Communicated on 12 April 2016
FOURTH SECTION
Application no. 10057/09
Igor ZLOBINI
against Georgia
lodged on 3 December 2008
STATEMENT OF FACTS
1. The applicant, Mr Igor Zlobini, is a Georgian national who was born in Batumi on 26 May 1975 and is currently in prison. He is represented before the Court by Ms M. Japaridze and Ms G. Andghuladze, lawyers practising in Tbilisi. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
2. On 15 June 2007 the applicant was arrested at his home on suspicion of the unlawful purchase and possession of drugs. According to the record of his arrest and personal search, three sachets containing a brownish substance were found in the right pocket of his shorts. The subsequent search of his apartment also revealed pills and other brownish substances. The forensic examination established that the substance seized from the applicant contained 0.45 grams of heroin, while the eighteen Tramal pills found in his apartment contained 2.1 grams of tramadol. It was also established that some other psychotropic substances were present in the apartment.
3. On 17 June 2007 the applicant was formally charged with the unlawful purchase and possession of drugs in particularly large quantities, an offence under Article 260 §§ 1 and 2 of the Criminal Code. A copy of the charging decision was served on the applicant in the presence of a lawyer he had chosen.
4. The applicant protested his innocence. He claimed that the heroin found on him had been planted by the police during his personal search. As for the pills found in his apartment, he produced a handwritten medical prescription, according to which he was taking those pills as part of his treatment for drug addiction. He further denounced the fact that, despite his repeated requests, independent witnesses had not been allowed to attend his personal search. On 21 July 2007 a bill of indictment was drawn up, containing amended charges against the applicant. In connection with the heroin allegedly seized from him, his acts were classed as an offence under Article 260 of the Criminal Code: the unlawful purchase and possession of drugs. As for the substances other than heroin, he was charged under Article 273 of the Criminal Code with the unlawful personal use of drugs or their substitutes in small quantities without a medical prescription.
5. On 1 October 2007 the applicant’s lawyer made an application to the Batumi City Court for the appointment of an interpreter to assist the applicant during the trial. In her application, she explained that the applicant: had no command of the Georgian language; had mainly been raised by his Russian-speaking mother; had attended a Russian school in Batumi; and had subsequently received a Russian education abroad. The lawyer also made an application for two witnesses to be questioned in connection with the circumstances of the applicant’s personal search. The court granted those applications. An interpreter was appointed to assist the applicant, in accordance with Article 100(b) of the Code of Criminal Procedure.
6. By a decision of 11 October 2007 the Batumi City Court found the applicant guilty as charged, sentencing him to eleven years’ imprisonment and imposing a fine in the amount of 6,000 Georgian Laris (GEL). The conviction was based on: the statements of two police officers who had conducted the searches; the records of the applicant’s personal search, the search of his apartment; and the results of the forensic examination. The first-instance court ignored the applicant’s argument that the drugs found on his person had been planted by one of the police officers and the statements of defence witness in this respect.
7. The applicant appealed against his conviction, maintaining his innocence in respect of the heroin offence and challenging the legal classification of the offence relating to the use of drugs without a medical prescription. His lawyer made an application for his mother, sister and neighbour to be questioned, as people who could shed light on the circumstances of his arrest and personal search and provide information concerning his treatment for drug addiction. She also made an application for the applicant’s doctor and the forensic expert to be questioned.
8. The appeal court granted the lawyer’s application in part. Hence, the applicant’s doctor and the forensic expert were summoned to court for questioning, while the examination of the other proposed witnesses was refused.
9. On 24 January 2008 the Kutaisi Court of Appeal upheld the applicant’s conviction, slightly amending the classification under Article 260 of the Criminal Code and reducing the sentence to ten years’ imprisonment and the fine to 3,000 GEL. The appeal court dismissed the applicant’s claim that the heroin had been planted on him as unsubstantiated.
10. On 10 September 2008 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible.
B. Relevant domestic law
11. In accordance with Article 102 of the Code of Criminal Procedure as it stood at the material time, an investigator or prosecutor had to inform a suspect, accused or defendant of his or her right to ask for a witness to attend any search, seizure or crime scene inspection. If a suspect, accused or defendant made such a request, he or she was entitled to have a reasonable period of time (not less than an hour) before the relevant investigative action started. An investigative action could only be carried out in the absence of a witness in urgent situations: when there was a threat to someone’s life or health, or a risk that evidence would be damaged, destroyed or hidden, or in other situations expressly provided for in the Code of Criminal Procedure. As soon as that urgent situation ceased to exist, the right to a witness was restored.
COMPLAINTS
12. The applicant complains under Article 6 § 1 of the Convention that the criminal proceedings against him were unfair. In particular, he claims that: the heroin was planted on him by the police during his personal search; the police’s refusal to allow independent witnesses to attend his personal search was unlawful; the domestic courts gave no consideration whatsoever to his argument that the heroin had been planted by the police; and the domestic courts, by refusing to question several witnesses on his behalf, failed to comply with the requirements of Article 6 § 3 (d) of the Convention.
QUESTIONS TO THE PARTIES
1. 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:
(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 applicant’s personal body search was conducted in the absence of independent witnesses? Was the applicant provided with sufficient procedural safeguards to prevent a violation of Article 6 § 1 of the Convention?
(b) Did the domestic courts duly examine the applicant’s allegation that the drugs had been planted on him by the police?
(c) Did the refusal of the domestic courts to examine several defence witnesses in connection with the circumstances of the applicant’s personal search amount to a violation of Article 6 § 3 (d) of the Convention?
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