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THIRD SECTION

Application no. 60870/11
Nugzar TABAGARI
against Georgia
lodged on 17 August 2011

STATEMENT OF FACTS

THE FACTS

The applicant, Mr Nugzar Tabagari, is a Georgian national who was born in 1981 and is currently serving a prison sentence in Rustavi no. 15 prison. He is represented before the Court by Mr B. Botchorishvili, a lawyer practising in Tbilisi. The circumstances underlying the present application also constitute the basis of the applicant’s first application to the Court (no. 70820/10).

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 14 December 2009 the applicant, who suffers from mental disorders, was severely beaten by G.B., the Governor of the prison hospital where the applicant was staying at the material time and several prison officers. Notably, according to the applicant, on that day he had a verbal argument with prison officer I.L., following which he was taken to the ground floor of the prison and severely beaten whilst lying on the floor handcuffed and with a helmet on his head. The Governor of the prison hospital and prison officers identified as I.L., N.Kh., A.P. and several others beat him with truncheons and kicked and punched him all over his body for some three hours. The applicant was also verbally abused and threatened.

On 15 December 2009, on the basis of a complaint made by the Governor of the prison hospital, criminal proceedings were initiated into the circumstances of an attack on prison officer I.L. The latter was declared to be a victim in those proceedings. He underwent a medical examination, as a result of which a small bruise measuring 0.5 X 0.3 was identified on his upper lip. The applicant also underwent a medical examination, which established that he had sustained various physical injuries to his face and body. Thus, according to the relevant medical report, the applicant displayed numerous bruises and haemorrhages of various sizes on his eyelids, nose, arms, thighs, buttocks, shanks and left foot. The injuries were deemed to have been caused by a blunt object and were classed as minor.

On 25 December 2009 the applicant was visited by a representative of the Public Defender’s Office (“the PDO”). According to the report drawn up thereafter, in addition to traces of old injuries the applicant had multiple fresh injuries all over his body, including swelling around his head, reddening on the neck, back injuries, haemorrhages in both armpits, bruises on his legs and arms and so forth. The applicant gave a detailed statement in which he confirmed his allegations of ill-treatment. The two reports were forwarded by the head of the investigative and monitoring department of the PDO to the head of the investigative department of the Ministry of Prisons in support of a request to take any lawful action required.

On 26 January 2010 the applicant was charged with attacking a prison officer, an offence under Article 378 § 5 of the Criminal Code of Georgia. On the same day he was questioned as an accused in the absence of a lawyer. In his statement he reiterated his ill-treatment allegations, providing a very detailed account of the incident, indicating the type, location and duration of his ill-treatment and identifying the prison officers involved. He noted that prior to his ill-treatment he had had a verbal argument with prison officer I.L., who had insulted him and his family. He could not recall whether he had assaulted I.L. in return.

Prior to the questioning the applicant signed a form on the right of defence, in which he noted that he did not have sufficient financial means to hire a lawyer on his own.

On 16 February 2010 a lawyer was assigned to the applicant under the legal-aid scheme. On 4 March the investigation was completed and the case-file was forwarded to the first-instance court along with the bill of indictment.

On 4 May 2010 the Tbilisi City Court convicted the applicant as charged, concluding that his allegations of ill-treatment by the prison officers had been made up with the sole purpose of evading criminal liability. The court made no assessment of the medical report, which detailed the applicant’s injuries, and refused to question the relevant medical expert in court. It further dismissed the applicant’s testimony, considering it to be subjective, and based its conclusion primarily on the statements of the prison officers involved in the incident. The applicant was sentenced to twelve years’ imprisonment.

The applicant appealed against his conviction on 28 May 2010 to the Tbilisi Court of Appeal. He denounced the fact that the first-instance court had refused to call several witnesses on his behalf, among them the representative of the PDO who had visited the applicant on 25 December 2009 and the medical expert who had conducted the applicant’s and the victim’s medical examination. The applicant further complained about the refusal of the first-instance court to take the relevant reports of the PDO as evidence. He reiterated his request for the questioning of the medical expert, the representative of the PDO and several of his co-prisoners.

