Communicated on 19 March 2015
FOURTH SECTION
Application no. 6739/11
Orest BOKHONKO
against Georgia
lodged on 20 January 2011
STATEMENT OF FACTS
1. The applicant, Mr Orest Bokhonko, is a Ukrainian national, who was born in Ukraine and is currently serving a prison sentence in Georgia. He is represented before the Court by Ms A. Avaliani, a lawyer practising in Tbilisi.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s alleged ill-treatment during his arrest and body search
3. On 27 September 2008 the applicant, a citizen of Ukraine, took a flight from Kiev to Tbilisi. Upon his arrival at Tbilisi International Airport he was arrested on suspicion of possessing and transporting drugs. The personal search of the applicant as well as the subsequent search of his personal belongings did not reveal any unlawful substance. The applicant was then subjected to a body check. He was strip naked and forced to do sit‑ups. During one of the sit-ups, according to the search report, a small yellow balloon with a black string was noted falling from the applicant’s anus.
4. According to the report of his personal search, which he had refused to sign, the applicant was informed by an interpreter in a Russian language about his right to call for independent witnesses to attend the search. He, however, waived this right.
5. The applicant challenged the official version of events. Notably, according to his statement, he was arrested by several men when he was trying to get into a car of his friend Z.S. outside the airport. The latter came to pick him up. He was kicked in stomach and then taken to a certain room in the airport. The applicant claims that, despite his requests, no explanations were given to him as to the reasons of his arrest. His requests to get in touch with the Ukrainian Consulate and to invite independent witnesses were also turned down.
6. The search of the applicant’s personal belongings as well as his personal search did not reveal any unlawful items. He was then forced to strip naked. He resisted since there were around ten people present in the room, but he was physically and verbally abused. Several of the police officers present were recording his strip search on their cell-phones. He was then subjected to an inspection of his anus, but nothing unlawful was revealed.
7. According to the applicant, during his continuous humiliation and ill‑treatment the police officers repeatedly asked him about the identity of a person who was supposed to transport drugs for Z.S. from Kiev. The applicant was kept naked for about two hours. Then he was subjected to a repeated inspection of his anus, during which he apparently lost consciousness. When the applicant regained his consciousness, he was told that drugs had been removed from his anus.
2. Subsequent criminal proceedings
8. On 28 September 2008 the forensic expertise established that the white substance removed from the applicant’s anus constituted 93,3170gr. of methadone. The applicant was charged under Articles 260 § 3 (a) and 262 § 4 (a) of the Criminal Code of Georgia (unlawful possession and transportation of drugs) and on 30 September 2008 a trial judge ordered his pre-trial detention for two-months. On 3 October 2008 the applicant’s lawyer complained about the deterioration in the medical condition of her client. She claimed that he was suffering from pain in the chest area, had breathing difficulties and that most probably one of his ribs had been broken during the arrest. She requested comprehensive medical examination of the applicant. The request was rejected on 5 October 2008.
9. On 13 October 2008 the applicant’s lawyers complained with the prosecution authorities, claiming that their client had not been informed in a language he understands about the reasons of his arrest; that his search had been conducted unlawfully in the absence of independent witnesses and a lawyer; and that the body examination had been conducted unlawfully and by unauthorised persons. They requested discontinuation of the criminal proceedings against the applicant. The request was dismissed as unsubstantiated by the responsible prosecutor on 17 October 2008.
10. The lawyers appealed the refusal with the General Prosecutor of Georgia. In addition, on 10 November 2008 they filed another complaint with the General Inspection of the Ministry of the Interior. While reiterating their initial arguments, they also claimed the following: the yellow small balloon which had been purportedly found in the applicant’s anus had not been subjected to forensic examination; in such circumstances, it was impossible to establish whether the drugs found had indeed been removed from the applicant’s anus. The applicant also complained with the President of Georgia, the Public Defender of Georgia and the Ukrainian Consulate. His complaints were forwarded to the relevant investigative authorities. The Public Defender requested the initiation of criminal proceedings in connection with the applicant’s allegations of ill-treatment. However, it appears from the case-file that none of the above complaints have yielded any results.
11. On 13 November 2008 the pre-trial investigation was concluded and the case-file along with the bill of indictment was sent to the first-instance court for consideration.
12. According to the case-file, the applicant complained to the trial judge about the physical and psychological ill-treatment he had been subjected to during his arrest and subsequent strip search; he claimed that he could identify the police officers involved and indicated by name K.K., who had apparently been in charge of his arrest and search operation and who had conducted his anal inspection. The applicant requested the questioning of K.K. and other police officers who had participated in his arrest and alleged ill-treatment as well as the questioning of the interpreter.
13. After having heard the witnesses and examined the evidence before it, by a decision of 18 June 2009 the Tbilisi City Court convicted the applicant as charged and sentenced him to twenty-three years’ imprisonment. The court dismissed the applicant’s ill-treatment allegations as unsubstantiated and concluded that the drugs had indeed been recovered from the applicant’s anus.
14. The applicant appealed. He claimed that the results of the forensic examination of the drugs were invalid, since no examination of the yellow balloon had been conducted; he further reiterated that he had been ill-treated during his arrest and the strip search; that his ill-treatment allegations had been neglected; that the key evidence had been obtained as a result of his ill‑treatment; that the Ukrainian Consulate had not been informed about his arrest; that his conviction had been based on the unlawfully obtained evidence and on the statements of police officers whom he had implicated in his ill-treatment.
15. The applicant’s conviction was confirmed on appeal by the Tbilisi Court of Appeal on 26 February 2010. On 23 July 2010 the Supreme Court of Georgia rejected the applicant’s appeal on points of law.
COMPLAINTS
16. The applicant complained under Article 3 of the Convention about the physical and psychological ill-treatment he had been allegedly subjected to during his arrest and subsequent strip search. Under Article 6 §§ 1 and 3 (e) of the Convention he claimed that his search had been conducted unlawfully in violation of Article 3, that his conviction had accordingly been based on unlawfully obtained evidence; that he had not been provided with a professional interpreter throughout the domestic court proceedings and that the decisions of the domestic courts had been arbitrary and unreasoned.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to torture, inhuman or degrading treatment in breach of Article 3 of the Convention on 27 September 2008? In particular,
(a) Was the applicant ill-treated by police officers after his arrest?
(b) Did the strip search of the applicant, having regard to all the circumstances of the case, amount to a violation of Article 3 of the Convention? The Government are invited to explain the relevant legal framework regulating the conduct of strip searches, including anal inspections.
(2) Did the State authorities in the present case comply with their procedural obligation under Article 3 of the Convention to conduct an effective official investigation into allegations of the applicant’s ill‑treatment?
2. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 of the Convention? In particular,
(a) Was the applicant’s right to a fair trial violated in the criminal proceedings against him by the admission and use of evidence allegedly obtained in breach of Article 3 of the Convention (see Jalloh v. Germany [GC], no. 54810/00, ECHR 2006‑IX; and Gäfgen v. Germany [GC], no. 22978/05, ECHR 2010)?
(b) Did the domestic courts duly examine the applicant’s allegation that the drugs had been planted on him by the police? In this connection, was the forensic conclusion that the methadone was found in the applicant’s anus based on an adequate examination?
(c) Was the applicant afforded the free assistance of an interpreter, within the meaning of Article 6 § 3 (e) of the Convention?
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