CASE OF GALUASHVILI v. GEORGIA
Remainder inadmissible;No violation of Art. 5-3
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1956 and lives in Tbilisi. 6. Following an anonymous telephone call at 3.35 p.m. on 26 June 2004 informing the Central Police Department of Tbilisi (“the CPD”) that armed men had been seen driving a car, the police urgently planned an arrest operation. The case file contains a transcript of that call. 7. At around 4 p.m. on 26 June 2004 the car, driven by the applicant, was stopped in one of the central avenues of Tbilisi (for more details, see Galuashvili v. Georgia (dec.), no. 40008/04, 24 October 2006). According to the record of the applicant’s body search undertaken on the spot, certified by two witnesses’ signatures, a gun was found tucked in the belt of his trousers. After the search, the applicant was immediately conveyed to the CPD. 8. According to the applicant’s version of events, however, he was never searched and nor were the reasons for his arrest explained to him at the time. The record of the search was allegedly drawn up ex post facto and presented to him only at the CPD, twenty minutes after his arrest in the street. He refused to sign the record of arrest, claiming that it had been fabricated. 9. At the same time the applicant contended that he had first learnt about the nature of the charges against him when glancing at the television in the room of the CPD used for questioning. The evening news of 26 June 2004 reported, quoting the investigator in charge of the case, that the applicant, “a.k.a. the ‘Elephant of Tskhneti’, a well-known criminal and ... recidivist ... had been arrested for the unlawful transport and storage of arms in large quantities.” Only later was the applicant presented with the investigator’s decision, dated 8.00 p.m. 26 June 2004, opening a criminal case and declaring him a suspect. 10. On the same day, without the applicant’s knowledge, the police conducted a search of his home in the presence of his family members. The record of that search, attested by the signatures of several witnesses, disclosed that guns and ammunition were discovered there. In addition, the police discovered and seized several Georgian passports of the applicant, issued on unspecified dates and containing different serial numbers, as well as his two old Soviet passports, in one of which he was apparently mentioned as a national of the former Russian Soviet Federative Socialist Republic. The applicant’s wife refused to sign the record of the search, claiming that the police had planted firearms in their home. 11. On 27 June 2004 the Vake-Saburtalo District Court in Tbilisi validated the results of the two above-mentioned searches. 12. On 28 June 2004 the applicant was charged with the unlawful transportation and storage of firearms and ammunition. He pleaded “not guilty” but promised to cooperate with the investigation. On the same day the prosecutor requested that the applicant be remanded in custody, arguing as follows: ’s] guilt. He is not sincere in his dealings with the investigators. There exists a suspicion that he might interfere with the establishment of the truth. The possibility that he will abscond cannot be ruled out. A number of investigative actions have to be undertaken...” No were relied on, or specific explanations put forward, in support of the above assertions. 13. At a hearing on 29 June 2004, the applicant denounced the unfounded nature of the charges and stated that his family, job and fixed place of residence were guarantees of his appearance for trial. He reaffirmed his readiness to cooperate with the investigation and stated that he was suffering from diabetes. The Vake-Saburtalo District Court ordered the applicant’s pre-trial detention for three months in the following terms: “...Having examined [various pieces of evidence] ... [the court] has come to the conclusion that the collected evidence discloses a substantiated suspicion that the accused committed the offence in question. The evidence has been collected in conformity with the procedural norms. “[In the court’s] opinion, the prosecutor’s request is substantiated, and granting it would be lawful since the accused has been charged with an offence carrying more than five years’ imprisonment. The seized gun has to be identified; it remains to be seen whether it has been the subject of suspicion in any other crimes. The suspicion that the accused, if released, might interfere with the establishment of the truth or, in view of the prospect of punishment, abscond is substantiated.” 14. The applicant appealed, requesting his release on the same grounds as had previously been put to the District Court. He submitted that the prosecution had not proved that there existed grounds for a reasonable suspicion that he might either abscond or negatively influence the investigation pending trial. The applicant also referred to his diabetes as an argument for release. The prosecutor replied that the appeal was unsubstantiated. A number of investigative measures had to be undertaken, and the applicant’s release might conflict with the interests of the investigation. The prosecution noted that no medical certificate proving the applicant’s disease had been submitted. 15. On 1 July 2004 the Tbilisi Regional Court upheld the detention order of 29 June 2004. It noted that the applicant should remain in custody on the basis of the circumstances “well argued in the prosecutor’s submissions”. In particular, the court continued, “there existed sufficient grounds for the assumption that the applicant’s release pending trial would hinder the establishment of the truth and, in particular, the due assessment of the evidence submitted by the accused.” 16. Both the initial detention order of 29 June 2004 and the appeal decision of 1 July 2004 endorsed the fact that firearms and ammunition had been discovered on the applicant’s body and at his home on 26 June 2004. 