AKHALAIA proti Gruzii

FIFTH SECTION

DECISION

Applications nos. 30464/13 and 19068/14
Bachana AKHALAIA
against Georgia

The European Court of Human Rights (Fifth Section), sitting on 7 June 2022 as a Chamber composed of:

Síofra O’Leary, President,
Mārtiņš Mits,
Lətif Hüseynov,
Lado Chanturia,
Arnfinn Bårdsen,
Mattias Guyomar,
Kateřina Šimáčková, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the above applications lodged on 4 May 2013 and 31 January 2014 respectively;

the decision to give notice to the Georgian Government (“the Government”) of the complaints under Article 5 §§ 1 and 3 and Article 18 of the Convention and to declare inadmissible the remainder of the applications;

the observations submitted by the Government and the observations in reply submitted by the applicant;

Having deliberated, decides as follows:

INTRODUCTION

1. The applicant was a high-ranking State official immediately prior to the events in issue. His applications essentially concern his complaints under Article 5 §§ 1 (c) and 3 and Article 18 of the Convention about the alleged unlawfulness and ulterior purpose of and lack of justification for his pre-trial detention in four separate criminal cases.

THE FACTS

2. The applicant in both applications, Mr Bachana Akhalaia, is a Georgian national who was born in 1980 and lives in Tbilisi. He was represented before the Court by Mr V. Velijanashvili and Mr D. Dekanoidze, lawyers practising in Tbilisi.

3. The Georgian Government (“the Government”) were represented by their Agent, Mr Beka Dzamashvili, of the Ministry of Justice.

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

1. Background

5. Prior to the parliamentary election of 1 October 2012 which led to a change of government, the applicant, one of the leaders of the then ruling party, United National Movement (UNM), had held various high-ranking posts in the government of Georgia under President Mikheil Saakashvili. Notably, he had served as the Head of the Prisons Department of the Ministry of Justice (between December 2005 and December 2008), Deputy Minister of Defence (between December 2008 and August 2009), Minister of Defence (between August 2009 and July 2012) and Minister of the Interior (between July 2012 and September 2012).

6. On 20 September 2012 the applicant resigned from the post of Minister of the Interior after video-recordings of ill-treatment and rape of inmates by prison staff had been aired on a national television channel. Although the applicant had not been responsible for the prison sector since December 2008, he decided to resign in the light of “the moral responsibility that he felt he shared with certain of the prison officers in question who had been recruited during his tenure”. Immediately after the parliamentary election of 1 October 2012, the applicant left the country. He returned to Georgia on 5 November 2012.

7. After the handover of power by the UNM to the political coalition Georgian Dream as a result of the parliamentary election of 1 October 2012, more than 20,000 complaints were lodged with the Chief Prosecutor’s Office of Georgia by people claiming to have been victims of serious human rights abuses committed during the UNM’s rule. Out of these, 4,000 complaints concerned allegations of torture and ill-treatment. It was on the basis of those individual criminal complaints that the prosecution authority initiated criminal investigations, including against former high-ranking officials. The newly formed government officially described this process as the “restoration of justice”, and publicly stated that investigation of the wrongdoings of the past would be one of its key priorities and that there should be no impunity for former officials for past abuses.

8. Four separate sets of criminal proceedings, which are described below, were conducted against the applicant as part of the above-mentioned process of the “restoration of justice”. These sets of proceedings took place in parallel to each other.

2. Criminal case no. 1

9. On 6 November 2012 the applicant was summoned by the Chief Prosecutor’s Office and, after an interview, was arrested in relation to a criminal case opened against him and two other high-ranking military officers for the offences set out in Articles 143 and 333 of the Criminal Code (false arrest and misuse of official authority). In particular, the three co-accused were suspected of having verbally and physically assaulted, in the office of the applicant at the time when he held the post of Minister of Defence, several military officers of lower rank, as well as of having abducted and beaten, on the premises of a restaurant, a private individual, Mr Z.A. The latter episode also included the allegation of the applicant having demanded, after the victim’s beating and on pain of recourse to physical coercion again, that Mr Z.A. give his expensive car to the applicant’s close friend who held the post of the Head of the Prisons Department of Georgia at that time.

10. On 8 November 2012 the Chief Prosecutor’s Office brought the two above-mentioned charges against the applicant and the two other co-accused and lodged with the Tbilisi City Court a request for the imposition of a preventive measure against them in the form of pre-trial detention.

11. On 9 November 2012 the Tbilisi City Court examined, at an oral and public hearing, the question of the imposition of pre-trial detention. During the hearing, the prosecution authority, referring to the accused’s influential social position and connections and to their former or current high-ranking State and military posts, relied on the risks of them impeding the course of the investigation and absconding. The risk of absconding was further justified by the fact that the applicant’s brother, D.A., a former high-ranking State official who had also been wanted by the authorities in relation to another criminal case, had already fled the country and had, according to the available intelligence, been making arrangements for the applicant to join him abroad. Furthermore, a large group of the applicant’s friends, who were all former high-ranking State officials, had already settled abroad and there were specific items of evidence about them offering the applicant financial and other help with the aim of him fleeing the country. The prosecution authority also referred to the fact that when the applicant had travelled abroad in October 2012 (see paragraph 6 above), he had managed, apparently owing to his contacts within the law-enforcement agencies, to cross the State border without having his international passport registered by the border police. As regards the risk of impeding the course of the investigation, the prosecution authority referred to the fact that all the major witnesses who were to be examined were either former or acting officers of the Ministry of Defence and were thus the applicant’s hierarchical subordinates. The defence argued, in reply, that bail in the amount of either 20,000 or 10,000 Georgian laris per accused would suffice for the purposes of securing the interests of the investigation without subjecting the accused to detention.

