CASE OF KUPARADZE v. GEORGIA
No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);No violation of Article 6+6-3-d - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial) (Article 6 - Right to a fair trial;Article 6-3-d - Examination of witnesses);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Access to court)
André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1992 and lives in Tbilisi. 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. On 9 November 2006 a classmate of the applicant, Mr T.T. (hereinafter “T.T.”), was stabbed several times in a secondary school playground. The applicant, aged fourteen at the material time, was present at the scene. There were no eyewitnesses to the incident. 8. According to the applicant’s version of the events, on the above date and at the material time, she met with T.T. in the school playground. They were discussing T.T.’s need for a certain sum of money when four young men – strangers to the applicant – appeared and two of them immediately attacked T.T. One of the two attackers held T.T. down on the ground and both men stabbed him several times with two different knives. The applicant claimed that T.T. had owed them money. One witness (“the witness”) stated that at the material time she had seen two young men fitting the description given by the applicant climb into the school playground swearing and leave after a while. 9. According to the official version of the events based on T.T.’s statements, the applicant and T.T. met in the school playground following the former’s promise to lend T.T. a certain sum of money. In the course of the conversation, T.T. kneeled with his back to the applicant. At that moment, the applicant hit him on the head. T.T. fell to the ground and the applicant stabbed him with a knife from behind. While T.T. remained conscious, the applicant held him down with one hand and continued stabbing him with the other. T.T. was facing the ground during the entire incident and could not see whether the applicant was using a knife. T.T. managed to escape from the applicant and ran approximately forty metres before falling unconscious on the school’s basketball court, where he was eventually found. Later he was transported to a hospital where, after emergency surgery, his life was saved. 10. On 14 November 2006 the applicant was arrested in view of T.T.’s statement given to the investigating authorities. She was subsequently remanded in custody on charges of attempted aggravated murder. 11. On 9 January 2007 a forensic expert report of the Ministry of the Interior (“the first MI report”) confirmed that multiple wounds had been inflicted upon the victim with “a sharp object, possibly a knife”. A forensic chemical examination report no. 443/sq produced by the Ministry of the Interior (“the second MI report”) found particles of grey cotton fibre on the applicant’s jacket that by their colour, structure, and type were similar to the grey cotton fibre contained in the textile of the victim’s jacket. 12. On an unspecified date an initial forensic medical expert report no. 6135 by the National Forensic Bureau (“the first NFB report”) concluded that T.T.’s wounds had been inflicted with a sharp object and that taken together, they had been life-threatening. The expert attached particular importance to two wounds to the chest which had perforated T.T.’s lungs. Between 16 and 20 February 2007 the same forensic expert carried out an additional examination and issued report no. 998/31 (“the second NFB report”) at the applicant’s request. The second report specified that six wounds had perforated T.T.’s lungs and re-confirmed that “all the wounds had been inflicted with some sharp object/objects and, taken together, were life-threatening.” Concerning the question of whether the injuries were inflicted on the victim with one or several weapons, the NFB expert stated: “In order to answer that question it is necessary to convene a panel of forensicmedical experts, and additionally to have the clothes as well as the object/objects possibly used to inflict the injuries presented, if available.” 13. The expert testified during the proceedings before the first-instance court that the discrepancy between the first and the second NFB reports concerning the number of wounds inflicted on the victim had been caused by the poor quality of the photocopied material relied on during the first NFB expert examination. The expert confirmed that the second NFB report was therefore more accurate and six, rather than two, wounds had perforated T.T.’s lungs. The exact figure depicting the total number of wounds was not explicitly specified either by the experts or by the domestic courts. 14. On 12 June 2007 the Tbilisi City Court found the applicant guilty as charged and sentenced her to ten years’ imprisonment, of which the last five years were suspended on probation. Dismissing altogether the applicant’s version of the events and relying on T.T.’s statements, the first and second NFB reports, the first and the second MI reports and other evidence in the case, the court found that the applicant had stabbed T.T. “with a knife.” The knife was never recovered. Amongst certain other items of evidence, the City Court also referred, in its judgment, to statements of several witnesses, schoolmates of the applicant, according to which the latter was known for having been carrying a knife with her at school on a regular basis. 15. The applicant appealed, reiterating that the victim had been stabbed by two young men with two knives and that she could not possibly have inflicted the wounds alone. She argued that the witness statement supporting her version of the events had been rejected arbitrarily. During the trial at the Tbilisi Court of Appeal, in accordance with Article 364 § 1 of the Code of Criminal Procedure (see paragraph 40 below), the defence adduced in evidence two alternative forensic reports, both issued on 2 November 2007, and argued that their results supported the applicant’s version of the events, including the use of two knives, and conclusively excluded the applicant’s guilt. 16. The first report, of a comprehensive alternative forensic expert examination, was prepared by a panel of experts at a private forensic science centre. The descriptive part of the report no. 42/k, which reflected results of an examination carried out between 25 October and 2 November 2007 (“the first alternative forensic report”), was based on the following material: the judgment of the first-instance court, T.T.’s statements, the applicant’s statements, the first MI report and T.T.’s medical file. 17. The applicant’s lawyer presented the panel of experts with the following questions: “1. Based on the [existing evidence and the victim’s statements] ... was the victim capable of showing resistance to G. Kuparadze or otherwise defending himself ...? 2. Considering the existing material, what type of pain and responsive reactions (self-defence, etc.) would the [victim] have had at the time the first injury was inflicted on him? 3. In view of the [victim’s] statements and considering the mechanism used to inflict the injuries described in the [forensic reports], how plausible is it that G. Kuparadze inflicted them on the [victim] by holding his shoulder with one hand while the latter was initially kneeling and then crawling on the ground face-down? 4. In view of the convicted G. Kuparadze’s statement, how possible is it that the [victim’s] injuries described in the [forensic reports], given the mechanism used to inflict them, were inflicted by two different persons if one of them had been holding [the victim]?” 18. excerpts from the applicant’s criminal case file with the following concluding paragraph: “Given that the [first-instance] court accepted the [victim’s] statements and dismissed the statements given by the convicted G. Kuparadze and [the witness], that the statements given by the [victim] and the convicted G. Kuparadze essentially contradict each other, that there is no eyewitness in the case except for [the witness], as well as the fact that the weapon of the crime is missing, the lawyer commissioned the alternative expert examination to determine the truth regarding the case and in order to receive answers to his questions.” This was followed by a more detailed account and an assessment of the matter. 19. After examining all the material at hand, the experts came to the following conclusions in response to the questions posed by the applicant: “1. ... Before losing consciousness, T.T. was able to carry out various active measures (self-defence, punching, running, etc.). 2. ... [considering the nature of the injuries] T.T. would have experienced a sharp, strong pain at the moment of their infliction which would have triggered adequate self-defensive or other movements. 3. Considering the statement given by T.T. ... the location of the wounds ... and the anatomical-physiological differences between the sexes ... it is hard to imagine how G. Kuparadze could have inflicted the wounds on T.T. in the conditions described by the latter. 4. Considering the nature and location of T.T.’s wounds, it is entirely possible that they were inflicted in the conditions described by G. Kuparadze (by two individuals, one holding T.T. and both stabbing him with knives).” 20. The applicant’s lawyer commissioned a second forensic expert report from the Research Centre for Independent Forensic Examinations of the Georgian Technical University concerning the instrument of the crime and other technical aspects of the incident. The report no. 2-e-116, which reflected results of an examination carried out between 19 October 2007 and 2 November 2007 (“the second alternative forensic report”), was based on the following material: the statements of T.T., the statements of the applicant, the first MI report, the second NFB report, T.T.’s medical file and the first-instance court judgment. 21. The lawyer presented the panel of experts with the following questions: “1. In view of the [forensic] expert reports presented, were the injuries to [the victim’s] body and [through his] clothes inflicted with one or several objects (knives)? 2. How possible is it that G. Kuparadze inflicted the wounds as described in T.T.’s statement, by holding his shoulder with one hand while he was initially kneeling and then crawling on the ground face-down, in view of the mechanism used to inflict the wounds [described in the forensic and forensic medical reports]? 3. How possible is it that the ... wounds were inflicted by two different individuals and accordingly with two different knives, in accordance with the statement given by G. Kuparadze?” 22. Having provided a reconstruction of the incident by means of sketches and having analysed the case materials, the experts reached the following conclusions: “1. The wounds were inflicted on T.T.’s body and [through his] clothes not with one but with two sharp objects, possibly knives, of different sizes, 2 and 4 centimetres wide [respectively]. 2. G. Kuparadze could not have inflicted the wounds as described in T.T.’s statement, by holding his shoulder with one hand while he was initially kneeling and then crawling on the ground face-down, in view of the mechanism used to inflict the wounds [described in the forensic and forensic medical reports] and bearing in mind the limited access to the areas of impact. 3. ... it is possible ... that the ... wounds were inflicted by two different individuals (and accordingly with two different knives), as described in G. Kuparadze’s statement.” 23. On 7 December 2007 the Tbilisi Court of Appeal upheld the conviction. Concerning the applicant’s argument that the witness statement confirmed her version of the events, the court reasoned that although the witness had stated that she had seen two men climb in and out of the school playground, she had also said that that was a common sight at that school. Accordingly, the court found it impossible to establish that those persons had been implicated in T.T.’s stabbing. 24. The Court of Appeal dismissed the two alternative forensic reports commissioned by the defence. Regarding the first alternative forensic report, the court stated the following: “The court cannot accept the findings of the [first alternative forensic report] given that it is drafted in violation of a number of procedural norms. In particular, information as to which specific materials were presented [to the experts] and relied on when reaching the conclusions is missing; the research part of the forensic report contains a legal assessment of the [first-instance court] judgment and of a number of pieces of evidence, whereas under Article 96 of the Code of Criminal Procedure an expert examination is not to be carried out to determine legal matters. Furthermore, the concluding part of the expert examination [report] is presumptive, speculative and based on probability which, in the first place, is beyond the expert’s competence as provided for in Articles 365 [and] 374 of the Code of Criminal Procedure, [and] no evidentiary value may be attributed to speculative findings, in accordance with Article 371 (6) [of the Code].” 25. As regards the second alternative forensic report, the court noted the following: “The court cannot accept the findings of the [second alternative forensic report] as they are also speculative. Furthermore, the report relies on the conclusions of the medical and forensic expert examinations [medical documentation, the MI report and the second NFB report] which themselves do not categorically determine the nature of the object used to inflict the injuries on the victim, and even more so the number [of such injuries]. Without referring to a concrete scientific study, the [report] analyses and rejects the victim’s statement and relies on the statement of the accused.” 26. The appellate court also reasoned that the applicant’s argument that two unidentified men had beaten the victim while stabbing him was not confirmed in view of the absence of any physical signs of beating in the relevant forensic medical report. In the subsequent part of the judgment the Court of Appeal referred to the first and the second MI reports and the second NFB report, among other evidence, while upholding the judgment of the first-instance court. 27. On 12 September 2008 the Supreme Court of Georgia dismissed an appeal on points of law lodged by the applicant as inadmissible. Without responding to the applicant’s arguments that the lower courts’ dismissal of the alternative forensic reports had been erroneous and arbitrary, and that the main argument of the defence had been left without an appropriate answer, the court reproduced the relevant provision of the Criminal Procedure Code, holding that “the case [was] not important for the development of the law and coherent judicial practice, the [contested] decision [did] not differ from the Supreme Court’s existing practice in such matters, and the appellate court [had] not committed any major procedural flaws during its examination which could have significantly affected its outcome.” 28. On 16 November 2006 the applicant, aged fourteen at the time, was remanded in custody and placed in a cell together with adult female inmates in Tbilisi Prison no. 5 for Women and Juveniles (“prison no. 5”). According to the case file, the applicant did not complain about the material conditions of her detention in that cell. 29. On 10 January 2007 the Minister of Justice issued an order for the creation of a separate section for juvenile female offenders within prison no. 5, and instructed the relevant authority to separate the inmates accordingly. 30. On 24 January 2007 the applicant was moved to the newly created juvenile section of prison no. 5. She was alone in a cell for five months and subsequently shared the cell with two other juveniles. The applicant complained about the material conditions of detention in that cell during the proceedings concerning the deferral of her sentence (see paragraphs 3234 below). 31. On 21 February 2009 the Public Defender of Georgia visited the applicant in prison. In letters dated 6 March and 24 April 2009 addressed to the Minister of Corrections and Legal Assistance, the Public Defender expressed his concerns about the conditions of the applicant’s detention in prison no. 5. According to him, the cell in which the applicant was detained with two other juveniles measured approximately 12-15 square metres, the water tap was out of order, causing humidity in the cell, and the ventilation did not function properly, which led to an unpleasant odour. According to a press release issued by the Public Defender’s Office on 20 March 2009, the tap in the applicant’s cell was fixed shortly afterwards. 32. On 11 March 2009 the applicant instituted proceedings requesting the deferral of her sentence pending the construction of a separate detention facility for juvenile female offenders. She argued that, in the absence of a separate facility, her detention in the adult prison, even if in a separate section for juveniles, as such amounted to a breach of Article 3 of the Convention. She further complained that the cell where she was serving her sentence was too small, the water tap was out of order causing humidity, the ventilation did not function properly, and that she was deprived of the opportunity to have daily walks, contrary to Article 3 of the Convention. 33. On 16 June 2009 the Tbilisi City Court rejected the deferral request as manifestly ill-founded. It reasoned that domestic legislation did not provide for deferral of a sentence pending the construction of a separate detention facility for juveniles and that the complaints concerning the alleged violation of the applicant’s rights under Article 3 of the Convention had not been substantiated. The applicant appealed. 34. On 23 September 2009 the Tbilisi Court of Appeal rejected the appeal as manifestly ill-founded in a final decision. It reasoned that such a deferral was not guaranteed by the domestic legislation. As regards the applicant’s allegation that her rights under Article 3 of the Convention had been violated, the court found the complaint unsubstantiated and contrary to the material available before it. It based its finding on the applicant’s own admission before the court that she had been afforded the possibility of unlimited daily walks but sometimes chose not to use her exercise time, as she preferred not to share the space with other inmates, that she was free to take showers even if taking turns with other juvenile inmates, and that she was able to see the psychologist present in the prison without any problems. 35. According to the applicant, she completed her secondary education while in detention, and was admitted to a university after passing the requisite admission exam. 36. On 11 November 2011 the applicant was released on probation.