Communicated on 2 November 2015

FOURTH SECTION

Application no. 57642/12 Levan KIKABIDZE against Georgia lodged on 29 August 2012

STATEMENT OF FACTS

1. The applicant, Mr Levan Kikabidze , is a Georgian national who was born in 1974 and is in prison. He is represented before the Court by Mr G. Chopliani , a lawyer practising in Tbilisi.

A. The circumstances of the case

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

3. On 7 September 2004 a prisoner, N.M., was found dead in Tbilisi no. 1 Prison. A preliminary investigation started immediately but was soon discontinued, with the finding that N.M. had killed himself.

4. In March 2011 the investigation into the circumstances of the death of N.M. was reopened. The basis for the reopening was a statement by a prisoner, V.P., who had allegedly witnessed the incident back in 2004. While in prison he expressed his willingness to cooperate on the matter with the investigation.

5. On 3 October 2011 the applicant, who was at the material time serving a prison sentence for drug offences, was questioned as a witness as part of the reopened criminal proceedings. On 11 October 2011 he was formally charged with the aggravated murder of N.M. At this stage he was provided with a lawyer under the legal aid scheme. The next day the legal-aid lawyer was given access to the evidence gathered against the applicant.

6. According to the applicant, on 22 October 2011 two private lawyers met the prosecutor in charge in order to hand over to him the authority forms signed by the applicant. They requested at the same time under Article 83 of the Criminal Code of Procedure (“the CCP”) copies of all the evidence the prosecutor had against the applicant. As no reply followed, on 3 and 4 November 2011 the lawyers lodged repeated requests. According to the case file, the applicant ’ s lawyers were provided with a copy of the case file against the applicant only in the evening of 8 November 2011.

7. On the next date, the applicant applied to the Tbilisi City Court for a postponement of the pre-trial hearing, which was due to take place on 14 November 2011. He claimed that in view of the belated access he and his lawyers had been given to the evidence for the prosecution, they had not had adequate time to prepare the defence. On 11 November 2011 they applied to the trial court again, this time challenging the admissibility of the prosecution evidence against the applicant on, inter alia, the following grounds: the applicant ’ s defence rights had been restricted on account of his belated access to evidence in the case; his right to have a lawyer of his own choice had been breached; and key prosecution witnesses had been questioned late at night under serious psychological pressure. On 21 November 2011 the applicant made yet another application to the court, for several witnesses to be questioned on his behalf. The witnesses named were mainly prisoners who had been sharing the cell with the applicant and N.M. when the latter had died.

8. The pre-trial hearing which opened on 14 November 2011 was adjourned twice, once at the request of the prosecution and once because the applicant and his co-defendants had not been brought to the court. On 22 November 2011, when deciding on the issue of admissibility of evidence, the judge, acting on a request by the prosecution, decided to reject as inadmissible the list of defence witnesses to be summoned for the trial. The judge concluded that the list had not been exchanged with the prosecution according to the procedure provided for in Article 83 § 6 of the Code of Criminal Procedure (“the CCP”) and that the circumstances triggering the application of Article 84 of the CCP were not there.

9. As to the prosecution evidence, the judge dismissed the applicant ’ s argument that their evidence should have been declared inadmissible, concluding, inter alia, that the applicant and his two lawyers had had adequate access to the evidence in the case and had hence enjoyed adequate time for the preparation of the defence.

10. At the pre-trial hearing the applicant and his two co-defendants were advised, in accordance with Article 219 of the CCP, that in view of the seriousness of the charges brought against them they had the right to a jury trial. After being informed about the relevant procedure, the applicant and his co-defendants all consented to having their case heard by a jury.

11. By a verdict of 15 December 2006 the jury, by a majority of ten to two, found the applicant guilty of the aggravated murder of N.M. and sentenced him to thirteen years and three months ’ imprisonment. The final sentence, which included the unserved part of the applicant ’ s previous sentence, was set at twenty-two years and thirteen days.

12. The applicant lodged an appeal on points of law. He maintained, inter alia, under Article 266 § 2 (b) of the CCP that the decisions of the judge concerning the admissibility of evidence were unlawful and that the principle of adversariality and equality of arms had been breached. By a decision of 29 February 2012 the Tbilisi Court of Appeal rejected his appeal as inadmissible. The court concluded the following:

“... the appellant failed to prove that the Tbilisi City Court examined the case with serious legal or procedural violations; this could not be established as a result of examining the case either.”

B. Relevant domestic law

13. The relevant provisions describing the procedure for admission of evidence, as provided in the CCP at the material time, read as follows:

Article 14. Direct and oral examination of evidence

“ 1. Evidence shall not be presented to a court (jury) unless parties have been given an equal opportunity to examine evidence directly and orally, except for the cases provided for in this Code.

2. A party has a right to request the examination of a witness and to present its own evidence at the trial. ”

Article 72. Inadmissible Evidence

“ 1. Evidence obtained in substantial violation of this Code, as well as on the basis of such evidence any other lawfully obtained evidence, if such evidence aggravates the legal status of a defendant, is inadmissible and has no legal force.

2. Evidence shall also be inadmissible if it is obtained in observance of the rules established by this Code, but there is reasonable suspicion that it has been altered, its characteristics and qualities have been substantially changed, or that the trace on it has been substantially erased.

3. A prosecutor shall bear the burden of proof for arguing the admissibility of the evidence for the prosecution and inadmissibility of the evidence for the defence.

4. The parties shall be obliged to provide the court with information on the origins of their evidence.

5. The court shall decide on the issue of inadmissibility of evidence.

6. The judgment of the court shall not be based on inadmissible evidence. ”

Article 83. Exchange of Information between the parties on potential evidence

“ 1. At any stage of criminal proceedings a request by the defence to acquaint themselves with the information the prosecution plans to present as evidence in court shall be immediately granted. The prosecution is also obliged, in cases provided for in this paragraph, to hand over to the defence any exculpatory evidence in its possession.

2. After granting the request of the defence, the prosecution is authorised to obtain from the defence information they plan to present as evidence in court.

3. After the request for the exchange of information has been made, failure to provide the other party with all the material available by that time shall result in finding this material inadmissible as evidence.

4. A report on the exchange of information between the parties as provided for in paragraphs 1 and 2 of this Article shall be drawn up; a copy of the report shall be sent to the court together with the criminal case file.

5. A court may at the request of the prosecution restrict the right of the defence to request information if the impugned information has been obtained as a result of operative-investigative actions, and only then until the pre-trial hearing has been held.

6. At the latest five days prior to the pre-trial hearing the parties must provide each other and the court with all the information at their disposal which they plan to present as evidence at the trial.

7. The parties shall exchange with each other at their own expense information in the form of copies of documents, or, if there are other kinds of material, certificates. They are allowed to inspect material evidence, provided that there is no risk of damaging or destroying the evidence or any marks on it.

8. Prior to the first appearance of the defendant in court the parties are obliged to allow each other to acquaint themselves with the information and evidence which they plan to present at trial, as well as to hand over copies of written pieces of evidence. ”

84. The exceptional right of the defence

“ Failure on the part of the defence to exchange evidence which has particular importance for the exercise of the defence shall not lead to the inadmissibility of such evidence in court when examining the merits of the case. In such a case the presiding judge shall order the defence to pay a fine and bear the procedural costs. The amount of the fine shall be of a preventive nature, shall be proportionate to the damage caused, and shall correspond to the financial situation of the party concerned. The order shall be subject to a single appeal to the judge presiding over the decision-making court; that judge is authorised to examine the appeal without holding an oral hearing. ”

Article 219. Pre-trial conference

“ ... 3. If a defendant is charged with an offence which attracts jury trial, the judge is obliged to explain to the defendant the provisions concerning the jury trial and his or her related rights. Then, the judge shall inquire whether the parties agree to have the case heard by jurors. If the parties do not jointly reject jury trial, the judge shall appoint a date for the selection of jurors.

4. The pre-trial conference judge

a) examines applications of the parties on the admissibility of evidence ...

e) decides on the issue of forwarding the case for examination on merits ... ”

14. As regards the avenues of appeal against a jury verdict, the CCP states the following:

266. Appeal against a decision taken by a jury trial

“ 1. A not guilty verdict in a jury trial is final, and is not subject to appeal.

2. A party may appeal once on points of law to the court of appeal against a verdict of guilty if:

a) the presiding judge made an unlawful decision about the admissibility of evidence;

b) the presiding judge made an unlawful decision when examining an application of a party and that decision substantially violated the principle of adversariality ;

c) the presiding judge made a substantial error when instructing the jury before its retirement to the deliberation room;

d) the presiding judge failed to base his or her decision either in part or in full on the verdict reached by the jury;

e) the presiding judge based his or her decision on a verdict which was adopted in violation of the requirements provided for in the current Code.

f) the sentence is unlawful or/and manifestly unsubstantiated;

g) the presiding judge did not follow the recommendation of the jury concerning mitigation or aggravation of the sentence.

3. If an appeal on points of law lodged on the basis of paragraph 2 (a-e) is allowed, the case shall be transferred to a new panel of jurors for a new trial ... ”

COMPLAINTS

The applicant complains under Article 6 §§ 1 and 3 (b) and (d) of the Convention that in view of his belated access to the evidence for the prosecution he did not have sufficient time to prepare his defence; that the presiding judge took unlawful decisions regarding the admissibility of evidence, and that the refusal of the appeal court to grant him leave to appeal on points of law was unsubstantiated.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair trial in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (b) and (d) of the Convention? In particular,

( i ) Did the applicant have adequate time and facilities to prepare his defence , as required by Article 6 § 3 (b) of the Convention? In this connection, was he provided with immediate access to the information the prosecution possessed, in accordance with Article 83 § 1 of the Criminal Code of Procedure?

(ii) Was the principle of equality of arms respected by the Tbilisi City Court when deciding on the admissibility of evidence? In this connection, was the refusal of the Tbilisi City Court to admit in evidence the list of witnesses to be called on behalf of the defence in accordance with the applicant ’ s rights guaranteed under Article 6 § 3 (d) of the Convention? Which specific circumstances prevented the judge from applying Article 84 of the Code of Criminal Procedure? What was the judicial practice at the material time concerning the application of exceptional right of defence under the then existing Article 84 of the Code of Criminal Procedure?

(iii) Was the reasoning of the Tbilisi Court of Appeal to refuse the applicant leave to appeal on points of law sufficient and adequate for the purposes of assuring the applicant ’ s respect for his right to a fair trial?