FIFTH SECTION
\nDECISION<\/p>\n
Application no. 2155\/09
\nGela BURJANADZE
\nagainst Georgia<\/p>\n
The European Court of Human Rights (Fifth Section), sitting on 28\u00a0August 2018 as a Committee composed of:<\/p>\n
Andr\u00e9 Potocki, President,
\nM\u0101rti\u0146\u0161 Mits,
\nLado Chanturia, judges,
\nand Milan Bla\u0161ko, Deputy Section Registrar,<\/p>\n
Having regard to the above application lodged on 6 January 2008,<\/p>\n
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,<\/p>\n
Having deliberated, decides as follows:<\/p>\n
THE FACTS<\/strong><\/p>\n 1.\u00a0\u00a0The applicant, Mr Gela Burjanadze, is a Georgian national, who was born in 1974. He was represented before the Court by Ms T. Dekanosidze and Ms N. Jomarjidze, 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.<\/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\u00a0At around 1.45 a.m. on 23 April 2007 an armed robbery took place at a poker game club (\u201cthe club\u201d) in Tbilisi. Two armed men threatened the club\u2019s manager, Ms N.Ch. and security guard, Mr Sh.Ts., the only staff remaining on the premises before it was due to close. The latter were made to lie down and hand their cell phones over to the robbers who stole 700\u00a0Georgian laris (GEL – approximately 300 euros (EUR)) and left without injuring anyone, leaving the victims\u2019 phones at the club\u2019s entrance door.<\/p>\n 5.\u00a0\u00a0At 3 a.m. and 4 p.m. respectively the police questioned the two staff members of the club as victims. They described one of the robbers as a man about 30 years old, approximately 1.8 m tall, with blonde hair. As to the appearance of the second person, he was described as relatively short, with blonde hair, but neither of the victims could see the face clearly enough to be able to identify him. Mr Sh.Ts. stated that after the robbers had left, he went out of the building and found the patrol police in the vicinity. The latter called the criminal police to investigate the matter.<\/p>\n 6.\u00a0\u00a0According to an internal report of the police dated 23 April 2007, an investigator, Mr T.S. received operative information implicating the applicant. On the same day, he obtained a copy of the applicant\u2019s photo from a local branch of the civil registry in the applicant\u2019s hometown, and used it as part of a photographic identification procedure.<\/p>\n 7.\u00a0\u00a0On 23 April 2007 two separate photographic identification procedures were carried out involving Ms N.Ch. and Mr Sh.Ts, respectively. The applicant\u2019s photo was presented to them together with photographs of three other persons. Both victims identified the applicant \u201cbased on his facial features, longish face, and blonde hair.\u201d They both noted that it was not difficult to identify the applicant.<\/p>\n 8.\u00a0\u00a0On 2 May 2007 the applicant was arrested at a bus station. The arrest and search report (\u201cthe arrest report\u201d) was signed by the applicant confirming having been notified of his rights, including that of having a lawyer, at the time of his arrest.<\/p>\n 9.\u00a0\u00a0On 2 May 2007, immediately upon the applicant\u2019s arrival at the police station, two identification parades were carried out between 4.40-4.50 p.m. involving Mr Sh.Ts. and between 5.15-5.25 p.m. involving Ms N.Ch. According to the two reports drawn up as a result those parades and signed by the applicant, the latter was presented together with three other males. The applicant as well as the three other males had a \u201cslightly grown beard.\u201d The following persons were presented together with the applicant: Mr B.Ts., born in 1972, approximately 1.72 m tall, dark-haired; Mr E.D., born in 1961, approximately 1.8 m tall, blonde \u201cwith balding hair\u201d; and Mr K.S., born in 1975, approximately 1.8 m tall, blonde.<\/p>\n 10.\u00a0\u00a0Following the conclusion of the identification parade, the applicant was declared a suspect, and at 5.50 p.m. he was handed a form advising him of his rights. The applicant signed the document, specifying that he did not require the assistance of a lawyer at that stage, and that he would exercise his right to remain silent.<\/p>\n 11.\u00a0\u00a0On 3 May 2007 the applicant was charged with robbery. On the same day he hired a lawyer and gave a statement noting that on 22 April 2007 he had returned home from work, in the village of Ksovrisi, together with his brother-in-law. His family members could confirm that he was at home by 10 p.m. and therefore he could not have been at the crime scene at 1.45 a.m. on 23 April 2007.<\/p>\n 12.\u00a0\u00a0On 4 May 2007 the applicant\u2019s lawyer filed an application with the prosecutor\u2019s office and alleged inconsistencies in the evidence. He noted that the victims identified the robber as a man with blonde hair while the applicant had chestnut-brown hair colour. He requested that the victims be questioned anew to clarify their earlier statements. He also requested to have the applicant\u2019s brother-in-law and other family members, as well as the bus driver and a colleague questioned to confirm that the applicant had left Tbilisi in the evening of 22 April 2007.<\/p>\n 13.\u00a0\u00a0On 7 May 2007 the prosecutor granted the application in part, in respect of the request to question the victims additionally. As regards the questioning of witnesses concerning the applicant\u2019s whereabouts in the evening of 22\u00a0April 2007, the prosecutor reasoned that such information was irrelevant considering the short distance (approximately 50 kilometres) between Tbilisi and the village of Ksovrisi in view of which the applicant could have come back to the city later at night.<\/p>\n 14.\u00a0\u00a0On 22 May 2007 additional statements were taken from the two victims, with the participation of the applicant\u2019s lawyer. The victims reiterated their previous statements but added that they had forgotten to note that the robber had a lazy eye, as did the applicant. In response to the question as to why they remembered the applicant and not the other person, the victims responded that the applicant was actively moving around and even had had a brief exchange with Ms N.Ch. before the robbery took place. Both victims stated that to them, the applicant\u2019s hair colour seemed blonde.<\/p>\n 15.\u00a0\u00a0On 26 May 2007 the investigator, Mr T.S., who had obtained the applicant\u2019s photo for the identification purposes was questioned. He stated that he had obtained the photo from a local branch of the civil registry in the applicant\u2019s hometown. He noted that he had been given a verbal order by his superiors to that end.<\/p>\n 16.\u00a0\u00a0On 4 October 2007 a hearing took place at the court of first instance. The applicant requested the Tbilisi City Court to declare the results of the photographic identification procedure and the identification parade inadmissible evidence obtained in violation of the Code of Criminal Procedure. He accused the police officers of manipulating the evidence by showing his photograph to the victims before the identification parade, without photos of three other males. He also alleged that he had appeared in the parade with three other men of a dissimilar appearance, in violation of Article 347 of the Code of Criminal Procedure (see paragraph 25 below). In particular, one of the men was around 45 years old, tall and bald. The other two, one of whom had a beard, were shorter than him. None of them were blonde. Some of the men were under the influence of alcohol. While the court deferred the application until the end of the trial, it never returned to the matter.<\/p>\n 17.\u00a0\u00a0During Ms N.Ch.\u2019s questioning before the first-instance court, she noted that when giving her statements she had forgotten to mention that the robber was cross-eyed, as was the applicant. She did not remember whether a bald person was presented together with the applicant but reiterated having no doubts about the applicant being the culprit as she had had a brief, unrelated interaction with him before the robbery took place. According to Ms N.Ch., the applicant\u2019s lawyer and relatives met her privately to convince her to change the statements but she had no doubt about the applicant being behind the robbery. As regards the photo identification procedure, Ms N.Ch. had seen four photos in total, including that of the applicant.<\/p>\n 18.\u00a0\u00a0Mr Sh.Ts. being abroad, his pre-trial statements (see paragraphs 5, 7, and 9 above) were read out in court.<\/p>\n 19.\u00a0\u00a0At the request of the applicant the court heard two officers of the patrol police who Mr Sh.Ts. approached immediately after the robbery to report it. These patrol officers had called the criminal police who arrived at the crime scene to investigate the matter.<\/p>\n 20.\u00a0\u00a0On 12 October 2007 the first-instance court found the applicant guilty of aggravated robbery committed as part of a group and sentenced him to eight years\u2019 imprisonment. He was also ordered to pay a fine of GEL\u00a04,000 (approximately EUR 1,500). The court relied on the statements given by the victims (see paragraphs 5 and 17-18 above), the patrol police officers (see paragraph 19 above), and the reports concerning the photographic identification procedure (see paragraph 7 above), and the identification parade (see paragraph 9 above). The first-instance court did not respond to the applicant\u2019s request to have the results of the photographic identification procedure and the identification parade declared inadmissible (see paragraph 16 above).<\/p>\n 21.\u00a0\u00a0On 27 December 2007 the Court of Appeal upheld the applicant\u2019s conviction and sentence by the lower court. It reasoned that the applicant\u2019s requests to have the results of the photographic identification procedure and the identification parade declared inadmissible were manifestly ill-founded.<\/p>\n 22.\u00a0\u00a0As regards the identification parade, the appellate court noted that the applicant did not deny having freely signed the resultant reports. Relying on the latter document, the court found that all four men had a slightly grown beard, and were of approximately the same age, height, and appearance. Contrary to the applicant\u2019s objection concerning the baldness of one of the men, the relevant reports indicated that the man was \u201cbalding\u201d, and in any event, the applicant signed the resultant reports without making any remarks to protest it. The appellate court further noted that the photograph used for the identification purposes was obtained by the investigator who confirmed having done so in court. As Ms N.Ch.\u2019s statements and the relevant report confirmed that the photo was shown to the victim once, together with three other men, no grounds existed to declare that evidence inadmissible.<\/p>\n 23.