12. Having heard the parties’ arguments, the Tbilisi City Court issued a decision on the same day, 9 November 2012, ordering the applicant’s pre‑trial detention under Article 205 § 2 of the Code of Criminal Procedure for the duration of the relevant statutory time-limit (see paragraphs 32 and 34 below). As to the remaining two co-accused, the court released them on bail, fixing the amount at 20,000 Georgian laris (some 7,000 euros). As to the grounds militating for the imposition of detention with respect to the applicant, the Tbilisi City Court, having noted the existence of a reasonable suspicion of him having committed the offences in question, stated that the gravity of the charges and the severity of the possible sentence could induce the applicant to abscond or to impede the investigation. The court emphasised that it fully endorsed the prosecution authority’s arguments concerning the risks of absconding and impeding the course of the investigation (see paragraph 11 above). In this regard, the court specifically referred to the applicant’s broad circle of close friends living abroad.

13. The applicant appealed against the decision of 9 November 2012, requesting his release on bail. His appeal was dismissed as ill-founded by the Tbilisi Court of Appeal on 13 November 2012. Among other arguments, and endorsing the reasoning of the lower court, the appellate court emphasised that since the applicant had in the past held a number of high-ranking State posts, such as Minister of Defence and of the Interior, he could, if released, use his influential position to thwart the course of the criminal proceedings, especially since many of the witnesses used to be his direct hierarchical subordinates.

14. In the meantime, on 12 November 2012 the prosecution started investigating another incident allegedly disclosing criminal conduct by the applicant falling under Articles 143 and 333 of the Criminal Code. In particular, the applicant was accused of having masterminded, at the time when he had held the post of Minister of Defence, degrading treatment inflicted on and the unlawful restriction of liberty of several soldiers. The soldiers were purportedly coerced, upon the applicant’s order, to take off their clothes and run for several hours at a stretch on a cold winter’s day and had then been unlawfully locked up for two days on the premises of a military base.

15. On 4 January 2013 the two criminal investigations were joined in a single criminal case (“criminal case no. 1”).

16. On 1 August 2013 the Tbilisi City Court acquitted the applicant of all charges made in criminal case no. 1. The court ruled that the applicant’s guilt could not be established beyond reasonable doubt in the light of the evidence collected and examined at the trial. According to the material available in the case file, the prosecution authority did not appeal against the applicant’s acquittal.

3. Criminal case no. 2

17. On 1 March 2013 the Chief Prosecutor’s Office instituted a new criminal case (“criminal case no. 2”) against the applicant on charges of inhuman treatment and misuse of official power, offences prosecuted under Articles 144 and 333 of the Criminal Code. The case concerned the applicant’s personal role in the torture and ill-treatment of prisoners and violent suppression of a prison riot that had taken place in March 2006 and as a result of which seven inmates had been killed and twenty-two others seriously injured by law-enforcement agents (for more details, see Kukhalashvili and Others v. Georgia, nos. 8938/07 and 41891/07, §§ 8-92, 2 April 2020).

18. On the following day, 2 March 2013, the Tbilisi City Court authorised the applicant’s pre-trial detention in criminal case no. 2 by issuing a new detention order under Article 205 § 1 of the Code of Criminal Procedure for the duration of the statutory period of nine months (Article 205 § 2). The court confirmed that, given the severity of the charges and the applicant’s influential social position linked to his previous high-ranking State posts, deprivation of liberty was the only measure that could secure the proper conduct of the investigation. Endorsing the arguments of the prosecution authority, the court further stated that the applicant could frustrate the collection of evidence in the case as the persons who were accusing the applicant were either acting or former employees of the Prisons Department and used to be his direct hierarchical subordinates. Moreover, within the same system high-ranking posts were still held by people in close relation with the applicant. Referring to concrete pieces of evidence available in the criminal case file, the court also stated that there existed indications that the applicant had already attempted, through various secret arrangements and via his connections in the Prisons Department, to influence certain witnesses who, as former inmates, had witnessed the circumstances of the prison riot (see paragraph 17 above).

19. On 6 March 2013 the Tbilisi Court of Appeal upheld the detention order of 2 March 2013 on a subsequent appeal, confirming the validity of the reasons given by the lower court.

20. On 28 October 2013 the Tbilisi City Court convicted the applicant of the charges against him in criminal case no. 2. He was sentenced to imprisonment for three years and nine months, with an additional ban on holding public office.

21. According to the material in the case file, the applicant did not appeal against his conviction. On 3 November 2013, five days after his conviction, President Saakashvili granted him a presidential pardon, excusing him, with immediate effect, from the obligation to serve the sentence handed down on 28 October 2013. In the relevant presidential resolution, it was further specified that the applicant’s “criminal record should be deleted”.

4. Criminal case no. 3

22. At the same time as the above-mentioned developments in criminal case no. 2, a third set of criminal proceedings (“criminal case no. 3”) was instituted against the applicant on 1 March 2013, when he was charged with abuse of official authority, an offence under Article 333 of the Criminal Code. The charge concerned an incident that had taken place in April 2012, at the time when the applicant had held the post of Minister of the Interior, during which he had allegedly verbally and physically assaulted, threatened with beatings and torture and even arbitrarily restricted, for a short period of time, the physical liberty of a number of officers of the Ministry, as he had deemed them to be politically untrustworthy.

23. On 2 March 2013 the Tbilisi City Court authorised the applicant’s pre-trial detention in criminal case no. 3, for the duration of the statutory period of nine months, by issuing another detention order under Article 205 § 1 of the Code of Criminal Procedure. The court stated that, given the severity of the charges and the applicant’s influential social position linked to his previous high-ranking State posts, deprivation of liberty was the only measure that could secure the proper conduct of the investigation. The court emphasised that the witnesses for the prosecution were either former or acting officers of the Ministry of the Interior who had worked under the applicant’s direct hierarchical supervision, for which reason the risk of the applicant trying to intimidate and/or influence his former subordinates and thus tamper with the investigation was particularly high.

24. On 6 March 2013 the Tbilisi Court of Appeal upheld the detention order of 2 March 2013 on a subsequent appeal, confirming the validity of the reasons given by the lower court.

25. By a judgment of 31 October 2013, the Tbilisi City Court acquitted the applicant of all charges in criminal case no. 3. According to the material available, the prosecution authority did not appeal against the acquittal and it thus became final.

5. Criminal case no. 4

26. On 25 October 2013 the prosecution authority brought new charges of abuse of official authority against the applicant under Article 332 of the Criminal Code (“criminal case no. 4”). The constitutive elements of the alleged offence consisted in the applicant unlawfully granting privileges, at the time when he had held the post of the Head of the Prisons Department of the Ministry of Justice between December 2005 and December 2008, to four inmates who had been detained in prison no. 10 in relation to a murder case in which the applicant’s brother had allegedly also been involved (for more details about the murder case, see Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 129-30, 26 April 2011).

27. On 26 October 2013 the Tbilisi City Court authorised, under Article 205 § 2 of the Code of Criminal Procedure, the applicant’s pre-trial detention in criminal case no. 4 for the duration of the statutory period of nine months. In its reasoning, the court first established, by reference to the evidence available in the case file at that time, the existence of a reasonable suspicion that the applicant had committed the alleged offence. The court then stated that, although the applicant was already in pre-trial detention within the framework of the previous sets of criminal proceedings, the trial court’s judgments were expected in the near future. Thus, in the event of an acquittal, the applicant might find himself at liberty, which could in turn negatively affect the interests of the investigation in criminal case no. 4. In particular, there was a risk of absconding as both the applicant and his brother had occupied high-ranking governmental posts for many years and thus possessed influential social positions and various domestic and international financial resources. As regards the risk of unduly influencing the course of the investigation, the court referred to an incident in which a witness for the prosecution, Mr T., a former governor of prison no. 10, had first given statements incriminating the applicant, but then, after a meeting with the applicant’s lawyers, had issued a video-message in which he had complained that he had been coerced by the investigators into incriminating the applicant and then subsequently, in a third public statement, had renounced his previous accusation of coercion against the investigators. After analysing a number of factual circumstances relating to the contact between Mr T. and various people from the applicant’s close entourage, the court concluded that the applicant might have tried to influence that witness.

28. On 30 October 2013 the Tbilisi Court of Appeal upheld the decision of 26 October 2013 on a subsequent appeal. The appellate court reasoned that all the factual circumstances relating to the risks of absconding and undue influence on the investigation had been correctly taken into consideration by the lower level of jurisdiction.

29. On 22 January 2014 the applicant was charged, in criminal case no. 4, with an additional offence under Article 144 of the Criminal Court – ill‑treatment of an individual – in relation to his role in a special anti-crime operation which had taken place in January 2006 and had resulted in deprivation of life committed as a result of the excessive use of lethal force by the police (for more details about that special police operation, see Surmanidze and Artmeladze v. Georgia (dec.) [Committee], no. 11323/08, 24 June 2014).

30. On 22 October 2014 the Tbilisi City Court found the applicant guilty of all the charges against him in criminal case no. 4. He was sentenced to seven years and six months’ imprisonment, with a three-year ban on entering public service. According to the material in the case file, the conviction of 22 October 2014 became final as it was not appealed against and the applicant effectively started serving his prison sentence.

RELEVANT LEGAL FRAMEWORK AND PRACTICE

1. Relevant domestic law

31. Pursuant to Article 18 § 6 of the Constitution of Georgia, the statutory period of pre-trial detention is nine months.

32. The relevant parts of Article 205 of the (new) Code of Criminal Procedure enacted on 1 October 2010 (which replaced a previous version of the Code) read as follows:

Article 205 – Pretrial detention

“1. Pretrial detention, as a preventive measure, shall be employed only when it is the sole means to prevent the accused from:

(a) absconding or interfering with the administration of justice;

(b) hampering the obtaining of evidence;

(c) reoffending.

2. The overall length of the accused’s pre-trial detention shall not exceed nine months. After expiry of that period, the accused shall be released. The period starts to run from the moment of arrest of the accused ... and ends with the delivery of a judgment by a trial court of the first level of jurisdiction.”

33. Pursuant to Article 269 § 4 of the Code of Criminal Procedure, the length of time spent by the accused in pre-trial detention ought to be deducted from his or her prison sentence.

34. Under domestic criminal courts’ well-established judicial practice, after the enactment of the (new) Criminal Code on 1 October 2010 and at least until 15 September 2015 (see paragraph 35 below), whenever a person was subject to prosecution in parallel pending sets of criminal proceedings, domestic courts could repeatedly authorise, under Article 205 of the Code, his or her pre-trial detention (each time for the statutory time-limit of nine months) both when the parallel criminal cases had been initiated concurrently and when the criminal cases had been initiated consecutively, that is when a new criminal case was initiated only after the pre-trial detention had already been authorised against the same person in the previously opened criminal case.

35. In a decision of 15 September 2015 (Ugulava v. Parliament of Georgia, no. 3/2/646), which did not have retroactive effect, the Constitutional Court of Georgia held that there was a need for a slight revision of the judicial practice developed under Article 205 of the Code of Criminal Procedure as regards the application of pre-trial detention with respect to a person subject to criminal prosecution in parallel pending criminal cases (see paragraph 34 above). Firstly, the Constitutional Court confirmed that there could be nothing inappropriate in authorising an accused’s pre-trial detention (for the duration of the statutory period of nine months) repeatedly if the cases had been initiated consecutively, that is when the prosecution authority learnt of the facts implicating the person in the commission of a new offence and brought the corresponding charges only after the same person’s pre-trial detention in the preceding criminal case had already been authorised and had started running. However, the Constitutional Court stated that the repeated imposition of pre-trial detention in concurrently initiated sets of criminal proceedings– which were opened and took place simultaneously – called for prudence. In particular, if an accused had been charged with criminal offences in the concurrently initiated criminal cases, the imposition of pre-trial detention in one such set of criminal proceedings could by default be extended to cover the aims of any other concurrent criminal case.

