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 (Fifth Section), sitting as a Committee composed of:
Síofra O’Leary, President,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Milan Blaško, Deputy Section Registrar,
Having deliberated in private on 11 December 2018,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The 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 (“the Convention”) by a Georgian national, Mr Giorgi Bregvadze (“the applicant”), on 13 August 2009.
2. The applicant was represented by Mr A. Noselidze and Mr G. Giunashvili, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
3. On 24 February 2016 notice of the complaint under Article 6 §§ 1 and 3 (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 inadmissible pursuant to Rule 54 § 3 of the Rules of Court.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
4. The applicant was born in 1987 and was detained in prison in Rustavi at the material time.
A. The applicant’s arrest and pre-trial investigation
5. On 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.
6. During 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 friend out walking the streets and that he had been seen by several people in the area.
7. On 7 December 2007 the applicant’s lawyer wrote to the investigator in charge of the case requesting that he question twelve persons who could confirm the applicant’s alibi. By a decision of 9 December 2007 the investigator rejected the request as unsubstantiated. In his reasoning he noted that the applicant’s 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’s request was confirmed on appeal by a supervising prosecutor.
B. Court proceedings
8. The trial opened on 22 April 2008. In the absence of the applicant’s 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 requested an adjournment 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.
9. On 5 May 2008 the applicant’s 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’s alibi should have been verified and she requested, in that connection, on the basis of Article 468 of the Code of Criminal Procedure (“the CCP”), that seven witnesses be questioned. In support of her request she submitted written statements for those witnesses.
10. The next day, at the hearing of 6 May 2008, the prosecutor asked the trial judge to dismiss the defence’s 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’s argument that any such request should have been lodged five days before the opening of the trial.
11. On 22 May 2008 the Tbilisi City Court convicted the applicant as charged and sentenced him to seven years and six months’ imprisonment. The applicant’s 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 a similarity in fibres of black cotton removed from the front and back seats of the taxi and micro-particles removed from the applicant’s 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 and the searches of the applicant’s person and his apartment.
12. The 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 §§ 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.
13. On 15 July 2008 the appeal proceedings started. The appeal court rejected the applicant’s request for the examination of defence witnesses, concluding that it had not been submitted as required by Articles 231 and 475 § 4 of the CCP (as cited in paragraph 17 below).
14. On 18 July 2008 the Tbilisi Court of Appeal upheld the applicant’s conviction. The court concluded that the applicant’s 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’s arrest and the search of his person, the report on the search of the applicant’s apartment, and the forensic conclusions, among other grounds. None of the defence witnesses was questioned during the appeal proceedings. As for the applicant’s version of the events, the court concluded that it had been fabricated with the sole purpose of evading criminal liability.
15. The applicant lodged an appeal on points of law. He maintained that his defence rights as envisaged in Article 6 §§ 1 and 3 (d) of the Convention had been violated on account of the lower courts’ refusal to hear the defence witnesses. He claimed in that connection that he had been put in a disadvantageous position vis-à-vis the prosecution and had been prevented from proving his innocence.
16. By a decision of 13 February 2009 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law as inadmissible.
II. RELEVANT DOMESTIC LAW
17. The 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:
Article 18 – The obligation to elucidate the circumstances of a case in a complete, objective and thorough manner
“... 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.
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].”
Article 232 – Deciding on a procedural application
“1. A procedural application aimed at facilitating the task of elucidating all the circumstances of the case in a complete, objective and thorough manner must be granted.
2. Procedural applications made by the public prosecution and the defence must always be given equal consideration. ...
6. A decision to reject a procedural application must contain reasons.”
Article 231 – Rule on filing a procedural application
“1. The filing of a procedural application is allowed at any stage of a criminal 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.
2. A procedural application can be filed in writing or orally. It has to be substantiated ...
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 ...
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.”
Article 468 – Filing and deciding on a procedural application
“1. 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 ...
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.”
Article 475 – Presentation of evidence
“1. A court investigation consists of the presentation and examination (at the first stage) of evidence either incriminating or exonerating the accused ...
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.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 §§ 1 AND 3 (d) OF THE CONVENTION
18. The applicant complained under Article 6 §§ 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:
“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;
...”
A. Admissibility
19. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
20. The applicant maintained that the domestic courts’ 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 6 §§ 1 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‑sided 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’s 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 475 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.
21. The Government submitted that the applicant’s 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’s 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’ 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 lawyer to submit any procedural applications, but they had not availed themselves of that opportunity.
2. The Court’s assessment
(a) General principles
22. The relevant general principles were summarised in the case of Kartvelishvili v. Georgia (no. 17716/08, §§ 59-61, 7 June 2018, with further references therein).
(b) Application of the above principles to the circumstances of the current case
23. In 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-à-vis the prosecution, and whether the proceedings as a whole were conducted fairly, the Court will first examine the basis for the applicant’s conviction (see Kartvelishvili, cited above, § 62, with further references therein).
24. The applicant’s 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 May and 18 July 2008 the Tbilisi City Court and the Tbilisi Court of Appeal respectively held that the applicant’s 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’s arrest and the search of his person, and the report on the search of the applicant’s home. The courts did not, however, explain how that evidence proved the applicant’s 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’s conviction was principally based on the victim’s evidence and the forensic reports, which primarily implied that the applicant had taken the taxi in question on the day of the crime.
25. The Court has previously held that in circumstances where an applicant’s 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, § 183, 13 July 2006, and Polyakov v. Russia, no. 77018/01, §§ 34-37, 29 January 2009).
26. In 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 7 above). The investigator in charge of the case rejected his application on the ground that two of the potential witnesses were close to the applicant and 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.
27. The 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 Topić v. Croatia, no. 51355/10, § 42, 10 October 2013, and Polyakov, cited above, § 34-35). In the current case, the domestic courts dismissed the request on procedural grounds. However, at the material time, the CCP made provision for a defendant to call witnesses, if there were proper grounds to do so, at any stage of the proceedings (see Article 231 § 1 as cited in paragraph 17 above). The fact that the lawyer representing the applicant at that time had been newly appointed could, in the Court’s 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’s appeal on points of law as unsubstantiated.
28. In view of the foregoing the Court cannot accept the Government’s argument that the applicant’s 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’s conviction had been based, the refusal to have his witnesses examined in court 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 subject matter of the accusation and could even arguably have led to the applicant’s acquittal (see Kartvelishvili, cited above, § 61, with further references therein; and contrast Dorokhov v. Russia, no. 66802/01, § 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 evidence in his defence that might have exonerated him. By preventing him from doing so, in a procedurally flawed manner (see the Court’s conclusion in the preceding paragraph), the domestic courts put the applicant at a disadvantage vis-à-vis the prosecution. There has accordingly been a violation of Article 6 §§ 1 and 3 (d) of the Convention in the present case.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
29. Article 41 of the Convention provides:
“If 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.”
A. Damage
30. The applicant claimed 80,000 euros (EUR) in respect of non‑pecuniary damage. He submitted that he had endured severe distress as a result of his unlawful conviction and ensuing unlawful imprisonment.
31. The Government disputed the applicant’s claim, reiterating their argument that there had been no violation of Article 6 §§ 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‑law.
32. It does not follow from the Court’s finding of a violation of Article 6 §§ 1 and 3 (d) of the Convention in the applicant’s 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. 71409/10, § 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’s claim.
B. Costs and expenses
33. The 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.
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Declares the application admissible;
2. Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention;
3. Holds that the finding of a violation constitutes in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.
Done in English, and notified in writing on 17 January 2019, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Milan BlaškoSíofra O’Leary
Deputy RegistrarPresident
Full & Egal Universal Law Academy