European Court of Human Rights
You are here:
BAILII >>
Databases >>
European Court of Human Rights >>
PATSURIA v. GEORGIA - 30779/04 [2007] ECHR 893 (6 November 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/893.html
Cite as:
[2007] ECHR 893
[
New search]
[
Contents list]
[
Printable RTF version]
[
Help]
SECOND
SECTION
CASE OF
PATSURIA v. GEORGIA
(Application
no. 30779/04)
JUDGMENT
STRASBOURG
6
November 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Patsuria v. Georgia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Mrs F. Tulkens, President,
Mr A.B.
Baka,
Mr I. Cabral Barreto,
Mr M. Ugrekhelidze,
Mr V.
Zagrebelsky,
Mrs A. Mularoni,
Mr D. Popović,
judges,
and
Mrs S. Dollé, Section Registrar,
Having
deliberated in private on 10 July and 2 October 2007,
Delivers
the following judgment, which was adopted on that last mentioned
date:
PROCEDURE
The
case originated in an application (no. 30779/04) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Gia Patsuria, a Georgian national,
on 20 July 2004. The applicant was represented by Ms E. Beselia
(“the first representative”), Ms M. Kobakhidze
(“the second representative”) and Ms M. Gioshvili
(“the third representative”), lawyers practising in
Tbilisi
The
Georgian Government (“the Government”) were represented
by their Agent, Mr M. Kekenadze of the Ministry of Justice.
On
3 July 2006 the Court decided to give notice to the Government of the
applicant’s complaints under Article 5 §§ 1 and 3 of
the Convention concerning the alleged unlawfulness and
unreasonableness of his detention on remand. Under the provisions of
Article 29 § 3 of the Convention, it decided to examine the
merits of the application at the same time as its admissibility.
The
Government and the applicant each filed observations on admissibility
and merits (Rule 54A of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1961 and is currently detained in Rustavi No. 1
Prison.
1. First set of proceedings
Under a contract of 18 January 2001, the Ministry of
State Property Management (“the Ministry”) undertook to
transfer to the applicant 90 % of the shares of the “Georgian
State Insurance JSC” (“the company”), on condition
that he, amongst other obligations, increased the company’s
initial capital to 480,000 Georgian laris (EUR 218,000)
within a month of signing the contract.
On 14 March and 7 May 2001, the Ministry requested an
up-date of the progress made in the performance of the contractual
obligations. The applicant replied by submitting documents, according
to which the amount of USD 250,000 (EUR 207,000), initially
placed with a Canadian bank, had been transferred to the company’s
account opened with a Georgian bank.
Following the recommendation of the Georgian National
Bank (a State agency), the Prosecutor General’s Office
(“the PGO”) examined the applicant’s financial
operations. In a decision of 26 January 2004, a senior prosecutor of
the PGO, having established the authenticity of the bank records
submitted by the applicant, refused, pursuant to Article 28
§ 1 (a) of the Code of Criminal Procedure (“the
CCP”), to institute criminal proceedings for an alleged
falsification of those documents. (The applicant did not submit a
copy of that decision to the Court.)
On 28 April 2004 the Prosecutor General personally
opened a criminal case regarding the misappropriation of 90 % of the
State’s shares by fraud and the falsification of bank
documents, offences envisaged respectively by Articles 180 § 3
(b) and 362 of the Criminal Code (“the CC”). (The
parties did not submit a copy of that decision.)
On 5 May 2004 the applicant was charged and taken into
custody.
Initially, the applicant was placed in a “quarantine
cell” at Tbilisi No. 1 Prison. According to him, the cell was
filthy, dilapidated, infested with vermin, and without ventilation or
natural light. Shortly afterwards, the applicant was transferred to
an ordinary cell in the same prison where there were 24 beds for the
57 inmates held there. The detainees were obliged to take turns to
sleep. The cell was unsanitary and the food putrid.
On 8 May 2004 the Krtsanisi-Mtatsminda District Court
in Tbilisi dismissed the applicant’s request for release,
remanding him in custody for three months. An oral hearing was held.
In its reasoning the court stated:
“the collected evidence...discloses a reasonable
suspicion that the accused has committed the incriminated
offences...The evidence has been gathered in conformity with
procedural norms...Due regard should be had to the fact that the
applicant is charged with serious crimes...The case materials
substantiate the suspicion that he might interfere with the
establishment of the truth...In view of the prospect of a severe
punishment, [he] may abscond...”
In his appeal of 9 May 2004, the applicant complained
that the imposition of detention on remand had been justified solely
by the gravity of the charges and the severity of the sentence. In
his view, the prosecution had not put forward any specific evidence
or arguments supporting any actual risk of him colluding or
absconding. The applicant claimed to have been actively cooperating
with the prosecution authority even prior to his arrest by always
appearing, whenever summoned for interviews, and by producing all the
requested evidence which, in fact, had become the basis of the
criminal case file against him. As another guarantee of his
reliability, the applicant referred to his “good reputation”,
associated with the fact of being a designated trustee of the
Canadian Chamber of Commerce.
The PGO replied that the detention was justified by
the gravity of the charges and a reasonable suspicion that the
applicant could interfere with the establishment of the truth.
However, no concrete arguments or factual circumstances of the
particular case were put forward in this regard.
On 13 May 2004 the Tbilisi Regional Court dismissed
the applicant’s appeal against the remand measure at an oral
hearing. Whilst analysing various pieces of evidence, the court had
regard mostly to whether or not the charges were well-founded.
Concerning the grounds for detention, the court reiterated that,
pursuant to Articles 151 and 159 of the CCP, the gravity of the
offence justified the imposition of the measure. The appellate
hearing was attended by the applicant and his advocates.
On 6 August 2004 the PGO terminated the preliminary
investigation and transferred the case, along with the bill of
indictment, to the trial court.
On
6 December 2004 the Vake-Saburtalo District Court in Tbilisi
committed the applicant for trial under Article 417 § 1 of the
CCP and confirmed the remand in custody. This decision was rendered
in a standard, template form with pre-printed reasoning. The judge
simply added, in the blank spaces, a brief statement of facts, the
name of the accused, the definition of the impugned offence and the
measure of pre-trial restraint. As regards the confirmation of the
latter, the printed standard phrase read as follows:
“The measure of pre-trial restraint –
detention – has been correctly chosen.”
On 11 February 2005 the Vake-Saburtalo District Court
in Tbilisi started the examination of the case on the merits, and on
the 17th convicted the applicant of attempted fraud. The
court sentenced him to three years in prison. The
charge of falsification of bank documents was dropped as time barred.
The verdict was based on a thorough assessment of the criminal case
materials.
On 13 February 2006 the Tbilisi Regional Court
dismissed the applicant’s appeal and upheld the verdict of 17
February 2005 with some merely textual amendments.
On 20 June 2006 the Supreme Court dismissed the
applicant’s cassation appeal. It noted that the circumstances
of the case had been carefully examined by the preliminary and
judicial investigations, that no significant breaches of procedural
law had occurred and that the lower courts had correctly assessed the
facts and the law.
Amongst the complaints made by the applicant before
the appellate and cassation courts, the applicant raised the same
matters as those now put before the Court under Article 6 of the
Convention (see paragraph 83 below).
After his conviction, the applicant was transferred to
Rustavi No. 1 Prison, where the conditions were, according
to him, similar to those in Tbilisi No. 1 Prison.
The applicant alleged that the following incident
occurred during his detention: In the early morning of 30 January
2006, he was awoken by the noise of machine gun fire in Rustavi No. 1
Prison. As it appeared later, the police forces had conducted a
special operation against criminal elements there.
The applicant complained about the conditions in
Rustavi No. 1 Prison and the incident of 30 January 2006 to
several national and international non-governmental organisations,
but never to the prosecution or judicial authorities, according to
the case file. Whilst claiming to have written a letter to the Head
of Rustavi Prison, informing the latter of the poor conditions of his
detention, the applicant did not produce any copy thereof, or
indicate its date.
25. On an unspecified date, the administration of Rustavi No. 1
Prison disciplined the applicant for failing to attend a mandatory
inspection of prisoners, and he was placed in a punishment cell for
three days. However, he has never complained about this to any
competent national authority, considering that such a course of
action would have been ineffective.
2. Second set of proceedings
On
21 September 2006 the Ministry of Justice, the authority in charge of
the penitentiary system, initiated criminal proceedings against the
applicant for using a mobile telephone in Rustavi No. 1 Prison,
in breach of the prison rules.
At
an oral hearing on 22 September 2006 attended by the applicant, the
Tbilisi City Court allowed the prosecutor’s motion and imposed
upon the applicant detention on remand for two months. The court
reasoned that, since the applicant was already detained following his
conviction, it was impossible to apply any other measure of pre-trial
restraint.
On
27 October 2006 the Tbilisi Regional Court, sitting in camera,
dismissed the applicant’s appeal and upheld the order of
22 September 2006.
The
applicant addressed several complaints to the PGO, requesting the
termination of the allegedly unlawful proceedings. He also claimed
that his procedural rights were breached during the investigation.
According
to the case file, the second set of criminal proceedings against the
applicant is still pending before a court of first instance.
II. RELEVANT DOMESTIC LAW AND PRACTICE
31. Constitution
Article 18 § 6
“...the accused cannot be held on remand for more
than nine months.”
32. Code
of Criminal Procedure, as it stood at the material time
Article 28 § 1 - “Grounds for the refusal
to initiate criminal proceedings and for the decision to terminate
the initiated proceedings”
“Criminal proceedings shall not be initiated and
the initiated proceedings shall be terminated, if:
a) The action, envisaged by the criminal law,
does not exist...
m) The inquiry, investigation or prosecution
authority has refused to initiate criminal proceedings or decided to
terminate the proceeding initiated for the same offence...”
Article 140 § 17
“Before the end of the investigation, the parties
have the right to lodge an application with the court which has
imposed a measure of pre-trial restraint ... requesting its annulment
or modification... The parties may exercise this right only when
newly discovered circumstances of a substantial character, which were
not known to the judge at the time of the imposition of the pre-trial
restraint measure, require that the reasonableness of that measure be
reviewed.”
Article 146 § 7
“Charges shall be preferred no later than 48 hours
after the arrested person is brought before an inquiry agency. If,
within the following 24 hours, the court does not decide on the
imposition of detention on remand or another measure of restraint,
the arrested person shall be released immediately.”
Article 151 §§ 1, 2 and
3 - “The basis for and
objectives of the imposition
of a restraint measure”
“A restraint measure shall be
applied to ensure that the accused cannot avoid the preliminary
investigation and trial, that his or her further criminal activity is
prevented, that he or she cannot interfere with the establishment of
the truth in the given criminal case, or that the court’s
verdict is executed.
The application of a restraint
measure is justified if the evidence in the criminal case file
sufficiently substantiates the assumption that it is necessary to
ensure the attainment of the aims mentioned in the first paragraph of
this Article.
The ground for the imposition of
detention on remand can be a substantiated suspicion that the accused
may abscond, interfere with the establishment of the truth in the
criminal case, or if a serious or grave crime has been committed.”
Apart
from detention on remand, Article 152 § 1 envisages
the possibility of using such measures of pre-trial restraint as
police supervision, home arrest, bail or a personal undertaking not
to leave the place of residence.
Article 159 § 3 - “Detention”
“Detention on remand shall be
imposed only with regard to the person who is charged with an
indictable offence carrying [a punishment of ] more than two years in
prison...”
The
Code distinguished between two periods of detention on remand:
detention “pending investigation”, that is whilst the
competent prosecution agency investigated the case, and detention
“pending trial”, whilst the case was tried in court. The
person detained “pending investigation” was referred to
as an “accused”. After the case was sent to a court, that
person would become a “defendant” (Article 44 §§
24 and 25). Although there was no difference in practice between two
periods of detention, the calculation of the time-limits was
different.
