CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 30 juin 2022

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display:inline-block } .s35008A5F { width:18.55pt; display:inline-block } .s90B2F37D { width:135.76pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sAEDF3CB5 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:right; page-break-inside:avoid; page-break-after:avoid } .s4ACA9207 { page-break-before:always; clear:both; mso-break-type:section-break } .s1721E4C5 { margin-top:14pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s76CF415B { page-break-before:always; clear:both }   FIFTH SECTION CASE OF RUSISHVILI v. GEORGIA (Application no. 15269/13)     JUDGMENT Art 6 § 1 (criminal) and Art 6 § 3 (c) • Overall fairness of criminal proceedings not irretrievably prejudiced by absence of lawyer of applicant’s own choosing during initial hours of detention Art 6 § 1 (criminal) and Art 6 § 3 (d) • Fair hearing • Examination of witnesses • No arbitrariness in rejection of application to have list of witnesses, to be called on behalf of defence, admitted as evidence Art 6 § 1 (criminal) • Fair hearing • Absence of reasons in jury verdict counterbalanced by applicant being allowed to choose between trial by jury or by professional judge and concrete safeguards throughout proceedings • Lack of reasons for declaring inadmissible applicant’s appeal on points of law in particular case circumstances STRASBOURG 30 June 2022 FINAL   30/09/2022   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Rusishvili v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Síofra O’Leary, President,   Mārtiņš Mits,   Lətif Hüseynov,   Lado Chanturia,   Ivana Jelić,   Arnfinn Bårdsen,   Mattias Guyomar, judges, and Victor Soloveytchik, Section Registrar, Having regard to: the application (no.   15269/13) 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   Daviti Rusishvili (“the applicant”), on 15 February 2013; the decision to give notice of the application to the Georgian Government (“the Government”); the parties’ observations; Having deliberated in private on 10 and 31 May 2022, Delivers the following judgment, which was adopted on the latter date: INTRODUCTION 1.     The present application concerns the alleged unfairness of the criminal proceedings conducted against the applicant. In particular, the applicant complained under Article 6 § 1 of the Convention that his conviction had been based on a jury verdict that had not contained any reasons and that his appeal on points of law had been refused by the appeal court in an unsubstantiated manner. The application also concerns under Article 6 §§ 1 and 3 (c) and (d) of the Convention the alleged violation of the applicant’s right to legal assistance of his own choosing and the alleged unfairness of the procedure concerning the admissibility of evidence. THE FACTS 2.     The applicant was born in 1992 and is detained in Tbilisi. He was represented by Mr G. Nikolaishvili, 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. The killing of Z.T. and the arrest of the applicant 5 .     On 17 October 2011 at around 3 p.m. Z.T. was shot dead in the city centre of Tbilisi. According to the video recordings extracted from surveillance cameras on several shops in the immediate vicinity of the crime scene, at least three individuals were involved in the shooting. On the same date, the first suspect was identified (see paragraph 11 below) and a search in his apartment was conducted. 6 .     The following day, the police went to the applicant’s apartment, where, following a search, three bullets were found. At around 8   p.m. the applicant was taken to a police station, where he was questioned as a witness. According to the record of his questioning by the police, the questioning began at 9.20 p.m. and ended at 1.10 a.m. Having been informed of his procedural rights, the applicant added a note to the record to the effect that he did not require the assistance of a lawyer. The applicant confessed to the murder and named his two alleged accomplices. 7 .     The applicant was formally arrested on 19 October 2011 at 1.35 a.m. in respect of the charges of murder and unlawful purchase and possession of firearms – offences under Articles 108 and Article 236 §§ 1   and 2 of the Criminal Code of Georgia. According to the record of his arrest and personal search, duly signed by him, the applicant noted that he did not require the assistance of a lawyer at that stage of the proceedings. 8 .     In the meantime, according to the applicant, his family contacted a lawyer, T.M., and asked him to represent his interests. At about 9 p.m. on 18   October 2011 T.M. went to the relevant police station but was not allowed to see the applicant. He talked several times over the telephone with the investigator in charge of the case, but the latter maintained that the applicant had not requested the assistance of a lawyer. 9.     