Last Updated on January 14, 2022 by LawEuro
The present case concerns the alleged ill-treatment of the applicant by police officers and the failure of the authorities to conduct an effective investigation in that regard, in breach of Article 3 of the Convention. The applicant also complained, under Article 6 §§ 1 and 3 (d) of the Convention, about the refusal by the appellate court to examine a new witness on his behalf.
FIFTH SECTION
CASE OF PERTAIA v. GEORGIA
(Application no. 44888/16)
JUDGMENT
STRASBOURG
13 January 2022
This judgment is final but it may be subject to editorial revision.
In the case of Pertaia v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:
Lətif Hüseynov, President,
Lado Chanturia,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 44888/16) 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 Ruslan Pertaia (“the applicant”), on 29 July 2016;
the decision to give notice to the Georgian Government (“the Government”) of the complaints under Article 3 and Article 6 §§ 1 and 3 (d) of the Convention;
the parties’ observations;
Having deliberated in private on 2 December 2021,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The present case concerns the alleged ill-treatment of the applicant by police officers and the failure of the authorities to conduct an effective investigation in that regard, in breach of Article 3 of the Convention. The applicant also complained, under Article 6 §§ 1 and 3 (d) of the Convention, about the refusal by the appellate court to examine a new witness on his behalf.
THE FACTS
2. The applicant was born in 1976 and lives in Zugdidi. He was represented by a lawyer from the Georgian Young Lawyers’ Association until that lawyer withdrew from the case after having submitted observations on the applicant’s behalf.
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.
A. The applicant’s arrest and alleged ill-treatment
5. At 4 a.m. on 23 August 2014 the applicant was arrested on suspicion of aggravated theft near a crime scene in the town of Zugdidi. The record of the arrest contained a note indicating that at the time of the arrest, the applicant had redness on the skin around his left temple. At 10 a.m. on the same day the applicant was taken to a local hospital for emergency treatment. According to the medical record subsequently drawn up, he was suffering from headaches and pain in the waist area and in his right palm and had bruises on his left temple and cheek and cuts on his right palm. He was diagnosed with a closed head injury. The document noted that the applicant’s medical condition was serious. It also stated that, according to the applicant, he had sustained the injuries by falling down and hitting his head against a stone. A report based on a visual examination of the applicant, which was drawn up upon his transfer to a detention centre, also confirmed multiple cuts bruises on his body and head. The report noted that the applicant had no complaints and that he had received the injuries prior to his arrest.
6. On 25 August 2014 the applicant was taken to a hospital as he was suffering from headaches and nausea. A tomography scan was performed but no brain damage or intracranial hypertension was found. He was provided with treatment for his symptoms and taken back to the temporary detention centre.
7. On 25 August 2014, in an interview with a representative of the Public Defender’s Office of Georgia, the applicant claimed that he had been ill‑treated by the police. According to the record of the interview, the applicant stated that four police officers, one of whom was identified as Sh.K., had physically and verbally assaulted him while making the arrest and afterwards, during his transfer to the Zugdidi Police Department. Upon their arrival at the police station, a person identified by the applicant as L.K., the head of the Zugdidi Police Department, had also ill-treated him with the aim of extracting a confession. The applicant submitted that he had lost consciousness several times as a result of the ill-treatment. He also told the representative of the Public Defender’s Office that out of fear of retaliation from the police officers, he had signed various documents indicating that he had sustained all the bodily injuries prior to his arrest. The representative noted in the interview report that he had observed multiple cuts and bruises on the applicant’s body, specifically on his tibias, knees, abdomen, and arms.
8. On 26 August 2014 the applicant underwent another visual examination upon his transfer to a pre-trial detention centre. The report drawn up thereafter confirmed his injuries. According to the report the applicant noted that he had received the injuries during the arrest.
B. The applicant’s trial
9. The applicant pleaded not guilty before the trial judge. While confirming that he had been in the immediate vicinity of the crime scene when the crime was committed, the applicant insisted that he was not the person who had actually committed the theft.
10. By a judgment of 4 December 2014, the Zugdidi District Court convicted the applicant as charged and sentenced him to five years’ imprisonment.
C. Appeal proceedings
11. On 30 December 2014 the applicant appealed against his conviction to the Kutaisi Court of Appeal, arguing that the trial court had erred in the assessment of the facts when finding him guilty. He argued that his conviction had been based primarily on the statements given by the police officers with no consideration of the evidence given by many defence witnesses.
