Communicated on 2 April 2014

FOURTH SECTION

Application no. 72508/13 Ivane Merabishvili against Georgia lodged on 20 November 2013

STATEMENT OF FACTS

The applicant, Mr Ivane Merabishvili , is a Georgian national, who was born in 1968 and lives in Tbilisi. He is represented before the Court by Mr O. Kakhidze, a lawyer practising in Tbilisi.

A. The circumstances of the case

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

1. Criminal Proceedings

2 . Prior to the parliamentary election of 1 October 2012 which entailed the change of government, the applicant, one of the leaders of the then ruling party United National Movement (UNM), exercised, for several months in 2012, the function of the Prime Minister of Georgia. Prior to that, between 2005 and 2012, he had held the post of the Minister of the Interior.

3 . On 15 October 2012, after the political coalition Georgian Dream had won the parliamentary election and formed a new government, the applicant was elected as the Secretary General of the UNM which became the major opposition force in the country.

4 . On 1 and 7 December 2012 the applicant was summoned by the Ministry of the Interior in the capacity of a witness for an interview in relation to criminal proceedings instituted on the alleged fact of the use by him of a fake international passport when travelling from Georgia to Armenia for an official visit on 30 November 2013. The applicant duly showed up before and gave statements to the investigative authority on both occasions.

5 . On 13 February 2013 criminal proceedings for embezzlement and abuse of power were launched against the applicant and the Governor of the Kakheti Region (who had previously held the posts of the Mayor of Tbilisi, Ambassador of Georgia to the Council of Europe and Minister of Labour, Health and Social Affairs). They both duly appeared before the Chief Public Prosecutor ’ s Office on the same day and were interviewed in the capacity of witnesses.

6 . Between 1 November 2012 and 21 May 2013, the applicant travelled from Georgia to various countries and returned back on five occasions.

7 . On 21 May 2013 the applicant and the Governor of Kakheti were summoned by the prosecution authority for another interview. At the end of that examination, both were arrested. The applicant ’ s arrest was linked to a suspicion that he had committed vote buying (Article 164(1) of the Criminal Code), misappropriation of another person ’ s property (182 § 3 of the Criminal Code), abuse of official power (332 of the Code of Criminal Procedure), breach of inviolability of another person ’ s home (Article 160 of the Criminal Code). As confirmed by the relevant record, the arresting officer duly explained to the applicant the nature of the above-mentioned charges against him as well as his procedural rights. He was also briefed on the reasons for his arrest – notably that, apart from the reasonable suspicion of his having committed the relevant offences, there also existed risks that he, as a particularly influential person who had held several high-ranking State positions in the past, might negatively influence the progress of the investigation and that, having regard to his previous attempt to cross the State border under a fake travelling document, he might abscond.

8 . By a decision of 22 May 2013, the Kutaisi City Court, after having held an oral hearing with the participation of both co-accused persons and their lawyers, decided to release the Kakheti Governor on bail, the amount of which was fixed at 20,000 Georgian laris, and to remand the applicant in custody.

9 . As to the grounds confirming the necessity for imposition of detention with respect to the applicant, the Kutaisi City Court, apart from referring to the gravity of the charges and the severity of the possible sentence, also referred to the risk of collusion. Notably, endorsing the prosecution authority ’ s arguments, the City Court, whilst acknowledging that the applicant had proved to be cooperative with the investigation by appearing for interviews, stated that he could nevertheless use his prominent social position, which emanated from the fact of his having held various high-ranking posts for many years (Chief of Security Council, Minister of Security, Minister of the Interior, Prime Minister), to hamper the investigation process. In particular, the City Court recalled that the witnesses which were to be examined by the investigation had been or still remained under the applicant ’ s direct hierarchical authority and personal influence. The City Court also noted in that respect that the applicant had already been suspected of an attempt to influence a specific witness within the context of the ongoing criminal proceedings. Lastly, in reply to the applicant ’ s complaint that the criminal proceedings against him should have been conducted, according to Section 8 (g) of the Act of 21 October 2008 on Public Prosecution, by the Minister of Justice in person rather than an ordinary prosecutor (see paragraph 20 below), the City Court replied that the applicant ’ s understanding of the domestic provision was manifestly wrong. The cited domestic provision clearly required that the criminal proceedings were to be conducted by the Minister of Justice only with respect to criminal offences committed by acting high-ranking State officials.

