Communicated on 28 September 2015
FOURTH SECTION
Application no. 5432/15
Giorgi UGULAVA
against Georgia
lodged on 27 December 2014
STATEMENT OF FACTS
1. The applicant, Mr Giorgi Ugulava, is a Georgian national, who was born in 1975 and is in detention in Tbilisi. He is represented before the Court by Mr O. Kakhidze and Mr P. Leach, lawyers practising in Tbilisi and London respectively.
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
A. The circumstances of the case
1. Background information
3. The applicant is one of the leaders of the United National Movement (“the UNM”), a political party which ran the country between November 2003 and October 2012. The applicant was first appointed as mayor of Tbilisi in 2005 and then elected to the post in 2010. In October 2012 the Georgian Dream coalition won parliamentary elections and formed a new government. The applicant continued to serve as mayor of Tbilisi.
2. First set of criminal proceedings against the applicant and relevant pre-trial proceedings (criminal case no.092261112002)
4. On 10 November 2012 an investigation was initiated under Article 182 § 1 and Article 210 § 1 of the Criminal Code into the embezzlement of budget funds and the use of fraudulent tax documents in connection with the activities of Tbiliservice Group, one of the limited companies formed by the Tbilisi Mayor’s Office. On 1 February 2013 the applicant was summoned as a witness in relation to the above proceedings. He duly appeared and was questioned by an investigator on 2 February 2013.
5. On 22 February 2013 the applicant was officially charged with aggravated embezzlement under Article 182 §§ 2 (d) and 3 (b) of the Criminal Code. He was also charged with misappropriation and money laundering, which are offences under Article 182 §§ 2 (d) and 3 (a) and (b) and Article 194 § 3 (a) and (g) of the Criminal Code respectively in connection with his alleged involvement in an unlawful scheme to seize control of a private television company, Imedi.
6. On 24 February 2013 the Tbilisi City Court rejected a request by the prosecutor to remand the applicant on bail of 1,000,000 Georgian laris (GEL). The Tbilisi City Court on 25 February 2013 also refused a request by the prosecutor to dismiss the applicant from his position as mayor. Both decisions were upheld by the Tbilisi Court of Appeal on 1 March 2013.
3. Second set of criminal proceedings against the applicant and relevant pre-trial proceedings (criminal case no. 092200213002)
7. On 20 February 2013 an investigation was launched under Article 182 § 3 (b) of the Criminal Code into the activities of the Old Tbilisi Rehabilitation and Development Fund, founded by the Tbilisi Mayor’s Office. On 18 December 2013 these proceedings led to the applicant being formally charged with aggravated embezzlement.
8. On 21 December 2013 the Tbilisi City Court rejected a request by the prosecutor to remand the applicant in custody. The court instead ordered his release on bail of GEL 50,000.
9. The prosecutor also on that date requested the court to rule on removing the applicant from office. In a decision of 22 December 2013, the Tbilisi City Court, sitting in camera, granted the request by the prosecutor and ordered the applicant’s suspension from his position as mayor until the conclusion of the criminal proceedings in question. The suspension order was upheld by the Tbilisi Court of Appeal on 26 December 2013.
4. Third set of criminal proceedings against the applicant (no.092250613004) and relevant pre-trial proceedings
10. On 12 and 13 April 2014 the applicant was questioned as a witness in another criminal investigation, this time concerning the activities of CT-Park LLC, a company in charge of the management of car parking in Tbilisi.
11. On 28 June 2014 the applicant received a further summons to attend questioning, which was scheduled for 30 June 2014. When served with the summons, the applicant made the following note:
“This summons is politically motivated. In addition to the fact that there is an electoral moratorium [on arrests of opposition politicians], I am leaving on a special business trip on 29 June at 6.50 a.m. and will return to Georgia on the Kyiv flight on 5 July at 5 a.m. This is well known to the investigation and they have acted on purpose to prevent my business trip.”
