CASE OF SHUBITIDZE v. GEORGIA (European Court of Human Rights) Application no. 43854/12

The case concerns the alleged unfairness, within the meaning of Article 6 § 1 of the Convention, of the criminal proceedings conducted against the applicant, on account of the manner in which the principal evidence was obtained and used against him.


FIFTH SECTION
CASE OF SHUBITIDZE v. GEORGIA
(Application no. 43854/12)
JUDGMENT
STRASBOURG
17 June 2021

This judgment is final but it may be subject to editorial revision.

In the case of Shubitidze 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. 43854/12) 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 Kako Shubitidze (“the applicant”), on 9 July 2012;

the decision to give notice to the Georgian Government (“the Government”) of the complaints under Article 6 § 1 and Article 8 of the Convention and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated in private on 27 May 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns the alleged unfairness, within the meaning of Article 6 § 1 of the Convention, of the criminal proceedings conducted against the applicant, on account of the manner in which the principal evidence was obtained and used against him.

THE FACTS

2. The applicant was born in 1984. He was represented by Ms N. Jomarjidze, a lawyer practising in Tbilisi.

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 APPLICANT

5. According to the official version of events, at 9 p.m. on 26 June 2011 the applicant was arrested on the street by an inspector-investigator of the Marneuli police, I.Kh., and his colleague, G.M., on suspicion of having been under the influence of a narcotic substance without a medical prescription – an administrative offence (see paragraph 23 below). The administrative-arrest report noted that the applicant had not had a prior administrative or criminal offence record. The section of the report as to whether any resistance had been offered during arrest was left blank. The section listing the grounds for detention, of which at least one had to be underlined, was left unmarked. The report was signed by the applicant and the police officer. The applicant was taken to a police station and then to a clinic to undergo a drug test.

6. According to the drug test report, the test was performed between 11.20 p.m. and 12.52 a.m. and revealed that the applicant had not been under the influence of any drugs at the moment when the test was administered but that there had been a trace of cannabis in his urine. The report was signed by the applicant, noting that he had been given information about his right to appeal against the measure and stating that he had smoked a cigarette earlier.

7. An undated and unsigned internal report addressed to the head of the Marneuli police stated that its author had arrested the applicant on suspicion of drug consumption, noting the drug test result. The document stated that “the existing information had indicated” that the applicant “must [have been] a frequent drug user, and that he must [have had] a narcotic substance on his person”.

8. An investigator, V.Ch., issued a decision to carry out a personal search of the applicant without a judicial warrant, in urgent circumstances. The decision noted the result of the drug test and indicated that “on the basis of existing information” the applicant must have had a narcotic substance on his person. Delaying a personal search would, according to the investigator, make it impossible to obtain important factual information, as the applicant could have destroyed or hidden the evidence.

9. Between 2.35 a.m. and 3.10 a.m. on 27 June 2011 a personal search of the applicant was carried out by V.Ch. According to the personal search report, the search had been carried out without the attesting witnesses being present in the light of the urgent circumstances, as provided for by Article 331 § 4 of the Code of Criminal Procedure (see paragraph 24 below). It was also noted that the applicant’s right to have attesting witnesses attend the search procedure had been explained to him, and that he had refused to exercise that right. According to the report, two sachets containing a greenish substance had been retrieved from the applicant’s shoes. The subsequent expert examination found that the substance comprised 8 grams of cannabis. The personal search report contained a note to the effect that the applicant had refused to sign it for an “unknown reason”.

10. On 27 June 2011 the applicant was charged with the unlawful purchase and storage of a narcotic substance. He exercised his right to remain silent.

