Communicated on 18 December 2013

THIRD SECTION

Application no . 42371/08 Ermile TORTLADZE against Georgia lodged on 14 August 2008

STATEMENT OF FACTS

THE FACTS

1 . The applicant, Mr Ermile Tortladze , is a Georgian national, who was born in 1964 and lives in Tbilisi. He is represented before the Court by Ms M. Shatirishvili and Ms N. Margieva , lawyers practising in Tbilisi.

A. The circumstances of the case

2 . The applicant was serving as Honorary Consul General of Côte d ’ Ivoire in Georgia at the material time. It appears from the case file that he was also performing the functions of a consular courier. The facts of the case, as submitted by him, may be summarised as follows.

3 . On 24 August 2005 the police arrested A.I., a former head of security at the Consulate General of Côte d ’ Ivoire (“the Consulate”), and a consulate lawyer at the material time, on suspicion of unlawful possession of drugs with intent to supply. While being questioned as a suspect, he named the applicant as his long-term drug dealer. He also claimed that earlier that day he had purchased twelve-and-a-half Subutex (buprenorphine) pills from the applicant on the premises of the Consulate.

4 . On the same date the Ministry of the Interior (“the MoI ”) requested the Ministry of Foreign Affairs (“the MFA”) to provide information about the legal status of the Consulate and the immunities that the applicant enjoyed in his capacity of Honorary Consul General. On 25 August 2005 the head of the consular department of the MFA replied by letter, explaining that under Article 43 of the Vienna Convention on Consular Relations (“the Vienna Convention”), consular officers enjoyed functional immunity (see below). As for the Consulate, it was noted that the inviolability of consular premises as laid down in Article 31 of the Vienna Convention did not extend to premises occupied by Honorary Consuls General. And finally, with respect to the Honorary Consuls General, only the provisions in Chapter III of the Vienna Convention were applicable.

5 . On 25 August 2005 police, acting upon an investigator ’ s order, entered the Consulate and conducted a search. The applicant, who was also present, challenged its lawfulness, claiming that it violated Article 328 of the Code of Criminal Procedure and relevant international norms protecting diplomatic and consular missions. He refused to sign the search report and made a note explaining that the Consulate General, in other words he, had to give prior consent before any search could be carried out.

6 . According to an official record, the search of the Consulate was conducted between 5.27 and 6.45 p.m., attended by a representative of the MFA, D.J., and recorded on video. The applicant refused his right to invite independent witnesses to attend. As a result of the search, 227 Subutex pills, seven ampoules of morphine hydrochloride and several gun cartridges were seized from a safe and desk in the applicant ’ s office.

7 . On the same date police also searched the applicant ’ s vehicle and apartment. The latter was searched in the presence of the applicant ’ s wife, who, according to the search report, refused her right to invite independent witnesses to attend. As a result of the search, which was recorded on video, a gun and several cartridges were recovered from the applicant ’ s apartment. The applicant ’ s wife refused to sign the search report, making a note that the weapon found did not belong to her family.

8 . According to the arrest record, the applicant was arrested on the premises of the Consulate at 6.50 p.m. on 25 August 2005.

9 . On 26 August 2005, the applicant, after further questioning as a suspect, complained that the searches had been conducted unlawfully, in violation of the Vienna Convention on Consular Relations. He claimed that the Subutex pills found in his office did not belong to him, and that he did not know how they had ended up in the safe. As for the morphine ampoules, he admitted that they did belong to him and that as a heart sufferer, he had been keeping them for emergencies. He also denied that the gun found in his apartment belonged to him.

10 . On the same date the Tbilisi City Court, at the request of the prosecutor, declared the results of the searches legally valid.

11 . On 27 August 2005 the applicant was formally charged with various drug and firearms offences under Article 260 §§ 2 (a) and 3 (a) and Article 236 §§ 1 and 3 of the Criminal Code. The following day a judge, at the request of the prosecutor, ordered his remand in custody for three months.

12 . During the pre-trial investigation the applicant ’ s lawyer requested a dactyloscopic (fingerprint) examination of the drugs seized from his client ’ s office and the weapon allegedly found in his apartment. The request was rejected by the prosecutor, who concluded that because the physical evidence bore fingerprints of various people who had participated in the seizure and subsequent forensic examination, a dactyloscopic examination would prove pointless.

13 . In another request, the applicant claimed that the drugs found in his office belonged to A.I. who, while an employee of the Consulate, had enjoyed unlimited access to its premises. He requested in this connection that several other employees of the Consulate be called for questioning. He also dismissed as untrue A.I. ’ s allegations about purchasing Subutex on the consular premises on 24 August 2005 and requested that several members of the security team of the Consulate be called for questioning in this regard. Both requests were refused.

