FIFTH SECTION

CASE OF MEGRELISHVILI v. GEORGIA

( Application no. 30364/09 )

JUDGMENT

STRASBOURG

7 May 2020

This judgment is final but it may be subject to editorial revision.

In the case of Megrelishvili v. Georgia ,

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

Ganna Yudkivska, President, Yonko Grozev, Lado Chanturia, judges, and Victor Soloveytchik , Deputy Section Registrar ,

Having regard to:

the application against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Merab Megrelishvili (“the applicant”), on 18 May 2009;

Noting that on 21 January 2016 the Government were given notice of the application;

Noting the parties ’ observations;

Having deliberated in private on 24 March 2020 ,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1 . The case concerns the alleged unfairness of the criminal proceedings conducted against the applicant on account of the manner in which the principal evidence was obtained and used against him.

THE FACTS

2 . The applicant was born in 1961 and is currently detained in Tbilisi. He was represented by a group of lawyers from the Georgian Young Lawyers ’ Association (GYLA) practising in Tbilisi, and by three British lawyers from the European Human Rights Advocacy Centre (EHRAC) based in London.

3 . The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice.

4 . On 3 July 2007 the deputy head of the anti-drugs unit at the Special Operations Department of the Ministry of the Interior (hereinafter “the SOD”) prepared a report stating that they had received operational information that someone identified as G.V. living at a certain address had been regularly purchasing drugs from the applicant. In the same report it was noted that early in the morning of 3 July 2007 G.V. would be at home and would have drugs on him, while the applicant would be driving a vehicle along the left riverbank and would also have drugs on him. Criminal proceedings were immediately initiated against the applicant and unidentified persons under Article 260 § 1 of the Criminal Code for the unlawful purchase, storage and sale of drugs.

5 . On the same date, while driving his car in Tbilisi, the applicant was stopped by a team of officers of the SOD on suspicion of possession of drugs. After he stepped out of the car he was handcuffed and searched. According to the relevant police report, the search was conducted in urgent circumstances on the basis of a decision taken by the investigator in charge, R.M., with the participation of the latter and two officers, G.J. and G.T., between 10.40 and 10.50 a.m. The applicant was refused, with reference to Article 102 § 4 of the Criminal Code of Procedure (hereinafter “the CCP”) (see as cited in paragraph 23 below), his right to invite attesting witnesses to attend the search. The report further stated that:

“... there were sufficient grounds to suspect that M. Megrelishvili was in possession of drugs and that he would therefore attempt to hide or destroy [the substance].”

6 . Among the items recovered in the search were two pills with a Subutex imprint on them, found in the right back pocket of the applicant ’ s jeans. Another two and a half pills were found in his right front pocket. According to a note in the search report, when the search was completed and “the risks ceased to exist”, the applicant was allowed to invite attesting witnesses, but he refused. He also refused to sign the body search report, maintaining that the pills found did not belong to him.

7 . At 11.00 a.m. the applicant was formally arrested on suspicion of drug offences.

8 . At 11.05 a.m. the SOD officers conducted a search of the applicant ’ s car. More Subutex pills were found hidden in the front seat of the vehicle. According to the relevant report, the search of the vehicle was conducted by the same investigator with the assistance of the same two officers; the applicant was not allowed to invite attesting witnesses because of the urgent circumstances, in accordance with Article 102 § 4 of the CCP. It was noted, as in the body search report, that there were sufficient grounds to suspect that the applicant would attempt to destroy or hide the narcotic substance. The applicant refused to sign the report on the search of his vehicle, maintaining that the drugs did not belong to him.

9 . On the same day, in addition to the aforementioned arrest and searches, another group of SOD officers was dispatched to conduct a search of the applicant ’ s apartment and garage. The search of the apartment was conducted between 11.15 a.m. and 1.30 p.m. and the search of the garage between 2.25 and 2.55 p.m. During the search of the apartment, which was conducted in the presence of the applicant ’ s wife, two children and mother ‑ in-law, more drugs were found on the balcony. The wife ’ s request to invite attesting witnesses to attend the search was refused because of the existence of urgent circumstances. It was noted in the relevant police report, with reference to Article 102 § 4 of the CCP, that there was a risk of the evidence being concealed or destroyed. The search of the garage, during which drugs were also recovered, was likewise conducted in the absence of attesting witnesses.