Pursuant
to Article 162 §§ 2 and 3, the maximum permitted period of
detention “pending investigation” was nine months. It
started to run from the moment the person was taken into custody and
ended the day when the prosecutor sent the case, along with the bill
of indictment, to the trial court (Article 162 §§ 1 and 2).
The
maximum permitted term of detention “pending trial”,
calculated from the day when the prosecutor forwarded the case to the
competent court until the final cassation verdict, was 48 months if
three instances of jurisdiction were involved, and 30 months if the
case was examined by only two instances (Article 162 §§ 8
and 9).
33. Criminal
Code, as it stood at the material time
Article
12 § 1 classified crimes, according to the terms of imprisonment
which they carried, as minor, serious or grave.
Pursuant
to Article 12 § 3, a premeditated offence carrying 10 years’
imprisonment as a maximum term, or an offence committed by negligence
which carried 5 years’ imprisonment as a minimum term, were
considered to be serious crimes.
Article
180 § 3 (b) stated that fraud, i.e. the misappropriation of
another person’s property by deception, committed with regard
to objects of great value, was punishable by a prison sentence of
between 5 to 10 years.
Article
362 criminalised the fabrication and use of false identity cards,
templates of various formal documents, seals, etc. This offence was
punishable by a prison sentence of up to 3 years.
34. The
Constitutional Court judgment of 29 January 2003 in the case
of “Beriashvili, Jimsherishvili and the Public Defender v.
Parliament”
The
complainants challenged various provisions of Article 162 of the CCP,
differentiating between the period of detention “pending
investigation” and that “pending trial”, for their
compatibility with Article 18 § 6 of the Constitution.
They alleged that the unnecessary distinction between the two types
of detention often resulted in situations where the overall term of
detention exceeded the constitutional time-limit of nine months.
The
Constitutional Court dismissed the complaint, noting that Article 18
§ 6 of the Constitution solely defined the maximum
permitted term of detention “pending investigation”
which, pursuant to Article 162 of the CCP, ended on the day when the
prosecutor sent the case to the competent court for trial:
“The Constitutional Court observes that Article 18
§ 6 of the Constitution determines the term only for the
detention of a suspect or accused person pending investigation,
excluding the detention period of a defendant pending trial...”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
As regards the first set of proceedings,
the applicant alleged violations of Article 5 of the Convention, the
relevant parts of which read as follows:
“1. Everyone has the right to liberty and
security of person. No one shall be deprived of his liberty save in
the following cases and in accordance with a procedure prescribed by
law: ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence...
2. Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be ...
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
A. Admissibility
1. As to the complaints under Article 5 § 1 (c)
(a) Parties’ submissions
The
applicant complained that the overall period of his detention on
remand exceeded the constitutional time-limit of nine months. He
further claimed that his detention was unlawful, in so far as,
pursuant to Article 28 § 1 (m) of the CCP, the
Prosecutor General had no right to initiate criminal proceedings
after the subordinate prosecutor had refused to do so.
The
Government submitted that Article 18 § 6 of the Constitution
defined the maximum term of detention “pending investigation”,
excluding the period of detention “pending trial”. They
referred in this regard to the constitutional judgment of 29 January
2003 (“the constitutional judgment”; paragraph 34 above).
The
applicant disagreed with the Government’s interpretation of
that judgment.
(b) Court’s assessment
The
Court recalls that the provisions of Article 5 require detention to
be “in accordance with a procedure prescribed by law”.
Thus, any decision taken by the domestic courts falling within the
sphere of Article 5 must conform to the procedural and substantive
requirements laid down by a pre existing law (see Assanidze
v. Georgia [GC], no. 71503/01, § 171, ECHR 2004 II).
Although it is in the first place for the national authorities,
notably the courts, to interpret and apply domestic law, under
Article 5 § 1 failure to comply with domestic law
entails a breach of the Convention, and the Court can, and should,
review whether this law has been complied with (ibid.).
The
Court observes that the CCP differentiated, at the material time,
between two periods of detention on remand: detention “pending
investigation” and detention “pending trial”. The
first period began when the person was arrested or detained and ended
on the day when the prosecution authorities finalised the
investigation and sent the criminal case file, along with the bill of
indictment, to the competent court for trial. Such an understanding
of the procedural law was explicitly acknowledged by the
Constitutional Court which, furthermore, clearly stated that the
constitutional time-limit of nine months applied solely to the period
of detention “pending investigation” (see paragraph 34
above). The Court reiterates, in this regard, that it is not its task
to take the place of the Constitutional Court and interpret the
Georgian Constitution or to call into question the Constitutional
Court’s findings (see Apostol v. Georgia, no. 40765/02,
§ 39, ECHR 2006 ...).
Bearing
the above considerations in mind, the Court observes that the
applicant was detained on 5 May 2004 and his case, along with the
bill of indictment, was sent by the PGO to the competent court on 6
August 2004 (see paragraphs 10 and 16 above). Consequently, his
detention “pending investigation”, to which the
constitutional time-limit applied, only lasted three months. The
complaint about the violation of that time-limit is therefore
manifestly ill-founded.
As
to the second limb of the applicant’s complaint under Article 5
§ 1 (c) that the PGO, pursuant to Article 28 § 1
(m) of the CCP, should not have initiated criminal proceedings
against him, the Court recalls that the appropriateness of the
institution of a criminal prosecution usually falls outside the scope
of the Court’s review (see Artner v. Austria, judgment
of 28 August 1992, Series A no. 242 A, § 21). The
present case is no exception.
In
the light of the above, the Court finds that the applicant’s
complaints under Article 5 § 1 (c) are manifestly ill-founded
and must be rejected pursuant to Article 35 §§ 3 and 4 of
the Convention.
2. As to the complaint under Article 5 § 2
The
applicant complained that he had been informed of the charges against
him not upon the initiation of the criminal case but upon his arrest.
The
Court considers that this complaint is manifestly ill-founded, in so
far as, according to the applicant himself, he was told “promptly”
of the reasons for his arrest. The applicant did not complain that
the content of the information conveyed was insufficient (cf.
