Communicated on 16 October 2015
FOURTH SECTION
Application no. 40009/12
Nikoloz GOGUADZE
against Georgia
lodged on 21 June 2012
STATEMENT OF FACTS
1. The applicant, Mr Nikoloz Goguadze, is a Georgian national, who was born in 1980 and lives 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. Background information
3. The applicant was a member and one of the leaders of a group which called itself the “National-Religious Movement”, which was founded in Tbilisi on 11 May 2011.
4. On 26 May 2011 a report was drawn up by a police officer, which stated that the officer possessed information that twenty-three individuals, including the applicant, were plotting the violent overthrow of the Government of Georgia. According to the report, all the alleged plotters were located at the Kintsvisi Monastery, in the Kareli region.
5. On 30 May 2011 a press release was posted on the website of the Ministry of the Interior (“the MoI”), which said that an armed group of twenty-four people had been detained in Kintsvisi on 26 May 2011.
2. The applicant’s arrest and his alleged ill-treatment
6. According to the official record of the detention and search of the applicant, he was arrested at 6.12 a.m. on 27 May 2011 at Tbilisi police headquarters on suspicion of committing an offence under Article 315 § 1 of the Criminal Code (conspiracy or insurrection to change the constitutional order of Georgia by violent means). The report, which stated that the arrest had been made after the applicant had been questioned as a witness, also noted that he had multiple bruises and cuts on his body and face.
7. At 12.30 p.m. the same day the applicant was taken to a pre-trial detention centre, where upon admittance he underwent a visual examination. The report drawn up thereafter confirmed that the applicant had bruises and cuts.
8. By a decision of 28 May 2011 a trial judge, acting at the request of the prosecution, remanded the applicant in custody for fifty-five days. At the detention hearing, the applicant challenged the official version of his arrest and claimed that he had been apprehended on 26 May in Kintsvisi and not on 27 May 2011 in Tbilisi. His submission disagreeing with the official record of his arrest was, however, dismissed.
9. The applicant appealed against his pre-trial detention, maintaining his version of the circumstances surrounding the arrest. In particular, he claimed that after being apprehended in Kintsvisi at around 11.30 a.m., he had been transferred first to Kareli police station and then to the Tbilisi police headquarters, where he had been questioned as a witness for about six hours. His appeal was dismissed by the Tbilisi Court of Appeal on an unidentified date.
10. On 15 July 2011 the applicant was additionally charged with the unlawful purchase and possession of firearms, an offence under Article 236 §§ 1 and 2 of the Criminal Code. According to the case file, a gun had been found in his vehicle on 27 May 2011 after the vehicle had been transported from Kintsvisi to Tbilisi.
3. The applicant’s trial
11. On 21 July 2011 a pre-trial conference was opened. The trial judge, acting at the request of the prosecution, ordered that the hearing be held behind closed doors. Despite arguments to the contrary from the defence, the judge concluded on the basis of Article 182 § 3 (g) of the Code of Criminal Procedure (“the CPC”) that those involved in the trial were at risk given the nature and specific circumstances of the case. The judge also noted that under Article 182 § 4 of the Code a hearing could be closed to the public to ensure order at the trial.
12. At the pre-trial conference the applicant reiterated his allegation that his initial detention had been unlawful. He also complained of the physical and psychological abuse he had allegedly been subjected to. The court dismissed those and other allegations by the applicant as unsubstantiated.
13. On 29 July 2011 the trial started and was also held behind closed doors at the request of the prosecution.
14. On 12 August 2011 the applicant was convicted as charged and sentenced to twelve years’ imprisonment. The trial court decided, mainly on the basis of statements given by nineteen witnesses in court, that the applicant had organised a plot to overthrow the Government of Georgia by violent means. The court also upheld the firearms charges and found that the applicant had been unlawfully carrying a gun, on the basis of the results of the search of the vehicle and statements by several of the witnesses. The judge dismissed the applicant’s submission that he had been arrested in Kintsvisi as opposed to Tbilisi and therefore rejected his request for the questioning of the head of the analytical department of the MoI and one of the MoI investigators. The court also rejected the defence’s assertion that the search of the vehicle had been conducted unlawfully.
15. The applicant appealed. He claimed that the decision to close the hearings to the public had been unfounded as the prosecutor had failed to specify whose lives were at risk. The applicant further challenged the statements of the prosecution witnesses as inconsistent and unreliable. He empashised that all the prosecution witnesseses had concluded plea bargains with the prosecution and had pleaded guilty to plotting a coup. The applicant repeated his complaints in connection with the circumstances of his arrest and requested the questioning of two witnesses in that regard. He also maintained his submission concerning the unlawfulness of the search of his vehicle.
16. The applicant’s conviction was upheld by the Tbilisi Court of Appeal on 22 November 2011. By a decision of 12 March 2012 the Supreme Court of Georgia dismissed an appeal by the applicant on points of law.
17. The applicant was released from prison on 13 January 2013 under the Amnesty Act of 28 December 2012.
4. Investigation into the alleged ill-treatment of the applicant
18. On 28 May 2011 the applicant was transferred to Tbilisi no. 8 Prison. Upon admission he underwent a visual examination, which confirmed multiple bruises and cuts on his body. The prison administration sent a copy of that report to prosecutors and requested the initiation of proceedings. An investigation was begun under Article 333 § 1 of the Criminal Code into the offence of abuse of power. The applicant provided a detailed description of his alleged ill-treatment and repeatedly asked to be questioned in that regard, but his requests were ignored by the authorities. By a letter of 11 December 2011 the applicant was finally told that he was not a party to the proceedings in question and hence had no right to file applications or request that certain investigative steps be taken.
19. Throughout 2012 the Office of the Public Defender of Georgia (“the PDO”), acting at the request of the applicant, sent three requests for information to the Office of the Chief Prosecutor of Georgia concerning the investigation into the alleged ill-treatment of the applicant. All three letters remained unanswered. On 1 February 2013 another request was sent, which also received no reply.
20. On 7 February 2013 the applicant filed a complaint with the Chief Prosecutor of Georgia, criticising the lack of progress in the investigation. That complaint was followed by others to the Minister of Justice, the Main Prosecutor’s Office and the investigator in charge of the case.
21. According to a letter dated 2 April 2015, the investigator informed the applicant that the investigation was still pending.
B. Relevant domestic law
22. The CCP provides the legislative framework for the questioning of accused persons and witnesses by the police. Article 38 § 2 states that as soon as an accused person is detained or, if detention does not take place, once the person has been formally charged and before any questioning, the person must be informed about his or her basic procedural guarantees, including his or her right to legal advice, the right to remain silent and the privilege against self-incrimination. Detention, as defined in Article 170 of the CCP, is a temporary deprivation of liberty. An individual is considered detained from the moment his or her freedom is restricted. An individual is also considered to be an accused person from the moment of detention.
23. The new CCP has introduced a new legal framework for the questioning of witnesses, but it does not come into force until 1 January 2016 and so the provisions of the old CCP (1998) remain in force. Article 98 of the old CPP, in particular, provides that any person who might be aware of facts pertaining to the circumstances of a criminal case may be summoned as a witness. Article 94 § 4 states that a witness must be informed of the matter for which he or she has been summoned and of the right not to incriminate himself or herself or a close relative. As regards access to legal advice, Article 305 § 5 of the CCP provides that a witness may request that a legal representative attend the questioning. However, the failure of a legal representative to appear will not prevent the questioning from being conducted.
COMPLAINTS
24. The applicant alleges under Article 3 of the Convention that he was physically and psychologically abused by the police after his arrest and that no adequate investigation of his allegations has been conducted. He further complains under Article 5 of the Convention of the unlawfulness of his initial detention for about eighteen hours.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention at the Kareli police department and after his transfer to Tbilisi police headquarters?
2. Have the authorities complied with their positive obligation under Article 3 of the Convention to carry out an effective investigation into the applicant’s allegations of ill-treatment? In that connection, what is the current state of the proceedings in question?
3. Did the applicant exhaust domestic remedies and did he comply with the six months requirement in respect of his complaint under Article 5 § 1 of the Convention concerning the unlawfulness of his initial detention for about eighteen hours?
4. If so, was the applicant’s deprivation of liberty between 11.30 a.m. on 26 May 2011 and 6.12 a.m. on 27 May 2011, that is until the moment when an official record of his arrest was drawn up, lawful within the meaning of Article 5 § 1 of the Convention? The Government are asked to explain on what grounds the applicant was apprehended on the morning of 26 May 2011? If, and in so far as he was not apprehended as an accused person, does the relevant Georgian law provide for the possibility of apprehending a witness and taking him to a police station for questioning him there?
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