Communicated on 13 December 2017
FIFTH SECTION
Application no. 35839/11
Pati PERADZE
against Georgia
lodged on 6 June 2011
STATEMENT OF FACTS
The applicant, Ms Pati Peradze, is a Georgian national, who was born in 1950 and lives in Horgen. She is represented before the Court by Mr L. Erni, 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.
On 3 February 2004 and 16 April 2004 the applicant’s son-in-law, Mr Z.L. was charged with abuse of power and tax evasion.
In connection with the above charges, on 15 May 2004 the Krtsanisi‑Mtatsminda District Court issued an order on seizure of the applicant’s property – a house in Kvariati, a village in Khelvachauri Region.
By a judgment of 8 July 2010 the Khelvachauri District Court convicted the applicant in absentia, finding her guilty of preparing and using a false document certifying title to property and sentenced her to seven years’ imprisonment.
According to the judgment, between 1998 and 2001 the applicant’s son‑in-law Mr Z.L. had 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, Mr Z.L. registered the property in the name of the applicant. In November 2003, in order to further conceal the illegal origin of the property, Mr Z.L. decided to prepare a document recording the fictitious sale of the property to Mr M.K. He asked the applicant to prepare a false sale agreement. The applicant agreed and on 26 April 2004 an agreement on the purchase of real estate containing false data was concluded between her representative and Mr M.K. According to the agreement, the applicant 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 Mr Z.L.; (ii) statements given by the previous owners of the land confirming that Mr Z.L. had purchased the property; (iii) the fact that one of the previous owners had testified to the court that it had been the applicant 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 the applicant for their services; (v) the delivery confirmation according to which the applicant 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 she 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, (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.
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.
COMPLAINTS
Under Article 6 § 1 of the Convention, the applicant complains of (i) the failure of the domestic courts to give sufficient reasons for her conviction, 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 she was convicted on account of an omission which did not constitute a criminal offence under national law at the time of its commission.
QUESTIONS TO THE PARTIES
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?
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 particular, was it foreseeable for the applicant that at the material time concluding the impugned sale agreement constituted an offence under the Criminal Code?
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