The amendment of a decision with a change in the date of commencement of the merging sentence in absentia of the accused violated the right to a fair trial.

JUDGMENT 

Kereselidze v. Geogia 28.03.2019 (no. 39718/09)

see here

SUMMARY

Amendment of the starting of a period for calculating a prison sentence in absentia of the accused. Extending the applicant’s detention, since, as a result of an amendment, the date of commencement of the sentence was calculated as the date of the imposition of the sentence rather than that of the commission of the offense. According to the European Court of Human Rights, the way in which the procedure for amending the conviction was applied to the accused, who was denied the opportunity to present his arguments regarding the change in the starting date of his sentence, had rendered the criminal proceedings against him unfair. Infringement of Article 6 (1) ECHR.

PROVISIONS 

Article 6

Article 5

PRINCIPAL FACTS 

The applicant, Irakli Kereselidze, is a Georgian national who was born in 1975. The case concerned
his complaint about the manner in which the starting date of a cumulative sentence imposed on him
had been calculated.

In March 2002, while serving a 20-year sentence for aggravated double murder, he attempted to
escape.

After a series of decisions, he was convicted in April 2006 of attempted escape. His outstanding
sentence from the murder conviction was added to the new sentence, resulting in a cumulative
sentence of 13 years and six months, with a starting date of March 2002, namely the date on which
he had committed the second offence. In 2008, while proceedings regarding his second conviction
were pending before an appellate court, the Supreme Court confirmed the starting date of the
cumulative sentence as part of its decision to reduce the length of his first sentence for aggravated
double murder. That sentence was to expire in September 2010.

However, in April 2009, following a legislative amendment, the Court of Appeal, in a written
procedure, rectified the starting date of the cumulative sentence to April 2006, that is to say the
date of the imposition of the sentence for the second offence. The Supreme Court upheld this
decision, stating that Mr Kereselidze’s sentence was due to expire in April 2013. Mr Kereselidze
became aware of the rectification in question after the Supreme Court reached its final decision.
He subsequently requested a rectification of the Supreme Court’s decision and lodged an
interlocutory appeal on points of law, arguing that the change to the starting date for his cumulative
sentence lacked a legal basis and had substantially affected the duration of his sentence. Both
challenges were unsuccessful.

He was amnestied and released from prison before his sentence was due to expire, in January 2013.

Relying on Article 5 § 1 (right to liberty and security) of the European Convention on Human Rights,
Mr Kereselidze complained that the decision to rectify the starting date of his cumulative sentence
had unduly prolonged his imprisonment beyond September 2010, and had rendered his detention
unlawful. He also alleged, in particular under Article 6 § 1 (access to court), that he had not been
given the opportunity to make either oral or written submissions regarding the rectification
procedure, despite the substantial impact the change in starting date had had upon the duration of
his sentence.

THE DECISION OF THE COURT 

Violation of Article 6 § 1

Fair Trial 

(a) Application – The rectification in the applicant’s conviction by the Appellate Court as regards the date of commencement of the sentence has had an impact on the expected date of his release. The question whether the error made in the earlier judgments was sufficiently obvious and whether it could be corrected by the correction procedure appears, at least, to be open to interpretation. Accordingly, the procedure for the rectification, as applied to the applicant, was capable of affecting the determination of the applicant’s sentence in the criminal proceedings pending before him. Article 6 § 1 therefore applies.

b) merits  – the applicant’s arguments regarding the particular circumstances of his case – such as the existence of an earlier decision of the Supreme Court, concerning the starting date of his cumulative sentence (a decision which had never been explicitly set aside), whether the appellate court had exceeded the scope of Article 615 of the CCP (which regulated the scope of rectifications), and whether the rectified appellate decision had amounted to a worsening of his legal situation in breach of Article 540 of the CCP  – rendered the applicant’s case against the rectification at least arguable and called for it to be considered by the domestic courts as part of adversarial proceedings.

Against this background, the Court notes that the rectified appellate decision did not involve the applicant and was served on him only on 16 April 2009, after the Supreme Court had already reached a final decision on the applicant’s case on 7 April 2009 . It is true that the Supreme Court had been aware of the rectified appellate decision and appears to have endorsed it when expressly taking note of the corrected starting date of the applicant’s cumulative sentence. However, at the time that the rectified appellate decision was delivered by the appellate court, the applicant’s appeal on points of law had already been sent to the Supreme Court . Furthermore, considering that the Supreme Court had decided the matter without holding an oral hearing , the applicant had effectively been precluded from becoming aware of the rectified appellate decision and from presenting his arguments, as part of his appeal or separately, regarding the revised starting date of his cumulative sentence and its compliance with domestic law. When becoming aware of it and requesting the rectification of the decision of the Supreme Court of 7 April 2009 he was not heard by a judge. His request was first rejected by the Head of the Registry of the Chamber of Criminal Cases of the Supreme Court on 24 April 2009 with the argument that the Supreme Court was not in a position to address the applicant’s complaint and then by the assistant to the Chairman of the Tbilisi Court of Appeal on 15 June 2009 with the argument that the interlocutory appeal on points of law could not be accepted for consideration.

 In the light of the foregoing, the Court considers that whether the matter is considered from the perspective of the right of access to a court or the right to an oral hearing, the crux of the matter, in any event, is that the manner in which the rectification procedure was implemented in respect of the applicant, depriving him of the opportunity to present his arguments regarding the alteration of the starting date of his cumulative sentence, either orally or in writing, rendered the criminal proceedings against him unfair within the meaning of Article 6 § 1 of the Convention.

The above considerations are sufficient for the Court to conclude that there has been a violation of Article 6 § 1 of the Convention

Non violation of article 5 § 1

Legal arrest or detention

Article 5:  The applicant was deprived of his liberty after conviction by a competent court. The question was whether the previous amendment to the date of the applicant’s commencement by an Appellate Court, in a procedure which the Court had already held to constitute an infringement of Article 6, also infringed the requirement of ‘legality’ in Article 5 § 1.

The question was whether the detention of the applicant, which had been prolonged because of the change in the date of commencement of his sentence, was ‘lawful’. The question was whether the error of the national courts regarding the starting date of the sentence was obvious and the correction was therefore expected and allowed by the law and practice in force at the time of the facts or if the correction had exceeded limits of the relevant law.

On the one hand,  the Criminal Code, as it stood at the time that the applicant committed the second offence, did not explicitly specify the starting date of a cumulative sentence. On the other hand, the subsequent rectification appears to have been based, albeit implicitly, on Article 59 of the Criminal Code as amended on 29 December 2006, which clearly set the date of the imposition of the later sentence as the starting date for any cumulative sentence. In that connection, the Court further takes note of the Supreme Court’s decision of 20 January 2009 in a different case, clarifying that Article 59 of the Code could have retroactive effect . That decision predated both the rectification decision of the appellate court dated 3 April 2009 and the final decision of the Supreme Court in the applicant’s case dated 7 April 2009 . Therefore, while the question regarding the foreseeability of the law in respect of the starting date of a cumulative sentence was not addressed by the domestic courts, the rectification appears to have followed a clarification offered by the Supreme Court in another case. In such circumstances, it is not for the Court to speculate on the legality of the applicant’s detention beyond 29 September 2010, which was ordered by the Supreme Court in accordance with the law and practice in force at the material time. Therefore, the Court does not find that the applicant’s detention was ex facie in breach of the domestic law.

Under those circumstances, it was not for the Court to make any assumptions as to the legality of the applicant’s detention beyond 29 September 2010, ordered by the Supreme Court in accordance with the legislation and practice in force at the time of the facts. Therefore, the detention of the applicant was not prima facie unlawful in domestic proceedings.

The Court had already rejected the argument that any violation of Article 6 had resulted in a violation of Article 5 § 1. While the Court had found a violation of Article 6, it did not consider that the breach was such that it irretrievably affected the essence of the right guaranteed by this article. Consequently, violation of Article 6 does not amount to a manifest negation of justice.

The detention of the applicant is therefore justified on the basis of Article 5 § 1 (a) of the Convention.

Just satisfaction: € 1,500 for non-pecuniary damage and € 2,370 for costs  and expenses (echrcaselaw.com editing).


ECHRCaseLaw

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