BADUASHVILI v. GEORGIA

FIFTH SECTION

DECISION

Application no. 18720/08
Malkhaz BADUASHVILI
against Georgia

The European Court of Human Rights (Fifth Section), sitting on 6 November 2018 as a Committee composed of:

André Potocki, President,
Mārtiņš Mits,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,

Having regard to the above application lodged on 8 April 2008,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Malkhaz Baduashvili is a Georgian national who was born in 1979. He was represented before the Court by Ms S. Abuladze, a lawyer practising in Tbilisi.

2. The Georgian Government (“the Government”) were represented by their Agents, most recently Mr L. Meskhoradze, of the Ministry of Justice.

A. The circumstances of the case

3. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Criminal proceedings against the applicant

(a) Investigation

4. At about 2 p.m. on 10 July 2005 V.T. (“the victim”) was murdered in the main square of a village.

5. On the day of the murder and subsequently on 22 July 2005 M.T. claimed to have witnessed the crime and gave statements to the investigating authorities. He stated that he had been sitting with the victim on a bench in the square when the applicant, who had been armed, had come and killed the victim. M.T. was the victim’s cousin and the applicant’s classmate.

6. Another witness, Z.T., stated that he had been walking near the main square of the village when he saw the armed applicant leave the area following the shooting. According to him, he subsequently learned that the victim had been killed by the applicant.

7. The victim’s wife confirmed that on the day of the murder M.T. and the victim had left the latter’s house together and gone to the square. She stated that following the murder of her husband M.T. had told her that the applicant had killed him. The victim’s daughters and father gave similar statements. According to the victim’s family, the applicant and the victim were on good terms, and the motives for the actions ascribed to the applicant were unclear to them.

8. On 10 July 2005 a gun was seized from the applicant’s home.

9. On 14 July 2005 a search warrant was issued in respect of the applicant. He was arrested and remanded in custody on 27 July 2005.

10. On 20 September 2005 the investigating authorities carried out an inspection of the crime scene, involving M.T., to verify the particulars of his earlier statements. His participation in the investigative measure is confirmed by his signature and the signatures of two witnesses on the document produced as a result of the inspection, and by photographs included in that document.

11. On 26 October 2005 M.T. asked to be questioned again. He noted that he had been overly nervous on the day of the victim’s murder and wanted to correct some of his earlier statements.

12. On 29 October 2005 M.T.’s request was rejected by the investigator. The latter noted that, in addition to his initial statement, M.T. had given an additional statement on 22 July 2005 and further participated in the inspection of the crime scene on 20 September 2005 (see paragraph 10 above). The investigator further cited M.T.’s earlier statement dated 3 September 2005 confirming that he had received threats and anonymous calls from the applicant, who had asked him to alter his statements, and that he had no intention of doing so.

13. On 3 November 2005 M.T. appealed to the regional prosecutor’s office against the investigator’s refusal to question him again. He noted that all his statements had been obtained by the investigating authorities through coercion. It does not appear that M.T. received any response to his appeal.

14. On 3 November 2005 the applicant asked to confront M.T. His request was rejected by the investigator on account of M.T.’s request of 3 September 2005 not to have a confrontation with the applicant owing to concerns for his safety. It was further noted that M.T. would confront the applicant during the criminal trial. A second request by the applicant to have a confrontation with M.T., dated 15 November 2005, was rejected by the investigator on 16 November 2005 on identical grounds. While the refusals were amenable to an appeal to the regional prosecutor’s office, it does not appear that the applicant appealed against either of the decisions.

(b) Trial

15. On 17 July 2006 and 21 August 2006, during the trial at the first‑instance court, M.T. and Z.T. changed their testimony.

16. Both M.T. and Z.T. were questioned in court by the applicant’s representative and the prosecutor.

17. According to M.T., he was in a shop nearby buying mineral water for the victim when the shooting took place. He immediately ran back to the bench where the victim had been sitting to discover that the latter was unconscious with multiple wounds and was bleeding heavily. He did not see the applicant. Later that day he was questioned by police officers, who forced him to implicate the applicant so as not to leave the crime unsolved. M.T.’s request to correct his initial statement was refused by the investigator. On 20 September 2005 he participated in the inspection of the crime scene and showed the investigator the exact place where the victim had been sitting. That moment was captured on camera. He also signed some papers relating to that inspection without reading their content. He never told the victim’s family that the applicant had killed the victim, but the victim’s family was threatening him not to alter his initial statement.

