Last Updated on March 25, 2021 by LawEuro
INTRODUCTION. The case concerns the alleged unfairness, within the meaning of Article 6 § 1 of the Convention, of the criminal proceedings conducted against the applicants on account of the manner in which the principal evidence against them was obtained and used.
FIFTH SECTION
CASE OF TLASHADZE AND KAKASHVILI v. GEORGIA
(Application no. 41674/10)
JUDGMENT
STRASBOURG
25 March 2021
This judgment is final but it may be subject to editorial revision.
In the case of Tlashadze and Kakashvili v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Ganna Yudkivska, President,
Stéphanie Mourou-Vikström,
Lado Chanturia, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 41674/10) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Georgian nationals, Mr Tamaz Tlashadze (“the first applicant”) and Mr Roman Kakashvili (“the second applicant”), on 29 June 2010;
the decision of 10 August 2016 to give notice of the complaints under Article 6 § 1 and Article 8 of the Convention to the Georgian Government (“the Government”) and to declare the remainder of the application inadmissible pursuant to Rule 54 § 3 of the Rules of Court;
the parties’ observations;
Having deliberated in private on 4 March 2021,
Delivers the following judgment, which was adopted on that date:
1. The case concerns the alleged unfairness, within the meaning of Article 6 § 1 of the Convention, of the criminal proceedings conducted against the applicants on account of the manner in which the principal evidence against them was obtained and used.
THE FACTS
2. The first applicant was born in 1962 and lives in Gori. The second applicant was born in 1959 and lives in the village of Ruisi. The applicants were represented by Ms N. Jomarjidze of the Georgian Young Lawyers’ Association (GYLA).
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. Arrest and search of the applicants
A. The first applicant
5. On 15 June 2009 an investigator of the Gori police department, G.N., prepared a brief handwritten report addressed to the deputy head of the department stating that he had received “operational information” (implying information received from an anonymous source) that the first applicant was “walking down the Gorki Street with a narcotic substance in his pocket”. A preliminary investigation was immediately opened against the first applicant under Article 260 § 1 of the Criminal Code for the unlawful purchase and possession of drugs.
6. According to the official version of events, on the evening of 15 June 2009 the first applicant was stopped by three police officers, namely G.N. (the investigator in charge of the search and arrest), G.V. and D.S. A decision to carry out a personal search in urgent circumstances was taken by G.N. based on the “operational information” (see the preceding paragraph).
7. According to the body-search report drawn up in respect of the first applicant, he had been stopped and searched on the spot between 11.25 p.m. and 11.40 p.m. The report contained a note by the investigator indicating that the applicant had declined to ask for attesting witnesses. A further note in the report stated that the search had been carried out in “urgent circumstances”, under Article 102 § 4 of the Code of Criminal Procedure (authorising the implementation of a search without the attendance of witnesses), in order to prevent any illegal substance from being concealed, damaged or destroyed. The report also stated that the first applicant had shown resistance during the search. As a result of the body search of the first applicant, a silver sachet containing half a white pill (later confirmed to contain a drug called buprenorphine) was discovered. The report on the body search was signed by G.V. and D.S., and stated that the first applicant had refused to sign it for reasons unknown.
8. At 11.45 p.m. the applicant was formally arrested as a suspect. The report on the arrest indicated that it had been drafted at the time and place of the actual arrest, and that the arrest had been based on the first applicant having had “a clear trace of a crime” on his person. The report contained a note by the investigator stating that the first applicant had acquainted himself with the content of the document in question but had refused to sign it for reasons unknown.
9. It transpires from the case-file material that a medical examination carried out on 16 June 2009 found that the applicant was not under the influence of drugs.
10. On 16 June 2009 the Gori District Court, by means of written proceedings and without the applicant’s or his lawyer’s participation, granted a post factum request from the prosecutor to confirm the lawfulness of the search and seizure measures. The request had been based exclusively on the material provided by the prosecutor, such as the report on the existence of the “operational information” (see paragraph 5 above), the decision to carry out the body search in urgent circumstances, and the report on the body search of the first applicant. The court’s decision, written in a summary manner, listed several domestic-law provisions without further elaboration, and stated that the prosecution’s request had revealed that the search had been conducted as a matter of urgency and had complied with the procedural requirements of the relevant legislation. It therefore declared the body search of the first applicant lawful. It is unclear when the decision was served on the applicant.The decision provided for an appeal period of seventy-two hours. The applicant did not avail himself of this opportunity.
11. On 16 June 2009 the first applicant gave a statement to the investigator, relating his version of events. According to the applicant’s account, between 10.30 p.m. and 11 p.m. on 15 June 2009 he was approached by three police officers as he was walking down the street. They asked him to undergo a drug test, to which he agreed. However, instead of being taken to a medical facility, he was taken to a police station. It was there that he was searched. No drugs were found at first. He was then handcuffed. Subsequently, an officer searching him a second time retrieved from his trouser pocket a sachet which he had not seen before. The applicant said that the sachet had been planted on him by the police officers, and that it must have been on account of his active participation in anti-government protests.
12. The first applicant was charged with the unlawful purchase and possession of a narcotic substance under Article 260 § 1 of the Criminal Code. The charges were based on (a) the reports of the body search and arrest, (b) witness statements given by the police officers and (c) the forensic expert’s opinion confirming that the pill found on the first applicant’s person was buprenorphine, a narcotic substance.
B. The second applicant
13. On 17 June 2009 the deputy head of the Kareli police department prepared a brief report addressed to the head of the department, stating that he had been made aware that the second applicant possessed a Makarov‑type pistol which he “often carried on his person”. A preliminary investigation was immediately opened against the second applicant under Article 236 §§ 1 and 2 of the Criminal Code for the unlawful purchase, possession and carrying of a gun.
14. According to the official version of events based on a report on the arrest and body search of the second applicant drawn up at 1.20 p.m. on 17 June 2009, the second applicant had been arrested by three police officers, namely L.K. (the investigator in charge of the arrest and search), G.T. and N.M., in the village of Ruisi at 12.40 p.m. that same day. He had been subjected to a body search on the spot, between 12.48 p.m. and 1 p.m. The report contained a list of possible grounds for arrest, one of which had to be marked, including: (a) the individual concerned being caught at the moment of committing a crime or in the immediate aftermath; (b) an eyewitness pointing out the arrested individual; (c) the individual concerned having on his or her person an obvious sign of a crime; and (d) the individual concerned having been identified by a victim. None of the grounds was marked. The report noted that the second applicant had been informed of his right to invite attesting witnesses, with the relevant section left blank. It also referred to the fact that the personal search had been carried out in “urgent circumstances” under Article 102 § 4 of the Code of Criminal Procedure (authorising the implementation of a search without the attendance of witnesses). Although the section in the report concerning the urgency of the measure indicated that the nature of the “real risk of the evidence being destroyed or concealed” had to be specified, that section was left blank, followed by a printed remark which read “I carried out the search without the participation of witnesses”. According to the report, as a result of the personal search of the second applicant the investigators found, among other things, a Makarov-type pistol. A handwritten note at the end indicated that the applicant had refused to sign the report, on the grounds that the gun had not belonged to him.
15. A report on the notification to the suspect of his defence rights was drawn up at 12.41 p.m. A comment by the investigator at the end of the report indicated that the second applicant had refused to acquaint himself with the report or to sign it.
16. On 17 June 2009 L.K. (see paragraph 14 above) questioned G.T. and N.M. as witnesses. G.T. and N.M. confirmed, among other things, that the second applicant’s arrest and search had been based on the “operational information”. N.M. indicated that the team involved in the investigation of the applicant’s case had numbered four individuals.
