THIRD SECTION

Application no. 23846/08 Nikoloz BADAGADZE against Georgia lodged on 6 May 2008

STATEMENT OF FACTS

1. The applicant, Mr Nikoloz Badagadze, is a Georgian national, who was born in 1975 and lives in Tbilisi. He is represented before the Co urt by Mr G. Badagadze and Ms R. Gabodze, 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 20 June 2005 a police officer D.Ph. drew up a report, according to which he had received “operative information” that the applicant had been in possession of a particularly large quantity of Subutex. The report stated that the applicant was keeping the drugs in his apartment. On the same day a preliminary investigation was initiated and the applicant was arrested by a group of police officers, which included D.Ph. and G.G. The personal search of the applicant did not reveal any unlawful substance on his person.

4. The applicant was then taken to the apartment of M.S., who, as disclosed by the case file, was his fiancée. According to the relevant police report, the search of the M.S. ’ s apartment was conducted by G.G. and D.Ph. without the attendance of independent witnesses and lasted from 22.50 p.m. to 00.30 a.m. At the beginning of the search, the applicant voluntarily handed to the police officers 10 white pills. Another 109 pills were additionally found in the bedside table in the bedroom. The search report was duly signed by the applicant, his fiancée and the two police officers.

5. On 14 September 2005 the applicant ’ s lawyer requested the investigator in charge to discontinue the criminal proceedings for, amongst others, the following reasons: he claimed that despite his client ’ s request, the applicant had not been provided with a lawyer until approximately 16.00 p.m. on 21 June 2005. Hence, within the initial nineteen hours of his detention he had been left without legal assistance. Further, the search of the apartment, where the police had allegedly found the drugs, had been conducted in the absence of independent witness. The applicant ’ s lawyer stressed in this connection that even those who had been present in the apartment during the search (the applicant ’ s fiancée, her mother and her aunt), had not been allowed to attend it; they had all been restrained in one room. Whilst also referring to several other procedural violations, the defence requested to exclude the search record as inadmissible evidence.

6. By a decision of 14 September 2005 the investigator rejected the defence ’ s request. In connection with the search of the apartment, he maintained that it had been conducted in “urgent circumstances” which automatically implied, according to Article 102 § 2 of the Code of Criminal Procedure of Georgia, the absence of any independent witnesses.

7. On an unspecified date the pre-trial investigation was completed and the case, along with a bill of indictment containing charges for unlawful possession of drugs in a particularly large quantity (Article 260 § 3 (a) of the Criminal Code of Georgia) was sent to the trial court. On 29 November 2005 the applicant ’ s lawyer reiterated his arguments before the first ‑ instance court and requested the discontinuation of the proceedings. Additionally, he lodged a separate request concerning the inadmissibility of the evidence seized in the search of the apartment.

8. On 8 September 2006 the Tbilisi City Court convicted the applicant as charged and sentenced him to nine years ’ imprisonment. The applicant ’ s conviction was based on the record of the apartment search and on the statements of several police officers, including D.Ph. and G.G. The applicant ’ s lawyer asked the trial court to examine in court D.Ph., the police officer who had drew up the initial police report on the basis of which the criminal proceedings against the applicant had been initiated. The request was, however, rejected and the trial court relied on D.Ph. ’ s pre-trial testimony. The Tbilisi City court ordered that the applicant undergo compulsory drug treatment program at the place of his imprisonment.

9. According to the applicant, the first-instance court disregarded the argument that the drugs had been planted in his fiancée ’ s apartment by the police during the search. In particular, the court failed to clarify the circumstances relating to the applicant ’ s arrest and search, such as precisely what information had served as a basis for the applicant ’ s arrest and why those present in the apartment had not been allowed to attend the search. He also dismissed as untrue the fact of having voluntarily handed to the police ten pills of Subutex. He noted in this connection that his personal search had not revealed any unlawful substance on his person; in such circumstances the relevant entry made in the apartment search report appeared to be contradictory as it failed to specify the source of the ten pills.

10. By a decision of 4 July 2007, the Tbilisi Court of Appeal whilst confirming the applicant ’ s conviction increased his prison sentence to eleven years. The appellate court relied in its decision mainly on the pre ‑ trial testimony of D.Ph, in-court statement of G.G. and on the apartment search record.

11. On 27 July 2007 the applicant ’ s lawyer lodged an appeal on points of law with the Supreme Court of Georgia. He reiterated his argument concerning the unlawfulness of the search of the apartment and denounced the refusal of the first two instances to question several witnesses in court.

12. The applicant ’ s appeal on points of law, which was qualified as lacking a legal interest, was rejected by the Supreme Court of Georgia on 12 March 2008.

13. According to the applicant, on 22 June 2005 he was placed in Tbilisi no. 5 Prison, were the conditions of his detention were inhuman and degrading. In particular, he was kept in an overcrowded cell, which accommodated some 45 inmates sharing 30 m² ; they had to sleep in turns with, on average, three inmates sharing one bed. The conditions of sanitation and hygiene were appalling: the cell with an extremely little space had a toilet area inside; there was no ventilation and the applicant, being exposed to cigarette smoke, was suffering from the lack of fresh air; in the summer it was extremely hot whilst in the winter, cold; the prisoners had a limited access to water and no proper washing facilities; the cell was also infe s ted with cockroaches and lice. The possibility for outdoor exercise was limited to once a week.

14. Sometime in 2007 the applicant was transferred to Tbilisi no. 1 Prison, where he alleged the conditions of his detention were similarly poor.

15. According to the applicant, his stay in prison was further exacerbated by the fact that he has not been provided with a compulsory drug treatment program and has been left without any legal assistance for his withdrawal symptoms.

COMPLAINTS

The applicant complained under Article 3 of the Convention about the conditions of his detention in Tbilisi nos. 1 and 5 prisons. He also alleged that although he was a drug-addict, he had not been provided with medication for his withdrawal symptoms; despite the court order he had also not been included in a compulsory drug treatment program. Relying on Article 5 of the Convention the applicant further claimed that his imprisonment had been unlawful.

The applicant also complained, under Article 6 of the Convention, about the unfairness of the criminal proceedings conducted against him. In particular, he contended that the domestic courts had wrongly assessed the evidence in his case file and had failed to give adequate reasons for rejecting his argument concerning the unlawfulness of the apartment search. He also denounced the domestic courts ’ failure to question several witnesses on his behalf. Relying on Article 13 of the Convention the applicant further contended that his access to a lawyer within the initial nineteen hours of his detention had been restricted. He also alleged several other breaches of procedure in the collection and evaluation of the evidence.

QUESTION S TO THE PARTIES

1. Was the applicant enrolled in a drug treatment program as ordered by the Tbilisi City Court? If not, did his consequential suffering from the withdrawal symptoms as alleged amount to a violation of Article 3 of the Convention?

2. Were the material conditions of the applicant ’ s detention in Tbilisi nos. 1 and 5 Prisons compatible with Article 3 of the Convention? In that regard, the Government are requested to provide detailed information concerning the conditions in which the applicant was detained, including information about the size and occupancy of the applicant ’ s cells in both prisons, access to toilet and washing facilities, access to natural light and fresh air, hygiene, food, clothing, heating, ventilation and outdoor activities.

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

(a) Was there a breach of the principle of fairness of proceedings under Article 6 § 1 of the Convention on account of the fact that the search of the apartment concerned was conducted in the absence of independent witnesses or an advocate? Was the applicant provided with sufficient procedural safeguards to prevent a violation of Article 6 § 1 of the Convention in this regard?

(b) Did the domestic courts duly examine the applicant ’ s allegation that the drugs had been planted by the police during the search?

(c) Did the fact that the applicant was allegedly denied legal assistance during his initial custody period amount to a violation of Article 6 § 3 (c) of the Convention?

(d) Did the refusal of the domestic courts to examine D.Ph. in court amount to a violation of Article 6 § 3 (d) of the Convention?