Communicated on 28 September 2015

FOURTH SECTION

Application no. 30743/09 Gvantsa KUPARADZE against Georgia lodged on 5 March 2009

STATEMENT OF FACTS

1. The applicant, Ms Gvantsa Kuparadze , is a Georgian national, who was born in 1992 and lives in Tbilisi . She is represented before the Court by Mr R. Khuntsaria , 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. Criminal proceedings against the applicant

3. On 9 November 2006 the applicant ’ s classmate – T.T. was stubbed multiple times in the yard of the secondary school attended by the fourteen year-old applicant at the material time.

4. According to the applicant ’ s version of the events, on the above date, she was having a conversation with T.T. in the school yard when four young men, strangers to the applicant, appeared and two of them immediately attacked T.T.; while one of the two was holding T.T. down on the ground, both men stubbed him multiple times with two different knives. The applicant ’ s pleas to stop were met by the attackers ’ remarks that T.T. deserved what he was getting. The incident lasted few minutes and as they were leaving, the attackers told the applicant to keep quiet otherwise they would easily track her down in her neighbourhood and kill her.

5. According to the official version of the events based on the statements of T.T. , the applicant and T.T. met in the school yard at the former ’ s invitation . In course of the conversation, T.T. kneed with his back facing the applicant. At that moment the applicant first hit him on his head and then started to stub him with a knife from behind . While T.T. remained conscious lying on the ground facing up, the applicant managed to hold him down with one hand and continue stubbing him with the other. Finally T.T. managed to escape from the applicant. He ran approximately forty meters before he fell unconscious on the school ’ s basketball court where he was eventually found. Later he was transported to a hospital where, after an urgent surgery, his life was saved.

6. On 14 November 200 6, after T.T. gave a statement to the investigation incriminating the applicant, the latter was arrested and charged with attempted aggravated murder. She was subsequently remanded in pre-trial detention.

7. In his initial report a forensic doctor of the National Forensics Bureau (“ the first NFB report ”) concluded that T.T. ’ s wounds had been inflicted with a sharp object (possibly a knife); the wounds taken together, with particular importance attached to two chest wounds perforating T.T. ’ s lungs, were life-threatening. On 21 February 2007 the same expert issued another report (“ the second NFB report ”) which had been commissioned by the applicant ’ s lawyer to complement the first NFB report. The second NFB report, while containing a more elaborate analysis, re-confirmed that T.T. ’ s wounds had been life-threatening; it also concluded that in order to establish whether T.T ’ s wounds had been inflicted with more than one object, it was necessary to commission a group of experts to conduct a comprehensive forensic medical expertise.

8. On 12 June 2007 the Tbilisi City Court found the applicant guilty as charged and she was sentenced to ten years ’ imprisonment out of which the last five years were probationary. Dismissing altogether the applicant ’ s version of events, relying on T.T. ’ s statements, the first and second NFB reports, a crime detection report of a criminalistics expert at the Ministry of the Interior (“the MI report”), and other evidence in the case, the court found that the applicant had stubbed T.T. with a knife which was never recovered.

9. The applicant appealed the first instance decision. During the trial at the appellate court, the defence adduced in evidence two forensic reports, both issued on 2 November 2007. The first report was a comprehensive forensic medical report prepared by a group of experts at a private forensics centre (“the forensic medical report”). The descriptive part of the forensic medical report referred to the following materials as its basis: the first instance court decision, T.T. ’ s statements, the applicant ’ s statements, the MI report, and T.T. ’ s medical file.

10. After examining all the materials at hand, in the forensic medical report the group of experts arrived at the following conclusions: while the pain caused by the inflicted wounds would have triggered T.T. ’ s self- defence instinct, in course of the incident T.T. would have remained active enough to resist the attack (e.g. to push the attacker or to run); considering the characteristics and localisation of the wounds and differences in the physical strength of the applicant (a female) and T.T. (a male), “it was hard to imagine” how the applicant would have managed to inflict these wounds on T.T. in the circumstances suggested by the prosecution based on T.T ’ s statements (i.e. by holding down T.T. on the ground with one hand while stubbing him with the other); considering the characteristics and localis ation of T.T. ’ s wounds it was plausible that they had been inflicted by two person s in the circumstances described by the applicant.

11. The second expert report commissioned by the applicant ’ s lawyer at the Research Centre for Independent Expertise of the Georgian Technical University concerned the instrument of the crime and other technical aspects of the incident (“the criminalistics report”). The criminalistics report listed the following materials as its basis: the statements of T.T., the statements of the applicant, the MI report, the second NFB report, T.T. ’ s medical file, and the first instance court decision.

12. Providing a detailed reconstruction of the incident on drawings as well as analysing the case materials, the criminalistics report concluded that the dimension s of T.T. ’ s wounds confirmed that they had been inflicted with two sharp objects of different widths (2 and 4 c entimetres ) which could have been knives ; it further stated that the applicant would not have been able to commit the incriminated offence in the circumstances suggested by the prosecution based on T.T. ’ s statements; finally, considering the characteristics of T.T. ’ s wounds, it was plausible that they had been inflicted by two different persons as described by the applicant .

13. On 7 December 2007 the Tbilisi Court of Appeal upheld the first instance court decision. In its decision, while dismissing the forensic medical report and the criminalistics report adduced in evidence by the defence , the appellate court reasoned that the forensic medical report was unreliable as it had been completed with “a number of procedural violations” an example of which being that it was unclear what were the materials the forensic medical report had been based on; the appellate court further stated that neither forensic medical report nor the criminalistics report contained any conclusive findings; with respect to the criminalistics report the appellate court also stated that it had been based on the forensic reports (i.e. the MI report and the second NFB report, see paragraph 11 above) that were themselves inconclusive and thus unreliable . While upholding the first instance decision, the appellate court relied, inter alia , on the MI report and the second NFB report.

14. On 12 September 2008 , in a standard decision, the Supreme Court of Georgia declared the applicant ’ s cassation claim inadmissible on the ground, inter alia , that the appellate court had not made such an error which would have affected the outcome of the case.

2. The c onditions of the applicant ’ s detention

15. On 1 6 November 2006 the applicant, who was fourteen at the time, was placed in Tbilisi no. 5 prison for women and minors (“the prison no. 5”) to serve her pre-trial detention . Under the Prison Code in force at the material time, underage offenders had to be separated from adult inmates. However, at the material time there was no separate detention facility for female minors. Hence, according to the applicant, in the prison no. 5 she was placed in a cell with adult female inmates.

16. On 10 January 2007 the Minister of Justice issued an order on creation of a separate section for female minors within the prison no. 5. By the same order the head of the penitentiary department was instructed to immediately separate all female minors from the adult inmates.

17. On 24 January 2007 the applicant was placed alone in a separate cell within the prison no. 5.

18. In his letters of 6 March and 24 April 2009 addressed to the Minister of Corrections, the Public Defender of Georgia expressed his concerns about the conditions of the applicant ’ s detention in the prison no. 5. The letter specifically mentioned that the cell in which the applicant was detained with two other minors, measured approximately 12-15 square meters; a tap in the cell was out of order; in the absence of proper ventilation, the cell was moistly and there was an unpleasant smell there; the Public Defender found it alarming that the applicant had no possibility of outdoor walks as there was no prison yard designated for this purpose. The Public Defender further pointed out that due to absence of an educational detention facility designated for them, the female minors were subjected to stricter regime than foreseen under the national legislation, conditions of their detention thus falling short of the applicable national and international standards. In his letters the Public Defender recommended to suspend the applicant ’ s sentence and release her until construction of an adequate detention facility for female minors.

19. On 23 September 2009 the Tbilisi Court of Appeal rejected, at final instance, the applicant ’ s request on suspension of her sentence until construction of a separate adequate detention facility for female minors .

20 . On 11 November 2011 the applicant was released on probation upon completion of the first five years of her ten-year sentence.

B. Relevant domestic law concerning detention of minors

21. Under Article 6 § 4 and Chapter XVI of the Imprisonment Act in force at the time of the applicant ’ s conviction, convicted persons under the age of eighteen had to be placed in “an educational facility for minors ” . Article 22 of the same Act required that the detained adults and minors be placed separately.

COMPLAINTS

22. The applicant complains under Article 3 of the Convention , taken separately or in conjunction with Article 13 of the Convention, that while being a minor, she was detained in unbearable conditions together with adult inmates .

23. Invoking Article 6 §§ 1 and 3 (d) of the Convention in substance the applicant complains that taken as a whole, the criminal proceedings against her were unfair. Specifically, the Tbilisi Court of Appeal ’ s manifestly arbitrary reasoning in dismissing the forensic medical report and the criminalistics report which seriously undermined the prosecution ’ s case against the applicant violated the principle of equality of arms ; the subsequent denial of the Supreme Court of Georgia to hear the applicant ’ s case on the merits and remedy the error made by the appellate court finally deprived the applicant of the possibility to fully present her case; taken together, all these shortcomings amounted to denial of justice.

Q UESTION S TO THE PARTIES

1. Were the conditions of the applicant ’ s detention in Tbilisi no. 5 prison for women and minors adequate, in accordance with Article 3 of the Convention?

2. Did the applicant have at h er disposal an effective domestic remedy for h er complaint under Article 3 of the Con vention, as required by Article 13 of the Convention?

3 . Taken as a whole, were the criminal proceedings against the applicant fair in accordance with Article 6 §§ 1 a n d 3 (d) of the Convention? In particular:

- Was the Tbilisi Court of Appeal ’ s decision to dismiss as unreliable the forensic medical report and the criminalistics report adduced in evidence by the defence well-reasoned and in accordance with the principle of equality of arms?

- Did the denial of the Supreme Court of Georgia to examine the applicant ’ s cassation complaint on the merits breach the applicant ’ s right to court?