Communicated on 3 September 2018
FIFTH SECTION
Applications nos. 43627/16 and 71667/16
Giorgi OKROPIRIDZE against Georgia
lodged on 22 July 2016 and 25 November 2016 respectively
STATEMENT OF FACTS
1. The applicant is a Georgian national, who was born in 1989 and is currently in prison.
A. The circumstances of the cases
2. The facts of applications nos. 43627/16 and 71667/16, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest
3. On 2 September 2014 at about 7:30 p.m., L.M. was shot dead in the centre of Tbilisi.
4. On 12 September 2014 the applicant was arrested on suspicion of aggravated murder of L.M. and unlawful acquisition, possession and carrying of firearms (“first set of criminal proceedings”). Subsequently he was remanded in pre-trial detention.
5. On the day of his arrest, the Ministry of the Interior (“the MOI”) released information about the applicant on their website and on a social media page. In their press release, the MOI stated that the applicant had attempted to flee to Tskhinvali region and was handed over to the Georgian police by the de facto authorities of the region with the help of the European Union Monitoring Mission. The internet postings by the Ministry withheld the applicant’s full identity and referred to him as Giorgi O. The video footage that accompanied the press release showed the applicant handcuffed and being convoyed by armed and camouflaged officers. The applicant’s face was fully visible on the footage. According to the applicant, the MOI deleted the news posting on their website on 23 December 2015 but the same content remained on social media thereafter.
6. Within a few hours following the applicant’s arrest, First Channel of the Georgian Public Broadcaster and other media outlets broadcasted information released by the Ministry of Interior. Most of the media fully identified the applicant in their respective reports.
2. Pre-trial conference
7. On 14 and 15 December 2014, the Tbilisi City Court held a pre-trial conference, during which the applicant was advised about his right, in view of the seriousness of the charges brought against him, to a jury trial under Article 219 of Code of Criminal Procedure (“CCP”). After being informed about the relevant procedure, the applicant consented to having his case examined by a jury.
8. In the pre-trial conference, the court also heard applications of the parties on the admissibility of evidence. The applicant’s defence lodged applications seeking not to admit in evidence the statements of prosecution witnesses N.A., G.A., M.Ts, R.K., M.K., N.D. and O.K. on the ground of being hearsay (indirect) evidence. According to the defence, none of them were witnesses of facts immediately relevant to the applicant’s guilt and their statements simply contained accounts of the crime allegedly committed by the applicant as told to them by third persons. The pre-trial judge rejected the defence applications as unsubstantiated. All of the witnesses were subsequently allowed to testify before the jury.
3. First jury trial
9. On 5 June 2015, following a trial that lasted several days, the jury failed to deliver a verdict. The presiding judge discharged the panel and scheduled hearings for the selection of a new jury. The same day various television channels, including the Public Broadcaster, broadcasted an interview with the Minister of Justice T.Ts. in which she stated the following:
“The jury institution is strange for the Georgian legal system, for our legal traditions. At minimum, it requires a reform. We may even consider abolishing it in view of the problems we encounter in practice... I was surprised by the verdict that had been reached, and if I had been a juror, I would have surely been among those who had found Okropiridze guilty.”
10. On the same date, in a live broadcast of a talk show on private television channel Imedi the then first Deputy Chief Prosecutor I.Sh. stated the following:
I.Sh.: “ ... the prosecution service of Georgia, is very disappointed with the result of the trial. Sadly, we lacked one juror’s vote for a guilty verdict. It was something we had not really expected in view of the evidence that we had collected in the criminal case and the strong evidence showing that L.M. had been murdered by Giorgi Okropiridze. ... We put ample effort in the case. We did everything possible to achieve a guilty verdict. However it did not happen, but we hope that in the next jury trial we will be able to make it happen and justice will be achieved. ...
Journalist I.G.: I wonder why the prosecution service failed to achieve a guilty verdict. Did the prosecution case lack something that led the jury to deliver such a decision regarding Okropiridze?
I.Sh.: A jury trial is completely different from an ordinary trial. In this case, a decision is made not by professional lawyers but by laymen. In some cases it may not be important whether there is enough evidence and whether the prosecution case is supported by a sufficient body of evidence but some other circumstances may matter. This is particularly true if we take into account the usual mentality of Georgians. Speaking from a professional lawyer’s perspective, there are many questions regarding the institution. This category of cases, these very serious crime cases must be tried by professional judges ...”
11. On 7 June 2015, L.M.’s relative stated in a televised interview that one of the jurors had visited the victim’s mother at home and had discussed with her the details of the jury deliberations. According to the applicant, the Tbilisi prosecutor’s office initiated an investigation into the possible crime of the breach of secrecy of jury deliberations. It is not clear from the case file what the outcome was, if any, of the above proceedings.
12. On 8 June 2015, various media outlets, including private television channel Rustavi 2 broadcasted an interview with the then Prime Minister I.G. who stated:
“It is outrageous that a person accused of murder could not be brought to justice. We witnessed the entire collapse and fiasco of ... the institution of a jury trial. We must review this and rectify the flaws it has. The family of the victim, L.M.’s family, of course has an absolutely fair demand that the criminal be punished. The State must be there to ensure this. How? By what methods? There are competent authorities to do this ...”
13. On 8 June 2015, the applicant was charged with false denouncement of an offence (alleged ill-treatment against him) (‘second set of criminal proceedings’). On 9 June 2015 the Tbilisi City Court remanded the applicant in pre-trial detention in connection with the second set of criminal proceedings.
14. On 17 September 2015, the applicant, relying on a new case-law of the Constitutional Court, made an application with the Tbilisi City Court requesting the annulment of the second detention order. In that connection, on 18 September 2015 Prosecutor D.N. in reply to a question of an internet news agency InterPressNews noted the following:
“The Constitutional Court’s new case-law should not be extended to Giorgi Okripiridze’s case because he committed a new crime while being subjected to another detention order in connection with the L.M. murder case. Bearing that in mind and also taking into account the fact that Giorgi Okropiridze has committed serious crimes and is a threat to society, we do believe that the court will not grant the request for his release and will keep him in detention.”
15. On the same date prosecutor D.N. made a similar statement in an interview with a private television company, Maestro, in which he asserted that the applicant had ‘committed a crime’ but referred to him as ‘the accused’.
4. Trial by the second jury
16. On 25 December 2015, following the repeated trial, the second jury found the applicant guilty of aggravated murder (an offence under Article 109 § 3 (e) of the Criminal Code) by ten votes to two. At the same time, they found him not guilty of unlawful acquisition and possession of firearms (an offence under Article 236 § 1 of the Criminal Code) by nine votes to three, and not guilty of the unlawful carrying of firearms, an offence under Article 236 § 2 of the Criminal Code by eight votes to four.
17. In the course of the repeated trial the prosecution introduced a video statement of an absent witness T.A. as evidence. The statement had been recorded in the absence of both the applicant’s defence and a judge. The presiding judge rejected the defence application seeking not to admit the statement into evidence.
18. On 26 December 2015 the Tbilisi City Court convicted the applicant on the basis of the jury verdict and sentenced him to twenty years in prison. The sentence was adopted in the absence of the jury as requested by the defence.
5. Appeal proceedings
19. On 25 January 2016, the applicant appealed the guilty verdict on points of law. The applicant argued that he was unable to understand the verdict due to, inter alia, the absence of reasons and the alleged mutually exclusive findings about his guilt. The statements of various public officials unduly influenced the jury and violated his presumption of innocence. He further disputed the admission of indirect (hearsay) evidence and the admission of the video statement of an absent witness into evidence as allegedly violating his right to equality of arms.
20. Throughout the following months the applicant’s defence made several written submissions to the court to supplement their appeal.
21. On 18 July 2016, the Tbilisi Court of Appeal issued a ruling on the admissibility of the case.
22. By a judgment of 21 July 2016, the Tbilisi Court of Appeal dismissed the applicant’s appeal on points of law without holding an oral hearing. The Tbilisi Court of Appeal held that there had been no violation of procedural rules in the conduct of the jury trial, and that the equality of arms between the parties had been ensured. The Court also ruled that it was unable to entertain the applicant’s appeal to the extent that it concerned the statements by various high public officials, including those allegedly violating the presumption of innocence of the applicant, as long as no such procedural avenue was guaranteed under Article 266 of the CCP (rules on the appeal against a judgment based on a jury verdict).
B. Relevant domestic law and practice
1. Constitution of Georgia of 1995
Article 40
“1. An individual shall be presumed innocent until found guilty in accordance with law and by an enforceable court judgement...
3. A decision to commit an accused for trial, bill of indictment, and judgement of guilt shall be based only on incontrovertible evidence. Any suspicion that cannot be proved in accordance with law shall be solved in favour of the accused.”
2. Code of Criminal Procedure of Georgia of 2010
(a) Presumption of innocence
Article 5. Presumption of innocence and liberty
“1. An individual shall be presumed innocent until found guilty by an enforceable court judgement ...”
(b) Admissibility of evidence and the rules for admission
23. The relevant provisions concerning the procedure for admission of evidence, as provided for in the CCP at the material time, read as follows:
Article 14. Direct and oral examination of evidence
“1. Evidence shall not be presented to a court (jury) unless parties have been given an equal opportunity to examine evidence directly and orally, except for cases provided for in this Code.
2. A party has a right to request the examination of a witness and to present its own evidence at the trial.”
Article 72. Inadmissible evidence
“1. Evidence obtained in substantial violation of this Code, as well as on the basis of such evidence any other lawfully obtained evidence, if such evidence aggravates the legal status of a defendant, is inadmissible and has no legal force.
2. Evidence shall also be inadmissible if it is obtained in observance of the rules established by this Code, but there is reasonable suspicion that it has been altered, its characteristics and qualities have been substantially changed, or that the trace on it has been substantially erased.
3. A prosecutor shall bear the burden of proof for arguing the admissibility of the evidence for the prosecution and inadmissibility of the evidence for the defence.
4. The parties shall be obliged to provide the court with information on the origins of their evidence.
5. The court shall decide on the issue of inadmissibility of evidence.
6. The judgment of the court shall not be based on inadmissible evidence.”
Article 76. Hearsay witness statement
“1. Hearsay is a restatement of a third person’s statement by a witness.
2. Hearsay is admissible evidence only if a witness giving the evidence specifies the source of information which can be identified and verified.
3. Hearsay can be admitted in the trial on merits if it is corroborated by other evidence that is not hearsay.”
Article 219. Pre-trial conference
“... 3. If a defendant is charged with an offence which attracts jury trial, the judge is obliged to explain to the defendant the provisions concerning the jury trial and his or her related rights. Then, the judge shall inquire whether the parties agree to have the case heard by jurors. If the parties do not jointly reject jury trial, the judge shall appoint a date for the selection of jurors.
4. The pre-trial conference judge
a) examines applications of the parties on the admissibility of evidence ...
e) decides on the issue of committing the case for examination on merits ...”
Article 239. Filing applications and ruling on them
“1. The presiding judge shall enquire whether the parties have any application to lodge under this Article. Similar applications shall be lodged with the court together. The person lodging an application shall indicate which circumstances he or she is seeking to establish by means of this request.
2. If additional evidence is presented during the examination of the case on merits, the court shall assess at the request of a party the admissibility of the evidence and shall clarify the reasons for not presenting it before the trial, and shall rule on the admissibility or otherwise of the evidence accordingly.
3. The court rules on the admissibility of evidence in the absence of jurors ...
5. A request during a trial concerning the obtaining of new evidence shall be granted if it is established that it was objectively impossible either to obtain the impugned evidence or lodge a relevant application according to the procedure provided for by the Code. If the request is granted, the evidence shall be obtained in accordance with the provisions of this Code ...”
(c) Jury trial
24. Trial by jury was introduced in Georgia in 2010 with the adoption of the new CCP. It is a classical jury model, in which the jury alone retains the exclusive function of determining the defendant’s guilt or otherwise, and the rule is that the jury deliberates in private. Twelve jurors sit on the jury in a criminal trial, and one judge presides over the court. Once the questions have been put to and handed to the members of the jury, they retire to deliberate in private. The law does not ask the jurors to account for how they reached their personal conviction, it simply asks them to answer the questions according to their inward conviction with either “yes” or “no”. A judgment adopted by a jury can be appealed against only on points of law. Leave to appeal must first be obtained from the court of appeal. Trial by jury in Georgia, according to the transitional provisions of the CCP, had been reserved for the most serious of crimes until 1 October 2016.
25. The relevant articles of the CCP concerning jury trial proceedings, as in force at the material time, read as follows:
Article 226. Jury trial
“1. If the charges involved attract a custodial sentence, the case shall be heard by a jury, unless the defendant requests that the case be examined without the participation of jurors. If in view of the seriousness and nature of the offence a threat could be posed to the life or health of jurors or their inviolability could be otherwise compromised, also when the conduct of a jury trial substantially breaches the right to an objective and fair trial, the court in charge shall, at the request of a party and with the consent of the Chairperson of the Supreme Court of Georgia, decide to hear the case without a jury.
2. The composition of a jury trial shall guarantee its independence and impartiality ...”
Article 231. Jury instruction by a presiding judge
“1. The presiding judge shall instruct the jury on the applicable law when opening the trial and before their retirement to the deliberation room. The instructions given by the presiding judge shall not contradict the Constitution of Georgia, the current code and the international obligations undertaken by Georgia. The instructions shall also be given to the jury in writing.
2. These written instructions shall be given to the parties in advance, within a reasonable time frame. They may request the presiding judge to make amendments or additions to the instructions. If the parties fail to avail themselves of this right before the jury’s retirement to the deliberation room, they will be prevented from complaining about the fairness and lawfulness of the instructions in any appeal on points of law.
3. The presiding judge is authorised before the jury retires to the deliberation room to briefly instruct the jurors about the rules for assessing the evidence examined at the trial. He or she shall give these instructions according to the rule provided for in paragraph 2 of the current Article. When instructing the jury, the presiding judge is not allowed to express in any way his or her personal position in connection with the issues which fall within the competence of the jury.
4. The presiding judge shall instruct the jury on the following:
a) the content of the charges and their legal basis;
b) the main rules concerning the evaluation of evidence;
c) the concept of presumption of innocence and the principle that any doubt shall require a decision in favour of the defendant;
d) that a guilty verdict shall be based on the law explained by the presiding judge and the body of incontrovertible evidence examined during the trial;
e) that they have a right to make notes and use them during the trial;
f) that the verdict should be based only on the evidence presented at the trial, that no evidence shall be taken into consideration on the instruction of others, and that the verdict shall not be based on assumptions or on inadmissible evidence;
g) the rule of arriving at a verdict for each count of charges;
h) that first the jury shall vote on the verdict of not guilty on all charges. If that verdict is not achieved, the jury shall vote for the guilty verdict in an order corresponding to the gravity of the charges;
i) that they shall sign only one verdict form for each of the charges – either a not guilty or a guilty verdict form.
5. The presiding judge shall at the end of the instructions remind the jurors that they are on oath.
6. After listening to the instructions of the presiding judge, the jury may address the latter with additional questions in writing. Additional instructions shall be given according to the procedure provided for in the first paragraph of the current article.
7. The presiding judge is obliged, at the request of a party, to explain to the jury that the defendant may have committed a less serious offence, the constituent elements of which form the basis of the offence the defendant is charged with. In such a case, the jury shall be additionally provided with a form to declare a non-guilty verdict as provided for in paragraph 4 (i) of the current Article.”
Article 235. The rights of the jury
“... 5. The judge shall instruct the jury about their right to make notes during the trial. The jurors shall be given before their retirement to the deliberation room the transcript of the hearing, except for any parts of it which concern inadmissible evidence.”
Article 261. The verdict of the jury
“1. The jury shall examine and make a decision on the facts of the case. The jury’s decisions concerning the facts shall be taken on the basis of the decisions and instructions given by the presiding judge in connection with the legal issues.
2. The jury shall decide on the issue of innocence or guilt with respect to each count of the charges ...”
Article 266. Appeal against a decision taken by a jury trial
“1. A not guilty verdict in a jury trial is final, and not subject to appeal.
2. A party may appeal once on points of law to the court of appeal against a verdict of guilty if:
a) the presiding judge made an unlawful decision about the admissibility of evidence;
b) the presiding judge made an unlawful decision when examining an application of a party and that decision substantially violated the principle of adversariality;
c) the presiding judge made a substantial mistake when instructing the jury before its retirement to the deliberation room;
d) the presiding judge failed to base his or her decision either in part or in full on the verdict taken by the jury;
e) the presiding judge based his or her decision on a verdict which was adopted in violation of the requirements provided for in the current Code.
f) the sentence is unlawful or/and manifestly unsubstantiated;
g) the presiding judge did not follow the recommendation of the jury concerning mitigation or aggravation of the sentence.
3. If an appeal on points of law lodged on the basis of paragraph 2 (a-e) is allowed, the case shall be transferred to a new panel of jurors for a new trial ...”
3. Criminal Code of Georgia
Article 367(1). Breach of secrecy of jury deliberations and voting
“Breach of secrecy of jury deliberations and voting shall be punishable with a fine or with two years in prison.”
