Communicated on 1 September 2014
FOURTH SECTION
Application no. 28103/11
Lasha LANCHAVA
against Georgia
lodged on 13 April 2011
STATEMENT OF FACTS
1. The applicant, Mr Lasha Lanchava, is a Georgian national, who was born in June 1992 and is currently serving a prison sentence. He is represented before the Court by Ms I. Saghinadze, a lawyer practising in Kutaisi. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The violent incident of 6 July 2009 in Kutaisi no. 2 Prison
2. The applicant, who was a minor at the material time, was put in pre‑trial detention on various charges in Kutaisi no. 2 Prison on 14 April 2009. According to his medical file, he was suffering from pneumonia and was being treated on an out-patient basis.
3. On 7 July 2009 the prisons department (an authority under the Ministry of Prisons) issued a statement, according to which a violent incident had taken place in Kutaisi no. 2 Prison the previous night; notably, seven juvenile inmates had allegedly damaged prison property by wrecking one of the prison cells. The prisons department noted that relevant criminal proceedings had been initiated against the juveniles involved. They emphasised at the same time that none of them had been hurt.
4. On the same date several representatives of the Public Defender’s Office (“the PDO”) visited Kutaisi no. 2 Prison in order to verify the official version of the incident and to meet the inmates involved. It appeared that altogether nineteen juveniles, including the applicant had participated in the alleged violent incident and that seven of them, including the applicant, had been transferred to another prison in Tbilisi early in the morning. The inmates’ version of events differed from the official one. Notably, they all claimed that in the evening of 6 July 2009, one of the prison officers had noted that an iron lattice on a window as well as the window glass in cell no. 102 had been damaged. The inmates were ordered to empty the cell and they complied without any resistance. Two of them, including the applicant, were nevertheless beaten by prison officers while outside the cell. In protest to this ill-treatment incident, they started, after their return to the cell, shouting and knocking on the cell doors, demanding a meeting with the Governor of the prison. Juveniles from the two neighbouring cells joined them in their protest. The Governor eventually came to see them and calmed them down.
5. At 2:00 a.m., however, all the inmates from cells nos. 101, 102 and 103 were woken up by masked officers from a special unit, who forced them out to a corridor and made them to stand with stretched hands against a wall. Then the masked officers assaulted all of them verbally and physically. The juveniles, according to the Public Defender’s report, were beaten with wet towels and padlocks, spat at and threatened with possible sexual violence if moved. Reportedly, the special unit officers also made them put on police caps, salute, and say, “we are serving Georgia.” The seven inmates from cell no. 102, including the applicant, were particularly severely targeted. The juveniles interviewed stated that the officers focused on the applicant, who as a result lost consciousness and collapsed. After several hours of ill-treatment, the juveniles were apparently forced to pass through a so-called corridor, where the employees of the prison and the special unit officers additionally beat and spat on them. Subsequently, they were all transferred to the quarantine block of the prison.
6. The representatives of the PDO noted multiple bruises and haemorrhages of different sizes and types on the eleven inmates they interviewed. They questioned several other inmates from the same prison as well as several prison officers on the same day. On the basis of the information collected, by a letter of 15 July 2009 the Public Defender of Georgia requested the Chief Prosecutor of Georgia to initiate criminal proceedings into the circumstances of the violent incident of 6 July 2009. On 17 July 2009 the prosecutor’s office opened a criminal case into the allegation of excessive use of force by prison staff. It is unclear from the case-file, what was the outcome if any of the above proceedings.
7. As regards the applicant himself, as noted above, on the morning of 7 July 2009 he was transferred to Tbilisi no. 5 Prison. Upon his arrival, he underwent a visual medical check-up, which established several bruises and excoriations on his back and chest and a haemorrhage on his left temple. He also had multiple cutting wounds on his right forearm, which according to the applicant, he had self-inflicted in protest to his ill-treatment by prison staff. The applicant also underwent an urgent surgery on removing a damaged nail on his foot. On 10 July 2009 the applicant’s lawyer requested the relevant authorities to organise for the applicant’s proper forensic examination, but the request was refused.
B. Criminal proceedings against the applicant
8. On 23 July 2009 the applicant was charged in connection with the incident of 6 July 2009 under Articles 187 § 1 and 378 §§ 1 and 3 of the Criminal Code of Georgia (causing damage to other’s property, disobedience, obstruction of prison activities and attacking prison officers). Two prison officers – Sh. K. and I. Gh. were formally granted victim’s status. Identical charges were brought against another eighteen juveniles involved. The prosecution concluded that the juveniles in question destroyed their cells and that the applicant incited them to riot for several hours.