17. On 18 June 2009 the Khashuri District Court, by means of written proceedings and without the applicant’s or his lawyer’s participation, granted a post factum request from the prosecutor to confirm the lawfulness of the search and seizure measures. The request had been based exclusively on the material provided by the prosecutor; however, it is not apparent from the decision which materials were presented to the court, and if the court had been given access to the information which had formed the basis for the relevant investigative measures (see paragraph 13 above). The court’s decision, written in a summary manner, listed several domestic-law provisions without further elaboration, and stated that the prosecution’s request had revealed that the search had been conducted as a matter of urgency, in order to avert the risk of any illicit items being damaged or concealed, and had complied with the procedural requirements of the relevant legislation. The court therefore declared the personal search of the second applicant lawful. It is unclear when the decision was served on the applicant.The decision provided for an appeal period of seventy-two hours. The applicant did not avail himself of this opportunity.
18. On 18 June 2009, protesting his innocence, the second applicant refused to give a statement to the investigator. He presented his version of events later, during the trial (see paragraphs 31-32 below).
19. The second applicant was charged, under Article 236 §§ 1 and 2 of the Criminal Code, with the unlawful purchase, possession and carrying of a gun and ammunition. The charges were based on (a) the arrest and personal search report, (b) witness statements given by the police officers and (c) the forensic expert report on the nature of the gun and whether the ammunition found in it had been usable.
II. The applicants’ conviction
A. The first applicant
20. On 22 July 2009 G.N., who had been the chief investigator in the first applicant’s case, was questioned before the trial court. According to his account, sometime in the evening of 15 June 2009, before 11 p.m., he received operational information about the applicant’s possibly carrying drugs on his person, and a team of police officers went out to verify that information. The applicant was approached by the police officers. On being asked to present any illicit items he might have been carrying, he tried to flee. Accordingly, he was apprehended and searched on the spot. The officers found the drug, and subsequently transported the applicant to the police station. G.N. specified that although the applicant had not been granted the status of a suspect, they had searched him on account of the operational information about him and the risk that he would dispose of the evidence. G.N. stated that the applicant had been informed of his rights and had not requested the attendance of a witness during the search. He stated that the applicant had been arrested in front of a building on which was marked the number “100”.
21. On 30 July 2009 D.S., another officer participating in the search and arrest operation, gave a statement. He explained that the team of officers had gone out to apprehend the applicant “within seconds” of receiving the operational information. He did not remember where the decision to carry out the search in urgent circumstances had been drafted. As to the report on the personal search, that had been drafted on the spot. He did not remember whether the applicant had attempted to flee but said that the applicant had refused to be searched and therefore the search had been involuntary. D.S. did not remember whether the applicant had been handcuffed. He stated that the applicant had been arrested in front of a building which the officers assumed to be no. 100, although there had been no sign of that number and they had inferred it from the sequence of house numbers in the street.
22. On 30 July 2009 G.V., the third officer participating in the applicant’s search and arrest, gave his statement to the trial court. Among other things he explained that the applicant had actively resisted the search, yelling loudly, and that the officers had forcibly carried out a personal search of him. He stated that the applicant had been arrested in front of a building that the officers assumed to be no. 100, although there had been no sign of that number and they had inferred it from the sequence of house numbers in the street.
23. During the trial before the Gori District Court, the first applicant requested that the court declare the search and seizure measure unlawful on the grounds that he had been arrested unlawfully, in breach of the applicable procedure. Among other arguments, the applicant contended that the investigator had not indicated in his decision a specific ground for proceeding with the personal search in the absence of judicial authorisation, or the nature of the urgency for carrying out the personal search without a judicial warrant; that his procedural rights, including the possibility of inviting attesting witnesses to be present, had not been explained to him prior to the personal search; that he had been searched without having a clear procedural status; and that he had in fact been searched at the police station rather than on the spot. The applicant maintained that he had not been a drug user, as confirmed by the medical examination, and that the drug had been planted on him by police officers in retaliation for his membership of an opposition political party and his participation in anti-government rallies that had taken place between 9 April and 26 May 2009. He also indicated that the witness statements by the police officers contained certain ambiguities and were not trustworthy.
