No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

András Sajó;Egidijus Kūris;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The applicant was born in 1940 and lives in Gelgaudiškis, Šakiai Region.

On 17 February 2010 the Šakiai police arrested the applicant’s son, V.Ž., on suspicion of unlawful possession of narcotic substances with the purpose of distributing them under Article 260 § 1 of the Criminal Code.

On that same day the police searched the applicant’s apartment where she lived together with V.Ž., and found some small plastic bags. The following day a search was conducted in the applicant’s daughter V.B.’s apartment. As V.B. was living abroad, the applicant provided the police officers with the keys to V.B.’s apartment and was present during the search. The officers found some plastic bags, a digital weighing scales, and remnants of “herbal substances” (augalinės kilmės medžiagos).

On 19 February 2010 the Šakiai District Court authorised V.Ž.’s detention for fourteen days.

On 2 March 2010 an officer informed the head of the Šakiai Police that V.Ž. had unlawfully carried a mobile phone into detention. Most of the information on that phone, including any text messages sent by V.Ž., had been deleted but police officers found several text messages which V.Ž. had received from his fiancée on 19 and 20 February 2010, including the following:

“Will not risk transfer now, [it’s been] said.”

“Don’t use that phone at all, don’t you understand.”

“She is telling me something else.”

“Throw that phone away, don’t you understand, mother already knows what to do.”

“Give me their number, I’ll arrange for us to give it later. We can’t give it now. Your mother was questioned today and almost got arrested, don’t you understand? It’s all hidden now.”

“Mother doesn’t give anything, I’m telling you the customs office is watching everything.”

In the afternoon of 3 March 2010 the applicant arrived at Šakiai Police station, where V.Ž. was detained, to bring him food and clean clothes.

At 4 p.m. that day the applicant was informed by a senior investigator that she was being placed under provisional arrest (laikinas sulaikymas), on the basis of Article 140 of the Code of Criminal Procedure (see “Relevant domestic law” below). The decision to arrest the applicant indicated that she was suspected of unlawful possession of narcotic substances with the purpose of distribution (see paragraph 27 below). Provisional arrest had been deemed necessary in order to prevent her from fleeing, interfering with the investigation or committing further crimes because it was suspected that she had previously hidden drugs from the investigators (see paragraph 9 above). The record of the provisional arrest, drawn up at the time of the arrest, stated that the applicant had been explained her rights, including the right to a lawyer, and that she had refused to sign the record. The applicant was placed in the Šakiai police station in a nearby cell to her son. Her husband was informed of her arrest. At that time the applicant was sixty-nine years old.

On 4 March 2010 the applicant was served with the official notice that she was a suspect (pranešimas apie įtarimą). The notice stated that in February 2010 she had allegedly acquired drugs from unidentified persons, kept them in her daughter V.B.’s apartment with the purpose of distribution, and subsequently distributed them, thereby committing the act proscribed in Article 260 § 1 of the Criminal Code. The applicant signed the notice that she was an official suspect, to indicate that she had received it and that her rights had been explained to her.

From 11.30 a.m until midday that day the applicant was questioned as a suspect in the case, in the presence of a lawyer. She denied having committed any crimes and refused to answer any further questions.

At some point during the day the applicant started feeling weak, and felt a headache and a pain in her chest. An ambulance was called to the police station and the applicant was given first aid.

On the same day the applicant’s lawyer submitted a request to the Šakiai district prosecutor to release the applicant from provisional arrest. The lawyer argued that the applicant had not committed any crime and that she had only been arrested to pressurise her to testify against her son.

At 3.50 p.m. that day the Šakiai police released the applicant. The decision to release her stated that all the necessary investigative actions concerning the applicant had been conducted, and that there were no grounds to believe that she would interfere with the investigation upon her release.

On 5 March 2010 the Šakiai district prosecutor rejected the applicant’s lawyer’s request to release the applicant (see paragraph 15 above) as based on “subjective and declaratory statements” and thus unfounded. According to the applicant, she did not appeal against that decision because she had already been released.

On 30 September 2010 the Šakiai district prosecutor discontinued the pre-trial investigation against the applicant on the grounds of insufficient evidence that she had committed the crime outlined in Article 260 § 1 of the Criminal Code.

The Šakiai police continued the pre-trial investigation concerning the applicant’s son V.Ž. The police obtained his call records and questioned several witnesses who admitted to having bought cannabis from V.Ž.

On 4 November 2011 the Šakiai District Court convicted V.Ž. of unlawful possession of narcotic substances with the purpose of distribution under Article 260 § 1 of the Criminal Code. On 2 March 2012 the Kaunas Regional Court dismissed V.Ž.’s appeal, and on 23 October 2012 the Supreme Court dismissed his appeal on points of law.

On 25 February 2013 the applicant lodged a civil claim for damages against the State under Article 6.272 of the Civil Code. She claimed that her provisional arrest had been unfounded because she had not committed any crimes, as proven by the subsequent discontinuation of the pre-trial investigation. The applicant also argued that her arrest had been unnecessary because at the time she had been almost seventy years old, ailing and had had difficulties walking; she had had no prior convictions, had been retired and had had a place of residence with her husband. Thus, she claimed that it had been unlikely that she would have attempted to flee or hide from the investigation. The applicant noted that the investigation against her son had been instituted on 17 February 2010, and there had been no indication from that day until her arrest that the police suspected that she had committed any crimes or attempted to interfere with the investigation on the contrary, she had voluntarily come to the police station to see her son. The applicant argued that the real purpose of arresting her had been to force her to testify against her son.

The applicant further submitted that she had suffered pecuniary and non-pecuniary damage because of the provisional arrest: her blood pressure had risen and as a result she had had to seek medical help and take medication; she had become irritable, had started having nightmares and was scared of police officers; she felt humiliated in front of her son who had been detained in a nearby cell, as well as other inhabitants of her village, who subsequently thought of her as a criminal. The applicant claimed 2,300 Lithuanian litai (LTL, approximately 666 euros (EUR)) in respect of pecuniary damage resulting from her legal expenses, as well as LTL 10,000 (EUR 2,896) in respect of non-pecuniary damage.

At the hearing before the Šakiai District Court the applicant also submitted that, after arresting her, the police officers had searched her purse and tried to strip search her, but she had resisted. She stated that the cell in which she had been detained had been damp and dilapidated and that there had been smells emanating from the toilet which had made her nauseous.

On 27 May 2013 the Šakiai District Court dismissed the applicant’s claim. The court noted that the termination of the pre-trial investigation against the applicant did not make the investigation unlawful ab initio, and found that there had been sufficient grounds for suspicions against her: plastic bags had been found in the apartment where she lived together with her son V.Ž., and remnants of drugs had been found in the applicant’s daughter V.B.’s apartment. Furthermore, while detained, V.Ž. had unlawfully been in possession of a mobile phone, and the police officers had had grounds to believe that he had warned the applicant to hide the drugs which had been stored in V.B.’s apartment. Accordingly, the court found that the applicant’s provisional arrest had been well-founded. The court also noted that the applicant had not appealed against the district prosecutor’s decision of 5 March 2010 to refuse her release (see paragraph 17 above), which meant that the decision to arrest her had not been declared unlawful. Lastly, the court held that the medical documents submitted by the applicant did not prove that the deterioration of her health had been caused by the provisional arrest. The court did not address the applicant’s complaints concerning the conditions of her detention.

On 29 October 2013 the Kaunas Regional Court rejected the applicant’s appeal. It upheld the findings of the first-instance court that at the time of the arrest there had been sufficient evidence to suspect the applicant of having committed a crime, and that the subsequent discontinuation of the pre-trial investigation did not make the arrest unlawful. The Kaunas Regional Court also noted that Article 140 of the Code of Criminal Procedure permitted the provisional arrest not only of a suspect but also any other person in respect of whom it was necessary to conduct certain investigative actions. Having found that the applicant’s arrest had been lawful, the court held that there were no grounds to award the applicant any damages. It did not address the applicant’s complaints concerning the conditions of her detention.

On 18 December 2013, following an appeal on points of law by the applicant, the Supreme Court refused to examine the case as raising no important legal questions.


CASE OF BUZADJI v. THE REPUBLIC OF MOLDOVA

Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention)

Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra

The applicant was born in 1947 and lives in Comrat.

In March 2006 the applicant, who was the director of a State company (referred to herein as “B-G”), acknowledged in court that the company owed a private company 594,067 United States Dollars (USD) plus penalties (the total sum being USD 842,404) as a result of purchasing liquefied gas from that private company. On 26 May 2006 he was dismissed from his job.

According to the applicant, in July 2006 the investigating authorities summoned him to appear before them and to make a statement in connection with the alleged defrauding of B-G. He was subsequently summoned on several occasions and always appeared before the investigating authorities and cooperated with them. According to the materials submitted by the parties, thirteen different criminal investigations were initiated against the applicant and his two sons: the first two were initiated on 15 and 29 September 2006, but most of the others on 5 April 2007. On 25 May 2007 all the investigations were joined.

It can also be observed in the case file that the applicant’s sons were summoned to appear before the investigating authorities in May 2007 and were questioned as suspects in the case. It appears that the applicant’s sons were never arrested. On 13 September 2006 an invoice allegedly used for defrauding B-G was seized from the company. On 30 October 2006 the applicant’s personal computer was seized and various documents were recovered which allegedly proved the defrauding of B-G by the applicant.

On 26 October 2006 the Economic Court of Appeal upheld an application to initiate bankruptcy proceedings which had been brought against B-G.

On 21 December 2006 the Supreme Court of Justice quashed the lower courts’ judgments because it had been established that the debt to the private company was fictitious. The court relied, inter alia, on the results of a review of the economic and financial activities of B-G. The case was sent for retrial by the lower courts and is still pending.

On 23 March 2007 a further review of the economic and financial activities of B-G was carried out.

On 2 May 2007 the applicant was arrested. On 5 May 2007 he was formally charged with defrauding B-G.

On 5 May 2007 the Buiucani District Court accepted an application made by the prosecutor and ordered the applicant’s detention pending trial for fifteen days. The court found that:

“... the offence with which [the applicant] is charged is considered an exceptionally serious crime, which allows for detention pending trial, [the court] takes into account the nature and seriousness of the offence and the complexity of the case, and considers that at this incipient stage of the investigation there are reasonable grounds to believe that the accused could collude with other people (his sons, who have not been interviewed) in order to take a common position.

The other statements of the prosecution concerning the possibility that the accused may abscond, the danger of influencing witnesses or of destroying evidence are not substantiated by any specific information and are not very probable.”

The applicant appealed, referring to the ongoing civil proceedings concerning the debt owed by B-G to the private company, as well as to a confirmation of that debt by an administrator appointed in the meantime by the court. He further relied on the absence of any material in the file suggesting that he would abscond or interfere with the investigation in any manner. Moreover, as confirmed by medical certificates, the applicant (who was sixty at the time) suffered from a number of illnesses requiring in-patient treatment, which was unavailable in pre-trial detention. He was a well-known individual with a family, a residence and a job in Moldova and who had appeared before the investigating authorities every time he had been summoned during the period from July 2006 to May 2007. He further argued that the court had not even had the case file concerning the investigation in question before it when it had decided on his detention pending trial. The judge had only seen several documents concerning the charges against the applicant and the review of the economic activity of B-G (referred to above). The applicant added that his two sons had not been formally charged with any crime and that in any event if they had wished to collude they had had plenty of time to do so since July 2006 when they first learned of the investigation.

On 8 May 2007 the Chişinău Court of Appeal upheld the decision of 5 May 2007, essentially repeating the reasons given by the lower court.

On 16 May 2007 the Buiucani District Court extended the applicant’s detention pending trial by twenty days. After recapitulating the parties’ positions and citing the applicable provisions of the law, the court found that:

“... the grounds relied on when applying the preventive measure [of detention] remain valid, the majority of the investigative actions have been carried out, but a number of additional measures requiring [the applicant’s] participation are still necessary in order to send the case to the trial court. The court considers that the application on the part of the defence to replace the preventive measure [with house arrest] is premature, taking into account the seriousness and complexity of the case and the need to protect public order and the public interest, as well as to ensure the smooth and objective course of the investigation.”

On 22 May 2007 the Chişinău Court of Appeal upheld the decision of 16 May 2007. The court gave essentially the same reasons as it had in its decision of 8 May 2007, adding that:

“the risk that the applicant may destroy evidence persists, since the prosecutor has declared that not all the documents relating to the financial and economic activities [of the company] have been seized in order to be subjected to an expert analysis.”

On 5 June 2007 the Buiucani District Court extended the applicant’s detention pending trial by another twenty days. It gave the same reasons as it had done earlier. The applicant appealed, relying on essentially the same arguments as he had done earlier.

On 11 June 2007 the Chişinău Court of Appeal upheld the lower court’s decision, finding that it had been adopted in compliance with the law. The court also noted that the applicant was accused of a particularly serious offence which had allegedly caused damage to B-G of almost 9 million Moldovan lei (MDL, approximately 553,000 euros (EUR) at the time) and which was punishable by a prison term of ten to twenty-five years, that he had been charged with thirteen different offences, and that the investigation was still ongoing. If released he might be able to abscond or to influence witnesses who were staff at B-G and over whom he had influence.

On 26 June 2007 the Buiucani District Court rejected a further application by the prosecutor for an extension of the applicant’s detention pending trial and accepted the applicant’s request by ordering that he be placed under house arrest for thirty days. The court found that:

“... the applicant has been detained for fifty-five days and has participated in all the necessary investigative actions; ... Article 5 § 3 of the Convention imposes a presumption that an accused be freed while he awaits his trial; ... certain evidence, which may have been sufficient earlier to justify [detention] or to render alternative preventive measures inadequate, could become less convincing with the passage of time; ... it is for the prosecutor to prove the existence of a risk of absconding, and such a risk cannot be proved only by reference to the severity of the potential punishment; [the court referred to the applicant’s medical problems and his age, the lack of a criminal record, his permanent residence and married status]; the [European Court]’s case-law provides that detention pending trial should be exceptional, always objectively reasoned and must correspond to the public interest; the court finds that it is improbable that [the applicant] will abscond, influence witnesses or destroy evidence, and that the normal course of the criminal investigation is possible while the accused is under house arrest.”

The court set the following conditions for the applicant’s house arrest: prohibition from leaving his house; prohibition of having phone calls; prohibition from discussing his case with any person.

On 29 June 2007 the Chişinău Court of Appeal quashed the decision of 26 June 2007 and adopted a new one, ordering the applicant’s detention pending trial for twenty days. The court found that:

“... the lower court did not take into account the complexity of the case and the seriousness of the offence with which [the applicant] is charged; the court considers that while under house arrest [the applicant] could communicate with the other accomplices, who are not under arrest and who are, moreover, his sons; he could abscond by fleeing to the [self-proclaimed and unrecognised “Moldovan Republic of Transdniestria”], which is not under the control of the Moldovan authorities; he could influence witnesses, who are his former staff, in order to make them change their statements; the applicant has received visits from doctors and can obtain medical assistance in prison.”

On 16 July 2007 the Buiucani District Court extended the applicant’s detention pending trial by another twenty days. It gave the same reasons as it had done earlier. The applicant appealed, relying on essentially the same arguments as he had done earlier. The court recalled the prosecutor’s position, including the fact that the investigation had already been finalised and the file was ready to be presented to the applicant and his lawyers so that they could prepare for the trial. It also noted that

“the preventive measure of arrest was applied due to the seriousness of the offence with which [the applicant] is charged, the need to ensure the proper conduct of the criminal proceedings and of securing public order, as well as the existence of reasons to believe that he could exert negative influence on the course of the proceedings or abscond.”

