FIFTH SECTION<\/p>\n
CASE OF BREGVADZE v. GEORGIA
\n(Application no. 49284\/09)<\/p>\n
JUDGMENT
\nSTRASBOURG
\n17 January 2019<\/p>\n
This judgment is final but it may be subject to editorial revision.<\/p>\n
In the case of Bregvadze v. Georgia,<\/strong><\/p>\n The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:<\/p>\n S\u00edofra O\u2019Leary, President, Having deliberated in private on 11 December 2018,<\/p>\n Delivers the following judgment, which was adopted on that date:<\/p>\n PROCEDURE<\/strong><\/p>\n 1.\u00a0\u00a0The case originated in an application (no. 49284\/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Georgian national, Mr Giorgi Bregvadze (\u201cthe applicant\u201d), on 13 August 2009.<\/p>\n 2.\u00a0\u00a0The applicant was represented by Mr A. Noselidze and Mr\u00a0G.\u00a0Giunashvili, lawyers practising in Tbilisi. The Georgian Government (\u201cthe Government\u201d) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.<\/p>\n 3.\u00a0\u00a0On 24 February 2016notice of the complaint under Article 6 \u00a7\u00a7 1 and\u00a03 (d) of the Convention concerning the alleged unlawfulness of the criminal proceedings conducted against the applicant was given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule 54 \u00a7 3 of the Rules of Court.<\/p>\n THE FACTS<\/strong><\/p>\n I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n 4.\u00a0\u00a0The applicant was born in 1987 and was detainedin prison in Rustavi at the material time.<\/p>\n A.\u00a0\u00a0The applicant\u2019s arrest and pre-trial investigation<\/strong><\/p>\n 5.\u00a0\u00a0On 3 December 2007 a taxi driver reported to the police that he had been robbed of a mobile phone and twenty-six Georgian laris by two young men at knife-point. He claimed that he could identify both of them. On the next day,the applicant was arrested on suspicion of the armed robbery of the taxi driver. Neither a body search of the applicant nor a search of his apartment revealed any unlawful items. On the same date an identity parade was held, during which the taxi driver identified the applicant as one of his assailants.<\/p>\n 6.\u00a0\u00a0During his initial questioning as an accused, the applicant gave a detailed statement providing an alibi and naming all the people with whom he had spent the evening of the crime, or who had seen him on that evening.In particular, he claimed that he had spent that evening with his girlfriend and her friendout walking the streets and that hehad been seen by several people in the area.<\/p>\n 7.\u00a0\u00a0On 7 December 2007 the applicant\u2019s lawyer wrote to the investigator in charge of the case requesting that hequestion twelve persons who could confirm the applicant\u2019s alibi. By a decision of 9 December 2007 the investigator rejected the request as unsubstantiated. In his reasoning he noted that the applicant\u2019s girlfriend and her friend had an interest in the outcome of the case.As for the remaining potential witnesses, according to the investigator, they had not been with the applicant at the time of commission of the offence in question. The rejection of the applicant\u2019s request was confirmed on appeal by a supervising prosecutor.<\/p>\n B.\u00a0\u00a0Court proceedings<\/strong><\/p>\n 8.\u00a0\u00a0The trial opened on 22 April 2008. In the absence of the applicant\u2019s lawyer, who had failed to appear for the hearing, the trial judge decided to adjourn it. The trial resumed on 30 April 2008, when the applicant was represented by a new lawyer. The latter requestedanadjournment of the hearing, claiming that she had not had sufficient time to prepare the defence. Her request was granted and the hearing was re-scheduled for 6 May 2008.<\/p>\n 9.\u00a0\u00a0On 5 May 2008 the applicant\u2019s lawyer filed a written request with the trial judge complaining that the pre-trial investigation into the circumstances of the armed robbery of the taxi driver had been incomplete and one-sided. She noted that the applicant\u2019s alibi should have been verified and she requested, in that connection, on the basis of Article 468 of the Code of Criminal Procedure (\u201cthe CCP\u201d), that seven witnesses be questioned. In support of her request she submitted written statementsfor those witnesses.<\/p>\n 10.\u00a0\u00a0The next day, at the hearing of 6 May 2008, the prosecutor asked the trial judge to dismiss the defence\u2019s application as out of time. He claimed that the request for the examination of defence witnesses should have been submitted five days before the opening of the trial. In reply, the lawyer noted that she had only been instructed in the case on 29 April 2008 and accordingly could not have filed any requests beforehand. Having heard the parties, the trial judge rejected the request of the defence on the basis that it did not comply with Article 475 of the CCP. He accepted the prosecutor\u2019s argument that any such request should have been lodged five days before the opening of the trial.