24. The trial court rejected the defence’s application to have the search report declared inadmissible evidence, noting that the officers questioned as witnesses had confirmed that the search had been carried out on the spot rather than at the police station. Although the search had preceded the arrest by seventeen minutes, which had been “in breach of procedure”, such a breach was not, in the court’s opinion, “of a substantial nature such as to lead to the finding that the search report was inadmissible”. Furthermore, the trial court noted that “owing to the fact that the lawfulness of such evidence had already been assessed by a court” in the post-search review, and that the report was made by an authorised person in line with the relevant procedure, there had been no grounds to declare it inadmissible.
25. On 14 August 2009 the Gori District Court convicted the applicant as charged (see paragraph 12 above). The court noted, without further elaboration, that it could not share the applicant’s view regarding the case, as the commission of the crime imputed to him was proved beyond reasonable doubt, based on a set of mutually corroborated items of evidence such as (a) the witness statements given to the court by the officers participating in the applicant’s search and arrest, (b) the report on the personal search, (c) the decision to add the retrieved drug as evidence to the case file, and (d) the forensic report determining the nature of the drug found on the applicant’s person. Consequently, the first applicant was sentenced to three years’ imprisonment. While the case-file material available to the district court appears to have included the report on the operational information (see paragraph 5 above), no reference was made to it in the judgment.
26. On 9 September 2009 the applicant appealed, reiterating his earlier arguments (see paragraph 23 above). The appellate court rejected the defence’s application to have the report on the personal search declared inadmissible on the grounds that the contested investigative measure had already been declared lawful and the applicant had failed to appeal against that decision.
27. On 17 November 2009 the Tbilisi Court of Appeal upheld the lower court’s judgment but varied it with respect to sentencing, reducing the sentence to six months’ imprisonment. As to the first applicant’s arguments concerning the grounds and lawfulness of the personal search, the appellate court noted that those could not be accepted, as the report on the personal search had indicated all the relevant circumstances, and the applicant had had to be searched in order for the operational information to be verified. As to the argument that he had not been searched on the spot, the appellate court observed, without further elaboration, that this had not been confirmed by the evidence available in the case file. Relying on the search report, the court also noted that the applicant had been informed of his right to invite an attesting witness, a right which he had declined to exercise. The appellate court relied on (a) the witness statements given to the court by the officers participating in the applicant’s search and arrest, (b) the report on the personal search, (c) the post-search review decision of the first-instance court finding the contested investigative measure lawful, (d) the forensic report determining the nature of the drug found on the applicant’s person and (e) the decision to add the retrieved drug as evidence to the case file.
28. On 29 December 2009 an appeal on points of law lodged by the applicant was declared inadmissible by the Supreme Court.
B. The second applicant
29. On 31 July 2009 the three investigators who had arrested and searched the second applicant were questioned before the trial court. G.T. explained that he had apprehended the applicant after receiving “operational information” that the applicant had been carrying a gun. However, he did not remember when that information had been received, or how long it had taken the team of police officers to reach the applicant, and whether a decision had existed authorising the implementation of the search measure in urgent circumstances. He did not remember what rights had been explained to the applicant, or if any documents had been presented to him. The witness did not remember whether the report on the search had been drafted on the spot or not, or whether he, as an officer involved in the search, had signed the report on the spot. G.T. also did not remember who among the three officers had found the gun during the search, and what type of gun it had been. An essentially similar statement was given by N.M., who also said that the “operational information” had been received at around noon, and that L.K. had explained to the second applicant his rights before the search; however, the witness did not know what specific rights had been explained to the second applicant. As regards L.K., the investigator in charge of the arrest and search, he stated that he had presented the second applicant with a list of rights before carrying out the search but that the second applicant had refused to acquaint himself with it. The witness did not remember who had found the gun, explaining that he had been involved in many other searches since then. L.K. stated that officers were not obliged to order a dactyloscopy (fingerprint identification) analysis of an item if a suspect claimed that the item did not belong to him or her, and no such examination had been carried out in the second applicant’s case.
