Case of European Court of Human Rights, October 22, 2020 (case BOKHONKO v. GEORGIA)
|Resolution Date:||October 22, 2020|
Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair... (see full summary)
CASE OF BOKHONKO v. GEORGIA
(Application no. 6739/11)
Art 3 (procedural) • Effective investigation • Allegations of ill-treatment during police strip search • Applicant’s criminal complaint rejected on basis of succinct reasoning, with no investigative steps undertaken • No judicial appeal • Second investigation delayed and not yielding concrete results • Insufficient assessment of allegations during applicant’s criminal trial
Art 3 (substantive) • Degrading treatment • Insufficient evidence, in light of no effective investigation
Art 6 § 1 (criminal) • Admission and use of evidence obtained as result of alleged ill-treatment • Evidence central to the procedural fairness of the trial • Failure of national courts to properly address ill-treatment allegations also a failure to adequately examine unlawfulness of use of evidence obtained and thus its quality, reliability or accuracy • Post-search judicial review inadequate for challenging authenticity and reliability of evidence
Art 6 § 1 (criminal) and Art 6 § 3 (e) • Free assistance of interpreter • Submission by applicant and his lawyers of detailed arguments contesting accusations, demonstrating that applicant sufficiently understood charges against him and material substance upon which they were based • Provision of interpreting services at all principal stages of proceedings
22 October 2020
This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.
In the case of Bokhonko v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Síofra O’Leary, President,Gabriele Kucsko-Stadlmayer,Ganna Yudkivska,Mārtiņš Mits,Latif Hüseynov,Lado Chanturia,Mattias Guyomar, judges,and Victor Soloveytchik, Section Registrar,
Having regard to:
the application against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Ukrainian national, Mr Orest Bokhonko (“the applicant”), on 20 January 2011;
the decision to give notice to the Georgian Government (“the Government”) of the complaints concerning his alleged ill-treatment and the unfairness of his trial and to declare inadmissible the remainder of the application;
the parties’ observations;
the decision of the Ukrainian Government, after being informed about the application in view of the applicant’s nationality (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), to not intervene.
Having deliberated in private on 15 September 2020,
Delivers the following judgment, which was adopted on that date:
The case concerns the alleged ill-treatment of the applicant by the police on account of the manner in which he was arrested and strip searched; the alleged failure of the relevant authorities to conduct an investigation in that regard; the alleged unfairness of the criminal proceedings conducted against him owing to the domestic courts’ use of evidence obtained as a result of the alleged ill-treatment and/or planted evidence; and the failure to provide him with adequate interpreting services throughout the criminal proceedings. The applicant relied on Articles 3 and 6 §§ 1 and 3 (e) of the Convention.
The applicant was born in Ukraine and is currently detained in Georgia. He was represented by a number of lawyers, most recently Ms N. Londaridze, a lawyer practising in Tbilisi.
The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, succeeded by Mr B. Dzamashvili, both of the Ministry of Justice.
The facts of the case, as submitted by the parties, may be summarised as follows.
On 27 September 2008 K.K., an officer of the regional unit of the Samegrelo-Upper Svaneti police reported to the head of his unit that he had received operational information about a drug offence. According to the report:
“.. the regional unit of the Samegrelo-Upper Svaneti police has received operational information [that] Mr Orest Bokhonko, residing in Kyiv, Ukraine, has taken a flight from Kyiv to Georgia, namely Tbilisi, and is transporting illegally obtained drugs ... with the intention of [giving them] to a Georgian national, [Z.S.], living at ... in Senaki, Georgia. Therefore, permission [is requested] to conduct investigative measures.”
On the same date a criminal investigation was initiated by the same regional unit under Articles 260 § 1 and 262 § 1 of the Criminal Code of Georgia (unlawful possession and transportation of narcotic substances). A supervising prosecutor instructed that a group of investigators be formed to carry out the required investigative measures. The investigator in charge, G.J., ordered that an interpreter, D.D., be appointed to assist the applicant in the course of the investigative measures.
