CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 6 novembre 2007

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text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s3B3A5DE9 { margin-top:12pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify } .sAB173E38 { margin-top:12pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .s127C7598 { margin-top:0pt; margin-left:17pt; margin-bottom:0pt; text-indent:-17pt; text-align:justify } .sD66C1369 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt; text-align:justify } .sA464CC02 { margin-top:0pt; margin-left:35.3pt; margin-bottom:0pt; text-align:justify } .s81CCF55C { margin-top:0pt; margin-left:17pt; margin-bottom:12pt; text-indent:-17pt; text-align:justify } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .s453B1FB7 { width:53.61pt; display:inline-block } .s5E80425F { width:195.31pt; display:inline-block } .sF2E32F9B { width:36.61pt; display:inline-block } .s5F32E900 { width:208.31pt; display:inline-block } .s39926ECA { margin-top:0pt; margin-bottom:36pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s53E9AB06 { margin-top:36pt; margin-bottom:0pt; text-align:right; page-break-inside:avoid; page-break-after:avoid } .s34DFC730 { margin-top:0pt; margin-bottom:0pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .sF6A12959 { width:33%; height:1px; text-align:left } .s85226119 { margin-top:0pt; margin-bottom:0pt; text-align:justify; font-size:10pt } .s653E6C45 { font-family:Arial; font-size:6.67pt; vertical-align:super; color:#0069d6 }     SECOND SECTION     CASE OF PATSURIA v. GEORGIA     (Application no. 30779/04)     JUDGMENT       STRASBOURG     6 November 2007       FINAL     06/02/2008     This judgment will become final in the circumstances set out in Article   44   §   2 of the Convention. It may be subject to editorial revision. In the case of Patsuria v. Georgia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Mrs   F. Tulkens , President ,   Mr   A.B. Baka ,   Mr   I. Cabral Barreto ,   Mr   M. Ugrekhelidze ,   Mr   V. Zagrebelsky ,   Mrs   A. Mularoni, Mr   D. Popović, judges , and Mrs S. Dollé , Section Registrar , Having deliberated in private on 10 July and 2 October 2007, Delivers the following judgment, which was adopted on that last ‑ mentioned date: PROCEDURE 1.     The case originated in an application (no. 30779/04) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by Mr   Gia   Patsuria, a Georgian national, on 20 July 2004. The applicant was represented by Ms   E.   Beselia (“the first representative”), Ms   M.   Kobakhidze (“the second representative”) and Ms   M.   Gioshvili (“the third representative”), lawyers practising in Tbilisi 2.     The Georgian Government (“the Government”) were represented by their Agent, Mr M. Kekenadze of the Ministry of Justice. 3.     On 3 July 2006 the Court decided to give notice to the Government of the applicant’s complaints under Article 5 §§ 1 and 3 of the Convention concerning the alleged unlawfulness and unreasonableness of his detention on remand. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4.     The Government and the applicant each filed observations on admissibility and merits (Rule 54A of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1961 and is currently detained in Rustavi No. 1 Prison. 1. First set of proceedings 6.     Under a contract of 18 January 2001, the Ministry of State Property Management (“the Ministry”) undertook to transfer to the applicant 90 % of the shares of the “Georgian State Insurance JSC” (“the company”), on condition that he, amongst other obligations, increased the company’s initial capital to 480,000   Georgian laris (EUR 218,000 [1] ) within a month of signing the contract. 7.     On 14 March and 7 May 2001, the Ministry requested an up-date of the progress made in the performance of the contractual obligations. The applicant replied by submitting documents, according to which the amount of USD   250,000 (EUR 207,000), initially placed with a Canadian bank, had been transferred to the company’s account opened with a Georgian bank. 8.     Following the recommendation of the Georgian National Bank (a   State agency), the Prosecutor General’s Office (“the PGO”) examined the applicant’s financial operations. In a decision of 26 January 2004, a senior prosecutor of the PGO, having established the authenticity of the bank records submitted by the applicant, refused, pursuant to Article   28 §   1   (a) of the Code of Criminal Procedure (“the CCP”), to institute criminal proceedings for an alleged falsification of those documents. (The applicant did not submit a copy of that decision to the Court.) 9.     