Early in the morning on 19 October 2011 the applicant was taken to the crime scene, where an investigative re-enactment, a reconstruction of the events was conducted, and a video recording was made of him confessing to the crime in question. According to the record of the reconstruction, it was conducted with the consent of the applicant. The latter provided a detailed account of the events that had taken place on 17 October 2011, naming his accomplices and explaining the different roles that each of them had played. By that time the applicant had been provided with a lawyer, Kh.V., who had been invited by an investigator. The record of the reconstruction was duly signed by the applicant and the above lawyer. 10.     On 20 October 2011 the applicant was formally charged with aggravated murder and the unlawful purchase and possession of firearms. While being questioned as an accused – this time in the presence of a lawyer of his own choosing, T.M. – the applicant protested his innocence and cited his right to remain silent. On 21 October 2011 the Tbilisi City Court remanded him in custody. 11 .     On 25 October 2011 the applicant’s two accomplices, I.G. and I.A., were formally charged with various offences in respect of the murder of Z.T. It was established during the investigation that the murder of Z.T. had been set up by I.G. in retaliation for the death of his son. Both had fled Georgia. Disciplinary proceedings against the lawyer, Kh.V. 12 .     On 26 December 2011 the applicant complained to the Georgian Bar Association (“the GBA”) about the conduct of Kh.V., the lawyer appointed by the investigator. On 26 January 2012 the ethics commission of the GBA initiated disciplinary proceedings, in the course of which it was established that Kh.V. had participated in the investigative re-enactment without either the applicant’s or his family’s consent; she had not familiarised herself with the criminal case file materials, and she had not discussed with the applicant a potential defence strategy. On 25 May 2012 the ethics commission issued a decision concluding that in view of her “formal” participation in the re-enactment in the absence of the applicant’s consent, Kh.V. had failed to perform her duties in a professional manner and in the interests of the applicant. It found a breach of Article 8 § 5 of the Code of Professional Ethics of Lawyers (“a lawyer shall advise and represent his/her client competently and conscientiously”) and imposed a disciplinary measure suspending her licence for eighteen months. Conclusion of the pre-trial investigation and the pre-trial conference 13.     On 4 May 2012 the pre-trial investigation was concluded. The criminal case file was forwarded to the Tbilisi City Court. At the same time, pursuant to Article 83 § 6 of the Code of Criminal Procedure of Georgia (hereinafter “the CCP”), the parties exchanged information about the evidence that they were planning to produce in court. The relevant records regarding the exchange of information were duly signed by the prosecutor in charge of the applicant’s case, and by the applicant’s two lawyers of his own choosing. On the same date the applicant’s two lawyers provided the trial court with information about potential evidence that they were planning to produce in court. 14 .     After several postponements, on 12 May 2012 a pre-trial conference was opened with the participation of the parties. The applicant, who was represented by four lawyers, protested his innocence. His lawyers requested that the prosecution evidence be declared inadmissible. They argued, inter alia, that during the initial hours of his detention the applicant had been prevented from seeing a lawyer of his own choosing, and that a lawyer, Kh.V., who had accompanied the applicant during the crime reconstruction, had not been a so-called legal-aid lawyer. Nor had she been appointed with the applicant’s consent. Accordingly, her participation in the crime reconstruction had been unlawful. Having heard the parties, the judge concluded, as far the crime reconstruction was concerned, that she was not ready to rule on the admissibility or otherwise of the relevant piece of evidence, as a number of witnesses who could have shed light on the disputed circumstances of the crime reconstruction – and notably the participation of Kh.V. therein – were to be examined during the trial. As for the remaining prosecution evidence, the judge ruled it admissible, except for one record of the identification parade in which the applicant had participated. The judge noted in this connection that the defence’s request for the prosecution evidence to be dismissed in its entirety, without submitting any concrete legal and/or factual grounds for that request with respect to any particular pieces of evidence, was wholly unsubstantiated. The prosecution evidence that was accordingly admitted for examination at the trial included: thirty-nine written statements by various witnesses, two victims and the applicant; a list of seventy-eight witnesses to be examined during the trial; twenty-seven expert and forensic reports; surveillance camera footage from private establishments located in the area of the crime scene; and dozens of procedural documents concerning various investigative measures. The applicant’s initial self ‑ incriminating statement (see paragraph 6 above) was not part of the prosecution evidence. 