TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): I then turn to Judge Zypandzic's question and point about Article 41 and Article 46.
AP1 (Applicant): And we note what you've said, Mr. President,
AP1 (Applicant): about not requiring written submissions at the moment.
AP1 (Applicant): We accept and we note that the court hasn't previously made an order of reinstatement.
AP1 (Applicant): So we are aware of the claim that we're making before you today.
AP1 (Applicant): We would say, though, that the court has, for a number of years, taken off its shackles in terms of the limits of what it can do under Article 41 and Article 46, in that it is many, many years past since declaratory relief is what the court is limited to.
AP1 (Applicant): And you can see that in the cases on property, in cases like Bromerescu, where the court orders property to be returned.
AP1 (Applicant): You can see it most starkly in the detention cases, that's Anidze and Ilascu, where the court orders a state to ensure the release of an individual using these provisions.
AP1 (Applicant): I think you can also see it in the development of the use of Article 46 in the pilot judgment procedure.
AP1 (Applicant): If you go to the test that is applicable, the restituto in integrum test, so far as is possible, the court is obliged to restore the position, restore the applicant's position.
AP1 (Applicant): In this case, and this is really why we raise it in this case, Parex Allance, his position can only be properly restored by reinstatement.
AP1 (Applicant): And that's why we make the claim about reopening in the alternative.
AP1 (Applicant): Given the systemic failings, the systemic problems in Ukraine that we've outlined today, we would have no confidence that if his case were reopened, it would be considered properly or within a sufficient time.
AP1 (Applicant): That is why we focus today on reinstatement.
AP1 (Applicant): We also submit that we don't we're not formally stopped at this stage from raising this at a hearing on admissibility and the merits.
AP1 (Applicant): And the government has raised today the possibility of reinstatement.
AP1 (Applicant): We've heard them refer to that.
AP1 (Applicant): They've conceded that there have been changes in the law.
AP1 (Applicant): And so first and foremost, we ask for reinstatement.
AP1 (Applicant): And that doesn't mean that we drop, of course, all the damages claim.
AP1 (Applicant): We would be in the alternative in relation to the future damages claim, admittedly, but not in relation to past damages claim.
AP1 (Applicant): I think at the moment, that's all I'll say on that.
AP1 (Applicant): If the court were to decide in the future to ask for written submissions on that, we'd be very willing, of course, to do so.
AP1 (Applicant): And finally, Mr. President, if I could just
AP1 (Applicant): respond to a few points that the government made very, very briefly.
AP1 (Applicant): The government referred to a statement by Mr. Kivalov in 2007.
AP1 (Applicant): He made an oral statement to the mass media to the effect that judges who made the claim challenging Parliament at that time, including Mr. Volkov, should be dismissed.
AP1 (Applicant): They suggested that because that statement was made more than six months before the dismissal proceedings were introduced, there was no causal relationship.
AP1 (Applicant): We say, on the contrary, that that supports our argument of subjective partiality by Mr. Kivalov.
AP1 (Applicant): They've also referred again today to the supposed safeguards, the legislative safeguards relating to the higher administrative court.
AP1 (Applicant): They simply referred back to their written pleadings, which specify nothing at all.
AP1 (Applicant): And yet again today, we've heard nothing specific on that.
AP1 (Applicant): The government also said that Mr. Volkov did not
AP1 (Applicant): complain about the judges of the higher administrative court.
AP1 (Applicant): That's simply wrong.
AP1 (Applicant): He made a direct challenge to the legality of that court on the basis that Mr. Pasyniuk wasn't formally legally
AP1 (Applicant): in position.
AP1 (Applicant): And that application was rejected by the court.
AP1 (Applicant): Mr. President, that concludes the submissions
AP1 (Applicant): on behalf of the applicant.
Dean Spielmann (JudgeP): Thank you, Mr. Leach.
Dean Spielmann (JudgeP): Does, are there any other submissions by Ms. Gordon?
Dean Spielmann (JudgeP): If not, I would have an additional question for you, and I will, of course, give the possibility also to Mr.
Dean Spielmann (JudgeP): Kulchytskyy to respond.
Dean Spielmann (JudgeP): In the context of the Article 46 issue, you just said at the moment that you argue reinstatement as your main proposal, and in the alternative, you would suggest reopening.
