FOURTH SECTION

DECISION

Application no . 38736/05 Teimuraz KVANTALIANI against Georgia

The European Court of Human Rights (Fourth Section), sitting on 27 September 2016 as a Committee composed of:

Krzysztof Wojtyczek, President, Nona Tsotsoria, Marko Bošnjak, judges, and Andrea Tamietti, Deputy Section Registrar ,

Having regard to the above application lodged on 26 September 2005,

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 Teimuraz Kvantaliani, is a Georgian national, who was born in 1953 and lives in Tbilisi. He was represented before the Court by Mr Z. Natchkebia, a lawyer practising in Tbilisi.

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

A. The circumstances of the case

3. The applicant is a former chairman of the State TV and Radio Department of Georgia. In early 1992, during the period of civil unrest, he and his family fled the country. They moved to Lithuania, where the applicant was granted political asylum. On 12 August 1992 the applicant was charged with multiple offences related to his alleged subversive and anti-state activities committed while acting as a part of an organised armed group headed by the ousted President of Georgia, Zviad Gamsakhurdia.

4. On 20 April 2000 the Parliament passed a Decree on eradicating the consequences of the civil unrest of 1991-1992 and on achieving national reconciliation in Georgia (“the Decree of 20 April 2000”). According to the Decree of 20 April 2000, the Prosecutor Gen eral (“the PG”) was asked to re ‑ examine, in accordance with the provisions of the criminal procedural law in force at the material time, pending criminal cases related to the 1991 ‑ 1992 civil unrest and to make public, by 10 July 2000, the list of persons with respect to whom a decision could be taken to discontinue criminal proceedings. An ad hoc national reconciliation commission was established by the Parliament with the purpose of facilitating the implementation of the above Decree.

5. On 19 February 2001, the applicant wrote to the national reconciliation commission, indicating his willingness to have the criminal proceedings pending against him discontinued on the basis of Article 28 of the Code of Criminal Procedure (“the CCP” – see paragraph 19 below). On 4 March 2001 he returned to Georgia.

6. On 17 September 2004 the applicant ’ s lawyer wrote to the PG requesting updated information about the criminal proceedings pending against his client. In particular, he inquired whether the relevant criminal case had been discontinued and whether he could obtain copies of the pertinent decisions. In reply, by a letter of 17 October 2004, the applicant was informed that the criminal proceedings against him were still pending and that the search warrant and the decision authorising his remand in custody had not been withdrawn.

7. On 5 and 25 January 2005 the applicant wrote again to the PG detailing the circumstances surrounding his case and requesting the discontinuation of the relevant proceedings.

8. On 12 February 2005 a prosecutor in charge made a ruling discontinuing the criminal proceedings against the applicant. The decision in its relevant part read as follows:

“ ... In view of the fact that Teimuraz Kvantaliani committed the offences in 1992, following which the civil-political situation in Georgia has changed and the conduct of T. Kvantaliani has ceased to be dangerous, it is possible to apply the Decree of the Parliament of Georgia of 20 April 2000 ...”

9. The operative part of the ruling stated that an appeal lay against the discontinuation decision within fifteen days.

10. The applicant was served with the above decision on 14 March 2005. On 21 March 2005 he lodged a complaint with a first instance court requesting the revocation of the ruling. The applicant denounced the reasoning of the prosecutor, according to which it was established that he had committed the offences in question. Relying on Article 28 § 7 of the CCP, he requested a resumption of the criminal investigation.

11. By letters of 22 and 31 March 2005 the judge from the Mtatsminda ‑ Krtsanisi Court assigned to the applicant ’ s case requested that the prosecutor ’ s office allow access to the complete criminal file. On 8 April 2005 the case file, which consisted of 115 volumes, was sent to the court.

12. On 18 April 2005 the applicant sent a letter to the judge assigned to his case, complaining about the delay in the examination of his request. He relied in this connection on Article 242 § 4 of the CCP, which set a fifteen ‑ day time-limit for the examination of this type of request.

13. By a letter of 19 April 2005, the judge informed the applicant that the examination of his request had been delayed by the fact that the court had been provided with the criminal case file only on 8 April 2005. It consequently required additional time to acquaint itself with the case materials.

14. On 5 May 2005 the applicant filed a complaint with the Secretary of the High Council of Justice, denouncing the delay in the examination of his request. The above complaint was left unanswered. A subsequent complaint, lodged on 13 May 2005, was also ignored. On 29 May 2005 the applicant filed yet another complaint and requested the initiation of disciplinary proceedings against the judge concerned, to no avail.

15. On 29 June 2005 the applicant wrote to the Supreme Court complaining about the inactivity of the Mtatsminda-Krtsanisi Court and requesting the Supreme Court to take charge of his case. On 11 July 2005 the applicant inquired with the Supreme Court about the fate of his complaint; no reply followed.

16. It transpired from the Government ’ s observations that in the meantime, a major structural reform of the judiciary had been initiated in Georgia. As a result, the Mtatsminda-Krtsanisi Court had been merged with the other first instance courts of Tbilisi under the structure of the newly established Tbilisi City Court. The applicant ’ s case had been accordingly assigned to a new judge.

17. On 5 October 2006 the responsible judge ruled on the restoration of the time-limits in the applicant ’ s case. She noted that the Mtatsminda ‑ Krtsanisi Court had failed to examine the applicant ’ s request because of the ongoing reform of the judiciary. The case had accordingly been transferred to the Tbilisi City Court which on its part had not been able to consider it within the time-limits provided for by law because of the large number of so-called detention-related cases. The judge consequently concluded that there was a valid reason for the restoration of the time-limits in the current case. On the same date she also examined the applicant ’ s request on the merits and rejected it as unsubstantiated. The decision in its last paragraph stated that an appeal lay against it with the Tbilisi Court of Appeal within ten days.

18. The applicant has not indicated having appealed the Tbilisi City Court ’ s decision of 5 October 2006.

B. Relevant domestic law

19. Article 28 § 1 (n) of the CCP in force at the material time provided that criminal proceedings were to be discontinued if, in view of a change in the circumstances, the act concerned ceased to be dangerous. Paragraph 7 further stipulated that the discontinuation of the proceedings on the above ground could take place only with the consent of the accused.

20. Article 242 of the CCP guaranteed to everyone a right to challenge before a court any decision taken by investigating authorities and public prosecutor ’ s office. According to Article 242 § 4 of the CCP a complaint against a prosecutorial decision was to be examined by a court within fifteen days.

COMPLAINTS

21. In his original application form, lodged with the Court on 26 September 2005, the applicant complained under Article 6 § 1 of the Convention about the termination of the criminal proceedings against him on a non-exonerative ground. He considered that the prosecution had established his guilt without being proved so by courts. He further denounced the failure of the domestic courts to examine his appeal against the prosecutorial ruling within the time-limit set out in the CCP.

22. By a letter of 4 April 2007 the applicant supplemented his initial application form, complaining specifically, under Articles 6 §§ 1 and 2 and 13 of the Convention, about the length of proceedings, the violation of his right to be presumed innocent and the lack of an effective remedy in that regard. He also claimed that the protracted proceedings had caused him severe stress and suffering in violation of Article 3 of the Convention. Lastly, he invoked Article 14 of the Convention in connection with his Article 6 complaints, claiming that he had been discriminated against on the basis of his political affiliation.

THE LAW

A. Complaints about the length of the proceedings

23. The applicant complained under Article 6 § 1 and Article 13 of the Convention about the excessive length of the relevant proceedings and the lack of an effective remedy in that regard.

1. The parties ’ submissions

24. The Government argued that the applicant had failed to inform the Court that by a decision of 5 October 2006 the Tbilisi City Court had dismissed his complaint as unsubstantiated (see paragraph 17 above). In the Government ’ s view this decision concerned the very core of the application pending before the Court. Thus, the applicant ’ s failure to act diligently vis ‑ à-vis the Court under Article 47 § 7 of the Rules of the Court (former Rule 47 § 6) was tantamount to an abuse of the right of individual application under Article 35 § 3 (a) of the Convention.

25. The applicant dismissed the Government ’ s argument claiming that he had never been informed about the domestic court ’ s decision of 5 October 2006. He alleged that it had been sent to the wrong address of his representative and had thus never reached either of its recipients.

2. The Court ’ s assessment

26. The Court notes at the outset that according to Rule 47 § 7 of the Rules of Court, applicants must keep the Court informed of all circumstances relevant to their applications. It further reiterates that the submission of incomplete and thus misleading information may also amount to an abuse of the right of application, especially if the information concerns the very core of the case and no sufficient explanation has been provided for the failure to disclose that information (see Gross v. Switzerland [GC] , no. 67810/10, § 28, ECHR 2014, with further references therein; see also Bekauri v. Georgia (preliminary objection), no. 14102/02 , § 21, 10 April 2012, and Buzinger v. Slovakia (dec.), no. 32133/10, §§ 16-17, 16 June 2015 ).

27. In the current case the Court subscribes to the Government ’ s argument that the decision which had been adopted by the Tbilisi City Court on 5 October 2006 was indeed central to the applicant ’ s complaint before the Court about the excessive length of the proceedings. The applicant was, thus, required under Rule 47 § 7 of the Rules of Court to inform the Court about its adoption. He argues that he did not learn about that decision until the respondent State submitted its observations. The Court does not consider it necessary to examine whether in view of the applicant ’ s argument his intention to mislead the Court could be established with sufficient certainty, as his complaints under Articles 6 § 1 and 13 of the Convention are in any event inadmissible for the reasons set out below.

28. The Court reiterates that the reasonableness of the length of proceedings must always be assessed in the light of all the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities and what was at stake for the applicant in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII). The applicant ’ s complaint in the current case relates to the length of the proceedings, which began on 21 March 2005, when the applicant lodged a complaint requesting the revocation of the prosecutor ’ s ruling of 12 February 2005 (see paragraph 10 above) and ended on 5 October 2006, when this complaint was rejected by the Tbilisi City Court (see paragraph 17 above). They therefore lasted little more than eighteen months at one level of jurisdiction. The Court notes that, as it appears from the case file and from the Government ’ s observations, the delay in the proceedings was caused by two factors: firstly, the complexity of the case which was illustrated by the fact that the investigative file against the applicant consisted of 115 volumes (see paragraph 11 above). The responsible judge got access to the case file on 8 April 2005 and informed respectively the applicant that a delay was expected (see paragraphs 11 and 13 above); and secondly, in view of the judiciary reform ongoing in Georgia at the material time (see paragraph 16 above), the Mtatsminda- Krtsanisi Court was merged, among others, under the structure of the Tbilisi City Court. The case was hence assigned to a new judge, a fact which inevitably further delayed its examination.

29. The Court notes that the applicant did not contribute to the length of the proceedings. As to the conduct of the authorities, it cannot overlook the major structural reform of the judiciary which was under way in Georgia at the material time. Against this background the overall duration of eighteen months for two courts at one jurisdiction cannot be viewed as particularly excessive (see, for example, Janković v. Croatia (dec.) no. 43440/98, ECHR 2000 ‑ X). In this respect, the decision of 5 October 2006 is noteworthy in so far as the Tbilisi City Court acknowledged that a period of inactivity for more than a year in the applicant ’ s case was due to the fact that it did not fall within the priority group of so-called detention-related cases (see paragraph 17 above). In the Court ’ s view this is a valid explanation for such a delay . T he fact that the criminal proceedings against the applicant had already been discontinued rendered his case less urgent at the material time, as his liberty was not at stake (see, a contrario , Grujović v. Serbia , no. 25381/12 , §§ 60 and 65, 21 July 2015, and Malikowski v. Poland , no. 15154/03, § 78, 16 October 2007 ) .

30. Lastly, while the Contracting States have to organise their judicial systems in such a way as to enable their courts to comply with the requirements of Article 6 § 1 of the Convention (see, Pélissier and Sassi v. France [GC], no. 25444/94, § 74, ECHR 1999 ‑ II), certain exceptional situations might relieve the authorities of responsibility for temporary delays, provided that appropriate remedial action is taken with the requisite promptness (see for example Süßmann v. Germany , 16 September 1996, §§ 55-60, Reports of Judgments and Decisions 1996 ‑ IV, where the Constitutional Court was entitled, on reunification, to give priority to pensions and employment cases of particular significance; see also Zimmermann and Steiner v. Switzerland , 13 July 1983, § 29, Series A no. 66; Guincho v. Portugal , 10 July 1984, § 38, Series A no. 81; Pammel v. Germany , 1 July 1997, § 69, Reports 1997-IV; and Molnárová and Kochanová v. Slovakia , no. 44965/98, § 32, 4 March 2003). In the current case the problem did not result from a chronic backlog of cases but rather from a specific exceptional situation – a major restructuring of the courts. In view of the above mentioned and having regard to the overall duration of the proceedings as well as to what was at stake for the applicant, the Court concludes that the complaint under Article 6 § 1 of the Convention about the length of the proceedings is manifestly ill-founded and should be rejected under Article 35 §§ 3 and 4 of the Convention.

B. Other complaints

32. The applicant also complained under Article 6 §§ 1 and 2 of the Convention that the grounds on which the criminal proceedings against him had been terminated violated his right to be presumed innocent. The Court notes that the applicant has failed to show that he has availed himself of the opportunity to appeal against the decision of the Tbilisi City Court of 5 October 2006 (see paragraphs 17-18 above). It is true that he claimed before the Court that he had never been properly notified of that decision (see paragraph 25 above). He failed, however, to adduce evidence of the alleged mistake made in the address of his representative. In any event, he could have asked for the restoration of the time-limits for appeal, which he also failed to do. The Court thus finds the above complaint inadmissible for failure to exhaust domestic remedies in accordance with Article 35 § 1 of the Convention.

33. As to the complaints under Article 3 and Article 14 in conjunction with Article 6 of the Convention (see paragraph 22 above), the Court, having regard to all the material in its possession, and in so far as the matters complained of were within its competence, finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 20 October 2016 .

Andrea Tamietti Krzysztof Wojtyczek              Deputy Registrar President