Communicated on 10 August 2016
FOURTH SECTION
Application no. 41674/10
Tamaz TLASHADZE and Roman KAKASHVILI against Georgia
and 2 other applications
(see list appended)
1. A list of the applicants is set out in the appendix. They are all Georgian nationals.
A. The circumstances of the cases
2. The facts of the cases, as submitted by the applicants, may be summarised as follows.
1. Tlashadze and Kakashvili v. Georgia, application no. 41674/10
3. The first applicant was arrested in Gori on 15 June 2009 on suspicion of drug possession. According to the search report, he was stopped and searched on the spot by three police officers between 23:25 and 23:40. A silver sachet containing half of a white-coloured pill, later confirmed to contain a drug called buprenorphine, was found in the right pocket of his jacket. The applicant refused to sign the personal search report. He was arrested and taken to the police station. An examination carried out on 16 June 2009 found that the applicant was not under the influence of drugs.
4. The second applicant was arrested on 17 June 2009 in village Ruisi. According to the search report, he was stopped and searched on the spot by three police officers between 12:48 and 13:00. A Makarov pistol was found in the left pocket of his trousers. The applicant refused to sign the personal search report. He was arrested and taken to the police station.
5. The searches were carried out based on the so called operational information and allegedly in urgent circumstances, without a judicial warrant. The prosecutors’ post factum motions to the district court judges to confirm the legality of the relevant search and seizure operations were granted in written proceedings based exclusively on the motions in question and their supporting materials on 16 and 18 June 2009 respectively. The illicit items seized during the searches were adduced as evidence against the applicants.
6. The applicants argued before the domestic courts that the personal search reports constituted inadmissible evidence insofar as no urgent circumstances existed to justify the search without a judicial warrant and they had not been notified of their procedural rights including the opportunity to call for the attendance of witnesses during the search. They further claimed that the illicit items had been planted on them by the officers performing the search and that they had inferred based on the exchanges with some of the policemen that the arrests constituted retaliation for their political activities.
7. The applicants’ subsequent convictions were based exclusively on the search and arrest reports, witness statements of the police officers performing the search and arrest operations, and the evidence obtained through the searches. The courts did not address the argument that the illicit items in question had been planted on the applicants.
8. The proceedings against the applicants ended on 29 December 2009 and 24 June 2010 respectively by the Supreme Court’s inadmissibility decisions.
2. Kalandia v. Georgia, application no. 57255/10
9. The applicant was arrested in Zugdidi on 25 March 2009 on suspicion of drug possession. According to the personal search report, he was stopped and searched on the spot. A silver sachet containing a brownish substance, later confirmed to be heroin, was found in the left back pocket of his trousers. The applicant refused to sign the personal search report. The borrowed car that the applicant was driving at the moment of the arrest and his home were also searched. No illicit items were found. An examination carried out on the same day found that the applicant was not under the influence of drugs.
10. The search was carried based on the so called operational information and allegedly in urgent circumstances, without a judicial warrant. The prosecutor’s post factum motion to confirm the legality of the search and seizure operation was granted by a judge in written proceedings based exclusively on the motion in question and its supporting materials on 26 March 2009. The drug seized during the search was adduced as evidence against the applicant.
11. The applicant argued before the domestic courts that the personal search report constituted inadmissible evidence insofar as no urgent circumstances existed to justify the search without a judicial warrant and he had not been notified of his procedural rights including the opportunity to call for the attendance of witnesses during the search. He further claimed that the drug had been planted on him by the police officer performing the search.
12. The applicant’s subsequent conviction of illegal purchase and storage of drugs was based exclusively on the search and arrest reports, witness statements of the police officers participating in the search and the evidence obtained through it. The courts did not address the claim that the drug had been planted on the applicant by the police officers.
13. The proceedings ended by the Supreme Court’s inadmissibility decision of 18 March 2010.
3. Shubitidze v. Georgia, application no. 43854/12
14. The applicant was arrested in Marneuli on 26 June 2011 at 21:00 on suspicion of being under the influence of drugs. A forensic expertise carried out at 00:52 found traces of marijuana in his urine. He was then taken to the police station where he was searched at 02:35. According to the personal search report, two packets containing a green substance, later confirmed to be marijuana, were found in the applicant’s shoes. The applicant refused to sign the personal search report. His home was also searched on 27 June 2011. No illicit items were found.
15. The search was carried out at the police station without a judicial warrant and allegedly in urgent circumstances. The official basis of the search is an internal note addressed to the head of the Marneuli police station stating that in addition to the drug use confirmed by the forensic examination, “based on the existing information, ... he presumably has a drug on him.” The note contains neither a signature nor a date.
16. The prosecutor’s post factum motion to confirm the legality of the search and seizure operation was granted by a judge in written proceedings and exclusively based on the motion in question and its supporting materials on 28 June 2011. The drug seized during the search was adduced as evidence against the applicant.
17. The applicant argued before the domestic courts that the personal search report constituted inadmissible evidence insofar as no urgent circumstances existed to justify the search without a judicial warrant. He further claimed that the drug had been planted on him by the police officer performing the search.
18. The applicant’s subsequent conviction of illegal purchase and storage of drugs was based exclusively on the search and arrest reports, witness statement of one police officer participating in the search and the evidence obtained through it.
19. The domestic courts did not address the arguments of the defence that the basing of a conviction solely on the police officer’s statement amounted to a violation of the applicant’s fair trial guarantees and that the drug had been planted on the applicant during the search.
20. The proceedings ended by the Supreme Court’s inadmissibility decision of 9 January 2012.
B. Relevant domestic law
1. Code of Criminal Procedure of Georgia (in force until 1 October 2010)
21. Article 102 §§ 1-3 of the Code provided, in so far as relevant, that an investigator or a prosecutor conducting the search, seizure or inspection of a crime scene must inform the suspect, accused, defendant or another person subjected to one of these investigative measures of their right to call for the attendance of a witness. At least one hour shall been granted to ensure the attendance of a witness in case of a request.
22. Pursuant to Article 102 § 4 the right to call for the attendance of a witness may be limited if urgent circumstances exist. Namely when there is a real risk of endangering life or health of a person or that the evidence is damaged, destroyed or hidden.
23. Article 290 §§ 2 and 7 provided that urgent circumstances justify the search, seizure or inspection of a location to be carried out without a judicial warrant. The prosecutor shall file a post factum motion to the magistrate judge or a district court within 24 hours after carrying out the relevant investigative measure together with the supporting materials justifying the necessity of any such measures. No verbatim record of such proceedings is produced and the judge may dispense with an oral hearing.
2. Code of Criminal Procedure of Georgia (in force as of 1 October 2010)
24. Article 331 of the new Code of Criminal Procedure provided for the right to call for an attendance of independent witnesses during searches under the same conditions as the former Code. The article in question was abolished on 1 October 2012.
COMPLAINTS
25. The applicants complain under Article 6 § 1 of the Convention and call into question the overall fairness of the criminal proceedings. In particular, they complain about the absence of independent witnesses during the respective personal searches through which the incriminating evidence was allegedly obtained. They further contend that the illicit items had been planted on them by the police during the searches in question and that the domestic courts failed to give adequate reasons for rejecting this line of defence.
26. The applicants further complain under Article 8 of the Convention and question the legality and proportionality of the manner in which their personal searches were carried out.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 § 1 of the Convention? In particular,
(a) Was there a breach of the principle of fairness of proceedings under Article 6 § 1 of the Convention on account of the fact that the applicants’ personal searches were conducted in the absence of independent witnesses, as provided by the legislation in force at the material time? Were the applicants provided with sufficient procedural safeguards to prevent a violation of Article 6 § 1 of the Convention in this regard?
(b) Did the domestic courts duly examine the applicants’ allegations that the relevant illicit items had been planted on them by the police during the search?
2. Were the aforementioned searches and seizure of the evidence conducted in accordance with Article 8 of the Convention?
APPENDIX
No.
Application
no.
Lodged on
Applicant name
date of birth
place of residence
Represented by
41674/10
29/06/2010
Tamaz TLASHADZE
08/03/1962
(“the first applicant”)
Roman KAKASHVILI
05/11/1959
(“the second applicant”)
Tamar ABAZADZE
57255/10
17/09/2010
Tengiz KALANDIA
06/03/1957
Tamar ABAZADZE, Tamta MIKELADZE
43854/12
09/07/2012
Kako SHUBITIDZE
02/04/1984
Tamar ABAZADZE
Full & Egal Universal Law Academy