CASE OF ASHLARBA v. GEORGIA
Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege;Conviction;Criminal offence)
Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
5. The applicant was born in 1956 and lives in the village of Angisa, Ajarian Autonomous Republic (“the AAR”), Georgia. 6. On 15 February 2006 a criminal investigation was launched by the Ministry of the Interior of the AAR into the activities of a Mr A.K., on account of his alleged association with the criminal underworld, under Article 223(1) of the Criminal Code. Notably, he was suspected of being a “thief in law” (for an exact definition of this term, see paragraphs 1820 below) who ran criminal syndicates and participated in the settlement of various private disputes through criminal actions. In the course of the investigation, a number of relevant witnesses were questioned – the officers of the prisons where Mr A.K. had served his previous prison terms, his family members and other close persons, all of whom confirmed that Mr A.K. had indeed obtained, through the criminal ritual of “baptism”, the title of a “thief in law” in 1999. Since then he had participated in management of the “thieves’ underworld” (a well-organised network of criminal syndicates; for more details see paragraphs 21-22 below), in accordance with the special rules regulating the conduct of members of the criminal underworld. 7. On 5 March 2006 a search warrant was issued in respect of Mr A.K., who was living at that time in either Ukraine or Russia. According to the findings of that investigation, the fugitive suspect had been in regular telephone contact with other purported criminal leaders in the AAR, instructing them on how to settle various private disputes in the region. The subsequent judicially authorised tapping of Mr A.K.’s telephone conversation showed that one of the persons who had been receiving regular instructions from the “thief in law” was the applicant. Consequently, the criminal probe was expanded to include the latter’s activities. 8. On 31 July 2006 the applicant and another person, Mr Y.A., were arrested on suspicion of being members of the “thieves’ underworld”, an offence punishable under Article 223(1) § 1 of the Criminal Code. When questioned on the same day, the applicant confirmed that he had already known Mr A.K. for thirty years and was aware that he possessed the criminal title of a “thief in law”. The applicant added that a thief in law was, in his opinion, “a righteous man (კაი კაცობა)”. 9. On 29 September 2006 the criminal investigation against Mr A.K., the applicant and Mr Y.A., was terminated, and the case was transmitted by the prosecution service to a trial court. 10. By a judgment of 27 March 2007, the Batumi City Court convicted the applicant and Mr Y.A. of being members of the “thieves’ underworld” (Article 223(1) § 1 of the Criminal Code), sentencing them to seven and five years’ imprisonment respectively, whilst Mr A.K. was convicted of being a “thief in law” (Article 223(1) § 2 of the Criminal Code) and sentenced to ten years in prison. 11. The activities imputed to the applicant were described by the court, in general terms, as follows: “Acknowledging and giving recognition to the thieves’ underworld, [the applicant] has publicly expressed his support for it through his own lifestyle, and has been actively involved in achieving the goals of this underworld... by obtaining profits for its members and for other persons, and by terrorising and exercising coercion with respect to ordinary individuals; [the applicant] has disseminated the special rules of the thieves’ underworld through his own actions, and by assisting the thief in law in running this underworld.” 12. More specifically, the finding of the applicant’s guilt was based on the following three episodes, the reality of which had been confirmed by statements from numerous pertinent witnesses, examined during both the investigation stage and the trial, and evidence obtained by tapping the telephone lines of the applicant, the other convicts and other relevant persons. 13. Firstly, the City Court established that Mr A.K., generally acknowledged to be one of the most authoritative criminal bosses in the region, had requested the applicant to settle a dispute over an apartment between his mother-in-law and another individual. The court accused the applicant of accepting that task and becoming involved, between 24 June and July 2006, in unofficial adjudication of the dispute, using Mr A.K.’s criminal authority. In reply, the applicant unsuccessfully argued that he had merely wished to help the woman, who was his close acquaintance, to have the dispute settled by friendly agreement, as indeed the parties had been invited to do during a civil court hearing of their case at the relevant time; he had been unaware that such ordinary conduct was a criminal offence. He did not contest that he had indeed been asked by Mr A.K., his old friend, to look into the dispute. 14. Secondly, the City Court established that the same co-accused “thief in law”, Mr A.K., had requested the applicant, on 24 July 2006, to establish the whereabouts in Batumi of two young men, aged 20-25 years, who had refused to pay a fare to a private taxi driver. The applicant was asked to persuade the young men, using his own authority as a senior member of the criminal world, and the authority of the more influential Mr A.K., to settle the debt towards the driver. Implicitly acknowledging that he had indeed been requested to look into this second private dispute by Mr A.K., the applicant unsuccessfully argued that he had not taken any action in practice and thus could not understand why he should be held responsible for something which had not occurred. 15. Lastly, the City Court relied on the fact that on 8 July 2006 the applicant, when visiting an imprisoned acquaintance who was considered by members of the “thieves’ underworld” to be a promising young man, that is, a future “thief in law”, the applicant, in addition to discussing financial issues relating to the kitty (obshyak), the common fund belonging to the “thieves’ underworld”, had also informed him that the Minister of the Interior might soon lose his post, which would then naturally lead to reinforcement of the authority of “thieves’ in law” and of the relevant rules of conduct in the criminal world. With respect to this third episode, the applicant unsuccessfully argued before the court that he had merely expressed his opinion about the personality of the Minister of the Interior and that he should not be punished for that. 16. On 10 July 2007 the Kutaisi Court of Appeal, dismissing the applicant’s appeal in which he reiterated all of his previous arguments, fully upheld his conviction of 27 March 2007. 17. By a decision of 29 February 2008, the Supreme Court of Georgia rejected the applicant’s cassation appeal as inadmissible, thus terminating the criminal proceedings against him.