FIFTH SECTION
\nDECISION<\/p>\n
Application no. 25406\/08
\nMuhittin TOPALOGLU
\nagainst Georgia<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 11\u00a0December 2018 as a Committee composed of:<\/p>\n
S\u00edofra O\u2019Leary, President,
\nL\u04d9tif H\u00fcseynov,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 22 April 2008,<\/p>\n
Having regard to the observations submitted by the respondent Government,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Muhittin Topaloglu, is a Turkish national who was born in 1966 and lives in Hopa. He was represented before the Court by Mr\u00a0G. Zirakishvili and Ms M. Pkhaladze, lawyers practising in Tbilisi.<\/p>\n 2.\u00a0\u00a0The Georgian Government (\u201cthe Government\u201d) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. The Turkish Government did not avail themselves of their right to intervene as a third party.<\/p>\n A.\u00a0\u00a0The circumstances of the case<\/strong><\/p>\n 3.\u00a0\u00a0The facts of the case, as submitted by the parties, may be summarised as follows.<\/p>\n 4.\u00a0\u00a0On 23 June 2005, on the basis of operational information, Z.M. was arrested on suspicion of the unlawful possession of drugs. During his personal search about 1 kg of heroin was found in the bag he was carrying. Some additional heroin and a gun were also found on his person and in his apartment. On the same date Z.M. gave a self-incriminating statement in the presence of his lawyer and named the applicant as his supplier.<\/p>\n 5.\u00a0\u00a0On the next day the applicant was arrested at the Sarpi border crossing on the border with Turkey and taken to Tbilisi. He was questioned as a suspect in the presence of a lawyer and an interpreter. He admitted to organising the purchase of about 1 kg of heroin in Turkey and its transfer to Georgia via the Sarpi border crossing. While providing detailed information about all the circumstances of the alleged offence, he claimed that it was the first and only time that he had participated in drug-related activities.<\/p>\n 6.\u00a0\u00a0On 25 June 2005 the applicant was charged with the unlawful purchase, storage, transfer and sale of a particularly large quantity of drugs, an offence committed by a group with a preliminary agreement (Article\u00a0260 \u00a7\u00a7\u00a02 (b) and 3 (a) of the Criminal Code). He was also charged with aggravated drug trafficking, an offence under Article 262 \u00a7\u00a7 2 (b) and 3\u00a0(a) of the Criminal Code. When questioned again, he confirmed the veracity of his initial statement and maintained his guilt. However, he challenged the accuracy of the facts described in his initial statement, particularly as far as they concerned his contact with Z.M., and requested an opportunity to confront him.<\/p>\n 7.\u00a0\u00a0On the same date Z.M. was charged under Article 260 \u00a7\u00a7\u00a02\u00a0(b) and 3\u00a0(a). He was also charged with arms-related offences.<\/p>\n 8.\u00a0\u00a0On 30 August 2005 the preliminary investigation concluded. The applicant was charged under Article 260 \u00a7 3 (a) and Article 262 \u00a7 3 (a) of the Criminal Code, and the bill of indictment, together with the case file, was forwarded to a trial court.<\/p>\n 9.\u00a0\u00a0By a decision of 1 December 2005 the applicant was found guilty as charged by the Tbilisi City Court and sentenced to twenty years\u2019 imprisonment. The first-instance court accepted the prosecution\u2019s version of events, according to which the applicant had bought the drugs in Turkey from an unidentified person on an unspecified date and transported them to Batumi, Georgia, via the Sarpi border checkpoint on 13 June 2005. On the next day he had met Z.M. in Batumi and both of them had transported the drugs to Tbilisi to be sold subsequently.<\/p>\n 10.\u00a0\u00a0According to the court transcript, during the trial the applicant retracted his confession and protested that he was innocent. He claimed that he had given a self-incriminating statement in a state of stress and confusion. However, the trial judge dismissed his statement given in court. He noted that the applicant had given two rather consistent and very detailed self-incriminating statements in the presence of an interpreter and a lawyer of his own choosing during the pre-trial investigation. He could not have provided so many details if, as he had claimed in court, he had been particularly stressed and confused. The trial court also referred to a letter from the Ministry of Internal Affairs, according to which several drug traffickers had been identified and arrested on the basis of the information that had been provided by the applicant. It noted that the applicant had failed to explain how he had possessed accurate information about alleged drug traffickers if he had not been personally involved in drug-related activities. Lastly, the trial court also noted that the applicant had failed to explain why he had unexpectedly attempted to leave Georgia the day after Z.M.\u2019s arrest. In view of all the above-mentioned circumstances, the recordings of telephone conversations between the applicant and Z.M., and the latter\u2019s pre-trial statement and evidence given in court, the Tbilisi City Court concluded that the applicant\u2019s guilt was proved.