ECHR

FIFTH SECTION

CASE OF TORTLADZE v. GEORGIA

(Application no. 42371/08)

JUDGMENT

Art 8 • Respect for home and private life • Unjustified search of consular

premises in connection with drug-related criminal investigation using

“urgent procedure” • Insufficient ex post factum judicial review

Art 6 § 1 (criminal) • Fair hearing • Use of evidence obtained in violation of

Art 8 having no decisive impact on overall fairness of proceedings in light

of all the circumstances, with conviction additionally based on other court-

tested evidence • Access to court • Refusal of Supreme Court to consider

applicant’s case on the merits not unreasonable or disproportionate, with

thorough examination of applicant’s relevant arguments by first two

instances

STRASBOURG

18 March 2021

This judgment will become final in the circumstances set out in Article 44 § 2 of the

Convention. It may be subject to editorial revision.

TORTLADZE v. GEORGIA JUDGMENT

In the case of Tortladze v. Georgia,

The European Court of Human Rights (Fifth Section), sitting as a

Chamber composed of:

Síofra O’Leary, President,

Ganna Yudkivska,

Jovan Ilievski,

Lado Chanturia,

Ivana Jelić,

Arnfinn Bårdsen,

Mattias Guyomar, judges,

and Victor Soloveytchik, Section Registrar,

Having regard to:

the application (no. 42371/08) 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 Georgian national,

Mr Ermile Tortladze (“the applicant”), on 14 August 2008;

the decision to give notice to the Georgian Government (“the

Government”) of part of the application and to declare inadmissible the

remainder;

the parties’ observations;

Having deliberated in private on 9 February 2021,

Delivers the following judgment, which was adopted on that date:

INTRODUCTION

1. The case concerns, in particular, the search conducted in the course of

a preliminary criminal investigation in the office of the Honorary Consular

General of Côte d’Ivoire in Georgia, and the reliance by the domestic courts

on the evidence obtained as a result. The applicant complains under

Articles 3, 6 § 1, and 8 § 1 of the Convention.

THE FACTS

2. The applicant was born in 1964 and lives in Tbilisi. He was

represented before the Court by Ms N. Margieva and Ms M. Shatirishvili,

lawyers practising in Tbilisi.

3. The Government were represented by their Agent,

Mr L. Meskhoradze, of the Ministry of Justice.

4. The facts of the case, as submitted by the parties, may be summarised

as follows.

TORTLADZE v. GEORGIA JUDGMENT

A. Search of the consular premises and initiation of criminal

proceedings

5. The applicant was serving as Honorary Consul General of Côte

d’Ivoire in Georgia at the material time. It appears from the case file that

from time to time he was also performing the functions of a consular

courier.

6. On 24 August 2005 the police arrested A.I., a former head of security

at the Honorary Consulate General of Côte d’Ivoire (“the Honorary

Consulate”), and a consulate lawyer at the material time, on suspicion of

unlawful possession of drugs with intent to supply. While being questioned

as a suspect, he named the applicant as his long-term drug dealer. He also

claimed that he had purchased twelve-and-a-half Subutex (buprenorphine)

pills from the applicant earlier that day on the premises of the Honorary

Consulate.

7. On the same date the Ministry of the Interior (“the MoI”) requested

the Ministry of Foreign Affairs (“the MFA”) to provide information about

the legal status of the Honorary Consulate and the immunities that the

applicant enjoyed in his capacity of Honorary Consul General.

8. On 25 August 2005 the head of the consular department of the MFA

replied in writing, explaining that under Article 43 of the Vienna

Convention on Consular Relations (“the Vienna Convention”), consular

officers enjoyed functional immunity. As for the premises, it was noted that

the inviolability of consular premises as laid down in Article 31 of the

Vienna Convention did not extend to premises occupied by Honorary

Consuls. Lastly, with respect to Honorary Consuls, only the provisions in

Chapter III of the Vienna Convention were applicable (see the relevant

provisions as cited in paragraph 38 below).

9. On the same date, the investigator in charge of the case against A.I.

issued a decision ordering that a search be conducted on the premises

occupied by the Honorary Consulate in urgent circumstances. The decision

did not list the items the police were to search for or provide any other

details concerning the investigative measure. On 25 August 2005 the police,

acting on the above order, entered the Honorary Consulate and conducted a

search. The applicant, who was present, challenged its lawfulness, claiming

that it violated Article 328 of the Code of Criminal Procedure and relevant

international norms protecting diplomatic and consular missions. He refused

to sign the search report and added a written note to it explaining that the

Consul General, in this specific case he himself, had to give prior consent

before any search could be carried out.

10. According to the official record, the search of the Honorary

Consulate was conducted between 5.27 and 6.45 p.m., attended by D.J., a

representative of the MFA, and was recorded on video. The applicant

waived his right to invite attesting witnesses to attend the search. As a result

TORTLADZE v. GEORGIA JUDGMENT

of the search, 227 Subutex pills, seven ampoules of morphine hydrochloride

and several gun cartridges were seized from a safe and a desk in the

applicant’s office.

11. On the same date police also searched the applicant’s vehicle and

apartment. The latter was similarly searched in the presence of D.J., the

MFA representative, and the applicant’s wife, who, according to the search

report, waived her right to invite independent witnesses to attend. As a

result of the search, which was recorded on video, a gun and several

cartridges were recovered from the applicant’s apartment. The applicant’s

wife refused to sign the search report, adding a note that the weapon found

did not belong to her family.

12. According to the arrest record, the applicant was arrested on the

premises of the Honorary Consulate at 6.50 p.m. on 25 August 2005.

13. On 26 August 2005 the applicant, after further questioning as a

suspect, complained that the searches had been conducted unlawfully, in

breach of the Vienna Convention on Consular Relations. He claimed that

the Subutex pills found in his office did not belong to him, and that he did

not know how they had ended up in the safe. As for the morphine ampoules,

he admitted that they belonged to him and that as a heart sufferer, he had

been keeping them for emergencies. He also denied that the gun found in his

apartment belonged to him. After the above interview the applicant and A.I.

were questioned in a confrontation with each other. A.I. maintained his

allegations, while the applicant dismissed the accusations as untrue.

14. On the same date the prosecutor in charge of the criminal case

against the applicant lodged three applications with a first-instance court in

Tbilisi, asking to have the searches of 25 August 2005, which he claimed

had been urgent, legalised. The requests simply indicated the places the

searches had been conducted (the Honorary Consulate, the applicant’s

vehicle and his apartment), the substances and the arms that had been

discovered as a result of the searches, and the offences the applicant had

been suspected of. All three searches, according to the requests, had been

conducted in urgent circumstances. In accordance with Articles 290, 315,

317, 322 and 323 of the Code of Criminal Procedure, the prosecutor asked

the court to validate the searches. The requests did not mention any

procedural documents submitted in support thereof.

15. On the same date the Tbilisi City Court examined the three requests

in writing, without allowing the applicant to submit observations, and

declared that the searches had been lawful. All three decisions, written in a

summary manner, did not refer to relevant factual circumstances and did not

elaborate on the necessity of searches in urgent circumstances. In

connection with the search of the consular premises, the court noted that it

was clear from the prosecution’s request that the search had been conducted

as there had been a risk of the evidence of a crime being destroyed, it had

been urgent and that the police had complied with the rules of criminal

TORTLADZE v. GEORGIA JUDGMENT

procedure. The decisions provided for a seventy-two-hour appeal period. It

appears from the case file that the applicant did not avail himself of this

opportunity.

16. On 27 August 2005 the applicant was formally charged with various

drug and firearms offences under Article 260 §§ 2(a) and 3(a) and

Article 236 §§ 1 and 3 of the Criminal Code. The following day a judge, at

the request of the prosecutor, ordered that he be remanded in custody for

three months.

17. During the pre-trial investigation the applicant’s lawyer requested a

dactyloscopic (fingerprint) examination of the drugs seized from his client’s

office and the weapon allegedly found in his apartment. The request was

rejected by the prosecutor, who concluded that because the physical

evidence bore the fingerprints of various people who had participated in the

seizure and subsequent forensic examination, a dactyloscopic examination

would prove pointless.

18. In another request, the applicant claimed that the drugs found in his

office belonged to A.I. who, while employed by the Honorary Consulate,

had enjoyed unlimited access to its premises. He requested in this

connection that several other employees of the Consulate be called for

questioning. He also dismissed as untrue A.I.’s allegations that he had

purchased Subutex on the consular premises on 24 August 2005 and

requested that several members of the security team of the consulate be

summoned for questioning in this regard. Both requests were refused.

19. On 14 November 2005 the pre-trial investigation was completed. On

19 November 2005 the applicant, via his lawyer, lodged a request with the

investigator in charge of the case, complaining of partiality and

one-sidedness in the investigation. He maintained that by refusing to

question the consulate’s employees and members of its security team, the

investigator had ignored the applicant’s right to challenge A.I.’s credibility

and the truthfulness of his statements. He reiterated his request for those

witnesses to be called for questioning, and for a fingerprint examination of

the drugs and weapon seized. He also claimed that the search of the

Honorary Consulate had been unlawful, firstly because he had not been

allowed to invite independent witnesses to attend, and secondly because

consular premises were inviolable under international law. He maintained,

with reference to Article 102 § 4 of the Code of Criminal Procedure, that

there had been no urgent need to carry out a search in the absence of

independent witnesses, since the Consulate premises and he himself had

been under the absolute control of the police, thus preventing him from

interfering with the evidence. He asked for access to the full video

recordings of the searches of the Consulate and his apartment.

20. By a decision of 21 November 2005, the investigator rejected the

applicant’s requests.

TORTLADZE v. GEORGIA JUDGMENT

B. The applicant’s trial

21. The trial proceedings started on 19 October 2006. Before the trial

court the applicant reiterated his request for a fingerprint examination of the

seized drugs and weapon and for the questioning of several Consulate

employees. According to the applicant, those witnesses could prove, inter

alia, that A.I. had not been at the Consulate on 24 August 2005, and so

could not have purchased drugs from the applicant that day. The applicant

also asked to admit as evidence the video recordings made in the Consulate

on 25 August 2005, and to obtain and admit as evidence a video recording

made by a private TV company of the police searching the Consulate

premises. While filing a number of other applications with the trial court,

the applicant maintained that the search of the consular premises had been

unlawful, firstly because he as a consular courier, and the Consulate as a

whole, were covered by diplomatic immunity, and secondly because no

independent eyewitnesses had been allowed to attend. He asked the court to

reject as inadmissible the police report on the search of the Consulate and

the physical evidence obtained thereby.

22. On 23 October 2006 the Tbilisi City Court partially granted the

requests of the defence. It agreed, inter alia, to interview the defence

witnesses in court. While providing general information on the functioning

of the Consulate, the applicant’s witnesses stated that they could not

remember seeing A.I. on the premises of the Consulate on 24 August 2005.

23. During the trial proceedings the two police officers who had

conducted the search of the Consulate were also questioned. Both noted that

the search had been conducted on the basis of operational information; that

the search had been video-recorded; and that there had been around ten to

twenty people on the premises of the Consulate during the search. A.I., the

key prosecution witness, also questioned during the trial, confirmed his

pre-trial statement implicating the applicant in supplying drugs.

24. On 13 November 2006 the trial court interviewed D.J., the head of

the consulate department at the MFA, who had been present at the searches.

In respect of the Consulate’s status, she noted that since it was headed by an

Honorary Consul General rather than a career consular officer, only

Chapter III of the Vienna Convention of 1963 was applicable. As far as her

participation in the search was concerned, she explained that she had

attended the search in view of the requirements of the criminal procedural

law; she had not been there as a diplomatic representative, as the Consulate

in question had not been a diplomatic mission protected under the Vienna

Convention. In reply to a specific question, she confirmed that Article 31

§ 2 of the Vienna Convention concerning the inviolability of consular

premises did not extent to the premises of the relevant Honorary Consulate.

25. During the court proceedings a video recording depicting the search

on the premises of the Consulate was shown. Two sequences in the video

TORTLADZE v. GEORGIA JUDGMENT

recording showed the moments at which drugs were found in the applicant’s

desk and in a safe. The applicant denounced the video recording, claiming

that it had been manipulated.

26. On 20 November 2006 the Tbilisi City Court convicted the applicant

as charged and sentenced him to eighteen years’ imprisonment. The trial

judge, in finding his guilt established, relied on the relevant search reports,

the evidence of A.I., the statements of the two police officers who had

conducted the search of the consular offices, and the video recordings of the

searches of the applicant’s apartment and the consular offices. The trial

court found the statements of the defence witnesses to be inconclusive and

contradictory. As to the issue of the immunities and privileges, it relied

entirely on the explanations provided by the head of the consular

department at the MFA.

27. According to the applicant, he was placed in a metal cage during the

court proceedings.

28. The applicant appealed against his conviction. He maintained,

among other points, that the search of the consular offices had been

unlawful. In this connection he alleged that he had not been notified of his

right to invite attesting witnesses to attend the search; and that the search

had been conducted in violation of Article 328 § 3 of the Code of Criminal

Procedure (see paragraph 37 below), as the police had failed to seek

authorisation from the head of the diplomatic mission of Cote d’Ivoire.

29. By a decision of 19 June 2007 the Tbilisi Court of Appeal, while

upholding the applicant’s conviction, reduced his prison sentence to

seventeen years. Like the trial court, the appeal court dismissed the

applicant’s immunity argument. It concluded in particular, on the basis of

the evidence presented by the MFA, that the applicant, enjoyed no personal

inviolability in his capacity as Honorary Consul and no jurisdictional

immunity of any kind; in connection with the applicant’s additional

argument that he performed the functions of a consular courier, the appeal

court concluded, referring to Article 35 of the Vienna Convention, that at

the moment of his arrest the applicant had not been performing this specific

function. As for the premises, under Article 59 of the Vienna Convention on

Consular Relations, the receiving State was required merely to protect them.