2. Relevant international materials

36. In his report, “Georgia in Transition”, published in September 2013, the European Union Special Adviser on Constitutional and Legal Reform and Human Rights in Georgia, former Council of Europe Commissioner for Human Rights, stated (at pp. 8-9, footnotes omitted):

“Thousands of complaints from individuals were filed with the Prosecutor’s Office after the October 2012 election. Other complaints were handed in to the Parliament and others again to the Public Defender. Some frustrated citizens addressed all these institutions.

The complaints were, for instance, about unlawful or otherwise unjustified deprivation of liberty as well as ill-treatment. Misuse of the plea bargain system was raised by many. Others dealt with the pressure to ‘donate’ property to the State or other heavy-handed behaviour of prosecutors or other officials. Among the many complaints there may well be those with unsubstantiated facts, but it is still imperative that all of them be considered and replied to. This has started within the Prosecutor’s Office but the procedures needs to be further systematised and a full report on this review – and the responses – should be made public.

The political intention appears to have been to charge the ones most responsible for serious crimes – including those related to human rights violations and abuse of power – and give some form of ‘amnesty’ to those who only followed order.

The [Georgian Dream] coalition gave a pledge prior to the 2012 parliamentary elections to ‘restore justice’. Whilst on the one hand it is important to fight impunity not least in relation to crimes committed by public officials, it is on the other hand necessary to ensure absolutely transparent and fair proceedings free from political interference.

The Prosecutor’s Office has initiated investigations against a number of office-holders in the previous administration. Prosecutors have questioned 6,156 persons, most of them UNM party activists, as witnesses in the framework of investigations into different suspected crimes, including misuse of the State funds and money laundering. The opposition party considers this questioning to be a politically motivated attack on the opposition. Currently, 35 former central officials are charged of whom 14 are in pre-trial detention, 14 have been released on bail, one is released without restrictive measure, one has been pardoned by the President after conviction and five have left the country. Other former civil servants have also been charged or were convicted. ...

There are signs that the courts are more independent than earlier in relation to requests from the prosecutors. For instance, there was an acquittal in a case against another former Minister, and the request for pre-trial detention was refused in another case against a leading UNM politician.

There have been discussions on how to handle complaints of injustice caused in the judicial proceedings, not least the unfair plea bargain decisions. The European Commission for Democracy through Law (Venice Commission) was consulted on the idea of establishing a Commission which would review complaints on alleged miscarriage of justice cases and give recommendations whether a case should be reopened in court or not. No conclusion has yet been reached. However, one point has been made clear: any reopening of a court case must be decided by the judiciary itself – other bodies can only propose.

Also, no final proposal has been brought to the Parliament in regard to protecting those actors from charges who only obeyed orders and became used as instruments in acts which abused power or violated the law. It has been recognised that such an ‘amnesty’ law would be extremely complicated to draft without undermining basic legal principles. For the moment, it is left to the prosecutors to decide on what and against whom to start an investigation.

The response to the complaints regarding confiscation or other transfers of property will be particularly delicate, not only in the sense of assessing the true facts. Even when it would be established that property rights were indeed violated, the land or the building may have been put to other use, a situation which might be very difficult to undo. Financial compensation may be a fair solution but such measures are estimated to be extremely costly for the State budget.

This is not only a matter of law and legal procedures; the political dimension is obvious. The disappointment with the performance by the previous Government was demonstrated through the election result in 2012 and has been manifested in opinion polls thereafter. It is obvious that many people were deeply angry and wanted abusers to be punished. ...

The [Georgian Dream] alliance is faced with several challenges in this context:

• to respond in the true spirit of justice to all those who have filed complaints;

• to ensure absolutely correct procedures in the cases against former high officials suspected of crime – no politicisation or ‘selective justice’;

• to put the focus on cases in which impunity would undermine the sense of justice in society but spare those in the less serious cases who only obeyed orders or were squeezed into cooperation in wrongful activities;

• to convince the majority supporters to avoid any undemocratic moves against the UNM party, including any disturbances of its campaign meetings – and take effective action against those who undermine the freedom of expression and assembly.

Lessons should be learned from past mistakes. This requires a comprehensive description of what really happened in the past which is factually correct, relevant and related to the true circumstances at the time as well as presented in an objective and credible manner. Experience has told us that such assessments and reports are better done by impartial experts than by committees with party political interests. ...

It is important that steps are taken to close the chapter of the past – and in a way that sets an example for the future in the sense of justice, fairness and transparency. This will hopefully release political energy to look more actively towards the future.”

37. A report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (PACE doc. 13588, 5 September 2014) stated, among other things (footnotes omitted):

“60. Many interlocutors have reported that there seems to be less political interference in the work of the courts and that the judiciary has become increasingly more independent, including in relation to the prosecution, which has been a point of concern in previous reports. This seems to be confirmed by the court proceedings against former government members, where requests of the prosecution have regularly been denied. There has been a decrease in the granting of pre-trial detention by the courts, combined with a decline of requests by the prosecution service. ...

90. Following the 2012 parliamentary elections, more than 20 000 complaints were lodged with the prosecutor general by citizens claiming to have been victims of concern allegations of torture and ill-treatment in prisons, while more than 1 200 concern violations of property rights and approximately 1 000 complaints were filed against in total 322 prosecutors by persons claiming that they were forced to accept plea-bargain agreements.

