Communicated on 28 September 2015
FOURTH SECTION
Application no. 7720/12
Reuwen TSION
against Georgia
lodged on 30 January 2012
STATEMENT OF FACTS
1. The applicant, Mr Reuwen Tsion, is an Israeli national, who was born in 1968 and is detained in Rustavi. The applicant does not speak Georgian. He is represented before the Court by Mr Sh. Shavgulidze, 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.
3. On 11 November 2009, in a restaurant in a town close to Tbilisi, the applicant was arrested on suspicion of having in possession forged money. Immediately after the arrest he was searched by law-enforcement officials. Immediately after the applicant and his car were brought to Tbilisi and the search of the car was conducted in the applicant’s presence. During his arrest and during both searches the applicant was assisted by an interpreter. According to the arrest and search reports signed by the applicant, the applicant waived his right to the presence of a lawyer during his arrest, body search and the search of his car. However, the applicant claims that in fact he had requested the presence of a lawyer but the law enforcement officers had ignored his requests.
4. As a result of the searches, inter alia, 83,000 United States dollars (USD) were found in the applicant’s car. The money was seized; a forensic expert report later confirmed that a substantial portion of the banknotes had been forged. Furthermore, during the body search of the applicant, illicit drugs were also found in his possession. Subsequently, the applicant was charged with illicit acquisition, possession, and distribution of forged banknotes committed in aggravating circumstances, and with possession and transportation of illicit drugs.
5. On 2 August 2010 the Khashuri Regional Court convicted the applicant as charged. On 6 May and 25 July 2011 respectively the Tbilisi Court of Appeal upheld the applicant’s conviction and then the Supreme Court of Georgia dismissed as inadmissible the applicant’s cassation complaint. The latter final decision was served on the applicant on 30 July 2011. The applicant was sentenced to seventeen years’ imprisonment and to a fine in the amount of 140,000 Georgian laris (GEL) (approximately 60,000 euros (EUR)). During the trial as well as in his appellate and cassation complaints the applicant repeatedly raised the issue of the absence of a lawyer, claiming that under the mandatory defence rule, which was not subject to waiver even with the accused’s consent, a lawyer should have been present during his arrest and subsequent searches. In spite of the applicant’s repeated motion to have the evidence obtained as the result of those searches excluded, without addressing the issue of lawyer’s absence, the domestic courts extensively relied on the impugned evidence when finding the applicant guilty.
B. Relevant domestic law
6. Article 81 § 1 (c) of the Code of Criminal Procedure in force at the material time proscribed the waiving of the mandatory assignment of a lawyer by, inter alia, suspects who did not know the Georgian language.
COMPLAINTS
7. The applicant complains in substance under Article 6 §§ 1 and 3 (c) of the Convention that taken as a whole the criminal proceedings instituted against him were unfair. In particular, he complains about the State’s failure to provide him with a lawyer, under the mandatory defence rule, during his arrest and the subsequent searches of 11 November 2009, also claiming that the absence of a lawyer rendered the searches and seizure of the evidence, which served as the basis for his conviction, unlawful. The applicant further complains in substance under Article 8 of the Convention about unlawfulness of the conducted searches.
QUESTIONS TO THE PARTIES
1. Taken as a whole, were the criminal proceedings instituted against the applicant fair in accordance with Article 6 §§ 1 and 3 (c) of the Convention? In particular, did the fact that a lawyer was not present during the applicant’s arrest as well as during his body search and the search of his car, and the fact that his conviction was based on the evidence resulting from those searches, render the criminal proceedings against the applicant unfair?
2. Were the aforementioned searches and seizure of the evidence conducted in accordance with Article 8 of the Convention?
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