Resolution CM/ ResDH (2011)105 [1]

Execution of the judgments of the European Court of Human Rights

Patsuria , Gigolashvili , Ramishvili and Kokhreidze against Georgia

(Application No. 30779/04 ( Patsuria ), judgment of 06/11/2007, final on 06/02/2008;

application No. 18145/05 ( Gigolashvili ), judgment of 08/07/2008, final on 08/10/2008;

application No. 1704/06 ( Ramishvili and Kokhreidze ), judgment of 27/01/2009,

final on 27/04/2009)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”);

Having regard to the judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern:

- infringement of the applicant ’ s right to liberty and security ( Patsuria case) due to his placement and continued detention on remand in 2004 on grounds which cannot be regarded as “relevant” or “sufficient” (violation of Article 5§3);

- infringements of the right to liberty and security due to the absence of a valid court order authorising the applicants ’ continued detention ( Gigolashvili , Ramishvili and Kokhreidze cases) (violations of Article 5§1 c);

- the unfair manner in which the judicial review of the applicants ’ detention on remand was conducted and the failure to give a “prompt” reply to the applicants ’ complaint about the illegality of their detention ( Ramishvili and Kokhreidze case) (violation of Article 5§4);

- the inhuman and degrading conditions of detention at Tbilisi Prison No. 5 and the inhuman and degrading conditions in which the hearing at which applicants Ramishvili and Kokhreidze contested their detention on remand was conducted (violation of Article 3)(see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicants the just satisfaction provided in the judgments (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent state, where appropriate, of

- individual measures to put an end to the violations and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix) that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)105

Information on the measures taken to comply with the judgments in the cases of

Patsuria , Gigolashvili , Ramishvili and Kokhreidze against Georgia

Introductory case summary

The Patsuria case concerns an infringement of the applicant ’ s right to liberty and security due to his being detained on remand on grounds which cannot be regarded as “relevant” or “sufficient”. The European Court held that, because they relied essentially on the seriousness of the charges against the applicant, the Georgian courts had failed to address the specific circumstances of his case or to consider alternative pre-trial measures. The Court also underlined that the fact that the last decision extending the applicant ’ s detention on remand was a standard template text with pre-printed reasoning was particularly worrying (violation of Article 5§3).

The Gigolashvili and Ramishvili and Kokhreidze cases concern infringements of the applicants ’ right to liberty and security due to their continued detention on remand without a court order authorising this detention. The European Court underlined that the fact that, during his period of continued detention on remand, Mr Gigolashvili and his advocate were studying the criminal case file which was then sent, along with the indictment, to the competent court for trial, could not constitute a “lawful” basis for the applicant ’ s continued detention on remand for the purposes of Article 5§1 (c) of the Convention (violation of Article 5§1 (c)).

The Ramishvili and Kokhreidze case also concerns a violation of the right to liberty and security because of the unfair way the judicial review of the applicants ’ detention on remand was conducted on 02/09/2005 and the failure to give a prompt reply to the applicants ’ complaint about the illegality of their detention (violation of Article 5§4). This case also concerns the inhuman and degrading treatment to which the applicants were subjected because of the conditions in which they were detained at Tbilisi Prison No. 5, as well as their placement in a metal cage during the court hearing of 02/09/2005 and the presence of special forces in the courtroom (violations of Article 3).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Patsuria

30779/04

1 500 EUR

2 170 EUR

3 670 EUR

Paid on 05/05/2008

Ramishvili and Kokhreidze

1704/06

6 000 EUR

14 694 EUR

20 694 EUR

Paid on 19/07/2009

Gigolashvili

18145/05

No just satisfaction

b) Individual measures

In the Patsuria and Ramishvili and Kokhreidze cases, the Court, deciding on equitable principles, awarded the applicants just satisfaction in respect of non-pecuniary damage, and this was paid within the time-limit set. In the Gigolashvili case, the applicant made no request for just satisfaction, and the Court consequently made no award to him in this respect.

The applicants were no longer in detention on remand when the Court delivered its judgments.

Consequently, no other individual measure was considered necessary by the Committee of Ministers.

II. General measures

1. Violation of Article 5

1.1 Articles 5§1(c) and 5§3 – continued detention on remand without a "lawful" basis, detention and continued detention on remand on grounds which cannot be regarded as "relevant" or "sufficient" and use of a standard template text with pre-printed reasoning for a decision extending detention on remand

Since the facts called into question by the judgments, the Constitutional Court, in a judgment of 16/12/2003, declared Article 406§4 of the Code of Criminal Procedure unconstitutional and incompatible with Article 5§1 of the Convention, while deciding that annulment of the provision called into question was to be deferred until 25/09/2004 "to avoid the creation of difficulties for the investigative authorities". Subsequently, a new Code of Criminal Procedure (CCP) was adopted, which came into force on 01/10/2010, and which inter alia definitively repealed the provision at issue. Thus there are no longer two periods of detention on remand.

