THIRD SECTION

Application no. 2274/10 Ramaz GOGIA against Georgia and 2 other applications (see list appended)

STATEMENT OF FACTS

1 . The applicants are Georgian nationals (see the appendix) . The facts of the cases, as submitted by the applicants, may be summarised as follows.

1. Gogia v. Georgia, application no. 2274/10

(a) The applicant ’ s arrest and criminal proceedings conducted against him

2 . On 4 February 2007 criminal probe was launched under Article 179 §§ 2 and 3 of the Criminal Code of Georgia into an aggravated armed robbery. On 6 February 2007 at about 01:00 a.m. the applicant was arrested in connection with the above proceedings. His personal search conducted on spot by three police officers revealed, amongst others , drugs and cartridges on his person. The applicant refused to sign the search report. He complained that the drugs had been planted on him by the police officers during the search and that he had also been ill-treated after his arrest; he requested the investigator in charge to arrange for his medical examination.

3 . On the same date the police searched the applicant ’ s house and seized several items of evidence, including two hand grenades, several cartridges and picklocks.

4 . On 7 February 2007 the applicant was formally charged with various offences under Articles 179 §§ 2 and 3, 184 §§ 2 and 3, 260 § 2, 236 §§ 1 and 2, and 363 § 2 of the Criminal Code of Georgia (aggravated armed robbery, vehicle robbery, unlawful purchase, storage and carriage of firearms, unlawful purchase and possession of drugs in a particularly large quantity and misap propriation of documents). While being questioned as an accused , the applicant protested his innocence and maintained that the drugs had been planted on him by police. He also reiterated his ill-treatment allegations.

5 . On 8 February 2007 the Senaki District Court, acting upon the prosecutor ’ s request, ordered the applicant ’ pre-trial detention for two months. The applicant was transferred to prison, where upon admission bruises were noted on his body and face; he voiced again his ill-treatment allegations.

6 . Between 5 June and 10 July 2007 the applicant underwent a forensic medical examination, which established that he had suffered a fracture of his right and left sixth rib. The experts concluded that the injury could have been caused several months earlier . Another medical examination conducted between 3 August and 25 September 2007 confirmed the applicant ’ s post-fracture condition.

7 . On 31 August 2007 the Senaki District Court convicted the applicant as charged and sentenced him to twenty years ’ imprisonment and a fine. According to the case file, on 25 July 2007 the applicant was evicted from the court room due his allegedly inappropriate behaviour and all subsequent court sessions were held in his absence.

8 . The applicant ’ s conviction was confirmed by the Kutaisi Court of Appeal on 20 November 2007. Despite the applicant ’ s requests, the appeal hearings were held in his absence.

9 . By a decision of 31 July 2007 the Supreme Court of Georgia remitted the case back to the appeal court.

10 . During the retrial the applicant requested the in-court examination of those police officers who, in connection with his arrest and personal search, had been questioned at first instance in his absence. The appeal court dismissed the applicant ’ s request. The applicant also reiterated his ill ‑ treatment allegations and requested the questioning of the head of the regional police and the head of Senaki police, whom he had implicated in his ill-treatment. These requests were also dismissed by the appeal court. By a decision of 24 October 2008, the Kutaisi Court of Appeal whilst confirming the applicant ’ s conviction decreased his prison term to nineteen years and a fine.

11 . On 25 June 2009 the Supreme Court of Georgia rejected the applicant ’ s appeal on points of law.

(b) The investigation into the applicant ’ s alleged ill-treatment

12 . As it appears from the case file, on an unidentified date, criminal probe was initiated into the applicant ’ s allegations of ill-treatment under Article 333 of the Criminal Code of Georgia (abuse of power).

13 . On 24 April 2007 the applicant complained to the Prosecutor General about his ill-treatment and requested proper medical examination.

14 . On 11 December 2007 the applicant requested the prosecutor to formally grant him a victim status. He also asked for the identification procedure to be arranged. The applicant ’ s both requests were rejected on the same date as unsubstantiated.

15 . Throughout 2008-2010 the applicant on several occasions inquired about the progress of the investigation, to no avail however . Only on one occasion did the deputy district prosecutor inform him, without providing any details, that the investigation was still pending.

