European Human Rights Court, Kartvelishvili v. Georgia, June 7, 2018, applic. n° 17716/08
|27 septembre 2018||Posté par Martine Evans sous Editorial||
Criminal evidence of disciplinary acts and calling of witnesses under article 6
EHRCt, Kartvelishvili v. Georgia. June 7, 2018, applic. n° 17716/08
The Kartvelishvili case is, of course, of primary interest to Georgia; however, it is full of lessons for France, which is not immune to a similar conviction. The casne is situated between prison discipline and criminal law.
A pocket knife is found in a cell. It fell from a mattress – which one being crucially undetermined – in a cell occupied by seven inmates. While in France, an incident such as this would only have been sanctioned on a disciplinary level, in this case, it is sanctioned criminally; with a very serious sentence at that. In France, only – depending on local agreements between the prison services and the public prosecutor’s office –some cases of violence, drug trafficking or possession or the discovery of mobile phones are referred to the prosecutor’s office. Moreover, in such cases France punishes prisoners both via a disciplinary and a criminal procedure; prisoners are thus subjected to two sanctions, one disciplinary, one criminal.
Importantly, in the case of both France and Georgia, the procedure is initiated in the context of the application of prison law: a cell search is carried out; a prison ‘report’ is drawn up and a prison ‘seizure’ (perquisition) is carried out. When a deferral is carried out, the crucial question is, therefore, whether the quality of the proceedings and evidence is equal to what is normally required in criminal matters under Article 6 of the European Human Rights Convention (EHRC). The European Human Rights Court (EHRCt) has adopted a policy that is, to say the least, hesitant and often illogical (Céré, 2017), to determine the borderline between what is criminal and what is disciplinary in the strict sense; only criminal matters being, it is true, covered by Article 6.
This criterion of criminal matters is usually assessed in the light of the nature of the sanction. The nature of the fault is often overlooked in the debate: the possession of a knife in a cell may well constitute a criminal offence; however, if treated solely from a disciplinary perspective, it illogically and somehow magically seems to become, according to the French legal system, a non-criminal « matter ».
Equally absent from these debates, even though Article 6 provides a set of procedural standards, are procedural issues. In France, if, in cases such as in Kartvelishvili, the sanction is criminal, the procedure (notably the ‘investigation’) which leads up to the case being deferred to the prosecutor’s office, is penitentiary. Legal convolutions which claim to distinguish between disciplinary and criminal law and infer that if Mr. X is only prosecuted before the disciplinary commission for a penknife, he is not entitled to a fair trial, but if he is prosecuted before the criminal court, he is entitled to one, are patently unconvincing.
In Kartvelishvili, a cell search was the basis of the procedure. If the procedure is criminal, then such a search should be called a criminal search and should, therefore, benefit from procedural safeguards, including the presence of the person concerned (the inmate) or witnesses and a secure seizure regime. In France as in Georgia, on the rather fudgy pretext that the issue is solely disciplinary in nature, these guarantees are not present (note that this illogically been validated by both highest courts, i.e. the French Council of State and the Court of Cassation (EC. 18 February 2015, n° 375765; Crime, 16 September 2009; but see also Trib. correc. de Caen, 17 September 2015). In the present case, in particular, the search was carried out in the absence of the prisoner. It should be noted, however, that the operation was filmed, a guarantee not present in French cell searches. Unfortunately, in Kartvelishvili, the video in question did not reveal where the disputed pocket knife had fallen from.
As it was analysed by the EHRCt, the case mainly concerned the calling of witnesses. The EHRCt does confirm prior rulings and states that questions of evidence admissibility are primarily a matter of national law. However, the Court also sets four conditions (§61) for the exercise of this discretion (also see Polyakov v. Russia, no. 77018/01, §§ 34-35, 29 January 2009, and Poropat v. Slovenia, no. 21668/12, § 42, 9 May 2017). If these conditions are met, then the court ‘must provide sufficient and relevant reasons for dismissing such an application’ (§61)
The four conditions are that:
- The application is not vexatious
- The application is sufficiently reasoned
- The application is relevant to the subject matter
- One can argue that it would have strengthened the position of the defence or even led to the defendant’s acquittal
In the Kartvelishvili case, the Court considers that the prisoner’s request met each of these conditions, while the Georgian State had not provided the desired motivation. Therefore, there was a breach of article 6.
Admittedly, in the present case, the sanction was of a criminal nature. However, the procedure leading to this sanction was of a prison and disciplinary nature. In France, when criminal proceedings are initiated in addition to disciplinary proceedings for a unique offence (eg drug or cell phone smuggling) criminal courts are heavily dependent on disciplinary proceedings that have established (sic) the facts. It is rare for an investigation in the true sense of the term to be carried out in addition to what has been documented in disciplinary terms.
From this point of view, one can go so far as to say that criminal law and procedures are suspended to prison law and procedures outcomes (see H-Evans, 2018).
What follows the Kartvelishvili ruilng, however, is that, where disciplinary misconduct, especially if it is otherwise of a criminal nature, is prosecuted internally within the institution, the four conditions formulated by the Court and the required characteristics of the authorities’ motivation must also apply.