Communicated on 2 October 2018
FIFTH SECTION
Application no. 44888/16
Ruslan PERTAIA
against Georgia
lodged on 29 July 2016
STATEMENT OF FACTS
1. The applicant, Mr Ruslan Pertaia, is a Georgian national, who was born in 1976 and is currently imprisoned in Kutaisi. He is represented before the Court by Ms N. Jomarjidze, a lawyer practising in Tbilisi.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The applicant’s arrest and his alleged ill-treatment
3. On 23 August 2014, at 4:00 a.m., the applicant was arrested on suspicion of aggravated theft near the crime scene in the town of Zugdidi. The arrest record contained a note indicating that, at the moment of arrest, the applicant had redness in his left temple area. According to the applicant, several police officers physically and verbally assaulted him when effecting the arrest, and thereafter, while transferring him to a police department. Upon arrival at the police station, a person identified by the applicant as L.K., head of Zugdidi Police Department, also ill-treated him with the aim of extracting a confession. The applicant claimed to have lost consciousness several times as a result.
4. The same day, at 11:30 a.m., the applicant was taken to a local hospital for emergency treatment. According to the medical record subsequently drawn up, he was diagnosed with closed-head injury and was also treated for cuts on his left palm. The document noted that the medical condition of the applicant was serious. A report on the visual examination of the applicant drawn up upon his transfer to a detention centre also confirmed multiple cuts and bruises on his body. The report noted that the applicant had no complaints and that he had received the injuries prior to his arrest.
5. On 25 August 2016, in an interview with a representative of the Office of the Public Defender of Georgia (“the PDO”) the applicant claimed that he had been ill-treated by police. He further told the PDO representative that in fear of retaliation from the police officers, he had signed various documents indicating that he had sustained all the bodily injuries prior to his arrest.
2. The applicant’s trial
6. The applicant pleaded not guilty before the trial judge. While confirming that he had been in the immediate vicinity of the crime scene when the crime had been committed, the applicant insisted that it was not him who actually committed the theft.
7. By a judgment of 4 December 2014 the Zugdidi District Court convicted the applicant as charged and sentenced him to five years in prison.
3. Appeal proceedings
8. On 30 December 2014 the applicant appealed against his conviction before the Kutaisi Court of Appeal arguing that the trial court had erred in the assessment of facts while finding him guilty.
9. On 30 April 2015 the applicant’s defence made an application with the court of appeal seeking the in-court examination of a new defence witness T.Q. According to the application, T.Q. confessed to the prosecutor’s office that he had been the one who had actually committed the impugned crime. The applicant further submitted that he had learned about T.Q.’s confession shortly before he lodged the pertinent application with the court.
10. The prosecutor argued that the evidence proposed by the defence raised issues that fell beyond the scope of the appeal. She also contended that the defence request could have been vexatious as the witness in question had attended the entire trial of the applicant and, all the while he was sitting in the courtroom, he had not expressed his willingness to testify until a late stage in the appeal proceedings.
11. The court dismissed the request of the defence on procedural grounds. It considered that the newly discovered evidence fell beyond the scope of the appeal and for that reason it had no mandate in accordance with Article 297 (e) of the Code of Criminal Procedure (“CCP”) to hear that evidence at the advanced stage of the appeal proceedings.
12. By a judgment of 21 May 2015 the Kutaisi Court of Appeal fully upheld the applicant’s conviction.
13. On 16 June 2015 the applicant lodged an appeal on points of law with the Supreme Court. The applicant argued inter alia that the failure of the court of appeal to call T.Q. as a defence witness had deprived him of an opportunity to effectively exercise his defence rights, which in itself had led to a wrongful conviction. By a judgment of 4 June 2016, the Supreme Court partly reversed the applicant’s conviction and found him guilty of attempted theft. The court left the sentence unchanged. In its judgment the court did not answer the applicant’s complaint about the non-examination of T.Q. as a defence witness.
14. On 27 May 2016 the applicant lodged a request with the Kutaisi Court of Appeal seeking the reopening of proceedings in view of the newly discovered evidence – a confession by T.Q. By a decision of 27 June 2016, the Kutaisi Court of Appeal rejected the request as inadmissible. The court held that the evidence in question was not new, as it had first been introduced in the course of the appeal proceedings and subsequently, in the proceedings before the Supreme Court. The court noted in this respect that the admission of new evidence pursuant to Article 297 (e) of the CCP was not allowed at the stage of appeal proceedings, if the impugned evidence went beyond the scope of the issues raised in the appeal.
4. Investigation into the alleged ill-treatment of the applicant
15. On 29 August 2014, the PDO sent a letter to the Office of the Chief Prosecutor of Georgia (“OCP”) requesting information on whether there had been an investigation opened into the applicant’s alleged ill-treatment. The PDO also provided the OCP with a statement of the applicant in which the latter detailed his allegations of ill-treatment. In its response dated 5 September 2014 the OCP informed the PDO that the Zugdidi District Prosecutor’s Office had launched an investigation into the applicant’s allegations.
16. On 1 September 2014 a responsible investigator interviewed the two police officers who had arrested the applicant. The interviewer and the interviewee police officers were all from the same police department. This was the investigator who had been in charge of the theft-related investigation. In their statements the interrogated police officers described the circumstances of the applicant’s arrest. They stated that at the moment of arrest the applicant had already redness on his left temple and that later on they had arranged for an emergency medical care for the applicant as he had been suffering from a headache. The statements of the police officers as given in the interview records were virtually identical.
17. On the same date, at the request of the same investigator a forensic expert of the National Bureau of Forensics issued an examination report which confirmed that the applicant had suffered multiple injuries on 23 August 2014 - the day of his arrest.
18. Throughout 2014-2016, the applicant and his representatives addressed the prosecution service on at least six occasions requesting information about the investigation and criticising the lack of progress.
19. According to the latest letter, dated 30 June 2016, received by the applicant in reply to his information requests, the investigation was still pending. The applicant, having merely the status of a witness in the proceedings, could not have been provided with details of the investigation.
B. Relevant domestic law and practice
Code of Criminal Procedure of 2010
Article 239
“5. In the course of a main hearing, substantially new evidence may be admitted only if the evidence was unavailable before, or a party was prevented from making such a request earlier ...”
Article 297
“The rules of procedure governing the conduct of a trial at first instance shall similarly apply to appeal proceedings, with the following differences:
...
d. A court may grant an application of a party seeking to introduce new evidence in the appeal proceedings if the party shows that the evidence is exceptionally important to prove his or her case, and it was impossible to present the evidence in the trial before the first instance court;
e. Examination of evidence shall not go beyond the scope of the points raised in the appeal and the response to it ...”
COMPLAINTS
20. The applicant alleges under Article 3 of the Convention that he was ill-treated by police during and immediately after his arrest and that no adequate investigation into his allegations has been conducted. He also complains under Article 6 §§ 1 and 3(d) of the Convention that the criminal proceedings against him were unfair as he was not able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him.
QUESTIONS TO THE PARTIES
1. Was the applicant subjected to ill-treatment in breach of Article 3 of the Convention during his arrest and subsequently, in the Zugdidi Police Department?
2. Have the relevant authorities complied with their obligation under Article 3 of the Convention to carry out an effective investigation into the applicant’s allegations of ill-treatment? In that connection, what is the current state of the proceedings in question? The Government are invited to provide a copy of the entire investigative file.
3. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention?
In particular, having regard to the refusal of the Kutaisi Court of Appeal to examine witness T.Q. in court, 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 (see, Perna v. Italy [GC], no. 48898/99, § 29, ECHR 2003‑V; Kartvelishvili v. Georgia, no. 17716/08, § 61, 7 June 2018; Vidal v. Belgium, 22 April 1992, § 32-33, Series A no. 235‑B)?
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