BURJANADZE v. GEORGIA

FIFTH SECTION

DECISION

Application no. 2155/09
Gela BURJANADZE
against Georgia

The European Court of Human Rights (Fifth Section), sitting on 28 August 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 6 January 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 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.

2. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili, 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.

4. At around 1.45 a.m. on 23 April 2007 an armed robbery took place at a poker game club (“the club”) in Tbilisi. Two armed men threatened the club’s 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 Georgian laris (GEL  approximately 300 euros (EUR)) and left without injuring anyone, leaving the victims’ phones at the club’s entrance door.

5. At 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.

6. According 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’s photo from a local branch of the civil registry in the applicant’s hometown, and used it as part of a photographic identification procedure.

7. On 23 April 2007 two separate photographic identification procedures were carried out involving Ms N.Ch. and Mr Sh.Ts, respectively. The applicant’s photo was presented to them together with photographs of three other persons. Both victims identified the applicant “based on his facial features, longish face, and blonde hair.” They both noted that it was not difficult to identify the applicant.

8. On 2 May 2007 the applicant was arrested at a bus station. The arrest and search report (“the arrest report”) was signed by the applicant confirming having been notified of his rights, including that of having a lawyer, at the time of his arrest.

9. On 2 May 2007, immediately upon the applicant’s 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 “slightly grown beard.” 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 “with balding hair”; and Mr K.S., born in 1975, approximately 1.8 m tall, blonde.

10. Following 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.

11. On 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.

12. On 4 May 2007 the applicant’s lawyer filed an application with the prosecutor’s 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’s 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.

13. On 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’s whereabouts in the evening of 22 April 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.

14. On 22 May 2007 additional statements were taken from the two victims, with the participation of the applicant’s 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’s hair colour seemed blonde.

15. On 26 May 2007 the investigator, Mr T.S., who had obtained the applicant’s 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’s hometown. He noted that he had been given a verbal order by his superiors to that end.

16. On 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.

17. During Ms N.Ch.’s 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’s 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.

18. Mr Sh.Ts. being abroad, his pre-trial statements (see paragraphs 5, 7, and 9 above) were read out in court.

19. At 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.

20. On 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’ imprisonment. He was also ordered to pay a fine of GEL 4,000 (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’s request to have the results of the photographic identification procedure and the identification parade declared inadmissible (see paragraph 16 above).

21. On 27 December 2007 the Court of Appeal upheld the applicant’s conviction and sentence by the lower court. It reasoned that the applicant’s requests to have the results of the photographic identification procedure and the identification parade declared inadmissible were manifestly ill-founded.

22. As 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’s objection concerning the baldness of one of the men, the relevant reports indicated that the man was “balding”, 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.’s 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.

23. Furthermore, 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’s hair colour, the victims perceived it as blonde. The court particularly noted Ms N.Ch.’s 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.

24. On 11 July 2008 the Supreme Court declared the applicant’s appeal on points of law inadmissible.

B. Relevant domestic law

25. Relevant parts of Article 347 of the Code of Criminal Procedure, in force at the material time, provided as follows:

“3. The person to be identified shall appear together with three other persons of the same sex whose appearance and clothes are not significantly different.

4. An investigator shall tell the person to take any position [in the line-up]...

7. In 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.

8. A defence lawyer may attend the identification procedure of a suspect or an accused.”

COMPLAINT

26. The applicant complained under Article 6 §§ 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.

THE LAW

27. The applicant complained under Article 6 §§ 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:

“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: ...

(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; ...”

28. The 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’s own choice that the identification parade that followed immediately was carried out without a lawyer’s 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’s applications.

29. The applicant maintained his arguments.

30. The Court reiterates that, in accordance with Article 19 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. Switzerland, 12 July 1988, § 45, Series A no. 140; Teixeira de Castro v. Portugal, 9 June 1998, § 34, Reports 1998‑IV; and Jalloh v. Germany [GC], no. 54810/00, §§ 94-96, ECHR 2006‑IX).

31. It is therefore not the role of the Court to determine, as a matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law – 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. Russia [GC], no. 4378/02, § 89, 10 March 2009).

32. In 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, § 90).

33. Turning 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’s case against the applicant. The Court will examine whether the manner in which the identification procedures were conducted and the applicant’s objections in this regard handled by the domestic courts were in accordance with Article 6 of the Convention.

34. The Court notes that contrary to the applicant’s 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 8 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. Albania, nos. 12315/04 and 17605/04, § 67, 20 April 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.

35. Furthermore, 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’s photo, in violation of domestic law, the provenance of which was unclear; the applicant’s hair colour was not blonde, contrary to the victim’s testimonies; and the persons presented in the identification parade had had a dissimilar appearance.

36. The Court notes that while the first-instance court appears to have left the applicant’s objections unanswered (see paragraphs 16 and 20 above), that omission was cured by the Court of Appeal as it explicitly addressed the applicant’s objections regarding the admissibility of evidence.

37. In particular, as regards the applicant’s 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’s statements to that end confirming that the applicant’s photo was presented together with those of three other males (see paragraphs 7 and 17 above), as well as the investigator’s 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’s arguments in that respect were manifestly ill-founded (see paragraph 22 above).

38. As to the identification parade and the applicant’s application before the domestic courts to exclude its results as inadmissible evidence, the Court of Appeal dismissed the application in a reasoned manner. In particular, as regards the applicant’s hair colour, the appellate court relied on the investigative authorities’ additional questioning of the eyewitnesses, with the participation of the applicant’s lawyer, as well as Ms N.Ch.’s statements given in an open court, and accepted that contrary to the applicant’s characterisation of his hair colour as chestnut-brown, the eyewitnesses had considered it to be blonde.

39. As 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.

40. Against 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. Georgia, no. 21571/05, § 143, 1 June 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.

41. In 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 6 §§ 1 and 3 (c) are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 September 2018.

Milan BlaškoAndré Potocki
Deputy RegistrarPresident

 

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