FIFTH SECTION
DECISION
Applications nos. 6232/20 and 22394/20
Mikheil SAAKASHVILI
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 1 March 2022 as a Chamber composed of:
Síofra O’Leary, President,
Mārtiņš Mits,
Stéphanie Mourou-Vikström,
Ivana Jelić,
Arnfinn Bårdsen,
Mattias Guyomar,
Kateřina Šimáčková, judges,
and Victor Soloveytchik, Section Registrar,
Having regard to applications nos. 6232/20 and 22394/20 lodged on 27 January 2020 and 25 May 2020 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having regard to the fact that the Government of Ukraine, who had been informed of their right to intervene in the light of the applicant’s nationality (Article 36 § 1 of the Convention and Rule 44 §§ 1 and 4 of the Rules of Court), did not avail themselves of that right,
Having regard to the withdrawal of Judge L. Chanturia, the judge elected in respect of Georgia (Rule 28 of the Rules of Court) and the decision of the President of the Chamber to designate Judge A. Bardsen to sit as an ad hoc judge (Rule 29 § 2 (b) of the Rules of Court).
Having deliberated, decides as follows:
THE FACTS
1. The applicant in both cases, Mr Mikheil Saakashvili, who is now a Ukrainian national and who was born in 1967 is currently serving a prison sentence in Georgia. He was represented before the Court by Mr G. Chiviashvili, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice.
The circumstances of the case3. The facts of the case, as submitted by the parties, may be summarised as follows.
Developments until September 2021(a) Background
4. The applicant, who was a Georgian national at birth, was elected as President of Georgia in January 2004, after the United National Movement (“the UNM”), a political party co-established and led by him, had come to power in November 2003. By the time his second consecutive presidential term expired on 17 November 2013, the UNM, defeated by the political coalition Georgian Dream in the parliamentary election of October 2012, became the main opposition force in the country (for more details, see Merabishvili v. Georgia [GC], no. 72508/13, §§ 9-13, 28 November 2017). The applicant left Georgia shortly after the expiry of his second presidential term in late 2013, settled in Ukraine and became a naturalised Ukrainian national. The latter fact entailed the loss of his Georgian nationality, in accordance with Georgian legislation which prohibited dual nationality by default.
5. After the handover of power by the UNM to Georgian Dream in 2012, more than 20,000 complaints were lodged with the Office of the General Public Prosecutor of Georgia (“the OGPP”) by people claiming to have been victims of serious human rights abuses committed during the UNM’s rule and the applicant’s presidency. Out of these, 4,000 complaints concerned allegations of torture and ill-treatment. It was on the basis of those individual criminal complaints that the prosecution authority initiated criminal investigations, including against former high-ranking officials. The newly formed government officially described this process as “restoration of justice”, publicly stated on occasion that investigation of the wrongdoings of the past would be one of its key priorities and indicated that there should be no impunity for former officials for past abuses. In order to ensure transparency and to benefit from international expertise, the OGPP allowed some of the most politically sensitive and/or legally complex criminal investigations to be monitored by the International Prosecution Advisory Panel, a body set up in 2014 and consisting of three foreign and highly experienced criminal-justice professionals. The Panel reviewed the materials in high-profile cases and advised the OGPP as to the compliance of the prosecution with the relevant international criminal justice standards (see Merabishvili, cited above, § 261).
6. Two separate sets of criminal proceedings conducted against the applicant, which form the subject matter of the present two applications (see paragraphs 8-28 below), were part of the above-mentioned process of “restoration of justice”. In both sets of proceedings, the applicant was tried and convicted in absentia since, residing in Ukraine until 29 September 2021 (see paragraph 29 below), he had chosen not to appear and mandated a lawyer of his choice to represent his interests before the domestic courts.
7. Although the present decision concerns exclusively questions of admissibility, it is considered useful to briefly outline the factual circumstances leading to the two applications.
(b) Domestic proceedings in application no. 6232/20
8. On 14 July 2005 V.G., a member of parliament, was attacked by a group of heavily armed men while driving in a car, together with his bodyguard and his driver, in a street in Tbilisi. As was later recalled both by the three victims and by independent eyewitnesses to the incident, the attackers were wearing uniforms of a riot-police unit and were carrying automatic rifles. The victims and witnesses further testified, when questioned in the course of the subsequent investigative and judicial proceedings, that after V.G.’s car had stopped at a traffic light, it was suddenly encircled and blocked by other cars, out of which six armed men emerged and started smashing the windows of V.G.’s car. The attackers forced both V.G. and his bodyguard out at gunpoint, relentlessly beating them with rifle butts. As a result, V.G. received grave, life-threatening injuries accompanied by permanent disfigurement. In particular, as was later confirmed by medical reports, he had all of his facial bones fractured, with deep open wounds appearing on the face and the head. The attackers seized V.G.’s personal belongings, including his official firearm.
