KALANDIA v. GEORGIA - 57255/10 (Judgment : Right to a fair trial : Fifth Section Committee) [2021] ECHR 355 (22 April 2021)

JUDGMENT STRASBOURG 22 April 2021 This judgment is final but it may be subject to editorial revision. In the case of Kalandia v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Committee composed of: Lətif Hüseynov, President, Lado Chanturia, Mattias Guyomar, judges, and Martina Keller, Deputy Section Registrar, Having regard to: the decision to give notice to the Georgian Government (“the Government”) of the complaints under Article 6 § 1 and Article 8 of the Convention and to declare the remainder of the application inadmissible; the parties’ observations; Having deliberated in private on 25 March 2021, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1. The case concerns the alleged unfairness, within the meaning of Article 6 § 1 of the Convention, of the criminal proceedings conducted against the applicant on account of the manner in which the principal evidence against him was obtained and used. THE FACTS 2. The applicant was born in 1957. He was represented by Ms N. Jomarjidze, a lawyer practising in Tbilisi. The applicant died on 5 February 2017. His son, Mr Konstantine Kalandia, expressed his wish to continue the proceedings before the Court in his father’s stead. 3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. I. Arrest and search of the applicant 5. On 25 March 2009 an investigator of the Samegrelo-Zemo Svaneti police department, K. K., prepared a report addressed to the head of the department. The report stated that K. K. had received operational information (implying information received from an anonymous source) that the applicant had illegally purchased drugs and had had them in his possession in the city of Zugdidi. K. K. asked, without elaborating further, to be granted “permission to carry out investigative measures.” 6. On the same day, an investigation was opened into the alleged purchase and possession of drugs. Between 10 a.m. and 10.15 a.m. K. K. was questioned by another investigator, G. J. During the questioning K. K. repeated the content of his report (see the preceding paragraph). 7. Still on the same day a prosecutor instructed two investigators - G. J. and G. L. - to implement the “relevant investigative measures”. 8. According to the official version of events, in the evening of 25 March 2009, as the applicant was driving, he was approached by two police cars, and the applicant stopped his car. The “suspect arrest report” made by G. J. at 6.45 p.m. noted that the applicant was a suspect in relation to the alleged purchase and storage of drugs. The report contained a list of possible grounds for arrest. None of those grounds was marked. The applicant did not sign the report. 9. The applicant was then searched on the spot between 6.46 p.m. and 6.59 p.m. The search was carried out in “urgent circumstances” by officers G. S. and D. T., under the guidance of G. J. As it became apparent during the trial proceedings, another officer - L. R. - was also present during the applicant’s arrest and search (see paragraph 16 below). The first page of the personal search report contained a section concerning whether the person searched had agreed or refused to have witnesses attend the search. It was left blank. The second page of the report contained a section entitled “objective grounds justifying the implementation of the search measure without the attendance of witnesses”. The text underneath indicated that the applicant had refused to invite witnesses but had declined to sign the report. According to the personal search report, a silver sachet containing a brownish substance (later confirmed by an expert examination to be heroin) was found in the left pocket of the applicant’s trousers. The sachet was seized and sealed. The applicant did not sign the personal search report. 10. The drug test performed later that day found that the applicant had not been under the influence of drugs. 11. On 26 March 2009 the Zugdidi District Court granted, by means of written proceedings and without the applicant’s or his lawyer’s participation, an ex post facto application by the prosecutor to confirm the legality of the search and seizure measure. The application was made on the basis of the report concerning the existence of the operational information (see paragraph 5 above), the instruction to implement investigative measures, and the report on the personal search of the applicant. The court’s decision, written in a summary manner, listed several domestic-law provisions without further elaboration, and stated that the prosecution’s request had revealed that the search had been conducted as a matter of urgency, and had complied with the procedural requirements of the relevant legislation. The court therefore declared the personal search of the applicant and the evidence obtained as a result to be lawful. It is unclear when the decision was served on the applicant. The decision provided for an appeal period of seventy-two hours. The applicant did not avail himself of that opportunity. 