FOURTH SECTION
DECISION
Application no. 57990/10
Merab GORGADZE
against Georgia
The European Court of Human Rights (Fourth Section), sitting on 2 September 2014 as a Chamber composed of:
Ineta Ziemele, President,
George Nicolaou,
Ledi Bianku,
Nona Tsotsoria,
Zdravka Kalaydjieva,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 10 September 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Merab Gorgadze, is a Georgian national, who was born in 1977 and lives in Batumi. He was represented before the Court by Mr L. Mamuladze, a lawyer practising in Batumi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze of the Ministry of Justice.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant and according to the case file, may be summarised as follows.
3. On 5 July 2009 the applicant was arrested on suspicion of unlawful purchase, possession and sale of drugs. According to the record of his personal search, nine sachets containing a brownish substance were found in the right back pocket of his trousers. The search was carried out on the spot by two police officers, who rejected the applicant’s request for the attendance of independent witnesses, reasoning that there was a risk of him hiding or destroying the evidence. The applicant refused to sign the search record and specified that he had had no drugs on him.
4. According to the arrest report, which was drawn up immediately after the search, the applicant had multiple injuries on his body and face. When asked about the source of the injuries, the applicant, as noted in the report, claimed that he had fallen to the ground when running away from the police officers.
5. Later, after his transfer to the police station, an ambulance was called for the applicant. A doctor on duty conducted a visual examination and noted that the applicant had a hematoma on his left eye and several bruises on his chest.
6. On 6 July 2009 in prison the applicant was seen by a prosecutor. In the presence of his lawyer, the applicant complained that he had been severely beaten by police officers immediately after his arrest and also at the police station. A special note was drawn up detailing the applicant’s allegations, including the chain of events, the time, location, duration and methods of his ill-treatment. The applicant alleged that he had been threatened with rape.
7. The next day, the police officers who had arrested the applicant conducted an examination of the place of his arrest and concluded that the surface was uneven, with lots of rocks and holes.
8. On 17 November 2009 the Batumi City Court, whilst dropping the drug-dealing charges, convicted the applicant for unlawful possession of drugs in a particularly large quantity and sentenced him to eleven years’ imprisonment and a fine. By a decision of 21 January 2010 the Kutaisi Court of Appeal upheld the applicant’s conviction in full. Like the trial court, the appeal court, based its conclusions on the statements of the two police officers who had arrested the applicant and conducted his personal search. Both instances concluded that the applicant’s injuries had been the result of him having fallen several times during his attempt to escape.
9. On 17 March 2010 the Supreme Court of Georgia rejected an appeal on points of law lodged by the applicant. As it appears from the case file, despite his complaints, no criminal proceedings have been instituted into the circumstances of the applicant’s alleged ill-treatment.
B. Friendly-settlement proceedings before the Court and the relevant newspaper articles
10. On 11 July 2013 the application was communicated to the respondent Government. An information note, in Georgian, on the proceedings after communication of an application was forwarded at the same time to the applicant. It included the information that the nature of all friendly settlement negotiations was strictly confidential. On 29 November 2013 the Government submitted a friendly-settlement proposal within the framework of the proceedings before the Court, and on 3 December 2013 the Court sent the Government’s proposal to the applicant.
11. By their letter of 11 April 2014 the Government informed the Court that the applicant had disclosed the details of the friendly-settlement negotiations conducted between the parties to the media, in violation of the confidentiality rule as enshrined in Rule 62 § 2 of the Rules of Court. They accordingly invited the Court to declare the application inadmissible.
12. In their letter the Government referred the Court to an interview of the applicant published by the news agency Reportiori on 8 April 2014. In that interview the applicant provided a brief factual summary of his case and disclosed the specific amount proposed by the Government with a view to securing a friendly settlement. He further claimed that his refusal to accept the compensation offered had “irritated the Minister of Justice, following which they have sent to Strasbourg documents with distorted facts.”
13. It appears that even before that date, on 29 January 2014, another media source – news portal Kvira, published another interview with the applicant in which the latter likewise discussed the Government’s friendly‑settlement proposal and referred to the specific amount proposed by the Government. The article was accompanied by scanned copies of the relevant letters from the Court.
