FIFTH SECTION
CASE OF UGULAVA v. GEORGIA
(Application no. 5432/15)
 
 
JUDGMENT
Art 5 § 1 • Lawful arrest and first pre-trial detention of applicant, a former high-ranking State official, in connection to criminal proceedings against him • Lack of fixed period of detention in detention orders for first pre-trial detention compatible with Art 5 § 1 in view of maximum duration prescribed under domestic law
Art 5 § 3 • Reasonableness of pre-trial detention • Refusal of applicant’s request for release during first pre-trial detention period not based on relevant and sufficient reasons • Domestic court’s failure to take into account new information and conduct fresh examination of grounds for detention as required by the passage of time
Art 5 § 1 • Lawful arrest or detention • Authorities’ failure to protect applicant from arbitrariness when imposing second consecutive period of pre-trial detention concerning different parallel criminal proceedings
Art 18 (+ Art 5) • Restriction for unauthorised purposes • Existence of ulterior purpose not established

 
STRASBOURG
9 February 2023
 
FINAL
 
09/05/2023
 
This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Ugulava v. Georgia,
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
 Georges Ravarani, President,
 Mārtiņš Mits,
 Stéphanie Mourou-Vikström,
 María Elósegui,
 Kateřina Šimáčková,
 Mykola Gnatovskyy, judges,
 Françoise Tulkens, ad hoc judge,
and Martina Keller, Deputy Section Registrar,
Having regard to:
the application (no. 5432/15) 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 Giorgi Ugulava (“the applicant”), on 27 December 2014;
the decision to give notice to the Georgian Government (“the Government”) of the application on 28 September 2015;
the parties’ observations;
Considering that Mr Lado Chanturia, the judge elected in respect of Georgia, was unable to sit in the case (Rule 28) and that the President of the Chamber accordingly appointed Ms Françoise Tulkens to sit as an ad hoc judge (Article 26 § 4 of the Convention and Rule 29);
Having deliberated in private on 17 January 2023,
Delivers the following judgment, which was adopted on that date:
INTRODUCTION
1. The application, lodged under Article 5 §§ 1 (c), 3 and 4 of the Convention, concerns the allegedly unlawful and arbitrary pre-trial detention of the applicant. He also relies on Article 18 of the Convention taken together with Article 5 § 1 alleging political motivation behind his continuous pre-trial detention. THE FACTS
2. The applicant was born in 1975 and detained in Tbilisi at the relevant time. He was represented by Mr P. Leach, Mr O. Kakhidze (subsequently withdrew from the proceedings) and Mr D. Kakoishvili, lawyers practising in London and Tbilisi respectively. 3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. BACKGROUND INFORMATION
5. The applicant was one of the leaders of the United National Movement (“the UNM”), a political party which ran the country between November 2003 and October 2012. The applicant was first appointed mayor of Tbilisi in 2005 and then elected to the post in 2010. In October 2012 the Georgian Dream coalition, led by Mr Bidzina Ivanishvili, won parliamentary elections and formed a new government. The applicant continued to serve as mayor of Tbilisi. First set of criminal proceedings against the applicant and relevant pre-trial proceedings (case no. 092261112002)
6. On 10 November 2012 an investigation was initiated under Article 210 § 1 of the Criminal Code into the use of fraudulent tax documents in connection with the activities of Akhali Rike LLC, a private company. On 26 November 2012 a separate investigation was initiated under Article 182 § 1 and Article 210 § 1 of the Criminal Code (embezzlement of budget funds and use of fraudulent tax documents respectively) in connection with the activities of Tbilservice Group, one of the limited companies formed by the Tbilisi mayor’s office. The two investigations were eventually merged (case no. 092261112002). On 1 February 2013 the applicant was summoned as a witness in relation to the above-mentioned proceedings. He duly appeared and was questioned by an investigator on 2 February 2013. 7. On 22 February 2013 the applicant was officially charged with aggravated embezzlement under Article 182 §§ 2 (d) and 3 (b) of the Criminal Code. He was also charged with misappropriation and money laundering, offences under Article 182 §§ 2 (d) and 3 (a) and (b) and Article 194 § 3 (a) and (g) of the Criminal Code respectively, in connection with his alleged involvement in an unlawful scheme to seize control of a private television company, Imedi. 8. On 24 February 2013 the Tbilisi City Court rejected a request by the prosecutor to impose bail of 1,000,000 Georgian laris (GEL). The applicant thus remained free without bail. On 25 February 2013 the City Court also refused a request by the prosecutor to dismiss the applicant from his position as mayor. Both decisions were upheld by the Tbilisi Court of Appeal on 1 March 2013. 9. On 18 September 2015 the applicant was convicted in part in connection with the Tbilservice Group charges and sentenced to four and a half years in prison. The applicant was detained immediately to serve his prison sentence. On 6 January 2017, while rejecting the applicant’s appeal, the Tbilisi Court of Appeal re-qualified his charges and found him guilty of abuse of power, an offence under Article 332 § 1 of the Criminal Code. His prison sentence was reduced on account of an Amnesty Act to one year, three months and twenty-two days and the applicant was immediately released from prison. Second set of criminal proceedings against the applicant and relevant pre-trial proceedings (case no. 092200213002)
