CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 10 décembre 2020

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GEORGIA (Application no. 21074/09)         JUDGMENT   STRASBOURG 10 December 2020       This judgment is final but it may be subject to editorial revision. In the case of Bakradze v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:   Ganna Yudkivska, President,   Stéphanie Mourou-Vikström,   Lado Chanturia, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   21074/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr   Lavrenti Bakradze (“the applicant”), on 8 March 2009; the decision to give notice to the Georgian Government (“the Government”) of the complaint under Article 6 §§ 1 and 3 (d) of the Convention and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated in private on 13 November 2020, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns under Article 6 §§ 1 and 3 (d) of the Convention the alleged unfairness of the criminal proceedings conducted against the applicant on account of the manner in which the principal evidence was obtained and used against him and in view of the refusal of the domestic courts to question in court the only potential defence witness. THE FACTS 2.     The applicant was born in 1979 and lives in Zestaphoni. The applicant was represented by Mr L. Kupatadze, a lawyer practising in Tbilisi. 3.     The Government were represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice. 4.     The facts of the case, as submitted by the parties, may be summarised as follows. Arrest and search of the applicant 5.     On 3 March 2006 T.M., an officer from the anti-drug unit at the Special Operations Department of the Ministry of the Interior (hereinafter “the SOD”), prepared a report stating that, after checking operational information, he had learned that someone identified as Lavrenti Bakradze – who was originally from the city of Zestaphoni but was currently residing in Tbilisi at a certain address – was a drug addict. That person had been systematically procuring, storing and selling narcotic substances. In the same report it was noted that on 3 March 2006 at around 10 p.m. he would be at home and would have a large quantity of Subutex pills on him. Criminal proceedings were immediately initiated against the applicant under Article 260 § 3 (a) of the Criminal Code in respect of the unlawful purchase, storage and sale of drugs in particularly large amounts. 6 .     On the same date at 9 p.m. a group of SOD officers was dispatched to the address indicated in the above report. SOD officers entered the applicant’s flat at around 10 pm. The search of the flat started at 10.05 p.m. and lasted until 11.30 p.m. According to the search report, the applicant was denied, with reference to Article 102 § 4 of the Criminal Code of Procedure (hereinafter “the CCP”), his right to invite attesting witnesses to be present at the search, which was carried out by three officers (D.J., L.Kh., and T.M.) in exigent circumstances ( გადაუდებელი შემთხვევა ), without a search warrant, in view of the allegedly real risk of the applicant hiding and destroying narcotic substances. 7 .     Among the items recovered in the search were twenty-six and a half Subutex pills found in a water pipe connecting the kitchen with the bathroom. According to the search report, after the search had been completed and “the risks had ceased to exist”, the applicant was given the opportunity to request the presence of attesting witnesses, but he declined. 8 .     Immediately after the search of the flat a search of the applicant’s person took place. Two Subutex pills were found on the applicant’s person. According to the report on the search and arrest of the applicant, the applicant sustained bruising to his face while resisting arrest. The same report noted that the applicant had been arrested in flagrante delicto at 10   p.m.; that he had been transferred to a police station at 12.45 a.m.; that he had been denied the right to invite attesting witnesses to attend the search in view of the real risk of his hiding or destroying narcotic substances; and that he had signed the report without making any remarks regarding the accuracy of its content. A subsequent search of the applicant’s vehicle did not uncover any unlawful items. 9 .     On 4 March 2006 a forensic examination undertaken by the investigating authorities established that the Subutex pills discovered during the searches of the applicant’s flat and person (“the searches”) contained 0.228 grams of buprenorphine. The applicant was charged with the unlawful purchase and possession of a particularly large quantity of drugs – an offence under Article 260 § 3 (a) of the Criminal Code of Georgia. During his subsequent questioning as an accused he protested his innocence, asserting that the drugs had not belonged to him. He challenged the official version of events, stating that his flat had been broken into by the police. Notably, according to the applicant, on that evening he had been at home with his friend, L.Ts. At around 09.40 p.m. he had heard someone knocking on his door. He had looked through the door’s peephole and seen a number of people, who had told him that his brother-in-law had been in a car accident and that he needed help. They had asked him to open the door; however, he had become scared and instead had called the police. Shortly afterwards, he had seen an armed person trying to gain access to his balcony from a neighbouring flat. The latter had forced his way into the flat by kicking the applicant in the head. The applicant had lost consciousness. Upon regaining consciousness, he had been lying face down on the floor with someone’s feet on his back, while his friend, L.Ts., had been locked in the kitchen. The applicant submitted that he had signed a number of documents after being transferred to the SOD, without being allowed to read them properly. He also stated that he had requested the attendance of independent witnesses and of a lawyer, but that that request had been refused. 