12. On 26 March 2009 the expert assessed the material - powder and granules in the amount of 2.5321 grams - contained in the silver sachet and concluded that it contained 1.3962 grams of heroin. The applicant reiterated, when presented with the relevant report, that the drug did not belong to him. 13. On 27 March 2009 a prosecutor spoke to the applicant to ascertain the reason for the latter’s refusal to sign the arrest and search reports. The applicant explained, in the presence of his lawyer, that the drug had been planted on him in retaliation for his support for the opposition political activities of his friend (who had also been arrested). 14. On 22 May 2009 the applicant was charged with the unlawful purchase and storage of a narcotic substance in a particularly large quantity. He was charged on the basis of the testimonies of the relevant police officers, the reports on the arrest and the personal search, and the expert’s finding that the substance seized was heroin. II. The applicant’s conviction 15. During the trial before the Zugdidi District Court, the investigator K. K. indicated that the information received in the morning of 25 March 2009 about the applicant’s possession of drugs (see paragraph 5 above) had also indicated that the applicant was a drug user. According to K. K., the issue of drug use had not been indicated in the report as it had been discovered later. K. K. noted that he had not participated in the search procedure. 16. As became clear during the trial proceedings, two individuals (investigators G. J. and G. L.) had planned the investigative measures, and four individuals, including one of the two investigators (G. J., G. S., D. T., and L. R.), had implemented the arrest and search measures in respect of the applicant. 17. G. S. and D. T. stated that in the morning of 25 March 2009 operational information had been received that the applicant was a drug user and had had drugs on his person while driving a certain car. In order to verify that information, a group of officers had been formed. The group had stopped the applicant’s car and had explained his rights to him, but the applicant had refused to invite any witnesses. A silver sachet containing a brownish substance had been found on his person during the search. According to G. S., the applicant had not put up any resistance and had stepped out of the car voluntarily, the search procedure had not been filmed on camera, and out of the group of officers, the personal search procedure had been implemented by him and D. T. According to the latter, the search process and the moment when the drug had been found on the applicant had been filmed by L. R. (another police officer), and the film must have been in the possession of the investigator (implying G. J). D. T. did not think that any passer-by had filmed the search. 18. L. R. stated that he had observed the search process but had not participated in it personally. No coercive measures had been necessary during the arrest and search procedure. At the time he had tried to film the procedure, his battery had been low and he had stopped the filming process soon after starting it. L. R. stated that G. S. had heard that the battery was low and that no film could have been made. 19. G. J. noted that he and G. L. had been the investigators on the case. According to G. J., he had first questioned K. K. and had then gone, together with a group of officers, to verify the operational information, with no time to apply for a judicial warrant. G. L. had gone with another group of officers. The applicant had been stopped and taken out of the car by force. G. J. did not remember why he had not duly filled in all the relevant sections of the reports. As to the question of witnesses, the applicant had verbally given the instruction not to invite any of them and had refused to sign the relevant reports. G. J. stated that the investigative measures had not been filmed by L. R., given that the battery had been low. D. T. had been standing further away and might not have heard that the battery was low . 20. I. M., the owner of the car which the applicant had been driving at the time of his arrest, indicated that he had been the applicant’s friend since childhood and had never heard of the applicant being a drug user. He noted that the applicant had often borrowed the car in question from him. 21. The applicant stated that he had been forcibly taken out of the car and put onto the ground. K. K. had been present. According to the applicant, the officers had tried to plant the drugs in his shoes but he had quickly taken them off. The officer had then planted the drugs in his pocket. The process had been filmed by an officer, who had immediately stopped filming when the applicant said that drugs had been planted on him. The applicant also stated that onlookers had been present who had filmed the process, but that he had not given their names even to his defence lawyers, to avoid any negative repercussions for those individuals. He maintained that his arrest and the planting of evidence was related to his active support of a friend who had been politically active against the government. The applicant argued that the arrest and search reports had not duly indicated the nature of the operational information, the nature of the urgency, or the refusal to invite any witnesses. He further stated that the sole witnesses against him had been the officers participating in his arrest and search, and that their account had contained inconsistencies. He requested that the trial court declare the arrest and search reports and the resulting evidence inadmissible. 