FIFTH SECTION

DECISION

Application no. 7720/12 Reuwen TSION against Georgia

The European Court of Human Rights (Fifth Section), sitting on 16 June 2020 as a Committee composed of:

Gabriele Kucsko-Stadlmayer, President, Lado Chanturia, Anja Seibert-Fohr, judges, and Ann e -Marie Dougin , Acting Deputy Section Registrar ,

Having regard to the above application lodged on 30 January 2012,

Having regard to the decision of 28 September 2015 to give notice to the Georgian Government (“the Government”) of the respective complaints under Article 6 §§ 1 and 3 (c) and Article 8 of the Convention concerning the non-assignment of a lawyer during his arrest and the search procedures and the legality of the search and seizure procedure, and to declare the remainder of the complaints under Article 6 and Article 8 inadmissible pursuant to Rule 54 § 3 of the Rules of Court;

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Reuwen Tsion, is an Israeli and Georgian national, who was born in 1968. He was represented before the Court by Ms E. Surguladze, a lawyer practising in Tbilisi.

2 . The Government were represented by their Agents, most recently Mr B. Dzamashvili, of the Ministry of Justice.

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

4 . On 3 April 2009 the Special Operative Department (“the SOD”) of the Ministry of Internal Affairs launched a preliminary investigation into the illicit production, acquisition and possession of forged banknotes. Officers K.Ch. and G.R. of the SOD (“the undercover officers” or “the officers”) – were ordered to infiltrate the suspected criminal group in order to reveal, document, and stop their criminal activities.

5 . On 6 April 2009 the undercover officers and a certain N.Ts. had a meeting with L.B., a person suspected of involvement in criminal activities. The latter promised the officers to provide them with forged banknotes in the amount of 10,000 United States dol lars (USD – approximately 7, 600 euros (EUR)). On the following day L.B. called a meeting with the officers, telling them it was necessary to meet a certain M.K. in order to discuss the deal. As a result, M.K. told the officers that he had been responsible for the contact with individuals possessing the forged banknotes.

6 . On 8 April 2009 the undercover officers met L.B. and M.K. and purchased forged USD 100 banknotes amounting to USD 10,000 (approximately EUR 7,600) in total for the price of USD 2,600 (approximately EUR 2,000). L.B. and M.K. noted that they could provide additional sums if needed.

7 . On 27 April 2009 L.B. and M.K. met the undercover officers again and sold them USD 29,900 in forged notes (approximately EUR 22,800) for USD 7,500 (approximately EUR 5,700).

8 . As is apparent from the case file, all the meetings and telephone conversations were secretly recorded based on a prior judicial warrant. As a result of those recordings it was revealed that M.K ’ s brother, K.K., and some other individuals might have formed a larger criminal group connected to the suspected production and selling of forged money. In order to reveal their identity, on an unspecified date a court authorised further tapping of telephones in order to record conversations in the months to follow. It was revealed that a certain V.Kh. (later identified as the applicant ’ s brother-in-law) was the person with a direct connection to the source of the forged banknotes. On an unspecified date a judicial warrant to tap V.Kh. ’ s telephone conversations was issued to verify those suspicions.

9 . On 12 October 2009 M.K. met the undercover officers and showed them a sample of an improved version of a forged banknote, and raised its price owing to the better quality. He noted that he could have provided a large number of forged banknotes, the source of those being “some Jew” who had agreed to deliver as many as needed, on the condition that the transaction took place in Israel. M.K. promised to arrange a meeting with V.Kh. and “the Jew” in order to discuss the matter. According to the official transcripts of various subsequent telephone conversations between the officers, M.K., and V.Kh., they had discussed the price of the banknotes, whether a prepayment should be made, and the location of the potential transaction, with V.Kh. repeating the unnamed supplier ’ s position that the transaction should take place outside Georgia.

