The conversion of a criminal charge that had been decriminalized to another with a more severe sentence and the failure to provide sufficient time to prepare the defense violated the fair trial.
Gelenidze v. Georgia 07.11.2019 (no. 72916/10)
Lenient law and unauthorized conversion of a charge.
The applicant judge was convicted of intentionally miscalculating the sentence of imprisonment. Although convicted at first instance, her act under more lenient law was decriminalized. Before the Court of Appeal, the Prosecutor applied for the conversion of the charge into a criminal offense and was sentenced to 2 years in prison, while she was not informed of the conversion of the charge and was given only one day to prepare her defense. The domestic courts did not respond to her objection to the unauthorized conversion of the charge.
According to the Court:
(a) The right of the accused to prepare his/her defense implies the right to be informed not only of the facts of the criminal proceedings but also of the legal characterization given to the acts allegedly committed;
(b) any arbitrary conversion of the category violates the equality of arms.
It subsequently held that the failure to grant the applicant the opportunity to adjust her defense to the new charges and the Court’s inability to remedy the deficiencies in the proceedings before the Court of Appeal violated the equality of arms and the principles of fair trial. Violation of Articles 6 & 1 and & 3 (a), (b).
Article 6 par. 1 and 3 (α) and (b)
The applicant, Manana Gelenidze, is a Georgian national who was born in 1962 and lives in Tbilisi.
The case concerned her complaint of the unfairness of criminal proceedings brought against her for
delivering an unlawful decision when she had been a judge.
Ms Gelenidze was convicted in 2006 of deliberately miscalculating the prison term of a person whom
she had convicted and sentenced to two years’ imprisonment.
She had fled Georgia during the preliminary investigation, but was arrested on her coming back to
the country in July 2009. Following her arrest, she appealed, arguing that the offence of which she
had been convicted had in the meantime been decriminalised.
However, at an appeal hearing in October 2009 the Kutaisi Court of Appeal accepted the
prosecutor’s request to reclassify her offence to abuse of office, and amended her conviction. She
was sentenced to two years’ imprisonment.
She brought two complaints under Article 6 §§ 1 and 3 (a) and (b) (right to a fair trial / right to be
informed promptly of the accusation against him/her / right to adequate time and facilities for
preparation of defence) of the European Convention. First, she alleged that the legal reclassification
of the offence for which she had been convicted had been arbitrary and, secondly, she complained
that she had not been given adequate time to adjust her defence to the new charges because the
prosecutor’s application to reclassify her offence had been submitted on the last day of the appeal
THE DECISION OF THE COURT
The applicant’s complaint under Article 6 of the Convention is twofold: firstly, the application of the prosecution and the ensuing decision of the appeal court to amend the legal qualification of the offence of which she had been convicted were arbitrary; and secondly, the applicant was not given adequate time to adjust her defence to the new, requalified charges.
With regard to the first limb of the applicant’s complaint, the Government relied on a number of legal provisions in their observations, in particular Article 24 § 8, Article 285, and Article 490 § 3 of the CCP, in accordance with which, they claimed that at the appeal stage of the proceedings the prosecution had been authorised to request that the applicant’s offence be requalified as abuse of office instead of delivery of an unlawful court decision. The applicant challenged as erroneous the interpretation of the above provisions proposed by the Government. The Court is not in a position to act as a court of fourth instance and provide its own interpretation of the provisions in question. However, it does consider necessary to point out the following: the Kutaisi Court of Appeal left the applicant’s pertinent argument about the wrongfulness of the prosecutor’s application unanswered. This argument merited a thorough consideration given that Article 540 § 1 of the CCP (prohibition of reformatio in peius) limited the authority of an appeal court to take any decision that was more unfavourable to the convicted person within the scope of the appeal initiated by the latter . In this connection, paragraph 2 of the same provision added that the scope of the examination by the court of appeal was limited to the charges brought against a defendant at the pre-trial investigation stage and subsequently maintained in the first-instance proceedings . The Court observes that this complaint was also explicitly voiced by the applicant in her appeal on points of law . However, the Supreme Court of Georgia rejected her appeal as inadmissible, thus failing to fill the gap in the reasoning of the appeal court.