Dean Spielmann (JudgeP): And Ms. Gordon, when she made her submissions earlier
Dean Spielmann (JudgeP): this morning, she referred to our case law concerning the operative part of the judgment, and she referred to two cases, Brumărescu against Romania and Džiautas against Lithuania.
Dean Spielmann (JudgeP): Do you also argue that if the Court finds a violation and if we would go into the direction of reinstatement, this should be made also in the operative part, or did your submission only concern the reopening issue when you elaborated on the operative part?
Dean Spielmann (JudgeP): And of course, I will give Mr. Kulchytskyy the possibility to reply to what you are
Dean Spielmann (JudgeP): suggesting.
AP1 (Applicant): Mr President, yes, we would also request that, were the court minded to order reinstatement, that it is an order of the court and therefore it should be within the operative provisions and the development of the court's application of Article 41 and Article 46 is no bar to that.
AP1 (Applicant): So yes, reinstatement in the operative provisions and the alternative reopening in the operative provisions, Lungokye and Kundak are two examples of the application of the use of the operative provisions in questions of reopening.
AP1 (Applicant): There are of course many other decisions, particularly in the criminal context where the court has made similar decisions.
Dean Spielmann (JudgeP): Mr. Kulchytskyy, do you want to make further observations?
GR1 (Government): Yes, certainly.
GR1 (Government): The government would like to know that, as I told already, there is a possibility, according to national legislation, to reopen procedure, and there is no reason to believe that government is not going to execute the obligation under the court's judgment.
GR1 (Government): So we believe that if there will be a finding of violation, this judgment will be executed in full, according to national legislation, and under supervision of the Committee of Ministers.
Dean Spielmann (JudgeP): Thank you very much indeed, Mr. Kulchytskyy.
Guido Raimondi (JudgeP): I declare open the public hearing on the merits in the case of Mirabishvili versus Georgia.
Guido Raimondi (JudgeP): The application was lodged with the court on 20 November 2013 under Article 34 of the Convention by a Georgian national, Mr. Ivan Merabishvili.
Guido Raimondi (JudgeP): The application was allocated to the fourth section of the court, pursuant to Rule 52, paragraph one of the rules of the court.
Guido Raimondi (JudgeP): On 14 June 2016, a chamber of the fourth section delivered a judgment in which it declared the application admissible and held that there had been no violation of Article 5, paragraph one of the Convention and no violation of Article 5, paragraph three, in account of the national court decisions to place the applicant in pretrial detention, but that there had been a violation of Article 5, paragraph three, in account of a judicial decision of 25 September 2013 to release him from pretrial detention.
Guido Raimondi (JudgeP): The chamber also held that there had been a violation of Article 18, taken in conjunction with Article 5, paragraph one, and lastly, that there was no need to examine the complaint under Article 5, paragraph four.
Guido Raimondi (JudgeP): On 14 September 2016, the government requested that the case be referred to the Grand Chamber in accordance with Article 43, paragraph one of the Convention.
Guido Raimondi (JudgeP): The panel of the Grand Chamber accepted the request on 17 October 2016.
Guido Raimondi (JudgeP): The respondent government are represented by Mr. Aleksandre Baramidze,
Guido Raimondi (JudgeP): First Deputy Minister of Justice of Georgia, and by their agent, Mr. Beka Dzamashvili.
Guido Raimondi (JudgeP): They are assisted by Mrs. Mariam Bilikhodze,
Guido Raimondi (JudgeP): Mrs. Nana Tchanturidze, Mr. Revaz Bagashvili,
Guido Raimondi (JudgeP): and Mrs. Elena  Beradze, advisors.
Guido Raimondi (JudgeP): The applicant is represented by Mr. Philip Leach
Guido Raimondi (JudgeP): and Mrs. Joanne Sawyer, counsel.
Guido Raimondi (JudgeP): They are assisted by Mr. Otar Kakhidze,
Guido Raimondi (JudgeP): Mr. Davit Kakoishvili, and Mrs. Ani Khojelani, advisors.
Guido Raimondi (JudgeP): Mrs. Sawyer and Mr. Leach for the applicant
Guido Raimondi (JudgeP): will speak first, and then Mr. Baramidze
Guido Raimondi (JudgeP): and Mr. Dzamashvili for the government.
Guido Raimondi (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, English and French, interpreting into Russian has been authorized for the benefit of a group of visitors from the European Human Rights Advocacy Center who are attending the hearing.
Guido Raimondi (JudgeP): I call Mrs. Sawyer.
Guido Raimondi (JudgeP): Can we have the floor, please?
AP1 (Applicant): I shall briefly introduce Mr. Mehrabi-Shvili's case
AP1 (Applicant): and address the Court on admissibility and Article 5 of the Convention.
AP1 (Applicant): My colleague, Mr. Leitch, will address the Court
AP1 (Applicant): on Article 18.
AP1 (Applicant): At the heart of this case is the use of criminal proceedings to prevent the applicant, a senior representative of the principal opposition party in Georgia, the United National Movement, UNM, and a former minister of interior and prime minister from being able effectively to participate in the political process during the run up to the 2013 presidential election and subsequently.
AP1 (Applicant): In its decision of 14th June 2016, the fourth section of the Court held the respondent government in breach of Article 5.3 due to the domestic court's
AP1 (Applicant): superficial consideration of the applicant's request for review of his detention and in violation of Article 18 as Mr. Mehrabi-Shvili's detention was used as a means
AP1 (Applicant): of exerting leverage or pressure on him.
AP1 (Applicant): The applicant respectfully requests the Grand Chamber to affirm and expand on the findings of the Chamber as set out in our written submissions and developed orally today.
AP1 (Applicant): The Chamber found this application admissible and the applicant asked the Grand Chamber to affirm this finding.
AP1 (Applicant): We make two points on admissibility.
AP1 (Applicant): Firstly, before the Chamber, the government did not dispute the admissibility of any aspect of the applicant's complaint.
AP1 (Applicant): However, before the Grand Chamber, the government belatedly objects to admissibility of the applicant's complaints regarding the decision of 25th September 2013 on the basis of a failure to appeal to the investigative body of the Court of Appeals.
AP1 (Applicant): The applicant submits that he did not have a remedy by which to appeal the September 2013 decision and the government's objection should be dismissed.
AP1 (Applicant): Detention decisions of a pretrial conference as opposed to decisions made during the investigation phase are not subject to appeal.
AP1 (Applicant): This practice is reflected in the 2015 commentary on the Criminal Procedure Code of Georgia and evidence by the decision of 21st September 2016, relied on by the government, in which the Kutaisi Court of Appeal specifically stated that parties may not appeal decisions on preventive measures adopted during pretrial conference.
AP1 (Applicant): In any event, and as we develop later, no reasons were provided by the September 2013 court for the applicant to meaningfully appeal.
AP1 (Applicant): In addition, the applicant notes that he again raised the substance of his complaint when he sought further review of his detention less than two weeks later in October 2013.
AP1 (Applicant): Secondly, Mr. Maravich-Villi has raised each of his complaints
AP1 (Applicant): in compliance with the six-month rule under Article 35.1.
AP1 (Applicant): The government's arguments on admissibility are therefore misconceived, and we request that they be dismissed.
AP1 (Applicant): Turning to our submissions on the merits, Mr. Maravich-Villi argues that the evidence in this case
AP1 (Applicant): establishes that the real motive for his arrest and detention was to exclude him from political life, a point that we develop more fully in our submissions under Article 18, but which the court is asked to take into account now when assessing the compatibility of the applicant's arrest and detention with Article 5.
AP1 (Applicant): We make three points under Articles 5.1, 3, and 4.
AP1 (Applicant): Before taking each in turn, we underline the fundamental nature of Article 5 and its primary importance in a democratic society, as was reaffirmed by the Grand Chamber last year in Bazarja, Moldova.
AP1 (Applicant): Turning to our first submission, the applicant's arrest did not comply with domestic law, and his detention on remand was unjustified and disproportionate in breach of Article 5.1c.
AP1 (Applicant): As the court has previously stated, the detention decisions, as well as the circumstances of an individual's arrest, should be taken into consideration when assessing whether or not an individual's arrest is compatible with Article 5.1c.
AP1 (Applicant): Mr. Maravich-Villi was arrested on 21 May 2013.
AP1 (Applicant): Article 171 of the Georgian Code of Criminal Procedure provides that a court order is required for an arrest unless one of the grounds set out in Article 171 para 2 is met, and only if there's probable cause.