Shamayev and Others v. Georgia and Russia, no. 36378/02,
§ 413, ECHR 2005 III). Nor did he raise any similar
complaint under Article 6 § 3 (a) of the Convention. The
complaint under Article 5 § 2 must therefore be rejected as
being manifestly ill founded, pursuant to Article 35 §§
3 and 4 of the Convention.
3. As to the complaint under Article 5 § 3
The
applicant complained that his detention on
remand had not been reasonable within the meaning of Article 5
§ 3 of the Convention.
The Court notes that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
4. As to the complaints under Article 5 § 4
(a) Equality of arms
The
applicant claimed that he and his lawyer had not had enough time to
prepare a reply to the prosecutor’s request for the imposition
of detention on remand, as they had only learnt about it at the
hearing on 8 May 2004.
The
Court reiterates that, under Article 5 § 4 of the Convention,
the proceedings bearing on the procedural and substantive conditions
which are essential for the “lawfulness”, in Convention
terms, of the applicant’s deprivation of liberty must be
adversarial and ensure “equality of arms” between the
parties (see, among many others, Brogan and Others v. the
United Kingdom, judgment of 29 November 1988, Series A
no. 145-B, pp. 34-35, § 65; Nikolova v. Bulgaria
[GC], no. 31195/96, § 58, ECHR 1999-II).
However,
the Court notes that it is not always necessary that the procedure
under Article 5 § 4 be attended by the same guarantees as
those afforded by Article 6 of the Convention (see, among many
others, Assenov and Others v. Bulgaria, judgment of 28 October
1998, Reports of Judgments and Decisions 1998-VIII,
p. 3302, § 162; Włoch v. Poland,
no. 27785/95, § 125, ECHR 2000-XI).
The Court observes that, under Georgian criminal
procedural law, detention proceedings were urgent and had to be dealt
with speedily. In order to ensure that decisions were taken
expeditiously under Article 146 § 7 of the CCP, the
prosecutor had to bring the arrested person before a judicial
authority within two days of the arrest. In the subsequent 24 hours,
the competent court had to decide the issue of pre-trial restraint
(see paragraph 32 above).
In
view of this requirement of speed, which is one of the core
principles of Article 5 § 4 of the Convention, the Court
considers that the Krtsanisi-Mtatsminda District Court, examining the
issue of the applicant’s detention on remand on 8 May 2004, was
not obliged to have ensured the exchange of all the parties’
documents, as this would have rendered it impossible to take a
decision within the statutory time-limit of 24 hours (cf. Galuashvili
v. Georgia (dec.), no. 40008/04, 24 October 2006; Yavuz v.
Austria (dec.), no. 32800/96, 18 January 2000). This
consideration was, in any case, palliated by the two-tier system of
detention review: the applicant and his lawyer had another
opportunity, on 13 May 2004, to question on appeal the prosecutor’s
motion in the light of all the relevant circumstances of the case.
Moreover, since the proceedings of 8 and 13 May 2004 both took place
at oral hearings attended by the applicant and his advocates, they
had ample opportunity to have knowledge of and comment on the
prosecutor’s submissions (see, Galuashvili, decision
cited above; Schiesser v. Switzerland, judgment of
4 December 1979, Series A no. 34, p. 13, §§ 30 31).
In these circumstances, the Court does not
find any appearance of a violation of Article 5 § 4 of the
Convention in this respect.
(b) Automatic review
The
applicant challenged the compatibility of Article 140 § 17 of
the CCP with Article 5 § 4 of the Convention, claiming that this
provision did not provide for an automatic review of the lawfulness
of detention.
The
Court recalls that Article 5 § 4 provides for
detained persons to obtain a review by a court of the lawfulness of
their detention not only at the time of the initial deprivation of
liberty but also whenever new issues of lawfulness are capable of
arising, periodically thereafter (see Kolanis v. the United
Kingdom, no. 517/02, § 80, ECHR 2005 ...).
The
Court notes that the CCP, as it stood at the material time, did not
require the authorities to conduct on their own motion reviews of the
lawfulness of detention on remand at regular intervals. However,
pursuant to the disputed Article 140 § 17 of the CCP, the
applicant had the right to request, at any time during his detention
pending investigation, the review of the impugned measure with
reference to any new issue. According to the case file, he did not
make use of that right. Moreover, he has not specified why, in his
particular case, the authorities should have initiated a review of
his detention of their own motion. He did not allege that there had
been factors which had not been taken into account by the original
detention order of 8 May 2004 or which would have warranted the
automatic revision of his detention on remand later (cf. Galuashvili,
decision cited above).
As
to the period of the applicant’s detention pending trial,
that is after his case was transferred to the trial court
on 6 August 2004 and until his conviction at first instance on 17
February 2005, the Court notes that it was not the subject of the
applicant’s complaint. (The applicant had only challenged
Article 140 § 17 of the CCP which was limited to the period
of detention pending investigation.)
57. In the light of the foregoing, the Court
concludes that the applicant’s complaint was more of a
challenge to the domestic criminal procedural law in general.
However, the Convention system does not envisage complaints in
abstracto, but only in relation to the specific application of
such laws to the particular circumstances of an applicant’s
situation (see Brogan and Others, cited above, § 53).
(c) Conclusion
Having
regard to the above considerations, the Court concludes that the
applicant’s complaints under Article 5 § 4 of the
Convention must also be rejected as being manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the
Convention.
B. Merits of the complaint under Article 5 § 3
1. The parties’ submissions
The
Government submitted that, given the complexity of the criminal case
against the applicant, the period of his detention on remand could
not be said to have been unreasonable, as understood by Article 5
§ 3 of the Convention. As to the reasons for his continued
detention on remand, the Government relied on those contained in the
court decisions of 8 May and 13 May 2004 (see paragraphs 12 and
15 above).
The
applicant replied that the domestic courts, when authorising his
detention, solely relied on the gravity of the charges and a
reasonable suspicion that he had committed a crime.
