THIRD SECTION

Application no. 56825/08 Jemal SIRADZE against Georgia lodged on 13 November 2008

STATEMENT OF FACTS

1. The applicant, Mr Jemal Siradze, is a Georgian national, who was born in 1991 and lives in Tbilisi . He is represented before the Court by Mr L. Chincharauli and Mrs M. Kobakhidze, lawyers 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.

3. On 7 May 2007, in the course of a street fight, the applicant, who was fifteen years old at that time, received a serious head injury and a gunshot wound in his left hand, whilst another teenager, N.Ch. was killed and his brother, L.Ch. wounded. On the same date criminal proceedings were initiated into the circumstances of N.Ch. ’ s murder and L.Ch. ’ s attempted murder. On 9 May 2007 the applicant was charged with the above offences along with unlawful possession and use of a firearm under Articles 108 § 2 (b), 19-108 § 3 (a) and 236 §§ 1 and 2 of the Criminal Code of Georgia respectively.

4. On 29 May 2007 a forensic examination established that N.Ch. died from two gunshot wounds in the chest area and abdomen.

5. On 7 June 2007 the applicant was questioned. According to his statement, on 7 May 2007 he and several of his classmates had a verbal altercation with several unknown teenagers which eventually developed into a fight. The applicant was severely beaten in his head with a knuckle-duster. In order to defend himself he fired three warning shots towards the ground and then another shot aiming at L.Ch ’ s legs. He noticed that L.Ch. got wounded and started to run away. He was chased however by N.Ch. and another teenager, identified as G.G., and fell down; then a fighting erupted for control of a gun and another two gunshots followed; as a result the applicant was wounded in his left hand whilst N.Ch. got killed. The applicant claimed that the fatal shot had been fired by G.G.

6. On 8 June 2007 the applicant ’ s lawyer requested the additional questioning of L.Ch. (who in the meantime had been granted victim status) and the questioning of eight additional witnesses. By a decision of 11 June 2007 the investigator in charge rejected his requests as unsubstantiated.

7. The results of the forensic examination conducted between 12 and 14 June 2007 established that L.Ch had a perforating gunshot wound in the area of his left buttocks. As for the applicant, following a forensic medical examination conducted between 12 and 25 June 2007, he was diagnosed as suffering from a serious head injury, brain injury and skull bone fracture; multiple hematomas on the applicant ’ s head, excoriations on the legs and in the area of his knees as well as a gunshot wound in his left hand were established on his body. The medical experts classified the applicant ’ s overall medical condition as life-threatening.

8. On 27 June 2012 the pre-trial investigation was concluded and the criminal case file against the applicant along with a bill of indictment was transmitted to the first-instance court.

9. On 11 July 2007 the applicant ’ s lawyer requested the first instance court to question several witnesses on the applicant ’ s behalf, amongst them, I.E. and G.P., the two eye-witnesses to the incident. He also requested the court to arrange for several additional forensic examinations which would establish the trajectory of the bullets that had hit the applicant and N.Ch. and the distance from which they had been fired. On 17 July 2007 the court granted the defence ’ s requests in part; it refused to question I.E. and G.P. despite the defence ’ s claim that they both eye-witnessed the incident of 7 May 2007 and could confirm that the applicant had been acting in self ‑ defence.

10. On 27 July 2007 the Tbilisi City Court convicted the applicant as charged and sentenced him to ten years ’ imprisonment.

11. On 25 August 2007 the applicant appealed his conviction as far as the murder and attempted murder counts were concerned. He claimed, inter alia , that the first-instance court failed to elucidate the discrepancies among different witness ’ statements; it also overlooked the applicant ’ s self-defence argument and relied, to a large extent, on the testimony of G.G. who had himself participated in the fight and had allegedly caused the applicant severe head injuries. Lastly, the applicant ’ s lawyer criticised the decision of the investigative authorities to separate the criminal proceedings concerning the applicant ’ s wounding.

12. On 20 November 2007 the Tbilisi Court of Appeal confirmed the applicant ’ s conviction in full.

13. By a decision of 16 July 2008 the Supreme Court of Georgia whilst slightly amending the qualification of the offences as far as the aggravating circumstances were concerned, maintained the applicant ’ s conviction and the sentence in full.

14. On 26 June 2007 criminal proceedings were initiated under Article 117 § 1 of the Criminal Code of Georgia into the circumstances of the applicant ’ s wounding. On 2 July 2007 the applicant ’ s lawyer requested the questioning of seven witnesses, but his request was rejected as unsubstantiated.

15. On 3 September 2007 the applicant ’ s lawyer asked the investigator to admit into the case file the results of an independent medical examination of the applicant. Furthermore, he reiterated his request concerning the questioning of several witnesses, among them L.Ch. and G.G. The request for the questioning of the witnessed was refused on 9 September 2007, whilst the request concerning the medical report was left unanswered.

16. On 26 September 2007 the applicant ’ s lawyer reiterated his requests with the General Prosecutor of Georgia . The letter was transmitted to the Tbilisi City deputy prosecutor, however no reply followed.

17. On 20 November 2007 the applicant ’ s lawyer requested the withdrawal of the responsible prosecutor from the above proceedings on the ground that he was also involved in the criminal proceedings conducted against the applicant. On 21 November 2007 the applicant ’ s lawyer also complained with the Prosecutor General about the delay in the investigation and the fact that the applicant had not been granted victim status.

18. According to the case file, most of the applicant ’ s complaints concerning the inadequacy and ineffectiveness of the investigation into the circumstances of his wounding have been left unanswered. On 27 October 2008 the investigation was discontinued for lack of evidence of a crime. The decision in its entirety was based on the results of the criminal proceedings conducted against the applicant. The applicant challenged the prosecutorial decision; the Tbilisi City Court dismissed the appeal on 24 September 2009. The decision on discontinuation was further confirmed by the Tbilisi Court of Appeal on 10 November 2009.

COMPLAINTS

19. The applicant complained under Articles 3 and 13 of the Convention about the ineffectiveness of the investigation conducted into the circumstances of his wounding.

20. Under Article 6 §§ 1 and 3 of the Convention he further complained about the unfairness of the criminal proceedings conducted against him. He claimed that despite some serious discrepancies in the witness statements, the domestic courts refused to question several important witnesses on his behalf. Further, the courts without any reasoning dismissed the applicant ’ s self-defence argument and overlooked the fact that he had himself sustained a serious head injury and a gunshot wound into his left hand. The applicant denounced in this connection the domestic decisions as being arbitrarily reasoned.

QUESTIONS TO THE PARTIES

1. The criminal proceedings against the applicant

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular

– Were the decisions of the domestic courts sufficiently reasoned?

– Did the refusal of the domestic courts to examine several witnesses on the applicant ’ s behalf amount to a violation of Article 6 § 3 (d) of the Convention?

2. The investigation of the circumstances of the applicant ’ s wounding

– Have the competent domestic authorities conducted an adequate investigation into the circumstances of the applicant ’ s wounding as required by the procedural obligation under Article 3 of the Convention ( Members of the Gldani Congregation of Jehovah ’ s Witnesses and Others v. Georgia, no. 71156/01, §§ 96-97, 3 May 2007)? The Government are invited to submit a copy of the relevant investigation file.

– Did the applicant have at his disposal effective domestic remedies for his complaints concerning the investigation as required by Article 13 of the Convention?