10 . The applicant appealed against the decision of 22 May 2013, maintaining that since the criminal acts impugned to him related to the period when he had served either as the Minister of the Interior or the Prime Minister of Georgia, it was unlawful, within the meaning of Section 8 (g) of the Act on Public Prosecution, for an ordinary prosecutor to lead the proceedings. He also complained that the imposition of pre-trial detention was unreasonable, as the Kutaisi City Court, apart from using abstract phrases in its decision, had failed to refer to any specific evidence or arguments supporting any actual risk of him colluding or absconding in the light of the particular circumstances of his case.

11 . By a decision of 25 May 2013, the Kutaisi Court of Appeals dismissed the applicant ’ s appeal as ill-founded, confirming that the Kutaisi City Court had correctly assessed the relevant factual circumstances and applied the legal provisions.

12 . Following the practice established after the entry into force of the new Code of Criminal Procedure on 1 October 2010 (see also paragraphs 21 and 22 below), the Kutaisi City Court did not set a specific limit for the imposed pre-trial detention but indicated instead, pursuant to Articles 205 and 208 of the CCP, that a pretrial conference will be opened on 15 July 2013.

13 . On 2 July 2013 the prosecutor requested the Kutaisi City Court to postpone the opening of the pretrial conference until 11 September 2013. The prosecutor substantiated his request by the need to conduct certain additional specific investigative measures. Both the applicant and the co ‑ accused Kakheti Governor agreed with the extension request in part. By a decision of 5 July 2013, the Kutaisi City Court similarly granted the request in part, postponing the date until 23 August 2013. That decision, which did not specifically address the necessity for maintaining the continued detention, automatically entailed the extension of that measure.

14 . On 14 August 2013 the Kutaisi City Court, granting the prosecutor ’ s second extension request which was grounded on the difficulties encountered in the process of collecting certain pieces of evidence, set a new date for the opening of a pretrial conference by 12 September 2013. That decision, which did not specifically address the necessity for maintaining the continued detention, automatically entailed its further extension.

15 . On 12 September 2013 the Kutaisi City Court opened the pretrial conference. According to the record of one of its subsequent sessions, the applicant requested, on 25 September 2013, that his pre-trial detention be replaced by a non-custodial measure of restraint. In support, the applicant referred to the prosecution authority ’ s failure to indicate any new arguments arguably capable of substantiating the risk of his absconding or collusion. As additional guarantees for his appearance for trial, the applicant referred to the fact that he was the Secretary General of a major political party, that he had made a public pledge to cooperate with the authorities and had never failed to appear before the investigative authorities in the past. That request was examined and rejected by the judge on the same day de plano , without delivering a reasoned decision, but announcing his decision orally for the audio record.

16 . According to the case file as it stands in hand, the criminal proceedings against the applicant are still pending before the trial court.

2. International Community ’ s comments

17 . The applicant also submitted newspaper articles containing interviews with various high-ranking officials of the current Government of Georgia (the Prime Minister, Ministers and so on), excerpts from which could prove, in his opinion, that a politically motivated persecution has been launched against the former members of the government.

18 . The applicant also referred to public statements by various leading figures of the international community (the Secretary of State and several Senators of the United States, the Secretary General of the North Atlantic Treaty Organisation, various European Commissioners) which conveyed concern over the initiation of criminal proceedings and arrest of former high-ranking Government officials. Thus, for instance, the President of the European Commission made a public statement on 12 November 2012, after his meeting with the Prime Minister of Georgia, in which there was the following passage: “The elections in Georgia were successfully held, and they were recognised as free and fair elections [ ... ] Democracy is more than elections, it ’ s the culture of political relations in democratic environment. In this respect, situations of ‘ selective justice should be avoided as they could harm the country ’ s image abroad and weaken rule of law.” On the same day, the Secretary General of NATO publicly declared that “I am extremely concerned about the developments we have seen since the elections, not least related to recent arrests of political opponents in Georgia ... It is for the legal system, the judicial system in Georgia to sort out these case. But of course it is important that such trials are not undermined by political interference.”

