Deprivation of the right to choose a defense lawyer and the national court’s formalism in the late appeal violated the ECHR

JUDGMENT

Lobzhanidze and Peradze v. Georgia 27.02.2020 (no. 21447/11 and 35839/11)

see here 

SUMMARY

Evidence, Appointment of Attorney, Appeal and Fair Trial.

The applicants were convicted of forgery for a virtual sale of real estate. In addition, the first applicant was charged with the offense of bribery of judicial officers for attempting to influence a judge at the seat. They complained that the domestic courts did not take into account the evidence they provided. In addition, the first applicant complained that he had been deprived of the lawyer of his choice and missed the deadline for appeal because of the improper execution of the conviction.

Concerning the first complaint as to the reasons for the decision, the Court, under Article 6 § 1 of the Convention, obliges the national courts to state clearly the reasons on which they base their decisions, in particular in a case such as this one, where internal decisions are based on a set of evidence from many witnesses.

In the present case, however, it found that the decision of the national courts was based on sufficient evidence which it could not review and held that there was no violation of Article 6 § 1.

The ECtHR also held unanimously:

Concerning the complaint about the appointment of a lawyer of his own motion, that the defendant’s interference with his choice of representation in court violated Article 6 § 3 (c), and

That the dismissal of the appeal as being out of time for purely formal reasons without examining whether the applicant had been given extensive power of attorney by his power of attorney to bring an action for infringement, infringed Article 6 §§ 1.

In accepting these violations, the ECtHR found that there was no need to examine the complaint under Article 2 § 1 of Protocol No. 7.

PROVISIONS

Article 6§1

Article 6§ 3 (c)

Article 2 §1 of Protocol no. 7

PRINCIPAL FACTS

The applicants, Zurab Lobzhanidze and Pati Peradze, are Georgian nationals who were born in 1964
and 1950 respectively and live in Horgen (Switzerland).

The case concerned three sets of interconnected proceedings against Mr Lobzhanidze, one of which
also concerned his mother-in-law, Ms Peradze.

The first set of proceedings against Mr Lobzhanidze, chairman of the board of directors of two gold
and copper mining companies, was for abuse of power and commenced in 2004. He was convicted
as charged by a first-instance court in 2017 and sentenced to two years’ imprisonment, commuted
under an amnesty.

In the second set of proceedings both applicants were convicted of forgery in July 2010 and
sentenced to seven years’ imprisonment each. In particular, the courts found that Mr Lobzhanidze
had fictitiously sold a house he owned by the seaside in Kvariati in order to avoid its confiscation. He
had apparently sold it through his mother-in-law to a third party, using a fictitious document drawn
up in 2004 certifying a title to the property. The courts relied on various witness statements, by the
applicants’ relatives and by a couple who had looked after the house between 2000 and 2009, to
find that it had always been owned by the applicants and had therefore never actually been sold.

The applicants appealed, arguing in particular that the sale of the house had been genuine but
annulled because the new owner had not been able to access the house which had been sealed, and
that the Minister of Internal Affairs had moved into it while the proceedings against them had still
been pending. The Minister was subsequently found guilty of abuse of his official position, as the
house had not been transferred to the State and he had had no right to make use of it.

The first-instance judgment against the applicants was upheld in full in November 2010, and the
Supreme Court dismissed an appeal on points of law as inadmissible in 2011.

In the meantime, a third set of proceedings was brought against Mr Lobzhanidze for telephoning the
judge hearing the case brought against him and his mother-law as part of the second set of
proceedings in an alleged attempt to influence the judge to find in their favour. Mr Lobzhanidze was
assigned a legal-aid lawyer in those proceedings. He was convicted in absentia in September 2010 of
grossly interfering with judicial activities and sentenced to one year’s imprisonment. His application
for leave to appeal outside the one month time-limit on the grounds that he had been unaware of
the assignment of the legal-aid lawyer and the adoption of the first-instance court’s judgment was
subsequently rejected.

Mr Lobzhanidze’s sentence from his second conviction was reduced and he was amnestied in
respect of the third set of proceedings. Ms Peradze was also amnestied in respect of her conviction.
Relying in particular on Article 6 § 1 (right to a fair trial) of the European Convention on Human
Rights, the applicants complained that the judgments in the second set of proceedings had not been
duly reasoned.

Mr Lobzhanidze also complained that the investigator in the third set of proceedings had appointed
a legal-aid lawyer, without giving him the opportunity to choose his own lawyer and that this had
made it impossible for him to have his conviction reviewed on the merits, in breach of Article 6 §§ 1
and 3 (c) (right of access to court / right to legal assistance of own choosing / right to obtain
attendance and examination of witnesses) in particular.

