CEDH · CASELAW;DECISIONS;ADMISSIBILITY;ENG — 27 juin 2007

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .s84D0D60A { width:8.36pt; display:inline-block } .s61E420C2 { font-family:Arial; font-variant:small-caps } .sA36B60A1 { font-family:Arial; font-style:italic } .s61ED8A2B { width:14.36pt; display:inline-block } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s8EB5F569 { font-family:Arial; font-size:6.67pt; vertical-align:super } .s8378218E { margin-top:12pt; margin-left:48.75pt; margin-bottom:6pt; text-indent:-17pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sCA71A5BA { margin-top:12pt; margin-left:59.5pt; margin-bottom:6pt; text-indent:-17.85pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sFA5ED050 { margin-top:0pt; margin-bottom:0pt; text-indent:14.15pt; text-align:justify } .s34D46E87 { margin-top:12pt; margin-bottom:6pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:10pt } .sE5273FBD { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:center; font-size:10pt } .sF7A86111 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; font-size:10pt } .sB8084949 { width:138.49pt; display:inline-block } .s434D37A9 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s4B8D41EE { font-family:Arial; font-size:10pt } .s88A92475 { margin-top:12pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sDD165512 { margin-top:12pt; margin-left:14.2pt; margin-bottom:0pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s8BD2CFA4 { width:35.21pt; display:inline-block } .sC474A5FB { width:236.12pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block } SECOND SECTION DECISION AS TO THE ADMISSIBILITY OF Application no. 1704/06 by Shalva RAMISHVILI and Davit KOKHREIDZE against Georgia The European Court of Human Rights (Second Section), sitting on 27   June 2007 as a Chamber composed of:   Mrs   F. Tulkens, President,   Mr   A.B. Baka,   Mr   I. Cabral Barreto,   Mr   R. Türmen,   Mr   M. Ugrekhelidze,   Mrs   A. Mularoni,   Mrs   D. Jočienė, judges, and Mrs S. Dollé , Section Registrar , Having regard to the above application lodged on 9 January 2006, Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court, Having regard to the initial observations submitted by the respondent Government on 30 June 2006 and by the applicants in reply on 29 August and 19 September 2006, Having regard to the additional observations submitted by the Government and the applicants on 9 November and 2 December 2006 respectively, Having deliberated, decides as follows: THE FACTS The applicants, Mr Shalva Ramishvili and Mr Davit Kokhreidze, are Georgian nationals who were born in 1971 and 1961 respectively and are detained in Rustavi No. 6 Prison. The applicants’ initial representatives, Mr   A. Baramidze and Mr Hans von Sachsen-Altenburg, were replaced on 23   February 2007 by Ms L. Mukhashavria and Mr V.   Vakhtangadze, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr   M.   Kekenadze of the Ministry of Justice. A.     The circumstances of the case The facts of the case, as submitted by the parties, may be summarised as follows. 1.     As the case stood prior to its communication on 3 April 2006 The applicants were co-founders of and shareholders in a private media company (“the media company”) which owned the television channel “TV   202” (“the channel”), broadcasting in Tbilisi. The first applicant, as an anchorman of the popular talk show “Debatebi” ( Debates ), often addressed politically sensitive issues, criticising the Government. Under a service agreement of 25 April 2005, the applicants’ company undertook to air several documentary films made by “Studio Reporter”, a private film-production company (“the production company”). Consequently, in May 2005, the latter started working on a documentary concerning certain business activities of Mr B., a parliamentarian from the presidential political party (“the ruling party”), which held at that time the majority of seats in Parliament. The object of the documentary was to expose Mr B.’s allegedly illegal commercial activities. According to the Government, except for the applicants, nobody within the media company knew about the making of the compromising film. After Mr B. had tried in vain to persuade the journalists of the production company to drop the project, he contacted the first applicant. From May to August 2005 the parliamentarian placed numerous telephone calls, asking Mr Ramishvili to block the film. Eventually, they agreed to meet and discuss the issue. During their first meeting, which took place in the morning of 26   August 2005, an agreement was reached whereby the first applicant would not allow the airing of the film on his channel in exchange for USD   100,000 (EUR 84,337). Immediately after this meeting, Mr B. complained to the Minister of the Interior that the first applicant had been blackmailing him. He reported to the authorities that, in the event of the compromising film being aired, it could have disastrous consequences not only for him personally but also for the image of the ruling party. The same day, the Ministry of the Interior initiated criminal proceedings on suspicion of extortion for the purpose of gaining vast profits. Later that day, Mr B. met the first applicant again. They agreed that the latter would accept the sum in two instalments: USD 30,000 and 70,000 (EUR   25,297 and 59,000). In the morning of 27 August 2005, Mr B. informed the prosecution service that he would hand over the first instalment to the first applicant around noon. The 100 US dollar notes were consequently processed with invisible chemicals and marked with a special pencil, while their serial numbers were recorded by the investigation authorities. The Prosecutor General’s Office (“the PGO”) issued a ruling, dated 27 August 2005, at 11.00 a.m., authorising the secret videoing of the meeting without a court order, due to “urgent necessity”. The camera was hidden on the parliamentarian’s person. The meeting during which