CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 27 mai 2010

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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 SAGHINADZE AND OTHERS v. GEORGIA   (Application no. 18768/05)               JUDGMENT (merits)     STRASBOURG   27 May 2010   FINAL   27/08/2010   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Saghinadze and Others v. Georgia , The European Court of Human Rights (Second Section), sitting as a Chamber composed of:   Françoise Tulkens, President,   Ireneu Cabral Barreto,   Danutė Jočienė,   Dragoljub Popović,   András Sajó,   Nona Tsotsoria,   Kristina Pardalos, judges, and Sally Dollé, Section Registrar , Having deliberated in private on 29 April 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 18768/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by six Georgian nationals, Mr Batalbi Saghinadze (“the first applicant”), Mrs   Lia Saghinadze (“the second applicant”), Mr Vasil Saghinadze (“the third applicant”), Mrs Nana Bliadze (“the fourth applicant”), Mrs   Ketevan Saghinadze (“the fifth applicant”) and Mrs Nino Saghinadze (“the sixth applicant”), on 27 April 2005. The application initially concerned the applicants' eviction from their home. On 13 December 2006 the first applicant introduced new complaints concerning his pre-trial detention. 2.     The applicants were represented by Mr Zurab Todua and Mr   Malkhaz Pataraia, lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their former Agent, Mr   David Tomadze of the Ministry of Justice. 3.     On 29 August 2007 the Court decided to give notice to the   Government of complaints under Articles 3, 5 §§ 3 and 4 and 8 of   the   Convention and Article 1 of Protocol No. 1. It was also decided to examine the merits of the application at the same time as its admissibility   (Article   29 §   3). 4.     The Government and the applicants each filed, on 25 December 2007 and 29 February 2008 respectively, observations on the admissibility and merits of the communicated complaints (Rule 54A of the Rules of Court). 5.     On 30 July and 5 August 2008 and 5 October 2009, the applicants submitted unsolicited and lengthy pleadings, reiterating arguments already raised in the observations they had submitted and also introducing new and unrelated grievances. The Court decided that those submissions should not be accepted for inclusion in the case file for its consideration, pursuant to Rule 38 § 1 of the Rules of Court and the practice direction issued by the   President of the Court on 1   November 2003. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE A. The applicants' settlement in the cottage 6.     The first and second applicants are husband and wife. They were both born in 1937. Their son, the third applicant, and his wife, the fourth applicant, were born in 1964 and 1970 respectively. The fifth and sixth applicants are the daughters of the first and second applicants and were born in 1962 and 1971 respectively. 7.     The applicants, with the exception of the fourth applicant, are internally displaced persons (“IDPs”) from Abkhazia, Georgia. As a result of the armed conflict in 1992-93, they, along with approximately 300,000 other mostly ethnic Georgians, fled Abkhazia, abandoning their homes and property there. 8.     As the first applicant had been a high-ranking official of the Abkhazian Ministry of the Interior, the Georgian Minister of the Interior offered him, in January 1994, the post of Head of the Investigative Department within his Ministry. After the first applicant accepted the offer, he and his family were settled in a cottage belonging to the Ministry situated at no.   15 Avtchala Street, in the outskirts of Tbilisi (“the cottage”). 9 .     According to the case file, the cottage became the Ministry's property on 29 October 1993. Under Order no. 531 of the Minister of the Interior issued on the above-mentioned date, the Ministry retrieved possession of the cottage from the State sports club Dinamo, and the Ministry's Department of Finances and Logistics became responsible for its use. The order of 29   October 1993 stated that the retrieval of the cottage was justified in the light of “a substantial increase in the number of staff members, ... coupled with the fact that, in view of the current hostilities in Abkhazia, exiled staff members of the Ministry need to be provided with employment and accommodation.” 10.     The first applicant and his family started using premises adjacent to the cottage to create a small household economy by installing various fixtures and fittings for growing fruit and vegetables, and keeping poultry and small livestock. Later, the Saghinadze family gave free accommodation to eight homeless relatives who had been similarly displaced from Abkhazia (“the Saghinadze family's relatives”). In 1998 or 1999 the third applicant married the fourth applicant, and the couple also stayed in the cottage. 11.     In 1998 the first applicant retired from service with the Georgian Ministry of the Interior. 12 .     On 20 April 2000 the Ministry issued a letter confirming the legitimacy of the possession of the cottage and the adjacent premises by the first applicant (“the Ministry's letter of 20 April 2000”). The letter stated that the first applicant and his family had been settled in the cottage in 1994 on the basis of an ordinance issued by the then Minister under the Internally Displaced Persons and Refugees Act of 28 June 1996 (“the IDPs Act”) . The letter further noted that the possession was of a temporary nature, its period not being specified, and that the possessor had a duty of care. A copy of that letter was also addressed to the relevant local government authorities for information. 13 .     As made clear by the case materials, in 2001 the fifth applicant left the cottage to settle with her husband in Ukraine. On 31 August 2001 the sixth applicant became the registered owner of part of the land adjacent to the cottage. B. The Kaladze case 14.     Almost immediately after the Rose Revolution in November 2003 (for more details, see The Georgian Labour Party v. Georgia , no.   9103/04, §§   11-13, 8 July 2008), the newly appointed Minister of the Interior recalled the first applicant from retirement, asking him to lead the investigation into the Kaladze case. This high-profile criminal case, which the authorities had been unable to investigate since 2001, concerned the abduction and disappearance of the brother of Mr K. Kaladze, a well-known Georgian footballer with the Italian football club AC Milan. Having accepted the offer, the first applicant was promoted to the rank of police colonel and appointed as head of an independent investigative unit in charge of the Kaladze case and other high-profile abduction cases, by a ministerial order of 13 December 2003. 15 .     According to the first applicant, his investigative unit elucidated the circumstances of the Kaladze case over the following months. Allegedly, those findings were embarrassing for certain high-ranking officials who had been covering up criminal machinations in Georgian football, and on 30   March 2004 the then Prosecutor General, Mr I.O., personally requested the first applicant to drop the investigation. 16 .     In June 2004 the Prosecutor General, Mr I.O., was appointed as Minister of the Interior. Allegedly, the newly appointed Minister removed the first applicant from the Kaladze case and ousted him from office in a degrading manner on 26 June 2004. 17.     On 13 October 2004 the first applicant submitted a confidential file to the National Security Council, a consultative body of the President of Georgia. Allegedly, that file contained information revealing abuses of power by Mr I.O. and other high-ranking officials. C. The eviction from the cottage 18.     On 25 October 2004 the police visited the Saghinadze family at home and requested, on the basis of an oral instruction given by the Minister of the Interior, Mr I.O., that they vacate the cottage. The first applicant showed the police the Ministry's letter of 20 April 2000 as proof of the legitimacy of his possession and requested the officers to leave. 19.     On 30 October 2004 the police visited the Saghinadze family again, with the same eviction request. However, as the police could not produce a court decision, the first applicant did not let them in. 20.     On 31 October 2004 the police made another attempt to evict the applicants. This time the cottage was allegedly besieged by approximately fifteen policemen and several special forces agents wearing black balaclava ‑ like masks. They reiterated that they had an oral order from the Ministry of the Interior to evict the applicants. The first applicant engaged in heated argument with the officers, demanding that they either show a court authorisation to enter his home or leave immediately. On witnessing the tense situation, the second applicant fainted. The fourth applicant, who was pregnant at that time, also suffered a nervous reaction. As the police did not have the necessary court decision, they withdrew. 21 .     According to the applicants, on 1 November 2004 a group of approximately sixty armed special forces agents wearing black balaclava-like masks broke into their cottage. The Head of the Mtskheta ‑ Mtianeti Regional Police Department was in charge of that operation. The police, who did not have any legal document authorising such an action, forcibly ousted the second applicant and the Saghinadze family's relatives from the cottage (the other applicants, including the first applicant, were not at home during the incident). After the eviction, several police officers remained stationed in the cottage. An adjacent plot of land, which was the sixth applicant's registered property, was also occupied by the police. D. The remedies pursued 22.     Subsequent to the incident of 1 November 2004, the first applicant brought civil proceedings and filed criminal complaints, challenging the arbitrary taking of the cottage and the obstruction of his professional activities by high-ranking officials of the Ministry of the Interior. 23 .     In those proceedings, which are described below, the first applicant acted throughout on his own behalf as the sole claimant/complainant. None of the remaining five applicants issued any document authorising either the first applicant or a lawyer to act on their behalf. Consequently, in so far as the first applicant's claim for recovery of possession was concerned, the domestic courts limited the scope of their examination to the first applicant's title to the cottage (see paragraphs 26, 33-37 and 43-44 below). 24.     In addition to the proceedings pursued by the first applicant, the sixth applicant brought a successful action concerning the occupation of her plot of land (see paragraph 21 above). As a consequence of her complaints, the Ministry of the Interior vacated the land on 14 March 2005. 1. The proceedings brought by the first applicant to recover possession (a) The proceedings at first instance 25 .     On 22 November 2004 the first applicant filed a civil action against the Ministry of the Interior, seeking to recover possession of the cottage under Articles 155, 159 and 160 of the Civil Code. The first applicant complained that the cottage had been in his legitimate possession and had served as the home for him and his family since 1994. Stating that all his personal and household belongings had remained in the sealed cottage and that he and his family had no other place to live, the first applicant also sought an injunction enabling them to remain in the cottage pending resolution of the dispute. On the same day, the Krtsanisi-Mtatsminda District Court in Tbilisi refused the request for an injunction as unsubstantiated but declared the main action admissible for examination on the merits. The first applicant then requested that, if his action were allowed, an immediately enforceable judgment be delivered under Article 268 of the Code of Civil Procedure (“the CCP”). 26 .     In a judgment dated 30 December 2004, the Krtsanisi-Mtatsminda District Court allowed the first applicant's action, ordering the respondent Ministry to hand the cottage back to the first applicant. Noting that the Ministry's letter of 20 April 2000 had been proof of the fact that he and his family had settled there as IDPs from Abkhazia on the basis of a ministerial ordinance, the court found that his possession of the cottage had been legitimate. The court further reasoned that section 7 § 3 of the Act of 28   June 1996 on Internally Displaced Persons and Refugees (“the IDPs Act”) prohibited eviction of IDPs already in accommodation, unless (a) an agreement had been reached with them, (b) alternative accommodation had been offered, (c) the eviction had been made necessary by acts of nature and adequate compensation had been provided for, or (d) the IDPs had occupied the disputed premises vexatiously, without any lawful basis. In so far as none of the above-mentioned conditions had been met in the first applicant's case, the court reasoned that the eviction of 1 November 2004 had been unlawful. The District Court also criticised the respondent Ministry for taking the cottage without any legal decision, on the sole basis of the Minister's oral instruction. It pointed out that, pursuant to Article   51 §§   1 and 2 of the General Administrative Code, an administrative act such as a ministerial order could be issued orally only in urgent situations and should be followed by a written copy within three days; this had not occurred in the present case. In the light of the above considerations, the court concluded that possession of the cottage should be restored to the first applicant on the basis of Article 160 of the Civil Code. 27.     However, the Krtsanisi-Mtatsminda District Court refused to order immediate enforcement of its judgment. It stated that the refusal was justified in the light of the respondent Ministry's allegation that, after the eviction, it had stationed a unit of special forces at the cottage, which needed time to withdraw. 28 .     On 6 January 2005 supporters of the first applicant visited the cottage. Having found it empty, they learned from the two policemen guarding the premises that, after the eviction of the Saghinadze family, the rooms had been sealed and no unit had ever been stationed there. A record of those findings was drawn up at the scene. (b) The appellate proceedings 29 .     On 27 January 2005 the respondent Ministry lodged an appeal against the judgment of 30 December 2004. Acknowledging that it had authorised the first applicant to use the cottage, the Ministry specified that his possession of the property had been of a temporary nature only. Consequently, the termination of the first applicant's possession rights, and the attendant eviction of his family, could not be said to have been unlawful. The Ministry also claimed that the cottage and the adjacent land represented a strategic object for the State. 30 .     On 13 February 2005 the first applicant also lodged an appeal against the judgment of 30 December 2004 in so far as the refusal to order its immediate enforcement was concerned. Relying on the relevant record (see paragraph 28 above), he complained that the respondent Ministry had misled the lower court about the stationing of a police unit. As another argument for urgent recovery of possession of the cottage, he referred to the difficult social and housing situation of some of his family members. Thus, amongst other arguments, he claimed that the fifth applicant was about to return from Ukraine with her new-born child and that she had nowhere to live in Georgia other than in the cottage. 31.     On 19 December 2005 the Tbilisi Regional Court held a hearing on the merits. During that hearing the respondent Ministry acknowledged again that, apart from “Mr I.O.'s oral order”, no legal basis for the taking of the cottage had existed. The Ministry also stated that it had offered the first applicant on more than one occasion the opportunity to recover his personal and family belongings from the cottage, but that the latter had refused to cooperate. 32 .     The Regional Court also examined written and oral submissions from two witnesses, Mr D.M. and Mr J.M., who had been Deputy Ministers of the Interior when the first applicant was settled in the cottage. Those witnesses stated that the first applicant had written to the then Minister of the Interior in January 1993, requesting employment and accommodation. The Minister had approved that request by appending his signature, and, consequently, the first applicant had been offered a new post within the Ministry and accommodated in the cottage. The decision had been prompted by the fact that the first applicant, a qualified agent praised for his investigative skills, had been left homeless by the hostilities in Abkhazia. 33 .     The Tbilisi Regional Court delivered its judgment on the same day, allowing the respondent Ministry's appeal in full. The court acknowledged the fact that the first applicant had used the cottage and the adjacent premises between January 1994 and 1 November 2004. Referring to the order of 29 October 1993 of the Minister of the Interior (paragraph   9 above), the court further found it established that the cottage had been the Ministry's property at the material time. It was also acknowledged that the first applicant had never obtained a registered title to the real property in question. 34.     The appellate court then addressed the issue of whether or not the first applicant could be said to have possessed the cottage in good faith. It stated that, under Article 159 of the Civil Code, the main consideration in that regard was whether he could be said to have acquired possession legitimately. Legitimacy would be excluded if the first applicant could have realised that he had taken possession unlawfully. Conversely, if his possession had turned out to be unlawful but the applicant could not have known it, he should be regarded as having possessed the property in good faith. 35.     Reasoning in the light of the above-mentioned principles the Regional Court stated that, in so far as the first applicant had failed to submit a legal document which would show that the cottage had been transferred to him on a lawful basis, his entry into possession could not be said to have been legitimate. The Ministry's letter of 20 April 2000 was not accepted as valid proof in that regard, owing to the inconsistency of the information it contained. Thus, the appellate court noted that, whilst the letter stated that the first applicant had obtained the cottage in 1994 on the basis of the IDPs Act, the latter statute had in reality entered into force much later, on 28 June 1996. In addition, a simple letter could not give rise, in the opinion of the court, to the creation of a legal relationship. The Regional Court further reasoned that the first applicant could not rely on the IDPs Act, in so far as it had been adopted subsequent to his settlement in the cottage. In any case, section 5 § 4 of that Act, prohibiting the eviction of IDPs without a court order, was not applicable to his situation, as it had been added to the Act on 6 April 2005, that is, after the taking of the cottage on 1 November 2004. 36 .     In the light of the above considerations, the Tbilisi Regional Court concluded that the first applicant should have realised that his possession of the cottage was unlawful. That being so, the respondent Ministry, as the rightful owner of the cottage, had been entitled to claim its property back from the first applicant's dishonest possession, under Articles   160   and 172   §   1 of the Civil Code. 37 .     One of the three appellate judges, disagreeing with the majority, delivered a separate opinion. She was of the view that the respondent Ministry's letter of 20 April 2000 clearly showed that the first applicant had obtained the cottage on the basis of a ministerial ordinance. Consequently, he should not be regarded as a dishonest possessor. The judge further noted that the Ministry had evicted the applicants without a court decision. Consequently, whilst the Ministry had a superior title to the cottage, the first applicant was nevertheless entitled to recover possession under Article   160 in fine of the Civil Code. (c) The cassation proceedings 38 .     On 27 January 2006 the first applicant filed an appeal on points of law. Referring to the respondent Ministry's letter of 20 April 2000, the statements of the ex-Deputy Ministers of the Interior and other evidence in the case file, the first applicant challenged the appellate court's conclusion as to his possession in bad faith. He emphasised that he had not occupied the cottage vexatiously but had been offered it by the respondent Ministry. The legitimacy of his possession further followed from the ministerial order of 29 October 1993, to which the appellate court had referred in its judgment. The first applicant noted that the order clearly stated that, at the time he had been resettled in the cottage, the Ministry had been authorised to use the cottage for the very purpose of housing displaced staff members. 39 .     The first applicant further argued that the main reason why the cottage had been transferred to him without extensive formalities was the humanitarian crisis prevailing in Georgia in 1993-1994, when around 300,000 homeless IDPs from Abkhazia needed to be urgently housed by central Government. Referring to the statistical data, according to which around 150,000 IDPs had been provided with accommodation by the State in the aftermath of the Abkhazian conflict, the first applicant argued that it was unrealistic to expect that all property-transfer formalities should have been meticulously followed in every such case. The first applicant referred to numerous domestic legal acts – ordinances of the Head of State dated 30   December 1992, 2 October 1993 and 29 March 1995, resolutions dated 31 December 1994 and 17 April 1996 of, respectively, the Cabinet of Ministers and Parliament, the IDPs Act of 28 June 1996, a Presidential Decree dated 5 January 2002, and so on – by which the Georgian State had assumed the obligation to house IDPs. In view of that responsibility on the part of the State, his settlement in and consequent possession of the cottage had been fully legitimate. 40.     The first applicant further complained that, before depriving him and his family of their home, the Ministry should have proved its case in a court. However, the eviction had been carried out not only without a court decision but also without any written administrative act. In this connection, the first applicant alleged that the appellate court had arbitrarily disregarded section 7 § 3 of the IDPs Act which had been in force at the time of their eviction and explicitly prohibited the eviction of IDPs who were already settled, without due process and proper compensation. In support of his arguments, the first applicant referred to the Supreme Court's decision of 28   November 2001 in the similar case of Khintibidze and Others (see paragraph 69 below). Finally, referring to his difficult social and financial situation, the first applicant requested either full exemption from the court fee or deferral of its payment until after the examination of the case. 41.     On 24 February 2006 the Supreme Court criticised the first applicant for his failure to pay the court fee, ordering him to do so within fifteen days on pain of having his appeal rejected without examination. On 17 March 2006 the first applicant paid a fee of 1,200 Georgian laris (510 euros [1] (EUR)), corresponding, in line with the relevant statutory requirement, to 4% of the value of the cottage. He also submitted an agreement showing that the money had been lent to him by a private individual for two years. 42 .     On 27 September 2006, the Supreme Court dismissed the first applicant's appeal on points of law and fully upheld the appellate judgment of 19 December 2005. 43 .     Endorsing the appellate court's reasoning, the Supreme Court reiterated that the first applicant could recover possession of the cottage from the owner, the respondent Ministry, under Articles 160 and 162 of the Civil Code only if his initial possession had been legitimate. Legitimacy meant that possession had to have been exercised on a lawful basis. However, since the first applicant had failed to produce a legal decision of the relevant authority authorising his occupation of the cottage in 1994, his ensuing possession could not be considered to have been exercised in good faith. As to the respondent Ministry's letter of 20 April 2000, the Supreme Court refused to accept it as a valid document, reasoning that, by virtue of Decree no. 487 issued by the President of Georgia on 8 September 1997, only the Ministry of State Property Management had been competent to enter into such transactions with private individuals. The Supreme Court further stated that only the Ministry of Resettlement of Refugees and IDPs (“the Ministry of IDPs”) was competent to accommodate IDPs under section   5   §   2 of the IDPs Act. Given that the cottage had not been offered to the first applicant by the latter Ministry, the Supreme Court reasoned that the housing guarantee contained in the IDPs Act did not apply to his situation. In the light of the above considerations, the Supreme Court concluded that the Ministry, as the rightful owner of the cottage, had been entitled to retrieve its property from the first applicant's dishonest possession under Articles 160 and 172 § 1 of the Civil Code. 44 .     One of the judges of the Supreme Court delivered a dissenting opinion. The judge in question stated that the facts of the case proved that the first applicant had at least possessed the cottage in good faith. Even assuming that he had not been a legitimate possessor, the respondent Ministry was not entitled to retrieve the cottage without due process and by force, in breach of the requirements of Article 115 of the Civil Code. The dissenting judge therefore concluded that the first applicant was entitled to reclaim possession of the cottage under Article 160 in fine of the Civil Code. 2. The criminal complaints filed by the first applicant 45.     The criminal remedy was pursued by the first applicant concurrently with the civil one described above. 46.     On 22 November 2004 the first applicant requested the Prosecutor General's Office (“the PGO”) to open a criminal case concerning the arbitrary and violent eviction of 1 November 2004 and the obstruction of his investigation into the Kaladze case by high-ranking officials of the Ministry of the Interior. 47.     On 23 December 2004 the PGO replied in writing that criminal proceedings could not be initiated “owing to the absence of any relevant materials.” 48.     On 8 January 2005 the first applicant lodged a court complaint against the PGO's reply of 23 December 2004. 49 .     In a letter dated 28 January 2005 the Ministry of the Interior, in reply to a query from the Public Defender's Office, provided its version of the incident of 1 November 2004. Acknowledging that the cottage had been transferred to the first applicant's possession in 1994 by a decision of the then Minister of the Interior, the letter stated that the possession in question had “recently become unlawful”. Consequently, the Ministry had decided to reclaim possession of its cottage, but the first applicant had refused to cooperate. Eventually, after several unsuccessful attempts, the Ministry, acting through the police, had persuaded the second applicant and the Saghinadze family's relatives to vacate the cottage, in the absence of the first applicant. The letter emphasised that the eviction had not been forcible but, on the contrary, had been voluntary and peaceful, and that the second applicant had been able to take her personal belongings with her on eviction. As to the remaining movables in the cottage, including poultry and small livestock, the Ministry's letter stated that the applicants had been invited to retrieve them on more than one occasion and could still do so. The letter noted that, subsequent to the eviction of 1 November 2004, the cottage had been sealed in order to prevent its being looted. It was also noted that the actual value of the cottage was GEL 45,541.69   (EUR   19,630). 50.     In a decision of 28 February 2005 the Krtsanisi-Mtatsminda District Court rejected the first applicant's complaint against the PGO's reply of 23   December 2004. Stating that an informal letter from the prosecution authority could not be subjected to judicial review, the court advised the first applicant to challenge the letter before a senior prosecutor. 51.     On 9 March 2005 the first applicant lodged with the Supreme Court an interlocutory appeal against the decision of 28 February 2005 and simultaneously lodged a hierarchical complaint within the PGO. 52.     On 7 April 2005 the Supreme Court dismissed the first applicant's interlocutory appeal of 9 March 2005 for the same reasons as those given by the Krtsanisi-Mtatsminda District Court on 28 February 2005. As to the hierarchical complaint, the PGO replied on 21 April 2005, paraphrasing the impugned letter of 23 December 2004 as follows: “Your request to initiate criminal proceedings for the eviction ... cannot be satisfied owing to the absence of any relevant materials”. 53.     On 18 April 2006 the Public Defender recommended that the PGO open a criminal case for abuse of power by high-ranking officials of the Ministry of the Interior. The Public Defender noted that if there had been lawful grounds for dispossessing the first applicant, the Ministry should first have brought civil proceedings to that end, as required by the relevant domestic law. E. The criminal proceedings against the first applicant 54 .     On 20 February 2006 the police conducted a search of the cottage, as an urgent investigative measure and in the absence of the first applicant or his lawyers. Local municipality officials attended the search as witnesses. On completion of the search the police drew up a report recording the discovery of firearms and of copies of documents concerning various criminal cases, including the Kaladze case. On the same day a criminal case was opened against the first applicant for unlawful storage of a gun and confidential official documents. He was not however arrested at that time. 55 .     On 21 February 2006 the Mtskheta District Court, having examined the lawfulness of the urgent search, decided to legalise its results ex post facto . 56 .     On 20 March 2006 the PGO, in view of the information obtained in the course of its investigation into the Kaladze case, opened a criminal case for abuse of power allegedly committed by the first applicant's investigative unit in 2004 (see paragraphs 14 and 15 above). In particular, several members of the unit, including the first applicant, were suspected of having wilfully misled the investigation into that case by extorting, under duress, false statements from a witness, Mr M., and otherwise fabricating evidence. 57 .     On 30 May 2006 the two above-mentioned criminal cases were joined, and on 2 June 2006 the first applicant was charged with unlawful possession of a gun, misappropriation of confidential official documents, ill ‑ treatment of a person, fabrication of evidence and other abuses of power committed in public office. The charges were based, inter alia , on the legalised results of the search of 20 February 2006 and the incriminating statements of the victim, Mr M., as well as other documents and information including statements from several relevant witnesses, collected by the PGO in the course of its own investigation into the Kaladze case (see the preceding paragraph). 58.     On 4 June 2006 the first applicant was arrested and, the following day, the prosecutor requested the Tbilisi City Court to remand him in custody pending trial. The reasons given for the request were the risk that the first applicant might abscond in view of the gravity of the charges and that he might impede the investigation, given that he could use his authority as a former high-ranking law-enforcement officer to influence the parties to the proceedings. 59 .     On 6 June 2006 the Tbilisi City Court examined the prosecutor's request at an oral hearing. The first applicant was assisted by two lawyers during that hearing. Refusing the first applicant's application for bail, the court ordered his detention for two months. Having reviewed the criminal case materials and heard the parties' oral pleadings, the court confirmed the existence of a reasonable suspicion that the offences had been committed. The imposition of pre-trial detention was found to be further justified, under Article 159 § 3 of the Code of Criminal Procedure, by the assumption that the accused could abscond in view of the severity of a possible sentence. Lastly, without giving detailed arguments in that regard, the court shared the prosecutor's fear that, if released, the first applicant could unduly influence the parties to the proceedings. 60.     On 7 June 2006 the first applicant appealed against the detention order of 6 June 2006, complaining, inter alia , that it had been based only on the gravity of the charges, and that the lower court had disregarded such elements as his age, his state of health, the difficult social situation of his family, his reputation and social esteem. Calling into question the credibility of the incriminating evidence against him, the first applicant also stated that there could be no reasonable suspicion of his having committed the offences in question. 61 .     On 14 June 2006, without holding an oral hearing, the Tbilisi Court of Appeal dismissed the first applicant's appeal. The court did not solicit written comments from the prosecutor, and its decision was based on the examination of the first applicant's arguments only in the light of the case materials. Noting that it was premature to assess the well ‑ foundedness of the charges, the appellate court, after reviewing the available evidence, confirmed the existence of a reasonable suspicion against the first applicant. It upheld the detention order, reasoning as follows: “When selecting a measure of pre-trial restraint, account should be taken of the nature of the charges (the repeated abuses of power committed in public office by the use or threat of force, actions which are particularly dangerous to public safety) as well as their gravity (the charges carry long-term prison sentences). Moreover, the investigation has still to establish the origins of the seized firearms, whether they could have been used in other crimes ... In view of the above, the prosecutor's fear that the accused might abscond and/or unduly influence the parties to the proceedings is justified. Despite the fact that the accused is more than 65 years old, ... a more lenient measure of restraint would not secure the aims mentioned in Article 151 § 1 of the Code of Criminal Procedure.” The appellate court further stated that the first applicant had failed to submit recent medical documents in support of his health complaints. Overall, the appellate court answered all the main arguments submitted by the first applicant. 62.     On 29 June 2006 the investigation was terminated and the prosecutor sent the bill of indictment, accompanied by all relevant documentation about the first applicant's detention as well as other case materials, to the Tbilisi City Court for trial. On the same day the trial judge, without holding an oral hearing, reviewed the first applicant's continued detention. He issued a standard decision on a page-long template with pre-printed reasoning. The judge added in the blank spaces the name of the accused, the definition of the offence and the measure of pre-trial restraint. The pre ‑ printed reasoning read as follows: “In selecting the measure of pre-trial restraint, both the formal (procedural) grounds and the factual grounds (sufficient evidence for imposing a restraint measure) have been taken into account. The defendant is charged with a serious offence and the imposition of any other measure of restraint would not secure the aims mentioned in Article 151 of the Code of Criminal Procedure. Having examined the criminal case materials I consider, in the light of the arguments which were relied on when the restraint measure was first imposed, that there exist no grounds for cancelling or amending that measure at this stage of the proceedings either.” 63 .     On 22 February 2007 the first applicant was convicted at first instance of the offences with which he had been charged and was sentenced to seven years in prison. The case file shows that the conviction was upheld at last instance by the Supreme Court on 19 December 2007 and that the first applicant is currently serving his prison sentence. II.     RELEVANT DOMESTIC LAW AND PRACTICE A. The Civil Code as it stood at the material time 64 .     The relevant provisions of the Civil Code bearing on the notions of possession and ownership read as follows: Article 115 – Prohibition of abuse of rights “Civil rights must be exercised lawfully. It is prohibited to exercise a right with the intention to harm somebody.” Article 155 §§ 1 and 3 – Concept and types [of possession] “1. Possession arises from the intentional acquisition of actual dominion over an asset. ... 3. A person who possesses an asset on the basis of a legal relationship which either confers entitlement for a definite period or confers an obligation shall be considered as the direct possessor, whilst the person who conferred the above-mentioned right or obligation shall be considered as the indirect possessor.” Article 159 – Possessor in good faith “A possessor shall be considered to be in good faith if he or she possesses an asset on a legitimate basis or if such an assumption could be made by diligently observing his or her transactions.” Article 160 – Claim for recovery of possession by a possessor in good faith “A possessor in good faith who has been dispossessed may claim recovery of the disputed asset from the new holder within three years. This rule shall not apply if the new holder has a superior title to the asset. A claim for recovery of possession may also be directed against a holder with superior title if the latter acquired the disputed asset under duress or by fraud.” Articles 162, 163 and 164 of the Civil Code differentiated between the following types of possession, affording them diminishing degrees of protection: (i) clearly legitimate possession (a notion which, as shown by Article 159, already contained the element of good faith), (ii) possession in good faith but without a legitimate title and (iii) possession in bad faith. Article 168 – Termination of possession on a reasoned request by the owner “Possession is terminated on the submission by the owner of a reasoned claim against the possessor.” Article 170 § 2 – Concept of ownership “2. The exercise of ownership in a manner which causes harm to others, unless justified by the owner's overriding interests