In confirming the applicant’s conviction, the Tbilisi Court of Appeal relied

on the evidence of A.I., the statements of the two police officers who had

conducted the search of the consular offices, the evidence of D.J., who had

been present at the searches, the reports on the search of the consular offices

and the applicant’s apartment, and the relevant video recordings.

30. On 13 July 2007 the applicant lodged an appeal on points of law,

reiterating the arguments he had made in his previous appeal. He claimed

that the relevant video recording of the search of the consular offices

showed clearly that the applicant had not been informed of his right to invite

attesting witnesses and could not accordingly have waived it, and that he

TORTLADZE v. GEORGIA JUDGMENT

had initially been restrained and only then had the search started, which

implied that he could not have intervened with the evidence. He also

reiterated his arguments concerning his immunity, stressing that he was not

only the Honorary Consular General but he was also performing the

functions of consular courier.

31. On 18 February 2008 the Supreme Court of Georgia rejected the

applicant’s appeal on points of law as inadmissible. The court reproduced

the relevant provision of the Code of Criminal Procedure, noting that “the

case [was] not important for the development of the law and coherent

judicial practice; the [contested] decision [did] not differ from the Supreme

Court’s existing practice in such matters, and the appellate court [had] not

committed any major procedural flaws during its examination which could

have significantly affected its outcome.”

32. In view of his poor medical condition the applicant was granted

early release from prison on 21 January 2013.

C. Transfer and holding conditions on court premises

33. On 20 October 2006, during the ongoing trial hearings, the applicant

complained to the Minister of Justice and to the head of the prisons

department about the conditions in which he was transferred to and then

held on the premises of the Tbilisi City Court ahead of his trial. He alleged,

on the basis of his experience on 19 October 2006, that all the defendants

were transferred to the courthouse in the morning at around 10 a.m.,

although they were not being called into court for their respective trials until

between 5 and 7 p.m. in the evening. In the intervening period, around

twenty-five detainees were kept in the same holding cell, measuring

between 5 and 6 sq. m. The cell had no ventilation and no chairs. The

applicant, referring to his medical condition, claimed that this amounted to

inhuman and degrading treatment.

34. According to the minutes of the hearing held in the applicant’s case

on 2 November 2006, this complaint by the applicant was simply included,

without any examination, in the materials of his criminal case. The trial

minutes reveal that at no subsequent point did the applicant reiterate his

grievances concerning the conditions of his transfer and detention in the

so called “holding cell” at the first-instance court.

35. On 15 May 2007 the applicant complained to the Minister of Justice

and the head of the prisons department about the conditions of the so-called

holding cell on the premises of the court of appeal. He alleged that prisoners

had to wait for their respective trials for 8 to 10 hours in a cell which was

located underground; 20 to 35 prisoners were kept in a concrete cell

destined for some 10 people, with no proper ventilation system. Referring to

his own experience on 7 May 2007, he noted that he had been placed in

such a cell for ten hours; as a result, he suffered a stenocardiac attack.

TORTLADZE v. GEORGIA JUDGMENT

Referring to Article 3 of the Convention, he asked the relevant authorities to

take adequate measure to protect his life and health.

RELEVANT LEGAL FRAMEWORK

A. Code of Criminal Procedure of 1998

36. The relevant provisions of the Code of Criminal Procedure, in force

at the material time, read as follows:

Article 13. Inviolability of private life

“1. No one has the right to arbitrarily and unlawfully interfere with the private life of

others. The inviolability of the home or other property ... is guaranteed by law.

2. A search [and/or] seizure ... is only permitted by an order of a judge or court. In

cases of urgent necessity, as provided in law ... a search or seizure may be carried out

in the absence of a court order, although its lawfulness and reasonableness shall be

assessed by a judge within [twenty-four] hours of receiving the relevant documents.

At the same time, the judge shall decide on the admissibility of the evidence obtained

as a result of the procedural measure in question.”

Article 290. Investigative act conducted with judicial authorisation

“...

2. A seizure [and/or] search ... may be carried out without a judicial warrant in

urgent circumstances, on the basis of an order by an inquiry officer,

an investigator or a prosecutor. In such cases the authorities must inform the

competent judge ... within 24 hours, providing him or her with criminal case-

file documents demonstrating the necessity of carrying out the investigative measure

in question. ... the judge shall verify, with the prosecutor present, whether the measure

was carried out in accordance with the law ... and shall (a) decide to legalise it, or (b)

declare it unlawful and order the inadmissibility of the evidence obtained as a result.

3. In urgent circumstances a seizure [and/or] search ... may be carried out without a

judicial warrant before the initiation of criminal proceedings. In such a case an inquiry

body shall issue a reasoned decision („მოტივირებული დადგენილება“). [The

inquiry body] shall immediately inform the prosecutor about the conduct [of an

investigative measure]. After having acquainted himself or herself with the decision of

the inquiry body ordering the investigative measure, the [relevant] reports, and the

factual circumstances, the prosecutor shall apply within 24 hours to a

judge ... providing him or her with documents showing the need to conduct the

investigative measure before the opening of a criminal case. The judge ... with the

participation of the prosecutor, shall verify the lawfulness of the

investigative measure that has been carried out before the initiation of criminal

proceedings. Having examined the prosecutor’s request... the judge shall (a) decide to

legalise the investigative measure ... or (b) declare it unlawful, close the criminal

proceedings initiated on the basis of that investigative act and dismiss the evidence

obtained as a result [as unlawful].

4. A case is considered urgent when: there is a real risk of the trace or evidence of a

crime being destroyed or lost, if a person is apprehended in flagrante delicto; if

objects or documents relevant to a case are discovered in the context of another

TORTLADZE v. GEORGIA JUDGMENT

investigative measure (inspection of a crime scene, reconstruction of events,

inspection) or if it is impossible to issue a judicial warrant on account of the absence

of a judge.

...

7. In cases provided for in paragraphs 2 and 3 of the current Article, no verbatim

record of the hearing shall be drawn up, and no appeal lies against

the judge’s decision.”

37. Article 328 described the procedure for searches and seizures on the

premises of diplomatic missions. It stipulated, inter alia, that a search or

seizure on the premises of diplomatic missions, or on premises where a

person with diplomatic immunity and his or her family member lived, could

only be conducted at the request or with the consent of the head of the

relevant diplomatic mission.

B. Vienna Convention on Consular Relations of 24 April 1963

38. The 1963 Vienna Convention on Consular Relation, which Georgia

joined by accession on 21 July 1993, is the foundation of the institution of

honorary consular. The Convention divides consular officers into two

categories, career and honorary consular officers (Article 1 § 2). Chapter III

of the Vienna Convention contains provisions relating to the honorary

consular and consular offices headed by them. The relevant provisions of

the Vienna Convention read as follows:

Article 1. Definitions

“1. For the purposes of the present Convention, the following expressions shall have

the meanings hereunder assigned to them:

...