18. According to Z.T., he was in Tbilisi at the time of the murder and travelled back to the village to attend the victim’s funeral. He was told by the investigator to testify against the applicant as there was no witness to the crime and the police needed to solve the case.

19. According to another witness, A.T., he attended the inspection of the crime scene on 20 September 2005 (see paragraph 10 above), as confirmed by his signature on the report produced as a result of the inspection. He witnessed M.T. confirming his earlier statements, which were read out loud to him, and telling the investigators that the applicant had killed the victim.

20. According to the victim’s wife, father, and two daughters, they were personally told by M.T. that the applicant had killed V.T. They further noted that M.T. and other persons who had witnessed the crime were under constant pressure from the applicant’s family not to testify truthfully.

21. According to the applicant, he had been on good terms with the victim. However, the victim’s family may have been upset with him due to an earlier incident involving the victim’s daughter when the applicant found her in a car with a man and strongly reprimanded both of them. At the time of the murder, he was on vacation in another town. When the applicant heard that he was being accused of that crime he became frightened and decided not to return to his village. He went to Rustavi instead, where he was eventually arrested. He did not tell the investigators to check his alibi as he was upset by being wrongly accused of a crime.

22. On 8 December 2006 the court of first instance convicted the applicant of aggravated murder and the illegal acquisition, possession and carrying of firearms, and sentenced him to 17 years’ imprisonment. The conviction in respect of firearms was based on the gun seized from his home (see paragraph 8 above). It was never established that the gun was the weapon used to murder the victim. The conviction in respect of aggravated murder was based on the witness statements given by the victim’s family and several other persons who relied on M.T.’s pre-trial statements. The court also relied on forensic and other evidence concerning the various technical aspects of the murder and the applicant’s possession of firearms.

23. The court dismissed an application by the applicant for pre-trial statements given by M.T. and Z.T. to be declared inadmissible on the grounds that they had been obtained under duress. It reasoned that the witnesses’ allegations of coercion were not confirmed by the evidence available in the case file. Noting the statements given by the victim’s family that the applicant had threatened witnesses, the court further referred to M.T.’s statement dated 3 September 2005 (see paragraph 12 above) that he was under pressure to change his initial statement. It also relied on A.T.’s testimony (see paragraph 19 above) that he had personally witnessed M.T. participate in the inspection of the crime scene and implicate the applicant on 20 September 2005.

24. The applicant appealed, arguing that there was insufficient evidence to convict him. He submitted that the evidence relied on by the court was not incontrovertible, as required by domestic law, and the victim’s wife and other family members were implicating him based on hearsay, and were unable to name any eyewitnesses except M.T. As regards M.T., his initial statements were inadmissible evidence, as they had been obtained under duress.

25. On 27 June 2007 the Tbilisi Court of Appeal upheld the applicant’s conviction. As regards the applicant’s argument that M.T.’s statement had been obtained under duress and was inadmissible evidence, the court did not find it established on the facts that pressure had been applied. In particular, it took into account M.T.’s statement dated 3 September 2005 saying that the applicant had exerted pressure on him to alter his initial statements. The appellate court reheard A.T., who had witnessed the inspection of the crime scene on 20 September 2005 (see paragraph 19 above). He confirmed his earlier statement that on that date he had witnessed M.T., whom he had known since childhood, confirming to the investigators his initial version of the events implicating the applicant and indicating particular details related to that account. A.T. said that during the inspection M.T. had acted casually, and there had been nothing suspicious in his demeanour, with no sign of pressure being exerted on him. As regards the applicant’s objection regarding the courts’ reliance on hearsay evidence, the appellate court found that the witness statements given by the victim’s wife, daughter and father were corroborated by M.T.’s pre-trial statements which in turn were not inadmissible evidence.

26. On 20 February 2008 the Supreme Court declared an appeal on points of law lodged by the applicant inadmissible.

27. On an unspecified date separate criminal proceedings were opened against M.T. and Z.T. On 26 December 2006 and 23 January 2007 respectively they were convicted at first instance of obstructing justice by giving false testimony. Both were given partially suspended sentences. The case file does not contain information about the final outcome of those proceedings.

28. The applicant was released from prison on 26 April 2018.

2. The applicant’s detention conditions and medical care

(a) Conditions of detention

29. On 28 July 2005 the applicant was placed in the Tbilisi Prison no. 5. According to the applicant, there was severe overcrowding in the Tbilisi Prison no. 5, he had to take turns sleeping as the cell intended for 26 persons was accommodating approximately 70-80 inmates. The toilet located in the cell did not have a door and was covered with a curtain, creating unsanitary conditions and unpleasant odours. On 27 March 2006 the applicant was transferred to the newly opened Rustavi Prison no. 6, and subsequently to the Rustavi Prison no. 2.