On 28 April 2004 the Prosecutor General personally opened a criminal case regarding the misappropriation of 90 % of the State’s shares by fraud and the falsification of bank documents, offences envisaged respectively by Articles 180 § 3 (b) and 362 of the Criminal Code (“the   CC”). (The parties did not submit a copy of that decision.) 10.     On 5 May 2004 the applicant was charged and taken into custody. 11.     Initially, the applicant was placed in a “quarantine cell” at Tbilisi No. 1 Prison. According to him, the cell was filthy, dilapidated, infested with vermin, and without ventilation or natural light. Shortly afterwards, the applicant was transferred to an ordinary cell in the same prison where there were 24 beds for the 57 inmates held there. The detainees were obliged to take turns to sleep. The cell was unsanitary and the food putrid. 12.     On 8 May 2004 the Krtsanisi-Mtatsminda District Court in Tbilisi dismissed the applicant’s request for release, remanding him in custody for three months. An oral hearing was held. In its reasoning the court stated: “the collected evidence...discloses a reasonable suspicion that the accused has committed the incriminated offences...The evidence has been gathered in conformity with procedural norms...Due regard should be had to the fact that the applicant is charged with serious crimes...The case materials substantiate the suspicion that he might interfere with the establishment of the truth...In view of the prospect of a severe punishment, [he] may abscond...” 13.     In his appeal of 9 May 2004, the applicant complained that the imposition of detention on remand had been justified solely by the gravity of the charges and the severity of the sentence. In his view, the prosecution had not put forward any specific evidence or arguments supporting any actual risk of him colluding or absconding. The applicant claimed to have been actively cooperating with the prosecution authority even prior to his arrest by always appearing, whenever summoned for interviews, and by producing all the requested evidence which, in fact, had become the basis of the criminal case file against him. As another guarantee of his reliability, the applicant referred to his “good reputation”, associated with the fact of being a designated trustee of the Canadian Chamber of Commerce. 14.     The PGO replied that the detention was justified by the gravity of the charges and a reasonable suspicion that the applicant could interfere with the establishment of the truth. However, no concrete arguments or factual circumstances of the particular case were put forward in this regard. 15.     On 13 May 2004 the Tbilisi Regional Court dismissed the applicant’s appeal against the remand measure at an oral hearing. Whilst analysing various pieces of evidence, the court had regard mostly to whether or not the charges were well-founded. Concerning the grounds for detention, the court reiterated that, pursuant to Articles 151 and 159 of the CCP, the gravity of the offence justified the imposition of the measure. The appellate hearing was attended by the applicant and his advocates. 16.     On 6 August 2004 the PGO terminated the preliminary investigation and transferred the case, along with the bill of indictment, to the trial court. 17.     On 6 December 2004 the Vake-Saburtalo District Court in Tbilisi committed the applicant for trial under Article 417 § 1 of the CCP and confirmed the remand in custody. This decision was rendered in a standard, template form with pre-printed reasoning. The judge simply added, in the blank spaces, a brief statement of facts, the name of the accused, the definition of the impugned offence and the measure of pre-trial restraint. As regards the confirmation of the latter, the printed standard phrase read as follows: “The measure of pre-trial restraint – detention – has been correctly chosen.” 18.     On 11 February 2005 the Vake-Saburtalo District Court in Tbilisi started the examination of the case on the merits, and on the 17 th convicted the applicant of attempted fraud. The court sentenced him to three years in prison. The charge of falsification of bank documents was dropped as time ‑ barred. The verdict was based on a thorough assessment of the criminal case materials. 19.     On 13 February 2006 the Tbilisi Regional Court dismissed the applicant’s appeal and upheld the verdict of 17 February 2005 with some merely textual amendments. 20.     On 20 June 2006 the Supreme Court dismissed the applicant’s cassation appeal. It noted that the circumstances of the case had been carefully examined by the preliminary and judicial investigations, that no significant breaches of procedural law had occurred and that the lower courts had correctly assessed the facts and the law. 21.     Amongst the complaints made by the applicant before the appellate and cassation courts, the applicant raised the same matters as those now put before the Court under Article 6 of the Convention (see paragraph   83 below). 22.     After his conviction, the applicant was transferred to Rustavi   No.   1 Prison, where the conditions were, according to him, similar to those in Tbilisi No. 1 Prison. 23.     The applicant alleged that the following incident occurred during his detention: In the early morning of 30 January 2006, he was awoken by the noise of machine gun fire in Rustavi No. 1 Prison. As it appeared later, the police forces had conducted a special operation against criminal elements there. 24.     The applicant complained about the conditions in Rustavi   No.   1 Prison and the incident of 30 January 2006 to several national and international non-governmental organisations, but never to the prosecution or judicial authorities, according to the case file. Whilst claiming to have written a letter to the Head of Rustavi Prison, informing the latter of the poor conditions of his detention, the applicant did not produce any copy thereof, or indicate its date. 25.   On an unspecified date, the administration of Rustavi No. 1 Prison disciplined the applicant for failing to attend a mandatory inspection of prisoners, and he was placed in a punishment cell for three days. However, he has never complained about this to any competent national authority, considering that such a course of action would have been ineffective. 2. Second set of proceedings 26.     On 21 September 2006 the Ministry of Justice, the authority in charge of the penitentiary system, initiated criminal proceedings against the applicant for using a mobile telephone in Rustavi No.   1 Prison, in breach of the prison rules. 27.     At an oral hearing on 22 September 2006 attended by the applicant, the Tbilisi City Court allowed the prosecutor’s motion and imposed upon the applicant detention on remand for two months. The court reasoned that, since the applicant was already detained following his conviction, it was impossible to apply any other measure of pre-trial restraint. 28.     On 27 October 2006 the Tbilisi Regional Court, sitting in camera , dismissed the applicant’s appeal and upheld the order of 22   September 2006. 29.     The applicant addressed several complaints to the PGO, requesting the termination of the allegedly unlawful proceedings. He also claimed that his procedural rights were breached during the investigation. 30.     According to the case file, the second set of criminal proceedings against the applicant is still pending before a court of first instance. II.   RELEVANT DOMESTIC LAW AND PRACTICE 31.     Constitution Article 18 § 6 “...the accused cannot be held on remand for more than nine months.” 32.     Code of Criminal Procedure, as it stood at the material time Article 28 § 1 - “Grounds for the refusal to initiate criminal proceedings and for the decision to terminate the initiated proceedings” “Criminal proceedings shall not be initiated and the initiated proceedings shall be terminated, if: a)     The action, envisaged by the criminal law, does not exist... m)   The inquiry, investigation or prosecution authority has refused to initiate criminal proceedings or decided to terminate the proceeding initiated for the same offence...” Article 140 § 17 “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 146 § 7 “Charges shall be preferred no later than 48 hours after the arrested person is brought before an inquiry agency. If, within the following 24 hours, the court does not decide on the imposition of detention on remand or another measure of restraint, the arrested person shall be released immediately.” Article 151 §§ 1, 2 and 3 - “The basis for and objectives of the imposition of a restraint measure” “A restraint measure shall be applied to ensure that the accused cannot avoid the 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 the given criminal case, or that the court’s verdict is executed. The application of a restraint measure is justified if the evidence in the criminal case file sufficiently substantiates the assumption that it is necessary to ensure the attainment of the aims mentioned in the first paragraph of this Article. The ground for the imposition of detention on remand can be a substantiated suspicion that the accused may abscond, interfere with the establishment of the truth in the criminal case, or if a serious or grave crime has been committed.” Apart from detention on remand, Article 152 § 1 envisages the possibility of using such measures of pre-trial restraint as police supervision, home arrest, bail or a personal undertaking not to leave the place of residence. Article 159 § 3 - “Detention” “Detention on remand shall be imposed only with regard to the person who is charged