FIFTH SECTION
DECISION
Application no. 72475/10
Nana TKHELIDZE
against Georgia
The European Court of Human Rights (Fifth Section), sitting on 2 September 2021 as a Committee composed of:
Mārtiņš Mits, President,
Lətif Hüseynov,
Mattias Guyomar, judges,
and Martina Keller, Deputy Section Registrar,
Having regard to the above application lodged on 25 November 2010,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms Nana Tkhelidze, is a Georgian national, who was born in 1961 and was detained in Tbilisi. She was represented before the Court by Mr A. Chopikashvili, 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 case
3. The facts of the case, as submitted by the parties, may be summarised as follows.The applicant’s conviction
4. By a judgment of 25 October 2010, the Tbilisi City Court found the applicant guilty of three counts of trading in influence (Article 339 (1) of Criminal Code of Georgia).
5. According to the judgment, the applicant, who at the material time was working as a defence lawyer, had a friendly relationship with another defence lawyer, Mr D.J. The latter knew that the applicant had good contacts within a particular prosecutor’s office and asked her to use her influence and connections with Mr M.A., a district prosecutor in charge of a criminal case against one of Mr D.J.’s clients, to reach a favourable plea bargain in return for payment. The applicant agreed. Later she informed Mr D.J. that she had reached a favourable plea bargain for his client with Mr M.A. Mr D.J. paid the applicant the sum upon which they had agreed. On two other occasions Mr D.J. again asked the applicant for similar assistance in return for payment, this time following the advice of Mr L.B., a then prosecutor in charge of criminal cases against two of Mr D.J.’s clients. In particular, Mr D.J. asked Mr L.B. for favourable plea bargains for his clients. The latter stated that it had been his supervisor - a district prosecutor, Mr G.M. - who had made the final decisions and advised Mr D.J. to approach the applicant, a very good acquaintance of Mr G.M. The applicant had agreed and subsequently plea bargains had been reached for the two clients of Mr D.J. and the latter had paid considerable sums to the applicant in respect of each client separately.
6. In finding the applicant guilty, the first-instance court relied on the testimony of Mr D.J., classified case files obtained through operative‑investigative activities and the testimony of one of Mr D.J.’s clients, who, albeit without making any incriminatory statement against the applicant, confirmed that he had been aware of the ongoing negotiations concerning his plea bargain and had been given a so-called operative sum by his lawyer to that end.
7. During a hearing before the first-instance court the applicant lodged an application to call as witnesses the persons mentioned in Mr D.J.’s testimony, namely district prosecutors Mr M.A. and Mr G.M. and prosecutor Mr L.B., who in the meantime had been convicted of bribery. The applicant stated that these persons could have given details of their relationships and of her alleged influence on them. The court rejected the application without giving any reasons. On 25 October 2010 she was found guilty on all the charges and sentenced to nine years’ imprisonment.
8. The applicant appealed against her conviction. On 30 December 2010 the Tbilisi Court of Appeal, dispensing with an oral hearing, delivered a decision fully upholding the applicant’s conviction. Concerning the application to have witnesses called, the court stated that it could not decide on this particular point as the interim decision of the first-instance court in this connection had not been appealed against by the applicant in accordance with the law.
9. On 11 May 2011 the Supreme Court of Georgia dismissed as inadmissible an appeal by the applicant on points of law.
10. On 5 December 2012 the Parliament of Georgia adopted the Decree on Political Prisoners and Persons Prosecuted for their Political Opinion (hereinafter “the Decree on Political Prisoners”). 190 persons including the applicant were recognised, according to that Decree, as political prisoners. On 28 December 2012 the Parliament of Georgia adopted the Amnesty Act. As a result, on 13 January 2013 the applicant was released from prison.Developments after notice of the case was given to the Government of Georgia
11. On 17 July 2017 the applicant filed an application with the Tbilisi Court of Appeal requesting the reopening of her case in accordance with Article 3321 § 2 of the Code of Criminal Procedure (see the relevant provision cited in paragraph 17 below).
12. On 10 July 2018 the Tbilisi Court of Appeal, having heard the applicant and the main prosecution witness, Mr D.J., confirmed the applicant’s initial conviction. It found that, in the course of the renewed court proceedings, the applicant had failed to adduce any new evidence which could have altered the initial establishment of the facts and undermine the accuracy of the applicant’s conviction. The appeal court judges also noted that the granting of status under the Decree on Political Prisoners did not automatically imply the acquittal of the person concerned.
13. The applicant filed an appeal on points of law with the Supreme Court of Georgia. However, on 26 November 2018 she withdrew her appeal. Accordingly, on the next day the Supreme Court decided to leave her appeal on points of law undecided.Relevant domestic law
14. On 5 December 2012 the Parliament of Georgia adopted Decree (დადგენილება) no. 76 on persons arrested or persecuted on political grounds. The Decree provided that individuals falling under its scope and listed in the appendix were to be absolved of criminal responsibility, and their sentences were to be annulled. It was noted that the relevant implementing legislation would be adopted in due course.
15. On 28 December 2012 the Parliament of Georgia adopted the Amnesty Act, section 22 of which provided that a person deemed by Parliament to have been arrested or persecuted on political grounds was to be absolved of criminal responsibility and to have his or her sentence annulled. Section 24 provided that “the relevant application for political amnesty provided for in section 22” was to be submitted by the Chief Prosecutor’s Office and the Ministry of Prisons.
16. On 24 June 2016 Article 310 of the Code of Criminal Procedure was amended as follows:
“A conviction shall be reviewed in view of newly discovered circumstances if
...
A prosecutorial decision is submitted regarding a substantive breach of a convicted person’s human rights in the course of criminal proceedings conducted against him and/or her, [the fact] which was not known at the moment of his and/or her conviction and which by itself or/and in a combination with another circumstance shows the innocence of a convict or the committal by him or her of a less serious crime ...”
17. On 22 June 2016 Article 3321 of the 2009 Code of Criminal Procedure was amended as follows:
“...
2. In addition to the grounds listed in Article 310 of the present Code [review of judgments based on newly emerged circumstances], a final judgment shall also be reviewed in respect of a person deemed to be a political prisoner or a politically persecuted person on the basis of Decree no. 76 of 5 December 2012 of the Parliament of Georgia, if the relevant judgment was delivered before the adoption of the Decree in question and the application [for reopening] is submitted to a court before 1 July 2017.”
18. The above time-limit for lodging an application for the review of criminal proceedings was eventually extended until 1 July 2018.
19. Article 1005 § 1 of the Civil Code provides that harm inflicted on an individual by the deliberate or negligent misconduct of a State official shall be compensated by the State.
COMPLAINTS
20. The applicant complained under Article 6 §§ 1 and 3 (d) of the Convention that the domestic courts deprived her of an opportunity to defend her case by refusing to examine several witnesses on her behalf. Moreover, the Tbilisi Court of Appeal conducted the appeal proceedings without an oral hearing.
THE LAWAdmissibilityThe parties’ submissions
21. The Government argued that the current application was inadmissible for a number of reasons. Notably, they submitted that since the applicant had been granted “political prisoner” status and released from prison as a result, she had lost the victim status within the meaning of Article 34 of the Convention or, at the very least, the matter had been resolved within the meaning of Article 37 § 1 (b) of the Convention. In alternative, they claimed that having been granted political prisoner status, the applicant was entitled, in line with Article 3321 of the Code of Criminal Procedure, to request the reopening of her trial. She also had at her disposal a compensatory remedy under Article 1005 of the Civil Code of Georgia. Having failed to avail herself of either of these remedies, she rendered her application inadmissible under Article 35 § 1 of the Convention. In this connection they also submitted that the applicant had failed to inform the Court of her release from prison as a result of her political-prisoner status. By failing to do so, the applicant abused her right of application within the meaning of Article 35 § 3 (a) of the Convention.
22. In reply the applicant maintained her initial allegations concerning the unfairness of her criminal trial. She claimed that her release from prison on the basis of the Amnesty Act could not have led to her losing victim status as she had never been acquitted in the respondent State. In her additional submissions she informed the Court that she had availed herself of a criminal remedy as proposed by the Government. Thus, she requested the reopening of her case, but to no avail. The appeal court having re-examined the evidence confirmed her initial conviction. In view of the ineffectiveness of the procedure, she decided to withdraw her appeal on points of law pending before the Supreme Court. As to the compensatory remedy, she simply asserted that a civil claim did not offer reasonable prospects of success.The Court’s assessment
23. In relation to the Government’s primary plea of inadmissibility, the Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive that person of his or her status as a “victim”, within the meaning of Article 34 of the Convention, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see, for instance, Scordino v. Italy (no. 1) [GC], no. 36813/97, § 180, ECHR 2006‑V, with further references). As to the redress which is appropriate and sufficient in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, with particular regard to the nature of the right alleged to have been breached (see Gäfgen v. Germany [GC], no. 22978/05, § 116, ECHR 2010).
24. In the context of the criminal-limb guarantees of Article 6, full acquittal or discontinuation of the proceedings against the applicant have been regarded as appropriate redress (see, for example, Carboni v. Italy (dec.), no. 51554/99, 12 February 2004; Üstün v. Turkey, no. 37685/02, § 24, 10 May 2007, and Oleksy v. Poland (dec.), no. 1379/06, 16 June 2009). However, this is the case when an applicant is no longer affected and has been relieved of any effects to his disadvantage. An applicant can maintain his or her victim status if he has already served all or part of his sentence and no compensation has been offered or is available for the alleged violation (see, for example, Hooper v. the United Kingdom (dec.), no. 42317/98, 21 October 2003; Menesheva v. Russia (dec.), no. 59261/00, 15 January 2004; and Arat v. Turkey, no. 10309/03, §§ 46-47, 10 November 2009).
25. Turning to the circumstances of the present case, the Court notes that the applicant was granted “political prisoner” status. As a result, she was absolved of criminal responsibility and her sentence was annulled, although her conviction was not expunged. Furthermore, the appeal court granted her request for a review of her conviction. The Court notes, however, without entering into the assessment of the legal nature of the Parliamentary decision as such, that the Decree on Political Prisoners was formulated in very general terms (see paragraphs 10 and 14 above) and did not provide for an acknowledgement of a violation of the applicant’s fair trial rights, as alleged by the applicant before the Court. In the course of the renewed criminal proceedings, while confirming her conviction, the Tbilisi Court of Appeal did not acknowledge, neither explicitly nor in substance, a violation of her rights under Article 6 §§ 1 and 3 (d) of the Convention (see Pisano v. Italy (striking out) [GC], no. 36732/97, §§ 37-38, 24 October 2002; contrast Dzasokhov v. Georgia (dec.), no. 70243/11, § 22, 19 March 2019, with further references therein). In the absence of such an acknowledgement by the national authorities, the Court considers that the first condition laid down in the Court’s case-law concerning the loss of victim status was not met (see paragraph 23 above). Along the same line of reasoning, the Court finds that the matter has not been resolved within the meaning of Article 37 § 1 (b) of the Convention; while the applicant’s prison sentence was annulled, her conviction remained unaffected with the review proceedings leading to its confirmation as being rightful (contrast Dzasokhov, cited above, § 22, and Kighuradze v. Georgia (dec.), no. 9013/12, § 39, 12 November 2020). The Court cannot find this to amount to resolution of the matter (see L. and V. v. Austria, nos. 39392/98 and 39829/98, § 43, ECHR 2003‑I).
26. The Court notes, however, that new developments in a case may lead the Court to conclude that “for any other reason ... it is no longer justified to continue the examination of the application” and that the application should therefore be struck out of the list of cases in accordance with Article 37 § 1 (c). It is clear from the latter provision that the Court enjoys a wide discretion in identifying grounds capable of being relied upon in striking out an application on this basis, it being understood, however, that such grounds must reside in the particular circumstances of each case (see Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, §§ 36-37, ECHR 2006‑XIV, F.I. and Others v. the United Kingdom (dec.), no. 8655/10, 15 March 2011, and summary of case-law on the matter in Atmaca v. Germany (dec.), no. 45293/06, 6 March 2012). Thus, the Court had previously considered appropriate to strike applications from the list of cases in the light of lack of diligence on the part of applicants (see, for example, Goryachev v. Russia (dec.), no. 34886/06, §§ 27-30 and 42-43, 9 April 2013; see also Hun v. Turkey (dec.), no. 5142/04, 10 November 2005, and Mürrüvet Küçük v. Turkey (dec.), no. 21784/04, 10 November 2005).
27. In the present case the Court finds it necessary to examine whether the applicant’s conduct demonstrated necessary diligence in pursuance of her complaints on the domestic level and before the Court. It notes in this respect that the applicant requested the reopening of her case only after the Government pleaded non-exhaustion in their submissions before the Court. Further, it appears from the case file as it stands before the Court, that while protesting her innocence in the course of the reopened proceedings, the applicant did not request the examination of either Mr M.A., Mr G.M., or Mr L.B. in court, although their non-examination in the course of the applicant’s initial trial constituted the very core of her complaints in the proceedings before the Court (see paragraphs 7 and 20 above). Finally, the applicant withdrew her appeal on points of law, thus preventing the Supreme Court from reviewing her conviction and delivering a final decision in her case (see paragraph 13 above). In such circumstances, the Court finds that the applicant herself, by her own lack of due diligence, contributed to a situation by which the domestic courts were prevented from effectively examining the alleged procedural violations under Article 6 §§ 1 and 3 (d) of the Convention.
28. The Court is aware that the applicant lodged her application with the Court on 25 November 2010, before the relevant new developments in December 2012 and onwards. However, it finds it significant that the applicant had recourse to a specially created review procedure. Essentially, by requesting the reopening of her trial she demonstrated an expectation to have her case reconsidered at the domestic level. From the failure of the applicant to pursue this procedure to the very end, it must be inferred that the applicant freely chose not to pursue her complaints through a reasonable legal avenue on the domestic level. She hence failed to demonstrate the necessary diligence on her part and the Court considers that it is no longer justified to continue the examination of the application. Furthermore, the respect for human rights as defined in the Convention and the Protocols thereto does not require continued examination of the application.
29. The application should therefore be struck out of the list of cases in accordance with Article 37 § 1 (c) of the Convention.
For these reasons, the Court, unanimously,
Decides to strike the application out of its list of cases in accordance with Article 37 § 1 (c) of the Convention.
Done in English and notified in writing on 23 September 2021.
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Martina Keller Mārtiņš Mits
Deputy Registrar President
Full & Egal Universal Law Academy