17. On 5 July 2004, the applicant’s lawyer requested an official expert medical opinion on the applicant’s condition. The request was dismissed by the investigator on 8 July 2004 on the ground that the applicant had the right to have himself examined by an independent medical expert. 18. On 26 July 2004 the applicant’s lawyer requested the prosecution to include in the criminal case file the written statements of thirteen persons whom he had questioned himself. Some of those persons, having been eyewitnesses to the applicant’s arrest in the street on 26 June 2004, stated that the applicant had not been searched on the spot. Others, being witnesses to the search of the applicant’s home, testified that the police had planted the firearms there. The lawyer also requested that those witnesses be interviewed by the prosecution. 19. On 28 July 2004 the investigator in charge of the applicant’s case refused to include the above-mentioned statements as evidence in the file or to interview their authors. He reasoned that, since all of the witnesses who had allegedly been eyewitnesses to the applicant’s arrest were women, they would have been uninterested in what had been happening in the street and their testimonies, being moreover “superficial, incomprehensive and unsubstantiated”, were not trustworthy. The investigator suggested that those female witnesses might have been influenced and recalled that, in any case, the search on the spot had already been confirmed by other witnesses’ signatures. As to the witnesses to the search of the applicant’s home, the investigator considered that, as they were his neighbours, they were not impartial. 20. The applicant’s lawyer challenged that decision before the prosecutor, complaining, inter alia, that the investigator had discriminated against the female witnesses. The prosecutor dismissed the appeal on 2 August 2004 and instead ordered that the police officers who had been involved in the applicant’s arrest and in the search of his house be questioned. 21. An alternative expert medical opinion of 3 September 2004 confirmed that the applicant was suffering from a progressive type of diabetes and needed intensive insulin treatment. The opinion concluded that the risk of hypoglycaemia was high which, in the absence of urgent intervention, could lead to the applicant’s death. The following week, the applicant was transferred, upon his request, to the prison hospital where he stayed until his release (see paragraph 23 below). 22. On 25 September 2004 the investigation was terminated and the case sent to the Vake-Saburtalo District Court. During the trial, which opened on 18 November 2004, the applicant’s lawyer complained of the prosecution’s refusal to admit to the file the above-mentioned thirteen testimonies (see paragraph 18 above). He also referred to the fact that the witnesses for the prosecution, whose signatures certified the record of the applicant’s search, had changed their testimony in favour of the latter. In fact, when interviewed by the District Court, those persons said that they had not witnessed the actual process by which the gun on the applicant’s body had been revealed. 23. In its verdict of 22 November 2004, the Vake-Saburtalo District Court convicted the applicant of the unlawful transportation and storage of firearms and ammunition. In its opening part, the verdict referred to the applicant as an unemployed person. The court did not accept the prosecution witnesses’ altered testimonies, considering that they had been influenced by the applicant’s authority as a criminal ringleader. As disclosed by the record of the hearing, the prosecutor submitted – subsequently endorsed by the court – that the applicant’s “donation” of 100,000 Georgian laris (EUR 42,825) to the “Development Fund of the Law-Enforcement Agencies” should be considered as a mitigating factor. The facts that the applicant had had no prior convictions and was suffering from diabetes were also endorsed as mitigating circumstances. The applicant was sentenced to one year’s imprisonment, suspended, and was immediately released from the courtroom. 24. On 3 December 2004 the applicant challenged the verdict before the Tbilisi Regional Court, seeking an acquittal. However, on 22 December 2004 he informed the Regional Court that he had lost interest in the proceedings and withdrew his appeal. According to the applicant, he had done so for security reasons, as the authorities had threatened to arrest him again. “When the police officer, or other competent official, decides that the grounds prescribed by this Code for an arrest exist, he should inform the suspect thereof in understandable terms. Namely, the officer should explain to the suspect what are the charges leveled against him ... and convey him to a police station or other lawenforcement office.” “A restraint measure shall be applied to ensure that the accused cannot avoid the preliminary investigation and trial, that his further criminal activity is prevented, that he cannot interfere with the establishment of the truth in the given criminal case, or that the court’s verdict is executed. The application of a restraint measure is justified if the evidence in the criminal case file sufficiently substantiates the assumption that it is necessary to ensure the attainment of the aims mentioned in the first paragraph of this Article. The ground for the imposition of pre-trial detention can be a substantiated suspicion that the accused may abscond or interfere with the establishment of the truth in the criminal case, or that a serious or grave crime has been committed.” Apart from pre-trial detention, Article 152 § 1 envisaged the possibility of using such measures of pre-trial restraint as police supervision, home arrest, bail or a personal undertaking not to leave the place of residence. “Pre-trial detention shall be imposed only with regard to persons charged with an indictable offence carrying [a punishment of] more than two years’ imprisonment ...”