(d) ‘consular officer’ means any person, including the head of a consular post,

entrusted in that capacity with the exercise of consular functions; ...

(j) ‘consular premises’ means the buildings or parts of buildings and the land

ancillary thereto, irrespective of ownership, used exclusively for the purposes of the

consular post;

2. Consular officers are of two categories, namely career consular officers and

honorary consular officers. The provisions of Chapter II of the present Convention

apply to consular posts headed by career consular officers; the provisions of Chapter

III govern consular posts headed by honorary consular officers.

3. The particular status of members of the consular posts who are nationals or

permanent residents of the receiving State is governed by Article 71 of the present

Convention.”

Chapter II

Article 31. Inviolability of the consular premises

“1. Consular premises shall be inviolable to the extent provided in this Article.

TORTLADZE v. GEORGIA JUDGMENT

2. The authorities of the receiving State shall not enter that part of the consular

premises which is used exclusively for the purpose of the work of the consular post

except with the consent of the head of the consular post or of his designee or of the

head of the diplomatic mission of the sending State. The consent of the head of the

consular post may, however, be assumed in case of fire or other disaster requiring

prompt protective action.

...”

Article 35. Freedom of communication

“...

5. The consular courier shall be provided with an official document indicating his

status and the number of packages constituting the consular bag. Except with the

consent of the receiving State he shall be neither a national of the receiving State, nor,

unless he is a national of the sending State, a permanent resident of the receiving

State. In the performance of his functions he shall be protected by the receiving State.

He shall enjoy personal inviolability and shall not be liable to any form of arrest or

detention.

6. The sending State, its diplomatic missions and its consular posts may designate

consular couriers ad hoc. In such cases the provisions of paragraph 5 of this Article

shall also apply except that the immunities therein mentioned shall cease to apply

when such a courier has delivered to the consignee the consular bag in his charge.”

Chapter III

Regime Relating to Honorary Consular Officers

and Consular Posts Headed by Such Officers

39. Chapter III of the Vienna Convention on Consular Relations

provides for the regime relating to honorary consular officers and consular

posts headed by such officers. According to Article 58 (“General provisions

relating to facilities, privileges and immunities), Article 31 (Inviolability of

the consular premises) does not apply to facilities headed by honorary

consular officers. The most relevant provisions related to honorary consular

officers read as follows:

Article 59. Protection of the consular premises

“The receiving State shall take such steps as may be necessary to protect the

consular premises of a consular post headed by an honorary consular officer against

any intrusion or damage and to prevent any disturbance of the peace of the consular

post or impairment of its dignity.”

Article 63. Criminal proceedings

“If criminal proceedings are instituted against an honorary consular officer, he must

appear before the competent authorities. Nevertheless, the proceedings shall be

conducted with the respect due to him by reason of his official position and, except

when he is under arrest or detention, in a manner which will hamper the exercise of

consular functions as little as possible. When it has become necessary to detain an

TORTLADZE v. GEORGIA JUDGMENT

honorary consular officer, the proceedings against him shall be instituted with the

minimum of delay.”

Article 64. Protection of Honorary Consular Officers

“The receiving State is under a duty to accord to an honorary consular officer such

protection as may be required by reason of his official position.”

Article 71. Nationals or permanent residents of the receiving State

“1. Except in so far as additional facilities, privileges and immunities may be

granted by the receiving State, consular officers who are nationals of or permanently

resident in the receiving State shall enjoy only immunity from jurisdiction and

personal inviolability in respect of official acts performed in the exercise of their

functions, and the privilege provided in paragraph 3 of Article 44. So far as these

consular officers are concerned, the receiving State shall likewise be bound by the

obligation laid down in Article 42. If criminal proceedings are instituted against such

a consular officer, the proceedings shall, except when he is under arrest or detention,

be conducted in a manner which will hamper the exercise of consular functions as

little as possible.”

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION

40. The applicant complained about the conditions of his transfer and

wait on the premises of the trial court, and about his being placed in a metal

cage during the trial proceedings. He relied on Article 3 of the Convention,

which reads as follows:

“No one shall be subjected to torture or to inhuman or degrading treatment or

punishment.”

A. Admissibility

1. The parties’ submissions

41. As to the first limb of the applicant’s complaint under Article 3, the

Government submitted that the applicant’s complaint regarding the

conditions in which he was transferred and then required to wait on the

premises of the trial court was inadmissible as out of time. They noted that

the only time the applicant had voiced the respective allegations was in his

complaint of 20 October 2006 (see paragraph 33 above). The complaint had

been included in the applicant’s case file on 2 November 2006 but no

decision on its substance had ever been taken by the trial court (see

paragraph 34). In the Government’s view, in the absence of a follow-up

complaint by the applicant, had he believed that there was no other effective

remedy at his disposal to challenge the conditions of his transfer and

detention in the court holding cell, the applicant was expected to file his

TORTLADZE v. GEORGIA JUDGMENT

application with the Court by 2 May 2007 at the latest, and not on

14 August 2008 as he had done. They stressed in this connection that the

applicant’s complaint of 15 May 2007 concerned exclusively the conditions

of his transfer to and subsequent detention on the premises of the appeal

court, and not the circumstances of his appearance before the trial court.

42. In the alternative, the Government submitted that the relevant part of

the applicant’s complaint under Article 3 of the Convention amounted to an

abuse of the right of application, for the following reason: in the sole

domestic complaint, and in the proceedings before the Court, the applicant

referred to 19 October 2006 as the date on which he had been transferred to

the trial court and kept there in inhuman and degrading conditions.

However, with reference to the relevant trial court minutes, the Government

submitted that the applicant had never been transferred on 19 October 2006

to the premises of the trial court. They claimed that by providing inaccurate

information the applicant had intended to mislead the Court and the relevant

complaint was accordingly inadmissible under Article 35 § 3 (a) of the

Convention.

43. As to the second limb of the applicant’s complaint under Article 3 of

the Convention, namely his placement in a metal cage during the hearings,

the Government submitted that the applicant had failed to comply with the

six-month rule. They noted that this complaint by the applicant concerned

only the period of the trial court proceedings, which ended with his

conviction on 20 November 2006. At no point did the applicant voice his

allegations before the court of appeal or the Supreme Court. His complaint

was thus inadmissible in accordance with Article 35 § 1 of the Convention.

44. The applicant did not comment on the Government’s inadmissibility

arguments.

