FIFTH SECTION

DECISION

Application no. 9013/12 Bakur KIGHURADZE against Georgia

The European Court of Human Rights (Fifth Section), sitting on 12 November 2020 as a Committee composed of:

Ganna Yudkivska, President, Stéphanie Mourou-Vikström, Lado Chanturia, judges, and Martina Keller , Deputy Section Registrar ,

Having regard to the above application lodged on 1 February 2012,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Bakur Kighuradze, is a Georgian national who was born in 1955 and lives in Tbilisi. He was represented before the Court by Mr I. Baratashvili, a lawyer practising in Tbilisi.

2 . The Georgian Government (“the Government”) were represented by their Agent, Mr B. Dzamashvili of the Ministry of Justice.

3 . The facts of the case, as submitted by the parties, may be summarised as follows.

4 . On 13 July 2010 the applicant was arrested on suspicion of espionage. It appears from the material available to the Court that the criminal case file was classified on the grounds that it contained information on State secrets.

5 . By a judgment of 7 March 2011, the Tbilisi City Court found the applicant guilty as charged after a trial held in camera. According to the parties ’ submissions to the Court, the trial court had granted the prosecutor ’ s request to hold the proceedings in camera on the grounds that the case file contained information concerning national security. The applicant was sentenced to nine years ’ imprisonment. He appealed on an unspecified date.

6 . On 1 July 2011 the Tbilisi Court of Appeal held a hearing in camera and upheld the applicant ’ s conviction of 7 May 2011 in full.

7 . In parallel to the criminal proceedings the applicant appears to have lodged separate unsuccessful applications before the domestic courts, most recently on 19 September 2011 before the Supreme Court, requesting them to open separate administrative proceedings to declassify the criminal case file.

8 . On 18 October 2011 the Supreme Court declared the applicant ’ s subsequent appeal on points of law inadmissible.

9 . The material in the case file available to the Court does not contain copies of the relevant decisions, judgments, or minutes of the proceedings before the domestic courts.

(a) Preparation of the application

10 . On 21 November 2011 two lawyers applied to the Tbilisi City Court on behalf of the applicant for permission to have access to his case file and to photocopy material therein with a view to lodging an application with the Court.

11 . On 25 November 2011 a registrar of the Tbilisi City Court in charge of secret proceedings replied to the applicant ’ s lawyers, noting that they were allowed unlimited access to the case file. As for making copies of the material therein, the applicant ’ s lawyers were instructed to first make a request to the Ministry of the Interior to obtain special security clearance for working on such files, as per the procedure established under sections 20 and 23 of the State Secrets Act (see paragraph 28 below).

12 . On 30 November 2011 the applicant ’ s lawyers applied again to the Tbilisi City Court and asked whether they were at risk of incurring criminal liability if they disclosed facts and evidence from the applicant ’ s classified criminal case (to which access had been granted as per the registrar ’ s letter of 25 November 2011; see paragraph 11 above) in the proceedings before the Court. They also enquired whether the criminal case file had been classified in its entirety or only partially and, if only partially, which particular parts had been classified.

13 . On 5 December 2011 the President of the Tbilisi City Court responded that, in accordance with the State Secrets Act, if part of a case file contained information on State secrets, the entire case file was classified. As to the remaining questions, they were beyond the remit of the Tbilisi City Court.

14 . On 13 December 2011 the applicant ’ s lawyers applied once more to the Tbilisi City Court. They reminded the court of the State ’ s obligations under Article 34 of the Convention. In order to substantiate their application to the Court, the applicant ’ s lawyers requested to be allowed to make copies of those files which were not considered sensitive and, in any event, of the copies of the relevant judgments which, in their submission, should in any event have been pronounced publicly, in accordance with the relevant domestic legislation and Article 6 of the Convention. While admitting that they had not yet made use of their right to access the case file, the applicant ’ s lawyers further enquired which particular authority had made the decision to classify the material in the case file. They also repeated their question concerning their potential criminal liability for divulging sensitive information in their application to the Court.

15 . On 14 December 2011 the Tbilisi City Court responded with the following information: (a) the applicant ’ s lawyers had been granted full access to the case file, and therefore no issue could arise in respect of a possible violation of Article 34 of the Convention; (b) Presidential Decree no. 42 set out a list of authorities authorised to mark information as secret; (c) Decree no. 42 also provided that classifying part of a case file as secret entailed as a consequence that the whole file was to be treated as secret; (d) while court decisions were pronounced publicly, such a requirement concerned only their operative parts rather than entire decisions and did not in and of itself render entire decisions fully public; and (e) as regards the question of possible criminal liability for disclosing facts and evidence from the case to the Court, it was not within the remit of the Tbilisi City Court to give a general interpretation of the domestic law which did not relate to an ongoing case before it, such interpretation being rather within the competence of the legislative body.

16 . On 23 December 2011, enclosing the letters of 5 and 14 December 2011 (see paragraphs 13 and 15 above) with their application, the applicant ’ s lawyers requested Parliament to clarify whether criminal responsibility could be incurred for disclosing information from the applicant ’ s classified case file in the proceedings before the Court. They do not appear to have received a response.

(b) Reopening of the criminal proceedings: information received after notice of the application was given to the Government

17 . On 21 February 2017, having conducted a preliminary assessment of the admissibility of the application, the Court decided to give notice to the Government of the part of the application relating to the applicant ’ s complaints under Article 6 § 1 that the proceedings had not been held in public and that the relevant judgments had not been pronounced publicly, and under Article 34 of the Convention concerning the alleged denial of access to the classified materials necessary for submitting the application to the Court.

18 . On 31 July 2017 the Government submitted their observations. They informed the Court, inter alia , that on 13 January 2013 the applicant had been released from prison under the 2012 Amnesty Act (see paragraphs 23 ‑ 24 below) on the grounds of having been declared a “political prisoner” by Parliament. Furthermore, in the Government ’ s submission, a new remedy had been created at the domestic level entitling persons with that status, or a prosecutor on their behalf, to request the reopening of the relevant criminal proceedings and, if acquitted following the new trial, to the right to claim compensation for damage. In the applicant ’ s case, a prosecutor had requested the reopening of the proceedings on the applicant ’ s behalf, and the relevant proceedings were pending. The Government stated that the applicant ’ s omission to inform the Court of these developments had amounted to an abuse of the right of individual application.

19 . On 31 October 2017 the applicant submitted his observations in reply. Among other things, he noted that the remedy referred to by the Government had only become effective on 22 June 2016, when the Code of Criminal Procedure had been amended to allow the reopening of criminal cases of persons in situations such as his (see paragraph 25 below). It had therefore been on 28 February 2017 that a prosecutor had applied to the Tbilisi Court of Appeal on the applicant ’ s behalf to have his case reopened. As those proceedings were still ongoing, the applicant ’ s omission to inform the Court of the interim developments could not, in his submission, constitute an abuse of the right of application.

20 . On 26 June 2019 the applicant provided the Court with a copy of the Tbilisi Court of Appeal ’ s final judgment of 16 July 2018. It appears from that document that on 1 April 2013, following the applicant ’ s release from prison under the 2012 Amnesty Act (see paragraph 24 below) and his application for the reopening of the criminal proceedings, the Chief Prosecutor ’ s Office had opened a criminal investigation into the applicant ’ s case. It had found that the initial criminal investigation leading to the applicant ’ s conviction had not been objective and complete, inter alia because various witnesses had been forced to falsely testify. The Chief Prosecutor ’ s Office had therefore requested the Tbilisi Court of Appeal to reopen the case and to acquit the applicant. The Tbilisi Court of Appeal had granted the prosecutor ’ s application to reopen the criminal proceedings. It had carried out a full retrial, questioning the applicant and various witnesses and assessing different items of evidence by means of an oral hearing in camera.

21 . During the hearing before the Tbilisi Court of Appeal on 16 July 2018, the applicant reiterated his version of the events, denying any involvement in espionage. Additionally, several witnesses retracted the earlier statements they had made, upon which the initial conviction had been based, explaining that they had been given under duress, and expert evidence was obtained which re-evaluated various items of evidence gathered as a result of search-and-seizure measures carried out during the initial criminal proceedings against the applicant. As a result of the new trial, on 16 July 2018 the Tbilisi Court of Appeal quashed its final judgment of 1 July 2011 (see paragraph 6 above) and acquitted the applicant. Taking into account the newly emerged circumstances and the witnesses ’ retracted statements, the court found that the applicant ’ s initial conviction had been wrongful. The Court of Appeal further explicitly referred, in the operative part of the judgment, to the applicant ’ s right to claim compensation for any damage suffered, under Article 92 of the Code of Criminal Procedure (see paragraph 26 below).

22 . Neither the applicant nor the prosecutor challenged the Tbilisi Court of Appeal ’ s acquittal judgment of 16 July 2018 within the relevant time ‑ limit of one month. It therefore became final and binding.

23 . On 5 December 2012 Parliament adopted Decree ( დადგენილება ) no. 76 on persons arrested or persecuted on political grounds. The Decree provided that individuals falling under its scope and listed in the appendix were to be absolved of criminal responsibility, and their sentences were to be annulled. It was noted that the relevant implementing legislation would be adopted in due course.

24 . On 28 December 2012 Parliament adopted the Amnesty Act, section 22 of which provided that a person deemed by Parliament to have been arrested or persecuted on political grounds was to be absolved of criminal responsibility and to have his or her sentence annulled. Section 24 provided that “the relevant application for political amnesty provided for in section 22” was to be submitted by the Chief Prosecutor ’ s Office and the Ministry of Prisons.

25 . On 22 June 2016 Article 332 1 of the 2009 Code of Criminal Procedure was amended as follows:

“...

2. In addition to the grounds listed in Article 310 of the present Code [review of judgments based on newly emerged circumstances], a final judgment may also be reviewed in respect of a person deemed to be a political prisoner or a politically persecuted person on the basis of Decree no. 76 of 5 December 2012 of the Parliament of Georgia, if the relevant judgment was delivered before the adoption of the Decree in question and the application [for reopening] is submitted to a court before 1 July 2017.”

26 . Article 92 of the Code of Criminal Procedure provides that any person who has suffered damage as a result of an unlawful procedural measure or decision has the right to claim damages through civil or administrative proceedings. Article 1008 of the 1997 Civil Code provides for a three-year time-limit for lodging such a claim.

28 . Sections 20 and 21(3) of the State Secrets Act provided that the Ministry of the Interior was the authority with the power to grant security clearance for working with classified information. Section 20(2) of the Act provided that the relevant procedure was set out in the Procedure for Designating and Protecting State Secrets. This document was adopted by the 1997 Presidential Decree no. 42, which implemented the State Secrets Act. Among other things, in Chapter III it provided for a procedure for obtaining security clearance and indicated that any refusal to grant clearance to work with State secrets was to be given in writing and duly reasoned. Any such refusal could be appealed against in the courts.

COMPLAINTS

30 . The applicant complained under Article 6 § 1 of the Convention that the criminal proceedings which had resulted in his conviction for espionage had not been held in public.

31 . Relying on Article 34 of the Convention the applicant also complained that the authorities had failed to provide him with copies of documents in his classified case file which he had wished to submit to the Court in support of his application, and had failed to clarify the question of the potential criminal liability his lawyers might have incurred for divulging classified information to the Court.

THE LAW

32 . The applicant complained that the criminal proceedings which had resulted in his conviction for espionage had not been held in public, contrary to Article 6 § 1 of the Convention, the relevant parts of which read as follows:

“In the determination of ... any criminal charge ... everyone is entitled to a ... public hearing ... by an independent and impartial tribunal... Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

(a) The Government

33 . The Government submitted that the applicant had lost his victim status and/or the matter was to be considered to have been resolved, since he had been granted “political prisoner” status and released from prison as a result, and given the fact that the criminal proceedings against him had been reopened at the domestic level. Furthermore, in so far as the reopened criminal proceedings were concerned, the Government submitted that the applicant had had the right to claim compensation for his wrongful conviction and had failed to make use of the relevant domestic remedy.

34 . As concerns the applicant ’ s earlier conviction as a result of criminal proceedings held in camera, the Government referred, without submitting the relevant document to the Court, to the classified minutes of the criminal proceedings before the trial court in which the applicant ’ s lawyer had allegedly agreed to the prosecutor ’ s application to hold the proceedings in camera. Furthermore, in addition to not pursuing the matter before the Supreme Court, the applicant had also failed, according to the Government, to make use of the procedure for declassifying the relevant information.

35 . Finally, the applicant ’ s failure to proactively inform the Court of his release from prison as a result of his political-prisoner status constituted, in the Government ’ s submission, an abuse of the right of application.

(b) The applicant

36 . The applicant initially submitted that, despite the reopening of the criminal proceedings, he had neither lost his victim status nor had the matter been resolved, as the violation of his rights had not been acknowledged at the domestic level and he had not received any compensation for his wrongful conviction. Subsequently, after the Tbilisi Court of Appeal had adopted its acquittal judgment of 16 July 2018 (see paragraphs 20 - 22 above), the applicant submitted that the judgment in question had constituted evidence of the violation of his rights under the Convention, including under Article 6, in the initial set of criminal proceedings against him, and that he maintained his complaint before the Court in that regard. The applicant further submitted in that context that he had been in the process of preparing a claim for damages before the domestic courts on the basis of the right explicitly granted to him by the final judgment of 16 July 2018.

