Communicated on 9 March 2016

FOURTH SECTION

Application no. 53974/15 Giorgi OKROPIRIDZE against Georgia lodged on 10 October 2015

STATEMENT OF FACTS

1. The applicant, Mr Giorgi Okropiridze, is a Georgian national, who was born in 1989 and is detained in Khelvachauri. He is represented before the Court by Mr B. Botchorishvili, a lawyer practising in Tbilisi.

A. The circumstances of the case

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

3. On 12 September 2014 the applicant was arrested and charged with aggravated murder (“the first indictment”). Subsequently he was remanded in pre-trial detention.

4. On 22 September 2014 the staff of the Public Defender ’ s Office (“the PDO”) visited the applicant in prison to whom the applicant complained that he had been ill-treated by the prison staff.

5. On 23 September 2014 the PDO wrote a letter to the Chief Public Prosecutor of Georgia informing him about the applicant ’ s allegations and requesting that the investigation be opened into the alleged ill-treatment.

6. On 25 September 2014, on the basis of the PDO ’ s letter, the Chief Public Prosecutor ’ s office opened the investigation into the alleged acts of ill-treatment. The case was then assigned to a prosecutor in Tbilisi.

7. On 2 October 2014 the applicant was questioned as a witness in the case and he reiterated his allegations to the investigation authorities.

8. On 13 October 2014, after taking several investigative actions, by his resolution, the prosecutor in charge of the investigation decided not to proceed with the case due to insufficiency of the evidence. Thus the criminal case was closed (“the 2014 resolution”).

9. On 5 June 2015 Tbilisi City Court dismissed the jury trying the applicant in relation to his first indictment as the jury could not arrive at a verdict at the end of the trial. Thus a new date was set for the selection of new jurors, while the applicant remained in pre-trial detention for which the statutory maximum time-limit of nine months was due to expire on 12 June 2015.

10. On 6 June 2015 the Head of the Investigation Department of the Public Prosecutor ’ s Office of Tbilisi, by his new resolution, quashed the 2014 resolution on the termination of the criminal case and re-opened the investigation (“the 2015 resolution”). The reason for the re-opening referred to in the 2015 resolution was that although the applicant ’ s allegations about ill-treatment had been thoroughly investigated, the investigation had omitted to look into the issue whether the applicant had committed a criminal offence of false denouncement against the prison staff by alleging to the PDO that he had been ill-treated – the allegations which eventually did not prove to be true.

11. On 7 June 2015, the investigation into the false denouncement was separated as an independent case from the re-opened case. As regards the remaining part of the re-opened case (i.e. the applicant ’ s alleged ill-treatment) , the case was closed for the same reasons as those given in the 2014 resolution. The investigation thus continued only with respect to the offence of false denouncement allegedly perpetrated by the applicant.

12. On 8 June 2015 the applicant was charged with false denouncement of an offence to the PDO committed in aggravating circumstances (“the second indictment”). The applicant ’ s second indictment was based on the evidence that had been collected back in 2014 in the framework of the investigation into his alleged ill-treatment.

13. On 9 June 2015 the Tbilisi City Court remanded the applicant in pre-trial detention in relation to his second indictment. The applicant appealed claiming that the only reason for the re-opening of the investigation under the 2015 resolution almost eight months after the case had been closed and for his second indictment with ensuing pre-trial detention was to prevent his release after the expiry of the nine months, which was the statutory maximum period for the detention on remand, from the date of his arrest under the first indictment.

14. On 11 June 2015 the Tbilisi City Court lifted the pre-trial detention under the first indictment due to the expiry of the nine-month time-limit.

15. On 12 June 2015, the Tbilisi Court of Appeal, at final instance, upheld the applicant ’ s remand in custody under the second indictment.

16. On 22 July 2015 the applicant ’ s second indictment was amended and in addition to the false denouncement of an offence to the PDO, another charge – giving false statements to the investigation authorities was added. The case was subsequently sent for the trial.

17. Soon after, the applicant ’ s lawyers motioned his release arguing that the second indictment and its ensuing pre-trial detention were unlawful. Namely, they argued that while the PDO constituted the national preventive mechanism against torture and other forms of ill-treatment in prison establishments in the country, even submission of false allegations of torture to the PDO could not be criminally punishable as stipulated in Article 21 of the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“the Optional Protocol to the Torture Convention”) to which Georgia was a party and which, being directly applicable, superseded the national criminal law in the Constitutional hierarchy of laws; the lawyers further argued that notwithstanding the second indictment, which was anyhow unlawful, the statutory maximum allowed period of detention on remand – nine months, as prescribed by Article 18 of the Constitution and Article 205 § 2 of the Code of Criminal Procedure (“the CCP) had expired on 12 June 2015; the lawyers finally contended that in any event the grounds for the applicant ’ s remand in custody were not “relevant” and “sufficient” to justify the continued deprivation of liberty under the second indictment given that the risk that the applicant would influence the witnesses or destroy the evidence relied on by the court did not exist since all the witnesses ’ statements and evidence which served as the basis for the applicant ’ s second indictment had been collected back in 2014; in any event, even the re-opened investigation was already over with all the possible additional evidence having been collected and sent to the court for the trial.

18. On 29 July 2015 the Tbilisi City Court rejected the lawyers ’ motion on the applicant ’ s release. The court reasoned that the applicant was not indicted for providing false information to the PDO as the national preventive mechanism but for giving false statements to the investigation authorities in course of the criminal investigation in 2014; the court further held that the nine-month period was calculated separately for each indictment in cases of multiple indictments, especially when a new indictment took effect close to the expiry of the nine-month period under previous indictment and there were still relevant and sufficient reasons to remand the accused in custody under the new indictment; the court finally found that considering his past criminal records and personal profile, there was a risk that the applicant would either abscond or re-offend if released, which served as sufficient ground for his continued detention on remand under the second indictment. This decision was subject to appeal together with the decision on the merits of the case once the latter decision would be handed down.

19. On 15 September 2015 the Constitutional Court of Georgia delivered a decision in the case of Giorgi Ugulava v. the Parliament of Georgia (“the Ugulava case”) which, inter alia , dealt with the issue of constitutionality of detention on remand exceeding nine months in cases with multiple indictments. In the Ugulava case the Constitutional Court held that the nine-month period could in principle be calculated separately for each consecutive indictment in cases of multiple indictments (provided an accused already charged with one offence was again indicted for another offence committed after he or she had been remanded in custody in relation to the initial charges). What Constitution proscribed, however, was an intentional postponement of bringing charges against the person for his second indictment in order to prolong the overall period of detention on remand by counting the nine-month period separately for each consecutive indictment.

20. After assessing Article 205 § 2 of the CCP and the existing court practice on the matter, the Constitutional Court held, inter alia , that, while the CCP in general conferred broad discretion on the prosecution authorities as to when to press charges, it was silent about the application of the nine-month time-limit in cases with multiple consecutive indictments; nor did it set a different overall maximum time-limit for detention on remand in cases with multiple consecutive indictments; given this omission, the provision thus created the possibility of an open-ended detention of a person with multiple consecutive indictments, which was against the spirit of the Constitution that the detention on remand should in principle be limited in time. Hence the rule it prescribed lacked the requisite clarity vis-à-vis cases involving multiple consecutive indictments and was susceptible to varied interpretations.

21. The Constitutional Court thus concluded that the interpretation of Article 205 § 2 of the CCP as allowing application of the nine-month time ‑ limit separately for each consecutive indictment would only be constitutional, if it precluded any instances of arbitrariness as outlined above.

22. On 17 September and 26 November 2015, relying inter alia on the Ugulava case as a newly discovered circumstance, the applicant ’ s lawyers again motioned before the Tbilisi City Court the applicant ’ s release. Those motions were subsequently rejected, which decisions were subject to appeal together with the decision on the merits of the case once the latter decision would be handed down.

23. On 29 January 2016 the applicant ’ s pre-trial detention was lifted after he was convicted under the first indictment by the first instance court.

B. Relevant domestic law

24. Pursuant to Article 18 § 6 of the Constitution of Georgia, the maximum period of pre-trial detention is nine months.

25. The same principle is enshrined in the Code of Criminal Procedure of Georgia (“the CCP”), which entered into force on 1 October 2010. In particular, Article 205 of the CCP reads as follows:

Article 205 – Pre-trial detention

“1. Pre-trial detention, as a preventive measure, shall be employed only when it is the sole means to prevent the accused from:

(a) absconding or interfering with the administration of justice;

(b) hampering the obtaining of evidence;

(c) reoffending .

2. The overall length of the accused person ’ s pre-trial detention shall not exceed nine months. After the expiry of that period, the accused shall be released. The period starts to run from the moment of the arrest of the accused ... and ends with the delivery of a judgment by a trial court at the first level of jurisdiction.

3. The period of detention of the accused person pending the opening of a pre-trial conference shall not exceed sixty days. After the expiry of that period, the accused must be released from detention, except in the situation provided for by paragraph 3 of Article 208 of this Code.”

COMPLAINTS

26. The applicant complains under Article 5 §§ 1 and 3 of the Convention that his detention on remand under the second indictment was unlawful and arbitrary, that the relevant domestic court decisions concerning his detention lacked sufficient reasoning and failed to lay down specific time-limits.

QUESTIONS TO THE PARTIES

Was the applicant ’ s detention on remand in breach of Article 5 §§ 1 (c) and 3 of the Convention? In particular,

( i ) Was the detention order of 9 June 2015 compatible with Article 5 § 1 (c) of the Convention?

(ii) Was the applicant ’ s detention after 12 June 2015, that is after the expiry of the nine-month time-limit (see Article 18 of the Constitution and Article 205 § 2 of the Code of Criminal Procedure as well as the Constitutional Court decision of 15 September 2015 in the case of Giorgi Ugulava v. the Parliament of Georgia ) from the day of his arrest compatible with Article 5 § 1 (c) of the Convention?

(iii) Were the Tbilisi City Court ’ s decisions of 29 July and 18 September 2015 in conformity with Article 5 § 3 of the Convention? Namely, were the grounds given therein “relevant” and “sufficient” to justify the applicant ’ s continued deprivation of liberty?

(iv) Was the detention order of the Tbilisi City Court of 9 June 2015, as upheld by its subsequent decisions of 29 July and 18 September 2015, in compliance with Article 5 § 3 of the Convention? In particular, for how long was the pre-trial detention imposed on the applicant and what was its end date? Was the period of the pre-trial detention supposed to cover the statutory maximum time-limit of nine months, the period until the opening of a pre-trial conference or any other specific period?