19 . The European Union High Commissioner for Foreign and Security Policy publicly declared during her visit to Georgia on 26 November 2012 the following: “The European Union calls on all sides in Georgian politics to uphold European values of democracy, freedom and the rule of law. There should be no selective justice; no retribution against political rivals. Investigations into past wrongdoings must be, and must be seen to be, impartial, transparent and in compliance with due process.” The United States Secretary of State publicly declared during her meeting with the Georgian Minister of Foreign Affairs in November 2013: “We do hope that everything that is done with respect to prosecuting any potential wrongdoers is done transparently in accord with due process of law.”

B. Relevant domestic law

1. Act on Public Prosecution

20 . Section 8 of the Act of 21 October 2008 on Public Prosecution, as it stood prior to its amendment on 20 May 2013, read as follows:

Section 8

“1. The Minister of Justice shall ...

(c) conduct criminal proceedings in the event of commission of an offence by the President of Georgia, Member of Parliament, ... a Member of the Government ... .”

2. Code of Criminal Procedure

21 . After the entry into force, on 1 October 2010, of the new Code of Criminal Procedure of Georgia (“the CCP”), which substantially changed the procedure for conducting a criminal investigation and trial, the domestic courts abandoned the practice of indicating specific time-limits in their decisions imposing pre-trial detention. Article 205 of the Code, relating to the pre-trial detention, read in their relevant parts as follows:

Article 205 – Pretrial detention

“1. Pretrial detention, as a restraint 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) re-offending.

2. The overall length of the accused person ’ s pretrial detention shall not exceed 9 months. After expiry of this period, the accused must be released. The period starts to run from the arrest of the accused ... and ends upon delivery of a judgment by a trial court of the first level of jurisdiction.

3. The period of detention of the accused person pending the opening of a pretrial conference shall not exceed 60 days. After expiry of this period, the accused must be released from detention, except for a situation provided for by paragraph 3 of Article 208 of this Code.”

22 . Pursuant to Article 206 §§ 3 and 6 of the CCP, the prosecutor ’ s initial request for the imposition of a pre-trial restraint measure, such as detention, which must be submitted to the relevant magistrate judge within 48 hours after the arrest of the accused, shall always be examined with the parties ’ participation at a fully adversarial oral hearing. The magistrate shall then deliver a written decision on the matter which must contain reasons, and the accused shall have the right to lodge an appeal against this decision to a higher court (Article 207).

23 . Pursuant to Article 206 §§ 8 and 9, after the initial imposition of the pre-trial restraint measure, such as detention, a party is entitled to request the alteration or annulment of the imposed restraint measure on the ground of newly discovered circumstances. The relevant magistrate judge is entitled to examine the admissibility of the request, which should be focused on the question of whether the newly discovered circumstances have truly emerged, without an oral hearing but must nevertheless deliver a written, reasoned decision on the matter.

24 . The CCP, among other novelties, introduced the notion of pretrial conference, i.e. a meeting of the parties to a case conducted prior to trial before the judge. As suggested by Chapter XXII of the Code, which contains all the rules governing the administration of a pretrial conference, the main purposes of the meeting is to help the trial judge establish managerial control over the case, improve the quality of the trial thorough preparation, discourage wasteful pretrial activities, facilitate a settlement of the case and so on. Article 208, which concerns the deadline for the opening of a pre-trial conference, reads as follows:

Article 208 – Decision of the Investigating Judge to Schedule a Pretrial Conference

“1. If no plea bargain has been reached between the parties, the magistrate judge, after hearing the parties ’ comments on the issue, shall schedule a date for a pretrial conference. ...

3. A pretrial conference shall be opened within 60 days after the arrest of the accused or (if the pretrial detention has not been imposed) after charges have been brought. A party is entitled to make a reasoned request for an extension or reduction of this period, of which the other party should be informed. The latter party shall be entitled to submit written comments in reply within 3 days, which period starts to run from the moment the request for extension/reduction was submitted to the magistrate judge. After this period, the magistrate judge shall examine the request for extension/reduction without an oral hearing. No appeal shall lay against a decision delivered by the judge on this issue.”

25 . Pursuant to Article 219 § 4, during a pretrial conference the trial judge, amongst other issues, shall examine and decide on a party ’ s request for the imposition, alteration or annulment of a pretrial restraint measure, including detention. After hearing the parties ’ comments on the matter, the judge makes a relevant decision orally for the record, in the parties ’ presence. It is not clear from this provision in what procedural form the trial judge should decide on the question of the pre-trial measure, whether it should be, following the general rule contained in the relevant parts of Article 206 (see paragraph 23 above), delivered in a written, reasoned form or, as it happened in the applicant ’ s case (see paragraph 15 above), orally, for the audio record of the relevant court session.

26 . Whilst Article 208 specified that a pre-trial conference shall be normally be opened within 60 days after the arrest or bringing of the charges (see paragraph 24 above), the CCP does not contain a provision specifying as to how long the opened pretrial conference can last.

27 . Article 225 provides that a trial should be held within 14 days after the termination of the pretrial conference.

COMPLAINTS

28 . The applicant complains that his arrest and the subsequent imposition of pre-trial detention by the domestic courts was not strictly necessary, as the courts failed to give sufficient reasons in their decisions, in breach of Article 5 §§ 1 and 3 of the Convention. Under Article 5 § 4 of the Convention, he further complains that the Kutaisi City Court did not conduct a proper judicial review when examining his request for substitution of the pre-trial detention by a non-custodial measure of restraint on 25 September 2013.

29 . Citing Article 18 of the Convention in conjunction with his above-mentioned complaint under Article 5 § 1 (c) of the Convention, the applicant, referring to the various statements of the current Government officials as well to those of the international observers (see paragraphs 18 and 19 above), claims that the initiation of the allegedly fabricated criminal proceedings and the consequent imposition of the pre-trial detention served the purpose of excluding him from the political life of the country and prevented him to stand as a candidate in the presidential election which had been held in October 2013.

QUESTIONS TO THE PARTIES

1. Did the deprivation of the applicant ’ s liberty after the opening of the pre-trial conference fall within paragraph (c) of Article 5 § 1 of the Convention?

- Notably, was that particular period of the applicant ’ s pre-trial detention (after the opening of the pre-trial conference) based on a court decision or a legal provision of the Code of Criminal Procedure (please specify exactly which one)?

- For how long did the Kutaisi City Court ’ s decision of 22 May 2013 impose the pre-trial detention on the applicant? Was that decision supposed to cover the maximum period of pre-trial detention authorised by Article 205 § 2 of the Code of Criminal Procedure (nine months), the period until the opening of pre-trial conference or any other specific period?

- Is it consistent with the relevant judicial practice not to indicate explicit time-limits in court decisions imposing the measure of pre-trial detention under Article 205 of the Code of Criminal Procedure? The parties are invited submit relevant examples.

2. Did the applicant ’ s pre-trial detention comply with the requirement of Article 5 §§ 3 and 4 of the Convention?

- Notably, were the grounds given in the Kutaisi City Court ’ s decisions of 5 July, 14 August and 25 September 2013 “relevant” and “sufficient” to justify the continued deprivation of the applicant ’ s liberty?

- Did the Kutaisi City ’ Court ’ s decision of 25 September 2013 to maintain the applicant in custody result from an appropriate judicial review during which both the reasonableness of the suspicion underpinning the applicant ’ s arrest and the legitimacy of the purpose pursued by that arrest and the continued detention was duly addressed?

- Was it compatible with relevant domestic law (see in particular Article 206 of the Code of Criminal Procedure) and practice for the Kutaisi City Court to reject the applicant ’ s request for the review of his pre ‑ trial detention on 25 September 2013 orally, only for the audio record of the relevant court session, and without delivering a written, reasoned decision? The parties are invited to submit examples of the relevant judicial practice.

3. Was the deprivation of the applicant ’ s liberty imposed for a purpose other than those envisaged by Article 5 § 1 (c) of the Convention, contrary to Article 18 of the Convention?