Information Note on the Court’s case-law 231

July 2019

Svanidze v. Georgia - 37809/08

Judgment 25.7.2019 [Section V]

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Conviction by substitute judge based on transcripts of oral evidence without hearing witnesses in person: violation

Facts – The applicant, the head of a hospital’s gynaecological department, was convicted of failing to provide a patient with a life-threatening condition with urgent medical treatment for no good reason, which had caused the patient’s death. Following the hearing of the evidence at the applicant’s trial, a substitute judge was assigned to her case. The substitute judge dismissed the applicant’s lawyer’s request to restart the examination of the case, noting that the case material was sufficient for him to continue. The applicant’s conviction was upheld on appeal without any direct rehearing of evidence.

Law – Article 6 § 1: The s ubstitute judge had not participated in the oral examination of the evidence at all. He had not heard any of the seventeen witnesses, including the two experts and the applicant’s co-defendants, and he had convicted the applicant on the basis of the court transcripts.

Throughout her trial the applicant had consistently challenged very specific factual circumstances as presented by the prosecution. In order to establish those facts, which had been central to the decision to convict the applicant, the substit ute judge had relied on the transcripts of witness statements. Given the complex factual background of the case and the fact that the substitute judge had examined the case as a single judge, his inability to make any direct assessment of the statements an d demeanour of the persons concerned had deprived him of the opportunity to form his own opinion as to their credibility, and had diminished his ability to have an appropriate understanding of the evidence and arguments so that the applicant’s right to a f air trial could be respected.

The applicant had explicitly voiced her grievance in that respect in her appeal lodged with the Court of Appeal. However, without going into the substance of the complaint, that court had concluded that, since he had been ass igned to the case as a substitute judge, he had been under no obligation to rehear the evidence. The Supreme Court had reached an identical conclusion.

Following the involvement of the substitute judge, the defence had requested that the evidence be re-examined. However, the substitute judge had rejected that application. Furthermore, the applicant had requested the examination of two additional witnesses , but that application had also been rejected. That application had been equally dismissed by the appeal court, which had simply concluded that the first instance court had already dealt with it. In such circumstances, the applicant had done everything tha t could reasonably and realistically have been expected of her in respect of the matter in issue.

The availability of transcripts of witness statements could not compensate for the lack of immediacy. The higher courts had upheld the first instance court’s judgment without directly hearing any of the evidence, although they had been entitled to do so. The first instance judge who had convicted the applicant had acted in disregard of the principle of immediacy, and no appropriate measures had compensated for that deficiency.

Conclusion : violation (unanimously).

Article 41: EUR 3,500 in respect of non-pecuniary damage; claim for pecuniary damage dismissed.

(See also Cerovšek and Božičnik v. Slovenia , 68939/12 and 68949/12, 7 March 2017, Information Note 205 ; and Cutean v. Romania , 53150/12 , 2 December 2014)

© Council of Europe/European Court of Human Rights This summary by t he Registry does not bind the Court.

Click here for the Case-Law Information Notes