2. Tchitava v. Georgia, application no.7130/11

(a) The applicant ’ s arrest and alleged ill-treatment

16 . The applicant and his friend were arrested on 27 June 2009 over an attempted aggravated robbery. According to the detention report, the applicant sustained several injuries during the arrest, including haemorrhages on both hands and body and bruises on his left eye and temple. The applicant refused to sign the report on his arrest. On the same night he underwent a visual medical examination which established two minor bruises on his right shoulder and an elbow. The two police officers, who effected the arrest, claimed in their statements that the applicant had sustained those injuries while trying to flee from a crime scene.

17 . By a decision of 29 June 2009 the trial court judge, acting upon the prosecutor ’ s request, ordered the applicant ’ s pre-trial detention. On 10 July 2009 the applicant was questioned as an accused. He protested his innocence and challenged the official version that he had been arrested during an attempt to rob some garage. He claimed that he along with his friend had took a taxi late at that night; whil e driving, the taxi had suddenly been stopped by several armed police officers, who had dragged them out of the vehicle; the applicant and his friend had been physically and verbally assaulted afterwards and taken to a police department; their ill-treatment had continued there with the aim of extracting a confession into a robbery attempt.

18 . On 24 December 2009 the Tbilisi City Court convicted the applicant as charged and sentenced him to eight years ’ imprisonment. The final sentence, which included the unserved part of his previous sentence, was set at eight years, four months and twenty-two days. According to the court minutes, the applicant and his lawyer repeatedly requested an in-court examination of the taxi driver; the trial judge refused, however, to summon him. The applicant ’ s request to have a list of all numbers the taxi driver had been in contact with on the night in question, showing also the location of the antennas covering the various calls, was also rejected.

The applicant ’ s ill-treatment allegations were dismissed as unsubstantiated.

19 . The applicant ’ s conviction was confirmed by the Tbilisi Court of Appeal on 7 April 2010. The applicant ’ s appeal on points of law was dismissed by the Supreme Court of Georgian on 12 July 2010.

(b) Investigation into the applicant ’ s alleged ill-treatment

20 . On 27 July 2009 criminal proceedings were initiated under Article 333 of the Criminal Code of Georgia (abuse of power) into the circumstances of the applicant ’ s arrest and alleged ill-treatment. On 1 April 2010 the Public Defender of Georgia, following the applicant ’ s complaint, inquired with the prosecutor ’ s office about the progress of the investigation, to no avail however.

3. Arkania v. Georgia, application no.2625/12

21 . According to the detention and personal search report, the applicant was arrested on 15 June 2011 at 03:10 a.m. on suspicion of unlawful possession of drugs and fire arms. His personal search conducted by two police officers revealed one Kalashnikov rifle, nineteen cartridges and a small paper bag with some greyish substance on his person. The report noted multiple scratches on the applicant ’ s face and head, which the applicant claimed to have sustained prior to his arrest.

22 . The applicant challenged the official version of his arrest. According to his numerous complaints, he was arrested on 14 June 2011 between 22:00 and 23:00 p.m. by three plain-clothes police officers; they took him first to an old abandoned factory where he was severely beaten with a rifle butt; the police officers also put a rifle barrel in his mouth and threatened to kill him. Then he was driven to a Jvari police department, where his ill ‑ treatment continued; police officers burnt his body with cigarette butts and threatened him with rape. Eventually the applicant signed a statement according to which he pleaded guilty to unlawful possession of drugs and firearms.

23 . On 15 June 2011 the applicant was transferred to a temporary detention centre, where upon admission he underwent an external visual examination. As a result, bruises and reddish spots were noted on his back and behind his ears; a haematoma was also noted on his left eye.

24 . On the next day an ambulance was called for the applicant due to his deteriorated medical condition. The emergency doctor noted his complaints about headache, dizziness, nausea and overall weakness and diagnosed him with a post-concussion condition. On the same date, the applicant complained to the Zugdidi regional prosecutor, describing in details his alleged ill-treatment and claiming that the self-incriminating statement had been extracted under physical and psychological pressure.

25 . On 17 June 2011 the Tsalenjikha District Court, acting upon the prosecutor ’ s request, ordered the applicant ’ s pre-trial detention. The order was confirmed by the Kutaisi Court of Appeal on 23 June 2011. Both courts disregarded the applicant ’ s allegations concerning the circumstances of his arrest and the alleged ill-treatment. On the same date the applicant was visited by a representative of the Public Defender ’ s office, who drew up a report detailing the applicant ’ s arrest and alleged ill-treatment.