Article 206 of the new Code provides that the prosecutor must address to the judge a reasoned request for application for privation of liberty within 48 hours after an individual ’ s arrest. The judge examines this request within 24 hours. The hearing is public, other than in exceptional cases which the Code provides. The prosecutor ’ s request must contain the individual ’ s personal details, the charge and any information or evidence on which that charge is based. After verifying the merits and the formal and procedural bases of the requested measure, the judge delivers a judgment for which reasons must be given. The judge may reject the measure requested by the prosecutor for appropriate reasons and apply another, less severe measure.

Lastly, Article 205§2 of the new Code provides that the total period of detention on remand may not exceed nine months.

The new Article 198§1 of the Code of Criminal Procedure provides that " a measure of detention on remand may only be applied if the objectives pursued cannot be achieved by a less severe measure ”. A reminder of this principle is given to prosecutors in paragraph 3 and to judges in paragraph 4 of this same article.

1.2 Article 5§4 – unfair nature of the supervision exercised by the judge ordering detention on remand and lack of a "prompt" reply on an appeal against unlawful detention

- Unfair nature of the supervision exercised by the judge

The violation found by the European Court in the case of Ramishvili and Kokhreidze was due to the chaotic conditions in which the hearing had taken place. On this subject see paragraphs 2.2 and 3 below.

- "Prompt" reply

Pursuant to Article 207 of the new Code, judgments concerning privation of liberty may be the subject to single appeal to the investigations section of the Court of Appeal. That appeal may be lodged by the prosecutor or by the accused within 48 hours after adoption of the judgment.

The judge of the investigations section of the Court of Appeal considers the appeal within 72 hours of its being lodged: if applicable, he or she issues a definitive inadmissibility judgment, without a hearing or, if the appeal is declared admissible, a hearing is held.

2. Violation of Article 3

2.1 In respect of detention conditions at Tbilisi Prison No. 5, including in the disciplinary cells

Tbilisi Prison No. 5 was demolished in 2008 and replaced by a new building, with a modern infrastructure.

The question of detention conditions in Georgia is being dealt with in the context of the Aliev case, application No. 522/04, judgment of 13/01/2009, final on 13/04/2009.

Prior to its examination of detention conditions, the European Court noted that the authorities had opted for the most severe of the existing disciplinary penalties, without considering the proportionality of this additional punitive measure.

On 01/10/2010, a new Code on Imprisonment came into force. A new set of Prison Rules was adopted by a decree of the Minister of Penitentiary, Probation and Legal Aid Issues on 30/05/2011.

Article 82 of the Code on Imprisonment lists the disciplinary sanctions which may be applied, which include a warning, a reprimand, restriction of the right to work, or the right to use permitted items, withdrawal of the possibility to receive parcels or transfer to a cell regime each for a period not exceeding six months, and placement in solitary confinement for a period not exceeding 20 days.

The individual concerned has the right to be informed, in a language which he or she understands, of the disciplinary offence alleged, to have sufficient time to prepare his or her defence, to a hearing and to legal assistance, and to request the presence of and to question witnesses. If he or she does not understand the language of the proceedings, interpretation is provided free of charge.

An individual sentenced for a disciplinary offence has the right to lodge an appeal to a competent court against the decision to apply the disciplinary measure within 10 days following its adoption.

2.2 In respect of the conditions in which applicants appear in the courtroom

The practice of placing accused persons in metal cages guarded by special forces has been discontinued. In the context of the judicial reform begun in 2005, courts of first instance in Tbilisi (the Gldani-Nadzaladevi , Isani-Samgori , Didube-Chugureti , Krtsanisi-Mtatsminda and Vake-Saburtalo district courts) have been replaced by the Tbilisi City Court. The new court is located in a modern building.

With this reform, the practice of placing accused persons in metal cages guarded by law enforcement forces has been discontinued. A glazed area for prisoners has been created in every courtroom used for criminal cases.

3. Other general measures

The Patsuria judgment has been translated and was published in Georgia ’ s Official Gazette No. 19 of 30/04/2008; the Gigolashvili judgment has been translated and was published in Georgia ’ s Official Gazette No. 4 of 14/01/2009; and the Ramishvili and Kokhreidze judgment has been translated and was published in Georgia ’ s Official Gazette No. 80 of 11/11/2009. The three judgments also appear in a journal entitled The judgments of the European Court of Human Rights against Georgia , published in 2010 by the Human Rights Centre of the Supreme Court of Georgia. This work is a collection of the judgments delivered by the European Court of Human Rights against Georgia between 2004 and 2010, and it has been distributed to domestic courts.

Domestic courts ’ attention has thus been drawn to the requirements of the Convention concerning detention on remand.

Furthermore, regular training courses are organised in the context of the adoption of the new Code of Criminal Procedure, and the case-law of the European Court on detention on remand is an integral part of the syllabus.

III. Conclusions of the respondent state

T he government considers that the measures adopted have fully remedied the consequences for the applicants of the violation of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that Georgia has thus complied with its obligations under Article 46, paragraph 1, of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies