Communicated on 7 June 2018

FIFTH SECTION

Application no. 15351/09 Zaza AMIRIDZE against Georgia lodged on 13 March 2009

STATEMENT OF FACTS

The applicant, Mr Zaza Amiridze , is a Georgian national who was born in 1977 and lives in Tbilisi. He was represented before the Court by Ms L. Mukhashavria and Mr G. Mariamidze , lawyers practising in Georgia.

A. The circumstances of the case

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

1. Criminal proceedings against the applicant

On 22 May 2007 the Gori Regional Court found the applicant – a bailiff of the same court at the material time – guilty, together with his co ‑ accused, of human trafficking and sentenced him to twelve years ’ imprisonment. A ban of three years on his holding a public office or carrying out professional activities was imposed as an additional sentence in respect of the applicant. According to the first-instance court, the applicant had used physical force and threats thereof to compel the victim, Ms J.I., a Kyrgyzstani national, to engage in sexual activities with men in exchange for money that would subsequently be split between the co-accused.

Two witnesses, also Kyrgyzstani nationals, who lived in the same house and who had initially confirmed the victim ’ s version of the events, changed their statements during the court hearing and alleged police pressure at the investigation stage to implicate the applicant. They then asserted that instead of being forced, the victim had actively sought men for sexual encounters in exchange for money. The court accepted the police officers ’ statements that no pressure had been exerted upon the witnesses.

The applicant appealed, arguing that he had not subjected the victim to conditions qualifying as human trafficking, and that witness statements of the two Kyrgyzstani nationals, who had stated that the victim had voluntarily sought sexual encounters in exchange for money had been arbitrarily disregarded. He maintained that the main element of the crime of human trafficking – the use of any form of coercion to compel the victim to engage in sexual activities – had not been demonstrated.

On 29 January 2008 the Tbilisi Court of Appeal upheld the applicant ’ s conviction. It noted that the alleged pressure to implicate the applicant cited by the two witnesses of Kyrgyzstani nationality as reasons for giving their initial statements had not been confirmed by any of the police officers.

On 15 September 2008 the Supreme Court of Georgia dismissed as inadmissible an appeal on points of law lodged by the applicant. Quoting the relevant provision of the Criminal Procedure Code, the court held that “the case [was] not important for the development of the law and coherent judicial practice, the [contested] judgment [did] not differ from the Supreme Court ’ s existing practice in such matters, and the appellate court [had] not committed any major procedural flaws during its examination which could have significantly affected its outcome.”

2. The application to the Court

On 13 January 2009 the applicant and his lawyers started preparing the application to the Court. The applicant met his representatives on 13 January, 6 February, and 4 March 2009. All three meetings were held in the meeting room of Tbilisi Prison No. 1 (“the meeting room”).

The meeting room measured about 20 square metres and was divided into four parts by thin boards of approximately 2 metres in height. Each partition was equipped with a door but had no cover or sound insulation. The largest part was occupied by the representative of the prison administration, while the remaining three sections of approximately 3 square metres each were designated for the use by prisoners.

The door was kept open during meetings between the applicant and his representatives at the request of the representative of the prison administration. The latter allegedly requested the applicant to sit onto the right side of the table in order that the representative could observe him from a distance of 2 metres. The meeting rooms were also equipped with video cameras.

On 16 February 2009 one of the applicant ’ s representatives lodged an application with the head of the Prisons Department, asking him to explain the legal basis for the way in which the meeting room in the prison had been arranged and how long it would take to improve those arrangements, which rendered the applicant ’ s right to defence difficult to exercise. A similar request was addressed to the Minister of Corrections and Legal Assistance on 19 February 2009. No response was received from either of the authorities.

On 25 February 2009 one of the applicant ’ s representatives was refused a meeting with the applicant by the prison authorities without being given any reason. The applicant ’ s representative wrote to the prison director on the same day, requesting an explanation for the refusal and enquiring into its legal grounds. He did not receive a response.

On 4 March 2009 the applicant met with his representative. The latter provided the applicant with the application form and case material, which were confiscated from the applicant immediately after the representative had left the prison. On 9 March 2009 the applicant ’ s representative informed the head of the Prisons Department, the director of Tbilisi Prison No. 1, and the Minister of Corrections and Legal Assistance of the matter. No response was received.

The application and its supporting documentation were submitted to the Court on 13 March 2009.

B. Relevant domestic law

The Criminal Code (1999), as it was worded at the material time, defined the crime of human trafficking as follows:

Article 143(1): Human trafficking

“1. The purchase or sale of human beings, or any unlawful transactions in relation to them, as well as the recruitment, carriage, concealment, hiring, transportation, handing-over, harbouring or receiving of human beings carried out by means of threats, the use of force or other forms of coercion, abduction, blackmail, fraud, deception, by abuse of a position of vulnerability or power or by means of giving or receiving payment or benefits to achieve the consent of one person [to being under the] control [of] another person, for the purpose of exploitation shall be punished by imprisonment for a term of seven to twelve years, with deprivation of the right to hold an official position or to carry out a particular activity for one year.

2. The same action committed:

a) knowingly against a pregnant woman;

b) knowingly against a helpless person or a person who financially or otherwise depends on the offender;

c) by abusing an official position;

shall be punished by imprisonment for a term of nine to twelve years, with deprivation of the right to hold an official position or to carry out a particular activity for two years.

3. The same action committed:

a) repeatedly;

b) against two or more persons;

c) by taking the victim abroad;

d) using violence dangerous to life or health (or the threat thereof);

shall be punished by imprisonment for a term of twelve to fifteen years, with deprivation of the right to hold an official position or to carry out a particular activity for three years. ...

NB:

1. For the purposes of the present [Article] and Article 143(2), exploitation is [considered to mean] the use of human beings for their involvement in forced labour or services, criminal or other antisocial activities or prostitution, their sexual exploitation or the provision of other types of services, and placing them in situations similar to slavery or modern-day forms of slavery, as well as forcing the removal, transplantation or other use of an organ, part of an organ or tissue of a human body. Subjecting a human being to modern-day slavery shall mean the confiscation of his or her personal identification documents; [imposing] a limitation on freedom of movement; a prohibition on the maintenance of contacts with family (including written and telephone communication); cultural isolation; keeping a person in degrading conditions; or forcing the person to perform work without payment or with inadequate payment. A person ’ s consent to his or her premeditated exploitation is irrelevant [for the purposes of the present provision]. ...”

COMPLAINTS

The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that the domestic courts convicting him of human trafficking failed to consider witness statements given in his favour, and to provide adequate reasons to their decisions.

He further complains under Article 6 § 3 (c) of the Convention that the conditions in the meeting room of Tbilisi Prison No. 1, the authorities ’ refusal to allow a meeting with his representative on one occasion, and the confiscation of the application materials had hindered his right of application to the 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 of the Convention? In particular, was the applicant ’ s argument about the absence of the element of coercion as an indispensable element of the crime he was charged with adequately addressed by the domestic courts? Were the proceedings as a whole, including the way in which the evidence was taken and used in the proceedings, fair?

2. Has there been any hindrance by the State in the present case with the effective exercise of the applicant ’ s right of application, ensured by Article 34 of the Convention (see Cebotari v. Moldova , no. 35615/06, §§ 56 ‑ 68, 13 November 2007) ?