14 . On 14 November 2005 the pre-trial investigation was completed. On 19 November the applicant, via his lawyer, lodged a request with the investigator in charge, complaining of partiality and one-sidedness in the investigation. He maintained that by refusing to question the employees and members of the security team of the Consulate, the applicant ’ s right to challenge A.I. ’ s credibility and the truthfulness of his statements had been ignored. He reiterated his request for those witnesses to be called for questioning, and also for a dactyloscopic examination of the drugs and weapon seized. He also claimed that the search of the Consulate had been unlawful, firstly because he had not been allowed to invite independent witnesses to attend, and secondly because consular premises were inviolable under international law. He asked for access to the full video recordings of the searches of the Consulate and his apartment.

15 . By a decision of 21 November 2005 the investigator rejected the applicant ’ s requests. As regards the video recording, he simply stated that no recording of the search of the consular premises had been made.

16 . On 28 April 2006 the applicant complained to the head of the prison hospital (where he was being held at the material time), and to the judge of the Tbilisi City Court that pressure had been exerted upon him in prison. He alleged that someone from the MoI had visited him in prison, trying to threaten and intimidate him. He asked the prison hospital authorities to guarantee his safety and security. No reply followed. The applicant reiterated his complaint, but to no avail.

17 . On 20 October 2006 the applicant complained to the Minister of Justice and to the head of the prisons department about the conditions of his transfer and wait on the premises of the Tbilisi City Court ahead of his trial. He alleged that all the accused were transferred to the courthouse in the morning at around 10 a.m., despite not being called into court for their respective trials until between 5 and 7 p.m. that evening. During that time around twenty-five accused were kept in the same waiting room, measuring between 5 and 6 sq. m. The room had no ventilation and no chairs. The applicant, referring to his medical condition, claimed that this amounted to inhuman and degrading treatment. In May 2007 the applicant reiterated his complaint, relying explicitly on Article 3 of the Convention.

18 . On 20 November 2006 the Tbilisi City Court convicted the applicant as charged and sentenced him to eighteen years ’ imprisonment. During the trial the applicant and his lawyer asked to admit into evidence the video recordings made in the Consulate on 25 August 2005 and also to question several employees of the Consulate. According to the applicant, those witnesses could prove, inter alia , that A.I. had not been at the Consulate on 24 August 2005, so could not have purchased drugs from the applicant that day. The applicant further maintained that the search of the consular premises had been unlawful, firstly because he as a consular courier, and the Consulate as a whole, were covered by diplomatic immunity, and secondly because no independent eyewitnesses had been allowed to attend. The trial judge, after having heard the applicant ’ s witnesses and having watched the relevant recordings, dismissed the applicant ’ s arguments as ill-founded.

It appears that the applicant was placed in the metal cage during the court proceedings.

19 . By a decision of 19 June 2007 the Tbilisi Court of Appeal, while upholding the applicant ’ s conviction, reduced his prison sentence to seventeen years. The appeal court similarly to the trial court dismissed the applicant ’ s immunity argument. It concluded in particular, on the basis of the evidence presented by the MFA, that the applicant in his capacity of Honorary Consul General, enjoyed no personal inviolability and no jurisdictional immunity of any kind (Article 31 of the Vienna Convention); as for the premises, according to Article 59 of the Vienna Convention on Consular Relations, the receiving State had simply to protect them.

20 . On 13 July 2007 the applicant lodged an appeal on points of law, mainly reiterating the arguments he had made in his previous appeal, but it was rejected by the Supreme Court on 18 February 2008. The court simply reproduced the relevant provision of the Criminal Procedure Code, noting that “the case [was] not important for the development of the law and coherent judicial practice; the [contested] decision [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.”

B. Relevant domestic and international legal provisions

1. Criminal Procedure Code (as in force at the material time)

21 . Article 328 described the procedure for searches and seizures on the premises of diplomatic missions. It stipulated, inter alia , that a search or seizure on the premises of diplomatic missions, or on premises where a person with diplomatic immunity and his or her family member lived, could only be conducted at the request or consent of the head of the relevant diplomatic mission.

2. Vienna Convention on Consular Relations of 24 April 1963

22 . The Vienna Convention on Consular Relations entered into force on 19 March 1967. Georgia acceded to the Convention on 12 July 1993. Its relevant provisions read as follows:

Article 1. Definitions

“1. For the purposes of the present Convention, the following expressions shall have the meanings hereunder assigned to them:

(a) ‘ consular post ’ means any consulate-general, consulate, vice-consulate or consular agency; ...

(c) ‘ head of consular post ’ means the person charged with the duty of acting in that capacity;

(d) ‘ consular officer ’ means any person, including the head of a consular post, entrusted in that capacity with the exercise of consular functions; ...

(j) ‘ consular premises ’ means the buildings or parts of buildings and the land ancillary thereto, irrespective of ownership, used exclusively for the purposes of the consular post;

2. Consular officers are of two categories, namely career consular officers and honorary consular officers. The provisions of Chapter II of the present Convention apply to consular posts headed by career consular officers; the provisions of Chapter III govern consular posts headed by honorary consular officers.

3. The particular status of members of the consular posts who are nationals or permanent residents of the receiving State is governed by Article 71 of the present Convention.”

Chapter II

Article 31. Inviolability of the consular premises

“1. Consular premises shall be inviolable to the extent provided in this Article.

2. The authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt protective action.

3. Subject to the provisions of paragraph 2 of this Article, the receiving State is under a special duty to take all appropriate steps to protect the consular premises against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.

4. The consular premises, their furnishings, the property of the consular post and its means of transport shall be immune from any form of requisition for purposes of national defence or public utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid impeding the performance of consular functions, and prompt, adequate and effective compensation shall be paid to the sending State.

Article 35. Freedom of communication

“ 2. The official correspondence of the consular post shall be inviolable. Official correspondence means all correspondence relating to the consular post and its functions.

...

5. The consular courier shall be provided with an official document indicating his status and the number of packages constituting the consular bag. Except with the consent of the receiving State he shall be neither a national of the receiving State, nor, unless he is a national of the sending State, a permanent resident of the receiving State. In the performance of his functions he shall be protected by the receiving State. He shall enjoy personal inviolability and shall not be liable to any form of arrest or detention.

6. The sending State, its diplomatic missions and its consular posts may designate consular couriers ad hoc. In such cases the provisions of paragraph 5 of this Article shall also apply except that the immunities therein mentioned shall cease to apply when such a courier has delivered to the consignee the consular bag in his charge.”

Article 43. Immunity from jurisdiction

“1. Consular officers and consular employees shall not be amenable to the jurisdiction of the judicial or administrative authorities of the receiving State in respect of acts performed in the exercise of consular functions. ... ”

Chapter III

Article 59. Protection of the consular premises

“The receiving State shall take such steps as may be necessary to protect the consular premises of a consular post headed by an honorary consular officer against any intrusion or damage and to prevent any disturbance of the peace of the consular post or impairment of its dignity.”

Article 63. Criminal proceedings

“ If criminal proceedings are instituted against an honorary consular officer, he must appear before the competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except when he is under arrest or detention, in a manner which will hamper the exercise of consular functions as little as possible. When it has become necessary to detain an honorary consular officer, the proceedings against him shall be instituted with the minimum of delay. ”

Article 64 . Protection of Honorary Consular Officers

“The receiving State is under a duty to accord to an honorary consular officer such protection as may be required by reason of his official position.”

Article 71 . Nationals of permanent residents of the receiving State

“1. Except in so far as additional facilities, privileges and immunities may be granted by the receiving State, consular officers who are nationals of or permanently resident in the receiving State shall enjoy only immunity from jurisdiction and personal inviolability in respect of official acts performed in the exercise of their functions, and the privilege provided in paragraph 3 of Article 44. So far as these consular officers are concerned, the receiving State shall likewise be bound by the obligation laid down in Article 42. If criminal proceedings are instituted against such a consular officer, the proceedings shall, except when he is under arrest or detention, be conducted in a manner which will hamper the exercise of consular functions as little as possible.”

COMPLAINTS

23 . The applicant complains under Article 3 of the Convention about the conditions of his transfer and wait on the premises of the trial court, and that he was placed in a metal cage during the proceedings. He also complains under Article 6 § 1 of the Convention of unfairness in the criminal proceedings conducted against him. Notably, he alleges that his immunity argument was not properly addressed by the domestic courts, and that the related problem of unlawful searches was also left unanswered.

24 . As a supplementary observation to his complaints of unfairness in the criminal proceedings, the applicant contests the Supreme Court ’ s rejection of his appeal on points of law without an examination on the merits, arguing that his case was unprecedented, there being no previous cases involving an issue of diplomatic immunity.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, for his complaint s under Article 3 of the Convention? If so,

- Did the conditions of the applicant ’ s transfer and wait on the premises of the trial court amount to inhuman and degrading treatment within the meaning of Article 3 of the Convention?

- Was the applicant ’ s placement in a metal cage during the court hearings compatible with Article 3 of the Convention?

2. Did the applicant ’ s personal search as well as the search of the consular premises comply with the guarantees under Article 8 of the Convention (see, mutatis mutandis, Golovan v. Ukraine, no. 41716/06 , §§ 51-53, 5 July 2012, with further references therein) ? In this connection, was the applicant performing functions of a consular courier at the material time? If so, did he enjoy a personal immunity as envisaged in the Vienna Convention on Consular Relations?

3. Was the reliance on the results of the searches by the prosecution and then the courts compatible with the “fairness” requirement under Article 6 § 1 of the Convention? Was the applicant ’ s immunity argument properly addressed by the domestic courts?

4. In the light of the Court ’ s relevant case-law ( Perez v. France [GC], no. 47287/99, § 81, ECHR 2004 ‑ I, and Jahnke and Lenoble v. France ( dec. ), no. 40490/98, ECHR 2000 ‑ IX), was the reasoning in the Supreme Court ’ s decision of 18 February 2008 sufficient for the purposes of assuring the applicant ’ s respect for his right to a fair trial? In particular, what exactly was the judicial precedent to which the Supreme Court referred in its decision of 18 February 2008, when noting that the applicant ’ s case did not differ from existing practice in such matters? The Government are invited to submit a copy of the relevant decision(s)/judgment(s).