(Application no. 37048/04)
13 January 2009
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 Giorgi Nikolaishvili v. Georgia,
The European Court of Human Rights (Second Section), sitting as a Chamber composed of:
Ireneu Cabral Barreto,
Nona Tsotsoria, judges,
and Sally Dollé, Section Registrar,
Having deliberated in private on 9 December 2008,
Delivers the following judgment, which was adopted on that date:
I. THE CIRCUMSTANCES OF THE CASE
A. Posting of the applicant's photographs
B. Criminal proceedings against the applicant
“Having examined [in accordance with the requirements of procedural law] the well-foundedness of the detention request, and having heard the parties' pleadings, I have come to the conclusion that the evidence collected – [reference to the evidence obtained in June and July 2003 – see paragraph 18 above] – gives rise to a reasonable suspicion that Giorgi Nikolaishvili has committed the impugned offence. The evidence has been obtained in conformity with the rules of criminal procedure.
Procedural law was also observed in the course of Giorgi Nikolaishvili's arrest and in the bringing of charges against him.
I consider that the detention request by [reference to the prosecutor's name] is substantiated and that there exist legal grounds for granting it. Thus, in so far as the accused, G. Nikolaishvili, is charged with a less serious crime, the danger that, if released, he might hamper the establishment of the truth or abscond from the investigation and trial is substantiated...”
The judge then dismissed, in a handwritten note, the applicant's allegations of procedural violations as irrelevant to the classification of the impugned offence.
“... [The applicant] has been charged with an offence classified as less serious, which carries a maximum term of five years' imprisonment. The impugned offence of the unlawful acquisition, storage and/or transportation of firearms might be related to the murder case, the investigation of which is still pending. In such conditions, the discontinuation of detention on remand or its substitution with a non-custodial measure of restraint might possibly hamper the establishment of the truth in that case; if released, the accused might influence witnesses, continue his criminal activities or abscond. Such conclusions can be derived from the insincerity of the accused.
The case discloses both formal (procedural) and factual grounds for the imposition of pre-trial detention...”
“The measure of pre-trial restraint – detention – has been correctly chosen.”
II. RELEVANT DOMESTIC LAW AND COUNCIL OF EUROPE DOCUMENTS
A. The Code of Criminal Procedure (“the CCP”), as in force at the material time
“A criminal prosecution may be carried out in the form of a public, subsidiary, private/public or private prosecution.”
“1. A measure of restraint shall be applied to ensure that the accused cannot avoid the investigation and trial, that his further criminal activity is prevented, that he cannot interfere with the establishment of the truth in a given criminal case, or that the court's verdict is implemented.
2. The application of a measure of restraint shall be justified if the evidence collected in the case file sufficiently substantiates the assumption that it is necessary to secure the aims mentioned in the first paragraph of this Article.
3. The ground for the imposition of pre-trial detention may be a reasonable suspicion that the accused might abscond or interfere with the establishment of the truth in a given criminal case, or if a serious or grave crime has been committed.”
“Detention on remand shall be imposed only with regard to a person who is charged with an offence which carries more than two years' imprisonment ...”
“Any decision or action of an inquiry officer/inquiry agency, investigator/investigative agency, prosecutor/prosecutor's office or judge/court may be appealed by the parties to the criminal proceedings or by any other third parties.”
41. Following an amendment on 16 December 2005, Article 417 § 2 made it mandatory to hold an admissibility hearing when deciding to commit the accused for trial in relation to all types of criminal case. Article 419 laid down the following time-limits on committals:
“The judge (court) shall decide whether to commit the accused for trial within fourteen days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).”
42. Article 627 § 1 enabled a judge to initiate criminal proceedings following a complaint lodged either by the victim or that person's representative in law. Moreover, under Articles 393 and 606(1), only a person against whom charges had been brought or who had been convicted could be declared “wanted” in connection with a crime by means of a formal decision by the investigative, prosecution or judicial authorities. No provision of the Code provided for such a measure in respect of a witness.
B. The Criminal Code
C. The Operational Investigative Measures Act of 30 April 1999
“A person who considers that, as a result of an operational investigative measure, his or her rights and freedoms have unlawfully been restricted may appeal against such a measure to a hierarchically superior agency, prosecutor or court.”
“The basis for an operational investigative measure may be ...
(c) a formal decision declaring that a person who absconds from the investigation and trial or evades the sentence is wanted.”
D. Preparatory work on Article 5 of the Convention (CDH (67) 10, 20 July 1967, Strasbourg)
“...We have all been compelled to bear unbelievable encroachments on our rights [such as] the loss of security of person; arbitrary arrest...
All have an equal right to life, liberty and personal safety...
It is a pitiable commentary on our boasted progress that in our generation it should be necessary to declare that everyone has the right of life, liberty and security of his person ... These things were taken for granted ... in the days before the sophists told us that man could make himself happy by making the State into a god, to be fed with blood, toil, tears and sweat ... We are now concerned to safeguard and preserve our very selves, and all that we are and have, against the insatiable appetite of the totalitarians...”