12. On 30 April 2015 the applicant’s defence counsel lodged an application with the Court of Appeal, seeking the examination of a new defence witness, T.Q., before the court. The application stated that T.Q. had confessed to the prosecutor that he was the one who had actually committed the crime. The applicant further submitted that he had learned about T.Q.’s confession shortly before he had lodged the relevant application with the court.
13. The prosecutor argued that the evidence proposed by the defence raised issues that fell beyond the scope of the appeal. She also contended that the defence’s application might have been vexatious, since the witness in question had attended the entire trial of the applicant and, all the time he was sitting in the courtroom, had not expressed a willingness to testify until a late stage in the appeal proceedings.
14. The court dismissed the defence’s application on procedural grounds. It considered that the newly discovered evidence fell beyond the scope of the appeal and for that reason it had no jurisdiction in accordance with Article 297 (e) of the Code of Criminal Procedure to hear that evidence at an advanced stage of the appeal proceedings.
15. By a judgment of 21 May 2015 the Kutaisi Court of Appeal fully upheld the applicant’s conviction.
16. On 16 June 2015 the applicant lodged an appeal on points of law with the Supreme Court. He argued that, inter alia, the refusal of the Kutaisi Court of Appeal to call T.Q. as a defence witness had deprived him of an opportunity to effectively exercise his defence rights, which in itself had led to a wrongful conviction. By a judgment of 4 June 2016, the Supreme Court partly reversed the applicant’s conviction and found him guilty of attempted theft. The court left the sentence unchanged. In its judgment the court did not answer the applicant’s complaint about the non-examination of T.Q. as a defence witness.
17. On 27 May 2016 the applicant lodged an application with the Kutaisi Court of Appeal seeking the reopening of the proceedings in view of newly discovered evidence, namely the confession by T.Q. By a decision of 27 June 2016, the Court of Appeal rejected the request as inadmissible. The court held that the evidence in question was not new, since it had first been introduced in the course of the appeal proceedings and subsequently in the proceedings before the Supreme Court. The court noted in that connection that the admission of new evidence pursuant to Article 297 (e) of the Code of Criminal Procedure was not allowed at that stage of appeal proceedings if the impugned evidence went beyond the scope of the issues raised in the appeal.
D. Investigation into the alleged ill-treatment of the applicant
18. On 29 August 2014 the Public Defender’s Office sent a letter to the Chief Prosecutor’s Office of Georgia requesting information on whether an investigation into the applicant’s alleged ill-treatment had been opened. It also provided the Chief Prosecutor’s Office with a statement by the applicant in which the latter gave details about his alleged ill-treatment. In its response dated 5 September 2014 the Chief Prosecutor’s Office informed the Public Defender’s Office that on 4 September 2014 the Zugdidi District Prosecutor’s Office had launched an investigation into the applicant’s allegations under Article 333 § 3 (b) of the Criminal Code (the offence of abuse of power).
19. Before the formal initiation of the criminal proceedings, on 1 September 2014 an investigator interviewed two police officers who had arrested the applicant. The interviewer and the police officers were all from the same police department and the investigator was the same one who had been in charge of the theft-related investigation. In their statements during the interview, the police officers described the circumstances of the applicant’s arrest. They stated that at the time of the arrest the applicant had already had redness on his left temple and that later they had arranged for emergency medical care for him as he was suffering from a headache. The statements of the police officers as reported in the interview records were virtually identical. On the same date, the investigator in charge also interviewed two employees of the temporary detention centre where the applicant had been placed following his arrest. They confirmed that while the applicant had some visible injuries, he claimed that he had sustained them before his arrest. The investigator also questioned the doctors who had examined the applicant on 23 and 25 August 2014. Both of them confirmed having seen the applicant’s injuries and noted that he claimed to have sustained them as a result of a fall to the ground.
20. In the meantime, at the request of the same investigator, a forensic expert of the National Bureau of Forensics issued an examination report based on an analysis of the applicant’s medical record dated 23 August 2014. Without conducting an in-person examination of the applicant, the expert simply noted, with reference to the medical record, that the applicant had suffered various injuries and that, while it was impossible to establish the source of some of the injuries, they had been minor and had caused no damage to the applicant’s health.
21. On 18 September 2014 the case was transferred to the Samegrelo‑Zemo Svaneti regional prosecutor’s office. In October 2014 a newly assigned investigator questioned the applicant’s sister, his mother, a villager who had allegedly seen the applicant on the night of his arrest, the head of the Zugdidi Police Department, whom the applicant had implicated in his ill-treatment, his deputy and the two police officers who had arrested him. All four police officers denied the applicant’s allegations. On 28 October 2014 the applicant was interviewed. He confirmed his account of event as given in his statement of 26 August 2014, describing in a detailed manner his arrest and the alleged ill-treatment that followed.
22. Between 2014 and 2016 the applicant and his representatives contacted the prosecution service on at least six occasions requesting information about the investigation and criticising the lack of progress. According to letters dated 3 June 2015, 4 January and 30 June 2016 received by the applicant in reply to his requests for information, the investigation was still pending. The applicant, having the status of a mere witness in the proceedings, could not be provided with details of the investigation.
23. In 2018 and 2019 the applicant’s lawyers regularly wrote to the prosecutor’s office requesting an update on the progress of the investigation and the granting to the applicant of formal victim status. All their requests were refused.
24. The investigation is still pending.
RELEVANT LEGAL FRAMEWORK
25. For the relevant domestic law concerning the conduct of an investigation and granting victim status, see Goguadze v. Georgia ([Committee], no. 40009/12, § 35, 27 June 2019).
26. The relevant Articles of the Code of Criminal Procedure, as far as the admission of evidence at the stage of the appeal proceedings is concerned, read as follows:
Article 239
“…
5. In the course of a main hearing, substantially new evidence may be admitted only if the evidence was previously unavailable, or if a party was prevented from making such a request earlier …”
Article 297
“The rules of procedure governing the conduct of a trial at first instance shall similarly apply to appeal proceedings, with the following differences:
…
d. A court may grant an application by a party seeking to introduce new evidence in the appeal proceedings if the party shows that the evidence is exceptionally important to prove his or her case, and if it was impossible to present the evidence at the trial before the first-instance court;
e. The examination of evidence shall not go beyond the scope of the points raised in the appeal and the response to it …”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
27. The applicant complained that he had been ill-treated by police officers and that the investigation into his allegations had been inadequate and inefficient. He relied on Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
A. Admissibility
28. The Government submitted that the applicant’s complaints under Article 3 of the Convention were inadmissible for non-exhaustion of domestic remedies. They noted that the relevant criminal proceedings were still ongoing. In addition, according to the Government, the investigation satisfied the requirements of independence, thoroughness and effectiveness, which implied that the applicant’s complaints were premature.
29. The applicant contested the Government’s objection. He maintained, with reference to the Court’s case-law (Mikheyev v. Russia, no. 77617/01, §§ 84 and 121, 26 January 2006, and Denis Vasilyev v. Russia, no. 32704/04, §§ 90-91, 17 December 2009) that the length of the proceedings coupled with their inefficiency exempted him from the obligation to continue waiting for the outcome of the impugned investigation.
30. The Court considers that the Government’s inadmissibility plea should be joined to the merits of this case, since it is closely linked to the substance of the applicant’s complaint about the relevant authorities’ alleged failure to conduct an effective investigation (see Goguadze, cited above, § 41, with further references therein). 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
31. The applicant maintained that he had been ill-treated by the police during his arrest, in a police car during his transfer to the Zugdidi police station, and also in the police station. In support of his assertion, he referred to the available medical evidence, as well as to witness evidence and his detailed statements given in the course of his trial and the ongoing investigation. In reply to the Government’s observations, he stated that he had been afraid of voicing his grievances before 25 August 2014, as he had been under the control of the police officers who had ill-treated him.
32. As to the investigation, the applicant submitted that it had been undermined by the fact that the initial investigative measures had been undertaken by the very same Zugdidi Police Department whose employees he had implicated in his ill-treatment. Furthermore, the investigation had been stayed between 18 November 2014 and 10 July 2018 without any plausible explanation. Also, a number of important investigative measures had not been implemented, such as the questioning of two eyewitnesses to the incident at issue and of the emergency doctors who had examined the applicant shortly after his arrest. Last but not least, the applicant had not been granted victim status in the relevant proceedings and had thus been prevented him from having access to the investigation file or even simply being informed about the progress of the investigation.
33. The Government contended that since the criminal investigation was still pending, it was premature to make any submissions concerning the allegations under the substantive limb of Article 3 of the Convention. As to the investigation itself, they submitted that it had started promptly, stressing that the applicant had first voiced his grievances only on 25 August 2014. All the relevant investigative actions had been undertaken, including the questioning of the police officers implicated by the applicant and of possible eyewitnesses to his arrest and/or his ill-treatment. As no direct evidence of the applicant’s alleged ill-treatment had been obtained to date, it was not possible, according to the Government, to formally grant him victim status. In connection with the length of the proceedings, they submitted, with reference to the Court’s case-law, that unless a lack of good faith or good will was established on the part of the authorities, no breach of Article 3 of the Convention could be established solely on account of the delay in the proceedings.
2. The Court’s assessment
(a) General principles
34. The relevant general principles were summarised by the Court in Bouyid v. Belgium ([GC], no. 23380/09, §§ 81-88, 100-01, and 114‑23, ECHR 2015; see also El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, §§ 151-53 and 182-85, ECHR 2012, and Mikiashvili v. Georgia, no. 18996/06, §§ 69-72, 9 October 2012).
(b) Application of those principles to the circumstances of the present case
35. The Court considers it appropriate, given the Government’s non‑exhaustion argument, to first address the applicant’s complaint concerning the ineffectiveness of the investigation.
(i) Procedural aspect of the complaint
36. The Court observes at the outset that the applicant’s allegations of ill‑treatment, as set out in his complaints lodged with the domestic authorities and supported by medical evidence, were arguable (see paragraphs 5-8 above; see also paragraph 41 below). Furthermore, the applicant’s allegations were sufficiently serious to reach the level of severity required to fall within the scope of Article 3 of the Convention (ibid.). The authorities were thus under an obligation to conduct an effective official investigation.
37. As to the investigation, the Court notes that although the Government provided detailed information about the various investigative measures that the relevant authorities implemented throughout the ongoing investigation, they failed to provide any explanation whatsoever for the almost four-year stay of the proceedings between 18 November 2014 and 10 July 2018. Moreover, the Court notes that the investigation into the applicant’s alleged ill-treatment has been already ongoing for more than seven years. The Government did not provide the Court with any explanations in that regard either. As the Court has emphasised on previous occasions, although there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see, among other authorities, Mocanu and Others v. Romania [GC], nos. 10865/09 and 2 others, § 323, ECHR 2014 (extracts), and Bouyid, cited above, § 133).
38. Without going into the substance of each and every investigative measure implemented by the respondent State so far, the Court would simply note the following: almost seven years into the investigation, the relevant authorities have failed to provide a coherent and valid alternative explanation for the applicant’s injuries. In the proceedings before the Court, the Government referred to the notes made in the report on the applicant’s arrest, as well as the initial medical reports in which he claimed to have sustained his injuries by falling to the ground. Leaving aside the fact that the above‑mentioned documents were compiled in the absence of a lawyer and, as alleged by the applicant, while he was under the control of the very same police officers who had ill-treated him, the Court considers that they are not sufficient to explain the seriousness of the various injuries that were observed. The Court cannot but note in that connection that the investigative authorities failed to arrange for a comprehensive medical examination of the applicant in order to fully assess the scale and gravity of injuries he had sustained and to attempt to establish their source. All the medical examinations which the applicant underwent were merely visual (see paragraphs 5-6 and 8 above), and the so-called forensic examination ordered by an investigator was confined to a simple analysis of one of his medical records (see paragraph 20 above). Thus, the Government failed to present any convincing arguments to rebut the prima facie evidence concerning the circumstances in which the applicant had sustained those injuries (see Arkania v. Georgia [Committee], no. 2625/12, § 45, 25 June 2020).
39. To conclude, the Court considers that the respondent Government have failed to provide any plausible reasons to justify the length of the proceedings (see Kekelidze v. Georgia [Committee], no. 2316/09, § 31, 17 January 2019). The unjustified overall length of the proceedings in the present case, particularly the inexplicable almost four-year stay of the proceedings between 18 November 2014 and 10 July 2018, has significantly prejudiced the effectiveness of the investigation (see Goguadze, cited above, § 52, with further references therein). Furthermore, the failure of the relevant authorities to explain, in a convincing and reasonable manner, the source of the applicant’s injuries after years of investigation raises questions about the whole purpose of the proceedings. Last but not least, the applicant was not allowed to participate in the criminal investigation in any meaningful way, as he was repeatedly refused the victim status despite his numerous requests to that end (see Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, § 39, 8 October 2020, with further references therein). The Court, thus, concludes that the investigation has been ineffective for the purposes of Article 3 of the Convention. For these reasons, it does not consider that it was necessary for the applicant to wait until the completion of the criminal proceedings before lodging his application with the Court, as their completion would not have remedied the overall delay in any way. The Court accordingly dismisses the Government’s objection concerning non-exhaustion of domestic remedies and finds a violation of Article 3 of the Convention under its procedural limb.
