THIRD SECTION

Application no. 25120/07 Giorgi VASHAKIDZE and Eldar GOGBERASHVILI against Georgia lodged on 19 April 2007

STATEMENT OF FACTS

1. The applicants, Mr Giorgi Vashakidze (“the first applicant”) and Mr Eldar Gogberashvili (“the second applicant”), are Georgian nationals, who were born in 1967 and 1970 respectively and are currently in prison. They are represented before the Court by Ms M. Tvauri, a lawyer practising in Tbilisi.

The circumstances of the case

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

3. On 5 December 2003 a renowned businessmen in Tbilisi T.M. was kidnapped. His family subsequently received telephone calls from the kidnappers demanding a ransom.

4. On 10 January 2004 the applicants and a friend of theirs B.S. were arrested in connection with T.M. ’ s kidnapping. According to the applicants, immediately after the arrest they were driven by police to one of the cemeteries in Tbilisi, where the second applicant and B.S. were severely beaten with the aim of extracting a confession from them into T.M. ’ s kidnapping. The first applicant claimed the he had been forced to watch his friends being ill-treated and subjected to, amongst others, mock execution.

5. A few hours later, the police, allegedly following the second applicant ’ s indications, found T.M. in the forest near Tbilisi.

6. On the same morning the newly elected President of Georgia hold a press-conference informing the journalists about the successful outcome of the law–enforcement operation which resulted in T.M. ’ s release. During the press-conference the President announced that the police had arrested Giorgi Vashakidze (the first applicant) an organiser of T.M. ’ s kidnapping. He further referred to him as “a bandit” and “a right hand of I.G” a person who had been wanted by police for his alleged involvement in the terrorist act against the former President of Georgia since 1995.

7. On 11 January 2004 T.M., whilst being questioned as a victim, claimed that he could not identify the alleged kidnappers as they had all been wearing masks during the incident. On the same date the two applicants were charged with aggravated hostage taking, unlawful possession and use of fire-arms, armed robbery and resisting police officers, offences under Articles 144 § 2 (a), (e), (v) and ( i ), 236 §§ 1 and 2, 237 §§ 1 and 4 (b), 179 § 2 (a) and (d) and 353 § 2 of the Criminal Code of Georgia respectively.

8. According to the applicants, on 12 January 2004 the second applicant, whilst being questioned in the absence of a lawyer and under duress, confirmed his previous self-incriminating statement. On the same date a judge, acting upon the investigator ’ s request, ordered the applicants ’ pre-trial detention for three months.

9. After the detention hearing, at 24:00 the second applicant was transferred to Tbilisi no. 5 Prison, where, upon admission, he was visually examined by a duty office. According to the record drawn up thereafter, multiple bruises, excoriations and haemorrhages were identified on the applicant ’ s face and body; the record also stated that pricked injuries were noted on the backside of the applicant ’ s ears and on the little finger of his right hand.

10. In between 27 and 29 January 2004 the second applicant underwent forensic examination. The subsequent report describes in detail the applicant ’ s allegations of ill-treatment he was subjected to following his arrest. In particular, according to the applicant, he was first severely beaten at a cemetery by among others K.Ch. Then, he was transferred to the temporary detention centre, where he was allegedly hung up by his hands, beaten by a truncheon in the area of his neck, hit by a plastic bottle full of water into his head, tortured with gas mask and subjected to electro-shock. The doctor, whilst confirming the various multiple injuries on the applicant ’ s face and body, concluded that they could have been caused in the circumstances described above.

11. According to the second applicant, he subsequently complained to the law enforcement agencies about his alleged ill-treatment by police, to no avail, however. Reports about the applicants ’ alleged ill-treatment appeared also in the media at the relevant period of time.

12. By a decision of 8 April 2004 the applicant ’ s pre-trial detention was extended for another three months, until 10 July 2004.

13. Between 8 and 20 April 2004 the second applicant underwent an alternative independent medical examination. The medical expert in charge, along with confirming the results of the applicant ’ s initial examination, concluded that the injuries to the applicant ’ s nose, jaw and left hand had not been studied sufficiently and that for the purpose of correct diagnosis the applicant required an X-ray examination. The expert also concluded that the second applicant had traces of thermal injuries, which could have been caused, as alleged by the applicant, by cigarette burns. As it appears from the case-file, despite the medical recommendation, the second applicant was not provided with an X-ray examination.

