CEDH · CASELAW;CLIN;ENG — 1 février 2024

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Georgia (no. 2) - 22431/20 Judgment 1.2.2024 [Section V] Article 6 Criminal proceedings Article 6-1 Impartial tribunal Applicant’s points-of-law appeal heard by Supreme Court bench including judge who had been Prosecutor General when case examined by appeal court and points-of-law appeal prepared by his office: violation Facts – In December 2013 the applicant, a political figure who at the time was serving as mayor of Tbilisi, was charged with aggravated embezzlement. The investigation was conducted by the investigative unit of the Chief Prosecutor’s Office (subsequently renamed the General Prosecutor’s Office). In February 2018 that charge was reclassified at first instance and the applicant was convicted of exceeding official powers – a conviction upheld on appeal. He received a sentence of imprisonment (one year, three months and twenty-two days). In January 2019 two prosecutors from the investigative unit at the General Prosecutor’s Office lodged an appeal on points of law with the Supreme Court. The case was eventually assigned to a formation of three judges, including Judge Sh.T, and declared admissible. The applicant lodged an application requesting the recusal of Judge Sh.T. from the assigned formation on the ground that he had served as Prosecutor General when the applicant’s case had been examined by the appeal court and the appeal on points of law had been prepared by the General Prosecutor’s Office. In February 2020 the Criminal Chamber of the Supreme Court, sitting in a bench of two judges without the participation of Judge Sh.T., dismissed the request for recusal as unsubstantiated. On the same date, the same composition of the Criminal Chamber with the participation of Judge Sh.T., amended the qualification of the offence, convicted the applicant of aggravated embezzlement and increased his sentence to nine years’ imprisonment (subsequently reduced to three years, two months and eight days). Law – Article   6 §   1: It had not been shown or argued that Judge Sh.T. had held or expressed any personal convictions which could have cast doubt on his subjective impartiality. In respect of the objective test, the applicant had not submitted any evidence showing that Judge Sh.T. had in fact played a dual role in the criminal proceedings conducted against him. Furthermore, the mere fact that a judge had once been a member of the public prosecutor’s office was not a reason for fearing that he or she lacked impartiality. At the same time, Sh.T. had led the country’s prosecution service when the applicant’s case had been examined by the court of appeal and when the decision had been made by the investigative unit at the General Prosecutor’s Office to lodge an appeal on points of law. Sh.T. had thus been at the pinnacle of what appeared to have been a hierarchical structure, with all the prosecutors subordinated to him. Moreover, in accordance with the Prosecutor’s Act, he could have given instructions to any of them, including his first deputy, who had been responsible for the overall supervision of the investigative unit in charge of the applicant’s case and asked for updated information from subordinate prosecutors regarding the progress of the case. The Court considered that, having regard to the role and extensive powers of the Prosecutor General under the relevant national legislation and noting the politically sensitive context in which the applicant’s high-profile trial had been conducted, at the very least, Sh.T. must have been privy, when he had been the Prosecutor General, to internal information about the prosecution service’s strategy in handling the criminal proceedings conducted against the applicant. That reality must have been obvious to an external objective observer. Therefore, in the particular circumstances of the present case, there had been ascertainable facts which could raise objectively justified doubts as to Sh.T’s impartiality. The decision to lodge an appeal on points of law, which had eventually led to the legal reclassification of the applicant’s acts and the increase in his prison sentence, had been taken by the General Prosecutor’s Office during Sh.T.’s time as Prosecutor General. The Court emphasised the importance of appearances for ensuring objective impartiality and, therefore, confidence in the justice system. Regard being had to all the specific circumstances, in particular to the utmost political sensitivity of the applicant’s trial, coupled with the Prosecutor General’s role and authority within the prosecution service in Georgia, the inclusion of the former Prosecutor General on the bench of judges which had heard the applicant’s case had been sufficient to cast doubt on the objective impartiality of the Supreme Court in ruling on the applicant’s appeal on points of law. Conclusion : violation (unanimously). Article 41: no award in respect of damage. (See also Piersack v.   Belgium , 8692/79 , 1   October 1982; Ugulava v.   Georgia , 5432/15 , 9   February 2023)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . 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