THIRD SECTION

Application no. 29845/07 Davit ASSATIANI against Georgia lodged on 15 May 2007

STATEMENT OF FACTS

1. The applicant, Mr David Assatiani , is a Georgian national, who was born in 1967 and lives in Tbilisi . He is represented before the Court by Ms Eka Beselia , 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. The criminal proceedings against the applicant

3. On 9 January 2006 criminal charges were brought in absentia against the applicant for several episodes of aggravated armed robbery, vehicle theft, unlawful deprivation of liberty, unlawful purchase and possession of firearms and damage of other ’ s property, committed while acting in an organised armed group, offences under Articles 143 § 2 (a), (c) and (z), 179 § 2 (a), (b) and (c), 184 §§ 2 (a) and 3, 187 § 1, 188 § 1 and 236 §§ 1 and 2 of the Criminal Code of Georgia. On 10 January 2006, the Tbilisi City Court, acting upon the prosecutor ’ s request, ordered the applicant ’ s pre-trial detention for two months. The trial judge observed that the applicant stood accused of serous offences and that he had been evading prosecution. On the same date the applicant was declared a fugitive and his name was put on the wanted list.

4. On 18 February 2006 the applicant was additionally charged with aggravated murder, unlawful deprivation of liberty and extortion, offences under Articles 109 §§ 8 and 11, 143 § 3 (a) and 181 § 2 (a) and (c) of the Criminal Code of Georgia respectively. The new charges concerned the case of the abduction in 2001 and subsequent murder of L.K., a brother of K.K., a well-known Georgian football player. By a decision of 19 February 2006, the court ordered, immediately upon the applicant ’ s arrest, his two-month pre-trial detention.

5. On 3 April 2006 the two criminal cases against the applicant were merged.

6. On 17 November 2006 the applicant was extradited from Switzerland to Georgia . By a decision of 18 November 2006 the Tbilisi City Court confirmed the validity of the detention orders of 10 January and 19 February 2006 and ordered the applicant ’ s placement in pre-trial detention. The applicant challenged his detention on the ground that he was innocent. On 24 November 2006, the Tbilisi Court of Appeal dismissed the appeal.

7. At the same time the applicant requested to be confronted with M.A. (a co-accused in the criminal proceedings), noting that the latter ’ s incriminating pre-trial statement had provided the basis for his charges in the episode concerning the kidnapping and murder of L.K. The request was dismissed as unsubstantiated by the responsible investigator on 24 November 2006.

8. On 19 December 2006 the pre-trial investigation was completed and the case sent, along with a bill of indictment to the trial court. The firearms charges were dropped against the applicant, whilst the principle charge of abduction and aggravated murder ok L.K. was maintained.

9. On 22 December 2006 the trial hearing started. On 27 December 2006 the applicant ’ s lawyer requested the withdrawal of the prosecutor participating in the case, alleging that the latter had on several occasions violated his client ’ s presumption of innocence. He denounced in this connection the fact that the employees of the Ministry of Interior who had been involved in the investigation of L.K. ’ case had been awarded medals by the Minister of Interior in a televised award presentation. The trial court rejected the request, finding it unsubstantiated.

10. On 3 January 2007 the applicant ’ s lawyer requested the disqualification of the judge from the proceedings on the ground of his bias. The request, unsupported by the prosecutor, was dismissed by the judge.

11. On the same date the applicant also requested the questioning of several additional witnesses, among them, the applicant ’ s former wife, their several neighbours, and A.Tch ., an investigator who had been in charge of L.K. ’ s case at its initial stage of investigation. The judge granted the request in part only as far as the questioning of the neighbours was concerned.

12. At a subsequent hearing the applicant ’ s lawyer again requested the exclusion of the judge from the proceedings, complaining that he had revealed bias when, amongst others, dismissed most of the applicant ’ s requests for the questioning of the defence witnesses; the request was dismissed as unfounded.

13. At the hearing of 29 January 2007 the applicant, as a consequence of his allegedly inappropriate behaviour, was expelled from the courtroom. At the subsequent hearings of 31 January and 5 February 2007 he requested the court to allow him to take part in the proceedings; the requests were refused. Only on 8 February 2007 was the applicant allowed back into the courtroom.

14. At the hearing of 22 February 2007 the applicant ’ s lawyer reiterated his request for the exclusion of the prosecutor from the proceedings, claiming that the latter had violated the applicant ’ s presumption of innocence by publicly naming him as L.K. ’ s killer during a press-briefing the previous day. The judge dismissed the request as unsubstantiated, noting that the applicant had failed to submit any evidence, e.g. the video recording in support.

15. On 6 March 2007 the Tbilisi City Court convicted the applicant as charged and sentenced him to twenty-five years ’ imprisonment. The applicant ’ s conviction concerning the abduction and murder of L.K. was primarily based on the pre-trial self-incriminating statement of M.A., the applicant ’ s co-accused in the proceedings, who subsequently concluded a plea bargain agreement with the prosecutor ’ s office.

16. The applicant ’ s conviction was confirmed by the Tbilisi Court of Appeal on 11 October 2007. By a decision of 4 January 2008 the Supreme Court of Georgia rejected the applicant ’ s appeal on points of law.