10 . On 2 November 2009 the meeting between the undercover officers, M.K., K.K., V.Kh., and a certain Rubi – “the Jew” referred to in earlier conversations, later identified to have been the applicant – took place. The meeting was secretly recorded based on a prior judicial warrant. The individuals present at the meeting all discussed the arrangements of a deal, with V.Kh. translating for the applicant. The applicant noted that approximately ten days were needed for the production of forged banknotes in the amount of USD 100,000-150,000 (approximately EUR 76,300 ‑ 114,000), and insisted that the transfer of money should take place outside Georgia, preferably in Israel. He indicated USD 30 (approximately EUR 23) as the price per USD 100 banknote if the handover took place there. As the undercover officers showed reluctance to accept the offer in the absence of guarantees, the applicant offered to put up his new car as a guarantee for the deal. The meeting ended with an agreement to further discuss the arrangements concerning the deal at another meeting.

11 . On 11 November 2009 the SOD received information from an anonymous source that M.K., K.K., and L.B. might have forged banknotes on them and in their homes. As a result, the investigating authorities apprehended the people in question in a restaurant near Tbilisi, carried out the search and seizure procedure, and arrested them. Having also been present at the restaurant, the applicant and V.Kh. were likewise searched and arrested. According to the subsequent witness statements given by M.K. and V.Kh., the persons arrested on 11 November 2009 had all met at the restaurant to discuss the logistical arrangements of the deal discussed on 2 November 2009.

12 . The “arrest and search of a suspect report” of 11 November 2009 drawn up in respect of the applicant indicated that he had been caught in the act of committing an offence. The risk that the suspect would have hidden or got rid of evidence was indicated as the basis for the immediate search. The applicant, who had poor command of Georgian, was assisted by an interpreter during the arrest and personal search. The section of the report related to the search of the applicant ’ s person signed by the applicant and the interpreter indicated that the applicant had waived his right to have witnesses present, and had been notified of his right to make objections. The report in question stated that the applicant had been informed of his rights as a suspect, including the right to have access to a lawyer, as well as his right to remain silent to avoid self-incrimination. Neither an explicit waiver of this right nor an objection about an inability to use it was recorded on the relevant document. The search of the applicant ’ s person revealed, inter alia , banknotes of different currencies and some brownish substance, later identified as cannabis.

13 . On 11 November 2009, immediately following the search of the applicant, as well as that of M.K., K.K., and V.Kh., the police officers drew up a report according to which it had been impossible to search the applicant ’ s car owing to falling darkness. It was therefore to be transported to the police station to implement the search measure. The car was searched in the applicant ’ s presence, with the assistance of an interpreter that same evening at the police station. The relevant search report showed that the applicant had indicated to the officers the location of the items seized from the car, and had waived his right to have attesting witnesses present, as confirmed by his signature. The report indicated the existence of a real risk of the material evidence being hidden as the grounds for implementing the search. Amongst other things, USD 83,000 (approximately EUR 63,300) was found in the applicant ’ s car. The relevant report contained a note signed by the applicant and the interpreter that all the items retrieved from the car had belonged to the former.

14 . On the same day the applicant ’ s home was searched in the presence of his wife and an interpreter. Among other things, fifty USD 100 banknotes were discovered. On an unspecified date, those banknotes were found to have been forged.

15 . On 12 November 2009 the applicant was assigned a lawyer under the legal-aid scheme.

16 . On 12 November 2009 a post-search judicial review was carried out. Having regard to the information revealed as a result of the preliminary investigation in respect of the applicant and the other individuals, a judge of a first-instance court declared, by means of a written procedure and without the applicant ’ s participation, the results of the search of the applicant ’ s person and car to have been obtained in circumstances of urgent necessity, and in accordance with the law. It does not appear that the decisions were served on the applicant.

17 . On 13 November 2009 the applicant engaged a lawyer of his own choosing. Subsequently the applicant was charged with the illicit acquisition, possession with an aim of distribution, and distribution of forged banknotes committed as part of a criminal group. He was additionally charged with the acquisition, possession and transportation of illicit drugs. Upon being approached for questioning, the applicant declared that he had been explained his rights in the presence of an interpreter and the lawyer, and while being innocent, he wished to use his right to remain silent.

18 . On 2 December 2009 the audio-video recording of the meeting dated 2 November 2009 (see paragraph 10 above) was examined by a certified interpreter who confirmed that V.Kh. had interpreted correctly into and from Hebrew during the meeting of the group.

19 . On 4 December 2009 an expert of the Ministry of Internal Affairs issued his findings on the authenticity of the USD banknotes seized from the applicant ’ s person and car. It was found that the seals of the relevant containers containing the seized items had been intact. Among the USD 100 banknotes seized as a result of the search of the applicant (see paragraph 12 above) three had been forged. As concerns the money seized from the applicant ’ s car (see paragraph 13 above), one hundred and forty-four USD 100 banknotes totalling USD 14,400 (approximately EUR 11,000) had been found forged.

20 . On an unspecified date the judicial proceedings commenced against the applicant, L.B., M.K., K.K., and V.Kh. as co-accused before the Khashuri Regional Court. During the trial M.K. and V.Kh. confessed and admitted to various aspects of the accusations against them. M.K. stated – among other things – that prior to the discussions of the deal on 2 November 2009 the applicant had personally given a sample forged banknote of USD 100 to him, in the former ’ s car, in order to demonstrate the quality of the banknotes the applicant could have provided. It had been based on the assessment of the quality of that banknote by the potential buyers – later identified as the officers – that the meeting of 2 November 2009 had been held. V.Kh. stated, among other things, that he had introduced M.K. and the applicant, the latter providing the sample forged banknote at M.K. ’ s request. V.Kh. noted that the applicant had stated that the transfer of the order should have taken place outside Georgia. V.Kh. stated that the applicant had never expressed any dissatisfaction with the meeting, or refused to meet the persons involved again.

21 . Among other complaints related to the search and seizure measures, as well as the assessment of facts and law, the applicant maintained that the failure to assign him a lawyer on his arrest under the mandatory-assignment rule under Article 81 of the Code of Criminal Procedure had rendered any evidence obtained as a result of such measures inadmissible on account of the violation of procedural law, and the proceedings against him unfair. He maintained that the forged banknotes and the drugs had not belonged to him, and had in fact been planted by the investigating authorities. Furthermore, although he did not deny the fact of having met his co-accused on 2 November 2009, the applicant maintained that he had deliberately proposed unfavourable conditions for the deal so that it would not have materialised but had not left the meeting out of respect for his brother-in-law.

22 . On 23 July 2010 the court dismissed the application concerning inadmissibility of evidence on account of the failure to assign him a lawyer under the mandatory rule, stating that the applicant had been notified of his rights, and provided with the assistance of an interpreter, and “the fact that the search [had not been] attended by a lawyer owing to the implementation of the measure in circumstances of urgency [was] not grounds for declaring the arrest and search reports inadmissible evidence”. As regards the search of the applicant ’ s car, the court found that the circumstances of the search, including its implementation after its transport to the police station, did not indicate any grounds for declaring the results inadmissible. The court also responded to the applicant ’ s argument concerning the alleged fabrication of evidence that the seals on the relevant containers of the seized evidence had been intact, excluding any such possibility.

23 . On 2 August 2010 the Khashuri Regional Court convicted the applicant of the illicit acquisition, possession with an aim of distribution, and distribution of forged banknotes committed as part of a criminal group, and for the acquisition, possession and transportation of illicit drugs. He was sentenced to seventeen years ’ imprisonment and to a fine in the amount of 140,000 Georgian laris (GEL – approximately EUR 64,000). The court found the applicant ’ s arguments unconvincing in view of the material available in the case file, including the expert evidence, the recordings of the relevant meetings, and the statements of his co-accused. The applicant appealed on an unspecified date.