26 . On 21 June 2011 the above report was forwarded by the Public Defender of Georgia to the Chief Prosecutor of Georgia along with a recommendation to initiate criminal proceedings and arrange for the applicant ’ s forensic examination. Following a series of additional complaints from the applicant and his lawyer, a preliminary investigation was opened on 17 August 2011.

27 . On 21 August 20011 the report on the applicant ’ s forensic examination was issued according to which multiple bruises and haemorrhages were found on the applicant ’ s body. The experts concluded that these injuries, belonging to the category of minor injuries, could have dated back to 15 June 2011.

28 . In August and September 2011 the applicant additionally underwent a psychiatric examination. As a result, he was diagnosed with post ‑ concussion syndrome and post-traumatic stressful disorder. The applicant ’ s lawyer forwarded the above report to the prosecutor ’ s office requesting to include it in the criminal case file concerning the applicant ’ s alleged ill ‑ treatment.

29 . Subsequently, the applicant ’ s lawyer filed several complaints with the prosecutor in charge concerning the inadequacy of the investigation. She requested amongst others for the identification procedure to be organised and several witnesses to be questioned. All her requests were dismissed. By a letter of 11 May 2012 the Zugdidi deputy regional prosecutor informed the lawyer that there was no basis for granting a victim status to the applicant.

COMPLAINTS

1. Gogia v. Georgia, application no. 2274 /10

30 . The applicant alleged under Article 3 of the Convention that he had been ill-treated by police and that no effective investigation had been conducted in this regard. Relying on Article 6 §§ 1 and 3 (d) of the Convention he further complained that the criminal proceedings conducted against him had been unfair and that the police officers who had effected his arrest and conducted his personal search had not been questioned in court in his presence.

2. Tchitava v. Georgia, application no.7130/11

31 . The applicant complained under Article 3 of the Convention that he had been ill-treated by police and that no effective investigation had been conducted in this regard. Relying on Article 6 §§ 1 and 3 (d) of the Convention he also claimed that in the context of the criminal proceedings conducted against him his version of events had not been duly examined by the domestic courts and that his defence rights had been violated as a result.

3. Arkania v. Georgia, application no.2625/12

32 . Relying on Article 3 of the Convention the applicant complained about his alleged ill-treatment and the failure of the relevant authorities to conduct an effective investigation in this regard. The applicant further complained under Article 5 § 1 of the Convention about the unlawfulness of his initial unrecorded four-hour detention.

QUESTIONS TO THE PARTIES

COMMON QUESTIONS

1. Were the applicants subjected to inhuman and degrading treatment in breach of Article 3 of the Convention?

2. Have the competent domestic authorities conducted an adequate investigation into the applicants ’ allegations of ill-treatment, as required by the procedural obligation under Article 3 of the Convention (see Labita v. Italy [GC], no. 26772/95, § 131, ECHR 2000-IV)?

CASE SPECIFIC QUESTIONS

1. Gogia v. Georgia, application no. 2274/10

1. Did the appeal court ’ s refusal to examine the police officers afresh in court in the applicant ’ s presence have any consequences for his defense rights and his right to a fair trial within the meaning of Article 6 §§ 1 and 3 (d) of the Convention?

2. Tchitava v. Georgia, application no.7130/11

1. Did the domestic courts duly examine the applicant ’ s version of events concerning the circumstances of his arrest? In this connection, was the domestic courts ’ failure to summon the taxi driver to attend for oral examination compatible with the applicant ’ s defence rights and his right to a fair trial within the meaning of Article 6 §§ 1 and 3 (d) of the Convention?

3. Arkania v. Georgia, application no.2625/12

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, for his complaint under Article 5 § 1 of the Convention concerning the unlawfulness of his allegedly unrecorded four-hour detention ? If so,

2. Was the applicant subjected to a four-hour unrecorded detention on the night of 14-15 June 2011?

APPENDIX

No.

Application no.

Lodged on

Applicant name

date of birth

place of residence

Represented by

2274/10

25/12/2009

Ramaz GOGIA

26/03/1973

Akhalsopheli

Vladimer MATCHARASHVILI

7130/11

12/01/2011

Severian TCHITAVA

19/06/1974

Tbilisi

David KORKOTASHVILI

2625/12

13/12/2011

Lasha ARKANIA

23/01/1976

Muzhava

Tsira JAVAKHISHVILI