<\/p>\n 11.\u00a0\u00a0On 22 May 2008 the Tbilisi City Court convicted the applicant as charged and sentenced him to seven years and six months\u2019 imprisonment. The applicant\u2019s conviction was based on the evidence given in court by the taxi driver, the investigator in charge of the case, the results of the identity parade and the results of two forensic examinations. The first forensic examination established asimilarity in fibres of black cotton removed from the front and back seats of the taxi and micro-particles removed from the applicant\u2019s coat. The report stated that both fibres had a similar nature, colour, colour tonality, fibre structure and type of dye. The second expert examination was an odour recognition examination which established that the samples of the odour trace taken from the taxi corresponded with the odour sample taken from the applicant. The court also relied on the report on the examination of the crime scene, and the reports on the arrest andthe searches of the applicant\u2019s person and his apartment.<\/p>\n 12.\u00a0\u00a0The applicant appealed against his conviction. He alleged that the pre-trial investigation and the first-instance court proceedings had been unfair, in violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention; and specifically that his defence rights had been violated as he had been prevented from showing his innocence by proving his alibi before the court, and in that connection had not been allowed to examine witnesses on his behalf. He reiterated his request for the examination of the witnesses.<\/p>\n 13.\u00a0\u00a0On 15 July 2008 the appeal proceedings started. The appeal court rejected the applicant\u2019s request for the examination of defence witnesses, concluding that it had not been submitted as required by Articles\u00a0231 and\u00a0475 \u00a7 4 of the CCP (as cited in paragraph 17 below).<\/p>\n 14.\u00a0\u00a0On 18 July 2008 the Tbilisi Court of Appeal upheld the applicant\u2019s conviction. The court concluded that the applicant\u2019s guilt had been proven on the grounds of the statement of the taxi driver, the statement of the investigator, the report on the identification parade, the report on the applicant\u2019s arrest and the search of his person, the report on the search of the applicant\u2019s apartment, and the forensic conclusions, among other grounds. None of the defence witnesses was questioned during the appeal proceedings. As for the applicant\u2019s version of the events, the court concluded that it had been fabricated with the sole purpose of evading criminal liability.<\/p>\n 15.\u00a0\u00a0The applicant lodged an appeal on points of law. He maintained that his defence rights as envisaged in Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention had been violated on account of the lower courts\u2019 refusal to hear the defence witnesses. He claimed in that connection that he had been put in a disadvantageous position vis-\u00e0-vis the prosecution and had been prevented from proving his innocence.<\/p>\n 16.\u00a0\u00a0By a decision of 13 February 2009 the Supreme Court of Georgia dismissed the applicant\u2019s appeal on points of law as inadmissible.<\/p>\n II.\u00a0\u00a0RELEVANT DOMESTIC LAW<\/p>\n 17.\u00a0\u00a0The relevant Articles of the Code of Criminal Procedure (which was in force between 20 February 1998 and 1 October 2010) read, at the material time of the events in question, as follows:<\/p>\n Article 18 \u2013 The obligation to elucidate the circumstances of a case in a complete, objective and thorough manner<\/p>\n \u201c…2. Factual circumstances of a criminal case should be examined [by an investigator, public prosecutor, judge and court] in a complete, objective and thorough manner. All the circumstances, both incriminating and exonerating the accused in respect of the commission of an offence, and aggravating and mitigating criminal responsibility for the offence, must always be given equal consideration.<\/p>\n 3. Every complaint and request made by a suspect, an accused, or his or her lawyer, that is aimed at proving innocence or reducing guilt, shifting the criminal responsibility onto other people or pointing at possible procedural irregularities made during the criminal proceedings must always be carefully examined [by an investigator, public prosecutor, judge or court].\u201d<\/p>\n Article 232 \u2013 Deciding on a procedural application<\/p>\n \u201c1. A procedural application aimed atfacilitating the task of elucidating all the circumstances of the case in a complete, objective and thorough manner must be granted.