<\/p>\n 11.\u00a0\u00a0Within the scope of the same proceedings, the Tbilisi City Court approved a plea bargain concluded between Z.M. and the prosecutor\u2019s office and sentenced Z.M. cumulatively to nine years in prison and a fine in the amount of 20,000 Georgian laris (GEL) for the offences with which he had been charged.<\/p>\n 12.\u00a0\u00a0The applicant appealed. He claimed that Z.M. had implicated him in the drug-trafficking offence in return for a more lenient sentence. In this connection, the applicant also submitted that Z.M. had tried to retract his incriminating pre-trial statement when he had been questioned in court, but the prosecutor in charge had threatened him.<\/p>\n 13.\u00a0\u00a0On 29 May 2007 the Tbilisi Court of Appeal upheld the applicant\u2019s conviction in full. On 10 March 2008 the Supreme Court of Georgia rejected an appeal on points of law by the applicant as inadmissible.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 14.\u00a0\u00a0The relevant provisions concerning \u201cprocedural agreements\u201d (\u201c\u10e1\u10d0\u10de\u10e0\u10dd\u10ea\u10d4\u10e1\u10dd\u10e8\u10d4\u10d7\u10d0\u10dc\u10ee\u10db\u10d4\u10d1\u10d0\u201d in Georgian, saprotseso shetankhmeba), or plea bargaining were summarised by the Court in the case of Natsvlishvili and Togonidze v. Georgia (no. 9043\/05, \u00a7\u00a7 49-53, ECHR 2014 (extracts)).<\/p>\n COMPLAINT<\/strong><\/p>\n 15.\u00a0\u00a0The applicant complained under Article 6 \u00a7 1 of the Convention that the criminal proceedings against him had been unfair and that his conviction had been primarily based on the incriminating statement of a co-accused who had been released under a plea bargain.<\/p>\n THE LAW<\/strong><\/p>\n Alleged violation of Article 6 \u00a7 1 of the Convention<\/p>\n 16.\u00a0\u00a0The applicant alleged a violation of his right to a fair trial under Article 6 \u00a7 1 of the Convention, the relevant part of which provides:<\/p>\n \u201cIn the determination … of any criminal charge against him, everyone is entitled to a fair and public hearing … by [a] … tribunal … \u201d<\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 17.\u00a0\u00a0The Government submitted that the use of Z.M.\u2019s evidence against the applicant had been compatible with the guarantees under Article 6 of the Convention. In this connection, they submitted that the applicant had had an opportunity to confront his co-accused in court, and that at no stage of the proceedings had the defence argued that they had been limited for whatever reason in their right to challenge Z.M.\u2019s evidence. Furthermore, the Government stressed that the domestic courts had relied on corroborating evidence of the applicant\u2019s guilt in their reasoning. In this connection, the courts had provided very detailed reasoning as to why the applicant\u2019s pre\u2011trial statement appeared to be more reliable than the statement which he had given in court.<\/p>\n 18.\u00a0\u00a0No observations were received from the applicant within the time\u2011limit set for that purpose (Rule 38 \u00a7 1, as in force at the time). However, the applicant asked the Court to continue the proceedings.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n 19.\u00a0\u00a0The Court reiterates that it is not its task to take the place of the domestic courts, which are in the best position to assess the evidence before them, establish facts and interpret domestic law. The Court will not, in principle, intervene, unless the decisions reached by the domestic courts appear arbitrary or manifestly unreasonable and provided that the proceedings as a whole were fair, as required by Article 6 \u00a7 1. In making this assessment, the Court will look at the proceedings as a whole, having regard to the rights of the defence but also to the interests of the public and the victims that crime is properly prosecuted (see Schatschaschwili v.\u00a0Germany [GC], no. 9154\/10, \u00a7\u00a0101, 15 December 2015, with further references therein). The underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence against him. The use in evidence of statements obtained at the police inquiry and judicial investigation stages is not in itself inconsistent with Article 6 \u00a7\u00a7\u00a01 and 3 (d) of the Convention, provided that the rights of the defence have been respected (see Sa\u00efdi v.\u00a0France, 20 September 1993, \u00a7 43, Series\u00a0A no.\u00a0261\u2011C, and A.M. v.\u00a0Italy, no.\u00a037019\/97, \u00a7 25, ECHR 1999\u2011IX).<\/p>\n 20.\u00a0\u00a0Turning to the circumstances of the current case, the Court notes that Z.M., the applicant\u2019s co-accused, was questioned in court in the presence of the applicant and his lawyer. The applicant has never alleged, either at domestic level or in the proceedings before the Court, that he was prevented from effectively challenging Z.M.\u2019s evidence in court (see Buglov v.\u00a0Ukraine, no. 28825\/02, \u00a7\u00a7 117-119, 10 July 2014; contrast El Khouryv.\u00a0Germany, nos. 8824\/09 and 42836\/12, \u00a7 94, 9 July 2015). He did claim that Z.M. had tried to retract his incriminating pre-trial statement when he had been questioned in court, and that the prosecutor in charge had threatened him (see paragraph 12 above). However, that allegation made by the applicant is not supported by the case file. The record of the relevant hearing does not contain any information revealing that this occurred, and the applicant did not complain of any possible inaccuracy in the transcript of the trial. The applicant also failed to request that Z.M. be re-examined before the court of appeal, and did not voice such a grievance in his subsequent appeal before the Supreme Court.<\/p>\n 21.\u00a0\u00a0At the same time, the Court notes that there is a risk that a co\u2011accused\u2019s statement may be unreliable, given his or her obvious interest in diverting blame from himself to another person. Thus, a higher degree of scrutiny may be required for assessing such a statement, because the position in which accomplices find themselves while testifying is different from that of ordinary witnesses. They testify without being under oath, that is, without any affirmation of the truth of their statements which could render them punishable for perjury for wilfully making untrue statements (see Melnikov v. Russia, no. 23610\/03, \u00a7 75, 14 January 2010, andVladimir Romanov v. Russia, no. 41461\/02, \u00a7 102, 24 July 2008). In the Court\u2019s opinion, this risk was present in the current case, given that the applicant\u2019s co-accused Z.M. entered into a plea bargain with the prosecution in exchange for a more lenient sentence. However, this fact in and of itself could not have had a prejudicial effect on the proceedings conducted against the applicant (see Erdem v. Germany (dec.), no. 38321\/97, 9\u00a0December 1999). Firstly, as regards plea bargaining in general, the Court has previously found it to be a common feature of European criminal justice systems (see Scoppola v. Italy (no. 2) [GC], no.\u00a010249\/03, \u00a7 135, 17\u00a0September 2009, and Natsvlishvili and Togonidze v. Georgia, no.\u00a09043\/05, \u00a7\u00a7 90-91, ECHR 2014 (extracts), with further references). Secondly, Z.M. was not granted complete immunity, but only a reduction in his prison term in exchange for cooperation. Contrary to what the applicant claimed (see paragraph 15 above), Z.M. received a prison sentence (see paragraph 11 above). Thirdly, as already concluded in the preceding paragraph, the applicant had an opportunity to effectively challenge Z.M.s\u2019 evidence in court. Lastly, Z.M.\u2019s case was not separated from that of the applicant. Thus, in the current case, no issue arose as to whether the principle of res judicata appliedto facts admitted in a case to which the applicant was not a party (contrast Navalnyy and Ofitserovv.\u00a0Russia, nos.\u00a046632\/13 and 28671\/14, \u00a7\u00a7 104-109, 23 February 2016).<\/p>\n 22.\u00a0\u00a0The Court further notes that the applicant\u2019s conviction was also based on the statements of the police officers who had arrested Z.M., the records of telephone conversations between the applicant, Z.M. and a third person allegedly involved in the disputed drug offence, and the applicant\u2019s self-incriminating pre-trial statements (see paragraph 10 above). The Court notes in this connection that the applicant has never alleged that his self\u2011incriminating pre-trial statements were obtained through ill-treatment (contrast C\u0113snieks v. Latvia, no. 9278\/06, \u00a7\u00a7 67-69, 11 February 2014, and Hajnal v. Serbia, no. 36937\/06, \u00a7 115, 19 June 2012). Those statements were given in the presence of an interpreter and a lawyer of his own choosing (see paragraphs 5-6 above). The trial judge provided reasonable explanations as to why the applicant\u2019s pre-trial statement had to be considered reliable (see paragraph 10 above). The Court sees no arbitrariness arising in this respect.<\/p>\n 23.\u00a0\u00a0In making an assessment of the overall fairness of the trial, the Court has regard to the foregoing considerations, notably: the fact that the applicant had an opportunity to organise his defence in an appropriate way and put forward all his relevant arguments; the weight of Z.M.\u2019s evidence for the applicant\u2019s conviction and the fact that the applicant had an effective opportunity to challenge him; and the trial court\u2019s approach to assessing other incriminating evidence. The Court therefore concludes that the applicant has failed to substantiate his complaint that the criminal proceedings conducted against him were unfair.<\/p>\n 24.\u00a0\u00a0It follows that the applicant\u2019s complaint under Article 6 \u00a7 1 of the Convention is manifestly ill-founded within the meaning of Article 35 \u00a7\u00a03\u00a0(a) of the Convention and should be rejected in accordance with Article\u00a035 \u00a7\u00a04 of the Convention.<\/p>\n For these reasons, the Court, unanimously,<\/p>\n Declares the application inadmissible.<\/p>\n Done in English and notified in writing on 17 January 2019.<\/p>\n Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 S\u00edofra O\u2019Leary
\nDeputy Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n