CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 mai 2021

.s800EAC49 { font-size:12pt } .s379BC09C { margin-top:36pt; margin-bottom:0pt; text-align:right } .sBB9EE52A { font-family:Arial } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s665E407E { margin-top:66pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s6B505E72 { margin:0pt; padding-left:0pt } .s5E8F5A28 { margin-top:14pt; margin-left:25.5pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-family:Arial; font-weight:bold } .s3CCA30AE { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; widows:0; orphans:0 } .sE208486F { font-family:Arial; color:#ff0000 } .s3A692EA6 { margin-top:14pt; margin-bottom:6pt; text-align:center; page-break-after:avoid; font-size:10pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .sA36B60A1 { font-family:Arial; font-style:italic } Published on 14 June 2021   FIFTH SECTION Application no. 9487/19 Giorgi MAMALADZE against Georgia lodged on 31 January 2019 communicated on 27 May 2021 STATEMENT OF FACTS 1.     The applicant, Mr Giorgi Mamaladze, is a Georgian national, who was born in 1984 and is detained in Tbilisi. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 3.     Sometime in January 2017 I.M. – a journalist – informed two lawyers that the applicant – an archpriest and director of a medical clinic operating under the authority of the Georgian Orthodox Church, as well as former director (later demoted to deputy director) of the property management service of the Patriarchate of the Georgian Orthodox Church (the Patriarchate) – had contacted him seeking “kalium cyanide” (a highly toxic substance, also known as potassium cyanide). I.M. told the lawyers that he believed a plan to murder someone working at the Patriarchate had been underway. He indicated that the applicant had wanted to obtain the cyanide for his trip to Berlin, where he had been intending to join the delegation accompanying the Catholicos-Patriarch of Georgia, the spiritual leader of the Georgian Orthodox Church, Ilia II for the latter’s medical procedures. One of the lawyers advised I.M. to record the content of the conversations and to submit the evidence to law enforcement authorities. 4.     On 2 February 2017 the Patriarch’s delegation left for Berlin. On the same day I.M., apparently together with the two lawyers, appeared at the Chief Prosecutor’s Office (the CPO) and repeated what he had told the lawyers (see the preceding paragraph). On 3   February I.M. submitted various audio and video materials, as well as screenshots of text message exchanges with the applicant, and a small piece of paper with the text “kalium cyanide” written on it (later found by experts to have been written by the applicant), explaining that the applicant had written it down for him to avoid uttering the phrase out loud. I.M. also submitted screenshots of his communication with one of the lawyers. An investigation was opened. I.M. agreed to cooperate with the authorities and to continue recording the exchanges with the applicant. Apparently on the same date a judge authorised the implementation of covert investigative measures by I.M. 5 .     The content of the conversations, including the applicant’s alleged animosity towards Sh.T., the Patriarch’s administrative assistant-secretary (“მდივან-რეფერენტი”) and member of the Patriarch’s delegation to Berlin, later identified as the victim in the criminal proceedings against the applicant, was discussed by the domestic courts at length (see paragraph   10 below). 6.     In the early morning hours of 10 February 2017, as the applicant had already checked in for his flight and was about to leave the airport building to board the plane, he was approached by policemen and was taken to the Chief Prosecutor’s Office (“the CPO”). His checked luggage was retrieved and sealed, in the presence of airport staff, from the luggage compartment. The unsealing and search of the luggage was carried out at the CPO at 4   p.m. that day. The search was also attended by the applicant’s lawyer and an airport employee who verified that the seal on the suitcase had been intact. The applicant proposed to help during the search and opened his suitcase which had been locked by him, using a code. He took out a shoe cleaner and put it aside. One of the investigators asked him to open it. As the applicant took the cap off, a small container box dropped out of the cap and fell on the ground. The investigator appears to have picked it up and put it on the table. Inside the container there was white powder, later found to have been “natrium cyanide”. The applicant claimed that the container box had not belonged to him. On the same day the applicant’s apartment was searched and a gun and ammunition were seized. The applicant stated that the gun had been given to him by I.M. for safekeeping. 7.     The applicant’s subsequent attempts to have the recordings of the airport surveillance cameras retrieved were unsuccessful. No fingerprint examination was carried out in respect of the material seized from the applicant’s luggage, apparently because it had been touched by the applicant during the search procedure. 8 .     On 11 February 2017 the applicant was charged with preparation of murder in respect of Sh.T. (see paragraph   5 above)   and unlawful purchase and storage of a firearm and ammunition. On the same day, relying on Article   104 of the Code of Criminal Procedure, the CPO imposed a non ‑ disclosure obligation upon the applicant and his lawyers (see paragraph   16 below). 9.     The applicant’s case attracted wide media coverage and heightened public interest. As it appears from the case file material, various items of evidence, including excerpts from the secret recordings involving the applicant, were circulated by the CPO to the media. It also appears that I.M. gave interviews to the press regarding the case. On 20   February 2017 the applicant complained to the CPO about the violation of his presumption of innocence on account of the imposition on him of the non-disclosure obligation, noting that case file materials had been provided to the Patriarchate, and the CPO had kept informing the public, including by disseminating confidential documents to the media. On 5   April 2017 the applicant complained, again, in respect of the non-disclosure obligation as well as the alleged violation of his presumption of innocence on account of the CPO’s publicising of various excerpts from the case file material, including the secret recordings, accusing the CPO of an attempt “to influence the public opinion” and to portray him as guilty. Referring to a news segment aired on 17 February that year the applicant further alleged violation of his presumption of innocence by various public statements made by government officials. In that news segment, the Prime Minister had noted that “gravest misfortune had been averted, and a crime planned against the State had been prevented”. The President had noted his concern regarding the disseminated information “according to which an attempt at taking the life of a [holder] of a high religious [position] had been planned”. The Minister of Energy had noted that it had been “a well-thought-out plan ... which would have been an attack not only on the ... Church ... but an attack on the entire Georgia.” The Minister of Justice had noted, as aired by the same news segment, that “a tragedy has been averted which would have caused not only the destabilisation of the Church but of the ... country and would have been a national tragedy.” She had added that “today the Patriarch is already in safe hands...”. The journalist narrating the segment noted that “official persons in their public comments do not connect the applicant’s arrest with Ilia II [the Patriarch], but according to the Cabinet of Ministers, the Patriarch’s life at the moment is not under threat.” 10 .     On 5 September 2017 the Tbilisi City Court found the applicant guilty as charged (see paragraph   8 above). The court’s 62-page judgment addressed various items of evidence available in the case file material on a number of issues, including the alleged animosity between the applicant and the victim (see paragraphs   5 and 8 above) of the crime imputed to him, the applicant’s possible intentions and motives, the alleged tensions within the hierarchy of the Patriarchate, the applicant’s employment and financial relations, and I.M.’s persona. The court noted that the applicant and I.M. had been on friendly terms and the applicant, together with another individual, had acted, on several occasions, as I.M.’s secret source on various issues concerning the management of the Church and its property. Given that I.M.’s journalistic work had concerned, for a while, operations of a gold mine, he was, according to the court, contacted by the applicant based on the assumption that I.M. would have had connections to people with access to cyanide (apparently used to extract gold). Assessing the screenshots of various exchanges between the applicant and I.M and the audio and video recordings of their conversations, the trial court noted I.M.’s passive role in those exchanges and the active solicitation of the cyanide by the applicant. It further took note of the information and records obtained from the applicant’s personal devices, expert reports and statements confirming the authenticity of the various evidentiary material, as well as the nature and uses of cyanide. Relying on the above evidence, the court concluded that the applicant had intended the cyanide to poison Sh.T., and that he had intentionally created conditions for committing murder, amounting to preparation of murder as per the domestic legislation. The court also addressed, among other arguments, the applicant’s submission that Sh.T. had asked him to obtain the cyanide for goldsmiths’ use, finding this account unsubstantiated by the evidence available in the case file, including Sh.T.’s statements and the goldsmiths’ account explicitly ruling out any use of cyanide in their work. As to the question of where exactly the applicant had acquired the cyanide, the court stated that the inability to determine that element of the case had not rendered the applicant’s trial unfair or unlawful. It noted that many drug or firearm-related offences had a similar characteristic. Addressing the applicant’s argument that cyanide found in his suitcase had been planted, and that no fingerprint or other examination had been carried out on it, the court stated that the luggage could not have been tampered with after the applicant had checked it in, and while the investigating and prosecuting authorities had not deemed the fingerprint examination necessary, the applicant had been free to order one which he had not done. As to the second count relating to the possession of a firearm and ammunition (see paragraph   8 above), the court explained that according to the domestic law and practice, possession, for whatever purpose, of firearms valid for use was sufficient for a conviction on that count. As regards the holding of the proceedings in camera, the Tbilisi City Court relied on Article   182 of the CCP and stated that the case file material had contained information regarding personal life of some individuals and their public exposure would have violated the applicant’s and other individuals’ “public and private interests”. According to the court, the case file also contained certain religious figures’ compromising information and their public assessment would have been “inadmissible given the religious and moral principles established in the society”. The court also noted that a special protection measure had been applied in respect of some participants of the proceedings and their life and health had been at stake. The court concluded that the ban on the presence of public had not had any negative impact on the fairness of the proceedings. As to the non-disclosure obligation, it had been the investigating bodies’ obligation to impose it given the possible risk of divulging information regarding third parties’ personal lives, as well as jeopardizing a separate criminal investigation (apparently concerning the acquisition of natrium cyanide). The court stated that the applicant had been able to make statements to the public and, at any rate, the court would not be influenced by any events taking place outside the courtroom. 11.     On 4 October 2017 the applicant lodged an appeal. He disagreed, extensively, with the first-instance court’s finding of facts, assessment of evidence, application of substantive and procedural criminal law, and the outcome of the proceedings, suggesting that his version of the events had been more plausible. He also complained about his alleged inability to challenge the authenticity of the evidence retrieved from his luggage and to oppose its use, noting that the evidence had been planted at the airport; the alleged violation of his presumption of innocence; and the right to a public hearing, noting that the grounds indicated by the trial court for holding the trial in private had not been apparent from the case file material. 