CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 octobre 2018

.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 } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt }   Communicated on 12 October 2018   FIFTH SECTION Application no. 29714/18 Irakli PIRTSKHALAVA and Giorgi TSAADZE against Georgia lodged on 18 June 2018 STATEMENT OF FACTS 1.     The applicants are Irakli Pirtskhalava (“the first applicant”) and Giorgi Tsaadze (“the second applicant”), born on 23 September 1968 and 9   April 1972 respectively. Both of them are Georgian nationals. They are represented before the Court by Mr J. Kotchlamazashvili, a lawyer practicing in Tbilisi. A.     The circumstances of the case 2.     The facts of the case, as submitted by the applicants, may be summarised as follows. 1.     Special operation of 2 May 2006 3.     At the material time the first applicant held the position of deputy head of the Criminal Police Department at the Ministry of Internal Affairs (“the MIA”). The second applicant worked for the same department. 4.     On 2 May 2006 a special operation was conducted by the Criminal Police Department of the MIA aiming at intercepting an alleged armed robbery group travelling by car in the central part of Tbilisi. The operation was organised by the first applicant. The second applicant along with several other officers of the Criminal Police Department and around twenty members of the Special Forces of Georgia took part in the operation. 5.     During the operation, two alleged members of the armed group, Z.V. and A.K. (“the victims”) were shot dead while sitting in a car and a third one, B.F., was seriously wounded. According to an official version of the events at the relevant time, the suspects resisted the Special Forces during the operation. 2.     Criminal proceedings against the applicants 6.     On an unidentified date the Chief Public Prosecutor’s Office of Georgia launched a criminal investigation into the circumstances of the special operation of 2 May 2006. 7.     In the course of the above investigation the first applicant was arrested and subsequently detained on suspicion of organising an aggravated murder and fabricating evidence, offences under Article   25,109 (a) (g) (h) and Article 25,369 (3) of the Criminal Code respectively. He was accused of maliciously preparing the grounds for killing the members of the alleged armed group, who in fact had not had any criminal formation or intention. For that purpose, the applicant falsified the evidence by, among others, using false operational information triggering the conduct of special operative and investigatory activities, fabricating circumstances on the crime scene, planting firearms in their car, etc. 8.     As to the second applicant, he was charged with committing an aggravated murder (firing control shots at Z.V. and A.K.) and fabrication of evidence, offences under Article 109 (a) (g) (h) and Article 369 (3) of the Criminal Code respectively. 3.     First instance court proceedings 9.     On 30 October 2015 the Tbilisi City Court convicted the first applicant of organising aggravated murder and the second applicant of committing aggravated murder. They were acquitted of the remaining charges and sentenced to twelve years in prison. 10.     The conviction with respect to the first applicant was primarily based on the statements of seven officers from the Special Forces, who had participated in the special operation of 2 May 2006. All of them confirmed that they had opened fire on the victims on the order of the first applicant. In connection with the second applicant, all seven officers also testified that he had fired control shots at Z.V. and A.K. Two more witnesses, K.G. and K.M. gave identical evidence as far as the role of the second applicant was concerned. 11.     During the trial proceedings the applicants requested the dismissal of the evidence given by the seven officers as unreliable and unlawfully obtained. They claimed that in manifest disregard of the relevant domestic law, the seven witnesses, who at the same time were charged with exceeding official authority (an offence under Article 333 of the Criminal Code) in a separate but related set of criminal proceedings, were kept together in the same prison cell and thus had an opportunity to coordinate their statements against the applicants. The first instance court dismissed the applicants’ above request without giving any reasons. 12.     In the course of the trial, on 12 August 2015, the first applicant requested the court to ensure the attendance and examination of ten witnesses on his behalf. He explained that they had also been involved in the special operation of 2 May 2006 and could have provided important evidence in that respect. The applicant noted that he had taken all possible measures at his disposal to contact them, but to no avail. According to the first applicant, the court simply disregarded the above request. 4.     Criminal proceedings in the Court of Appeal and the Supreme Court 13.     The applicants appealed against their conviction. In the course of the appeal proceedings they reiterated their request for the dismissal of the statements of the seven officers as inadmissible evidence. In support of their request the applicants submitted a report issued by the General Inspection of the Ministry of Prisons, dated 19 April 2017, which established that the seven accused officers had been kept in the same cell between 6 March and 17 August 2015 in violation of Article 74 § 4 of the Code of Imprisonment. The applicants also examined in court three representatives of the Public Defender’s Office (PDO), who confirmed that they had seen the seven accused officers sharing cell no. 19 in Prison no.   9 during their monitoring visit on 22 April 2015. 