91. The authorities announced that the ‘restoration of justice’ would be one of their key priorities and underscored that there would be no impunity for former officials for past abuses. In the following months a number of leading members of the former governing party and ministerial officials were arrested for alleged crimes committed under their responsibility during their tenure in office. The United National Movement has decried these arrests as political prosecutions and as revanchist justice. For its part, the authorities have stressed that no selective or political motivated justice is taking place, or will take place, in Georgia, but that these people are accused of serious ordinary crimes, for which the authorities have sufficient proof to warrant an investigation or initiate prosecution.

92. In support of their position, the authorities point to the fact that both the Minister of Defence and the Minister of Justice left the country in a hurry the day after the elections, as did a number of high-level officials from the Ministry of the Interior. While the former Minister of Defence voluntarily returned to Georgia, the others are still on the run and are the subject of an Interpol Red Notice.

93. There has been some confusion regarding the number of former officials concerned by these investigations. Until now, 35 officials of the former authorities have been charged with criminal offences. Of these, 14 are in pre-trial detention, 13 have been released on bail, one was released without restrictive measures, five have fled the country and three have been convicted, one of whom was pardoned by President Saakashvili. In addition, charges have been brought against a considerable number of former civil servants.

94. The allegations of selective and politically motivated justice and revanchist policies by the new authorities are of concern. In addition, they considerably raise emotions and tensions in an already politically tense climate, which is not beneficial for the political environment and democratic development of the country.

95. The most publicised cases against former UNM government officials are those against former Minister of Defence ..., former Prime Minister and Interior Minister – and current UNM Secretary General ..., and former Tbilisi Mayor ..., who were all influential members of former President Saakashvili’s inner circle. ...

102. We wish to emphasise that there cannot be any impunity for ordinary crimes including, or even especially, for government members and politicians, whether current or past. However, especially in the current political context, it is important that in the criminal cases against former government officials, any perception of politically motivated or revanchist justice is avoided. The authorities should therefore ensure that the legal processes are conducted transparently and in a way which fully respects Georgia’s obligations under Articles 5 and 6 of the European Convention on Human Rights. Not only should selective or politically motivated justice not take place, it should also be seen as not taking place.”

COMPLAINTS

38. Relying on Article 5 § 1 (c) of the Convention, taken alone and in conjunction with Article 18, and on Article 5 § 3, the applicant complained about his pre-trial detention. He alleged, in particular, that after 6 August 2013, that is after the expiry of the statutory period of nine months in respect of the first detention order, his detention had been in breach of both Article 18 § 6 of the Constitution and Article 205 § 2 of the Code of Criminal Procedure. The applicant also submitted that his detention had been unreasonably long and had constituted retribution by the current government for the applicant’s past political activities.

THE LAW

1. Joinder of the applications

39. Noting that the circumstances of and the complaints made by the applicant in each application are either interrelated, similar and/or complimentary to each other, the Court finds it appropriate to examine the two applications jointly in a single decision.

2. Alleged violations of the Convention

40. The applicant made a number of complaints under Article 5 §§ 1 (c) and 3 and Article 18 of the Convention about specific aspects of his pre-trial detention. The relevant parts of the provisions in question read as follows:

Article 5 § 1 (c)

“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;”

Article 5 § 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.”

Article 18

“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”

1. As regards the complaint under Article 5 § 1 (c) of the Convention

(a) The parties’ arguments

41. The Government submitted that it was fully consistent with the relevant domestic law and practice for the applicant, who had been accused of various criminal offences in separate parallel pending criminal proceedings, to be held in pre-trial detention on the basis of consecutive detention orders, each authorising his detention for the maximum statutory time-limit of nine months. Article 205 of the Code of Criminal Procedure had never included a provision outlawing the imposition of pre-trial detention with respect to the same person more than once, provided that the person had been accused in separate criminal cases. On the contrary, there was a well-established judicial practice at the time of the applicant’s pre-trial detention (see paragraph 34 above), according to which the preventive measure of pre-trial detention could be applied more than once with respect to the same person if he or she was being prosecuted separately in parallel or consecutive criminal cases. As regards the slight revision of that practice by virtue of the Constitutional Court’s decision of 15 September 2015, the Government noted that the change in the jurisprudence had occurred well after the applicant’s conviction and the expiration of his terms of pre-trial detention and thus could not have applied to his situation.

42. The applicant argued that it had been unlawful to hold him in pre-trial detention after 6 August 2013, that is after the expiration of the statutory time-limit of nine months for the pre-trial detention imposed in criminal case no. 1. He submitted that it had not been consistent with the domestic law to authorise his pre-trial detention more than once. In support of that argument, he referred to the Constitutional Court’s decision of 15 September 2015 (see paragraph 35 above) and the Court’s judgment in Šebalj v. Croatia, no. 4429/09, §§ 196-97, 28 June 2011.

(b) The Court’s assessment

(i) General principles

43. In laying down that any deprivation of liberty must be carried out “in accordance with a procedure prescribed by law”, Article 5 § 1 primarily requires any arrest or detention to have a legal basis in domestic law. However, these words do not merely refer back to domestic law. They also relate to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all Articles of the Convention. On this last point, the Court stresses that, where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of “lawfulness” set by the Convention, a standard which requires that all law be sufficiently precise to allow the person – if need be, with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 91‑92, 15 December 2016, and Del Río Prada v. Spain [GC], no. 42750/09, § 125, ECHR 2013).

44. In addition to being in conformity with domestic law, Article 5 § 1 requires that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among recent authorities, Rooman v. Belgium [GC], no. 18052/11, § 190, 31 January 2019, and Denis and Irvine v. Belgium [GC], nos. 62819/17 and 63921/17, § 129, 1 June 2021). While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute “arbitrariness” for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. It is, moreover, clear from the case-law that the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved (see S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 75, 22 October 2018). One general principle established in the case-law is that detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities or where the authorities neglected to apply the relevant legislation correctly (ibid., § 76, with further references).

(ii) Application of those principles

45. The thrust of the applicant’s complaint is that it was contrary to domestic law and practice to impose the measure of pre-trial detention upon him in relation to parallel pending criminal cases nos. 2 to 4 because that measure had already been used against him once, in criminal case no. 1.

46. However, the Court observes that nothing in the parties’ submissions and the information available to the Court regarding the relevant domestic law and practice appears to support the applicant’s claim. Indeed, whenever an accused was detained pending trial under Article 205 § 2 of the Code of Criminal Procedure, it appears that the measure was always considered to have been imposed in connection with the particular charges brought against him or her in the given criminal case and the period of detention was set by default at the statutory time-limit of nine months (compare Merabishvili v. Georgia [GC], no. 72508/13, § 200, 28 November 2017). The judicial practice under Article 205 § 2 of the Code of Criminal Procedure at the time of the applicant’s pre-trial detention made it clear that when a person was subject to criminal prosecution in several distinct parallel pending criminal cases, and irrespective of whether these separate sets of criminal proceedings had been initiated concurrently or consequently to each other, it was possible to impose pre-trial detention under Article 205 § 1 for the statutory duration of nine months separately for each of the parallel pending sets of proceedings (see paragraph 34 above, and compare Merabishvili, cited above, § 203).

47. The applicant relied on the Constitutional Court’s decision of 15 September 2015 which revised certain aspects of the above-mentioned judicial practice under Article 205 § 2 of the Code of Criminal Procedure (see paragraph 35 above). However, leaving aside the fact that the decision in question was adopted well after the applicant’s pre-trial detention had come to an end (see paragraphs 30 above and 54 below) and thus could not, as a matter of principle, retroactively taint the legitimacy of the already terminated pre-trial detention measure (compare Porowski v. Poland, no. 34458/03, § 122, 21 March 2017), the Court is unable to discern any incompatibility of the applicant’s individual situation with the Constitutional Court’s decision. Indeed, the Constitutional Court stated that there could be nothing inappropriate or arbitrary in repeatedly employing the measure of pre-trial detention against the same person when parallel pending criminal cases had been opened consecutively, and this is exactly what happened in criminal cases nos. 2 to 4 (see paragraphs 17-30 above).

48. As regards the applicant’s reference to the judgment in Šebalj (cited above), the Court considers that the facts of that case differ in many important respects from those in the present case. While the Croatian case similarly concerned a situation where the accused had been held in pre-trial detention under Article 5 § 1 (c) in two parallel pending sets of criminal proceedings, the issue in that case was that the legal effect of one of the two detention orders was, in contrast to what happened in the applicant’s case, suspended pending the duration of the parallel detention order and came into force only after the latter had expired (ibid., §§ 190-93). More importantly, unlike the circumstances of the present case, in Šebalj the belated entry into force of the parallel detention order occurred in the absence of any statutory regulation or judicial practice at least arguably supporting such a course of action, which fact led to the Court’s finding that there had been arbitrariness and circumvention of the principle of legal certainty (ibid., §§ 194-96).

49. In the present case, noting that the applicant’s complaint may be understood as suggesting that the criminal cases against him were separated on purpose in order to keep him in pre-trial detention artificially for a prolonged period of time, the Court observes that there is nothing in the case file to support such an allegation. In particular, it appears that all four sets of criminal proceedings concerned different factual circumstances, and the applicant has not shown that the authorities’ decision to investigate distinct criminal offences in separate proceedings disclosed an element of arbitrariness. At the same time, it does not escape the Court’s attention that the domestic authorities did not hesitate to join two of the simultaneously unfolding criminal cases on the basis of their similar factual backgrounds (see, in particular, the joinder of the two criminal cases in which the applicant was accused of having ill-treated, in separate incidents, military officers while holding the post of Minister of Defence, paragraphs 9 and 14-15 above). Having regard to the material available in the case file, as well as to the scarcity of the applicant’s arguments in this connection, the Court sees no reason to doubt either the authorities’ good faith or the fact that the applicant’s arrest and detention, which, as established above, was fully consistent with the domestic law (see paragraphs 46-47 above), did not involve the alleged procedural manipulation. Thus, no issue arises as regards the general purpose of Article 5 § 1 which consists in the need to protect the individual from arbitrariness (compare, for instance, Giorgi Nikolaishvili v. Georgia, no. 37048/04, §§ 56-58, 13 January 2009.

50. In view of the above considerations, the Court finds that the applicant’s pre-trial detention imposed in criminal cases nos. 2 to 4 and extending beyond 6 August 2013, that is when the measure imposed in criminal case no. 1 expired, cannot be viewed as “unlawful” on the grounds that, as alleged by the applicant, there had been a breach of the domestic law and judicial practice as interpreted and applied at the material time. As the applicant has not substantiated his allegation about arbitrariness or the circumvention of the principle of legal certainty in the way the pre-trial detention proceedings were conducted by the competent domestic authorities, and the Court is unable to discern any indication of such arbitrariness on its own, the complaint under Article 5 § 1 of the Convention is, accordingly, manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

2. As regards the complaint under Article 5 § 3 of the Convention

(a) The parties’ arguments

51. The Government submitted that it had been necessary to keep the applicant in pre-trial detention owing to the clearly apparent risks of his either absconding or perverting the course of justice. Those risks had been sufficiently addressed by the domestic courts in the detention orders of 9 November 2012 and 2 March and 26 October 2013 by reference to a number of particular factual circumstances: the fact that the applicant had managed to cross the State border in October 2012 without having his international passport recorded by the border police; the fact that the applicant had already attempted to threaten witnesses in at least two of the criminal cases instituted against him; and his prominent position in society and links within the hierarchy of the Ministry of Defence, the Ministry of the Interior and the Prisons Department, which could have been abused by him to frustrate the proceedings.

52. The applicant disagreed, arguing that the detention orders of 9 November 2012 and 2 March and 26 October 2013 had not contained relevant and sufficient reasons for the imposition of the pre-trial detention against him in criminal cases nos. 1 to 4.

