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CASE OF RUSISHVILI v. GEORGIA
CASE OF RUSISHVILI v. GEORGIA
JUDGMENT
STRASBOURG
30 June 2022
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
RUSISHVILI v. GEORGIA JUDGMENT
INTRODUCTION
1. The present application concerns the alleged unfairness of the criminal
proceedings conducted against the applicant. In particular, the applicant
complained under Article 6 § 1 of the Convention that his conviction had been
based on a jury verdict that had not contained any reasons and that his appeal
on points of law had been refused by the appeal court in an unsubstantiated
manner. The application also concerns under Article 6 §§ 1 and 3 (c) and (d)
of the Convention the alleged violation of the applicant’s right to legal
assistance of his own choosing and the alleged unfairness of the procedure
concerning the admissibility of evidence.
THE FACTS
2. The applicant was born in 1992 and is detained in Tbilisi. He was
represented by Mr G. Nikolaishvili, a lawyer practising in Tbilisi.
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.
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5. On 17 October 2011 at around 3 p.m. Z.T. was shot dead in the city
centre of Tbilisi. According to the video recordings extracted from
surveillance cameras on several shops in the immediate vicinity of the crime
scene, at least three individuals were involved in the shooting. On the same
date, the first suspect was identified (see paragraph 11 below) and a search in
his apartment was conducted.
6. The following day, the police went to the applicant’s apartment, where,
following a search, three bullets were found. At around 8 p.m. the applicant
was taken to a police station, where he was questioned as a witness.
According to the record of his questioning by the police, the questioning
began at 9.20 p.m. and ended at 1.10 a.m. Having been informed of his
procedural rights, the applicant added a note to the record to the effect that he
did not require the assistance of a lawyer. The applicant confessed to the
murder and named his two alleged accomplices.
7. The applicant was formally arrested on 19 October 2011 at 1.35 a.m. in
respect of the charges of murder and unlawful purchase and possession of
firearms – offences under Articles 108 and Article 236 §§ 1 and 2 of the
Criminal Code of Georgia. According to the record of his arrest and personal
search, duly signed by him, the applicant noted that he did not require the
assistance of a lawyer at that stage of the proceedings.
8. In the meantime, according to the applicant, his family contacted a
lawyer, T.M., and asked him to represent his interests. At about 9 p.m. on
18 October 2011 T.M. went to the relevant police station but was not allowed
to see the applicant. He talked several times over the telephone with the
investigator in charge of the case, but the latter maintained that the applicant
had not requested the assistance of a lawyer.
9. Early in the morning on 19 October 2011 the applicant was taken to the
crime scene, where an investigative re-enactment, a reconstruction of the
events was conducted, and a video recording was made of him confessing to
the crime in question. According to the record of the reconstruction, it was
conducted with the consent of the applicant. The latter provided a detailed
account of the events that had taken place on 17 October 2011, naming his
accomplices and explaining the different roles that each of them had played.
By that time the applicant had been provided with a lawyer, Kh.V., who had
been invited by an investigator. The record of the reconstruction was duly
signed by the applicant and the above lawyer.
10. On 20 October 2011 the applicant was formally charged with
aggravated murder and the unlawful purchase and possession of firearms.
While being questioned as an accused – this time in the presence of a lawyer
of his own choosing, T.M. – the applicant protested his innocence and cited
his right to remain silent. On 21 October 2011 the Tbilisi City Court
remanded him in custody.
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11. On 25 October 2011 the applicant’s two accomplices, I.G. and I.A.,
were formally charged with various offences in respect of the murder of Z.T.
It was established during the investigation that the murder of Z.T. had been
set up by I.G. in retaliation for the death of his son. Both had fled Georgia.
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17. The applicant’s lawyers objected. They maintained that the list of
defence witnesses had been included in the defence file, which had been
exchanged with the prosecution. In this regard, they requested that the
investigator and the prosecutor in charge be questioned. Their request was
dismissed.
18. At the pre-trial conference the applicant was advised, in accordance
with Articles 219 and 226 of the CCP, that in view of the nature of the charges
brought against him, he had a right to a jury trial (see further paragraph 30
below). The judge informed him in detail of the relevant procedure, including
the fact that under Article 266 § 2 of the CCP, a person found guilty of a
crime by a jury had the right to a one-time appeal on points of law against
that guilty verdict. The applicant consented to having his case heard by a jury;
so too did the prosecutor.