10 . A total of sixty-two pills, twenty-four split pills and powder were found containing 0.5562 grams of the narcotic substance buprenorphine. On the same date the applicant underwent an examination, which established that he had been under the influence of drugs.

11 . Meanwhile, the police also arrested G.V., the person mentioned in the police operational information. Drugs were found in his apartment. He admitted using drugs, but denied purchasing any from the applicant.

12 . According to the investigation file, on 4 July 2007 the applicant was charged with aggravated drug offences under Article 260 § 3 (a) of the Criminal Code. On the same date a supervising prosecutor applied to the Tbilisi District Court to have the four searches of 3 July 2007, which he claimed had been urgent, validated. The requests contained the places the searches had been conducted, the substances found and the offence the applicant had been charged with. All four searches, according to the requests, had been conducted in urgent circumstances. In accordance with Articles 290, 315, 217, 322 and 323 of the CCP the prosecutor asked the court to validate the searches. As it appears, the requests, as submitted to the court, included neither a copy of the report on operational information in respect of the applicant (see paragraph 4 above) nor the decisions ordering the searches in urgent circumstances.

13 . On the same date the court examined the four requests in writing, without allowing the applicant to submit observations, and declared that the searches had been lawful. It concluded that it could be seen from the prosecution ’ s requests that the searches had been conducted because of an urgent need, and had complied with the rules of criminal procedure. The decisions, written in a summary manner, did not refer to any factual circumstances and did not provide any reasons. They provided for a seventy-two hour appeal period. It appears from the case file that the applicant did not avail himself of this opportunity.

14 . On 4 August 2007 the investigator in charge questioned the applicant ’ s mother-in-law and wife. According to the latter ’ s statement, the SOD officers waited for her to leave the apartment before entering, and were there with the two children for about half an hour before her return. They dismissed her request to call neighbours to attend the search. Four officers conducted the search while a few others were in the apartment, moving freely and going in and out. The door of the garage was already open before the search started. Both searches were video recorded by one of the officers. The applicant ’ s mother-in-law, who had come to the apartment while the search was underway, confirmed that there had been at least four officers in the apartment during the search, with others going in and out.

15 . On 6 August 2007 the applicant ’ s defence counsel wrote to R.M., the investigator in charge of the case. He noted, referring to the statements of the applicant ’ s wife and mother-in-law, that the searches of the apartment and garage had been conducted by six officers, not three, as indicated in the relevant search reports, and that the applicant ’ s wife ’ s request to call attesting witnesses had been arbitrarily refused. He also claimed that the searches had been video recorded and requested access to the relevant recordings. By a decision of 9 August 2007 the investigator dismissed the defence ’ s request, stating that no video recording of the relevant searches had been made. He also stated that there was no proof that more than three officers had participated in the searches and that the statements of the applicant ’ s family members were, in any event, unreliable.

16 . On 31 March 2008 the Tbilisi City Court convicted the applicant of unlawful possession of a large quantity of drugs, an offence under Article 260 § 3 of the Criminal Code. The first-instance judge based his decision on the police reports on the applicant ’ s arrest and the four searches, as well as on the evidence of the five SOD officers who conducted them. The applicant was sentenced to twelve years ’ imprisonment. The court dropped the charges regarding the sale of drugs for lack of evidence.

17 . During the proceedings the applicant repeatedly requested that the evidence be excluded, asserting that it had been illegally obtained. In particular, he raised the issue of the absence of any independent witnesses during the searches when the evidence against him had been collected. He submitted in this connection that, as he had been immediately handcuffed after being detained by the SOD officers, he could not have interfered with the evidence. With reference to his wife ’ s statement, he maintained that the officers had entered his apartment in her absence and stayed there for about half an hour with only the children. The first-instance court dismissed the applicant ’ s allegations. While noting that the criminal procedural law allowed searches to be conducted in the absence of attesting witnesses, the first-instance judge stated that the statements of the applicant and his family members concerning the circumstances of the searches were unreliable. He also referred to the in-court testimony of the SOD officers, who claimed that there had been urgent circumstances relieving them of the requirement to call attesting witnesses to attend the searches. The judge also noted that, in any event, the searches had been validated and the applicant had failed to appeal against the relevant court decisions.