14.     In their request the applicants further stressed that the seven officers had expressed their willingness to cooperate with the investigation and give incriminating evidence against the applicants only after they had been placed in the same cell, and that they had been kept together throughout the first instance court proceedings. Also, their criminal case was separated from that of the applicants, and shortly after they had given incriminating statements against the applicants before the trial court, the Prosecutor’s Office withdrew their criminal case from court, terminated criminal proceedings against them and released them from detention. 15.     In reply the Tbilisi Court of Appeal dismissed the applicants’ above request as unsubstantiated. It found that even though domestic law prohibited the placement of co-defendants in the same cell and their communication until the end of the relevant proceedings (see below Articles   118 § 2 and 205 § 4 of the Code of Criminal Procedure), the statements of the seven officers were lawful, as at the moment of their examination in court they had enjoyed the status of witnesses in the relevant set of proceedings. The court also noted, without providing any details, that their statements were not the sole and decisive evidence for the applicants’ conviction, that there was other corroborating evidence, and that the defence had had sufficient opportunity to challenge those witnesses by cross ‑ examination. 16.     During the appeal proceedings the first applicant also reiterated his request for the summoning and questioning of ten witnesses on his behalf. That request was, however, disregarded by the Court of Appeal. On 21 June 2017 the Tbilisi Court of Appeal confirmed the applicants’ conviction in full. On 23 January 2018 the Supreme Court of Georgia rejected the appeal of the applicants on points of law as inadmissible. B.     Relevant domestic law 1.     Code of Criminal Procedure of Georgia 17.     The relevant Articles of the Code of Criminal Procedure as in force at the material time read as follows: Article 72 - Inadmissible evidence “1.     Evidence obtained in substantial violation of this Code, as well as on the basis of such evidence any other lawfully obtained evidence, if such evidence aggravates the legal status of a defendant, is inadmissible and has no legal force. 2.     Evidence shall also be inadmissible if it is obtained in observance of the rules established by this Code, but there is a reasonable suspicion that it has been altered, its characteristics and qualities have been substantially changed, or that the trace on it has been substantially erased ...” Article 118 - Examination of a witness during a court hearing on merits “1. A witness for the prosecution shall be first examined by the prosecutor and then by the defence, and vice versa . 2. A witness shall be examined separately from other witnesses who have not yet been examined. At the same time, the court shall take measures to ensure that witnesses summoned for the same case, do not interact with each other until the end of their examination. After the end of the examination, the judge shall inform the witness of his/her right to be present during the court session. ...” Article 205 - Detention on remand “4. Co-defendants in the same criminal case shall be placed separately. The administration of a temporary detention center shall be obliged to take measures to prevent their interaction with each other. By a decision of the investigator, prosecutor or the court, this procedure may also apply to other accused persons ...” 2.     Code of Imprisonment Article 74 - Conditions in detention facilities “... 4. Persons accused of being accomplices in the same crime shall be placed in separate cells. The administration shall take measures to prevent their contact with each other. By a decision of the investigator, the prosecutor or the court, this procedure may also apply to other accused persons. ...” COMPLAINTS 18.     Both applicants complain under Article 6 § 1 of the Convention that they were not given a fair trial because their convictions were substantially based on the unreliable statements of seven key witnesses. The first applicant further complains under Articles 6 §§ 1 and 3 (d) of the Convention that the State failed in its positive obligation to ensure the attendance and questioning of witnesses on his behalf in violation of the principle of equality of arms and in breach of his defence rights. QUESTIONS TO THE PARTIES 1.     Having regard to the criminal proceedings conducted against the applicants as a whole, did the applicants have a fair hearing in the determination of the criminal charges against them, as required by Article   6 §§   1 and 3   (d) of the Convention? In particular:   1.1     Was the use of the statements of the seven Special Forces officers against the applicants compatible with the guarantees of Article   6 §   1 of the Convention?   1.2     Were the first applicant’s defence rights respected within the meaning of Article 6   §   3 (d) of the Convention, given that domestic courts had allegedly disregarded his request for the attendance and examination of witnesses on his behalf? To what extent could the witnesses in question be expected to strengthen the position of the defence?