Communicated on 22 September 2014
FOURTH SECTION
Application no. 39718/09
Irakli KERESELIDZE
against Georgia
lodged on 27 July 2009
STATEMENT OF FACTS The applicant, Mr Irakli Kereselidze, is a Georgian national, who was born in 1975 and lives in Tbilisi. He is represented before the Court by Ms M. Kobakhidze and Ms E. Chikvaidze, 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. In 1996 the applicant was convicted of aggravated double murder and other offences. He was sentenced to death penalty, which was commuted to twenty years’ imprisonment in 1997. On 29 March 2002 the applicant attempted to escape. On 12 April 2006 the Tbilisi City Court convicted him of attempted escape and illicit acquisition of an official document. For this conviction, he was sentenced to four years and six months in prison. Partly adding the outstanding sentence for the first conviction to the second sentence, the court ruled that the applicant in total had to serve thirteen years and six months in prison as from the date of commission of the second offence – 29 March 2002. On 20 April 2007, while the applicant’s appeal for the second conviction was still pending in the appellate court, at the applicant’s motion, the Supreme Court of Georgia reduced his commuted sentence for the first conviction from twenty to fifteen years’ imprisonment. However, the Supreme Court omitted to indicate in its decision the start date of the reduced sentence for the first conviction and how it would be combined with the applicant’s sentence for the second conviction. On 20 February 2008, to rectify the omission, the Supreme Court issued another decision stating that the re-calculated combined sentence for the applicant’s both convictions would be eight years and six months in prison, which would start to pend from 29 March 2002 (“the first sentencing decision”). Hence, under the first sentencing decision, which was final, the applicant’s combined prison term would expire on 29 September 2010. On 3 December 2008, upholding the first instance court decision on the applicant’s second conviction, the Tbilisi Court of Appeal ruled that the applicant had to serve thirteen years and six months in prison to be counted as of 29 March 2002. On 21 January 2009, together with the applicant’s cassation claim, the Tbilisi Court of Appeal sent the applicant’s case file to the Supreme Court of Georgia. On 3 April 2009 the Tbilisi Court of Appeal, without the applicant’s knowledge or an oral hearing, adopted the decision on rectification of an error in its judgment of 3 December 2008 and changed the start date of the combined sentence to 12 April 2006 – the date when the first instance court decision concerning the second conviction was adopted (“the rectified appellate decision”). On 7 April 2009 the Supreme Court of Georgia, which took notice of the rectified appellate decision, reducing the sentence for the applicant’s second conviction to three years, in its final decision made in camera, set the combined sentence of seven years’ imprisonment with the start date of 12 April 2006 (“the second sentencing decision”). Therefore, the applicant’s combined prison term under the second sentencing decision would expire on 12 April 2013. On 22 April 2009 the applicant filed a complaint in the Supreme Court, claiming that the start date of his combined sentence in the second sentencing decision should have been corrected to 29 March 2002. With the letter of 24 April 2009, the applicant was informed that the Supreme Court would not consider his complaint as the matter had already been resolved by the second sentencing decision. On 11 May 2009 the applicant lodged an interlocutory complaint against the change of the start date of the combined sentence in the rectified appellate decision, claiming that the change was made without his knowledge; he also complained that the rectification occurred after his cassation complaint and file were already submitted to the Supreme Court, which deprived him of the opportunity to raise this issue at the cassation level. The Tbilisi Court of Appeal replied to the applicant’s complaint with the letter of 16 June 2009, informing the applicant that his interlocutory complaint would not be considered as the matter had already been resolved by the second sentencing decision. On 17 November and 20 December 2010 respectively the Tbilisi Court of Appeal rejected the applicant’s request to re-open the criminal proceedings on the grounds of newly discovered circumstances, and then the Supreme Court of Georgia upheld the appellate court’s decision. On 17 January 2011 the applicant once again lodged the similar complaint in the Tbilisi Court of Appeal, which was left without consideration. On 29 September 2010 the applicant’s lawyer, in the letter addressed to the Ministry of Corrections and Legal Aid of Georgia, requested the release of the applicant claiming that the combined sentence imposed by the Supreme Court under the first sentencing decision expired on the same date. In response the prison authorities wrote to the applicant’s lawyer that the applicant was subject to serving the combined sentence in accordance with the second sentencing decision under which he had to serve seven years as from 12 April 2006. On 6 April 2011 the Public Defender of Georgia, after studying the applicant’s case, made a recommendation to the High Council of Justice of Georgia to launch disciplinary proceedings against the panel of three judges of the appellate court who had adopted the rectified appellate decision. In his letter the Public Defender noted that, by changing the start date of the sentence, the judges had in effect prolonged the applicant’s combined sentence in breach of the national law.
COMPLAINTS The applicant complains under Articles 5 § 1 (a) and Article 6 § 1 of the Convention that, since the expiry of his prison term under the first sentencing decision on 29 September 2010, he was unlawfully deprived of his liberty as the result of an unfair determination of his combined sentence in the second set of the criminal proceedings. In addition, the applicant complains that he did not have access to an effective remedy for his grievances under Articles 5 § 1 (a) and 6 § 1 of the Convention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention? In particular, given the two final decisions setting two different combined sentences for the applicant’s two convictions, did the deprivation of the applicant’s liberty during the period after 29 September 2010 fall within paragraph (a) of this provision?
2. Did the manner in which the second set of criminal proceedings were conducted against the applicant, namely the fact that the applicant was not able to present arguments regarding the change of the start date of the combined sentence for his two convictions, render these proceedings unfair in accordance with Article 6 § 1 of the Convention?
3. Did the applicant have at his disposal an effective domestic remedy for his complaints under Articles 5 § 1 (a) and 6 § 1 of the Convention, as required by Article 13 of the Convention?
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