2. The Court’s assessment
The
Court observes that the applicant was taken into custody on 5 May
2004 and convicted at first instance on 17 February 2005. Thus, the
period of his detention for the purposes of Article 5 § 1 (c) of
the Convention is nine months and twelve days (see, amongst many
others, Wemhoff
c. Allemagne, arrêt du 27 juin
1968, série A no 7, p. 23, § 9;
Davtian v. Georgia (dec.), no. 73241/01, 6 September 2005).
Whilst
the length of that detention was not obviously excessive, the Court
recalls that its reasonableness cannot be assessed in abstracto.
It is essentially on the basis of the reasons given in the relevant
decisions of the national judicial authorities and of the arguments
made by the applicant in his or her applications for release that the
Court is called upon to decide whether or not the detention on remand
was justified under Article 5 § 3 of the Convention (see, for
example, Michta v. Poland, no. 13425/02, §§ 45
and 46, 4 May 2006; Labita v. Italy [GC], no. 26772/95, §
152, ECHR 2000-IV; Kudła v. Poland [GC], no. 30210/96,
§ 110, ECHR 2000 XI). Those decisions must contain
“relevant” and “sufficient” reasoning and
address specific features of the given case in order to justify the
deprivation of liberty (see Ječius v. Lithuania,
no. 34578/97, § 93, ECHR 2000 IX). In other
words, any period of detention on remand, whatever its length,
requires appropriate motivation by the competent national authorities
which, moreover, are obliged to display “special diligence”
in the conduct of the proceedings (see Jablonski v. Poland,
no. 33492/96, § 80, 21 December 2000).
In
the case at hand, the applicant’s detention on remand was
ordered, upheld and extended by the court decisions of 8 and 13 May
and 6 December 2004 respectively. Consequently, in order to establish
whether his detention was reasonable, within the meaning of Article 5
§ 3 of the Convention, the Court is called upon to examine the
reasons given in those decisions, as well as the applicant’s
arguments mentioned in his applications for release (see Jablonski,
cited above, § 79).
The
Court observes that the court order of 8 May 2004 justified the
imposition of detention by noting that (a) the case materials
supported a reasonable suspicion that the applicant had committed the
crime, (b) the evidence had been gathered in conformity with law, (c)
the severity of sentence substantiated the risk of absconding, and
(d) the case materials substantiated the risk that the applicant
could hinder the investigation.
With
regard to the first ground, the Court notes that the persistence of a
reasonable suspicion that the person has committed an offence is a
condition sine qua non for the lawfulness of the arrest within
the meaning of Article 5 § 1 (c) of the Convention, but this may
be insufficient for a judicial decision extending detention. A
court decision of that kind would need a more solid basis to show not
only that there was genuinely “a reasonable suspicion”,
but also that there were other serious elements of public interest
which, notwithstanding the presumption of innocence, outweighed the
right to liberty
(see, amongst others, Lavents v. Latvia,
no. 58442/00, § 70, 28 November 2002; I.A. v. France,
judgment of 23 September 1998, Reports 1998-VII, p. 2979,
§ 102; Labita, cited above, § 153),
given that the primary purpose of the second limb of Article 5 §
3 is to require the provisional release of the accused pending trial
(see Garycki v. Poland, no. 14348/02, § 39,
6 February 2007; McKay v. the United Kingdom [GC],
no. 543/03, § 41, ECHR 2006 ...).
It
is true that the order of 8 May 2004 covered a relatively short
period – the first three months of the applicant’s
detention. However, the Court reiterates that the right to
provisional release pending trial is guaranteed by Article 5 § 3
of the Convention notwithstanding the length of the detention in
question. Article 5 § 3 of the Convention cannot be seen as
authorising pre-trial detention unconditionally even if it is short
(see, amongst others, Belchev v. Bulgaria, no. 39270/98, § 82,
8 April 2004).
The
Court recalls that a practice of automatic remands
in custody for three months solely on a statutory presumption
based on the gravity of the charges because of a hypothetical danger
of absconding, re-offending or collusion, is incompatible with
Article 5 § 3 of the Convention (see, amongst others, Nikolov
v. Bulgaria,
no. 38884/97, § 70, 30 January
2003). Consequently, returning to the circumstances of the
present case, the fact that the order of 8 May 2004 covered only the
initial period of the applicant’s detention did not absolve the
national authorities from the obligation to demonstrate convincingly
the justification for such a measure. The Court has no doubt that, in
the particular circumstances of the case, on 8 May 2004, that is
three days after the applicant’s arrest, the presumption should
have been in favour of release (see McKay, cited above, §
41).
The
Court further considers that the second ground in the order of 8 May
2004 – the lawfulness of the collected evidence – is, as
such, irrelevant for establishing the reasonableness of detention.
As
to the risk of absconding, the Court notes that it may be a
legitimate ground for detention. However, it cannot be gauged
solely on the basis of the severity of an eventual sentence and must
be assessed with reference to a number of other relevant factors (see
Letellier v. France, judgment of 26 June 1991, Series A
no. 207, § 43).
The
detention order of 8 May 2004 noted that the severity of the sentence
substantiated per se the risk of absconding. It never assessed
the nature of that risk against the arguments put forward by the
applicant in support of his request for release – his
cooperation with the prosecution, the voluntary submission of
documentation and his appearance for interrogation upon request, his
reliability and good reputation, etc. Nor was the severity of the
sentence examined against any other relevant circumstances of the
case which might either confirm the existence of a danger of
absconding or make it appear so slight that it could not justify
detention on remand (see Khudoyorov v. Russia, no. 6847/02,
§ 181, ECHR 2005 ...(extracts)). Consequently, the
Court finds that the risk of absconding was not sufficiently
substantiated in the present case.
As
to the risk of hampering the establishment of the truth, the Court
notes that it was just bluntly stated, without any relation to the
specific circumstances of the case (see Smirnova v. Russia,
nos. 46133/99 and 48183/99, § 63, ECHR 2003 IX
(extracts); Nikolov, cited above, § 73). Although
that risk may be a relevant element in assessing the reasonableness
of the deprivation of liberty, it cannot be established on the basis
of abstract statements, unsupported by any arguments.