11. On 28 June 2011 the Bolnisi Regional Court, by means of written proceedings and without the applicant’s or his lawyer’s participation, granted a post factum request from the prosecution to confirm the lawfulness of the personal search. The decision, written in a summary manner, provided that the “totality of the evidence” presented by the prosecutor (which appears to have consisted of the document on the opening of a preliminary investigation and “a witness statement”) had indicated that the applicant could have had illicit items on his person at the time of his arrest and that there had been a risk of evidence being destroyed, justifying the implementation of the urgent measure without a prior judicial warrant. The court then listed several domestic-law provisions and stated, without further elaboration, that the search had complied with the procedural legislation. The decision provided for an appeal period of seventy-two hours. It is unclear when the decision was served on the applicant.

II. THE APPLICANT’S TRIAL AND CONVICTION

12. On 29 July 2011 the applicant requested, as part of the preliminary hearing before the Bolnisi Regional Court, that the evidence, including the personal search report of 27 June 2011, be declared inadmissible. He noted, among other arguments, that there had been no urgent circumstances justifying the personal search without a judicial warrant, and that the drug had not belonged to him. The prosecutor stated that the investigation had been opened on the basis of operational information and that there had been an urgent need to implement the contested measures without a judicial warrant, adding that the fact of drug consumption had justified the opening of the criminal investigation. The court dismissed the application concerning the inadmissibility of evidence as unfounded on the grounds that the applicant had not challenged the authenticity of the seal on the seized sachets which had been presented to experts for examination. The court concluded that the expert had been presented with the material “which had been seized from the applicant”, and that there were no grounds for allowing the inadmissibility plea.

13. During the proceedings before the trial court, I.Kh. – the police officer who had arrested the applicant – gave a statement. He noted that he and his colleague (G.M.) had been dressed in civilian clothes and a police uniform respectively. They had been patrolling the city when they had noticed the applicant walking down the street in a presumably intoxicated state. G.M. had gestured to the applicant to stop; however, the latter had run away. He had been chased and stopped. I.Kh. explained that because there had been a queue at the testing facility, several hours had elapsed between the applicant’s arrest and testing. He had then written an internal report noting that the applicant could have been carrying a narcotic substance on his person. I.Kh. noted that he had developed a suspicion that the applicant must have had a drug on his person which he had wished to dispose of, given the latter’s request to have his handcuffs removed. I.Kh. noted that he had not participated in or witnessed the search of the applicant and did not know who had searched the applicant. He also stated that the applicant had admitted to having smoked a cigarette containing cannabis.

14. N.N. – the expert who had performed the examination of the sachets containing the greenish substance – stated that the substance had been cannabis. She noted that the document ordering the implementation of the expert examination had indicated that the substance had been seized from the applicant.

15. E.V. – the expert who had performed the applicant’s urine test – indicated that the detection of traces of cannabis in the urine had only pointed to the applicant having consumed the drug some time earlier but did not mean that he had been under the influence at the moment of the test. She explained that in order to detect the active influence of drugs, a test needed to be performed rapidly, within several minutes of the consumption, and that cannabis usually had an intoxicating effect for only fifteen to twenty minutes in total, whereas a trace remained in urine for between fifteen and forty days. She noted that the applicant had signed the drug test report without making any complaints but had stated that he had not consumed any drugs.

16. During the proceedings before the Bolnisi Regional Court the applicant challenged all the evidence against him, alleging, among other things, that the drug had not belonged to him. He also asked to be questioned in order to give his version of the events, and noted that the prosecutor’s case against him had contained serious gaps and contradictions and had failed to establish a convincing case against him. The applicant’s request to be questioned was rejected on account of having been submitted outside the relevant procedural time-limit. Following the closing statements made by the prosecutor and the defence counsel, the applicant was asked if he wished to make a final statement and he briefly stated that he could only add that he “had not had the drug on him, had not consumed it and had never been a drug addict.”

17. On 29 August 2011 the Bolnisi Regional Court convicted the applicant as charged (see paragraph 10 above) and sentenced him to three years’ imprisonment and imposed a fine of 2,000 Georgian laris (GEL – approximately 840 euros (EUR) at that time). It also imposed, as an additional sanction, a five-year limitation on the applicant’s right to: (a) drive any transport vehicle; (b) engage in a medical occupation; (c) act as a lawyer; (d) work at an educational institution; (e) work at a self‑government or a public service institution; (f) stand in elections; and (g) make, buy, keep or carry arms. The court relied on witness statements given by Officer I.Kh. (see paragraph 13 above), experts (see paragraphs 14-15 above) and the relevant reports available in the case file, including the applicant’s personal search report (see paragraph 9 above).

18. On 27 September 2011 the applicant appealed, noting that the trial court had not given him the opportunity to present his version of the events during the hearing given that his request to be questioned had been rejected as out of time. He further submitted that none of his objections regarding the admissibility of the arrest and personal search reports had been duly addressed, and that the evidence on the basis of which he had been convicted had been unreliable and insufficient. Among other issues, the applicant noted that while I.Kh. had indicated at the pre-trial investigation stage that the personal search had been necessary in view of “available information” to the effect that the applicant was a frequent drug user and must have been carrying drugs on his person, no such information had been mentioned in I.Kh.’s trial statement. The applicant further complained that contrary to I.Kh.’s submissions, the arrest report had not mentioned the alleged attempt to escape. Furthermore, the delay between the arrest, the drug test and the search had left doubts as to the urgency of the search measure. That delay, according to the applicant, would have made it possible either for him to dispose of the drug, had he had any, or for the police officers to plant it, which was what they had done. The applicant emphasised that the burden had been on the prosecuting authority to prove his guilt beyond reasonable doubt which they had failed to do, especially given that the investigating and prosecuting authorities had not obtained the statement of the officer who had implemented the personal search without the attendance of attesting witnesses, further opening to doubt the authenticity and reliability of the personal search report. The applicant argued that, as a result, his conviction had rested on the disputed personal search report, which had been taken at face value despite the challenges to its admissibility, and on I.Kh.’s statement, notwithstanding the fact that the latter had neither performed nor witnessed the personal search, and had been a witness with a vested interest in the applicant’s prosecution. The applicant noted that if it had not been for the disputed personal search report, and given that he had never had a record of drug-related offences, the evidence available in the case file could at best have been taken as proof of cannabis consumption – which was an administrative rather than a criminal offence.

19. On 1 November 2011 the Tbilisi Court of Appeal upheld the lower court’s findings. It noted that the applicant’s position before it had not been supported by the evidence available in the case file, namely the witness statements (see paragraphs 13-15 above) and the personal search report (see paragraph 9 above). The appellate court stated that the applicant’s argument about I.Kh. having been a witness with a vested interest had not been corroborated by the evidence. The court further noted that the delay between the arrest and personal search had not been excessive and that since the applicant had been handcuffed the whole time, any possibility that he might have disposed of the drug could be ruled out. The appellate court concluded that the totality of the evidence available in the case file confirmed that the applicant had been guilty of the unlawful purchase and possession of a narcotic substance.

20. On 27 September 2011 the applicant appealed on points of law, repeating his earlier submissions (see paragraph 18 above) and arguing that the appellate court had not addressed them.

21. On 1 January 2012 the Supreme Court declared the applicant’s appeal on points of law inadmissible.

22. The applicant appears to have been released in January 2013, pursuant to an Amnesty Act of 28 December 2012, after he was declared by the Parliament to have been arrested “on political grounds”. The parties did not elaborate on this issue.

RELEVANT LEGAL FRAMEWORK

23. Article 45 of the Code of Administrative Offences (“the CAO”) provided for a fine of 500 Georgian laris (GEL – approximately 213 euros (EUR) at the time) or up to thirty days’ administrative detention for “consumption of a narcotic substance without a medical prescription”. Article 273 of the Criminal Code (“the CC”) of 1999 criminalised drug consumption without a medical prescription in respect of persons who had previously been found liable under Article 45 of the CAO or guilty of a drug offence under the CC.

24. Article 331 § 4 of the new Code of Criminal Procedure (“the CCP”) of 2010, as it stood at the material time, provided that a search could be carried out without the attendance of attesting witnesses “only in urgent circumstances, when a real risk of … damage, destruction or loss of evidence existed …”.

25. Article 72 §§ 1-2 of the CCP provided that evidence was to be declared inadmissible if it had been obtained in serious breach of the CCP or if – despite having been obtained in compliance with the CCP – doubts as to the possible substitution, partial altering or removal of traces left on such evidence had not been dispelled. Under Article 72 § 3 of the CCP, the burden of demonstrating (a) the admissibility of evidence presented by the prosecution and (b) the inadmissibility of evidence presented by the defence rested with the prosecutor.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION

26. Relying on Article 6 § 1 of the Convention, the applicant complained that the search carried out in respect of him had been unlawful and had not been attended by attesting witnesses, and that the drug allegedly discovered during the search had in reality been planted on him. In that connection, he 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 his trial unfair. The relevant parts of Article 6 § 1 read as follows:

“In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …”

A. Admissibility

27. 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

28. The applicant submitted, among other arguments, that there had been no circumstances justifying his personal search without a judicial warrant; that he had been denied the right to invite attesting witnesses to attend the search; that the drug had been planted on him in retaliations for his political activism; and that although the evidence on which he had been convicted had lacked the qualities of accuracy and reliability, the domestic courts had failed to duly address any of his submissions in that regard.

29. The Government submitted, among other arguments, that the personal search of the applicant had been based on operational information, and given the drug test results, sufficient grounds had existed justifying the implementation of the search without a judicial warrant. As to the attendance of attesting witnesses during the search, the applicant had never raised the matter at domestic level. Nor had he complained of having been targeted on account of political activism. The Government further noted that the applicant had not requested that the domestic courts question any individuals on his behalf in order to clarify the circumstances of his arrest and personal search. Stating that the applicant’s conviction had been supported by multiple items of evidence, the Government submitted that the criminal proceedings had been fair overall.

2. The Court’s assessment

(a) General principles

30. 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 above principles to the present case

31. The Court has already examined cases 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 applicants had been obtained cast doubt on its reliability and accuracy (see Kobiashvili, cited above, §§ 59-73, and Megrelishvili v. Georgia [Committee], no. 30364/09, §§ 32-39, 7 May 2020). The Court considered, in view of the importance of that evidence, that, cumulatively, the procedural irregularities during the personal search of the applicants; 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 applicants’ allegations that the illicit items had not belonged to them; and the weakness of the corroborating evidence had rendered the applicants’ trials as a whole unfair (see Kobiashvili, § 73, and Megrelishvili, § 39, both cited above).

32. While the circumstances of the present application are somewhat different, the decisive elements in the Court’s analysis remain the same.

33. In particular, the applicant’s arrest and search were carried out without a judicial warrant. The applicant was arrested on suspicion of having been under the influence of drugs (see paragraph 5 above). As to his personal search, the exact grounds remain unclear: the documents relating to the investigative stage (see paragraphs 7-8 above) refer to “the existing information”; the Government’s submissions before the Court (see paragraph 29 above) mention the existence of operational information (meaning information received from a source whose identity could not be disclosed) to the effect that the applicant was a drug user and must have had the illicit substance on him, as well as the drug test results showing that the applicant had in the past consumed cannabis. During the trial proceedings, however, no mention of the operational information was made (see paragraph 13 above).

34. Additionally, the actual circumstances of the personal search remained disputed throughout the proceedings. While the Court takes note of the Government’s submission that the applicant had not specifically contested at domestic level the fact that his personal search had not been attended by attesting witnesses (see paragraph 29 above), it cannot overlook the fact that the relevant report appears to have implied that the search was in any event being carried out in circumstances exempting the investigating authorities from the obligation to ensure the participation of attesting witnesses (compare paragraphs 9 and 24 above). In such circumstances, it was all the more important for the domestic courts to clarify, in response to the applicant’s allegations and arguments contesting the admissibility of the resulting key evidence against him, the actual circumstances of the personal search. 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).

