Prolongation of temporary detention for a period longer than the legal one, due to a new charge for another crime. Violation of personal freedom
JUDGMENT
Okropiridze v. Georgia 02.11.2023 (app. no. 53974/15)
SUMMARY
Illegal and arbitrary temporary detention.
In 2014 the applicant was arrested and charged with aggravated murder and remanded in custody, which by law could not last more than 9 months and would therefore end on 11 June 2015. However, on 9 June 2015 the applicant was remanded in custody new for another crime (false accusation). The applicant appealed against his pre-trial detention in relation to the second criminal case, arguing that the sole reason for re-opening the investigation was to prevent his release after the expiry of his pre-trial detention in relation to the first criminal case.
Ultimately the applicant was convicted of the act of murder and acquitted of the act of false accusation.
According to the Court, the time and circumstances in which the second criminal case was re-examined against the applicant and his second pre-trial detention was requested on 9 June 2015, just a few days before the expiry of the maximum period of pre-trial detention applied in relation to first criminal case on June 11, 2015, seems to be problematic.
The ECtHR found that the provisional detention of the applicant in the second case violated Article 5 § 1 of the ECHR, as the authorities acted in a way that did not ensure his protection from arbitrariness and awarded 1,800 euros for moral damage and 1,500 euros for costs.
PROVISION
Article 5 par. 1
PRINCIPAL FACTS
The application, lodged under Article 5 §§ 1 and 3 of the Convention, concerns the allegedly unlawful and arbitrary pre-trial detention of the applicant.
On 12 September 2014 the applicant was arrested and charged with aggravated murder (“the first criminal case”). On 13 September 2014 he was placed in pre-trial detention with the statutory maximum time-limit of nine months for pre-trial detention expiring on 11 June 2015.
On 9 June 2015 the applicant was remanded in custody in connection with new charges of making false accusations (“the second criminal case”). The second criminal case concerned events which took place in September 2014 when the applicant had alleged that he had been ill-treated in prison. After taking several investigative actions the prosecutor in charge of the investigation had decided not to proceed with the case for lack of evidence. The relevant investigation was discontinued on 13 October 2014 only to be reopened on 6 June 2015. The reason for the reopening referred to in the prosecution decision was that although the applicant’s allegations of ill‑treatment had been thoroughly investigated, the investigation had omitted to consider whether the applicant had committed the criminal offence of making false accusations.
The applicant appealed against his pre-trial detention in connection with the second criminal case, arguing that the only reason for the reopening of the investigation, almost eight months after it had been closed, was to prevent his release after the expiry of his pre-trial detention in connection with the first criminal case. He submitted that with the pre-trial detention ordered in the second criminal case, the statutory maximum period of nine months for detention on remand, as provided for in Article 205 § 2 of the Code of Criminal Procedure and Article 18 of the Constitution, had been exceeded. On 12 June 2015 the Tbilisi Court of Appeal upheld the decision on the applicant’s pre-trial detention.
On 29 July and 18 September 2015, the Tbilisi City Court rejected requests by the applicant for release. It held that the nine-month period was to be calculated separately for each set of criminal proceedings and that there were relevant and sufficient reasons justifying the applicant’s continued detention for the purposes of the second criminal case.
In the meantime, on 15 September 2015 the Constitutional Court of Georgia delivered a decision in the case of Giorgi Ugulava v. the Parliament of Georgia, finding that the “normative content” of Article 205 § 2 of the Code of Criminal Procedure, which could be understood as allowing repeated imposition of the nine-month time-limit separately in parallel criminal proceedings without any safeguards against arbitrariness, was unconstitutional. The Constitutional Court held that the nine-month period could in principle be calculated separately for each set of criminal proceedings, provided that an accused person who was already charged with one offence was subsequently indicted for a further offence committed after he or she had been remanded in custody in relation to the initial charges. What the Constitution proscribed, in its view, was either an intentional delay in charges being brought against a person or the delayed imposition of “consecutive” periods of pre-trial detention, in order to prolong the overall duration of pre-trial detention by counting the nine-month period separately for each consecutive indictment (see Ugulava v. Georgia, no. 5432/15, §§ 47‑48, 9 February 2023).
The applicant’s pre-trial detention ended on 26 December 2015 with the Tbilisi City Court convicting him of aggravated murder in connection with the first criminal case and sentencing him to twenty years’ imprisonment.
On 10 November 2017 the applicant was acquitted of the charges brought in connection with the second criminal case. His acquittal was upheld on appeal by the Tbilisi Court of Appeal and the Supreme Court of Georgia on 23 April and 7 November 2018 respectively.
THE DECISION OF THE COURT…
- ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
The applicant alleged that his pre-trial detention in connection with the second criminal case, after the expiry of the statutory maximum time-limit of nine months for such detention, had been unlawful and arbitrary. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.
The relevant general principles relating to Article 5 § 1 of the Convention were summarised in Merabishvili v. Georgia ([GC], no. 72508/13, §§ 181-86 and 22-25, 28 November 2017; see also Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, §§ 198-200, 27 August 2019).
In Ugulava, having examined an identical complaint, the Court found a violation of Article 5 § 1 of the Convention. The Court considers that its analysis in Ugulava also applies to the present application and sees no reason to reach a different conclusion. In particular, the pre-trial detention of the applicant, in connection with two separate criminal cases, exceeded the statutory maximum time-limit of nine months, and overall, he spent more than fifteen months in pre-trial detention. The Court considers that the timing and circumstances in which the second criminal case was reopened against the applicant and his second pre-trial detention was sought on 9 June 2015, just a few days before the maximum detention period applied in connection with the first criminal case was about to expire on 11 June 2015, appears to be problematic. Even assuming that the reopening of the second criminal investigation was done in good faith, it is still not clear – and the lack of substantiation in the relevant court decisions reinforces this uncertainty – why it was necessary to impose pre-trial detention when the main evidence in the case had already been collected back in 2014. In view of the above-mentioned considerations and having regard to the relevant domestic legislation as interpreted by the Constitutional Court in its judgment of 15 September 2015 in the case of Giorgi Ugulava v. the Parliament of Georgia, as well as the relevant case-law of the Court the Court finds that the applicant’s pre-trial detention between 11 June and 26 December 2015 was in breach of Article 5 § 1 of the Convention in that the authorities acted in a manner which did not ensure his protection from arbitrariness.
- OTHER ALLEGED VIOLATIONS OF ARTICLE 5 OF THE CONVENTION
The applicant further complained under Article 5 § 3 of the Convention that no relevant and sufficient reasons had been given in the detention orders of 29 July and 18 September 2015, and that his pre-trial detention had been open-ended on account of the fact that neither the initial detention order nor the subsequent decisions confirming the pre-trial detention had set its end date. Having regard to the circumstances of the case and the submissions of the parties, and noting the conclusion it has already reached on the arbitrary nature of the applicant’s pre-trial detention between 11 June and 26 December 2015, the Court considers that it is not necessary to examine the applicant’s remaining allegations under Article 5 of the Convention (see Centre for Legal Resources on behalf of Valentin Câmpeanu v. Romania [GC], no. 47848/08, § 156, ECHR 2014).
Just Satisfaction: The ECtHR awarded the applicant 1,800 euros for non pecuniary damage and 1,500 euros for costs (edited by: chirdarisv@gmail.com).