As
regards the appellate decision of 13 May 2004, the Court observes
that it upheld the detention measure solely on the ground of the
gravity of the charges, and did not trouble to examine the existence
of any other possible grounds which might have warranted it. That
decision, like the detention order of 8 May 2004, had no regard to
the individual circumstances of the applicant’s case. Such an
approach was apparently envisaged
by Article 151 § 3 in fine of the CCP but, in the
Court’s view, it cannot be justified under Article 5 § 3
of the Convention (see Rokhlina v. Russia,
no. 54071/00, § 66, 7 April 2005; Panchenko v. Russia,
no. 45100/98, § 102, 8 February 2005). It is also
incompatible with the presumption of innocence, which the domestic
courts must respect when justifying detention under Article 5 §
3 of the Convention (see, amongst others, Lavents,
cited above, § 70), in so far as the detained person might later
be acquitted or, as in the present case, convicted of a lesser
offence (see paragraphs 9 and 18 above).
Furthermore,
comparing the applicant’s arguments with those of the PGO
before the Tbilisi Regional Court on 13 May 2004, the Court observes
that it was the former who was trying to prove, against the
unsubstantiated assumptions of the latter, that there was not even a
hypothetical reason for absconding or collusion. The Court
reiterates, in this regard, that shifting the burden of proof to the
detained person in matters of deprivation of liberty is tantamount to
overturning the rule of Article 5 of the Convention (see Ilijkov
v. Bulgaria, no. 33977/96, §§ 84 and 85, 26 July
2001).
The
Court is particularly concerned by the manner in which the
Vake-Saburtalo District Court, when committing the applicant for
trial, reviewed and extended his detention on remand on 6 December
2004. Instead of showing an even higher degree of “special
diligence” in the face of the detention which had already
lasted more than seven months (see G.K. v. Poland,
no. 38816/97, § 84, 20 January 2004), the District
Court issued a standard, template decision. Rather than fulfilling
its duty to establish convincing grounds justifying the continued
detention (ibid.), it relied on a pre-printed form and its
abstract terms (see paragraph 17 above). The Court finds the decision
of 6 December 2004 to be a particularly serious restriction of the
applicant’s rights guaranteed by Article 5 § 3 of the
Convention.
Finally,
the Court would also emphasise that, under Article 5 § 3,
the authorities, when deciding whether a person should be released or
detained, are obliged to consider alternative measures of ensuring
his or her appearance at trial. Indeed, that provision proclaims not
only the right to “trial within a reasonable time or to release
pending trial” but also lays down that “release may be
conditioned by guarantees to appear for trial” (see, amongst
others, Kaszczyniec v. Poland, no. 59526/00, § 57,
22 May 2007).
However,
in the present case the Court notes that neither in the decisions of
8 and 13 May 2004, which concerned the initial period of detention on
remand, nor in that of 6 December 2004, when the extension of the
detention was at stake, did the domestic courts consider the
possibility of applying other non-custodial preventive measures,
which were expressly envisaged by Article 152 § 1 of the CCP.
Such an omission by the domestic courts is yet another indication of
their disregard for the requirements of Article 5 § 3 of the
Convention (see Dolgova v. Russia, no. 11886/05,
§§ 47, 48 and 50, 2 March 2006).
Having
regard to the above considerations, the Court finds that, by failing
to address the specific facts of the applicant’s case or to
consider alternative non-custodial pre-trial measures, and by relying
essentially on the gravity of the charges, the authorities imposed
and maintained the applicant’s detention on grounds which
cannot be regarded as “relevant” or “sufficient”.
The particularly wanton limitation on the applicant’s right to
provisional release pending trial was perpetrated by the template
form of the decision of 6 December 2004, which contained pre-printed
and standard reasoning.
Consequently,
the Court concludes that there has been a violation of Article 5 §
3 of the Convention.
II. ALLEGED VIOLATIONS OF ARTICLES 2 AND 3 OF THE CONVENTION
The
applicant complained about the use of lethal force by the authorities
in Rustavi No. 1 Prison on 30 January 2006, and challenged his
conditions of detention in the Tbilisi and Rustavi prisons. He relied
on Articles 2 and 3 of the Convention.
As
to the gunfire incident at the Rustavi prison, the applicant did not
demonstrate that it had created a genuine risk to his life. In any
case, he should first have raised his complaint before either the
prosecution or the judicial authorities (cf. the Galuashvili
decision cited above).
With
regard to the conditions in the Tbilisi and Rustavi prisons, nothing
in the case file suggests that the applicant lodged a complaint with
the prosecution or judicial authorities, or put the Ministry of
Justice, in charge of the penitentiary system, expressly on notice
that his rights under Article 3 of the Convention were being breached
(cf. the Galuashvili, decision cited above; Panjikidze and
six others v. Georgia (dec.), no. 30323/02, 20 June
2006; cf., a contrario, the Davtian decision cited
above).
It
follows that the applicant’s complaints under Articles 2 and 3
of the Convention must be rejected for non-exhaustion of domestic
remedies, pursuant to Article 35 §§ 1 and 4
of the Convention.
III. ALLEGED VIOLATIONS OF ARTICLE 6 OF THE CONVENTION
The applicant alleged violations of Article 6 §§
1 and 3 (d) of the Convention, the relevant parts of which read as
follows:
“1. In the determination of ... any criminal
charge against him, everyone is entitled to a fair ... hearing within
a reasonable time by [a] ... tribunal...
3. Everyone charged with a criminal offence has the
following minimum rights: ...
(d) to examine or have examined witnesses against
him...
