ABSANDZE - Georgia (N° 57861/00)

Decision 15.10.2002 [Section II]

The applicant held ministerial office under the regime which ended with the 1992 civil war. In exile in Russia since then, he was arrested in 1998 by the Russian police following a request from the Georgian judicial authorities to bring criminal proceedings against him for treason and the murder of five Russian soldiers in Georgia. Having been extradited to Georgia, the applicant was detained on remand and was also charged with having organised and financed the assassination attempt against the Georgian President Mr E. Shevardnadze in 1998 and with misappropriating public funds. The applicant maintained that, after being extradited and before being tried, he was often described in public as a terrorist and bandit by various senior representatives of the Georgian authorities of the time, including representatives of the prosecuting authorities. He specifically mentioned the Principal State Prosecutor, the President of the Georgian Parliament and the Georgian President’s press attaché. His detention on remand was extended up to 10 October 1998 by decisions of the court of the city of Tbilisi and the Supreme Court. No further decision to extend the period of detention was taken after that date. The applicant remained in custody. He had several physical ailments and was still suffering from the after-effects of bullet wounds. On 15 September 2000, the applicant’s legal representative asked the Court to intervene to have him released on the grounds that his conditions of detention were inhuman and degrading and that his state of health would rapidly deteriorate. The Court decided not to apply Article 39. The applicant’s trial took place before the criminal division of the Supreme Court. The applicant escaped from the prison hospital to which he had been transferred after experiencing heart problems. He was captured two weeks after his escape and returned to prison. At the trial, the applicant’s lawyer submitted that his client had been unlawfully detained since 10 October 1998. The prosecutor replied that it could not be said that the applicant had been unlawfully detained because, from 5 October 1998 to 5 May 1999, he had been acquainting himself with the case against him and, subsequently, having been indicted, he had been brought before the Supreme Court. From that time on, according to domestic law, the accused’s detention on remand should be the responsibility of the trial court, not the state prosecutor’s department. In the course of the proceedings, following a partial retraction by the state prosecution department, the Supreme Court ordered the termination of the prosecution in respect of some of the charges against the applicant. As a result, the applicant was tried only for misappropriation of public funds and for having organised and financed the assassination attempt against the head of state in 1998. In August 2001, the Supreme Court, ruling at first instance, found the applicant guilty and sentenced him to 17 years’ imprisonment. The applicant appealed on a point of law and the case was referred to the High Chamber of the Supreme Court. The Chamber acquitted the applicant in respect of his conviction for organising and financing the 1998 assassination attempt and upheld the six-year prison sentence imposed for misappropriation of public funds. A few months later, the President of Georgia issued a pardon and the applicant was released.

Admissible under Article 3: The government argued that the applicant could have applied to the prison authorities to improve his conditions of detention. However, that remedy had not become available until 1 January 2000. On that date, the applicant had been in custody for approximately two years and his present complaint related mainly to his detention between March 1998 and February 2000. With regard to the period after 1 January 2000, the question arose of the effectiveness of the remedy referred to by the government. This question called for detailed examination.

Admissible under Article 5(1)(c) and 5(3).

Admissible under Article 5(4): Under Georgian law, supervision of the lawfulness of detention on remand by the trial court was neither automatic nor systematic, but a detainee was free at any time to ask the court hearing the case as to the merits to review the lawfulness of his or her detention and apply to be released. Since the Convention’s entry into force in respect of Georgia on 20 May 1999, the applicant had had the right to have the lawfulness of his detention reviewed at least three times by the division of the Supreme Court which had heard his case on the merits, once by the court of first instance of Krtsanissi, which had considered the question of his detention on remand after his escape, and once by the court of appeal of Tbilisi, which had upheld the detention order in respect of the applicant after his capture. The applicant raised the issue of the effectiveness of these remedies.

Inadmissible under Article 6(1) (independent tribunal): The judges of the Supreme Court were elected by the parliament on a proposal from the head of state, but it could not be inferred from this that the latter gave these judges instructions in the area of their judicial responsibilities. The irremoveability of judges during their term of office, which lasted for ten years, must be regarded as a corollary of their independence and, hence, as one of the requirements of Article 6(1). In the instant case, the institutional independence of the judges of the Supreme Court could not be called into question. Regarding the allegation that the executive had put pressure on the judges of the Supreme Court, it consisted solely of a statement by the applicant’s legal representative to the effect that the judges who had heard her client’s case were all "pocket judges" of the President of the Republic. There was no evidence in the file to suggest that the judges in question had been under the control of the President of the Republic or had been subjected to pressure in the performance of their duties: manifestly ill-founded.

Admissible under Article 6(2).