35. By contrast, the domestic courts treated the lawfulness of the arrest and search as well as the finding of the drugs on the applicant’s person as established facts. In particular, the post-search judicial review was carried out without the applicant’s participation and it does not appear that the circumstances of the search were assessed at all as part of those proceedings (see paragraph 11 above). In any event, 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, §§ 67-69, and Megrelishvili, § 35, both cited above).

36. As to the criminal proceedings against the applicant, the inadmissibility plea in respect of the evidence, including the personal search report, was rejected by the trial court on the grounds that the applicant had not challenged the authenticity of a seal on the material allegedly seized from him (see paragraph 12 above). Such a formalistic approach on the part of the court left the applicant’s objection to the personal search procedure and the resulting report essentially unaddressed. As regards the appellate court, rather than examining the question of whether the disputed evidence had been admissible, it found that the circumstances of the search had been established by the very same contested personal search report as well as the witness statements which had not related to the search (see paragraph 19 above). In this context, the applicant’s failure at domestic level to complain of having been targeted for alleged political activism cannot, contrary to the Government’s submission, counterbalance the fact that the domestic courts did not at all address important aspects of his arguments, such as the lawfulness of his arrest and search, circumstances of the personal search, the contested admissibility of the search report, the allegation that the drugs had not belonged to the applicant, and that no evidence other than the disputed report had been sufficient for his conviction for unlawful purchase and storage of a narcotic substance (compare paragraphs 17-19 above).

37. In view of the above, the Court concludes that the circumstances in which the personal search was conducted cast doubt on the reliability of the evidence obtained and that the applicant was not given an effective opportunity to challenge those circumstances and oppose the use of the impugned evidence.

38. What remains to be seen is whether the physical evidence obtained as a result of the search was corroborated by evidence from other sources. In particular, as regards the statement given by Officer I.Kh., the latter was at the origin of the proceedings against the applicant and had an interest in the outcome of the prosecution, especially in view of the applicant’s allegation that the drug had been planted. Moreover, the officer in question had only participated in the applicant’s arrest and had neither implemented nor attended his personal search and could not even verify who had searched the applicant (see paragraph 13 above). As to the experts’ testimony, they had confirmed the fact that biological material from the applicant had indicated prior drug consumption. Given the absence of an administrative or a criminal record of drug-related offences in respect of the applicant, the consumption of cannabis alone would qualify as an administrative rather than a criminal offence (see paragraphs 5 and 23 above). In fact, the latter argument was raised by the applicant but the appellate court did not address it (see paragraphs 18-19 above). The Court therefore considers that no other evidence in the case file, in the absence of the disputed personal search report, was sufficiently strong on its own (contrast Bykov, cited above, § 98).

39. The foregoing considerations are sufficient for the Court to find that the applicant 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

40. The applicant complained that the search measure had been implemented in breach of Article 8 of the Convention, and that the domestic courts had failed to strike the requisite balance between his rights and the public interest.

41. The Government submitted that Article 8 of the Convention had not been violated.

42. The Court observes that the applicant did not allege, in the context of the domestic proceedings, that the search measure had infringed his rights guaranteed under Article 8 of the Convention; as a result, the domestic courts, and subsequently the Court, have not been afforded the opportunity to duly assess the present complaint (see Tlashadze and Kakashvili v. Georgia [Committee], no. 41674/10, § 56, 25 March 2021). In such circumstances, the complaint under Article 8 of the Convention is 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

43. 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.”

44. The applicant claimed 5,000 euros (EUR) in respect of non-pecuniary damage.

45. The Government found the claim excessive.

46. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant.

47. 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 complaint under Article 6 § 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 applicant, within three months, EUR 3,600 (three thousand six hundred euros), 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 applicant’s claim for just satisfaction.

Done in English, and notified in writing on 17 June 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Martina Keller                                       Ganna Yudkivska
Deputy Registrar                                       President

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