37 . As concerns the exhaustion of domestic remedies in respect of the domestic authorities ’ decision to hold in camera the initial set of criminal proceedings leading to his conviction, the applicant submitted, without elaborating further, that his case had been considered before the domestic courts at three levels of jurisdiction, as a result of which the domestic remedies had been duly exhausted. As to the authorities ’ decision to classify the criminal case file, the domestic courts had not been competent to order its declassification, as evidenced by his unsuccessful applications to that end (see paragraph 7 above).

38 . Finally, as concerns the Government ’ s objection regarding the abuse of the right of application, the applicant submitted that despite being released, the initial set of criminal proceedings against him had still not been reopened when notice of the present application had been given to the Government. Therefore, no abuse of the right of application had taken place as a result of his failure to update the Court on interim developments.

39 . The Court observes at the outset that the initial criminal proceedings which ended with the conviction of the applicant and gave rise to the issue at the core of the present complaint – the domestic authorities ’ decision to hold the hearings in camera and to not pronounce the judgments publicly – were reopened at the domestic level after notice of the present application was given to the Government. The reopened criminal proceedings resulted in the applicant ’ s full retrial and acquittal, and an explicitly formulated right to claim compensation in respect of his wrongful conviction.

40 . The Court takes note of the parties ’ various submissions concerning the admissibility of the present complaint (see paragraphs 33 - 38 above). However, it is sufficient at this stage to ascertain whether the new developments brought to the Court ’ s attention (see paragraph 33 above) lead it to conclude that the matter giving rise to the present complaint has now been resolved (see, for example, Pisano v. Italy (striking out) [GC], no. 36732/97, § 42, 24 October 2002, and Obradović v. Serbia (dec.), no. 26278/07, § 53, 28 April 2020) or that, for any other reason, it is no longer justified to continue the examination of the application (see, for example, Belošević v. Croatia (dec.), no. 57242/13, § 49, 9 January 2020) and that this part of the application may consequently be struck out of its list of cases in accordance with Article 37 § 1 of the Convention, which provides:

“The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a) the applicant does not intend to pursue his application; or

(b) the matter has been resolved; or

(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.”

41 . While the indication by the applicant that he wishes to pursue his application (see paragraph 36 above) rules out the applicability of sub ‑ paragraph (a) of Article 37 § 1, it does not rule out the possibility of applying sub-paragraphs (b) and (c), the applicant ’ s consent not being a prerequisite for the application of those provisions (see Pisano , cited above, § 41).

42 . In order to conclude that the matter has been resolved within the meaning of Article 37 § 1 (b) and that there is therefore no longer any objective justification for the applicant to pursue his complaint concerning the fact that the initial set of criminal proceedings were not held in public, the Court considers that it must examine, firstly, whether the circumstances complained of directly by the applicant still obtain and, secondly, whether the effects of a possible violation of the Convention on account of those circumstances have also been redressed (ibid., § 42).

44 . Secondly, as to whether the effects of a possible violation of the Convention have been redressed, the Court observes that the applicant was acquitted after a full retrial and had the right to claim damages in respect of his wrongful conviction (see paragraphs 21 - 22 and 36 above). Considering that the applicant is free to seek such compensation (see paragraphs 26 and 36 above), and that any compensation due to him as a result of his wrongful conviction is indissociable from any compensation he might claim in the event of a finding of a violation of Article 6 of the Convention (see Pisano , cited above, § 47 ), the Court considers that the effects of a possible violation of the Convention have been redressed in the circumstances of the present case.

45 . In the light of the foregoing considerations, the Court finds that the matter giving rise to this complaint can therefore now be considered to be “resolved” within the meaning of Article 37 § 1 (b). Finally, no particular reason relating to respect for human rights as defined in the Convention requires the Court to continue its examination of this complaint under Article 37 § 1 in fine . Having concluded that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention, the Court is not required to determine whether it is justified to continue the examination of the application for any other reason within the meaning of Article 37 § 1 (c).

46 . Accordingly, this part of the application should be struck out of the Court ’ s list of cases.

47 . The applicant complained that the authorities had failed to provide him with copies of the documents in his classified case file which he had wished to submit to the Court in support of his application, and had failed to clarify the question of the potential criminal liability his lawyers might have incurred for divulging classified information to the Court. He relied on Article 34 of the Convention, which provides as follows:

“The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

48 . The applicant submitted that the Tbilisi City Court ’ s refusal to allow his lawyers ’ applications to make copies of certain documents and its failure to clarify the question of the potential criminal liability his lawyers might have incurred for divulging classified information to the Court had deprived them of the opportunity to adequately substantiate his application. The applicant therefore submitted that the State had hindered the effective exercise of his right of application.

49 . The Government submitted that the applicant ’ s complaint was inadmissible for lack of significant disadvantage. According to the Government, the applicant had been granted access to his case file and his enquiries had been answered adequately by the domestic courts. Furthermore, he had successfully lodged his application with the Court, which demonstrated that his inability to make copies of various documents had not been detrimental to submitting his application.

50 . A complaint under Article 34 of the Convention is of a procedural nature and therefore does not give rise to any issue of admissibility under the Convention (see Vladimir Sokolov v. Russia , no. 31242/05, § 75, 29 March 2011). Therefore, the Government ’ s submissions on admissibility will be considered in the context of the substance of the applicant ’ s complaints under Article 34 of the Convention.

51 . The Court reiterates that Article 34 of the Convention imposes an obligation on a Contracting State not to hinder the right of individual application. While the obligation imposed is of a procedural nature, distinguishable from the substantive rights set out in the Convention and its Protocols, it flows from the very essence of this procedural right that it is open to individuals to complain of its alleged infringement in Convention proceedings . The Court also emphasises that the undertaking not to hinder the effective exercise of the right of individual application precludes any interference with the individual ’ s right to present and pursue his or her complaint before the Court effectively (see Cano Moya v. Spain , no. 3142/11, § 43, 11 October 2016, with further references ).

52 . The Court has found that the obligation not to hinder the right of individual application does not automatically mean that the State has an unqualified duty to provide applicants with copies of all or any desired documents or to furnish them with the technical facilities of their choice to make their own copies (see Kornakovs v. Latvia , no. 61005/00, §§ 171-74, 15 June 2006, and Chaykovskiy v. Ukraine , no. 2295/06, § 96, 15 October 2009). At the same time, t he Court has also established that Article 34 of the Convention may, in certain circumstances, impose on State authorities an obligation to provide copies of documents such as, for instance, in the case of applicants who find themselves in situations of particular vulnerability and dependence and who are unable to obtain the documents needed for their files without State support (see Naydyon v. Ukraine , no. 16474/03, § 63, 14 October 2010).

53 . Turning to the particular circumstances of the present case, the Court notes that the applicant ’ s two lawyers were granted access to the criminal case file immediately after lodging a request to that end (see paragraph 11 above). By contrast, they were not allowed to make any copies of the documents in the criminal case file given that it had been classified. In this context, the Court notes that a restriction on public access to a criminal case on account of its containing State secrets is not in and of itself incompatible with Article 34 of the Convention. It will therefore have regard to whether such a limitation, in the particular circumstances of the case, hindered the applicant ’ s right of application. In this connection, while the applicant ’ s application to the Court was not supported by copies of court decisions and minutes of the proceedings (see paragraph 9 above), the State ’ s duty to provide an applicant with copies of documents necessary to substantiate an application has to be assessed in the context of the fact that the criminal case file had been classified because it contained information concerning State secrets, and full access to it apparently necessitated a special procedure for obtaining the requisite security clearance.

54 . In particular, the Court does not lose sight of the fact that the Tbilisi City Court did not unconditionally refuse to allow copies of the relevant materials to be made, instead providing the applicant ’ s lawyers with a clear instruction to apply for the requisite security clearance using the established legal procedure for that purpose (see paragraph 11 above). Nevertheless, while matters related to the handling of State secrets, including obtaining security clearance or challenging a refusal in that regard, were regulated under the State Secrets Act and the related Presidential Decree adopted in implementation of that Act (see paragraphs 27 - 29 above), it does not appear that the applicant ’ s lawyers used that procedure, as instructed by the Tbilisi City Court. Instead, they continued to enquire with that court about the potential criminal liability they might incur for divulging information to the Court. The Court does not consider such a course of action reasonable. Taking into account the sensitive nature of handling classified information, applying for security clearance could potentially have not only granted them a right to copy the materials, but also clarified any misgivings they had regarding the question of criminal responsibility for divulging information in the case file. Having regard to the nature of the documents in issue and the applicant ’ s lack of rigour in his efforts to obtain copies of them, the Court does not consider that there has been a “hindrance” on the part of the relevant authorities with the applicant ’ s right of application, within the meaning of Article 34 of the Convention.

55 . In the light of the foregoing considerations, the Court finds, in the particular circumstances of the present case, that the Government have not failed to comply with their obligations under Article 34 of the Convention.

For these reasons, the Court, unanimously,

Decides to strike the application out of the list of cases in accordance with Article 37 § 1 (b) of the Convention in so far as the complaint under Article 6 of the Convention is concerned;

Holds that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

Done in English and notified in writing on 10 December 2020 .

Martina Keller Ganna Yudkivska Deputy Registrar President