Communicated on 14 September 2016
FOURTH SECTION
Application no. 33695/09
Giorgi TEVZADZE against Georgia
and 1 other applications
(see list appended)
1. The applicants are Georgian nationals. They are represented before the Court by Ms T. Abazadze and Mr R. Papidze, lawyers practising in Tbilisi and Batumi respectively. The names, dates of birth and places of residence of the applicants are indicated in the appended list.
A. The circumstances of the cases
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Application no. 33695/09
3. On 24 December 2002, during a verbal altercation at a student party, a fight erupted between the applicant and G.B. As a result, the applicant sustained minor knife wounds and G.B. died. Criminal proceedings were initiated against the applicant in relation to a charge of murder, and he went into hiding.
4. On 28 June 2007 the applicant surrendered to the police. His trial proceedings started on 16 January 2008 at the Tbilisi City Court and Judge D.J. was dealing with the case. The hearing scheduled for 7 March 2008 was adjourned because of the judge’s poor state of health. The trial resumed with a new judge, Judge N.E., on 13 March 2008.
5. By a decision of 19 March 2008 the Tbilisi City Court convicted the applicant as charged and sentenced him to eleven years’ imprisonment.
6. The applicant appealed against his conviction. Among other things, he claimed that he had been convicted by a judge who had not participated in the examination of the evidence. In that connection, he claimed that Judge N.E.’s involvement in the case as a substitute judge had not been in accordance with Article 436 of the Code of Criminal Procedure, as she had not attended or otherwise followed any of the hearings from the very beginning of the trial.
7. On 9 July 2008 the Tbilisi Court of Appeal upheld the applicant’s conviction. The court dismissed the applicant’s claim regarding the unlawful composition of the first-instance court as unsubstantiated. In that connection, it referred to the decision of the President of the Tbilisi City Court, according to which Judge N.E. had been assigned as a substitute judge in the proceedings against the applicant on 24 September 2007.
8. On 3 December 2008 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible.
2. Application no. 70753/10
9. The applicant was arrested on 20 May 2009 on suspicion of unlawfully possessing drugs. The trial proceedings commenced on 29 July 2009 at the Batumi City Court, and Judge T.K. was dealing with the case. After holding several hearings and examining key evidence, on 1 September 2009 Judge T.K. had to withdraw from the case.
10. On 8 September 2009 the acting President of the Batumi City Court appointed another judge, Judge G.P., to act as a substitute judge in the above proceedings. On 10 September 2009 the acting President took yet another decision, by which he appointed Judge J.K. as a substitute judge in the above case.
11. On 23 September 2009 the trial against the applicant resumed with a new judge, Judge J.K. Having heard the applicant’s statement, Judge J.K. closed the trial. He rejected the defence’s application for a fresh examination of the evidence in his presence. On the next day he gave judgment, convicting the applicant of drug-related charges and sentencing him to seven years and six months’ imprisonment and a fine.
12. The applicant appealed against his conviction. He claimed, among other things, that his conviction by Judge J.K. had been unlawful, as the judge had not been personally involved in the examination of the evidence. Further, the applicant claimed that Judge J.K. could not serve as a substitute judge, as he had not been assigned as such from the very beginning of his trial.
13. By a decision of 8 December 2009 the Kutaisi Court of Appeal, while reducing the sentence, upheld the applicant’s conviction in full. The appeal court did not address the applicant’s argument concerning the improper involvement of Judge J.K. in the first-instance court proceedings.
14. On 11 May 2010 the Supreme Court of Georgia dismissed an appeal by the applicant on points of law. In connection with his complaint concerning the alleged unlawfulness of the composition of the first-instance court, the court simply concluded that the case file included a decision of the President of the Batumi City Court on the appointment of a substitute judge.
B. Relevant domestic law
15. The relevant parts of the 1998 Code of Criminal Procedure (as in force at the material time) stated:
Article 435. The immutability of court composition
“1. A court shall examine a case in one and the same composition. If one of the judges cannot take part in the proceedings, he or she shall be replaced by another judge and the examination of the case shall restart, except in cases provided for by Article 436.
...”
Article 436. Substitute judges
“1. By a decision of the chairperson of a court, a substitute judge may be assigned to a case ... [He or she] replaces a judge who withdraws from the court composition and the examination of the case shall continue.
2. If a substitute judge considers that there is a need for various procedures in order to form his own personal view of the case, it is possible that certain pieces of evidence be re-examined ...”
COMPLAINTS
16. The applicants complain under Article 6 of the Convention that the involvement of the so-called substitute judges in the criminal proceedings against them rendered their trials unlawful. They further denounce the fact that the substitute judges convicted them without participating in the oral examination of the expert and witness evidence.
QUESTIONS TO THE PARTIES
1. Were the first-instance courts which convicted the applicants “tribunal[s] established by law”, as required by Article 6 § 1 of the Convention, having regard to the applicants’ submission concerning the alleged unlawful composition of those courts? In this connection, did the appointment of Judge N.E. and Judge J.K. as substitute judges in the applicants’ respective trials comply with the relevant legislation? The parties are requested to refer to the relevant provisions of the Code of Criminal Procedure and any other legislation if necessary.
2. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 of the Convention, in so far as the first-instance judges who convicted them did not participate in the oral examination of witnesses or other evidence, and Judge N.E. in case no. 33695/09 did not hear the applicant directly?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
33695/09
02/06/2009
Giorgi TEVZADZE
02/08/1981
Rustavi
Tamar ABAZADZE
70753/10
10/11/2010
Kakhaber MIKELADZE
14/12/1976
Tskaltubo
Ramin PAPIDZE
Full & Egal Universal Law Academy