6.  The applicant was born in 1973 and lives in Tbilisi.
7.  On 7 November 2002 the applicant was sentenced to a suspended term of five years’ imprisonment for breaching public order and resisting a police officer.
8.  On 4 July 2004 a police officer, the head of the criminal investigation unit at the Gldani-Nadzaladevi district police department in Tbilisi (“the district police department”), ordered a personal search of the applicant to be carried out in urgent circumstances. The relevant decision stated that having examined the inquiry file (მოკვლევის მასალები) in respect of the applicant, who was suspected of possession and use of narcotic substances, the police officer had decided, under, inter alia, Articles 290, 321, and 325 of the Code of Criminal Procedure of Georgia (“the CCP”) (as cited in paragraph 37 below), that a personal search of the applicant should be conducted for the purpose of seizing any unlawful substances. The decision consisted mainly of pre-typed standard phrases with the applicant’s first and last names added by hand, noting that he was suspected of unlawful drug possession. It was signed by the police officer himself and the head of the relevant district police department.
9.  According to the official version of events, at around 5.20 p.m. on the same date, as the applicant was entering a billiards hall with two friends, two police officers waiting in a vehicle parked opposite the hall called to him. The applicant approached them. He was then searched, without the police having a judicial warrant for that purpose. The police report on the personal search, which was drawn up subsequently at the police department, stated:
“... given that there were sufficient grounds to suspect that the arrested person would try to destroy evidence (narcotic substance heroin) showing that he or she had committed a crime, a personal search of [Archil Jugheli Kobiashvili born in 1973 and living at ...] was conducted.”
The report further noted that before being searched the applicant had been asked to “indicate where he was keeping the heroin”. The applicant had pointed to “the trouser pocket in which he was carrying heroin wrapped in white paper”. A yellow powder had been discovered there as a result. Two attesting witnesses, Mr U.K. and Mr L.Ts., who had attended the search, as well as a police officer, Sh.Sh., signed the report on the personal search. The applicant refused to countersign it. The search lasted from 5.20 to 5.45 p.m.
10.  The applicant was formally arrested at 6 p.m. on suspicion of unlawful use and possession of the narcotic substance heroin. He again refused to sign the arrest record.
11.  On what appears to be the same date (the document is not dated) the head of the relevant district police department wrote a report to the Tbilisi Gldani-Nadzaladevi district prosecutor, informing him of the personal search of the applicant that had taken place at 5.45 p.m. on 4 July 2004. According to that note, the relevant investigative measure had been conducted in urgent circumstances in the absence of a judicial warrant and before the initiation of criminal proceedings. The police officer asked the prosecutor to apply to the Gldani-Nadzaladevi District Court with a request for legalising the search post-factum.
12.  According to the investigation file, on the same date, that is on 4 July 2004, on the basis of the above-mentioned request, the Tbilisi Gldani-Nadzaladevi district prosecutor lodged an application with the Gldani-Nadzaladevi District Court in Tbilisi to have the search of 4 July 2004, which it claimed had been urgent, legalised. The request simply provided the place the applicant had been arrested, the substance that had been revealed as a result of the search, and the offence the applicant had been suspected of. In accordance with Article 290 of the CCP and with reference to section 7(4) and sections 8 and 9 of the Law on the Conduct of Undercover Investigations, the prosecutor asked the court to legalise the search. In support of the request the prosecutor submitted three documents. The first was a handwritten note by Officer Sh.Sh., according to which the search had been conducted, on the basis of “operational information” (ოპერატიული ინფორმაცია), by him, by another police officer N.O., and by the driver, police officer M.Ts., and that as a result of the search attended by witnesses, heroin had been found on the applicant. The above note, in contrast to the police report on personal search of the applicant (see paragraph 9 above) stated that at the time of the arrest, the applicant had been under the influence of drugs.
13.  The second document was a handwritten note from L.Ts., one of the witnesses who had attended the search. He stated that while walking along the street, he had been approached by police officers with a request to attend a personal search. He confirmed that the substance had been found in the back right pocket of the applicant’s jeans and that the applicant had stated that it belonged to him. The third document submitted to the court was a handwritten note from the other attesting witness to the search, U.K., who provided a short description of the circumstances of the applicant’s personal search in terms identical to those used by L.Ts.
14.  According to the case-file, the prosecutor’s request to have the personal search of the applicant legalised, as submitted to the court, included neither a copy of the decision ordering the search in urgent circumstances nor the inquiry file in respect of the applicant (see paragraph 8 above). It also appears that a copy of the police report on personal search of the applicant was likewise missing from the case-file available to the court (see paragraph 9 above).
15.  On 5 July 2004 the court examined the request and the documents produced by the public prosecutor’s office in accordance with Articles 290 and 293 of the CCP and declared the search lawful. It concluded:
“Having reviewed the reasoning of the request, [the court] consider[s] that the personal search of Archil Kobiashvili was conducted because of an exigent need, in compliance with the rules of criminal procedural legislation and that there is a legal basis for granting [the request].”
The procedure was conducted in writing and the applicant was not allowed to submit his observations regarding the circumstances of the search. The decision stated that no appeal lay against it.
16.  On an unspecified date the applicant was formally charged with buying and possessing a large quantity of drugs, an offence under Article 260 § 2 (a) of the Criminal Code.
17.  On 5 August the two attesting witnesses were questioned again. They maintained their initial statements, describing in more detail the circumstances of the applicant’s search. On 7 August 2004 Officer Sh.Sh., who was also questioned in the capacity of a witness, again confirmed that he had acted with two other police officers, N.O. and M.Ts., on the basis of operational information. According to that information, a certain person on land adjacent to a billiards hall was under the influence of drugs.
18.  On 26 August 2004 a forensic examination by the investigating authorities established that the substance discovered during the search was 0.059 grams of heroin. In addition, on 27 August 2004 a narcotics test revealed that the applicant was not a drug addict, although he did require “preventive treatment.”
19.  The applicant remained silent during the investigation.
20.  On 10 December 2004 the Gldani-Nadzaladevi District Court opened the applicant’s trial. The applicant, describing the events that had taken place in front of the billiards hall, pleaded not guilty. He claimed that he had not been searched either before or after his arrest and that the substance allegedly discovered on him had belonged to the police. He explained that the police had taken him to the police station, where they had “heated up” an injection of drugs (opium) and administered it to him by force. He had then been taken to a toxicology clinic to be tested.
21.  On 21 December 2004 U.K., one of the attesting witnesses, was questioned in court. He claimed that he had not attended the applicant’s search on 4 July 2004 but had been approached at around 10 p.m. at the construction site where he had been working by police officers who had taken him directly to the police station. There, they had dictated to him a text which he had signed. In addition, he had signed a hand-written report without reading it. In reply to a question as to whether the police had insulted him, U.K. replied that they had been swearing at the police station and that he had been scared. He also alleged that the police had threatened to arrest him.
22.  On 27 December 2004 Officer Sh.Sh was questioned in court. He confirmed that the applicant had been arrested and searched on the basis of operational information. He maintained that the search had been attended by two witnesses who had been approached in the street. The second police officer, N.O., when questioned in court on 9 March 2005, explained that he had acted on the basis of operational information according to which “there [had been] a person in Mukhiani IV district, who could have been under the influence of drugs”. He further stated that he was not sure whether visually it had been evident that the applicant had been under the influence of drugs. Arguing that U.K.’s testimony before the trial court was untrue, he confirmed the official version of the search of the applicant and maintained that the latter’s personal search had been conducted immediately at the scene of his arrest.
23.  In the meantime, L.Ts., the second witness to the search, refused to appear before the court. After being served with a summons, on 18 February 2005 he wrote a brief note to the judge informing her of his inability to attend the hearing on 22 February 2005 because of a planned trip to the United States.
24.  The court also heard evidence from two friends of the applicant who had been with him at the time of his arrest. They stated that all three of them had been standing in front of a billiards hall when the police had called to the applicant and the latter had approached their vehicle. They both claimed that the applicant had been immediately taken away by the police without any search having been conducted on the spot.
25.  In his final statement, the applicant’s defence counsel asked the court to dismiss the report on the applicant’s personal search as null and void, on account of various procedural irregularities. He also claimed that the second alleged witness to the search, L.Ts., was a police agent, a former police officer who had acted in many similar criminal cases as an attesting witness.
26.  On 18 April 2005 the Gldani-Nadzaladevi District Court found the applicant guilty as charged and sentenced him to six years’ imprisonment, to which was added six months from a previous sentence. The court found that the applicant’s guilt was proven by the statements given by the two police officers who had arrested and searched him, and by the results of the personal search. As regards U.K.’s contradictory claims, the court concluded that it “had not been unequivocally established that he had not been a witness to the personal search and had only signed the papers at the police station”. Consequently, the court decided not to take account of the part of U.K.’s testimony where he had denied being present during the search. The court further held that it could not take into account the statements of the applicant’s friends, given that the two men were friends of the accused and therefore wanted to get him out of trouble.
27.  The applicant appealed against that decision to the Tbilisi Court of Appeal, arguing again that he had not been searched at the time of his arrest and that his conviction had been based on planted evidence. He claimed that the first-instance court had not drawn objective conclusions from his friends’ statements and the testimony of U.K. in which the latter had claimed not to have witnessed the search. The applicant also criticised the fact that no evidence had been heard from L.Ts. He provided the witness’s address and requested that he be questioned in court. At the same time, he asked the court to re-examine all the witnesses, namely the two police officers, U.K., and his friends.
28.  On 3 June 2005 the appeal proceedings started. The appeal court heard evidence from the two arresting officers, who confirmed the official version of events. They both stated that as far as they could recall, the operational information had simply stated that there had been a person at a certain address under the influence of drugs. None of them could recall exactly who had received that information at the police station and whether it had been provided by telephone or by some other means.
29.  The appeal court further examined L.Ts., the second attesting witness to the search, who confirmed that he had been present during the search in question at the request of the police, and had seen that a yellowish substance had been discovered in the applicant’s trouser pocket. He contested the allegations of the defence that he was a former police officer or had otherwise cooperated with the police in the past. The first attesting witness, U.K., confirmed the evidence he had given before the first-instance court. He refuted the allegation that he had attended the applicant’s personal search and claimed that he had been forced to sign several documents at the police station. He alleged that he had been subjected to psychological as well as physical pressure by the police. At the same time, in reply to a question put by the prosecutor, U.K. said that having learnt that the documents he had signed concerned the applicant, he had gone to see the latter’s brother and had told him everything. He had then gone with one of the applicant’s cousins to the Public Defender’s Office and had given them a detailed statement concerning the circumstances of the case.
30.  The two friends of the applicant were also questioned in the appeal court. They confirmed the evidence given to the first-instance court.
31.  At the hearing of 18 November 2005 the applicant’s defence counsel applied to the appeal court to exclude as inadmissible evidence, among other things, the police report on the applicant’s personal search. Defence counsel argued, firstly, that the search had been conducted without a judicial warrant or the authorisation of a senior investigator, in violation of the relevant provisions of the CCP. In support of his argument he referred to the fact that the decision to conduct a personal search had not been duly signed by a senior investigator, had not indicated the exact time at which it had been issued, and had included detailed information about the identity of the applicant, including his name and address, and the type of narcotic substance, heroin, that he allegedly had on his person, facts which had become known to the police only after the arrest and search of the applicant. Moreover, he alleged that the decision had not been read out to the applicant before the search. Secondly, in his evidence before the first and second‑instance courts, U.K. had unequivocally claimed that he had not witnessed the personal search of the applicant and had been forced to sign certain documents at the police station. As for the second witness, L.Ts. had lied about his prior working experience with the police and was thus unreliable. In support of his arguments, the defence submitted a letter from the Ministry of the Interior, according to which L.Ts. had been working for the Ministry in 1996. Thirdly, the defence emphasised that the friends of the applicant had consistently maintained that the latter had not been searched at the place of his arrest. The defence thus requested that the search report be excluded as an inadmissible piece of evidence, in accordance with Article 111 of the CCP.
32.  On 6 December 2005 the appeal court dismissed the applicant’s request in its entirety. In connection with the search decision, they concluded that it had been taken by an authorised police officer in line with the requirements of Article 67 of the CCP. They further considered that it was unclear as to whether the decision had indeed been read out to the applicant prior to the personal search being carried out; therefore they were not in a position at that stage of the proceedings to assess that alleged breach of procedure.
33.  On 21 February 2006 the appeal court upheld the first-instance judgment. The court considered that the applicant’s guilt was confirmed by the reports of his arrest and the personal search, the statements of the arresting officers, and other evidence in the case file. In connection with the evidence of U.K., the appeal court found the testimony he had given in court not credible as it contradicted the case materials. Furthermore, it was “illogical” and had apparently been given under the influence of the applicant’s family. The appeal court also relied on the statement of L.Ts., disregarding the applicant’s complaint concerning his being a former police officer. It dismissed the evidence of the two friends of the applicant as unreliable.
34.  On 6 March 2006 the applicant lodged an appeal on points of law. He maintained that serious procedural irregularities that had taken place during the pre-trial investigation had undermined his ability properly to defend his case, and that his conviction was based on unlawful evidence, notably on a falsified decision to carry out a personal search in urgent circumstances, which had served as a basis for the unlawful search and untrue witness statements. He also denounced as unsubstantiated the appeal court’s decision refusing his request concerning the inadmissibility of evidence.
35.  On 12 June 2006 the Supreme Court of Georgia declared the applicant’s appeal inadmissible on the grounds that it did not satisfy the requirements of Article 547 § 2 of the Code of Criminal Procedure.
36.  On 3 January 2011 the applicant was released from prison upon the expiry of his prison sentence.