The rejection of the defendant’s request for an oral hearing in the second instance proceedings violated her right to a fair trial
JUDGMENT
Mtchedlishvili V. Georgia 25.2.2021 (app. no. 894/12)
SUMMARY
Right to be examined in the second instance proceedings. Rejection of the applicant ‘s request for an oral hearing in the context of the appeal against her conviction for customs offenses. The applicant appealed against the decision before the appellate court.
Since the applicant had asked for her acquittal, arguing that her co-accused had implicated her in his desire to avoid criminal liability, the important issue raised was her credibility as well as that of her co-accused. Consequently, since the personality and character of the applicant and her co-accused were a serious matter for the court to consider in the present case, the applicant should have been examined in person. According to the ECtHR, the requirements of a fair trial under Article 6 require clear reasons to be provided by the appellate court for rejecting the applicant’s request for a hearing, mainly because the applicable provisions of the CPC seem to require it, as a rule, under the circumstances of a case such as its own. In view of the fact that the Court of Appeal did not give a reason for the dismissal of an oral hearing, the Court was not in a position to distinguish exceptional circumstances justifying the absence of an oral hearing.
Violation of Article 6 § 1 (right to be heard) of the ECHR.
PROVISION
Article 6 par. 1
PRINCIPAL FACTS
The applicant was born in 1959.
On 18 March 2010 the police received anonymous information that the applicant had been illicitly transporting narcotic and psychotropic medication from Turkey into Georgia with the aim of selling it. On the same date the applicant was stopped and searched by the police at the Sarpi border checkpoint on the land border between Georgia and Turkey. According to the search report, 15,410 pills (apparently recounted later as 15,761) were seized from the applicant. Part of the pills were packaged in 310 blister packs, each containing fifteen pills, with the inscription “Stablon”, whereas the remainder were packaged in a transparent bag without any label. The applicant was arrested as a suspect in respect of the crime of purchasing and storing narcotic substances (“the first set of events”).
On 19 March 2010 an expert examination carried out in respect of the pills seized from the applicant established that the pills did not contain narcotic or psychotropic substances. As a result, the investigator in charge of the case decided that there were no grounds to justify the applicant’s detention while the investigation was ongoing. The applicant was released. Subsequently, an expert of the National Forensic Bureau determined the value of the seized pills at 15,655.89 Georgian laris ((GEL), approximately 6,586 euros (EUR) at the time).On 30 July 2010 the police received anonymous information that the applicant, together with a certain A.M., had been illicitly transporting narcotic and psychotropic medication from Turkey into Georgia with the aim of selling it, and that at that moment the two of them were in Batumi with those substances in their possession. A criminal investigation was opened in respect of the applicant and A.M. in connection with the crime of purchasing and storing narcotic substances. On the same day the applicant was stopped and searched in Batumi. She was not found to be carrying any illicit items. A search of her home was also carried out, without any substances being found. The investigator carried out as a matter of urgency a search of a garden belonging to G.Ch. (A.M.’s mother-in-law). When asked about any substances hidden on her premises, G.Ch. indicated that A.M. had asked to store a bag in her garden, but she had not been aware of what it had contained. She showed the officers the place where she had stored the bag. As a result, the officers retrieved a plastic bag containing 10,956 unidentified pills, and 710 blister packs, each containing fifteen pills, with the inscription “Stablon” (“the second set of events”). At a later date an expert of the National Forensic Bureau determined the value of the seized pills at GEL 22,427.47 (approximately EUR 9,392).
On 31 July 2010 the applicant and A.M. were arrested as suspects.
On 27 August 2010 the applicant was charged with two counts of violation of customs regulations under Article 214 § 1 of the Criminal Code in respect of the two sets of events. A.M. was also charged in respect of the second set of events.
During the trial the applicant admitted, in so far as the first set of events was concerned, that she had imported the “Stablon” medication on 18 March 2010 with the intention of opening a pharmacy in Georgia, and had handed the medication to the police when approached for her personal search. This was the second time she had brought the medication concerned into Georgia. It was neither a narcotic nor a psychotropic drug and its value was much lower than the value established by the expert. In the applicant’s submission, the value had not exceeded the amount of GEL 15,000 provided for by law, her actions had not been criminal. The applicant submitted that she had had no connection to the second set of events, and that A.M. had incriminated her in order to avoid his own criminal liability. The applicant noted that she knew A.M. and had used his services as a taxi driver. On 29 July 2010 she had gone to Turkey and back, and had done so again on the following day, for private trading purposes. On 29 July 2010, when she returned from Turkey, she had waited for A.M. to pick her up upon his own return from Turkey. As it was late, she had stayed at the latter’s home and had left her belongings (food, drinks and bedsheets) there when she had left again for Turkey on the following day.