COMPLAINTS
14. The applicant complained under Articles 1, 3 and 13 of the Convention that he had been ill-treated by police and that no investigation had been conducted in this regard. He also alleged, under Article 6 § 1 and 13 of the Convention, that drugs had been planted on him by the police and that the domestic courts had based his conviction on unlawfully obtained evidence.
THE LAW
15. The Government argued that by disclosing the contents of the friendly-settlement proposal to the media the applicant had breached the confidentiality of the friendly-settlement negotiations. Article 39 of the Convention and Rule 62 § 2 of the Rules of Court read as follows:
Article 39 of the Convention
“1. At any stage of the proceedings, the Court may place itself at the disposal of the parties concerned with a view to securing a friendly settlement of the matter on the basis of respect for human rights as defined in the Convention and the Protocols thereto.
2. Proceedings conducted under paragraph 1 shall be confidential.
3. If a friendly settlement is effected, the Court shall strike the case out of its list by means of a decision which shall be confined to a brief statement of the facts and of the solution reached.
4. This decision shall be transmitted to the Committee of Ministers, which shall supervise the execution of the terms of the friendly settlement as set out in the decision.”
Rule 62 § 2 of the Rules
(Friendly settlement)
“In accordance with Article 39 § 2 of the Convention, the friendly-settlement negotiations shall be confidential and without prejudice to the parties’ arguments in the contentious proceedings. No written or oral communication and no offer or concession made in the framework of the attempt to secure a friendly settlement may be referred to or relied on in the contentious proceedings.”
A. The parties’ arguments
16. The Government submitted that the applicant had discussed the details of the Government’s friendly-settlement proposal with the media. They claimed that the applicant’s actions constituted an abuse of the right of individual application and that the application should accordingly be rejected pursuant to Article 35 of the Convention.
17. The applicant dismissed the Government’s allegations as untrue. He claimed that his case was of particularly high interest for the media, hence the journalists themselves had somehow got hold of the information about the amount proposed by the Government. He had simply answered their questions concerning the reasons behind his rejection of the Government’s friendly-settlement proposal.
B. The Court’s assessment
18. The Court reiterates that, in accordance with Article 39 § 2 of the Convention, friendly-settlement negotiations are confidential. Furthermore, Rule 62 § 2 of its Rules stipulates that no written or oral communication and no offer or concession made in the course of friendly-settlement negotiations may be referred to or relied on in contentious proceedings. This rule is absolute and does not allow for an individual assessment of how much detail was disclosed (see Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010, and Lesnina Veletrgovina d.o.o. v. the former Yugoslav Republic of Macedonia (dec.), no. 37619/04, 2 March 2010).
19. In view of the importance of this principle, the Court further reiterates that a breach of the rule of confidentiality might justify the conclusion that an application is inadmissible on the grounds of an abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, § 66, 15 September 2009; Benjocki and Others v. Serbia (dec.), nos. 5958/07, 6561/07, 8093/07 and 9162/07, 15 December 2009, and Balenović (cited above)). In order to be regarded as an abuse of application, the disclosure of confidential information must be intentional. Also, the direct responsibility of the applicant in the disclosure must be established with sufficient certainty (see Miroļubovs, cited above, § 66).
20. Turning to the circumstances of the present case, the Court notes at the outset that the information note enclosed together with the Court’s letter of 11 July 2013 made it clear to the applicant and his representative that the nature of friendly-settlement negotiations was strictly confidential. The applicant was, therefore, aware of this requirement and should have complied with it.
21. However, following the receipt of the Government’s friendly‑settlement proposal, the applicant disclosed its details to the media, in particular the amount proposed. He also commented on other aspects of the friendly-settlement negotiations and publicly criticised the Government in this regard. The applicant’s argument in this connection, that he was not responsible for the disclosure of the confidential information, cannot be accepted. In both interviews he was directly quoted by the journalists. Moreover, as far as the interview of 29 January 2014 is concerned, it was accompanied by scanned copies of the letters sent by the Court registry to the applicant and his representative. Having regard to the above, the Court considers that the disclosure was clearly attributable to the applicant and not to any other party.
22. To conclude, given that the applicant intentionally made public the terms of the friendly-settlement proposal made by the Government, the Court considers that his conduct amounts to a breach of the rule of confidentiality, which must also be considered to be an abuse of the right of individual application. In these circumstances, it is appropriate to reject the application in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy