CEDH · CASELAW;COMMUNICATEDCASES;ENG — 14 décembre 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 } .s1296E16F { font-family:Arial; color:#ff7f7f } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .s48A8B0C6 { margin-top:6pt; margin-bottom:6pt } .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 14 December 2016   FOURTH SECTION Application no. 2155/09 Gela BURJANADZE against Georgia lodged on 6 January 2008 STATEMENT OF FACTS 1.     The applicant, Mr Gela Burjanadze, is a Georgian national who was born in 1974. He is represented before the Court by Ms K. Abashidze, 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.     At around 1.45 a.m. on 23 April 2007 an armed robbery took place at a casino in Tbilisi. Two armed men threatened the club’s manager and security guard, the only staff remaining on the premises before it was due to close. They stole 700 Georgian laris (GEL  approximately 300 euros (EUR)) and left without injuring anyone. 4.     At 3 a.m. and 4 p.m. respectively the police questioned the two staff members of the casino as victims. They described one of the robbers as a man aged about 30 years old, approximately 1.8 m tall, with blonde hair. 5.     According to witness statements given to the district court, on an unspecified date before the personal identification procedure was carried out, the victims of the incident were shown a photograph of the applicant for identification purposes. They were allegedly also shown photographs of three other individuals. 6.     On 2 May 2007 a police officer contacted the applicant and asked to meet him at a bus station. The applicant was then taken to the police station for an identification procedure, allegedly without being given any explanation as to the purpose of the procedure or his rights. 7.     According to the applicant, he appeared in the identification parade together with three other men, who were under the influence of alcohol and looked visibly different to him. One of the men was around 45 years old, tall and bald. The other two, one of whom had a beard, were shorter than him. None of them were blonde. According to the applicant, the police told him where to stand during the parade. 8.     As a result of the identification parade, which ended at 4.50 p.m. on 2   May 2007, both victims identified the applicant as one of the robbers. He was subsequently declared a suspect, and at 5.50 p.m. was handed a form advising him of his rights. He signed the document, specifying that he did not require the assistance of a lawyer at that stage. 9.     A hearing took place on 4 October 2007. The applicant requested the district court to declare the results of the identification procedure inadmissible evidence obtained in violation of the Code of Criminal Procedure. He accused the police officers of manipulating the evidence by showing his photograph to the victims before the identification parade without justifying the reasons for their actions, making him appear in a parade with three other men with a dissimilar appearance, and telling him where to stand during the parade. The court deferred the application until the end of the trial, but never returned to the matter. 10.     On 12 October 2007 the applicant was found guilty of robbery and sentenced to eight years’ imprisonment. He was also ordered to pay a fine of GEL 4,000 (approximately EUR 1,500). His conviction was upheld by the Court of Appeal on 27 December 2007. His arguments regarding the inadmissibility of key evidence because of the manner in which it had been taken were found to be manifestly ill-founded. On 11 July 2008 the Supreme Court declared an appeal on points of law by him inadmissible. B.     Relevant domestic law 11.     The relevant parts of Article 347 of the Code of Criminal Procedure, in force at the material time, provided as follows: “3.   The person to be identified shall appear together with three other persons of the same sex whose appearance and clothes are not significantly different. 4.   An investigator shall tell the person to take any position [in the line-up].” The provision in question further specified that: “7.   In exceptional circumstances a photographic identification procedure may be carried out where photographs of at least three other persons not significantly dissimilar in appearance and clothes shall also be shown. 8.   A defence lawyer may attend the identification procedure of a suspect or an accused.” COMPLAINTS 12.     The applicant complains under Article 6 §§ 1 and 3 (c) of the Convention that he had no access to a lawyer during the identification parade. He notes in this connection that the failure to grant him suspect status at that stage was deliberate in order to circumvent the possibility of inviting a lawyer to attend the parade. The applicant further alleges that the photographic identification procedure and the identification parade were implemented in a manner which incited the victims to identify the applicant as a culprit and prejudiced the outcome of the criminal proceedings against him. The applicant complains that the domestic courts failed to give proper reasons in their decisions with respect to his objections concerning the identification procedure and its results.   QUESTIONS TO THE PARTIES Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 §§ 1 and 3 (c) of the   Convention? In particular:   (a) Was the identification procedure carried out in accordance with Article   347 of the Code of Criminal Procedure in force at the material time? In this connection, did the circumstances in which the photographic identification and the identification parade of the applicant were conducted cast doubt on their accuracy and reliability?   (b) Were there sufficient procedural safeguards, including access to a lawyer, in place with respect to the identification parade to prevent a possible violation of the applicant’s rights under Article 6 § 1 of the   Convention?   (c) Did the domestic courts provide adequate reasoning in response to the applicant’s applications to have the results of the identification procedure excluded from evidence as inadmissible?