10. On 20 February 2013 an investigation was launched under Article 182 § 3 (b) of the Criminal Code into the activities of the Old Tbilisi Rehabilitation and Development Fund, founded by the Tbilisi mayor’s office. On 18 December 2013 these proceedings led to the applicant being formally charged with aggravated embezzlement. 11. On 21 December 2013 the Tbilisi City Court rejected a request by the prosecutor to remand the applicant in custody. The court instead imposed bail of GEL 50,000 on the applicant. 12. The prosecutor also requested the court to rule on removing the applicant from office. In a decision of 22 December 2013, the Tbilisi City Court, sitting in camera, granted that request and ordered his suspension from his position as mayor until the conclusion of the criminal proceedings. The suspension order was upheld by the Tbilisi Court of Appeal on 26 December 2013. 13. On 28 February 2018 the Tbilisi City Court re-qualified the charge of aggravated embezzlement and convicted the applicant of exceeding of official powers (an offence under Article 333 § 1 of the Criminal Code). His final sentence, in view of an Amnesty Act, was set at one year, three months and twenty-two days in prison. The applicant’s conviction was confirmed on appeal on 10 December 2018. By a decision 10 February 2020 the Supreme Court amended again the qualification of the offence and convicted the applicant of aggravated embezzlement. He was sentenced to nine years’ imprisonment, which sentence, by virtue of an Amnesty Act and in view of the period he had already spent in detention in the context of the first set of criminal proceedings, was reduced to three years, two months and eight days. Third set of criminal proceedings against the applicant and relevant pre-trial proceedings (case no. 092250613004)
14. On 12 and 13 April 2014 the applicant was questioned as a witness in another criminal investigation, this time concerning the activities of CT-Park LLC, a company in charge of managing car parks in Tbilisi. 15. On 28 June 2014 the applicant received a further summons to appear for questioning, which was scheduled for 30 June 2014. When served with the summons, the applicant made the following note:
“This summons is politically motivated. In addition to the fact that there is an electoral moratorium [on the arrest of opposition politicians], I am leaving on a special business trip on 29 June at 6.50 a.m. and will return to Georgia on the Kyiv flight on 5 July at 5 a.m. This was well known to the investigation, and they have deliberately acted to prevent my business trip.”
16. The applicant did nevertheless appear for questioning on 30 June 2014. He was then charged with aggravated embezzlement in the above‑mentioned proceedings. When served with the charges, he informed the investigator that he was to make several business trips outside of Georgia between 1 and 6 July 2014. In reply, the investigator warned him not to leave the country. The applicant complained, claiming that his freedom of movement could be only restricted in exceptional circumstances on the basis of a court order. Further to his complaint, the Public Defender of Georgia sought the initiation of disciplinary proceedings against the investigator for taking an unlawful decision. It is not clear from the case file what the outcome of that complaint was, if any. 17. On 1 July 2014 the prosecutor requested the Tbilisi City Court to impose bail of GEL 50,000. He also requested that the applicant be ordered, under Article 199 § 2 of the Code of Criminal Procedure, to surrender his ID card and international passport. On 2 July 2014 the court decided that the applicant should remain free without bail, concluding that the request for the application of a preventive measure was unsubstantiated. It also refused to order the surrender of his ID card and passport, concluding that such measures could only be applied in combination with preventive measures. The decision was upheld by the Tbilisi Court of Appeal on 5 July 2014. 18. It appears that during the detention hearing before the Tbilisi City Court, the applicant once again provided the investigative authorities with information concerning his travel plans in early July. 19. The parties have not informed the Court about the outcome of the third set of criminal proceedings conducted against the applicant. Fourth set of criminal proceedings against the applicant (case no. 092060614001), his arrest and pre-trial detentionThe subject matter of the fourth set of proceedings

20. On 5 June 2014 criminal proceedings were initiated under Article 226 of the Criminal Code in connection with the alleged organisation of a violent incident at the office of the Marneuli district electoral commission earlier that day (case no. 031050614001). Over the following days, twelve witnesses were interviewed in connection with the incident. They identified the applicant as being part of the group which had allegedly violently burst into the office of the electoral commission, causing a disturbance, and hindering its functioning. As part of the investigation, a video recording was obtained which showed the violent nature of the incident. According to the case file, the applicant was not interviewed in connection with the above-mentioned criminal proceedings. 21. In the meantime, another set of criminal proceedings was initiated against the applicant (case no. 092150414002) on suspicion of his involvement in a money laundering scheme. Notably, on 15 and 22 April 2014 respectively two individuals, R.Kh. and G.K., wrote to the investigative department at the Ministry of Finance alleging that the applicant had invited them to participate in a fraudulent scheme involving their offshore companies for money laundering purposes. Having conducted several interviews and after seizing certain financial documents, including contracts and invoices confirming various bank transfers, late in the evening of 2 July 2014 an investigator summoned the applicant to appear for questioning at 10 a.m. on 4 July 2014 in connection with the above-mentioned case. The summons was duly served on him at 10.10 p.m. by the investigator in person. The applicant claimed that when served with the document, he had explained to the investigator that he could not cancel his business trip to Ukraine (see paragraph 16 above). He was, however, prepared to shorten it and return from Kyiv early in the morning of 4 July 2014. The summons, duly signed by the applicant and the investigator, does not bear any explanatory note in this regard. 22. According to the case file, later that evening, G.K., one of the main witnesses in the money laundering case, wrote to the prosecution alleging that he had received threats from the applicant. He expressed his willingness to cooperate with the prosecution on the matter. The applicant’s arrest and initial pre-trial detention
23. On 3 July 2014 at 5.57 a.m. the applicant was arrested at Tbilisi International Airport. According to the arrest report, he was accused of aggravated money laundering, an offence under Article 194 §§ 2 (a) and (3) (c) of the Criminal Code. The arrest was based on the risk of his absconding (Article 171 § 2 (e) of the Code of Criminal Procedure, see paragraph 51 below). The applicant refused to sign the arrest report. His lawyers, who were refused immediate access to him, requested detailed information about the new charges. They complained on the applicant’s behalf that when he had been arrested, he had not been properly informed of the nature of the new accusations. It appears that despite several requests, the lawyers were not allowed to see him during the initial four to five hours of his detention. They were also denied access to the case file. 24. The next day the criminal case concerning the violent incident at the office of the Marneuli district electoral commission (see paragraph 20 above). was merged with the criminal case concerning money laundering (see paragraph 21 above). At 9.45 a.m. official charges were brought against the applicant in the consolidated criminal case (no. 092060614001) for offences under Article 194 §§ 2 (a) and 3 (c) and Article 362 § 1 of the Criminal Code (concerning his alleged involvement in a money laundering scheme), and offences under Article 150 § 1 and Article 226 of the Criminal Code (concerning the alleged organisation of a violent incident). The applicant was served with a copy of the decision on 4 July 2014 at 11 a.m. 25. The first charge was that in April 2014 the applicant and his accomplice G.Gh. had devised, with the participation of two offshore companies, a fraudulent money laundering scheme where one company was to pay the other company 1,500,000 US dollars (USD) in return for certain services. According to the charge, between 4 May and 3 June 2014 USD 760,000 was first transferred from one company’s bank account to that of another and then eventually, on the basis of fraudulent loan agreements, to the bank account of a certain limited company registered in Georgia and withdrawn from there by the applicant and his accomplice. According to the prosecution authorities, the applicant had thereby committed the offence of aggravated money laundering (Article 194 §§ 2 (a) and 3 (c) of the Criminal Code) and the offence of complicity in making, selling or using a forged document (Article 362 § 1 of the Criminal Code). 26. The second charge was that on 5 June 2014 the applicant, together with UNM supporters and other party members, decided to block the office of the Marneuli district electoral commission and hinder its functioning, in order to prevent its head from taking a negative decision with respect to a candidate for the position of governor from the UNM. After blocking the building, according to the prosecution, they had burst into the office and refused to leave, disobeying police orders. The applicant, having restricted the “freedom of action” of the head of the electoral commission, had exerted psychological and physical pressure on him not to sign the document. According to the prosecution, the applicant had thereby committed the offences of coercion (Article 150 § 1) and organising or participating in a group activity disrupting public order (Article 226). 27. On the same date the prosecutor asked the Tbilisi City Court to place the applicant in pre-trial detention. He described the offences with which the applicant had been charged and cited the witness and other evidence supporting the charges. He argued that in view of the nature and seriousness of the charges against the applicant and the severity of the possible sentence, and having regard to his character, there was a risk that he would flee, tamper with evidence and influence witnesses, and continue his criminal activity. In connection with the latter, the prosecutor stated that while being free on bail in other ongoing criminal proceedings, the applicant had nonetheless committed new offences; the risk of his reoffending could therefore no longer be averted by a less restrictive measure. In the prosecutor’s view, the flight risk was substantiated by the fact that the applicant had many contacts abroad and had been travelling frequently. Moreover, he had attempted to cross the border on 3 July 2014 despite being summoned by an investigator the day before. The risk of tampering with evidence was, for its part, borne out by the applicant’s attempt to put pressure on one of the key witnesses in the money laundering case (see paragraph 22 above). 28. The applicant’s defence lawyers opposed the prosecution’s request. In their submissions before the Tbilisi City Court, they argued that the applicant’s arrest had been unlawful and in breach of Article 171 of the Code of Criminal Procedure, as there had been no legal and factual basis for detaining him without a judicial warrant. They further argued that the request for him to be remanded in custody was unsubstantiated and unwarranted. The alleged risk that he would abscond was not supported by concrete evidence, and, on the contrary, was belied by his cooperation with the investigating authorities. He had been out of Georgia many times and had never tried to flee. On the day preceding his arrest he had forewarned the relevant investigative authorities about his one-day trip to Kyiv. 29. The Tbilisi City Court heard the prosecution’s request at an oral hearing held on 4 July 2014 and decided to remand the applicant in custody. It briefly noted that, according to the material in the case file, there had been no procedural breaches in the applicant’s arrest and the bringing of charges against him. It considered that there was sufficient information to show that there was a reasonable suspicion against him. When substantiating the decision to remand him in custody, the court referred to the gravity of the charges and the severity of the possible sentence, concluding that there was a risk of his hindering the investigation by obstructing the gathering of evidence and influencing other participants in the proceedings. In support of the above arguments the court referred, inter alia, to a statement given by G.K., who had alleged that the applicant had threatened him (see paragraph 22 above). The court also noted that several of the applicant’s accomplices, who were in possession of important information, had already fled Georgia. 30. In connection with the other criminal proceedings pending against the applicant, the court held as follows:
“The fact that the applicant was released on bail in a separate criminal case and that no preventive measures have been ordered against him in other cases does not imply, in view of the specific circumstances of the [current] case, that none of the preventive measures, including detention, could be imposed ... each criminal case relates to separate danger and risks ...”
31. The Tbilisi City Court noted that the applicant, despite being served with a summons on 2 July 2014 for questioning on 4 July 2014 at 10 a.m., had nevertheless maintained his plan to travel abroad on 3 July 2014 and had not communicated the necessary additional information in this regard to the investigative authorities. The court therefore agreed with the prosecution that there was a risk that he would flee. 32. The decision was upheld by the Tbilisi Court of Appeal on 8 July 2014. The appellate court concluded that there had been no procedural violations during the applicant’s arrest and the bringing of charges against him. It further stated that his defence rights had not been breached during the initial period of his detention and that no revocation of his pre-trial detention was therefore warranted. The appellate court fully accepted the reasoning of the first-instance court regarding the applicant’s remand in custody because, faced with a reasonable suspicion of having committed the offences in question and a possible severe punishment, he might flee. That risk was corroborated by his attempt to cross the border on 3 July 2014, as well as by his many trips abroad, which showed that he would have no difficulties getting out of Georgia. The court further reasoned that in view of the case material, particularly that shedding light on his character and the fact that he had held high office for many years, there was a risk of his obstructing the investigation by influencing those involved in the process, tampering with evidence and reoffending. The applicant’s request for release during the pre-trial conference
33. The pre-trial conference was opened on 22 December 2014. On 16 February 2015 the applicant lodged an application with the trial judge requesting the replacement of his detention with bail. In his application, he reiterated his arguments about the unlawfulness of his arrest and the initial pre-trial detention. He also maintained that neither the risk of his fleeing nor that of his influencing the witnesses was real. He went on to say that the circumstances concerning G.K. giving a statement about pressure and threats being exerted on him had never been properly examined, and that in any event, since the investigation had already been concluded and the authorities had secured all witnesses and other evidence, there was no longer any risk of his obstructing the investigation process. In connection with the risk of reoffending, the applicant stated, among other things, that he had been removed from his position as mayor, which excluded the possibility of his continuing his purported criminal activity via abuse of authority and his status. 34. The prosecution argued that in view of the applicant’s character, financial situation, connections abroad and history of regularly travelling abroad, the risk of his leaving Georgia and thus fleeing trial was real. In support of their argument, they referred to the applicant’s attempt of 3 July 2014 to leave Georgia for Kyiv. The prosecution further argued that, given that some of the new charges brought against him related to offences he had allegedly committed while on bail, a stricter preventive measure was required. As to the risk of the applicant obstructing the investigation, the prosecution claimed, with reference to the statement of G.K. (see paragraph 22 above), that such a risk had been duly demonstrated during the 4 July 2014 detention hearing. They further argued that since the list of prosecution witnesses had been formally confirmed during the pre-trial conference, the risk of the applicant putting pressure on them had increased. The witnesses were still due to testify at trial, which was by law the only way of adducing their evidence. Lastly, the prosecution submitted that in view of the number and complexity of the criminal cases ongoing against the applicant, his character, and given that he had allegedly reoffended while on bail, the risk of his reoffending was also still present. 35. The request was examined and rejected orally by the Tbilisi City Court on 18 February 2015. As heard in the audio recording of the hearing, the judge reasoned, with reference to Article 206 §§ 8 and 9 of the Code of Criminal Procedure, that no new circumstances had been identified warranting the applicant’s release. The judge then went on to find that the grounds for detention as examined and accepted by the trial judge in the initial detention order of 4 July 2014 were still valid. In addition, in connection with the risk of influencing witnesses, she accepted the prosecution’s argument that the risk of the applicant exerting pressure on witnesses had increased since the list of prosecution witnesses had been confirmed by the trial judge for examination during the trial. The risk of reoffending was also found to be present, particularly given that the applicant had allegedly committed new offences while on bail. Lastly, the trial judge noted that the applicant had been in pre-trial detention for just over seven months, a period which, in view of the circumstances of his case, appeared reasonable and not excessive. 36. In reply to the applicant’s request for a written decision, he was provided with an extract from the minutes of the hearing, which stated:
“The request of the defence to amend the preventive measure applied to Giorgi Ugulava is refused.”
Fifth set of criminal proceedings against the applicant (case no. 074251013802) and detention in its context
37. On 28 July 2014 the applicant was charged with exceeding of official powers under Article 333 § 1 of the Criminal Code on account of his alleged involvement in the misappropriation of the Imedi television company and of property belonging to another company, Lynx Ltd. 38. On 13 March 2015 the charges against the applicant were amended. In connection with the two above-mentioned incidents, he was also charged with aggravated embezzlement and money laundering under Article 182 §§ 2 (a) and 3 (b) and Article 194 § 3 (b) and (c) of the Criminal Code. 39. When served with the decision to bring charges against him, the applicant made the following note:
“The charges are absurd and politically motivated. The purpose is to extend my pre‑trial detention because the nine-month time-limit expires on 2 April ...”
40. On 14 March 2015 the Chief Prosecutor’s Office requested the Tbilisi City Court to remand the applicant in custody pending trial on the grounds that there was a well-founded risk of his absconding or failing to appear in court, destroying important information relevant to the case file or reoffending. The prosecution emphasised the possibility of the applicant influencing witnesses, having regard to his background. In connection with the detention order of 4 July 2014, which was due to expire on 2 April 2015, they claimed that the impugned restrictive measure had been applied in another set of criminal proceedings (case no. 092060614001, see the subject matter of the fourth set of proceedings in paragraphs 21-32 above) and was hence irrelevant. 41. The defence objected. Their argument was mainly threefold; firstly, with reference to Article 18 of the Constitution and Article 205 of the Code of Criminal Procedure (see the relevant provisions cited in paragraphs 50 and 52 below), they claimed that the maximum length of pre-trial detention was nine months and that accordingly there was no legal basis to apply a new period of pre-trial detention. They maintained that the prosecution’s argument that the nine-month time-limit was to be calculated for each set of criminal proceedings separately was unconstitutional. Secondly, the defence claimed that the investigation in the current case, which had started in July 2014, was over. Most of the witnesses had already been questioned and the required investigative measures taken, and no instances of witnesses being influenced had been confirmed; there was therefore no reasonable suspicion that the applicant would obstruct an investigation that was almost complete. Lastly, the defence argued that as far as the Imedi incident was concerned, the same facts had formed the basis for another case against the applicant, which had been opened in February 2013 (see paragraph 6-8 above). The investigation in that case had been concluded and the case was being examined by the Tbilisi City Court on the merits. It was therefore contrary to the Constitution, the provisions of the Code of Criminal Procedure and the rule against double jeopardy to initiate another set of proceedings in connection with the same facts and to request a further period of pre-trial detention. 42. By a decision of 15 March 2015 the Tbilisi City Court granted the prosecutor’s request to order the applicant’s pre-trial detention. The trial judge concluded that there was a risk of his hindering the investigation by, inter alia, influencing witnesses, and of his absconding. The trial judge did not address the defence’s argument about the unlawfulness of the new period of pre-trial detention. 43. On 20 March 2015 the Tbilisi Court of Appeal declared the applicant’s appeal inadmissible. Confirming the reasoning of the first-instance court, the appellate court noted that as far as the alleged unlawfulness of the new detention order was concerned:
“[The court] considers that the assertion of an alleged violation of the time-limit for detention, as provided for by the Constitution, is unsubstantiated ... According to the case file, detention as a preventive measure was applied to Giorgi Ugulava on 4 July 2014 in a different criminal case on other charges and the time-limit of nine months ... for the above pre-trial detention expires on 2 April. On 15 March 2015 the Tbilisi City Court examined the prosecution’s request in the current criminal case to remand Giorgi Ugulava in custody pending trial ... and granted it ...
[The appellate court] notes that a court is authorised to impose pre-trial detention as a preventive measure if the charges in another criminal case concern different incidents and facts. At the same time, the statutory time-limit, as provided for in the Constitution, expires in the initial criminal case where pre-trial detention had been ordered ...”
44. On 3 April 2015 the applicant lodged an application with the court for a review of his detention order. This was dismissed on 5 May. Identical applications by him dated 5 May and 30 June 2015 were also dismissed by the domestic courts. 45. The parties have not informed the Court about the outcome of the fifth set of criminal proceedings against the applicant. Proceedings before the Constitutional Court and the applicant’s release from pre-trial detention
46. On 15 April 2015 the applicant lodged a constitutional complaint with the Constitutional Court alleging that his continued pre-trial detention extending beyond the maximum nine-month time-limit fixed for such detention by the Constitution was unconstitutional. He asked, among other things, for Article 205 § 2 of the Code of Criminal Procedure to be found unconstitutional. 47. On 15 September 2015 the Constitutional Court ruled on the case (Giorgi Ugulava v. the Parliament of Georgia) finding that the “normative content” of Article 205 § 2 of the Code of Criminal Procedure, which could be understood as allowing repeated imposition of the nine-month time-limit separately in parallel criminal proceedings without any safeguards against arbitrariness, was unconstitutional. Without ruling on the question whether the applicant’s continued pre-trial detention was unlawful, the Constitutional Court held that the nine-month period could in principle be calculated separately for each set of criminal proceedings, provided that an accused already charged with one offence was again indicted for another offence committed after he or she had been remanded in custody in relation to the initial charges. The court, hence, confirmed that there would be nothing inappropriate in authorising an accused’s pre-trial detention (for the duration of the statutory period of nine months) repeatedly if the cases had been initiated consecutively. At the same time, it stated that the repeated imposition of pre-trial detention in concurrently initiated sets of criminal proceedings – which were opened and took place simultaneously – called for caution. What the Constitution proscribed, in its view, was either an intentional delay in charges being brought against a person or the delayed imposition of “consecutive” pre-trial detention, in order to prolong the overall period of pre-trial detention by counting the nine-month period separately for each consecutive indictment. After assessing Article 205 § 2 of the Code of Criminal Procedure and the existing court practice on the matter, the Constitutional Court held, inter alia, that, while the Code of Criminal Procedure in general conferred broad discretion on the prosecution authorities as to when to press charges, it was silent on the application of the nine-month time-limit in cases involving multiple parallel indictments, and furthermore did not set a different overall maximum time-limit for pre-trial detention in cases involving multiple consecutive indictments. Given this omission, the provision thus created the possibility of indefinite detention of a person subject to multiple indictments, which was against the spirit of the Constitution that pre-trial detention should in principle be limited in time. The rule it prescribed therefore lacked the requisite clarity vis-à-vis cases involving multiple parallel indictments and was susceptible to varied interpretations. The court thus concluded that the interpretation of Article 205 § 2 of the Code of Criminal Procedure as allowing the application of the nine‑month time-limit separately for each consecutive indictment would only be constitutional if it precluded any instances of arbitrariness as outlined above. 48. The relevant parts of the judgment read as follows:
“32. Where a person is indicted with several offences, there might well be an interest in applying detention, for the purpose of preventing prejudice to justice, individually in relation to each [indictment]. Accordingly, the purpose of Article 18 of the Constitution ... is not to determine the maximum period of detention ... of a person throughout his whole life. The purpose of Article 18 of the Constitution is to oblige the State to promptly decide on the charges of a defendant when he or she is in custody. 33. At the same time, the maximum period of nine months of pre-trial detention in relation to each individual criminal case is also applicable in a case where a person is simultaneously facing several indictments. Where a person is in pre-trial detention, Article 18 § 6 of the Constitution also obliges the State to exercise prompt justice. As far as the implications for a person charged are concerned, detention has similar effect[s] on a right regardless of the charge for which it is requested. Accordingly, when facing several simultaneous indictments, the reasons for imposing the maximum period of pre-trial detention apply equally to each criminal case, regardless of the crime for which the person is in detention. 34. Therefore, for the purposes of determining the maximum period of pre-trial detention within the meaning of Article 18 § 6 of the Constitution ... a person charged with a criminal offence shall be considered to be in pre-trial detention, even if ... the detention was actually imposed in another criminal case. In the event of several simultaneous indictments, when imposing the maximum period of pre-trial detention in each individual case, the period that a person has already spent in pre-trial detention in another criminal case ... has to be taken into consideration ... 35. Accordingly, it is not permissible to apply detention ... in a specific criminal case if a person, after being indicted in that case, has already spent (for any criminal case) nine months in pre-trial detention. Obviously, this standard does not exclude the possibility of the repeated imposition of detention with respect to an offence which a person commits after the imposition of [the first] detention. The repeated imposition of nine months of pre-trial detention may also be constitutional where the basis for indicting a person for a crime that he had committed before [his pre-trial] detention only became known to the prosecution after he was put in pre-trial detention in the first case. Nevertheless, in both examples, the imposition of pre-trial detention shall be against the requirements of the Constitution if bringing charges and/or requesting the imposition of detention is artificially delayed and aimed at artificially extending the period of pre-trial detention, for example, in a case where the investigation knew certain facts and/or information, which served as a basis for initiating new criminal proceedings, and which provided a sufficient basis for bringing charges, but nevertheless chose not to bring such charges [promptly].
36.  ... The Constitutional Court considers that Article 18 § 6 of the Constitution together with [Article 18 § 1] prohibits any manipulation of the nine-month period of pre-trial detention, the artificial continuation of that period by using various formally lawful methods or grounds, as [this type of continuation] is contrary to the interest which Article 18 § 6 of the Constitution aims to safeguard.
... The Constitutional Court of Georgia finds
... 2. The normative substance of Article 205 § 2 of the Criminal Code of Procedure ... shall be declared unconstitutional in relation to Article 18 §§ 1 and 6 of the Constitution ... in so far as it allows for the detention of a person charged in a criminal case, if at the time he is indicted in that case or sufficient grounds for indicting him are identified, he has already spent nine months [in pre-trial detention] in connection with any other criminal case pending against him.”
49. On 17 September 2015 the applicant, referring to the Constitutional Court’s ruling on his case, requested the Tbilisi City Court to release him from pre-trial detention. On the same date the court granted his request, noting that the applicant had already spent fifteen months in pre-trial detention and that his further detention, in view of the Constitutional Court’s recent ruling, was impermissible. RELEVANT LEGAL FRAMEWORK AND PRACTICE
RELEVANT DOMESTIC LAW AND PRACTICE
Constitution of 1995 (as in force at the material time)
50. Article 18 § 1 of the Constitution states that the human liberty shall be inviolable. Under Article 18 § 6, the maximum period of pre-trial detention is nine months. Code of Criminal Procedure (as in force at the material time)Provisions governing arrest and pre-trial detention

51. Under Article 171 § 1 of the Code of Criminal Procedure, an arrest must be based on a judicial warrant. Sub-paragraphs (a) to (f) of Article 171 § 2 set out the situations in which an arrest may, by way of exception, be made without a warrant. The relevant one in this case is sub-paragraph (e), which provides that a warrant is not necessary if there is a risk of flight. Article 171 § 3 lays down a further requirement for an arrest without a warrant: that the relevant risk cannot be prevented by an alternative measure proportionate to the circumstances of the alleged offence and the accused’s personal character. 52. As regards pre-trial detention, Article 205 of the Code of Criminal Procedure reads as follows:
Article 205 – Pre-trial detention
“1. Pre-trial detention, as a preventive measure, shall only be applied when it is the sole means to prevent the accused from:
(a)  absconding or interfering with the administration of justice;
(b)  hampering the obtaining of evidence;
(c)  reoffending. 2. The overall length of the accused’s pre-trial detention shall not exceed nine months. After the expiry of that period, the accused shall be released. The period starts to run from the time of arrest of the accused ... and ends with the delivery of a judgment by a first-instance trial court. 3. The period of detention of the accused pending the opening of a pre-trial conference shall not exceed sixty days. After the expiry of that period, the accused shall be released from detention, except in the situation provided for by Article 208 § 3 of this Code.”
53. Under Article 206 §§ 2, 3 and 6 of the Code of Criminal Procedure, the prosecutor’s initial request for a preventive measure such as detention must be submitted to a judge within forty-eight hours of the arrest of the accused and must always be examined in the presence of all the parties at a fully adversarial oral hearing. The judge must then deliver a reasoned written decision, and the accused has the right to lodge an appeal against the decision to a higher court (Article 207). Provisions concerning judicial review
54. Article 194 § 1 of the Code of Criminal Procedure, a provision which forms part of a chapter setting out general rules for the conduct of oral hearings, states that if a court makes a decision in the course of a hearing, that decision can be pronounced orally, and must be recorded in the minutes of the hearing. Article 194 § 2 specifies that all oral decisions must be reasoned. 55. Under Article 206 §§ 1 and 8 of the Code of Criminal Procedure, the accused may, at any stage of the proceedings, including at the pre-trial conference, request that the preventive measure to which he or she has been subjected be varied or set aside. Within twenty-four hours, the court must review the request without a hearing, checking whether new circumstances have emerged in the meantime and deliver a written decision on admissibility or inadmissibility. If it finds the request admissible, it must then examine it at an oral hearing. Article 206 § 9 provides that, in such proceedings, the burden of proof lies with the prosecution. Under Article 206 § 6, the court’s decision on the request must set out the circumstances on the basis of which the court deems it necessary to apply, vary or set aside a preventive measure. THE LAW
PRELIMINARY OBJECTION
56. On 25 April 2017 the Government informed the Court that on 6 January 2017, by virtue of a judgment of the Tbilisi Court of Appeal, the applicant had been released from prison (see paragraph 9 above). They alleged that by failing to inform the Court of this new important development in his case, the applicant had acted in breach of Rule 47 § 7 of the Rules of Court. This amounted, in their view, to an abuse of the right of individual application under Article 35 § 3 (a) of the Convention. 57. The applicant disagreed, claiming, inter alia, that his release from prison had no bearing whatsoever on the case pending before the Court. 58. The Court notes that an application may be rejected as an abuse of the right of application under Article 35 § 3 (a) of the Convention if it was knowingly based on untrue facts (see, among other authorities, Gross v. Switzerland [GC], no. 67810/10, § 28, ECHR 2014) or if incomplete and/or misleading information was submitted to the Court (see Bekauri v. Georgia (preliminary objection), no. 14102/02, § 21, 10 April 2012, with further references, and Saakashvili v. Georgia (dec.), nos. 6232/20 and 22394/20, § 64, 1 March 2022). The Court notes that the subject matter of the present case is limited to the allegedly unlawful and arbitrary nature of the applicant’s pre-trial detention, whereas his release from prison followed the serving of his prison sentence. Given the subject matter of the applicant’s complaints, the impugned delay in submitting the information in question cannot be seen as an attempt on his part to conceal from the Court any essential information that would be relevant for its decision (compare Gafà v. Malta, no. 54335/14, § 62, 22 May 2018). 59. The Court therefore rejects the Government’s objection that there has been an abuse of the right of application. ALLEGED VIOLATIONS OF ARTICLE 5 § 1 OF THE CONVENTION
60. The applicant complained that his arrest and pre-trial detention between 3 July 2014 and 17 September 2015 had been contrary to domestic law and arbitrary. He relied on Article 5 § 1 of the Convention, the relevant parts of which read as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
... (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”
Admissibility
61. The Government did not raise any objection as to the admissibility of the applicant’s complaints under Article 5 § 1 of the Convention. The Court notes that these complaints are neither manifestly ill-founded nor inadmissible on any other grounds listed in Article 35 of the Convention. They must therefore be declared admissible. MeritsAlleged violation of Article 5 § 1 of the Convention regarding the period between 3 July 2014 and 2 April 2015

(a)   The parties’ submissions
62. The applicant submitted that, contrary to what the Government were asserting, he had informed the relevant investigative authorities, personally and through various media sources, of his travel plans on 3 July 2014. They had also been informed of his decision to shorten his trip to Kyiv in order to return to Georgia on 4 July 2014 to take part in the planned investigative measure. This, coupled with his overall diligence vis-à-vis the investigation, including his repeated appearances before the investigating authorities and his public pledge to cooperate with them, had been sufficient to exclude any risk of his fleeing. There had therefore been no need to detain him without a judicial warrant. 63. The applicant further claimed that the so-called warning issued on 30 June 2014 by the investigator in charge of the third criminal case requesting him not to leave Georgia had, in the absence of a relevant court order, been unlawful and thus invalid. This was so particularly because on 2 July 2014 a trial judge had rejected, in the very same criminal case, the prosecution’s request for him to surrender his ID card and passport. He also submitted, contrary to what the Government were submitting, that the only obligation he had had under Article 94 of the Code of Criminal Procedure had been to appear before the investigative authorities upon being summoned. He had had no obligation to keep them informed of his travel plans, even if he had done so of his own free will. 64. The Government submitted, with reference to Articles 170, 171, 174, 198, 205, 206 and 230 of the Code of Criminal Procedure, that the relevant judicial practice at the material time concerning a person’s arrest and subsequent pre-trial detention was sufficiently clear and foreseeable, leaving no room for any arbitrariness or uncertainty. They claimed that the applicant had been inconsistent in his actions vis-à-vis the investigation. Despite being summoned on 2 July 2014 to participate in an investigative measure to be held on 4 July 2014, he had attempted to leave Georgia on 3 July 2014 and had accordingly been arrested at Tbilisi International Airport. His arrest had fully complied with Article 171 of the Code of Criminal Procedure, itself fully in line with Article 5 § 1 of the Convention. The arrest had been made owing to the risk of flight. That risk had been corroborated by his failure to keep the investigator informed of his intention to leave the country. Furthermore, as shown by the decision of 4 July 2014 of the Tbilisi City Court ordering the applicant’s pre-trial detention, the arrest had been based on a reasonable suspicion that he had committed the offences with which he had been charged in the fourth criminal case; and in the months before the arrest the prosecution authorities had obtained ample evidence supporting those charges. The Tbilisi City Court, whose decision had been upheld by the Tbilisi Court of Appeal, had reviewed the prosecution’s assessment of the evidence and had been satisfied that there existed a reasonable suspicion. 65. As to the reasonableness of the applicant’s pre-trial detention, it had been justified in view of the risk of his absconding and failing to appear before the investigative and/or judicial authorities, the risk of his obstructing the proceedings and the risk of his reoffending. In relation to his release on 2 July 2014, the Government submitted that the lawfulness of his pre-trial detention ordered on 4 July 2014 had to be assessed only in view of the particular circumstances of the fourth criminal case pending against him and the relevant arguments advanced by the prosecutor. The factual circumstances, particularly the grounds relied on by the prosecution in the fourth case, had been different and had thus led to a different decision by the national courts. The Government pointed to three developments which had taken place between 2 and 4 July 2014 and which could explain the difference in approach of the domestic courts: (i) the applicant’s attempt to leave Georgia on 3 July 2014; (ii) his attempt to influence a witness, G.K., which had become known to the prosecution on 2 July 2014; and (iii) the bringing of new charges against him on 4 July 2014 in connection with crimes which he had allegedly committed during his release on bail. The above-mentioned circumstances had clearly warranted the imposition of pre-trial detention with respect to him. (b)   The Court’s assessment
(i)      General principles
66. The relevant general principles relating to Article 5 § 1 of the Convention were most recently summarised by the Court in S., V. and A. v. Denmark ([GC], nos. 35553/12 and 2 others, §§ 73-77, 22 October 2018; see also Merabishvili v. Georgia [GC], no. 72508/13, §§ 222-25, 28 November 2017; Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, §§ 198-200, 27 August 2019; and Selahattin Demirtaş v. Turkey (no. 2) [GC], no. 14305/17, §§ 311-21, 22 December 2020). (ii)    Application of those principles
67. The Court notes that the applicant did not claim that his arrest and pre-trial detention had not been based on a reasonable suspicion of his having committed the offences in relation to which he was taken into custody, and that the Government gave a detailed account of the incriminating material obtained by the authorities before the arrest. Nothing in that material appears to cast doubt on the reasonableness of the suspicion against the applicant, either on the facts or as a matter of criminal law (see Merabishvili, cited above, § 187, with further references therein). The Court is thus satisfied that the material put forward by the prosecution authorities and relied upon by the Tbilisi City Court to confirm the arrest and order the pre-trial detention the applicant was sufficient to persuade an objective observer that he might have committed the offences with which he had been charged. Moreover, the intention was to bring the applicant before a competent legal authority, which happened the next day (see paragraphs 27 and 29 above). 68. As to whether the arrest was “lawful” and “in accordance with a procedure prescribed by law”, the Court observes that the domestic courts referred to Article 171 § 2 point (e) of the Code of Criminal Procedure, according to which a warrant can be dispensed with if there is a risk of flight (see paragraph 51 above). Given that the applicant was arrested at the airport when trying to board a flight to Kyiv, the Court finds relevant the Government’s argument that there was such a risk (compare Magnitskiy and Others, cited above, § 202, and contrast Korban v. Ukraine, no. 26744/16, §§ 146-48, 4 July 2019). When deciding the next day whether or not to place the applicant in pre-trial detention, the Tbilisi City Court also examined, albeit briefly, the lawfulness of his arrest (see paragraph 29 above), and its decision was upheld by the Tbilisi Court of Appeal (see paragraph 32 above). The Court sees no basis on which to depart from the domestic courts’ findings on the application of domestic law (see Mikhaniv v. Ukraine, no. 75522/01, § 83, 6 November 2008). 69. What remains to be ascertained is whether there was anything arbitrary in the way the applicant was subsequently remanded in custody on 4 July 2014. Detention will be “arbitrary” where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (see S., V. and A. v. Denmark, cited above, §§ 75‑76, with further references therein; see also Mooren v. Germany [GC], no. 11364/03, §§ 77-79, 9 July 2009; Magnitskiy and Others, § 198 and Korban, § 145, both cited above). The thrust of the applicant’s complaint in this regard is the fact that he was remanded in custody despite being allowed to remain at liberty without bail just two days before, that is, on 2 July 2014 (see paragraph 17 above). 70. The Court starts by noting that whether the Tbilisi City Court paid enough heed to the applicant’s personal situation and, more generally, whether the reasons that it gave for placing him in pre-trial detention were relevant and sufficient, falls more properly to be examined under Article 5 § 3 (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 44, Series A no. 77; Khodorkovskiy v. Russia, no. 5829/04, §§ 161 and 163, 31 May 2011; Mikiashvili v. Georgia, no. 18996/06, § 94, 9 October 2012; and Vaščenkovs v. Latvia, no. 30795/12, § 42, 15 December 2016). Consequently, this issue will be examined in detail later (see paragraphs 100‑105 below). In view of the Court’s relevant case-law, it cannot be said that the reasons given by that court for placing the applicant in pre-trial detention suffered from such shortcomings as to call into question its lawfulness within the meaning of Article 5 § 1 (contrast Lutsenko v. Ukraine, no. 6492/11, §§ 67-72, 3 July 2012, and Tymoshenko v. Ukraine, no. 49872/11, §§ 269-70, 30 April 2013; see also Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 74, 13 January 2009). 71. In particular, the Court notes that while the decision of 2 July 2014 by which the Tbilisi City Court decided that the applicant could remain at liberty without bail and did not need to surrender his ID card and international passport preceded his arrest by only one day (see paragraph 17 above), the applicant did not argue that the charges in both cases were similar (compare Mikhaniv, cited above, § 85; contrast Dubinskiy v. Russia, no. 48929/08, § 43, 3 July 2014; Korban, cited above, § 149; I.E. v. the Republic of Moldova, no. 45422/13, §§ 64-65, and 67, 26 May 2020; and Cosovan v. the Republic of Moldova, no. 13472/18, § 99, 22 March 2022). At the same time, the Court finds relevant the Government’s argument that at least three new factual circumstances concerning the applicant had emerged in the period between the two court decisions that could be perceived as substantially altering his personal situation, and that the national courts indeed relied on those circumstances (see paragraphs 29-32 above). A witness claimed that the applicant had tried to influence him (see paragraph 22 above), new charges were brought against him in the fourth criminal case (see paragraph 24; contrast Korban, cited above, §§ 148-49), and he tried to leave the country despite being summoned by an investigator (ibid. §§ 41-42; see also Mikhaniv, cited above, §§ 81-89). 72. The Court considers that it is not its task to assess the strategy chosen by the prosecution authorities in the criminal proceedings, even if it raises certain questions as to its reasonableness. The Court does not find that the situation described above demonstrates that the new charges brought against the applicant in the fourth criminal case were solely used as a pretext to circumvent the effects of the domestic court’s decision of 2 July 2014 ordering his release (contrast Korban, cited above, § 150). The Court does not consider, therefore, that the decision of 4 July 2014 to remand the applicant in custody was taken in bad faith (compare Khodorkovskiy, cited above, §§ 142-43).
73.

Outcome for Article 5: no_violation