CEDH · CASELAW;CLIN;ENG — 27 janvier 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 115 January 2009 Ramishvili and Kokhreidze v. Georgia - 1704/06 Judgment 27.1.2009 [Section II] Article 5 Article 5-4 Procedural guarantees of review Review of lawfulness of pre-trial detention in humiliating and unfair conditions: violation   Article 3 Degrading treatment Inhuman treatment Pre-trial detention in humiliating and unfair conditions: violation   Facts : The applicants were co-founders and shareholders of a television channel. The first applicant enjoyed a wider reputation as anchorman of a popular TV talk-show. Both applicants were on trial for the offence of extortion for allegedly demanding payment in exchange for not disclosing an embarrassing documentary about an allegedly corrupt parliamentarian. The court remanded them in custody and they appealed. The regional court dismissed their appeal at an oral hearing. In an extremely overcrowded hearing room the applicants were kept in a barred dock, surrounded by several guards. During his pre-trial detention, the first applicant was transferred to a punishment cell as a disciplinary measure. He shared the cell, which measured   5.65   square metres and was intended for solitary confinement, with one other person. He complained to the authorities about the conditions of his detention in that cell, explaining that it was infested with cockroaches and rats, had no window or ventilation and was extremely damp, as tap water ran non-stop 24   hours a day. Furthermore, a narrow pipe in the corner served as a toilet, which was not separated from the rest of the cell, and a stench hung in the air permanently. He was obliged to share a 120 cm wide bed, infested with vermin, with a stranger and could not even relieve himself in “the toilet” without being observed. He was not allowed to take outdoor exercise. His complaint was dismissed. The second applicant was placed in a cell with 12 beds, where 29 to 35 prisoners were kept at different points in time. In 2006 both applicants were convicted as charged. Law: Article 3 – The applicants were people enjoying social esteem and had been on trial for the first time. During the judicial review of the issue of their detention, the public had seen them in a barred dock which looked very much like a metal cage, separated from the rest of the court room. Heavily armed guards wearing black hood-like masks had been present in the court room. The hearing had been broadcast live throughout the country. Such a harsh and hostile appearance of judicial proceedings could have led an average observer to believe that “extremely dangerous criminals” had been on trial. Apart from undermining the principle of the presumption of innocence, the disputed treatment in the court room had humiliated the applicants in their own eyes, if not in those of the public. The special forces in the courthouse had aroused in them feelings of fear, anguish and inferiority. Nothing in the case file suggested that there had been the slightest risk that the applicants, who were well-known and apparently quite harmless, might have absconded or resorted to violence. The Government had failed to provide any justification for such stringent and humiliating measures. Conclusion : violation (unanimously) The Court found further violations of Article 3 on account of the applicants' conditions of detention. Article 5 § 4 – The Court deplored the manner in which the judicial review of the lawfulness of the applicants' detention had been held. During the hearing, they had been placed in a caged dock at the far end of the court room in complete disorder and surrounded by guards. They were hardly able to communicate with their lawyers, could not be properly heard by the prosecutor and the judge and their submissions were barely audible due to the turmoil in the room. They had had to stand on a chair in the barred dock, hanging on to the metal side bars, and shout. Communication in the court room had been constantly hampered by the unsolicited interruptions of journalists, the unabated ringing of mobile telephones, and persons vehemently arguing and swearing. The judge had been either unwilling or unable to establish order. Unlike the prosecutor, the applicants' advocates, when making their defence statements, had been dazzled by camera flashes and halogen camera lights. Their statements had been hardly audible. By contrast, due to the immediate proximity of the prosecutor's seat to the judge, the dialogue of questions and answers between them had been unaffected and had presented no comparable obstacle of audibility. An oral hearing in such chaotic conditions could hardly have been conducive to a sober judicial examination. The Court could not accept the Government's argument that the possibility of written applications could have palliated the turmoil in the court room. Oral hearings should create conditions such that verbal responses and audio‑visual exchanges between the parties and the judge in a court room flow in a decent, dynamic and undisturbed manner. The applicants' confinement inside the barred dock which looked like a metal cage and the presence of “special forces” in the courthouse had been detrimental to their powers of concentration which were indispensable for conducting an efficient defence. Such humiliating and unjustifiably stringent measures of restraint during the public hearing, which was broadcast throughout the country, had tainted the presumption of innocence.The personal conduct of the judge could not be said to have been devoid of bias. He had visibly been aiding the prosecutor during the hearing by either directly responding to the questions of the defence instead of the latter or rephrasing the questions in a manner more advantageous to the prosecutor. Given the high number of undercover government agents and even “special forces” present at the hearing, the court could not be said to have given the appearance of independence. These agents had seemed to be more in control of the situation in the court room than the judge himself. The latter's deliberation room, which should have been private and inviolable, had been easily accessed by strangers.The judicial review of the lawfulness of the applicant's detention had therefore lacked the fundamental requisites of a fair hearing. Conclusion : violation (unanimously). For more information, see Press release no. 64.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes