CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 27 novembre 2012

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padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s40B7A780 { border-top-style:solid; border-top-width:0.75pt; border-right-style:solid; border-right-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top } .s4F2EDFF { border-top-style:solid; border-top-width:0.75pt; border-left-style:solid; border-left-width:0.75pt; padding-right:5.03pt; padding-left:5.03pt; vertical-align:top }   THIRD SECTION DECISION Application no. 40969/06 Vakhtang TALAKHADZE against Georgia and 2 other applications (see list appended) The European Court of Human Rights (Third Section), sitting on 27   November 2012 as a Committee composed of:   Luis López Guerra, President,   Nona Tsotsoria,   Kristina Pardalos, judges, and Marialena Tsirli, Deputy Section Registrar, Having regard to the above applications lodged on 6   October 2006, 20   February and 15   March 2007, Having deliberated, decides as follows: THE FACTS 1.     A list of the applicants is set out in the appendix. 2.     The Georgian Government (“the Government”) were represented by their Agents, Mr David Tomadze and Mr Levan Meskhoradze, of the Ministry of Justice. A.     The circumstances of the case 3.     The facts of the case, as submitted by the parties, may be summarised as follows. 4.     On 3 September 2006 criminal proceedings were instituted against the three applicants and nine other persons, members of various political parties, for conspiracy to commit coup d’état . 5.     On 6 September 2006 the applicants and the other suspects were arrested and charged with the above-mentioned offence. 6.     In an order of 8 September 2006, the Tbilisi City Court, after having conducted an oral hearing, remanded the twelve accused persons, including the applicants, for two months pending trial. After having examined the parties’ oral pleadings, the court stated as follows: “The case file discloses both legal and factual grounds, as well as sufficient evidence, for the imposition of detention with respect to the [twelve] accused persons. The evidence has been gathered in conformity with procedural rules. [These persons] are charged with offences carrying more than two years in prison. A number of investigative measures have to be carried out ... In view of the above, and taking into account the personality and activities of the accused persons, as well as the factual circumstances of the case, the prosecutor’s suspicion that they, in view of the prospect of punishment, might abscond, influence witnesses, destroy evidence or otherwise interfere with the establishment of the truth is substantiated.” 7.     The applicants filed appeals against the detention order of 8   September 2006. 8.     On 15 September 2006 the Tbilisi Court of Appeal, dispensing with an oral hearing under Article 243 § 10 of the Code of Criminal Procedure (“the CCP”), upheld the detention order of 8 September 2006. Replying to the applicants’ arguments, the appellate court emphasised that, even if it was not its task to determine the well-foundedness of the criminal charges at that stage of the proceedings, it could still discern from the case file the existence of a reasonable suspicion that the impugned offence might have been committed by the accused. The appellate court reiterated that, in the light of the circumstances of the case, there was a substantiated assumption that the accused, if released, might abscond or interfere with the establishment of the truth. 9.     On 29 October 2006 the prosecutor requested an extension of the detention term by a month, explaining that more time was needed to effectuate a number of investigative measures – to examine certain places and documents, to analyse the collected information, to interview the twelve accused and several witnesses, and so on. 10.     In an order of 31 October 2006, the Tbilisi City Court, after having conducted an oral hearing and heard the applicants’ pleadings in reply, granted the prosecutor’s request of 29 October 2006, endorsing the latter’s arguments (see paragraph 9 above). 11.     The applicants then filed appeals against the order of 31   October 2006. 12.     On 8 November 2006 the Tbilisi Court of Appeal, dispensing with an oral hearing under Article 243 § 10 of the CCP but having exchanged the parties’ written arguments on the issue, upheld the detention order of 31   October 2006. Replying to the applicants’ major arguments, the appellate court stated that the case was complex, involved a large number of accused persons and that, consequently, the two months’ detention had not been sufficient for the finalisation of the investigation. 13.     On 28 November 2006 the prosecutor requested an extension of the detention term by another month on the basis of the same arguments as those in his previous request of 29 October 2006. 14.     In an order of 30 November 2006, the Tbilisi City Court, after having conducted an oral hearing and heard the applicants’ arguments in reply, granted the prosecutor’s second request by extending the detention period until 6 January 2007. The court reiterated that more time was needed for the termination of the investigation. 15.     The applicants appealed, and   the order of 30 November 2006 was then upheld by the Tbilisi Court of Appeal on 6 December 2006. The appellate court dispensed with an oral hearing under Article 243 §   10 of the   CCP after having effectuated an exchange of the parties’ written submissions on the matter. Dismissing the applicants’ arguments, it confirmed that, given the complexity of the case and the number of the accused, the continued detention was necessary for a progress of the investigation. B.     Relevant domestic law 16.     The relevant provisions of the Code of Criminal Procedure concerning pre-trial detention were summarised in paragraphs 35 ‑ 36 and 29 ‑ 41 of the Court’s judgment in the case of Giorgi Nikolaishvili v.   Georgia , no. 37048/04, 13 January 2009). COMPLAINTS 17.     The applicants complained under Article 5 § 3 of the Convention that the initial court decisions dated 8 and 15 September 2006, which imposed the measure of pre-trial detention for two months, and the subsequent decisions of 31 October, 8 and 30 November and 6   December 2006, which extended that measure for additional two months, did not contain relevant and sufficient grounds to justify the overall period of their pre-trial detention. 18.     Relying on Article 5 § 4 of the Convention, the applicants further complained that the appellate judicial reviews of 15   September, 8   November and 6 December 2006 of the issue of their pre-trial detention had been unfair, in so far as no oral hearings had been held by the Tbilisi Court of Appeal. 19.     Lastly, the applicants also complained that their pre-trial detention had had no lawful basis and that the judicial reviews of that detention had not satisfied various guarantees of “a fair trial”, in breach of, respectively, Article 5 § 1 (c) and Article 6 §§ 1 and 3 of the Convention. THE LAW 20.     Having regard to the similar subject matter of the applications, the Court finds it appropriate to join them. 21.     The applicants mainly complained that the period of their detention between 6 September 2006 and 6 January 2007 had not been accompanied by sufficiently and adequately reasoned court decisions and that the appellate reviews of the issue of their pre-trial detention had been conducted without oral hearings, in breach of Article 5 §§ 3 and 4 of the Convention. The cited provisions read as follows: Article 5 § 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.” Article 5 § 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.” 22.     The Government submitted that the reasons expressly given in the contested judicial decisions had been adequate. They further stated that, since the oral pleadings of the applicants and their lawyers had been duly heard at first instance by the Tbilisi City Court on 8 September, 31 October and 30 November 2006, it was not necessary for the Tbilisi Court of Appeal to hold repeated oral hearings on 15 September, 8 November and 6   December 2006. It sufficed, for the purposes of Article   5   §   4 of the   Convention, that the applicants were able to address the appellate court with their written pleadings and then received, in the relevant decisions, reasoned answers to their main arguments. 23.     The applicants disagreed. They maintained that the court decisions of 8, 15 September, 31 October, 8 and 30 November and 6 December 2006 had not been accompanied by sufficient reasons. Those decisions had used phrases taken from the prosecutor’s requests for the imposition and extension of their detention, without relating them to the specific circumstances of his case. As to the absence of oral hearings before the appellate court, the applicants claimed that that procedural deficiency had placed them at a disadvantageous position vis-à-vis the prosecution. 24.     With respect to the applicants’ complaints under Article 5 § 3 of the Convention, the Court considers that the questioned period of their pre ‑ trial detention – four months – cannot be said, given its short length, to have been unreasonable within the meaning of Article 5 § 3 of the Convention even if it was mostly based on a reasonable suspicion that the applicants had committed the offence with which they had been charged (compare, for instance, with Mikiashvili v. Georgia , no. 18996/06, §§ 101-104, 9   October 2012; Galuashvili v.   Georgia , no. 40008/04, § 50, 17 July 2008; Saghinadze and Others v.   Georgia , no. 18768/05, § 137, 27 May 2010; Klamecki v.   Poland , no.   25415/94, §§ 74 and 76, 28 March 2002; and also Malikowski v.   Poland , no. 15154/03, § 52, 16 October 2007). 25.     As to the applicants’ complaints about the absence of oral hearings during the appellate judicial reviews of their pre-trial detention, the Court recalls that the same issue was already examined in the context of the relevant Georgian procedural law and practice and found to have been, in similar factual circumstances, fully compatible with Article 5 § 4 of the Convention (compare with Saghinadze and Others , cited above, §§   147 ‑ 151). Notably, in the present case as well, it was important that, during the preceding reviews of the applicants’ pre-trial detention at first instance, the Tbilisi City Court had duly heard oral pleadings from the applicants and their lawyers; the case file does not contain anything to suggest that there had been an arguable issue as regards the applicants’ right to adversarial proceedings and equality of arms during those hearings at first instance. Nor can the applicants claim that the subsequent absence of oral hearings before the appellate court deprived them of the opportunity to make that court aware of their arguments. On the contrary, the case file proves that the Tbilisi Court of Appeal responded, in its decisions of 15   September, 8 November and 6 December 2006, to the main arguments made by the applicants, in writing, in their statements of appeal. The Court has no reason to doubt the effectiveness of that underlying written procedure. Indeed, legal arguments, as well as those relating to factual matters, may be presented just as effectively in writing as orally (ibidem, §   149). 26.     Lastly, in so far as the applicants’ remaining complaints under Articles   5   §   1   (c) and 6 §§   1 and 3 of the Convention are concerned   (see paragraph   19 above), the Court, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. 27.     It follows that the present three applications are manifestly ill ‑ founded and must be rejected in accordance with Article   35   §§   3   (a) and   4 of the Convention. For these reasons, the Court unanimously Decides to join the applications; Declares the applications inadmissible.   Marialena Tsirli   Luis López Guerra   Deputy Registrar   President   Appendix   No. Application No. Lodged on Applicant Date of birth Place of residence Represented by   40969/06 06/10/2006 Vakhtang TALAKHADZE 21/08/1955 Rustavi, Georgia Mrs Manana KOBAKHIDZE   14001/07 20/02/2007 Zaza DAVITAIA 10/10/1968 Rustavi, Georgia Mrs Manana KOBAKHIDZE   14694/07 15/03/2007 Maia TOPURIA 05/05/1966 Tbilisi, Georgia Mr Shalva SHAVGULIDZE