Communicated on 24 February 2016
FOURTH SECTION
Application no. 5787/08
Davit KHUTSIDZE against Georgia
and 4 other applications
(see list appended)
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
1. Khutsidze v. Georgia, application no. 5787/08
3. On 4 October 2006 the Ozurgeti District Court found the applicant guilty of premediated murder and sentenced him to eleven years’ imprisonment. The court established that on 7 May 2005 the applicant had a verbal altercation with another wedding guest while attending a wedding party - K.D. A fight eventually erupted during which the applicant wounded K.D. in the abdominal area with a knife. K.D. died on his way to the hospital. According to the forensic repost the cause of his death was massive internal bleeding.
4. The applicant’s conviction was based primarily on the statements of the parents and a cousin of K.D. and several other persons who had also been at the wedding party during the incident. According to their testimony, none of them except for the cousin had actually eye-witnessed the fight.
5. During the trial the applicant protested his innocence. He confirmed that on that evening he had indeed had a verbal altercation with K.D. He claimed, however, that several other persons had been involved in the fight that had erupted subsequently; they and K.D. had attacked him and he had eventually managed to escape. According to the applicant, he had no knife on him, nor could he remember either K.D. or any other person having a knife. The investigator in charge of the case and the applicant’s lawyer requested several times that M.B, who had apparently eye-witnessed the incident, be summoned before the court. However, the relevant authorities, acting at the request of the first-instance judge, failed to establish his whereabouts and bring him to court. Another eyewitness to the fight, I.Z., who had been questioned at the pre-trial investigation stage, was likewise not questioned in court.
6. The applicant filed an appeal against his conviction. He maintained his innocence and complained that most of the witnesses who had been questioned by the first-instance court had been relatives of the deceased K.D. He requested that two eyewitnesses to the incident, I.Z. and M.B, be questioned in court. In relation to the latter, the applicant’s lawyer provided the appeal court with an official letter from which it was apparent that M.B. was detained in Tbilisi no. 5 Prison at the material time.
7. By a decision of 18 January 2007 the Kutaisi Court of Appeal upheld the applicant’s conviction in full. Without stating any reasons, the appeal court rejected the request of the applicant for the questioning of I.Z. and M.B.
8. By a decision of 12 October 2007 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law as inadmissible.
2. Kvaratskhelia v. Georgia, application no. 12309/09
9. On 6 January 2007 L.L. was arrested, on the basis of operational information, on suspicion of unlawfully possessing drugs. During the search of the taxi in which she was a passenger at the moment of her arrest, twelve pills of Subutex were found. On the same date L.L. gave a self‑incriminating statement, stating that she had purchased the pills from the applicant several hours before the arrest.
10. On 16 January 2007 the applicant was charged in absentia with drug trafficking (an offence under Article 260 § 2 (a) and (b) of the Criminal Code of Georgia). By a decision of 27 April 2007 he was convicted as charged in absentia by the Khobi District Court and sentenced to ten years’ imprisonment. The first-instance court accepted the official version of events presented by the prosecution, according to which the applicant had bought 12 pills of Subutex on an unidentified date from an unidentified person in Germany and transported them to Georgia. On 6 January 2007 he had met L.L. in the grounds of Khobi hospital and had sold her the pills for 3,300 Georgian laris (GEL). The applicant’s conviction was primarily based on L.L’s statement.
11. After his arrest, the applicant lodged an appeal against his conviction. He confirmed that on 6 January 2006 he had indeed met L.L. in the grounds of Khobi Hospital, but with the intention of buying only one pill of Subutex from her. He denied L.L.’s allegation that he had bought and transported the drugs from Germany.
12. On 24 July 2007 the Kutaisi Court of Appeal upheld the applicant’s conviction in full. L.L. was brought to the court for examination; however she refused to answer the questions posed by the defence. The appeal court therefore admitted as evidence her untested statement given at the pre‑trial investigation stage.
13. On 5 May 2008 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law as inadmissible.
3. Bakradze v. Georgia, application no. 21074/09
14. According to the official version of events, the applicant was arrested at his home on 3 March 2006 on suspicion of unlawful possession of drugs. At about 10.00 p.m. several police officers, acting on the basis of operational information, had entered his apartment by force, had handcuffed the applicant and had then searched the rooms. According to the search report, twenty-six and a half pills of Subutex were found in a sanitary drain pipe connecting the kitchen with the bathroom. In addition two pills were found on his person. The applicant was consequently charged with unlawful purchase and possession of a particularly large quantity of drugs, an offence under Article 260 § 3 (a) of the Criminal Code of Georgia.
