Information Note on the Court’s case-law 263

June 2022

Akhalaia v. Georgia (dec.) - 30464/13 and 19068/14

Decision 7.6.2022 [Section V]

Article 5

Article 5-1

Lawful arrest or detention

Lawful pre-trial detention of high-ranking official relating to parallel pending criminal cases, no evidence of procedural manipulation: inadmissible

Article 5-3

Reasonableness of pre-trial detention

Relevant and sufficient reasons for lengthy pre-trial detention (nearly two years) of high-ranking official relating to four criminal cases, with authorities exercising special diligence: inadmissible

Facts – The applicant held various high-ranking posts in the government of Georgia under former President Mikheil Saakashvili. He was arrested in November 2012 and placed under pre-trial detention for the duration of the relevant statutory time-limit of 9 months, in relation to charges of false arrest and misuse of official authority (criminal case no. 1). The applicant appealed unsuccessfully against his pre-trial detention. In August 2013, he was acquitted of all charges made in that case.

In the meantime, however, two further criminal cases (criminal cases nos. 2 and 3) had been instituted against the applicant in March 2013, on charges of inhuman treatment and misuse of power, and abuse of official authority, respectively. In both cases the domestic courts authorised, and upheld on appeal, the applicant’s pre-trial detention by issuing a new detention order under the relevant provision of the Code of Criminal Procedure, for the duration of the statutory period. The applicant was respectively convicted (criminal case no. 2) and acquitted (criminal case no. 3) of the charges in October 2013.

Finally, new charges of abuse of official authority were brought against the applicant in October 2013 (criminal case no. 4). The applicant’s pre-trial detention was authorised for the duration of the statutory time-limit and upheld on appeal. In October 2014 he was convicted of all the charges against him in that case. The conviction became final as it was not appealed against and the applicant effectively started serving his prison sentence.

Law – Article 5 § 1 (c): The applicant argued that it had been contrary to domestic law and practice to impose the measure of pre-trial detention upon him in relation to parallel pending criminal cases no. 2 and 4 because that measure had already been used against him once, in criminal case no. 1.

However, nothing in the parties’ submissions and the information available to the Court regarding the relevant domestic law and practice appeared to support that claim. Indeed, whenever an accused had been detained under the relevant provision of the Code of Criminal Procedure, it appeared that the measure had always been considered to have been imposed in connection with the particular charges brought against him or her in the given criminal case and the period of detention had been set by default at the statutory time-limit of nine months. The judicial practice under the relevant domestic law provision at the time of the applicant’s pre-trial detention had made it clear that when a person had been subject to criminal prosecution in several distinct parallel pending criminal cases, and irrespective of whether those separate sets of criminal proceedings had been initiated concurrently or consequently to each other, it had been possible to impose pre-trial detention for the statutory duration of nine months separately for each of the parallel pending sets of proceedings.

The applicant had relied on the Constitutional Court’s decision in September 2015 which had revised certain aspects of the above-mentioned judicial practice. However, leaving aside the fact that the decision in question had been adopted well after the applicant’s pre-trial detention had come to an end, and thus could not retroactively taint the legitimacy of the already terminated pre-trial detention measure, there was no incompatibility of the applicant’s individual situation with the Constitutional Court’s decision. Indeed, the Constitutional Court had stated that there could be nothing inappropriate or arbitrary in repeatedly employing the measure of pre-trial detention against the same person when parallel pending criminal cases had been opened consecutively, and that was exactly what had happened in criminal cases nos. 2 to 4.

While the applicant had referred to the judgment in Å ebalj v Croatia , the facts of that case differed in many important respects from those in the present case. The issue in the former case had been that the legal effect of one of the two detention orders had been suspended pending the duration of the parallel detention order and had come into force only after the latter had expired. More importantly, unlike in the present case, the belated entry into force of the parallel detention order had occurred in the absence of any statutory regulation or judicial practice at least arguably supporting such a course of action.

There was also nothing to support the applicant’s allegation that the criminal cases against him had been separated on purpose in order to keep him in pre-trial detention artificially for a long period of time. All four sets of criminal proceedings had concerned different factual circumstances and it had not been shown that the authorities’ decision to investigate distinct criminal offences in separate proceedings had disclosed an element of arbitrariness. The Court saw no reason to doubt either the authorities’ good faith or the fact that the applicant’s arrest and detention, which had been fully consistent with domestic law, had not involved the alleged procedural manipulation.

In view of the above considerations, the applicant’s pre-trial detention imposed in criminal cases nos. 2 to 4 and extending beyond August 2013, that is when the measure imposed in criminal case no. 1 had expired, could not be viewed as “unlawful”. The applicant had not substantiated his allegation about arbitrariness or the circumvention of the principle of legal certainty in the way the pre-trial detention proceedings had been conducted by the competent domestic authorities, and the Court was unable to discern any indication of such arbitrariness on its own.

Conclusion : inadmissible (manifestly ill-founded).

Article 5 § 3: The applicant further complained that his pre-trial detention had been unreasonably long. For the purposes of Article 5 § 3, it had lasted for just over twenty-three months.

The reasons given by the domestic court in its detention orders to place the applicant in pre-trial detention – the risks that he would flee and would try to influence witnesses – had been relevant. The Court had to determine whether they had also been sufficient:

The domestic court had not set out all the arguments cited by the prosecution in relation to those matters, especially to the risk of flight. It had, however, expressly referred to the prosecution’s pleadings in its decisions. By doing so, it had made clear that it had taken into account the specific points put forward by the prosecution and had found them sufficient to justify placing the applicant in pre-trial detention. While more detailed reasoning would have been desirable, it had been enough in the circumstances, and the Court could have regard to those specific points.

The domestic court’s findings regarding the risk of the applicant influencing witnesses had been sufficiently substantiated. In particular, it had been significant that many witnesses in the case against him had been former subordinates of his, and that he had wielded considerable influence in some sectors of Georgian society. The domestic court had further referred to two specific incidents when the applicant had tried, after the initiation of the relevant investigations, to influence the witnesses in the relevant proceedings.

The risk of flight had also been established in concrete terms. In particular, the domestic authorities had referred to the applicant’s wide network of domestic and international contacts and the fact that he had already managed, apparently owing to is connections in law-enforcement circles, to cross the State border without his international passport being recorded. Those facts, not challenged by the applicant at domestic level, as well as the seriousness of the punishment which had awaited him if convicted, suggested that the domestic court had established convincingly that at the time, the risk of the applicant’s fleeing abroad could be seen as sufficiently real and incapable of being averted by a less restrictive measure.

The domestic authorities had also acted with special diligence. While the overall period of pre-trial detention had been lengthy, the fact that its length had been the aggregate effect of the applicant being the subject of four distinct sets of criminal proceedings could not be underestimated. Furthermore, the investigations in all four criminal cases had been complex tasks for the domestic authorities, owing, inter alia, to the passage of time between the occurrence of the acts in issue and the start of the investigation, the large number of witnesses and co-accused to be examined in each case and the difficulties inherent in the prosecution of criminal offences allegedly committed by high-ranking officials, which the applicant had been at the time. The applicant had not claimed that there had been significant periods of inactivity on the part of the domestic authorities and had not brought up relevant arguments pointing to such delays.

In those circumstances, the applicant’s right to have his cases examined with particular expedition could not unduly hinder the domestic authorities’ conscientious efforts to carry out their investigative tasks with proper care.

Conclusion : inadmissible (manifestly ill-founded).

The Court also declared the complaint under Article 18 taken in conjunction with Article 5 § 1 (c) inadmissible (manifestly ill-founded): since no arguable issue under the latter substantive provision could be said to exist, Article 18 could not be relied upon.

(See also Å ebalj v. Croatia , 4429/09 , 28 June 2011; Merabishvili v. Georgia [GC], 72508/13, 28 November 2017, Legal Summary )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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