According to the above forensic report, which included a detailed description of the second applicant ’ s ill-treatment allegations, the latter implicated the then Minister of Interior in his ill-treatment.

14. On 22 April 2004 the first applicant went on a hunger-strike to protest the failure of the investigator to question several witnesses on his behalf. He also reiterated that the second applicant had given a self-incriminating statement under duress and requested to be confronted with him in person.

15. In another complaint addressed to the Tbilisi City prosecutor on 11 June 2004 both applicants complained that the investigation had been biased and one-sided. The second applicant, whilst referring to the relevant medical reports, maintained his ill-treatment allegations against the police. He further claimed that the forensic examination had not been comprehensive as it had omitted the fact of a possible bone fractures. The applicants requested the investigator ’ s withdrawal from the proceedings.

16. On 5 July 2004 the pre-trial investigation was concluded. After acquainting himself with the case file, the first applicant requested, on 23 July 2004, that the criminal proceedings against him be discontinued. He maintained, inter alia, that the only item of direct evidence against him was the second applicant ’ s self-incriminating statement, which had been extracted from the latter by ill-treatment in the absence of a lawyer. The request was refused.

17. On 25 July 2006 the Tbilisi District Court, whilst dropping the charges under Article 236, convicted both applicants on the remaining counts and sentenced them each to nine years ’ imprisonment. The second applicant ’ s total prison sentence which included the unserved part of his previous sentence was set at ten years.

18. During the first-instance court proceedings the second applicant reiterated that his self-incriminating statements had been extracted by ill ‑ treatment. He also complained that his additional questioning had taken place in the absence of a lawyer and requested that the relevant interview record of 12 January 2004 as well as the report on a crime scene examination be excluded from the criminal file as unlawful evidence. The requests were rejected by the court as ill-founded. The trial judge concluded that there was no need to address the applicant ’ s argument concerning his forced confession; the latter would not have been considered anyway, since the applicant had objected to his pre-trial statement being read out in court. Nevertheless, the trial judge did refer to the second applicant ’ s pre-trial statement in so far as, according to the judge, the second applicant ’ s indications had allowed the police to locate M.T.

19. The applicants appealed their conviction protesting their innocence. They complained, inter alia, that the trial court notwithstanding the second applicant ’ s ill-treatment allegations had relied in its reasoning on the latter ’ s pre-trial statement. On 24 October 2006 the Supreme Court of Georgia upheld the applicants ’ conviction and sentence in full. The court concluded that there had been no meaningful procedural violations which could have led to the quashing of the applicants ’ conviction.

COMPLAINTS

The applicants complained under Article 3 of the Convention about the ill ‑ treatment they had allegedly been subjected to with the purpose of extracting a confession from them. Relying on Articles 5 §§ 1 (a), (b) and (c) and 3 of the Convention they claimed that their arrest and pre ‑ trial detention had been unlawful. Further, the applicants complained under Article 6 §§ 1, 2 and 3 of the Convention, that their right to a fair trial had been violated, in particular, by the admission and use of evidence that had been obtained unlawfully. Also the decisions of the domestic courts had been manifestly unreasonable and both applicants ’ defence rights had been violated. The first applicant also alleged that the President of Georgia had violated his presumption of innocence during the 10 January 2004 press ‑ conference. In this connection he also relied on Article 14 of the Convention.

QUESTIONS TO THE PARTIES

1. Was the second applicant subjected to ill-treatment in breach of Article 3 of the Convention after his arrest on 10 January 2004?

2. Have the competent domestic authorities conducted an adequate investigation into the second applicant ’ s 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)? At what stage are the criminal proceedings and has the decision been taken to prosecute the alleged perpetrators? In that connection, the Government are invited to provide the Court with a copy of the relevant criminal case file.

3. Did the applicants have a fair hearing in the determination of the charges against them, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular, were the applicants convicted on the basis of the evidence obtained in contravention of Article 3 (see Gäfgen v. Germany [GC], no. 22978/05, §§ 166 ‑ 167, 1 June 2010)?