CEDH · CASELAW;COMMUNICATEDCASES;ENG — 28 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 } .sCB9E0544 { margin-top:0pt; margin-bottom:0pt; text-align:left } .s76CF415B { page-break-before:always; clear:both }   Communicated on 28 November 2016   FOURTH SECTION Application no. 377/11 Gocha TSIKLAURI against Georgia lodged on 19 November 2010 STATEMENT OF FACTS 1.     The applicant, Gocha Tsiklauri, is a Georgian national who was born in 1961 and currently resides in Tbilisi. He is represented before the Court by Mr M. Jangirashvili, a lawyer practising in Tbilisi. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     On 4 June 2009 the General Inspectorate of the Ministry of the Interior launched an investigation into the alleged illegal acquisition and possession of firearms by the applicant, who at the material time was a member of an opposition party. On 6 June 2009 the applicant was arrested. A personal search was conducted and a firearm containing three bullets was found in the back of his trousers. The applicant signed the respective arrest and personal search report but made an objection to the effect that the seized firearm had been planted on him. The applicant’s personal car, which he had been driving at the time of his arrest, and his house were also searched. As a result of the house search the police seized eight firearms and ammunition, together with documents certifying that the applicant legally possessed those items. No illicit items were found. 4.     According to the case file, the search of the applicant was carried out on the basis of so-called operational information in urgent circumstances, without a prior judicial warrant or a ruling issued by a prosecutor. In the course of the investigation the applicant requested that a fingerprint examination be conducted on the seized firearm. His request was accepted, but he was informed that because a forensic ballistic examination had already been carried out on the impugned piece of evidence, its subsequent examination would be impossible as the expert conducting the ballistic examination might have left his fingerprints on it. 5.     The applicant argued before the domestic courts that the arrest and personal search report constituted inadmissible evidence. Given that the official investigation had been initiated two days prior to his arrest on 4   June 2009 on the basis of operational information, the investigating body had had enough time to obtain a judicial warrant. Furthermore, the police had handcuffed the applicant the moment he had been arrested and his personal search had been carried out afterwards. Thus, no urgent circumstances had existed justifying the unauthorised search. The applicant additionally claimed that he had had eight firearms in his legal possession and usually carried one of them in case it was necessary. Therefore, had he wanted to carry a firearm on the day of his arrest, he would have been carrying one of those legally possessed firearms instead of an illegal one. Lastly, the applicant argued that he had been arrested in retaliation for his political activity and the police officers performing the search had planted the impugned firearm on him. 6.     By a decision of 13 October 2009, the Tbilisi City Court found the applicant guilty of acquisition, possession and carriage of firearms and sentenced him to three years’ imprisonment and a fine. His conviction was based on the arrest and search report, statements from the police officers participating in the search and the evidence obtained through the personal search. The court dismissed the claim that the firearm had been planted on the applicant by the police officers. 7.     The appellate court upheld the conviction imposed by the lower court but changed the sentence. It imposed a fine instead of imprisonment and released the applicant from the courtroom. 8.     On 19 May 2010 the Supreme Court of Georgia dismissed an appeal on points of law lodged by the applicant. B.     Relevant domestic law 9.     Article 145 § 3 of the Code of Criminal Procedure (“the CCP”), as in in force at the material time, provided that where sufficient doubt existed that an arrested person was in possession of a weapon or intended to dispose of evidence, the person in charge of his or her detention was authorised to conduct a personal search in accordance with the rules set forth by the CCP. The results of the search must be recorded in an arrest report. 10.     Article 102 §§ 1-3 of the CCP provided that an investigator or a prosecutor conducting a search, seizure or inspection of a crime scene had to inform the suspect, accused, defendant or other person subjected to one of those investigative measures of his or her right to call for the attendance of witnesses. Under Article 102 § 4, the right to call for the attendance of a witness could have been limited if urgent circumstances existed, namely if there was a real risk that the life or health of a person might be endangered or that evidence might be damaged, destroyed or hidden, or in other circumstances explicitly provided for by the CCP. As soon as that risk ceased to exist, the right to a witness had to be restored. 11.   Article 318 § 1 of the CCP provided that a where a ground for a search existed, a prosecutor or an investigator with the approval of a prosecutor should have obtained a judicial warrant for carrying out a search. Under Article 325 § 3 a personal search or seizure could be conducted without a judicial warrant or a judicial decision (ruling) in the following circumstances: (a) if there was sufficient doubt that the person was in possession of a weapon or intended to dispose of evidence; or (b) if an arrest report had been drawn up after taking the suspect to the police station. COMPLAINT 12.     The applicant complains under Article 6 § 1 of the Convention of the overall unfairness of the criminal proceedings conducted against him. In particular, he complains that that there were no independent witnesses present during the personal search through which the incriminating evidence was obtained. He further claims that the illicit item was planted on him by the police during the search in question and that the domestic courts failed to give adequate reasons for rejecting his submissions in this respect.   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.     Was there a breach of the principle of fairness of proceedings under Article 6 § 1 of the Convention on account of the fact that the personal search of the applicant was conducted in the absence of independent witnesses, as required by the legislation in force at the material time? Was the applicant provided with sufficient procedural safeguards to prevent a violation of Article 6 § 1 of the Convention in this regard?   1.2.   Did the domestic courts duly examine the applicant’s allegations that the illicit item had been planted on him by the police during the search?