In their observations the Government argued that Article 336 was a lex specialis in relation to Article 332 of the Criminal Code. Thus, from their perspective, there had been no requalification of the offence stricto sensu, and no overstepping of the scope of the initial charges. The Court cannot accept this argument. First of all, it is in conflict with the rationale of the decriminalisation bill prepared and adopted by the legislature. Notably, the explanatory note of the relevant bill made it explicit that the purpose of the proposed amendments was to remove criminal responsibility from the act of delivering an unlawful court decision and/or judgment . Furthermore, the Court notes that the only charge brought against the applicant in the prosecutorial decision of 26 October 2005 committing her for trial before a criminal court was delivery of an unlawful court decision . No reference was made to other potential charges or the lex specialis nature of Article 336 vis-à-vis Article 332. Thus, the investigation conducted with respect to the applicant was confined to the offence of delivery of an unlawful court decision. The same holds true for the subsequent court proceedings conducted against the applicant in absentia. The wording of the relevant judgments indicates that the issue of the applicant possibly being convicted of abuse of office in the alternative was not aired at all . Against this background, following the appeal lodged by the applicant, the Kutaisi Court of Appeal simply replaced one offence with another. It did so without considering the evident differences between the definitions of the two offences under the Georgian law. Thus, the corpus delicti of the offence under Article 336 was the delivery of an unlawful judgment or court decision without any element of improper motive, which was, however, an element intrinsic to the offence of abuse of office under Article 332.
This line of reasoning of the appeal court is particularly striking in the Court’s view, as Article 3 of the Criminal Code explicitly provided for the retrospective application of a decriminalising criminal law . Article 28 of the CCP also provided for the compulsory termination of proceedings in the event of an act being decriminalised, unless the accused was willing to proceed with the trial. Even in such a case, the law provided that, if convicted, that person had to be released from serving a sentence. By simply omitting the above provisions from its reasoning and by failing to examine their applicability to the particular circumstances of the applicant’s case, the appeal court, with the silent post factum approval of the Supreme Court, rendered its decision procedurally and substantially unfair.
This brings the Court to the second limb of the applicant’s complaint under Article 6 of the Convention which is the breach of her defence rights on account of the manner her offence was requalified. The Court recalls that the right of an accused person to prepare his or her defence implies the right to be informed not only of the cause of the accusation but also of the legal characterisation given to acts he or she is alleged to have committed. In the present case the new qualification, which was proposed by the prosecution during the appeal proceedings, was aired for the first time at the concluding hearing of the appeal proceedings in circumstances impairing the applicant’s chances to defend herself in respect of the new charge. Thus, the court of appeal did not warn the applicant that her offence could be requalified. The hearing was not adjourned for further argument and the elements of the new offence were not debated in court . In any event, as already noted above, the prosecutor’s proposal for the requalification was flawed from the procedural point of view, a point duly noted by the applicant in the course of the proceedings. In such circumstances it cannot be said that the applicant should have anticipated the requalification of her offence.
The Court cannot speculate as to the merits of the defence the applicant could have relied on had she had an opportunity to make targeted submissions on the offence which she was eventually found guilty of. However, given the differences between the definitions as already noted above, the Court considers that the defence would have been different from the defence lodged in her appeal against the conviction under Article 336 of the Criminal Code.
To sum up, the Kutaisi Court of Appeal did not afford the applicant the possibility of adjusting her defence to the new charges. As for the Supreme Court, which was able to review the case in full, it failed to cure the defects of the appeal proceedings by rejecting the applicant’s appeal on points of law as inadmissible.
In view of the above findings, the Court concludes that the manner in which the applicant’s offence of which she had been initially convicted was requalified by the appeal court was arbitrary and in violation of the principle of equality of arms . The Supreme Court failed to remedy the arbitrary decision taken by the appeal court. The Court therefore concludes that there has been a violation of Article 6 §§ 1 and 3 (a) and (b) of the Convention in the present case.
Violation of Article 6 §§ 1 and 3 (a) and (b)
Just satisfaction: EUR 5,000 for non-pecuniary damage(echrcaselaw.com).