12. The applicant did nevertheless appear for questioning on 30 June 2014. He was then charged with aggravated embezzlement in the context of the proceedings referred to above. When served with the charges, the applicant informed the investigator that he was due to make several business trips outside Georgia between 1 and 6 July 2014. In reply, the investigator warned him not to leave the country. The applicant complained, claiming that his freedom of movement could be only restricted in exceptional circumstances on the basis of a court order. Further to the applicant’s complaint, the Public Defender of Georgia sought to have disciplinary proceedings begun against the investigator for taking an unlawful decision. It is not clear from the case file what was the outcome of the above complaint, if any.
13. On 1 July 2014 the prosecutor requested the Tbilisi City Court to remand the applicant on bail of GEL 50,000. He also requested the court to order the applicant under Article 199 § 2 of the Code of Criminal Procedure to surrender his ID card and international passport. On 2 July 2014 the court refused to remand the applicant on bail, concluding that the request for the application of preventive measure was unsubstantiated. It also refused to order the surrender of his ID card and passport, concluding that such measures could only be applied in combination with preventive measures. The decision was upheld by the Tbilisi Court of Appeal on 5 July 2014.
5. Fourth set of criminal proceedings against the applicant (no.092060614001), his arrest and pre-trial detention
14. According to the case file, in the late evening of 2 July 2014 the applicant received another summons to appear for questioning at 10 a.m. on 4 July 2014. When served with the document, the applicant explained to the investigator that he could not cancel his business trip to Ukraine (see paragraph 12 above). He was, however, ready to shorten it and return from Kyiv early in the morning of 4 July 2014. On 3 July 2014 at 5.57 a.m. the applicant was arrested at Tbilisi International Airport. According to the arrest report, he was accused of aggravated money laundering, an offence under Article 194 of the Criminal Code. The ground for his arrest was a risk of absconding.
15. The applicant’s lawyers, who were refused immediate access to their client, requested detailed information about the new charges. They complained that when he was arrested the applicant had not been properly informed about the nature of the new accusations. It appears that despite several requests, the lawyers were not allowed to see their client during the initial four to five hours of detention. They were also denied access to the case file.
16. The next day, at 9.45 a.m., official charges were brought against the applicant in two new matters. The first concerned his alleged involvement in a money laundering scheme, an offence under Article 194 §§ 2 (a) and 3 (g) and Article 362 § 1 of the Criminal Code. The second concerned the alleged organisation of a violent incident in one of the district electoral commissions on 5 June 2014, offences under Article 150 § 1 and Article 226 of the Criminal Code. The applicant was served with a copy of the decision on 4 July 2014 at 11 a.m.
17. The Tbilisi City Court on the same day held an oral hearing with the applicant and his lawyers and remanded the applicant in custody. Along with referring to the gravity of the charges and the severity of the possible sentence, the court concluded that there was a risk of the applicant hindering the investigation by obstructing the gathering of evidence and influencing other participants in the proceedings. In support of the above arguments the court referred, inter alia, to a statement by one of the witnesses, who alleged that the applicant had threatened him.
18. In connection with the other criminal proceedings pending against the applicant, the court noted the following:
“The fact that the applicant was released on bail in a separate criminal case and that no preventive measures have been ordered against him in other cases does not mean, in view of the concrete circumstances of the [current] case, that none of the preventive measures, including detention, may be imposed ...”
19. The Tbilisi City Court also noted that the applicant, despite being served with a summons on 2 July 2014 for questioning on 4 July 2014 (see paragraph 14 above), had planned to leave the country on 3 July 2014 and had not warned anyone of this. Hence, there was a reasonable expectation that the applicant would flee the country and obstruct the investigation.
20. The decision was upheld by the Tbilisi Court of Appeal on 8 July 2014. The appeal court concluded that there had been no procedural violations during the applicant’s arrest and initial period of detention.
21. In February 2015 the applicant requested the replacement of his detention with bail. The request was examined and rejected orally by a trial judge on 18 February 2015. In reply to the applicant’s request for a written decision, he was provided with an extract from the minutes of the hearing, which stated the following:
“The request of the defence to amend the preventive measure applied to Giorgi Ugulava is refused.”
6. Fifth set of criminal proceedings against the applicant (no.074251013802)
22. On 28 July 2014 the applicant was charged with abuse of power under Article 333 § 1 of the Criminal Code on account of his alleged involvement in the misappropriation of the Imedi television company and of property belonging to another company, Lynx Ltd.
23. On 13 March 2015 the charges against the applicant were amended. In particular, in connection with the above two episodes, he was also charged with aggravated embezzlement and money laundering under Article 182 §§ 2 (a) and 3 (b) and Article 194 § 3 (b) and (g) of the Criminal Code.
24. When served with the decision to bring charges against him, the applicant made the following note:
“The charges are absurd and politically motivated. The purpose is to extend my pre-trial detention because the nine-month limit expires on 2 April ...”
25. On 14 March 2015 the Chief Prosecutor’s Office requested the Tbilisi City Court to remand the applicant in custody pending trial on the grounds that there was a well-founded risk of his absconding or failing to appear in court, destroying important information relevant to the case file or reoffending. The prosecution particularly emphasised the possibility of the applicant influencing witnesses, having regard to his background. In connection with the detention order of 4 July 2014, which was due to expire on 2 April 2015, they claimed that the impugned preventive measure had been applied in the context of another set of criminal proceedings (criminal case no. 092060614001) (see paragraphs 15-22 above) and was hence irrelevant.
26. The defence objected. Their argument was mainly threefold; firstly, with reference to Article 18 of the Constitution of Georgia and Article 205 of the CCP (see paragraphs 35-36 below), they claimed that the maximum length of pre-trial detention was nine months and so there was no legal basis to apply a new period of pre-trial detention. They maintained that the prosecution argument that the nine-month limit was to be calculated for each set of criminal proceedings independently was unconstitutional. Secondly, the defence claimed that the investigation in the current case, which had started in July 2014, was over; most of the witnesses had already been questioned and the required investigative measures taken; no instance of influencing witnesses had been confirmed; hence, there was no reasonable suspicion that the applicant would obstruct an investigation that was almost complete. Lastly, the defence noted that as far as the Imedi episode was concerned, the same facts had formed the basis for another case against the applicant, which had been opened in February 2013 (see paragraph 5 above). The investigation in that case had been concluded and the case was being examined by the Tbilisi City Court on the merits. Hence, it was in violation of the Constitution, the norms of the CCP and the rule against double jeopardy to initiate another set of proceedings in connection with the same facts and to request a further period of pre-trial detention.
27. By a decision of 15 March 2015 the Tbilisi City Court granted the prosecutor’s request to order the applicant’s pre-trial detention. The trial judge concluded that there was a high risk of the applicant hindering the investigation by, inter alia, influencing the witnesses, and also of his absconding. The trial judge did not address the defence’s argument about the unlawfulness of the new period of pre-trial detention.
28. On 20 March 2015 the Tbilisi Court of Appeal declared the applicant’s appeal inadmissible. Confirming the reasoning of the first-instance court, the appeal court noted that as far as the alleged unlawfulness of the new detention order was concerned:
“[The court] considers that the assertion of an alleged violation of the time-limit for detention, as provided for by the Constitution, is unsubstantiated ... According to the case file, detention as a preventive measure was applied to Giorgi Ugulava on 4 July 2014 in a different criminal case on other charges and the time-limit of nine months .... for the above pre-trial detention expires on 2 April. On 15 March 2015 the Tbilisi City Court examined the prosecution’s request in the current criminal case to remand Giorgi Ugulava in custody pending trial ... and granted it ...
[The appeal court] notes that a court is authorised to impose pre-trial detention as a preventive measure if the charges in the context of another criminal case concern different episodes and facts. At the same time, the statutory time-limit, as provided for in the Constitution, expires in the initial criminal case where pre-trial detention had been ordered,...”
29. On 3 April 2015 the applicant lodged an application with the court for a review of his detention order. This was dismissed on 5 May.
7. The alleged politically motivated persecution of the applicant
30. The applicant submitted newspaper articles containing interviews with high-ranking officials of the current Government of Georgia, including the Prime Minister, which in his opinion proved that a politically motivated persecution had been launched against members of the UNM.
31. The applicant also referred to public statements by various leading figures of the international community which conveyed concern over the initiation of criminal proceedings and the arrest of former high-ranking government officials. For instance, on 4 July 2014, the European Union issued a special statement with regard to the arrest of the applicant, which read as follows:
“We are following closely the arrest of Mr Gigi Ugulava at Tbilisi airport on 3 July. We note that Mr Ugulava, previously suspended mayor of Tbilisi, is the opposition’s chief campaign organiser during the ongoing municipal elections in Georgia. We recall Prime Minister Gharibashvili’s announcement of 14 April of a moratorium on the arrest and prosecution of opposition figures during this election period. We call once more upon the Georgian authorities to ensure that the judicial process is fully independent, transparent, and free of political influence, in line with the commitments undertaken by Georgia when it signed the Association Agreement with the European Union last week on 27 June 2014.”
32. On 15 July 2014, the Chairman of the EPP-CD Group in the Parliamentary Assembly of the Council of Europe, Pedro Agramunt, publicly raised concerns about the selective prosecution of political opponents in Georgia. Thus, he stated that “this decision on Mr Ugulava’s pre-trial detention may raise suspicions about [it being] politically motivated. The viability of Georgian democracy should be demonstrated by ensuring safety and protection of political opposition.”
33. On 1 October 2014 the Parliamentary Assembly of the Council of Europe adopted a resolution on Georgia which stated the following:
“The Assembly takes note of the large number of allegations of possible criminal conduct by former government officials during their tenure. At the same time, it is seriously concerned about allegations that the arrests and prosecution of a number of former government officials are politically motivated and amount to selective and revanchist justice.”
34. On 20 March 2015, the Parliamentary Assembly’s rapporteur on “Abuse of pre-trial detention in Council of Europe member states” criticised the prolongation of the applicant’s pre-trial detention. Referring to the multiple proceedings initiated against the applicant, the rapporteur stated: “I cannot help gaining the impression that the Chief Prosecutor’s Office’s zeal has a political background.”
B. Relevant domestic law
35. Pursuant to Article 18 § 6 of the Constitution of Georgia, the maximum period of pre-trial detention is nine months.
36. The same principle is enshrined in the Code of Criminal Procedure of Georgia (“the CCP”), which entered into force on 1 October 2010. In particular, Article 205 of the CCP reads as follows:
Article 205 – Pre-trial detention
“1. Pre-trial detention, as a preventive measure, shall be employed only when it is the sole means to prevent the accused from:
(a) absconding or interfering with the administration of justice;
(b) hampering the obtaining of evidence;
(c) reoffending.
2. The overall length of the accused person’s pre-trial detention shall not exceed nine months. After the expiry of that period, the accused shall be released. The period starts to run from the moment of the arrest of the accused ... and ends with the delivery of a judgment by a trial court at the first level of jurisdiction.
3. The period of detention of the accused person pending the opening of a pre-trial conference shall not exceed sixty days. After the expiry of that period, the accused must be released from detention, except in the situation provided for by paragraph 3 of Article 208 of this Code.”
37. Pursuant to Article 206 §§ 3 and 6 of the CCP, the prosecutor’s initial request for a preventive measure such as detention must be submitted to a judge within forty-eight hours of the arrest of the accused and must always be examined in the presence of all the parties at a fully adversarial oral hearing. The judge must then deliver a written decision which must contain reasons, and the accused must have the right to lodge an appeal against the decision to a higher court (Article 207).
38. Pursuant to Article 206 §§ 8 and 9 of the CCP, after the initial application of a preventive measure, a party is entitled to request the alteration or annulment of such a measure if new circumstances have emerged. The judge is entitled to examine the admissibility of the request without an oral hearing and the examination should focus on whether there really are new circumstances. The judge must nevertheless deliver a written, reasoned decision.
COMPLAINTS
39. The applicant complains that both periods of his pre-trial detention were arbitrary within the meaning of Article 5 § 1 of the Convention. He further claims under Article 5 § 3 of the Convention that the court decisions ordering his detention lacked sufficient reasoning and also failed to lay down specific time-limits. The applicant also complains that being refused access to a lawyer immediately after his arrest and the lack of access to his case file prevented him from defending his rights in an adequate manner during the detention hearing of 4 July 2014, in violation of Article 5 § 4 of the Convention. Lastly, relying on Article 18 of the Convention in conjunction with the above-mentioned Article 5 complaints, the applicant claims that the only purpose of his being remanded in custody is to exclude him from the political life of the country.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of his liberty in breach of Article 5 § 1 (c) of the Convention? In particular,
(i) was the applicant’s pre-trial detention, ordered on 4 July 2014 after his release on 2 July 2014, compatible with Article 5 § 1 (c) of the Convention (see, mutatis mutandis, Mikhaniv v. Ukraine, no. 75522/01, §§ 76-89, 6 November 2008, and Dubinskiy v. Russia, no. 48929/08, §§ 41‑48, 3 July 2014);
(ii) was the applicant’s pre-trial detention after 2 April 2015, that is after the expiry of the statutory maximum time-limit of nine months for such detention (see Article 18 § 6 of the Constitution and Article 205 § 2 of the Code of Criminal Procedure), compatible with Article 5 § 1 (c) of the Convention? In this respect, what is the domestic legal practice, if any, on the calculation of the above-mentioned statutory time-limit of nine months when an accused is subject to prosecution and pre-trial detention in unrelated but parallel or consecutive sets of criminal proceedings?
2. For how long did the decisions of the Tbilisi City Court of 4 July 2014 and 15 March 2015 impose pre-trial detention on the applicant? In this connection,
(i) Were those decisions supposed to cover the maximum nine-month period of pre-trial detention authorised by Article 205 § 2 of the Code of Criminal Procedure, the period until the opening of a pre-trial conference or any other specific period?
(ii) Is it consistent with the relevant judicial practice not to indicate explicit time-limits in court decisions ordering pre-trial detention under Article 205 of the Code of Criminal Procedure? The parties are invited to submit relevant examples.
3. Was the detention imposed on the applicant on 4 July 2014 and then on 15 March 2015 in conformity with the requirements of Article 5 § 3 of the Convention? In particular, were the grounds given in the detention orders “relevant” and “sufficient” to justify the deprivation of liberty?
4. Was the detention hearing of 4 July 2014 conducted in conformity with the principle of “adversarial proceedings” and “equality of arms” as enshrined in Article 5 § 4 of the Convention?
5. Did the judicial review of 18 February 2015 comply with the judicial guarantees of Article 5 § 4 of the Convention? In particular,
(i) Was it compatible with domestic law, in particular Article 206 of the Code of Criminal Procedure, and with the practice of the Tbilisi City Court to reject the applicant’s request for review of his pre-trial detention on 18 February 2015 orally, providing only the audio record of the court session, without delivering a written reasoned decision? The parties are invited to submit examples of the relevant judicial practice.
(ii) Did the Tbilisi City Court’s decision of 18 February 2015 to keep the applicant in custody result from an appropriate judicial review during which both the reasonableness of the suspicion underpinning the applicant’s arrest and the legitimacy of the purpose of that arrest and continued detention were duly addressed?
6. Was the applicant’s pre-trial detention in two different sets of criminal proceedings applied for a purpose other than those envisaged by Article 5 § 1 (c) of the Convention, contrary to Article 18 of the Convention?
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