9. On 24 July 2009 the applicant’s lawyers complained to the responsible investigator from the investigative department of the Ministry of Prisons about omitting vital information concerning the post-incident medical condition of the applicant. Notably, they claimed that when visiting the applicant in Tbilisi no. 5 Prison on 8 July 2009, their client was treated by a dentist, since his jaw had been badly damaged during the incident and one of his teeth was missing. They also noted that the nail removed on the little toe of his right foot had been damaged during his ill-treatment. The lawyers requested to organise for the applicant’s proper medical examination, but the request was dismissed.
10. On 20 October 2009 the court proceedings against the applicant and his eighteen co-accused started. All of them protested their innocence. None of them was, however, questioned in court, since they were expelled from the court room for their allegedly inappropriate behaviour.
11. According to the relevant court minutes, the trial judge refused to order comprehensive medical examination of the applicant; he also refused to question the representatives of the PDO who had visited Kutaisi no. 2 Prison in the immediate aftermath of the incident, as well as the medical personnel of the prison and the representatives of the social service. The two victims maintained, during their in-court examination, that the applicant had been behaving aggressively and that it was him who had attacked the prison officers first. They further claimed that no other units had been involved in the incident. Seventeen other employees of Kutaisi no.2 Prison, including the Governor, were also examined in court. They claimed that the special unit had been indeed called for reinforcement, but that they had been stationed outside the prison, on its perimeters. They further alleged that the applicant had been inciting the remaining juveniles to disobey the prison officers’ orders.
12. The applicant’s lawyers claimed, on their part, that while being sick with pneumonia their client had been suffering from high fever and breathing complications in early July 2009. His repeated requests for medical assistance and transfer to another cell had been ignored. The request for the opening of the only window in an overcrowded cell (seven inmates instead of six) without proper ventilation system had also been refused. The applicant, thus, had tried to open the window himself and that is when the window glass had been damaged.
13. By a decision of 15 February 2010 the Kutaisi City Court convicted the applicant along with his eighteen co-accused as charged. The applicant was sentenced to seven years, ten months, and fifteen days’ imprisonment.
14. The applicant’s lawyers lodged an appeal against the above decision. They claimed, inter alia, that the applicant’s conviction was unsubstantiated, based on the statements of the prison officers only, that no medical examination of his state of health had been ordered, that the hearings had been conducted in the absence of all nineteen accused and that none of them had been questioned in court; and that the public defender’s report as well as other evidence in the applicant’s and his co-accused’s favour had been absolutely neglected. The lawyers, hence, requested that the appeal hearings be conducted in the applicant’s presence and that the victims and other witnesses of the prosecution be examined in court.
15. By a decision of 31 May 2010 the Kutaisi Court of Appeal confirmed the applicant’s conviction in full. As it appears from the case file, the applicant, who had first invoked his right to remain silent, was subsequently expelled from the courtroom for disrespect and insult of the court. He was hence not allowed to make his final pleadings. The appeal court rejected the defence’s request to re-examine the prosecution witnesses and the two victims in court. The request for the questioning of the representatives of the PDO, the medical and social personnel of the Kutaisi no. 2 Prison was also dismissed.
16. By a decision of 13 October 2010 the Supreme Court of Georgia rejected the applicant’s appeal on points of law.
COMPLAINTS
17. The applicant complained under Article 6 of the Convention about the unfairness of the criminal proceedings conducted against him. He claimed in this connection that the domestic courts had simply ignored all the arguments in his defence, overlooked his allegations of ill-treatment, based their conclusions on the contradictory statements of the prison officers only and thus by assessing the evidence in a one-sided manner rendered unsubstantiated and biased decisions. He further complained under Article 6 of the Convention and Article 2 of Protocol no. 7 about the refusal of the Supreme Court of Georgia to consider his appeal on points of law.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to inhuman and degrading treatment in breach of Article 3 of the Convention during the violent incident of 6 July 2009 in Kutaisi no. 2 Prison?
2. Have the competent domestic authorities conducted an adequate investigation into the alleged ill-treatment of the applicant?
3. Did the applicant have a fair hearing in the determination of the criminal charges brought against him, in accordance with Article 6 §§ 1 and 3 (c) and (d) of the Convention? In particular,
(a) Did the domestic courts sufficiently reason their conclusion that the statements of the prison officers concerning the incident of 6 July 2009 deserved more credibility than the version of events proposed by the applicant and the remaining eighteen juvenile inmates?
(b) Did the domestic courts duly examine the applicant’s allegation of having been ill-treated during the incident of 6 July 2009?
(c) Having due regard to the fact that the applicant was expelled from the court proceedings and hence was prevented from making his final pleadings, can the applicant be said to have been able to defend himself, as required by Article 6 § 3 (c) of the Convention (see, mutatis mutandis, Hanževački v. Croatia, no. 17182/07, § 25, 16 April 2009, and Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, §§ 192-195, 26 July 2011)?
(d) Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention in conjunction with Article 6 § 1?
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