30. Between January and March 2008 the applicant was placed in the Rustavi Prison no. 2. It does not appear that he complained to any domestic authority of any aspect of his detention conditions at that institution.

31. On 3 March 2008 the applicant was placed in the prison hospital.

32. On 24 December 2008 the applicant was transferred from the prison hospital to the Rustavi Prison no. 6. According to the applicant’s original complaint, he was forced to have his head shaved at the arrival at that prison. The Government provided the Court with several documents, including a note signed by the applicant stating that no such event had taken place. It does not appear that he complained to any domestic authority of any aspect of his detention conditions at that institution.

(b) Medical care

33. On 6 March 2008 chronic viral hepatitis C (HCV) was detected in the applicant’s blood.

34. On 24 March 2008 the applicant had an HCV RNA (hepatitis C virus RNA nucleic acid amplification test) and several other examinations performed in order to determine which course of treatment he should have been provided with. However, the HCV was found to be “non-detectable” and therefore no antiviral treatment was found to be necessary. The applicant was prescribed standard treatment involving medication, vitamins and blood transfusion.

35. On 21 July 2009 the test to determine if antiviral treatment was warranted was repeated, and yielded identical negative results.

36. The HCV treatment was maintained and periodically reassessed throughout the applicant’s subsequent placement in the relevant penal institutions.

(c) Alleged ill-treatment on 19 August 2010 and pressure to withdraw the application

37. On 19 August 2010 the applicant was transferred to Kutaisi Prison no. 2. The register of incoming inmates of Kutaisi Prison no. 2 contained a note stating that no injuries had been observed on the applicant’s body.

38. On 25 and 26 August 2010 the applicant complained to the Chief Prosecutor that on 19 August 2010, directly before being transferred to Kutaisi Prison no. 2, he had been severely beaten by the governor of Rustavi Prison no. 6 and had sustained serious injuries to his ribs, head and backbone. He claimed that the violence had related to his pending application before the Court, and that earlier on 12 August 2010 the governor had summoned him and his cellmate to his office and asked him to withdraw the application.

39. On 27 August 2010 the applicant was placed in the prison hospital, at his request.

40. On 31 August 2010 an investigation was opened into the applicant’s allegations. On the same day the investigator commissioned a forensic medical examination to determine if there were any injuries on the applicant’s body and, if so, where they had come from.

41. On 31 August 2010 the applicant and his cellmate were approached by the investigator, but both refused to be questioned in the absence of their lawyers. On 29 November 2010 the applicant’s cellmate again refused to be questioned without his lawyers. On the same day the applicant gave a partial statement, alleging that on 12 August 2010 the governor of Rustavi Prison no. 6 had asked him to withdraw his application to the Court, in exchange for better conditions in prison.

42. On 2 September 2010 the investigator questioned a doctor from the prison hospital. The doctor stated that she had met the applicant on 30 August 2010. No visible signs of injuries had been observed, nor had the applicant complained in this regard. She further noted that several tests had been carried out to determine the applicant’s state of health. As a result, he had been diagnosed with tuberculosis and immediately put on a DOTS (Directly Observed Treatment, Short-course) programme, the strategy for the detection and treatment of tuberculosis recommended by the World Health Organization.

43. On 3 September 2010 the forensic medical examination was concluded. An expert from the National Forensic Bureau found that the applicant had a trace of a small abrasion in the area of his chin, approximately a month old, possibly caused by a hard object. A small wound, no more than three days old, was observed on the applicant’s shin. The report noted that both injuries were located “within the applicant’s own reach”.

44. The prison governor and the chief inspector of the prison’s security unit, who were questioned as part of the investigation, denied that the applicant had been taken to the governor’s office on 12 August or physically assaulted on 19 August 2010.

45. On 25 November 2010 the doctor who had examined the applicant upon his admission to Kutaisi Prison no. 2 on 19 August 2010 noted that no signs of ill-treatment had been observed on the applicant’s body and that he had not complained in this regard. Otherwise, in accordance with the established procedure, the doctor would have drawn up a relevant report. A note had therefore been made in the register of incoming inmates that the applicant had no signs of injuries. The doctor said that the applicant had been placed in the medical wing of that prison owing to his claim that he suffered from HCV. Subsequently, the doctor was again approached by the investigator. The former noted that the small abrasions referred to in other findings might have been gone unnoticed because of the applicant’s beard.