AP1 (Applicant): Mr. Maravich-Villi argues that his arrest without an order
AP1 (Applicant): was unjustified.
AP1 (Applicant): He asked the Grand Chamber to pay particular attention to the circumstances of his arrest, namely 50 minutes after the conclusion of his questioning by the prosecutor as a witness.
AP1 (Applicant): The close proximity in time between the conclusion of his interrogation and his arrest demonstrates a lack of bona fides by the authorities.
AP1 (Applicant): Despite the government's assertion that the applicant's situation had substantially changed, the fact that he was arrested so soon after his questioning ended indicates that the decision to arrest and charge him had already been made.
AP1 (Applicant): The authorities, therefore, had had sufficient time to seek a court order for his arrest, and there was no justification for their having failed to do so.
AP1 (Applicant): In addition, the investigative authorities failed to evidence the grounds which they claimed necessitated his arrest without a court order.
AP1 (Applicant): Mr. Maravich-Villi had appeared as a witness whenever summoned,
AP1 (Applicant): always returned to Georgia, and there was no evidence that he would hinder the investigation.
AP1 (Applicant): Further, the Kutaisi City Court, which should have acted as a procedural safeguard at the applicant's first court appearance, failed to examine the lawfulness of his arrest.
AP1 (Applicant): Rather than considering the details of his arrest and assessing its proportionality, the court simply concluded that it was lawful.
AP1 (Applicant): His unjustified arrest without a court order, coupled with the court's subsequent failure to assess its legality, therefore breached the lawfulness requirement under Article 5.1c.
AP1 (Applicant): At his first appearance, the prosecutor applied for Mr. Maravich-Villi's detention
AP1 (Applicant): as a preventive measure, which the applicant challenged.
AP1 (Applicant): Having heard argument, the city court held that the applicant should be detained on the basis of a risk that he would abscond of evidence being damaged or of witnesses being subjected to pressure.
AP1 (Applicant): The court did not specify, however, the period of pretrial detention to be imposed, but based its decision on a number of domestic law provisions without explaining the manner in which they applied to the applicant.
AP1 (Applicant): Mr. Maravich-Villi argues that the court's failure
AP1 (Applicant): to specify the length of his detention lacked legal certainty.
AP1 (Applicant): According to the case law of this court, the principle of legal certainty requires that the law and the authorities' decisions should be unequivocal.
AP1 (Applicant): However, the applicant submits that by failing to specify its duration, the decisions on detention in his case were equivocal, and he was placed in a state of uncertainty as to the length of his detention.
AP1 (Applicant): The government assert that the city court's reference to Article 205 of the criminal procedure code showed that he was detained for the nine-month maximum period.
AP1 (Applicant): Although not disputing that the city court referred to Article 5 in its 22 May decision, the court made simply a passing reference as part of a long list of other provisions which the court was guided by.
AP1 (Applicant): The court provided no narrative analysis or explanation of the manner in which the legal provisions were applied or in what respect.
AP1 (Applicant): The court did not highlight which of the six subsections of Article 5 it was applying, did not specify that it was applying Article 205 para 2 in particular, nor specified that it was imposing the maximum period of nine months pretrial detention.
AP1 (Applicant): The court failed to differentiate between the application of the various legal provisions to the applicant and his co-defendant, to whom it granted bail at the same hearing, and for whom Article 205 was therefore inapplicable, indicating a formulaic rather than an individualized approach and a lack of legal clarity.
AP1 (Applicant): The appeal court on 25 May 2013 made no reference to Article 205 nor to the length of Mr. Maribyshvili's detention.
AP1 (Applicant): A textual reading of Article 205 indicates that it is a backstop provision, which limits the maximum period of pretrial detention in order to comply with the Constitution, rather than a default period for which detention is authorised.
AP1 (Applicant): The uncertainty of the court's approach in the applicant's case was compounded by the fact that at the time, the nine-month period could be applied separately and consecutively in relation to each individual charge, meaning that for individuals like the applicant who were charged with multiple offences, the period for which their detention was authorised was entirely unclear and could potentially extend well beyond nine months.