15 .     When deciding on the issue of the admissibility of the defence evidence, the judge, acting on a request by the prosecution, decided to reject as inadmissible the list of 25 defence witnesses to be summoned for the trial. While the applicant’s defence lawyers argued that this list of the defence witnesses had been annexed to the information exchanged with the prosecution on 4 May 2012, the judge found that the annex had not been duly signed by both parties, and that the defence witnesses had moreover not been listed in the record of the exchange of information itself. She concluded in this respect, despite the defence arguing to the contrary, that the list of the defence witnesses had not been exchanged with the prosecution in accordance with the procedure provided in Article 83 § 6 of the CCP and decided to reject the list as inadmissible. She nonetheless noted in respect of three of the “rejected” witnesses that they had been accepted for examination as prosecution witnesses; accordingly, the defence could put questions to them during their cross-examination. She, therefore, admitted their written statements as evidence. 16.     The judge furthermore dismissed as inadmissible two expert reports according to which none of the suspected perpetrators of the murder captured on the video recordings could be identified as the applicant. The judge concluded that in the absence of the experts themselves (who were on the list of the witnesses not admitted for questioning in court), those reports had no evidentiary value. The judge also noted that the reports had been drawn up in violation of the procedure provided for in the CCP and were thus unreliable. 17.     The applicant’s lawyers objected. They maintained that the list of defence witnesses had been included in the defence file, which had been exchanged with the prosecution. In this regard, they requested that the investigator and the prosecutor in charge be questioned. Their request was dismissed. 18 .     At the pre-trial conference the applicant was advised, in accordance with Articles 219 and 226 of the CCP, that in view of the nature of the charges brought against him, he had a right to a jury trial (see further paragraph 30 below). The judge informed him in detail of the relevant procedure, including the fact that under Article 266 § 2 of the CCP, a person found guilty of a crime by a jury had the right to a one-time appeal on points of law against that guilty verdict. The applicant consented to having his case heard by a jury; so too did the prosecutor. The jury trial 19 .     The jury trial started on 4 June 2012 and continued until 14 June 2012.   The trial opened with the presiding judge reading out the charges against the applicant and the legal basis thereof. Then he addressed the jury, providing them with a short description of the relevant factual circumstances (as narrated by the prosecution), followed by instructions concerning, inter alia , the elements of the offences in question and the rules regarding assessment of evidence. The jurors were then individually given a copy of the five-page written instructions. During the trial the defence requested, on the basis of Article 239 of the CCP, the examination of I.G. via video link. They stated that he was in detention in Kyiv, Ukraine, and that he was ready to testify that the applicant had not been involved in the murder of Z.T. On 5   June 2012 the presiding judge dismissed the application, concluding that the defence had failed to justify the delay in lodging it. According to the presiding judge, the defence had known about the detention of I.G. long before the opening of the trial and could have therefore requested that he be examined even at the pre-trial stage of the proceedings. 20 .     Another request lodged by the defence that was refused by the presiding judge concerned the conclusion of one of the experts regarding the video recordings made at the crime scene. Specifically, the relevant expert had requested the court under Article 55 of the CCP to admit his report as an amicus curiae. The presiding judge, however, concluded that the purpose of this report had not been the provision of objective information, but rather to provide support to the defence’s arguments, he therefore rejected it. The presiding judge also decided, on the basis of Article 247 of the CCP, not to disclose to the jury the record of the investigative re ‑ enactment. He noted that in the absence of the defendant’s consent, he could not disclose a piece of evidence containing his self-incriminatory statement. As to the reiterated allegations by the applicant’s lawyers concerning the breach of his right of access to a lawyer of his own choosing, the presiding judge did not examine them. A related argument advanced by the defence – that the prosecution evidence had to be declared inadmissible (on the basis of Article 72 of the CCP) as unlawfully obtained evidence – was equally left unanswered by the presiding judge. 