The ECHR judgment of July 25, 2019 in the case of Svanidze v. Georgia (complaint No. 37809/08).
In 2008, the applicant was assisted in preparing the complaint. Subsequently, the complaint was communicated to Georgia.
In the case, a complaint was successfully considered against the conviction of a reserve judge on the basis of a protocol of oral testimony without repeated hearing of witnesses. In the case, there was a violation of the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant, the head of the gynecological department of the hospital, was convicted of refusing, without justifiable reason, urgent medical assistance to a patient who was in a condition that threatened her life, which led to the death of the patient. After witnesses were heard during the trial, the case was assigned to a substitute judge. The latter rejected the applicant's lawyer's request to resume the proceedings from the very beginning, noting that the materials of the case were sufficient to continue its consideration. The verdict against the applicant was upheld by the court of appeal without rehearing the evidence.
QUESTIONS OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. The reserve judge did not take any part in the oral testimony of the witnesses during the trial. He did not hear any of the 17 witnesses, including two experts and co-defendants in the case, and convicted the applicant on the basis of the trial transcripts.
Throughout the trial, the applicant consistently disputed the specific factual circumstances as presented by the prosecution. In order to establish the circumstances of the case, which formed the basis of the decision to convict the applicant, the reserve judge referred to the minutes of the witness statements. Taking into account the complex factual basis of the case and the fact that the substitute judge examined it individually, the fact that he did not have the opportunity to conduct a direct assessment of the evidence and the conduct of the relevant persons deprived him of the opportunity to form his own opinion regarding their reliability and reduced his ability correctly understand the evidence and arguments so that the applicant’s right to a fair trial is respected.
The applicant specifically indicated this in her complaint to the court of appeal. However, without examining the merits of the complaint, the appellate court decided that since the judge was a substitute, he had no obligation to hear witnesses again. The Supreme Court of Georgia came to the same conclusion.
After the substitute judge entered the case, the defense requested a re-examination of the evidence, but the substitute dismissed the request. In addition, the applicant requested two more witnesses to be questioned, but this was also refused. The request was also dismissed by the court of appeal, which concluded that the trial court had already examined it. Under the circumstances, the applicant did everything that could reasonably and realistically be expected from her in this regard.
The availability of witness interrogation protocols could not compensate for the lack of immediacy in examining evidence. The higher court upheld the judgment of the trial court without directly examining any evidence, despite the fact that he had such a right. The trial judge who convicted the applicant acted in violation of the principle of immediacy and did not take appropriate measures to compensate for this omission.
In the case there was a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant 3,500 euros (EUR) in respect of non-pecuniary damage; the claim for pecuniary damage was rejected.