CEDH · CASELAW;JUDGMENTS;COMMITTEE;ENG — 7 juin 2016

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GEORGIA   (Application no. 35195/05)             JUDGMENT         STRASBOURG   7 June 2016       This judgment is final but it may be subject to editorial revision. In the case of Tchitchinadze v. Georgia, The European Court of Human Rights (Fourth Section), sitting as a Committee composed of:   Krzysztof Wojtyczek, President,   Nona Tsotsoria,   Gabriele Kucsko-Stadlmayer, judges, and Fatoş Aracı, Deputy Section Registrar, Having deliberated in private on 17 May 2016, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 35195/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Lasha Tchitchinadze (“the applicant”), on 24   August 2005. 2.     The Georgian Government (“the Government”) were represented by their Agent, Mr D. Tomadze, of the Ministry of Justice. 3.   On 30 April 2007 the Court decided to give notice to the Government of the applicant’s complaint under Article 5 § 3 of the Convention concerning the alleged unreasonableness of his pre-trial detention. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility. 4.     On 1 October 2007 the President of the Chamber granted the applicant leave to present his own case. 5.     The Government and the applicant each filed observations on admissibility and merits. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 6.     The applicant was born in 1975 and lives in Tbilisi. 7.     At 3.50 p.m. on 19 February 2005 the applicant was arrested as a suspect in a criminal case. On 21 February 2005 he was charged with multiple episodes of fraud. 8.     On 22 February 2005 the First-Instance Panel of the Supreme Court of Georgia, rejecting the prosecutor’s request to place the applicant in pre-trial detention, ordered the applicant’s release under police supervision. The applicant was released at 4.00 p.m. on the same day. 9.     On 25 February 2005 the Appeals Chamber of the Supreme Court of Georgia, reversing the lower-instance decision, placed the applicant in pre-trial detention for three months. It justified its decision solely by noting that the applicant had been charged with a serious crime carrying a possible penalty of more than five years’ imprisonment. This fact in itself, in the Supreme Court’s view, substantiated the risk of the applicant absconding, given that Article   151 §   3 of the Code of Criminal Procedure (“the CCP”), as in force at the material time, provided that the seriousness of an offence could constitute grounds for the imposition of pre-trial detention. 10.   On 25 March 2005 amendments were introduced to Article 151 §§   1 and 4 of the CCP; those amendments, inter alia , provided that, subject to assessment by the national courts, pre-trial detention should in principle only be the last resort in cases where it is demonstrated that a more lenient measure of restraint would not suffice in view of the profile of the accused and the concrete circumstances of the case in question. 11.     On 18 May 2005 the Investigative Panel of the Tbilisi District Court, having heard the prosecutor’s argument that more time was needed to finalise the investigation, extended the applicant’s pre-trial detention for another two months, until 22 July 2005. The court did not address the question of whether the required investigative actions could be conducted without the applicant’s continued detention. The applicant’s reasons for his objection to any prolongation (his good reputation and family situation; the absence of previous convictions; and formal assurances from several public persons, including a member of parliament) were dismissed by the court. The court also refused an offer made by the Georgian Labour Union to post bail for the applicant in the form of bonds with an approximate value of 680,000   Georgian laris (GEL, approximately 248,300 euros (EUR)), reasoning that, under Article 168 § 3 of the CCP, persons being charged with serious offences were not subject to release on bail. 12.     On 23 May 2005 the Appeals Chamber of the Tbilisi District Court upheld the order of 18 May 2005. Like the lower-instance court, the appellate court did not address the possibility of imposing a more lenient measure of restraint in order to ensure the aims of the investigation. 13.     On 15 June 2005 the applicant requested that his pre-trial detention be replaced by a more lenient measure of restraint. The prosecutor agreed to the applicant’s request. 14.     On 9 July 2005 the Tbilisi District Court released the applicant on bail on payment of a security of GEL 5,000 (approximately EUR 1,800). When ordering his release, the court took into consideration the applicant’s good references and the fact that he had fully compensated the injured party for the damage caused by his allegedly fraudulent activities. 15.   At the time of submission of the present application, while the applicant contended that he was unable to have certain unspecified witnesses examined and to obtain expert opinions pertinent to his case, the criminal proceedings against him were still pending. II.     RELEVANT DOMESTIC LAW 16.     The relevant provisions of the Code of Criminal Procedure concerning pre-trial detention are summarised in the case of Patsuria v.   Georgia (no. 30779/04, § 32, 6 November 2007), and Giorgi Nikolaishvili v.   Georgia (no. 37048/04, §§ 35 and 36, 13 January 2009). THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION 17.     The applicant complained about the unreasonableness of his pre-trial detention and the lack of sufficient reasoning in decisions ordering his detention, in breach of Article 5 § 3 of the Convention, the relevant part of which reads 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.” A.     Admissibility 18.     The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B.     Merits 19.     The Government submitted that the decisions of 25 February and 18   May 2005, the latter as upheld by the appellate court decision of 23   May 2005, concerning the applicant’s initial placement in pre-trial detention and the subsequent prolongation of his pre-trial detention were justified for the same reasons as those referred to by the national courts in their respective decisions. 20.     The applicant disagreed and maintained that, when ordering his pre-trial detention, the national courts had relied solely on the gravity of the charges brought against him, without taking into consideration any other relevant factors. 21.     The Court observes that the applicant was placed in pre-trial detention on 25 February 2005 and that he was released on bail on 9   July 2005, pending trial. Thus, the duration of the impugned pre-trial detention was four months and thirteen days. 22.     Whilst the length of that detention was not obviously excessive, the Court recalls that its reasonableness cannot be assessed in abstracto . Whether it is reasonable for an accused to remain in detention must be assessed in each case, according to its particular features. Continued detention can be justified in a case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty. In each such case, it is essentially on the basis of the reasons given in the relevant decisions of the national judicial authorities and of the arguments made by the applicant in his or her application for release that the Court is called upon to decide whether or not the pre-trial detention in question was justified under Article 5 § 3 of the Convention (see, for example, Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV; Kudła v.   Poland [GC], no. 30210/96, § 110, ECHR 2000‑XI; and Michta v.   Poland , no. 13425/02, §§ 45 and 46, 4 May 2006). Those decisions must contain “relevant” and “sufficient” reasoning and address the specific features of the case in question in order for the deprivation of liberty to be justified (see Ječius v. Lithuania , no. 34578/97, § 93, ECHR 2000‑IX). 23.     In other words, Article 5 § 3 of the Convention cannot be seen as authorising pre-trial detention unconditionally, even if the period of such detention is short. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see Belchev v.   Bulgaria , no. 39270/98, § 82, 8 April 2004; Sarban v. Moldova , no.   3456/05, § 97, 4 October 2005; Patsuria v. Georgia , no. 30779/04, §   66, 6   November 2007; and Giorgi Nikolaishvili v. Georgia , no. 37048/04, §   75, 13   January 2009), which, moreover, are obliged to ensure “special diligence” in the conduct of the proceedings (see Jablonski v. Poland , no.   33492/96, §   80, 21 December 2000). 24.     The Court notes that in the present case, the Supreme Court’s decision of 25 February 2005 authorised the applicant’s pre-trial detention solely on the basis of the gravity of the charges, which, in the Supreme Court’s view, per se substantiated the risk of the applicant absconding. The Supreme Court did not assess either the arguments put forward by the applicant in support of his release or any other relevant factors which might have either confirmed the existence of a danger of his absconding or indicated that such a risk was so slight that it could not justify detention pending investigation (see Khudoyorov v. Russia , no. 6847/02, § 181, ECHR 2005 ‑ X (extracts)). 25.     The Supreme Court thus followed the established judicial practice in Georgia at the time: as long as the indictable offence in question carrying a severe sentence represented in itself a ground for pre-trial detention, there was no need to demonstrate the existence of any other grounds warranting that measure. Such an approach is hardly compatible with Article 5 § 3 of the Convention (see Patsuria , cited above, §§ 67-71; Panchenko v. Russia , no.   45100/98, §   102, 8 February 2005; and Rokhlina v. Russia , no.   54071/00, §   66, 7 April 2005). 26.     As to the extension of the applicant’s initial detention by the decisions of 18 and 23 May 2005, the national authorities should have shown an even higher degree of “special diligence” since, after the lapse of three months, the mere persistence of a reasonable suspicion that the applicant had committed an offence could no longer suffice (see Labita , cited above, §   153, and Idalov v. Russia [GC], no. 5826/03, § 140, 22   May 2012). However, instead of trying to establish convincingly the existence of concrete facts justifying the continued detention of the applicant (see Nikolov v. Bulgaria , no. 38884/97, §§ 73 and 74, 30 January 2003), the national courts limited themselves to the general and abstract declaration that the extension of the detention was necessary to ensure the aims of the investigation. The national courts did not, contrary to the requirements of Article 151 of the CCP, as amended on 25 March 2005, address the question of whether a more lenient measure of pre-trial restraint could suffice (see Idalov , cited above, § 147). 27.     The foregoing considerations are sufficient to enable the Court to conclude that by failing to address the specific facts of the applicant’s case or to consider alternative non-custodial pre-trial measures, and by relying essentially on the gravity of the charges, the authorities imposed and maintained the applicant’s detention on grounds which cannot be regarded as “relevant” or “sufficient”. 28.     There has accordingly been a violation of Article 5 § 3 of the Convention. II.     OTHER ALLEGED VIOLATIONS OF THE CONVENTION 29.     Citing Article 5 §§ 1, 2 and 4 of the Convention, the applicant complained that the duration of his initial arrest as a suspect prior to his being charged (from 3.50 pm on 19 February 2005 to 4.00 pm on 22   February 2005) exceeded by ten minutes the statutory time-limit of 72   hours. The Court considers that this complaint should be examined solely under Article 5 § 1 of the Convention. The Court further notes that nothing in the case file suggests that this complaint has been raised at the national level and it should therefore be declared inadmissible on the grounds of non-exhaustion of domestic remedies. 30.     Under Article 6 § 3 of the Convention the applicant moreover complained in substance that he was unable to have certain unspecified witnesses examined and to obtain expert opinions relating to the criminal proceedings pending against him. The Court notes that at the time of the submission of the present application those criminal proceedings were still pending and that this complaint was thus premature at the time. Neither prior to giving notice of the present application to the Government on 30   April 2007 nor after the communication of the case has the applicant lodged with the Court any additional submissions concerning this complaint. Thus, the Court, inasmuch as it is able to assess the complaint on the basis of the material available in the file and being mindful that those domestic proceedings should have become final by now, finds the complaint under Article 6 §   3 of the Convention unsubstantiated. 31.     Therefore the Court declares the above complaints under Articles   5 §   1 and 6 § 3 inadmissible, in accordance with Article 35 §§ 1, 3 (a) and 4 of the Convention. III.     APPLICATION OF ARTICLE 41 OF THE CONVENTION 32.     Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A.     Damages 33.     The applicant claimed 23,000 United States dollars (USD, approximately 20,900 euros (EUR)) in pecuniary damages, stating that his pre-trial detention had led to his having to suspend his professional activities as a practising lawyer and left him without the income that he would have normally earned. He also claimed EUR 500,000 in non-pecuniary damages in respect of the distress he and his family had suffered because of his being placed in pre-trial detention. 34.     The Government contested this claim. 35.     The Court notes that the applicant has not submitted any material indicating any discernible causal link between the violation found and the pecuniary damage alleged. The Court therefore rejects this claim. At the same time, as regards the claimed non-pecuniary damages, the Court has no doubt that the applicant suffered distress and frustration on account of the national authorities’ decision to hold him in custody for four months and thirteen days without sufficient reasons (see Patsuria , cited above, § 99). Making its assessment on the basis of equity, the Court awards the applicant EUR   1,000 in respect of non-pecuniary damages. B.     Costs and expenses 36.     The applicant made no costs claim. Accordingly, the Court considers that there is no call to award him any sum on that account. C.     Default interest 37.     The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points. FOR THESE REASONS, THE COURT, UNANIMOUSLY, 1.     Declares the complaint concerning Article 5 § 3 of the Convention admissible and the remainder of the application inadmissible;   2.     Holds that there has been a violation of Article 5 § 3 of the Convention;   3.     Holds (a)   that the respondent State is to pay the applicant, within three months, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage, to be converted into the currency of the respondent State at the rate applicable at the date of settlement; (b)     that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period, plus three percentage points;   4.     Dismisses the remainder of the applicant’s claim for just satisfaction. Done in English, and notified in writing on 7 June 2016, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.   Fatoş Aracı   Krzysztof Wojtyczek Deputy Registrar   President