CEDH · CASELAW;COMMUNICATEDCASES;ENG — 30 août 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 } .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 30 August 2016   FOURTH SECTION Application no. 2692/12 Karlo GHVINIASHVILI against Georgia lodged on 27 December 2011 STATEMENT OF FACTS 1.     The applicant, Mr Karlo Ghviniashvili, is a Georgian national who was born in 1972 and is currently detained in prison. He is represented before the Court by Mr S. Khatchapuridze, a lawyer practising in Tbilisi. 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 22 November 2010 the Sighnaghi District Court found the applicant guilty of the unlawful purchase and possession of drugs, and aiding the selling of drugs in particularly large quantities, offences under Article 260 § 1 and Article (24) 260 § 2 (a) of the Criminal Code. The court sentenced him to sixteen years’ imprisonment. The first conviction was based on the results of a search of the applicant’s home, where half a pill of Subutex was found. The second conviction was primarily based on the following evidence: a pre-trial statement of M.Kh., the applicant’s co ‑ accused, who said that the applicant had called him offering to purchase drugs from I.G. (the third co-accused in the same criminal proceedings); and a transcript of covert recordings of telephone conversations between the applicant and the other co-defendants. 4.     During the trial, M.Kh. pleaded guilty to the drug charges and expressed his willingness to cooperate with the prosecution. Subsequently, he entered into a plea agreement with the prosecution and was offered a more lenient sentence in return. During the trial, he refused to give evidence and instead asked the first-instance court to read out his pre-trial statement. 5.     The applicant appealed against his conviction. He asked for M.Kh. to be examined in court. He also claimed that the prosecution file did not include a court decision or other documents authorising the covert recording of his telephone conversations. Also the original audio recordings were missing from the file. He therefore asked the appeal court to order the prosecution to submit all the relevant decisions concerning the covert operation to the court for examination. He also asked for access to the original audio recordings. The applicant asserted that, in the absence of the original recordings, the evidence should not have been considered by the court. 6.     By a decision of 18 March 2011 the Tbilisi Court of Appeal upheld the applicant’s conviction. The appeal court rejected his application for M.Kh. to be examined. In particular, it concluded that M.Kh., having the status of co-defendant in the same proceedings, could not be forced to be a witness. As regards the audio recordings, the appeal court refused to entertain the applicant’s argument concerning the unlawfulness of the evidence. It also considered it redundant to ask the prosecution for access to the original audio recordings. 7.     On 5 July 2011 the Supreme Court of Georgia rejected an appeal by the applicant on points of law as inadmissible. COMPLAINTS 8.     The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that the criminal proceedings against him were unfair. He submits in particular that his conviction for aiding the selling of drugs was based mainly on transcripts of covert recordings of his telephone conversations, which should not have been used as evidence. He also denounces the fact that M.Kh. was not questioned in court.   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)     Did the reliance of the domestic courts on the transcripts of the covert audio recordings provided by the prosecutor compromise under Article 6 § 1 of the Convention the fairness of the proceedings in question, considering that the applicant contested their lawfulness throughout the proceedings? In this connection, the Government are requested to submit copies of all documents relevant to the authorisation and conduct of the covert recording of the applicant’s telephone conversations.   (b)     Were the principles of “equality of arms” and “adversarial proceedings” enshrined in Article 6 § 1 of the Convention respected as regards the access to the evidence gathered through telephone taping? In this connection, why were the original audio recordings not shown to the defence?   (c)     Was the use of M.Kh.’s evidence against the applicant compatible with the guarantees of Article 6 §§ 1 and 3 (d) of the Convention?