Communicated on 14 March 2016

FOURTH SECTION

Application no. 72916/10 Manana GELENIDZE against Georgia lodged on 5 November 2010

STATEMENT OF FACTS

1. The applicant, Ms Manana Gelenidze , is a Georgian national, who was born in 1962. She is represented before the Court by Ms R. Gabodze , a lawyer practising in Tbilisi.

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

A. The circumstances of the case

3. On 8 August 2006 the Tskaltubo District Court convicted the applicant in absentia of delivering an unlawful court decision in her capacity as judge, an offence under Article 336 § 1 of the Criminal Code of Georgia. She was sentenced to two years ’ imprisonment. The first-instance court concluded that she had miscalculated the prison term of a person who had been convicted of an offence, which had resulted in that person ’ s early release from prison. The reasoning of the first-instance court was reviewed and fully upheld by the Kutaisi Court of Appeal on 30 November 2006. On 11 July 2007 the Supreme Court of Georgia rejected the applicant ’ s appeal on points of law as inadmissible. At the same time it was noted in the inadmissibility decision that, when arrested, the applicant could file an appeal against her conviction.

4. On 4 July 2007 the Parliament of Georgia annulled Article 336 of the Criminal Code. The applicant lodged an application to reopen her criminal proceedings with the Supreme Court of Georgia. According to the case file, that application has not been examined to date.

5. On 27 July 2009 the applicant was arrested. Following her arrest she appealed against her conviction, requesting, in view of the fact that her acts had been decriminalised, the reopening of her criminal case and a subsequent acquital . According to the records of the appeal court hearing, without submitting any new evidence or arguments in support, the prosecutor asked the Kutaisi Court of Appeal to reclassify the applicant ’ s conviction as abuse of office.

6. On 30 October 2009 the Kutaisi Court of Appeal, while rejecting the applicant ’ s appeal, amended her conviction, finding her guilty of abuse of office, an offence under Article 332 § 1 of the Criminal Code.

7. The applicant filed an appeal on points of law. She claimed that the decision of the Kutaisi Court of Appeal was unlawful: firstly, the court did not have jurisdiction to reclassify her conviction; secondly, the new legal classification of her acts had been proposed by the prosecutor at the final stage of the proceedings, and she had been deprived of the opportunity to defend herself; and lastly, the de facto outcome of the second set of proceedings had been her conviction for acts which had already been decriminalised.

8. By a decision of 7 May 2010 the Supreme Court of Georgia rejected the applicant ’ s appeal on points of law as inadmissible.

B. Relevant domestic law

9. The relevant provisions of the Criminal Code of Georgia, as in force at the material time, read:

Article 332. Abuse of office

“ 1. Abuse of office by an official or person of equivalent status, to the detriment of public interests and in order to gain any personal benefit or privilege, or any benefit or privilege for another person, which has substantially affected the rights of a legal or natural person, or the legal interests of society or the State, shall be punishable by a fine or a term of up to three years ’ imprisonment, and a bar on holding public office or engaging in professional activities for a period of up to three years.

... ”

Article 336. Delivery of an unlawful judgment or other court decision

“ 1. Delivery of an unlawful judgment or other court decision shall be punishable by a fine or prison term of four to six years, and a bar on holding public office or engaging in professional activities for a period of up to three years.

...”

10. Article 540 of the Code of Criminal Procedure, as in force at the material time, provided that a court of appeal had no jurisdiction to overturn a not guilty verdict, apply a stricter provision of the Criminal Code, impose a heavier sentence, or otherwise take a decision to the detriment of a convict if appeal proceedings were initiated by a person who had been convicted rather than by a prosecutor. Paragraph 2 of the same provision further stated that a court of appeal had no jurisdiction to go beyond the scope of charges brought against a defendant during the pre-trial investigation stage and maintained in first-instance proceedings.

COMPLAINTS

11. The applicant complains under Article 6 §§ 1 and 3 of the Convention that the criminal proceedings conducted against her were unfair and in violation of the principle of equality of arms. In particular, she claims that the prosecutor was not authorised to propose a new legal classification of her acts during the appeal proceedings, and that the reclassification of the offence she had allegedly committed by the appeal court prevented her from properly exercising her defence rights. With reference to Article 7 of the Convention, the applicant further complains that her second conviction was fabricated so that she could be kept in prison following decriminalisation of the offence set out in Article 336 of the Criminal Code.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against her, in accordance with Article 6 §§ 1 and 3 of the Convention? In particular:

- During the appeal proceedings, what was the legal basis for the prosecutor ’ s request to reclassify the offence allegedly committed by the applicant?

- Having regard to the reclassification of the offence, was the applicant informed promptly and in sufficient detail of the nature and basis of the accusation against her, as required by Article 6 § 3 (a) of the Convention?

- Following the reclassification of the offence, was the applicant afforded adequate time and facilities to prepare her defence, as required by Article 6 § 3 (b) of the Convention?

2. In view of the decriminalisation of the offence set out in Article 336 of the Criminal Code, was the decision of the Kutaisi Court of Appeal to reclassify the offence allegedly committed by the applicant as abuse of power compatible with the “ retrospectiveness ” requirement of Article 7 of the Convention (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 109, 17 September 2009?