CASE OF GIGOLASHVILI v. GEORGIA
Violation of Article 5 - Right to liberty and security
András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky
5. The applicant was born in 1966 and lives in Rustavi. 6. On 6 December 2003 the applicant was arrested by the police and charged with the offence of the unlawful possession of drugs. 7. On 8 December 2003 the Vake-Saburtalo District Court in Tbilisi remanded the applicant in custody for three months. The court endorsed the prosecutor’s argument that, in view of the applicant’s prior conviction for which he had been on probation, there was a reasonable suspicion that he might abscond pending the new set of proceedings. 8. On 19 February 2004 the prosecution brought against the applicant and two other persons additional charges of conspiracy to commit the unlawful possession of arms, robbery and murder. 9. On 4 March 2004 the Tbilisi Regional Court extended the applicant’s detention until 5 May 2004. 10. On 29 April 2004 the investigator in charge of the case, notifying the applicant and two other accused persons that the investigation had been terminated, invited them to study the case materials. The applicant contested the termination of the investigation, requesting that additional witnesses be examined. In a decision of 29 April 2004, the investigator, reasoning that the applicant could have made such a request earlier, dismissed it as an attempt to prolong the proceedings. 11. On 5 May 2004 the authorised period of the applicant’s detention expired without the court ordering its extension. 12. On 13 May 2004 the applicant complained to the competent prosecution authority that his detention had been unlawful since 5 May 2004. He also challenged the termination of the investigation as premature. 13. In a decision of 16 May 2004, the Vake-Saburtalo district prosecutor dismissed the applicant’s complaint of 13 May 2004 as unsubstantiated. As regards the alleged unlawfulness of detention since 5 May 2004, the prosecutor reasoned that the time during which the accused studied case materials did not, under the relevant procedural law, count towards the detention term. In so far as the applicant and his representatives had started studying the case materials on 30 April 2004, this fact being proved by the relevant records of the investigator, the applicant’s detention thereafter could not be said to be unlawful. 14. On 8 July 2004 the Vake-Saburtalo district prosecutor sent the criminal case, along with the bill of indictment, to the Supreme Court of Georgia for trial. According to the indictment, the three accused persons and their lawyers had been examining the case materials between 30 April and 7 July 2004. 15. On 26 October 2004 the applicant complained to the Supreme Court, reiterating, inter alia, that no judicial decision had authorised his detention since 5 May 2004. As to the prosecutor’s reasoning that the time spent on studying the case materials had not counted towards the detention term, the applicant, relying on numerous factual details, first submitted that his lawyer had fully examined the file on 30 April and 1 May 2004, in two and a half hours. He further argued that, even if the investigator’s formal records were to be trusted, then the examination of the file should be considered to have ended on 28 June 2004. Since his case had been referred for trial only on 8 July 2004, the applicant claimed to have been kept in unlawful detention for at least ten days. In the light of the above arguments, he requested to be released immediately. 16. On 27 October 2004 the Supreme Court, having examined the admissibility of the case, decided to commit the applicant and the two others for trial under Article 417, 425 and 428 of the Code of Criminal Procedure (“the CCP”). Without replying to the applicant’s allegations about the unlawfulness of his pre-trial detention, the court upheld the restraint measure on the basis of the “nature of the charges” and the inability to conduct, at the admissibility stage, a comprehensive judicial assessment of his arguments for release. 17. As disclosed by the case file, the Supreme Court relinquished, on 6 May 2005, jurisdiction over the criminal proceedings in favour of the Tbilisi Regional Court. On 31 May 2005 the applicant complained about the unlawfulness of his detention before the latter, reiterating his previous arguments. 18. On 20 July 2005 the Tbilisi Regional Court dismissed the applicant’ April 2004, immediately after the termination of the investigation on 29 April 2004. This process lasted until 7 July 2004, one day before the case was sent by the prosecutor for trial. Reiterating that, pursuant to Article 406 § 4 of the CCP, the period of examination of the case file did not constitute part of the authorised detention term, the Regional Court concluded that the applicant’s detention between 30 April and 7 July 2004 should not be taken into account. 19. In an order of 5 July 2006, the President of the Supreme Court noted that, the applicant’s criminal case file having been sent for trial on 8 July 2004, the permissible term of twenty-four months for the defendant’s pre-trial detention under Article 680(4) § 9 of the CCP would expire on 8 July 2006. Using his prerogative under the same Article to extend, in exceptional circumstances, the detention beyond that term, the President remanded the applicant in custody until 8 November 2006. 20. In a verdict of 22 December 2006 of the Tbilisi Regional Court, the applicant was convicted of the aforementioned offences and sentenced to twelve years in prison. The period of imprisonment started to run, according to the verdict, from the date of the applicant’s arrest on 6 December 2003. Article 406 § 4 – “Time spent on studying the case materials” “The time spent by the accused (defendant) and his or her representative on studying the criminal case materials shall not be counted towards the period of detention prescribed by law.” “1. Where there is a sufficient basis for hearing the case, the judge (court), without prejudging the merits of the case, shall commit the accused for trial... 3. During the admissibility hearing, in addition to deciding whether to commit the accused for trial..., the judge (court) shall decide whether to impose a measure of restraint on the accused.” “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).” The CCP distinguished between two periods of detention: detention “pending investigation”, whilst the case was investigated, and detention “pending trial”, whilst the case was tried by a court. Although there was no difference in practice between the two periods of detention, the calculation of the time-limits was different. Incorporated into the Code by an Amendment of 25 March 2005, Article 680(4) contained provisional rules regulating the time-limits of the above-mentioned periods of detention. Pursuant to Articles 680(4) § 1, those provisional rules, particularly that contained in Article 680(4) § 9, were to remain valid until the entry into force of Article 162, the latter provision introducing shorter time-limits of detention. Article 681 § 9 stated that Article 162 would enter into force on 1 January 2006. Pursuant to Article 680(4) § 9, if only two levels of jurisdiction were involved, the permitted term of detention “pending trial” was twenty-four months. However, in “exceptional circumstances”, the President of the Supreme Court could extend that term to a maximum of thirty months. An amendment of 28 April 2006, which entered into force on 13 May 2006, further revised Article 162, by reducing the maximum permissible term of detention pending “investigation” and “trial”, to nine months, both periods taken together. Simultaneously, Article 681 § 2 was amended to bring Article 162 into force on 1 January 2007. Consequently, the provisional rules on the detention time-limits contained in Article 680(4) also remained in force until 1 January 2007 (see Article 680(4) § 1 above). The complainant challenged the constitutionality of Article 406 § 4 of the CCP. On 16 December 2003 the Constitutional Court declared that the provision was not only unconstitutional but also incompatible with Article 5 § 1 of the Convention. However, the Constitutional Court ruled in the operative part of its judgment that, in order “to avoid the creation of difficulties for the investigative authorities”, the enforcement of its judgment by the annulment of the impugned provision should be delayed until 25 September 2004. Pursuant to section 23 § 1, if the Constitutional Court found the challenged legislative provision to be unconstitutional, that provision should be considered null and void from the moment the relevant judgment was pronounced. Under Article 25 § 3, the Constitutional Court’s judgment should be enforced immediately after its announcement, unless another date was fixed.