30. On 31 July 2009 I.N., a witness who, from a distance of between 100 metres and 150 metres, had seen the applicant being arrested, claimed that the applicant had been put into a car and driven away within a minute or two of I.N. saying hello to the applicant as the latter had passed him by. He stated that he had not seen where the car had come from but that the applicant could not have been searched on the spot in such a short time span. He was asked to explain a contradiction between that account and his pre-trial statement, where he had described how he had seen the police car approach. The witness replied that the car had appeared by the side of some pine trees, and he did not know what had happened there.
31. During the trial before the Khashuri District Court, the second applicant requested that the court declare the search and seizure measure unlawful on the grounds that he had been arrested and searched unlawfully, in breach of the applicable procedure, including the fact that the report on his arrest had lacked any indication of the grounds for arrest. Among other arguments, the second applicant contended that he had been apprehended while carrying out agricultural tasks on a plot of land, and that he had not been searched on the spot but had been taken to a police station and questioned and then searched in the office of the deputy head of the Kareli police department (see paragraph 13 above). A personal search had been carried out at that station without any illegal items being found on him. At the hearing of 26 August 2009, the trial court rejected, without further elaboration, the application to have the search and seizure measure declared inadmissible, on the grounds that the application was unsubstantiated.
32. The applicant maintained throughout the trial that the gun had been planted on him by the police officers who, according to his submission, had been ordered to punish him for his participation in the anti-government protest rallies that had been held in Tbilisi between 9 April and 26 May 2009. He also presented a certificate attesting that he was a member of a political movement known as “Freedom”. Explaining that there had been a pattern of planting evidence on various politically active people in the month of June that year, the applicant maintained that the case against him had been based on the inconclusive and contradictory statements given by the three police officers, without any other evidence such as, for instance, a fingerprint examination to verify whether he had any connection to the gun supposedly found on him.
33. On 25 September 2009 the Khashuri District Court found the second applicant guilty as charged (see paragraph 19 above) and sentenced him to three years and six months’ imprisonment. The court stated, with little further elaboration, that the second applicant’s arguments regarding the case could not be accepted given that the charges had been proved by the witness statements given by the investigators. As regards the statement given by I.N., the court observed that his pre-trial statement indicated that he had seen the police car approaching, whereas in the statement given to the trial court he had denied this. From the court’s point of view, that inconsistency had cast doubt on the veracity of I.N.’s account. In convicting the applicant, the trial court relied on the following items of evidence: (a) the witness statements given to the court by the officers participating in the applicant’s arrest and search; (b) the report on the arrest and personal search; (c) the findings of a forensic expert concerning the gun and ammunition; (d) the post-search review decision of the first-instance court finding the contested investigative measure lawful; (e) the decision to add the retrieved item as evidence to the case file; and (f) the bill of indictment. While the case-file material available to the court appears to have included the report on the operational information (see paragraph 13 above), no reference was made to it in the judgment.
34. The applicant appealed against his conviction, reiterating his arguments (see paragraphs 31-32 above).
35. On 17 November 2009 the Tbilisi Court of Appeal upheld the lower court’s judgment against the second applicant, stating that it agreed with the reasoning of the Khashuri Regional Court. It pointed in particular to the existence of the arrest and search report, the witness statements given by the police officers who had arrested and searched the applicant, the forensic report in respect of the gun and “all other evidence available in the case file”. The appellate court noted that the witness statements of the police officers did not contain substantive contradictions, but that they indicated facts which were of “decisive importance” for the case. As regards I.N., he had merely expressed his opinion without making any definitive claims, and had stated that ultimately he did not know what had happened. As to the lawfulness of the arrest and search operation, the court found it to have been in line with the domestic law and procedure. In particular, if a person was arrested based on the suspicion of having committed a crime, he or she would automatically be regarded as a suspect, without the need to adopt a separate decision to that effect. Furthermore, the relevant report indicated that the arrest and search had been carried out in accordance with the procedure prescribed by law, including the explanation of the relevant rights to the second applicant. As regards the sentence, the court replaced the prison term with a fine of 5,000 Georgian laris (GEL, approximately 1,985 euros (EUR)). In view of the five months which had already been served in prison by the second applicant, the appellate court reduced the fine to GEL 2,000 (approximately EUR 795).
36. On 24 June 2010 the Supreme Court delivered a decision by means of written proceedings and partly varied the lower court’s judgment in so far as the second applicant’s conviction for the unlawful purchase, possession and carrying of ammunition was concerned. It observed that it was not certain that the ammunition intended for use in the gun found on the second applicant’s person had been usable, and convicted the second applicant only in respect of the unlawful purchase, possession and carrying of the firearms. This amendment did not affect the sentence. As to the applicant’s complaints regarding the manner in which the lower courts had handled his case, the Supreme Court noted, among other things, that the lower courts had correctly assessed the case, that the second applicant could be regarded as having been caught in flagrante delicto as the gun had been found on his person, that the grounds for the personal search – such as the risk of evidence being concealed – had been clearly indicated in the arrest report, and that the witness statement by I.N. had been inconclusive.
RELEVANT LEGAL FRAMEWORK
37. The relevant provisions of the Code of Criminal Procedure, in force at the material time, were set out by the Court in Kobiashvili v. Georgia (no. 36416/06, § 37, 14 March 2019) and Megrelishvili v. Georgia ([Committee], no. 30364/09, § 23, 7 May 2020).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION
38. The applicants complained that the searches had been unlawful, and the drug and the gun respectively had been planted on them by the police officers. They further alleged that the domestic courts had failed to give due consideration to the arguments challenging the reliability and use of the evidence in question, which had therefore rendered their trial unfair. The applicants relied on Article 6 § 1 of the Convention, the relevant parts of which read as follows:
“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”
A. Admissibility
39. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
(a) The applicants
40. The applicants submitted, providing an analysis of various domestic‑law provisions, that the personal search that they were subjected to had not been carried out in accordance with the law, rendering the resulting evidence not sufficiently reliable as a basis for their criminal convictions. Among other arguments, the applicants submitted that the content of the relevant documents had failed to justify the alleged urgency of the measures to be carried out without a judicial warrant (especially in the case of the second applicant, who allegedly “often” carried a gun on his person). Furthermore, the basis for the search – operational information whose source, accuracy and authenticity could not be verified during the trial – had not constituted “gathered evidence” of the kind required under the domestic legislation in order to carry out a personal search without a warrant. The applicants also submitted that they had not declined to exercise the right to have independent witnesses present at the searches.
41. The applicants further maintained, among other submissions, that the domestic courts had not given due consideration to their arguments challenging the reliability and use of the evidence obtained as a result of the relevant investigative measures, their objections as regards the courts’ unconditional reliance on the statements given by the police officers despite alleged ambiguities in their account and their not being independent witnesses, or the applicants’ submissions that the evidence had been planted on them.
(b) The Government
42. The Government submitted, providing an analysis of various domestic-law provisions, that the domestic legislation in force at the material time had authorised the authorities to rely on operational information in investigating crimes, and that a search could be carried out without a judicial warrant when sufficient grounds existed to believe that an individual would conceal or destroy an illicit item. Such measures had been declared lawful and the operational information grounding the suspicion that the applicants had possessed illicit items had been deemed sufficient in the decisions of the domestic courts in the post-search judicial proceedings, against which the applicants had failed to lodge separate appeals. Furthermore, the applicants had had an effective opportunity to challenge the lawfulness of these measures during trial, with the relevant domestic courts having addressed the applicants’ misgivings about the lawfulness of the searches.
43. As to the question of the presence of witnesses during the searches, the Government noted that, at any rate, an investigator could proceed with an immediate inspection as a matter of urgency without inviting such witnesses. The Government further submitted that, in any event, the domestic courts had examined the applicants’ allegations that the illicit items had been planted on them, and they had based the relevant convictions on various items of “plausible” evidence in addition to the search and seizure reports and the evidence obtained as a result.
2. The Court’s assessment
(a) General principles
44. The relevant general principles are summarised in Bykov v. Russia ([GC] no. 4378/02, §§ 88-90, 10 March 2009) and Kobiashvili v. Georgia(no. 36416/06, §§ 56-58, 14 March 2019).
(b) Application of the general principles in the present case
45. The Court has already examined a case relating to the alleged unlawfulness of a search conducted in the absence of prior judicial authorisation and the unreliability of the evidence obtained as a result, and found that the manner in which the key evidence against the applicant had been obtained cast doubt on its reliability and accuracy (see Kobiashvili, cited above, §§ 59-73). It considered, in view of the importance of that evidence, that, cumulatively, the procedural irregularities during the applicant’s body search, the inconsistent and conflicting evidence concerning the actual circumstances of the search, the inadequate judicial scrutiny both before and during the trial, including the failure of the domestic courts to sufficiently examine the applicant’s allegations that the illicit item had not belonged to him, and the weakness of the corroborating evidence rendered the applicant’s trial as a whole unfair (ibid., § 73).
46. While the circumstances of the present application are somewhat different, the decisive elements in the Court’s analysis remain the same.
47. In particular, thesearches were conducted on the basis of the so‑called operational information which, as appears from the case-file material, was not subjected to adequate judicial scrutiny either at the pre‑trial or trial stages and its accuracy and reliability was taken at face value (see paragraphs 10, 17, 23-28 and 31-36 above). Furthermore, the “urgency” of search measures carried out without judicial authorisation was never adequately explained. The question of whether a real “urgency” existed in the applicants’ case is closely connected to their right, guaranteed by domestic law at the material time, to invite attesting witnesses to be present while they were being searched. In particular, while the official version of the events appears to have suggested that the applicants had refused to invite witnesses to attend the respective search measures, the relevant reports concerning the searches went on to record that the search was carried out in “urgent circumstances”, under Article 102 § 4 of the Code of Criminal Procedure which provided for the possibility of carrying out a search without any witnesses present (see paragraphs 7 and 14 above; see also Megrelishvili v. Georgia [Committee], no. 30364/09, § 23, 7 May 2020). While the domestic courts observed, based on the testimonies of the police officers and the contents of the relevant reports, that the applicants’ procedural rights had been explained to them, the actual existence of “urgency” and the resulting apparently inevitable de facto limitation on the applicants’ rights was not adequately addressed. In this regard, the Court reiterates that where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Bykov, cited above, § 95).
48. The Court takes note of the Government’s submission that the circumstances of the searches and the reliability of the evidence obtained as a result had been the subject of judicial scrutiny in two sets of proceedings, namely the post-search judicial review (against which the applicants had not lodged an appeal) and the actual trial of the applicants. In this context, and as regards the post-search judicial review, while the applicants did not appeal against the decisions recognising the lawfulness of the searches (see Megrelishvili, cited above, § 35; see also paragraphs 10 and 17 above), the Court has already found that such reviews are not adequate and sufficient for the purposes of challenging the authenticity and reliability of evidence (see Kobiashvili,cited above, §§ 67-69).
49. As to the trial, the applicants asked the domestic courts to dismiss the reports on the searches as unlawful and unreliable. These requests were rejected, in so far as the first applicant is concerned, based among other reasons on the fact that the searches, in any event, had already been approved (see paragraph 24 above; see also Megrelishvili, cited above, § 36). As to the second applicant, his application was considered without further elaboration to have been unsubstantiated (see paragraph 31 above, in fine). When reiterated in the course of the appeal proceedings, the applicants’ requests were answered in the negative, based on the arrest and search reports themselves and on the police officers’ account which, according to the domestic courts, had indicated the absence of procedural violations during the searches (see paragraphs 27 and 35-36 above).
50. It should be noted that the reports concerning the existence of the operational information were included in the case-file material which was available to the domestic courts (see paragraphs 25 and 33 above, in fine; contrast Megrelishvili, cited above, § 36). However, as those reports contained only cursory and indirect information, and the domestic courts did not, in any event, make any attempt to directly assess the nature of the documents concerned, it is doubtful whether the courts could have assessed in any meaningful way the degree of reasonable suspicion that the authorities had had against the applicants before searching them, their prior knowledge of the type of illicit items that they were looking for, or the urgency and necessity of carrying out a search without a prior judicial warrant (see Kobiashvili, cited above, § 68). Furthermore, in addition to inadequately addressing the nature, source and veracity of the operational information, the domestic courts failed to provide a response to the applicants’ allegations that the evidence had been planted on them.
51. In view of all the above considerations, the Court concludes that the circumstances in which the searches were conducted, including the alleged disregard of the applicants’ defence rights, cast doubt on the reliability of the evidence obtained, and that the applicants were not given an effective opportunity to challenge those circumstances and oppose the use of that evidence at domestic level, especially considering the fact that some of their crucial arguments were not given an adequate response (contrast Bykov, cited above, § 98).
52. What remains to be ascertained is whether the physical evidence obtained as a result of the searches was corroborated by evidence from other sources. As regards the police officers, the Court notes that as they were the source of the proceedings against the applicants and were part of the authority which initiated them, they had an interest in the outcome of the prosecution. Their interest was particularly obvious in view of the applicants’ allegations that they had planted the evidence. Furthermore, their statements were not without ambiguities, and in the second applicant’s case, two of the three officers were questioned by the lead investigator about the second applicant’s case even though that investigator had himself participated in the same search (see paragraphs 16 and 29 above). Nonetheless, their testimony was automatically accepted as objective and reliable, without any meaningful attempt to address some ambiguities in their account or the applicants’ related objections, including the argument about their having been targeted on account of their political activities (see paragraphs 11, 23 and 31-32 above). The Court therefore considers that, contrary to the Government’s submissions, none of the other evidence in the case file, in the absence of the reports on the searches, was sufficiently strong on its own (contrast Bykov, cited above, § 98).
53. The foregoing considerations are sufficient for the Court to find that the applicants did not have a fair trial.
There has accordingly been a violation of Article 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
54. The applicants complained that the search measures had been implemented in breach of Article 8 of the Convention, and that the domestic courts had failed to strike the requisite balance between their rights and the public interest.
55. The Government submitted that Article 8 of the Convention had not been violated.
56. The Court observes that the applicants did not allege, in the context of the domestic proceedings, that the search measures had infringed their rights guaranteed under Article 8 of the Convention. Owing to this omission, the domestic courts were given no opportunity to assess their complaints. In these circumstances, the applicants’ complaints under the said provision are manifestly ill-founded and this part of the application must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
57. 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.”
58. The applicants claimed 5,000 euros (EUR) each in respect of non-pecuniary damage.
59. The Government submitted that the claim was excessive.
60. The Court awards the applicants EUR 3,600 each in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicants.
61. 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 Article6 § 1 admissible and the remainder of the application inadmissible;
2. Holds that there has been a violation of Article 6 § 1 of the Convention;
3. Holds
(a) that the respondent State is to pay the applicants, within three months, EUR 3,600 (three thousand six hundred euros) each, plus any tax that may be chargeable in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;
(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 applicants’ claim for just satisfaction.
Done in English, and notified in writing on 4 March 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Ganna Yudkivska
Deputy Registrar President
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