CEDH · CASELAW;COMMUNICATEDCASES;ENG — 21 janvier 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .s29100277 { font-family:Arial; font-weight:bold } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }     Communicated on 21 January 2016   FOURTH SECTION Application no. 30364/09 Merab MEGRELISHVILI against Georgia lodged on 18 May 2009 STATEMENT OF FACTS 1.     The applicant, Mr Merab Megrelishvili, is a Georgian national, who was born in 1961 and is detained in Tbilisi. He is represented before   the   Court by nine lawyers: Ms   N.   Jomarjidze, Ms   T.   Abazadze, Ms   K.   Shubashvili, and Ms T. Dekanosidze, lawyers at the Georgian Young Lawyers’ Association in Tbilisi, and also by Ms K. Levin, Ms   J.   Evans, Ms   J.   Gavron, Mr. V. Grigoryan, and Mr P. Leach, lawyers at the European Human Rights Advocacy Centre in London. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows.   A. The circumstances of the case   3.     On 3 July 2007 the applicant, as he was driving his car in Tbilisi, was stopped by a team of officers of the Special Operative Department of the Ministry of Interior (“the SOD”) on a suspicion that he was in possession of illicit drugs. After the applicant stepped out of the car, while he remained surrounded by the team of the SOD officers, he was immediately searched. During the body search one of the SOD officers, by putting his hand in the right pocket of the applicant’s trousers, retrieved illicit drugs from the pocket. The applicant protested, stating that he did not have drugs in his pocket. The applicant was then formally put under arrest and the respective search and arrest reports were drawn up. The SOD officers then proceeded with the search of the applicant’s car as a result of which more illicit drugs were found hidden in the back seat of the vehicle. The applicant again stated that those drugs were never there prior to the search. 4.     On the same day, in parallel to the aforementioned arrest and searches, another group of the SOD officers was dispatched to conduct searches in the applicant’s apartment and garage. These searches, which together lasted for several hours, were conducted in the presence of the applicant’s wife, mother-in-law and two minor children. The SOD officers found more illicit drugs in the balcony of the apartment as well as in the garage. 5.     The search reports available in the file confirm that neither the applicant’s lawyer, nor any independent witnesses were present during any of the four conducted searches. Relying on Article 102 § 4 of the Code of Criminal Procedure (“the CCP”) and citing the need to act without a delay to preclude the applicant or his family members from destroying the evidence, the SOD officers denied the applicant and his family members to have independent witnesses present during the searches. The applicant as well as his family members refused to sign the respective search reports noting in the reports that the illicit drugs had been planted by the SOD officers. The applicant’s wife particularly noted in the respective report that the SOD officers denied her the possibility to have her neighbours present during the searches of the apartment and the garage; the SOD officer was alone in the balcony of the apartment when he “found” drugs there; the door of the garage had been open and the SOD officers had entered it before the search officially commenced and the applicant’s family members came at the scene to observe the search. 6.     On 4 July 2007 the applicant was charged with aggravated drug offence. Although none of the aforementioned searches had been conducted with prior judicial authorization, their results were post-factum examined and declared lawful by the competent national courts. The illicit drugs seized during those searches were thus adduced in evidence against the applicant. 7.     On 31 March and 16 July 2008 respectively the Tbilisi City Court convicted the applicant and the Tbilisi Court of Appeal upheld his conviction. During the proceedings the applicant repeatedly requested the exclusion of the evidence as being illegally obtained. In particular he raised the issue of the absence of independent witnesses during the searches when the evidence against him had been seized; he also claimed that the illicit drugs had been planted by the SOD officers. The national courts dismissed the applicant’s claims, simply finding that his statements and those of his family members were unreliable. The evidence seized during the searches thus served as the basis for the applicant’s conviction. 8.     On 19 November 2008 the Supreme Court of Georgia declared the applicant’s cassation appeal inadmissible and thus his conviction and sentence of twelve years’ imprisonment became final.   B. Relevant domestic law   9.     According to Article 102 §§ 1, 2 and 3 of the CCP in force at the material time, an investigator or prosecutor has to inform a suspect, an accused or a defendant of his or her right to call for a witness to attend any search, seizure or inspection of a crime scene. If a suspect, an accused or a defendant makes such a request, he or she should be given reasonable time (not less than an hour) before the relevant investigative action starts. The same rights apply to a person who, while not being a suspect, an accused or a defendant, may be affected by a given investigative action. 10.   Under Article 102 § 4 of the CCP   an investigative action may be carried out in the absence of a witness, inter alia, in urgent circumstances, when there is a risk that someone’s life or health would be endangered or that evidence would be damaged, destroyed or hidden. As soon as that risk ceases to exist the right to a witness should be restored. COMPLAINT 11.     Invoking Article 6 § 1 of the Convention and claiming that the drugs had been planted by the SOD officers, the applicant complains that the evidence on which his conviction was based had been obtained unlawfully as during the searches he and his family members had been arbitrarily denied the attendance of independent witnesses; claiming that the domestic courts did not give due consideration to the argument of defence challenging the reliability and use of the impugned evidence, the applicant calls into question the overall fairness of the criminal proceedings.       QUESTION TO THE PARTIES   Taken as a whole, where the criminal proceedings instituted against the applicant fair within the meaning of Article 6 § 1 of the Convention? In particular:   -     was there a breach of the principle of fairness of proceedings on account of the fact that the searches of 3 July 2007 were conducted in the absence of independent witnesses? In this connection, was the applicant provided with sufficient procedural safeguards?   -     Did the domestic court duly examine the applicant’s allegation that the drugs had been planted by the officers of the Special Operative Department who conducted the searches?