According to A.M., he had become acquainted with the applicant between ten and twenty days before the events in question, while working as a taxi driver. A.M. had also crossed into Turkey several times for his work on a tea plantation. As for the events of 29 July 2010, he had picked the applicant up from the Georgian side of the land border at around 10 p.m. and had driven her to his home to stay overnight. She had been carrying plastic bags filled with various items. The following day the applicant had left, leaving the bags behind. Later she had sent him a message requesting that he bring two of the bags and leave one bag containing the medication where she had left it. She had explained that the medication consisted of painkillers. Subsequently she had asked him to put the bag containing the medication in a place where nobody would see it. A.M. had then sent a text message to his family asking them to put the bag away.
Two of the investigators of the second set of events testified that A.M. had told them that the pills found in G.Ch.’s garden had been brought there at the applicant’s request. A.M. denied having had such a conversation. G.Ch. was also questioned. She stated that she did not know the applicant personally but had seen her sometime earlier standing in the entry queues at the border. As regards the bag found in her garden, she stated that A.M. had asked her, via a text message sent to his sister, to throw it away, and she had done so, throwing it to the end of her garden. When the police arrived, she had indicated the location to them. She did not know where the bag had come from, but it had been at her house in the morning of 30 July 2010.
On 20 December 2010 the applicant made an application for a State‑appointed expert to be questioned regarding the method used to calculate the value of the seized pills. The application was dismissed on the grounds that it had been submitted out of time.
On 14 February 2011 the applicant and A.M. were convicted as charged. The applicant was sentenced to nine years’ imprisonment (four and a half years in respect of each count) and a fine in the amount of GEL 25,000 (approximately EUR 10,474 at the time). As regards the applicant’s arguments (see paragraph 10 above), the court found in respect of the first set of events that the value of the pills had been assessed correctly by the expert, on the basis of a standard method in such cases. As to the second set of events and the applicant’s assertion that she had had no connection to it, the court concluded that the evidence as a whole confirmed the applicant’s guilt. In particular, the trial court noted that A.M. had indicated that he had hidden the relevant pills on the applicant’s instruction; the relevant records of the border authorities had indicated that on 29 July 2010 both the applicant and A.M. had crossed into Turkey and back, even if not together, demonstrating that the pills had been imported from Turkey; and the officers in charge of the investigation and the search had confirmed the applicant’s connection to the second set of events.
On 14 March 2011 the applicant lodged an appeal. In so far as the first set of events was concerned, she admitted that she had transported the pills seized from her on 18 March 2010, but disagreed with the method of calculating their value, requesting that the relevant expert be questioned before the appellate court. Additionally, the applicant submitted that she had commissioned an alternative expert examination which had utilised a different method of calculating the value and requested that the author of the latter study be questioned in the appellate proceedings.
As regards the second set of events, the applicant maintained that she had had no connection to it, and that her co-accused had implicated her in order to avoid any criminal liability for himself. She further contended that even if it were admitted, for the sake of argument, that A.M.’s statement had been true, that would still have been insufficient to prove that the pills in question had been illegally transported from Turkey and not acquired on Georgian territory. The applicant therefore submitted that the crime of transporting the pills across the border would still not have been proven, especially considering that no illicit items had been discovered on her person when crossing the border from Turkey to Georgia on 29 July 2010, and given that even A.M. had stated that he did not know where the pills seized from G.Ch.’s garden had come from.
The applicant requested that the Kutaisi Court of Appeal hold an oral hearing to shed light on the issues raised in her appeal.
The prosecutor did not submit any observations.
On 31 March 2011 the Kutaisi Court of Appeal dispensed with an oral hearing, without explaining that decision. It upheld the lower court’s judgment in full. As regards the first set of events, the Kutaisi Court of Appeal noted that the parties had not contested the facts established on the basis of the available evidence. As the applicant had only disagreed with the method of calculating the value of the seized material, and in such cases it was always the customs value which was applied by experts, the court found the first count under Article 214 § 1 of the Criminal Code to have been proven.
As concerns the second set of events, the Kutaisi Court of Appeal took note of the arguments advanced by the applicant and the submissions of her co-accused, who appears to have lodged a separate appeal. The court noted that it could not accept those accounts as they had been unconvincing and contradictory. In the opinion of the appellate court, the applicant and her co-accused had been proven to be guilty in respect of the second set of events on account of the following: the witness statements given by the officers who had carried out the search and seizure, indicating that the pills had belonged to the applicant, and by A.M.’s mother-in-law, noting that A.M. had instructed her to hide the pills in her garden; the search report in respect of A.M.’s house and garden; the expert examination of the value of the pills seized from the garden; and records of the border authorities, according to which the applicant and A.M. had crossed the border into Turkey within twenty minutes of each other and had come back into Georgia within one hour of each other on 29 July 2010. That evidence, in the court’s opinion, indicated that the applicant and her co-accused had acted jointly and had transported the medication from Turkey into Georgia by circumventing the customs inspection, on 29 July 2010.