19. The jury trial started on 4 June 2012 and continued until 14 June
2012. The trial opened with the presiding judge reading out the charges
against the applicant and the legal basis thereof. Then he addressed the jury,
providing them with a short description of the relevant factual circumstances
(as narrated by the prosecution), followed by instructions concerning, inter
alia, the elements of the offences in question and the rules regarding
assessment of evidence. The jurors were then individually given a copy of the
five-page written instructions. During the trial the defence requested, on the
basis of Article 239 of the CCP, the examination of I.G. via video link. They
stated that he was in detention in Kyiv, Ukraine, and that he was ready to
testify that the applicant had not been involved in the murder of Z.T. On
5 June 2012 the presiding judge dismissed the application, concluding that
the defence had failed to justify the delay in lodging it. According to the
presiding judge, the defence had known about the detention of I.G. long
before the opening of the trial and could have therefore requested that he be
examined even at the pre-trial stage of the proceedings.
20. Another request lodged by the defence that was refused by the
presiding judge concerned the conclusion of one of the experts regarding the
video recordings made at the crime scene. Specifically, the relevant expert
had requested the court under Article 55 of the CCP to admit his report as an
amicus curiae. The presiding judge, however, concluded that the purpose of
this report had not been the provision of objective information, but rather to
provide support to the defence’s arguments, he therefore rejected it. The
presiding judge also decided, on the basis of Article 247 of the CCP, not to
disclose to the jury the record of the investigative re-enactment. He noted that
in the absence of the defendant’s consent, he could not disclose a piece of
evidence containing his self-incriminatory statement. As to the reiterated
allegations by the applicant’s lawyers concerning the breach of his right of
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access to a lawyer of his own choosing, the presiding judge did not examine
them. A related argument advanced by the defence – that the prosecution
evidence had to be declared inadmissible (on the basis of Article 72 of the
CCP) as unlawfully obtained evidence – was equally left unanswered by the
presiding judge.
21. During the trial the jury heard nineteen prosecution witnesses, among
them three eyewitnesses to the incident, viewed surveillance camera footage
from private establishments located in the area of the crime scene, and media
reports concerning the applicant’s arrest and the investigative re-enactment.
The jurors were also presented with multiple expert and forensic reports and
dozens of procedural documents concerning various investigative measures.
22. After the final submissions of the prosecution and the defence had
been heard, the jury was called to answer the following “yes or no” questions
put to it by the presiding judge:
Did the applicant commit the crime in question or not?
- the unlawful purchase and possession of ammunition (namely, “GECO”
bullets that were seized during the search of the defendant’s apartment on
18 October 2011, a crime under Article 236 § 1 of the Criminal Code of
Georgia);
- the unlawful purchase and possession of a firearm and ammunition
(namely, the purchasing and possessing a firearm, together with matching
cartridges, on the day of the murder, 17 October 2011, a crime under
Article 236 § 1 of the Criminal Code of Georgia);
- the unlawful carrying of a firearm and ammunition (namely, the carrying
of the firearm, together with matching cartridges, on the day of the murder,
17 October 2011a crime under Article 236 § 2 of the Criminal Code of
Georgia), and;
- Did the defendant commit or not commit intentional murder under the
following aggravating circumstances?
(1) In a manner deliberately posing a threat to the life or health of others
(a crime under Article 109 § 1 (g) of the Criminal Code of Georgia);
(2) In a group (a crime under Article 109 § 2 (e) of the Criminal Code of
Georgia).
23. By a verdict of 14 June 2012, the jurors, by a majority of nine to three,
found the applicant guilty of aggravated murder (an offence under Article 109
§§ 1 (g) and 2 (e) of the Criminal Code of Georgia) and of the unlawful
carrying of a firearm (an offence under Article 236 § 2 of the Criminal Code
of Georgia). The applicant was found not guilty on two charges: (1) the
unlawful purchase and possession of firearms in respect of the three bullets
found in his apartment and (2) the unlawful purchase and possession of
firearms in respect of the gun found at the crime scene.
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more neutral role of the judge, centred on supervision and ensuring the
procedural fairness of the judicial proceedings. With the adoption of the CCP,
trial by jury was introduced in Georgia for a certain category of crimes under
a model in which the jury alone retains the exclusive function of determining
the defendant’s guilt or innocence. Twelve jurors sit in a criminal trial and
one judge presides over the court. Once the questions have been put to and
handed to the members of the jury, they retire to deliberate in private, in the
absence of a judge. The law does not ask the jurors to account for how they
reached their personal conviction – it simply asks them to answer the
questions regarding guilt or innocence according to their inward conviction
with either “yes” or “no”. If the jury cannot reach a unanimous verdict within
three hours of the deliberations, then a verdict arrived at by majority vote may
be returned. A judgment delivered by a jury may be appealed against only on
points of law (see Kikabidze v. Georgia, no. 57642/12, § 21, 16 November
2021).
28. The provisions in the CCP at the material time describing the
procedure for the admission of evidence read as follows:
Article 14. Direct and oral examination of evidence
“1. Evidence shall not be presented to a court (jury) unless parties have been given
an equal opportunity to examine evidence directly and orally, except for the cases
provided for in this Code.
2. A party has a right to request the examination of a witness and to present its own
evidence at trial.”
Article 39. A defendant’s right to gather evidence
“1. A defendant has the right to gather evidence, either personally or through his or
her defence counsel, at his or her own expense. The evidence gathered by a defendant
has the same legal effect as that gathered by the prosecution.
2. If the gathering of evidence requires an investigative or other procedural action
that cannot be performed by a defendant or his or her defence counsel, he or she shall
be authorised to lodge an application for a relevant ruling with a judge with relevant
territorial jurisdiction. The judge shall make every effort to ensure that the prosecution
does not learn of the evidence being obtained.”
Article 55. Friend of the court (Amicus curiae)
“1. An interested party who is not a party to a criminal case under examination may
submit to the court, by – at the latest, five days before the start of the examination on
the merits of the case [in question] – his or her written opinion concerning the case.
2. The purpose of submitting a written opinion should not be to support of any of the
parties to the proceedings, but rather should aim at assisting the court in its proper
assessment of the issue at stake. If the court considers that the written opinion was not
prepared in line with the requirements set out the present Article, it shall not examine
it.”
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B. Trial by jury
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g) the rule stipulating that a separate verdict must be arrived at in respect of each
charge;
h) that first the jury shall vote on a verdict of not guilty on all charges. If such a
verdict is not achieved, then the jury shall vote on a guilty verdict on each count in an
order corresponding to the gravity of the charges;
i) that they shall sign only one verdict form for each of the charges – either a not
guilty or a guilty verdict form.
5. The presiding judge shall at the end of the instructions remind the jurors that they
are on oath.
6. After listening to the instructions of the presiding judge, the jury may address the
latter with additional questions in writing. Additional instructions shall be given in
accordance with the procedure provided in the first paragraph of the current article.
7. The presiding judge is obliged, at the request of a party, to explain to the jury that
the defendant may have committed a less serious offence, the constituent elements of
which form the basis of the offence the defendant is charged with. In such a case, the
jury shall be additionally provided with a form with which to declare a non-guilty
verdict as provided for in paragraph 4 (i) of the current Article.”
Article 235. The rights of the jury
“... 5. The judge shall instruct the jury on their right to make notes during the trial.
Before their retirement to the deliberation room, jurors shall be given the transcript of
the hearing, except for any parts of it that concern inadmissible evidence.”
261. The verdict of the jury
“1. The jury shall examine and make a decision on the facts of the case. The jury’s
decisions concerning the facts shall be taken on the basis of the decisions and
instructions given by the presiding judge in respect of the legal issues.
2. The jury shall decide on the issue of innocence or guilt with respect to each charge
...”
266. Appeal against a decision taken by a jury trial
“1. A not guilty verdict in a jury trial is final, and not subject to appeal.
2. A party may appeal once on points of law to the court of appeal against a verdict
of guilty if:
a) the presiding judge made an unlawful decision regarding the admissibility of
evidence;
b) the presiding judge made an unlawful decision when examining an application
lodged by a party and that decision substantially violated the principle of adversarial
procedure;
c) the presiding judge made a substantial mistake when instructing the jury before
its retirement to the deliberation room;
d) the presiding judge failed to base his or her decision either in part or in full on
the verdict reached by the jury;
e) the presiding judge based his or her decision on a verdict that was delivered in
violation of the requirements provided in the current Code.
f) the sentence is unlawful or/and manifestly unsubstantiated;
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g) the presiding judge did not follow the recommendation of the jury concerning
any possible decrease or increase in the sentence.
3. If an appeal on points of law lodged on the basis of paragraph 2 (a-e) is allowed,
the case shall be transferred to a new panel of jurors for a new trial ...”
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THE LAW
I. SCOPE OF THE CASE
34. The applicant complained that his conviction by the Tbilisi City Court
had been based on a jury verdict that had not contained any reasons and that
his appeal on points of law had been refused by the appeal court in an
unsubstantiated manner. He also alleged that he had been denied access to a
lawyer of his own choice during the initial hours of his detention, that the
State-appointed lawyer had been unlawfully designated, and that his trial had
been conducted in violation of the principles of adversarial procedure and
equality of arms on account of the way that the evidence had been taken. The
applicant relied on Article 6 §§ 1 and 3 (c) and (d) and Article 13 of the
Convention. The Court considers that these complaints fall to be examined
solely under Article 6, which, in so far as relevant, reads as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ... by [a] ... tribunal ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
(c) to defend himself in person or through legal assistance of his own choosing or, if
he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
...”
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A. Admissibility
35. The Government did not raise any objection as to the admissibility of
the complaints. The Court notes that the application 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
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subsequent appointment of Kh.V., the Government noted that she had been
appointed on the basis of a power of attorney dated 19 October 2011.
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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, in accordance with Article 83 § 6 of the CCP (see
Kikabidze, cited above, §§ 58-59). The applicant had not, however, availed
himself of that opportunity (contrast ibid.). Such an omission on the part of
the defence team is all the more significant as, on account of the nature of the
different stages of the proceedings, it was not entirely clear as to whether,
procedurally speaking, the judge presiding over the jury trial could overrule
the decision of the pre-trial conference judge concerning the admissibility of
evidence.
51. As to the refusal to examine I.G. via video link, the Court considers
that albeit rigid, the presiding judge’s interpretation of the relevant procedural
rule cannot be said to have been arbitrary. Article 239 of the CCP explicitly
required the relevant party to clarify its reasons for not presenting such
evidence earlier, but the defence failed to do so (see paragraphs 19 and 28).
52. In view of all the above, the Court finds no violation of Article 6 §§ 1
and 3 (d) of the Convention.
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56. The Government further referred to the instructions that the jury had
been given before retiring to deliberate. They noted again that the defence
had made no comments regarding the substance of those instructions. As
regards other counterbalancing factors, they furthermore referred to the fact
that the applicant had been represented by four lawyers of his own choosing;
that nineteen witnesses had been heard during the trial and that the defence
had had the unimpeded possibility to cross-examine all of them; that the
statements of those witnesses, alongside other evidence in the case, had been
more than sufficient to demonstrate the applicant’s guilt; that the jury trial
had been held only with respect to the applicant and that the trial had lasted
for less than two weeks; and that the jury had had to answer only one question
with respect to each of the charges – guilty or not guilty.
57. In support of their arguments, the Government submitted a copy of
the transcript of the jury trial proceedings; this consisted of 257 pages and
described in detail the entirety of the proceedings, including the instructions
given to the jurors and the statements given by the witnesses.
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satisfied, the accused, and indeed the public, must be able to understand the
verdict that has been given (ibid.). The above leads the Court to the next issue.
64. The Court reiterates that there is no right under Article 6 § 1 of the
Convention to a jury trial (see Twomey, Cameron and Guthrie v. the United
Kingdom (dec.), nos. 67318/09 and 22226/12, § 30, 28 May 2013).
Furthermore, the Convention does not require jurors to give reasons for their
decision and Article 6 does not preclude a defendant from being tried by a
jury, even where reasons are not given for the verdict (see Saric v. Denmark
(dec.), no. 31913/96, 2 February 1999, and Taxquet, cited above, § 89). The
Georgian jury system offers defendants, under circumstances provided by
law, a choice whether to be tried by a jury or by a professional judge. In the
Court’s view, the possibility of such a choice constitutes a procedural
safeguard that underpins the whole system of jury trials in Georgia.
65. Now, turning to the concrete features of the Georgian jury system, the
Court notes that the charges against the applicant were read out in full by the
presiding judge at the opening session of the jury trial; subsequently all the
evidence, including witness evidence, was the subject of adversarial
argument, with each item of evidence being examined in the presence and
with the participation of the defence (see paragraphs 19-21 above). The jury
retired to deliberate immediately after the oral proceedings had ended and
without having access to the case file. Thus, their decision could have only
been based on the evidence examined by the parties during the trial.
66. The Court further notes that the Government, citing the case of
Taxquet, relied on the indictment, which, according to them, had been
detailed, and which – in combination with the questions put to the jury – had
facilitated the applicant’s understanding of his verdict. The Court notes that
there is no exact equivalent of an indictment (“acte d’accusation”) in
Georgian procedural law, as there is no procedural document summing up in
detail the investigation which is then read out to the jury (contrast Lhermitte,
cited above, § 77; see also Taxquet, cited above, § 95, and Magy v. Belgium,
no. 43137/09, § 38, 24 February 2015). In any event, as noted by the Court in
the case of Lhermitte, the provisions of Article 6 require an understanding not
of the reasons that prompted the investigative bodies to send the case for trial,
but rather of the reasons that persuaded the members of the jury, after the trial
at which they had been present, to reach their decision on the issue of guilt
(see Lhermitte, cited above, § 77; see also Agnelet v. France, no. 61198/08,
§§ 65-66, 10 January 2013).
67. As to the instructions, the jurors were given instructions twice – at the
opening session of the trial and before retiring to the deliberation room. The
instructions were provided not only orally but in writing. On both occasions
the defence was invited, in line with Article 231 § 2 of the CCP, to request
amendments or additions to the instructions, but they did not avail themselves
of this opportunity (see paragraph 54 above). It should be stressed that under
the same provision, “if the parties fail to avail themselves of this right before
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the jury’s retirement to the deliberation room, they will be prevented from
complaining about the fairness and lawfulness of the instructions in any
appeal on points of law” (see paragraph 30 above). Thus, while this
procedural safeguard was available to the applicant, he knowingly did not
avail himself of it. On the same note, the Court considers that giving
instructions at the beginning of the trial allowed the jurors to have a
framework in which to understand the trial; whilst instructions at the end of
the trial ensured that the jurors stayed focused on their task and the evidence
heard in court.
68. As regards the questions, the Court notes that the applicant was the
only defendant in the jury trial at stake and was facing four specific charges
(see Legillon v. France, no. 53406/10, § 60, 10 January 2013; contrast
Taxquet, cited above, in which case the applicant appeared before the Assize
Court with seven co-defendants; also contrast with Ramda v. France,
no. 78477/11, 19 December 2017, which concerned the conviction of the
applicant for three separate terrorist attacks). The applicant did not advance
any “self-defence” argument; rather, his main line of reasoning was simply
factual – that he had not committed the crime. While the questions were
generally formulated, there were specific questions concerning the
aggravating circumstances (contrast Goktepe v. Belgique (dec.),
no. 50372/99, § 28, 2 June 2005).
69. What remains to be seen is whether there were avenues of appeal open
to the accused (see Taxquet, cited above, §§ 92 and 98). The Court reiterates
in this regard that it attaches particular importance to the existence of avenues
of appeal against convictions based on jury verdicts without reasons (ibid.,
§§ 92 and 99; see also Lhermitte, cited above, § 68).
70. The Court notes that the jury verdict in the present case was not
subject to a standard appeal (contrast Agnelet, cited above, § 63). As the
applicant was found guilty in a jury trial, he lodged an appeal on points of
law under Article 266 of the CCP (see as cited in paragraph 30 above). This
type of appeal, applicable in respect of the verdict given in a jury trial, as
already considered by the Court in Kikabidze, is distinct from the standard
cassation procedure and can lead to a full retrial by a new jury in case it is
established that any of the grounds listed in paragraph 2 (a) – (e) of Article
266 of the CCP are found to exist (see ibid., § 63). Under Article 266 of the
CCP the appeal court enjoys wide powers of review and can quash any
conviction if, inter alia, it finds that a presiding judge made an unlawful
decision about the admissibility of evidence or a substantial error when
instructing the jury, or if the presiding judge acted in breach of the principle
of adversarial proceedings (see and compare Shala, § 36). In its judgment in
Taxquet v. Belgium, the Grand Chamber observed that the absence of reasons
from a jury could be counterbalanced by, among others, the availability of
appeal. Having regard to the nature and the scope of the review, as provided
under Article 266 of the CCP, the Court is satisfied that the appeal rights
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available under Georgian law are capable of providing a remedy against any
improper verdict returned by a jury. As to the issue of the allegedly
unreasoned decision of the Tbilisi Court of Appeal in the present case, it
constitutes a separate complaint of the applicant and will accordingly be
examined separately by the Court (see paragraphs 76-80 below).
71. To conclude, the Court finds that, given the particular circumstances
of the present case, the fact that the applicant was allowed to choose between
trial by a jury or by a professional judge, coupled with the concrete procedural
safeguards that he was afforded throughout the proceedings, was sufficient to
counterbalance the lack of reasons in the jury verdict. It follows that there has
been no violation of Article 6 § 1 of the Convention on account of the lack of
reasons in the jury verdict.
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those in the course of the jury trial, and given what was at stake for the
applicant – the arguments raised by the applicant 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 leads
the Court to the conclusion that there has been a violation of Article 6 § 1 of
the Convention on account of the unreasoned decision to declare inadmissible
the applicant’s appeal on points of law.
A. Damage
82. The applicant claimed a lump sum of 100,000 euros (EUR) in respect
of pecuniary and non-pecuniary damage. Without explaining or providing
any reasons, he submitted dozens of bank transfer forms showing that various
sums had been transferred to the applicant’s account in prison by various
persons between 2011 and 2016.
83. The Government submitted that the applicant’s pecuniary claims were
wholly unsubstantiated, as the applicant had failed to show for what purpose
the various sums had been transferred to him in prison. As regards non-
pecuniary damage, they contended that the applicant’s claim was highly
excessive.
84. The Court does not discern any causal link between the violation
found and the pecuniary damage alleged; it therefore rejects this claim. As to
the non-pecuniary damage, the Court considers that a finding of a violation
can be regarded as sufficient just satisfaction in the present case, and thus
rejects the applicant’s claim under this head.
C. Default interest
87. 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.
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2. Holds, by six votes to one, that there has been no violation of Article 6
§§ 1 and 3 (c) of the Convention on account of the alleged restrictions on
the right of access to a lawyer of his own choosing;
SOL
VS
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highly contextual, relating to the need to ensure that the first jury trials
following the 2010 reform were functioning correctly and, to the extent
necessary, providing guidelines and principles for the accused, prosecution,
presiding trial judges and juries. In addition, in the instant case, for the
reasons outlined above, the failure of the domestic courts to engage with the
complaint relating to restricted access to legal assistance has been assessed
under Article 6 §1 instead of under Article 6 §§ 1 and 3 (c).
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3. There are two legal constellations to consider in the present case (see
paragraph 34 of the judgment). In the first constellation the applicant was not
assisted at all by a lawyer during the first round of questioning, while in the
second (the re-enactment and identity parade) he was represented by a lawyer
who was appointed against his will and unlawfully. Where a defendant is
denied access to a lawyer of his or her own choice, the State has to provide
relevant and sufficient reasons that do not irretrievably prejudice the overall
fairness of the proceedings (see Elif Nazan Şeker v. Turkey, no. 41954/10,
§ 43, 8 March 2022), whereas a restriction of the right to a lawyer in general
terms has to be based on compelling reasons that do not irretrievably affect
the overall fairness of the proceedings (see Ibrahim and Others, cited above,
§ 257).
A. Overall fairness
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of the finding of a violation (ibid., § 265; see also Bayram Koç v. Turkey,
no. 38907/09, §§ 23 et seq., 5 September 2017).
5. Furthermore – and an omission in this regard weighs even more heavily
in favour of a violation of Article 6 § 3 of the Convention – the domestic
courts and authorities have to assess allegations that point towards an unfair
trial, because the Court can otherwise not assess whether the applicant’s right
to a fair trial was secured (see Bjarki H. Diego v. Iceland, no. 30965/17, § 59,
15 March 2022). This leads to a situation of doubt: it could be that the overall
fairness was ensured (as the judgment assumes), but it could also be that the
issue was overlooked by the national court. This negligence is detrimental to
a fair trial, and not finding a violation in such a case, in my opinion, is the
start of a slippery slope towards improper investigations and pre-trial
proceedings. It is therefore of special importance for the national courts to
assess the overall fairness of a trial when, as in the present case, there is reason
to have doubts about it and the unfairness of the trial has been reasonably
alleged by the accused (see also, in this regard, Doyle v. Ireland,
no. 51979/17, § 101, 23 May 2019, where the national court had assessed
shortcomings in the pre-trial proceedings but not the overall fairness). Thus,
if failure to properly assess overall fairness suffices for a violation, this must
be even more true for a situation where it is not assessed at all; see also Akdağ
v. Turkey (no. 75460/10, § 68, 17 September 2019).
6. Even leaving these considerations aside, on reading paragraphs 40-46
and 78-80 of the judgment the finding of a violation is more appropriate than
the finding of no violation, as can be seen by taking a closer look at the main
arguments made in the judgment.
B. Waiver
7. Firstly, any doubts about the legal situation are resolved to the
detriment of the applicant. In view of the special significance of the rights in
Article 6 of the Convention and the particular vulnerability of the applicant,
who at the time of commission of the crime was only 19 years old and had
thus just recently reached the age of majority, and who faced life
imprisonment, the right to a lawyer of his own choosing is of special
importance. As to the remarks on the “waiver” by the applicant with regard
to his right to a lawyer (see paragraph 41 of the judgment), it is questionable
whether the applicant waived his right to be assisted by a lawyer (and
specifically the right to a lawyer of his own choice). The right to a lawyer can
be waived with a “knowing and intelligent waiver” (see Ibrahim and Others,
cited above, § 272, and Dvorski v. Croatia [GC], no. 25703/11, § 101,
ECHR 2015). However, the domestic courts must examine and establish in a
convincing manner the circumstances related to the waiver of access to a
lawyer (see Türk v. Turkey, no. 22744/07, §§ 53 et seq., 5 September 2017).
In the present case, the domestic courts did not assess the validity of the
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waiver, a fact which the majority correctly criticises (see paragraph 41 of the
judgment). The subsequent finding that, even if the waiver was indeed
invalid, the self-incriminating statements were not used in court, cannot cure
the fact that the waiver was invalid (because it had not been made with
informed consent; see paragraph 41 of the judgment).
8. Even if it is assumed that the applicant waived his right to a lawyer for
the first round of questioning, no reasons were given by the Government as
to why Kh.V. had been appointed instead of the lawyer whom the
applicant/his family had chosen. “[T]he mere nomination [of a defence
lawyer] does not ensure effective assistance ...” (see Artico v Italy, 13 May
1980, § 33, Series A no. 37, and Elif Nazan Şeker, cited above, § 55).
9. The appointment of Kh.V., besides going against the will of the
applicant, led to disciplinary proceedings before the Georgian Bar
Association, where it was found that Kh.V. had not properly defended the
applicant (see paragraph 12 of the judgment). Also, from a more factual
perspective, as soon as the applicant was represented by a lawyer of his choice
he made use of his right to remain silent (see paragraph 10 of the judgment);
this demonstrates further that he had not been adequately defended by Kh.V.
(on this point, see also the concurring opinion of Judge O’Leary, § 2). These
factors lend special weight to the restriction on the applicant’s right to a
lawyer of his own choosing in the present case. In addition, the remarks in
the judgment concerning the waiver, in particular where it is held that “there
is prima facie evidence in the case file supporting the applicant’s allegation
...” (see paragraph 41 of the judgment), speak rather in favour of a violation.
C. Excluded evidence
10. Secondly, the reference to the exclusion of the evidence, which is also
used as justification for the appointment of Kh.V. (see paragraphs 42 et seq.
of the judgment), does not, in my opinion, justify the finding of no violation.
The fact that the self-incriminating statement and the evidence gathered in
the re-enactment were not presented to the jury (see paragraph 44 of the
judgment) does not exclude the violation of Article 6 § 3 (c) of the
Convention as assumed in the judgment. This approach seems to be based on
the finding of the Court in Ibrahim and Others, where the Court held that
“where an exclusionary rule applied, it is particularly unlikely that the
proceedings as a whole would be considered unfair” (see Ibrahim and Others,
cited above, § 274).
11. However, as also becomes clear from that judgment, the question
whether the statement/evidence has been used for the applicant’s conviction
is only one aspect that has to be taken into consideration. The balancing
exercise has to be carried out having regard to several aspects, not only
whether the self-incriminating statement was used (see Ibrahim and Others,
cited above, § 274).
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RUSISHVILI v. GEORGIA JUDGMENT – SEPARATE OPINIONS
12. As the Court held in Beuze v. Belgium ([GC], no. 71409/10, § 135 (b),
9 November 2018): “[t]he non-participation of the lawyer in investigative
measures such as identity parades ... or reconstructions” may undermine the
fairness of the proceedings. For the restriction of access to a lawyer,
compelling reasons are necessary. These include, inter alia, instances where
“the existence of an urgent need to avert serious adverse consequences for
life, liberty or physical integrity in a given case [has been convincingly
demonstrated] ... In such circumstances, there is a pressing duty on the
authorities to protect the rights of potential or actual victims under Articles 2,
3 and 5 § 1 of the Convention in particular” (see Ibrahim and Others, cited
above, § 259). As described above, the “waiver” by the applicant can be
considered invalid, and no pressing need to question the applicant without
legal assistance can be found.
13. In any event, even if the waiver were accepted as valid, the
Government likewise adduced no reasons why, for the purposes of the
reconstruction, the lawyer of the applicant’s choice was denied access during
the re-enactment and identity parade.
14. There was therefore at least one, if not two phases of the proceedings
(possibly the first round of questioning and certainly the re-enactment) in
which the applicant did not have access to a lawyer (of his choice). Both
phases were important for the progress of the proceedings. The questioning
led to the re-enactment; the re-enactment was followed by the formal charge
of aggravated murder, and so on. These vital procedural steps were taken
without the applicant being properly defended/represented by the lawyer of
his choice.
15. Therefore, the argument that the evidence obtained in the absence of
a lawyer of the applicant’s own choosing was not presented to the jury is not
convincing, as the evidence gathered in those stages of the proceedings was
the basis for the proceedings in general (without the questioning, no
re-enactment and identity parade would have taken place and the formal
charging of the applicant was based on all the procedural steps and occurred
after them, on 20 October 2011), and thus had an important effect on the
trial’s overall fairness (see also in this regard Can v. Austria, Commission
report, § 50, no. 9300/81, 30 September 1985).
16. The formal charging of the applicant would otherwise have occurred
earlier (the defects were not “cured” by the subsequent proceedings – see
Salduz, cited above, § 58, and critically in this regard also, the concurring
opinion of Judge O’Leary, § 5, referring to Mehmet Zeki Çelebi v. Turkey,
no. 27582/07, § 51, 28 January 2020).
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RUSISHVILI v. GEORGIA JUDGMENT – SEPARATE OPINIONS
on the overall fairness of the proceedings, but merely excluded the statements
and the findings from the re-enactment and identity parade from the evidence
that could be brought before the jury. This is true of all the domestic courts
and authorities (see paragraphs 14, 24, 26 and 43 of the judgment). In earlier
case-law, the Court has found a violation of Article 6 § 3 (c) of the
Convention where the domestic courts did not reason “... adequately that there
were sufficient grounds ... for overriding the applicant’s original wishes as to
her choice of legal representation and for appointing [a] new defence lawyer”
(see Elif Nazan Şeker, cited above, § 54; see also Lobzhanidze and Peradze
v. Georgia, nos. 21447/11 and 35839/11, §§ 65 et seq., 27 February 2020).
17. There is a certain contradiction in the finding of a violation of Article
6 § 1 with regard to the lack of reasons in the inadmissibility decision of the
appeal court, where the judgment explicitly refers to the alleged lack of access
to a lawyer (see paragraph 78 of the judgment), and the earlier finding that
this did not violate the applicant’s rights under Article 6 §§ 1 and 3 (c) (see
paragraph 46 of the judgment).
III. CONCLUSION
18. It is for the above reasons that I cannot agree with the view of the
majority in finding no violation of Article 6 §§ 1 and 3 (c) of the Convention
with regard to the right to a lawyer. In my opinion, the failure of the national
courts to consider the applicant’s allegations leads to a violation not only of
the right to a reasoned judgment, but necessarily also to a violation of the
right to a lawyer of one’s own choosing.
39