Communicated on 7 December 2017

FIFTH SECTION

Application no. 16446/09 Gela Gorgodze against Georgia lodged on 10 March 2009

STATEMENT OF FACTS

The applicant, Mr Gela Gorgodze , is a Georgian national who was born in 1969 and is currently serving a prison sentence.

A. The circumstances of the case

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

On 25 February 1999 in a final judgment the Supreme Court sentenced the applicant to life imprisonment for various crimes, including aggravated attempted murder, aggravated murder, and the illegal taking of a vehicle without the intention of stealing it.

On 1 December 1999 the Supreme Court reviewed the sentence and changed life imprisonment to a twenty-year prison term.

On 15 November 2000 the Supreme Court readjusted the applicant ’ s conviction by aligning the respective sentences with the new Criminal Code of 1999 that had entered into force on 1 June 2000. He was sentenced to eighteen and twenty years ’ imprisonment for aggravated attempted murder and murder respectively, and to ten years ’ imprisonment for illegally taking a vehicle without the intention of stealing it. The final sentence was set at twenty years ’ imprisonment, without specifying whether it had been reached by means of absorption or accumulation of the respective sentences or a combination thereof.

On 18 March 2002 another readjustment was made with respect to one of the components of the applicant ’ s conviction in the final judgment of the Supreme Court. The sentence of twenty years ’ imprisonment remained unchanged.

On 19 June 2003 the Supreme Court sentenced the applicant to twenty years ’ imprisonment in what appears to have been another set of criminal proceedings. The court added seven years ’ imprisonment from the applicant ’ s previous unserved sentence and set twenty-seven years ’ imprisonment as the final sentence.

On 1 December 2003 the Supreme Court reduced the applicant ’ s sentence to twenty-two years ’ imprisonment in another readjustment decision.

On 23 May 2007 the Parliament of Georgia adopted amendments to the Criminal Code which removed Article 184 (illegal taking of a car or other motorised vehicle without the aim of misappropriation) from the Code. On an unspecified date the applicant applied to the Supreme Court seeking a readjustment of his conviction and sentence accordingly.

On 7 November 2008 the Supreme Court rejected the applicant ’ s request in a final decision. It provided the following reasoning:

“As regards the criminal act committed by [the applicant] under Article 184 (3) of the Criminal Code, the removal of Article 184 [from the Code] by the amendments made [to it] on 23 May 2007, in other words, the non-existence of the constituent elements of the crime contained in that article in the Criminal Code in force at present, does not mean that this act is not criminal, has stopped posing a public threat, and has been decriminalised. Currently the criminality of the acts encompassed by Article 184 is in fact contained, depending on the method of misappropriation, in the relevant provisions concerning crimes against property.

The existing practice of the Grand Chamber of the Supreme Court of Georgia of 28 June 2007 is taken into account, according to which the criminality of an act under Article 184 is in fact assumed under relevant articles concerning crimes against property, depending on the method of taking [the property].”

The Supreme Court did not go on to specify which, if any, of those provisions proscribed the act of which the applicant had been found guilty and which was no longer expressly criminalised in view of the legislative amendments of 23 May 2007.

B. Relevant domestic law and practice

1. Constitution of Georgia (1995)

Under Article 42 § 5:

“No one shall be held responsible on account of an action which did not constitute a criminal offence at the time it was committed. A law that neither mitigates nor annuls criminal responsibility shall have no retroactive force.”

2. Law on Normative Acts (1996)

Section 47(3), as it stood at the material time, provides:

“If, after an offence has been committed, a law [is adopted that] annuls or mitigates responsibility for such an offence, the rule provided under the new law shall be applied.”

3. Criminal Code (1999)

Article 3 § 1 of the Criminal Code, as in force at the material time, provided that “a criminal law that decriminalises an act or reduces the sentence shall have retroactive force.”

Article 184 of the Criminal Code initially provided for a maximum sanction of ten years, which was reduced to nine years by an amendment of 28 April 2006. The provision, as in force before its removal by the amendment of 23 May 2007, read as follows:

Article 184: Illegal taking of a car or other motorised vehicle without the aim of misappropriation

“1. The illegal taking of a car or other motorised vehicle with the aim of its temporary use ... shall be punishable by a fine or imprisonment for up to three years.

2. The same act committed ... as part of a group; ... more than once; ... using violence that does not pose a danger to life or health, or with a threat to use such violence; ... shall be punishable by a term of imprisonment of from three to six years.

3. An act under the first or second paragraph of this article committed with violence posing a danger to life or health or with a threat to use such violence ... shall be punishable by a term of imprisonment of from six to nine years.

Note: If the perpetrator voluntarily returns the car or other motorised vehicle undamaged within 24 hours [of taking it], the sentence will be reduced by half.”

4. Code of Criminal Procedure (1998)

Article 593 § 3 (b) of the Code, as in force at the material time, provided for a review of a final conviction based on newly discovered legal circumstances such as “the enactment of a new law, after a final judgment or another decision of a court, that annuls or mitigates criminal responsibility”.

5. Public Defender of Georgia

A report by the Public Defender of Georgia entitled “The Situation Regarding the Protection of Human Rights and Freedoms in Georgia in the First Half of 2007” addressed at length the matter of decriminalisation of conduct previously proscribed under Article 184, which had been removed from the Criminal Code, and the practice of the domestic courts in this respect. The relevant excerpts of the report read as follows:

“The explanatory memorandum [of the draft law amending the Criminal Code of 23 May 2007] specifies that ‘ Article 184 of [the Code] is being removed by the draft law because the current edition of the Code, in its Articles relating to theft, robbery and aggravated robbery, encompasses the taking of a vehicle when the purpose of such taking is its misappropriation ... while the illegal taking of a vehicle [without such an intention] is not so dangerous to the public as to be punishable under criminal law, [and] it is even less clear why the taking of vehicles for the purpose of using them is considered a crime, whereas [such taking] of other objects is not. In accordance with the draft law, the above-mentioned act is being decriminalised. ’ ...

... practice of the [courts and the prosecution] has developed in such a way that an act decriminalised by the legislative body of Georgia is [subsumed] under other articles of the Criminal Code, which leads to illegal prosecution, trial and sentencing of persons whose actions are not considered as crimes under the legislation. Notably, there are convicted persons who are serving their sentences under the aforementioned Article [of the Criminal Code] and, accordingly, are imprisoned illegally. ...

[The constituent elements of the offence under] Article 184 of the Criminal Code differed from the constituent elements of other crimes against property (theft, robbery, aggravated robbery) on account of the purpose of the crime [in that the latter] necessarily consist of a purposive element – illegal appropriation – whereas the purpose of the crime proscribed by Article 184 was to illegally take and temporarily use a car or other motorised vehicle. Accordingly, this crime naturally differed sharply from other crimes against property (theft, robbery, aggravated robbery).

It is particularly important to note that [in situations where] a criminal had the intention of stealing the illegally taken item (car or other motorised vehicle), then his [or her] action would have been classified as theft, robbery or aggravated robbery. ...

The Supreme Court applies the law by analogy, even though it does not expressly state so ... and renders the act envisaged in Article 184 criminal ... [as similar] to theft, robbery or aggravated robbery, depending on the method used to take the property. In other words, an act similar to other crimes which is not itself formulated as a crime by a separate Article in the Criminal Code is declared to be a crime based on analogy.”

COMPLAINT

The applicant complains under Article 7 of the Convention that the Supreme Court refused to retrospectively apply the more lenient law and re ‑ assess his conviction and sentence on account of the decriminalisation of one of the crimes for which he was convicted.

QUESTIONS TO THE PARTIES

Does the applicant ’ s complaint concerning the decriminalisation of the offence after his sentence had become final fall within the scope of Article 7 § 1 of the Convention? In particular, does the complaint relate to a redefinition or modification of the scope of the “penalty” imposed by the trial court as opposed to changes made to the manner of execution of the sentence (see Del Río Prada v. Spain [GC], no. 42750/09 , §§ 88-90, ECHR 2013)?

If so, has there been a breach of Article 7 of the Convention in the circumstances of the present case? In particular, while reviewing the applicant ’ s application under Article 593 § 3 (b) of the Code of Criminal Procedure, did the Supreme Court comply with the principle that only the law can define a crime and prescribe a penalty and that criminal law must not be extensively construed to an accused ’ s detriment, for instance by analogy (see Vasiliauskas v. Lithuania [GC], no. 35343/05, § 154, ECHR 2015 )? According to the Supreme Court judgment of 7 November 2008, precisely which provision of the Criminal Code in force at the material time criminalised the substance of the removed Article 184?