FOURTH SECTION

DECISION

Application no . 39726/04 Sulkhan MOLASHVILI against Georgia

The European Court of Human Rights (Fourth Section), sitting on 30 September 2014 as a Committee composed of:

Ledi Bianku , President, Paul Mahoney , Krzysztof Wojtyczek , judges,

and Fatoş Aracı, Deputy Section Registrar ,

Having regard to the above application lodged on 27 October 2004,

Having regard to the declaration submitted by the respondent Government on 11 March 2014 requesting the Court to strike the application out of the list of cases and the applicant ’ s reply to that declaration,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

1. The applicant, Mr Sulkhan Molashvili, is a Georgian national, who was born in 1969 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 L. Meskhoradze, of the Ministry of Justice.

A. The circumstances of the case

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

4. Between 30 May 2000 and 4 January 2004, the applicant held the post of President of the Accounts Chamber, a State agency in charge of controlling the financial activities of various authorities. Prior to that post, he had successively served as Chief of the Cabinet to the President of the Supreme Court as well as Parliamentary Secretary to the President of Georgia.

5. In 2000 and 2003 the Accounts Chamber conducted an audit of the financial transactions conducted by the Ministry of Justice and the Tbilisi Municipality, exactly at the time when both authorities were run, in the capacity of the Minister and Mayor respectively, Mr M. Saakashvili. Conclusions of the audit revealed the existence of certain financial irregularities of substantive nature.

6. As a result of the so-called Rose Revolution which occurred in November 2003 and brought about the resignation of the previous President of the country, Mr Saakashvili was elected, on 4 January 2004, as new President of Georgia.

7. On the same day, 4 January 2004, the applicant requested Georgian Parliament to accept his resignation from the post of President of the Accounts Chamber.

8. On 22 April 2004 the applicant, responding to a summons, voluntarily appeared before the Prosecutor General ’ s Office for an interview. He was immediately charged with the offence of abuse of power, and was remanded in custody. The applicant was then escorted to the short remand prison of the main police headquarters of Tbilisi.

9. According to the applicant, in the night from 22 to 23 April 2004 three or four unidentified men in civilian clothes entered his cell in the Tbilisi police headquarters and, after having handcuffed him in the sitting position to a chair, burned cigarettes against his spine and chest. The case materials confirm the marks of cigarette burns over his body.

10. On the following day, 23 April 2004, the Vake-Saburtalo District Court authorised the applicant ’ s detention pending trial. Subsequently, the applicant ’ s detention was extended on several occasions.

11. After the issuance of the detention order of 23 April 2004, the applicant was initially placed in Tbilisi prison no. 1. On 2 July 2004 he was transferred to Tbilisi prison no. 7.

12. On 11 June and 2 July 2004 the President of Georgia made two public statements, broadcast by national television channels, in which he accused the applicant of corruption and bribe-taking.

13. On 5 July 2004 a criminal case was opened for the fact of the applicant ’ s ill-treatment, but the investigation did not lead to any outcome, with the relevant prosecutor in charge of the case expressing an opinion, during a television interview of 13 July 2004, that the applicant had apparently burned himself with a cigarette on purpose, in order to create a scandal “and influence the public opinion and lodge a complaint with the Court in Strasbourg”.

14. The applicant started having certain serious problems with his health from mid-July 2004. He was provided with medical treatment, the adequacy of which became a matter of dispute between the parties. Throughout all the period of his detention the applicant and his lawyers would complain about the lack of adequate medical care, but those repeated complaints were either rejected as ill-founded or left without any action by various domestic authorities.

15. On 12 July 2004 the Rapporteur on Georgia for the Monitoring Committee of the Parliamentary Assembly of the Council of Europe, Mr Matyas Eorsi, visited the applicant in prison. That visit was followed by a public statement in which Mr Eorsi expressed his indignation in the light of the appalling conditions of detention in which the applicant was held in Tbilisi prison no. 7. Subsequently, the poor conditions of the applicant ’ s detention were similarly denounced by the Public Defender of Georgia.

16. On 18 January 2005 the investigation was finalised, and on 21 July 2005 the applicant ’ s trial started. In the meantime, on 4 July 2005 an independent financial expert, after having examined the entirety of the voluminous financial documents concerning the activities of the Accounts Chamber when that agency had been run by the applicant, had issued a report which excluded the existence of any irregularities at all. At the applicant ’ s request, that report was added to the criminal file.

17. After conducting a series of hearings, the fairness of which became a matter of controversy between the parties due to the manner in which the judicial inquiry was conducted (in particular, the applicant had not been able to obtain the examination of certain witnesses and experts on his behalf, and had also been denied the right to be represented by a lawyer of his choice for some of the hearings), by a judgment of 7 September 2005 the Tbilisi City Court convicted the applicant of the offences of abuse of official power, cover-up of criminal activities committed by others and misappropriation of public funds. The finding of guilt was based on a number of factual episodes of the irregular exercise activities by the Accounts Chamber. No consideration was given in the judgment to the conclusions of the auditor ’ report of 4 July 2005. The applicant was sentenced to nine years in prison.

18. On 21 September 2005 the President of the Supreme Court of Georgia stated, during an interview with a journalist of a national newspaper, that he had already seen the materials of the criminal case against the applicant and could knowingly confirm that the first instance court ’ s conviction of 7 September 2004 had been well-founded .

19. The applicant appealed, and on 6 March 2006 the Tbilisi Court of Appeals amended his conviction of 7 September 2004 by partly acquitting him of the charges with respect to some episodes, confirming his conviction with respect to the others. The sentence was reduced to eight years in prison.

20. The applicant then filed a cassation claim, referring the Supreme Court of Georgia to a number of serious procedural omissions committed both by the first instance and appellate courts in the course of the examination of the criminal case. He also complained, by referring to the Supreme Court ’ s similar case-law on the matter, about the manifestly erroneous legal reasoning contained in the decisions of the lower courts.

21. On 18 May 2006, after having learnt of the composition of the Supreme Court ’ s Committee of three judges which were to examine his cassation claim, the applicant complained that the two lay judges should not be sitting according to a provision of the relevant domestic law. That request for recusal was rejected by the Supreme Court as ill-founded.

22. By a decision of 23 June 2006, the relevant Committee of the Supreme Court rejected, by a majority, the applicant ’ s cassation claim as inadmissible, upholding the appellate judgment of 6 March 2006 in full. One of the lay judges sitting in the Committee expressed a dissenting opinion, in which she both acknowledged deficiency in the legal reasoning of the appellate judgment, which had failed in her opinion to give sufficient reasons for confirming the applicant ’ s guilt, as well as the existence of serious procedural shortcomings in the conduct of the trial.

B. Relevant domestic law and practice

1. The Code of Criminal Procedure

23. Article 310 (e) of the Code of Criminal Procedure, which came into force on 1 January 2012, reads as follows:

“A final and enforceable judgment can be reviewed on the basis of newly discovered circumstances, if ... (e) the European Court of Human Rights has established in a final judgment (or in a decision) a breach of a provision of the Convention or of the Protocols thereto and the impugned [domestic] judgment (decision) is based on that breach”

24. Pursuant to Article 311 of the Code of Criminal Procedure, the time-limit for lodging a request for the reopening of criminal proceedings and revision of the associated final domestic judgment under Article 310 (e) is one year from the date on which the relevant judgment (decision) of the Court became final.

2. Judicial practice concerning the re-opening of criminal proceedings on the basis of the Court ’ s decision – the case of Mrs L. Taktakishvili

25. By its decision of 16 October 2012, the Court struck out the case of Taktakishvili v. Georgia (see Taktakishvili v. Georgia (dec), no. 46055/06, §§ 13-28, 16 October 2012), on the basis of the Government ’ s unilateral declaration. That declaration, as well as containing acknowledgment of a violation of Article 6 § 1 of the Convention on account of the unfairness of the domestic criminal proceedings against her and proposing to pay a monetary compensation, also referred to the acknowledgement of the applicant ’ s right to request the reopening of the relevant domestic proceedings. In its reasoning, the Court, having due regard to the wording of Article 310 (e) of the Code of Criminal Procedure, confirmed that that domestic provision contained indeed a procedural possibility for applying for reopening of the relevant domestic criminal proceedings on the ground of either a judgment or decision of the Court containing reference to a violation of a provision of the Convention (see Taktakishvili , the decision cited above, § 22).

26. By a judgment 13 January 2014, the Kutaisi Court of Appeals, having regard to the Court ’ s above mentioned strike-out decision of 16 October 2012 in the case of Taktakishvili v. Georgia , decided to reopen the initial criminal proceedings against Mrs Taktakishvili, for the purposes of her re-trial. That decision was made in accordance with Article 310 (e) of the Code of Criminal Procedure. Subsequently, Mrs Taktakishvili was even acquitted of the charges of which she had been initially convicted.

COMPLAINTS

27. The applicant complained under Article 3 of the Convention that (a) he had been ill-treated in the short remand prison of the Tbilisi police headquarters in the night from 22 to 23 April 2004 and that no effective investigation had been conducted in that respect, (b) that the material conditions of his detention had been inhuman and (c) that no adequate medical care had been dispensed for his various serious diseases in prison.

28. Relying on Article 5 §§ 1 (c), 3 and 4 of the Convention, the applicant complained, respectively, that (a) certain periods of his detention were unlawful for not having been covered by any judicial detention orders, (b) that the overall duration of his pre-trial detention was unreasonably long and not based on sufficiently reasoned detention orders and (c) that certain judicial reviews of the issue of his detention failed to be accompanied with the requisite minimum fairness safeguards.

29. Under Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention, the applicant complained, by reference to the specific and relevant circumstances of the case, that the principle of the equality of arms had been upset during the trial since he had not been given sufficient time to study the voluminous case materials, that he had not been allowed to be assisted by a lawyer of his choice and that the domestic courts refused to hear certain witnesses and experts on his behalf. The applicant also complained that the reasoning contained in the domestic court decisions was manifestly arbitrary as the courts had failed to give replies to some of his major arguments of defence, including his reference to the conclusions of the auditor ’ s report of 4 July 2005. Under Article 6 § 2 of the Convention, the applicant further complained that the public statements of President Saakashvili and of the President of the Supreme Court had breached his presumption of innocence .

30. Citing Article 14 of the Convention in conjunction with Article 6 § 1, the applicant complained that the initiation of the criminal proceedings against him was a politically motivated retribution orchestrated by his old political foe, President Saakashvili.

THE LAW

31. On 9 November 2011 the application was communicated in its entirety to the Government.

32. After a series of unsuccessful friendly-settlement negotiations, which had started on 27 May 2010, by a letter dated 11 March 2014 the Government informed the Court that they proposed to make a declaration with a view to resolving the issues raised by the application. They further requested the Court to strike out the application in accordance with Article 37 of the Convention.

“The Government of Georgia acknowledge that, in the particular circumstances of the instant case, there were violations of the applicant ’ s rights under Articles 3, 5 §§ 1 (c), 3 and 4, Article 6 §§ 1, 2, 3 (b), (c) and (d) and Article 14 of the Convention.

Within the framework of the present declaration, the Government undertake to conduct an effective investigation into the applicant ’ s ill-treatment allegations in compliance with the principles established by the Court;

The Government duly acknowledge that the applicant, Mr Molashvili would be entitled to apply, should he so wish, under Article 310 (e) of the Code of Criminal Procedure for the reopening of the initial criminal proceedings in order to have the criminal charges against him determined anew.

In the light of the above-mentioned and the particular facts of the applicant ’ s case, the Government declare that they are prepared to pay to Mr Molashvili 20,000 (twenty thousand) Euros to cover pecuniary and non-pecuniary damages and costs and expenses. This sum will be converted into the national currency at the rate applicable on the date of payment, and will be free of any taxes that might be applicable. It will be payable within three months from the date of notification of the decision taken by the Court. In the event of failure to pay this sum within the said three-month period, the Government undertake to pay simple interest on it, from the expiry of that period until settlement, at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points. The payment shall constitute the final resolution of the present case. ”

35. By a letter of 4 April 2014, the applicant, who had been invited to comment on the Government ’ s unilateral declaration, informed the Court that he agreed to the strike-out of his application on the basis of the terms contained in that declaration. The applicant invited the Court to ensure that the terms of the settlement, notably as regards effective investigation of his ill-treatment and his right to request a re-trial under Article 310 (e) of the Code of Criminal Procedure, would be implemented duly and in a timely manner.

In view of the above, it is appropriate to strike the case out of the list.

For these reasons, the Court, unanimously,

Decides to strike the application out of its list of cases pursuant to Article 39 of the Convention.

FatoÅŸ Aracı Ledi Bianku              Deputy Registrar President