21 .     During the trial the jury heard nineteen prosecution witnesses, among them three eyewitnesses to the incident, viewed surveillance camera footage from private establishments located in the area of the crime scene, and media reports concerning the applicant’s arrest and the investigative re-enactment. The jurors were also presented with multiple expert and forensic reports and dozens of procedural documents concerning various investigative measures. The jury verdict and appeal on point of law 22 .     After the final submissions of the prosecution and the defence had been heard, the jury was called to answer the following “yes or no” questions put to it by the presiding judge: Did the applicant commit the crime in question or not? -     the unlawful purchase and possession of ammunition (namely, “GECO” bullets that were seized during the search of the defendant’s apartment on 18   October 2011, a crime under Article 236 § 1 of the Criminal Code of Georgia); -     the unlawful purchase and possession of a firearm and ammunition (namely, the purchasing and possessing a firearm, together with matching cartridges, on the day of the murder, 17 October 2011, a crime under Article   236 § 1 of the Criminal Code of Georgia); -     the unlawful carrying of a firearm and ammunition (namely, the carrying of the firearm, together with matching cartridges, on the day of the murder, 17   October 2011a crime under Article 236 § 2 of the Criminal Code of Georgia), and; -     Did the defendant commit or not commit intentional murder under the following aggravating circumstances? (1)     In a manner deliberately posing a threat to the life or health of others (a crime under Article 109 § 1 (g) of the Criminal Code of Georgia); (2)     In a group (a crime under Article 109 § 2 (e) of the Criminal Code of Georgia). 23 .     By a verdict of 14 June 2012, the jurors, by a majority of nine to three, found the applicant guilty of aggravated murder (an offence under Article 109 §§ 1 (g) and 2 (e) of the Criminal Code of Georgia) and of the unlawful carrying of a firearm (an offence under Article 236 § 2 of the Criminal Code of Georgia). The applicant was found not guilty on two charges: (1) the unlawful purchase and possession of firearms in respect of the three bullets found in his apartment and (2) the unlawful purchase and possession of firearms in respect of the gun found at the crime scene. 24.     On 15 June 2012 the jurors, after deliberating in private, decided – by nine votes to three – to submit a recommendation that a harsher sentence be imposed on the applicant. On the same date the judge delivered a judgment and acting on the jurors’ recommendation, sentenced the applicant to eighteen years and two days’ imprisonment. The final sentence, which included the unserved part of the applicant’s previous conditional sentence that he had received in respect of an earlier conviction, was set at twenty-one years. The judge noted as far as the conviction was concerned that the decision concerning the facts had been taken by the jury on the basis of the evidence examined in their presence with the participation of the parties. 25.     On 9 July 2012 the applicant lodged an appeal on points of law under Article 266 §§ 2 (a), (b), and (f) of the CCP, complaining, among others, that the decisions of the judge concerning the admissibility of evidence had been unlawful. In particular, he argued that his request for the examination of I.G. on the basis of Article 239 of the CCP had been dismissed unlawfully; and that the expert evidence produced on behalf of the defence had been dismissed in violation of the principles of equality of arms and adversarial procedure. In connection with I.G., the applicant stressed that the former had been on the list of defence witnesses which the pre-trial conference judge had unlawfully refused to include in the evidence. Also, the prosecution had been planning to seek his extradition for months. Hence the delay in the request of the defence for his examination via video link. The applicant also reiterated his complaint about the lack of access to a lawyer of his own choosing during the initial hours of his detention and the unlawful appointment of Kh.V. and her presence during the investigative re-enactment. 26 .     By a decision of 31 August 2012, the Tbilisi Court of Appeal rejected his appeal on points of law as inadmissible. The court concluded, referring to Article 266 § 2 and Article 303 §§ 2 and 4 of the CCP: “The appellate court considers that in the criminal case at hand none of the grounds [provided in Article 266 § 2] are present. ... the appellant failed to prove that the Tbilisi City Court had examined the case [in a manner that constituted] serious legal or procedural violations; this could not be established through an examination of the case either.” RELEVANT LEGAL FRAMEWORK and practice Domestic law 27.     