Information Note on the Court’s case-law
November 2022
Mamaladze v. Georgia - 9487/19
Judgment 3.11.2022 [Section V]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Public hearing
Obtaining and use of evidence (poisonous substance) in conviction of archpriest for preparation of murder of Patriarch’s personal secretary not contrary to fair trial requirements: no violation
Trial and appeal proceedings held in camera without sufficient consideration of less restrictive measures and impact of full closure and without counterbalancing detrimental effects: violation
Article 6-2
Presumption of innocence
Statements and conduct of public officials and prosecution authorities after archpriest’s arrest for murder preparation of Patriarch’s personal secretary detrimental to presumption of innocence: violation
Facts – The applicant was, at the time of the events, an archpriest and the director of a medical clinic operating under the authority of the Georgian Orthodox Church. He was arrested at the airport following incriminating evidence given to the Chief Prosecutor’s Office (CPO) by I.M., a journalist he had personal ties to, which had triggered a criminal investigation in the context of which covert investigative measures had been authorised. Natrium cyanide, a highly toxic substance, was found in the applicant’s luggage. The applicant was charged with, and later convicted of preparation of murder of the personal secretary to the Catholicos-Patriarch of Georgia, the spiritual leader of the Georgian Orthodox Church, Ilia II. His appeal was unsuccessful. Both the trial and the appeal proceedings were held in camera.
Law – Article 6 §§ 1 and 2:
(a) Admissibility – The applicant’s complaint under Article 6 § 2 had three limbs: it related to the various public officials’ statements following his arrest, the dissemination in the media by the prosecuting authorities of various case-file material, including covert recordings, and the allegedly one-sided non-disclosure obligation that had been imposed on him as part of the criminal proceedings. The applicant should have pursued civil proceedings as regards the public officials’ statements, assuming that such proceedings could have, based on the Court’s case-law criteria, provided adequate and sufficient redress in this regard. However, at the domestic level, the applicant had primarily formulated his submission concerning the right to be presumed innocent as being closely linked to the alleged breach of the principle of publicity and the operation of the non-disclosure obligation as part of the criminal proceedings against him. In particular, he had submitted that the full closure of the trial considered against the statements made by public officials and the main witness against him (I.M.) and the dissemination of covert material had contributed to the creation of a public perception that he had been guilty. In such circumstances, with the presumption of innocence viewed as a procedural guarantee in the context of a criminal trial itself, it had not been unreasonable for him to pursue the matter as part of the criminal proceedings without availing himself of another remedy.
Conclusion: admissible
(b) Merits –
(i) Fairness of the criminal proceedings against the applicant – The applicant complained of the admission and use of key evidence against him, namely, the poisonous substance found in his suitcase. The court-ordered covert investigative measures against the applicant, in the context of the criminal investigation against him, had served as the basis for the authorities’ decision to arrest him and seize his luggage; according to the trial court, those measures evidenced the need to implement the seizure of the applicant’s luggage in urgent circumstances. Therefore, this procedure had not been unlawful. Furthermore, I.M. had been examined before the domestic courts, with the participation of both the applicant and lawyers of the applicant’s own choosing; the circumstances of the seizure and search had been confirmed by an airport security staff member, considered by the domestic courts as a neutral witness, who had been questioned in open court and cross-examined by the defence. The applicant had not appealed against the judicial decisions declaring the relevant investigative measures lawful. He had been able to contest the lawfulness and authenticity of the substance obtained and his arguments about the circumstances of the seizure and search of his luggage and the reliability of the evidence obtained as a result had been addressed by the domestic courts and dismissed in reasoned decisions in the course of the criminal trial.
In addition, the domestic courts’ reasoning dismissing the application made by the applicant to retrieve the surveillance camera footage from the airport had not been arbitrary or manifestly unreasonable. Nor had the authorities’ failure to take adequate precautions while searching the applicant’s luggage to prevent possible contamination of evidence, in the circumstances of the current case, called into question the reliability of the evidence.
The substance recovered had not been the only evidence on which the applicant’s conviction had been based. The domestic courts had relied, inter alia, on incriminating evidence given by I.M., statements of other witnesses, audio and video recordings and computer data which multiple expert examinations had confirmed to have been authentic. Considering those circumstances together with the apparent inconsistencies in the applicant’s version of the events, it had been within the domestic courts’ remit to consider whether, overall, sufficiently strong evidence had existed to demonstrate that the applicant had been guilty of “preparation of murder”.
Accordingly, the proceedings, considered as a whole, had not been contrary to the requirements of a fair trial.
Conclusion: no violation of Article 6 § 1 (unanimously).
(ii) Alleged breach of the principle of publicity – From the early stages of the criminal proceedings against the applicant, a non-disclosure obligation had been imposed on him, the intended victim and the witnesses. Subsequently, the domestic courts had decided to hold the proceedings in camera. It was noteworthy that they had deliberated on the closure of the proceedings as part of open proceedings and that the applicant had been able to fully participate in the trial, including the procedure which had led to the making of the in camera orders. Further, it could not be said that the relevant decisions had been devoid of lawful grounds. In this connection, although not all the grounds on which they had been based were expressly provided for in domestic law - in particular the protection of religious and moral principles in society and those of the interests of justice - the applicable domestic law afforded a certain degree of discretion to the courts when considering whether to close the trial “to keep order” and Article 6 § 1 did not prevent them from deciding, in the light of the special features of the case submitted, to derogate from the principle of publicity. Indeed, the latter provision expressly stated that the public might be excluded from all or part of the trial in the interests of morals, or in special circumstances where publicity would prejudice the interests of justice.
The Court could not accept the apparent implication in the domestic courts’ reasoning and the Government’s related submissions that “the religious and moral principles established in society” could take precedence in the balancing of the various rights protected under the Convention and the Constitution of Georgia. However, the relevant decisions had not been based on those reasons alone and had referred to the protection of the rights of various individuals under Article 8 of the Convention, the protection of witnesses, and the prevention of a risk of prejudice to the ongoing criminal investigation on various issues regarding the incident.
Assuming that those reasons, taken cumulatively, had justified the derogation from the principle of publicity under Article 6 § 1, the question that arose was whether the domestic courts had duly considered the possibility of applying less restrictive measures. Although the appellate court had explained why, owing to the specific nature of appellate proceedings, it had been impossible to open the hearings in part the trial court had not. In his pleadings the applicant had complained of the non-disclosure obligation imposed on him and of a breach of his right to be presumed innocent directly in connection with the holding of the criminal trial in camera and in support of his request to open the trial to the public at least in part. The non-disclosure obligation had barred him from publicly commenting on the case against him. By contrast, the prosecuting authorities had made various statements regarding the case as well as publicly disseminated parts of the case file material and I.M. had freely given interviews to the media and made accusatory statements regarding the applicant. The undisputed existence of heightened public interest in respect of the case, meant, the applicant’s argument regarding the possibility of only partly closing the trial had required an explicit, reasoned reply. The trial court’s brief explanation that the defence had publicly commented on the trial despite the operation of the non-disclosure obligation and that the court would not be influenced by statements made outside of the courtroom, had not sufficiently addressed the core of the applicant’s argument regarding the possibility of applying less restrictive measures and the impact of the full closure of the trial on his rights under Article 6 § 2 in the specific circumstances pertaining to his case.
Nor had the closure of the trial been sufficiently counterbalanced by the fact that the Public Defender’s Office had been allowed to monitor it. The Public Defender, in the report he published about the applicant’s trial, had criticised the decision to close the hearings and the fact that the possibility of closing the trial in part had not been pursued. His findings, however, had been met with criticism by the Chief Prosecutor’s Office and the trial court, which had held that his report had aimed to “misinform” the public. This could not have contributed to alleviating the detrimental effect that the decision to hold the trial in camera might have had, in the circumstances, on public confidence in the proper administration of justice. The appeal proceedings, having also been held in camera and the decision adopted by means of written proceedings, had not remedied the trial court’s failure to attempt to confine the measure to what had been strictly necessary in order to attain the objectives pursued.
Conclusion: violation of Article 6 § 1 (unanimously).
(iii) The applicant’s right to the presumption of innocence – Given the nature of the case, it had been inevitable that the criminal case against the applicant would attract heightened public interest and wide media coverage. Multiple public statements had been made immediately following his arrest by high-ranking officials (the Prime Minister, Vice Prime Minister and the Minister of Justice) as well as the prosecuting authorities. Although some of these had not explicitly claimed that the applicant had committed a crime and, therefore, had not necessarily amounted to a breach of his right to be presumed innocent, other statements had been more explicit or had somewhat gone beyond the purpose of merely informing the public of the charge against him. Similarly, the subsequent dissemination of case-file material by the prosecuting authorities had gone beyond the discretion and circumspection necessary for respecting the applicant’s presumption of innocence. Lastly, it had not appeared that the prosecuting authorities had attempted to enforce the non-disclosure obligation in respect of I.M., enabling him to make public accusations against the applicant while discussing various factual circumstances relating to the criminal case against him.
Those elements, taken cumulatively, could not but have encouraged the public to believe the applicant guilty before he had been proved guilty according to law, especially during the first instance proceedings. The detrimental impact of these circumstances on the applicant’s right to the presumption of innocence could not have been offset by some statements made by the applicant and his lawyers, in apparent defiance of the non-disclosure obligation or the opportunity, as per domestic law, to request a waiver to that obligation which, in any event, had been rejected by the relevant authorities.
Conclusion: violation of Article 6 § 2 (unanimously)
Article 41: Finding of violation constituted in itself sufficient just satisfaction in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
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This summary by the Registry does not bind the Court.
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