Published on 11 March 2024
FIFTH SECTION
Applications nos. 382/24 and 2241/24
Mamuka KHAZARADZE and Badri JAPARIDZE against Georgia
and Avtandil TSERETELI against Georgia
lodged on 19 December 2023 and 15 January 2024 respectively
communicated on 22 February 2024
SUBJECT MATTER OF THE CASE
The two applications concern under Articles 6, 7 and 18 of the Convention the fairness of the criminal proceedings conducted against the three applicants (see the appendix) who are all Georgian nationals and reside in Tbilisi.
On 2 August 2018 the Anti-Money Laundering Department of the General Public Prosecutor’s Office (“the prosecution authority”) launched a criminal investigation into a large-scale financial scheme allegedly orchestrated between April and October 2008 by the first and second applicants, who were at that time the Chair and Deputy Chair of the Supervisory Board of TBC Bank (“the bank”) – one of the largest private financial institutions in the country – and the owners of almost 80% of its shares, with the assistance of the third applicant, their close friend and a well-known businessman.
On 24 July and 22 August 2019 the prosecution authority indicted the applicants under Article 194 of the CC for money laundering only. As regards the previously available information that certain acts imputed the applicants constituted the offence of financial fraud under Article 180 of the CC, the prosecution authority issued a decision on 30 September 2019 refusing to prosecute the applicants under the latter provision because the relevant statute of limitation for fraud (10 years) had already expired.
In September 2019 the first and second applicant issued a public declaration about their intention to set up a public movement/political party and to challenge the ruling forces in the parliamentary elections that would take place in 2020. Such a party, named Lelo, was registered towards the end of December 2020, with the first applicant becoming its President. Lelo obtained 3.15% of the votes cast in the 2020 parliamentary elections, which allowed it to obtain 4 seats in Parliament.
By judgment 12 January 2022 the Tbilisi City Court, after having conducted a trial, during which the question of possible reclassification of the criminal charges was addressed (with the applicants’ lawyers being able to plead on that particular legal question), found all the facts imputed to the applicants as established but decided, on the basis of a detailed legal assessment of those facts, to reclassify the charges from Article 194 to Article 180 of the CC, thus convicting them of financial fraud and sentencing to a prison term of seven years each. The court explained that the acts committed by the applicants contained all the elements of financial fraud and that certain elements normally attributable to the offence of money laundering were missing. As regards the sentencing part, since the statute of limitation for fraud had already expired, the City Court ruled that the applicants convicted under Article 180 should be exempted from serving the imposed prison sentences under Article 269 § 5 (b) of the Code of Criminal Procedure (the provision explicitly provided for a possibility of exempting a convicted person from the obligation to serve the imposed sentence in the event the statute of limitation for the offence in question had already expired at the time of the conviction).
The applicants appealed on points of fact and law against the conviction of 12 January 2022, complaining, amongst many other issues, about the reclassification of the offences by the trial court. They argued that by doing so the Tbilisi City Court had deprived them of a possibility to have information about the nature and cause of the accusations in due time and thus have enough time for the preparation of their defence. They also stated that by having convicted them of a time-barred offence, the Tbilisi City Court had breached the principle of nullum crimen sine lege as the conviction for fraud had no longer had any legal basis after the expiration of the relevant statute of limitation.
By judgment of 26 January 2023, the Tbilisi Court of Appeals, after having conducted a full re-trial, dismissed the applicants’ appeal and upheld the lower court’s conviction. The appellate instance noted that, according to the well-established legal practice, which was based on the relevant legal procedural norms (such as, for instance, Articles 273, 298 and 300 of the Code of Criminal Procedure), the judicial review could not be limited to the parties’ legal arguments, and that the courts were the masters of legal characterisation that ought to be given to the established facts, for which reason the lower instance had had full jurisdiction to reclassify the charges imputed to the applicants. The reclassification of the charges could not, however, affect the effectiveness of the applicant’s defence as the nature and cause of the impugned actions, that is the facts on which both the original and the reclassified charges were based, had remained the same. As regards the applicants’ reference to the principle of nullum crimen sine lege, the appellate court stated that the reclassification of the charges could not be equalled with a revival of the criminal responsibility after the expiry of the relevant statute of limitation. On the contrary, given the domestic legal framework, as well the applicants’ own clear wish to have the criminal case against them examined on the merits, the trial court had had no other option but to proceed, pursuant to Article 269 § 5 (b) of the Code of Criminal Procedure, with an examination of the already ongoing criminal proceedings and to address the statute of limitation only after having reached conclusive findings on the question of the applicants’ guilt. Furthermore, the court attached significance to the fact that the applicants had only benefited from the reclassification of the charges from money laundering to financial fraud, because the former represented “a particularly serious offence”, which carried a more severe penalty, whilst the latter fell within the classification of “a serious offence.”
The applicants lodged an appeal on points of law against the appellate judgment of 26 January 2023, but the Supreme Court dismissed it as ill‑founded on 15 September 2023, fully upholding the appellate judgment.
Citing Article 6 §§ 1 and 3 (b) and Article 7 of the Convention, taken alone and in conjunction with Article 18, the applicants complain about the reclassification of the criminal charges against them by the domestic courts, which resulted in their conviction despite the expiry of the relevant statute of limitation, and further claim that the hidden purpose behind their criminal prosecution was the authorities’ wish to remove them from the political life of the country.
QUESTIONS TO THE PARTIES
1. Did the applicants have a fair hearing in the determination of the criminal charges against them, in accordance with Article 6 §§ 1 and 3 (b) of the Convention? In particular, having regard to the reclassification of the criminal charges by the first-instance court, can the applicants be said to have had adequate time to prepare their defence, as required by Article 6 § 3 (b) of the Convention?
2. Having regard to the fact that the applicants were convicted of financial fraud under Article 180 of the Criminal Code (but exempted from serving the imposed sentence), the offence with respect to which the statute of limitation had by that time already expired, has there been a breach of Article 7 of the Convention in the criminal proceedings at stake?
2.1 In this connection, having regard to the relevant legal provisions applicable at the material time (as well as the judicial practice), should the statute of limitation be rather understood as a substantive concept – resulting in the offence being erased – or more of a procedural one – merely setting down certain preconditions for the prosecution and trial (compare Orlen Lietuva Ltd. v. Lithuania, no. 45849/13, § 97, 29 January 2019, with further references therein, and Antia and Khupenia, no. 7523/10, §§ 38-43, 18 June 2020)?
3. Having regard to the nature of Articles 6 and 7 of the Convention, in particular the question of the existence of either explicit or implied restrictions within those provisions, can the scope of Article 18 be extended to cover either of them (Ilgar Mammadov (no. 2), no. 919/15, § 261)?
3.1. If so, has there been a breach of Article 18 taken in conjunction with either Article 6 or Article 7 in the present case? In particular what purpose or purposes did the authorities pursue, within the framework of the criminal proceedings against the applicants, with respect to the restrictions allegedly imposed by the State under Articles 6 and/or 7? More specifically, were any of the purposes of the restrictions different from those permitted by the latter provisions? If the authorities pursued more than one purpose, which one was dominant (Merabishvili v. Georgia [GC], no. 72508/13, §§ 292-308, 28 November 2017)?