Communicated on 21 October 2015

FOURTH SECTION

Application no. 15269/13 Daviti RUSISHVILI against Georgia lodged on 15 February 2013

STATEMENT OF FACTS

1. The applicant, Mr Davit Rusishvili, is a Georgian national who was born in 1992 and is in prison. He is represented before the Court by Mr G. Nikolaishvili, 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.

1. The killing of Z.T. and the arrest of the applicant

3. On 17 October 2011 at around 3 p.m. Z.T. was shot dead in the city centre of Tbilisi. According to the video recordings extracted from surveillance cameras on several shops in the immediate vicinity of the crime scene, at least three individuals were involved in the shooting. The applicant was arrested at his home by police the next day. A subsequent search of the premises revealed three bullets in his apartment. At around 8 p.m. the applicant was taken to a police station, where, according to him, he was subjected to psychological pressure with the purpose of extracting a confession from him and naming his alleged accomplices.

4. The evidence in the case file indicates that the applicant, whilst not being allowed to see his lawyer until 10 a.m. the next day, was provided with another lawyer, invited by an investigator. With the lawyer the applicant was taken to the crime scene, where an investigative exercise was conducted and a video was recorded depicting his confession. This video was subsequently shown on TV.

The lawyer who had been called up by the investigator was subsequently subjected to a disciplinary measure by the decision of the ethics commission of the Georgian Bar Association for the failure to perform her duties in a professional manner and in the interests of the applicant.

5. The applicant was formally charged with aggravated murder and unlawful purchase and possession of firearms, offences under Articles 109 §§ 1 (g) and 2 (e) and Article 236 §§ 1 and 2 of the Criminal Code of Georgia. It was established during the investigation that the murder of Z. T. had been set up by I.G. in retaliation for the death of his son. The applicant was remanded in custody.

2. The pre-trial conference

6. On 22 May 2012 after the case file was forwarded to the Tbilisi City Court, a pre-trial conference was held with the participation of the parties. When deciding on the issue of admissibility of evidence, the judge, acting on a request by the prosecution, decided to reject as inadmissible, inter alia , the following pieces of evidence introduced by the defence: the list of defence witnesses to be summoned for the trial. The judge concluded in this respect, despite the defence arguing to the contrary, 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”); two expert opinions according to which none of the suspected perpetrators of the murder caught up on the video recordings could have been identified as the applicant. The judge concluded that in the absence of the experts themselves (who were on the list of the witnesses not admitted for the questioning in court), these reports had no evidentiary value. The judge also noted that the reports had been drawn up in violation of the procedure provided for in the CCP and were unreliable.

7. The applicant ’ s lawyers objected. They maintained that the list of defence witnesses had been included in the defence file which had been duly exchanged with the prosecution. In this connection, they requested that the investigator and the prosecutor in charge be questioned. Their request was dismissed.

8. At the pre-trial conference the applicant was advised, in accordance with Article 219 of the CCP, that in view of the seriousness of the charges brought against him, he had a right to a jury trial. After being informed about the relevant procedure, the applicant consented to having his case heard by a jury.

3. The jury trial and subsequent proceedings

9. The jury trial started on 4 June 2011 and continued until 14 June 2011. By a verdict of 14 June 2011 the jurors, by a majority of nine to three, found the applicant guilty of aggravated murder, an offence under Articl e 109 §§ 1 (g) and 2 (e) of the CCP, and of unlawful carriage of firearms, an offence under Article 236 § 2 of the CCP. The applicant was found not guilty on two charges: (1) unlawful purchase and possession of firearms (in connection with the three bullets found in his apartment) and (2) unlawful purchase and possession of firearms (as regards the gun found at the crime scene).

10. As it appears from the case file, during the trial the defence submitted a statement by I.G., who at that time was in detention in Kyiv, Ukraine. In his statement he claimed that the applicant had not been involved in the murder of Z.T. The defence requested the admission of his written statement into evidence and also the examination of I.G. via video link. The judge dismissed both requests.

11. Another request by the defence which was refused by the presiding judge concerned one of the expert conclusions of the video recordings of the crime scene. In particular, the relevant expert requested the court under Article 55 of the CCP to admit his report as amicus curiae. The judge, however, concluded that the purpose of this report was not the provision of objective information, but rather support for the defence, and rejected it.

12. On 15 June 2012 the jurors, after deliberating in private, came up with a recommendation by nine votes to three to impose a harsher sentence on the applicant. The judge, acting on the jurors ’ recommendation, sentenced the applicant to eighteen years and two days ’ imprisonment. The final sentence, which included the unserved part of the applicant ’ s previous conditional sentence, was set at twenty-one years.

13. The applicant lodged an appeal on points of law, complaining in particular that the decisions of the judge concerning the admissibility of evidence were unlawful. By a decision of 31 August 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.”

14. The applicant then lodged a complaint with the Supreme Court of Georgia, denouncing, inter alia , the fact that his appeal with the Tbilisi Court of Appeal had been examined in a written procedure in his absence, that some new evidence had been disregarded, and that the argument that the trial judge had unlawfully rejected evidence in the applicant ’ s defence had been overlooked. He claimed that the relevant provision of the CCP limiting the avenues of appeal against a jury verdict to a one-time appeal on points of law was in violation of Article 13 of the Convention. It is unclear from the case file what the outcome was, if any, of the above-mentioned complaint.

B. Relevant domestic law and international documents

1. The Code of Criminal Procedure of Georgia

(a) The procedure for admission of evidence

15. 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 39. Defendant ’ s right to gather evidence

“ 1. A defendant has the right to gather evidence, either personally or through his or her defence counsel, at his or her own expense. The evidence gathered by a defendant has the same legal effect as that gathered by the prosecution.

2. If the gathering of evidence requires an investigative or other procedural action which cannot be performed by a defendant or his or her defence counsel, he or she shall be authorised to lodge an application for a relevant ruling with a judge with relevant territorial jurisdiction. The judge shall make every effort to ensure that the prosecution does not learn about the evidence being obtained. “

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 conference is held.

6. At the latest five days prior to the pre-trial conference the parties shall 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 in case of other kinds of material, certificates. It is 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 one piece of 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   “

Article 239. Filing applications and ruling on them

“ 1. The presiding judge shall inquire whether the parties have any application to lodge under this Article. Similar applications shall be lodged with the court together. The person lodging an application shall indicate which circumstances he or she is seeking to establish by means of this request.

2. If additional evidence is presented during the examination of the case on merits, the court shall assess at the request of a party the admissibility of the evidence and shall clarify the reasons for not presenting it before the trial, and shall rule on the admissibility or otherwise of the evidence accordingly.

3. The court rules on the admissibility of evidence in the absence of jurors ...

5. A request during a trial concerning the obtaining of new evidence shall be granted if it is established that it was objectively impossible either to obtain the impugned evidence or lodge a relevant application according to the procedure provided for by the Code. If the request is granted, the evidence shall be obtained in accordance wi th the provisions of this Code ...”

16. It should be noted that Article 84 of the CCP providing for a one-time exceptional right of the defence to present “belated” evidence was abolished in May 2013.

(b) Trial by jury

17. Trial by jury was introduced in Georgia in 2010 with the adoption of the new CCP. It is a classical jury model, in which the jury alone retains the exclusive function of determining the defendant ’ s guilt or otherwise, and the rule is that the jury deliberates in private. Twelve jurors sit on the jury in a criminal trial, and one judge presides over the court. Once the questions have been put to and handed to the members of the jury, they retire to deliberate in private. The law does not ask the jurors to account for how they reached their personal conviction, it simply asks them to answer the questions according to their inward conviction with either “yes” or “no”. A judgment adopted by a jury can be appealed against only on points of law. Leave to appeal must first be obtained from the court of appeal. Trial by jury in Georgia according to the transitional provisions of the CCP is reserved for most serious crimes until 1 October 2016.

18. The relevant articles of the CCP concerning jury trial proceedings, as in force at the material time, read as follows:

Article 226. Jury trial

“ 1. If the charges involved attract a custodial sentence, the case shall be heard by a jury, unless the defendant requests that the case be examined without the participation of jurors. If in view of the seriousness and nature of the offence a threat could be posed to the life or health of jurors or their inviolability could be otherwise compromised, also when the conduct of a jury trial substantially breaches the right to an objective and fair trial, the court in charge shall, at the request of a party and with the consent of the Chairperson of the Supreme Court of Georgia, decide to hear the case without a jury.

2. The composition of a jury trial shall guarantee its independence and impartiality...”

Article 231. Jury instruction by a presiding judge

“ 1. The presiding judge shall instruct the jury on the applicable law when opening the trial and before their retirement to the deliberation room. The instructions given by the presiding judge shall not contradict the Constitution of Georgia, the current code and the international obligations undertaken by Georgia. The instructions shall also be given to the jury in writing.

2. These written instructions shall be given to the parties in advance, within a reasonable time frame. They may request the presiding judge to make amendments or additions to the instructions. If the parties fail to avail themselves of this right before the jury ’ s retirement to the deliberation room, they will be prevented from complaining about the fairness and lawfulness of the instructions in any appeal on points of law.

3. The presiding judge is authorised before the jury retires to the deliberation room to briefly instruct the jurors about the rules for assessing the evidence examined at the trial. He or she shall give these instructions according to the rule provided for in paragraph 2 of the current Article. When instructing the jury, the presiding judge is not allowed to express in any way his or her personal position in connection with the issues which fall within the competence of the jury.

4. The presiding judge shall instruct the jury on the following:

a) the content of the charges and their legal basis;

b) the main rules concerning the evaluation of evidence;

c) the concept of presumption of innocence and the principle that any doubt shall require a decision in favour of the defendant;

d) that a guilty verdict shall be based on the law explained by the presiding judge and the body of incontrovertible evidence examined during the trial;

e) that they have a right to make notes and use them during the trial;

f) that the verdict should be based only on the evidence presented at the trial, that no evidence shall be taken into consideration on the instruction of others, and that the verdict shall not be based on assumptions or on inadmissible evidence;

g) the rule of arriving at a verdict for each count of charges;

h) that first the jury shall vote on the verdict of not guilty on all charges. If that verdict is not achieved, the jury shall vote for the guilty verdict in an order corresponding to the gravity of the charges;

i) that they shall sign only one verdict form for each of the charges – either a not guilty or a guilty verdict form.

5. The presiding judge shall at the end of the instructions remind the jurors that they are on oath.

6. After listening to the instructions of the presiding judge, the jury may address the latter with additional questions in writing. Additional instructions shall be given according to the procedure provided for in the first paragraph of the current article.

7. The presiding judge is obliged, at the request of a party, to explain to the jury that the defendant may have committed a less serious offence, the constituent elements of which form the basis of the offence the defendant is charged with. In such a case, the jury shall be additionally provided with a form to declare a non-guilty verdict as provided for in paragraph 4 (i) of the current Article. “

Article 235. The rights of the jury

“... 5. The judge shall instruct the jury about their right to make notes during the trial. The jurors shall be given before their retirement to the deliberation room the transcript of the hearing, except for any parts of it which concern inadmissible evidence. “

261. The verdict of the jury

“ 1. The jury shall examine and make a decision on the facts of the case. The jury ’ s decisions concerning the facts shall be taken on the basis of the decisions and instructions given by the presiding judge in connection with the legal issues.

2. The jury shall decide on the issue of innocence or guilt with respec t to each count of the charges ...”

266. Appeal against a decision taken by a jury trial

“ 1. A not guilty verdict in a jury trial is final, and 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 mistake 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 taken 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

19. The applicant complain s under Article 6 § 1 of the Convention that his conviction by the Tbilisi City Court was based on a guilty verdict which did not contain reasons and that he could not effectively appeal against it. Further, he claims under Article 6 §§ 1 and 3 (c) and (d) of the Convention that the principle of adversariality and equality of arms was breached on account of the way the evidence was taken and that he was denied access to a lawyer of his own choice during the initial hours of his detention.

QUESTIONS TO THE PARTIES

1. Given that the judgment of the Tbilisi City Court which found the applicant guilty on the basis of the jury verdict did not give reasons, were there sufficient counterbalancing factors, including strong procedural safeguards, to ensure that the applicant ’ s trial, judged as a whole, was fair within the meaning of Article 6 § 1 of the Convention (see Taxquet v. Belgium [GC], no. 926/05, §§ 92-93 and 99, ECHR 2010? In this connection, 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 ?

Please provide a copy of all relevant court materials, including a copy of the indictment against the applicant, court transcripts and all directions given by the Presiding Judge to the jury.

2. Was the applicant allowed in accordance with the requirements of Article 6 §§ 1 and 3 (c) of the Convention to be represented by a lawyer of his own choice during the initial hours of his detention ? (see Dvorski v. Croatia , [GC], no. 25703/11 , 20 October 2015). In this connection, did the services of a lawyer, who represented the applicant during the impugned period of time, comply with the requirements of a good defence?

3. Was the principle of equality of arms gu aranteed by Article 6 §§ 1 and 3 of the Convention respected by the Tbilisi City Court when deciding on the admissibility of evidence? In particular:

Was the refusal of the Tbilisi City Court to admit into evidence the list of witnesses to be called on behalf of the defence in accordance with the principle of equality of arms? Were the applicant ’ s rights guaranteed under Article 6 § 3 (d) of the Convention respected?

Was the defence on an equal footing with the prosecution in respect of the expert evidence, and did the applicants have the opportunity to produce expert evidence in their defence, as provided by Article 6 §§ 1 and 3 (d) of the Convention? The applicant is invited to submit copies of the two expert reports in question.

What was the reason for not admitting in evidence the written statement of I.G. and for refusing the request for him to be examined via video link?

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?