By a decision of 14 July 2010 the Tbilisi Court of Appeal, fully subscribing to the reasoning of the first-instance court, upheld the applicant’s conviction. The appellate court dismissed the requests for the questioning of the medical expert and the representative of the PDO as unsubstantiated. The appellate court also subscribed to the statement of I.L., according to which the applicant had sustained his injuries when, as a result of resisting the prison officers, he had fallen on the stairs. He had also been handcuffed and a helmet had been put on his head in order to prevent him from self-harming.

According to the applicant, during the appeal proceedings he appointed two lawyers of his own choice to represent him; however, the appellate court did not allow them to take part in the proceedings. Despite the applicant’s objection the hearings were held with the participation of a lawyer acting under the legal-aid scheme. As a consequence of his protests, the applicant was expelled from the courtroom for his allegedly inappropriate behaviour and was not allowed to present his concluding arguments.

On 12 August 2010 the applicant lodged an appeal on points of law, reiterating all the arguments that he had made during the trial and the appeal proceedings. In particular, the applicant complained that the domestic authorities had not examined his ill-treatment allegations and had failed to properly assess the available medical evidence. He further denounced the fact that he had not been provided with a lawyer at the initial stage of pre-trial investigation, that the legal aid lawyer assigned at a later stage had been employed by the very same Ministry of Prisons for which the prison officers and the investigator had been working, that the appeal court had rejected his right to bring lawyers of his own choice to the hearing and that he had been precluded from presenting his concluding arguments.

On 17 February 2011 the Supreme Court of Georgia dismissed the applicant’s appeal on points of law as lacking a legal interest.

COMPLAINTS

Relying on Article 6 §§ 1 and 3 of the Convention the applicant complained that the criminal proceedings against him had been unfair. Notably, he contended that the decisions reached by the domestic courts were manifestly unreasonable, his conviction was primarily based on statements given by the prison officers whom he had implicated in his ill-treatment, and that the domestic courts failed to properly analyse the medical evidence present in the case file and refused to call witnesses on his behalf. The applicant further complained of violations of his defence rights at various stages of the proceedings.

QUESTIONS TO THE PARTIES

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

              In particular,

(a)  Did the decisions of the domestic courts contain sufficient reasoning for the finding of the applicant’s guilt?

(b)  Did the domestic courts sufficiently reason their conclusion that the statements of the prison officers concerning the incident of 15 December 2009 deserved more credibility than the deposition made by the applicant?

(c)  Did the domestic courts duly examine the applicant’s allegation of having been ill-treated by prison officers?

(d)  Were the applicant’s defence rights restricted in violation of the requirements of Article 6 § 3 (c) of the Convention? In particular,

–  Was the applicant provided with legal aid at the pre-trial investigation stage in due time?

–  Was the applicant’s right to effective legal assistance respected given the fact that the legal aid lawyer was appointed by the legal aid service established under the Ministry of Prisons? Notably, did the fact that the investigator, the victim (the prison officer) and the applicant’s legal aid lawyer all were under the hierarchical subordination of the Ministry of Prisons, have an adverse impact on the effectiveness of the legal assistance provided to the applicant?

–  Was the applicant able to defend himself through lawyers of his own choosing at the appeal stage?

–  Having due regard to the fact that the applicant was expelled from the appeal proceedings and was hence prevented from presenting his closing arguments, can he be said to have been able to defend himself, as required by Article 6 § 3 (c) of the Convention (see, mutatis mutandis, Hanževacki v. Croatia, no. 17182/07, § 25, 16 April 2009, and Huseyn and Others v. Azerbaijan, nos. 35485/05, 45553/05, 35680/05 and 36085/05, §§ 192-195, 26 July 2011)?

(e)  Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention in conjunction with Article 6 § 1?