9. A criminal investigation into the incident of 14 July 2005, which was mainly classified as a robbery, was initiated on the same day. The investigative authority interviewed a number of independent witnesses (including the staff of a nearby car wash, residents of the blocks of apartments overlooking the crime scene and passers-by). All of the witnesses confirmed that the attackers had been wearing the easily recognisable uniforms of a special anti-riot police squad. V.G., when interviewed by the investigative authority, stated that a few days before the incident he had received an anonymous telephone call containing death threats. In particular, an unknown man warned him that “a terrorist attack” would be carried out against him unless he apologised for having insulted the president in a newspaper article that had been published on 29 June 2005. The victim also recalled that during his beating one of the attackers had uttered the following phrase: “After this, you will no longer be able to write anything about our President!” V.G. told the investigative authority that the attack was therefore hardly a random robbery and that there was a suspicion that it might have been carried out by the law-enforcement authorities on orders emanating from the applicant. V.G. also told the investigators that in the early morning of 14 July 2005 his driver had noticed that his usual car, which was equipped with armoured windows, unexpectedly appeared to be having technical issues with the braking system, for which reason V.G. had borrowed his wife’s car for that particular day.
10. The investigation into the incident of 14 July 2005 was discontinued in September 2005, without, it is alleged, the authorities having attempted to verify in any manner the victims’ and witnesses’ statements about the possible involvement of an anti-riot police unit and notwithstanding V.G.’s accusation against the applicant.
11. On 13 November 2012, after the change of the ruling forces in the country as a result of the parliamentary election of October 2012 (see paragraph 5 above), a new criminal investigation was launched by the OGPP into the incident of 14 July 2005. Subsequently, and until November 2014 (see paragraph 20 below), the prosecution authority conducted a number of investigative measures. Specifically, it conducted additional interviews of V.G., his bodyguard and his driver, all of whom recalled the circumstances of the attack in the same manner as they had testified in 2005. They additionally stated that the day before the incident, that is, on 13 July 2005, the patrol police had stopped and examined V.G.’s armoured car (see paragraph 9 above), making enquiries about the owner of the car but without giving any reason for the police check.
12. The OGPP summoned I.O., who had held the post of the Minister of Defence in 2005, for questioning in relation to public statements he had made in 2007 when he had openly accused the applicant of masterminding the attack on V.G. The witness confirmed to the prosecution authority that his previous public statements had been true. In particular, I.O. reiterated that in June or July 2005 the applicant had explicitly requested him in person to arrange, using the Ministry’s resources, for a physical attack on V.G. Having turned down the request, I.O. had subsequently heard that the task had been reassigned to and eventually carried out on the instructions of another of the applicant’s minister at the time – I.M., the then Minister of the Interior.
13. The OGPP also questioned N.B., who had held the post of President of the Georgian Parliament in 2005. The witness stated that in the immediate aftermath of the incident of 14 July 2005 she had had a chance to speak privately with the applicant, who had not hidden his satisfaction at what had happened to V.G.
14. The OGPP also questioned L.Sh., who had been the chief of the Secret Surveillance Unit of the Special Operative Department (“the SOD”) of the Ministry of Internal Affairs. The witness confirmed that on 13 July 2005 his direct hierarchical superior – E.K., the Director of the SOD – had tasked him with secretly monitoring V.G.’s communications and movements in anticipation of a special operation to be carried out by the Ministry’s anti-riot unit. According to L.Sh., E.K. had mentioned to him that the operation was being planned on the direct orders of the country’s President.
15. The OGPP then questioned V.Z., who had been the head of the anti-riot police squad at the material time of the events. The witness stated that E.K., the Director of the SOD, had ordered him on 13 July 2005 to designate a small group of anti-riot police officers for an anti-criminal police operation, the exact purpose of which was not disclosed to him at that time. After the group had been set up, it was transferred under the command of G.S., another senior officer of the SOD. V.Z. also told the prosecution authority that approximately two weeks after the incident of 14 July 2005, he, together with some other senior officers of the Ministry of the Interior, had attended a meeting with the then Minister of the Interior, I.M., and the President of Georgia. During that meeting, I.M. had commended V.Z. for the successful completion of the operation in relation to V.G. in an informal and casual conversation with the applicant.
16. The prosecution authority also identified and questioned the six officers of the anti-riot police squad of the Ministry of the Interior who had participated in the attack on V.G. The officers confirmed all the details of the attack as had been previously described by the victims (see paragraphs 8 and 9 above). They added that they had been misled by G.S., the officer in charge of the squad (see the previous paragraph), about the identity of the victim. They had not known at that time that V.G. was a member of parliament. Rather, G.S. had told them that they had to disarm and physically assault “a very dangerous criminal” and punish him for being “an enemy of the nation and a traitor”. G.S. had further requested them to search and seize all the personal belongings of V.G. because the latter was accused of transporting “classified documents about State secrets”. The six officers also testified that a few days after the incident of 14 July 2005 the Director of the SOD, E.K., had personally met with each of them, awarding them a bonus of 500 United States dollars each for the successful conduct of the operation. They were also requested not to speak with anybody about what had happened.