15. The applicant challenged the official version of events. He claimed that his apartment had been stormed by police, that he had received a blow to his head and when he regained consciousness he had been told that twenty-eight pills had been found during the search. The applicant claimed that he had requested the attendance of independent witnesses, but to no avail. He had protested his innocence and maintained that the drugs did not belong to him.
16. On 12 October 2006 the Tbilisi City Court found the applicant guilty as charged and sentenced him to fourteen years’ imprisonment. The applicant’s conviction was based on the statements of the two police officers who had been involved in the applicant’s arrest and the search of his apartment, and on the results of the search and the subsequent forensic examination. The applicant stated that he had requested, in connection with the circumstances of the arrest and the search, the questioning of his neighbours and of L.Ts., a friend of his who had allegedly been at his home during the police operation. His request had been refused.
17. The applicant appealed. He complained that neither his neighbours nor L.Ts., who had witnessed his arrest, had been questioned either by the responsible investigator or by the first-instance judge. He further claimed that, given that he had been handcuffed right at the outset of the police operation, there had been no risk of his destroying the evidence, which meant that independent witnesses such as his neighbours should have been allowed to attend the search.
18. By a decision of 4 September 2007 the Kutaisi Court of Appeal upheld the applicant’s conviction in full. In connection with the applicant’s criticism of the first-instance court’s refusal to question L.Ts. and the neighbours, the appeal court simply concluded that the refusal had been lawful.
19. The applicant filed an appeal on points of law, maintaining his argument that the courts had not examined any evidence in support of the defence. On 9 October 2008 the Supreme Court upheld the conviction.
4. Bregvadze v. Georgia, application no. 49284/09
20. On 4 December 2007 the applicant was arrested on suspicion of the armed robbery of a taxi driver. Neither a personal body search nor the search of the applicant’s 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.
21. During his first questioning as an accused, the applicant gave a detailed statement, providing his alibi and naming all the people with whom he had either spent the evening of the alleged crime, or who had seen him on that evening.
22. On 7 December 2007 the applicant’s lawyer wrote to the investigator in charge of the case requesting the questioning of seven persons who could confirm the applicant’s alibi. The investigator rejected the request as unsubstantiated. The refusal was confirmed on appeal by a supervising prosecutor.
23. 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 statement of the taxi driver, the results of the identity parade and the results of the forensic examination of the applicant’s coat. The first-instance court rejected the applicant’s request that the seven defence witnesses who could substantiate his alibi be questioned.
24. On 18 July 2008 the Tbilisi Court of Appeal upheld the applicant’s conviction. 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 made up with the sole purpose of evading criminal liability.
25. By a decision of 13 February 2009 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law as inadmissible.
5. Dzasokhov v. Georgia, application no. 70243/11
26. At the material time, the applicant owned 90% of the shares in the limited liability company “Georgian Product”. The remaining 10% were owned by A.I., who at the same time held the post of director general of the company. On 19 March 2010 the applicant was charged in absentia with several financial offences in connection with the activities of his company. On 12 August and 16 September 2010 these charges were amended to include aggravated fraud, embezzlement, incitement to forge and forgery of an official document, and the purchase and use of a falsified document, offences under Articles 180 § 3 (b), 182 § 3 (b), and 362 § 2 (b) (three distinct episodes) of the Criminal Code of Georgia.
27. By a decision of 8 October 2010 the Tbilisi City Court convicted the applicant as charged and sentenced him to thirteen years and nine months’ imprisonment and a fine in the amount of GEL1,000,000. His conviction, particularly in connection with the embezzlement and fraud episodes, was based primarily on a pre-trial statement given by A.I. The latter was charged in related but separate criminal proceedings and had concluded a plea bargain agreement with the prosecution, which was approved by a court on 12 August 2010. As a result he received a conditional three-year sentence. During the first-instance court proceedings the applicant’s lawyer requested the questioning of A.I. in court. However, the prosecution failed to secure the latter’s appearance, claiming that he had left the country. According to the applicant, the prosecution failed to explain how A.I. had been allowed to leave the country without the consent of the relevant probation services.
28. The applicant’s conviction was also based on a statement of Kh.S., an independent auditor who also entered into a plea bargain agreement with the prosecution and likewise received a conditional three-year sentence. The applicant’s lawyer argued that both of the above witnesses were unreliable since at various stages of the investigation they had given contradictory statements. It was only after having entered into cooperation with the prosecution in exchange for more lenient sentences that they had testified against the applicant. The first-instance court dismissed this argument by the defence as unsubstantiated.
