Information Note on the Court’s case-law 233
Batiashvili v. Georgia – 8284/07
Judgment 10.10.2019 [Section V]
Presumption of innocence
Applicability of Article 6 § 2 in the absence of “criminal charge” in circumstances where authorities had disseminated a manipulated audio recording before arrest: Article 6 applicable; violation
Facts – On 22 July 2006, a preliminary investigation was opened in respect of a criminal case concerning the creation and leadership of an illegal armed group. The following day a warrant to intercept the telephone calls of the leader of a local armed group was obtained and telephone conversations between that leader and the applicant, a prominent member of the opposition, were recorded. A recording of a telephone conversation between them was provided to a television channel and broadcast on 25 July 2006.
The applicant denounced the situation and stated that the recording had been tampered with. Senior political figures publicly commented on the association between the applicant and the local leader, their involvement in anti-government activity, and described the guilt of the applicant as unquestionable. On 29 July 2006, the applicant was arrested and charged with covering up the preparation of a crime and aiding and abetting high treason. He was convicted but received a presidential pardon before an appeal to the Supreme Court had been determined.
Law – Article 6 § 2
(a) Admissibility – The applicant alleged that the authorities had manipulated that recording in order to insinuate the existence of a crime and had then made it available to the public before formally bringing the charge against him. Such allegedly mala fide conduct, if established or inferred during the Court’s examination on the merits, combined with the close temporal proximity between the timing of the release of the recording, the questioning of the applicant and the bringing of the charge could attract, in the particular circumstances of the applicant’s case, the protection of Article 6 § 2 from the moment the allegedly manipulated version of the recording had been made available to the public by the authorities. Accordingly the question of applicability of Article 6 § 2 was closely linked to the substance of the complaint and was joined to the merits.
(b) Merits – The applicant’s consistent position, voiced several times at domestic level, was that the audio recording had been manipulated in order to omit crucial parts of the conversation. By contrast, the Government’s position at domestic level and before the Court had been inconsistent on several accounts. The Government had submitted before the Court that only one version of the audio recording existed at domestic level. However, it could be concluded, based on the official documents issued by the Ministry of the Interior and the Chief Prosecutor’s Office, that two versions of the recording had existed at domestic level.
As regards the question of whether it had been the government authorities or the private television channel that had manipulated the audio recording in question, the Court dismissed the Government’s argument at domestic level that the television channel must have edited the video to omit the relevant parts based on the limitations of available airtime as unconvincing. Before the Court, the Government had submitted that it was within the private television company’s remit to transmit whichever parts of the conversation it had deemed relevant. That was not consistent with the Government’s position before the Court that only one official version of the recording had existed and that it was identical to the one transmitted by the television channel in question. On the basis of all the information available, the recording had been provided to the media outlet in question by the Ministry of the Interior.
In view of those considerations, the Court had to draw inferences from the available material and the authorities’ conduct and proceeded on the basis that the applicant’s allegations concerning the manipulation of evidence in his criminal trial and the timing of the dissemination of the recordings were well founded.
As to whether such conduct was compatible with Article 6 § 2, the Court observed that the recording provided to the television channel had been broadcast four days prior to the applicant being formally charged and arrested. The sequence of closely inter-connected events, considered as a whole, indicated that the applicant’s situations had been substantially affected, for the purposes of the applicability of Article 6 § 2, by the conduct of the investigating authorities which had wrongly created a suspicion in respect of the applicant by tampering with evidence and having it disseminated in order to subsequently charge him with a crime based on that material.
While the charge of failing to report a crime had been dropped in the course of the proceedings before the first-instance court, the indictment sent for trial – almost four months after the recording had been made available to the public – had still referred to it, even though the prosecuting authorities must have been well aware of the falseness of the evidence underlying that charge. In such circumstances, the applicant’s portrayal as guilty in respect of the charge had continued beyond the initial transmission of the audio recording in the media and persisted for at least four months.
Immediately following the transmission of the recording, several statements had been made by members of parliament referring to it and expressing their opinions as to the applicant’s role in particular events. While the applicant’s complaints regarding the public statements had been declared inadmissible by the Court, they nevertheless formed part of the overall context surrounding the transmission of the recordings which had helped create the impression that the applicant had committed crimes before his guilt had been proved in court. The dissemination of the recordings could not therefore be justified in the public interest and the relevant authorities’ involvement in the manipulation and subsequent dissemination of the audio recording to the media had contributed to the applicant being perceived as guilty before his guilt had been proved in court.
Conclusion: Article 6 § 2 applicable; violation (unanimously).
The Court found no violation of Article 5 § 3, accepting that the reasons cited by the domestic courts had constituted relevant and sufficient grounds for detention and that it could not be said that the investigating and judicial authorities had displayed a lack of special diligence in handling the applicant’s case. The Court also found no violation of Article 5 § 4, noting that the applicant had been present at all hearings of the first-instance court related to his pre-trial detention and that he had had the possibility to challenge the allegations against him effectively.
Article 41: EUR 3,600 in respect of non-pecuniary damage.
(See also Blake v. the United Kingdom (dec.), 68890/01, 25 October 2005, Information Note 79; and compare Zollmann v. the United Kingdom (dec.), 62902/00, 27 November 2003, Information Note 58)