(ii) Substantive aspect of the complaint
40. The Court observes that the applicant’s description of the relevant circumstances concerning his alleged ill-treatment was detailed and coherent from the outset of the relevant proceedings and throughout their duration. It involved consistent information regarding the time and place of the treatment, the manner in which he had been treated and the names of those who had allegedly subjected him to that treatment. There are also other relevant factors corroborating his account, such as significant amount of medical evidence (see paragraphs 5-6 and 8 above). In such circumstances, the Court finds that the applicant’s account is sufficiently persuasive, and that his allegations under this Article have been established beyond reasonable doubt. The Government, as has already been concluded above, failed to provide the Court with their own convincing version of the events (see paragraph 38 above). It remains to be ascertained whether the treatment to which the applicant was subjected infringed his rights under Article 3 of the Convention.
41. The Court notes that the applicant suffered multiple injuries on his face and body, and he also suffered a head injury. These injuries were described in the medical records which were available to the investigating authorities. While there is no conclusive evidence showing the exact nature and gravity of the applicant’s injuries, as the Court has already found, the evidential situation in the case is the result of a deficient investigation into the applicant’s allegations (see paragraph 39 above). Taken cumulatively with the evidence in the case file and the applicant’s detailed and consistent description of the ill-treatment he complained of, the Court finds that those injuries were the result of ill‑treatment to which he was subjected while he was under police control. The Court thus concludes that there has been a violation of Article 3 of the Convention under its substantive limb as well.
II. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION
42. The applicant complained that his right to an adversarial hearing and equality of arms was violated on account of the appellate court’s refusal to call a witness on his behalf. He relied on Article 6 §§ 1 and 3 (d) of the Convention, which reads as follows:
“1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …
3. Everyone charged with a criminal offence has the following minimum rights:
…
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; …”
A. Admissibility
43. The Government submitted that the applicant’s complaint under this Article was inadmissible as being out of time since he had already been served with the operative part of the Supreme Court’s judgment on 9 January 2016 and had not lodged his application with the Court until 29 July 2016, twenty days after the six-month time-limit. In support of that argument, they provided the Court with a copy of a document allegedly bearing the signature of the applicant in which he had confirmed that he had been served with the Supreme Court’s judgment on 9 January 2016 while he was in prison.
44. The applicant denied the authenticity of his signature on the document concerned. He noted that he had requested access to the original document in order to have the authenticity of his signature verified, but his attempts had been futile; the relevant prison authorities and the Zugdidi District Court had both maintained that his personal file did not include the original document.
45. The Court notes that from the very outset the applicant challenged the veracity of his signature on the relevant document. Despite his repeated attempts, he was not given an opportunity to obtain the original of the document in question in order to conduct a forensic examination. In any event, the applicant was served with only the operative part of the Supreme Court’s judgment, which did not contain any reasoning. It was not until his lawyer was served with the full written judgment given by the Supreme Court that the applicant was able to find out the content, particularly the reasoning, of the final domestic decision given in his case (compare with Piotrowski v. Poland (dec.) [Committee], no. 8923/12, §§ 34-35, 22 November 2016; see also Piętka v. Poland, no. 34216/07, § 45, 16 October 2012, and Sławiński v. Poland [Committee], no. 61039/16, § 25, 15 April 2021, with further references therein; see also Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V). In view of the nature of the Supreme Court’s jurisdiction to review the procedural fairness of a trial, the applicant could and should have expected a reasoned decision concerning his complaint of a violation of the principles of adversarial proceedings and equality of arms on account of the appellate court’s refusal to call a witness on his behalf. Consequently, it was from 4 February 2016, the date when the applicant’s lawyer was served with a copy of the full written judgment, that the six-month period started to run. As the applicant brought his application to the Court on 29 July 2016, the Government’s objection must be dismissed. The Court further notes that this complaint is not manifestly ill‑founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other ground. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
46. The applicant maintained that the appellate court’s refusal of his application for T.Q. to be examined on his behalf had been in violation of the principle of equality of arms and had breached his rights under Article 6 §§ 1 and 3 (d) of the Convention. He submitted that as a result, he had been prevented from proving his innocence.
47. The Government submitted that the application by the defence for the examination of T.Q. had not been sufficiently substantiated and that in any event, T.Q.’s statement could not have had any decisive influence on the outcome of the proceedings. They argued that there had been irrefutable evidence that the applicant had committed the crime concerned, and that T.Q.’s confession did not rule out the applicant’s participation in the crime. They further confirmed the appellate court’s reasoning that Article 297 (e) of the Code of Criminal Procedure precluded the latter from examining T.Q.’s confession since it fell beyond the scope of his appeal.
