THIRD SECTION
Application no. 45554/08
Izet ASHLARBA
against Georgia
lodged on 22 April 2008
STATEMENT OF FACTS
THE FACTS
The applicant, Mr Izet Ashlarba, is a Georgian national who was born in 1956 and is currently detained in Rustavi prison no. 6. He is represented before the Court by Ms Marine Pkhaladze and Mr Givi Zirakashvili, lawyers practising in Tbilisi.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
By a judgment of 27 March 2007, the Batumi City Court convicted the applicant of membership of the criminal world, an offence prosecuted by Article 223(1) § 1 of the Criminal Code. The activities imputed to the applicant were described by the court, in general terms, as follows:
“Acknowledging and confessing to the criminal world, [the applicant] has been publicly expressing his support for it through his own lifestyle and has been actively involved in the achievement of the goals of this world.”
The City Court went on criticising the applicant for having established, after serving a prison sentence for murder, close connections with three other members of the criminal world (“the co-accused persons”), two of whom were convicted under Article 223(1) of the Criminal Code in the same judgment of 10 July 2007. In particular, the applicant was found guilty of conspiring with the co-accused persons with the aim of “obtaining profits for members of the criminal world and for other persons, terrorising and exercising coercion with respect to ordinary individuals; [the applicant] has been spreading the special rules of the criminal world by his own actions, assisting mafia bosses in the running of this world.”
More specifically, the finding of the applicant’s guilt was based on the following three episodes, the occurrence of which had been confirmed by the statements of numerous pertinent witnesses, examined during both the investigation stage and trial, and the evidence obtained by tapping the telephone lines of the applicant, the co-accused and other relevant persons.
Firstly, the City Court established that one of the co-accused persons, commonly known to be as one of the most authoritative mafia bosses in the region, had requested the applicant, on 24 June 2006, to settle a dispute over an apartment between his mother-in-law and another private person. The court reproached the applicant that he had accepted that task and had got involved, between June and July 2006, in the unofficial adjudication of the dispute. In reply, the applicant unsuccessfully argued that he had merely wanted to help the women, who was his close acquaintance, to have the dispute settled by a friendly agreement, as the parties were also invited to do by a civil court hearing their case at that time, and that he did not know that such an ordinary conduct was criminally punishable.
Secondly, the City Court established that the same co-accused mafia boss had requested the applicant, on 24 July 2006, to find the whereabouts of two young men in Batumi, aged 20-25 years, who had refused to pay for a fare to a private taxi driver. The applicant was asked to persuade the young men, using his authority of a member of the criminal world, to settle the debt to the driver. Implicitly acknowledging that he had indeed been requested to look into that second private dispute, the applicant unsuccessfully argued that he had not started implementing it in practice and thus could not understand why he should be held responsible for something which did not occur.
Lastly, the City Court reproached to the applicant the fact that, when visiting his acquaintance in a prison on 8 July 2006, the applicant told the latter that the Minister of the Interior might soon loose his post, which would then naturally lead to the reinforcement of the authority of mafia bosses and of the 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 should not be punished for that.
On 10 July 2007 the Kutaisi Court of Appeals, dismissing the applicant’s appeal in which he reiterated all his previous arguments, fully upheld his conviction of 27 March 2007. The applicant was sentenced to seven years in prison.
By a decision of 29 February 2008, the Supreme Court of Georgia rejected the applicant’s cassation appal as inadmissible, thus finally terminating the criminal proceedings against him.
B. Relevant domestic law
Article 223(1) of the Criminal Code, which was first introduced to the Code on 28 April 2006, reads as follows:
“Article 223(1): Membership of the criminal world. Being a mafia boss”
1. Being a member of the criminal world is punishable by 5 to 8 years’ imprisonment with or without a fine.
2. Being a mafia boss is punishable by 7 to 10 years’ imprisonment with or without a fine.”
COMPLAINTS
Relying on Articles 6 §§ 1 and 3, 8 and 10 of the Convention, the applicant contests the outcome of the criminal proceedings against him, claiming his innocence. In particular, he argues that the evidence in the criminal case file was not sufficient to confirm his guilt, that the domestic courts should have examined officers of the prison where his conversation with the detainee was tapped on 8 July 2006, that Article 223(1) of the Criminal Code does not clarify which exactly conduct constitutes a criminal offence and that, in actual fact, he was punished for having expressed his negative opinion about the Minister of the Interior.
QUESTIONS TO THE PARTIES
1. Was the wording of Article 223(1) of the Criminal Code precise and foreseeable enough for the applicant to regulate his conduct in the matter, as required by Article 7 of the Convention, this provision being invoked by the Court of its own motion (see, for instance, Başkaya and Okçuoğlu v. Turkey [GC], nos. 23536/94 and 24408/94, §§ 39-40, ECHR 1999‑IV)?
2. Did there exist at the material time any other accessible legal indicators (such as, for instance, relevant judicial practice of the Supreme Court of Georgia, official legal commentaries on the elements of crime under Article 223(1) of the Criminal Code and so on) which could have enabled the applicant, if necessary after appropriate legal advise, to foresee the legal consequences of the conduct which was then imputed to him by the domestic courts under the above-mentioned criminal provision?
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