The ECHR judgment of October 10, 2019 in the case of Bataishvili v. Georgia (application No. 8284/07).
In 2007, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Poland.
In the case, the application was successfully examined that the authorities forged an audio recording in order to create the appearance of a crime, and then, before the applicant was formally charged, they made a record available to the public. The case contained a violation of the requirements of paragraph 2 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms; there was no violation of the requirements of paragraphs 3, 4 of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
On July 22, 2006, a preliminary investigation was opened in a criminal case in connection with the creation of an illegal armed group and its leadership. The next day, a warrant was received to listen to the telephone conversations of the leader of the local armed group and telephone conversations were recorded between him and the applicant, who was a prominent member of the opposition. The recording of one of the conversations between them was transmitted to a television channel and broadcast on July 25, 2006.
The applicant criticized these actions and stated that the record had been tampered with. Prominent politicians commented on the connection between the applicant and the leader of the illegal armed group, their participation in anti-government activities and called the applicant’s guilt undeniable. On 29 July 2006 the applicant was arrested and charged with failure to report preparations for a crime and complicity in high treason. The applicant was convicted, but then he was pardoned by the President of Georgia until the Supreme Court of Georgia examined his complaints about the verdict.
QUESTIONS OF LAW
Regarding compliance with Article 6 § 2 of the Convention. (a) Admissibility. The applicant alleged that the authorities had faked an audio recording in order to create the appearance of a crime, and then, before being formally charged, they made the record publicly available. Such allegedly unfair behavior, if established or implied during the merits of the case before the Court, together with the short time intervals between the broadcasting of the record, the interrogation of the applicant and the indictment of him, could entail, subject to the special circumstances of the applicant’s case, the application of Article 2 6 of the Convention from the time when, apparently, the forged record was made public by the authorities. Consequently, the question of the applicability of Article 6 § 2 of the Convention is closely related to the essence of the complaint and should be combined with it during the examination of the merits of the complaint.
(b) Merits. The applicant’s consistent position, which he repeatedly voiced to the Georgian authorities, was that the audio recording was falsified in order to remove the key points of the conversation. For comparison: the arguments of the Georgian authorities when considering the case at the domestic level and then in the European Court on several points were insolvent. The Government submitted to the European Court that there was only one version of the audio recording. However, based on official documents received from the Ministry of Internal Affairs of Georgia and the General Prosecutor's Office of Georgia, it could be concluded that there were two versions of the audio recording.
As regards the issue of whether the authorities or the private television channel had falsified the recording, the Court rejected as an unconvincing argument of the Georgian authorities put forward at the domestic level that the television channel changed the audio recording, excluding some parts from it, based on restrictions on available airtime. At the European Court, the Georgian authorities claimed that the television channel had the right to decide which parts of the recorded conversation were relevant to the report. This argument did not correspond to the position of the Georgian authorities put forward by them before the Court that there was only one official version of the audio recording, which was identical to that published on television. Thus, taking into account the available information, the contested audio recording was transmitted to the media by the Ministry of Internal Affairs of Georgia.
In view of the foregoing, the Court must draw conclusions from the materials available and the authorities' conduct and continue to examine the case on the basis that the applicant's arguments regarding the falsification of evidence in his criminal case and the time of distribution of the audio recording were well-founded.
As regards the issue of whether this conduct complied with Article 6 § 2 of the Convention, the Court notes that the audio recording provided to the television channel was broadcast on television four days before the applicant was officially detained and charged. The sequence of closely interrelated events, considered as a whole, indicated that the applicant’s situation was significantly negatively affected by the application of Article 6 § 2 of the Convention by the conduct of the investigating authorities, who unlawfully fabricated a suspicion of him, falsifying and disseminating the relevant evidence in order to of this material subsequently accuse the applicant of a crime.
Although the accusation that the applicant had not informed about the preparation for the commission of the crime was excluded during the trial by the trial court, the indictment sent to the court almost four months after the distribution of the audio record still contained the charge, despite that the prosecution should have been well aware of the falsification of the evidence underlying the prosecution. In such circumstances, the applicant's presentation of the guilty party lasted from the first broadcast of the audio recording in the media and for at least four months.
Immediately after the broadcast of the audio recording, the members of the Parliament of Georgia made several statements referring to this recording and expressing their opinion regarding the applicant’s role in certain events. While the applicant's complaints about public speaking were declared inadmissible by the Court, they were nevertheless part of the general context of the broadcasting of the audio recording, which created the impression that the applicant had committed the crime before his guilt was established court. Thus, the distribution of the audio recording could not be justified by the public interest, and the participation of the relevant authorities in the falsification and subsequent distribution of the audio recording in the media contributed to the fact that the applicant was considered guilty before his guilt was proved by the court.
Clause 2 of Article 6 of the Convention was declared admissible for consideration on the merits; in the case there was a violation of the requirements of paragraph 2 of Article 6 of the Convention (adopted unanimously).
The Court has not found a violation of Article 5 § 3 of the Convention, agreeing that the reasons relied on by the Georgian courts were relevant and sufficient to allow the applicant to be detained and that it could not be recognized that the investigating authorities and the courts did not showed particular care in examining the applicant's case. The Court also did not find a violation of Article 5 § 4 of the Convention, noting that the applicant was present at all the first instance hearings related to his pre-trial detention and was able to effectively appeal against the arguments against him.
In application of Article 41 of the Convention. The Court awarded the applicant EUR 3,600 in respect of non-pecuniary damage.