Communicated on 28 September 2015
FOURTH SECTION
Applications nos. 30464/13 and 19068/14
Bachana AKHALAIA
against Georgia
lodged on 4 May 2013 and 31 January 2014
STATEMENT OF FACTS
1. The applicant, Mr Bachana Akhalaia, is a Georgian national who was born in 1980 and lives in Tbilisi. He is represented before the Court by Mr D. Dekanoidze, a lawyer practising in Tbilisi.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the cases
1. Background
3. Prior to the parliamentary election of 1 October 2012 which entailed the change of government, the applicant, one of the leaders of the then ruling party United National Movement (UNM), had held various high posts in the Government of Georgia under President Mikheil Saakashvili. Notably, he had served as the Head of the Department of Prisons of the Ministry of Justice (between December 2005 and December 2008), Deputy Minister of Defence (between December 2008 and August 2009), Minister of Defence (August 2009 and July 2012) and Minister of the Interior (between July 2012 and September 2012).
4. On 20 September 2012 the applicant resigned from the post of Minister of the Interior after video recordings of ill-treatment 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 to share with certain impugned prison officers who had been recruited during his tenure” (an excerpt from the applicant’s public statement of 20 September 2012 on resignation from the post of Minister of the Interior).
5. Immediately after the parliamentary election of 1 October 2012, the applicant left the country. He explains that temporary departure by his wish to contribute to the peaceful, democratic transition of the power in the country.
6. As the applicant never had in mind to avoid any political or legal responsibility, he returned to Georgia on 5 November 2012, after the power transition had been completed and a new Government had been approved by the newly elected Parliament.
7. In his public statement dated 5 November 2012, the applicant expressed his readiness to cooperate with the law-enforcement authorities concerning any possible criminal case.
2. Facts as submitted in application no. 30464/13
8. On 6 November 2012 the applicant was summoned by the Chief Public Prosecutor’s Office and, after an interview, was arrested, at around 11:20 p.m., in relation to a criminal case launched against him and two other high-rank military officers for the offences prescribed under Articles 143 and 333 of the Criminal Code – false arrest and abuse of official capacity.
9. In particular, the three co-accused persons were suspected of having verbally and physically assaulted, in the office of the applicant at the time when he had 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 demanding, after the victim’s beating and on pain of second recourse to physical coercion, that Mr Z.A. cede free of charge his expensive car to the applicant’s close friend who held the post of the Head of the Penitentiary Department of Georgia at that time.
10. On 8 November 2012 the Chief Public Prosecutor’s Office preferred the two above-mentioned charges against the applicant and the two other co-accused persons and filed with the Tbilisi City Court a request for the imposition of a preventive measure against them in the form of detention on remand.
11. On 9 November 2012 the Tbilisi City Court examined, at an oral public hearing, the question of the imposition of pre-trial detention. During the hearing, the prosecution authority, referring to the influential societal position and links of the accused persons due to their either former or current high-ranking State and military positions, advanced the risk of impeding the course of the investigation and absconding. The defence argued, in reply, that the bail in the amount of either 20,000 or 10,000 Georgian laris per each accused would suffice for the purposes of securing the interests of the investigation without subjecting the accused persons to detention.
12. Having heard the parties’ arguments, the Tbilisi City Court issued a decision on the same day remanding the applicant in pre-trial detention, without specifying its length but setting the date for a pre-trial conference by 25 December 2012. As to the remaining two co-accused persons, the court released them on bail, fixing the amount at 20,000 Georgian laris.
13. As to the grounds militating for the imposition of detention with respect to the applicant, the Tbilisi City Court, after having noted the existence of a reasonable suspicion of the commission of the impugned offences, stated in a general manner, without referring to any specific factual circumstances of the case, that the gravity of the charges and the severity of the possible sentence could induce the applicant either to abscond from or otherwise impede the investigation. The court also stated that the defence had failed to refute the prosecution authority’s fear that the applicant’s release might negatively affect the investigation.
14. The applicant appealed against the decision of 9 November 2012, requesting a release on bail. His appeal was dismissed as ill-founded by the Tbilisi Court of Appeal on 13 November 2012. Amongst other arguments, the appellate court stated that since the applicant had held in the past a number of high-ranking State posts, such as the Minister of Defence and of the Interior, he could use, if released, his influential position to thwart the course of the criminal proceedings.
15. In the meantime, on 12 November 2012, the prosecution started investigation of another episode allegedly constitutive of the applicant’s conduct criminally liable under the above mentioned Articles 143 and 333 of the criminal Code. Notably, the applicant was accused of having masterminded, at the time when he had held the post of Minister of Defence, degrading treatment and unlawful restriction of liberty of several soldiers. Notably, those soldiers were purportedly coerced, upon the applicant’s order, to take off their clothes and run in a cold winter day for an hour, after which exercise they had been unlawfully locked up for two days on the premises of a military base.
16. Within the framework of that second set of criminal proceedings, the Tbilisi City Court authorised the applicant’s pre-trial detention on 13 November 2012, which decision was upheld by the Tbilisi Court of Appeals on 16 November. The Court set a date for the opening of a pre‑trial conference at 4 January 2013.
17. On 14 December 2012 the Tbilisi City Court, granting the prosecutor’s extension requests in both sets of criminal proceedings which were grounded on the difficulties encountered in the process of collecting certain pieces of evidence, set a new date for the opening of pre‑trial conferences by, respectively, 30 January and 11 February 2013
18. On 4 January 2013 the two criminal investigations, which had been launched on 6 and 12 November 2012 under Articles 143 and 333 of the Criminal Code (see paragraphs 6 and 12 above), were joined in a single criminal case (hereinafter referred to “criminal case no. 1”).
19 On 22 January 2013 the Tbilisi City Court extended the date for the opening of a pre-trial conference until 20 February 2013.
20. On 24 January 2013 the applicant filed with the Tbilisi City Court a request for replacement of the measure of pre-trial detention with bail, for which he expressed his readiness to pay 50,000 Georgian laris. He grounded his request on the claim that certain pieces of evidence had been gathered in breach of procedural rules.
21. On 25 January 2013 the Tbilisi City Court rejected the applicant’s request as ill-founded. The court noted that whether or not evidence had been gathered in compliance with procedural rules is a question for examination during the trial and did not represent a newly discovered circumstance which could warrant the alteration of the already approved pre-trial detention. The decision of 25 January 2013 was upheld by the Tbilisi Court of Appeals on 29 January 2013.
22. On 20 February 2013 the pre-trial conference was opened, during which the applicant requested again that his detention be replaced with bail. He referred that with the lapse of time less stringent measures of pre‑trial restraint, such as bail, could satisfy the interests of the investigation. That request was examined by the City Court at an oral public hearing and rejected by a reasoned decision of 2 March 2013. The court stated that since a number of important witnesses were to be heard during the trial, the applicant could, if released, attempt to intimidate those witnesses and thus hinder the justice.
23. In the meantime, on 1 March 2013, two new sets of criminal proceedings were instituted against the applicant by the prosecution authority under Article 144 and 333 of the Criminal Code – threat of torture or degrading treatment and excess of official capacity. One of those sets of proceedings (“criminal case no. 2”) concerned the events of the spring 2006, when the applicant held the post of the Head of the Prison Department of Georgia. He was accused of having mastermind, together with a criminal authority, a “prison riot”. The second set of criminal proceedings (“criminal case no. 3”) concerned the period when the applicant held the post of Minister of the Interior, during which he would verbally and physically assault, threaten with beatings and torture and even arbitrarily restrict, for short period of time, physical liberty of a number of high-rank officers of the Ministry who he had deemed to be politically untrustworthy.
24. On the following day, 2 March 2013, the Tbilisi City Court authorised, after having conducted two separate judicial examinations, the applicant’s pre-trial detention within the framework of criminal cases nos. 2 and 3 by issuing two separate orders. The court confirmed that, given the severity of the charges and the applicant’s influential societal position linked to his previous high-ranking State positions, only the deprivation of his liberty could secure the purposes of the investigations in the two new cases. The two detention orders of 2 March 2013 were upheld by the Tbilisi Court of Appeals on 6 March 2013.
25. On 1 August 2013 the applicant was acquitted of all charges within the framework of criminal case no. 1.
26. On 28 October 2013 the applicant was convicted of the charges preferred against him within the framework of criminal case no. 2. He was sentenced to imprisonment for an unspecified duration (no copy of the conviction was submitted). However, President Saakashvili subsequently granted him a pardon.