22. On 7 October 2009 the Zugdidi District Court found the applicant guilty of unlawful purchase and storage of a narcotic substance in a particularly large quantity. The applicant was sentenced to eighteen years’ imprisonment. Taking note of the applicant’s version of the events, the court stated that that version had not been supported by the evidence available in the material in the case file, and had thus been intended to avoid criminal responsibility. In finding the applicant guilty, the court relied on the witness statements of the police officers and the applicant’s friend (see paragraphs 15-20 above), the arrest and search reports (see paragraphs 8-9 above), and the expert examination confirming that the brownish substance in the silver sachet was heroin (see paragraph 9 above). The court took note of the post‑search judicial review (paragraph 11 above) and the fact that the evidence obtained as a result of the applicant’s personal search had been declared to be lawful. The application by the defence to have the arrest and search reports declared inadmissible was dismissed on the ground that no serious breach of procedure had taken place during the process in question. 23. On 2 November 2009 the applicant appealed and reiterated his arguments (see paragraph 21 above). 24. On 26 January 2010 the Kutaisi Court of Appeal upheld the lower court’s findings in full. Relying on the same evidence and reproducing, in brief, the statements given by the witnesses and the findings of the post‑search judicial review (see paragraph 11 above), the appellate court noted that the applicant’s argument that onlookers had filmed the process was wholly unsubstantiated. As to the filming by the police, the appellate court stated that L. R.’s explanation concerning the low battery was convincing. 25. On 18 March 2010 the Supreme Court of Georgia declared an appeal on points of law by the applicant inadmissible as manifestly ill-founded. 26. On 18 January 2013 the applicant was released from prison under Section 8 of the Amnesty Act of 28 December 2012 (see paragraph 28 below). RELEVANT LEGAL FRAMEWORK 27. The relevant provisions of the Code of Criminal Procedure (CCP) in force at the material time were set out by the Court in Kobiashvili v. Georgia (no. 36416/06 , § 37, 14 March 2019), and Megrelishvili v. Georgia ([Committee], no. 30364/09 , § 23, 7 May 2020). 28. Section 8 of the Amnesty Act of 28 December 2012 provides for an amnesty in respect of drug-related crimes, except for those concerning the sale of drugs. THE LAW I. PRELIMINARY ISSUE 29. The Court notes at the outset that the original applicant, Mr Tengiz Kalandia, died after lodging the application on 17 September 2010, and that his son, Mr Konstantine Kalandia, expressed the wish to continue the proceedings before the Court (see paragraph 2 above). The Government did not dispute that Mr Konstantine Kalandia had standing to pursue the application in the applicant’s stead. 30. The Court reiterates that in cases where an applicant has died in the course of the proceedings, it has previously taken into account the statements of the applicant’s heirs or close family members expressing the wish to pursue the proceedings before the Court (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08 , § 97, ECHR 2014). Having regard to the circumstances of the present case, the Court accepts that the applicant’s son has a legitimate interest in pursuing the application, in so far as it has been lodged by the applicant (see Singh and Others v. Greece , no. 60041/13 , § 26, 19 January 2017, and Garbuz v. Ukraine , no. 72681/10 , § 28, 19 February 2019). 31. For reasons of convenience, the text of this judgment will continue to refer to Mr Tengiz Kalandia as “the applicant”, although his son is today to be regarded as having this status. II. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 32. Relying on Article 6 § 1 of the Convention, the applicant complained that the search carried out on him had been unlawful and that the drug allegedly discovered during the search had in reality been planted on him. He alleged that the domestic courts had failed to give due consideration to the arguments challenging the reliability and the use of the evidence in question, which had therefore rendered his trial unfair. Article 6 § 1, in so far as relevant, reads as follows: “In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” A. Admissibility 33. The Court notes that this complaint is neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. It must therefore be declared admissible. B. Merits 1. Submissions by the parties 34. The applicant submitted, among other arguments, that: (a) the operational information had been insufficient to justify his personal search without a judicial warrant; (b) he had been denied the right to invite witnesses to attend the search; (c) the drug had been planted on him during the search; and (d) although the evidence on the basis of which he had been convicted had lacked the qualities of accuracy and reliability, the domestic courts had failed to duly address his arguments in that regard. 35. The Government submitted, among other arguments, that: (a) the authorities were allowed to rely on operational information in investigating crimes, and a search could be carried out without a judicial warrant when sufficient grounds existed to believe that an individual would conceal or destroy an illicit item; (b) the search and the resulting evidence had been declared lawful during the post-search judicial review, against which the applicant had failed to lodge an appeal; (c) the applicant had had an effective opportunity to challenge the lawfulness of those measures; and (d) the complaint regarding the attendance of witnesses during the search had been unsubstantiated. The Government also argued that the applicant had not requested the domestic courts to hear evidence from any individuals who had allegedly been present in the vicinity of his arrest and search. 2. The Court’s assessment (a) General principles 36. The relevant general principles are summarised in Bykov v. Russia ([GC] no. 4378/02 , §§ 88-90, 10 March 2009) and Kobiashvili v. Georgia (no. 36416/06 , §§ 56-58, 14 March 2019). (b) Application of the general principles in the present case 37. The Court has already examined cases relating to the alleged unlawfulness of a search conducted in the absence of prior judicial authorisation and the unreliability of the evidence obtained as a result, and found that the manner in which the key evidence against the applicants had been obtained cast doubt on its reliability and accuracy (see Kobiashvili , cited above, §§ 59-73, and Megrelishvili v. Georgia [Committee], no. 30364/09 , §§ 32-39, 7 May 2020). The Court considered, in view of the importance of that evidence, that, cumulatively, the procedural irregularities during the personal search of the applicants; the inconsistent and conflicting evidence concerning the actual circumstances of the search; the inadequate judicial scrutiny both before and during the trial, including the failure of the domestic courts to sufficiently examine the applicants’ allegations that the illicit items had not belonged to them; and the weakness of the corroborating evidence had rendered the applicants’ trials as a whole unfair (see Kobiashvili , § 73, and Megrelishvili , § 39, both cited above). 38. Although the circumstances of the present application are somewhat different, the decisive elements in the Court’s analysis remain the same. 39. In particular, the arrest and search of the applicant were carried out without a judicial warrant, on the basis of “operational information” received from a source whose identity could not be disclosed (see paragraph 5 above). The source, nature and reliability of such information, which triggered the arrest and search of the applicant, were never directly examined either as part of the post-search review or in the criminal proceedings against the applicant (see paragraphs 11, 22 and 24 above; see also Kobiashvili , cited above, §§ 67-69). 40. As to the circumstances of the arrest and search, the grounds for the arrest were not specified in the relevant report (see paragraph 8 above), and one part of the report on the personal search failed to indicate the applicant’s alleged refusal to invite witnesses (see paragraph 9 above). Furthermore, the police officers gave conflicting accounts as to whether the applicant had stepped out of the car voluntarily or if the police officers had used force to that end (compare paragraphs 17-19 above). In contrast, the applicant maintained throughout the proceedings that the search had been carried out without the attendant procedural guarantees, and that the drug had been planted on him (see paragraphs 13, 21 and 23 above). In this regard, the Court reiterates that where the reliability of evidence is in dispute the existence of fair procedures to examine the admissibility of the evidence takes on an even greater importance (see Bykov , cited above, § 95). 