<\/p>\n 2. Procedural applications made by the public prosecution and the defence must always be given equal consideration. …<\/p>\n 6. A decision to reject a procedural application must contain reasons.\u201d<\/p>\n Article 231 \u2013 Rule on filing a procedural application<\/p>\n \u201c1. The filing of a procedural application is allowed at any stage of acriminal trial. The filing of a procedural application once oral pleadings have commenced before the court is permitted only if the procedural application concerns the examination of substantially new evidence, and the production of this evidence by the party before the oral pleadings was objectively impossible.<\/p>\n 2. A procedural application can be filed in writing or orally. It has to be substantiated …<\/p>\n 5. The dismissal of a procedural application does not deprive [the party] of the opportunity, in the event that a new substantial circumstance is established, to file the application again at the same or a different stage of the criminal proceedings …<\/p>\n 7. During court proceedings a procedural application with the court shall be filed in writing, except when a party, on the basis of newly established circumstances, makes an application at the hearing.\u201d<\/p>\n Article 468 \u2013 Filing and deciding on a procedural application<\/p>\n \u201c1. The chair [of a hearing] shall ask the representatives of the prosecution and defence whether they have a procedural application concerning … the summoning of witnesses …<\/p>\n 2. The Court shall consider every procedural application lodged and shall hear the arguments of the parties to the proceedings. If the circumstances, in respect of which the application was filed, are important for the case, the court shall grant the application. A person whose procedural application was rejected can re-lodge it during the court investigation if new relevant circumstances are discovered.\u201d<\/p>\n Article 475 \u2013 Presentation of evidence<\/p>\n \u201c1. A court investigation consists of the presentation and examination (at the first stage) of evidence either incriminating or exonerating the accused …<\/p>\n 4. The prosecution is authorised to present the evidence indicated in the annex to the bill of indictment … The defence can present evidence (including a list of witnesses to be examined) to the court at the latest five days before the start of the court hearing.\u201d<\/p>\n THE LAW<\/strong><\/p>\n I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7\u00a7 1 AND 3 (d) OF THE CONVENTION<\/p>\n 18.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention about the refusal of the investigative and judicial authorities to examine his defence witnesses. The relevant parts of Article 6 of the Convention read as follows:<\/p>\n \u201c1. In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …<\/p>\n 3. Everyone charged with a criminal offence has the following minimum rights:…<\/p>\n (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;<\/p>\n …\u201d<\/p>\n A.\u00a0\u00a0Admissibility<\/strong><\/p>\n 19.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n B.\u00a0\u00a0Merits<\/strong><\/p>\n 1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n 20.\u00a0\u00a0The applicant maintained that the domestic courts\u2019 refusal of his request to examine several witnesses on his behalf had been in violation of the principle of equality of arms and had breached his rights under Article\u00a06 \u00a7\u00a7\u00a01 and 3 (d) of the Convention. As a result, he claimed, he had been prevented from proving his alibi. Hence, his case had been treated in a one\u2011sided and flawed manner. He noted that at the hearing of 30 April 2008 he had had a newly appointed lawyer who had not had time to prepare for that hearing (see the Government\u2019s argument in paragraph 21 below) and therefore could not have filed a request for the examination of the witnesses by that date. Subsequently, she had filed the request on the basis of Article\u00a0475 of the CCP (see paragraph 17 above) but it had been unlawfully rejected. As for the appeal proceedings, the applicant maintained that the procedural application had been duly filed as part of his appeal but the appeal court had erroneously dismissed it.<\/p>\n 21.\u00a0\u00a0The Government submitted that the applicant\u2019s witnesses had neither been relevant nor reliable. They further argued that in view of the very solid and strong evidentiary basis that had existed for the applicant\u2019s conviction and the fact that the applicant had submitted his requests for the examination of the witnesses in breach of the relevant procedural rules, the domestic courts\u2019 refusal to hear those witnesses had not been arbitrary. In the latter respect, the Government stressed that during the preparatory hearing on 30 April 2008 the trial judge had invited the applicant and his lawyertosubmit any procedural applications, but they had not availed themselves of that opportunity.<\/p>\n 2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n (a)\u00a0\u00a0General principles<\/p>\n 22.\u00a0\u00a0The relevant general principles were summarised in the case of Kartvelishvili v. Georgia (no. 17716\/08<\/a>, \u00a7\u00a7 59-61, 7 June 2018, with further references therein).<\/p>\n (b)\u00a0\u00a0Application of the above principles to the circumstances of the current case<\/p>\n 23.\u00a0\u00a0In order to decide whether the applicant in the current case was afforded the opportunity to present his case without being placed at a disadvantage vis-\u00e0-vis the prosecution, and whether the proceedings as a whole were conducted fairly, the Court will first examine the basis for the applicant\u2019s conviction (seeKartvelishvili, cited above, \u00a7 62, with further references therein).<\/p>\n 24.\u00a0\u00a0The applicant\u2019s conviction for armed robbery was primarily based on the statement of the victim, the results of the identification parade, and the results of the two forensic examination reports. In their judgments of 22\u00a0May and 18 July 2008 the Tbilisi City Court and the Tbilisi Court of Appealrespectively held that the applicant\u2019s guilt was also confirmed by other evidence (see paragraphs 11 and 14 above). Among the other evidence relied on, the courts listed the statement of the investigator in charge of the case, the results of the examination of the crime scene, the report on the applicant\u2019s arrest and the search of his person, and the report on the search of the applicant\u2019s home. The courtsdid not, however, explain howthat evidence proved the applicant\u2019s guilt. None of the searches had revealed any unlawful object with a connection to the offence in question, and the investigator had simply recounted the initial stage of the investigation. It thus appears that the applicant\u2019s conviction was principally based on the victim\u2019s evidence and the forensic reports, which primarily implied that the applicant had taken the taxi in question on the day of the crime.<\/p>\n 25.\u00a0\u00a0The Court has previously held that in circumstances where an applicant\u2019s conviction has been based primarily on an assumption that he or she was in a particular place at a particular time, the principle of equality of arms and, more generally, the right to a fair trial, imply that the applicant should be afforded a reasonable opportunity to challenge the assumption effectively (see Popov v. Russia, no. 26853\/04, \u00a7 183, 13 July 2006, and Polyakov v. Russia, no. 77018\/01, \u00a7\u00a7 34-37, 29 January 2009).<\/p>\n 26.\u00a0\u00a0In the present case,the applicant,as soon as he was arrested, claimed to have an alibi and requested that several witnesses be questioned to confirm it (see paragraphs 6 and 7above). The investigator in charge of the caserejected his application on the ground that two of the potential witnesseswere close to the applicantand were simply trying to help him. For the rest, he concluded that the proposed witnesses had not seen the applicant at the actual time of the commission of the offence (see paragraph 7 above). The prosecutor confirmed that rejection. The applicant subsequently sought leave to call those witnesses before the trial court. The latter dismissed the request concluding that it had been lodged out of time. The applicant reiterated his request in his appeal before the Tbilisi Court of Appeal. However, the appeal court rejected it, concluding that the request had not been submitted in writing,as required by Article 231 of the CCP.<\/p>\n 27.\u00a0\u00a0The 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 his acquittal, the domestic authorities must provide relevant reasons for dismissing such a request (see Topi\u0107 v. Croatia, no. 51355\/10, \u00a7 42, 10 October 2013, and Polyakov, cited above, \u00a7 34-35). In the current case, the domestic courts dismissed the request on procedural grounds. However, at the material time, the CCPmade provision for a defendant to call witnesses, if there were proper grounds to do so, at any stage of the proceedings (see Article 231 \u00a7 1 as cited in paragraph 17above). The fact that the lawyer representing the applicant at that timehad been newly appointed could, in the Court\u2019s view, serve as a valid reason for the delayed submission of the request. In any event, during the proceedings before the Court of Appeal, the applicant had filed a request for the examination of the alibi witnesses. It was submitted well in advance and in writing as a part of the appeal to the Court of Appeal (see paragraph 12 above). The latter, however, dismissed it erroneously concluding that the request had not been submitted in writing. The Supreme Court disregarded that procedural omission and rejected the applicant\u2019s appeal on points of law as unsubstantiated.<\/p>\n 28.\u00a0\u00a0In view of the foregoing the Court cannot accept the Government\u2019s argument that the applicant\u2019s procedural application for the examination of the alibi witnesses was treated in a fair manner. The Government further argued that in any event, given the solid incriminating evidence on which the applicant\u2019s conviction had been based, the refusal to have his witnesses examined incourt had not had a detrimental impact on the overall fairness of the proceedings. The Court notes in this respect the following:the applicant was convicted of the armed robbery of a taxi driver;he maintained consistently, from the time of his arrest onwards, that he had an alibi;it was his only line of defence and he requested that witnesses be examined in order to prove his alibi for the time of the offence. There is no doubt that the application was sufficiently reasoned, relevant to the subjectmatter of the accusation and could even arguably have led to the applicant\u2019s acquittal (seeKartvelishvili, cited above, \u00a7 61, with further references therein; and contrast Dorokhov v. Russia, no. 66802\/01, \u00a7 74, 14 February 2008). 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 the equality of arms, to present the domestic courts with evidencein his defence that might have exonerated him. By preventing him from doing so, in a procedurally flawed manner (see the Court\u2019s conclusion in the preceding paragraph), the domestic courts put the applicant at a disadvantage \u00advis-\u00e0-vis the prosecution. There has accordingly been a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention in the present case.<\/p>\n II.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n 29.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n \u201cIf 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.\u201d<\/p>\n A.\u00a0\u00a0Damage<\/strong><\/p>\n 30.\u00a0\u00a0The applicant claimed 80,000 euros (EUR) in respect of non\u2011pecuniary damage. He submitted that he had endured severe distress as a result of his unlawful conviction and ensuing unlawful imprisonment.<\/p>\n 31.\u00a0\u00a0The Government disputed the applicant\u2019s claim, reiterating their argument that there had been no violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention in the present case. In the alternative, they argued that the claim was unsubstantiated and excessive. They invited the Court to make an assessment on equitable grounds taking into consideration the relevant case\u2011law.<\/p>\n 32.\u00a0\u00a0It does not follow from the Court\u2019s finding of a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention in the applicant\u2019s case that he was wrongly convicted and it is impossible to speculate as to what might have occurred had there been no breach of the Convention (see Beuze v. Belgium [GC], no.\u00a071409\/10<\/a>, \u00a7 199, 9 November 2018, with further references therein). In the circumstances of the present case, the Court takes the view that a finding of a violation constitutes in itself sufficient just satisfaction and it thus rejects the applicant\u2019s claim.<\/p>\n B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n 33.\u00a0\u00a0The applicant did not submit a claim for costs and expenses incurred in either the domestic proceedings or the proceedings before the Court. Accordingly, the Court does not make any award under this head.<\/p>\n FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n 1.\u00a0\u00a0Declaresthe application admissible;<\/p>\n 2.\u00a0\u00a0Holdsthat there has been a violation of Article 6 \u00a7\u00a7 1 and 3 (d) of the Convention;<\/p>\n 3.\u00a0\u00a0Holdsthat the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.<\/p>\n Done in English, and notified in writing on 17 January 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 S\u00edofra O\u2019Leary FIFTH SECTION CASE OF BREGVADZE v. GEORGIA (Application no. 49284\/09) JUDGMENT STRASBOURG 17 January 2019 This judgment is final but it may be subject to editorial revision. In the case of Bregvadze v. Georgia, The European Court of Human Rights…<\/p>\n
\nL\u04d9tif H\u00fcseynov,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
\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\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n","protected":false},"excerpt":{"rendered":"