CEDH · CASELAW;COMMUNICATEDCASES;ENG — 16 novembre 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 } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7ACB8D74 { margin-top:0pt; margin-left:14.2pt; margin-bottom:0pt; text-indent:14.2pt }   Communicated on 16 November 2016   FOURTH SECTION Application no. 35852/11 Aleksandre TCHOLADZE against Georgia lodged on 31 May 2011 STATEMENT OF FACTS The applicant, Mr Aleksandre Tcholadze, is a Georgian national who was born in 1980 and is currently detained in Kutaisi. He is represented before the Court by Ms T. Babunashvili, a lawyer practising in Kutaisi. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. By a judgment of 18 March 2010, Tskaltubo District Court found the applicant guilty of aggravated robbery in a group and sentenced him to 11   years’ imprisonment. During the trial at the first-instance court, both the victim and an alleged accomplice of the applicant, A.Z., retracted the statements they had given against the applicant during the investigation. Notably, the victim stated that she had identified the applicant as the offender after being shown a photograph of him and seeing an identity parade but had acted under duress from the investigator. A.Z. similarly stated that he had named the applicant as an accomplice under duress from the investigator. The court dismissed those statements as unreliable and based its finding of guilt on the fact that the victim had clearly identified the applicant as the robber during the investigation. The trial court further confirmed the applicant’s guilt by the fact that a cigarette butt had been found at the crime scene with DNA belonging to the applicant. The applicant appealed against his conviction. He insisted that the only two witnesses for the prosecution – the victim and A.Z. – had clearly told the lower court that they had testified against him during the trial under duress. He complained that the witness statements made at the trial should have been given preference over those given in his absence to the investigator. He argued that the DNA evidence at the crime scene could not be said to have been conclusive of his guilt because, he asserted, the police had allowed him to smoke a cigarette after his arrest and could easily have planted the butt in question. During the hearing before the appellate court both the victim and A.Z. repeated the testimony they had given at the trial at Tskaltubo District Court and reiterated that they had been coerced into incriminating the applicant. By a decision of 28 July 2010 Kutaisi Court of Appeal fully upheld the applicant’s conviction of 18 March 2010. The appellate court concluded that the evidence in its entirety – the fact of the applicant’s identification by the victim during the investigation and the discovery of his DNA on the cigarette butt – had been sufficient to prove the applicant’s guilt. On 6 December 2010 the Supreme Court of Georgia rejected a complaint on points of law by the applicant as inadmissible. B.     Relevant domestic law Under Article 132 of the old Code of Criminal Procedure (“the CCP”), as in force at the material time (it was replaced by a new Code of Criminal Procedure on 1 October 2010), each piece of evidence had to be assessed in terms of its relevance to the criminal case, its admissibility and credibility. Every item of evidence had to be assessed in its entirety in terms of its sufficiency for a finding of guilt. Any doubt as to the credibility or the sufficiency of evidence for a finding of guilt had to be decided in favour of the accused if the doubt could not be removed by collecting additional evidence. A body of concordant evidence precluding any doubts was necessary for finding a person guilty by a judgment of conviction. COMPLAINT The applicant complains under Article 6 § 1 of the Convention of the failure of the domestic courts to give sufficient reasons for his conviction. In particular, he argues that more evidential weight should have been given to the statements by the prosecution witnesses during the trial rather than to those given to the investigator during the investigation. 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 of the Convention? In particular: 1.1.     Did the domestic courts provide sufficient reasoning for rejecting the testimony of two witnesses given during the trial? 1.2.     Was the rest of the evidence which the domestic courts relied on – notably, the cigarette butt containing the DNA traces of the applicant – of such importance as to be determinative for the conviction?