1. The applicant’s complaints
With regard to the first set of proceedings, the
applicant reiterated that the Prosecutor General had breached Article
28 § 1 (m) of the CCP by initiating criminal proceedings against
him after the subordinate prosecutor had refused to do so. He
complained that the investigation had not been objective, in so far
as solely accusatory evidence had been gathered in order to imprison
him and thus protect the State from civil liability resulting from
the non-fulfilment of the contract of 18 January 2001 (paragraph 6
above). The applicant also challenged the reasoning for his
conviction on 17 February 2005 and the courts’ assessment
of certain evidence. The applicant claimed that the verdict had
failed to disclose the elements of the crime of attempted fraud, and
that the judicial examination of his case had been superficial. He
further complained that he had not been placed in a position equal to
that of the prosecution, insofar as various State agencies, including
the Georgian National Bank, aided the PGO with the investigation.
Whilst acknowledging that the search of his office had been conducted
lawfully, the applicant claimed that the documents found there (bank
statements, loan agreements, his photographs, etc.) should not have
been endorsed by the domestic courts as lawfully obtained evidence.
Finally, the applicant challenged the length of the proceedings and
claimed that, during the first two months of the investigation, he
was not allowed to confront various witnesses.
As regards the second set of proceedings, the
applicant claimed that it had been wrongfully initiated. He further
complained that he had not been assisted by an advocate during the
hearing on 22 September 2006.
2. The Court’s assessment
The Court reiterates, with regard to the complaint
that the criminal proceedings should not have been initiated against
the applicant by the Prosecutor General and the Ministry of Justice,
that the assessment of the appropriateness of a criminal prosecution
falls outside its supervisory competence (see paragraph 42 above).
Moreover, the Court notes that, whilst the subordinate prosecutor
refused to initiate a criminal case for falsification of bank
documents, the Prosecutor General’s decision of 28 April
2004, launching the prosecution against the applicant, was primarily
based on the fact of misappropriation by fraud. The falsification of
documents and misappropriation by fraud being two distinct offences
under Articles 180 § 3 (b) and 362 of the CC, the decision of 28
April 2004 apparently fell outside the purported scope of Article 28
§ 1 (m) of the CCP (see paragraphs 8, 9, 32 and 33 above). In
any case, as the charge of falsification was finally dropped on 17
February 2005 (see paragraph 18 above), the applicant can no
longer claim before the Court to be a victim of an arbitrary
prosecution on this charge.
The Court further observes that, with respect to the
first set of proceedings, the applicant essentially calls into
question the interpretation and application of the procedural and
substantive law by the prosecution and judicial authorities. In other
words, he requests the Court to act as an appeal court of “fourth
instance”. All his complaints were made to the competent
domestic courts (see paragraph 21 above), who were best placed to
assess the relevance of evidence to the issues in the case, and to
interpret and apply the rules of substantive and procedural law (see,
amongst many authorities, Vidal v. Belgium, judgment of
22 April 1992, Series A no. 235 B, pp. 32-33,
§ 32; Edwards v. the United Kingdom, judgment of
16 December 1992, Series A no. 247-B, § 34). The
Court does not find any manifestly arbitrary reasoning in the
relevant court decisions.
As to the complaint
that the domestic courts relied, in the course of the first set of
proceedings, on unlawfully obtained documents, the Court first notes
that the applicant himself acknowledged that the search of his office
had been conducted lawfully. However, he did not explain why the
documents seized during that search should have been rejected by the
domestic courts as being unlawfully obtained evidence. In such
circumstances, the Court concludes that this specific complaint is
not sufficiently substantiated to warrant an examination on the
merits.
With
respect to the length of the first set of proceedings, the Court
notes that the applicant was charged on 28 April 2004 and convicted
at final instance on 20 June 2006. Consequently, the proceedings
lasted less than two years and two months before three levels of
jurisdiction. Such a period cannot be considered to have been
“unreasonable”, as understood by Article 6 § 1
of the Convention (cf., amongst many others, Hendriks v. the
Netherlands (dec.), 44829/98, 5 March 2002).
As
to the complaint about the inability to confront witnesses during the
first two months of the investigation, the applicant failed to
indicate their identity or specify the eventual utility of their
statements. The Court recalls in this regard that it is not
sufficient for an accused to complain in the abstract that he or she
has not been allowed to question certain witnesses; the accused must,
in addition, support this request by explaining why it is important
for the witnesses concerned to be heard and why their evidence is
necessary for the establishment of the truth (see Bocos-Cuesta v.
the Netherlands, no. 54789/00, § 67, 10 November
2005; Perna v. Italy [GC], no. 48898/99, §
29, ECHR 2003 V). This complaint is
therefore also unsubstantiated.
90. Finally, as regards the second set of proceedings, the Court
notes that Article 6 § 1 of the Convention does not apply to
them insofar as the hearing on 22 September 2006 did not concern the
determination of a criminal charge against the applicant but a
pre-trial restraint measure in the context of his already existing
detention after conviction by a competent court (see paragraphs 26-27
above). As these proceedings are apparently still pending before a
court of first instance, any complaint under this head is anyway
premature.
Having due regard to the above considerations and the case materials
in its possession, the Court concludes that the applicant’s
complaints under Article 6 are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 1, 3 and 4 of the
Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
The applicant reiterated under Article 13 of the
Convention his complaint about the absence of an automatic review of
the lawfulness of his detention on remand (see paragraph 53 above).
The Court recalls that Article 5 § 4 of the Convention is the
lex specialis in matters of detention (Shamayev and Others,
cited above, § 435, ECHR 2005 III) and that the
complaint about the absence of an automatic review of the lawfulness
of detention has been already found to be manifestly ill-founded (see
paragraph 58 above). The Court does not consider it necessary
therefore to examine this complaint separately under Article 13 of
the Convention.
The
applicant also invoked Articles 1, 7, 8, 9 and 10 of the Convention
without any relevant, coherent explanation. The Court notes that no
separate issue arises under Article 1, and the case file does not
disclose any appearance of violations of the other provisions
invoked.
It follows that these complaints are manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
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
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 760,000 euros (EUR) in respect of pecuniary damage.
According to him, this sum was discharged between 2001 and 2004 by
his company for the debts accumulated when it had been run by the
State. The applicant also claimed EUR 20,000 in respect of
non-pecuniary damage. He stated, inter alia, that his mother
had died from the stress caused by his unlawful prosecution, and that
his health had deteriorated as a result of the poor conditions of
detention.