18 . The applicant appealed against his conviction. He maintained that the drugs allegedly found on his person, in his car, as well as in his apartment and garage had been planted during the respective searches. He complained that his right to invite attesting witnesses had been arbitrarily restricted, that there had been no urgent circumstances justifying the need for searches to be conducted in the absence of such witnesses, and that the first-instance court had failed to adequately examine his allegations by, inter alia, disregarding the evidence of his family members.

19 . The appeal proceedings began with the applicant ’ s older daughter giving evidence. According to her statement, on 3 April 2007 she and her little sister were alone in the apartment when somebody knocked on the door, claiming to be from a television cable company. When she opened the door, five to six people entered the apartment and put on SOD uniforms. They did not start the search until after their mother had returned home after about fifteen minutes. The applicant ’ s daughter confirmed that her mother ’ s request to call witnesses had been refused. She also said that the officers had organised themselves into three groups while conducting the search, but that there had been others entering and leaving the apartment, including the officer who had allegedly found drugs on the balcony. Like her mother, she stated that the search of the apartment had been video recorded.

20 . On 16 July 2008 the Tbilisi Court of Appeal upheld the applicant ’ s conviction. Referring to the statements of the SOD officers, the court held that they had had no interest in planting drugs on the applicant. It further concluded in a summary manner that there had been no procedural violations during the searches and that the evidence given by the applicant ’ s family members was subjective and could not be relied on.

21 . The applicant filed an appeal on points of law. Along with other arguments, he reiterated that the searches conducted in the absence of independent witnesses had been unlawful, that while handcuffed and under the control of the SOD officers he could not have hidden or otherwise destroyed any evidence, and that as the SOD officers concerned had had an interest in the outcome of the case, their evidence could not be relied on per se .

22 . On 19 November 2008 the Supreme Court of Georgia rejected the applicant ’ s appeal on points of law as inadmissible.

RELEVANT LEGAL FRAMEWORK

Article 13. Inviolability of private life

“1. No one has the right to arbitrarily and unlawfully interfere with the private life of others. The inviolability of the home or other property ... is guaranteed by law.

2. A search [and/or] seizure ... is only permitted by an order of a judge or court. In cases of urgent necessity, as provided in law ... a search or seizure may be carried out in the absence of a court order, although its lawfulness and reasonableness shall be assessed by a judge within [twenty-four] hours of receiving the relevant documents. At the same time, the judge shall decide on the admissibility of the evidence obtained as a result of the procedural measure in question.”

Article 102. Attesting witness

“1. An attesting witness shall be called to confirm the conduct, progress and results of a search, seizure or inspection of a crime scene, as well in other cases directly provided for by this Code. Before the above-mentioned investigative measure is conducted, the investigator or prosecutor shall inform the persons identified in paragraphs 2 and 3 of the current provision of their right to call an attesting witness, including the restriction of this right set out in paragraph 2.

2. A suspect, accused or charged person shall be granted a reasonable period of time, at least one hour, to invite an attesting witness, should he or she decide to make the relevant request before the investigative measure indicated in paragraph 1 takes place. Those who, by law, have the right to abstain from giving evidence against a suspect, accused or charged person, may not be called as attesting witnesses.

3. During a search and/or seizure a person who is not a suspect, accused or charged person, but might be concerned by the relevant procedural measure, shall have the right to invite an attesting witness in accordance with the rules of this Article.

4. The investigative measure referred to in paragraph 1 of this Article may only be carried out without attesting witnesses in urgent circumstances, when there is a real risk of ... the evidence being damaged, destroyed or concealed. As soon as the risk ceases to exist, a suspect and accused shall enjoy the right provided for in paragraphs 1 and 2 of this Article ...”

Article 111. Inadmissible evidence

“ 1. Evidence shall be considered inadmissible if it is obtained

...

(c) in violation of the law, using force, threat, deception, blackmail, humiliation or other illegal methods;

(d) from a person who has violated the law or who cannot indicate the source of the information concerned, or where, when or how he obtained it ...”

Article 293. Judicial authorisation of an investigative measure

“...

3. The court ’ s decision to validate the results of an investigative measure may be appealed against in the Court of Appeal within [seventy-two] hours of the decision being issued...”

THE LAW

24 . The applicant complained that the drugs had been planted by the officers of the SOD and that the searches, in any event, had been unlawful as he and his family members had been arbitrarily refused the right to invite attesting witnesses. He further claimed that the domestic courts had failed to give due consideration to the defence ’ s argument challenging the reliability and use of the evidence in question, which had therefore rendered his trial unfair. The applicant relied on Article 6 § 1 of the Convention, the relevant part of which reads as follows:

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

25 . The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible.

(a) The applicant

26 . The applicant stated that his trial had been unfair for three main reasons. His and his wife ’ s right to call attesting witnesses during the searches had been arbitrarily denied, casting doubt on the reliability and accuracy of the incriminating evidence obtained as a result. Moreover, the domestic courts had failed to give due consideration to the above arguments, depriving him of the possibility to challenge in a meaningful manner the use of the evidence against him. Lastly, there had been no other corroborating evidence against him.

27 . Starting with the last argument, the applicant emphasised that his conviction had been based on the physical evidence obtained as a result of the searches and on the statements of the officers who had participated. There had been no other corroborating evidence of his guilt. In connection with the actual circumstances of the searches of his person and vehicle, the applicant submitted that no one disputed the fact that he had been arrested and handcuffed before the two searches had even been conducted. He had therefore been under the control of the relevant authorities at the relevant time and could not see how he could have intervened with the conduct of the investigative measures by, for example, concealing or destructing the evidence while in handcuffs. He claimed in this connection that the length of time between his arrest and the searches strengthened his argument about the planting of evidence (he referred to Layijov v. Azerbaijan , no. 22062/07, § 69, 10 April 2014, and Sakit Zahidov v. Azerbaijan , no. 51164/07 , § 53, 12 November 2015). Along the same line of reasoning, the applicant alleged that the searches of his apartment and garage had not been conducted in urgent circumstances and that some time had passed between the officers entering the apartment and the search being held.

28 . As regards procedural safeguards, the applicant noted that the only safeguard he had had at his disposal was the attendance of attesting witnesses, but he had been arbitrarily refused that right. He claimed that the police had failed to identify in the relevant police reports specific urgent circumstances to justify the searches being conducted in the absence of attesting witnesses. As to the judicial scrutiny of the relevant investigative measures, the applicant claimed that his argument about the unlawfulness of the searches had not been duly considered by the national courts. He emphasised in this connection that his argument about the officers planting the drugs had been simply dismissed by the courts as defensive in nature, without any adequate consideration.

(b) The Government

29 . The Government submitted that the criminal proceedings conducted against the applicant as a whole had been fair. The searches, in their view, had been conducted in urgent circumstances, as there had been operational information indicating that he was in possession of drugs. They further claimed that given the small size of the drugs, there had been a real risk of the applicant swallowing, throwing away or otherwise getting rid of the substance. As to the attesting witnesses, the Government submitted that if allowed, the applicant would have had one hour (see Article 102 § 2 of the Code of Criminal Procedure, cited in paragraph 23 above) to secure their attendance, which implied that he could have walked freely within that one hour, out of the control of the police and destroy the evidence. The same argument applied to the searches conducted in the applicant ’ s apartment and garage, where there had been a risk of the family members disposing of the evidence.

30 . The Government stressed that the applicant had failed to appeal against the decisions of the domestic courts authorising the searches retrospectively and validating the results thereof. As to the actual trial, the domestic courts had thoroughly examined his allegations. All the relevant witnesses, at the request of the applicant, had given evidence, including the investigator in charge of the pre-trial investigation. The prosecution witnesses had also given evidence, including all the officers who had conducted the searches. The fact that some of the charges against the applicant had been dropped illustrated that the domestic courts had acted with due diligence and in good faith.

(a) General principles

31 . The relevant general principles were most recently summarised by the Court in the case of Kobiashvili v. Georgia (no. 36416/06, §§ 56-58, 14 March 2019).

(b) Application of the general principles in the current case

34 . Along the same line of reasoning, the applicant ’ s wife maintained throughout the pre-trial and trial stages that the SOD officers had waited until she left before entering their apartment, where only her children had been at the material time; that they had subsequently stayed in the apartment with the two children for about half an hour until her return; and that upon her return her request for neighbours to attend the searches had been refused without any grounds. None of the above allegations were duly examined, with the domestic courts simply dismissing them as subjective (see paragraphs 17 and 20 above) a nd hence failing to establish the exact circumstances of the searches.

36 . As to the criminal trial, the applicant asked the first-instance court to dismiss the reports on the four searches as unlawful (see paragraph 17 above), but his request was dismissed with the court concluding, among others, that the searches, in any event, had been already validated (ibid.). Such restrictive interpretation of that court ’ s jurisdiction is at odds with Article 111 of the CCP (see paragraph 23 above) and also with the Government ’ s position before the Court (see paragraph 35 above). In the course of the appeal proceedings, the applicant again requested that the court exclude the search reports as inadmissible evidence because they contained a number of procedural deficiencies (see paragraph 18 above). In reply, the appellate court simply held, without giving any reasons, that there had been no procedural violations during the searches and the evidence was therefore admissible ( see paragraph 20 above). It should b e stressed that the operational information that triggered the conduct of the searches, as was already noted above, was missing from the case file available to the trial, appellate and cassation courts. In such circumstances, it is doubtful that the courts could have assessed in any meaningful way the degree of reasonable suspicion that the authorities had against the applicant before searching him, their prior knowledge of the type of drugs that they were looking for, or the urgency and necessity of carrying out a search without a prior judicial warrant (see in this connection, Kobiashvili, cited above, § 68).

37 . In view of all the above mentioned, the Court concludes that the circumstances in which the searches were conducted cast doubt on the reliability of the evidence obtained and that the applicant was not given an effective opportunity to challenge these circumstances and oppose the use of the evidence obtained as a result at domestic level.

38 . What remains to be seen is whether the physical evidence obtained as a result of the searches was corroborated by evidence from other sources. The Court considers that no other evidence in the case file, in the absence of the reports on the searches, was sufficiently strong on its own. As regards the SOD officers, it notes that as they were at the origin of the proceedings against the applicant and belonged to the authority which initiated them, they had an interest in the outcome of the prosecution. Their interest was particularly obvious in view of the applicant ’ s allegation that they had planted the drugs. Nonetheless, their testimony was automatically taken as objective in contrast to, for example, that of the applicants ’ family members, which was dismissed as subjective and not credible (see paragraphs 17 and 20 above).

40 . Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

41 . The applicant claimed 3,000 euros (EUR) in respect of non ‑ pecuniary damage.

42 . The Government submitted that the amount claimed was exaggerated.

43 . The Court, by virtue of the non ultra petita principle, awards the applicant the actual amount claimed.

44 . The applicant also claimed 975 pounds sterling (GBP) for the legal costs incurred before the Court and GBP 140.92 for various administrative expenses.

45 . The Government submitted as regards legal costs that GBP 750 of the amount claimed related to a lawyer from EHRAC whose power of authority was not in the case file. They therefore argued that this part of the claim should be disregarded by the Court. As to the various administrative expenses, the Government claimed that the documents submitted by the applicant did not show that the expenses had been incurred specifically in relation to his case.

46 . The Court observes that the applicant did not submit documents showing that he had paid or was under a legal obligation to pay the fees charged by the British representatives or the expenses incurred by them. In the absence of such documents, the Court finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-373, 28 November 2017). It follows that the claim must be rejected.

47 . The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

(a) that the respondent State is to pay the applicant, within three months, EUR 3,000 (three thousand euros), plus any tax that may be chargeable in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement;

(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

Done in English, and notified in writing on 7 May 2020 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Victor Soloveytchik Ganna Yudkivska Deputy Registrar President