AP1 (Applicant): Such an approach was adopted in relation to Mr. Bachana Achalaya, former Minister of Defence
AP1 (Applicant): and Minister of Internal Affairs, who was detained for almost two years pursuant to six overlapping pretrial detention orders during 2012 to 2014.
AP1 (Applicant): Mr. Georgi Bougalava, similarly, former mayor of Tbilisi,
AP1 (Applicant): a member of the UNM, and an applicant before this court, was detained in July 2014 and then again in March 2015 in relation to a different case shortly before the expiration of the nine-month period.
AP1 (Applicant): This led, in Mr. Bougalava's case,
AP1 (Applicant): the Constitutional Court of Georgia to determine in September 2015 that Article 205, paragraph 2, was unconstitutional and legally invalid.
AP1 (Applicant): As a result, Mr. Bougalava was briefly released.
AP1 (Applicant): The chamber in the present case relied on the fact that under domestic law, an applicant may request that his detention be reviewed.
AP1 (Applicant): However, the applicant notes that this possibility only exists where there are new essential issues which were unknown at the time of the hearing, Article 206, paragraph 8.
AP1 (Applicant): This sets a very high burden for a detainee to meet, give the fundamental rights at stake, and is in conflict with the presumption in favor of release under Article 5.
AP1 (Applicant): Finally, under Article 5.1, the applicant
AP1 (Applicant): submits that his detention was unjustified, that the domestic courts failed to adequately assess its proportionality, or whether other less restrictive measures would have mitigated the alleged risks, such as the use of personal sureties or release on bail, as the applicant proposed.
AP1 (Applicant): We turn now to Mr. Mirabishvili's second submission,
AP1 (Applicant): namely that there were no grounds to impose and then extend his pretrial detention, and that the domestic courts failed to provide relevant and sufficient reasons throughout the period of his detention in breach of Article 5.3.
AP1 (Applicant): In this case, the chamber considered the domestic decisions of 22 and 25 May 2013 together, holding that the initial imposition of detention was not unreasonable.
AP1 (Applicant): However, it held that the decision of the city court of September 2013, rejecting the applicant's request for review of the reasonableness of his detention without issuing a written decision or providing oral reasons, contradicted the court's heightened obligation to convincingly establish whether his continued detention was justified, given the passage of time, and to consider alternatives.
AP1 (Applicant): The applicant submits that his pretrial detention throughout was not based on relevant and sufficient reasons.
AP1 (Applicant): In relation to the May decisions, the city court failed adequately to consider his arguments that he did not represent a flight risk and to specify the specific factors or evidence that it had taken into account when upholding the prosecutor's motion.
AP1 (Applicant): In addition, the domestic courts failed to consider alternative preventive measures, such as bail or personal guarantee, or the specific reasons for their rejection.
AP1 (Applicant): As for the decision of September 2013, the city court orally refused Mr. Marabishvili's application
AP1 (Applicant): for review, simply stating that the request for the cancellation of the pretrial detention should be rejected.
AP1 (Applicant): It provided no oral or written reasons, despite his request that it do so.
AP1 (Applicant): Such a superficial review by the domestic court failed to comply with domestic law and with its duty of special diligence under the convention, given that by then the applicant had already been detained for four months.
AP1 (Applicant): In addition, the court's refusal to provide written reasons indicates a systemic reluctance by the courts to render written decisions.
AP1 (Applicant): The applicant requests the Grand Chamber to find that his pretrial detention throughout was not based on relevant sufficient reasons in breach of Article 5.3 and in relation to the September decision
AP1 (Applicant): to adopt the reasoning of the chamber.
AP1 (Applicant): As for our third and final submission under Article 5, we argue that the domestic court in September 2013 failed to properly examine the merits of his request for release and the continued existence of grounds to justify Mr. Marabishvili's detention in breach of Article
AP1 (Applicant): 5.4.
AP1 (Applicant): As this court has stated, the risk of absconding or of obstructing the administration of justice, both of which were relied on by the prosecution in this case, diminishes over time.
AP1 (Applicant): And the risk of tampering with evidence is diminished once recorded testimonies have been submitted to the court, as the case here.
AP1 (Applicant): The applicant's request for release was based on the fact that the initial grounds used to justify his detention in May were certainly no longer valid in September.
AP1 (Applicant): He argued that he could not destroy or interfere with witness evidence, as all the testimonies had been obtained by the investigation.