Communicated on 5 May 2017
FIFTH SECTION
Application no 7523/10
Marina ANTIA and Nana KHUPENIA
against Georgia
lodged on 9 November 2009
STATEMENT OF FACTS
The applicants, Ms Marina Antia and Ms Nana Khupenia, are Georgian nationals who were born in 1964 and 1960 and live in Zugdidi and Ingiri village respectively. They are represented before the Court by Mr G. Pipia, a lawyer practising in Zugdidi.
The facts of the case, as submitted by the applicants, may be summarised as follows.
Until 19 October 2006 the applicants worked for a regional office of the National Social Security Agency (“the Agency”). Their duties included identification of pensioners who were fraudulently in employment and returning unlawfully received social payments to the fund’s bank account.
On 19 October 2006 the applicants were charged with negligence while performing their duties as public servants. In particular, the bill of indictment stated that they had omitted to fulfil their duties in the time period between the years 1998‑2004, which had resulted in six employed pensioners unlawfully receiving pensions amounting in total to 3,198 Georgian laris (GEL – approximately 1,225 Euros (EUR)), a substantial impingement of the State’s interest with serious consequences.
On 8 February 2007 the applicants’ case file was forwarded to the first‑instance court along with the bill of indictment.
On 3 July 2008 first-instance court convicted the applicants as charged and sentenced each of them to fines in the amount of 500 GEL (some EUR 220).
On 31 July 2008 the applicants lodged an appeal, refuting the first‑instance verdict. They claimed that at the time of commission of the alleged crime, that is to say in 1998-2004, the staff of the Agency had not been considered as public servants and thus they could not possibly have been charged with the particular crime. It had only been in 2006 that the Agency staff members had been given the status of ordinary public servants. Moreover, according to Article 342 of the Criminal Code, as that provision had stood at the material time, namely in 2004, negligence while performing official duties had been considered a minor offence that envisaged a two‑year statute of limitations that had already expired by the time the charges had been brought.
On 19 November 2008 a court of appeal dismissed the appeal and upheld the first-instance court judgment. The appellate court pointed out that while serving at the Agency the applicants represented, in substance, a public authority and thus it had been possible to charge them with the alleged crime. Regarding the expiration of the statute of limitations, the court found that the fifteen-year statute of limitations which had been introduced by the legislature with respect to minor offences in 2006 should be held applicable to the situation in question. On 8 December 2008 the applicants lodged an appeal on points of law, submitting the same arguments as in the appellate court.
By a decision of 28 May 2009, the Supreme Court of Georgia allowed the applicants’ appeal in part. Notably, it amended the appellate decision of 19 November 2008 by stating that it was the two-year statute of limitations which was applicable to the offences committed by the applicants. Given that that statute had already clearly expired by the time the charges had been brought against them, the cassation court ruled that they should be exempted from the punishment for the committed offence. The Supreme Court did not exempt the applicants from the criminal responsibility for the committed acts as such.
COMPLAINT
The applicants complain under Article 7 § 1 of the Convention that they were convicted on account of an omission which did not constitute a criminal offence under national law at the time of its commission.
QUESTIONS TO THE PARTIES
1. Having regard to the fact that the criminal prosecution against the applicants ended in their being convicted but exempted from the relevant punishment (see the Supreme Court decision of 28 May 2009), can the applicants claim to have suffered significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention?
2. Did the applicants’ conviction amount to a violation of Article 7 § 1 of the Convention?
2.1 Having regard to the two-year statute of limitations which was applicable at the material time with respect to the relevant offences (see the Supreme Court’s decision of 28 May 2009), could the omission of which the applicants were convicted be said to have constituted a crime under the relevant domestic law? In particular, did the applicants have the status of public officials, which was apparently the main substantive element for being subject of the alleged crime?
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