(b) The Court’s assessment

(i) Period to be taken under consideration

53. The Court reiterates that where the pre-trial detention of a person (under Article 5 § 1 (c)) in one set of criminal proceedings effectively overlaps the start of the same person’s detention after conviction (under Article 5 § 1 (a)) in a parallel set of criminal proceedings, the period to be taken into consideration for the purposes of Article 5 § 3 of the Convention, which starts when the person was first arrested, ends upon his or her conviction at first instance in any of the parallel pending criminal proceedings, providing that there is a causal connection between the conviction and the actual detention. Otherwise, excluding the period of detention after conviction falling under Article 5 § 1 (a), a global assessment of the aggregate period of the pre-trial detention in all parallel sets of criminal proceedings would be required under Article 5 § 3 (compare Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 290-97, 22 December 2020, with further references).

54. In the present case, the applicant was arrested for the first time on 6 November 2012 within the framework of criminal case no. 1. He was convicted and given a custodial prison sentence at first instance in one of the remaining three parallel criminal cases on 28 October 2013, however, the resulting sentence was effectively extinguished by the presidential pardon of 3 November 2013 (see paragraphs 20-21 above). The second time the applicant was convicted and sentenced to imprisonment was 22 October 2014 and that conviction was never overturned or annulled (see paragraph 30 above).

55. Having regard to the above, the Court finds that the period to be taken into consideration with respect to the complaint under Article 5 § 3 began on 6 November 2012 and ended on 22 October 2014, and that the five days during which the applicant effectively served his prison sentence on the basis of the conviction of 28 October 2013 should be deducted from that period (see, mutatis mutandis, Selahattin Demirtaş, cited above, §§ 291 and 296‑97). The applicant’s pre-trial detention thus lasted, for the purposes of Article 5 § 3, twenty-three months and eleven days.

(ii) The reasonableness of that period

(α) General principles

56. The Court reiterates that the question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific features. Continued detention can be justified in a given case only if there are actual indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000‑XI, and Idalov v. Russia [GC], no. 5826/03, § 139, 22 May 2012). It is essentially on the basis of the reasons set out in the decisions of the national judicial authorities relating to an applicant’s pre-trial detention and of the arguments made in his or her requests for release or appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see Merabishvili, cited above, § 225, with further references). Where such grounds are “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see S., V. and A. v. Denmark, cited above, § 77, and Idalov, cited above, § 140). Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Shishkov v. Bulgaria, no. 38822/97, § 66, ECHR 2003-I).

57. The persistence of a reasonable suspicion that the detainee has committed an offence is a sine qua non condition for the validity of his or her continued detention. But when the national judicial authorities first examine, “promptly” after the arrest, whether to place the arrestee in pre‑trial detention, that suspicion no longer suffices, and the authorities must also give other relevant and sufficient grounds to justify the detention. Those other grounds may be a risk of flight, a risk of pressure being brought to bear on witnesses or of evidence being tampered with, a risk of collusion, a risk of reoffending, or a risk of public disorder and the related need to protect the detainee (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, §§ 87‑89 and 101‑102, 5 July 2016, with further references). Those risks must be duly substantiated, and the authorities’ reasoning on those points cannot be abstract, general or stereotyped (see Merabishvili, cited above, § 222, with further references). The risk of flight cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other factors, such as the accused’s character, morals, assets, links with the jurisdiction, and international contacts. Moreover, the last sentence of Article 5 § 3 of the Convention shows that, when the only remaining reason for detention is the fear that the accused will flee and thus avoid appearing for trial, he or she must be released pending trial if it is possible to obtain guarantees that that appearance will be ensured (ibid., § 223, with further references). Similarly, the risk of pressure being brought to bear on witnesses cannot be based only on the likelihood of a severe penalty, but must be linked to specific facts (ibid., § 224, with further references).

(β) Application of those principles

58. The Court considers that the reasons given by the Tbilisi City Court in its detention orders of 9 November 2012 and 2 March and 26 October 2013 to place the applicant in pre-trial detention – the risks that he would flee and would try to influence witnesses – were relevant. The question is whether they were also sufficient.

59. It is true that the City Court did not set out all the arguments cited by the prosecution in relation to those matters, especially with respect to the risk of flight. It did, however, expressly refer to the prosecution’s pleadings in its decisions. By doing so, it made it clear that it had taken into account the specific points put forward by the prosecution and had found them sufficient to justify placing the applicant in pre-trial detention. While more detailed reasoning would have been desirable, the Court is satisfied that this was enough in the circumstances, and that it can have regard to those specific points. It is true that under Article 5 § 3 of the Convention it is in the first place for the national judicial authorities to review all considerations for or against detention and set them out in their decisions (see, among other authorities, Letellier v. France, 26 June 1991, § 35, Series A no. 207; Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000‑IV; and McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006‑X). But there is no single standard of reasoning in those matters, and nothing precludes the national judicial authorities from endorsing or incorporating by reference the specific points cited by the authorities seeking the imposition of pre-trial detention (see Merabishvili, cited above, § 227).

60. The Court is of the view that the domestic courts’ findings regarding the risk of the applicant influencing witnesses were sufficiently substantiated. In particular, the fact that many witnesses in the case against him were former subordinates of his, and that he wielded considerable influence in some sectors of Georgian society was undoubtedly significant. Furthermore, the City Court explicitly referred to two specific incidents when the applicant had tried, after the initiation of the relevant investigations, to influence the witnesses in the relevant proceedings. The Court further considers that the risk of flight was established in concrete terms. In particular, the domestic authorities referred to the applicant’s wide network of domestic and international contacts and the fact that he had already managed, apparently owing to his connections in law-enforcement circles, to cross the State border without his international passport being recorded. Those facts, which were not even challenged by the applicant at the domestic level, as well as the seriousness of the punishment which awaited the applicant if convicted, suggest that the domestic courts established convincingly that at that time, straight after he was charged, the risk of his fleeing abroad could be seen as sufficiently real and incapable of being averted by a less restrictive measure.

