FOURTH SECTION
 
 
 
 
 
 
CASE OF TCHANKOTADZE v. GEORGIA
 
 
 
(Application no. 15256/05)
 
 
 
 
 
 
JUDGMENT
 
 
 
 
STRASBOURG
 
21 June 2016
 
FINAL
 
12/09/2016
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Tchankotadze v. Georgia,
The European Court of Human Rights (Fourth Section), sitting as a Chamber composed of:
 András Sajó, President,
 Vincent A. De Gaetano,
 Boštjan M. Zupančič,
 Nona Tsotsoria,
 Paulo Pinto de Albuquerque,
 Egidijus Kūris,
 Gabriele Kucsko-Stadlmayer, judges,
and Marialena Tsirli, Section Registrar,
Having deliberated in private on 17 May 2016,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 15256/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr Zurab Tchankotadze (“the applicant”), on 12 March 2005. 2. The applicant was represented by Mr G. Svanidze (“the first representative”) and Mr A. Baramidze (“the second representative”), lawyers practising in Tbilisi. The Georgian Government (“the Government”) were represented by their Agent, Mr L. Meskhoradze, of the Ministry of Justice. 3. The applicant alleged, in particular, that a period of his pre-trial detention had been unlawful and that the criminal proceedings against him had been unfair, in breach of Article 5 § 1 and Article 6 § 1 of the Convention respectively. He also complained that the initiation of the criminal proceedings against him and his pre-trial detention had been prompted by improper ulterior motives, in breach of Article 18 of the Convention. 4. On 16 September 2008 the application was communicated to the Government. 5. The applicants and the Government each filed written observations on the admissibility and merits of the application. 6. On 1 November 2012, after the parties had filed with the Court all their submissions on the admissibility and merits of the case and the application of Article 41 of the Convention, the applicant’s second representative, Mr A. Baramidze, informed the Court that he could no longer represent his client on account of his recent appointment as Deputy Minister Justice of Georgia. THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
7. The applicant was born in 1952 and lives in Tbilisi. 8. The applicant was chairperson of the Civil Aviation Agency of Georgia (“the CAA”) between 12 March 2002 and 13 March 2004, when he resigned. The CAA has legal personality under public law. A. Background of the case – the Constitutional Court judgment of 10 January 2003
9. By a judgment dated 10 January 2003, delivered in the case of Airzena Georgian Airlines Ltd. v. Parliament and the Ministry for Transport and Communications, the Constitutional Court declared that it was unconstitutional to use the legal term “annual regulation fee for transport activities” (რეგულირების საფასური), which appeared in various relevant legal acts – the Act of 20 July 2001 on the Rules of State Management and Regulation of Transport and Communications (“the Regulation Act”), and the Orders of 28 December 2001, nos. 109 and 110, of the Minister for Transport and Communications (see paragraphs 59‑80 below). 10. The Constitutional Court considered that the aforementioned “annual regulation fee for transport activities”, which was a compulsory payment provided for in section 9(5) of the Regulation Act, was strictly speaking neither a tax nor a levy. However, Article 94 of the Constitution only recognised the latter two kinds of compulsory payment to the State. Furthermore, unlike taxes and levies, the regulation fee was not paid into the State’s coffers or to a local authority, but directly to the CAA. The Constitutional Court considered that in those circumstances the fee amounted to a special form of tax, which was a compulsory payment and which had the features of both a traditional levy (payable in exchange for a service or the granting of a right) and of a tax (payable on the annual income of the body concerned). 11. The defendant authorities – Parliament and the Ministry for Transport and Communications – argued before the Constitutional Court that there was a need for some kind of compulsory regulation fee for transport activities because it was not possible for the CAA to sign contracts with civil aviation companies. The Constitutional Court dismissed that argument, pointing out that the regulation of transport activities meant the provision of a service by a public authority in exchange for the payment of a fee for that service. Such relationships could only arise within the framework of a mutual contract, freely entered into by the parties concerned. A fee received by a public authority for a service should therefore take the form of income received for work carried out on a contractual basis, in accordance with section 13(d) of the Public-Law Entities Act. 12. The Constitutional Court further observed that the claimant, a private airline, would obviously never be able to carry out its business without the transport service provided by the CAA. However, regard being had to the principle of the freedom to choose services, even an undeniably necessary service should be the subject of a free agreement between the parties. The Constitutional Court thus concluded that if the matter at issue were settled in that way, then future situations in which the payment of considerable amounts imposed unilaterally by a public authority, in total disregard of the opinions of the companies concerned, would be avoided. The Constitutional Court emphasised that not even constitutional provisions could prevent a public authority in charge of the regulation of civil aviation from signing a contract with a private entity which included conditions and rules for services to be provided under that contract. 13. The Constitutional Court ruled that its judgment of 10 January 2003 would become effective on 1 April 2003. B. Criminal proceedings against the applicant