24 . On 25 July 2011 the Tbilisi Court of Appeal upheld the applicant ’ s conviction by the lower court. The court noted that, taking into account all the evidence available in the case file, it could not share the applicant ’ s version of the events. The court noted that it could not agree with the applicant ’ s complaint that his rights had been violated during the arrest and search of his person, or his car and home, as he had been provided with the services of an interpreter, and he, and his wife in so far as the applicant ’ s home was concerned, had signed all the respective reports without objecting to any aspect of the searches in question. The court relied on the respective search and seizure reports, the witness statements of the persons who had carried out the measures in question, and the interpreter ’ s statement that he had correctly translated the procedure to the applicant. Therefore, the appellate court concluded, the search and seizure procedures had not been carried out with procedural irregularities “of such a degree which would have called their results into question”. The court further addressed other complaints of the applicant relating to various factual and legal circumstances assessed by the lower court, including that of the fabrication of evidence against him, and found them wholly unsubstantiated in view of the evidence available in the case file.

25 . In finding the applicant guilty, the appellate court took into account that the fact of his giving the sample forged banknote to M.K. that was shown to the officers on 12 October 2009, his voluntary participation in the meeting of 2 November 2009, and his willingness to provide a large quantity of forged banknotes to the criminal group had been confirmed by various items of evidence available in the case file, including the secret recordings of telephone conversations and of the meeting of 2 November 2009, as well as various witness statements, including those by M.K. and V.Kh., in addition to those of the officers, implicating the applicant and disproving his version of the events.

26 . An appeal on points of law lodged by the applicant was rejected as inadmissible by the Supreme Court on 25 July 2011.

27 . On an unspecified date in December 2014 the applicant was pardoned by the President of Georgia, and released from serving the remainder of his sentence.

28 . The relevant provisions of the Code of Criminal Procedure (“CCP”, 1998), as in force at the material time, read as follows:

Article 81. Mandatory defence

“1. An authority conducting proceedings does not have a right to accept the refusal of a suspect, accused, or a defendant to have a lawyer assigned [to him or her] if: ...

(c) the suspect, accused, or defendant does not speak the language of the criminal proceedings ...”

Article 83. Decision regarding the appointment and change of a lawyer

" 1. A suspect and an accused are given time to select and engage a lawyer.

2. If a suspect or an accused is arrested, he or she shall be given an opportunity to select and engage a desired lawyer within six hours of the arrest. ... If one of the grounds provided for in Article 81 of this Code are present at the time of a suspect ’ s or an accused ’ s arrest, an investigator [and/or] a prosecutor are not permitted to accept the suspect ’ s or the accused ’ s refusal to have a lawyer appointed and shall appoint one after the expiration of the above-noted period...”

Article 290. Investigative act conducted with judicial authorisation

“...2. A seizure [and/or] search ... may be carried out without a judicial warrant in urgent circumstances, on the basis of an order by an investigator or a prosecutor. In such cases a prosecutor shall inform the competent judge ... within twenty-four hours, providing him or her with criminal case file demonstrating the necessity of carrying out the investigative measure in question. Within twenty-four hours of receiving the material the judge ... shall verify whether the measure was carried out in accordance with the law. The [relevant] judge has a right to call the person who had implemented the [measure in question] in order to give explanations. After assessing the materials, [the relevant judge] shall (a) decide to legalise [the investigative measure], or (b) declare it unlawful and order the inadmissibility of the evidence obtained as a result. ...

4 . A case is considered urgent when: there is a real risk of the ... evidence of a crime being destroyed or lost; a person is apprehended in flagrante delicto ; objects or documents relevant to a case are discovered in the context of another investigative measure (inspection of a crime scene, reconstruction of events, inspection); or it is impossible to issue a judicial warrant on account of the absence of a judge. ...

7. In cases provided for in paragraph 2 of the current Article, no verbatim record of the hearing shall be drawn up. A judge may decide on the application without an oral hearing”

Article 293. Judicial order on the implementation of an investigative act

“... 3. ... [A] decision of a judge regarding the legalisation of the investigative act [carried out without a prior judicial warrant] may be appealed against within seventy-two hours of its [issuance] ...”

COMPLAINTS

29 . The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that he had not been assigned a lawyer during his arrest and the search and seizure procedure implemented in respect of his person and his car, rendering the results of such a procedure inadmissible evidence . The applicant also complained under Article 8 of the Convention that the search and seizure measure had been unlawful.