61. Having established that the reasons contained in the detention orders of 9 November 2012 and 2 March and 26 October 2013 were relevant and sufficient, the Court has also to examine the question of whether the domestic authorities acted with special diligence (see Idalov, cited above, § 140). In this connection, the Court considers that while the overall period of the applicant’s pre-trial detention was lengthy, the fact that its length was the aggregate effect of the applicant being the subject of four distinct sets of criminal proceedings should not be underestimated. Furthermore, the investigations in all four criminal cases were complex tasks for the domestic authorities, owing, among other considerations, to the passage of time between the occurrence of the acts in issue and the start of the investigation, the large number of witnesses and co-accused to be examined in each case and the difficulties inherent in the prosecution of criminal offences allegedly committed by high-ranking officials, which the applicant was at the time (compare, mutatis mutandis, Batiashvili v. Georgia, no. 8284/07, §§ 58-59, 10 October 2019). The Court further notes that the applicant did not even claim that there had been significant periods of inactivity in the actions of the domestic authorities and has not brought up relevant arguments pointing to such delays.

62. In these circumstances, despite the relatively lengthy period of the applicant’s pre-trial detention, the Court concludes that his right to have his cases examined with particular expedition could not unduly hinder the domestic authorities’ conscientious efforts to carry out their investigative tasks with proper care (compare, among other authorities, Sadegül Özdemir v. Turkey, no. 61441/00, § 44, 2 August 2005, and Shabani v. Switzerland, no. 29044/06, § 65, 5 November 2009).

63. All in all, having regard to the fact that the domestic authorities gave relevant and sufficient grounds to justify the applicant’s pre-trial detention and displayed special diligence in the conduct of the proceedings, the Court finds that the complaint under Article 5 § 3 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

3. As regards the complaint under Article 18 of the Convention taken in conjunction with Article 5 § 1 (c)

(a) The parties’ arguments

64. The Government submitted that the applicant’s allegations of having been excluded from political life by means of criminal prosecution were not supported by any facts, and thus fell short of the very high standard of proof normally applied by the Court with respect to claims under Article 18 of the Convention. As regards the statements of the leaders of the various international organisations (see paragraph 65 below), the Government submitted that all those statements constituted pure politico-legal assessments of a general character which had not followed from a judicial examination of the factual circumstances of the applicant’s case.

65. The applicant complained under Article 18 of the Convention that the initiation of the criminal proceedings against him and his arrest had been used by the authorities to exclude him from the political life of the country. In support, he submitted a copy of public statements by various leading figures of the international community (the Secretary of State and several Senators of the United States of America, the Secretary General of the North Atlantic Treaty Organization, various European Commissioners), which conveyed concern over the initiation of criminal proceedings and arrest of former high-ranking government officials and called for independent justice, arguing that those statements should be taken into consideration during the examination of his complaint under Article 18 of the Convention. For instance, on 12 November 2012 the Secretary General of the North Atlantic Treaty Organization, when referring to the initiation of criminal proceedings against former high-ranking State officials including the applicant, publicly declared the following: “I am extremely concerned about the developments we have seen since the elections, not least related to recent arrests of political opponents in Georgia ... It is for the legal system, the judicial system in Georgia to sort out these cases, but it is important that such trials are not undermined by political interference.”

(b) The Court’s assessment

66. At the outset, and in reply to the parties’ arguments on the evidentiary value of various statements by international political actors (see paragraphs 36-37 and 65 above), the Court reiterates that in its task of assessing the claim of whether the domestic authorities had improper motives in restricting a politician’s human rights, it must base its scrutiny on the concrete facts of individual cases in question and needs to treat with caution statements that may have been influenced by political considerations (compare Khodorkovskiy v. Russia, no. 5829/04, § 259, 31 May 2011).

67. The Court further observes that the general principles concerning the interpretation and application of Article 18 of the Convention were set out by the Grand Chamber in its judgment in Merabishvili (cited above, §§ 287‑317). In so far as the applicability of Article 18 is at stake, the Court confirmed in that landmark case that this provision cannot have an independent existence. While there can be a breach of Article 18 even if there is no breach of the Article in conjunction with which it applies, a breach of the former provision can only arise if the right or freedom in issue is subject to restrictions permitted under the Convention, (ibid., §§ 287 and 290). For Article 18 to become applicable in conjunction with another substantive provision of the Convention or its Protocols, a restriction should be imposed on the right under the substantive provision. However, where no arguable issue, or no interference with the applicant’s rights, under the relevant substantive provision has been established, Article 18 cannot be relied upon (see Rustavi 2 Broadcasting Company Ltd and Others v. Georgia, no. 16812/17, §§ 316-17, 18 July 2019).

68. The Court notes that it declared manifestly ill-founded the applicant’s complaint under Article 5 § 1, having established that the applicant’s submissions did not disclose any indications of unlawfulness, arbitrariness or circumvention of the principle of legal certainty in the manner the pre-trial detention proceedings were conducted by the domestic authorities (see paragraphs 46-50 above). Thus, having regard to the fact that an arguable issue under the cited substantive provision of the Convention cannot be said to exist in the circumstances of the present case, Article 18 of the Convention cannot be relied on alone (see Rustavi 2 Broadcasting Company Ltd and Others, cited above, § 317, with further references). It follows that the complaint under Article 18 of the Convention in conjunction with Article 5 § 1 is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention

For these reasons, the Court, unanimously,

Decides to join the applications;

Declares the applications inadmissible.

Done in English and notified in writing on 30 June 2022.

Martina Keller Síofra O’Leary
Deputy Registrar President