Published on 15 September 2025
FOURTH SECTION
Application no. 28337/24
Davit JANASHIA
against Georgia
lodged on 1 October 2024
communicated on 29 August 2025
SUBJECT MATTER OF THE CASE
The application concerns the alleged unfairness of the criminal proceedings against the applicant, particularly the domestic courts’ alleged failure to examine a specific witness on the applicant’s behalf.
On 15 November 2021 the applicant was convicted of assaulting a police officer in the line of duty (Article 353 (1) § 2 of the Criminal Code) and sentenced to eight years’ imprisonment. The final sentence, which included the unserved part of his previous sentence, was set at nine years. The Kutaisi City Court established that the applicant had physically assaulted S.Kh., a police officer who was off duty that day, and determined that the assault was motivated by the victim’s official duties. The charges against the applicant also referred to a certain L.B. as another suspect in the incident; however, the latter was not questioned neither at the pre-trial stage nor before the first‑instance court.
On 13 December 2021 the applicant appealed against his conviction before the Kutaisi Court of Appeal, alleging that he had only had a verbal altercation with the victim, who had blocked his car, that he had been unaware that the victim was a police officer, and that the impugned incident had not been motivated by the victim’s performance of his police duties. On 20 December 2022 the applicant’s lawyer requested the examination of L.B. in court, arguing that his testimony was crucial for clarifying the circumstances of the incident and refuting the prosecution’s version of events. In support of his request, the lawyer submitted a statement from L.B., who explained that, that he had previously declined to provide testimony on the advice of his counsel but had contacted the applicant’s lawyer on 18 December 2022 to express his willingness to testify for the defence.
The applicant relied on Article 297 (d) of the Code of Criminal Procedure, which stated that an application to introduce new evidence in appellate proceedings must be granted if: (i) the evidence was exceptionally important to prove his or her cause, and (ii) it had been impossible to present the evidence at first instance. The Kutaisi Court of Appeal dismissed the above request, noting that the defence had been aware of L.B.’s identity at the pre‑trial investigation stage and could have sought his examination earlier.
On 5 October 2023 the Kutaisi Court of Appeal upheld the applicant’s conviction and the nine-year prison sentence. On 1 July 2024 the Supreme Court rejected the applicant’s appeal on points of law as inadmissible.
The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that the Kutaisi Court of Appeal’s refusal to examine witness L.B. on his behalf rendered the criminal proceedings against him unfair.
QUESTIONS TO THE PARTIES
1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular, did the domestic courts adequately examine the applicant’s argument that there was insufficient evidence to establish that the alleged assault was committed against “a police officer in the line of duty” – a key element of the offence for which he was convicted?
2. In this connection, having regard to the refusal of the Kutaisi Court of Appeal to examine witness L.B., was the applicant afforded the opportunity to obtain the attendance and examination of witnesses on his behalf under the same conditions as those against him, as required by Article 6 § 3 (d) of the Convention (see, for general principles, Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 139-68, 18 December 2018; see also Khachapuridze and Khachidze v. Georgia, nos. 59464/21 and 13079/22, §§ 100-06, 29 August 2024; Kartvelishvili v. Georgia, no. 17716/08, §§ 62-65, 7 June 2018; Pereira Cruz and Others v. Portugal, nos. 56396/12 and 3 others, §§ 220-32, 26 June 2018; and Pertaia v. Georgia [Committee], no. 44888/16, §§ 49-51, 13 January 2022)? Was the testimony of L.B. capable of influencing the outcome of the trial or could it reasonably be expected to strengthen the position of the defence (see Murtazaliyeva, cited above, §§ 160-61)?
3. Did the applicant have access to an effective procedure to secure the examination of L.B. before the first-instance court? In particular, under the applicable procedural rules (notably Articles 75, 83, 113, 114, 115, and 149 of the Code of Criminal Procedure), what specific steps was the applicant required to take to prompt the first-instance court to summon L.B.? Furthermore, notwithstanding L.B.’s refusal to provide a witness statement to the defence during the investigation stage, did the applicant have a procedural right to request that L.B. be summoned to testify – either voluntarily or compulsorily – at trial before the first-instance court?
The Government are invited to submit the relevant domestic legal provisions and case-law governing the summoning and examination of potential defence witnesses who refuse to testify in criminal proceedings.