“The Committee has drawn up the list of rights and freedoms which are to be covered by the collective guarantee...
Here are the rights and freedoms included in this list: security of person ... freedom from arbitrary arrest, detention, exile and other measures...”
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
“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 or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...”
1. Circumstances surrounding the applicant's arrest on 30 March 2004
2. Period of detention between 30 June 2004 and 24 January 2005
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
“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.”
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
“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.”
1. Absence of an automatic review of detention
2. Judicial reviews of 2 and 8 April 2004
3. Judicial review of 24 January 2005
IV. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
“1. Everyone has the right to respect for his private ... life...
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 ... for the prevention of disorder or crime, ...”
1. The Government's arguments
2. The applicant's arguments
3. The Court's assessment
112. As to the Government's argument that the applicant should have challenged the Vake-Saburtalo district prosecutor's decisions, referring his case to the MI, before a higher prosecutor, the Court reiterates that, normally, a hierarchical remedy cannot be regarded as effective, because the litigants are unable to participate in such proceedings (see Horvat v. Croatia, no. 51585/99, § 47, ECHR 2001 VIII; Hartman v. Czech Republic, no. 53341/99, § 66, ECHR 2003 VIII). Moreover, as disclosed by the case file, and as the applicant maintained and the Government did not dispute, the applicant was never served with the impugned decisions (see paragraphs 15 and 105 above). Consequently, he cannot be criticised for not having appealed against them (see Ramishvili and Kokhreidze (dec.), cited above; Chitayev and Chitayev v. Russia, no. 59334/00, §§ 139 and 140, 18 January 2007).
116. In the light of the foregoing, the Court dismisses the Government's objection of non-exhaustion.
1. The parties' arguments
2. The Court's assessment
125. Even though it is for the national authorities, notably the courts, to interpret and apply the relevant internal rules (see Kruslin v. France, judgment of 24 April 1990, Series A no. 176 A, pp. 21-22, § 29; Amann v. Switzerland [GC], no. 27798/95, § 52, ECHR 2000 II), the Court exercises a certain power of review (see Craxi (no. 2), cited above, § 78). This is particularly true when, as happened in the case at hand, the domestic authorities omitted to scrutinise effectively the compatibility of the impugned interference either with domestic rules or with Convention standards (see, mutatis mutandis, Gurgenidze, cited above, § 62).
126. As acknowledged by the competent domestic authorities and confirmed by the respondent Government, the police posting of the applicant's photograph on the boards of “wanted persons” was an “operational investigative measure” aimed at securing the applicant's appearance before the prosecution authorities to testify in the murder case as a witness (see paragraphs 9 and 118 above). However, under Articles 393 and 606(1) of the CCP, only an accused or convicted person evading an investigation, trial or sentence could be declared “wanted”. Furthermore, as stated in section 8(2) of the Operational Investigative Measures Act, before any specific measure aimed at establishing the whereabouts of an accused or convicted person who has absconded may be taken, a formal decision should first have been issued by the prosecution or judicial authorities.
127. Articles 93 and 94 of the CCP (paragraphs 33-34 above), defining the status, rights and responsibilities of a witness, did not provide for the possibility of declaring a witness “wanted” in relation to a criminal case. If a witness refused to appear voluntarily before the prosecution, the court could issue an order for his or her compulsory appearance. However, the role of the police, in the event of an inability to establish that witness's whereabouts, was limited to returning the order to the court as “unenforced”. No other measure aimed at searching for the witness was ever envisaged by the domestic law.
128. In the present case, the applicant was neither an accused nor a suspect in the murder case and, consequently, could not have been designated as a “wanted” person. Nor does the case file disclose any record of a court order which, pursuant to Article 176 of the CCP, authorised the applicant's compulsory appearance before the investigative authority as a witness. The respondent Government did not refer to any provision of domestic law or any decision of the national authorities which could have served as a legal basis for divulging the applicant's photograph to the public and implicating him in a murder. In such circumstances, the interference cannot be said to have been “in accordance with the law” within the meaning of Article 8 § 2 of the Convention.
129. The Court reiterates that, where it has been shown that the interference was not in accordance with the law, a violation of Article 8 of the Convention will normally be found without investigating whether the interference pursued a “legitimate aim” or was “necessary in a democratic society” (see Sciacca, cited above, § 30; Craxi (no. 2), cited above, § 84; Dobrev v. Bulgaria, no. 55389/00, § 165, 10 August 2006).
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
“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.”
1. Pecuniary damage
2. Non-pecuniary damage
B. Costs and expenses
C. Default interest
FOR THESE REASONS, THE COURT UNANIMOUSLY
(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 8,000 (eight thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;
(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;
Done in English, and notified in writing on 13 January 2009, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise Tulkens
1 In the Georgian colloquial language, the phrase “to catch somebody” (daWera) is equivalent to the English expression “imprisoning” or “jailing” a person.