On 26 April 2011 the applicant lodged an appeal on points of law. She complained, among other things, about the Kutaisi Court of Appeal’s decision to dispense with an oral hearing.
On 22 June 2011 the Supreme Court rejected the appeal on points of law as inadmissible. The court stated that the case was not important for the development of the law and coherent judicial practice, and the appellate court had not examined the case with major procedural flaws which could have significantly affected the outcome of that examination.
On 24 January 2013 the applicant was released from serving the remainder of her sentence on the basis of the Amnesty Act of 2012.
THE DECISION OF THE COURT…
Turning to the circumstances of the present case, the Court observes that in order to determine whether there has been a violation of Article 6, an examination must be made of, among other factors, the role of the Kutaisi Court of Appeal and the nature of the issues which it was called upon to examine in the applicant’s case.
In accordance with the procedural legislation in force at the material time, an appellate court was empowered to hold a full retrial of a case on the law as well as on the facts. The Government did not dispute this and contended, in so far as the second set of events was concerned, that the appellate court had carried out a full assessment of the facts of the case, even if that was by means of a written procedure.
As concerns the issues which the Kutaisi Court of Appeal was called upon to examine and the nature of the applicant’s case before it, the Court takes note of the Government’s argument that the applicant had been convicted of an offence classified as “less serious” under domestic law and that therefore the appellate court had been authorised to dispense with an oral hearing, under Article 529 § 5 of the Code of Criminal Procedure. However, as the requirements of Article 6 § 1 of the Convention are autonomous in relation to those of national legislation, the Court must assess the particular circumstances of the present case with regard to each of the two sets of factual events in respect of which the applicant was convicted.
37. As far as the first count is concerned, it was undisputed on appeal that the applicant had personally carried the pills from Turkey into Georgia. Even if the charge, which belonged to the core criminal law, and the sanction – four and a half years’ imprisonment – carried a degree of stigma, the Court does not lose sight of the fact that the central argument raised by the applicant in that respect was her disagreement with the expert assessment of the value of the seized medication. The Kutaisi Court of Appeal found in this regard that the factual circumstances surrounding the first set of events had not been in dispute, and that the expert had assessed the value on the basis of a standard procedure. On the basis of the above, the Court accepts that the applicant’s appeal, in so far as the first set of events is concerned, did not raise any questions of fact or law which could not be adequately resolved on the basis of the case file and the parties’ written submissions. Thus, no issue arises under Article 6 § 1 of the Convention in this regard.
As regards the second count, the Court observes that the charge against the applicant belonged to the core criminal law and carried a sanction of four and a half years’ imprisonment. Considering that the criminal proceedings against her had concerned two counts, if found guilty on the second charge, the overall length of the applicant’s sentence would exceed the domestic law’s limit of five years’ imprisonment for dispensing with an oral hearing. In addition, the applicant’s appeal was centred on questions of fact and, notably, on the crucial issue of whether she had indeed been involved in the second set of events. Since the applicant had sought her acquittal, arguing that her co-accused had implicated her on account of his wish to avoid criminal liability, the important issue of her credibility, as well as that of her co-accused, arose. Consequently, as the questions to be decided by the appellate court involved the assessment of issues such as the personality and character of the applicant and her co-accused, the applicant should have been heard directly.
Thus, the Court considers that, in the first place, the questions to be decided by the appellate court in relation to the second set of events could not, as a matter of fair trial, have been properly determined without a direct assessment of the evidence given in person by the individuals concerned. Yet when confirming the lower court’s findings by means of a written procedure, the appellate court did not respond to the applicant’s request to be heard in person and adjudicated the matter on the basis of the available material in the case file. Furthermore, the requirements of fair trial under Article 6 mandated that clear reasons be provided by the appellate court for refusing the applicant’s request for a hearing, not least because the applicable provisions of the CCP appeared to require one, as a rule, in the circumstances of a case such as hers. Given the fact that no explanation was given by the Kutaisi Court of Appeal for dispensing with an oral hearing, the Court is not in a position to discern any exceptional circumstances that may have justified the lack of an oral hearing.
There has therefore been a violation of Article 6 § 1 of the Convention as regards the lack of an oral hearing at the appellate stage.
