Communicated on 27 August 2019
FIFTH SECTION
Application no. 26134/19
Anzhela KHAVSHABOVA
against Georgia
lodged on 6 May 2019
SUBJECT MATTER OF THE CASE
The application concerns the applicant’s conviction for assault on the basis of the statements of a victim and of three prosecution witnesses whom the applicant was not allowed to examine in court. Notably, two of the prosecution witnesses were questioned by an investigator at the pre-trial stage of the proceedings in the absence of the defence. As for the victim and the third prosecution witness, they were questioned in accordance with the procedure stipulated in Article 114 of the Criminal Code of Procedure (“the CCP”) in the presence of a magistrate judge and with the participation of a lawyer appointed under a legal aid scheme. The applicant alleges that she was not informed about either the questioning of those witnesses or about the participation of a legal aid lawyer on her behalf in that procedure. The first-instance and the appeal courts acquitted the applicant concluding inter alia that they could not base their decisions solely on the statements of the witnesses who had not been examined in court. On 30 November 2018 the Supreme Court of Georgia overturned the applicant’s acquittal, finding her guilty of an assault and imposing a fine in the amount of 500 Georgian Laris (“GEL”). The Supreme Court found it established that the victim and the third prosecution witness had been interviewed in the presence of a magistrate judge with the participation of a legal aid lawyer representing the applicant. That procedure was envisaged under Article 114 of the CCP, hence, the statements obtained as a result of that questioning coupled with other circumstantial evidence, was sufficient to prove the applicant’s guilt.
The applicant complains under Article 6 §§ 1 and 3 (c) and (d) of the Convention about the unfairness of the criminal proceedings conducted against her. In particular, she complains that her conviction was based on statements of a victim and three prosecution witnesses who had not been heard at the trial. In that connection, she alleges that the victim and of the prosecution witness were examined with the participation of a lawyer appointed without her consent and/or knowledge.
QUESTIONS TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 §§ 1 and 3 (c) and (d) of the Convention? In particular,
(a) Was the applicant afforded an opportunity to be represented by a lawyer of her own choosing when the victim and one of the prosecution witnesses were questioned under the procedure laid down in Article 114 of the Criminal Code of Procedure?
(b) Was the applicant able to examine witnesses against her, as required by Article 6 § 3 (d) of the Convention?
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