CASE OF MGELADZE v. GEORGIA

FIFTH SECTION

CASE OF MGELADZE v. GEORGIA

(Application no. 35413/19)

JUDGMENT
 

STRASBOURG

16 May 2024

This judgment is final but it may be subject to editorial revision.

In the case of Mgeladze v. Georgia,

The European Court of Human Rights (Fifth Section), sitting as a Committee composed of:

 Stéphanie Mourou-Vikström, President,
 Lado Chanturia,
 Mykola Gnatovskyy, judges,
and Martina Keller, Deputy Section Registrar,

Having regard to:

the application (no. 35413/19) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 29 June 2019 by a Georgian national, Mr Archil Mgeladze (“the applicant”), who was born in 1973, lives in Tbilisi and was represented by Mr B. Kartsivadze, a lawyer practising in Tbilisi;

the decision to give notice of the application to the Georgian Government (“the Government”), represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice;

the parties’ observations;

Having deliberated in private on 18 April 2024,

Delivers the following judgment, which was adopted on that date:

SUBJECT MATTER OF THE CASE

1.  The application concerns the length of criminal proceedings, under article 6 § 1 of the Convention, in which the applicant was charged with embezzlement and the use of fraudulent documents (offences under Articles 182 and 210 of the Criminal Code respectively).

2.  On 23 February 2012 a criminal investigation was initiated into the circumstances of an alleged misappropriation of funds from a construction company called Rustaveli. On 25 February 2014 the applicant was formally charged in connection with that investigation and on 26 February 2014 the Batumi City Court ordered his release on bail, which had been set at 200,000 Georgian laris. The decision concerning bail was confirmed on appeal by the Kutaisi Court of Appeal. On 24 March 2014 all of the applicant’s bank accounts were frozen. After several pre-trial conferences, on 20 May 2014 his trial opened with Judge Kh.K sitting on the bench. Having conducted five hearings over a period of almost eighteen months, on 4 January 2016 Judge Kh.K. was transferred to another court. On the same date the applicant’s case was allocated to Judge I.Sh. Following several complaints by the applicant about the delay in the proceedings, Judge I.Sh. resumed the examination of the applicant’s case on 14 March 2017. On 30 June 2017 Judge I.Sh. was transferred to the civil chamber of the Batumi City Court. As a result, the applicant’s case was allocated to a substitute judge, L.G., who continued hearing the case and scheduled about seventeen hearings over a period of seventeen months. Four hearings were rescheduled because the defence did not appear, four were cancelled because the prosecution could not attend, and several others could not take place for other reasons.

3.  On 15 July 2019 Judge L.G. was transferred to another court. On 10 September 2019 the applicant’s case was allocated to yet another judge, T.B., who resumed the examination of the case on 28 February 2020. The proceedings were then suspended owing to the COVID-19 pandemic until 29 May 2020, when the trial was resumed. Subsequent hearings were scheduled on 25 June, and 2 and 27 July 2020. The last hearing was then postponed because the case was assigned to a new prosecutor. The next hearing, scheduled on 5 August 2020, was held remotely, while a hearing which should have been held on 25 September 2020 was adjourned because of a worsening in the COVID-19 pandemic. On 6 October 2020 the applicant lodged an application with the Batumi City Court requesting, in view of the excessive length of the proceedings, the discontinuation of his trial. Subsequently a hearing was held remotely on 23 October 2020; hearings scheduled for 16 and 26 November 2020 were adjourned because of the absence of the applicant’s lawyers, while hearings on 4 and 22 December 2020 and a hearing of 25 January 2021 were adjourned for various court‑related reasons.

4.  It appears from the case file that the relevant criminal proceedings are still underway at the Batumi City Court.

THE COURT’S ASSESSMENT

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

5.  The Government argued that the applicant had had an effective remedy at his disposal in the form of disciplinary proceedings, which he had not availed himself of. They referred in that connection to the Office of the Independent Inspector that had been established in 2017 as the initiator of disciplinary inquiries relating to judges. In particular, the Independent Inspector had powers to examine complaints lodged against judges concerning, among other issues, delays in the examination of cases; to initiate disciplinary inquiries; and to submit his or her opinions to the High Council of Justice, which was vested with the ultimate power to decide whether to initiate disciplinary proceedings or not. In support of their submission, the Government submitted several examples of disciplinary cases in which the Independent Inspector had established the fact of an unjustified delay attributable to judges in the examination of the relevant cases and had recommended to the High Council of Justice that disciplinary proceedings be conducted.

6.  The Government argued that, since the applicant had failed to take the above-mentioned action, the application should be declared inadmissible for non-exhaustion of domestic remedies under Article 35 § 1 of the Convention. They further submitted that in any event the applicant had not suffered significant disadvantage as he had never been held in pre-trial detention throughout the proceedings.

7.  The applicant disagreed.

8.  As regards the “effectiveness” of remedies in length-of-proceedings cases, the Court has held that the best solution in absolute terms is indisputably, as in many spheres, prevention. Article 6 § 1 imposes on the Contracting States the duty to organise their judicial systems in such a way that their courts can meet each of its requirements, including the obligation to hear cases within a reasonable time. Where the judicial system is deficient in this respect, a remedy designed to expedite the proceedings in order to prevent them from becoming excessively lengthy is the most effective solution. Such a remedy offers an undeniable advantage over a remedy affording only compensation since it also prevents a finding of successive violations in respect of the same set of proceedings and does not merely repair the breach a posteriori, as does a compensatory remedy. Hence, this type of remedy is “effective” in so far as it hastens the decision by the court concerned. At the same time, a remedy designed to expedite the proceedings may not be adequate to redress a situation in which the proceedings have clearly already been excessively long. In such situations, different types of remedy may redress the violation appropriately, including a compensatory remedy. Furthermore, States may choose to combine two types of remedy, one designed to expedite the proceedings and the other to afford compensation, although they may also choose to introduce only a compensatory remedy without such remedy being regarded as ineffective (see Scordino v. Italy (no. 1) [GC], no. 36813/97, §§ 183-87, ECHR 2006‑V, and Cocchiarella v. Italy [GC], no. 64886/01, §§ 74-78, ECHR 2006‑V; see also Galea and Pavia v. Malta, nos. 77209/16 and 77225/16, §§ 57-58, 11 February 2020).

9.  Turning to the circumstances of the present case, the Court notes that the Georgian legal system provides neither for a specific preventive remedy capable of expediting the proceedings, nor for a compensatory remedy as such. As far as disciplinary action is concerned, an identical argument to that put forward by the Government in the present case was previously examined and dismissed by the Court in the case of Schrade v. Georgia ([Committee], no. 15016/07, §§ 41-42, 11 March 2021). It appears that the system of disciplinary proceedings has recently evolved to incorporate the institution of an Independent Inspector (see paragraph 5 above). The Court does not see how the addition of an extra layer do disciplinary proceedings could render the proposed remedy effective in length-of-proceedings cases. In this connection, it is unclear what effect if any the outcome of disciplinary proceedings might have on the length of the original proceedings. In the context of the present case, the Court notes that the delay was primarily caused by the repeated replacement of the judges dealing with the applicant’s case (see paragraphs 2-3 above). It is therefore unclear how the disciplinary remedy suggested by the Government, which targets the conduct of individual judges, could have remedied that situation, which was purely organisational in nature. The Court also recalls that remedies which have no precise time-limits, thus creating uncertainty and rendering nugatory the four‑month rule (previously the six-month rule) contained in Article 35 § 1 of the Convention, are not effective remedies within the meaning of Article 35 § 1 (see Nicholas v. Cyprus, no. 63246/10, § 38, 9 January 2018). It accordingly considers that the Government’s non-exhaustion objection in relation to the applicant’s complaint under Article 6 § 1 has to be dismissed.

 10.  Moreover, the Court cannot agree with the Government’s argument that the applicant has not suffered any significant disadvantage (see Irodotou v. Cyprus, no. 16783/20, § 62, 23 May 2023). It further notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.

11.  The Court reiterates that the “reasonableness” of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities, and what was at stake for the applicant in the dispute (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999‑II, and Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000‑VII). It also notes that it is for the Contracting States to organise their judicial systems in such a way that the courts are able to meet the “reasonable time” requirement under Article 6 (see Lupeni Greek Catholic Parish and Others v. Romania [GC], no. 76943/11, § 142, 29 November 2016).

12.  Turning to the circumstances of the present case, the Court notes that the criminal proceedings in question started on 25 February 2014, when the applicant was charged with the criminal offences, and are still ongoing before the first-instance court. The period to be examined is thus more ten years for one level of jurisdiction.

13.  The Court notes that although the applicant’s case was of a certain complexity and the COVID-19 pandemic also contributed to the delay, those elements are not capable of justifying the overall length of the proceedings at the national level. While noting that some of the delay in the proceedings was attributable to the applicant, having examined all the material submitted to it, the Court considers that poor internal organisation of the relevant first instance court and the repeated transfer of the applicant’s case from one judge to another were the major factors that led to the lengthy proceedings. Having regard to its case-law on the subject, the Court is not convinced that the arguments produced by the Government in the present case can absolve the State from its responsibility for an overall length of proceedings of more than ten years at one level of jurisdiction.

14.  The Court accordingly considers that in the instant case the length of the proceedings was excessive and failed to meet the “reasonable time” requirement. There has accordingly been a violation of Article 6 § 1 of the Convention.

APPLICATION OF ARTICLE 41 OF THE CONVENTION

15.  The applicant did not submit a claim for just satisfaction. Accordingly, the Court considers that there is no call to award him any sum on that account.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

Done in English, and notified in writing on 16 May 2024, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

 Martina Keller Stéphanie Mourou-Vikström
 Deputy Registrar President