27. On 31 October 2013 the applicant was acquitted of all charges as regards criminal case no. 3.
3. Facts as submitted in application 19068/14
28. In the meantime, on 25 October 2013 the prosecution authority brought new charges against the applicant under Article 332 of the Criminal Code – abuse of official capacity.
29. The facts constitutive of the impugned offence consisted in the applicant’s unlawfully extending privileges, at the time when he had held the post of the Head of the Department of Prisons of the Ministry of Justice between December 2005 and December 2008, to four inmates who were detained in prison no. 10 in relation to a murder case in which the applicant’s brother had allegedly been also involved (criminal case no. 4) (for more details about this criminal case, see Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 129 and 130, 26 April 2011).
30. On the same day the prosecutor in charge of criminal case no. 4 requested the imposition of pre-trial detention as a preventive measure. The request was grounded on the risks of absconding and undue influence on the course of the investigation.
31. By a decision of 26 October 2013, the Tbilisi City Court granted the applicant’s request by ordering the applicant’s pre-trial detention within the framework of criminal case no. 4 for an indefinite period of time. In its reasoning, the court first established, by reference to the evidence available at that time in the case file, the existence of a reasonable suspicion of the commission of the impugned offence. The court then stated that, albeit the applicant had already been in pre-trial detention ordered within the framework of the previous sets of criminal proceedings, those proceedings were supposed to be finalised by the trial court’s judgment on the applicant’s guilt in the near future. Thus, there naturally existed a possibility of the trial court delivering an acquittal, and the applicant might thus find himself in liberty, which fact in its turn could negatively affect the interests of the investigation in criminal case no. 4. In particular, the court then assessed the risk of absconding in the light of the circumstances of the latest criminal case, by confirming its reality by such factors as the fact that both the applicant and his brother had occupied high-ranking Governmental posts for many years and thus possessed influential societal position and various domestic and international financial and human resources. As regards the risk of unduly influencing the course of the investigation, the court confirmed the existence of such a risk by reference to an episode of a witness for prosecution, Mr T., a former governor of prison no. 10. Notably, that person had first given statements incriminating the applicant, then, after a meeting with the applicant’s lawyers, issued a video message in which he complained to have been coerced by the investigators into incriminating the applicant and then again, in a third public statement, renounced his previous accusation of coercion against the investigators. After having analysed a number of factual circumstances relating to the contacts which had been made between Mr T. and various people from the applicant’s close entourage, the court concluded that the applicant might have already been trying to influence that witness.
32. On 30 October 2013 the Tbilisi Court of Appeals, declaring the applicant’s appeal inadmissible, upheld the decision of 26 October 2013. The appellate court reasoned that all the actual 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.
4. International community’s comments
33. The applicant also submitted, as part of the materials attached to both applications, newspaper articles containing interviews with various high‑ranking officials of the current Government of Georgia (the Prime Minister, Ministers and so on), excerpts from which could prove, in his opinion, that a politically motivated persecution has been launched against the former members of the government.
34. The applicant also referred to public statements by various leading figures of the international community (the Secretary of State and several Senators of the United States, the Secretary General of the North Atlantic Treaty Organisation, various European Commissioners) which conveyed concern over the initiation of criminal proceedings and arrest of former high-ranking Government officials. Thus, for instance, the President of the European Commission made a public statement on 12 November 2012, after his meeting with the Prime Minister of Georgia, in which there was the following passage: “The elections in Georgia were successfully held, and they were recognised as free and fair elections [...] Democracy is more than elections, it’s the culture of political relations in democratic environment. In this respect, situations of ‘selective justice should be avoided as they could harm the country’s image abroad and weaken rule of law.” On the same day, the Secretary General of NATO publicly declared that “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 case. But of course it is important that such trials are not undermined by political interference.”
35. The European Union High Commissioner for Foreign and Security Policy publicly declared during her visit to Georgia on 26 November 2012 the following: “The European Union calls on all sides in Georgian politics to uphold European values of democracy, freedom and the rule of law. There should be no selective justice; no retribution against political rivals. Investigations into past wrongdoings must be, and must be seen to be, impartial, transparent and in compliance with due process.” The United States Secretary of State publicly declared during her meeting with the Georgian Minister of Foreign Affairs in November 2013: “We do hope that everything that is done with respect to prosecuting any potential wrongdoers is done transparently in accord with due process of law.”
36. On 1 October 2014 Parliamentary Assembly of the Council of Europe adopted Resolution 2015 (2014) on the Functioning of Democratic Institutions in Georgia, the text of which directly referred to the pre‑trial detention of the applicant in the following terms:
“10.7. [The Assembly] expresses its concern about the length of the pre-trial detention of former Defence Minister Bacho Akhalaia and asks the authorities to use all legal means available to replace his detention on remand with some other non-custodial precautionary measure.”
B. Relevant domestic law
37. Pursuant to Article 18 § 6 of the Constitution of Georgia, the maximum period of pre-trial detention is nine months.
38. The same principle is enshrined in the Code of Criminal Procedure of Georgia (“the CCP”) (entered into force on 1 October 2010). In particular, Article 205 of the CCP, providing for pre-trial detention, reads in its relevant parts 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) re-offending.
2. The overall length of the accused person’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.”
COMPLAINTS
39. In both his applications, the applicant complains under Article 5 § 1 (c), this provision cited separately and in conjunction with Article 18, as well as under Article 5 § 3 of the Convention that the imposition of the preventive measure of pre-trial detention was (a) unlawful, this complaint being made with an emphasis on the fact of his continued detention beyond the maximum permissible time-limit of nine months, (b) unreasonable, the latter shortcoming following from the allegedly inadequately reasoned domestic courts decisions, and (c) had for a true reason the current Government’s retribution for the applicant’s past political activities.
40. The first application (no. 30464/13) containing the above-mentioned complaints, which was lodged with the Court on 4 May 2013, targets the pre‑trial detention imposed by the domestic courts within the frameworks of criminal cases nos. 1-3, whilst the second application (no. 19068/14) was lodged with the Court on 31 January 2014 on account of the pre‑trial detention imposed on the applicant within the context of criminal case no. 4.
QUESTIONS TO THE PARTIES
1. Has the applicant been deprived of his liberty in breach of Article 5 § 1 (c) of the Convention?
In particular, did the deprivation of the applicant’s liberty after 6 August 2013, that is after the expiration of the statutory maximum time-limit of nine months for a pre-trial detention (see Article 18 § 6 of the Constitution and Article 205 § 2 of the Code of Criminal Procedure) which started to run from the applicant’s initial arrest on 6 November 2012, still fall within paragraph (c) of this provision?
1.1. In this respect, what is the domestic legal practice, if any, on the calculation of the above-mentioned statutory time-limit of nine months in a situation when an accused is subject to prosecution and pre-trial detention in unrelated but parallel or consecutive sets of criminal proceedings?
2. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?
2.1. In this respect, and having regard to the fact that there was no interruption of the applicant’s pre-trial detention at least until 28 October 2013, the date of his conviction at first instance, should the distinct terms of the applicant’s pre-trial detention imposed on the basis of distinct court orders within the framework of four unrelated criminal cases be assessed cumulatively to or independently from each other under Article 5 § 3 of the Convention (contrast for this purpose with each other, for instance, Dochnal v. Poland, no. 31622/07, § 74, 18 September 2012, no. 40063/98, 22 December 2004, and Idalov v. Russia [GC], no. 5826/03, §§ 127‑136, 22 May 2012?
2.2. Should the applicability of Article 5 § 3 of the Convention be limited to the period of the applicant’s detention prior to his conviction and consequent sentencing to imprisonment at first instance on 28 October 2013 (see Borisenko v. Ukraine, no. 25725/02, §§ 35-46, 12 January 2012)? In the affirmative, what is the significance, if any, of the fact of the applicant’s exemption from imprisonment by a Presidential pardon for the purposes of triggering applicability of Article 5 §§ 1 (c) and 3 of the Convention anew? When did exactly the President of Georgia pardon the applicant?
2.3. Have, in the meantime, any new sets of criminal proceedings initiated against the applicant? In the affirmative, has the preventive measure of pre-trial detention been imposed against the applicant within the framework of these new criminal proceedings and, if so, on which legal basis?
3. Was the applicant’s detention in those various sets of criminal proceedings applied for a purpose other than those envisaged by Article 5 § 1 (c) of the Convention, contrary to Article 18 of the Convention?
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