CASE OF PATSURIA v. GEORGIA
Violation of Art. 5-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
5. The applicant was born in 1961 and is currently detained in Rustavi No. 1 Prison. 6. Under a contract of 18 January 2001, the Ministry of State Property Management (“the Ministry”) undertook to transfer to the applicant 90 % of the shares of the “Georgian State Insurance JSC” (“the company”), on condition that he, amongst other obligations, increased the company’s initial capital to 480,000 Georgian laris (EUR 218,000) within a month of signing the contract. 7. On 14 March and 7 May 2001, the Ministry requested an up-date of the progress made in the performance of the contractual obligations. The applicant replied by submitting documents, according to which the amount of USD 250,000 (EUR 207,000), initially placed with a Canadian bank, had been transferred to the company’s account opened with a Georgian bank. 8. Following the recommendation of the Georgian National Bank (a State agency), the Prosecutor General’s Office (“the PGO”) examined the applicant’s financial operations. In a decision of 26 January 2004, a senior prosecutor of the PGO, having established the authenticity of the bank records submitted by the applicant, refused, pursuant to Article 28 § 1 (a) of the Code of Criminal Procedure (“the CCP”), to institute criminal proceedings for an alleged falsification of those documents. (The applicant did not submit a copy of that decision to the Court.) 9. On 28 April 2004 the Prosecutor General personally opened a criminal case regarding the misappropriation of 90 % of the State’s shares by fraud and the falsification of bank documents, offences envisaged respectively by Articles 180 § 3 (b) and 362 of the Criminal Code (“the CC”). (The parties did not submit a copy of that decision.) 10. On 5 May 2004 the applicant was charged and taken into custody. 11. Initially, the applicant was placed in a “quarantine cell” at Tbilisi No. 1 Prison. According to him, the cell was filthy, dilapidated, infested with vermin, and without ventilation or natural light. Shortly afterwards, the applicant was transferred to an ordinary cell in the same prison where there were 24 beds for the 57 inmates held there. The detainees were obliged to take turns to sleep. The cell was unsanitary and the food putrid. 12. On 8 May 2004 the Krtsanisi-Mtatsminda District Court in Tbilisi dismissed the applicant’s request for release, remanding him in custody for three months. An oral hearing was held. In its reasoning the court stated: “the collected evidence...discloses a reasonable suspicion that the accused has committed the incriminated offences...The evidence has been gathered in conformity with procedural norms...Due regard should be had to the fact that the applicant is charged with serious crimes...The case materials substantiate the suspicion that he might interfere with the establishment of the truth...In view of the prospect of a severe punishment, [he] may abscond...” 13. In his appeal of 9 May 2004, the applicant complained that the imposition of detention on remand had been justified solely by the gravity of the charges and the severity of the sentence. In his view, the prosecution had not put forward any specific evidence or arguments supporting any actual risk of him colluding or absconding. The applicant claimed to have been actively cooperating with the prosecution authority even prior to his arrest by always appearing, whenever summoned for interviews, and by producing all the requested evidence which, in fact, had become the basis of the criminal case file against him. As another guarantee of his reliability, the applicant referred to his “good reputation”, associated with the fact of being a designated trustee of the Canadian Chamber of Commerce. 14. The PGO replied that the detention was justified by the gravity of the charges and a reasonable suspicion that the applicant could interfere with the establishment of the truth. However, no concrete arguments or factual circumstances of the particular case were put forward in this regard. 15. On 13 May 2004 the Tbilisi Regional Court dismissed the applicant’s appeal against the remand measure at an oral hearing. Whilst analysing various pieces of evidence, the court had regard mostly to whether or not the charges were well-founded. Concerning the grounds for detention, the court reiterated that, pursuant to Articles 151 and 159 of the CCP, the gravity of the offence justified the imposition of the measure. The appellate hearing was attended by the applicant and his advocates. 16. On 6 August 2004 the PGO terminated the preliminary investigation and transferred the case, along with the bill of indictment, to the trial court. 17. On 6 December 2004 the Vake-Saburtalo District Court in Tbilisi committed the applicant for trial under Article 417 § 1 of the CCP and confirmed the remand in custody. This decision was rendered in a standard, template form with pre-printed reasoning. The judge simply added, in the blank spaces, a brief statement of facts, the name of the accused, the definition of the impugned offence and the measure of pre-trial restraint. As regards the confirmation of the latter, the printed standard phrase read as follows: “The measure of pre-trial restraint – detention – has been correctly chosen.” 18. On 11 February 2005 the Vake-Saburtalo District Court in Tbilisi started the examination of the case on the merits, and on the 17th convicted the applicant of attempted fraud. The court sentenced him to three years in prison. The charge of falsification of bank documents was dropped as timebarred. The verdict was based on a thorough assessment of the criminal case materials. 19. On 13 February 2006 the Tbilisi Regional Court dismissed the applicant’s appeal and upheld the verdict of 17 February 2005 with some merely textual amendments. 20. On 20 June 2006 the Supreme Court dismissed the applicant’s cassation appealcarefully examined by the preliminary and judicial investigations, that no significant breaches of procedural law had occurred and that the lower courts had correctly assessed the facts and the law. 21. Amongst the complaints made by the applicant before the appellate and cassation courts, the applicant raised the same matters as those now put before the Court under Article 6 of the Convention (see paragraph 83 below). 22. After his conviction, the applicant was transferred to Rustavi No. 1 Prison, where the conditions were, according to him, similar to those in Tbilisi No. 1 Prison. 23. The applicant alleged that the following incident occurred during his detention: In the early morning of 30 January 2006, he was awoken by the noise of machine gun fire in Rustavi No. 1 Prison. As it appeared later, the police forces had conducted a special operation against criminal elements there. 24. The applicant complained about the conditions in Rustavi No. 1 Prison and the incident of 30 January 2006 to several national and international non-governmental organisations, but never to the prosecution or judicial authorities, according to the case file. Whilst claiming to have written a letter to the Head of Rustavi Prison, informing the latter of the poor conditions of his detention, the applicant did not produce any copy thereof, or indicate its date. 25. On an unspecified date, the administration of Rustavi No. 1 Prison disciplined the applicant for failing to attend a mandatory inspection of prisoners, and he was placed in a punishment cell for three days. However, he has never complained about this to any competent national authority, considering that such a course of action would have been ineffective. 26. On 21 September 2006 the Ministry of Justice, the authority in charge of the penitentiary system, initiated criminal proceedings against the applicant for using a mobile telephone in Rustavi No. 1 Prison, in breach of the prison rules. 27. At an oral hearing on 22 September 2006 attended by the applicant, the Tbilisi City Court allowed the prosecutor’s motion and imposed upon the applicant detention on remand for two months. The court reasoned that, since the applicant was already detained following his conviction, it was impossible to apply any other measure of pre-trial restraint. 28. On 27 October 2006 the Tbilisi Regional Court, sitting in camera, dismissed the applicant’s appeal and upheld the order of 22 September 2006. 29. The applicant addressed several complaints to the PGO, requesting the termination of the allegedly unlawful proceedings. He also claimed that his procedural rights were breached during the investigation. 30. According to the case file, the second set of criminal proceedings against the applicant is still pending before a court of first instance. Article 18 § 6 “...the accused cannot be held on remand for more than nine months.” 32. Code of Criminal Procedure, as it stood at the material time Article 28 § 1 - “Grounds for the refusal to initiate criminal proceedings and for the decision to terminate the initiated proceedings” “Criminal proceedings shall not be initiated and the initiated proceedings shall be terminated, if: a) The action, envisaged by the criminal law, does not exist... m) The inquiry, investigation or prosecution authority has refused to initiate criminal proceedings or decided to terminate the proceeding initiated for the same offence...” Article 140 § 17 “Before the end of the investigation, the parties have the right to lodge an application with the court which has imposed a measure of pre-trial restraint ... requesting its annulment or modification... The parties may exercise this right only when newly discovered circumstances of a substantial character, which were not known to the judge at the time of the imposition of the pre-trial restraint measure, require that the reasonableness of that measure be reviewed.” Article 146 § 7 “Charges shall be preferred no later than 48 hours after the arrested person is brought before an inquiry agency. If, within the following 24 hours, the court does not decide on the imposition of detention on remand or another measure of restraint, the arrested person shall be released immediately.” Article 151 §§ 1, 2 and 3 - “The basis for and objectives of the imposition of a restraint measure” “A restraint measure shall be applied to ensure that the accused cannot avoid the preliminary investigation and trial, that his or her further criminal activity is prevented, that he or she cannot interfere with the establishment of the truth in the given criminal case, or that the court’s verdict is executed. The application of a restraint measure is justified if the evidence in the criminal case file sufficiently substantiates the assumption that it is necessary to ensure the attainment of the aims mentioned in the first paragraph of this Article. The ground for the imposition of detention on remand can be a substantiated suspicion that the accused may abscond, interfere with the establishment of the truth in the criminal case, or if a serious or grave crime has been committed.” Apart from detention on remand, Article 152 § 1 envisages the possibility of using such measures of pre-trial restraint as police supervision, home arrest, bail or a personal undertaking not to leave the place of residence. Article 159 § 3 - “Detention” “Detention on remand shall be imposed only with regard to the person who is charged with an indictable offence carrying [a punishment of ] more than two years in prison...” The Code distinguished between two periods of detention on remand: detention “pending investigation”, that is whilst the competent prosecution agency investigated the case, and detention “pending trial”, whilst the case was tried in court. The person detained “pending investigation” was referred to as an “accused”. After the case was sent to a court, that person would become a “defendant” (Article 44 §§ 24 and 25). Although there was no difference in practice between two periods of detention, the calculation of the time-limits was different. Pursuant to Article 162 §§ 2 and 3, the maximum permitted period of detention “pending investigation” was nine months. It started to run from the moment the person was taken into custody and ended the day when the prosecutor sent the case, along with the bill of indictment, to the trial court (Article 162 §§ 1 and 2). The maximum permitted term of detention “pending trial”, calculated from the day when the prosecutor forwarded the case to the competent court until the final cassation verdict, was 48 months if three instances of jurisdiction were involved, and 30 months if the case was examined by only two instances (Article 162 §§ 8 and 9). Article 12 § 1 classified crimes, according to the terms of imprisonment which they carried, as minor, serious or grave. Pursuant to Article 12 § 3, a premeditated offence carrying 10 years’ imprisonment as a maximum term, or an offence committed by negligence which carried 5 years’ imprisonment as a minimum term, were considered to be serious crimes. Article 180 § 3 (b) stated that fraud, i.e. the misappropriation of another person’s property by deception, committed with regard to objects of great value, was punishable by a prison sentence of between 5 to 10 years. Article 362 criminalised the fabrication and use of false identity cards, templates of various formal documents, seals, etc. This offence was punishable by a prison sentence of up to 3 years. The complainants challenged various provisions of Article 162 of the CCP, differentiating between the period of detention “pending investigation” and that “pending trial”, for their compatibility with Article 18 § 6 of the Constitution. They alleged that the unnecessary distinction between the two types of detention often resulted in situations where the overall term of detention exceeded the constitutional time-limit of nine months. The Constitutional Court dismissed the complaint, noting that Article 18 § 6 of the Constitution solely defined the maximum permitted term of detention “pending investigation” which, pursuant to Article 162 of the CCP, ended on the day when the prosecutor sent the case to the competent court for trial: “The Constitutional Court observes that Article 18 § 6 of the Constitution determines the term only for the detention of a suspect or accused person pending investigation, excluding the detention period of a defendant pending trial...”