2. The Court’s assessment
(a) General principles
48. The relevant general principles were summarised in Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 160-68, 18 December 2018; see also Kartvelishvili v. Georgia, no. 17716/08, §§ 59-61, 7 June 2018, with further references therein).
(b) Application of those principles to the circumstances of the present case
49. In connection with the Government’s first argument, the Court observes that the appellate court did not enter into the merits of the applicant’s application for the examination of T.Q. and, without addressing the relevance and significance of that potential evidence for the case of the defence, dismissed it purely on procedural grounds. Accordingly, the Court does not find it necessary to address in detail the Government’s first argument raised before the Court.
50. The Court notes that when a request by a defendant to examine witnesses is not vexatious, is sufficiently reasoned, is relevant to the subject matter of the accusation and could arguably have strengthened the position of the defence or even led to the defendant’s acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (see, among many others, Topić v. Croatia, no. 51355/10, § 42, 10 October 2013). In the present case, the appellate court dismissed the applicant’s application for the questioning of T.Q. on procedural grounds, concluding that it amounted to newly discovered evidence which fell beyond the scope of the appeal, pursuant to Article 297 (e) of the Code of Criminal Procedure, and which the court was prevented from hearing at an advanced stage of the appeal proceedings. The Court cannot but note, however, that from the very outset, the applicant’s line of defence was that he had not committed the offence in question. This very argument was raised by him in his appeal to the Kutaisi Court of Appeal. In such circumstances, the Court cannot see how the examination of a witness who had allegedly confessed to the commission of the very same offence went “beyond the scope of the points raised in the appeal.” The Court notes the following in this connection: the applicant was convicted of theft; he maintained consistently, from the time of his arrest onwards, that he was not the person who had committed the theft; this was his only line of defence and he requested that a witness who had confessed to the commission of the very same theft be examined in court. There is no doubt that his application to that effect was sufficiently reasoned, relevant to the subject matter of the accusation and could even arguably have led to the applicant’s acquittal (see Kartvelishvili, cited above, § 61, with further references therein; see also Bregvadze v. Georgia, no. 49284/09, § 27, 17 January 2019, and contrast Dorokhov v. Russia, no. 66802/01, § 74, 14 February 2008). As to the appellate court’s argument that the evidence was produced belatedly, the Court notes that paragraph (d) of Article 297 of the Code of Criminal Procedure stated that an application by a party seeking to introduce new evidence in the appeal proceedings was to be granted if the party could show that (i) the evidence was exceptionally important to prove his or her case, and (ii) it had been impossible to present the evidence before the first-instance court (see paragraph 26 above). In the Court’s view, the applicant’s application, even if substantiated in a succinct manner, met the above two preconditions. The Supreme Court on its part simply disregarded that procedural issue and did not address it in its judgment.
51. In view of the foregoing, the Court cannot accept the Government’s argument that the applicant’s procedural application for the examination of a witness on his behalf was treated in a fair manner. The Government argued that in any event, given the solid incriminating evidence on which the applicant’s conviction had been based, the refusal to have that witness examined in court had not had a detrimental impact on the overall fairness of the proceedings. Without going into an assessment of the incriminating evidence, the Court considers that the applicant should have had the opportunity, in line with the principle of equality of arms, to present the domestic courts with evidence in his defence that might have exonerated him. By preventing him from doing so in a procedurally flawed manner (see the Court’s conclusion in the previous paragraph), the domestic courts put the applicant at a disadvantage vis-à-vis the prosecution. There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
52. 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.”
53. The applicant claimed 12,000 euros (EUR) in respect of non‑pecuniary damage.
54. The Government submitted that the claim was unreasonable and exaggerated as to the amount.
55. The Court awards the applicant EUR 12,000 in respect of non‑pecuniary damage, plus any tax that may be chargeable on that amount.
56. 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 application admissible;
2. Holds that there has been a violation of Article 3 of the Convention in its procedural limb;
3. Holds that there has been a violation of Article 3 of the Convention in its substantive limb;
4. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;
5. Holds
(a) that the respondent State is to pay the applicant, within three months, EUR 12,000 (twelve thousand 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.
Done in English, and notified in writing on 13 January 2022, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Martina Keller Lətif Hüseynov
Deputy Registrar President
Leave a Reply