\u00a0\u00a0Furthermore, the appellate court emphasized that from the very first questioning onwards, the victims kept reiterating that they remembered the robber vividly, and as opposed to the second culprit, it would not have been difficult for them to identify him. According to them, neither the photographic identification procedure nor the identification parade posed any difficulties to clearly identify the applicant as the culprit. As concerns the applicant\u2019s hair colour, the victims perceived it as blonde. The court particularly noted Ms N.Ch.\u2019s statements that having observed the applicant clearly before the robbery due to him not playing poker but moving around in the club, she could easily identify him.<\/p>\n 24.\u00a0\u00a0On 11 July 2008 the Supreme Court declared the applicant\u2019s appeal on points of law inadmissible.<\/p>\n B.\u00a0\u00a0Relevant domestic law<\/strong><\/p>\n 25.\u00a0\u00a0Relevant parts of Article 347 of the Code of Criminal Procedure, in force at the material time, provided as follows:<\/p>\n \u201c3.\u00a0\u00a0The person to be identified shall appear together with three other persons of the same sex whose appearance and clothes are not significantly different.<\/p>\n 4.\u00a0\u00a0An investigator shall tell the person to take any position [in the line-up]…<\/p>\n 7.\u00a0\u00a0In exceptional circumstances a photographic identification procedure may be carried out where photographs of at least three other persons not significantly dissimilar in appearance and clothes shall also be shown.<\/p>\n 8.\u00a0\u00a0A defence lawyer may attend the identification procedure of a suspect or an accused.\u201d<\/p>\n COMPLAINT<\/strong><\/p>\n 26.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention that the identification parade was carried out in the absence of his lawyer, was accompanied with various irregularities, and that the domestic courts convicted him principally based on that evidence without adequately addressing his objections regarding its admissibility.<\/p>\n THE LAW<\/strong><\/p>\n 27.\u00a0\u00a0The applicant complained under Article 6 \u00a7\u00a7 1 and 3 (c) of the Convention that the identification parade was not attended by his lawyer, was accompanied with various irregularities such as the participation in the parade of persons of a dissimilar appearance, as well as the unclear procedure underlying the photo identification parade, and that the domestic courts convicted him principally based on this evidence without adequately addressing his objections as to its admissibility. The provision relied on, insofar as relevant, reads 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 (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; …\u201d<\/p>\n 28.\u00a0\u00a0The Government submitted that the use of photographic identification procedure, which was carried out based on the operative information obtained immediately after the robbery, constituted an exceptional measure to make sure that the applicant was the right person to be summonsed for the identification parade, and was not found to be inadmissible by the domestic courts. As regards the identification parade, the applicant had been duly informed of his right to legal assistance upon arrest. It was therefore in line with the applicant\u2019s own choice that the identification parade that followed immediately was carried out without a lawyer\u2019s attendance. The applicant then explicitly waived his right to the assistance of a lawyer upon the completion of the identification parade by indicating so on the resultant report, confirmed by his signature. Furthermore, the domestic courts questioned the relevant witnesses and duly reasoned the dismissal of the applicant\u2019s applications.<\/p>\n 29.\u00a0\u00a0The applicant maintained his arguments.<\/p>\n 30.\u00a0\u00a0The Court reiterates that, in accordance with Article\u00a019 of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention. In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except where it considers that such errors might have involved a possible violation of any of the rights and freedoms set out in the Convention. While Article 6 guarantees the right to a fair hearing, it does not lay down any rules on the admissibility of evidence as such, which is primarily a matter for regulation under national law (see Schenk v.\u00a0Switzerland, 12\u00a0July 1988, \u00a7\u00a045, Series A no. 140; Teixeira de Castro v.\u00a0Portugal, 9\u00a0June 1998, \u00a7\u00a034, Reports 1998\u2011IV; and Jalloh v.\u00a0Germany [GC], no. 54810\/00, \u00a7\u00a7\u00a094-96, ECHR 2006\u2011IX).<\/p>\n 31.\u00a0\u00a0It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence \u2013 for example, evidence obtained unlawfully in terms of domestic law \u2013 may be admissible or, indeed, whether the applicant was guilty or not. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair (see Bykov v.\u00a0Russia [GC], no.\u00a04378\/02, \u00a7\u00a089, 10\u00a0March 2009).<\/p>\n 32.\u00a0\u00a0In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence were respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidence and of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. While no problem of fairness necessarily arises where the evidence obtained was unsupported by other material, it may be noted that where the evidence is very strong and there is no risk of its being unreliable, the need for supporting evidence is correspondingly weaker (see Bykov, cited above, \u00a7\u00a090).<\/p>\n 33.\u00a0\u00a0Turning to the circumstances of the present case, the Court observes that the photographic identification procedure and the identification parade constituted principal evidence supporting the prosecution\u2019s case against the applicant. The Court will examine whether the manner in which the identification procedures were conducted and the applicant\u2019s objections in this regard handled by the domestic courts were in accordance with Article\u00a06 of the Convention.