12.     On 13 February 2018 the Tbilisi Court of Appeal delivered a reasoned judgment. After reviewing multiple witness, expert, and other evidence regarding various aspects of the case and the applicant’s arguments in that regard, the court found the applicant’s version of the events contradictory and unsubstantiated, and upheld, in full, the lower court’s judgment. As regards the allegation regarding the planting of evidence, the appellate court reiterated the lower court’s findings. No explicit answer was provided to the applicant’s complaint regarding the alleged violation of the presumption of innocence and of the right to a public hearing. 13.     On 13 March 2018 the applicant lodged an appeal on points of law. Among other arguments, the applicant stated that the appellate court had inadequately addressed his complaints, including those concerning the violation of the presumption of innocence and the right to a public hearing. 14.     On 1 August 2018 the Supreme Court delivered a 30-page decision declaring the prosecutors’ and the applicant’s appeals on points of law inadmissible as manifestly ill-founded. Among other things, the decision stated, without further elaboration, that no violation of the applicant’s rights under Article   6 of the Convention, including the presumption of innocence and the right to a public hearing, had taken place in the proceedings against him. 15 .     The applicant appears to be serving his sentence at Tbilisi prison no.   9. As it transpires from his submissions, he has various medical issues. The case file material does not contain any information as to whether the applicant instituted judicial proceedings complaining of a breach of his medical or other rights provided for in the Prison Code. Relevant domestic law 16 .     The Code of Criminal Procedure (CCP, 2010), in so far as relevant, provides as follows: Article 10 – Public and oral nature of a court hearing “1. A court hearing, as a rule, is conducted publicly and orally. Closure of proceedings is permissible only based on the grounds provided for in this Code. 2. All decisions adopted by a court shall be pronounced publicly. ...” Article   104 – Non-disclosure of investigative information “1. A prosecutor/investigator shall ensure that the information regarding the progress of an investigation is not made public. For this purpose, he or she may impose an obligation on a participant of the criminal proceedings, warning him or her about criminal sanctions [for its breach], not to disclose the information available in the case file without his or her permission. 2. In the interests of justice and of the parties [involved in the proceedings], a court may decide, at any stage of the investigation and judicial proceedings, based on a motion by a party or on its own initiative, to order the protection of information related to the proceedings by the participants of [such] proceedings or persons in the courtroom from being publicly circulated. Breach of such an order shall entail criminal liability under the Georgian legislation.” Article 182 – Public nature of a court hearing “1. A court hearing, as a rule, is conducted publicly and orally. 2. A court shall review materials containing state secrets in camera. 3. A court may decide, based on a motion by a party [to the proceedings] or on its own initiative, to close a hearing in whole or in part [based on the following grounds]: (a) in order to protect personal data, professional or commercial secrets; ... (e) when a person whose personal correspondence or personal communications is to be produced in the trial does not [agree to the public disclosure of such information]. 4. A judge may, on his or her initiative, close a trial in full or in part in order to ensure order. ... 7. A court may oblige persons attending a closed hearing not to disclose information that they learned during that hearing. ...” COMPLAINTS 17.     The applicant complains under Article   6 §   1 of the Convention that the decision to bar public access to his trial had been neither necessary nor proportionate. He also submits that he did not have a fair hearing on account of the circumstances in which the evidence against him was obtained and his alleged inability to challenge its authenticity and to oppose its use. 18.     The applicant also complains under Article   6 §   2 of the Convention about the violation of his right to presumption of innocence on account of the statements made by public officials immediately following his arrest, the dissemination to the media of various case-file materials, including covert recordings, and the allegedly one-sided non-disclosure obligation imposed on him as part of the criminal proceedings, these elements allegedly contributing to his portrayal as guilty. QUESTIONS TO THE PARTIES 1.     Did the applicant have a fair hearing, in accordance with Article   6 §   1 of the Convention, in the determination of the criminal charges against him, in particular with regard to the circumstances in which the evidence had been obtained and his opportunity of challenging its authenticity and opposing its use (see, for example, Bykov v.   Russia [GC], no.   4378/02, §§   89-90, 93, 10   March 2009)?   2.     Was the holding of the applicant’s trial in camera “strictly necessary” in the present case, within the meaning of Article 6 of the Convention (see Yam v.   the United Kingdom , no.   31295/11, §   54, 16   January 2020, and Boshkoski v.   North Macedonia , no.   71034/13, §   39, 4   June 2020, with further references)? Were the grounds relied on the by the domestic courts to order the full closure of the trial provided for in the law? Did the domestic courts consider the viability of less restrictive measures?   3.     Has there been a breach of the applicant’s presumption of innocence under Article   6 § 2 of the Convention on account of the official statements made by public officials following the applicant’s arrest, the dissemination to the media of various items of evidence, including covert recordings involving the applicant, and/or the allegedly one-sided non-disclosure obligation imposed on the applicant compared to the prosecuting authorities and witnesses in his case?