THIRD SECTION

Application no. 38736/05 Teimuraz KVANTALIANI against Georgia lodged on 26 September 2005

STATEMENT OF FACTS

1. The applicant, Mr Teimuraz Kvantaliani , is a Georgian national who was born in 1953 and lives in Tbilisi . The facts of the case, as submitted by the applicant, may be summarised as follows.

A. The circumstances of the case

1. Criminal proceedings against the applicant

2. The applicant is a former chairman of the State TV and Radio Department of Georgia. In early 1992, during the period of civil unrest in Georgia , he and his family fled the country. They moved to Russia and then to Lithuania , where the applicant was granted political asylum.

3. On 12 August 1992 the applicant was charged with multiple offences related to his allegedly subversive and anti-state activities committed while acting in an organised armed group headed by the ousted President of Georgia, Zviad Gamsakhurdia .

4. On 20 April 2000 the Parliament of Georgia passed a Decree on eradicating the consequences of the civil unrest erupted in 1991-1992 and on achieving national reconciliation in Georgia (“the Decree of 20 April 2000”). According to the Decree of 20 April 2000, the Prosecutor General (“the PG”) was asked to re-examine, in accordance with the provisions of the criminal procedural legislation in force at the material time, the pending criminal cases related to the 1991-1992 civil unrest and to make public, by 10 July 2000, the list of persons with respect to whom a decision could be taken to discontinue criminal proceedings. An Ad hoc national reconciliation commission was established by the Parliament with the purpose of facilitating the implementation of the above Decree.

5. On 19 February 2001, the applicant wrote to the national reconciliation commission, expressing his consent to the termination of the criminal proceedings pending against him on the basis of Article 28 of the Code of Criminal Procedure of Georgia (“the CCP”). On 4 March 2001 the applicant returned to Georgia .

6. On 17 September 2004 the applicant ’ s lawyer wrote to the PG, requesting up-to-date information about the criminal proceedings pending against his client. Notably, he asked whether the criminal case opened against the applicant in 1992 had been discontinued and whether he could obtain copies of the relevant decisions.

7. In reply, on 17 October 2004 the chief prosecutor of the investigative department at the Office of the Prosecutor General of Georgia (“the PGO”) informed the applicant that the criminal proceedings against him were still pending and that the search warrant and the decision authorising his remand in custody had not been withdrawn. The chief prosecutor explained to the applicant that the latter was not on the list of those persons with respect to whom the decision had been taken to discontinue criminal proceedings.

8. On 5 January 2005 the applicant wrote to the PG detailing the circumstances surrounding his case and again requesting the discontinuation of the proceedings under Article 28 § 1 (b) of the CPC. This letter was apparently left unanswered. On 25 January 2005, the applicant, acting through his lawyer, reiterated his request with the PG.

9. On 12 February 2005 the chief prosecutor of the investigative department at the PGO made a ruling discontinuing the criminal proceedings against the applicant. The ruling in its relevant part read as follows:

“ ... In view of the fact that Teimuraz Kvantaliani committed the offence in 1992, following which the civil-political situation in Georgia has changed and the conduct of T. Kvantaliani has ceased to be dangerous, it is possible to apply the Decree of the Parliament of Georgia of 20 April 2000 ...”

10. The operative part of the ruling mentioned that an appeal lay against it within fifteen days.

11. The applicant was served with the above decision on 14 March 2005 and shortly afterwards, on 21 March 2005, he lodged a complaint with a first instance court requesting revocation of the ruling. The applicant denounced the reasoning of the prosecutor, according to which it was established that he had committed the offences in question. Relying on Article 28 § 7 of the CCP, he requested the continuation of the criminal proceedings against him.

12. On 18 April 2005 the applicant sent a letter to the first instance court judge assigned to his case, complaining about the delay in the examination of his appeal. He relied in this connection on Article 242 § 4 of the CCP, which set a fifteen-day time-limit for the examination of this type of complaints.

13. By a letter of 19 April 2005, the judge informed the applicant that the examination of his appeal was delayed due to the fact that the court had requested the PGO an access to the applicant ’ s criminal case file; the requested documentation had been provided only on 8 April 2005 and the court consequently required additional time to acquaint itself with the case materials.

14. On 5 May 2005 the applicant filed a complaint with the Secretary of the High Council of Justice, denouncing the delay in the examination of his appeal. The above complaint was left unanswered. The subsequent 13 May 2005 complaint was also ignored. On 29 May 2005 the applicant filed yet another complaint and requested the initiation of disciplinary proceedings against the judges concerned, to no avail however.

15. On 29 June 2005 the applicant wrote to the Supreme Court of Georgia complaining about the inactivity of the first instance court and requesting the Supreme Court to take charge of his case. On 11 July 2005 the applicant inquired with the Supreme Court of Georgia about the fate of his complaint; no reply followed.

16. As it appears from the case file, the applicant ’ s appeal filed according to Article 242 § 2 of the CCP has not been dealt with so far.

2. Compensation proceedings

17. On 17 February 2006 the applicant acting under the Law of 11 December 1997 concerning the victims of political persecution, filed an action with the Tbilisi City Court requesting to grant him the status of a victim of political repressions. He also sought compensation for, amongst others, the non-pecuniary damage he had allegedly suffered. By virtue of a court decision of 19 April 2006 the applicant was recognised as a victim of political repression. As regards specifically his request for the non ‑ pecuniary damage, the Tbilisi City Court dismissed it whilst referring to the pending criminal proceedings. Notably, the court noted that the decision to terminate criminal proceedings against the applicant on non ‑ exonerating grounds had been appealed; therefore, the issue of the applicant ’ s rehabilitation and ensuing compensation for moral damage should have been dealt with within the scope of the pending criminal proceedings.

18. The above decision was upheld by both the appeal and cassation instances.

B. Relevant domestic law

1. Criminal Procedure Code (“the CPC”), as it stood at the material time

19. Article 28 § 1 (n) provides that a criminal investigation shall be discontinued if in view of the change in circumstances the act concerned ceases to be dangerous. Paragraph 7 further stipulates that the discontinuation of the proceedings on the above ground shall take place only with the consent of a person accused.

20. Article 242 of the CPC guarantees to everyone the right to challenge before a court any decision taken by the investigating authorities and the public prosecutor ’ s office. According to Article 242 § 4 of the CPC a complaint against a prosecutorial decision shall be examined by the respective court within a fifteen-day time-limit.

2. Decree of the Parliament of Georgia on eradicating the consequences of the civil unrest erupted 1991-1992 and achieving national reconciliation (“Decree of 20 April 2000”)

21. According to the Decree of 20 April 2000 the General Prosecutor of Georgia was requested, in line with the criminal procedural legislation in force at the material time, to re-examine all the pending criminal cases related to the events of 1991-1992 and subsequent developments and to make public by 10 July 2000 the list of persons with respect to whom the decision had been taken to discontinue criminal proceedings. According to the Decree ad hoc reconciliation commission was established at the Parliament with the purpose of facilitating the implementation of the above Decree.

COMPLAINTS

22. In his original application form, lodged with the Court on 26 September 2005, the applicant complained under Article 6 § 1 of the Convention about the termination of the criminal proceedings against him on a non-exonerative ground; he considered that the prosecution had established his guilt without being proved so by law. He further denounced the failure of the domestic courts to examine his appeal against the ruling within the time-limits set out in the domestic legislation.

23. By a letter of 4 April 2007 the applicant supplemented his initial application form, complaining specifically, under Articles 6 §§ 1 and 2 and 13 of the Convention, about the length of proceedings, the violation of his presumption of innocence and the lack of an effective remedy in this regard. He also claimed that the protracted proceedings had caused him severe stress and suffering in violation of Article 3 of the Convention. Lastly, he invoked Article 14 of the Convention in connection with his Article 6 complaints, claiming that he had been discriminated against on the basis of his political affiliation.

QUESTIONS TO THE PARTIES

1. Are the judicial proceedings initiated by the applicant still pending? If so, have their length exceeded a “reasonable time”, contrary to Article 6 § 1 of the Convention?

2. Did the applicant have at his disposal an effective domestic remedy for his complaint under Article 6 § 1 of the Con vention, as required by Article 13 of the Convention?