On 1 October 2010 a new Code of Criminal Procedure (“the CCP”) entered into force in Georgia, marking the transition from a largely inquisitorial to a purely adversarial system of criminal justice. One of the stated objectives of the reform was to restrict the role of the prosecutor, put in place enhanced rights for the defence, in particular, concerning access to evidence at the pre-trial stage of the investigation, and provide for a new, more neutral role of the judge, centred on supervision and ensuring the procedural fairness of the judicial proceedings. With the adoption of the CCP, trial by jury was introduced in Georgia for a certain category of crimes under a model in which the jury alone retains the exclusive function of determining the defendant’s guilt or innocence. Twelve jurors sit in a criminal trial and one judge presides over the court. Once the questions have been put to and handed to the members of the jury, they retire to deliberate in private, in the absence of a judge.   The law does not ask the jurors to account for how they reached their personal conviction – it simply asks them to answer the questions regarding guilt or innocence according to their inward conviction with either “yes” or “no”. If the jury cannot reach a unanimous verdict within three hours of the deliberations, then a verdict arrived at by majority vote may be returned. A judgment delivered by a jury may be appealed against only on points of law (see Kikabidze v. Georgia , no. 57642/12, § 21, 16 November 2021). The procedure for admission of evidence 28 .     The provisions in the CCP at the material time describing the procedure for the admission of evidence read as follows:   Article 14. Direct and oral examination of evidence “1.     Evidence shall not be presented to a court (jury) unless parties have been given an equal opportunity to examine evidence directly and orally, except for the cases provided for in this Code. 2.     A party has a right to request the examination of a witness and to present its own evidence at trial.” Article 39. A defendant’s right to gather evidence “1.     A defendant has the right to gather evidence, either personally or through his or her defence counsel, at his or her own expense. The evidence gathered by a defendant has the same legal effect as that gathered by the prosecution. 2.     If the gathering of evidence requires an investigative or other procedural action that cannot be performed by a defendant or his or her defence counsel, he or she shall be authorised to lodge an application for a relevant ruling with a judge with relevant territorial jurisdiction. The judge shall make every effort to ensure that the prosecution does not learn of the evidence being obtained.” Article 55. Friend of the court ( Amicus curiae ) “1.     An interested party who is not a party to a criminal case under examination may submit to the court, by – at the latest, five days before the start of the examination on the merits of the case [in question] – his or her written opinion concerning the case. 2.     The purpose of submitting a written opinion should not be to support of any of the parties to the proceedings, but rather should aim at assisting the court in its proper assessment of the issue at stake. If the court considers that the written opinion was not prepared in line with the requirements set out the present Article, it shall not examine it.” Article 72. Inadmissible evidence “1.     Evidence obtained in substantial violation of this Code, as well as on the basis of such evidence or any other lawfully obtained evidence, if such evidence aggravates the legal status of a defendant, is inadmissible and has no legal force. 2.     Evidence shall also be inadmissible if it is obtained in accordance with the rules established by this Code, but there is reasonable suspicion that it has been altered, its characteristics and qualities have been substantially changed, or that traces left on it have been substantially erased. 3.     A prosecutor shall bear the burden of proof for arguing for the admissibility of evidence for the prosecution and inadmissibility of the evidence for the defence. 4.     The parties shall be obliged to provide the court with information regarding the origins of their evidence. 5.     The court shall decide on the issue of inadmissibility of evidence. 6.     The judgment of the court shall not be based on inadmissible evidence.” Article 83. Exchange of information between the parties regarding potential evidence “1.     At any stage of criminal proceedings a request by the defence to acquaint themselves with the information that the prosecution plans to present as evidence in court shall be granted immediately. The prosecution is also obliged, in cases provided for in this paragraph, to hand over to the defence any exculpatory evidence in its possession. 2.     After granting the request of the defence, the prosecution is authorised to obtain from the defence information that it plans to present as evidence in court. 3.     After the request for the exchange of information has been made, failure to provide the other party with all the material available at that time shall result in this material being ruled inadmissible as evidence. 4.     