10 .     On the same date a supervising prosecutor lodged applications with the Tbilisi District Court for the three searches of 3 March 2006 (which he claimed had been urgent) to be validated. The court examined the applications by means of a written procedure (without allowing the applicant to submit observations) before declaring that the searches had been lawful. It concluded that it could be seen from the prosecutor’s applications that the searches had been conducted because of urgent need, and had complied with the rules of criminal procedure. The decisions on the applications, written in a brief and non-detailed manner, did not refer to any factual circumstances and did not contain any reasoning. The decisions specified a seventy-two hour period in which to lodge an appeal. It appears from the case file that the applicant did not avail himself of that opportunity. 11.     A drugs test conducted on 6 March 2006, revealed that at the time of his arrest the applicant had not been under the influence of drugs. 12.     On 12 April 2006, after the applicant had undergone a forensic examination to determine if he was addicted to drugs, an expert concluded that the applicant was indeed a drug addict and that he should be subjected to compulsory treatment for his addiction. The applicant’s conviction 13 .     On 23 October 2006 the Tbilisi City Court found the applicant guilty as charged and sentenced him to fourteen years’ imprisonment. The applicant’s conviction was based on (i) the statements of D.J. and T.M., the two police officers who had arrested the applicant and had conducted the above-mentioned searches, (ii) the reports on the applicant’s arrest and the ensuing searches, and (iii) the results of his subsequent forensic examination. 14 .     During the proceedings the applicant requested, in connection with the circumstances of the arrest and the searches, that his neighbours and his friend, L.Ts., be questioned. His request was refused on procedural grounds. He also gave a detailed statement maintaining his innocence; however, the trial court concluded that that statement was not supported by the circumstances of the case and had been made up for the sole purpose of evading criminal responsibility. 15 .     The applicant appealed against his conviction. He complained that neither L.Ts. (who had witnessed his arrest) nor his neighbours had been questioned by either the investigator in charge or by the first-instance judge. He furthermore claimed that, given that he had been handcuffed right at the outset of the police operation, there had been no risk of his destroying the evidence, which meant that independent witnesses such as his neighbours should have been allowed to attend the search. In that connection, he maintained that the searches had been unlawful as there had been no exigent circumstances to justify their conduct in the absence of a judicial authorisation. 16 .     By a decision of 4 September 2007 the Tbilisi Court of Appeal upheld the applicant’s conviction in full. As regards the alleged unlawfulness of the searches, the court held that there had been a real risk of the applicant hiding or otherwise destroying the evidence; therefore, the searches had been conducted lawfully, in exigent circumstances. As for the applicant’s criticism of the first-instance court’s refusal to question L.Ts. and the applicant’s neighbours, the appeal court simply concluded that the refusal had been lawful. 17.     The applicant lodged an appeal on points of law, maintaining his argument that the courts had not examined any evidence supporting his version of the physical circumstances of the searches. On 9 October 2008 the Supreme Court upheld the conviction. RELEVANT LEGAL FRAMEWORK 18.     For the relevant provisions of the Code of Criminal Procedure of Georgia, see Bregvadze v. Georgia [Committee] (no. 49284/09, § 17, 17   January 2019), and Megrelishvili v. Georgia [Committee] (no. 30364/09, § 23, 7   May 2020). THE LAW ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (d) OF THE CONVENTION 19.     The applicant complained that the drugs had been planted by the SOD officers and that the searches had been unlawful, as he had been arbitrarily refused the right to invite attesting witnesses to be present at those searches. He furthermore complained about the domestic courts’ refusal to question L.Ts. about the physical circumstances of the searches. The applicant relied on paragraphs 1 and 3 (d) of Article   6 of the Convention, which read as follows: “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ... 3.     Everyone charged with a criminal offence has the following minimum rights: ... d)     to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him ...” Admissibility 20.     The Court notes that the application is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article   35 of the Convention. It must therefore be declared admissible. Merits The parties’ submissions 21.     The applicant maintained that by not allowing him to invite independent witnesses to attend the searches, the SOD officers had rendered the relevant investigative measures unlawful. He submitted that he had had no drugs either in the flat or on his person, and that the drugs that the SOD officers had “found” had in fact been planted by them during the unlawful searches, which those officers had claimed – without citing any reasons – had been carried out on grounds of urgency. In that regard, he noted that while he had been handcuffed and under the control of the SOD officers he could not have hidden or otherwise destroyed any evidence adduced. The applicant furthermore maintained that in order to elucidate the physical circumstances of the searches, the domestic courts had been obliged to examine his friend, L.Ts., which they had failed to do. 22.     The Government submitted that the criminal proceedings conducted against the applicant as a whole had been fair. The searches, in their view, had been conducted in exigent circumstances, in the light of operational information indicating that the applicant was in possession of drugs. They furthermore claimed that given the small size of the drugs in question, there had been a real risk of the applicant getting rid of them. The Government also asserted that the fact that the applicant had refused to open his front door to the SOD officers and that he had also resisted the officer who had tried to enter the flat from the balcony was sufficiently indicative of the urgency of the searches. Accordingly, the Government argued that the risk of the applicant tampering with evidence had been real and imminent and that the SOD officers had thus been justified under Article 102 § 4 of the CCP in denying him his right to demand the presence of independent witnesses. They furthermore stressed that the applicant had failed to appeal against the decisions of the domestic courts authorising the searches retrospectively and validating the results thereof (see paragraph 10 above). 23.     As regards the applicant’s complaint under Article 6 § 3 (d) of the Convention, the Government noted that L.Ts. had not been examined in court because the applicant’s lawyer had failed to observe the relevant time ‑ limits and to request that he be examined in due time, in accordance with Article   475   § 4 of the CCP (see Bregvadze v. Georgia [Committee] (no.   49284/09, § 17, 17 January 2019). The Court’s assessment (a)    General principles 24.     The relevant general principles were summarised by the Court in the cases of Murtazaliyeva v. Russia ([GC], no. 36658/05, §§ 152-168, 18   December 2018, and Kobiashvili v. Georgia (no. 36416/06, §§ 56-58, 14   March 2019) (see also Kartvelishvili v. Georgia , (no. 17716/08, §§   59 ‑ 61, 7 June 2018). (b)    Application of the general principles in the current case 25.     The Court has already examined a case related to the alleged unlawfulness of a search conducted without prior judicial authorisation and the unreliability of the evidence obtained as a result and found that the manner in which the key evidence against the applicant had been obtained cast doubt on its reliability and accuracy (see Kobiashvili , cited above, paragraphs 59-73). It considered, in view of the importance of that evidence, that, cumulatively, (i) the procedural irregularities during the search of the applicant’s person, (ii) the inconsistent and conflicting evidence concerning the physical circumstances of the search, (iii) the inadequate judicial scrutiny both before and during the trial, and (iv) the weakness of the corroborating evidence, had rendered the applicant’s trial as a whole unfair (ibid., § 73; see also Megrelishvili v. Georgia, [Committee], no. 30364/09, §§ 32-39, 7 June 2020). 26 .     While the circumstances of the current case are somewhat different, the decisive elements of the Court’s analysis remain the same. The searches in question were conducted on the basis of “operational information” which, it appears from the case file, was not subjected to judicial scrutiny at either the pre-trial or trial stage. Furthermore, the searches were conducted in “exigent circumstances”, without the prior issuance of a search warrant. While this in itself did not render the investigative measures unlawful (see Article 290 §§ 2 and 4 of the CCP as cited in Kobiashvili, cited above, §   37), it should be noted that the relevant decisions were not substantiated as they did not specify the exigent circumstances that allegedly necessitated that the searches be undertaken without waiting for the issuance of a search warrant (see, ibid., Article 290 §   3 of the CCP). Moreover, unlike in the case of Kobiashvili , the SOD officers denied the applicant his right to have attesting witnesses attend the searches. The officers referred to “exigent circumstances” as justification for their refusal to permit the attendance of attesting witnesses. The Court notes, in this connection, the Government’s twofold argument: firstly, that the applicant had offered resistance to the officers; and secondly, that the Subutex pills the SOD officers had been looking for had been small in size and could have easily been disposed of. As regards the latter assertion, this argument of the Government has already been dismissed by the Court in the case of Megrelishvili (cited above, § 33) – indeed, the applicant in the instant case claimed that he had been handcuffed and surrounded by several officers during the searches and could not as a result have interfered with the evidence. The Government did not dispute the fact that the applicant had been handcuffed and under the control of the SOD officers at the time of the searches; this fact equally negates the Government’s justification for not allowing the presence of attesting witnesses because the applicant had offered resistance to the officers. 27.     The Government maintained that the physical circumstances of the searches and the reliability of the evidence obtained during them had been the subject of judicial scrutiny in the course of two sets of proceedings: firstly, within the context of the post-search judicial review; and secondly, during the actual trial of the applicant.   