THIRD SECTION
CASE OF ABULADZE v. ESTONIA
(Application no. 12928/20)
 
 
 
 
 
 
JUDGMENT
 
STRASBOURG
24 January 2023
 
This judgment is final but it may be subject to editorial revision. In the case of Abuladze v. Estonia,
The European Court of Human Rights (Third Section), sitting as a Committee composed of:
 Georgios A. Serghides, President,
 Jolien Schukking,
 Darian Pavli, judges,
and Olga Chernishova, Deputy Section Registrar,
Having regard to:
the application (no. 12928/20) against the Republic of Estonia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 28 February 2020 by an Estonian national, Mr Georgi Abuladze, born in 1988 and living in Tallinn (“the applicant”), who was represented by Mr M. Tammann, a lawyer practising in Pärnu;
the decision to give notice of the application to the Estonian Government (“the Government”), represented initially by their Agent, Ms M. Kuurberg, Representative of Estonia to the European Court of Human Rights, and subsequently by Mr T. Kolk, her successor in that office;
the parties’ observations;
Having deliberated in private on 13 December 2022,
Delivers the following judgment, which was adopted on that date:
SUBJECT MATTER OF THE CASE
1. The case concerns the applicant’s allegations of excessive length of his pre-trial detention, which lasted approximately four and half years, in breach of Article 5 § 3. 2. The applicant was accused of being a member of a criminal organisation. He was arrested on 6 October 2015 and remanded in custody by a preliminary investigation judge on 8 October 2015. He remained in custody until his conviction by the first-instance court on 13 March 2020. 3. After the completion of the pre-trial investigation, the defence lawyers were given time to examine the criminal files on 7 March 2016, and on 22 March 2016 the statement of charges was sent to the court. Following a preliminary hearing, the applicant was committed for trial on 5 April 2016. 4. Charges were brought against nine persons in respect of eleven different criminal offences, including membership of a criminal organisation (other offences included, inter alia, physical abuse, torture, human trafficking, theft, fraud and extortion). The prosecutor had applied to examine more than sixty witnesses, victims and third parties. The applicant was suspected of having belonged to the criminal organisation at least since 2013. 5. During both the pre-trial and trial stages the domestic courts examined at regular intervals (once every six months at most) whether the applicant’s pre-trial detention continued to be justified, either in response to his own requests or of their own motion. On each occasion the courts confirmed that there was reasonable suspicion that the applicant had committed the offence he was accused of. As grounds for his detention, they relied on the risks of the applicant reoffending and obstructing the proceedings by influencing witnesses or otherwise tampering with evidence. 6. With regard to the risk of reoffending, the courts referred not only to the nature of the offence of membership of a criminal organisation (including the manner in which the organisation operated and divided its criminal proceeds), but also to the applicant’s supposed role as collector of the financial proceeds from criminal activities on behalf of the criminal organisation and long-term membership in the organisation in question. Noting that the applicant was likely to have lived off illegal income, at least partially, for an extended period of time and considering that it was common for criminal organisations to take care of their members and their families (including those who had been detained), the courts found that, if released, the applicant could continue committing offences in order to maintain his own living standard as well as that of his co-defendants. 7. When examining the risk of obstruction of proceedings, the domestic courts took into account information in the criminal file according to which disobedient members of the organisation were physically punished, were threatened with punishment or were pushed to commit offences. In the present case not all of the alleged members of the criminal organisation in question were remanded in custody during the proceedings. The domestic courts pointed to a concrete example where one of the defendants had repeatedly tried to influence witnesses. The courts also referred to the applicant’s role and authority in the organisation, noting that his task of collecting money from the organisation’s lower-ranking members had not been a merely “technical” one. The courts regularly assessed the relevance of the risk of obstruction in relation to the state of proceedings, notably the progress made in hearing the witnesses, and noted in May 2019 that the risk had ceased because all the witnesses had been questioned. 8. The courts repeatedly dismissed the applicant’s requests for pre-trial detention to be replaced with electronic surveillance as the latter measure would not have prevented him from communicating and meeting with other persons, and could thus not have sufficiently limited the risk of his reoffending. 9. During the trial a total of 108 hearings were held in a regular manner, apart from the longer gaps described below. 10. On five separate occasions during the trial the defendants, including the applicant on two occasions, informed the court shortly before the scheduled hearings that the client agreements with their chosen lawyers had been terminated. Consequently, while the applicant found a new lawyer for himself, some of the other defendants needed to have legal-aid lawyers designated by the Bar Association (Article 43 of the Code of Criminal Procedure and section 18 of the State-Funded Legal Aid Act). 11. Setting hearing dates that would suit all the parties concerned was complicated by the fact that during some periods the applicant’s lawyer, other defence lawyers (including legal-aid lawyers designated by the Bar Association) and the prosecutor were simultaneously involved in another criminal case concerning another criminal organisation. Trial in these parallel proceedings commenced on 8 March 2016 and ended with a final judgment on 6 January 2021. 12. The difficulty of finding suitable hearing dates, combined with the termination of the client agreements between some of the defendants and their lawyers, resulted in longer breaks between hearings from April 2016 until January 2017 and from April 2017 until January 2018. The applicant also pointed to gaps between hearings from June 2018 until September 2018 and from the end of May 2019 until the end of September 2019, which the Government did not comment on. 13. The case was assigned to a new judge of the Harju County Court in mid-November 2016, although this does not appear to have caused any delays in the proceedings. When it appeared that some of the defence lawyers, including the applicant’s, could not attend the scheduled hearings, the judge refused to postpone them. Furthermore, relying on Article 441 of the Code of Criminal Procedure, the judge compelled the lawyers concerned to appoint substitute lawyers in good time before the scheduled hearings. The judge also advised to avoid situations where defence lawyers, who were already involved in complex large-scale criminal cases, would take up defence duties in simultaneous heavy cases. 14. While the domestic courts also considered the need for a substitute prosecutor due to his parallel involvement in a large-scale case and noted that the prosecutor’s office should in future consider appointing several prosecutors to work on cases of such magnitude, domestic law did not provide for the possibility of the court ordering the appointment of a substitute prosecutor. The trial judge also dismissed the applicant’s request for the removal of the prosecutor. Furthermore, the trial judge criticised the parties for having been unrealistic in their initial assessment of the need for scheduling hearing dates. As a result, extra hearing dates had to be scheduled on a number of occasions. For example, the defence lawyers had not revealed that they intended to ask that the secret surveillance recordings be played during hearings at the court – this stage had lasted for eighteen hearing days. 15. On other occasions the hearings had to be cancelled either because the judge, the defendants or their lawyers were ill or because defendants did not appear in court. 16. In a decision dated 7 February 2019, concerning another defendant in the same criminal case, the Supreme Court reiterated the arguments of the trial court in respect of the delays in the proceedings (see paragraphs 10-11 and 13-14 above). The Supreme Court noted, in particular, that the prosecutor’s office had not chosen the most efficient conduct of proceedings by assigning the same prosecutor to several trials conducted at the same time, and criticised the Bar Association for appointing defence councils already acting in other large cases. 17. The applicant complained under Article 5 § 3 of the Convention that his detention on remand had been excessively long.

Outcome for Article 5: violation