A report on the exchange of information between the parties, as provided in paragraphs 1 and 2 of this Article, shall be drawn up; a copy of the report shall be sent to the court, together with the criminal case file. 5.     A court may, at the request of the prosecution, restrict the right of the defence to request information if the impugned information has been obtained as a result of operational-investigative actions, and only then until the pre-trial conference is held. 6.     Five days prior to the pre-trial conference, at the latest, the parties shall provide each other and the court with all the information at their disposal that they plan to present as evidence at the trial. 7.     The parties shall exchange with each other at their own expense information in the form of copies of documents, or if there are other kinds of material, in the form of a notice. It is permitting to inspect physical evidence, provided that there is no risk of damaging or destroying the evidence or any traces left on it. 8.     Prior to the first appearance of the defendant in court, the parties are obliged to allow each other to acquaint themselves with the information and evidence that they plan to present at trial, as well as to hand over copies of written pieces of evidence.” 84. The exceptional right of the defence “Failure on the part of the defence to exchange one piece of evidence which has particular importance for the exercise of the defence shall not lead to the inadmissibility of such evidence in court when examining the merits of the case. In such a case the presiding judge shall order the defence to pay a fine and bear the procedural costs. The amount of the fine shall be of a preventive nature, shall be proportionate to the damage caused, and shall correspond to the financial situation of the party concerned. The order may be subject to a single appeal to the judge presiding over the decision-making court; that judge is authorised to examine the appeal without holding an oral hearing.” Article 219. Pre-trial conference “... 3.     If a defendant is charged with an offence that merits a jury trial, the judge is obliged to explain to the defendant the provisions concerning the jury trial and his or her related rights. Then, the judge shall enquire whether the parties refuse to have the case heard by jurors. If the parties do not jointly reject the option of a jury trial, the judge shall appoint a date for the selection of jurors. 4.     The pre-trial conference judge a)     examines applications lodged by the parties regarding the admissibility of evidence ... e)     decides on the issue of forwarding the case for examination on the merits ...” Article 239. Lodging applications and ruling on them “... 2.     If additional evidence is presented during a main hearing, the court shall examine, at the request of the [relevant] party, the admissibility of the evidence and shall clarify its reasons for not having presented it before the main hearing and shall rule on the admissibility or otherwise of the evidence accordingly. ... 5.     A request lodged during a trial concerning the obtaining of new evidence shall be allowed if it is established that it was objectively impossible either to obtain the impugned evidence or lodge a relevant application in accordance with the procedure provided for by the Code. If the request is allowed, the evidence shall be obtained in a manner in accordance with the provisions of this Code ... Article 247. Prohibition on using as evidence information provided by a defendant before the examination of the case on the merits “1.     If a defendant objects, it is prohibited at the court hearing to publicly read out information that he or she provided when holding the status of a witness or to play (demonstrate) an audio or video recording containing that information; it is also prohibited to use [such information] as evidence ...” 29.     It should be noted that Article 84 of the CCP, which provided for the one-time exceptional right of the defence to present “belated” evidence, was abolished in May 2013. Trial by jury 30 .     The relevant articles of the CCP concerning jury-trial proceedings, as in force at the material time, read as follows: Article 219. Pre-trial conference “... 3.     If a defendant is charged with an offence which attracts a jury trial, the judge is obliged to explain to the defendant the provisions concerning the jury trial and his or her related rights. The judge shall then enquire whether the parties agree to have the case heard by jurors. If the parties do not jointly reject jury trial, the judge shall appoint a date for the selection of jurors.” Article 226. Jury trial “1.     If the charges involved merit a custodial sentence, the case shall be heard by a jury, unless the defendant requests that the case be examined without the participation of jurors. If, in view of the seriousness and nature of the offence [in question], a threat could be posed to the life or health of jurors, or their inviolability could be otherwise compromised, and also when the conduct of a jury trial substantially breaches the right to an objective and fair trial, the court in charge may, at the request of a party and with the consent of the chairperson of the Supreme Court of Georgia, decide to hear the case without a jury. 2.     The composition of a jury shall guarantee its independence and impartiality ...” Article 231. Jury instruction by a presiding judge “1.     The presiding judge shall instruct the jury on the applicable law when opening the trial and before its retirement to the deliberation room. The instructions given by the presiding judge shall not contradict the Constitution of Georgia, the current Code and the international obligations undertaken by Georgia. The instructions shall also be given to the jury in writing. 2.     These written instructions shall be given to the parties in advance, within a reasonable timeframe. They may request the presiding judge to make amendments or additions to the instructions. If the parties fail to avail themselves of this right before the jury’s retirement to the deliberation room, they will be prevented from complaining about the fairness and lawfulness of the instructions in any appeal on points of law. 3.     The presiding judge is authorised, before the jury retires to the deliberation room, to briefly instruct the jurors regarding the rules for assessing the evidence examined at the trial. He or she shall give these instructions in accordance with the rule provided in paragraph 2 of the current Article. When instructing the jury, the presiding judge is not allowed to express in any way his or her personal position in respect of those issues that fall within the competence of the jury. 4.     The presiding judge shall instruct the jury on the following: a)     the content of the charges and their legal basis; b)     the main rules concerning the evaluation of evidence; c)     the concept of presumption of innocence and the principle that any doubt shall require a decision in favour of the defendant; d)     that a guilty verdict must be based on the law explained by the presiding judge and the body of incontrovertible evidence examined during the trial; e)     that they have a right to make notes and use them during the trial; f)     that the verdict should be based only on the evidence presented at the trial, that no evidence may be taken into consideration on the instruction of others, and that the verdict shall not be based on assumptions or on inadmissible evidence; g)     the rule stipulating that a separate verdict must be arrived at in respect of each charge; h)     that first the jury shall vote on a verdict of not guilty on all charges. If such a verdict is not achieved, then the jury shall vote on a guilty verdict on each count in an order corresponding to the gravity of the charges; i)     that they shall sign only one verdict form for each of the charges – either a not guilty or a guilty verdict form. 5.     The presiding judge shall at the end of the instructions remind the jurors that they are on oath. 6.     After listening to the instructions of the presiding judge, the jury may address the latter with additional questions in writing. Additional instructions shall be given in accordance with the procedure provided in the first paragraph of the current article. 7.     The presiding judge is obliged, at the request of a party, to explain to the jury that the defendant may have committed a less serious offence, the constituent elements of which form the basis of the offence the defendant is charged with. In such a case, the jury shall be additionally provided with a form with which to declare a non-guilty verdict as provided for in paragraph 4 (i) of the current Article.” Article 235. The rights of the jury “... 5.     The judge shall instruct the jury on their right to make notes during the trial. Before their retirement to the deliberation room, jurors shall be given the transcript of the hearing, except for any parts of it that concern inadmissible evidence.” 261. The verdict of the jury “1.     The jury shall examine and make a decision on the facts of the case. The jury’s decisions concerning the facts shall be taken on the basis of the decisions and instructions given by the presiding judge in respect of the legal issues. 2.     The jury shall decide on the issue of innocence or guilt with respect to each charge ...” 266. Appeal against a decision taken by a jury trial “1.     A not guilty verdict in a jury trial is final, and not subject to appeal. 2.     A party may appeal once on points of law to the court of appeal against a verdict of guilty if: a)     the presiding judge made an unlawful decision regarding the admissibility of evidence; b)     the presiding judge made an unlawful decision when examining an application lodged by a party and that decision substantially violated the principle of adversarial procedure; c)     the presiding judge made a substantial mistake when instructing the jury before its retirement to the deliberation room; d)     the presiding judge failed to base his or her decision either in part or in full on the verdict reached by the jury; e)     the presiding judge based his or her decision on a verdict that was delivered in violation of the requirements provided in the current Code. f)     the sentence is unlawful or/and manifestly unsubstantiated; g)     the presiding judge did not follow the recommendation of the jury concerning any possible decrease or increase in the sentence. 