As regards the post-search judicial review (see paragraph 10 above), the Court has already found that such reviews are not adequate and sufficient for the purposes of challenging the authenticity and reliability of evidence (see Kobiashvili , cited above, §§   67 ‑ 69; see also Megrelishvili , cited above, § 35, where the Court concluded that in view of the limited scope of the first-instance proceedings and the lack of reasoning in the relevant court decisions, appeal proceedings could not, in any event, have offered the applicant adequate redress). 28.     As regards the criminal proceedings, courts at two levels of jurisdiction simply indicated, without giving any reasons, that there had been exigent circumstances meriting the conduct of urgent searches. It should be stressed that, as noted above, details of the “operational information” that triggered the undertaking of the searches were missing from the case file made available to the domestic courts. Given the circumstances, it is doubtful that the courts could have assessed in any meaningful way the reasonableness of the authorities’ suspicions in respect of the applicant before he was searched, whether they indeed had had prior knowledge of the type of drugs that they were looking for, and the urgency and necessity of carrying out a search without the prior issuance of a search warrant and in the absence of attesting witnesses. The Court thus considers that the physical circumstances of the searches and the arguments concerning those circumstances and their resultant unlawfulness submitted by the applicant were not addressed in the course of the trial, with the result that his complaint about the arbitrary refusal of his procedural right to invite attesting witnesses to attend the searches remained unanswered. 29.     This leads the Court to the applicant’s second argument concerning the alleged breach of his rights under Article 6 § 3 (d) of the Convention. The first-instance court dismissed the applicant’s application to have a witness to testify in his favour summoned, noting that the application had been lodged out of time. However, the CCP – as worded at the material time – provided for the possibility for a defendant to call witnesses, if there were genuine grounds to do so, at any stage of the proceedings (compare Bregvadze , cited above, § 27). The appeal court simply upheld the above decision, without examining the witness. In this regard the Court notes the following: the police reports on the searches and the statements of the two SOD officers who had conducted those searches laid the basis for the applicant’s conviction (see paragraph 13 above). The searches constituted the investigative measures that secured the evidence on which the conviction was based. In the light of that fact, the Court considers that the applicant’s application for L.Ts. (who had witnessed the arrest and the subsequent searches) to be examined before the court was directly relevant to the charge faced by the applicant and was sufficiently reasoned (see Murtazaliyeva, cited above, §   158; compare, mutatis mutandis, Kartvelishvili, cited above, § 63). Given the fact that the charges against the applicant were based on the assumption of his possessing drugs, the applicant’s wish to have the only defence witness heard constituted a reasonable attempt to challenge that key assumption in an effective manner. Furthermore, the domestic courts did not consider the relevance of L.Ts.’s testimony and (as already noted above) did not provide sufficient justification for their failure to do so. Lastly, in view of the physical circumstances in which the searches had been conducted (see in this connection paragraph 26 above), the domestic courts’ refusal to examine the only possible defence witness undermined, in the Court’s view, the overall fairness of the proceedings. 30.     In view of all the above mentioned, the Court finds a violation of Article 6 §§ 1 and 3 (d) of the Convention. APPLICATION OF ARTICLE   41 OF THE CONVENTION 31.     Article   41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” Damage 32.     The applicant claimed 100,000 euros (EUR) in respect of pecuniary and non-pecuniary damage. 33.     The Government submitted that the amount claimed was either unsubstantiated (as far as pecuniary damage was concerned) or highly exaggerated (as regards non-pecuniary damage). 34.     The Court dismisses the applicant’s claim in respect of pecuniary damage. At the same time it considers that the applicant must have suffered distress and anxiety on account of the violations found; it therefore awards the applicant EUR   5,000 in respect of non-pecuniary damage. Costs and expenses 35.     The applicant also claimed EUR 15,000 for costs and expenses incurred before the domestic courts and the Court. He did not submit any legal or financial documents in support of his claim. 36.     The Government argued that the claim was entirely unsubstantiated. 37.     The Court observes that the applicant did not submit documents showing that he had paid or was under a legal obligation to pay the alleged legal fees. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred (see Merabishvili v. Georgia [GC], no. 72508/13, §§   370-373, 28   November 2017). It follows that the claim must be rejected. Default interest 38.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, Declares the application admissible; Holds that there has been a violation of Article 6 §§ 1 and 3 (d) of the Convention; Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 5,000 (five thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)   that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points; Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 10 December 2020, pursuant to Rule   77   §§   2 and 3 of the Rules of Court.   Martina Keller   Ganna Yudkivska Deputy Registrar   President