The court then cited article 186 (3) of the Code of Criminal Procedure and found that “the grounds relied on by the prosecutor are applicable”.

On 20 July 2007 the Chişinău Court of Appeal quashed the lower court’s decision and adopted a new one, changing the preventive measure to house arrest. The court found that:

“the prosecutor did not provide any evidence confirming the continued need to detain [the applicant], did not submit additional materials confirming the probability that he could exert influence on witnesses who have already been heard; [the applicant] promises to appear before the investigating authorities whenever summoned; there is no specific information concerning any risk of absconding”.

The house arrest was maintained by the decisions of the Comrat District Court of 14 September and 14 December 2007. On 12 March 2008 the same court decided to release the applicant on bail, finding that he had been detained and then under house arrest for over ten months and never breached any of the restrictions imposed on him.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Procedure prescribed by law);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in 1987 and lives in Orsk, the Orenburg region.

The applicant received a summons from investigator K. to attend office no. 44 at the Sovetskiy district police department of the town of Orsk (отдел внутренних дел Советского района г. Орска) at 11 a.m. on 15 February 2005. The summons contained no further details. At 11 a.m. on 15 February 2005 the applicant, who was 17 years old at the time, arrived at the police station, as requested, together with his father and his friend Ms L. A police officer on duty registered their arrival at the police station. Investigator K. was absent and the applicant was asked to wait. Police officer M. took the applicant to his office.

At some point the applicant’s father was asked to participate in an investigative measure. When this was finished he could not locate the applicant at the police station. He and Ms L. were requested by police officer M. to leave the building. They remained outside near the main entrance waiting for the applicant. At some point they were told that the applicant was no longer in the police station. They left at about 7 p.m. As the applicant did not appear at home his parents enquired about his whereabouts at the Sovetskiy district police department, by telephone and in person. After many unsuccessful attempts they were finally told that the applicant had gone to police station no. 2 together with police officer Sh. and that he had stayed there until 8 p.m.

According to the applicant, police officer Sh. took him to an experts’ room where he was photographed and fingerprinted. Then, shortly after 3 p.m., Sh. led him out of the police station from a back door in the experts’ room and took him to Orsk police department no. 2 in a police car for questioning. According to the police station logbook, the applicant left the Sovetskiy district police station at 3.20 p.m. on 15 February 2005.

The applicant provided the following account of events at police department no. 2. The head of the police department, P., and police officer E. interviewed him about his alleged involvement in thefts from certain shops. The applicant denied involvement in the thefts. E. shackled the applicant’s hands behind his back, told him “to sit on the floor with his legs crossed in front of him”, tied his legs with a rope, “threw the rope across the neck to the back”, “hung it on a chair and pulled it”. The applicant felt severe pain in his back.

At some point operative police officer K. came in and interviewed the applicant. When P. and E. both came out K. untied the applicant’s legs and demanded that the applicant write a statement of “surrender and confession”. The applicant maintained his refusal. K. opened the door and called E. The applicant “understood that he would be tortured again”. He ran up and hit his head against the glass door of a bookcase. The glass broke and the applicant received cuts on his face above the left eyebrow and on his head.

Then E. tied the applicant’s hands and legs behind his back, passed a metal bar under the rope and hung him on the bar, the ends of which were put on the table and the back of a chair. The applicant had been hanging in that position for about eight minutes when somebody took the bar off and asked E. to untie the applicant. E. refused.

At some point E. came out and the applicant was untied and the handcuffs were removed from him. K. demanded again that the applicant write a statement of “surrender and confession”. The applicant started writing the statement as requested. P. came in together with lawyer S. who offered his services as counsel for the applicant’s defence. The applicant refused because he wished to be represented by a lawyer of his own choice.

Reluctant to continue writing the confession statement, the applicant was taken by E., who was allegedly drunk, to his office. An ambulance, which had been called after the incident with the broken glass, arrived and the applicant was examined by the ambulance medical assistant, who provided him with first aid and left.

Thereafter the applicant was questioned by two police officers, who were also drunk. One of them hit the applicant several times on both ears simultaneously with the palms of his hands. The other police officer punched him in the head.

Then E. tied the applicant up and hung him on the bar again. The applicant saw blood dripping from his head to the floor.

Police officer B. untied the applicant and demanded that he finish writing the statement of “surrender and confession”. The applicant did so and was allowed by P. to leave. The applicant went home, which was about three kilometres away, on foot.

At about 9.40 p.m. the applicant arrived home. At 11.05 p.m. he was hospitalised. According to the medical records of town hospital no. 2, where he stayed for in-patient treatment until 4 March 2005, at the time of his admission the applicant was complaining of headache, nausea, vomiting and giddiness. He explained that he had been beaten up by police officers three hours previously. He had an abrasion up to 2 cm long over the left eyebrow and bruises on his scalp. He was diagnosed with an abrasion on the left superciliary arch, contusions of the soft tissues of the head and concussion.

The evidence in the case file indicates that police officer E. drew up a record of the applicant’s being “conveyed” (доставление) to the police station. According to that record, at 7 p.m. on 15 February 2005 the applicant was brought to the police station “for examination” (разбирательство) and searched in the presence of attesting witnesses V. and Sh. It was stated in the record, which was signed by police officer E., the two attesting witnesses and the applicant, that the applicant, a “violator”, had been informed of the rights and obligations of a person against whom administrative proceedings were initiated. The record contained no further details.

On 15 February 2005 the Orsk police department was alerted by the town hospital that the applicant had been taken to hospital with injuries allegedly inflicted by police officers.

On 17 February 2005 the Orsk Sovetskiy district prosecutor’s office received information about the applicant’s alleged ill-treatment by police officers.

On 21 February 2005 the applicant’s father complained to the Sovetskiy district prosecutor’s office that the applicant had been the victim of police officers’ unlawful actions. On 4 March 2005 he lodged a similar complaint with the Orenburg regional prosecutor’s office.

The Sovetskiy district prosecutor’s office carried out a preliminary inquiry. Its investigator B. received explanations from a number of persons, including the following persons.

On 18 February 2005 lawyer S. stated that on 15 February 2005, some time after 7.20 p.m. [the head of the police department] P. had asked him to be present at an investigative measure as counsel for the defence of the applicant, who was suspected of having committed a crime. S. had seen coagulated blood on the applicant’s eyebrow and on his head. S. had asked the operative officers to leave the office and asked the applicant about the origin of his injuries. The applicant had explained that he himself had hit his head against a bookcase. S. had offered his services as counsel for his defence. The applicant refused, as he wanted lawyer Z. to defend him.

On 22 February 2005 police officer E. stated that he had left work at 6.50 p.m. on 15 February 2005. At a bus stop he had seen the applicant who had been suspected of having committed thefts from two shops. E. had taken the applicant to the police station, where he had invited two attesting witnesses so that a record could be drawn up about the applicant’s being conveyed to the police station and searched. In the presence of the attesting witnesses the applicant had jumped from his chair and hit his head against the glass door of a bookcase. The glass had broken and the applicant had received cuts on his eyebrow and head. E. had provided the applicant with first aid, had drawn up the record of his being conveyed to the police station, and had transferred him to operative officer K. Some twenty minutes later K. had brought the applicant back, as the applicant was complaining of feeling unwell. E. had called an ambulance. The ambulance staff had provided the applicant with first aid. E. denied any use of force or psychological pressure in relation to the applicant.

On 22 February 2005 the head of the police department P. stated that at 7-7.30 p.m. on 15 February 2005 he had been informed that the applicant had been brought to the police station on suspicion of having committed a theft. P. gave statements similar to those by E. about the applicant hitting the bookcase with his head. According to P., the applicant had stayed at the police station for one hour and had left at about 8 p.m. None of his subordinates had committed any unlawful actions in relation to the applicant.

On 24 February 2005 attesting witnesses V. and Sh. stated that at about 7 p.m. they had been invited to be present as attesting witnesses at the applicant’s search. After being searched the applicant had jumped to his feet, run up and hit his head against a bookcase. The glass of the bookcase had broken and the applicant had cut his eyebrow. Two police officers had been present during the incident.

On 3 March 2005 police officer Sh. stated that on 15 February 2005 at the Sovetskiy district police station he had taken the applicant to the experts’ room, where the applicant had been fingerprinted and photographed, and then to the exit. Sh. denied having taken the applicant to police station no. 2.

On 5 March 2005 operative officer K. stated that the police had had information, notably explanations by an eyewitness to a theft at a certain shop, that the applicant could have been involved in the theft. K. had interviewed the applicant, who had been known to the police on account of thefts previously committed by him, at about 7 p.m. on 15 February 2005, after the incident with the broken glass. The applicant had confessed to the theft and had written a statement. After that E. had called the ambulance as the applicant was complaining of a headache. K. denied any use of force in relation to the applicant.

On 11 March 2005 investigator G. stated that she had requested that the applicant be summoned to the police station for an identity parade in a criminal case concerning assault and battery. On 15 February 2005 she had carried out the identity parade with the participation of the applicant’s father. As the applicant’s lawyer had not appeared she had cancelled the identity parade in which the applicant was to have participated. The applicant had left her office together with police officer Sh.

Expert M. stated that in the afternoon of 15 February 2005 police officer Sh. had brought the applicant to the experts’ room. The applicant had been fingerprinted and photographed. M. confirmed that there was another exit from the building through the experts’ room. He stated, however, that Sh. and the applicant had left through another, “normal” door, through which they had arrived.

The applicant gave a description of his alleged ill-treatment (see paragraphs 9-16 above). He stated that he had hit his head against the bookcase in order to stop the ill-treatment. He also stated that police officer E. had threatened to kill him if he told the ambulance staff about the illtreatment. When left with lawyer S. in private he had told him about the illtreatment and forced confession.

The applicant’s father and Ms L. gave statements about their visit to the police station on 15 February 2005 (see paragraphs 6 and 7 above).

On 14 March 2005 investigator B. ordered a forensic medical examination of the applicant, which was carried out by expert B. on 17 March 2005. The expert was requested to determine the degree of harm to the health of the applicant, who had allegedly been beaten up by police officers on 15 February 2005. The applicant complained of recurring headaches. He had a scar over the left eyebrow. Expert B. also examined his medical records from the town hospital (see paragraph 17 above). In his report no. 892 the expert concluded that the applicant’s injuries, notably the concussion, the wound over the left eyebrow and the bruises on the scalp, had been inflicted by hard blunt objects shortly before he was hospitalised. The injuries were qualified as light damage to health as they had caused short-term health disorder.

On 17 March 2005 investigator B. ordered that by virtue of Article 24 § 1 (2) of the Code of Criminal Procedure (“CCrP”) no criminal proceedings were to be instituted in respect of the applicant’s complaint, in view of the absence of constituent elements of a crime under Article 286 of the Criminal Code (abuse of power) in the acts of police officers Sh. (as well as under Article 301 of the Criminal Code, unlawful arrest or detention), P., K., E. (also under Article 302 of the Criminal Code, coercion to obtain statements), and four others.

On 21 March 2005 a deputy prosecutor of the Sovetskiy district prosecutor’s office overturned the investigator’s decision, as the inquiry on which it was based was considered incomplete, and ordered an additional inquiry.

Investigator B. received the following additional explanations.

On 22 March 2005 N., a medical assistant, stated that at 7.30 p.m. an ambulance had been called by police station no. 2. She and G., a junior nurse, had gone to the police station. She had found the applicant in a room with two police officers, who had explained to her that the applicant had hit the glass with his head and broken it. She had examined the applicant, who had cuts over the left eyebrow and on the head. Her examination had not revealed any obvious signs of concussion. The applicant had taken off his clothes. She had not seen any visible injuries on his body.

On 23 March 2005 junior nurse G. gave similar explanations. She noted that the applicant had been in a room with two police officers, one of whom had later come out. Then medical assistant N. had examined the applicant.

On 23 and 24 March 2005 Ya. and V. stated that in February 2005 they had undergone inpatient treatment at the town hospital and had been in the same ward as the applicant, who had told them that he had been illtreated at the police station. Ya. understood that police officers had handcuffed the applicant and hung him and afterwards hit his head against the wall. According to V., police officers had handcuffed the applicant and hung him, and then either he himself had hit the bookcase with his head or police officers had hit his head against the bookcase.

The applicant’s schoolteacher, I., characterised the applicant as sly, deceitful and shifty.

Forensic medical expert B. stated that he did not consider it possible to establish reliably how the applicant had received concussion. It could have been the result either of the applicant’s hitting the bookcase with his head or of being punched on the head.

On 24 March 2005, on the basis of the results of the inquiry, investigator B. again refused to open a criminal case under Article 24 § 1 (2) of the CCrP, on the grounds that the constituent elements of a crime in the acts of police officers Sh., P., K., E. and four others were absent. As before, the investigator referred to a crime under Article 286 of the Criminal Code (abuse of power), as well as Article 301 of the Criminal Code (unlawful arrest or detention) in relation to Sh., and Article 302 of the Criminal Code (coercion to obtain statements) in relation to P., K. and E.. The investigator found that the applicant had been at the Sovetskiy district police department from 11 a.m. until 3.20 p.m. on 15 February 2005 for an identity parade in a criminal case concerning assault and battery, and that at about 7 p.m. on the same day police officer E. had taken him to police station no. 2 on suspicion of theft. The investigator held that the results of the inquiry had showed that the applicant’s injuries were self-inflicted, as a result of his hitting the bookcase with his head, and that the allegations of ill-treatment by police officers were devoid of any foundation.

The applicant’s father appealed against the investigator’s decision of 24 March 2005. He complained, in particular, that the investigator had never held an identity parade in order to identify the two unknown police officers who had delivered blows to the applicant’s head.

On 20 May 2005 the Orsk Sovetskiy District Court, sitting in a single-judge formation, heard the applicant’s father, his representative and a deputy prosecutor of the Sovetskiy district prosecutor’s office, and examined the evidence of the inquiry carried out by the investigator. It was satisfied that the inquiry had been comprehensive and thorough, and that the investigator’s assessment of its results had been impartial, reasoned and logical. It dismissed the applicant’s father’s appeal. It noted that an identity parade could only be held once a criminal case had been opened, which was not the case in the present proceedings.

The applicant’s father appealed against the District Court’s decision. On 16 June 2005 the Orenburg Regional Court dismissed his appeal and fully endorsed the first-instance court’s findings. It held, inter alia, that the evidence of the inquiry had reliably shown that on 15 February 2005 the applicant had not been arrested as a suspect in a criminal case.


CASE OF MINDADZE AND NEMSITSVERIDZE v. GEORGIA

Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Nona Tsotsoria;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicants were born in 1977 and 1979 respectively and live in Tbilisi and Tskaltubo.

On 20 January 2004 criminal proceedings were brought against unidentified people following an armed attack on K.G., a member of the Georgian Parliament (“the member of parliament”).

On 4 February 2004 the victim was questioned for the first time by an investigator. A photofit image of the attacker was created with the help of the victim’s description, but the member of parliament also added that he did not know who the attacker was.

On 25 February 2004 the investigator drew up a report on the handing in to the police of a PSM pistol, equipped with a silencer, by a woman and her child. Notably, according to the report, the child had found the weapon while playing with his mother in the back yard of their house, close to where the member of parliament had been attacked. The report on the handing in of the gun was also signed by two taxi drivers and an interpreter.

On 13 May 2004, at around 10 a.m., the first applicant, who had two convictions for robbery and drugs offences, was arrested in the street in connection with the above-mentioned criminal case on suspicion of attempted murder. He was searched in the presence of two witnesses at the time of his arrest, which revealed that he was in possession of a Browning pistol.

The applicant was taken under arrest to Tbilisi police headquarters and put in an office to be questioned by a police officer, D.Ch. He confessed during the interview to conspiring with the second applicant to murder the member of parliament. In particular, as noted in the police report of 13 May 2004, the first applicant stated that he had been contacted by the second applicant in the autumn of 2003 and offered 10,000 United States dollars (USD) to kill a man whose identity was not specified at the time. The second applicant had therefore driven him to the building where the victim lived, without explaining the reasons for the murder. He had furnished him with a PSM pistol, which had been loaded and fitted with a silencer. From that date onwards the first applicant had regularly gone to the building, however, he had not tried to kill the victim on those occasions. The second applicant had telephoned him and insisted that he carry out the plan. On 19 January 2004, the first applicant had successfully entered a garage at the same time as the victim, had fired shots at him until he had run out of ammunition and then fled. Later that evening, the second applicant had called him to express his discontent because the victim, although seriously injured, had survived. A few days later, the first applicant had learnt from the television that the man he had tried to kill was a member of parliament.

According to the record of the questioning of 13 May 2004, the first applicant had been feeling remorse and had wanted to give himself up to the police for some time. He told the investigator that his confession was sincere, that he regretted committing the crime and was relieved to have been arrested. The first applicant had no lawyer present during the questioning and did not sign the record of it. As subsequently explained by P.B., an investigator in charge of the applicant’s case from the Tbilisi City public prosecutor’s office (“the investigator”), the reason the applicant did not sign the record was that he had lost consciousness several times during the interview and had had to be brought round with cold water.

At 5.15 p.m. that day, 13 May 2004, the investigator formally charged the first applicant with attempted murder, based on his confession, and, without informing the latter of his right to call in a lawyer of his own choice, assigned a public defence lawyer to him; according to the case materials, that public lawyer was dismissed by the applicant on 4 June 2004 (see paragraph 23 below), and, in general, the latter replaced his defence lawyers several times as the criminal proceedings unfolded. The first applicant was taken to the scene of the crime for a reconstruction of the events, and asked to repeat his confession there, which he did in the presence of the public defence lawyer and two independent witnesses. The applicant repeated his confession word for word, again implicating the second applicant and adding that he hoped that his sincere confession would be taken into account as a mitigating circumstance. The statements given during the reconstruction were recorded in writing, with the written record bearing the signatures of both the first applicant and the lawyer appointed for him.

Later the same day, the first applicant was brought face-to-face with the victim in a formal confrontation. He was lined up with three other people in front of the member of parliament, who, after some hesitation, identified him as the attacker. After the identification parade, the member of parliament asked to speak privately with the first applicant and was allowed to do so. No one else was present during their talk.

The investigator then showed the first applicant the PSM pistol and silencer which had been handed in to the police by the two independent witnesses on 25 February 2004 (see paragraph 8 above). The applicant stated that he recognised the gun as the one he had used to attack the victim. The identification procedure was recorded in writing and was signed by the first applicant’s public defence lawyer.

On 13 May 2004 the second applicant was also arrested and charged with attempted murder. A public defence lawyer was assigned to him. The charges stated that he had wanted to kill the member of parliament, who was a distant relative. As the founder of a bank which had employed the second applicant’s brother, the member of parliament had demanded that the applicant and his brother repay USD 700,000, which had been found missing by an internal audit (see also paragraph 62 below).

On 14 May 2004, the first applicant met the second applicant in a formal confrontation and accused him in accordance with his previous confession. According to a written report on the formal confrontation, the second applicant was assisted by the public defence lawyer.

On 15 May 2004 the first applicant was charged in connection with the discovery of the Browning pistol on his person when he was arrested with an additional offence of illegally carrying a weapon.

On 16 May 2004 the Vake-Saburtalo District Court ordered at a public hearing that the two applicants be held in pre-trial detention for three months, until 13 August 2004. After reviewing the criminal case material and hearing the parties’ oral submissions, the court confirmed the existence of a reasonable suspicion that the offences in question had been committed. A further main justification for the imposition of pre-trial detention was the assumption that the accused might abscond, in view of the severity of the possible sentence.

According to statements subsequently given to the investigative authorities by the first applicant’s wife, she attended the hearing on 16 May 2004 and noticed that her husband’s nails had been bitten down and were blackened and that he had bandages on his wrists which he attempted to hide under his pullover.

On the same day, 16 May 2004, the first and second applicants were transferred from Tbilisi police headquarters, where they had been held since their arrest, to, respectively, Prison no. 7 and Prison no. 1 in Tbilisi. They remained in those prisons for the whole of their pre-trial detention, until their conviction at first instance (see paragraph 73 below).

Upon his admission to Prison no. 7 on 16 May 2004, the first applicant was examined by the prison doctor, who noted in a report that there were no marks of violence on his body.

On 27 May 2004 the Tbilisi Court of Appeal dismissed an appeal by the applicants and upheld the reasons given in the detention order of 16 May 2004.

On 4 June 2004, immediately after, a private lawyer, had been hired for the first applicant by his family (“the private lawyer”), the first applicant submitted a complaint to the investigator, alleging that he had given his confession of 13 May 2004 as a result of torture, and that those statements had not been true. The first applicant asked to be questioned again. He alleged that he had been subjected to electrical shocks and severe beatings on 13 May 2004 and requested that a comprehensive medical examination be conducted for the purposes of establishing the exact nature of the injuries he had received.

On 24 June 2004 the investigator ordered an expert medical report on the applicant’s physical condition, which was only produced three months later (see paragraph 35 below).

On 15 June 2004 the first applicant made a submission to the Tbilisi City public prosecutor in charge of his case (“the city prosecutor”), asserting his innocence. He specified that his first lawyer, appointed by the State, had been assigned to him by the investigator without his consent (see paragraph 12 above), that he had done nothing to defend him, and that he had not even been offered the possibility of appointing another lawyer, one of his own choice, at that time. The first applicant alleged that before being questioned on 13 May 2004 he had been beaten with a square iron padlock, which had caused him to have seizures, and a doctor had had to be called.

On 17 June 2004 the first applicant submitted a complaint to the city prosecutor about threats he had received in Prison no. 7. Notably, he had been threatened by unidentified people that his family would suffer if he did not stand by his confession.

On 22 June 2004 the first applicant submitted an alibi to the investigator, citing the names of six people he had been with on 19 January 2004, when the member of parliament had been injured. He requested that those people be questioned as witnesses.

On 28 June 2004 the investigator rejected the first applicant’s request of 22 June 2004 on the grounds that his guilt had been established by his own, very detailed, confession, which he had repeated in the presence of a lawyer during the reconstruction of events at the crime scene. The investigator noted that, in addition, when confronted with the second applicant, the first applicant had accused him of being the instigator of the crime. Furthermore, the first applicant had been identified by the victim. There was therefore no reason to check his alibi.

On 14 July 2004 the first applicant’s lawyer submitted written statements to the investigator from the six witnesses concerned (see paragraph 27 above), supporting the alibi and stating that on 19 January 2004 the first applicant had been at a church wedding ceremony and subsequent reception until 2 a.m. The lawyer repeated his request for those people to be questioned. For his part, the second applicant stated his interest in having the first applicant’s alibi verified. On 24 July 2004 the investigator again rejected the request, using the same grounds as on 28 June 2004.

On 13 July 2004 the second applicant informed the Chief Public Prosecutor’s Office (“the CPPO”) that the member of parliament had clandestinely visited the first applicant in prison at 9 p.m. on 25 June 2004 to demand that he stand by his confession. In exchange, he had offered him money. The member of parliament’s visit to the prison had not been officially registered, but could be confirmed by prison staff. The second applicant also complained of the fact that the expert medical report on the first applicant had still not been produced and that the people who were capable of confirming his alibi had not been questioned.

Between July and August 2004 the second applicant lodged several more complaints with the city prosecutor about the investigator’s repeated refusals to check the first applicant’s alibi. The complaints were rejected on 3 and 7 August, the city prosecutor considering that there was no need to take the first applicant’s alibi into account, given that he had freely confessed to the crime, and that there was no evidence in the record of his interview of 13 May 2004 that he had alleged that he had been subjected to ill-treatment.

On 2 August 2004 the first applicant submitted a written request to the investigator to replace his private lawyer who had been hired by his family and had been in charge of his defence since 4 June 2004 (see paragraph 23 above), with a new lawyer, Sh.Dz. The applicant added that he wished to be “questioned again with a view to a confession” and “arranging a plea bargain” with the prosecution in the presence of this new public defence lawyer.

On 5 August 2004 the investigator and the newly appointed lawyer Sh.Dz. went to the prison hospital to attend the questioning of the first applicant, as he had requested on 2 August 2004. The applicant, however, refused to be questioned, without providing any explanation.

On 11 August 2004 the Tbilisi Regional Court granted an application by the prosecutor to extend the applicants’ pre-trial detention to 13 November 2004.

On 13 September 2004 an expert from the Ministry of Health commissioned by the investigator on 24 June 2004 (see paragraph 24 above) issued a report on the applicant’s physical condition. It appeared that the expert had not examined the applicant in person but had asked the investigator to provide him with X-rays of his head and body. Two X-rays had been sent by the investigator to the expert as late as 8 September 2004. Notably, an X-ray of his head, taken only from one side, and an X-ray of his thorax showed that at that time he bore no signs of lesions on those parts of the body.

On 27 September 2004 the second applicant’s mother lodged a criminal complaint with the CPPO, alleging that the member of parliament had visited the first applicant in prison in July 2004 and had offered him 30,000 Georgian lari (GEL) (approximately 13,000 euros (EUR)) to stand by his confession. The investigator had then put pressure on the first applicant’s wife to convince her husband to accept the offer. She further alleged that after the member of parliament’s visit, criminal bosses had been allowed to enter the applicant’s cell on 2 August 2004 in order to pressure him to testify as the member of parliament wished.

On the same day, 27 September 2004, the first applicant’s wife lodged the same complaint as the second applicant’s mother with the CPPO. She added that in exchange for the money offered by the member of parliament, her husband had been expected to dismiss the private lawyer hired by his family, stand by his confession and ask for a plea bargain with the prosecution. The member of parliament had given her an advance payment of USD 1,500 to convince her husband. However, when on 5 August 2004 the first applicant had refused to make a statement confirming his confession in the presence of the investigator and the newly appointed public lawyer Sh.Dz. (see paragraph 33 above), the investigator had left the hospital and K.K., a “mafia boss” whose criminal case had been investigated by the same investigator, had been allowed into the first applicant’s cell. K.K. had threatened the applicant with death if he refused to cooperate with the investigator, giving him two days to think about it. The first applicant’s wife added that she had received threats since 19 August 2004 that her child would be killed if she dared to speak about the above-mentioned events with the authorities.

The allegations of the second applicant’s mother were subsequently confirmed by a journalistic investigation into the events in question (see paragraphs 83-85 below).

On 1 October 2004 the city prosecutor replied to the first applicant’s wife and the second applicant’s mother that their complaints of 27 September 2004 were manifestly ill-founded for the same reasons given in the replies to the first applicant’s repeated requests to have his alibi checked.

At the beginning of October 2004 the first applicant dismissed Sh.Dz. and reappointed his private lawyer (see paragraph 23 above).

On 8 October 2004 the first applicant’s lawyer wrote to the Tbilisi city prosecutor requesting, among other things, that secret recordings of various meetings between the first applicant’s wife and the member of parliament’s lawyer (see the details of the journalistic inquiry at paragraphs 8385 below) be obtained from the investigation into the illtreatment case (see paragraphs 4653 below) and added to the applicants’ criminal case file. That request was rejected on 12 October 2004.

On 21 October 2004 the first applicant’s lawyer informed the investigator that his client wished to be questioned again. The investigator questioned the first applicant the same day and he repeated all the factual details concerning his allegations of ill-treatment on 13 May 2004, gave the names of the police officers involved and detailed the threats made against him. He complained of having been coerced into accepting Sh.Dz. as his lawyer and that his sole purpose had been to sign witness statements for the investigator.

On 5 November 2004 the prosecutor applied for an extension of two months to the applicants’ pre-trial detention, until 13 January 2005. By a decision of 10 November 2004, a judge at the Supreme Court, after reviewing the application in the presence of the prosecution and the applicants’ lawyers, granted the extension. As grounds for that decision on to believe that if they were released the accused would attempt to impede the establishment of the facts and evade justice. In his view, a request by the applicants to be released on bail had to be rejected for the same reasons. No reference to any specific,as given in the decision of 10 November 2004.

On 30 December 2004 the investigation was completed, a bill of indictment was approved by the prosecutor and the case was sent for trial to the Tbilisi Regional Court.

On 7 June 2005 the Tbilisi Regional Court held a pre-trial conference hearing in the case, ruling to commit the applicants for trial as defendants. The decision was rendered in a standard, template form with pre-printed reasoning. The judge simply added in the blank spaces a brief statement of the facts, the names of the accused, the definition of the impugned offence and the measure of pre-trial restraint. As regards the confirmation of the latter, the printed standard phrase read as follows:

“The measure of pre-trial restraint – detention – has been chosen correctly.”

On 7 September 2004 the first applicant lodged a criminal complaint with the Chief Public Prosecutor’s Office, alleging that he had been subjected to ill-treatment on 13 May 2004 and requesting an investigation. He specified that at around 10 a.m. he had been taken to police headquarters in Tbilisi and placed in a room on the twelfth floor. He had been given electric shocks and beaten. The surname of the officer who had held a weapon to his head and forced him to sign a pre-prepared confession was D. K. Two other officers, K. Ch. and D. En., had also participated. Other police officers had also been involved, and while the applicant did not recall their names, he stated that he would be able to identify them if confronted with them. He had also been beaten on the neck with a square padlock. He had passed out while being given the electric shocks and the police officers had poured water on his head to bring him around. When he had regained consciousness, a doctor had been there who had said that he needed an injection of a sedative, but the doctor’s recommendation had been ignored. The first applicant had then been told by the police officers that his flat had already been visited, drugs had been planted there, and that his wife could easily be arrested. Upon his transfer to Tbilisi’s Prison no. 7 on the night of 16 to17 May 2004, the prison doctor had asked him, in the presence of the police officers, if he had been beaten, but he had denied it for fear that the ill-treatment would resume.

On 9 September 2004 the CPPO referred the complaint of 7 September 2004 to the Tbilisi city prosecutor and the investigator in person, asking them to take action and to inform the Chief Prosecutor of their response. On 5 October 2004 the investigator replied to the first applicant directly, informing him that his criminal complaint about illtreatment had been rejected as unsubstantiated as the applicant had not supported it with evidence.

On 8 October 2004 the first applicant’s wife complained to the Inspectorate General of the CPPO and the Inspectorate General of the Ministry of the Interior that her husband had been ill-treated by police officers and that there had been a lack of response by the investigator and the Tbilisi city prosecutor to her various previous complaints. She asked for the investigator to be removed from the case and for those who had carried out the ill-treatment to be identified and punished. In support of her request, she attached a copy of a report dated 29 September 2004 on an examination of the applicant conducted at her request, and with the prison authority’s permission, by private medical experts. That report showed that three medical specialists – a psychiatrist, a neurologist and a trauma specialist – had examined the first applicant in prison, using the medical equipment available in the prison hospital, in the course of several visits. They first noted that the first applicant had repeated the statements he had made in his complaint of 7 September 2004. The medical experts also observed that the applicant suffered from epileptic fits, and that, according to the applicant himself, the first fit had occurred on 22 July 2004. Their view, on the basis of ultrasound and computed tomography (CT) scans, was that the applicant suffered from epileptic fits which had been caused by a traumatic head injury. The CT scan also showed a scarred lesion in the area of the joint at the nape of the neck, and signs of intracranial hypertension syndrome. A poorly healed fracture of the zygomatic bone and the left of the upper jaw was also detected. In the experts’ opinion, the physical and psychological problems that had been revealed could well have been caused, in principle, by the type of ill-treatment complained of by the first applicant.

On 12 October 2004 the Inspectorate of the CPPO asked the investigations department of the Tbilisi city prosecutor’s office to set up a meeting with the first applicant for 13 October 2004 with a view to checking the wife’s allegations. The Inspectorate General of the Ministry of the Interior, for its part, replied to the first applicant’s wife that the criminal complaint made by the applicant had already been examined and dismissed as unsubstantiated.

When questioned by an investigator of the Inspectorate General of the CPPO on 13 October 2004, the first applicant stood by his allegations that he had been tortured by the police officers on 13 May 2004.

Following a request by the Inspectorate General of the CPPO, on 19 October 2004 State experts drew up another medical report on the first applicant. The experts noted a wound at the nape of the neck, which was at an advanced stage of scarring and had been caused by a hard, blunt object; various cuts on the stomach, some of which measured 18 by 0.1 cm and 16 by 0.1 cm; and several cuts on his left forearm. The scar on the head was old and it could not be said exactly when the injury had been sustained. However, it could have been caused between April and July 2004.

Between late October and early November 2004, the Inspectorate General of the CPPO questioned a number of potential witnesses to the first applicant’s alleged ill-treatment: P.B., the investigator in the applicant’s case; M.S., a Ministry of the Interior camera operator who had recorded the applicant’s confirmation of his initial confession at the crime scene; the public defence lawyer who had been assigned to the applicant after his arrest and first interview; G.B., the judge who had ordered the applicant’s pre-trial detention on 16 May 2004; two relatives of the first applicant who had attended the above-mentioned hearing; and the doctor from Prison no. 7 who had carried out a visual examination of the applicant at the time of his admission to prison. None of those people said they had seen marks of ill-treatment on the first applicant. In addition, all three police officers accused by the first applicant of ill-treatment denied those accusations when questioned by the Inspectorate General of the CPPO.

On 15 November 2004 another medical expert examined the first applicant at the request of the Inspectorate General of the CPPO. As well as confirming the findings of the previous expert report (see paragraph 51 above), he added that the zygomatic bone surrounding the left eye was deformed.

On 17 November 2004 the Inspectorate General of the CPPO, on the basis of the statements given by the various witnesses as well as the medical reports of 19 October and 15 November 2004, decided not to institute proceedings in relation to the first applicant’s alleged ill-treatment.

The Krtsanisi-Mtatsminda District Court quashed that decision on 23 December 2004. The court found that the investigation carried out by the prosecution authority had not been comprehensive enough, and ordered the Inspectorate General to undertake further investigative actions aimed at reexamining the wellfoundedness of the serious allegations made by the first applicant. On 8 February 2005 that decision was upheld at final instance by the Supreme Court, and on 24 February 2005 criminal proceedings were initiated in the case under Article 126 § 1 of the Criminal Code (torture).

After the reopening of the investigation the prosecutorial authority questioned the same people who had already been questioned in OctoberNovember 2004. The applicant was also examined again in April 2005. A report issued on 27 April 2005 suggested that the deformation of the zygomatic bone surrounding the applicant’s left eye could not be said with certainty to have been caused by a traumatic injury from a dense or blunt object in 2004.

According to the case file as it stands, including the parties’ most recent factual addendums, the relevant authorities never took a definitive decision in relation to the investigation of the applicant’s torture case under Article 126 § 1 of the Criminal Code.

On 14 September 2006 a trial started at the Tbilisi Regional Court.

The first applicant, who was represented by the private lawyer, pleaded innocent, making particular reference to the ill-treatment he had been subjected to in order to obtain a confession. He complained that despite repeated requests the contents of the criminal file opened by the Inspectorate General of the CPPO with respect to his alleged torture had not been added to the file in the criminal case against him and the other applicant (see paragraph 41 above). He insisted that the outcome of the criminal investigation into his ill-treatment would be of decisive importance for the assessment of the well-foundedness of the criminal charges against him and the second applicant. The first applicant also underlined the fact that he had an alibi.

The second applicant also pleaded innocent. His lawyer applied to have the record of the member of parliament’s identifying the first applicant on 13 May 2004 declared inadmissible as tainted by irregularities. In that connection, he maintained that on 4 February 2004 the victim had said he was unable to identify his attacker while the photofit image created with his help had not resembled the first applicant. Later, however, he had stated that he was able to identify his attacker, and did so on 13 May 2004 on the basis of the first applicant’s “general appearance”. In addition, the first applicant had been lined up in front of the victim with three other people who had looked totally different from him (see also paragraphs 64 and 65 below). The second applicant’s lawyer also applied to have the record of the formal confrontation between the first and second applicants, dated 14 May 2003, declared inadmissible as tainted by irregularities. Notably, the report contained the name of a public defence lawyer who had supposedly assisted the second applicant at the time. However, in actual fact the second applicant had been alone during the confrontation. Indeed, according to a letter from the Ministry of the Interior, between 13 and 17 May 2004 the public defence lawyer officially assigned to the second applicant on 14 May 2004 had not possessed a badge allowing him to enter the main police station in Tbilisi. Both applications were rejected by the trial court on the same day as ill-founded.

When questioned by the trial court, the woman and son who had allegedly handed in the weapon used to commit the crime to the police on 25 February 2004, according to the official version of events contained in the case file (see paragraph 8 above), stated that they had never handed in such a gun to the police. On the contrary, it had been the police who had suddenly come to her house, and had searched for and found the PSM pistol in the yard. She added that the gun that the police had found had not been equipped with a silencer.

Among other statements concerning a possible motive for the attack allegedly perpetrated by the applicants, the member of parliament told the court that as one of the founders of the bank and one of its largest shareholders, he had recommended the second applicant’s brother for the post of manager of the bank’s Batumi branch (see also paragraph 15 above). However, the two brothers had abused his trust. They had taken certain items of gold belonging to clients and a large sum of money and had disappeared in October 2003. Three days later, as a result of efforts made by the family, the brothers’ uncle had returned the objects and the money to the bank. Some months earlier, an internal audit of the branch in question had uncovered considerable losses there. The second applicant and his brother had put pressure on the members of the audit committee to not inform headquarters in Tbilisi. Following internal discussions in which the member of parliament had been involved in person, it had been agreed that the two brothers would by 25 January 2004 at the latest repay the USD 750,000 they had embezzled by various means. The member of parliament also told the trial court that he had easily identified the first applicant on 13 May 2004. He confirmed that he had approached the applicant after the identification parade, with the investigator’s consent, and had asked him why he had tried to kill him. During their private talk the first applicant had allegedly replied that he had not wanted to kill him but had been acting on the second applicant’s orders (see paragraph 13 above).

When questioned by the trial court, the two witnesses to the reconstruction of the crime on 13 May 2004 stated that they had been stopped by police officers in the vicinity of the main police station. The officers had asked them to go with them to assist in an investigative procedure and added that they would be arrested if they refused. At the station, the witnesses had seen the first applicant who, despite it being a warm day in May, had been wearing a woollen hat. He had also had a deep bruise around one of his eyes. The investigator had asked the first applicant one or two questions but he had remained silent for much of the time. When asked by the investigator about the place in question being the scene of the crime, he had simply nodded. The reconstruction had lasted between ten and fifteen minutes, at the end of which the two witnesses had signed a record of the procedure, without reading its contents. No pressure had been put on the first applicant in their presence.

One of the men who took part in the identification parade where the first applicant had been identified by the victim on 13 May 2004 told the court that he had been approached at random in the street by the police to take part in the line-up. He stated that, with the exception of the first applicant, all three members of the identification parade, including himself, had been clean-shaven. Another clearly distinguishing feature had been that of the four men in the line-up, only the first applicant had been bald. The applicant had looked exhausted and had had a deep bruise around one eye. There had therefore been a considerable difference in appearance between the first applicant and the others.

Another participant in the identification parade, who had also been approached in the street to take part, gave the same version of events, including regarding the bruise. He added that the first applicant had been the only one not wearing a belt and without shoelaces. When the victim had identified him as the one who had shot at him, the first applicant had exclaimed that it was not him.

When questioned by the trial court, the two taxi drivers who had signed the report of 25 February 2004 on the handing in of the PSM pistol by the woman and her son stated that they had been taken to the main police headquarters under coercion, on pain of having their driving licences confiscated by the police, in order to take part as witnesses in an investigative procedure. They were told by an officer that a woman and a child were going to bring in a weapon, and they would have to confirm that fact by signing a record. They had waited in vain for an hour and a half for the woman and child to arrive. The two policemen had then taken a weapon equipped with a silencer out of a drawer in a table, explaining to the taxi drivers that it was the weapon in question. The police officers had drawn up a report saying that a woman and child with non-Georgian names had brought the weapon to the station. The two taxi drivers had signed the fabricated document in order to get their driving licences back and leave the premises as soon as possible.

The interpreter whose signature was appended to the bottom of the same record of 25 February 2004 stated before the trial court that she had not acted as an interpreter in the investigative procedure in question for a woman and child who did not speak Georgian. She alleged that her signature had been forged.

Four people who had attended the wedding party of 19 January 2004 also attended the hearing and confirmed the applicant’s alibi by stating that they had seen him at the party, that he had stayed until late in the evening, and definitely until after 9 p.m.

A member of an independent human rights organisation told the trial court that at the time of the events she had had official permission from the State to visit prisoners who had allegedly been subjected to abuse. Following a series of complaints by the family, she had visited the first applicant two weeks after his arrest. She had seen that he had a head wound, cuts on his face and had been in a generally poor condition. The first applicant had also complained to her of a fracture of the bone surrounding his eye. He had subsequently spent time in the prison hospital but had requested to be transferred back to prison because various people, including the member of parliament’s lawyer, had been able to visit him in the hospital and disturb him. The first applicant had given the human rights activist the name of a police officer, a certain K., saying he had been one of the men who had tortured him on 13 May 2004 at Tbilisi main police station. She had immediately informed the Ministry of the Interior and the Chief Prosecutor’s Office of the applicant’s allegations, but neither of them had reacted.

The first applicant’s wife told the court that she had visited her husband in prison on 2 June 2004. She had been able to see through the glass between them that he was wearing a woollen hat, under which a plaster was visible. He had had dark circles under his eyes and his nails were blackened. She also confirmed the facts relating to her meetings with the parliamentarian’s lawyer.

On application by the defence, the secret recordings of the two meetings between the first applicant’s wife and the victim’s lawyer were played to the trial court (see details of the journalistic investigation at paragraphs 8385 below).

On 21 February 2007 the Tbilisi Regional Court ruled that the following pieces of evidence were inadmissible owing to significant procedural shortcomings in the way they had been obtained:

(i) the first applicant’s confession at his first interview on 13 May 2004 (see paragraphs 10 and 11 above);

(ii) the record of 25 February 2004 of the woman and her son handing in the PSM pistol at the police station (see paragraph 8 above);

(iii) the record of 13 May 2004 of the first applicant identifying the PSM pistol (see paragraph 14 above).

On 26 February 2007 the Tbilisi Regional Court gave judgment. It first held that it was undeniable that the first applicant had had various injuries on his body, as confirmed by the various expert reports. However, the time, place or circumstances of sustaining the injuries had not been established.

The first applicant was found guilty of attempted murder with aggravating circumstances, on account of his attack on the member of parliament on 19 January 2004, and illegal possession of a weapon, owing to the Browning pistol that had been found on him when he had been arrested. His guilt related to the Browning had been proved, according to the court, by the record of the body search after his arrest and the record of the seizure of the weapon thus discovered.

The court found that the charge of attempted murder had been proved by the following items of direct evidence, which it considered to have been obtained without any major irregularities:

(i) the written record of the first applicant’s confession given during the reconstruction at the scene of the crime on 13 May 2004 (see paragraph 12 above);

(ii) the record of his identification by the member of parliament on the same day (see paragraph 13 above);

(iii) the member of parliament’s statements concerning the private talk he had had with the first applicant on 13 May 2004 (see paragraph 13 above).

The second applicant was also found guilty of attempted murder with aggravating circumstances and of the illicit possession of a weapon on account of his role in planning to kill the member of parliament by hiring the first applicant and providing him with a firearm. He was additionally found guilty of embezzlement on account of his complicity with his brother in misappropriating the bank’s assets (see paragraphs 15 and 62 above). In the trial court’s opinion, the same evidence as used against the first applicant had proven the charge of attempted murder against the second applicant (see the preceding paragraph):

(i) the written record of the first applicant’s confession during the reconstruction at the scene of the crime on 13 May 2004; and

(ii) the member of parliament’s statements concerning the private talk he had had with the first applicant on 13 May 2004.

As to the defence’s arguments concerning the lawfulness of the various records mentioned above, the trial court conceded that there had been a series of irregularities in the course of the investigative procedures in question, but they had not been such as to render the evidence inadmissible.

Both applicants appealed.

With respect to the conviction for attempted murder, the first applicant reiterated his complaints about the absence of a lawyer of his own choice at the first interviews, his ill-treatment and forced confession. According to him, numerous witnesses questioned by the judges had raised a reasonable doubt that he had been able to participate properly in the confirmation of his confession during the reconstruction of the events at the scene of the crime on 13 May 2004. Nevertheless, the record of that procedure had been considered a key piece of evidence in establishing his guilt. The second piece of evidence used to establish his being guilty of attempted murder – the record of his identification by the victim – had also been tainted by irregularities. In fact, contrary to the requirements of Article 347 of the Code of Criminal Procedure, the other men who had lined up with him had all looked healthy, had had full heads of hair, had been cleanshaven and had been wearing belts and shoes that had been laced up. He, on the other hand, was partially bald, had been injured and looked tired, had not been able to shave for several days and had had no belt or laces. The first applicant also referred to the secret recordings of the meetings between his wife and the member of parliament’s lawyer (see paragraphs 8385 below). Those recordings had been played to the trial court judges, but they had chosen not to mention them in their judgment or take them into consideration in any way.

The second applicant’s appeal had similar arguments as regards the conviction for attempted murder. He specifically complained that while the trial court judges had confirmed his guilt by reference to the record of the confirmation of the first applicant’s confession during the reconstruction at the scene of the crime on 13 May 2004, that specific item of evidence had clearly been tainted by the ill-treatment the first applicant had suffered at the hands of the police.

On 17 July 2007 the Criminal Affairs Chamber of the Supreme Court dismissed the applicants’ appeals. As far as the alleged illtreatment was concerned, the criminal chamber affirmed that it was not in dispute that the first applicant had had marks of violence on his person. Nevertheless, the circumstances under which the injuries had been sustained and who had caused them were not known. The court held that the guilty verdict against both applicants had to be upheld in its entirety. The first and second applicants were convicted, respectively, to twenty-one and sixteen years’ imprisonment.

The cassette contains a recording of the investigative journalism programme 60 minutes. The recording in question is about the applicants’ case and is entitled “Contract murder, or rigged investigation?”

Amongst other details, the programme aired secret video-recordings of two meetings between the first applicant’s wife and the member of parliament’s lawyer.

At the first meeting, which took place a few days before 2 August 2004, the lawyer offered an advance payment to the first applicant’s wife to ensure that her husband replaced the lawyer he had chosen with Sh.Dz., who was trusted by the member of parliament. It was with the help of that new lawyer that the applicant was expected by the member of parliament to stand by his initial confession. The first applicant’s wife replied that her husband’s lawyer could do the job just as well, but the member of parliament’s lawyer stated that that lawyer could not be trusted in such dealings.

The secret recording of the second meeting showed how Sh.Dz., by then appointed as the first applicant’s lawyer on the advice of the member of parliament’s lawyer, handed over USD 1,500 to the first applicant’s wife on behalf of the member of parliament (see also paragraph 37 above).