3.     If an appeal on points of law lodged on the basis of paragraph 2 (a-e) is allowed, the case shall be transferred to a new panel of jurors for a new trial ...” Relevant international material 31 .     The UN Human Rights Committee issued concluding observations in respect of Georgia in 2014 (CCPR/C/GEO/CO/4). In respect of jury trials, it stated as follows: “ Jury trials The Committee is concerned that the current jury trial system does not afford sufficient safeguards to enable the accused and the public to understand the verdict pronounced by the jury and that it does not provide for the possibility to appeal [against] a guilty verdict on its merits in violation of the Covenant [on Civil and Political Rights] ([Article] 14). The State party should, as a matter of urgency, follow up on its intention to reform the current jury trial system with a view to ensuring its compatibility with the fair trial guarantees enshrined in article 14 of the Covenant.” 32 .     In its Joint Opinion on the Criminal Procedure Code of Georgia (Opinion-Nr.: CRIM -GEO/257/2014 [RJU]), issued on 22 August 2014, the OSCE Office for Democratic Institutions and Human Rights (ODIHR) and the Council of Europe stated: “2. Additional Recommendations: ... O. To introduce the possibility for the jury, in complex cases, to make factual findings on a list of specific elements of a crime, rather than on the crime as a whole;   4. The Jury System ... 29.     The instructions to the jury by the judge, as provided in Article 231 par 4, are fairly general in nature. To ensure that in the end, the judgment passed by the jury provides a clear and detailed reasoning as to the findings, the jurors need to be aware of the key elements of the crime, particularly in cases involving complex and serious crimes. This may be achieved, for example, through directions or guidance provided by the presiding judge to the jurors, which may include a list of precise and unequivocal questions on matters of fact. In this way, the accused will be able to understand the reasons for the verdict, either directly, or via the responses that the jury gives to specific and detailed questions posed by the judge, the prosecution, and/or the accused, which would be attached to and form an integral part of the judgment. The Georgian system does not require the jury to follow and respond to detailed questions on the different elements of the crime to be posed. This is not remedied by the appeals process, which does not look at the facts of a case de novo . It is recommended to introduce the possibility for the judge, in complex cases, to require the jury to make factual findings on a list of specific elements of the crime, rather than just on (each of the) charges as a whole. This process may be supported via a list of specific questions to guide the jury in reaching its findings ( footnotes omitted ).” THE LAW SCOPE OF THE CASE 33 .     In his observations submitted in reply to those of the Government, the applicant complained under Article 3 of the Convention of his alleged ill ‑ treatment during the initial hours of his detention. He furthermore alleged that the jury had been biased and that there had been a violation of his rights under Article 6 § 2 and Article 13 of the Convention in that regard. The Court notes that the applicant introduced the above complaints only in his observations after the Government had been given notice of the application. They cannot be considered to constitute an elaboration of the applicant’s original complaints. Consequently, they fall outside the scope of the present application (compare, for instance,   Saghinadze and Others v. Georgia , no.   18768/05 , §§ 71 and 72, 27 May 2010, with further references therein). ALLEGED VIOLATION OF ARTICLE 6 §§ 1 and 3 (c) and (d) OF THE CONVENTION 34.     The applicant complained that his conviction by the Tbilisi City Court had been based on a jury verdict that had not contained any reasons and that his appeal on points of law had been refused by the appeal court in an unsubstantiated manner. He also alleged that he had been denied access to a lawyer of his own choice during the initial hours of his detention, that the State-appointed lawyer had been unlawfully designated, and that his trial had been conducted in violation of the principles of adversarial procedure and equality of arms on account of the way that the evidence had been taken. The applicant relied on Article 6 §§ 1 and 3 (c) and (d) and Article 13 of the Convention. The Court considers that these complaints fall to be examined solely under Article 6, which, in so far as relevant, reads 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: ... (c)     to   defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given