THE LAW

30 . The applicant complained under Article 6 §§ 1 and 3 (c) of the Convention that it had been mandatory to assign a lawyer to a person not speaking the language of the proceedings, and the failure to assign him a lawyer during his arrest and the search and seizure procedure had rendered the evidence obtained as a result of such measures procedurally tainted and the proceedings against him unfair. Article 6 of the Convention, in so far as relevant, reads as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by [a] ... tribunal ...

3. Everyone charged with a criminal offence has the following minimum rights:

...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”

31 . The Government relied on Article 83 § 2 of the CCP (see paragraph 28 above) and submitted that the rule on the mandatory assignment of a defence lawyer to an accused not speaking the language of the criminal proceedings applied after the expiration of six hours from the moment of an arrest. By contrast, the searches in respect of the applicant ’ s person and his car had been carried out based on an immediate necessity before his arrest and fell within that period of six hours. The Government further noted that the applicant had been assisted by an interpreter, and the relevant search and seizure reports had been signed both by the interpreter and by the applicant, who had not made any objections. Nor had the applicant ever disputed his waiver in respect of witnesses on his behalf attending the procedure. Furthermore, the measures complained of had preceded the applicant ’ s questioning as a suspect when he was duly assisted by a lawyer of his own choosing. And the impugned measures had been declared lawful in a post-search judicial review. In any event, the applicant ’ s conviction had been based on a substantial and consistent body of evidence. Therefore, the applicant ’ s trial, as a whole, including his ability to contest the use of evidence obtained as a result of the contested measures, had been in compliance with the principles of equality of arms and adversarial proceedings under Article 6 of the Convention.

32 . The applicant reiterated that the results of the search and seizure measures conducted in respect of his person and his car had constituted the main evidence for his conviction; however, this evidence had been obtained unlawfully, in violation of the mandatory defence rule under the CCP, and had thus tainted his conviction.

33 . The Court reiterates that the right of access to a lawyer becomes applicable as soon as there is a “criminal charge” within the meaning given to that concept by the Court ’ s case-law (see Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3 others, § 249, 13 September 2016, with further references) and, in particular, from the time of the suspect ’ s arrest, whether or not that person is interviewed or participates in any other investigative measure during the relevant period (see Simeonovi v. Bulgaria [GC], no. 21980/04 , § 111, 12 May 2017, and Beuze v. Belgium [GC], no. 71409/10 , § 124, 9 November 2018). This right may therefore be relevant during pre-trial proceedings if and in so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to observe it (see Simeonovi , cited above, § 114, and Ibrahim and Others , cited above, § 253). Access to a lawyer during the investigation phase may be temporarily restricted where there are “compelling reasons” for doing so (see Simeonovi cited above, § 116). Where there are no compelling reasons for restricting access to legal advice, the Court must apply a very strict scrutiny to its fairness assessment (see Ibrahim and Others, cited above, § 265).

34 . In the present case, in view of a combination of particular circumstances mentioned below, the Court considers that it is not necessary to go through each and every step of the Ibrahim test since the following elements sufficiently establish that even assuming the need to apply a very strict scrutiny, the criminal proceedings as a whole were fair (see, for another case concerning flagrante delicto situations, Blaj v. Romania , no. 36259/04, §§ 91-99, 8 April 2014 ). In particular, the Court observes that the core of the applicant ’ s argument concerns the authorities ’ failure to assign him a lawyer under what he claims to have been a mandatory defence rule in respect of persons not speaking the language of the proceedings. While the domestic courts did not provide an extensive elaboration on the interrelation and scope of Article 81 § 1 (c) and Article 83 §§ 1-2 of the CCP (see paragraph 28 above) – the legal provisions relevant to the applicant ’ s arguments – having reviewed his complaint they concluded that the failure to ensure access to a lawyer did not render the evidence inadmissible.