Mr B. handed over the money to the first applicant took place on 27 August 2005 at noon, in the apartment of a mutual friend of theirs. It was also attended by the second applicant. The conversation and the handing over of the money were videoed secretly (“the video recording of 27 August 2005”) by the parliamentarian. When the applicants left the meeting and got into the second applicant’s car, they were arrested and searched. USD 30,000 and the car in which the money was found were seized. On the same day the Tbilisi City Court legalised the secret video recording. On 28 August 2005 Mr B. was recognised by the investigation as a victim and both applicants were charged with conspiracy to commit extortion. They pleaded “not guilty” and refused to testify at that time. On 29 August 2005 the Tbilisi City Court granted the prosecutor’s motions and remanded the applicants in custody for three months. The order noted that the collected evidence – the parliamentarian’s statements, the results of the on-the-spot search of the applicants, the seized materials and the secret video recording of 27 August 2005 - substantiated the suspicion that the applicants had committed the offence with which they had been charged. The court dismissed the prosecutor’s argument that the applicants might abscond in view of the gravity of the charge as unsubstantiated. However, it endorsed the fear that they could interfere with the establishment of the truth by exerting pressure on those witnesses who were under their hierarchical authority in the media company. On 31 August 2005 the applicants appealed against this decision, complaining that their detention was not lawful within the meaning of Article 5 of the Convention, since the prosecution had failed to prove the reasonableness of the imposition of such a measure. They complained in particular that, apart from the parliamentarian’s statements, the prosecution had not submitted any other evidence substantiating the suspicion that a crime had been committed. Further, they alleged that, contrary to Article   18 of the Convention, they had been detained not for the purpose of bringing them before the competent legal authority but in order to silence their television channel. On 31 August 2005 the investigator issued a ruling, incorporating as evidence into the criminal case file the seized US dollar notes, the second applicant’s car and the traces of chemicals found there, as well as the applicants’ fingerprints and some other results of their search and arrest on 27 August 2005 . In September 2005 the “TV   202” channel aired the impugned documentary about Mr B.’s involvement in private business. Subsequently, Parliament established an ad hoc committee to investigate the parliamentarian’s commercial activities. On 2 September 2005 the Tbilisi Regional Court dismissed the applicants’ appeal at an oral hearing (described below). The decision of 2 September 2005 endorsed the reasoning of the lower court concerning the applicants’ managerial positions in the media company as a ground supporting the risk that they might influence the witnesses. It reiterated that the collected evidence (the parliamentarian’s statements, the results of the on-the-spot search of the applicants and the secret video recording of 27 August 2005) indicated “with a high degree of probability” that the applicants had committed the crime. However, the decision noted that, in so far as the criminal case file did not contain either a copy of that recording or its verbatim transcript, it was impossible to assess whether the handover of the money by the parliamentarian to the applicants could be qualified as extortion. The operative part of the decision mentioned that, pursuant to Article 243 §§ 1 and 3 of the Code of Criminal Procedure (the   “CCP”), the decision was final and no appeal lay against it. On 6 September 2005 the investigator incorporated the video recording of 27 August 2005 and its verbatim transcript as evidence into the criminal case file. On 29 September 2005 the investigator presented the transcript to the applicants. Calling its authenticity into question, the applicants requested leave to watch the recording. On 19 October 2005 the investigator informed the applicants in writing that the preliminary investigation had been terminated. On 11   November 2005 the case materials were presented to the applicants in prison. However, because at that time no appropriate equipment had been provided, it was only on 14 and 16 November 2005 that the applicants, in the presence of their advocates, watched the video recording of 27 August 2005 for the first time. The second applicant, claiming that some scenes had been edited, requested a copy so that an alternative expert could examine it. The investigator, reasoning that the procedural legislation did not provide for a copy of video materials to be transmitted to the accused, dismissed that request on 17 November 2005. On 22 November 2005 the prosecutor sent the criminal case, along with the bill of indictment of 19   November 2005, to the Tbilisi City Court for trial. On 27 November 2005 the three month pre-trial detention period expired without the court ordering its extension. On 6 December 2005 the applicants filed a complaint with the Tbilisi City Court, demanding their immediate release. They claimed that they had been deprived of their liberty in breach of Article 159 of the CCP and Article 5 of the Convention, since no judicial decision had authorised their detention since 27 November 2005. No immediate response from the court was forthcoming. On 11 January 2006 the administration of Tbilisi No.   5 Prison, where the first applicant was provisionally detained, transferred the latter from his ordinary cell to the punishment cell ( karzer ), which measured 4 to 5 square metres and was intended for solitary confinement, as a disciplinary punishment for using a mobile telephone. In Soviet times, this type of cell was used for the confinement of those on death row. There was another person sharing the cell with the applicant (“the second inmate“). On 13 January 2006, the applicants were taken to the admissibility hearing before the Tbilisi City Court. Their advocates had only been notified of the hearing on 11   January 2006. The City Court decided to commit the applicants for trial under Article 417 § 1 of the CCP. In addition, it rejected their motion of 6   December 2005 to be released or to have their detention pending trial replaced by a more lenient measure of restraint, ruling in the following terms: “The defence incorrectly alleges a violation of the Convention as regards the fact that, after the three month detention period expired, [the applicants] were not immediately brought before a court. [In fact] the criminal procedural law does not require that, once the case is referred to the court for a hearing on the merits, any procedural decision be taken on the measure of restraint applied to the accused. According to the Convention, the [national] court ought to decide on a case within a reasonable period of time. ‘Reasonable period of time’ is defined by Article   680(4)   §   8 of the CCP as follows. ‘In the course of the hearing of a criminal case by a District (Regional) Court, the period of detention must not exceed 12 months from the date on which the case is sent to the court.’ Consequently, the [applicants’] detention pending trial has not exceeded its legal term.” In the resolution part of the decision of 13 January 2006, it was noted that there was no appeal possible. The applicants complained, supporting their submissions with photographs, that they had been kept in a barred dock during the hearing of 13 January 2006 and that there were security guards armed with machineguns and wearing hood-like black masks in the courtroom. On 14 January 2006 at about 11.00 p.m., some toxic smoke (later explained by the authorities to have been caused by the burning of a mattress in the adjacent cell) leaked into the first applicant’s punishment cell. Owing to the lack of ventilation, the smoke filled the cell quickly, causing the applicant and the second inmate to suffer from smoke inhalation, an inability to breathe and eye watering. According to the first applicant, they shouted and knocked on the door for half an hour before the prison guard opened the door and let both inmates out until the smoke was gone. On 15 January 2006 the first applicant was returned from the punishment cell to his ordinary cell. On 19 January 2006 the second applicant, also provisionally detained in Tbilisi No. 5 Prison, was moved from his six-bed cell, with six inmates in it, to another cell with 12 beds, where 29 prisoners were kept. The inmates were obliged to take turns to sleep. On 20 January 2006 the first applicant filed a complaint with both the PGO and the Ministry of Justice (“the MJ”), the authority in charge of the penitentiary system, challenging the conditions in the punishment cell and the lawfulness of his confinement there. According to the complaint, the punishment cell had no window or ventilation and was extremely damp. Tap water ran non-stop and noisily 24   hours a day. A narrow pipe in the corner, located just one metre away from the bed, was designated as a toilet. It was so narrow that it was difficult for the inmates to pass urine and excrement straight into the hole; there was no partition separating “the toilet” from the rest of the cell and a stench hung in the air all the time. One inmate could not avoid seeing what the other was doing. The cell was infested with cockroaches and rats occasionally ran through it. The only bed, infested with vermin, was not wide enough to accommodate two persons. In such conditions, the first applicant claimed that he had not been able either to have any normal sleep or to eat properly. During the whole period of his confinement in the punishment cell, he was never let out for a walk or other physical exercise. He alleged that he was never visited by a doctor or provided with any other care. From 20 January 2006 hearings were held almost daily. In the hearing rooms, the applicants were always kept in the same conditions as those on 13 January 2006: being displayed to the public in the barred dock, in the presence of hooded guards with machineguns. On 17 February 2006 the ad hoc committee of Parliament made public its findings regarding Mr B.’s commercial activities. It is not clear from the case file whether anything incriminating against him was reported. On the following day, Mr   B. announced his resignation from his position as a member of parliament. At the hearing on 23 February 2006, the second applicant announced that he had been continuously deprived of necessary medical care and of drinking water in prison. He declared that he intended to begin a hunger strike. The judge did not give any reply. Shortly afterwards, six more inmates were placed in the second applicant’s already overcrowded 12 ‑ bed cell, increasing the total number of prisoners there to 35. On 25 February 2006 the PGO informed the first applicant that it had taken note of his complaint of 20 January 2006. It also advised him that, according to the MJ Penitentiary Department, the conditions in the punishment cell fully complied with “international standards”. On 27 February 2006, after the prosecution had finalised its submissions before the court, the applicants requested, on the basis of Article 140 § 17 of the CCP, that their detention pending trial be replaced by a more lenient measure of restraint in view of newly discovered circumstances. In that connection the applicants referred to the fact that none of the witnesses questioned by the prosecution appeared to be under their hierarchical authority, but were rather co-founders of the media company. The Tbilisi City Court dismissed that request on the same day. The judge acknowledged that this fact was indeed “a newly-discovered circumstance...”, but ruled that it was “not a significant new circumstance which could justify revision of the imposed restraint measure”. The judge went on to say, “This is especially true since the accused have not yet presented their submissions and have not been examined; nor has the collected evidence been assessed...” The applicants then challenged the judge for bias, questioning her impartiality, but this challenge was dismissed as unsubstantiated by the same judge of the Tbilisi City Court that same day. An appeal against both decisions of 27 February 2006 lay only in connection with an appeal against the final verdict. On 29 March 2006 the Tbilisi City Court, convicting them of conspiracy to commit extortion, sentenced the first applicant to four and the second applicant to three years in prison. The verdict noted that the second applicant’s car, being material evidence in the criminal case, would be returned to the owner after the termination of the proceedings. On 30 June 2006 the Tbilisi Appellate Court upheld the verdict and also noted that, on account of certain changes in the criminal procedural legislation, the lower court’s order to return the car should be enforced immediately. On 29 August 2006 the second applicant gave a relative written authority to claim back his car from the authorities. On 26 September 2006 the car was returned to the applicant’s relative. After conviction the applicants were transferred from Tbilisi No. 5 Prison to the recently built Rustavi No. 6 Prison. The applicants challenged the appellate decision of 30 June 2006 in the cassation court. However, the case file does not disclose whether the Supreme Court has reached a decision yet. 2.     Subsequent developments in the case, as disclosed by the parties’ observations (a)     Proceedings with regard to the first applicant’s confinement in the punishment cell On 3 July 2006 the PGO informed the first applicant that on 18   May 2006 it had opened a criminal case with regard to his complaint of 20   January 2006 concerning his confinement in the punishment cell but, after a preliminary investigation, had decided on 26 June 2006 to close it as no elements of a crime had been disclosed. The PGO decision of 26 June 2006 noted that the first applicant’s transfer to the punishment cell had been, under Rule 22 § 1 (b) of the Prison Rules, a lawful disciplinary punishment for the use of a mobile telephone, such an act representing a grave violation of detention rules. Based on the statements of the administrative staff of Tbilisi No. 5 Prison, as well as the prison doctor and the second inmate, the decision stated that the first applicant had been visited by the doctor daily and offered food identical to that provided in the ordinary cells. It noted however that, according to the first applicant’s statements, he had refused to consume the food due to the unsanitary conditions in the punishment cell. As to the fire incident created by the inmate in the adjacent cell on 14 January 2006, the PGO, relying on witness testimonies, stated that the first applicant had immediately been taken out of his cell until the smoke was gone and that there had been no danger to his life. The Government submitted the minutes of the interview with the second inmate on 21 May 2006. The latter specifically mentioned that the food in the punishment cell had been of a satisfactory quality and that, in any case, he and the first applicant had had ample supplies because of their relatives’ food parcels, which they had brought with them from their ordinary cells. Relying on the examination of the punishment cell carried out by an investigative commission on 23 May 2006, the PGO’s decision of 26   June 2006 further stated that the cell had been equipped with an appropriate system of double “air filtration” and inside lighting, and that there had been a decent toilet, partitioned by a special wall from the rest of the cell. According to the minutes of the punishment cell examination of 23   May 2006, submitted by the Government, it was conducted without the first applicant or his advocates’ participation. They further disclosed that the punishment cell had been located in the basement of Tbilisi No. 5 prison, its length and width being 276 cm by 205 cm, and the bed had been 120   cm wide. With due regard to the above findings, the PGO decided on 26   May 2006 that the prison officials had not exceeded or abused their powers when transferring the first applicant to the punishment cell. On 18 July 2006 the first applicant filed a complaint against this decision, claiming that the investigation had not been effective or objective. He complained that, whilst he had filed his complaint on 20   January 2006, the PGO had opened proceedings only five months later on 18   May 2006. This lapse of time, in his view, had been more than sufficient for the prison administration to renovate the cell completely with a view to hiding the appalling conditions in which he had been held. In this regard, he challenged the PGO’s failure to enquire as to when exactly the ventilation, lighting and the toilet partition had been installed in the punishment cell. The first applicant further complained that the PGO had inexplicably disregarded his assertions that none of the above-mentioned conditions had existed during his confinement and had arbitrarily endorsed those of the prison staff who, being potential suspects in the case, could not be said to have been impartial witnesses. He challenged the fact that, despite his statement that he had never been provided with medical care, the PGO had trusted the statements of the prison doctor, another potential suspect, without having examined any other source of information (i.e. the relevant prison logbook of medical visits). He further claimed that the second inmate, being under the complete control of the authorities who were well ‑ known for abuses in prisons, might easily have been threatened or forced to make false statements. Finally, the first applicant complained that he and his advocates had learnt about the initiation of the criminal proceedings against the prison administration only after they were terminated on 26 June 2006. Consequently, they had not been given a chance to participate in the investigation so as to ensure its objectivity. On 24 July 2006 the first applicant’s complaint of 18   July 2006 was dismissed by the Tbilisi City Court. In reply to his complaint that the criminal proceedings had commenced only four months after his complaint of 20 January 2006 had been lodged, the decision noted that “the case materials do not support the suspicion that the cell has been renovated since the proceedings were opened on 18 May 2006.” It further stated that the PGO had duly assessed the witnesses’ statements, including those of the prison staff and the first applicant, and that nothing in the case file suggested that the second inmate might have been forced to testify against the first applicant. The decision of 24 July 2006 was adopted without an oral hearing and pronounced in absentia . An appeal lay against it within 10 days (see the parties’ arguments below). (b)     Hearing of 2 September 2005 i.     The video recording submitted by the Government The Government submitted a video recording of the proceedings concerning the applicants’ appeal against their detention on remand held at the Tbilisi Regional Court on 2 September 2005. The applicants replied that this recording did not include the scenes of greatest turmoil and had been considerably edited to portray a more favourable image of the hearing, excluding, for example, images of armed men inside the courtroom. They agreed however that this recording should be accepted and relied on as a source of information about the hearing. The applicants additionally provided annotations to some of the scenes. The opening scenes of the Government’s recording showed an overcrowded court room before the start of the hearing. A large number of media personnel and cameras on tripods were situated in the middle of the room. The dock was a metal cage with a barred ceiling, separated from the rest of the courtroom. The audience was comprised of civilians, with a large number of women, most of whom could be identified as the applicants’ supporters. However, there were some 15 men in plain clothes who were undercover police agents, according to the applicants. Moreover, many of those men were openly identified as agents by the applicants’ supporters on the spot. The supporters engaged in heated argument with several men in plain clothes, complaining about the lack of space and the State’s inability to provide a larger courtroom for the hearing. The four uniformed guards and several men in plain clothes escorted the handcuffed applicants into the courtroom. When the judge was seated, the crowd was still pressing into the room. The entrance door was blocked by the plain-clothes men from inside, while several hooded and armed guards could be seen forcing the door closed from the outside. The judge requested the people in the room to calm down. The judge specifically reproached the media representatives for their disorderly behaviour. The general noise level in the court room remained unabated even after the hearing was declared open. The judge offered the applicants the possibility of conducting the hearing in camera but they refused. Loud male voices could be heard in the court room bitterly arguing and uttering vulgar curses. The body language of the judge betrayed resignation and frustration, as he was unable to establish order. The advocates made their statements with camera flashes and halogen camera lights less than one meter from their eyes. During their speech there were continual interruptions by the judge and the public, and relentless banging on the entrance door from the outside, as well as the sound of construction works nearby. Now and then mobile telephones rang and persons conducted conversations. Communication between the defence, the prosecution and the judge, constantly hampered by the unsolicited interruptions of journalists, was only made possible by repeatedly requesting other people to move aside or sit down on the floor. The temperature in the court room was obviously high, given the sweat on people’s faces. The persons presumed to be undercover agents, and some court personnel, could be seen constantly entering and leaving the judge’s deliberation room. In order to see what was happening, respond to the judge or be heard, the applicants had to stand on the chair in the barred dock, hanging on to the metal side bars, and shout. They repeatedly asked the judge and the prosecutors to speak louder as they could not hear them. When answering one of the judge’s questions, the first applicant, hanging on the bars and grimacing as if to emphasise by body language his resentment in the situation, made the following remark:   “...The Government might have something against me...this I can [more or less understand]...but [I cannot] understand why it is necessary to detain [the second applicant] ... [unless,] of course, the Government wish to fill up the prisons [ cixeebi ]!...[Well,] I have been there [in the prison]; unimaginable things happen there!...There is no need for [the second applicant]...no place for him to be with me, here, in this cage! [ galiaSi ]...This is my declaration!” The immediate proximity of the prosecutor to the judge presented no obstacle of audibility for them. The dialogue of questions and answers between judge and prosecutor was unaffected. Several persons alleged to be undercover agents in plain clothes were shown behind the prosecutor and investigator. There were episodes when the prosecutor refused to reply to the second applicant’s questions regarding specific circumstances of the case, and instead made fun of him. Thus, for example, when the second applicant asked the exact time of his arrest, the prosecutor answered: “How should I know?!...I was not there when they arrested you!” To another question of the second applicant, the prosecutor answered: “That is a ridiculous question...go and ask the parliamentarian about that!”, and the question is then dismissed by the judge. In another episode, when the second applicant asked, “Could you, please, indicate the page and the paragraph in the case materials which prove that the parliamentarian...has testified against me?”, the prosecutor started laughing in reply and answered in a sarcastic tone, “Which case materials?! Which page?! Which paragraph?!” and then murmured “This man is not sane...” The judge intervened and rephrased the question as follows, “Do the parliamentarian’s testimonies incriminate [the second applicant]?” The prosecutor’s “yes” was endorsed by the judge as a reply to the question. In some episodes, when the applicants or their advocates asked questions which perplexed the prosecutor, the judge either directly replied instead (i.e.   by locating the necessary pieces of evidence in the case file) or rephrased the questions in a leading manner, thereby suggesting a suitable answer for the prosecutor. Thus, one of the advocates asked the prosecutor why it was necessary to impose detention on remand for three months, when there were only 8-12 witnesses who remained to be examined. As the prosecutor was unable to answer, the judge interrupted with, “[Because] the criminal procedural legislation does not envisage the imposition of detention for a lesser term”. As the judge retired for deliberations, the public were ushered out of the courtroom by the guards and plain-clothes men. After the deliberations, the room contained many fewer people than before. The composition of the public had changed to an almost all-male audience, avoiding the camera by ostentatiously turning their backs towards it and the judge. As the judge read the decision, the plain-clothes men stood next to him. Strangers constantly entered and left the judge’s deliberation room. There were brief glimpses of one or two guards wearing black hood-like masks inside the court room in front of the closed door. The closing scenes briefly showed the large number of presumably undercover plain-clothes agents leaving the courtroom, not hiding their irritation when filmed. A few of the applicant’s supporters, readmitted to the room after the deliberations, complained that the agents had occupied almost all of the seats. They asked the cameraman to film the presence of the agents. The first applicant then stated, “Look, there they are ...the agents ( TanamSromlebi )!” and pointed to the plain-clothes men. The following remarks could be heard: “Their presence was overwhelming! ...More agents than family or friends!” In the last scene, a hooded, armed man inside the courtroom nodded to the cameraman, apparently requesting the latter to stop recording. ii.     The video recording submitted by the applicants The case file also contained a video recording, submitted by the applicants, showing how around 30-34 plain-clothes men, identified in the Government’s video as undercover agents, attending the hearing of 2   September 2005, left the Tbilisi City Court through the same backdoor exit as the handcuffed applicants. The agents were shown being greeted with familiarity in the backyard by the special security forces waiting for the applicants. Some of the undercover agents were filmed changing from their civil clothes into police jackets. The applicants were escorted from the courthouse in the presence of a great number of guards carrying machine guns and wearing black, hood-like masks. 3.   The situation in the judiciary, according to the applicants The applicants commented on the current situation in the judiciary in Georgia, which they described as critical. They considered that the following circumstances supported their complaints. In December 2005 three judges of the criminal cassation chamber of the Supreme Court of Georgia announced publicly that they had been pressurised by the Chairman of the Supreme Court and, even more so, by the PGO, as different deputy prosecutors sought to influence their judgments. During press conferences and in their public statements, the judges repeatedly told of interference in person and by telephone, and reported prolonged and continuous psychological terror applied to judges in all districts and at all levels. According to the applicants, the president of the cassation chamber, Judge M.T. had announced in one of his media statements, “The independence of the judiciary in Georgia has declined to zero”. His colleague, Judge N.G., added, “The Supreme Court has become a mere appendage to the prosecutor’s office”. Following those events, Judge M.T. and three other judges of the Supreme Court were disciplined and dismissed from office. As evidence of the groundlessness of the disciplinary proceedings conducted against most of the Supreme Court judges, sitting in criminal, as well as in civil and administrative panels and chambers, the applicants referred to the resolution adopted by the European Judges and Public Prosecutors for Democracy and Fundamental Rights (“Magistrats européens pour la Démocratie et les Libertés – MEDEL”) in Prague on 16 and 17 June 2006 and the statement of the Chairman of MEDEL made on 11 July 2006. The relevant passages from that statement read as follows: “One of the worst exaggerations [of the arbitrary dismissal of judges] has been on trial for several weeks now: four Supreme Court judges [of Georgia] are facing dismissal as a disciplinary sanction. They are being prosecuted for having allowed a woman who had lived for 6 years in a common law marriage the same procedural privileges as the wife of a registered marriage. This sanction for such “misinterpretation” is an obvious pretext for dismissing judges who otherwise cannot be dismissed because they have been elected for 10 years and cannot be blamed for any professional failure... Their [the four Supreme Court judges’] cases however are just the tip of the iceberg, hiding many more arbitrary dismissals of judges who are not allies of the Government majority, both on the Supreme Court level and in lower courts.”   Certain selected passages of the MEDEL resolution read as follows: “A. Whereas the Government of Georgia fired the majority of judges in the country without appeal in order to recruit new judges, close allies to the Government; the Government suggested to those who were upset that they had better retire and accept continued pensions until the end of their term rather than risk disciplinary action under the pretext of any alleged infringement; B. Whereas the Government present the arbitrary dismissal of judges as their fight against corruption in the judiciary, although it is precisely such action which in fact leaves judges scared and obediently compliant with Parliament’s, the Government’s, and prosecutors’ wishes; C. Whereas the European Parliament refers to improper influence being brought to bear on judges by officials belonging to the Council of Justice and the Prosecutor General’s Office... E. Whereas the suspension of four judges of the Supreme Court of Georgia, not for corruption but for their opposition to their dismissal, hints at a real breach of the Constitution, unveiling the failure of judicial reform in Georgia; in fact their suspension was decided pursuant to a disciplinary procedure on the grounds of an alleged misinterpretation of a criminal procedure rule... 2. Insists that justifying disciplinary prosecution for misinterpretation of a procedural rule infringes the principle of appropriate action and the independence and impartiality of judges...” The applicants also submitted an open letter from Human Rights Watch (“HRW”), dated 27 June 2006, containing the following passage: “Constitutional amendments in early 2004 increased the Georgian President’s authority to dismiss and appoint judges. The Government then began an effort to address corruption in the judiciary, but the processes for removing allegedly corrupt judges have lacked transparency and due process. For example, 21 of the 37 Supreme Court judges resigned in 2005, many of them under pressure. Nine judges who had been pressured to resign chose to stay in office, but they soon were the subject of disciplinary proceedings and were suspended from office. Six judges have appealed against the disciplinary proceedings which addressed matters related to the judges’ interpretation of the law rather than issues of ethics or conduct subject to disciplinary evaluation. These steps have had a chilling effect on new and remaining judges, who recognise their positions as tenuous and their decisions subject to the approval of the executive.” B.     Relevant domestic law 1.     The Constitution Article 18 § 2 “Deprivation of liberty or other restriction of personal liberty without a court decision shall be impermissible.... 2.     The Code of Criminal Procedure (“CCP”), as it stood at the material time Article 12 § 7 “Security of the person, respect for human dignity...” “In the course of an investigative or judicial action, it is prohibited to exert upon a person physical or psychological pressure...or to subject a detained person to conditions that encroach upon his or her human dignity.” Article 110 §§ 1 and 3 “The notion of evidence” “1.     Evidence is the lawfully obtained information...on the basis of which the parties defend their rights and legal interests, whilst the prosecutor, investigator and court establish whether the [relevant] circumstances... exist... 3.     The information obtained or submitted by a party shall be incorporated into the criminal case file...Only the evidence admitted to the case file may be relied on...in a court decision.” Article 140 § 17 “Judicial imposition of a measure of pre-trial restraint” “Before the end of the investigation the parties have the right to lodge an application with the court which has imposed a measure of pre-trial restraint ... requesting its annulment or modification ... The parties may exercise this right only when newly discovered circumstances of a substantial character, which were not known to the judge at the time of the imposition of the pre-trial restraint measure, require that the reasonableness of that measure be reviewed.” Article 151 §§ 1, 2, 3 and 4 “Basis and objectives of the imposition of a restraint measure” “1.     A measure of restraint shall be applied to ensure that the accused cannot avoid preliminary investigation and trial, that his or her further criminal activity is prevented, that he or she cannot interfere with the establishment of the truth in a given criminal case and that the court’s sentence is executed. Pre-trial detention or any other measure of restraint may not apply to the accused if a more lenient measure of restraint can ensure the attainment of the goals envisaged in this section. 2.     The application of a measure of restraint may be based on the substantiated assumption that the person will abscond or fail to appear in court, destroy evidence, threaten parties to the proceedings, or commit a new crime. 3.     When presenting its motion for the application of a measure of restraint, the prosecution has to substantiate the need for the measure of restraint requested and the impossibility of using a more lenient measure of restraint; furthermore, while requesting the extension of the previous term of pre-trial detention, the prosecution must prove the necessity of the requested extension period. 4.     The court may apply pre-trial detention as a measure of restraint...only when the goals envisaged in the first paragraph of the present article cannot be attained by using a more lenient measure of restraint.” Article 159 §§ 1 and 2 “Detention” “1.     No one may be arrested without a court order or other judicial decision. 2. Courts, prosecutors and investigators are obliged to immediately release any person who is detained unlawfully.” Under Article 230 §§ 1 and 3, a party to criminal proceedings could file motions for a procedural decision or measure to be taken. Article   230 §   2 required a motion to be introduced before the State official or agency who was immediately responsible at that time for the examination or decision-making on a given criminal case. Under Article 231 § 2 motions could be submitted either orally or in writing. By virtue of Article 242 §§ 1 (a), 2 and 3, the investigator’s or prosecutor’s decision to close criminal proceedings could be judicially challenged by any person concerned. Under Article 242 § 4, the time-limit for lodging the relevant complaint before a first instance court was 15   days from the moment the plaintiff learned about the impugned decision. In the event of non-compliance with that statutory time-limit for a legitimate reason, the court could allow more time. The first-instance court was obliged to review the complaint within 15 days of its registration. Under Article 242 § 5, where the first-instance court annulled a decision to terminate criminal proceedings, it had to remit the case file to the relevant prosecution authorities with the instruction to conduct a further preliminary investigation. Under Article 242 §§ 5 and 6, where the first-instance court dismissed a complaint against the termination of criminal proceedings, that decision could be challenged further before an appellate court within 10 days. Unlike the provision concerning the proceedings at first instance (Article 242 § 5), Article 242 § 6 did not specify exactly when the 10 days allowed for lodging an appeal began to run. Under Article 243 §§ 1 and 10, a first-instance court order authorising pre-trial detention could only be appealed once and the appellate court’s decision was final. Article 290 § 2 provided for the possibility of conducting an urgent investigative measure without a court warrant, providing it was submitted to judicial scrutiny within the following 24 hours. The court then had to assess whether the circumstances of the case justified the urgent imposition of that measure and could either decide to validate it or not. Article 290 § 4 of the CCP clarified under which circumstances an action could legitimately be termed “urgent”. Article 417 §§ 1 and 3 “Committal for trial” “1.     Where there is a sufficient basis for hearing the case, the judge (court), without prejudging the merits of the case, shall commit the accused for trial... 3.     During the admissibility hearing, in addition to deciding whether to commit the accused for trial..., the judge (court) shall decide whether to impose a measure of restraint on the accused.” Article 419 “Time-limits for committal decisions” “The judge (court) shall decide whether to commit the accused for trial within 14   days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).” Article 437 §§ 2 and 3 provided that the presiding judge was the authority in charge of a hearing. He or she was responsible for maintaining order in the courtroom and carried out all kinds of procedural actions envisaged by the Code. In addition, Article 442 stated that, during a hearing, the judge had to abide by all the general legal principles contained in Chapter II of Part I of the Code, of which Article 12, cited above, formed a part. By an amendment of 28 April 2006 to Article 468, the accused party became entitled to request the first-instance court, during the preparatory hearing on the merits, to release him or her from detention in the event of significant new circumstances arising in the case. Article 532 stated that the procedure under Article 468 could be used at the preparatory stage of the appellate proceedings on the merits. Articles 547 and 553 § 2 regulated the procedure for filing appeals and interlocutory appeals before the cassation court. 3.     The Criminal Code Article 181 § 1 “Extortion” “Extortion is claiming another person’s object or property right or property use under threat of using violence against the victim, or the victim’s close relative, destroying or damaging the object, or of making public information which may impair the victim’s reputation, or of spreading such information as may substantially prejudice the victim’s rights...” 4.     The Prison Rules, adopted by Order No. 367 of 28 December 1999 (as it stood at the material time) Under Rule 29 § 3 of the Prison Rules, in the event of a violation of prison regulations, a detainee could be subjected by the prison administration to disciplinary sanctions. Rule 29 § 8 listed, in increasing order of severity, the disciplinary sanctions as follows: (a) a warning; (b) a reprimand; (c) a short-term or long-term ban on visits; (d) confinement from 3 to 20 days in a punishment cell; (e) prohibition to receive parcels. Rule 30 § 1 explicitly prohibited detainees from taking food to a punishment cell from their ordinary cells. Under Addendum No. 1 to the Prison Rules, detainees were forbidden to use telephones in prison. C. Relevant international documents 1. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”) The Report of 30 June 2005 (CPT/Inf (2005) 12) on the visit to Georgia carried out by the CPT from 18 to 28 November 2003 and from 7 to 14 May 2004. “ a.     Prison No. 5, Tbilisi 67.     At the end of the visit in 2001, the CPT’s delegation asked the Georgian authorities to take out of use all cells located in the basement of the main detention block (i.e. quarantine, transit and disciplinary cells). This measure was reportedly taken soon after the 2001 visit. However, as a result of the increasing number of prisoners sent to Prison No. 5, it became necessary to start using the basement cells again. In May 2004, some 170 prisoners were being held in the basement... The cells were dark, badly ventilated, damp and disgustingly filthy. Further, in some cells