The
Government contested the claims as unsubstantiated and excessive.
They considered that the finding of a violation would constitute
equitable satisfaction for the non-pecuniary damage suffered by the
applicant.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged (see Stašaitis v.
Lithuania, no. 47679/99, § 96, 21 March 2002;
Jablonski, cited above, § 109). It therefore rejects this
claim.
As
regards non pecuniary damage, the Court first notes that the
case file does not disclose the necessary causality between the death
of the applicant’s mother and the State’s acts which have
resulted in the violation of Article 5 § 3 of the Convention.
However, the Court has no doubt that the applicant suffered distress
and frustration on account of the domestic authorities’
decision to hold him in custody for nine months and twelve days
without sufficient reason (see, amongst others, Rokhlina,
cited above, § 17; E.M.K. v. Bulgaria, no. 43231/98,
§ 149, 18 January 2005). Making its assessment on an
equitable basis, the Court awards the applicant EUR 1,500 under
this head.
B. Costs and expenses
The
applicant also claimed EUR 5,000 for the costs and expenses incurred
before the Court. In support of this claim, the applicant’s
second and third representatives submitted that they had spent 97
hours of work on the case at a rate of 50 EUR per hour. They also
submitted invoices disclosing that the applicant had incurred postal
and translation expenses in the overall amount of GEL 393 (EUR 170).
The
Government considered that the claimed amounts were unsubstantiated
and excessive. However, they acknowledged that the applicant had
necessarily incurred some legal costs and invited the Court to award,
in accordance with its established case-law, a reasonable amount.
102. The
Court notes that, since no claim was made in respect of the
applicant’s first representative, there is no call to award any
amount for her involvement in the proceedings before the Court.
As
to the applicant’s second and third representatives, the Court
notes that they did not produce invoices confirming that the claimed
fees and expenses had actually been incurred by the applicant (see
Garycki, cited above, § 83). However, the fact
remains that, as conceded by the Government, they provided the
applicant with legal assistance which was not free of charge. The
Court recalls, in this regard, that it is not bound by domestic fee
scales and practice (see Assanidze, cited above, § 206).
The Court further notes that the applicant did not receive legal aid
from the Council of Europe. Having due regard to the complexity of
the case and the two sets of written observations produced on behalf
of the applicant, the Court, making assessment on an equitable basis,
considers it reasonable to award the sum of EUR 2,000 on account of
the applicant’s representation before the Court by Ms M.
Kobakhidze and Ms M. Gioshvili.
The
Court also awards the amount of EUR 170 for postal and translation
expenses.
C. Default interest
The
Court considers it appropriate that the default interest 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
Declares the complaint under Article 5 § 3
of the Convention admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
5 § 3 of the Convention;
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, the following
amounts, to be converted into the currency of the respondent State at
the rate applicable on the date of settlement:
(i)
EUR 1,500 (one thousand five hundred euros) in respect of
non pecuniary damage,
(ii)
EUR 2,170 (two thousand one hundred and seventy euros) in respect of
costs and expenses,
(iii)
plus any tax that may be chargeable on the above sums;
(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;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 6
November 2007, pursuant to Rule 77 §§ 2 and 3 of the
Rules of Court.
S. Dollé F. Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following partly concurring
opinion of Mrs Mularoni joined by Mr Zagrebelsky is annexed
to this judgment.
F.T.
S.D.
PARTLY CONCURRING OPINION OF JUDGE MULARONI, JOINED BY JUDGE
ZAGREBELSKY
I
agree that there has been a violation of Article 5 § 3
of the Convention in the present case.
However,
I come to this conclusion since I consider problematic the detention
order of 6 December 2004, although not having any problem with the
decision of 8 May 2004, concerning the applicant’s remand in
custody for the initial three months period.
As to
the last mentioned decision, I observe that the Krtsanisi Mtatsminda
District Court in Tbilisi dismissed the applicant’s request for
release on the following grounds:
“The
collected evidence … discloses a reasonable suspicion that the
accused has committed the incriminated offences … The evidence
has been gathered in conformity with procedural norms … Due
regard should be had to the fact that the applicant is charged with
serious crimes … The case materials substantiate the suspicion
that he might interfere with the establishment of the truth …
In view of the prospect of a severe punishment, (he) may abscond …”
(see paragraph 12 of the judgment).
As
pointed out in paragraph 64 of the judgment, the court order of 8 May
2004 justified the imposition of detention on the following grounds:
a)
the case materials supported a reasonable suspicion that the
applicant had committed the crime;
b)
the evidence had been gathered in conformity with the law;
c)
the severity of the sentence substantiated the risk of absconding;
and
d)
the case materials substantiated the risk that the applicant could
hinder the investigation.
I
would add a fifth element that according to the Krtsanisi Mtatsminda
District Court justified the detention order:
e)
the applicant was charged with serious crimes.
I
share the majority’s view that the lawfulness of the collected
evidence is, as such, irrelevant for establishing the reasonableness
of detention (see paragraph 68 of the judgment). However, I
consider that the four other grounds, taken together, could no doubt
justify the detention order. A different conclusion of our Court
would amount to a fourth instance decision.
I
would add that it seems to me that a large part of the Court’s
case-law quoted at paragraphs 63–70 of the judgment, which
refers to the “persistence” of a reasonable suspicion,
cannot be applied to the first decision concerning the
applicant’s detention on remand.
Furthermore,
I strongly disagree with the considerations expressed in paragraphs
66 and 67 of the judgment, as far as they refer to the detention
order of 8 May 2004. I reiterate that the detention order of 8 May
2004 was duly reasoned and that it did not at all amount to an
automatic remand in custody based solely on statutory presumption
based on the gravity of the charges.
I
agree instead with the majority as to the criticism in respect of the
detention order of 6 December 2004, expressed in paragraphs 74 and 75
of the judgment. As to the considerations expressed in paragraphs 76
and 77, I agree with them exclusively insofar as they refer to
the detention order of 6 December 2004.