4. The Constitutional Court’s judgment of 22 January 2015 in the case of Zurab Mikadze v. the Parliament of Georgia, no. 1/1/548
26. In the case of Zurab Mikadze v. the Parliament of Georgia, the Constitutional Court held that Article 76 of the CCP, as it stood at the material time, while allowing for the admission of hearsay evidence to a certain extent, did not contain adequate safeguards to ensure fairness of a trial in accordance with Article 40 § 3 the Constitution. The rationale behind the Court’s decision was summarised in the following paragraph of the judgment:
“52. Indirect (hearsay) witness statement, in general, is less reliable evidence. Allowing such evidence in trial entails risks of misconceptions and therefore, must only be admitted in exceptional circumstances strictly prescribed by law and accompanied by adequate Constitutional safeguards, [which are] not within the framework of the Code of Criminal Procedure as it stands now.”
COMPLAINTS
27. The applicant alleges under Article 6 § 1 of the Convention that his conviction by the Tbilisi City Court was based on a guilty verdict which did not contain reasons and that in the absence of procedural safeguards he was unable to understand it. He further complains under Article 6 §§ 1 and 2 of the Convention that the second jury which ultimately tried his case was not impartial, that his right to be presumed innocent was violated, and that the secrecy of deliberations by the first jury was breached.
28. Lastly, the applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that the trial against him was unfair on account of the admission into evidence of a statement of an absent witness and the admission of a considerable body of indirect (hearsay) evidence.
QUESTIONS TO THE PARTIES
Was the applicant’s trial, taken as a whole, fair within the meaning of Article 6 §§ 1, 2, and 3 (d) of the Convention? In answering this question, the parties are requested to address the following matters:
1. As regards the lack of reasons in the jury verdict:
(a) Given that the judgment of the Tbilisi City Court, which found the applicant guilty on the basis of the jury verdict did not give reasons, 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 of the Convention (see Taxquet v. Belgium [GC], no. 926/05, §§ 92-93 and 99, ECHR 2010)?
(b) In this connection, was the reasoning in the decision of the Tbilisi Court of Appeal to dismiss the applicant’s appeal on points of law sufficient and adequate for the purposes of assuring the applicant’s right to a fair trial?
Please provide a copy of all relevant court materials, including a copy of the indictment against the applicant, court transcripts and all directions given by the Presiding Judge to the jury.
2. As regards the impartiality of the jury:
(a) Having regard to the statements of high public officials concerning the outcome of the first jury trial, also in view of the applicant’s allegation of a breach of his presumption of innocence (see question 3 below) coupled with the allegations of a breach of secrecy of deliberations of the first jury trial, was the second jury panel impartial, as required by Article 6 § 1 of the Convention?
The Government are requested to submit pertinent rulings or directions, if any, made by the presiding judge to offset the impact of the above mentioned factors on the impartiality of the second jury.
(b) Were the allegations about the breach of secrecy of the first jury deliberations investigated by relevant authorities? If so, the Government are requested to produce findings of any such enquiry.
3. As regards the alleged violation of the presumption of innocence:
Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case as regards, in particular:
(a) the statements of the former Prime Minister, Minister of Justice, former First Deputy Chief Prosecutor and case prosecutor?
(b) the press release and accompanying video footage disseminated by the Ministry of the Interior following the arrest of the applicant?
4. As regards the admission of the video statement of Ms T.A. into evidence:
(a) Was there a good reason for Ms T.A.’s non-attendance as a witness? The Government are requested to provide a transcript of any ruling made by the presiding or the pre-trial judge to this effect.
(b) Did Ms T.A.’s video statement carry significant weight for the applicant’s conviction (see Schatschaschwili v. Germany [GC], no. 9154/10, § 116, ECHR 2015, and Seton v. the United Kingdom, no. 55287/10, §§ 60‑68, 31 March 2016)? In this regard, the Government are requested to outline what facts the prosecution intended to prove by the evidence in question and what other evidence they adduced to corroborate the impugned statement.
(c) In view of admitting the impugned statement into evidence, 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) (see Schatschaschwili (cited above), §§ 111-131, and Seton (cited above) § 60-68)?
5. As regards the admission of indirect (“hearsay”) statements of witnesses in evidence:
(a) Were the statements of N.A., G.A., M.Ts., R.K., M.K., N.D. and O.K., as admitted in trial, indirect (hearsay) evidence, in whole or in part?
(b) Did the pre-trial and/or presiding judges treat the evidence in question with proper cautiousness to ensure that the applicant’s trial, judged as a whole, was fair within the meaning of Article 6 § 1 of the Convention?
(c) Were the statements by the above witnesses corroborated by other evidence that was direct or otherwise reliable?
(d) Did the presiding judge give the jury directions on the applicable safeguards, reliability and/or value of such evidence? The Government are requested to provide a transcript of any directions made by the presiding judge to this effect.
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