THE DECISION OF THE COURT…

Article 6§1

Article 6 § 1 of the Convention obliges the domestic courts to indicate with sufficient clarity the grounds on which they base their decisions.

The Court notes at the outset that the applicants conviction concerned the preparation and use of a forged document certifying property rights under Article 210 of the Criminal Code. It was based on a body of witness statements (including statements by the applicants relatives, and the first applicants attorney) and other evidence (see paragraph 21 above) pointing to the applicants “de facto ownership” (“რეალური საკუთრების უფლებაof the house after the conclusion of the sale contract. In that connection, under the Courts case-law concerning reasoning of judicial decisions cited above, the domestic courts were obliged to provide a specific and explicit reply only to those arguments which would have been decisive for the outcome of the proceedings. In this connection, among other arguments, the applicants had argued (i) the alleged absence of proof that the property had been obtained through illegal means; (ii) the anonymity of the source of the allegation that the first applicant had acquired the property unlawfully; and (iii) the fact that the Minister of Internal Affairs had allegedly moved into the house at the time the criminal investigation had commenced. Although these arguments were not given an explicit reply by the domestic courts, they were not relevant to the determination of whether the applicants had prepared and used a fictitious sale contract for immovable property within the meaning of Article 210 of the CC. While the Court takes note of the Ministers subsequent conviction in relation to his occupancy and renovation of the house in Kvariati , it does not lose sight of the fact that the Ministers conviction concerned a different crime, established only after the proceedings against the applicants had ended, and had no direct impact upon the crime of forgery imputed to the applicants.

As to whether the domestic courts were obliged to provide an explicit reply to the applicants argument concerning the foreseeability of their conviction, the Court will consider whether that argument was sufficiently arguable. In that connection, the Court reiterates that it is not its task to substitute itself for the domestic courts as regards the assessment of the facts and their legal classification, provided that these are based on a reasonable assessment of the evidence. In this context, as to the applicants argument that the sale contract had not constituted “a document certifying a right to property”, the Court notes, among other things, that the relevant record of the Public Registry relating to the ownership title over the house explicitly classified the impugned contract as a “legal document confirming the right” to the property in question. As concerns the definition of forgery, the Court takes into account the fact that the particular definition of forgery under Article 210 of the CC used in the case at hand had been wellestablished in the jurisprudence of the domestic courts at the material time  and cannot qualify it as manifestly unreasonable. Furthermore, the Court takes note of the fact that the Supreme Court did respond to the applicants regarding this particular argument, noting the existence of a well-established practice on the application of Article 210 of the CC to similar cases.

In the light of the foregoing, and considering the body of evidence implicating the applicants, their complaints effectively meant challenging the weight attached by the national courts to particular items of evidence and their findings of fact and domestic law – matters which are not for the Court to review.

Accordingly, the Court concludes, in the particular circumstances of the present case, that there has been no violation of Article § 1 of the Convention.

Article 6 §§ 1 and  3 (c)

Although not absolute, the right of everyone charged with a criminal offence to be effectively defended by a lawyer, assigned officially if need be, is one of the fundamental features of a fair trialA person charged with a criminal offence does not lose the benefit of that right merely on account of not being present at the trial. It is of crucial importance for the fairness of the criminal justice system that the accused be adequately defended, both at first instance and on appeal 

The Court observes at the outset that the issue in the present case is not whether a trial in the accuseds absence was compatible with Article §§ 1 and 3 (c) of the Convention or the right of access to a court under Article 6 § 1, as the applicant essentially complains not about his right to have attended the trial – which he in fact did not wish to attend – but (i) the fact that he was not given an opportunity to have his interests defended through legal assistance of his own choosing, and (ii) the domestic courts allegedly insufficiently reasoned refusal to allow an appeal against his in absentia conviction.

The Court notes that by the time the third set of proceedings commenced, the first applicant had already been declared a fugitive as part of the first and the second set of criminal proceedings against him. Within this context, the domestic legislation ensured a persons right to defend himself or herself through legal assistance of his or her own choosing – the right which the applicant exercised in the first two sets of proceedings – even if the person in question avoided appearing before the relevant authorities. In such cases a suspect or an accused or their close relatives were to be given forty-eight hours to appoint defence counsel, failing which a legal-aid lawyer would be appointed by an investigating authority.

Against this background, the investigator, intending to bring charges as part of the third set of criminal proceedings, approached the applicants lawyer appointed as part of the second set of criminal proceedings to ask for the contact information of the applicants relatives even though the applicants whereabouts were apparently known to the investigator, not least because the letter on which the charges were based contained the first applicants address in Switzerland , and the telephone number from which the first applicant had called the judge had been identified . In any event, as can be seen from the note on procedure prepared by the investigator, soon after that interaction with the lawyer, the applicant himself called the investigator to enquire into what had been going on. The text of the note does not explain whether the applicant had been provided with detailed information regarding the charges, except for noting that he was informed that the investigator was “about to bring charges against him” . Even if the Court were to accept that the applicant was made formally and sufficiently aware of the proceedings pending against him by means of the telephone conversation in question, the Court is to assess whether the applicant explicitly waived his right to be defended through the assistance of a lawyer of his own choosing.

The Court observes that the note on procedure made by the investigator mentioned that the first applicant had instructed him to contact his lawyer, who had been appointed as part of the second set of criminal proceedings . That can hardly be seen as constituting a knowing and intelligent waiver of his right (afforded by the domestic legislation) to have his interests defended by a lawyer of his own choosing. Yet, without any attempt to contact the applicants lawyer, and without providing any reasons for his decision, the investigator proceeded to appoint a legal-aid lawyer.

In the absence of relevant and sufficient grounds for overriding or obstructing the defendants wish as to his or her choice of legal representation, the Court will therefore assess whether, in the light of the proceedings as a whole, the rights of the defence were “adversely affected” by the “denial of choice” in respect of a lawyer to such an extent as to undermine their overall fairnessIn this connection, the Court notes that while the authorities were aware of the applicants whereabouts, they did not inform him of the decision on the assignment of the legal-aid lawyer as opposed to the counsel of his own choice. Furthermore, the question of the assignment of a legal-aid lawyer does not appear to have arisen during the subsequent judicial proceedings at first instance. Nor does it appear that the applicant was informed of his conviction by the first-instance court until after the time-limit for lodging an appeal had expired.

In this context, the Court does not agree with the Governments position that it had been the applicants obligation to initiate contact with the legal-aid lawyer whose identity – or indeed, whose very assignment – had been unknown to him. In such circumstances, the applicant could not have authorised the legal-aid lawyer to lodge an appeal against his conviction in line with the requirement of consent provided for in the domestic procedural law, as it stood at the material time .

Furthermore, given the undisputed absence of contact between the applicant and the legal-aid lawyer during the proceedings before the firstinstance court, and the legal-aid lawyers resulting inability to lodge an appeal without the applicants consent, the right to appeal against the in absentia judgment could only be exercised – as argued by the applicant before the domestic courts – once the applicant had become aware of the judgment against him. Yet the domestic courts that considered the applicants application for leave to appeal outside the time-limit of one month did not address his arguments regarding either the allegedly unlawful circumstances surrounding the assignment of the legal-aid lawyer or the resulting inability to lodge an appeal against his conviction within the prescribed time-limit.

More importantly, when rejecting, in a final decision, the application for leave to appeal against the applicants conviction by the first-instance court, the appellate courts only finding was that the documents available before it had not evidenced the applicants will to have the appeal heard in his absence, as required by the legal provision concerning the appeals procedure in respect of in absentia convictions. However, the Court observes that the law in question did not specify how such a will should have been expressed. Therefore, such a refusal, without addressing the existence of the extensive power of attorney issued by the applicant after he had apparently become aware of the judgment against him, and authorising his lawyer to initiate and pursue all appeals before the domestic courts in his stead, had constituted an insufficiently reasoned and excessively formalistic application by the appellate court of a procedural rule.

The foregoing considerations are sufficient for the Court to conclude that the circumstances in which a legal-aid lawyer (as opposed to one of the applicants own choosing) was appointed, and the domestic courts refusal on excessively formalistic grounds (and without addressing the applicants principal arguments) to allow the application for leave to appeal out-of-time resulted, in the particular circumstances of the present case, in the applicants inability to have his conviction reviewed on the merits, in breach of his fair trial guarantees.

There has therefore been a violation of Article 6 §§1 and 3 (c) of the Convention.

No violation of Article 6 § 1 – with respect to the two applicants in so far as the right to a reasoned
judgment in the second set of the criminal proceedings was concerned

Violation of Article 6 §§ 1 and 3 (c) – as regards Mr Lobzhanidze’s complaints with respect to the
third set of criminal proceedings

Just satisfaction: 3,600 euros (EUR) to Mr Lobzhanidze for non-pecuniary damage.


ECHRCaseLaw

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