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THIRD SECTION

Application no. 44984/07
Gocha SARIA
against Georgia
lodged on 21 September 2007

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Gocha Saria, is a Georgian national who was born in 1966 and lives in Zugdidi. He is represented before the Court by Mr Jason Beselia, a lawyer practising in Tbilisi.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A.  The circumstances of the case

On 7 November 2003 a group of at least four armed men, three of whom were wearing masks, opened fire at a peaceful anti-government rally in the city of Zugdidi. At least four people were injured as a result.

On 7 March 2004 several police officers reported in writing to the Zugdidi police that they had seen the applicant among those who attacked the rally on 7 November 2003.

On 16 August 2005 the applicant was arrested on suspicion of drug possession. According to the record of his body search, a small plastic bag containing four sachets of a brownish substance fell out of the applicant’s left trouser leg. As noted in the search record, the body search was carried out on the spot by two police officers and also recorded on video tape; the applicant was not informed of his right to be searched in the presence of independent witnesses; the police officers noted in the search report that the search was conducted in the absence of independent witnesses because there was a risk of the applicant hiding or destroying the evidence. The applicant refused to sign the search report and specified that he had not had any drugs on him.

The applicant was immediately subjected to a blood test, which showed that he was not under the influence of drugs at the moment of the arrest. A subsequent forensic examination established that the substance seized from him contained 0.43 grams of heroin.

The applicant contested the results of his body search. Notably, he alleged that he had been surrounded by four or five police officers, who had violently thrown him, face down, to the ground and handcuffed him. The passers-by had immediately been removed from the area by a dozen more police officers. In the absence of independent witnesses the police officers had tried to plant drugs on the applicant but he had resisted. Then the body search had started and one of the police officers had dropped a small plastic bag containing drugs next to the applicant’s left leg.

In support of the above claim, the applicant produced a copy of the video recording of his search. The recording shows how several plain-clothes persons, identified as police officers, conducted a personal search of the applicant. In one of the scenes, one of the police officers rolled up the applicant’s left trouser leg and suddenly a small plastic bag fell on the ground next to the applicant. It was not clear from the video recording whether or not that bag fell out of the applicant’s left trouser leg. As seen in the video recording, the applicant immediately stated that the drugs had been planted on him by the police and that he was denouncing the results of his body search as unlawful.

On an unspecified date the applicant was charged with unlawful possession of firearms, violation of the right of assembly and demonstration, breach of public order and unlawful possession of drugs in large quantity, offences under Articles 236 §§ 1 and 2, 161 § 2, 239 §§ 2 (a) and 3, and 260 § 2 (a) of the Criminal Code of Georgia. The first three charges concerned the incident of 7 November 2003, when the applicant had allegedly violently disrupted a peaceful demonstration in the city of Zugdidi, whilst the last charge was related to his arrest and personal search on 16 August 2005.

The trial started on 20 October 2006. The judge decided to question the victims and witnesses first and the applicant at the end of the trial.

At the hearing on 2 November 2006 the applicant felt sick. An emergency service was called and the trial was adjourned to the next day.

On 3 November 2006 the applicant was not brought to court. As indicated in the minutes of the trial, the prison authorities presented a written note according to which the applicant had refused to be transferred to the hearing because of his poor medical condition. The trial was suspended until 7 November 2006.

On 7 November 2006, however, the applicant again failed to appear. The authorities at Zugdidi no. 4 prison, where the applicant was being held, sent a letter to the court informing it that the applicant refused to participate in the court proceedings. A special report drawn up by the prison authorities stated that, in view of his poor health, the applicant had refused to be transferred to the court. According to the applicant, the above record was neither signed by him nor supported by relevant medical documentation.

The trial court, acting at the prosecutor’s request, concluded that the applicant was evading the court proceedings and decided, on the basis of Article 443 of the Criminal Procedure Code of Georgia, to proceed with the hearing in the applicant’s absence. The lawyer’s objection to that decision was dismissed by the court. At the same hearing the trial court rejected the prosecutor’s request to include the video recording of the applicant’s search in evidence.

According to the trial minutes, the first-instance court proceedings were finalised on 7 November 2006 in the applicant’s absence. The applicant was not questioned by the trial court. In addition, the final statement of his lawyer in response to that of the prosecutor was made in his absence.

The Zugdidi District Court convicted the applicant of the above-mentioned charges and sentenced him to twelve years’ imprisonment. The applicant’s conviction concerning the 7 November 2003 incident was based primarily on the testimony of three police officers who identified the applicant as being one of the people who had attacked the 7 November 2003 rally. The drug conviction, on the other hand, was based on the report on the applicant’s search, the testimony of two police officers who had participated in the applicant’s arrest and search, and the results of the chemical analysis of the seized substance.

According to the applicant, the first-instance court disregarded his argument that the drugs had been planted on him by the police. The court failed to clarify the circumstances relating to the applicant’s arrest and search, such as precisely what information had served as a basis for the applicant’s arrest and exactly how the drugs had been found. For example, one police officer stated in his deposition that he could not recall exactly where the drugs had fallen from, he just remembered that a plastic bag fell next to the applicant. The other police officer who testified also remembered only that the drugs had fallen on the ground. The applicant’s lawyer asked the trial court to question several other police officers who had been present during the applicant’s search, among them M.S., who had signed the search report. However, the request was rejected as being unfounded.

On an unidentified date the applicant’s lawyer lodged an appeal with the Kutaisi Court of Appeal. In connection with the 7 November 2003 episode he maintained that the witnesses for the prosecution, notably the three police officers, were unreliable and that their testimony was not conclusive of the applicant’s guilt. As regards the drug charges, he reiterated his argument that the drugs had been planted by the police and requested the questioning of several police officers. He also denounced the fact that the video recording of the applicant’s search had not been included in the case file and that the final first-instance court hearing had been conducted in the applicant’s absence, preventing him from testifying in court.

At the hearing of 30 January 2007 the appellate court rejected the applicant’s request for the questioning of additional witnesses.

On 22 February 2007 the applicant testified in court. Concerning the 7 November 2003 incident, he claimed that he had participated in the rally himself and had thus also been a victim of the violent disruption. As regards the drug-related charges, he contested the account of events presented by the prosecution. He alleged that some twenty police officers had been involved in the operation leading to his arrest and search and that unnecessary force had been used against him. He further identified one of the police officers who had testified against him as the one who had planted the drugs during the search.

At the hearing of 22 February 2006 the judge, acting on the reiterated request of the applicant’s lawyer, admitted the video recording of the applicant’s search on 16 August 2005 in evidence.

On 23 March 2007 the Kutaisi Court of Appeal dismissed the charges under Article 239 §§ 2 and 3 (a) of the Criminal Code (breach of public order) and upheld the remainder of the applicant’s conviction. The court dismissed the applicant’s testimony, reasoning that it had been contrived for the sole purpose of evading criminal responsibility. In connection with the video recording and the applicant’s drug charges, the court concluded as follows:

“After analysing the video recording of the personal search of [the applicant] and in view of the other evidence, the appellate chamber finds it established that [the applicant] committed the offence under Article 260 § 2 of the Criminal Code of Georgia.”

The Kutaisi Court of Appeal reduced the applicant’s final sentence from twelve to eight years’ imprisonment.

The applicant’s subsequent cassation appeal, which was qualified as lacking a legal interest, was rejected as inadmissible by the Supreme Court of Georgia on 20 December 2007.

B.  Relevant domestic law

The Code of Criminal Procedure as it stood at the material time

According to Article 102 of the Code of Criminal Procedure, an investigator or prosecutor has to inform a suspect, an accused or a defendant of his or her right to call for a witness to attend any search, seizure or inspection of a crime scene. If a suspect, an accused or a defendant makes such a request, he or she should be given reasonable time (not less than an hour) before the relevant investigative action starts.

An investigative action may be carried out in the absence of a witness only in urgent circumstances, when there is a risk that someone’s life or health would be endangered or that evidence would be damaged, destroyed or hidden, or in other circumstances explicitly provided for in the Code of Criminal Procedure. As soon as that risk ceases to exist the right to a witness should be restored.

Article 443 provides for the defendant’s participation in the court proceedings. A case can be heard in the defendant’s absence if, inter alia, the defendant fails to appear in court and at the same time the court considers that the defendant’s absence will not obstruct the comprehensive, complete and objective examination of the case.

COMPLAINTS

The applicant complained under Article 6 of the Convention about the outcome of the criminal proceedings and alleged that the domestic courts had wrongly assessed the evidence in his case file. In connection with the drug charges, he further contended that the drugs had been planted on him by the police during the search and that the domestic courts had failed to give adequate reasons for rejecting this argument of the defence. He also complained that the first-instance court had held the concluding hearing in his absence, thus preventing him from testifying in court.

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 and 3 (c) of the Convention? In particular,

(a)  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 applicant’s personal search was conducted in the absence of independent witnesses or an advocate? Was the applicant provided with sufficient procedural safeguards to prevent a violation of Article 6 § 1 of the Convention in this regard?

(b)  Did the domestic courts duly examine the applicant’s allegation that the drugs had been planted on him by the police during the search?

(c)  Did the decisions of the domestic courts contain sufficient reasoning for the finding that the applicant was guilty of the drug charges against him?

(d)  Did the decision of the first-instance court to hold the concluding hearing in the applicant’s absence amount to a violation of Article 6 § 3 (c) of the Convention?