Dismissal of appeal on points of law from the supreme court without answering the grounds of appeal with sufficient reasons. Violation of due process
JUDGMENT
Rusishvili v. Georgia 30.06.2022 ( app. no. 15269/13)
SUMMARY
Fair trial. Representation by a lawyer of the defendant’s choice, examination of witnesses, reasons for the decision.
The applicant was sentenced to 18 years’ imprisonment for first-degree murder and possession of firearms. He appealed for a violation of the fair trial claiming that: a) during the arrest and during his first testimony, he was not assisted by a lawyer of his choice, b) during the hearing his request for the examination of witnesses was rejected, c) the decision of the jury lacked justification and d) the annulment court dismissed his appeal without thoroughly examining and justifying his claims.
The Court found that the overall fairness of the criminal proceedings against Mr Rusishvili had not
been irretrievably prejudiced by the absence of a lawyer of his own choosing during the initial hours
of his detention. It also considered that the procedure concerning the admissibility of evidence had
not been unfair. Moreover, the fact that the applicant had been allowed to choose between trial by
a jury or by a professional judge, coupled with the concrete procedural safeguards that he had been
afforded throughout the proceedings, had been sufficient to counterbalance the lack of reasons in
the jury verdict.
However, the European Court held unanimously that there had been:
a violation of Article 6 § 1 on account of the unreasoned decision to declare inadmissible the
applicant’s appeal on points of law.
The Court considered that it had been the appellate court’s duty to thoroughly examine the validity
and nature of Mr Rusishvili’s allegations and, more generally, to assess the manner in which the
relevant procedural safeguards had been applied in order to ensure the fairness of the jury trial.
While it may well be that the appellate court had conducted such a check, its decision had not
explained why it considered that Mr Rusishvili’s allegations were ill-founded and why the appeal was
not allowed. The Court found this situation particularly problematic given that his trial had been one
of the first jury trials following the reform of the Code of Criminal Procedure in Georgia in 2010.
PROVISIONS
Article 6 par. 1
Article 6 par. 3
PRINCIPAL FACTS
The applicant, Daviti Rusishvili, is a Georgian national who was born in 1992 and is detained in Tbilisi
(Georgia).
Following a fatal shooting in Tbilisi city centre on 17 October 2011, Mr Rusishvili was taken to the
police station for questioning. Having been informed of his procedural rights, it would seem that he
declined the assistance of a lawyer. A lawyer contacted by his family arrived at the police station shortly afterwards, but was not allowed to see him. Mr Rusishvili ended up confessing to the murder a few hours later. He was formally arrested on charges of murder and unlawful purchase and possession of firearms.
The following morning, Mr Rusishvili took part in a reconstruction of the events, and a video
recording in which he confessed to the killing, provided a detailed account of the events, and named
accomplices. According to records, the reconstruction was conducted with his consent. The record of
the reconstruction was duly signed by Mr Rusishvili and a lawyer invited by an investigator to
represent him.
On 20 October 2011 Mr Rusishvili was formally charged with aggravated murder and the unlawful
purchase and possession of firearms. While being questioned – this time in the presence of a lawyer
of his own choosing – he protested his innocence and cited his right to remain silent. The next day,
he was remanded in custody. Two months later he complained to the Georgian Bar Association
about the conduct of the lawyer who had been appointed by the investigator. It was subsequently
established by its ethics commission that she had participated in the reconstruction without
Mr Rusishvili’s or his family’s consent; she had not familiarised herself with the criminal case file
materials, and had not discussed a potential defence strategy with him. As a result, her licence was
suspended for 18 months.
In the meantime, the two accomplices, I.G. and I.A., were formally charged with various offences in
respect of the murder. It was established during the investigation that the murder had been set up
by I.G. in retaliation for the death of his son.
At a pre-trial conference in May 2012, Mr Rusishvili, who by then was represented by four lawyers,
protested his innocence. Requesting that the prosecution evidence be declared inadmissible, they
submitted that during the initial hours of his detention he had been prevented from seeing a lawyer
of his own choosing, and that the lawyer who had accompanied him during the crime reconstruction
had neither been a so-called legal-aid lawyer, nor had she been appointed with his consent. The
judge found the request unsubstantiated and rejected it.
She also rejected as inadmissible two expert reports which had found that none of the suspects
captured on the video recordings could be identified as Mr Rusishvili and also the list of 25 defence
witnesses to be summoned for the trial as it had not been signed by both parties and had not been
listed in the information exchange record. However, as three of those had been accepted for
examination as prosecution witnesses, she allowed the defence to question those during their crossexamination and their written statements were admitted as evidence.
Mr Rusishvili was advised that in view of the nature of the charges brought against him, he had a
right to a jury trial, and that a person found guilty of a crime by a jury had the right to a one-time
appeal on points of law. During the subsequent jury trial in June 2012, the presiding judge rejected
several requests made by the defence including one for I.G. to be able to testify that Mr Rusishvili
had not been involved in the murder, and one for the inclusion of the findings of one of the experts
regarding the video recordings made at the crime scene. During the trial, the jury heard 19
prosecution witnesses, viewed surveillance camera footage and media reports, multiple expert and
forensic reports and dozens of procedural documents concerning various investigative measures. On
15 June 2012, the jurors, by a majority of nine to three, found Mr Rusishvili guilty of aggravated
murder and of the unlawful carrying of a firearm. The judge acted on the jurors’ recommendation
that a harsher sentence be imposed and sentenced him to 18 years and two days’ imprisonment.
In July 2012 Mr Rusishvili lodged an appeal on points of law, complaining that the decisions of the
judge concerning the admissibility of evidence had been unlawful, that he had been denied access to
a lawyer of his own choosing during the initial hours of his detention and that the State-appointed
lawyer had been unlawfully designated. He also complained that his conviction had been based on a jury verdict that contained no reasons. By a decision of 31 August 2012, the Tbilisi Court of Appeal rejected his appeal as inadmissible.
THE DECISION OF THE COURT…
Article 6 §§ 1 and 3 (c)
Alleged restrictions on the right of access to a lawyer
The Court noted that it appeared that neither the pre-trial conference judge nor the presiding judge
had assessed the allegations of a breach of Mr Rusishvili’s right of access to a lawyer of his own
choosing, and that neither of them had examined the potential effect that it could have had on the
overall fairness of the proceedings. Nevertheless, the Court noted that Mr Rusishvili was not
particularly vulnerable on account of his age or mental capacity; his self-incriminating statement
during his initial questioning had not been presented to the jury; when formal charges had been
brought against him, and throughout the pre-trial investigation and the trial itself, he had been
represented by initially two and then four lawyers of his own choosing, all of whom had had
unimpeded and full access to the prosecution evidence.
The Court found therefore that the overall fairness of the criminal proceedings against Mr Rusishvili
had not been irretrievably prejudiced by the absence of a lawyer of his own choosing during the
initial hours of his detention. Accordingly, there had been no violation of Article 6 §§ 1 and 3 (c) of
the Convention on that account.
Article 6 §§ 1 and 3 (d)
Allegedly unlawful and arbitrary refusal to admit the defence evidence
The Court noted that Mr Rusishvili’s application to have admitted as evidence the list of witnesses to
be called on behalf of the defence had been rejected on procedural grounds because the list had not
been given to the prosecution five days before the pre-trial conference. The Court was not in a
position to conclude that the decision of the judge was arbitrary per se. It also noted that, at the
time, Article 84 of the Criminal Code provided for the possibility of admitting belated evidence that was of particular importance for the exercise of the defence even if information about that evidence had not been exchanged with the prosecution and the court. Mr Rusishvili had not, however, used that opportunity.
As to the refusal to examine I.G. via video link, the Court considered that, albeit rigid, the presiding
judge’s interpretation of the relevant procedural rule could not be said to have been arbitrary. The
Criminal Code explicitly required reasons for not presenting such evidence earlier, but the defence
had not provided any. Therefore, the Court found no violation of Article 6 §§ 1 and 3 (d) of the
Convention on that account.
Article 6 § 1
Absence of reasons in the jury verdict
The Court’s task in reviewing the absence of a reasoned verdict was to determine whether, in the
light of all the circumstances of the case, the proceedings had afforded sufficient safeguards against
arbitrariness and made it possible for the accused to understand why he had been found guilty. It
noted that each item of evidence had been examined in the presence and with the participation of
the defence. As the jury had deliberated immediately after the oral proceedings had ended and
without having access to the case file, its decision could have only been based on the evidence
examined by the parties during the trial. The Court further noted that the jurors had been given oral
and written instructions at the opening session of the trial and before retiring to the deliberation
room. On both occasions the defence had been invited to request amendments or additions to the
instructions, but had not done so.
In addition, Mr Rusishvili had been able to lodge an appeal on points of law. This type of appeal
could have led to a full retrial by a new jury if it had found that a presiding judge had made an
unlawful decision about the admissibility of evidence or a substantial error when instructing the jury,
or if the presiding judge had acted in breach of the principle of adversarial proceedings. The Court
was satisfied that the appeal rights available had been capable of providing a remedy against any
improper verdict returned by the jury.
The Court found that the fact that Mr Rusishvili had been allowed to choose between trial by a jury
or by a professional judge, coupled with the concrete procedural safeguards that he had been
afforded throughout the proceedings, was sufficient to counterbalance the lack of reasons in the
jury verdict. It followed that there had been no violation of Article 6 § 1 of the Convention on
account of the lack of reasons in the jury verdict.
Unreasoned decision to declare inadmissible the applicant’s appeal on points of law
The Court considered that it had been the appellate court’s duty to thoroughly examine the validity
and nature of Mr Rusishvili’s allegations and, more generally, to assess the manner in which the
relevant procedural safeguards had been applied in order to ensure the fairness of the jury trial.
While it may well be that the appellate court had conducted such a check, its decision had not
explained why it considered that Mr Rusishvili’s allegations were ill-founded and why the appeal
should not be allowed. The Court found this situation particularly problematic given that this trial
had been one of the first jury trials following the reform of the Code of Criminal Procedure in
Georgia in 2010.
Given the nature of the procedural issues raised by Mr Rusishvili and the failure of the pre-trial
conference and presiding judges to address those in the course of the jury trial, and given what was
at stake, the arguments in his appeal on points of law merited a thorough and detailed reply in the
reasoning of the decision taken by the Tbilisi Court of Appeal. The failure to provide such a reply led
the Court to the conclusion that there had been a violation of Article 6 § 1 of the Convention on this
account.
Just satisfaction (Article 41)
The Court did not discern any causal link between the violation found and the pecuniary damage
alleged; it therefore rejected this claim. As to the non-pecuniary damage, the Court considered that
a finding of a violation could be regarded as sufficient just satisfaction, and thus rejected the
applicant’s claim under this head.
Separate opinions
Judge O’Leary expressed a concurring opinion and Judge Jelić expressed a partly dissenting opinion.
The opinions are annexed to the judgment.