with an indictable offence carrying [a punishment of ] more than two years in prison...” The Code distinguished between two periods of detention on remand: detention “pending investigation”, that is whilst the competent prosecution agency investigated the case, and detention “pending trial”, whilst the case was tried in court. The person detained “pending investigation” was referred to as an “accused”. After the case was sent to a court, that person would become a “defendant” (Article 44 §§ 24 and 25). Although there was no difference in practice between two periods of detention, the calculation of the time-limits was different. Pursuant to Article 162 §§ 2 and 3, the maximum permitted period of detention “pending investigation” was nine months. It started to run from the moment the person was taken into custody and ended the day when the prosecutor sent the case, along with the bill of indictment, to the trial court (Article 162 §§ 1 and 2). The maximum permitted term of detention “pending trial”, calculated from the day when the prosecutor forwarded the case to the competent court until the final cassation verdict, was 48 months if three instances of jurisdiction were involved, and 30 months if the case was examined by only two instances (Article 162 §§ 8 and 9). 33.     Criminal Code, as it stood at the material time Article 12 § 1 classified crimes, according to the terms of imprisonment which they carried, as minor, serious or grave. Pursuant to Article 12 § 3, a premeditated offence carrying 10 years’ imprisonment as a maximum term, or an offence committed by negligence which carried 5 years’ imprisonment as a minimum term, were considered to be serious crimes. Article 180 § 3 (b) stated that fraud, i.e. the misappropriation of another person’s property by deception, committed with regard to objects of great value, was punishable by a prison sentence of between 5 to 10 years. Article 362 criminalised the fabrication and use of false identity cards, templates of various formal documents, seals, etc. This offence was punishable by a prison sentence of up to 3 years. 34.   The Constitutional Court judgment of 29 January 2003 in the case of   “Beriashvili, Jimsherishvili and the Public Defender   v. Parliament” The complainants challenged various provisions of Article 162 of the CCP, differentiating between the period of detention “pending investigation” and that “pending trial”, for their compatibility with Article   18 §   6 of the Constitution. They alleged that the unnecessary distinction between the two types of detention often resulted in situations where the overall term of detention exceeded the constitutional time-limit of nine months. The Constitutional Court dismissed the complaint, noting that Article   18 §   6 of the Constitution solely defined the maximum permitted term of detention “pending investigation” which, pursuant to Article 162 of the CCP, ended on the day when the prosecutor sent the case to the competent court for trial: “The Constitutional Court observes that Article 18 § 6 of the Constitution determines the term only for the detention of a suspect or accused person pending investigation, excluding the detention period of a defendant pending trial...” THE LAW I.     ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION 35.     As regards the first set of proceedings, the applicant alleged violations of Article 5 of the Convention, the relevant parts of which read as follows: “1.   Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...   (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence... 2.     Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him... 3. Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.   Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” A.     Admissibility 1. As to the complaints under Article 5 § 1 (c) (a) Parties’ submissions 36.     The applicant complained that the overall period of his detention on remand exceeded the constitutional time-limit of nine months. He further claimed that his detention was unlawful, in so far as, pursuant to Article   28 §   1   (m) of the CCP, the Prosecutor General had no right to initiate criminal proceedings after the subordinate prosecutor had refused to do so. 37.     The Government submitted that Article 18 § 6 of the Constitution defined the maximum term of detention “pending investigation”, excluding the period of detention “pending trial”. They referred in this regard to the constitutional judgment of 29 January 2003 (“the constitutional judgment”; paragraph 34 above). 38.     The applicant disagreed with the Government’s interpretation of that judgment. (b) Court’s assessment 39.     The Court recalls that the provisions of Article 5 require detention to be “in accordance with a procedure prescribed by law”. Thus, any decision taken by the domestic courts falling within the sphere of Article 5 must conform to the procedural and substantive requirements laid down by a pre ‑ existing law (see Assanidze v. Georgia [GC], no. 71503/01, §   171, ECHR 2004 ‑ II). Although it is in the first place for the national authorities, notably the courts, to interpret and apply domestic law, under Article   5 §   1 failure to comply with domestic law entails a breach of the Convention, and the Court can, and should, review whether this law has been complied with ( ibid .). 40.     The Court observes that the CCP differentiated, at the material time, between two periods of detention on remand: detention “pending investigation” and detention “pending trial”. The first period began when the person was arrested or detained and ended on the day when the prosecution authorities finalised the investigation and sent the criminal case file, along with the bill of indictment, to the competent court for trial. Such an understanding of the procedural law was explicitly acknowledged by the Constitutional Court which, furthermore, clearly stated that the constitutional time-limit of nine months applied solely to the period of detention “pending investigation” (see paragraph 34 above). The Court reiterates, in this regard, that it is not its task to take the place of the Constitutional Court and interpret the Georgian Constitution or to call into question the Constitutional Court’s findings (see Apostol v. Georgia , no.   40765/02, §   39, ECHR 2006 ‑ ...). 41.   Bearing the above considerations in mind, the Court observes that the applicant was detained on 5 May 2004 and his case, along with the bill of indictment, was sent by the PGO to the competent court on 6 August 2004 (see paragraphs 10 and 16 above). Consequently, his detention “pending investigation”, to which the constitutional time-limit applied, only lasted three months. The complaint about the violation of that time-limit is therefore manifestly ill-founded. 42.     As to the second limb of the applicant’s complaint under Article   5 §   1   (c) that the PGO, pursuant to Article 28 § 1 (m) of the CCP, should not have initiated criminal proceedings against him, the Court recalls that the appropriateness of the institution of a criminal prosecution usually falls outside the scope of the Court’s review (see Artner v. Austria , judgment of 28 August 1992, Series   A no.   242 ‑ A, § 21). The present case is no exception. 43.     In the light of the above, the Court finds that the applicant’s complaints under Article 5 § 1 (c) are manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention. 2. As to the complaint under Article 5 § 2 44.     The applicant complained that he had been informed of the charges against him not upon the initiation of the criminal case but upon his arrest. 45.   The Court considers that this complaint is manifestly ill-founded, in so far as, according to the applicant himself, he was told “promptly” of the reasons for his arrest. The applicant did not complain that the content of the information conveyed was insufficient (cf. Shamayev and Others   v. Georgia and Russia , no.   36378/02, §   413, ECHR 2005 ‑ III). Nor did he raise any similar complaint under Article 6 § 3 (a) of the Convention. The complaint under Article 5 § 2 must therefore be rejected as being manifestly ill ‑ founded, pursuant to Article 35 §§ 3 and 4 of the Convention. 3. As to the complaint under Article 5 § 3 46.   The applicant complained that his detention on remand had not been reasonable within the meaning of Article 5 § 3 of the Convention. 47.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. 4. As to the complaints under Article 5 § 4 (a) Equality of arms 48.     The applicant claimed that he and his lawyer had not had enough time to prepare a reply to the prosecutor’s request for the imposition of detention on remand, as they had only learnt about it at the hearing on 8   May 2004. 49.     The Court reiterates that, under Article 5 § 4 of the Convention, the proceedings bearing on the procedural and substantive conditions which are essential for the “lawfulness”, in Convention terms, of the applicant’s deprivation of liberty must be adversarial and ensure “equality of arms” between the parties (see, among many others, Brogan and Others   v. the United Kingdom , judgment of 29   November 1988, Series A no.   145-B, pp.   34-35, § 65; Nikolova v.   Bulgaria [GC], no. 31195/96, §   58, ECHR   1999-II). 50.     However, the Court notes that it is not always necessary that the procedure under Article 5   § 4 be attended by the same guarantees as those afforded by Article 6 of the Convention (see, among many others, Assenov and Others v. Bulgaria , judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII, p.   3302, § 162; Włoch   v.   Poland, no.   27785/95, §   125, ECHR 2000-XI). 51.     The Court observes that, under Georgian criminal procedural law, detention proceedings were urgent and had to be dealt with speedily. In order to ensure that decisions were taken expeditiously under Article   146 §   7 of the CCP, the prosecutor had to bring the arrested person before a judicial authority within two days of the arrest. In the subsequent 24 hours, the competent court had to decide the issue of pre-trial restraint (see paragraph 32 above). 52.     In view of this requirement of speed, which is one of the core principles of Article 5 § 4 of the Convention, the Court considers that the Krtsanisi-Mtatsminda District Court, examining the issue of the applicant’s detention on remand on 8 May 2004, was not obliged to have ensured the exchange of all the parties’ documents, as this would have rendered it impossible to take a decision within the statutory time-limit of 24 hours (cf.   Galuashvili v. Georgia (dec.), no. 40008/04, 24 October 2006; Yavuz   v. Austria (dec.), no.   32800/96, 18 January 2000). This consideration was, in any case, palliated by the two-tier system of detention review: the applicant and his lawyer had another opportunity, on 13 May 2004, to question on appeal the prosecutor’s motion in the light of all the relevant circumstances of the case. Moreover, since the proceedings of 8 and 13 May 2004 both took place at oral hearings attended by the applicant and his advocates, they had ample opportunity to have knowledge of and comment on the prosecutor’s submissions (see, Galuashvili , decision cited above; Schiesser v.   Switzerland , judgment of 4 December 1979, Series   A no.   34, p.   13, §§   30 ‑ 31). In these circumstances, the Court does not find any appearance of a violation of Article 5 § 4 of the Convention in this respect.   (b) Automatic review 53.     The applicant challenged the compatibility of Article 140 § 17 of the CCP with Article 5 § 4 of the Convention, claiming that this provision did not provide for an automatic review of the lawfulness of detention. 54.     The Court recalls that Article   5   §   4 provides for detained persons to obtain a review by a court of the lawfulness of their detention not only at the time of the initial deprivation of liberty but also whenever new issues of lawfulness are capable of arising, periodically thereafter (see Kolanis   v. the United Kingdom , no.   517/02, §   80, ECHR 2005 ‑ ...). 55.     The Court notes that the CCP, as it stood at the material time, did not require the authorities to conduct on their own motion reviews of the lawfulness of detention on remand at regular intervals. However, pursuant to the disputed Article 140 § 17 of the CCP, the applicant had the right to request, at any time during his detention pending investigation, the review of the impugned measure with reference to any new issue. According to the case file, he did not make use of that right. Moreover, he has not specified why, in his particular case, the authorities should have initiated a review of his detention of their own motion. He did not allege that there had been factors which had not been taken into account by the original detention order of 8 May 2004 or which would have warranted the automatic revision of his detention on remand later (cf.   Galuashvili , decision cited above). 56.     As to the   period of the applicant’s detention pending trial, that is after his case was transferred to the   trial   court on 6 August 2004 and until his conviction at first instance on 17 February 2005, the Court notes that it was not the subject of the applicant’s complaint. (The applicant had only challenged Article 140 § 17 of the CCP which was limited to   the   period of   detention pending investigation.)   57.     In the light of the foregoing, the Court concludes that the applicant’s complaint was more of a challenge to the domestic criminal procedural law in general. However, the Convention system does not envisage complaints in abstracto , but only in relation to the specific application of such laws to the particular circumstances of an applicant’s situation (see Brogan and Others , cited above, §   53).   (c) Conclusion 58.     Having regard to the above considerations, the Court concludes that the applicant’s complaints under Article 5 § 4 of the Convention must also be rejected as being manifestly ill-founded, pursuant to Article   35 §§   3 and   4 of the Convention. B.     Merits of the complaint under Article 5 § 3 1. The parties’ submissions 59.     The Government submitted that, given the complexity of the criminal case against the applicant, the period of his detention on remand could not be said to have been unreasonable, as understood by Article   5 §   3 of the Convention. As to the reasons for his continued detention on remand, the Government relied on those contained in the court decisions of 8   May and 13 May 2004 (see paragraphs 12 and 15 above). 60.     The applicant replied that the domestic courts, when authorising his detention, solely relied on the gravity of the charges and a reasonable suspicion that he had committed a crime. 2. The Court’s assessment 61.     The Court observes that the applicant was taken into custody on 5   May 2004 and convicted at first instance on 17 February 2005. Thus, the period of his detention for the purposes of Article 5 § 1 (c) of the Convention is nine months and twelve days (see, amongst many others, Wemhoff c.   Allemagne , arrêt du 27   juin 1968, série   A n o   7, p. 23, §   9; Davtian v. Georgia (dec.), no. 73241/01, 6 September 2005). 62.     Whilst the length of that detention was not obviously excessive, the Court recalls that its reasonableness cannot be assessed in abstracto . It is essentially on the basis of the reasons given in the relevant decisions of the national judicial authorities and of the arguments made by the applicant in his or her applications for release that the Court is called upon to decide whether or not the detention on remand was justified under Article 5 § 3 of the Convention (see, for example, Michta   v. Poland , no.   13425/02, §§   45 and 46, 4 May 2006; Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV; Kudła v. Poland [GC], no.   30210/96, §   110, ECHR 2000 ‑ XI). Those decisions must contain “relevant” and “sufficient” reasoning and address specific features of the given case in order to justify the deprivation of liberty (see Ječius v. Lithuania , no.   34578/97, §   93, ECHR 2000 ‑ IX). In other words, any period of detention on remand, whatever its length, requires appropriate motivation by the competent national authorities which, moreover, are obliged to display “special diligence” in the conduct of the proceedings (see Jablonski   v. Poland , no.   33492/96, §   80, 21 December 2000). 63.     In the case at hand, the applicant’s detention on remand was ordered, upheld and extended by the court decisions of 8 and 13 May and 6 December 2004 respectively. Consequently, in order to establish whether his detention was reasonable, within the meaning of Article 5 § 3 of the Convention, the Court is called upon to examine the reasons given in those decisions, as well as the applicant’s arguments mentioned in his applications for release (see Jablonski , cited above, §   79). 64.     The Court observes that the court order of 8 May 2004 justified the imposition of detention by noting that (a) the case materials supported a reasonable suspicion that the applicant had committed the crime, (b) the evidence had been gathered in conformity with law, (c) the severity of sentence substantiated the risk of absconding, and (d) the case materials substantiated the risk that the applicant could hinder the investigation. 65.     With regard to the first ground, the Court notes that the persistence of a reasonable suspicion that the person has committed an offence is a condition sine qua non for the lawfulness of the arrest within the meaning of Article 5 § 1 (c) of the Convention, but this may be insufficient for a judicial decision extending detention. A court decision of that kind would need a more solid basis to show not only that there was genuinely “a reasonable suspicion”, but also that there were other serious elements of public interest which, notwithstanding the presumption of innocence, outweighed the right to liberty (see, amongst others, Lavents v. Latvia , no. 58442/00, § 70, 28 November 2002; I.A. v. France , judgment of 23   September 1998, Reports 1998-VII, p.   2979, §   102; Labita , cited above, §   153), given that the primary purpose of the second limb of Article 5 § 3 is to require the provisional release of the accused pending trial (see Gary cki   v. Poland , no.   14348/02, §   39, 6   February 2007; McKay v. the United Kingdom [GC], no.   543/03, §   41, ECHR 2006 ‑ ...). 66.     It is true that the order of 8 May 2004 covered a relatively short period – the first three months of the applicant’s detention. However, the Court reiterates that the right to provisional release pending trial is guaranteed by Article 5 § 3 of the Convention notwithstanding the length of the detention in question. Article 5 § 3 of the Convention cannot be seen as authorising pre-trial detention unconditionally even if it is short (see, amongst others, Belchev v. Bulgaria , no. 39270/98, §   82, 8 April 2004). 67.     The Court recalls that a practice of automatic remands in custody for three months solely on a statutory presumption based on the gravity of the charges because of a hypothetical danger of absconding, re-offending or collusion, is incompatible with Article 5 § 3 of the Convention (see, amongst others, Nikolov v. Bulgaria , no. 38884/97, § 70, 30 January 2003). Consequently, returning to the circumstances of the present case, the fact that the order of 8 May 2004 covered only the initial period of the applicant’s detention did not absolve the national authorities from the obligation to demonstrate convincingly the justification for such a measure. The Court has no doubt that, in the particular circumstances of the case, on 8 May 2004, that is three days after the applicant’s arrest, the presumption should have been in favour of release (see McKay , cited above, § 41). 68.     The Court further considers that the second ground in the order of 8   May 2004 – the lawfulness of the collected evidence – is, as such, irrelevant for establishing the reasonableness of detention. 69.     As to the risk of absconding, the Court notes that it may be a legitimate ground for detention. However, it cannot be gauged solely on the basis of the severity of an eventual sentence and must be assessed with reference to a number of other relevant factors (see Letellier   v. France , judgment of 26 June 1991, Series   A no.   207, § 43). 70.     The detention order of 8 May 2004 noted that the severity of the sentence substantiated per se the risk of absconding. It never assessed the nature of that risk against the arguments put forward by the applicant in support of his request for release – his cooperation with the prosecution, the voluntary submission of documentation and his appearance for interrogation upon request, his reliability and good reputation, etc. Nor was the severity of the sentence examined against any other relevant circumstances of the case which might either confirm the existence of a danger of absconding or make it appear so slight that it could not justify detention on remand (see Khudoyorov v. Russia , no. 6847/02, §   181, ECHR 2005 ‑ ...(extracts)). Consequently, the Court finds that the risk of absconding was not sufficiently substantiated in the present case. 71.   As to the risk of hampering the establishment of the truth, the Court notes that it was just bluntly stated, without any relation to the specific circumstances of the case (see Smirnova   v.   Russia , nos.   46133/99 and 48183/99, §   63, ECHR 2003 ‑ IX (extracts); Nikolov , cited above, §   73). Although that risk may be a relevant element in assessing the reasonableness of the deprivation of liberty, it cannot be established on the basis of abstract statements, unsupported by any arguments. 72.   As regards the appellate decision of 13 May 2004, the Court observes that it upheld the detention measure solely on the ground of the gravity of the charges, and did not trouble to examine the existence of any other possible grounds which might have warranted it. That decision, like the detention order of 8 May 2004, had no regard to the individual circumstances of the applicant’s case. Such an approach was apparently envisaged by Article 151 § 3 in fine of the CCP but, in the Court’s view, it cannot be justified under Article 5 § 3 of the Convention (see Rokhlina   v. Russia , no. 54071/00, § 66, 7 April 2005; Panchenko v. Russia , no.   45100/98, §   102, 8 February 2005). It is also incompatible with the presumption of innocence, which the domestic courts must respect when justifying detention under Article 5 § 3 of the Convention (see, amongst others, Lavents , cited above, § 70), in so far as the detained person might later be acquitted or, as in the present case, convicted of a lesser offence (see paragraphs 9 and 18 above). 73.   Furthermore, comparing the applicant’s arguments with those of the PGO before the Tbilisi Regional Court on 13 May 2004, the Court observes that it was the former who was trying to prove, against the unsubstantiated assumptions of the latter, that there was not even a hypothetical reason for absconding or collusion. The Court reiterates, in this regard, that shifting the burden of proof to the detained person in matters of deprivation of liberty is tantamount to overturning the rule of Article 5 of the Convention (see Ilijkov v. Bulgaria , no.   33977/96, §§ 84 and 85, 26 July 2001). 74.     The Court is particularly concerned by the manner in which the Vake-Saburtalo District Court, when committing the applicant for trial, reviewed and extended his detention on remand on 6 December 2004. Instead of showing an even higher degree of “special diligence” in the face of the detention which had already lasted more than seven months (see G.K.   v. Poland , no.   38816/97, §   84,