2. The Court’s assessment

45. Starting with the first limb of the applicant’s complaint about the

conditions of his transfer and detention on the trial court premises, the Court

notes the following: it has received no information from the applicant about

how many times he was transferred to the trial court and whether the

conditions of his transfer and detention were always identical. In his initial

submissions the applicant used rather abstract and impersonal language and

submitted a copy of a single domestic complaint in support of his

allegations. In his subsequent observations, although he was represented by

a lawyer and under a duty to provide an elaborate and reasonably detailed

account of the alleged events (see Ananyev and Others v. Russia,

nos. 42525/07 and 60800/08, § 122, 10 January 2012), the applicant simply

omitted his relevant complaint under Article 3 of the Convention. Hence, he

failed to rebut the Government’s submission that he had not in fact been

transferred to the Tbilisi City Court on 19 October 2006 and that his

complaint was thus inaccurate. In such circumstances, in the absence of

TORTLADZE v. GEORGIA JUDGMENT

pertinent information and details, the Court is unable to address the

applicant’s complaint (see Krasnyuk v. Ukraine [Committee], no. 66217/10,

§§ 105-106, 17 December 2019). Accordingly, this part of the application is

manifestly ill-founded and must be rejected in accordance with Article 35

§§ 3 (a) and 4 of the Convention.

46. As to the second limb of the applicant’s complaint under Article 3 of

the Convention, the Court notes that the applicant’s relevant complaint, as

raised in his application form with the Court lodged on 14 August 2008,

concerned his confinement in a metal cage during the trial proceedings only.

This round of proceedings ended with the applicant’s conviction on

20 November 2006. The applicant did not raise his complaint before any

domestic authority. In the event that there were no effective domestic

remedies which could have been exhausted, he ought to have lodged his

application with the Court no later than six months from the cessation of the

situation complained of. By failing to do so he failed to comply with the

six-month rule and his complaint is accordingly inadmissible in accordance

with Article 35 §§ 1 and 4 of the Convention (see Svinarenko and Slyadnev

Russia [GC], nos. 32541/08 and 43441/08, §§ 86-87, ECHR 2014

(extracts).

II. ALLEGED VIOLATION OF ARTICLE 6 § 1 AND ARTICLE 8 § 1

OF THE CONVENTION

47. The applicant complained about the unlawfulness and lack of

justification for a search conducted on the consular premises where he had

been serving as Honorary Consular General, and about the reliance of the

domestic courts on the evidence obtained as a result of that search. He

further complained of a violation of his right of access to a court in view of

the refusal of the Supreme Court to consider his appeal on points of law on

the merits. The applicant relied on Article 6 § 1 and Article 8 § 1 of the

Convention, which in their relevant parts read as follows:

Article 6 § 1

“In the determination of ... any criminal charge against him, everyone is entitled to a

fair ... hearing ... by [a] ... tribunal ...”

Article 8

“1. Everyone has the right to respect for his private and family life, his home and his

correspondence.

2. There shall be no interference by a public authority with the exercise of this right

except such as is in accordance with the law and is necessary in a democratic society

in the interests of national security, public safety or the economic well-being of the

country, for the prevention of disorder or crime, for the protection of health or morals,

or for the protection of the rights and freedoms of others.”

TORTLADZE v. GEORGIA JUDGMENT

A. Admissibility

48. The parties did not comment on the admissibility of these

complaints. The Court notes that these complaints are not manifestly

ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It

further notes that they are not inadmissible on any other grounds. They must

therefore be declared admissible.

B. Merits

1. The parties’ submissions

49. The applicant maintained that the criminal proceedings against him

had been unfair. He alleged that his argument relying on his personal

immunity and the inviolability of the consular premises had not been

properly addressed by the domestic courts, and that the related problem of

the unlawfulness of the search of the consular premises had also been left

unanswered. In this connection, he contested the Supreme Court’s rejection

of his appeal on points of law without an examination on the merits, arguing

that his case was unprecedented, there being no previous case before the

cassation instance involving an issue of diplomatic immunity.

50. As far as the search was concerned, the applicant maintained that the

search of the consular premises had constituted an interference with his

right to respect for private life, which had not been prescribed by law and

had not been necessary in a democratic society. In particular, according to

the applicant, the search had been carried out in the absence of a judicial

warrant, contrary to the requirements of domestic law and in breach of the

international-law principles concerning consular immunity.

51. The Government, for their part, submitted that the search of the

consular premises had been conducted in full compliance with the national

legislation. With regard to the issue of the applicant’s status, they claimed

that the applicant himself had been inconsistent in his submissions before

the national courts and the Court, claiming one day that he was performing

the functions of a diplomatic courier and another day that he was a consular

courier. With reference to the relevant provisions of the Vienna Convention

on Consular Relations, and relying on the official position of the MFA, the

Government dismissed the applicant’s claims regarding his status and

related immunity as groundless. As to the consular offices, the Government

noted that the relevant premises were at the disposal of the Honorary Consul

as opposed to a career consul and thus did not qualify for the protection of

consular premises within the meaning of Article 31 § 2 of the Vienna

Convention on Consular Relations. The relevant authorities had verified the

status of the premises before conducting the search with the MFA; and they

had also organised for a representative of the MFA to attend the search. The

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Government thus stressed that all adequate and appropriate safeguards had

been put in place.

52. As to the reliance by the domestic courts on the evidence obtained as

a result of the contested search, the Government maintained that firstly, the

applicant had had ample opportunities to challenge the evidence,

particularly throughout his trial. By granting all of his relevant requests, the

domestic courts had enabled him to challenge the unlawfulness of the search

in an efficient way. Their reasoned decisions were based on the analysis of

the relevant national and international provisions and at no point had the

applicant alleged a breach of his defence rights. Secondly, the Government

noted that, in addition to the evidence obtained as a result of the search, the

applicant’s conviction had been corroborated by other strong and reliable

evidence, including the video recording of the search on the consular

premises, the statement by D.J who had attended the search, and the

evidence given by A.I.

53. As regards the Supreme Court’s decision to reject the applicant’s

appeal on points of law as inadmissible, the Government submitted that, in

view of the national standard as developed in the Supreme Court’s case-law

concerning the admissibility criteria for appeals on points of law and the

relevant standards established by the Court concerning access to the

cassation instance, the applicant should have anticipated this outcome. In

the light of the Court’s relevant case-law (they referred to Perez v. France

[GC], no. 47287/99, § 81, ECHR 2004-I, and Jahnke and Lenoble v. France

(dec.), no. 40490/98, ECHR 2000-IX) the Government submitted that the

reasoning of the Supreme Court as to the admissibility of the applicant’s

appeal was sufficient and adequate.

2. The Court’s assessment

54. In view of the nature of the applicant’s allegations, the Court finds it

appropriate to consider first the applicant’s complaint under Article 8 § 1 of

the Convention.

(a) Article 8 of the Convention

(i) General principles

55. For an interference with an applicant’s “home” or his or her “private

life” to be in compliance with Article 8 it must be “in accordance with the

law”, undertaken in pursuit of a “legitimate aim”, and “necessary in a

democratic society” (see, for example, Paradiso and

Campanelli

Italy [GC], no. 25358/12, § 167, 24 January 2017; Roman Zakharov

Russia [GC], no. 47143/06, § 227, ECHR 2015; Saint-Paul Luxembourg

S.A. v. Luxembourg, no. 26419/10, § 40, 18 April 2013; and Kennedy

v. the United Kingdom, no. 26839/05, § 130, 18 May 2010).

