Communicated on 13 December 2017
FIFTH SECTION
Application no. 21447/11
Zurab LOBZHANIDZE
against Georgia
lodged on 29 March 2011
STATEMENT OF FACTS
The applicant, Mr Zurab Lobzhanidze, is a Georgian national who was born in 1964 and currently lives in Horgen, Switzerland. He is represented before the Court by Mr L. Erni, a lawyer practising in Zurich and Mr I. Mgaloblishvili and Mr P. Kiknavelidze, 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.
1. First set of criminal proceedings
In 2000-2004 the applicant served as chairman of the board of directors of two companies – JSC Madneuli and LLC Quarzite.
On 3 February 2004 the applicant was charged in absentia with abuse of his official managerial and representative authority in one of those enterprises (LLC Quarzite) – against the interests of the latter and for the profit of another person – causing substantial damage.
By an order of 4 February 2004 the Krtsanisi-Mtatsminda Regional Court authorised the detention of the applicant. He was declared a fugitive and his name was placed on the wanted list.
On 16 April 2004 the applicant was in addition charged with repeated, large-scale tax evasion in connection with his activities in JSC Madneuli.
According to the submissions made by the applicant, in February 2004 the former President of Georgia, Mr M.S., and the former Prime Minister, Mr Z.Z., in television speeches publicly accused the applicant of financial subterfuge (ფინანსური მაქინაციები). On 19 February 2004 a correspondent of the Mzera television channel stated that while the Prime Minister had been talking to journalists, he had stated that financial machinations within JSC Madneuli should have been investigated and that the Prime Minister had warned the applicant that the Georgian law‑enforcement agencies would reach him even in Switzerland. On the same day the television presenter of the Rustavi 2 television channel quoted Mr Z.Z. as follows:
“Madneuli will not be left in dirty hands again. Under the former management the enterprise was deliberately led into bankruptcy.”
In a televised speech on the Imedi television channel, Mr Z.Z stated:
“Lobzhanidze is in Switzerland and thinks that Georgian justice will not reach him in Switzerland. We will not leave the activities of these scoundrels unaddressed. Not only were these people doing all this in the past but they are doing their best now to remain within Madneuli and to continue their previous activities. I said once and I am saying again that anyone who dips his hand into a state enterprise will lose his hand.”
On 20 February 2004, in a briefing that he gave on the Mzera television channel, Mr M.S. stated:
“What is going on in Madneuli? Madneuli is a state enterprise [that mines] gold. It belongs to every Georgian. ...Then a man like Lobzhanidze [is appointed] and 40 million dollars [of the money earned in gold exports] have been stolen ...”
2. Second set of criminal proceedings
By a judgment of 8 July 2010 the Khelvachauri District Court convicted the applicant in absentia, finding him guilty of inciting his mother-in-law (Ms P.P.) and Mr M.K. to prepare and use a false document certifying title to property and sentenced him to seven years’ imprisonment.
According to the judgment, between 1998 and 2001 the applicant built a house in Kvariati, a village in Khelvachauri Region. In view of the absence of documents certifying that he had acquired the property through legal means, the applicant registered the property in the name of Ms P.P. In November 2003, in order to further conceal the illegal origin of the property, the applicant decided to prepare a document recording the fictitious sale of the property to Mr M.K. For this purpose the applicant incited Ms P.P. and Mr M.K. to prepare and use a false document certifying Mr M.K.’s title to the property in question. On 26 April 2004 an agreement on the purchase of real estate containing false data was concluded between the representative of Ms P.P. and Mr M.K. According to the agreement, Ms P.P. sold the house, together with 3,162 square metres of land, to Mr M.K. for 200,000 Laris (GEL). On the same day the agreement, certified by a notary, was submitted to the Khelvachauri Registry Service and the property title was registered in the name of Mr M.K.
In the course of the proceedings before the first-instance court the defence counsel requested that the new owner of the property be called as a witness, but the request was refused as unsubstantiated.
The court based its judgment on the following evidence: (i) the statements of witnesses confirming that the house had been owned by the applicant; (ii) statements given by the previous owners of the land confirming that the applicant had purchased the property; (iii) the fact that one of the previous owners had testified to the court that it had been Ms P.P. who had purchased part of the land (that is to say the part of the land belonging to that previous owner) from him; (iv) a statement by two persons looking after the house who confirmed that they had been paid by Ms P.P. for their services; (v) the delivery confirmation according to which Ms P.P. had been granted ownership on the basis of an agreement with the public notary of Khelvachauri Region; (vi) the impugned sale agreement; (vii) a statement by a police officer stating, inter alia, that according to information which he had obtained from an anonymous source, the house had belonged to the applicant.
The applicant’s counsel appealed against the judgment, stating that the act allegedly committed by the applicant had not constituted a crime for which he could be convicted. The applicant’s counsel argued firstly that the impugned agreement could not have constituted in itself a document certifying title to property and secondly that – even assuming that the agreement did constitute such a document – it would have been invalid if any of the signatures or the notary seal that it contained (or any other essential elements of the agreement) had been falsified. In the present case, the applicant’s counsel asserted, it was not disputed that the signatures, as well as all other essential elements of the agreement, had been authentic and valid. The counsel further claimed that even in the event that the agreement had not been concluded for the purpose that it had been intended for – that is to say the sale of the property – it should have been declared null and void through civil proceedings. The applicant’s counsel also submitted that (i) the then Minister of Interior had moved into the house, and therefore had had wanted to acquire the property for himself, which had been the reason for the initiation of the criminal proceedings against the applicant, (ii) no evidence had existed proving the unlawful acquisition of the impugned property, and (iii) the information gathered by the police had been the only evidence the court had relied on.
By a judgment of 30 November 2010 the Kutaisi Court of Appeal upheld the judgment in full.
On 21 March 2011 the Supreme Court of Georgia rejected as inadmissible an appeal by the applicant on points of law.
3. Third set of criminal proceedings
By a judgment of 30 September 2010 the Khelvachauri District Court found the applicant guilty in absentia of grossly interfering with judicial activities (სამართალწარმოების განხორციელებაზე ზეგავლენის მიზნით სასამართლოს საქმიანობაში უხეში ჩარევა) in order to influence the administration of the proceedings and sentenced him to one year’s imprisonment.
According to the reasoning of the judgment, on 6 July 2010 the applicant had telephoned D.M., a judge of the Khelvachauri District Court, who at that time had been considering the case brought against the applicant and his mother-in-law, Ms P.P. (see above). Having put several questions to the judge, the applicant had tried to grossly interfere in the judicial activities in question. D.M. had immediately discontinued the conversation and informed the Kutaisi Court of Appeal of the incident. On 9 July 2010 an acquaintance of the applicant had lodged with the Khelvachauri District Court a copy of a letter written by the applicant and Ms P.P. and addressed to D.M. In this letter, which had been drafted in violation of the relevant legislation, the applicant and Ms P.P. had tried to influence the judge. In particular, the applicant and Ms P.P. had indicated in the letter that the judge had been biased; by such a gross interference they had attempted to influence the court in such a way that it would rule on the case in their favour.
During the proceedings before the first-instance court, in view of the fact that the applicant had been declared a fugitive, the trial judge assigned him a lawyer under the legal-aid scheme.
The time-limit for appealing the judgment of 30 September 2010 expired on 30 October 2010.
On 26 November 2010 a lawyer appointed by the applicant, having learned of the above-mentioned decision, lodged an appeal on the merits with the Khelvachauri District Court together with a request that the court renew the expired time-limit and hear his appeal. The counsel submitted that neither the applicant nor his lawyer and relatives had been informed of the criminal proceedings in question and for that reason the appeal had been lodged out of time. The court refused the request for the time-limit to be renewed on the grounds that the defence counsel had not submitted evidence justifying the fact that the applicant had been unable to lodge an appeal before the expiry of the relevant time-limit.
The applicant’s counsel appealed against that decision. By a decision of 21 December 2010 the Kutaisi Court of Appeal found that the defence counsel had not been authorised to lodge an appeal, given that under Article 523 § 4 of the Criminal Procedure Code (“the CCP”) a person who was convicted in absentia could file an appeal within one month of his or her arrest or appearance before the relevant bodies (or the day on which the relevant judgment was delivered if the convicted person requested that an appeal be heard in his/her absence). In the present case, the court stated that the applicant had not been arrested, and neither had he appeared before the relevant bodies; as for any desire of the applicant to have the appeal heard in his absence, no such request had been submitted by the applicant’s counsel. The court concluded that due to the fact that the request on renewal of the time-limit together with the appeal had not been lodged by an authorised person, the first instance court had not had to consider it. The appellate court thus annulled the decision of the first instance court on refusing the request for the time-limit to be renewed and did not consider the appeal.
The applicant’s counsel lodged with the appellate court an appeal addressed to the Supreme Court of Georgia, citing Article 518 § 4 of the CCP, under which counsel or a representative could lodge an appeal with the consent of a convicted person. The counsel claimed that the power of attorney which had been enclosed with the appeal authorised him to represent the applicant. He added that by means of this document the applicant had given his counsel his consent to appeal against decisions delivered in connection with the criminal cases against him. Subsequently his appeal was dismissed on the grounds that the decision of 21 December 2010 was final and could not be appealed.
B. Relevant domestic law
Under Article 210 of the Criminal Code of Georgia (“the CC”), preparing, selling or using a forged credit or settlement card, other tax document or a document certifying title to property which is not a security shall be punished by a fine or correctional labour for up to two years or by the restriction of liberty for up to three years or by a term of imprisonment of between two and four years.
According to the commentaries of legal experts on the CC, a document (which is not a security) certifying title to property can be a document such as a certificate of ownership, the “technical passport” of a vehicle, a waybill, or an invoice. “Creating a false document” implies the forging of a document fully or partially. For example, a tax document is forged if it is certified by a false seal and a forged signature.
The following provisions of the Code of Criminal Procedure (“the CCP”), as in force at the material time, are relevant.
Under Article 81 § 4 of the CCP, if a suspect or an accused avoided appearing before the investigative bodies, he or his close relatives had to be given 48 hours in which to appoint a lawyer. If they did not appoint a counsel within this time, a lawyer had to be appointed on a compulsory basis.
Under Article 236 § 4 of the CCP, a decision by a court refusing to renew a missed time-limit for lodging an appeal could – one time only – be appealed against to a higher court. The court could renew the missed time‑limit and hear the case on the merits.
Under Article 518 § 4 of the CCP, counsel and a representative could lodge an appeal with the consent of a convicted person.
Under Article 523 § 4 of the CCP, a person who was convicted in absentia could file an appeal within one month of his or her arrest or appearance before the relevant bodies or within one month of the day on which the judgment in question was delivered if the convicted person requested that the appeal be reviewed in his/her absence.
COMPLAINTS
Under Article 6 § 1 of the Convention, the applicant complains of (i) the failure of the domestic courts to give sufficient reasons for his conviction in connection with the second set of proceedings, having based that conviction mainly on information supplied by an anonymous source and (ii) the unsubstantiated refusal to hear a witness whose statement could have been decisive for the outcome of the proceedings.
Under Article 7 § 1 of the Convention, the applicant complains that in respect of the second set of proceedings he was convicted on account of an omission which did not constitute a criminal offence under national law at the time of its commission.
The applicant complains under Article 6 § 2 of the Convention that the statements made during the investigation by the former President and the former Vice President of the country reflecting an opinion regarding his guilt, in connection with the first set of proceedings, amounted to an infringement of the presumption of innocence.
Under Article 6 §§ 1 and 3 (a) (c) and (d) and Article 2 of Protocol No. 7, the applicant further complains in connection with the third set of proceedings about the failure of the authorities to inform him of the accusations against him, of the violation of his right to be represented by a lawyer of his own choosing, of the inability to challenge witnesses and other evidence against him and in general of the restriction of his right of access to a court, as well as his inability to have his case reviewed by the higher courts.
QUESTIONS
1. Was the applicant’s right to a reasoned decision, within the meaning of Article 6 § 1 of the Convention, respected in the present case, in connection with the second set of proceedings?
2. Was the applicant’s conviction under Article 210 of the Criminal Code compatible with the requirements of Article 7 § 1 of the Convention in respect of the second set of proceedings? In particular, was it foreseeable for the applicant that at the material time concluding the impugned sale agreement constituted an offence under the Criminal Code?
3. Did the applicant exhaust domestic remedies in respect of his complaint pertaining to alleged infringement of presumption of innocence with regard to the first set of proceedings as required by Article 35 § 1 of the Convention? In the affirmative, was the presumption of innocence, as guaranteed by Article 6 § 2 of the Convention, respected in the light of the statements made by the former high officials of the State?
4. Were the authorities diligent in taking steps to inform the applicant and/or his counsel of the accusations and subsequent proceedings against him in respect of the third set of proceedings as required by Article 6 § 3 (a) of the Convention?
5. Was the applicant able to defend himself through legal assistance of his own choosing, as required by Article 6 § 3 (c) of the Convention in respect of the third set of proceedings?
6. Was the applicant able, either in person or through a lawyer of his own choosing, to challenge witnesses and other evidence against him as required by Article 6 §§ 1 and 3 (d) of the Convention in respect of the third set of proceedings?
7. Was the applicant’s right of access to a court, as secured by Article 6 § 1 of the Convention respected in the third set of proceedings? In particular, having regard to the fact that the applicant had been tried in absentia by the first instance court, did the appellate court violate the applicant’s right to a fair trial under Article 6 § 1 and his right to appeal under Article 2 of Protocol No. 7 to the Convention by dismissing the request of the applicant’s counsel to have the criminal case reviewed?
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