14. On 13 February 2004 criminal proceedings were instituted for abuse of power against unnamed officers of the Ministry of Transport and Communications, the CAA and two State-owned civil aviation companies. That decision was taken on the basis of information provided by “an investigative journalism organisation carrying out research into corruption”. 15. On 16 March 2004 a charge of repeated abuse of power was brought against the applicant himself, under Article 332 §§ 1 and 3 (a) of the Criminal Code, by the General Public Prosecutor’s Office (“the GPPO”). He was accused in particular of having entered into civil contracts in his capacity as chairperson of the CAA on 28 March and 13 August 2003 with three civil aviation companies – Sakaeronavigatsia, Tbilisi International Airport and Air-GP-Georgia – which undertook to pay the CAA on a monthly basis a “fee for services rendered in relation to the regulation of activities” (მომსახურების საფასური). Accordingly, between April and September 2003 the CAA received 600,000 Georgian laris (GEL) (about 280,000 euros (EUR)). According to the investigator, the applicant’s actions in using the words “fee for services rendered in relation to the regulation of activities” (hereinafter “fee for services”) had concealed what had actually in fact amounted to the old “annual regulation fee for transport activities”, a legal term and obligation which had become unconstitutional after 1 April 2003, when the Constitutional Court judgment of 10 January 2003 had entered into force (see paragraph 13 above). 16. The applicant was further accused of having issued Order no. 1 of 25 November 2003, and of applying it retroactively, again in breach of the Constitutional Court’s judgment of 10 January 2003 (see paragraph 81 below). The order had allowed the CAA to charge Sakaeronavigatsia and Tbilisi International Airport the sum of GEL 134,609 (about EUR 64,000) between 1 October and 5 December 2003 in respect of the regulation fee. 17. Thus, by having wilfully circumvented the legal effects of the Constitutional Court’s judgment of 10 January 2003, the applicant “had acted unlawfully and had therefore committed an abuse of power”. 18. The applicant was arrested on 16 March 2004. He was charged on 17 March 2004 but pleaded not guilty. 1. Pre-trial proceedings
19. On 19 March 2004 the Krtsanisi-Mtatsminda District Court of First Instance in Tbilisi (“the Krtsanisi-Mtatsminda Court”), allowing an application by the GPPO, ordered the applicant’s detention for three months, pending investigation and trial. 20. By a final decision of 25 March 2004, the Tbilisi Regional Court dismissed an appeal by the applicant as inadmissible and upheld the detention order of 19 March 2004. 21. On 14 June 2004 the Tbilisi Regional Court, after hearing both parties’ arguments, allowed an application by the GPPO to extend the applicant’s pre-trial detention until 16 September 2004. No appeal lay against that decision, and it was therefore final. 22. On 20 July 2004 an accountancy expert from the crime detection department of the Ministry of the Interior, whose services had been solicited by the GPPO as part of the investigation of the applicant’s case, drew up an audit of the CAA’s regulatory activities (“the audit report of 20 July 2004”). Firstly, the expert listed the acts which constituted the legal basis for the activities of the CAA and which were in force before and after 1 April 2003, when the Constitutional Court’s judgment of 10 January 2003 had entered into force. He then distinguished three periods of activity: (i) the period between 1 January 2002 and 1 April 2003, corresponding to the imposition of “the annual regulation fee for transport activities” by the CAA on the civil aviation companies concerned; (ii) the period between 1 April and 1 October 2003, corresponding to the regulation by the CAA of the activities of the companies in question in accordance with conditions negotiated as part of the contracts it entered into; and (iii) the period between 1 October 2003 and 13 March 2004, when the CAA had collected regulation fees on the basis of Order no. 1, which had been issued by its chairperson, the applicant, on 25 November 2003. 23. The expert noted that the adoption of the Constitutional Court’s judgment of 10 January 2003 had led to “the suppression of the imposition by the CAA, in the form of an order, of the ‘annual regulation fee for transport activities’ on companies operating within civil aviation and the removal of the compulsory nature of the payment of that fee”. However, “the judgment in question had not declared that it was unlawful for the CAA to provide its services to the companies concerned on the basis of negotiated contracts”. According to the expert, the judgment indicated, on the contrary, that there was a “need for such contracts and a legal settlement of the issue in this way”. The expert assumed that the applicant had taken the latter route, “which had been suggested to him by the Constitutional Court”. That had brought him to sign the impugned contracts with Sakaeronavigatsia and Tbilisi International Airport on 28 March 2003, that is to say, three days before the entry into force of the judgment in question. On 13 August 2003 the applicant had signed the same kind of contract with Air-GP-Georgia. In each case, the CAA’s remuneration had been calculated on a monthly basis and was referred to as a fee for services provided in the field of regulation. The three contracts had been terminated on 1 October 2003. 24. As regarded Order no. 1, which had been issued by the applicant on 25 November 2003, the expert noted that the order, approved for entry into force by the Ministry of Justice on 27 November 2003, had been able to be applied retrospectively, that is as of 1 October 2003, which was the date of the termination of the three above-mentioned contracts. He said the order showed good conduct in the financial activities relating to the functioning of civil aviation in the country which, by its very nature, had to be a continuous process. 25. After examining the available evidence, the expert concluded that the CAA’s charging of the fees for the three above-mentioned periods of activity “was based on the relevant laws and regulatory acts”. He established, moreover, that the regulation fee at that time constituted the sole source of revenue for the CAA, a public-law entity not financed by the State. Had it not charged those amounts, the CAA would have been obliged to continue functioning without, though, paying its employees’ salaries. The expert reiterated that the regulation fee paid to the CAA by the companies concerned was included in the price for the service that those companies offered to individuals (air travel tickets) or other companies (carriage of goods). Payment of the fee to the CAA did not therefore cause them any financial damage and, even if there had nevertheless been a loss, it would in the end have been passed on to the consumer. 26. Generally, the expert established that the CAA had received, between 1 April 2003 and 13 March 2004, GEL 630,000 (some 310,000 euros (EUR)) in fees for the regulatory services provided under the three impugned contracts with Tbilisi International Airport, Air-BP-Georgia and Sakaeronavigatsia, and GEL 774,376 (some EUR 380,000) by way of the fee collected on the basis of Order no. 1. In any event, the expert emphasised that the charging of those sums by the CAA to the various private companies had been continuous in time and had been based on valid legal acts (either statutes or other legal instruments). Out of all the above‑mentioned amounts received by the CAA between 1 April 2003 and 13 March 2004, the applicant had made a personal profit of GEL 15,618 and 17,090 (some EUR 7,500 and 8,200) by way of, respectively, the salary and business trips allowances he had received over the same period of time. A further GEL 490,473.40 (some EUR 225,000) had been paid to the State Budget in income tax and social security charges, while the remaining funds had been spent on the salaries of other CAA employees and various business trips and management expenses. 27. On 31 August 2004 the preliminary investigation was terminated and a bill of indictment was served on the applicant. According to the bill, between 1 April and 1 October 2003 the CAA had carried out three unlawful activities: (i) firstly, it had received, in breach of the judgment of the Constitutional Court of 10 January 2003, a regulation fee from eight civil aviation companies; (ii) secondly, twenty-two companies had paid the CAA the same regulation fee on the basis of Order no. 1, issued by the applicant; (iii) and, thirdly, the three companies – Sakaeronavigatsia (a government-owned undertaking), Tbilisi International Airport and Air‑BP‑Georgia – had paid the fee for services to the CAA on the basis of contracts concluded by the applicant. The pecuniary damage thus incurred by the companies concerned amounted to GEL one million, of which GEL 517,341.51 (some EUR 250,000) was caused to Sakaeronavigatsia. The applicant had used the amounts received to pay salaries and expenses for the management and business trips. 28. On 15 September 2004 the applicant challenged the indictment before the investigator of the Chief Prosecutor’s Office handling the case, arguing that the evidence that had been gathered did not support the charges. In particular, the investigation authorities had not explained how, within the meaning of Article 332 of the Criminal Code, the acts committed had damaged the “interests of the civil service”; what unlawful “personal profit” he had derived; what unlawful personal profit had been derived by third parties and who those people actually were; which of the rights of the companies concerned had been breached by his action; what legal interests of the State had been disregarded; and in what way that “disregard” had been “substantial” (see Article 332 of the Criminal Code, at paragraph 58 below). He again pointed out that the judgment of the Constitutional Court at issue authorised the CAA to continue to charge the fee for services, provided that the payment was based on negotiated contracts and not imposed, as hitherto. Contrary to the argument put forward by the investigator, the companies concerned could not be deemed to have incurred any substantial losses simply by having fulfilled contractual obligations which had been freely negotiated with the CAA. Moreover, those companies had never complained of the unlawfulness of the contracts in question. Lastly, the applicant argued that “none of the State’s legal interests” had been disregarded, given that the State could not claim to be a victim of contractual relationships between two entities which were independent of it. 29. On 16 September 2004 the investigator rejected that complaint as ill‑founded. He pointed out that the indictment of 31 August 2004 had been based on evidence gathered during the investigation, and that such evidence was sufficient to dispel any doubts that the applicant had committed the offence provided for in Article 332 §§ 1 and 3 (a) of the Criminal Code. In particular, the investigator pointed out that everyone had to comply with the judgment of the Constitutional Court of 10 January 2003, which had the force of law, but which the applicant had failed to do. After 1 April 2003, the date of entry into force of that judgment, the applicant had continued to charge the regulation fee, referring to it as a “fee for services provided in the field of the regulation of activities” in order to conceal the nature of the activity. The Constitutional Court had considered, however, that revenues gained by the CAA in the form of a regulation fee were unconstitutional. The applicant and his employees had derived a personal profit from the amounts at issue in the form of salaries, and management and business trip fees. For example, the applicant had received total salary of GEL 15,618 (some EUR 7,500). According to the investigator, even if most of the companies concerned had declared that they had not incurred any loss from the applicant’s activities, the charging by the CAA of the disguised regulation fee in breach of the judgment of the Constitutional Court had damaged the legal interests of the State. Furthermore, by giving retrospective effect to Order no. 1, registered by the Ministry of Justice on 27 November 2003, the applicant had jeopardised the well-being of the companies concerned. 30. On 18 September 2004 the applicant lodged an appeal against that decision with the Chief Prosecutor. He stated that the investigator had failed properly to assess the circumstances of the case. He reiterated the arguments made in his complaint of 15 September 2004 (see paragraph 28 above). 31. On 18 September 2004 a prosecutor from the Chief Prosecutor’s Office replied to the applicant, stating that his appeal had been rejected because the decision of 16 September 2004 had properly and exhaustively addressed all his claims. 32. On 20 September 2004 the indictment was approved by a deputy chief prosecutor and the case sent for trial before the Vake-Saburtalo District Court of First Instance in Tbilisi (“the Vake-Saburtalo Court”). 33. On 1 February 2005 the applicant applied to the Vake-Saburtalo Court, claiming that he had been unlawfully detained since 16 September 2004. In particular, the period of his pre-trial detention had expired on that date and had not been extended. He asked that he be released immediately. 34. On 16 March 2005 the Vake-Saburtalo Court held a pre-trial conference hearing in the case, ruling to commit the applicant for trial as a defendant (Article 417 §§ 1 and 3 of the CCP). Without replying to the applicant’s complaint of 1 February 2005 of the unlawfulness of his pre-trial detention, the court upheld the restraint measure on the basis of the “nature of the charges” and the inability to conduct a comprehensive judicial assessment of his arguments for release at the admissibility stage. 35. On an unspecified date, subsequent to a reform of the judicial system and the associated liquidation of the Vake-Saburtalo District Court, the applicant’s case was assigned for trial to the newly created Tbilisi City Court. 2. Trial conducted by the Tbilisi City Court between 23 March and 3 August 2005
36. When questioned by the Tbilisi City Court during the trial, the acting director and the chief accountant of Sakaeronavigatsia confirmed that their company had paid the relevant fee to the CAA even after the Constitutional Court’s judgment of 10 January 2003, either on the basis of a contract or on the basis of Order no. 1. They did not know at the time that they were exempted from paying the fee by the Constitutional Court’s ruling. 37. The managers of Tbilisi International Airport and Air-BP-Georgia, which specialised in fuel distribution, confirmed to the trial court that their companies had paid the amounts at issue pursuant to contracts that they had freely entered into with the CAA. They specified that in exchange for the fee the CAA licensed their companies’ activities, and that without such certification it would have been impossible for Tbilisi International Airport to host international flights. 38. When questioned by the trial court, Mr Dj.K., the first deputy chairperson of the CAA, explained that at the material time, a new law, which should have been passed following the judgment of the Constitutional Court of 10 January 2003, had been delayed and that, if the applicant had not decided to enter into contracts with companies whose activities were subject to regulation, the CAA, which received no funding from the State, would have had to cease operations. That would have meant that employees of Georgian airports would no longer have been certified, that no aircraft would have been able to land at those airports and that no country would have allowed aircraft that had taken off from those airports onto its territory. By way of an example, Airzena, the airline behind the request which had resulted in the judgment of the Constitutional Court of 10 January 2003, leased its aircraft in Germany on the condition that the CAA, under an agreement entered into with the German civil aviation authority, assumed responsibility for supervising those aircraft and regulating the corresponding activities. If the CAA were to cease operations, Germany would no longer lease its aircraft to Airzena. It was to prevent any such blockages in the field of civil aviation in Georgia that the applicant had entered into the contracts, in accordance with the Public-Law Entities Act and the judgment of the Constitutional Court at issue. 39. The second deputy chairperson of the CAA told the court that he had personally worked on drafting contracts which were subsequently entered into with the three civil aviation companies. He maintained that those contracts, which had become the only source of funding for the CAA, had become necessary after the Constitutional Court had invalidated the relevant legal provisions by declaring them unconstitutional. 40. The CAA’s accountant explained before the trial court that on 1 January 2002 the CAA had been split from the Ministry of Transport, on the recommendation of the World Bank, and that it had become legally fully independent. The exercise of public duties had been delegated to it, including the supervision of flight safety. Since that date, the CAA had not been funded from the State budget, and had therefore been obliged to collect duties from the various private companies working in civil aviation. However, since the relevant legal provisions regulating the collection of “the annual collection fee for transport activities” had been declared invalid by the Constitutional Court, the CAA, pending the passing by Parliament of new legislation on the matter, had been forced to make contracts with civil aviation companies. Subsequently, after the amendment of the Regulation Act on 14 August 2003 (see paragraphs 77‑80 below), the chairperson of the CAA, the applicant, had become entitled to issue orders setting the amount of fees payable by the companies. 41. When questioned by the trial court, the representatives of various other private companies working in civil aviation, who were contractors of the CAA, stated that prior to 1 April 2003, they had paid the regulation fee in accordance with the law. Following the judgment of the Constitutional Court of 10 January 2003, they had stopped doing so and had only resumed payments on 1 October 2003, as a result of Order no. 1, issued by the applicant. 42. When questioned by the trial court, the accountancy expert from the Ministry of the Interior who had authored the audit report on the CAA’s activities confirmed the conclusions in the report relating to the legality of the CAA’s transactions between 1 April 2003 and 13 March 2004. 43. In his submissions before the court, the applicant first reiterated the arguments he had made during the investigation, notably in his complaint of 15 September 2004 (see paragraph 28 above). The applicant then argued that of the amounts which he had been unjustifiably accused of charging unlawfully, he had paid GEL 490,473 (some EUR 225,000) to the State, while the remainder had been used to fund the CAA’s operations (see the aforementioned expert report cited at paragraphs 22-26 above). Consequently, neither he nor anyone else had derived any personal profit from the amounts in question. The applicant argued that the accountancy expert’s report confirmed the legality of his actions. He explained that the reason the Constitutional Court had delayed the entry into force of its judgment of 10 January 2003 had been to grant Parliament sufficient time to legislate and fill the gap arising from its judgment. In order not to leave the CAA without funds, which would have meant flight safety might have been compromised, the Constitutional Court had clearly indicated in its judgment that the CAA could enter into contractual relationships with the aviation companies concerned, which would thus be able to negotiate conditions freely. 44. It was for the very same reasons as those espoused by the Constitutional Court in its judgment that the Georgian President had issued Decree no. 364 on 25 July 2003 (see paragraph 82 below). That decree, as well as section 13(d) of the Public-Law Entities Act, gave a direct right to the applicant, as chairperson of the CAA, to collect duties by entering into contractual relations with companies working in civil aviation. Furthermore, the new law, required as a result of the judgment of the Constitutional Court of 10 January 2003, had been passed on 14 August 2003 and had entered into force on 15 September 2003. The applicant had issued Order no. 1 in compliance with that law and had subsequently submitted it to the Ministry of Justice for registration. The Ministry of Justice had registered it on 27 November 2003, approving its retrospective application as of 1 October 2003 under sections 33(4) and 54 of the Law on Normative Legal Acts, on the grounds that all the companies covered by the Order had the necessary legal identification numbers and codes. The applicant pointed out that if it had been unlawful to apply the order at issue retrospectively, the Ministry of Justice would have informed the CAA and instructed it to make the necessary amendments, in accordance with the law. The applicant concluded that the actions he had taken in the exercise of his official duties had not been contrary to the judgment of the Constitutional Court in question, or to any other legal provisions applicable at the material time, and thus could not qualify as abuse of power. 3. The applicant’s conviction for abuse of power
45. On 8 August 2005 the Tbilisi City Court found the applicant guilty of two of the three episodes of abuse of power which the GPO had accused him of (see paragraph 27 above), but acquitted him of one. The one he was acquitted of was with respect to the CAA collecting “an annual registration fee for transport activities” from eight private companies working in civil aviation, including Sakaeronavigatsia and Tbilisi International Airport, between 1 April and 1 October 2003. The court established that the relevant amounts corresponded to debts owed to the CAA by those companies for the period prior to 1 April 2003. 46. As for the other two episodes, the Tbilisi City Court considered that the applicant had unlawfully entered into the contracts of 28 March and 13 August 2003 with Sakaeronavigatsia, Tbilisi International Airport and Air‑BP‑Georgia, in breach of the Constitutional Court’s judgment of 10 January 2003. Thus, between 1 April and 1 October 2003, the CAA had unlawfully received the sums of GEL 425,000 (some EUR 208,000), 180,000 (around EUR 83,000) and 25,000 (some EUR 11,000) respectively, from which the applicant had unlawfully paid his own salary and the salaries of his employees, and had financed the CAA’s business trip and management expenses. Furthermore, the applicant was found guilty of unlawfully issuing Order no. 1, to which the applicant had moreover given retrospective effect, which served as the basis for collecting levies between 1 October 2003 and 13 March 2004 from twenty-two companies, amounting to GEL 281,344.23 (some EUR 133,000) which had been spent in the same, unlawful way. 47. The Tbilisi City Court stated that it disagreed with the applicant’s argument that the Constitutional Court judgment of 10 January 2003 had given him the right to enter into contracts with the companies concerned and that the CAA would have been unable to continue to operate if those contracts not been entered into. However, the court did not give any reasons to explain its position. 48. As to the audit report prepared by the accountancy expert on the CAA’s activities, the Tbilisi City Court restricted itself to noting that the expert in question was from the Ministry of the Interior and that he had confirmed his conclusions when he had been questioned during the trial. The court gave no explanation for why it did not take the expert’s statements into consideration. 49. The judgment of 8 August 2005 found the applicant guilty of the crime provided for in Article 332 §§ 1 and 3 (a) of the Criminal Code and sentenced him to five years’ imprisonment. He was also banned from holding public office for two years. 50. The applicant appealed, stating that the Tbilisi City Court had not established which of the impugned actions had breached the notion of public service requirements, within the meaning of Article 332 § 1 of the Criminal Code, what exactly the criminal offence had consisted of, what had been the reasons for it, and what its objectives and consequences had been. Furthermore, the Tbilisi City Court had not explained how his actions had damaged the interests of twenty-two companies, when none of those companies had expressed any interest in joining the criminal proceedings as civil parties or had ever initiated any separate civil proceedings against the CAA. 51. When questioned by the Tbilisi Court of Appeal, representatives of fourteen of the companies concerned stated that they had incurred no financial damage as a result of having paid the fees for the services provided by the CAA, either on the basis of the relevant contracts or Order no. 1. Moreover, the cost of the amounts paid had not been borne by the companies, since it had been included in the price of airplane tickets sold to the end consumer, who was airline passengers (see also the accountancy expert’s report cited at paragraphs 22-26 above). By a judgment of 30 December 2005 the Tbilisi Court of Appeal acquitted the applicant in respect of the charge relating to the aforementioned fourteen companies. It upheld the judgment of the lower court as to the remaining charges, notably the collection by the CAA of fees for services from the remaining eight companies on the basis of either contracts or Order no. 1. The applicant’s prison sentence was amended and set at four years. 52. The applicant appealed on points of law, arguing that his case had been examined superficially and that, amongst other things, the accountancy expert’s report of 20 July 2004 (see paragraphs 22-26 above) had not been taken into consideration. The applicant complained that in examining the question of the existence of a loss to the aforementioned eight companies, the Court of Appeal had failed to consider the case from the same point of view concerning the other companies, especially Sakaeronavigatsia, which had allegedly incurred the biggest loss. In fact, according to the applicant, the Court of Appeal had completely failed to consider that part of the case or the accountancy expert’s view that Sakaeronavigatsia could not have incurred a loss. The applicant concluded that the reasoning given by the lower court to prove his guilt had been manifestly insufficient and arbitrary. 53. On 14 September 2006 the Supreme Court of Georgia dismissed the appeal on points of law by the applicant, stating that by continuing to charge the fees to the various private companies after 1 April 2003 the applicant had misapplied the judgment of the Constitutional Court of 10 January 2003 and had thus committed an abuse of power, infringing the rights of various legal entities and the general legal interests of the State. 54. After serving his sentence in full, the applicant was released on 14 March 2008. C. Content of video recording produced by the applicant
55. In December 2003, well before the applicant had been placed under investigation and arrested, and shortly after the Rose Revolution that led to the resignation of President Shevardnadze (see Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, ECHR 2008), Mr M. Saakashvili, who did not hold any State office at the time but was campaigning as a candidate to be elected president, addressed representatives of Georgian companies in Tbilisi’s sports stadium. He stated that the objectives of the abolition of the old, corrupt and unfair regime had not involved simply replacing one political clan with another. In particular, he promised that nepotism, irrespective of where it came from, whether from representatives of the old or the new regime, would no longer be the rule. Amongst other things, he stated in that regard:
“I heard more news on the television yesterday: it would appear that Zurab Ts ..., the chairman of a committee of the former parliament, took his son and had him appointed deputy chairman of the Civil Aviation Authority! It is now 3.35. I will give [the applicant]: either he gets rid of Ts ..., or [the applicant] himself goes to jail! ... It is said that we are instructing the prosecution authorities to arrest officials of the old regime but that this seems like a breach of their human rights! Yes, I confirm, all those who should be arrested will be jailed. They only began to remember human rights when their own interests were threatened ... Where does the money come from [for a former governor] to hire lawyers to defend himself and ... live in a five‑star hotel in Moscow, when one night there costs the same as your pensions several times over...? Is not your money, Georgia’s money, being taken from your pockets? ... “
56. According to the applicant, the events which came after the speech of Mr Saakashvili, who was elected President of Georgia in January 2004, were as follows: the son of Zurab Ts. immediately resigned as deputy chairman of the CAA, the applicant was placed under investigation in March 2004 on the aforementioned charges and the same Zurab Ts. was re‑elected to parliament from Mr Saakashvili’s presidential party list during the parliamentary elections of March 2004. II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Code of Criminal Procedure, as it stood at the material time
57. The relevant provisions of the Code of Criminal Procedure concerning the preventive measure of pre-trial detention read as follows:
Article 159 §§ 1 and 2 “Detention”
“1. No one may be arrested without a court order or other judicial decision. 2. Courts, prosecutors and investigators are obliged to immediately release any person who is detained unlawfully.”

Article of the Convention at issue: Article 6
Outcome: violation