29. The applicant’s conviction was upheld on appeal by the Tbilisi Court of Appeal on 8 February 2011. In connection with the convictions of the two main witnesses, A.I. and Kh.S., the appeal court referred to the respective court decisions and noted the following:
“The chamber is of the view that the above-mentioned verdicts issued with respect to [A.I. and Kh.S] have entered into force and shall be considered a having res judicata effect. The chamber while considering these verdicts to be lawful (there is neither legal nor factual basis to consider them unlawful) according to Article 113 of the Criminal Code of Georgia, will treat the facts established by those verdicts and their legal analysis as binding upon it.”
30. On 11 May 2011 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law as inadmissible.
31. On 4 April 2011 new charges were brought against the applicant and on 10 May 2011 he was convicted by the first-instance court. The applicant did not appeal against the above decision.
COMPLAINTS
1. Khutsidze v. Georgia, application no. 5787/08
32. The applicant complains under Article 6 of the Convention that the criminal proceedings conducted against him were unfair and that he was not allowed to question defence witnesses.
2. Kvaratskhelia v. Georgia, application no. 12309/09
33. The applicant complains under Article 6 of the Convention that the criminal proceedings conducted against him were unfair. He particularly denounces the fact that the only incriminating evidence against him was the untested statement of L.L., which she had given at the pre-trial investigation stage.
3. Bakradze v. Georgia, application no. 21074/09
34. The applicant complains under Article 6 §§ 1 and 3 of the Convention about the unfairness of the criminal proceedings conducted against him. He alleges that the drugs were planted by police and that his conviction was based on the results of unlawfully conducted searches.
4. Bregvadze v. Georgia, application no. 49284/09
35. The applicant complains under Article 6 §§ 1 and 3 of the Convention about the refusal of the investigative and judicial authorities to question defence witnesses.
5. Dzasokhov v. Georgia, application no. 70243/11
36. The applicant alleges under Article 6 §§ 1 and 3 (d) of the Convention that the first set of criminal proceedings conducted against him was unfair. He particularly complains about the fact that the key prosecution witness in the case against him was not questioned in court.
COMMON QUESTIONS
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention?
CASE-SPECIFIC QUESTIONS
1. Khutsidze v. Georgia, application no. 5787/08
1. Was the failure of the domestic courts to examine I.Z. and M.B. in court a breach of Article 6 § 3 (d) taken in conjunction with Article 6 § 1 of the Convention?
2. Kvaratskhelia v. Georgia, application no. 12309/09
1. Was there a good reason for admitting the untested pre-trial evidence of L.L.?
2. Was her untested pre-trial statement decisive for the conviction of the applicant?
3. Were there sufficient counterbalancing factors, including strong procedural safeguards, to ensure that the applicant’s trial, judged as a whole, was fair within the meaning of Article 6 §§ 1 and 3 (d) of the Convention?
3. Bakradze v. Georgia, application no. 21074/09
1. Did the domestic courts duly examine the applicant’s allegation that the drugs had been planted by the police? In this connection, was there a breach of the principle of fairness of proceedings under Article 6 § 1 of the Convention on account of the fact that the applicant’s personal body search and the search of his apartment was conducted in the absence of independent witnesses?
2. Did the refusal of the domestic courts to examine L.Ts. in connection with the circumstances of the searches amount to a violation of Article 6 § 3 (d) of the Convention?
4. Bregvadze v. Georgia, application no. 49284/09
1. Was the applicant able to obtain the attendance of defence witnesses subject to the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention in conjunction with Article 6 § 1?
5. Dzasokhov v. Georgia, application no. 70243/11
1. Was there a good reason for A.I.’s non-attendance as a witness? In this connection, were all reasonable efforts made by respective national authorities to secure his attendance?
2. Was his untested pre-trial statement the decisive basis upon which the applicant was convicted?
3. Were there sufficient counterbalancing factors, including strong procedural safeguards, to ensure that the applicant’s trial, judged as a whole was fair within the meaning of Article 6 §§ 1 and 3 (d) of the Convention?
Appendix
No
Application No
Lodged on
Applicant
Date of birth
Place of residence
Represented by
5787/08
10/01/2008
Davit KHUTSIDZE
24/05/1981
Kutaisi
Gia TABLIASHVILI
12309/09
03/11/2008
Zviad KVARATSKHELIA
29/03/1970
Tsalenjikha
Pikria MAKHARADZE
21074/09
08/03/2009
Lavrenti BAKRADZE
03/08/1979
Zestafoni
Lotberd KUPATADZE
49284/09
13/08/2009
Giorgi BREGVADZE
24/10/1987
Rustavi
Aleksandre NOSELIDZE
70243/11
21/10/2011
Gocha DZASOKHOV
02/11/1971
Moscow
Irakli BIBILASHVILI
Full & Egal Universal Law Academy