THIRD SECTION
DECISION
Application no. 46055/06
Londa TAKTAKISHVILI
against Georgia
The European Court of Human Rights (Third Section), sitting on 16 October 2012 as a Chamber composed of:
Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria, judges,
and Santiago Quesada, Section Registrar,
Having regard to the above application lodged on 17 October 2006,
Having regard to the declaration submitted by the respondent Government on 16 May 2012 requesting the Court to strike the application out of the list of cases and the applicant’s reply to that declaration,
Having deliberated, decides as follows:
FACTS AND PROCEDURE
A. Domestic proceedings
1. The applicant, Mrs Londa Taktakishvili, is a Georgian national who was born in 1929 and lives in Zugdidi. She was represented before the Court by Mr Malkhaz Pataraia, a lawyer practising in Tbilisi.
2. The Georgian Government (“the Government”) were represented by their Agent, Mr Levan Meskhoradze of the Ministry of Justice.
3. On 22 September 2004 the applicant, a medical expert at a social security agency, was arrested for bribe-taking. Her arrest, which took place on a street in Zugdidi just as the alleged victim was handing over a sum of Georgian lari in banknotes to the applicant, had been planned by the police after receiving a complaint from the victim. There were allegedly three additional eyewitnesses to the handing over of the banknotes in the street (“the witnesses for the prosecution”).
4. The applicant was released from custody but placed under house arrest pending the investigation and trial.
5. On 9 June 2005 the Kutaisi Regional Court delivered a judgment convicting the applicant of the offence with which she had been charged. The conviction was mainly based on the incriminating statements of the victim and the witnesses for the prosecution. The applicant was given a suspended sentence of one year. The conviction was fully upheld by the Supreme Court of Georgia on 18 April 2006.
6. The applicant’s main defence argument during the trial was that the victim and the witnesses for the prosecution had in fact been hired by the police to act as agents provocateurs. The domestic courts did not address that argument in their decisions.
B. Relevant domestic law
7. Article 310 (e) of the Code on Criminal Procedure, which came into force on 1 January 2012, reads as follows:
“A final and enforceable judgment can be reviewed on the basis of newly discovered circumstances, if ... (e) the European Court of Human Rights has established in a final judgment (or in a decision) a breach of a provision of the Convention or of the Protocols thereto and the impugned [domestic] judgment (decision) is based on that breach”
8. Pursuant to Article 311 of the Code on Criminal Procedure, the time-limit for lodging a request for the reopening of criminal proceedings and revision of the associated final domestic judgment under Article 310 (e) is one year from the date on which the relevant judgment (decision) of the Court became final.
COMPLAINTS
9. The applicant complained under Article 3 of the Convention that the police officers had inflicted physical pain on her during her arrest on 22 September 2004. She also complained that the fact of her criminal prosecution amounted to ill-treatment.
10. Under Article 5 § 1 of the Convention, the applicant complained that her pre-trial house arrest had been unlawful and unreasonable.
11. Relying on Article 6 §§ 1, 2 and 3 and Article 13 of the Convention, the applicant complained that the criminal case against her had been fabricated, since both the victim and at least two of the three witnesses for the prosecution had in fact been agents provocateurs hired by the police.
12. Lastly, citing Article 8 of the Convention and Article 1 of Protocol No. 4 to the Convention, the applicant reiterated her complaints concerning her pre-trial house arrest.
THE LAW
A. The communicated complaint under Article 6 § 1 of the Convention
13. Article 37 § 1 (c) of the Convention enables the Court to strike a case out of its list where:
“for any ... reason established by the Court, it is no longer justified to continue the examination of the application”.
14. The relevant parts of Rule 62A of the Rules of Court, which governs the use of unilateral declarations, read as follows:
“1. (a) Where an applicant has refused the terms of a friendly-settlement proposal made pursuant to Rule 62, the Contracting Party concerned may file with the Court a request to strike the application out of the list in accordance with Article 37 § 1 of the Convention.
(b) Such request shall be accompanied by a declaration clearly acknowledging that there has been a violation of the Convention in the applicant’s case together with an undertaking to provide adequate redress and, as appropriate, to take necessary remedial measures.
(c) The filing of a declaration under paragraph 1 (b) of this Rule must be made in public and adversarial proceedings conducted separately from and with due respect for the confidentiality of any friendly-settlement proceedings referred to in Article 39 § 2 of the Convention and Rule 62 § 2.
...
3. If it is satisfied that the declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue its examination of the application, the Court may strike it out of the list, either in whole or in part, even if the applicant wishes the examination of the application to be continued.
...”
15. The Court notes that on 5 October 2011 it communicated to the Government the applicant’s complaint under Article 6 § 1 of the Convention concerning her entrapment into committing a crime with the help of agents provocateurs.
16. After attempts to reach a friendly settlement failed, by a letter of 16 May 2012 the Government informed the Court that they proposed to make a unilateral declaration with a view to resolving the issue raised by the communicated part of the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.
17. The relevant parts of the declaration read as follows:
“I, Levan Meskhoradze, the Government Agent ... declare and acknowledge that certain deficiencies in the present case led to a violation of the applicant’s rights under Article 6 § 1 of the Convention.
The Government note that the domestic proceedings in the applicant’s case took place in the period when the Georgian criminal system ... was experiencing certain serious deficiencies. However, the Georgian authorities spare no efforts to improve the situation in the criminal justice system...
The Government are ready to pay ex gratia 3,000 Euros to the applicant, Mrs Londa Taktakishvili ... This sum, which is to cover any non-pecuniary damage as well as costs and expenses, will be free of any taxes that may be applicable and shall be payable within three months from the date of notification of the decision taken by the Court pursuant to Article 37 § 1 of the European Convention on Human Rights...
Having due regard to the legal and factual circumstances of the case, the Government believe that ... the unilateral declaration and the conditions proposed therein constitute a sufficient basis to redress the shortcomings of the present application.”
18. By a letter of 8 June 2012, the Government, in reply to a request by the Registry of the Court, agreed to have the phrase “ex gratia” removed from the text of their unilateral declaration
19. By a letter of 4 July 2012, the applicant indicated that she was not satisfied with the terms of the unilateral declaration on the grounds that they were vaguely worded, did not include an acknowledgement of a breach of the other provisions of the Convention she had invoked, and that the amount of compensation offered to her was not commensurate with the damage done to her reputation by the unfair criminal proceedings. In addition, referring to the Court’s approach in the case of Pirali Orujov v. Azerbaijan (no. 8460/07, § 30, 3 February 2011), she argued that the Government’s unilateral declaration was not sufficient for her full rehabilitation as a decision to strike the application out in accordance with Article 37 of the Convention would not allow her to request a retrial under Articles 310 (e) of the Code on Criminal Procedure (see paragraph 7 above). Nor would she be able to have criminal proceedings initiated against the individual police officers who had allegedly fabricated the criminal case against her by involving the agents provocateurs.
20. The Court reiterates that it may strike out an application under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by a respondent Government even if the applicant wishes the examination of the case to be continued (see Martyna v. Poland (dec.), no. 72040/01, 15 January 2008). To this end, the Court will carefully examine the declaration in the light of the principles emerging from its case-law, in particular the Tahsin Acar judgment (see Tahsin Acar v. Turkey, [GC], no. 26307/95, §§ 75-77, ECHR 2003-VI).
21. Having due regard to the terms of the Government’s unilateral declaration in the present case, the Court observes that their declaration contains a sufficiently clear acknowledgment of a breach of Article 6 § 1 of the Convention in the criminal proceedings against the applicant. In this regard, the Court first of all notes that there already exists well-established case-law on the limits of the use of investigation methods like the one complained of (see, for instance, Teixeira de Castro v. Portugal, 9 June 1998, §§ 35-36 and 39, Reports of Judgments and Decisions 1998‑IV; Milinienė v. Lithuania, no. 74355/01, §§ 32-41, 24 June 2008; Ramanauskas v. Lithuania [GC], no. 74420/01, § 54, ECHR 2008; Gorgievski v. “the former Yugoslav Republic of Macedonia”, no. 18002/02, §§ 52 and 53, 16 July 2009; and Bannikova v. Russia, no. 18757/06, §§ 33‑65, 4 November 2010).
22. As to the applicant’s objection that the Government’s unilateral declaration would not offer her sufficient redress as she would purportedly not be able to request a retrial and thus obtain the full rehabilitation of her reputation, the Court firstly notes that the relevant domestic provision in the context of reopening of criminal proceedings (Article 310 (e) of the Code of Criminal Procedure) clearly states that not only a judgment but also a decision of the Court containing a finding of a violation of a provision of the Convention may serve as a basis for the reopening of a case (contrast with Pirali Orujov, cited above, § 30). Having regard to the procedure before the Court as currently established under the Convention and additionally regulated by the Rules of Court, the Court notes that the only possible type of decision which may contain reference to a violation of a provision of the Convention is, by its very nature, a decision to strike a case out of the list on the basis of a unilateral declaration by the Government (see Rule 62A of the Rules of Court).
23. The Court further notes that the applicant’s assertion that a retrial in her case under Article 310 (e) of the Code of Criminal Procedure would necessarily result in her full rehabilitation is purely hypothetical, as, according to the wording of the cited domestic provision, the reopening of a case need not necessarily lead to an acquittal or an otherwise beneficial outcome for the applicant (compare, for instance, Henryk Urban and Ryszard Urban v. Poland, no. 23614/08, §§ 27 and 66, 30 November 2010). Nor can the Court understand why the applicant is confident that, in the event of the continuation of the proceedings and an eventual examination of her case on the merits, assuming that all the necessary admissibility criteria under Article 35 of the Convention are met, a finding of a violation under Article 6 § 1 of the Convention would unavoidably be made. The Court wishes to emphasise in this regard, in order to avoid any misunderstandings, that the Government’s current acknowledgment of the violation of the above-mentioned provision will in no way prejudicially affect the Court’s examination of the admissibility and merits of the present case, should it proceed to such an examination.
24. Nevertheless, since the applicant herself insists on the significance of the restoration of her reputation, damaged in the eyes of the public by the domestic criminal proceedings, the Court would emphasise that the value that a unilateral declaration carries in itself for such purposes should not be underestimated. Indeed, the declaration contains an explicit recognition of a violation of the fair trial procedure by the Georgian State with respect to the applicant and further includes an individual undertaking to pay an amount of compensation which, given the circumstances of the present case, constitutes, in the eyes of the Court, adequate redress. In the assessment of the adequacy of this compensation, the Court has also taken into account the fact that the applicant was never held in detention, either before or after her conviction.
25. Thus, having regard to the particular circumstances of the present case, the nature of the clear admission of the violation contained in the Government’s declaration, and the amount of compensation proposed, the Court considers that it is no longer justified to continue the examination of the application (Article 37 § 1(c) of the Convention). Moreover, in the light of the above considerations, and in particular given the clear and extensive case-law on the topic, the Court is satisfied that respect for human rights as defined in the Convention and the Protocols thereto does not require it to continue the examination of the application (Article 37 § 1 in fine of the Convention).
26. The Court considers that the sum payable by the Government should be converted into the national currency of the respondent State at the rate applicable at the date of payment, and paid within three months of the date of notification of the Court’s decision issued in accordance with Article 37 § 1 of the European Convention on Human Rights. In the event of failure to settle within this period, simple interest shall be payable on the amount in question at a rate equal to the marginal lending rate of the European Central Bank plus three percentage points.
27. The Court further notes that this decision constitutes a final resolution of this application only in so far as the proceedings before the Court are concerned. It is without prejudice to the use by the applicant of any other remedies that may be available to her at the domestic level.
28. Finally, the Court emphasises that, should the Government fail to comply with the terms of their unilateral declaration, the application may be restored to the list in accordance with Article 37 § 2 of the Convention (see Josipović v. Serbia (dec.), no. 18369/07, 4 March 2008).
B. Other alleged violations of the Convention
29. Noting that the applicant never requested the opening of a criminal investigation into the alleged ill-treatment by police officers during her arrest, the Court considers that her complaint under Article 3 of the Convention in that regard must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
30. As to the applicant’s complaint that the criminal proceedings as such amounted to ill-treatment in breach of Article 3 of the Convention, it is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
31. The applicant’s complaints that her placement under house arrest was unlawful and unreasonable, whilst apparently falling within the scope of Article 5 of the Convention (see Danov v. Bulgaria, no. 56796/00, § 80, 26 October 2006), are belated since, as disclosed by the circumstances of the case, that particular instance of deprivation of liberty ended with the applicant’s conviction at first instance on 9 June 2005, whereas the present application was lodged more than a year later, that is, on 17 October 2006. It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
32. Lastly, as regards the applicant’s citation of Article 6 §§ 2 and 3 of the Convention and her complaints under Article 8 of the Convention and Article 1 of Protocol No. 4, the Court, in the light of all the material in its possession and in so far as the matters complained of are within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court by a majority
Takes note of the terms of the respondent Government’s declaration under Article 6 § 1 of the Convention and of the modalities for ensuring compliance with the undertakings referred to therein;
Decides to strike the application, in so far as it relates to the complaint under Article 6 § 1 of the Convention, out of its list of cases in accordance with Article 37 § 1 (c) of the Convention;
Declares the remainder of the application inadmissible.
Santiago QuesadaJosep Casadevall
RegistrarPresident
Full & Egal Universal Law Academy