CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 13 janvier 2009

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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 GIORGI NIKOLAISHVILI v. GEORGIA   (Application no. 37048/04)                   JUDGMENT       STRASBOURG   13 January 2009     FINAL   13/04/2009   This judgment may be subject to editorial revision. In the case of Giorgi Nikolaishvili v. Georgia, The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Françoise Tulkens, President,   Ireneu Cabral Barreto,   Vladimiro Zagrebelsky,   Danutė Jočienė,   Dragoljub Popović,   András Sajó,   Nona Tsotsoria, judges, and Sally Dollé, Section Registrar , Having deliberated in private on 9 December 2008, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no.   37048/04) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr   Giorgi   Nikolaishvili (“the applicant”), on 24   September 2004. 2.     The applicant was represented by Ms   Maka Gioshvili. The Georgian Government (“the Government”) were represented by their Agent, Mr   Besarion Bokhashvili, of the Ministry of Justice. 3.     On 12 September 2006 the Court decided to give notice to the Government of the applicant’s complaints under Article 5 §§ 1, 3 and 4 and Article   8 of the Convention. On the same date, the Court decided to apply Article   29 §   3 of the Convention and to examine the merits of the complaints at the same time as their admissibility. 4.     The Government and the applicant each filed observations, on 15   January and 12 April 2007 respectively, on the admissibility and merits of the application (Rule 54A of the Rules of Court). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1981 and lives in Tbilisi. A. Posting of the applicant’s photographs 6.     On 20 June 2003 criminal proceedings for murder were initiated (“the murder case”). On 3 July 2003 charges of murder and the unlawful acquisition, storage and transportation of firearms were brought against the applicant’s brother and another person. The accused persons, having fled, were formally declared wanted on 4 July 2003. 7.     On an unspecified date in July 2003, photographs of four persons – the applicant, his brother, the other person accused of murder and the latter’s brother – were posted on the boards of “wanted persons” in the police stations of the Vake-Saburtalo District in Tbilisi, the Ambrolauri district (western Georgia) and on the Armenian-Georgian border. Identified by their names, they were said to be wanted by the police in connection with a murder. 8.     In reply to queries from the applicant’s lawyers, the Vake ‑ Saburtalo District Court in Tbilisi stated on 4 November 2003 that, between May and November 2003, no criminal procedural measures of a coercive nature against the applicant had been registered in the relevant log. Further, by a notification of 28 November 2003, the Vake-Saburtalo police station confirmed to the lawyers that solely the applicant’s brother, who was charged with the murder and firearms offences, had been declared wanted and that no similar measure had been taken with respect to the applicant. 9.     On 15 December 2003 the applicant’s lawyers requested the Ministry of the Interior (“the MI”) to remove the applicant’s photograph from the police stations and to punish those who had unlawfully posted it. In a reply of 30 December 2003, the MI reiterated that only the applicant’s brother had been wanted for the murder and firearms offences. As to the applicant, in view of his constant refusals to appear before the Vake-Saburtalo district prosecutor’s office, the latter agency had taken “the relevant operational measures aimed at having him interviewed, in the capacity of a witness”. No reply was given to the request for the photograph’s removal. 10.     On 28 January 2004 the applicant’s lawyers requested the Vake ‑ Saburtalo District Court to initiate criminal proceedings for libel on the basis of the unlawful posting of the applicant’s photograph in the police stations (“the libel complaint”). Under Article 27 of the Code of Criminal Procedure (“the CCP”) as in force at the material time, the offence of libel was a matter for private prosecution and, pursuant to Article 627 § 1 of the CCP, only a competent court was empowered to initiate criminal proceedings on the basis of a complaint by the victim. 11.     As disclosed by the case file, the Vake-Saburtalo District Court decided to summon the applicant to a hearing, reasoning that it was necessary to hear oral submissions from him. The summons could not be served on the applicant at his home address, as his parents stated that his whereabouts had been unknown for the past eight months. 12.     In a decision of 4 February 2004, the Vake-Saburtalo District Court dismissed the libel complaint. The court pointed out that a private prosecution could be requested either personally by the victim or by his representative in law (Article 627 § 1 of the CCP). That being so, the court, whilst accepting the power of the applicant’s lawyers to represent him, pointed out that the libel complaint had been signed not by the applicant or his representative in law but by the director of the human rights advocacy centre of which the lawyers were members. The lawyers replied that their client had been feeling insecure as to his liberty, hence his non-appearance before the court. They reiterated the content of the complaint orally, requesting the identification and punishment of those officials who had unlawfully posted the applicant’s photograph and implicated him in the murder. The District Court concluded that the circumstances of the case disclosed no elements of libel. However, it decided to forward the request and the case file to the competent prosecutor’s office so that the latter agency could examine whether any offence had been committed by public officials in the performance of their duties. 13.     An appeal lay against the decision of 4 February 2004, but had to be lodged within the following fourteen days. However, as disclosed by the case file, the applicant’s lawyers did not appeal. 14.     On 9 February 2004 an article disclosing the story of the posted photograph was published in a national newspaper. Shortly afterwards, the applicant’s photograph was removed from the police stations. 15.     In a letter of 7 April 2004, the Vake-Saburtalo district prosecutor’s office informed the applicant’s lawyers that the court decision of 4 February 2004 had never ordered it to initiate criminal proceedings either for libel or for any offence committed by persons holding public office, but had simply forwarded the case file with the instruction “to react”. Accordingly, the prosecutor’s office had decided, on 27 February 2004, to forward the case to the MI for an internal investigation. The letter of 7 April 2004 did not enclose a copy of the decision of 27 February 2004 and did not advise the applicant of the appeal procedure, if appropriate. As disclosed by the case file, the MI never informed the applicant of any decision taken in respect of the subsequent developments in his case (see paragraph 105 below). 16.     In late April 2004 the applicant lodged with the General Prosecutor’s Office (“the GPO”) another application to initiate criminal proceedings in respect of the unlawful posting of his photographs (“the second criminal complaint”). The GPO transmitted this request to the Tbilisi city prosecutor’s office with the instruction to take “a decision in accordance with the law”. The latter agency forwarded this instruction to the Vake ‑ Saburtalo district prosecutor’s office.     According to the applicant, on 24   May 2004 he requested a report from the prosecution authority on the progress of the proceedings in respect of his second criminal complaint but no reply was forthcoming. According to the Government, however, the Vake ‑ Saburtalo district prosecutor’s office examined that complaint and took a decision on an unspecified date. Neither the content nor the date of that decision was specified by the Government in their observations. B. Criminal proceedings against the applicant 17.     According to the applicant, in the course of the investigation into the murder case, the authorities constantly threatened his parents that they would “catch” [1] him, unless his fugitive brother surrendered to the authorities. 18.     On 30 March 2004 the applicant responded to the authorities’ repeated calls to testify as a witness in the murder case by voluntarily appearing before the Vake ‑ Saburtalo district prosecutor’s office. Upon arrival and without being examined in the capacity of a witness, he was arrested on suspicion of unlawfully acquiring, storing and/or transporting firearms and ammunition, which offence formed part of the murder case. The suspicion was formally based on several pieces of evidence – statements by three witnesses, the results of a search and the forensic examination of the seized firearms – all of which had been obtained in June and July 2003, in the course of the investigation into the murder case. 19.     Later the same day, the Vake-Saburtalo district prosecutor’s office disjoined the firearms aspect from the murder case and registered it as a separate set of proceedings (“the firearms case”). Subsequently, the applicant was confronted, in the presence of his lawyer, with one of the witnesses whose statements had been obtained in June and July 2003   (see the preceding paragraph). During that confrontation, the witness altered his previous testimony in favour of the applicant, by concluding that only the applicant’s brother had been involved in the firearms offence. The investigator concluded that the applicant and his lawyer had subjected the witness to undue “moral pressure” during the confrontation. 20.     On 31 March 2004 the investigator re ‑ examined the above ‑ mentioned witness, this time in the absence of the applicant and his lawyer. The witness retracted the altered testimony he had given the previous day and confirmed the truthfulness of the statements he had made in June and July 2003. 21.     On 1 April 2004 the charge of storing and transporting firearms and ammunition was preferred against the applicant. This charge was based on the above-mentioned evidence obtained in the course of the investigation into the murder case (see paragraph 18 above). The applicant pleaded “not guilty”. On the same day the prosecutor requested that the applicant be remanded in custody for three months. 22.     As disclosed by the case file, the prosecutor’s main argument during the remand hearing was that the applicant’s release could jeopardise the pending investigation of the murder case, particularly when one of the accused in that case, his brother, was missing. The applicant replied that it was unlawful to justify his pre-trial detention in the interests of the murder case, as he had been detained solely on suspicion of having committed the firearms offence. He challenged the reasonableness of the latter suspicion as well. In favour of his release, the applicant submitted that he had not committed a single act capable of impeding the investigation for the last ten months and that he had voluntarily appeared before the prosecutor’s office for an interview. He also referred to the fact that his father was seriously ill and required his care. 23.     On 2 April 2004 the Vake-Saburtalo District Court ordered the applicant’s remand in custody for three months, with effect from 30   March 2004.     The detention order was a standard form, the reasoning of which had mostly been pre-printed. The judge added by hand the reference to the relevant evidence, the names of the parties’ representatives to the proceedings and the classification of the impugned offence: “Having examined [in accordance with the requirements of procedural law] the well-foundedness of the detention request, and having heard the parties’ pleadings, I have come to the conclusion that the evidence collected – [reference to the evidence obtained in June and July 2003 – see paragraph 18 above] – gives rise to a reasonable suspicion that   Giorgi   Nikolaishvili has committed the impugned offence. The evidence has been obtained in conformity with the rules of criminal procedure.   Procedural law was also observed in the course of Giorgi Nikolaishvili’s arrest and in the bringing of charges against him. I consider that the detention request by [reference to the prosecutor’s name] is substantiated and that there exist legal grounds for granting it. Thus, in so far as the accused,   G.   Nikolaishvili , is charged with a less serious crime , the danger that, if released, he might hamper the establishment of the truth or abscond from the investigation and trial is substantiated...” The judge then dismissed, in a handwritten note, the applicant’s allegations of procedural violations as irrelevant to the classification of the impugned offence. 24.     In a final decision of 8 April 2004 the Tbilisi Regional Court upheld the detention order of 2 April 2004, reasoning as follows: “... [The applicant] has been charged with an offence classified as less serious, which carries a maximum term of five years’ imprisonment. The impugned offence of the unlawful acquisition, storage and/or transportation of firearms might be related to the murder case, the investigation of which is still pending. In such conditions, the discontinuation of detention on remand or its substitution with a non-custodial measure of restraint might possibly hamper the establishment of the truth in that case; if released, the accused might influence witnesses, continue his criminal activities or abscond. Such conclusions can be derived from the insincerity of the accused. The case discloses both formal (procedural) and factual grounds for the imposition of pre-trial detention...” 25.     On several occasions in April and May 2004, the applicant requested to be confronted again with the above-mentioned witness for the prosecution (paragraphs 19 and 20 above). His requests were dismissed as unsubstantiated, the authorities reasoning that the previous confrontation had been conducted in conformity with the procedural rules, whilst another one would most likely lead to the same result – the exertion of moral pressure on the witness in question. 26.     On 30 June 2004 the three month pre-trial detention period expired, without a court ordering its extension. On 7 July 2004, having terminated the investigation, the prosecutor sent the criminal case for trial, forwarding the bill of indictment. 27.     On 24 January 2005 the judge of the Vake-Saburtalo District Court, dispensing with an oral hearing, decided, in camera , to commit the applicant for trial under Article 417 § 1 of the CCP. This decision, like the detention order of 2 April 2004, was set out in a standard form with pre ‑ printed reasoning. The judge added, in the blank spaces provided, a brief statement of facts, the name of the accused and the definition of the impugned offence. 28.     As to the reasoning, the decision of 24 January 2005 confirmed the applicant’s pre-trial detention in a pre-printed phrase. The judge added by hand the definition of the measure of restraint: “The measure of pre-trial restraint – detention – has been correctly chosen.” 29.     The case file does not refer to any further developments in the criminal proceedings. II.     RELEVANT DOMESTIC LAW AND COUNCIL OF EUROPE DOCUMENTS A.     The Code of Criminal Procedure (“the CCP”), as in force at the material time 30.     Article 23 of the CCP provided at the material time as follows: “A criminal prosecution may be carried out in the form of a public, subsidiary, private/public or private prosecution.” 31.     Pursuant to Article 27, libel, amongst various other crimes, was a matter for private prosecution and criminal proceedings could be initiated by a judge only on the basis of a complaint by the victim (see also Article 627 §   1 of the CCP and Article 148 of the Criminal Code, cited below). 32.     In Article 44 § 22 the term “representative in law” was defined as “next of kin, curator or guardian”. 33.     Articles 93 to 94, defining the status, rights and responsibilities of a witness, did not envisage that a witness could be declared a “wanted” person by the prosecution. Article 95 § 1 (g) stated that a witness could not be obliged to testify against a close relative. 34.     Pursuant to Article 94 § 2, Article 174 § 1 and Article   175, the precondition for obliging a person to appear before the prosecution to testify in a criminal case was the issue of a relevant court order. Such an order was to be forwarded to the police for enforcement, in accordance with Article   176 §   1. However, if enforcement was impossible owing to, inter alia , the inability to locate the witness, the role of the police officer responsible for enforcement was limited to recording that fact on the order and returning it to the court as “unenforced”. 35.     Article 151 provided as follows:   “1. A measure of restraint shall be applied to ensure that the accused cannot avoid the investigation and trial, that his further criminal activity is prevented, that he cannot interfere with the establishment of the truth in a given criminal case, or that the court’s verdict is implemented. 2. The application of a measure of restraint shall be justified if the evidence collected in the case file sufficiently substantiates the assumption that it is necessary to secure the aims mentioned in the first paragraph of this Article. 3. The ground for the imposition of pre-trial detention may be a reasonable suspicion that the accused might abscond or interfere with the establishment of the truth in a given criminal case, or if a serious or grave crime has been committed.” 36.     Article 159 § 3 on detention read:   “Detention on remand shall be imposed only with regard to a person who is charged with an offence which carries more than two years’ imprisonment ...” 37.     An appeal lay under Article 234 against such measures: “Any decision or action of an inquiry officer/inquiry agency, investigator/investigative agency, prosecutor/prosecutor’s office or judge/court may be appealed by the parties to the criminal proceedings or by any other third parties.” 38.     Under Article 236 § 1, that appeal against any action or decision by the inquiry officer, investigator or prosecutor could be lodged throughout the entire period of the preliminary inquiry or investigation (that is, before the criminal case had been sent to the competent court for trial). 39.     Article 410 § 2 regarding the bill of indictment required it to be accompanied by all relevant documentation about the detention. When endorsing the bill of indictment, the prosecutor had to consider, amongst other issues, whether any restraint measure which had been imposed was correct (Article 412). The case materials had to be referred to the competent court, along with the bill of indictment, within 48 hours following the prosecutor’s endorsement (Article 416 § 3). 40.     Under Article 417 §§ 1, 2 and 3, if the court considered that the case had a sufficient basis, the accused was to be committed for trial after holding an admissibility hearing in certain circumstances. At such a hearing, the court was to consider whether a measure of pre-trial restraint should be imposed on the accused. 41.     Following an amendment on 16   December 2005, Article   417   §   2 made it mandatory to hold an admissibility hearing when deciding to commit the accused for trial in relation to all types of criminal case. Article 419 laid down the following time-limits on committals: “The judge (court) shall decide whether to commit the accused for trial within fourteen   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).”   42.     Article 627 § 1 enabled a judge to initiate criminal proceedings following a complaint lodged either by the victim or that person’s representative in law. Moreover, under Articles 393 and 606(1), only a person against whom charges had been brought or who had been convicted could be declared “wanted” in connection with a crime by means of a formal decision by the investigative, prosecution or judicial authorities. No provision of the Code provided for such a measure in respect of a witness. B.     The Criminal Code 43.     Article 148 of the Criminal Code provided at the material time for the punishable offence of libel. It was removed from the Criminal Code on 24 June 2004. C.     The Operational Investigative Measures Act of 30 April 1999 44.     The Operational Investigative Measures Act provided at the material time, in so far as relevant: Section 6(2) “A person who considers that, as a result of an operational investigative measure, his or her rights and freedoms have unlawfully been restricted may appeal against such a measure to a hierarchically superior agency, prosecutor or court.” Section 8(1)(c) “The basis for an operational investigative measure may be ... (c) a formal decision declaring that a person who absconds from the investigation and trial or evades the sentence is wanted.” D.     Preparatory work on Article 5 of the Convention (CDH (67) 10, 20   July 1967, Strasbourg) 45.     In the course of the Plenary Sitting of the First Session of the Consultative Assembly of the Council of Europe (“the CACE”), held on 19   August 1949, the representatives discussed the rights and freedoms which might be guaranteed by the Convention:   “...We have all been compelled to bear unbelievable encroachments on our rights [such as] the loss of security of person; arbitrary arrest... All have an equal right to life, liberty and personal safety... It is a pitiable commentary on our boasted progress that in our generation it should be necessary to declare that everyone has the right of life, liberty and security of his person ... These things were taken for granted ... in the days before the sophists told us that man could make himself happy by making the State into a god, to be fed with blood, toil, tears and sweat ... We are now concerned to safeguard and preserve our very selves, and all that we are and have, against the insatiable appetite of the totalitarians...” 46.     During the CACE Plenary Sitting of 7 September 1949, a report of the Committee on Legal and Administrative Questions was presented. The relevant excerpts from that report read as follows: “The Committee has drawn up the list of rights and freedoms which are to be covered by the collective guarantee... Here are the rights and freedoms included in this list: security of person ... freedom from arbitrary arrest, detention, exile and other measures...” THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 47.     The applicant complained under Article 5 § 1 of the Convention about the circumstances surrounding his arrest at the Vake-Saburtalo district prosecutor’s office on 30 March 2004. He claimed that the period of his pre-trial detention between 30 June 2004 and 24   January 2005 had had no lawful basis. The provision relied on reads, in its relevant part, 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 or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so...” 48.     The Government did not submit any comments with regard to the applicant’s complaint about the circumstances surrounding his arrest.     As to the allegedly unlawful period of detention, the Government stated that this period had complied with the provisions of the CCP. On 7 July 2004, after the investigation had been concluded, the prosecutor had sent the bill of indictment and case file to the competent court, in accordance with Article 416 of the CCP. Afterwards, the court had committed the applicant for trial in conformity with Article 419 of the CCP. 49.     In reply, the applicant reiterated that his arrest on 30 March 2004 had been arbitrary, as understood by the Court’s case-law under Article   5   §   1 of the Convention. His right to security of person had been undermined by the fact of having been called as a witness without any intimation of a possible criminal charge being brought against him. He complained that the authorities had hidden from him their intention to arrest him, and that this fact constituted an abuse of power on their part. As a result of the authorities’ misleading behaviour, it had not been possible for the applicant, prior to his unexpected arrest, to take procedural actions aimed at dissipating any suspicions against him. As another sign of arbitrariness, the applicant referred to the fact that the criminal case against him, being based on the evidence obtained as far back as July 2003, had nevertheless been opened only upon his arrest on 30   March 2004   (see paragraph   18 above). 50.     Lastly, referring to the similar case of Baranowski v.   Poland (no.   28358/95, §§ 56-58, ECHR 2000 ‑ III), the applicant reiterated that his detention between 30 January 2004 and 24 January 2005, not having been covered by any court order, had been unlawful within the meaning of Article 5 § 1 (c) of the Convention. A.     Admissibility 51.     The Court notes that the complaints under Article   5   §   1 of the Convention are not manifestly ill-founded within the meaning of Article   35   §   3 of the Convention. Nor are they inadmissible on any other grounds. They must therefore be declared admissible. B.     Merits 1.     Circumstances surrounding the applicant’s arrest on 30   March 2004 52.     The Court reiterates that the expression “liberty and security of person” in Article   5 § 1 must be read as a single right and that, consequently, “security” should be understood in the context of “liberty”. The protection of “security” is concerned with guaranteeing an individual’s personal liberty against arbitrary interference by a public authority   (see Kemal Güven v. Turkey (dec.), no. 31847/96, 30 May 2000). The “security” clause reminds the national authorities of the requisite obligation to follow the rule-of-law safeguards and other rudimentary forms of legal protection when the deprivation of a person’s liberty is at stake (see Kurt v. Turkey , judgment of 25 May 1998, Reports of Judgments and Decisions 1998 ‑ III, §§   122-123). 53.     The Court is of the opinion that the “right to security of person” was understood by the authors of the Convention to imply more than just an obligation to give legal protection to a person’s physical liberty (see paragraphs 45-46 above). The subsequent interpretation of Article   5 §   1 of the Convention has shown, “what is at stake [under the above provision] is both the physical liberty of individuals as well as their personal security” (see Kurt , cited above, § 123). Relying on the notion of “security”, the Court has found that national authorities who are competent to deprive a person of his or her liberty are normally expected to act in good faith in their dealings with the latter (see Čonka v. Belgium , no.   51564/99, §§   41 and 42, ECHR 2002 ‑ I; Bozano v. France , judgment of 18 December 1986, Series   A no.   111, § 55). Thus, the intention to deprive or otherwise affect an individual’s physical liberty should not, in the normal course of events, be consciously hidden by the authorities (see also paragraph 58 below). The individual should be able to resort, if need be, to the available and legitimate remedies aimed at opposing the authorities’ actions and preserving his or her liberty (see, mutatis mutandis , Bozano , cited above, §§   59-60; Shamayev and Others v. Georgia and Russia , no.   36378/02, §   380, ECHR 2005 ‑ III). When a person’s liberty is at stake, it is particularly important that the general principle of legal certainty is satisfied. It is essential that the statutory criminal law, as well as the authorities’ formal decisions and actions, are accessible and unequivocal to such an extent that the person – if need be, with appropriate advice – is able to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Gusinskiy v. Russia , no. 70276/01, §§ 62 and 68, ECHR 2004 ‑ IV; Ladent v. Poland , no. 11036/03, §§ 53 and 56, ECHR 2008 ‑ ...; Kawka v.   Poland , no.   25874/94, §   49, 9 January 2001; Lukanov v. Bulgaria , judgment of 20 March 1997, Reports 1997 ‑ II, §   44). The Court has assumed that an arrest under circumstances which undermine the principles of legal certainty could, in principle, entail a breach of the right to security of person (see, mutatis mutandis, Öcalan v. Turkey [GC], no.   46221/99, §   85, ECHR 2005 ‑ IV). 54.     Turning to the circumstances of the present case, the Court considers that, when assessing the compatibility of the applicant’s deprivation of liberty with the requirements of Article 5 § 1 of the Convention, apart from examining the relevant detention decisions, the circumstances surrounding his arrest on 30 March 2004 should be taken into account. 55.     The Court notes that, according to the record, the authorities never intimated that there was any possibility of opening criminal proceedings against the applicant prior to his voluntary appearance, on 30 March 2004, before the Vake-Saburtalo district prosecutor’s office. The applicant had come forward to be interviewed as a witness in the unrelated murder case in which his brother was implicated. In this connection the Court observes that any possible compulsion imposed on the applicant to testify against his brother was clearly incompatible with Article   95 § 1 (g) of the CCP, which unequivocally excused the former from such a burden (paragraph 33 above). In principle, it cannot be ruled out that the suspicion that the applicant had committed the firearms offence – the latter being the only formal basis for his detention – could have emerged as a result of the statements made by him during that interview. However, having due regard to the relevant decisions of the domestic authorities, the Court notes that this suspicion, the subsequent charge and the reasons given for the detention were based on evidence which had already been obtained in the course of the investigation into the murder case in June and July 2003 (see paragraphs 18, 21 and 23 above). The Court also notes that the Government have not provided any explanation for this lack of transparency, firstly, as to why the authorities did not initiate the firearms case against the applicant as soon as they learnt of the incriminating facts and, secondly, as to why there was such urgency to arrest him on the very day of his voluntary appearance before the prosecution authority as a witness (see Stepuleac v. Moldova , no.   8207/06, §   76, 6   November 2007). 56.     The Court observes in this connection that, recently, a violation of the right to liberty and security was found on the basis of an arrest in circumstances where the arrested person had not been duly notified of the criminal proceedings pending against him and where the deprivation of his liberty under Article 5 § 1 (c) of the Convention fell short of the necessity test, which facts were considered to disclose arbitrariness on the part of the national authorities (see Ladent , cited above, §§ 45 and 55-57). The circumstances surrounding the applicant’s arrest in the present case are all the more troubling. Thus, whilst maintaining that his cooperation as a witness was necessary for the investigation into the unrelated murder case (see paragraphs 8, 9 and 18 above), the authorities were apparently misleading the applicant about their real interest in him. The Court considers that such opaque methods may not only undermine legal certainty and, consequently, as the present case suggests, instil a feeling of personal insecurity in individuals summoned as witnesses, but they may also generally risk undermining public respect for and confidence in the prosecution authorities. 57.     As to the motives behind the applicant’s arrest, the Court takes note of the applicant’s allegation, undisputed by the respondent Government, that the authorities had constantly threatened his parents that they would “catch” him unless his fugitive brother, accused of murder, appeared before the prosecution (see paragraph 17 above). This allegation, in the Court’s view, gains credibility when assessed in the light of the reasons given by the national authorities when ordering the applicant’s pre-trial detention. Thus, neither the prosecution nor the judicial authorities denied the fact that, by detaining the applicant, their aim was to ensure the proper investigation of his brother’s criminal case (see paragraphs 22 and 24 above). In such circumstances, the Court finds that the applicant’s arrest, even if formally consistent with the domestic law, was nevertheless contrary to Article 5 § 1 of the Convention, as it served to acquire additional leverage over the unrelated criminal proceedings, an aim extraneous to sub-paragraph (c) of the above provision (see, mutatis mutandis , Gusinskiy , cited above, §§   74 ‑ 77). 58.     The Court does not preclude the legitimacy of the national authorities using certain stratagems in order to counter criminal activities more effectively (see Čonka , cited above, § 41). However, not every ruse can be justified, especially when it is implemented in such a way that the principles of legal certainty are tarnished. In the particular circumstances of the present case, the Court considers that the authorities’ misleading methods – the prospect of detention being used to exert moral pressure – reveal that the deprivation of his liberty fell short of the main purpose of Article 5 § 1 of the Convention, that is, to protect the individual from arbitrariness (see Benham v. the United Kingdom , judgment of 10 June 1996, Reports 1996 ‑ III, pp.   752-53, §   43). The protection against arbitrariness necessarily entailed, in the Court’s view, the obligation to safeguard the applicant from undue threats to his liberty. 59.     In the light of the above considerations, the Court concludes that there has been a violation of Article 5 § 1 of the Convention. 2.     Period of detention between 30 June 2004 and 24 January 2005 60.     The Court observes that, after the detention order of 2   April 2004 had expired on 30 June 2004, the applicant’s pre-trial detention was not covered by any court order. That situation lasted until 24   January 2005, when the domestic court, as well as committing the applicant for trial under Article   417   §   3 of the CCP, authorised his continued detention pending trial. 61.     According to the Government, the legal basis for the applicant’s detention between 30 June 2004 and 24 January 2005 lay in Articles   416 and   419 of the CCP (paragraphs 39 and 41 above) after the prosecution had forwarded the bill of indictment and case file to the trial court. However, it is not disputed that the bill of indictment was filed with that court on 7 July 2004 (see paragraph 26 above). Consequently, the question as to why the period of detention between 30 June and 7 July 2004 was not the subject of a court order still remains unexplained. 62.     As to the period between 7 July 2004 and 24 January 2005, the Court notes that a violation of Article 5 § 1 has been found in a number of cases concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment had been filed with a trial court. Detaining defendants without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period of time without judicial authorisation – is incompatible with the principles of legal certainty and the protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, amongst others, Gigolashvili v. Georgia , no. 18145/05, §§   32-36, 8   July 2008; Jėčius v. Lithuania , no. 34578/97, §§   60-64, ECHR 2000 ‑ IX; Grauslys v. Lithuania , no.   36743/97, §§ 39-41, 10   October 2000; Baranowski , cited above, §§   53-58, ECHR 2000 ‑ III; Khudoyorov v. Russia , no.   6847/02, §§ 146-147, ECHR 2005 ‑ X). 63.     The Court notes that the present application is no different from the Gigolashvili case cited above, owing to the similar deficiencies in Georgian criminal procedural law and practice at the material time. 64.     Notably, under Article 417 §§ 1 and 3 of the CCP (paragraph   40 above), once the prosecution had terminated the investigation and transmitted the criminal case file to the court with jurisdiction, the latter could hold an admissibility hearing and decide whether to commit the accused for trial and whether it was necessary to impose a measure of restraint on that individual. 65.     However, a problem arose with the timing of such a hearing. Pursuant to Article 419 of the CCP (paragraph 41 above), an admissibility hearing was to be held within fourteen   days or, for “complicated cases”, within a month of the delivery of a final judgment on the last, unrelated criminal case brought before the same judge, but the latter had no time constraints in deciding that “last” case. The CCP neither required that, in the meantime, a judicial order authorising the defendant’s detention should be issued, nor did it specify any statutory periods for this phase of detention. Such statutory lacunae resulted in the practice of detaining defendants without any judicial decision for months, as happened in the present case (see also Absandze v. Georgia (dec.), no. 57861/00, 20   July 2004; Ramishvili and Kokhreidze v. Georgia (dec.), no. 1704/06, 26   June 2007). 66 .     It follows that, between 30 June 2004 and 24 January 2005, for six months and twenty-five days, there was no judicial decision authorising the applicant’s detention. The Government failed to explain what the legal basis was for the first seven days of that period. Moreover, the fact that the criminal case file was sent, together with the bill of indictment, to the trial court did not render the remaining period of detention “lawful” within the meaning of Article 5 § 1 of the Convention (see Gigolashvili , cited above, §   36; Nakhmanovich v. Russia , no.   55669/00, §   68, 2 March 2006; Khudoyorov , cited above, §§ 149 and 151). 67.     There has thus been a violation of Article 5 § 1 (c) of the Convention in respect of that period of detention. II.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 68.     The applicant complained that the court decisions of 2 and 8   April 2004 and 24 January 2005 authorising his detention on remand were not properly reasoned. He relied on Article 5 § 3 of the Convention which reads, in its relevant part, as follows: “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.” 69.     The Government, in their observations on the admissibility and merits of the case, did not submit any comments on this point. 70.     The applicant, however, further complained of the domestic courts’ failure to consider the arguments in his applications for release and to provide any concrete reasons as to why there had existed a “danger of absconding or hampering the establishment of the truth”. He also complained about the courts’ reliance on the pending investigation into the unrelated murder case as a ground for his detention on remand. The applicant further called into question the court decision of 24   January 2005 which had routinely upheld his continued detention without any significant scrutiny of the circumstances of the case. A.     Admissibility 71.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. Nor is it not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 72.     The Court notes that the applicant’s detention on remand was authorised by the court decisions of 2 and 8 April 2004 and 24   January 2005. Consequently, in order to establish whether his detention was reasonable, within the me