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56. The wording “in accordance with the law” requires the impugned

measure both to have some basis in domestic law and to be compatible with

the rule of law, which is expressly mentioned in the Preamble to the

Convention and inherent in the object and purpose of Article 8. The law

must thus meet quality requirements: it must be accessible to the person

concerned and foreseeable as to its effects (see Roman Zakharov, cited

above, §§ 228-230, with further references).

57. As regards the “legitimate aim” requirement, the aim “to uncover

physical evidence that might be instrumental for [a] criminal investigation

into [a] serious offenc[e]” has consistently been deemed “legitimate” by the

Court since it pursues the interests of public safety and has to do with the

prevention of crime and the protection of the rights of others (see, for

example, K.S. and M.S. v. Germany, no. 33696/11, § 43, 6 October 2016,

and Smirnov v. Russia, no. 71362/01, § 40, 7 June 2007).

58. The notion of “necessity” implies that the interference is

proportionate to the legitimate aim pursued (see, among many other

authorities, Camenzind v. Switzerland, 16 December 1997, § 44, Reports

1997-VIII). Regarding, in particular, searches and seizures or similar

measures (essentially in the context of obtaining physical evidence of

certain offences), the Court will assess whether the reasons adduced to

justify such measures were relevant and sufficient and whether the

aforementioned proportionality principle has been adhered to (see, for

example, Camenzind, cited above, § 45, with further references; see also

K.S. and M.S., v. Germany, cited above, § 43). Concerning the latter point,

the Court must first ensure that the relevant legislation and practice afford

individuals adequate and effective safeguards against abuse;

notwithstanding the margin of appreciation which the Court recognises the

Contracting States have in this sphere, it must be particularly vigilant where

the authorities are empowered under national law to order and effect

searches without a judicial warrant (see also Gutsanovi v.

Bulgaria,

no. 34529/10, § 220, ECHR 2013 (extracts)). Secondly, it must consider the

specific circumstances of each case, including but not limited to the severity

of the offence in question, the manner and circumstances in which the

search warrant was issued, the availability of other evidence at the time, the

content and scope of the warrant in question, and the extent of possible

repercussions on the reputation of the person affected by the search

(see, among many other authorities, Smirnov, § 44; Camenzind, §§ 45-46;

and K.S. and M.S. v. Germany, § 44, all cited above; see also Misan v

Russia, no. 4261/04, § 55, 2 October 2014, and Buck v. Germany,

no. 41604/98, § 45, ECHR 2005-IV).

TORTLADZE v. GEORGIA JUDGMENT

(ii) Application of the above principles to the circumstances of the present case

(1) Whether there was an interference

59. It is common ground between the parties that the search of the

consular premises constituted an interference with the applicant’s rights

under Article 8 of the Convention. The Court sees no reason to hold

otherwise (see, among many other authorities, Modestou v. Greece,

no. 51693/13, § 29, 16 March 2017; Saint-Paul Luxembourg S.A., cited

above, §§ 37 and 39; Wieser and Bicos Beteiligungen GmbH v. Austria,

no. 74336/01, § 43, ECHR 2007-IV; and Panteleyenko v

Ukraine,

no. 11901/02, § 47, 29 June 2006). The question therefore remains whether

this interference was justified under Article 8 § 2 of the Convention.

(2) Whether the interference was justified

60. As to whether the interference was in accordance with law, the Court

notes that the search was conducted in the context of a criminal

investigation opened following allegations of possession and sale of

unlawful drugs. The “search in urgent circumstances” was regulated by

Articles 13 and 290 §§ 2 and 4 of the CCP as in force at the material time

(see paragraph 36 above). It follows that it had a basis in the relevant

domestic law. As to the applicant’s argument that the search had breached

Article 328 of the CCP in as much as it had been conducted without the

consent of the head of a diplomatic mission, the Court observes that, as

noted by the domestic courts, that provision explicitly stated that it

regulated the procedure for searches on the premises of diplomatic missions

and, therefore, did not concern the applicant’s case (see paragraph 37

above).

61. As to the compatibility of the search with the requirements of the

Vienna Convention on Consular Relations, the Court notes that the domestic

courts carefully examined the relevant principles of international law as far

as the issue of the consular immunity was concerned and answered the

applicant’s arguments in a reasoned manner (see paragraphs 26 and 29

above). It refers in this connection to the preparatory works (travaux

préparatoires) of the Vienna Convention on Consular Relations, according

to which the two categories of consular officials, namely career consular

officials and honorary consular officials, have a different legal status so far

as consular privileges and immunities are concerned. The honorary consuls

who are nationals of the receiving State, according to the preparatory works,

do not enjoy any consular immunities other than immunity from jurisdiction

in respect of official acts performed in the exercise of their functions. As to

the premises of a consulate headed by an honorary consul, it should be

noted that while the text of the preliminary draft Convention provided for

the inviolability of such premises if they were exclusively used for the

TORTLADZE v. GEORGIA JUDGMENT

exercise of consular functions, the relevant provision was eventually

removed from the draft.

62. In the light of the above extracts from the preparatory works and in

view of the relevant Articles of the Vienna Convention on Consular

Relations, notably Articles 31, 58, 59 and 71 (see paragraphs 38 and 39

above) the Court finds that the domestic courts’ conclusions related to the

international law principles on consular immunity were substantiated and

reasonable.

63. There is no doubt that the search served a legitimate aim, namely to

prevent crime and protect the rights of others (see Modestou, § 39, K.S. and

M.S. v. Germany, § 36, Gerashchenko, § 128, and Smirnov, § 40, all cited

above). It remains to be examined whether the interference was “necessary

in a democratic society”. In this connection the Court will focus on the

allegations of the applicant of insufficient protection from arbitrariness and

lack of adequate safeguards.

64. Starting with the decision to conduct a search, in the current case the

search was conducted in the absence of a prior judicial warrant, on the basis

of a decision issued by the head of the relevant police department on

25 August 2005. That decision did not refer to any relevant facts and was

not drawn up in precise terms. There was no reference whatsoever to the

items, for example drugs, being looked for; no information was provided

about a possible link between the case under investigation and the consular

premises (compare Modestou, cited above, § 46). In addition, the decision

did not set out the pressing circumstances which allegedly necessitated an

urgent search without a prior judicial warrant (see in this respect Article 290

§ 3 of the CCP as cited in paragraph 36 above). In the Court’s view, the

absence of a judicial warrant in the current case remains particularly

problematic. It is noteworthy that the relevant investigative authorities

considered it appropriate to make inquiries about the status of the consular

premises with the MFA on the day prior to the search (see paragraph 7

above). Over the same period, however, they failed, for reasons which

remain unclear, to seek a judicial warrant for the search. In the Court’s

view, the Government failed, in the circumstances of the current case, to

justify the recourse to urgent procedure (compare Dragoş Ioan Rusu

v. Romania, no. 22767/08, § 41, 31 October 2017).

65. At the same time, the Court cannot overlook the fact that the search

was accompanied by a number of procedural safeguards. Thus, the police

officers were accompanied by a representative of the MFA, who was

allowed to be present throughout the investigative measure. It was recorded

on a video, which was shown in court; and the applicant was present

throughout the search. Also, at no point did the applicant argue that any

other items, particularly those related to his work, had been seized during

the search (contrast Smirnov, cited above, § 48).

TORTLADZE v. GEORGIA JUDGMENT

66. As to the issue of judicial scrutiny, the Court notes that the absence

of a prior judicial warrant for a search may be counterbalanced by the

availability of an ex post factum judicial review (see Heino v. Finland,

no. 56720/09, § 45, 15 February 2011). This review must, however, be

effective in the particular circumstances of the case in question (see

Smirnov, cited above, § 45 in fine). In the present case, the ex post factum

judicial review was conducted promptly, on 26 August 2005 (see

paragraph 14 above). However, the Court notes that it has already found in

its judgments against Georgia, albeit in the context of the examination of the

fairness of criminal proceedings under Article 6 of the Convention, that

post-search judicial reviews are not adequate and sufficient for the purposes

of establishing the circumstances of a search (see Kobiashvili v. Georgia,

no. 36416/06, §§ 67-69, 14 March 2019, and Megrelishvili v. Georgia

[Committee], no. 30364/09, § 35, 7 May 2020). The Court considers that a

similar conclusion is warranted under Article 8 of the Convention in this

case. Thus, the domestic court did not elaborate in its decision on the issue

of the necessity of a search in urgent circumstances (see Stoyanov and

Others v. Bulgaria, no. 55388/10, § 130, 31 March 2016). Nor did it

examine whether the measure had been “necessary in a democratic society”

and whether it had been proportionate (see paragraph 15 above; compare

with Doroż v. Poland, no. 71205/11, § 28, 29 October 2020; see also,

mutatis mutandis, Hambardzumyan v. Armenia, no. 43478/11, § 46,

5 December 2019, and Zubkov and Others v. Russia, nos. 29431/05 and

2 others, §§ 97-98, 7 November 2017). It seems that the domestic court was

required to do so, as Article 13 § 2 of the CCP explicitly provided for the

assessment of the lawfulness and reasonableness of a search and seizure

carried out in the absence of a judicial order (see Article 13 § 2 of the CCP

as cited in paragraph 36 above; contrast Ivashchenko v. Russia,

no. 61064/10, § 89, 13 February 2018).

67. The applicant challenged the lawfulness of the search and the

justification for it in the course of the criminal trial conducted against him.

The Court notes that, while as argued by the Government, the domestic

courts did indeed review the lawfulness of the search, they did not consider

the issue of the justification for such an intrusion and its proportionality.

68. In view of all the foregoing, particularly having regard to the defects

of the “urgent procedure” identified above and the absence of adequate and

efficient judicial scrutiny of the interference in the present case, the Court

considers that the search of the consular premises was not attended by

appropriate and sufficient safeguards. There has accordingly been a

violation of Article 8 § 1 of the Convention.

TORTLADZE v. GEORGIA JUDGMENT

(b) Article 6 § 1 of the Convention

(i) General principles

69. The relevant general principles as far as the fairness of proceedings

is concerned in relation to the use of evidence obtained in violation of

Article 8 of the Convention were summarised by the Court in the case of

Bykov v. Russia ([GC], no. 4378/02, §§ 88-93, 10 March 2009). In

particular, in determining whether the proceedings as a whole were fair,

regard must also be had to whether the rights of the defence were respected.

It must be examined, in particular, whether the applicant was given the

opportunity of challenging the authenticity of the evidence and of opposing

its use. In addition, the quality of the evidence must be taken into

consideration, including whether the circumstances in which it was obtained

cast doubt on its reliability or accuracy. While no problem of fairness

necessarily arises where the evidence obtained was unsupported by other

material, it may be noted that where the evidence is very strong and there is

no risk of its being unreliable, the need for supporting evidence is

correspondingly weaker (see ibid. § 90; see also Lisica v. Croatia,

no. 20100/06, § 49, 25 February 2010; Gäfgen v. Germany ([GC],

no. 22978/05, § 162-165, ECHR 2010; Prade v. Germany, no. 7215/10,

§ 33-34, 3 March 2016, and Kobiashvili, cited above, §§ 56-58).

70. The general principles on access to a court were recently

summarised by the Court in the case of Zubac v. Croatia ([GC],

no. 40160/12, §§ 76-99, 5 April 2018; see also Chong Coronado

v. Andorra, no. 37368/15, § 32, 23 July 2020).

(ii) Application of the above principles to the circumstances of the present case

71. The Court notes that the applicant’s complaint under Article 6 § 1 of

the Convention was twofold: firstly, that his conviction was unfair because

it was based on evidence obtained as a result of an unlawful search, and

secondly that the Supreme Court had arbitrarily restricted his access to the

cassation instance. The Court will address the two limbs of the applicant’s

complaint separately.

(1) Allegations concerning the unfairness of the trial on account of the

admission and use of evidence obtained in the search of the consular

premises

72. The Court has already found in the particular circumstances of

various cases that the fact that domestic courts had relied on evidence which

had been deemed to have been unlawfully obtained for the purposes of

Article 8 of the Convention did not conflict with the requirements of

fairness enshrined in Article 6 § 1 of the Convention (see, among other

authorities, Bykov, cited above, §§ 94-98; see also Khan v. the United

Kingdom, no. 35394/97, §§ 34-40, ECHR 2000-V; P.G. and J.H.

TORTLADZE v. GEORGIA JUDGMENT

v. the United Kingdom, no. 44787/98, §§ 76-81, ECHR 2001-IX; Valentino

Acatrinei v. Romania, no. 18540/04, §§ 73-77, 25 June 2013; and

Hambardzumyan, cited above, §§ 78-81). As to the present case, the Court

considers, in view of the relevant principles established in Bykov (cited

above, §§ 89-90), that the applicant was able to challenge the lawfulness

and the authenticity of the evidence obtained as a result of the impugned

search in the adversarial procedure before the trial court and the appeal

court. While the post-search judicial review was tainted by inadequacy and

insufficiency (see the relevant reasoning under Article 8 of the Convention

in paragraph 66 above) his arguments about the circumstances of the search

and the reliability of the evidence obtained as a result were addressed by the

courts and dismissed in reasoned decisions in the course of his criminal

trial. It notes in this connection that the applicant made no complaints in

relation to the alleged breach of his defence rights.

73. As to the quality of the evidence, starting with the circumstances of

the search, the Court notes that the search of the consular premises in the

current case was triggered by the incriminating evidence given by A.I. In

addition to his pre-trial confrontation with the applicant, the latter was

examined before the trial and appeal courts, with the participation of the

defence. In this respect the present case is different from previous cases

against Georgia where the Court found that the searches conducted on the

basis of the operational information, which had never been examined by any

of the domestic courts, had been tainted by arbitrariness (see Kobiashvili,

§§ 61-65 and Megrelishvili, § 33, both cited above; and Bakradze

v. Georgia [Committee], no. 21074/09, § 26, 10 December 2020).

Furthermore, the circumstances of the search of the consular premises were

confirmed by a video recording and by the statements of a representative of

the MFA. The Court finds it problematic that the search of the consular

premises was conducted in a manner which precluded subsequent

dactyloscopic examination of the evidence seized. It considers that the

police should have taken adequate precautions in order to prevent possible

contamination of the evidence. Nevertheless, this failure did not, in the

circumstances of the current case, call into question the reliability of the

evidence that the substance seized belonged to the applicant. It is

noteworthy that the applicant admitted to possessing the ampoules of

morphine. Moreover, the drugs were seized from a safe and desk in the

applicant’s office.

74. Lastly, the Court attaches weight to the fact that the substance seized

was not the only evidence on which the applicant’s conviction was based. In

finding the applicant guilty the domestic courts relied on incriminating

evidence given by A.I. The latter reiterated his pre-trial incriminating

evidence before the trial and appeal courts. The applicant’s conviction was

further based on other court-tested evidence, notably, the video recording of

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the search, the statement of a representative of the MFA, and the statements

of the police officers who had conducted the search.

75. In these circumstances, the Court finds that the use of the evidence

obtained in violation of Article 8 of the Convention did not undermine the

overall fairness of the criminal proceedings against the applicant.

76. There has accordingly been no violation of Article 6 § 1 of the

Convention in this respect.

(2) Access to the Supreme Court

77. As regards the applicant’s complaint about the lack of access to the

Supreme Court, the Court recalls that the same issue has already been

examined in the context of the relevant Georgian procedural law and

practice and was found to have been compatible with Article 6 § 1 of the

Convention (see Kadagishvili v. Georgia, no. 12391/06, § 175, 14 May

2020; Kobiashvili, cited above, § 76; Kuparadze v. Georgia, no. 30742/09,

§§ 75-77, 21 September 2017; and Tchaghiashvili v. Georgia (dec.),

no. 19312/07, § 34, 2 September 2014). In the present case, according to the

applicant, this was the first time that the Supreme Court had been seized

with a case dealing with the issue of consular immunity and that it was

therefore important for the cassation court, for the purpose of developing

uniform judicial practice, to admit the case and decide it on the merits. The

Court notes, however, that the applicant had had the benefit of fully

adversarial proceedings on the merits before the first and appellate

instances. In view of the thorough examination of the applicant’s relevant

arguments by the first two instances, the Court considers that the fact that

the applicant’s appeal on points of law was declared inadmissible cannot be

viewed as an unreasonable and disproportionate limitation of the right to

have access to court. Nor does the limited reasoning given by the Supreme

Court in its decision of 18 February 2008 for the rejection of the applicant’s

appeal raise an arguable issue (see, among many other cases, Nersesyan

v. Armenia (dec.), no. 15371/07, §§ 23-24, 19 January 2010; Kukkonen

v. Finland (no. 2), no. 47628/06, § 24, 13 January 2009; Wnuk v. Poland

(dec.), no. 38308/05, 1 September 2009; Marini v. Albania, no. 3738/02, §

106, ECHR 2007-XIV (extracts), and Jaczkó v. Hungary, no. 40109/03,

§ 29, 18 July 2006).

78. In the light of the foregoing, the Court finds that there has been no

violation of Article 6 § 1 of the Convention on account of the refusal by the

Supreme Court to consider the applicant’s case on its merits.

III. APPLICATION OF ARTICLE 41 OF THE CONVENTION

79. Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols

thereto, and if the internal law of the High Contracting Party concerned allows only

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partial reparation to be made, the Court shall, if necessary, afford just satisfaction to

the injured party.”

A. Damage

80. The applicant claimed 100,000 euros (EUR) in respect of

non-pecuniary damage. He submitted that as a result of the Government’s

unlawful actions his medical condition had deteriorated in prison and that he

had not been provided with adequate medical treatment in this respect. The

applicant did not claim any pecuniary damages.

81. The Government submitted that the applicant’s claims in respect of

non-pecuniary damage were either unsubstantiated or highly excessive.

They stressed that the applicant had claimed non-pecuniary damage

primarily on account of the alleged lack of adequate medical treatment in

prison, an issue which fell outside the scope of the present case.

82. The Court considers that, in the circumstances of the present case,

the finding of a violation of Article 8 constitutes in itself sufficient just

satisfaction for any non-pecuniary damage sustained by the applicant as a

result of that violation.

B. Costs and expenses

83. The applicant also claimed approximately EUR 3,000 (3,500 United

States dollars) for the costs and expenses incurred before the domestic

courts and EUR 20,000 for those incurred before the Court. In support of his

claim he submitted copies of the relevant contracts concluded with two

lawyers for the purposes of the domestic proceedings and with four other

lawyers for the purpose of conducting proceedings before the Court. He

further requested the Court to reimburse various expenses in the amount of

EUR 5,000.

84. The Government submitted that the applicant’s purported legal costs

and expenses were not duly substantiated, as the applicant had failed to

submit to the Court the required financial and other documents.

85. According to the Court’s case-law, an applicant is entitled to the

reimbursement of costs and expenses only in so far as it has been shown

that these were actually and necessarily incurred and are reasonable as to

quantum (see Merabishvili v. Georgia [GC], no. 72508/13, §§ 370-372,

28 November 2017). In the present case, regard being had to the documents

in its possession and the above criteria, the Court rejects the claim for costs

and expenses in the domestic proceedings and considers it reasonable to

award the sum of EUR 2,000 for the proceedings before the Court, plus any

tax that may be chargeable to the applicant. It also dismisses as

unsubstantiated the applicant’s claim in relation to other expenses.

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C. Default interest

86. The Court considers it appropriate that the default interest rate

should be based on the marginal lending rate of the European Central Bank,

to which should be added three percentage points.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the complaints under Article 6 § 1 and Article 8 § 1 of the

Convention admissible and the remainder of the application

inadmissible;

2. Holds that there has been a violation of Article 8 § 1 of the Convention;

3. Holds that there has been no violation of Article 6 § 1 of the Convention

on account of the alleged unfairness of the proceedings;

4. Holds that there has been no violation of Article 6 § 1 of the Convention

on account of the lack of access to the Supreme Court;

5. Holds

(a) that the respondent State is to pay the applicant, within three months

from the date on which the judgment becomes final in accordance

with Article 44 § 2 of the Convention, EUR 2,000 (two thousand

euros), to be converted into the currency of the respondent State at

the rate applicable at the date of settlement, plus any tax that may be

chargeable to the applicant, in respect of costs and expenses;

(b) that from the expiry of the above-mentioned three months until

settlement simple interest shall be payable on the above amount at a

rate equal to the marginal lending rate of the European Central Bank

during the default period plus three percentage points;

6. Dismisses, the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 March 2021, pursuant to

Rule 77 §§ 2 and 3 of the Rules of Court.

Victor Soloveytchik Síofra O’Leary

Registrar President