According to the official version of events, at 10.15 p.m. the same evening three officers of the Samegrelo-Upper Svaneti police, G.J., G.S., and J.A., arrested the applicant at the exit door of Tbilisi International Airport. According to the relevant arrest and body search report, he was then searched in one of the rooms in the administration building of the airport between 10.20 and 10.45 p.m. by the same three police officers, in the presence of the interpreter D.D. The body search was conducted in urgent circumstances in the absence of a prior judicial warrant. The applicant was informed by the interpreter in Russian of his rights, which included the right to call independent witnesses to attend the search. He chose however to waive this right by making a written note in the search report. The report further stated that he had not shown any resistance, and that one of the items retrieved during the search had been a yellow balloon containing a white substance, extracted from his anus. According to a note made by the interpreter, the applicant refused to countersign the report for unknown reasons. The interpreter additionally noted in Georgian that he had “provided the translation accurately”, indicating his profession and signature. He made a spelling error by writing an unnecessary letter in that note.
After the search the applicant was formally arrested on suspicion of unlawful possession and transportation of narcotic substances, under Articles 260 and 262 of the Criminal Code of Georgia.
According to the pre-trial statements of the two police officers who arrested and conducted the search, G.S. and J.A., they were acting on the basis of operational information when carrying out the applicant’s arrest at the airport. They stated that a yellow balloon with a transparent plastic bag containing an unlawful substance had been retrieved from the applicant’s anus. An identical statement was given by the interpreter D.D. They all signed the arrest and search report and confirmed that the applicant refused to countersign it for unknown reasons.
The applicant gave a different account of the circumstances surrounding the arrest and search. According to him, he was arrested by several men as he was trying to get into the car of his friend, Z.S., outside the airport. The latter had come to pick him up. He was kicked in the stomach and then taken to one of the rooms at the airport. No explanation was given to him as to the reasons for his arrest. He was then told by one of the officers (later identified as the investigator G.J.) that, according to information obtained by the police, he was transporting drugs to Georgia, which he denied. Subsequently, he was subjected to a body search, and he followed the police’s advice to waive his right to invite attesting witnesses by making a written note in the arrest and search report. His request to get in touch with the Ukrainian Consulate was turned down. He was slapped in the face, forced to strip naked, made to do sit-ups and subjected to an anal inspection by a police officer with a glove on his hand, who tried to penetrate his anus. Nothing was found on him. He was then kept naked for about twenty minutes. The police officers laughed at him and several of them recorded the strip search on their mobile telephones. He attempted to escape several times, with his clothes still removed, but the police officers grabbed him by his hands and, in this way, had him in their grip. He was then repeatedly kicked and subjected to a repeated anal inspection by another officer (later identified as K.K.). He resisted and lost consciousness. When he regained consciousness, he was told that some drugs had been removed from his anus. He replied that they did not belong to him.
The applicant also stated that the interpreter, who had been present from the beginning of the search, had explained to him that if no drugs were found, he would be released. He claimed however that the interpreter had not informed him of his rights or given him any documents translated into Russian.
After the arrest the applicant was transferred to the regional headquarters of the Samegrelo-Upper Svaneti police in Zugdidi.
On 28 September 2008 the applicant was placed in a temporary detention facility in Zugdidi. The on-duty detention officer observed that he had a scratch on his right knee. The applicant also complained about pain in his right side and of suffering from dizziness. These complaints and the scratch on his knee were recorded in the logbook of the facility. In the same logbook, the applicant made a written note in Russian stating that the drugs allegedly removed from his body had not belonged to him. Below that note, someone identified as an interpreter, N.K., made a handwritten note stating that she had explained the contents of the document to the applicant in a language he understood. She also translated the applicant’s statement about the drugs not belonging to him into Georgian and added another handwritten note in Georgian stating that the applicant had “no...
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