35 . As concerns the question of whether the applicant was particularly vulnerable, the Court takes note of the fact that while he did not speak the language of the criminal proceedings, he was provided with the services of an interpreter (see paragraphs 12 - 13 above ). Furthermore, as regards the relevant legal framework and the circumstances in which the evidence was obtained, the Court takes note of the respective reports relating to the search of the applicant ’ s person and his car which specified that both measures were conducted in urgent circumstances, on the grounds that a real risk of the suppression of evidence existed (see paragraphs 12 - 13 above). This was as such a valid procedure, as provided for under Article 290 §§ 2 and 4 of the CCP (see paragraph 28 above), and the applicant had the opportunity to challenge the authenticity of the resulting evidence and oppose its use during the trial against him (see paragraphs 22 and 24 above).

36 . Furthermore, the Court is particularly mindful of the fact that the applicant, having been caught in flagrante delicto , benefited from an assistance of a lawyer on the following day (see paragraph 15 above) and subsequently engaged a lawyer of his choosing from the time he was formally charged (see paragraph 17 above), who then assisted him in all his statements before the prosecuting authority and the domestic courts (see Blaj , cited above, § 96). Additionally, the Court does not lose sight of the fact that the domestic courts took the relevant reports into account as evidence that the applicant had been caught in the act of committing an offence, without regarding the applicant ’ s remarks (see paragraph 13 above) as a separate statement on the charges (see paragraphs 23 and 25 above; see also Blaj , cited above, § 96).

37 . In any event, and most importantly, the assessment of the applicant ’ s guilt was based on his membership of the criminal group which had been involved in producing and selling forged money, and on a considerable body of evidence (see paragraphs 23 and 25 above). In such circumstances, in addition to the fact that only the search and seizure measures of 11 November 2009 had been carried out in the absence of a lawyer, in circumstances of urgency and the applicant having been caught in flagrante delicto , the Court particularly notes that the evidence obtained as a result of the contested search and seizure measures constituted only a part of the totality of evidence on which the domestic courts relied (see Blaj , cited above, § 96 ) and included confessions made by two of the applicant ’ s co-accused who had directly implicated the applicant (see paragraphs 20 , 23 and 25 above). Furthermore, various judicially authorised audio and video recordings of the meetings and telephone conversations were also relied on by the domestic courts when convicting the applicant (see paragraphs 23 and 25 above). Therefore, the evidence obtained as part of the search and seizure measures was corroborated by a considerable body of evidence, contributing to the overall fairness of the proceedings against the applicant (see Dragoş Ioan Rusu v. Romania , no. 22767/08 , § 55-56, 31 October 2017).

38 . Having examined the circumstances which surrounded the impugned search and seizure measures, the evaluation of the admissibility and reliability of the evidence concerned as part of the trial, the alleged nature and degree of the unlawfulness, and the use which was made of the material obtained through the impugned search, the Court considers that in the specific circumstances of the case, the criminal proceedings against the applicant, as a whole, were fair.

39 . In the light of the foregoing, the applicant ’ s complaint under Article 6 §§ 1 and 3 (c) is manifestly ill-founded. This part of the application must therefore be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention .

40 . The applicant complained that the search of his person and car had been implemented in breach of Article 8 of the Convention. The Government objected that the applicant had failed to raise his complaint before the domestic authorities.

41 . The Court observes that the applicant did not allege, in the context of the domestic proceedings, that the search of his person and car had infringed his rights guaranteed under Article 8 of the Convention. The Court accepts the Government ’ s preliminary objection and reiterates in this connection that Article 35 § 1 of the Convention requires that complaints intended to be brought subsequently before the Court should have been made to the appropriate domestic body, at least in substance and in compliance with the formal requirements laid down in domestic law (see, amongst many others, Aksoy v. Turkey , 18 December 1996, §§ 51-52, Reports of Judgments and Decisions 1996-VI, and Kobiashvili, cited above, § 77). Accordingly, it rejects the applicant ’ s complaint for non-exhaustion of domestic remedies, in accordance with Article 35 §§ 1 and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 9 July 2020 .

Ann e -Marie Dougin Gabriele Kucsko-Stadlmayer Acting Deputy Registrar President