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Sisojeva and Others v. Latvia (striking out) [GC],no. 60654/00, § 115, ECHR 2007‑I; Salman v. Turkey [GC], no. 21986/93, § 130, ECHR 2000‑VII; and Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996‑IV). In this context, “pressure” includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Konstantin Markin v. Russia [GC], no. 30078/06, § 158, ECHR 2012 (extracts)).
54. The Court has found the confidential communication with one’s lawyer an important element in exercising the right of application guaranteed by Article 34 of the Convention (see Cebotari v. Moldova, no. 35615/06, §§ 58-60, 13 November 2007). An interference with the lawyer-client privilege and thus with the right of individual application does not necessarily require an actual interception or eavesdropping to have taken place. A genuine belief held on reasonable grounds that their discussion was being listened to might be sufficient, in the Court’s view, to limit the effectiveness of the assistance which the lawyer could provide. Such a belief would inevitably inhibit a free discussion between lawyer and client and hamper the client’s right to be effectively defended or represented (see Oferta Plus S.R.L. v. Moldova, no. 14385/04, § 147, 19 December 2006, and Cebotari, cited above, § 60).
55. Turning to the circumstances of the present case, the Court observes that the applicant’s complaint under Article 34 of the Convention has three aspects: (i) the conditions in the meeting room which allegedly compromised the confidentiality of consultations with his lawyers in the process of preparing the application to be submitted to the Court; (ii) the alleged refusal to allow a meeting with his representatives on one occasion; and (iii) the alleged confiscation of case-file materials from him.
56. As regards the first element of the applicant’s complaint, the Court considers misdirected the Government’s argument that the applicant had contradicted himself when admitting that the meetings had proceeded “without any problems”. In particular, that remark had been made in a different context and related to the earlier ease of access to the applicant as opposed to the alleged denial of access on 25 February 2009 (compare paragraphs 27 and 49 above).
57. Furthermore, the Court does not lose sight of the fact that none of the relevant domestic authorities responded to the applicant’s applications concerning the compromised confidentiality of communications (compare paragraphs 26 and paragraphs 27-28 above). As to the Government’s submissions before the Court, apart from noting that the CCTV cameras had not made audio recordings of the meetings (which the applicant did not argue had been the case), the Government did not address the domestic authorities’ failure to respond to the applicant’s complaints. Nor did they suggest any argument or evidence to counter the applicant’s detailed description of the conditions in that meeting room. In such circumstances, the Court is led to draw negative inferences and find it established “beyond reasonable doubt” that the meeting room designated for lawyer-client meetings was set up in the manner described by the applicant (see paragraphs 24-25 above).
58. In this context, the Court considers that as the meetings were already subject to video surveillance, the set-up of the meeting room and the request that the applicant not close the door of the meeting room and sit within sight of the prison guard, for which no explanation was provided, could not have been justified by security considerations. This setting offered no privacy and could have led to a genuine belief that the discussions were being listened to by the prison staff, such a belief inevitably inhibiting a free discussion between the lawyers and their client, constituting a hindrance to the effective exercise of the applicant’s right of individual application.
59. In view of the above, the Court does not consider it necessary to address the remaining aspects of the applicant’s complaint under Article 34 of the Convention.
60. The foregoing considerations are sufficient for the Court to conclude that the respondent State has failed to comply with its obligations under Article 34 of the Convention by failing to ensure confidential communication between the applicant and his lawyers in the process of preparing his application to the Court.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
61. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A. Damage
62. The applicant claimed 33,562 euros (EUR) in respect of pecuniary damage related to the loss of earnings and health deterioration due to his imprisonment, and EUR 60,000 in respect of non-pecuniary damage.
63. The Government submitted that the claims were unsubstantiated and highly excessive.
64. The Court does not discern any causal link between the violation found and the pecuniary damage alleged; it therefore rejects this claim. On the other hand, the Court accepts that the applicant has suffered non‑pecuniary damage which cannot be compensated for solely by the acknowledgement of a violation. The Court therefore finds it appropriate, in the circumstances of the present case, to award EUR 1,200.
B. Costs and expenses
65. The applicant also claimed EUR 2,700 for the costs and expenses incurred before the domestic courts and EUR 1,408 for legal assistance, postage, and other administrative costs and expenses incurred in the proceedings before the Court. He did not submit any legal or financial documents in support of this claim at the time of making the submissions. Following the expiry of the time-limit fixed for that purpose, the applicant re-submitted, of his own initiative, claims under Article 41 of the Convention, and provided the Court with a copy of a contract dated 16 March 2009. The contract related to the services to be provided by the applicant’s three representatives before the Court (see paragraph 2 above) but it was only signed by one of them. As per the terms of the contract, the applicant was to pay 2,000 Georgian laris (GEL – approximately EUR 910) at the moment of signature and the same amount, within two years of signing the contract. No proof of such payment was submitted to the Court. The applicant did not clarify the reasons behind failing to comply with the relevant time-limit.
66. The Government submitted that the claims were excessive and unsupported by any evidence.
67. The Court reiterates that in order for costs and expenses to be reimbursed under Article 41, it must be established that they were actually and necessarily incurred and were reasonable as to quantum (see, for example, Nilsen and Johnsen v. Norway [GC], no. 23118/93, § 62, ECHR 1999-VIII, and Boicenco v. Moldova, no. 41088/05, § 175, 11 July 2006). In accordance with Rule 60 § 2 of the Rules of Court, itemised particulars of all claims must be submitted within the time-limit fixed for the submission of the applicant’s observations on the merits unless the President of the Chamber directs otherwise. Given the applicant’s unexplained failure to comply with the above requirement, the Court rejects the claim in respect of costs and expenses.
C. Default interest
68. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the complaints under Article 6 of the Convention inadmissible;
2. Holds that the respondent State has failed to comply with its obligations under Article 34 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 1,200 (one thousand two hundred euros) to be converted into the currency of the respondent State at the rate applicable at the date of settlement, plus any tax that may be chargeable, in respect of non‑pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
4. Dismisses the remainder of the applicant’s claim for just satisfaction.
Done in English, and notified in writing on 26 March 2020, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Victor Soloveytchik Ganna Yudkivska
Deputy Registrar President
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