2. The Ministry of Interior documentary

17. Some time in 2006 the first channel of the Georgian public broadcaster, a state-funded television, aired a thirty-five minutes documentary film about the abduction and murder of Mr. L.K. The film, titled “crime uncovered” , was shot and produced by the press office of the Ministry of Interior of Georgia in 2006. The documentary, which mainly consists of the interviews with several high officials of the Ministry of Interior, the then Minister of Interior, also the prosecutor and the forensic experts involved as well as of the scenes of the reconstruction of Mr L.K. ’ s abduction and subsequent murder, details the investigation into the circumstances behind Mr L.K. ’ s case.

18. The film is organised around the story of Mr L.K. ’ s abduction and murder which is being retold by the head of the criminal police department of the Ministry, who refers to the applicant and his alleged accomplices by names and accounts in detail for their individual role in the commission of the offences concerned. The film also contains several fragments of the video recording of M.A. ’ s questioning, including during his visit to the alleged crime scene and at the end shows a video extract with the Minister of Interior, who is awarding medals to all the relevant officials for their individual contribution during the investigation.

3. The applicant ’ s alleged ill-treatment

19. According to the applicant, on 3 January 2007, upon his return from a court hearing to Rustavi no. 6 Prison, he was beaten by six prison officers escorting him. On 16 January 2007 criminal proceedings were initiated into the circumstances of the applicant ’ s ill-treatment and the applicant was granted victim status.

20. On 28 March 2007, in the context of the above proceedings, the applicant was charged with attacking prison officers, an offence under Article 378 § 3 of the Criminal Code of Georgia. According to the relevant decision of the prosecutor, in the course of the preliminary investigation it has been established that the applicant verbally and physically assaulted a prison officer M.G., who, as a result, sustained several bruises. The case file does not contain information about the progress of these proceedings.

4. The applicant ’ s state of health and the proceedings before the Court

21. In early February 2009 the applicant ’ s sister complained to the deputy head of the Parliament ’ s legal affairs department about the deterioration in the medical condition of her brother. Her complaint was forwarded to the Minister of Prisons. In reply, the applicant ’ s sister was provided with a copy of the medical certificate according to which it appeared that on 5 March 2009 the applicant had been transferred to the psychiatric wing of the prison hospital, where he was diagnosed with a minor depression. He had also undergone a comprehensive medical examination, including blood and urine tests and abdominal x-ray, as a result of which his diagnosis of chronic viral hepatitis C with low pathological activity and chronic cholecystitis had been confirmed. The applicant had been provided with anti-depressive and anti-viral treatment, the latter including various hepatoprotectors , riboxin and vitamins, and had been discharged from the prison hospital on 19 March 2009.

22. By letters of 13 July and 21 September 2009 the applicant asked the Court under Rule 39 of the Rules of Court to indicate to the Government to transfer him back to the prison hospital, where adequate medical treatment could be dispensed. On 29 September 2009 the Court rejected the applicant ’ s request. Instead it requested th e Government, under Rule 54 § 2 (a) of the Rules of Court to provide up-to-date information concerning the applicant ’ s state of health and the medical treatment provided for each of his conditions.

23. By letter of 30 September 2009, the Government accounted in detail for the applicant ’ s medical condition, noting that the applicant was being kept in the medical unit of Rustavi no. 6 Prison. According to the applicant ’ s medical file submitted by the Government, he had been periodically transferred to the prison hospital for comprehensive medical examinations. The applicant ’ s latest diagnosis was the following: minor depressive and anxiety disorders, chronic HCV with low pathological activity, chronic cholecystitis , toxicomania and gonarthrosis .

COMPLAINTS

24. The applicant alleged, under Articles 3 and 13 of the Convention that he had been ill-treated by prison officers on 3 January 2007 and that the domestic authorities had failed to conduct an adequate investigation in this regard. Relying on Article 5 § 3 of the Convention, he denounced his pre ‑ trial detention as unlawful.

25. Invoking further Articles 6 §§ 1 and 2 of the Convention the applicant alleged that the trial court had not been impartial and independent. Notably, the trial judge had refused to question several important witnesses in court and had expelled the applicant from the court room; he had also refused to exclude the prosecutor from the proceedings. Lastly, referring to the documentary film made by the press office of the Ministry of Interior and also to the press briefing of the prosecutor, the applicant complained that the authorities had breached Article 6 § 2 of the Convention by publicly accusing him at an early stage of the investigation.

QUESTIONS TO THE PARTIES

1. Have the responsible State agencies taken all necessary measures, including the provision of adequate medical treatment for the applicant ’ s various diseases, to safeguard his health and well-being in prison, in accordance with their positive obligations under Article 3 of the Convention? In particular,

(a) Was the applicant provided with a timely medical intervention for his mental disorder?

(b) Was he provided with adequate medical treatment for his other diseases, particularly viral hepatitis C? What is the current stage of that disease?

(c) Was Rustavi no. 6 Prison capable of providing him with the requisite medical treatment?

2. Was the principle of presumption of i nnocence, guaranteed by Article 6 § 2 of the Convention, respected in the applicant ’ s case given the contents of the documentary film produced by the Ministry of Interior and the press-briefing of the prosecutor? Has the applicant exhausted effective domestic remedies, if any, in respect of his complaint under Article 6 § 2 of the Convention?

The parties are invited to produce copies of the applicant ’ s relevant complaints and the decisions taken thereto. The Government are also requested to submit copies of the appeal and cassation court decisions .