17. Between April and November 2014 the OGPP attempted to find out the whereabouts of G.S. and E.K. and summon them for questioning in relation to the information provided by the other questioned officers of the Ministry of the Interior (see paragraphs 15 and 16 above), but both individuals had already fled the country by that time.
18. The OGPP further established that the press publication which, according to V.G., might have been at the origin of the retribution on the applicant’s part was an interview published in the Rezonansi newspaper on 29 June 2005. In that interview, V.G. had first claimed that the President of Georgia had misappropriated some of his property and had then made a number of offensive statements about the private life of the President’s wife.
19. Before concluding the investigation and deciding whether criminal charges could be brought against the applicant, the OGPP solicited an opinion from the International Prosecution Advisory Panel (see paragraph 6 above). The Panel, after having examined all the case material, issued a conclusion on 23 March 2014, the relevant parts of which read as follows:
“We believe that the existing material is legally and factually sufficient to proceed with the prosecution of [the applicant], I[.]M[.], E[.]K[.] and G[.]S[.] for various offences related to a physical assault on V[.]G[.] on July 14 2005. We believe that you should continue your investigation and move towards trial, where any remaining issues will be addressed during the adversarial process.”
20. On 10 November 2014 the OGPP charged the applicant with complicity in committing criminal battery (Article 117 § 5 (e) of the Criminal Code) and misuse of authority by resorting to violence (Article 333 § 3 (b) of the Code). He was accused of having masterminded, with the help of high‑ranking officials of the Ministry of the Interior, the attack on V.G. as retribution for the latter’s public statements containing offensive speech against the applicant and his wife. On 11 November 2014 similar charges were also brought, in separate sets of criminal proceedings, against I.M., E.K. and G.S., as well as against the six officers of the riot police squad.
21. On 28 June 2018 the Tbilisi City Court, after having conducted a trial during which the relevant witnesses were heard in person, and other pieces of evidence examined in the presence of the applicant’s lawyer, convicted the applicant in absentia of the offences with which he had been charged. The applicant’s lawyer, explicitly authorised by the applicant to do so (Article 292 § 3 and Article 300 § 3 of the Code of Criminal Procedure), appealed against the conviction, complaining that it was largely based on the statements of I.O. and N.B. (see paragraphs 12 and 13 above), which were hearsay evidence.
22. A final domestic decision, rejecting the applicant’s appeal, upholding his initial conviction and sentencing him to six years’ imprisonment (with an additional two-year ban on entering public service), was delivered by the Supreme Court, sitting in camera, on 31 July 2019. A fully reasoned copy of the final decision was served on the applicant’s lawyer for the first time on 6 August 2019.
(c) Domestic proceedings in application no. 22394/20
23. On 26 November 2012 the OGPP launched a repeat investigation into the circumstances surrounding the killing of a man on 27 January 2006 by senior officers of the Constitutional Security Department (“the CSD”) of the Ministry of the Interior (hereinafter “the 27 January 2006 murder case”). The original criminal proceedings with respect to the same crime, which had been conducted by the authorities between 2006 and 2007 and had resulted in the conviction on 6 July 2006 of four officers of the CSD – G.A., A.A., A.Gh. and M.B. – for, in particular, wilful bodily harm resulting in death, was found by the Court, in a judgment of 26 April 2011, to have been lacking “the requisite independence, impartiality, objectivity and thoroughness” (see Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 276-77, 26 April 2011).
24. When questioned by the prosecution authority on 26 and 28 November 2012, the above-mentioned four former officers of the CSD, who by that time had already been released from serving their prison sentences, revealed the following facts for the first time. They stated that they had received an order for the abduction and “exemplary punishment” of the victim on 21 January 2006 from D.A., the then Director of the CSD. After the killing had caused a significant public outcry in the country, D.A. had met with G.A., A.A., A.Gh. and M.B. and told them that there was no other option for the four of them but to confess to the crime. At the same time, D.A. had insisted that they should remain strictly silent about his own involvement in the incident. In exchange for such loyalty, D.A. promised the four officers that their families would receive considerable monetary compensation, that they themselves would be given the most comfortable conditions of detention and that their prison terms would, moreover, be reduced by means of a presidential pardon and/or amnesty measure. In relation to the latter aspect, D.A. had told the officers that he had personally obtained a promise from the President of Georgia that he would pardon them after they had served some part of the court-imposed sentences. Indeed, after they had been convicted on 6 July 2006, the four officers were placed in a newly built prison, where their cells were equipped with non-standard, comfortable beds, refrigerators and other household appliances, and provided with an Internet connection, cable television and the services of a personal cook and a maid. They were also allowed to use their mobile telephones without any limitations and to receive an unlimited number of visitors. On 24 November 2008 the four convicted prisoners’ sentences were reduced by half on the basis of a presidential pardon granted by the applicant, and on 5 September 2009 they were released from prison, after having served only three years.
25. In the light of the above-mentioned information, on 27 November 2014 the OGPP charged the applicant with the additional offence of abuse of power by a public official holding a political post (Article 332 § 2 of the Criminal Code) on account of the presidential pardon granted on 24 November 2008 to the above-mentioned four former officers of the CSD. In particular, he was accused of having granted the pardon in breach of the relevant domestic legal procedure and for the purposes of perverting the course of justice in the 27 January 2006 murder case. Within the framework of that separate investigation, the OGPP questioned a number of former high‑ranking members of the UNM ruling forces, including I.O. and N.B. (see paragraphs 12 and 13 above). Those witnesses stated that their personal contact with the applicant in 2006 had led them to believe that the applicant had personally promised both D.A., the then Director of the CSD, and I.M., the then Minister of the Interior, that he would grant a pardon to the four officers after they had served part of their prison sentences.
26. On 5 January 2018 the Tbilisi City Court, sitting as a single-judge bench (Judge G.A.), after having conducted an adversarial trial at which all the relevant witnesses were heard in person and confirmed the statements that they had previously given to the OGPP (see the previous paragraph), convicted the applicant of abuse of power by a public official holding a political post (Article 332 § 2 of the Criminal Code).
27. The applicant’s lawyer, explicitly authorised to do so by the applicant (Article 292 § 3 and Article 300 § 3 of the Code of Criminal Procedure), subsequently appealed to the second and third levels of jurisdiction, mainly complaining in relation to the following three issues: (i) that Judge G.A. had lacked independence and impartiality because he had served as a judicial assistant to the judges who had examined the 27 January 2006 murder case; (ii) that the conviction had mainly been based on untested hearsay; and (iii) that the applicant had been convicted for an act of presidential clemency which did not constitute a criminal offence and was, moreover, the exercise of a plenary power conferred on him by virtue of the office of President and Head of State. The appeals were rejected by the Tbilisi Court of Appeal and the Supreme Court of Georgia on 18 July 2018 and 21 May 2019 respectively. Eventually, the applicant was sentenced to three years’ imprisonment (with an additional eighteen-month ban on entering public service) in this set of criminal proceedings.
28. The Supreme Court delivered its final decision of 21 May 2019 sitting in camera. On 24 May 2019 the Registry of the Supreme Court notified the applicant’s lawyer of the decision, further advising him that a fully reasoned copy would be delivered to him, in accordance with the relevant practice, in due course. A written copy of the complete, fully reasoned decision, which was a twenty-six-page long document and contained detailed legal reasoning in reply to each of the applicant’s three above-mentioned complaints (see the previous paragraph), was served on the lawyer on 1 October 2019 for the first time.
Subsequent developments29. On 29 September 2021 a cargo ship, the Vilnius, transporting dairy goods through the Black Sea from Ukraine to Georgia, entered the Poti sea port in Georgia. As was later established by the investigative authorities, the applicant, who had decided to return to Georgia in a clandestine manner, was aboard that ship. After the container where the applicant was hiding had been unloaded at the port, the applicant went into hiding in the country for two days, before he was finally arrested in Tbilisi on 1 October 2021. He was placed in a prison to serve a combined sentence, with its overall term being set at six years, pursuant to his convictions of 5 January and 28 June 2018 (see paragraphs 22 and 27 above). In addition, a separate criminal case was brought against him for illegal border crossing.
Relevant domestic law and practice30. At the time when the applicant held the office of President of Georgia, the relevant provisions of the Criminal Code of Georgia read as follows:
Article 117 – Wilful grievous bodily harm
“1. Wilful grievous bodily harm ... which is life-threatening ... shall be punishable by three to five years’ imprisonment. ...
5. Wilful grievous bodily harm committed ...;
(e) by a group ... shall be punishable by seven to nine years’ imprisonment.”
Article 332 § 1 and 2 – Abuse of official authority
“1. Abuse of official authority by a public official or a person of equivalent status, to the detriment of public service requirements and in order to gain any personal profit or privilege or any profit or privilege for another person, and which has substantially affected the rights of a legal or natural person, or the legal interests of society or the State, shall be punishable by a fine or a term of up to three years’ imprisonment, a bar on holding public office or a bar on engaging in professional activities for a period of up to three years.
2. The same action committed by a political office-holder shall be punishable by a term of imprisonment of between three and five years, accompanied by a bar on holding public office ... for a period of up to three years.”
Article 333 §§ 1, 2 and 3 – Misuse of authority
“Misuse of authority by a public official ... [holding a political office] which substantially adversely affects the rights of a natural person or other legal entity or the legal interests of society or of the State ... and which has been committed by resorting to violence ... shall be punishable ... by a term of imprisonment of between five and eight years’ imprisonment, and up to three years’ disqualification from holding public office ...”
31. According to a well-established practice of the Supreme Court of Georgia, irrespective of whether its decision was adopted in camera (that is, under the written procedure) or whether the operative part of the decision was pronounced in open court (that is, for the attention of the parties), the Registry of the Supreme Court would always, and of its own motion, serve the parties, by registered post, with a fully reasoned copy of the decision at a date subsequent to the date of adoption/pronouncement.
COMPLAINTS
32. As regards application no. 6232/20, the applicant complained under Article 6 §§ 1 and 3 (d) that his conviction of 28 June 2018 on account of his alleged role in the physical assault on the member of parliament V.G. had been based on untested hearsay evidence.
33. As regards application no. 22394/20, the applicant complained under Article 6 §§ 1 and 3 (d) and Article 7 that his conviction of 5 January 2018 in relation to the presidential pardon had been based on untested hearsay evidence, that the first-instance court judge had lacked independence and impartiality (see paragraph 26 above) and that it had not been possible for him to foresee that the exercise of the plenary power of presidential clemency, which had been conferred on him by virtue of the office of President and Head of State, could attract criminal liability.
34. Lastly, the applicant also complained in relation to both applications that the authorities’ hidden agenda was to use the criminal-law machinery against him for the purposes of his political persecution, in breach of Article 18 of the Convention read in conjunction with Articles 6 and 7.
THE LAW
Joinder of the applications and a separate decision on admissibility35. Noting that the circumstances of and the complaints made by the applicant in each application are either interrelated, similar and/or complimentary to each other, the Court finds it appropriate to examine the applications jointly in a single decision.
36. The Court also finds it appropriate to take a separate decision on admissibility (Rule 54A § 1 in fine). This decision is without prejudice either to the merits of the applications at hand or any other sets of criminal proceedings that might be currently ongoing against the applicant before domestic courts.
Alleged violations of Articles 6, 7 and 18 of the Convention37. The applicant made a number of complaints under Articles 6, 7 and 18 of the Convention about specific aspects of the fairness of the two sets of the criminal proceedings conducted against him (see paragraphs 32-34 above). The relevant parts of the provisions in question read as follows:
Article 6
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...
3. Everyone charged with a criminal offence has the following minimum rights: ...
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”
Article 7
“1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. ...”
Article 18
“The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
The Government’s objections to admissibility38. In their observations, filed with the Court on 13 July 2021, on the admissibility and merits of the two applications, the Government raised four objections to admissibility.
39. Firstly, they submitted that application no. 22394/20 was inadmissible on account of the applicant’s failure to comply with the six-month time-limit under Article 35 § 1 of the Convention. In this connection, they referred to the fact that the operative part of the final domestic decision of 21 May 2019 had been notified to the applicant’s lawyer on 24 May 2019 (see paragraph 28 above), the date which should be taken as the starting-point for the calculation of the six-month period, whereas the relevant application had been lodged with the Court as late as 25 May 2020.
40. Secondly, the Government submitted that the applicant’s complaint in application no. 22394/20 concerning the first instance judge was manifestly ill-founded. In this connection, they argued that the mere fact that Judge G.A., who had examined the applicant’s case at first instance, had been a judicial assistant to the judges who had examined the 27 January 2006 murder case could not be regarded as a sufficient ground for an objective observer to doubt the judge’s independence or impartiality.
41. Thirdly, they argued that the applicant’s complaint under Article 7 concerning his alleged inability to foresee that the exercise of his presidential power of clemency could attract criminal liability was manifestly ill-founded. Among many other arguments relating more to the merits of the complaint, the Government contended that the applicant had been convicted not for granting a presidential pardon as such but for having abused that power, in breach of Article 332 of the Criminal Code, by having issued advance promises to use that power in order to encourage the relevant four police officers not to cooperate with the investigation, and had thus contributed to perverting the initial course of justice in the 27 January 2006 murder case.
42. Lastly, the Government objected that in both applications the applicant’s complaints under Article 18 of the Convention were incompatible ratione materiae with the provisions of the Convention because that Article could not be relied on in conjunction with either Article 6 or Article 7 of the Convention, which, in the Government’s view, were provisions of an “absolute” nature and not subject to permissible restrictions.
43. Furthermore, in a document of 17 December 2021 containing their additional submissions on the merits and just-satisfaction claims, the Government for the first time raised an objection that both applications should be rejected as an abuse of the right of individual petition within the meaning of Article 35 § 3 (a) of the Convention in that the applicant had not of his own motion informed the Court that he had returned to Georgia clandestinely on 29 September 2021 and been arrested on 1 October 2021 (see paragraph 29 above).
The applicant’s submissions44. As regards the Government’s objection that application no. 22394/20 had been lodged out of time, the applicant submitted that he had not been in a position to sufficiently acquaint himself with the Supreme Court’s final decision of 21 May 2019 until he had received a written and fully reasoned copy of that decision on 1 October 2019 (see paragraph 28 above). He argued that since complex legal issues were involved, he could not have been expected to lodge an application with the Court on the basis of the operative part of that decision only. He would not have been able to draft an application without first having obtained knowledge of the reasons given by the Supreme Court for its decision. Consequently, the six-month time-limit ought to be considered to have been triggered on 1 October 2019. Admittedly, the time‑limit as thus triggered would normally have expired on 1 April 2020, whereas the application in question had been lodged with the Court on 25 May 2020. However, the applicant asked the Court to accept that the additional delay of one month and twenty-four days did not render his application out of time in the light of the exceptional measures taken by the President of the Court on 16 March and 9 April 2020 in the context of the global health crisis.
45. The applicant did not comment on the remaining objections raised by the Government to the admissibility of the two applications.
The Court’s assessment(a) As regards the six months’ time-limit
46. The Court observes that, by virtue of Protocol No. 15 to the Convention, the time-limit in Article 35 § 1 of the Convention for lodging applications has been reduced to four months. This four-month time-limit came into effect on 1 February 2022. Given that the contested submission dates in the present case predate the entry into force of Protocol No. 15 and the subsequent change to the applicable time-limit, this decision will refer to previous case-law on the six-month rule.
47. The Court reiterates that the primary purpose of the six-month rule is to maintain legal certainty by ensuring that cases raising issues under the Convention are examined within a reasonable time, and to prevent the authorities and other persons concerned from being kept in a state of uncertainty for a long period of time (see Lopes de Sousa Fernandes v. Portugal [GC], no. 56080/13, § 129, 19 December 2017). It also affords the prospective applicant time to consider whether to lodge an application and, if so, to decide on the specific complaints and arguments to be raised, and facilitates the establishment of facts in a case, since with the passage of time, any fair examination of the issues raised is rendered problematic (see Ramos Nunes de Carvalho e Sá v. Portugal [GC], nos. 55391/13 and 2 others, §§ 99-101, 6 November 2018). The six-month rule is autonomous and must be construed and applied to the facts of each individual case so as to ensure the effective exercise of the right to individual petition. While taking account of domestic law and practice is an important aspect, it is not decisive in determining the starting-point of the six-month period (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 52 and 55, 29 June 2012). The six-month period starts running from the date on which the applicant and/or his or her representative has sufficient knowledge of the final domestic decision (see Koç and Tosun v. Turkey (dec.), no. 23852/04, 13 November 2008). Where an applicant is entitled to be served automatically with a copy of the final domestic decision, the object and purpose of Article 35 § 1 of the Convention are best served by counting the six-month period as running from the date of service of the copy of the decision (see Worm v. Austria, 29 August 1997, § 33, Reports of Judgments and Decisions 1997‑V).
48. The Court observes that the domestic practice entitled the applicant to be served by the court of its own motion with a fully reasoned, written copy of the final domestic decision of 21 May 2019, and that he was, moreover, explicitly assured of that entitlement by the Registry of the Supreme Court on 24 May 2019 (see paragraphs 22, 28 and 31 above). That being so, and given that the final decision contained detailed legal reasoning in reply to the applicant’s same grievances which were later elaborated upon in his application form (see paragraphs 27 and 32-34 above), the Court considers that the object and purpose of Article 35 § 1 of the Convention, which is mainly to allow the applicant to obtain sufficient knowledge of the content of the decision in order to decide on the specific complaints and arguments to be raised before the Court, are best served by taking the date of the service of the fully reasoned copy of the decision on his legal representative – 1 October 2019 – as the starting-point for the calculation of the six-month time-limit (compare Worm, cited above, § 33; Papachelas v. Greece [GC], no. 31423/96, § 30, ECHR 1999‑II; Otto v. Germany (dec.), no. 21425/06, 10 November 2009; and also Nozadze v. Georgia (dec.) [Committee], no 41541/05, § 53, 9 May 2017).
49. The Court therefore notes that the six-month period started to run on 1 October 2019, which means that, in the normal course of events, it would have expired six calendar months later, on 1 April 2020 (see Ataykaya v. Turkey, no. 50275/08, § 40, 22 July 2014). However, in the meantime, on 11 March 2020 the World Health Organisation declared a public health emergency of international concern – the highest level of alarm – in relation to the global outbreak of a new infectious and mostly respiratory disease (subsequently called COVID-19) caused by the SARS-CoV-2 coronavirus (see Zambrano v. France (dec.), no. 41994/21, § 3, 21 September 2021). In the light of those developments, on 16 March and 9 April 2020 the President of the Court announced a number of exceptional measures to allow applicants, High Contracting Parties and the Court to handle the difficulties to which the global pandemic and widespread lockdown gave rise.[1] One effect of those measures, which were decided by the President in the exercise of his competence to direct the work and the administration of the Court under Rule 9 of the Rules of Court, was that the Registry of the Court, when registering newly received applications, and without prejudice to any subsequent judicial decision on the matter, was to add three months in total to the method of calculation of the six-month rule under Article 35 § 1 of the Convention whenever a calendar six-month period either started to run or, on the contrary, was due to expire at any time between 16 March and 15 June 2020.
50. Whilst the Government have not contested the applicant’s argument that the six-month period ought to be calculated in a manner that takes account of the global health crisis and the above-mentioned decision (see paragraphs 38-44 above), the Court, recalling that the six-month rule is an autonomous public-policy rule par excellence (see Merabishvili v. Georgia [GC], no. 72508/13, § 247, 28 November 2017), considers that, independently of the parties’ position, it is necessary to rule on the question whether the applicant has complied with Article 35 § 1 of the Convention by introducing application no. 22394/20 on 25 May 2020.
51. It is further aware, in this connection, that the Governments of two Member States have either requested clarification or expressed concerns about the question of the running of the six-month period during the global pandemic and in the light of the exceptional measures announced by the President of the Court. Whilst it is not the Court’s task in the present case to reply to arguments or concerns expressed outside the current proceedings, the Court, recalling that it has not yet had an opportunity to examine the application of the six-month rule in the exceptional circumstances of the pandemic, considers that it must therefore have regard to a range of relevant elements in its analysis below.
52. The Court observes that in the Spring of 2020 the absolute majority of the member States, including the Council of Europe’s host State, France, went into complete lockdown because of the spread of COVID-19. That entailed, amongst many other things, sudden and significant limitations on the possibility for potential applicants to have access to domestic court files, including for the purposes of preparing applications to the Court, as well as severe disruption of international transport and postal services all across Europe. The exceptional nature of the situation was further illustrated by the fact that by March-April 2020, a number of Member States adopted measures extending time-limits for bringing cases to domestic courts and otherwise adapting judicial proceedings during the period of the public health emergency (see, for instance, the Decision of 26 March 2020 (no. 2020-799) of the Constitutional Council of France, and, as regards the United Kingdom, the Practice Direction 51ZA supplementing the Civil Procedure Rules 1998, approved by the Lord Chancellor on 1 April 2020). The extent and insurmountable nature of the practical difficulties linked to that critical period affected all parties to Court proceedings, applicants and respondent States alike, but also required the Court to take measures, in accordance with the terms of the Convention and the Rules of Court, to maintain the exercise of its core, adjudicative functions pursuant to Article 19 of the Convention and ensure that it was not put in peril.
53. In the light of the foregoing, the ordinary application of the six-month rule in the extraordinary circumstances prevailing in the Spring of 2020 risked endangering the right of individual petition for a certain period of time and would also have rendered difficult if not, in some cases, impossible, the engagement by High Contracting Parties with cases. However, in the architecture of the Convention, an instrument of the European public order for the protection of individual human beings (see, amongst many others, Güzelyurtlu and Others v. Cyprus and Turkey [GC], no. 36925/07, § 193, 29 January 2019), the Court’s task under Article 19 to ensure observance of the engagement undertaken by the Contracting States means the continued functioning of the right of individual petition enshrined in Article 34 of the Convention is essential.
54. The Court further recalls that under Article 32 § 1 of the Convention it has full jurisdiction to interpret and apply any provision of the Convention, including the six-month rule contained in Article 35 § 1 of the Convention. Even when a dispute arises as to whether the Court’s interpretive jurisdiction extends to a matter, it is again the Court who “shall decide” the dispute (Article 32 § 2 of the Convention).
55. In view of the above, in the exercise of its functions under Articles 19 and 32 of the Convention, weighing the legal considerations behind the six‑month rule under Article 35 § 1 against the need to preserve the cornerstone of the Convention mechanism under Article 34, the Court confirms that to achieve this balance, the running of the six-month period could legitimately be considered to have been suspended during the most critical phase of the global pandemic. This is, moreover, consistent with the general principle of public international law of force majeure as well as that of contra non valentem agere nulla currit praescriptio – a legal maxim well rooted both in civil and common law jurisdictions – according to which prescriptions cannot run against those who are incapable of acting.
56. The Court is conscious of the exceptional nature of the extension and emphasises that it should be understood to be strictly related to the unprecedented situation that occurred in the Spring of 2020 and – importantly – to the consequences caused by the sudden and unexpected imposition of lockdowns in almost all of the Contracting States. It also finds that any concerns that might have arisen in relation to the considerations of legal certainty, the latter constituting the reason for the need to comply with the six-month rule (see paragraph 47 above), were effectively catered for by the measures publicly announced by the President of the Court in March-April 2020, which provided for a clear time frame to the extension to operate in the given circumstances (see paragraph 49 above). Indeed, the President’s decisions did nothing else but sought, through the exercise of the Court’s exclusive power of interpretive jurisdiction (Article 32 of the Convention), to adjust, by coming up with specific, clear and proportionate indications, the method of the calculation of the six-month rule to the reality of the global health crisis in order to preserve the essence of the right of individual petition under Article 34 of the Convention.
57. In sum, the Court, relying on its interpretive jurisdiction under Article 32 of the Convention, concludes that, in order to preserve the right of individual petition during the outbreak of the global pandemic, the method of calculation of the six-month rule had to be adjusted to the reality of that crisis.
58. It follows that if a calendar six-month period either started to run or was due to expire during the time frame specified in the decisions of the President of the Court (from 16 March until and including 15 June 2020), the six-month rule under Article 35 § 1 of the Convention should be exceptionally considered to have been suspended for three calendar months in total.
59. Having regard to the fact that in application no. 22394/20 the calendar six months expired on 1 April 2020, and the latter date fell within the time frame indicated by the President (16 March-15 June 2020), the Court rules that the applicant had an additional three months – until and including 1 July 2020 – to lodge an application with the Court. Since application no. 22394/20 was introduced on 25 May 2020, the Court dismisses the Government’s relevant objection and finds that the application cannot be considered to have been lodged out of time, within the meaning of Article 35 § 1 of the Convention, in the very exceptional circumstances outlined above.
(b) Alleged incompatibility ratione materiae
60. As to the Government’s objection that the applicant’s complaints under Article 18, taken in conjunction with Articles 6 and 7 of the Convention, are incompatible ratione materiae with the provisions of the Convention, the Court reiterates that the general principles concerning the interpretation and application of Article 18 of the Convention have been set out by the Grand Chamber in Merabishvili (cited above, §§ 287-317). In so far as the applicability of Article 18 is at stake, this provision cannot have an independent existence and can only be applied in conjunction with an Article of the Convention or the Protocols thereto which sets out or qualifies the rights and freedoms that the High Contracting Parties have undertaken to secure to those under their jurisdiction. While there can be a breach of Article 18 even if there is no breach of the Article in conjunction with which it applies, a breach of the former provision can only arise if the right or freedom at issue is subject to restrictions permitted under the Convention, (ibid., §§ 287 and 290).
61. In the light of these principles, the question before the Court, when assessing the applicability of Article 18, is whether this provision can be relied on in conjunction with Articles 6 and 7 of the Convention. In other words, the issue is whether the rights and freedoms protected by the latter two provisions are subject to permissible restrictions. However, this question is closely linked to the substance of the applicant’s complaints and the Court considers that it must therefore be joined to the Court’s examination on the merits.
(c) Alleged abuse
62. The Court reiterates that in accordance with Rule 55 of the Rules of Court, any plea of inadmissibility must be raised by the respondent Government, in so far as the nature of the objection and the circumstances so allow, in their written or oral observations on the admissibility of the application, failing which the Government are estopped from submitting such a plea at subsequent stages of the proceedings (see, for instance, Khlaifia and Others v. Italy [GC], no. 16483/12, §§ 51-54, 15 December 2016).
63. The Court observes that the Government’s objection that the applications constituted an abuse of the right of individual petition within the meaning of Article 35 § 3 (a) of the Convention was raised for the first time in their additional submissions on the merits and just-satisfaction claims (see paragraph 43 above). However, the facts on which the Government’s objection is based – the applicant’s return to Georgia on 29 September 2021 and his arrest there on 1 October 2021 – occurred after they had filed their initial observations as to admissibility (see paragraph 38 above). That being so, the Court considers that, in the particular circumstances of the case at hand, the Government should not be estopped from submitting their additional plea of inadmissibility.
64. However, addressing the Government’s objection in substance, the Court does not find it to be convincing. It reiterates in this connection that an application is an abuse of the right of application if it is knowingly based on untrue facts with a view to deceiving the Court (see Gogitidze and Others v. Georgia, no. 36862/05, § 76, 12 May 2015). This type of abuse may also be committed by omission, where the applicant fails to inform the Court at the outset of a factor essential for the examination of the case (see Keretchashvili v. Georgia (dec.), no. 5667/02, 2 May 2006). Likewise, if new, important developments occur during the proceedings before the Court and if – despite the express obligation on him or her under the Rules of Court – the applicant fails to disclose that information to the Court, thereby preventing it from ruling on the case in full knowledge of the facts, his or her application may be rejected (see Hadrabová and Others v. the Czech Republic (dec.), nos. 42165/02 and 466/03, 25 September 2007). However, the incomplete and/or misleading information should concern the very core of the case in order for the Court to find the omission to amount to an abuse of the right of individual application (see Bekauri v. Georgia (preliminary objection), no. 14102/02, § 21, 10 April 2012).
65. That being so, assuming that the applicant has omitted to inform the Court of the circumstances surrounding his entry into Georgia on 29 September 2021 and his arrest there on 1 October 2021, the Court cannot see how these new facts affect its ability to examine what is the core of his complaints under Articles 6, 7 and 18 of the Convention, which mainly concern the fairness of the criminal proceedings which, by the time of his return to Georgia, had already been finally and irrevocably terminated. The Court thus considers that the Government’s objection should be dismissed.
(d) Conclusion
66. In the light of the foregoing considerations, taking note of the Government’s argument that two of the applicant’s complaints as regards application no. 22394/20 are manifestly ill-founded, but considering, in the light of the parties’ submissions and without prejudice to its analysis on the merits, that all complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination on the merits, the Court finds that no part of the present two applications is inadmissible on any other grounds listed in Article 35 of the Convention and that the applications must therefore be declared admissible.
For these reasons, the Court, unanimously,
Decides to join the applications;
Dismisses the Government’s objections regarding the time-limit under Article 35 § 1 of the Convention and the abuse of the right of individual petition;
Joins to the merits the Government’s objection regarding the scope of the application of Article 18 of the Convention;
Declares the applications admissible, without prejudging the merits of the case.
Done in English and notified in writing on 24 March 2022.
Victor Soloveytchik Síofra O’Leary
Section Registrar President
[1] See the press releases issued by the Registrar of the Court on 16 March and 16 April 2020.