46. On 27 April 2011 the doctor, nurse and duty officer who had examined the applicant upon his admission to the prison hospital on 27 August 2010 were questioned as part of the investigation into his allegations. They all noted that the applicant had had no serious injuries and had not made any complaint at the time of his admission to the prison hospital.

47. Neither the Government nor the applicant updated the Court on the final outcome of that investigation.

B. Relevant domestic law

48. The relevant parts of the 1998 Code of Criminal Procedure (“the CCP”), in force at the material time, provided as follows:

Article 111: Inadmissible evidence

“1. Evidence shall be considered inadmissible if it is obtained

...

(c) in violation of the law, by using force, threat, deceit, blackmail, humiliation, or other illegal methods; ...

2. The burden of proof in respect of the admissibility of prosecution evidence and the inadmissibility of defence evidence rests with the prosecutor...”

Article 117 § 2 (Witness testimony)

“If there is a substantial difference between the statements given by a witness at the pre-trial stage and during trial, a party may apply to the court for such a statement to be declared inadmissible in accordance with Article 111 of this Code...”

COMPLAINTS

49. The applicant complained under Article 3 of the Convention about the inadequacy of prison conditions and medical care in prison. He further argued that he had been physically ill-treated by a prison governor, and forced to have his head shaved.

50. The applicant complained under Article 5 §§ 2 and 3 of the Convention that he had not been informed about reasons for his arrest, and that the decisions approving his pre-trial detention had lacked adequate reasoning.

51. The applicant also submitted that the defence was deprived of an opportunity to confront the sole eyewitness during the pre-trial investigation, and that his conviction was based on hearsay evidence, in breach of Article 6 §§ 1 and 3 (d) of the Convention.

52. Under Article 8 of the Convention the applicant complained about insufficiency of family visits in prison and his alleged inability to telephone them during his detention.

53. The applicant further stated, in the context of Article 34 of the Convention, that the prison governor who used physical force against him had also requested that the applicant withdraw his application from the Court.

54. The applicant also complained under Article 3 of the Convention about severe overcrowding in the Tbilisi Prison no. 5. Furthermore, approximately a year after the parties had exchanged their submissions concerning the applicant’s complaint under Article 3 of the Convention the applicant complained that he had contracted tuberculosis in prison. He also maintained, under Article 6, that the criminal proceedings in his case were excessively lengthy.

THE LAW

A. Complaints under Article 3 of the Convention

55. The applicant complained that the conditions of his detention were inadequate, he was not provided with adequate medical care in prison, and was physically assaulted by a prison governor on 19 August 2010. 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.”

56. The Government submitted that the applicant’s health condition was duly monitored and all adequate treatment was administered during his imprisonment. They further noted that the applicant’s complaints concerning the prison conditions were wholly unsubstantiated, as was the allegation of physical assault in view of the expert evidence available in the case file.

57. The applicant maintained that there had been a lack of medical supervision and treatment of his HCV, and that the prison conditions in all of the establishments in which he had been placed had been unsatisfactory. He further noted that air pollution emanated from the plant neighbouring the Rustavi Prison no. 2, and that he was unable to exercise his right to walk and to take a shower in the Rustavi Prison no. 6. The applicant maintained that he had been beaten on 19 August 2010.

1. Conditions of detention

58. Referring to its relevant case-law in respect of conditions of detention in Georgian custodial institutions at the material time, the Court reiterates the rule that whenever an applicant wished to challenge allegedly poor material conditions of detention in a Georgian prison, even if such complaints did not call for the full and meticulous exhaustion of any specific criminal or civil remedies (see, for comparison, Aliev v. Georgia, no. 522/04, § 62 and 63, 13 January 2009, and Goginashvili v. Georgia, no. 47729/08, §§ 54 and 57, 4 October 2011), it was still required, at the very minimum, that at least one of the responsible State agencies be informed of the applicant’s subjective assessment that the conditions of the detention in question constituted a lack of respect for, or diminished, his or her human dignity. Without such basic conduct at the domestic level by a person who wished to challenge the conditions of his or her detention under the Convention, the Court would necessarily have difficulty in evaluating the credibility of an applicant’s allegations of fact in that connection (see Ramishvili and Kokhreidze v. Georgia (dec.), no. 1704/06, 26 June 2007, and Janiashvili v. Georgia, no. 35887/05, § 70, 27 November 2012).

59. Having regard to the material available in the case file, the Court notes that the applicant never informed any of the relevant authorities of his dissatisfaction with any particular aspect of the material conditions of his detention in any of the relevant prisons. Furthermore, in the proceedings before the Court he limited his submissions to only vague and general statements, and retracted his allegation of being forced to shave his head (see paragraph 32 above). Consequently, the Court finds that the applicant has failed to discharge his burden of proof and substantiate his complaint properly (compare, amongst many other similar authorities, Muršić v. Croatia [GC], no. 7334/13, § 127, ECHR 2016; Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, § 122, 10 January 2012; and Ildani v. Georgia, no. 65391/09, §§ 26 and 27, 23 April 2013).

60. It follows that the applicant’s complaints under Article 3 of the Convention concerning the material conditions of his detention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. Medical care

61. The relevant general principles concerning the adequacy of medical treatment in prisons were summarised by the Court in the cases of Blokhin v. Russia ([GC], no. 47152/06, §§ 135-140, ECHR 2016, with further references therein); Goginashvili v. Georgia (cited above, §§ 69-70); Irakli Mindadze v. Georgia (no. 17012/09, §§ 39-40, 11 December 2012); and Jeladze v. Georgia (no. 1871/08, §§ 41-42, 18 December 2012).

62. The applicant complained of a lack of medical supervision in respect of his HCV. However, the information submitted by the Government indicates that the applicant’s health-related issues were under constant medical supervision. According to the medical files, his condition did not necessitate antiviral treatment (see paragraphs 33-36 above). The applicant was prescribed and given standard treatment involving medication, vitamins, and blood transfusion.

63. In the light of the foregoing, the Court finds that the complaint should be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

3. Alleged ill-treatment

64. The Court notes that while neither of the parties furnished it with information about the outcome of the investigation into the applicant’s allegations that he was beaten by the prison governor on 19 August 2010, and in the absence of the Government’s objection regarding the non-exhaustion of the domestic remedies, the available case material, including the findings of an expert from the National Forensic Bureau, enables the Court to decide whether the complaint is well-founded.

65. In particular, while the applicant alleged that he had been severely beaten and had sustained injuries to his ribs, head and backbone, neither the doctor who examined him upon his admission to the relevant prison nor the prison hospital doctor or the expert from the National Forensic Bureau confirmed his allegations (see paragraphs 42-43 and 45-46 above). Contrary to the applicant’s allegations, only a small old abrasion on his chin and one minor injury on his shin were found (see paragraph 43 above). Neither of those injuries matched the applicant’s allegations and the timing of the events alleged to have taken place (see paragraph 38 above).

66. In the light of the foregoing, the Court finds that this complaint is unsubstantiated and should be rejected as manifestly ill‑founded, pursuant to Article 35 §§ 3 (a) and 4 of the Convention.

B. Complaints under Article 6 §§ 1 and 3 (d) of the Convention

67. The applicant complained that his inability to confront the main witness during the pre-trial investigation and the subsequent reliance of the courts on the statement of that witness despite the latter’s altered testimony during the trial, as well as the use of hearsay evidence against him, had impaired the overall fairness of the proceedings. He relied on Article 6 §§ 1 and 3 (d) of the Convention, the relevant parts of which read 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 ...”

68. The Government submitted that the requirements of Article 6 of the Convention had been fully complied with, considering that the relevant judgments had been duly reasoned and the applicant had had an opportunity to question the relevant witness in an open court. They maintained that the applicant could have asked the domestic courts to declare the conflicting statements given by M.T. inadmissible on the basis that they were contradictory, but he had failed to avail himself of that right. They further maintained that the domestic legislation in force at the material time had not restricted the courts’ reliance on hearsay evidence.

69. The applicant maintained his complaints.

70.  The relevant general principles under Article 6 of the Convention have been summarised by the Court, inter alia, in the cases of Schatschaschwili v. Germany ([GC], no. 9154/10, §§ 100-101, ECHR 2015); Ibrahim and Others v. the United Kingdom ([GC], nos. 50541/08 and 3 others, § 250-251, ECHR 2016); and Moreira Ferreira v. Portugal (no. 2) ([GC], no. 19867/12, § 83, ECHR 2017 (extracts)).

71. Turning to the circumstances of the present case, the Court observes that while the applicant was not confronted with the witness at the pre-trial stage, he failed to appeal against the investigator’s refusals to that end (see paragraph 14 above). In any event, the witness in question did appear before the first-instance court. He was questioned during the criminal trial by the prosecutor and the applicant’s lawyer in the applicant’s presence (contrast with Kostovski v. the Netherlands, 20 November 1989, §§ 42-43, Series A no. 166). Therefore, the applicant had an unhindered possibility to confront the witness in the presence of a judge.

72. As regards the domestic courts’ reliance on the pre-trial statements of that witness instead of his altered statement during the trial, the Court notes that where domestic judicial authorities are confronted by several conflicting versions of truth offered by the same person, their final preference for a statement given to the investigative authorities over one given in an open court does not in itself raise an issue under the Convention where this preference is substantiated and the statement itself was given of the person’s own volition (see, among other authorities, Lutsenko v. Ukraine, no. 30663/04, § 49, 18 December 2008, and Doorson v. the Netherlands, 26 March 1996, § 78, Reports of Judgments and Decisions 1996‑II).

73. In this connection, the domestic courts, which are normally best placed to assess the credibility of witnesses and the relevance of evidence to the issues in the case (see Karpenko v. Russia, no. 5605/04, § 80, 13 March 2012), addressed the witness’s argument concerning police coercion, and the applicant’s related request to have M.T.’s pre-trial statements declared inadmissible on account of being obtained under duress. Relying on M.T.’s own written statement of 3 September 2005 alleging that the applicant, and not the police, had put pressure on him to alter his initial statement (see paragraphs 23 and 25 above), and A.T.’s statement that M.T. had voluntarily participated in the inspection of the crime scene and recounted his pre-trial statements without any signs of coercion or uneasiness (see ibid), the domestic courts reasoned that duress was not confirmed on the facts of the case. Therefore, in the absence of the applicant’s request to declare the contradictory statements inadmissible under Article 117 § 2 of the CCP (see paragraph 48 above), and considering that they were not found to have been obtained under coercion, the domestic courts adequately reasoned their position as to the admissibility and credibility of M.T.’s pre‑trial statements.

74. As regards the applicant’s argument that the remaining evidence relied on by the domestic courts constituted uncorroborated hearsay as it consisted of the account given by the victim’s family and A.T. who were not eyewitnesses, the Court has found that domestic courts’ reliance on such evidence is not as such incompatible with the Convention (see Haas v. Germany (dec.), no. 73047/01, 17 November 2005, and Baybasin v. Germany (dec.), no. 36892/05, 3 February 2009). In this connection, the Court notes the appellate court’s reasoning that the evidence in question was corroborated by M.T.’s pre-trial statements (see paragraph 25 above). Considering that the domestic courts regarded M.T. as a direct eyewitness, the applicant’s conviction cannot be regarded as based solely on hearsay evidence.

75. In the light of the foregoing, and bearing in mind that the applicant had the benefit of adversarial proceedings, the Court finds that the applicant’s complaints under Article 6 §§ 1 and 3 (d) are manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

C. Compliance with Article 34 of the Convention

76. The applicant complained that on 12 August 2010 he was asked by the governor of the Rustavi Prison no. 2 to withdraw his application from the Court, and that he was subsequently beaten by that governor on 19 August 2010 before his transfer to another prison.

77. The Court has already found that the allegations of physical ill‑treatment are manifestly ill-founded in view of the evidence available in the case file (see paragraphs 64-66 above). As regards the alleged request by the prison governor that the applicant withdraw the application pending before the Court in exchange for better conditions in prison (see paragraph 41 above), even assuming that the meeting did indeed take place, the applicant was promptly transferred to another prison. Considering the applicant’s continuous unhindered access to the Court, and the absence of any subsequent contact aimed at dissuading the applicant from pursuing the application, the Court finds that there are no reasons to pursue the examination of the applicant’s complaint about Georgia’s breach of its obligation under Article 34 not to hinder his right of individual application.

D. Other alleged violations of the Convention

78. The applicant also raised additional complaints with reference to Article 3, Article 5 §§ 2 and 3, Article 6, and Article 8 of the Convention (see paragraphs 50, 52, and 54 above). Having regard to all the material in its possession, and in so far as it has jurisdiction to examine the allegations, the Court has not found any appearance of a breach of the rights and freedoms guaranteed by the Convention or its Protocols in that part of the application.

79. It follows that the application in this part must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

Decides not to pursue the complaint raised under Article 34 of the Convention;

Declares the remainder of the application inadmissible.

Done in English and notified in writing on 29 November 2018.

Milan BlaškoAndré Potocki
Deputy RegistrarPresident

 

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