Communicated on 7 January 2015
FOURTH SECTION
Application no. 59835/12
Tsotne GAMSAKHURDIA
against Georgia
lodged on 17 July 2012
STATEMENT OF FACTS
1. The applicant, Mr Tsotne Gamsakhurdia, is a Georgian national, who was born in 1975 and lives in Tbilisi. He is represented before the Court by Ms N. Jomarjidze, lawyer practising in Tbilisi.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. The applicant, serving a sentence, was placed in a prison medical establishment and was on a long-term hunger strike at the material time. According to the official version of the events, contested by the applicant, on 7 June 2010 Mr B., a prison guard, entered the applicant’s cell at the latter’s invitation. After he entered the cell, the applicant offered Mr B. payment of a monthly sum of five hundred Georgian lari (approx. 250 euro) as a bribe in exchange of information about ill-treatment of other prisoners by the prison staff and delivery of his letters to a designated person outside the prison. By an internal memo, Mr B. immediately informed his superiors about the offer and expressed his readiness to cooperate with the law enforcement.
4. On 7 June 2010 a criminal investigation was opened against the applicant based on Mr B.’s memo. On the same day, the Deputy Chief Prosecutor of Georgia, under his discretionary powers, handed over the investigation of the applicant’s case to the Investigation Department of the Ministry of Corrections and Legal Aid (“the ID”).
5. On 8 June 2010 the Tbilisi City Court authorized tapping of the applicant’s phone conversations from prison and secret video surveillance of Mr B.’s meetings with the applicant, or with any other person also involved in the criminal activity under the investigation.
6. On 8 and 12 June 2010 Mr B. had two conversations with the applicant within the prison premises and secretly filmed both conversations. On these occasions the applicant gave several letters, including a short note addressed to his mother, to Mr B. In the letters, addressed to several high officials of the Parliament, including its Chairman, and to human rights NGOs, the applicant alleged that his fellow prisoners were systematically ill-treated in the prison medical establishment. In the letters the applicant also indicated several names of the alleged perpetrators and two names of the prisoners – the alleged victims of the abuse. In the note to his mother the applicant, inter alia, requested her to give five hundred Georgian lari to Mr B. and to continuously assist the latter in the future because he was “a good man”. The applicant told Mr B. that the letters would be collected later by his friend – Mr K.
7. On 16 June 2010, after their earlier meeting during which Mr B. handed in the aforementioned letters to Mr K., the two met again. During this second meeting, on behalf of the applicant’s mother, Mr K. handed in five hundred Georgian lari to Mr B. Both meetings were secretly filmed by Mr B.
8. All activities of Mr B. were conducted under the close supervision of the ID. He also delivered the given sum of five hundred Georgian lari to the ID officers. The sum, along with the audio and video recordings produced as the result of the phone tapping and the secret filming of the meetings, was adduced as evidence in the criminal case against the applicant. Subsequently, he was charged with bribing a public official.
9. On 28 February and 20 July 2011, respectively, the Tbilisi City Court found the applicant guilty as charged and then the Tbilisi Court of Appeal upheld his conviction. Without responding to the applicant’s entrapment arguments, the national courts reasoned that although the applicant could freely send and receive correspondence at the material time, he anyway bribed Mr B. to illegally transmit his letters outside the prison.
10. Throughout the criminal proceedings the applicant maintained, including in his appeal and cassations complaints, that he had no intention to bribe Mr B. and that the latter’s conduct constituted a provocation. The applicant claimed that he had been on good terms with Mr B. as, unlike other prison guards, he was respectful towards prisoners. The applicant alleged that at the material time he was on a hunger strike to protest ill‑treatment of his fellow inmates – whose screams and pleas for help he could often hear – by the prison staff. Thus the only information he sought from Mr B. was the names of the prisoners who were allegedly ill-treated in the nearby cells. Indeed, Mr B. did tell him the name of one of the allegedly ill‑treated prisoner. The applicant’s letters, which Mr B. agreed to deliver to Mr K., were meant to expose the facts of prisoners’ ill-treatment. Referring to the verbatim records of their video-recorded conversation of 8 June 2010, also available in the file, the applicant claimed that it was Mr B. who suggested him to write letters. According to the applicant, every conversation he had with Mr B. which was secretly filmed, had been initiated by the latter.
11. The applicant further claimed that he had to resort to Mr B.’s services, because, considering their content, transmitting the aforementioned letters to the addressees would have been impossible through regular channels as the prison administration were strictly censoring the applicant’s mail at the material time. Lastly, the applicant decided to ask his mother to give the sum, as a friendly donation, to Mr B. after the latter told the applicant about serious sickness of his child and his inability to cover the costs associated with the child’s medical treatment.
12. In his testimony before the Tbilisi City Court Mr B., inter alia, confirmed that he had invented a story that he had a seriously sick child presumably to arose the applicant’s compassion and trust; he also confirmed that, after hearing the story, the applicant enquired whether he had economic means to cover the child’s medical expenses to which Mr B. replied that he had no remaining means whatsoever. Mr B. further testified that although he, as a prison guard, was not allowed to personally transmit prisoners’ correspondence outside the prison premises and would normally place their letters in a specially designated letter box available inside the prison, in the applicant’s case he agreed to deliver the letters to Mr K. as it was conducive to the ongoing undercover criminal investigation against the applicant. Finally, as an explanation as to why nowhere in the verbatim records of their video-recorded conversations did the applicant mention the bribe, Mr B. stated that the applicant had only made the offer during their initial meeting when the secret video surveillance was not yet authorized.
13. On 18 January 2012 the Supreme Court of Georgia found the applicant’s cassation claim inadmissible for being manifestly ill‑founded and thus his conviction for bribing a public official became final.
COMPLAINT
14. The applicant complains under Article 6 § 1 of the Convention that his conviction for bribing a public official, which constituted an entrapment, was unfair. He further complains, under the same provision, that the ID, which was entrusted with the investigation of his case, was not an independent and impartial body as it was a structural unit of the very same ministry the applicant was repeatedly accusing of systematic ill-treatment of prisoners.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention? In particular,
- Was the applicant subjected to entrapment?
- Did the national courts give due consideration to the applicant’s entrapment claim?
- Did the Investigation Department of the Ministry of Corrections and Legal Aid, which conducted the criminal investigation against the applicant, meet the requirements of independence and impartiality as provided for under Article 6 § 1 of the Convention?
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