41. Against this background, and as regards the applicant’s opportunity to challenge the authenticity of the evidence and to oppose its use, the Court observes that his requests to have the evidence obtained as a result of the contested search measure declared inadmissible were dismissed by the trial and appellate courts, which noted, among other grounds, that the personal search measure had already been validated by means of the post-search judicial review (see paragraph 11 above). However, the Court has already found that such reviews are not adequate and sufficient for the purposes of challenging the authenticity and reliability of evidence (see Kobiashvili , §§ 67-69, and Megrelishvili , § 35, both cited above). The trial and appellate courts also noted, without further elaboration, that there had been no serious breach of the procedural laws such as to lead them to declare the arrest and search reports inadmissible, and that the evidence available in the case file - the very reliability of which the applicant had challenged - had been sufficient to declare the applicant’s applications unsubstantiated (see paragraphs 22 and 24 above). Additionally, the Court cannot overlook the fact that the applicant’s repeated allegations concerning the planting of evidence (see paragraphs 13, 21 and 23 above) were not given any serious consideration at any stage of the criminal proceedings against him. 42. In view of all the above considerations, the Court concludes that the circumstances in which the search was conducted, including the alleged disregard of the applicant’s defence rights, cast doubt on the reliability of the crucial evidence against the applicant, and that the latter was not given an effective opportunity to challenge those circumstances and oppose the use of that evidence at domestic level, especially considering the fact that some of his crucial arguments were not given an adequate response (contrast Bykov, cited above, § 98). 43. What remains to be seen is whether the physical evidence obtained as a result of the search was corroborated by evidence from other sources. The Court considers that no other evidence in the case file, in the absence of the personal search report, was sufficiently strong on its own. In particular, as regards the statements given by the relevant officers, the latter formed the basis for the proceedings against the applicant and were made by the authority which initiated those proceedings and had an interest in the outcome of the prosecution. Their interest was particularly obvious in view of the applicant’s allegation that they had planted the drug. Furthermore, their statements were not without contradictions (see paragraphs 16-19 above). Nonetheless, their testimony was automatically taken as objective and reliable, without any meaningful attempt to address those contradictions or the applicants’ related objections. The Court therefore considers that, contrary to the Government’s submissions, none of the other evidence in the case file, in the absence of the physical evidence obtained as a result of the search, was sufficiently strong on its own (contrast Bykov , cited above, § 98). 44. The foregoing considerations are sufficient for the Court to find that the applicant did not have a fair trial. There has accordingly been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION 45. The applicant complained that the search measure had been implemented in breach of Article 8 of the Convention, and that the domestic courts had failed to strike the requisite balance between his rights and the public interest. 46. The Government submitted that Article 8 of the Convention had not been violated. 47. The Court observes that the applicant did not allege, in the context of the domestic proceedings, that the search measure had infringed his rights guaranteed under Article 8 of the Convention. Owing to this omission, the domestic courts were given no opportunity to assess their complaints. In these circumstances, the applicant’s complaint under the said provision is manifestly ill-founded and this part of the application must be rejected, in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 48. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” 49. The applicant claimed 5,000 euros (EUR) in respect of non‑pecuniary damage. 50. The Government found the claim excessive . 51. Making its assessment on an equitable basis, the Court awards the applicant EUR 3,600 in respect of non-pecuniary damage, plus any tax that may be chargeable to the applicant. 52. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1. Holds that the applicant’s son, Mr Konstantine Kalandia, has standing to continue the present proceedings in his stead; 2. Declares the complaint under Article 6 § 1 admissible and the remainder of the application inadmissible ; 3. Holds that there has been a violation of Article 6 § 1 of the Convention; 4. Holds (a) that the respondent State is to pay the applicant, within three months, EUR 3,600 (three thousand six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points; 5. Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 22 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court. {signature_p_2} Martina Keller Lətif Hüseynov Deputy Registrar President BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII