Human Rights Education and Monitoring Center (EMC) publishes a legal assessment report on the criminal case against the archpriest Giorgi Mamaladze and points to serious procedural and substantive violations of law in the case, which, as a whole, constitutes violation of the right to fair trial and reveals the problem of manifestly weak substantiation of the charges in the court judgement.

1. The scope of the assessment and limitations

At the outset, it needs to be pointed out that EMC did not have access to the case files or the possibility to monitor the proceedings because the defendant and his defense counsels were bound by the non-disclosure obligation. Accordingly, the organization was deprived of the possibility to produce a detailed evaluation of the charges and their substantiation, and the present assessment is mostly based on a legal analysis of the court decisions.

2. Substantial violations revealed during a search operation and the problem of the burden of proof in the case

The analysis of the court decisions reveals that Giorgi Mamaladze was convicted for crimes under Articles 18, 108 and paragraph 2 of article 236 of the Criminal Code, which prescribes sentence for the preparation of murder, and illegal purchase/possession of firearms and ammunition. The archpriest was sentenced to 9 years in prison.

The analysis of decisions rendered by both court instances shows that the collection of evidence by the Prosecutor’s office was conducted with major violations. Namely, Giorgi Mamaladze was arrested at Tbilisi international airport, after he had gone through passport control and luggage check. The luggage was seized by investigative authorities without the convict’s presence and video recording. The luggage was handed to him only 9 hours after the detention. When the luggage was presented to him, the investigative authorities carried out inspection again without any recording. According to the judgments, precisely at this time, the subject of the crime (cyanide) was discovered. The defendant stated that this subject did not belong to him and presumably was planted on him.

According to the court decisions, an employee of the airport security service was attending the luggage seizure and inspection process, who was considered as a neutral witness by the court and rejected the position of G. Mamaladze’s defense counsel that the luggage was seized without the presence of a witness. It needs to be noted that such reasoning is impermissible, as G. Mamaladze throughout 9 hours after detention was deprived the possibility to observe activities of the law enforcement authorities in connection with his luggage and the said witness could not verify the factual circumstances related to the luggage transfers by the authorities. Certainly, the fact that the luggage was outside the control of the detained person in this period, raises the doubts about the legality of the seizure procedure.

The doubts are reinforced by the fact that the law-enforcement authorities did not detain G. Mamaladze before he passed the passport control and detention took place only after the luggage had disappeared from his sight. Another circumstance is also important in the court decisions - the airport scanner did not identify the subject of the crime, which was technically feasible according to statements of the Prosecution witnesses. Furthermore, as defense counsel defines, the defense witnesses could verify that the scanner was able to identify suspicious items even of small size. However, they were not given this opportunity in the court, as the judge did not facilitate a thorough interrogation of a witness.

The doubts related to the evidence obtained by the Prosecutor’s office is strengthened by the fact that according to the court decisions, the Prosecutor’s office did not seize the video recordings from the surveillance cameras in the airport and despite the request of G. Mamaladze’s defense counsel, the court did not allow them to do this, either. Furthermore, the Prosecutor’s office did not examine fingerprints on the seized subject - cyanide and did not carry out the genetic expert examination, to ascertain the connection of G. Mamaladze with the subject of the crime. Regarding these circumstances, the court decisions refer that the defense counsels could themselves carry out expert examinations and the Prosecutor’s office did not have the obligation to do so. It is also worth to mention, that such reasoning modifies the burden of proof and shifts it on the defense’s, contrary to the law.

According to the court decisions, investigative bodies had placed G. Mamaladze under surveillance for several months before his detention (which includes interception of telephone conversations, correspondence, observation and video-recording of meetings). However, the authorities could not ascertain when and from whom Giorgi Mamaladze had purchased the subject of the crime. The mentioned circumstance is more important taking into account that the main witness in the case, who stated that Mamaladze asked him to purchase cyanide, did not confirm that the convict had purchased cyanide from him.

In terms of assessing the fairness of the whole process in light of the right to a fair trial, the avenues of obtaining evidence are examined, including the admissibility of evidence obtained through the violation of another article of the European Convention. While discussing the necessity of safeguards for the effective protection of Article 8 of the Convention, ECHR refers to the procedural guarantees, such as a search conducted in the presence of a neutral witness. In terms of assessing an interference into a right, it is also important to assess whether the undertaken measure conforms with requirements of domestic law. In the case Perry v. the UK, the court believed that although the domestic law permitted video-recording for identification of suspects, disregard of procedural guarantees by police was contrary to the requirement that the right can only be restricted in accordance with law. However, for such a violation to become relevant in terms of fair trial guarantees, it has to be assessed in the context of whether a conviction based on such violation would be unfair.

Cyanide was the key evidence in the archpriest Giorgi Mamaladze’s case, which was obtained through the search measure conducted with procedural violations constituting illegal interference into the right to privacy. As for the admissibility of evidence obtained in violation of Article 8, the issue has to be determined with regard to the quality and importance of the evidence in question and the applicant’s opportunity to exercise his defense rights.

During the assessment of the quality of evidence, such circumstances are taken into consideration, which may raise doubts regarding its reliability. The necessity to refute the authenticity doubts with additional evidence is particularly significant in the cases when such evidence has a decisive role. In turn, the need for additional evidence is weaker, when stronger and more reliable evidence already exists.⁶ The fair procedure for the evidence admission acquires particular significance precisely when doubts about the authenticity of evidence are present.⁷

In the case Layijov v. Azerbaijan, examining the authenticity of evidence obtained through search, the court paid attention to the fact that search was not carried out immediately after the detention of the defendant when there were no obstacles for its immediate conduct. Furthermore, the detainee was transferred not to the closest police station, but one that was quite far. Accordingly, the 30-minute interval between detention and search raised legitimate questions about planting the evidence, as the applicant in this period was under the effective control of the police. These doubts were reinforced by the failure of the authorities, regardless applicant’s requests, to present video footage depicting search in court. The search was conducted with similar procedural violations in the case Sakit Zahidov v. Azerbaijan, where the court additionally considered, that the official recording of the arrest was not drawn up immediately and that detention and search were not carried out in the presence of the applicant’s lawyer.

It is important, that despite the applicant’s questions regarding the authenticity of evidence, domestic courts without any substantiation, did not properly examine the issues and did not refer to them in the decision either. Accordingly, the European Court of Human Rights held that applicants were not given the opportunity to dispute the authenticity of evidence and its use on a domestic level. In view of that, the court held that circumstances in which evidence was obtained and the failure to examine its authenticity by domestic courts were sufficient ground for considering the proceedings, as a whole, unfair.

In the circumstances, when G. Mamaladze was claiming that the subject of the crime was planted, establishment of the facts related to purchase of cyanide and existence of neutral evidence, including, expert conclusions, were important for refuting doubts about the authenticity of evidence. Nevertheless, the court both instances failed to assess the authenticity of evidence, which constituted a breach of the constitutional principle that a defendant shall be given the benefit of doubt.

Please see the full report here ⇓

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