<\/p>\n 34.\u00a0\u00a0The Court notes that contrary to the applicant\u2019s argument about being deprived of his right to have a lawyer attend the identification parade, the case files suggest that he was expressly notified of his right to have a lawyer of his choosing before the identification parade (see paragraph\u00a08 above) as well as immediately after it (see paragraph 10 above). Therefore, the applicant appears to have waived, of his own free will, the entitlement to legal assistance at the time of the identification parade (contrast, Laska and Lika v.\u00a0Albania, nos. 12315\/04 and 17605\/04, \u00a7\u00a067, 20\u00a0April 2010). In any event, at no point in the domestic proceedings did the applicant argue otherwise, or challenge the validity of the identification parade results based on the absence of a lawyer.<\/p>\n 35.\u00a0\u00a0Furthermore, while the applicant argued before the Court that he was instructed to take a particular position in the identification parade, neither at the preliminary investigation stage, nor in his applications lodged before the domestic courts did the applicant raise that point. In fact, the relevant applications to declare the results of the photographic identification procedure and the identification parade inadmissible rested on three arguments: the victims had only been shown the applicant\u2019s photo, in violation of domestic law, the provenance of which was unclear; the applicant\u2019s hair colour was not blonde, contrary to the victim\u2019s testimonies; and the persons presented in the identification parade had had a dissimilar appearance.<\/p>\n 36.\u00a0\u00a0The Court notes that while the first-instance court appears to have left the applicant\u2019s objections unanswered (see paragraphs 16 and 20 above), that omission was cured by the Court of Appeal as it explicitly addressed the applicant\u2019s objections regarding the admissibility of evidence.<\/p>\n 37.\u00a0\u00a0In particular, as regards the applicant\u2019s complaint that the victims were only showed his photo for identification purposes, inviting them to recognise the applicant as the culprit, that objection was duly answered by the Court of Appeal. Relying on the reports concerning the photographic identification procedure as well as the victim\u2019s statements to that end confirming that the applicant\u2019s photo was presented together with those of three other males (see paragraphs 7 and 17 above), as well as the investigator\u2019s statements confirming the origin of the photograph (see paragraph 15 above), the appellate court found that the procedure was implemented in accordance with the law and that the applicant\u2019s arguments in that respect were manifestly ill-founded (see paragraph 22 above).<\/p>\n 38.\u00a0\u00a0As to the identification parade and the applicant\u2019s application before the domestic courts to exclude its results as inadmissible evidence, the Court of Appeal dismissed the application in a reasoned manner.\u00a0In particular, as regards the applicant\u2019s hair colour, the appellate court relied on the investigative authorities\u2019 additional questioning of the eyewitnesses, with the participation of the applicant\u2019s lawyer, as well as Ms N.Ch.\u2019s statements given in an open court, and accepted that contrary to the applicant\u2019s characterisation of his hair colour as chestnut-brown, the eyewitnesses had considered it to be blonde.<\/p>\n 39.\u00a0\u00a0As to the question of the appearance of three other males presented during the identification parade, and the admissibility of its results on that account, the appellate court assessed the related reports signed by the applicant and noted the absence of any protests to that end (see paragraph 22 above). It further found the overall appearance of the men not to have been markedly different (see ibid.). Furthermore, relying on the eyewitness statements emphasizing that it had not been difficult to identify the applicant with absolute certainty (see paragraph 23 above), the appellate court found the application to exclude from the file the results of the identification parade manifestly ill-founded.<\/p>\n 40.\u00a0\u00a0Against this background and considering that the applicant was given an uninhibited opportunity to challenge the authenticity of the evidence and of opposing its use, and the reasoned dismissal of his applications concerning the inadmissibility of the results of the photographic identification procedure and the identification parade (contrast, Mindadze and Nemsitsveridze v.\u00a0Georgia, no. 21571\/05, \u00a7\u00a0143, 1\u00a0June 2017, with further references), the Court finds that the rights of the defence were respected, and the proceedings as a whole, including the way in which the evidence was obtained, were fair.<\/p>\n 41.\u00a0\u00a0In the light of the foregoing, and bearing in mind that the applicant had the benefit of adversarial proceedings, the Court finds that his complaints under Article\u00a06 \u00a7\u00a7\u00a01 and 3\u00a0(c) are manifestly ill-founded and must be rejected in accordance with Article\u00a035 \u00a7\u00a7\u00a03\u00a0(a) and 4 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 20 September 2018.<\/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 Andr\u00e9 Potocki
\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