Alleged violation of Article 6, par. 3 lit. "b", "c" and "d" of the Convention

In order to demonstrate the correctness of these words the first applicant submits to the Court that his defense counsel made a very important petition to the investigator Levan Ga. seeking to seize the operation books of the gynecology and obstetrics departments of the Mtskheta regional hospital, which books could demonstrate who was responsible for conducting operations in these departments and, consequently, would be able to discover whether or not the first applicant had any responsibility to operate on the patient, Guliko M (See the attached Annex A.. A .. - Tskimanauris' petition). This petition was rejected by the investigator, Levan Ga., on the ground that "various evidence has been collected on this case, including the testimony of witnesses and experts, the conclusions of forensic expert reports and many other materials, which prove the first applicant's guilt" (See the attached Annex A..).

Nor did the investigator, Levan Ga., satisfy the first applicant's petition seeking the additional interrogation of witnesses and the interrogation of a new witness who could provide the investigation with uncontradicted evidence and prove the first applicant's innocence. The investigator rejected this petition because the witnesses named in the petition had already been interrogated and it was not reasonable to interrogate them additionally. As for the new witness, the investigator stated that the evidence of the case proved the first applicant's guilt incontestably and therefore it was not necessary to interrogate anyone else.

The second applicant's defense counsel's petition for interrogation of witnesses was also rejected. The defense counsel sought to examine the people who were by the patient's side during the length of her stay at the Mtskheta hospital because they could describe in detail what took place there that day. This information would aid the investigation considerably in finding the truth in this case. The second appellant's defense counsel's petition was accompanied by explanatory notes of the witnesses concerned (See the attached Annex A..).

Investigator Levan Ga. rejected this petition, again on the same ground, i.e., he referred to "many witnesses interrogated" and "uncontradicted evidence", based on which, as stated by investigator, the second applicant had been accused. However, differently from the two petitions of the first applicant's defense counsel, in this dismissing this petition investigator Levan Ga. also mentioned another ground for the petition's rejection. Namely, he noted: "the pretrial investigation of this case is being terminated. The case is being sent to the court for hearing and, consequently, the defense counsel's petition aims at delaying the investigation".

The second applicant calls the Court's attention to this statement of the investigator and puts a question: Did the investigator really think that anyone imprisoned would try to delay the investigation and stay in prison as long as possible instead of being willing that the investigation concludes in a timely manner so that the case can be transferred to the court, which is the only place where he has the chance and hope of proving himself not guilty? It is evident that an accused that is being detained will want the investigation to continue only if he believes that it has been conducted in a biased and partial manner and to remedy this wants to fill out the investigation with additional evidence directed toward proving his innocence.

Several petitions of the applicants and their defense counsels seeking examination of witnesses or attachment of different evidence to the case were rejected both by the investigation and the court. Among such petitions were Gia I's and Mzia Ch.'s petitions to be examined at the hearing at the Tbilisi Appellate Court. These petitions were also rejected by Judge Marina Kh. Although Irma I. and Mzia Ch. noted in their petitions that they could provide the court with information that could considerably affect the outcome of the case, prosecutor Ok. did not support their petitions because "Mzia Ch. will be discussing issues that she has no special knowledge about". The first applicant's defense counsel did not agree with the argument of the prosecutor and emphasized that the above witnesses should be examined at the hearing and the court should evaluate their testimony: "the fact that Mzia Ch. is not a physician does not mean that she should not be examined because many other witnesses who were not physicians by vocation have been examined in this case". Moreover Mzia Ch.'s petition did not state that she wanted to give testimony concerning the medical issues.

How strange it is that Judge Marina Kh. approved the prosecutor's claim and decided not to grant Gia I's and Mzia Ch's petitions because "as reported by Mzia Ch., she attended the hearing at the first instance court and the court does not consider it reasonable to examine her. Gia I. does not indicate specifically what she wants to give testimony about. Besides, Gia I. and Mzia Ch. are not persons competent to give testimony about Guliko M's medical conditon", - concluded Judge Marina Kh.

The first applicant stresses that he presented a petition concerning Iremashsvili's examination to the first instance court, but his petition was rejected because Iremashsvili's testimony would only be about events that took place after 10:00 a.m., i.e., when the first applicant's working hours were over and what "he was not accused of" (as stated by the prosecutor). (See under alleged violation of Article 6). But now, the reason for rejection of Gia I's petition was absolutely the different.

Considering the foregoing, the applicants submit that Articles 230 and 231 of the criminal procedure code of Georgia granting the right to making a petition were violated. Article 232 of the same code stipulates that a petition must be satisfied if it encourages a comprehensive, objective and full investigation of the case (par. 1); any petition of the prosecution and defense must be equally examined (par. 2). The most important is paragraph 3 of the above Article, pursuant to which "the well-founded petition of a suspect, an accused, or defense counsel seeking an evidence or seeking to conduct investigative or trial action, must be necessarily admitted by a researcher, investigative body, investigator, prosecutor, first instance and appellate court". The imperative character of this provision means that neither the prosecution nor the court has a right to reject any petition of the defense which concerns the above circumstances.

It is evident that all the above petitions made by the applicants and their defense counsels sought precisely to fulfill the right granted by Article 232, par. 3, which was granted by the legislature because the examination of circumstances important for the defense of a suspect or accused should not depend on whether an investigator, prosecutor or court considered it "reasonable". In the applicants' case this imperative provision, like many others, was absolutely ignored by the prosecution and the court.

Therefore, the defense counsels' right provided by Article 84 of the criminal procedure code of Georgia, which, among other rights, grants the defense counsel the right to collect the data necessary for the defense and submit them as evidence to the body responsible for the proceeding (par. 3, lit "f"), to seek to conduct any investigative action necessary for defense (par. 3, lit "g") and to make a petition (par. 3, lit "i"), was violated.

Considering all the foregoing, the applicants assert the violation of such important constitutional and international principles of legal proceedings as "legality and human rights" (Article 7 of the criminal procedure code of Georgia), "supremacy and independence of judiciary" (Article 8 of the criminal procedure code), "guarantees for protection of the right to defense of a suspect and an accused" (Article 11 of the criminal procedure code of Georgia), "comprehensive, objective and full investigation of the case merits" (Article 18 of the criminal procedure code of Georgia) and "controversy of criminal proceedings" (Articles 15, 49 and 439 of the criminal procedure code of Georgia).

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