CASE OF MERABISHVILI v. GEORGIA

1. The initial phase of the proceedings
2. The applicant’s arrest and placement in pre-trial detention
3. The two adjournments of the pre-trial conference hearing
4. The applicant’s request for release during the pre-trial conference hearing
5. The applicant’s request for release of 7 October 2013
6. The applicant’s conviction and sentence and his appeals against them
D. The other criminal cases against the applicant
E. Alleged covert removal of the applicant from his prison cell on 14 December 2013 and investigations into that allegation
2. The authorities’ initial reaction to those allegations
3. Inquiry by the Ministry of Prisons’ General Inspectorate (December 2013 – January 2014)
4. Developments after the end of the inquiry
5. Investigation by the Chief Public Prosecutor’s Office (June 2016 – February 2017)
F. Criminal cases against other members of UNM’s leadership
1. Statements by Georgian Dream government ministers in connection with those cases
2. Statements by foreign governments, international organisations and non-governmental organisations in relation to those cases
3. Refusals to extradite former UNM officials to Georgia
4. Interpol’s deletion of information about Mr Saakashvili and Mr D.K.
B. Provisions governing pre-trial detention
1. Grounds for ordering pre-trial detention
C. Power of the prosecuting authorities to drop charges
III. RELEVANT INTERNATIONAL MATERIALS
C. Case-law of the Inter-American Court of Human Rights
D. Disguised prosecution for political opinions in extradition law
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
B. The parties’ submissions to the Grand Chamber
1. Whether the Grand Chamber has jurisdiction to examine the complaint relating to the applicant’s arrest
2. General principles under Article 5 § 1 (c) of the Convention
3. Application of those principles
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
B. The Government’s preliminary objection
2. The Grand Chamber’s assessment
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
V. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 § 1
B. The Government’s preliminary objection
2. The Grand Chamber’s assessment
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
2. The applicant’s claims in the Grand Chamber proceedings
3. The Government’s comments on the claims
JOINT CONCURRING OPINION OF JUDGES YUDKIVSKA, TSOTSORIA AND VEHABOVIĆ
IV. Concrete circumstances of the present case
1. Case of the investigation into the death of former Prime Minister Zhvania
2. Case of former President Saakashvili
CONCURRING OPINION OF JUDGE SERGHIDES
I. INTERPRETATION AND APPLICATION OF ARTICLE 18 OF THE CONVENTION – PLURALITY OF PURPOSES OF RESTRICTIONS
A. Text and character of Article 18 of the Convention (textual or literal interpretation)
B. Object and purpose of Article 18 of the Convention (purposive or teleological interpretation)
C. Analysis of the judgment’s approach
JOINT PARTLY DISSENTING OPINION OF JUDGES RAIMONDI, SPANO, KJØLBRO, GROZEV, RAVARANI, PASTOR VILANOVA, POLÁČKOVÁ AND HÜSEYNOV
In the case of Merabishvili v. Georgia,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
Guido Raimondi, President, Angelika Nußberger, Linos-Alexandre Sicilianos, Ganna Yudkivska, Robert Spano,
Nona Tsotsoria, Işıl Karakaş, Kristina Pardalos, Faris Vehabović Ksenija Turković, Jon Fridrik Kjølbro, Yonko Grozev, Georges Ravarani, Pere Pastor Vilanova, Alena Poláčková, Georgios A. Serghides, Lәtif Hüseynov, judges, and Søren Prebensen, Deputy Grand Chamber Registrar,
Having deliberated in private on 8 March and 20 September 2017,
Delivers the following judgment, which was adopted on the last ‑ mentioned date:
1. The case originated in an application (no. 72508/13) 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 Ivane Merabishvili (“the applicant”), on 20 November 2013.
2. The applicant alleged that his arrest and pre-trial detention between 21 May 2013 and 17 February 2014 had been unlawful and unjustified, that on 25 September 2013 he had not obtained a proper judicial review of his detention, and that the restriction of his right to liberty had been applied for purposes other than those for which it had been prescribed.
3. The application was allocated to the Fourth Section of the Court (Rule 52 § 1 of the Rules of Court). On 24 May 2016 a Chamber of that Section, composed of the following judges: András Sajó, President, Vincent A. De Gaetano, Boštjan M. Zupančič, Nona Tsotsoria, Paulo Pinto de Albuquerque, Egidijus Kūris and Iulia Motoc, and also of Marialena Tsirli, Section Registrar, declared the application admissible. In its judgment, delivered on 14 June 2016, the Chamber found that there had been no breach of Article 5 § 1 of the Convention and no breach of Article 5 § 3 of the Convention with respect to the initial decision to place the applicant in pre-trial detention, but a breach of Article 5 § 3 on account of the lack of any reasons for a decision of 25 September 2013 rejecting a request for release by the applicant. The Chamber found that there was no need to examine the complaint under Article 5 § 4 of the Convention. Lastly, it found a breach of Article 18 taken in conjunction with Article 5 § 1 of the Convention.
4. On 14 September 2016 the Georgian Government (“the Government”) requested that the case be referred to the Grand Chamber in accordance with Article 43 of the Convention. On 17 October 2016 a panel of the Grand Chamber granted that request.
5. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24 of the Rules of Court. At the final deliberations, Faris Vehabović, first substitute judge, replaced Helena Jäderblom, who was unable to take part in the further consideration of the case (Rule 24 § 3).
6. The applicant and the Government both filed further written observations (Rule 59 § 1 read in conjunction with Rule 71 § 1).
7. A hearing took place in public in the Human Rights Building, Strasbourg, on 8 March 2017 (Rule 59 § 3 read in conjunction with Rule 71 § 1).
There appeared before the Court:
(a) for the GovernmentMr A. Baramidze, First Deputy Minister of Justice, Counsel, Mr B. Dzamashvili, Agent, Ms M. Bilikhodze, Head of Litigation Unit, Department of State Representation to International Courts, Ministry of Justice, Ms N. Tchanturidze, Legal Adviser of Litigation Unit, Department of State Representation to International Courts, Ministry of Justice, Mr R. Bagashvili, Deputy Head of Investigation Unit, Chief Public Prosecutor’s Office, Ms E. Beradze, Head of Department of International Relations and European Integration, Ministry of Prisons, Advisers;
(b) for the applicantMr P. Leach, Ms J. Sawyer, Counsel, Mr O. Kakhidze, Mr D. Kakoishvili, Ms A. Khojelani, Advisers.
The Court heard addresses by Ms Sawyer, Mr Leach and Mr Baramidze, and replies by Mr Leach and Mr Baramidze to questions put by a judge.
I. THE CIRCUMSTANCES OF THE CASE
8. The applicant was born in 1968 and is now serving a sentence of imprisonment in Tbilisi.
9. In 2003 the so-called “Rose Revolution” erupted in Georgia, after elections perceived as rigged. It consisted of twenty days of peaceful protests, and caused the then President, Mr Eduard Shevardnadze, former First Secretary of the Georgian Communist Party and former Soviet foreign minister, who had led Georgia since 1992, to resign. New presidential and parliamentary elections were held in 2004. They were won by the United National Movement (“UNM”), led by Mr Mikheil Saakashvili, one of the Rose Revolution’s protagonists.
10. The applicant was an active participant in those events, a close collaborator of Mr Saakashvili, and a leading figure in UNM.
11. Until 1 October 2012, when UNM lost the parliamentary elections to the coalition Georgian Dream, led by Mr Bidzina Ivanishvili, the applicant was a member of the Georgian Government: from 2005 to 2012 he was Minister of Internal Affairs and then, from July to October 2012, Prime Minister.
12. On 15 October 2012, two weeks after the parliamentary elections, the applicant was elected Secretary General of UNM, which became the chief opposition party in Georgia.
13. Shortly after his term of office came to an end, after the presidential election on 27 October 2013, Mr Saakashvili, who had been President of Georgia since 2004, left the country.
B. The incident at Tbilisi Airport on 30 November 2012
14. Between 1 November 2012 and 21 May 2013, when he was arrested (see paragraph 26 below), the applicant had made five trips abroad, always returning as scheduled.
15. According to the Government, on 30 November 2012 the applicant had attempted to cross the border at Tbilisi Airport using a fake passport.
16. After checking the passport against the official electronic database, an officer of the Border Police spotted a discrepancy between the photograph in it, which matched the applicant’s appearance, and the other data, including the name, Levan Maisuradze, which differed from the information about the applicant in the database. The officer returned the passport to the applicant’s personal assistant, asking for clarification. The assistant then brought from the applicant’s office another passport, issued in the applicant’s real name and matching all his identification data. After a check of that passport’s authenticity, the applicant was allowed to cross the border.
17. The same day the Border Police opened a criminal investigation into the incident. The head officer immediately went to Tbilisi Airport to interview the officer who had discovered the allegedly fake passport. According to evidence gathered in the course of the ensuing investigation, while he was at the airport the head of the Border Police received a call from the applicant on his mobile telephone. Relying on his status and long-standing personal connections within the Ministry of Internal Affairs, the applicant demanded that the incident not be investigated and that the border-police officer not be asked to give evidence in relation to the incident. According to statements later given to the investigating officers by the head of the Border Police, the applicant had threatened him personally and with regard to his career and used obscene language during their telephone conversation.
18. When interviewed on 1 and 7 December 2012 in relation to the incident, the applicant denied having presented a passport under the name of Levan Maisuradze, and said that he only had four passports, two ordinary ones and two diplomatic ones, all issued under his real name.
C. The criminal proceedings against the applicant in relation to the State Programme for Job Seekers and the house in the village of Kvariati
1. The initial phase of the proceedings
19. On 13 December 2012 the Prosecutor’s Office of Western Georgia in Kutaisi opened criminal proceedings against the applicant and Mr Z.T., the Minister of Health, Labour and Social Affairs in his government (who immediately after the October 2012 elections had been appointed governor of the Kakheti region), for alleged embezzlement and abuse of official authority, in relation to a “State programme for job seekers” put in place by the applicant’s government between July and September 2012.
20. The same day the applicant and Mr Z.T. appeared before the prosecuting authorities and were interviewed as witnesses.
21. On 18 January 2013 the Prosecutor’s Office of the Ajarian Autonomous Republic opened separate criminal proceedings against the applicant for alleged abuse of official authority in relation to a private house in Kvariati, a resort on Georgia’s southern Black Sea coast.
22. On 13 February 2013 the applicant was examined as a witness in the context of those separate criminal proceedings.
23. On 20 May 2013 the two sets of proceedings were joined.
2. The applicant’s arrest and placement in pre-trial detention
24. On 21 May 2013 the applicant and Mr Z.T. were summoned by the investigator attached to the Prosecutor’s Office of Western Georgia in Kutaisi, which was dealing with the joined case, for an interview that day. The same day the applicant’s wife left Georgia.
25. The applicant appeared for the interview, which took place from 12.25 p.m. to 3.05 p.m. on 21 May 2013.
26. Three-quarters of an hour after the interview, at 3.50 p.m., the investigator arrested the applicant under Article 171 § 2 (e) of the Code of Criminal Procedure (see paragraph 144 below). She noted that the arrest was being made because, faced with a reasonable suspicion of having committed an offence and a possible punishment, the applicant might try to flee. That risk was corroborated by his attempt to cross the border with a fake passport in 2012 (see paragraphs 15-18 above), as well as by his many trips abroad, which showed that he would have no difficulties getting out of Georgia. The investigator also noted that the applicant had held high office for many years, and was still an influential figure. There was hence a risk that he would obstruct the investigation.
27. Shortly before that, at 3.31 p.m., the investigator had also arrested Mr Z.T.
28. Later that day, at 9.50 p.m., the applicant was charged.
29. The first charge was that between July and September 2012 he had devised, and Mr Z.T. and the director of Georgia’s Social Service Agency had implemented, a scheme creating fictitious public-sector jobs for 21,837 persons whereby they were unduly paid a total of 5,240,880 Georgian laris (GEL) (at that time equivalent to 2,421,953 euros (EUR)) of budgetary funds for carrying out campaign work for UNM in the run-up to the October 2012 elections. According to the authorities, the applicant had thereby bought votes contrary to Article 164 1 of the Criminal Code, misappropriated property in large quantities, acting in an organised group and using his official position contrary to Article 182 §§ 2 (a) and (d) and 3 (b) of the Code, and abused his power as a public official holding a political post contrary to Article 332 § 2 of the Code.
30. The second charge was that after 2009 the applicant had systematically used the house in Kvariati, which belonged to a limited liability company under investigation by the Ministry of Internal Affairs, for family vacations, that in 2011 and 2012 he had had work costing GEL 131,884.60 done on that house with funds of the Ministry of Internal Affairs, and that he had caused GEL 25,784.70 to be spent on the salaries of staff servicing the house, thus depriving the State budget of a total of GEL 157,669.30 (at that time equivalent to EUR 73,216). According to the prosecuting authorities, the applicant had thereby infringed the inviolability of property by using an official position contrary to Article 160 § 3 (b) of the Criminal Code, misappropriated property in large quantities by using an official position contrary to Article 182 §§ 2 (d) and 3 (b), and abused his power as a public official holding a political post contrary to Article 332 § 2 of the Code.
31. In their observations, the Government set out the witness and other evidence on which those two sets of charges were based. Many of the witnesses whose statements related to the first set of charges were current or former officials of the Social Service Agency, of the Ministry of Health, Labour and Social Affairs, or of other ministries or government departments; some were UNM party officials. Many of the witnesses whose statements related to the second set of charges were former officials of the Ministry of Internal Affairs.
32. In the meantime, the prosecuting authorities searched the applicant’s flat. They discovered and seized GEL 29,000 (at that time equivalent to EUR 13,812), 33,100 United States dollars and EUR 54,200 in cash.
(b) The placement in pre-trial detention
(i) Proceedings before the Kutaisi City Court
33. On 22 May 2013 the district prosecutor’s office of Western Georgia asked the Kutaisi City Court to place the applicant in pre-trial detention. It described the offences with which the applicant was charged and cited the witness and other evidence supporting the charges. It also argued that there was a risk that the applicant would flee and a risk that he would obstruct the gathering of evidence, and that those risks could not be averted by a less restrictive measure.
34. In the prosecution’s view, the risk of flight was borne out, firstly, by the applicant’s having established, by dint of his having held high public office for several years, many contacts abroad and in Georgia, which would facilitate his departure from the country. Since 2009 he had crossed the border more than sixty times. Secondly, the applicant’s wife had left the country on 21 May 2013, immediately after the applicant had been served with the summons to appear for his interview with the investigator in Kutaisi. Thirdly, the search of the applicant’s flat on 21 May 2013 had revealed large sums in cash. It was reasonable to suppose that the applicant had amassed that money in order to be able to leave the country. Fourthly, the applicant had a fake international passport that had been issued to him at the time when he had still been Minister of Internal Affairs. Lastly, the seriousness of the charges which the applicant was facing and the severity of the possible sentence also had to be taken into account.
35. The risk of obstructing the gathering of evidence was, for its part, borne out by the applicant’s having held a number of high political posts and by his uncivil attempt to put pressure on the head of the Border Police during the incident on 30 November 2012 (see paragraph 17 above).
36. The prosecution requested that the applicant’s co-accused, Mr Z.T., also be placed in pre-trial detention.
37. Counsel for the applicant opposed the prosecution’s request. In their written submissions to the Kutaisi City Court they argued that since the applicant had been a member of the Government, by law only the Minister of Justice could institute criminal proceedings against him. Yet he had been arrested by an investigator from the district prosecutor’s office of Western Georgia, and charged by a prosecutor from the same office. His arrest and the criminal proceedings against him were therefore unlawful. Moreover, his arrest had been in breach of Article 171 of the Code of Criminal Procedure (see paragraph 144 below). The alleged risk that he would flee was not supported by concrete evidence, and was belied by his repeated appearances before the investigating authorities and his public pledge that he would cooperate with them. Also, he had been out of Georgia many times and had not once tried to flee, including after the opening of the investigation. On the day of his arrest he had voluntarily appeared for questioning. There had therefore been no need to detain him without a judicial warrant. The alleged risk of his obstructing the investigation was also not specifically borne out. Moreover, the investigation had already lasted several months without any instances of his having interfered with it being reported. Counsel for the applicant also invited the court to take into account the applicant’s achievements in combating crime and police reform during his time in office.
38. The Kutaisi City Court heard the prosecution’s request at a public hearing held on the same day, 22 May 2013. Both parties made oral submissions.
39. After the hearing, the court decided to place the applicant in pre-trial detention, but to release Mr Z.T. on bail. It briefly noted that, according to the materials in the case file, there had been no serious procedural breaches in the applicant’s arrest or the bringing of charges against him. In particular, by law only acting, not former, members of the Government had to be prosecuted by the Minister of Justice rather than a regular prosecutor. The court went on to say that there was enough information to show that there was a reasonable suspicion against the applicant and Mr Z.T. The other pre-requisites for placing the applicant in pre-trial detention were also in place. A number of investigative steps were yet to be carried out, and as was apparent from the prosecution’s request, there was a risk that the applicant would tamper with the evidence or put pressure on witnesses. That was borne out, in particular, by the applicant’s having already tried to put pressure on a witness against him. Another factor which suggested such a risk was that the applicant had for many years held high public office and was still an influential figure in some circles of Georgian society, especially bearing in mind that the charges against him related to his time in office. Many witnesses were former subordinates of his or people under his professional or personal influence. The court also agreed with the prosecution that there was a risk that the applicant would flee. That was borne out, in particular, by his facing serious charges and the possibility of a severe sentence. Lastly, the court found that those two risks could not be averted by a less restrictive measure.
40. The court fixed the pre-trial conference hearing for 15 July 2013.
41. The applicant was remanded in custody in Prison no. 9 in Tbilisi.
(ii) Proceedings before the Kutaisi Court of Appeal
42. The applicant appealed to the Kutaisi Court of Appeal. He argued that on a proper reading of the relevant statutory provisions the Minister of Justice alone was competent to prosecute offences committed by anyone in their capacity as member of the Government, not only someone who was such a member at the time when the prosecution was being brought. He also argued that the Kutaisi City Court had erred by not examining in detail the lawfulness of his arrest. That arrest had been in breach of Article 171 of the Code of Criminal Procedure, in particular because on the day of the arrest he had voluntarily appeared for questioning. It was also hard to believe that the Kutaisi City Court, which had ruled on the prosecution’s request just three or four hours after it had been made, had really studied the evidence said to give rise to a reasonable suspicion against the applicant. There were no facts or information in the case file to suggest that he had committed the offences. The lower court had also expected him to disprove the risks of flight and obstruction of justice alleged by the prosecution rather than require the prosecution to establish those risks. Its finding that the applicant had put pressure on a witness ran counter to the presumption of innocence. He had never called or threatened the head of the Border Police. The Kutaisi City Court had also disregarded the fact that in the months before his arrest he had voluntarily appeared for questioning several times. Neither that court nor the prosecution had pointed to evidence showing that he would flee abroad. He had travelled out of Georgia many times since the investigation had been opened. The argument that his being an influential figure in some circles suggested that he could influence witnesses made it clear that he was a victim of political persecution. His character showed that there was not even a minimal risk of his fleeing, putting pressure on witnesses or destroying evidence.
43. On 25 May 2013 the Kutaisi Court of Appeal, having examined the appeal on the papers, declared it inadmissible. It noted that the Kutaisi City Court had reviewed the materials in the case and the evidence submitted to it, and had checked whether the gathering of that evidence and the bringing of the charges against the applicant had complied with the Code of Criminal Procedure. When deciding to place the applicant in pre-trial detention, that court had taken into account his personality and the risk of his obstructing the proceedings. Since that court had already dealt with all the points raised in the appeal, as well as with all the important points concerning the lawfulness of the applicant’s detention, there was no reason to entertain the appeal.
3. The two adjournments of the pre-trial conference hearing
44. On 2 July 2013 the prosecution, citing the need for additional investigative steps, asked the Kutaisi City Court to adjourn the pre-trial conference hearing until 11 September 2013. On 5 July 2013 the court partly allowed the request, adjourning the conference until 23 August 2013.
45. On 12 August 2013 the applicant, citing the volume of materials in the case file and the need for more time to prepare his defence, sought a further adjournment of the pre-trial conference. The prosecution objected, stating that the applicant was trying to protract the proceedings and leave less time for the examination of the case on the merits. On 14 August 2013 the Kutaisi City Court allowed the request in full and scheduled the pre-trial conference for 12 September 2013.
4. The applicant’s request for release during the pre-trial conference hearing
46. The pre-trial conference hearing took place on 12, 19 and 25 September 2013.
47. At the session on 25 September 2013 the applicant requested to be released from pre-trial detention. He pointed out that he had publicly pledged to cooperate with the investigation, that before his arrest he had always duly appeared for questioning, and that he had been abroad many times and had always returned as scheduled. He also offered to hand in his passport. He went on to say that since the investigation had already been concluded and the authorities had secured all witness and other evidence, there was no longer a risk of his influencing witnesses, which in any event did not exist since he no longer held the high posts which he had occupied previously.
48. The prosecution argued that the applicant’s high political status and connections abroad and his possession of two diplomatic passports and a fake passport made it easy for him to leave Georgia. It was also possible that he had other unidentified passports, a device used by other former officials to get out of the country. The surrender of his passport would therefore not obviate the risk of flight. The risk of his influencing witnesses was also still present. He had already done so on 30 November 2012, when no longer occupying an official post. Moreover, the witnesses were still due to testify at trial, which was by law the only way of adducing their evidence.
49. The Kutaisi City Court examined and rejected the request for release the same day. It gave its decision orally. As evidenced by the audio record of the hearing, the judge said, without further explanation, that the “request for termination of the pre-trial detention [wa]s to be rejected”.
5. The applicant’s request for release of 7 October 2013
50. The applicant’s trial started on 7 October 2013, and he again sought release from pre-trial detention. He pointed out that before his arrest he had always appeared freely before the investigating authorities, had repeatedly declared that he had no intention of fleeing, had been abroad and back even after the proceedings against him had started, was the secretary general of a major political party, and had a wife and two children. All those factors showed that there was no real risk of his fleeing. Nor was there any risk of his influencing witnesses. The prosecuting authorities had already questioned a considerable number of witnesses, and there was no risk that those witnesses would change their statements, as they could incur criminal liability if they did so.
51. The Kutaisi City Court rejected the request in a written decision of the same day. It noted that the applicant had failed to point to, or provide evidence of, new circumstances calling for a reconsideration of the decision to place him in pre-trial detention. In that decision, the court had already dealt with all the points raised in his request. The fact that the trial had already started had no bearing on the justification for the applicant’s detention.
52. The court went on to say that its decision could be appealed against at the same time as its final judgment on the merits of the criminal case.
6. The applicant’s conviction and sentence and his appeals against them
53. On 17 February 2014 the Kutaisi City Court found the applicant guilty of buying votes contrary to Article 164 1 of the Criminal Code, and of misappropriating property in large quantities, acting in an organised group and using his official position contrary to Article 182 §§ 2 (a) and (d) and 3 (b) of the Code, in relation to the fictitious-jobs scheme (see paragraph 29 above). The court also found the applicant guilty of infringing the inviolability of property by using an official position contrary to Article 160 § 3 (b) of the Code, and of misappropriating property in large quantities by using an official position contrary to Article 182 §§ 2 (d) and 3 (b) of the Code, in relation to the house in Kvariati (see paragraph 30 above). The court dismissed the charges of abuse of power under Article 332 § 2 of the Code as superfluous. It sentenced the applicant to five years’ imprisonment and banned him from holding public office for one and a half years.
54. The applicant appealed against that judgment, but on 21 October 2014 the Kutaisi Court of Appeal upheld it in full.
55. On 18 June 2015 the Supreme Court declared the applicant’s ensuing appeal on points of law inadmissible.
D. The other criminal cases against the applicant
56. On 28 May 2013 the Chief Public Prosecutor’s Office charged the applicant with exceeding his power by using violence, contrary to Article 333 § 3 (b) of the Criminal Code, in relation to his role in a police operation to disperse a rally on 26 May 2011. On 30 May 2013 the Tbilisi City Court placed the applicant in pre-trial detention in relation to that charge, and on 27 February 2014 convicted him of it. The applicant appealed against that judgment, but on 11 August 2014 the Tbilisi Court of Appeal upheld it. An appeal by the applicant to the Supreme Court on points of law was declared inadmissible on 27 February 2015.
57. On 24 June 2013 the Tbilisi Prosecutor’s Office charged the applicant with abusing his power as a public official holding a political post, contrary to Article 332 § 2 of the Criminal Code. The case concerned the applicant’s role, in his capacity as Minister of Internal Affairs, in the alleged cover-up of a 2006 murder implicating high-ranking officers of the Ministry and the applicant’s wife (see Enukidze and Girgvliani v. Georgia, no. 25091/07, §§ 15-22, 26 April 2011). Two days later, on 26 June 2013, the Tbilisi City Court refused the prosecution’s request to place the applicant in pre-trial detention in relation to that charge. The applicant was later additionally charged with forging official documents in his capacity as an official, contrary to Article 341 of the Criminal Code. On 20 October 2014 the Tbilisi City Court convicted him of the two offences, and on 4 August 2015 the Tbilisi Court of Appeal upheld the conviction.
58. On 28 July 2014 the Chief Public Prosecutor’s Office charged the applicant with exceeding his power by using violence, contrary to Article 333 § 3 (b) of the Criminal Code, in relation to his role in the planning and supervision of a police raid on a private television and radio company, Imedi Media Holding, on 7 November 2007, and the ensuing withdrawal of the company’s broadcasting licence (see Akhvlediani and Others v. Georgia (dec.), no. 22026/10, §§ 6-8, 9 April 2013). The case is apparently still pending before the Tbilisi City Court.
59. On 5 August 2014 the Chief Public Prosecutor’s Office charged the applicant with exceeding his power by using violence, contrary to Article 333 § 3 (b) of the Criminal Code, in relation to his having allegedly ordered high-ranking police officers to have a member of parliament subjected to ill-treatment in reprisal for having made insulting public statements about Mr Saakashvili’s wife. The prosecuting authorities later also charged the applicant with wilfully causing that person grievous bodily harm, acting in concert with others, contrary to Article 117 § 5 (e) of the Criminal Code. On 22 September 2016 the Tbilisi City Court convicted the applicant of those offences. On 24 February 2017 the Tbilisi Court of Appeal upheld that judgment.
E. Alleged covert removal of the applicant from his prison cell on 14 December 2013 and investigations into that allegation
60. On 17 December 2013, during a court hearing in the trial against him, which was being broadcast live on television, the applicant stated that at about 1.30 a.m. the previous Saturday, 14 December 2013, he had been taken out of his prison cell, put in a car with his head shrouded in his jacket, and driven from Prison no. 9 in Tbilisi, where he was being held in custody, to what he believed to be the Penitentiary Department building. There, he had been taken to an office where, having had the jacket removed from his head, he had seen two men. The first had been the then Chief Public Prosecutor, Mr O.P. The applicant was not certain of the identity of the second, as he had left the office shortly after his arrival, but surmised that he had been Mr D.D., the head of the Penitentiary Department. Mr O.P. – who had been appointed as Chief Public Prosecutor on 21 November 2013 and resigned on 30 December 2013 over allegations that he had a criminal record in Germany – had requested the applicant to provide information about the death in 2005 of Mr Zurab Zhvania, the then Prime Minister, and about the bank accounts of the already former President of Georgia, Mr Saakashvili. If the applicant did that, he would be allowed to leave Georgia with “the money that he [had] made during his time in office”.
61. Mr Zhvania was one of the protagonists of the Rose Revolution (see paragraph 9 above). Shortly after it, in February 2004, he became Prime Minister. In December 2004 the applicant became Minister of Internal Affairs in his government. Mr Zhvania died in February 2005. On 3 February 2005 his dead body was found along with the dead body of Mr R.U., a deputy regional governor, in a flat in Tbilisi. According to the official version of the events, the two had died accidentally from carbon monoxide poisoning caused by faulty ventilation in a gas heater. The circumstances of Mr Zhvania’s death are still a subject of heated debate in Georgia, and Georgian Dream made it one of their campaign promises in the October 2012 elections to elucidate them. Shortly after those elections, in November 2012, the investigation into Mr Zhvania’s death was renewed and is apparently still pending. The applicant was questioned as a witness in the course of that renewed investigation on 21 March 2014. During the hearing before the Grand Chamber, the Government stated that while no one had asked the applicant anything about Mr Zhvania’s death on 14 December 2013, there was still a “huge question” to him in relation to that death, in view of the lack of credibility of the version that he had put forward at the time when it had happened: that it had been due to an accident.
62. According to the applicant, he had replied to Mr O.P. that it made no sense to accuse Mr Saakashvili of corruption. As for Mr Zhvania’s death, the investigation into it in 2005 had been comprehensive, and there was no further information that he could provide in relation to it. Mr O.P. had then threatened the applicant that if he did not cooperate, his detention conditions would worsen and he would not be able to get out of prison “until [Mr Irakli Garibashvili]’s government was in power”. Mr Garibashvili had become Prime Minister of Georgia on 20 November 2013, succeeding Mr Ivanishvili, who had become Prime Minister on 25 October 2012, following the parliamentary election won by Georgian Dream (see paragraph 11 above).
63. According to the applicant, he was then taken back to Prison no. 9, arriving in his cell at about 2.30 a.m.
64. The applicant went on to say that he could describe the office where the meeting had taken place and identify the two men who had taken him from Prison no. 9 to that office.
65. At the end of his statement, the applicant suggested that the authorities could verify his allegations by checking the footage from the surveillance cameras in Prison no. 9. He also requested an examination of the footage from the road-traffic cameras situated along the road allegedly taken by the car transporting him from the prison to the Penitentiary Department.
66. In the proceedings before the Grand Chamber, the applicant submitted that he had first discussed the meeting with the Chief Public Prosecutor with his lawyers when they had visited him in prison two days later, on Monday 16 December 2013. According to him, he could not have voiced his allegations earlier, as he was not allowed to receive visitors during the weekend and did not have free access to a telephone. For their part, the Government submitted that the applicant could have telephoned his lawyers or the Public Defender at any time, including at weekends and during the night.
2. The authorities’ initial reaction to those allegations
67. The applicant’s allegations prompted public reactions from several high officials.
68. On the same day, 17 December 2013, the Prime Minister stated that the allegations were an attempt to discredit the Government and a provocation, and that “questions should be rather put to psychologists and psychiatrists” in connection with them. In an official statement put out the same day, the Chief Public Prosecutor’s Office described the allegations as “absurd and untrue”, and surmised that the applicant had made them to manipulate public opinion and the criminal trial against him.
69. For her part, the Minister of Justice stated that, while the allegations appeared “unbelievable”, they were to be addressed seriously.
70. The following day, 18 December 2013, the Prime Minister again described the allegations as a provocation and said that he would not take seriously calls for the Minister of Prisons and the Chief Public Prosecutor to be suspended from office. For his part, the Minister of Prisons stated that “[the applicant had] not [been] taken out of prison” and that the allegations were “an absolute lie”. He went on to specify, in relation to the surveillance camera footage to which the applicant referred (see paragraph 65 above), that “the footage [could] not be obtained, as no investigation [was] being launched into such unserious matters”. He noted, however, that if an investigation were opened, the investigators would obtain access to the footage, which otherwise no one had the right to see.
71. The next day, 19 December 2013, Georgia’s Public Defender visited the applicant in prison to discuss his allegations. After the meeting, he called for an investigation into them.
3. Inquiry by the Ministry of Prisons’ General Inspectorate (December 2013 – January 2014)
72. On 20 December 2013 the Ministry of Prisons’ General Inspectorate opened an internal inquiry into the applicant’s allegations. It was in the main handled by two inspectors.
(a) The surveillance camera footage from Prison no. 9 and the Penitentiary Department building
73. The same day, 20 December 2013, the General Inspectorate’s deputy head wrote to the deputy head of the Ministry’s Penitentiary Department, requesting a copy of the footage from the surveillance cameras in Prison no. 9 and the Penitentiary Department building for the period between 12 midnight on 13 December 2013 and 12 noon on 14 December 2013.
74. In his reply of the same day, the Penitentiary Department’s deputy head said that the request could not be complied with as the footage from those cameras was kept for only twenty-four hours, following which it was automatically deleted.
75. At that time there were apparently no rules on the amount of time for which the footage was to be kept. Such rules were first put in place in May 2015 in response to criticism by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“CPT”) in the report of its visit to Georgia in 2014.
76. According to the Government, the applicant was aware of the limited time for which the footage was kept and had for that reason first voiced his allegations about the meeting with the Chief Public Prosecutor three days after it had taken place.
77. According to the applicant, the footage was kept for longer than twenty-four hours. In support of that assertion, he pointed out that the General Inspectorate’s deputy head was apparently unaware of the time-limit when asking for it (see paragraph 73 above). The applicant also submitted an affidavit by Mr G.M., deputy Minister of Prisons between 2010 and 2012, who had been in charge of reforming the surveillance system in prisons and had set up the Ministry’s information-technology department in 2011. According to that affidavit, surveillance camera footage was saved on servers and back-up servers in the Penitentiary Department itself, and kept for a month. It could not be deleted before the expiry of that period without outside interference.
78. According to the Georgian Government’s response to the CPT’s report on its visit to Georgia in 2014 (CPT/Inf (2015) 43), footage from the surveillance cameras was kept for twenty-four hours in every prison equipped with a video surveillance system, the reason for the limited duration being a lack of adequate technical equipment. Footage was kept for longer in several prisons where the surveillance equipment and servers had been upgraded shortly before that (ibid., at pp. 17-18).
(b) Other steps taken in the course of the inquiry
79. On 24 December 2013 the General Inspectorate’s head asked eight private companies who owned facilities equipped with surveillance cameras, such as petrol stations, along the road supposedly taken by the car transporting the applicant from Prison no. 9 to the Penitentiary Department to provide the footage for the period between 12 midnight on 13 December 2013 and 12 noon on 14 December 2013. All but one of those companies, which replied that the footage had already been deleted, complied with the request, and the footage was simultaneously reviewed by the two inspectors between 25 and 31 December 2013. Their notes stated briefly, without providing further details, that they had seen nothing of interest.
80. On 3 January 2014 one of the inspectors interviewed the applicant and the governor and deputy governor of Prison no. 9.
81. The applicant stated that he had been taken out of his cell by the governor, who had told him that a prosecutor wished to speak with him. Once in the prison yard, two other men, whose features he clearly remembered, had put him in a dark-coloured car, probably a Toyota Land Cruiser Prado or 200. The car had been driven by a third man whose features the applicant could not make out because once inside the car he had been blindfolded with his jacket. The car had moved for about ten minutes along main roads. Based on the direction of the drive, the applicant had surmised that he was being taken to the Penitentiary Department. During the drive, one of the men in the car had made a mobile telephone call informing someone that they would arrive in about five minutes. A short while after that, the same person had received a call saying that they would arrive in one minute. The applicant stated that he did not wish to describe in detail the office to which he had been taken, but that he could recognise it. He relayed in detail his conversation with the head of the Penitentiary Department, Mr D.D., noting that he had appeared heavily intoxicated. He did not describe in detail his ensuing conversation with the Chief Public Prosecutor, Mr O.P., stating that he had already spoken about that at the hearing on 17 December 2013.
82. The governor and the deputy governor both stated that they had been in Prison no. 9 in the early hours of the day of the alleged meeting, 14 December 2013, but that they had not seen or spoken to the applicant. When asked about the surveillance cameras, the governor said that if there had been any problem with them, he would have been told about it by the officers working in the technical room, which had not happened. He also specified that his service car was a black Toyota Land Cruiser Prado, and provided the registration number.
83. Still on 3 January 2014 one of the inspectors reviewed the logs for the movement of vehicles in and out of Prison no. 9. They did not contain any entries suggesting that the applicant had been taken out of the prison during the night in question.
84. The same day the General Inspectorate’s head asked the Ministry of Internal Affairs to provide footage from the road-traffic cameras along the road supposedly taken by the car transporting the applicant from Prison no. 9 to the Penitentiary Department for the time between 12 noon on 13 December 2013 and 12 noon on 14 December 2013. Footage from nine road-traffic cameras for the time between 12 midnight on 13 December 2013 and 6 a.m. on 14 December 2013 was provided on 13 January 2014 and was reviewed by three inspectors the same day. Their notes stated briefly, without providing further details, that they had seen nothing of interest in it.
85. The next day, 4 January 2014, the inspectors interviewed two prison officers supervising the movement of prisoners in Prison no. 9 and a prison officer tasked with escorting prisoners in the applicant’s wing in and out of their cells, all three of whom had been on duty between 10 a.m. on 13 December 2013 and 10 a.m. on 14 December 2013. All three officers dismissed the applicant’s allegations as untrue, and stated that if he had been taken out of his cell they would have known about it and would have recorded it in the relevant logs.
86. On 6 January 2014 one of the inspectors interviewed two prison officers who had been in charge of monitoring the surveillance cameras in Prison no. 9 from screens in a technical room inside the prison and who had been on duty between 7 p.m. on 13 December 2013 and 10 a.m. on 14 December 2013. Both of them stated that nothing unusual had happened that night and that the cameras had been working properly throughout. The two officers had learned about the applicant’s allegations from the media, and dismissed them as untrue. They also stated that there was a surveillance camera inside the applicant’s cell, and that it enabled them to monitor all of his movements in and out of it.
87. On 9 January 2014 one of the inspectors reviewed the logs for the movement of people in and out of Prison no. 9. They did not contain any entries suggesting that the applicant had been taken out during the night in question, but showed that he had been visited by his three lawyers two days later, on 16 December 2013.
88. Neither Mr O.P. nor Mr D.D. were interviewed or asked to provide explanations in the course of the inquiry.
89. On 14 January 2014 one of the inspectors drew up a report in which he stated that the inquiry had not confirmed the applicant’s allegations. In a letter dated 14 April 2014 the Chief Public Prosecutor’s Office informed the applicant’s lawyer, apparently in response to a request for information on his part made on 6 March 2014, that the inquiry was complete.
4. Developments after the end of the inquiry
90. The day after the end of the inquiry, 15 January 2014, the Public Defender reiterated his call for a full-scale investigation into the applicant’s allegations (see paragraph 71 above).
91. On 17 January 2014 several non-governmental organisations also urged the authorities to carry out a full investigation into the applicant’s allegations, expressing concern in particular about the lingering uncertainty surrounding the footage from the prison surveillance cameras.
92. In a television interview on 11 February 2014, the Prime Minister, Mr Garibashvili, said that the applicant’s allegations were “absurd and ridiculous” and that he had very much liked a “rhetorical question” asked by the former Prime Minister, Mr Ivanishvili, in relation to them a few days earlier, on 8 February 2014: “So what happened after [Mr O.P.] abducted [the applicant]? What did he do to [him] then, did he rape him or what?”
93. On 10 May 2014 a member of parliament from UNM revealed documents showing that in December 2013 forty officials from the Ministry of Prisons – among whom were the head of the Penitentiary Department, Mr D.D., his deputies, the governors of several prisons, and a Mr G.G., head of the special forces of the Ministry of Prisons – had received high bonuses: GEL 17,756 (at that time equivalent to EUR 7,430) for Mr D.D.; GEL 38,128 (EUR 15,954) and GEL 30,463 (EUR 12,747) respectively for his deputies; for prison governors, sums ranging from GEL 18,259 (EUR 7,640) for the governor of Prison no. 8 to GEL 29,609 (EUR 12,390) for the governor of Prison no. 9; and GEL 18,692 (EUR 7,821) for Mr G.G. The member of parliament suggested that the bonuses had been paid to recompense those officials for keeping the meeting between the applicant and the Chief Public Prosecutor secret. In response to those allegations, Mr D.D. stated that the bonuses had been exceptionally high because all those who had received them had worked in difficult conditions for twenty-four hours a day. For his part, the Minister of Prisons stated that the bonuses had been personally approved by Mr D.D.
94. At the hearing before the Grand Chamber, the Government denied the existence of any link between those bonuses and the applicant’s allegations, emphasising that officials from other prisons had also received them. The Government also stated that it was usual for such bonuses to be paid at the end of the year to government employees, especially law-enforcement officials.
95. In an interview with a newspaper journalist on 19 May 2014 Ms L.M., adviser to Mr D.D., said: “[E]ven a child knows that [the applicant] was taken from his prison cell by D.D.”. In a television interview later that day she said that she had spoken with officials from the Penitentiary Department who had confirmed that Mr D.D. had instructed them to conceal the surveillance-camera footage from the early hours of 14 December 2013. The following day, 20 May 2014, Mr D.D. dismissed Ms L.M. from her post. Three days later, on 23 May 2014, he himself resigned, apparently in connection with the controversy which had erupted following the disclosure of the bonuses paid in December 2013 (see paragraph 93 above).
96. On 17 June 2016, during an appeal court hearing in an unrelated criminal case concerning a 2006 operation in the course of which officers of the special forces of the Ministry of Internal Affairs had killed two people, one of the co-accused, Mr G.Ts., stated that he had information about the applicant’s meeting with the Chief Public Prosecutor. A number of people had been arrested and accused in that case, which became known as the “Kortebi” case, including (a) the six officers who had carried out the operation, one of whom was a Mr I.M.; (b) the special forces’ then deputy head, Mr G.G. (who several years later, in December 2013, was appointed by Mr D.D. as head of the special forces of the Ministry of Prisons – see paragraph 93 above); (c) Mr I.P., former deputy head of the Central Criminal Police Department of the Ministry of Internal Affairs; and (d) the above-mentioned Mr G.Ts., former deputy head of that Department’s Investigation Unit.
5. Investigation by the Chief Public Prosecutor’s Office (June 2016 – February 2017)
97. After the delivery of the Chamber judgment on 14 June 2016 (see paragraph 3 above), the speaker and several members of the Georgian Parliament called for a fresh investigation into the applicant’s allegations. The Minister of Justice stated that she hoped that the prosecuting authorities would carry out an investigation in connection with the Chamber’s findings under Article 18 of the Convention. She went on to say that the Government would seek a referral of the case before the Grand Chamber.
98. On 21 June 2016 the Chief Public Prosecutor’s Office opened a criminal investigation and assigned it to two investigators from its investigative department.
99. The applicant was interviewed on 24 June 2016. He reiterated his assertions of 17 December 2013 and 3 January 2014 in relation to his conversations with Mr D.D. and Mr O.P., and the car which had taken him to his meeting with them (see paragraphs 60 and 81 above). With regard to his removal from Prison no. 9, the applicant stated that when entering his cell to take him out, the prison governor had been accompanied by his deputy. He also stated that although he could not describe the two men who had then put him in the car, he could recognise them, in particular one of them, who had a distinctive face. The applicant also named the roads along which the car had allegedly driven.
100. On 29 June 2016 one of the investigators interviewed the governor of Prison no. 9. He stated that the applicant had not been taken out of his cell, either by himself or by anyone else. He also stated, inter alia, that pre-trial detainees were entitled to telephone the Public Defender’s Office at any time during the week, and that between 13 and 17 December 2013 the applicant had not asked to make such a call. He stated, further, that a surveillance camera had been installed in the applicant’s cell with his consent, for his own safety, but that the footage from that camera, just like the footage from all other surveillance cameras in the prison, was only kept for twenty-four hours.
101. The following day, 30 June 2016, the other investigator interviewed the deputy governor of Prison no. 9. His statement was almost identical to that of the governor. He stated that he had learned about the applicant’s allegations from the media and that they were false. He also confirmed that pre-trial detainees were entitled to telephone the Public Defender’s Office at any time during the week.
102. On 1 July 2016 the investigators interviewed the two prison officers in charge of monitoring the surveillance cameras in Prison no. 9. They confirmed the statements that they had given during the internal inquiry (see paragraph 86 above). Both stated that the footage from the cameras was only kept for twenty-four hours and then automatically deleted. Only if something unusual was noted during that time would the relevant footage be specially retrieved and kept for a month. Since nothing of the sort had happened in the early hours of 14 December 2013, the footage for that period had not been retrieved.
103. On 4 and 5 July 2016 the investigators interviewed the two prison officers in charge of supervising the movement of prisoners in Prison no. 9. They likewise confirmed their statements given during the internal inquiry (see paragraph 85 above).
104. On 5 July 2016 one of the investigators interviewed the prison officer in charge of escorting prisoners in the applicant’s wing in and out of their cells. He stated that no one had gone into the applicant’s cell in the early hours of 14 December 2013.
105. On 12 July 2016 one of the investigators interviewed one of the inspectors from the General Inspectorate of the Ministry of Prisons who had carried out the internal inquiry. The inspector described the steps that he had taken during the inquiry. In response to a question about the surveillance camera footage from Prison no. 9, he stated that the inquiry had been informed that that footage was only kept for twenty-four hours. He went on to say that the examination of the footage from the private and the road ‑ traffic cameras had not yielded any relevant information. In particular, it had been impossible to make out the registration numbers of the vehicles caught on camera. No car matching the description given by the applicant had been spotted.
106. On 26 July 2016 one of the investigators interviewed Mr D.D.’s deputy. He stated that the footage from the surveillance cameras was kept for twenty-four hours, and denied the applicant’s allegations. He explained that he had been at work in the Penitentiary Department building in the early hours of 14 December 2013, in his office which was just opposite that of Mr D.D., and that he had not seen the applicant or Mr O.P. there.
107. Between 7 and 22 July 2016 the investigators reviewed the footage obtained during the internal inquiry (see paragraphs 79 and 84 above). Their reports said, without giving further details, that they had not seen anything in it of interest for the case.
108. On 2 August 2016 the investigators interviewed Mr G.Ts. (see paragraph96 above) in the presence of a judge. He stated, inter alia, that on 4 February 2015, while in court for a pre-trial hearing in the “Kortebi” case, he had heard one of his co-accused, Mr G.G., former deputy head of the special forces of the Ministry of Internal Affairs and former head of the special forces of the Ministry of Prisons (see paragraphs 93 and 96 above), say that he had been one of those who had transported the applicant on 14 December 2013, and that for that reason it would not be in the authorities’ interests to keep him in detention for a long time. According to Mr G.Ts., that conversation had been recorded by the video camera in the courtroom, and overheard by another of the co-accused, Mr I.P. (see paragraphs 96 above and 109 below). Mr G.Ts. also stated that about a month later, in March 2015, Mr G.G. and the other special-forces officers accused in the “Kortebi” case, including Mr I.M., had been placed in a cell in Prison no. 9 adjacent to his. Mr G.Ts. had then heard Mr G.G. tell his cellmates that he and Mr I.M. had transported the applicant on 14 December 2013, and that it had been agreed with the authorities to release the special ‑ forces officers if they agreed to give evidence against Mr I.P. and others connected with UNM in the “Kortebi” case. (From the materials in the case file it appears that those officers, who had been charged with aggravated murder under Article 109 of the Criminal Code, were released in August 2015 under personal surety.) Mr G.Ts. had been able to hear the entire conversation through the wall as they had talked in loud voices. Mr G.Ts. also stated that during his stay in Prison no. 9 a prison officer had told him about the applicant’s removal from his cell. When asked why he had not spoken about that earlier, Mr G.Ts. replied that it was because he had no trust in the prosecuting authorities. He also stated that he had no incentive to bend the truth in favour of the applicant as the applicant had dismissed him from his post and had caused him to be detained in connection with a fight.
109. On 3 August 2016 the investigators interviewed Mr I.P., then in detention, in the presence of a judge. Mr I.P. stated that shortly before his arrest in the “Kortebi” case in February 2015 (see paragraph 96 above), he had met with Mr G.G., who had told him, albeit in veiled terms, that he and Mr I.M. had transported the applicant from Prison no. 9 to the Penitentiary Department, and that if the prosecuting authorities did not take that into account he would start talking about it in public. Mr I.P. also confirmed Mr G.Ts.’s story about the conversation in the courtroom on 4 February 2015 (see paragraph 108 above). He stated, in addition, that a Mr K.T., with whom he had shared a cell in Prison no. 9, had told him that he had seen the applicant being taken out of his cell on 14 December 2013 (see paragraph 112 below). However, Mr K.T. had only spoken about that after the delivery of the Chamber judgment on 14 June 2016 (see paragraph 3 above).
110. On 9 August 2016 one of the investigators interviewed Mr G.G. and the other interviewed Mr I.M. Mr G.G. denied Mr G.Ts.’s and Mr I.P.’s assertions that it had been he who had transported the applicant. He was not asked about the bonus which he had received in December 2013 (see paragraph 93 above). Mr I.M. likewise denied that he had transported the applicant, and stated that he had only started working at the Penitentiary Department on 16 December 2013, two days after the alleged incident.
111. On 9, 10 and 11 August 2016 the investigators interviewed the other five special-forces officers detained in relation to the “Kortebi” case alongside Mr G.G., Mr I.M., Mr G.Ts. and Mr I.P. (see paragraph 96 above). All of them stated that they had learned about the applicant’s allegations from the media, and that during their stay in the same cell as Mr G.G. he had not told them anything about the applicant’s alleged removal from his cell.
112. On 11 August 2016 one of the investigators interviewed Mr K.T., who from 13 to 14 December 2013 had been detained in a cell in the same wing as that of the applicant, in the presence of a judge. Mr K.T., who had previously held various high-ranking positions in the Ministry of Internal Affairs and the Ministry of Defence, stated that on 14 December 2013 he had seen the prison governor take the applicant out of his cell through the gap between the door of his cell and its frame. He had discussed that with Mr I.P. (see paragraph 109 above), with whom he had later shared a cell, but only after the delivery of the Chamber judgment on 14 June 2016 (see paragraph 3 above). When asked why he had not spoken about all this earlier, Mr K.T. replied that when observing the reactions to the applicant’s allegations, he had realised that his speaking about the issue might have repercussions for him, especially as he was detained in the same prison in which some of the alleged perpetrators were employed.
113. The next day, 12 August 2016, the investigators went to Prison no. 9 and examined Mr K.T.’s cell. According to their report, it was impossible to observe the corridor from inside the cell with the door closed. The door was fully intact and there was no gap between the door and the frame. The examination was video recorded by one of the investigators.
114. Four days later, on 16 August 2016, the prosecutor supervising the investigation decided to carry out an experiment in the cell with Mr K.T.’s participation, with a view to checking whether Mr K.T. could really observe the corridor from inside the cell. Mr K.T refused to take part in the experiment, saying that he first wished to consult with his lawyer. One of the investigators called the lawyer but he refused to see Mr K.T. The next day, 17 August 2016, Mr K.T. again refused to participate in the experiment in the absence of his lawyer. On 18 August 2016 the report of the cell’s examination was sent to the National Forensic Bureau together with the video recording. The experts were asked, among other things, to examine whether there was a gap between the cell door when closed and the frame, and if so, to specify its size and exact location. In their report, filed on 24 August 2016, the experts stated that there was no such gap because the door protruded thirty millimetres from its frame. They went on to say that, in view of the door’s width and locking system, it was impossible to deform it without special instruments.
115. In the meantime, on 12 and 17 August 2016 the investigators interviewed three inmates who had shared Mr K.T.’s cell at the relevant time. All three stated that they had only learned about the applicant’s allegations from the media, and that Mr K.T. had not spoken to them about that. The investigators also obtained confirmation from the Ministry of Prisons that no work had been done in Mr K.T.’s cell between 14 December 2013 and the time when they examined it.
116. On 4, 5, 10 and 11 August and 2 and 3 September 2016 the investigators also interviewed nine prison officers working in Prison no. 9. All but one of those officers had been on duty during the early hours of 14 December 2013. All of them stated that they had learned about the applicant’s allegations from the media. None of them had seen the prison governor or deputy governor that night in the wing containing the applicant’s cell.
117. On 13 August 2016 one of the investigators interviewed Ms L.M. (see paragraph 95 above). She stated that relations between her and her former boss, Mr D.D., had become strained after the bonuses paid in December 2013 (see paragraph 93 above). She went on to say that she had only learned about the applicant’s allegations from the media, and that her statements in May 2014 had been twisted and taken out of context by the journalists who had interviewed her. She knew nothing about the incident.
118. On 1 September 2016 one of the investigators interviewed the by then former head of the Penitentiary Department, Mr D.D. He denied the applicant’s allegations, and stated that on 13 December 2013 he had been in Batumi, coming back to Tbilisi late in the evening and remaining in his office late into the night. According to him, the applicant had voiced his allegations three days after the incident because he was aware that the surveillance-camera footage was only kept for twenty-four hours. He also stated that his service car at the relevant time had been a Toyota Land Cruiser 200. He was not asked about the December 2013 bonuses (see paragraph 93 above).
119. On 2 September 2016 the same investigator interviewed the by then former Chief Public Prosecutor, Mr O.P. He described the applicant’s allegations as false and politically motivated. He had never met the applicant in person or been in the Penitentiary Department building. During the early hours of 14 December 2013 he had been in his office. At the relevant time, there had been no need to question the applicant and, had such a need arisen, he could have been questioned via the official channels rather than in the way alleged by him. Mr O.P. also stated that his service car at the relevant time had been a Lexus LX 570.
120. On 24 October 2016 the investigators interviewed two of the three inspectors from the Ministry of Prisons’ General Inspectorate who had reviewed the surveillance footage in December 2013 and January 2014 (see paragraphs 79 and 84 above). They said, among other things, that they had been unable to make out any vehicle registration numbers and that they had not seen a vehicle matching the description given by the applicant.
121. On 8 November 2016 the applicant’s lawyer asked the Ministry of Prisons and the Chief Public Prosecutor’s Office for a copy of the footage obtained in the internal inquiry. He received no reply to those requests.
122. Between 21 and 23 January 2017 the investigators asked four experts from the National Forensic Bureau to check whether the footage had been tampered with. In their report, the experts stated that they had not detected any traces of editing. They confirmed that statement when interviewed on 10 and 11 February 2017.
123. The investigators also obtained expert reports and statements by the prison officers confirming that the prison logs for 13 and 14 December 2013 had not been tampered with.
124. The investigators obtained, in addition, data from the prosecuting authorities’ document-management system according to which between approximately 1 a.m. and 1.25 a.m. on 14 December 2013 the Chief Public Prosecutor, Mr O.P., had been logged in the system and working on official correspondence. At the hearing before the Grand Chamber, the applicant’s representatives challenged the authenticity of that data. They also stated that even if it were to be taken at face value, it only showed that Mr O.P. had been in his office until 1.25 a.m. on 14 December 2013, whereas the alleged meeting with the applicant had taken place about twenty or thirty minutes later. Since the Chief Public Prosecutor’s Office building was just a few hundred metres away from the Penitentiary Department building, that data did not therefore negate the applicant’s allegations.
125. On 11 February 2017 a prosecutor from the Chief Public Prosecutor’s Office closed the investigation. In his decision he set out in detail the witness and other evidence obtained during the investigation, and concluded that on 14 December 2013 the applicant had not been taken out of his cell.
F. Criminal cases against other members of UNM’s leadership
126. Since the parliamentary elections in October 2012, a number of former high public officials from UNM, including the President of Georgia until October 2013, Mr Saakashvili, and several government ministers, have been prosecuted, some in separate sets of proceedings, in relation to offences allegedly committed by them while in office.
1. Statements by Georgian Dream government ministers in connection with those cases
127. At a press conference on 22 November 2012 Georgian Dream’s then leader and Prime Minister of Georgia since 25 October 2012, Mr Ivanishvili, in response to a question whether the recent arrests of several former senior officials would lead to criminal proceedings against others, including the President, Mr Saakashvili, stated that it was not his wish to have an indefinite number of arrests, including that of Mr Saakashvili. He added that he was not interfering with the work of the prosecuting authorities and it was up to them to decide who should face prosecution. He went on to say that UNM’s “conduct increase[d] the queues at the prosecutors’ offices”.
128. According to an affidavit by Mr G.B., a former member of UNM’s leadership, submitted by the applicant, shortly after the 2012 parliamentary elections, on 12 October 2012, he had met in private with Mr Ivanishvili to discuss the transition of power. Mr Ivanishvili had allegedly told him, inter alia, that key members of the UNM leadership would face criminal prosecution unless they refrained from challenging the new government: “The more problems you create, the more people from your team will go to jail”.
2. Statements by foreign governments, international organisations and non-governmental organisations in relation to those cases
129. In November 2012 those criminal prosecutions drew expressions of concern from NATO’s Secretary General, the European Commission’s President, the European Union’s High Commissioner for Foreign and Security Policy and the United States’ Secretary of State. In December 2012 a group of United States senators wrote an open letter to Georgia’s Prime Minister to express their concern that the proceedings could be politically motivated. In February 2013 a group of United States congressmen did the same in a letter to the United States Secretary of State. So did twenty-three members of the European Parliament, in a March 2013 address to Georgia’s Prime Minister, as well as the foreign ministers of Poland and Sweden.
130. In May 2013 the Special Representative on South Caucasus of the Parliamentary Assembly of the Organization of Security and Cooperation in Europe (“OSCE”) expressed concern over the applicant’s and Mr Z.T.’s arrests. So did several United States senators, leaders of the European People’s Party and the President of Estonia.
131. In his report, “Georgia in Transition”, published in September 2013, the European Union Special Adviser on Constitutional and Legal Reform and Human Rights in Georgia, Mr Thomas Hammarberg, former Council of Europe Commissioner for Human Rights, said, at pp. 8-9 (footnotes omitted):
“The Prosecutor’s Office has initiated investigations against a number of office-holders in the previous administration. Prosecutors have questioned 6 156 persons, most of them UNM party activists, as witnesses in the framework of investigations into different suspected crimes, including misuse of the State funds and money laundering. The opposition party considers this questioning to be a politically motivated attack on the opposition. Currently, 35 former central officials are charged of whom 14 are in pre-trial detention, 14 have been released on bail, one is released without restrictive measure, one has been pardoned by the President after conviction and five have left the country. Other former civil servants have also been charged or were convicted.
One of those charged and held in pre-trial detention is [the applicant] who is not only a former Prime Minister and former Minister of Internal Affairs but was also Secretary General of UNM at the time of arrest. The UNM has consistently and vehemently been challenging the necessity of applying this measure of restraint. The case has raised deep concerns in relation to the forthcoming presidential election – as one of the key organisers of the opposition became prevented from contributing to the campaign.
There are signs that the courts are more independent than earlier in relation to requests from the prosecutors. For instance, there was an acquittal in a case against another former Minister, and the request for pre-trial detention was refused in another case against a leading UNM politician.”
132. In a report on his visit to Georgia in January 2014 (CommDH(2014)9) the Council of Europe’s Commissioner for Human Rights noted, in paragraphs 33-36, the allegations of selective justice in relation to those criminal cases and stated, in paragraph 41:
“The persistence of allegations and other information indicative of deficiencies marring the criminal investigation and judicial processes in cases involving political opponents are a cause for concern, as this can cast doubt on the outcome of the cases concerned even when there have been solid grounds for the charges retained and the final convictions. The Georgian authorities must address these issues at the systemic level, in the interests of respecting fair trial guarantees for everyone and in enhancing public trust in the institutions responsible for upholding the law.”
133. In Resolution 2015 (2014), adopted on 1 October 2014, the Council of Europe’s Parliamentary Assembly stated:
“2. The otherwise smooth handover of power was accompanied by a polarised and antagonistic political climate, especially during the period of cohabitation between the then President Mi[k]heil Saakashvili and the Georgian Dream coalition government. The Assembly regrets that these tensions sometimes overshadowed the many positive changes that were taking place in the democratic environment of Georgia. The United National Movement (UNM) has reported that several thousand of its activists and supporters were regularly interrogated and intimidated by various investigative agencies (some up to 30 times). A number of major opposition figures, including members of parliament, were violently attacked. It should be noted that two years on, almost the entire leadership of the former ruling party has been arrested or is under prosecution or investigation: former Prime Minister and UNM Secretary General, [the applicant], former Defence Minister, [B.A.], and former Tbilisi mayor and UNM campaign manager, [G.U.], are in prison (pre-trial detention). The judicial authorities have brought charges against the former President, Mikheil Saakashvili – and ordered pre-trial detention in absentia – and have done the same for former Defence Minister, [D.K.], and former Minister of Justice, [Z.A.]. ...
5. The Assembly recalls its concerns about the administration of justice and the independence of the judiciary in Georgia. In that respect, it welcomes the adoption of a comprehensive reform package that aims to ensure genuine independence of the judiciary and a truly adversarial justice system. The Assembly welcomes the first signs that the judiciary is now working more independently. However, it also notes that the proceedings in sensitive legal cases, including against former members of government (some of whom are leading members of the opposition), have revealed continuing vulnerabilities and deficiencies in the justice system that need to be addressed. ... Further reforms of the judiciary, including of the prosecution services, are therefore necessary. In this respect, the Assembly:
5.4. while welcoming the recent decrease in its use, expresses its concern about the continued widespread use of pre-trial detention in Georgia. ...
9. The Assembly takes note of the numerous changes in local governments in Georgia as a result of local councillors and city officials resigning or switching sides following the change of power at national level. ... The Assembly is ... seriously concerned by credible reports that a number of these changes were the result of undue pressure on local United National Movement (UNM) activists by supporters of the ruling coalition. The Assembly is also concerned by reports of violent disturbances of the campaign activities of the UNM, allegedly by Georgian Dream supporters, as well as reports that a considerable number of opposition candidates in the local elections, mainly from the UNM, withdrew their candidatures, allegedly under pressure from the authorities. ...”
134. The report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (PACE doc. 13588, 5 September 2014) which led to that resolution said, among other things (footnotes omitted):
“60. Many interlocutors have reported that there seems to be less political interference in the work of the courts and that the judiciary has become increasingly more independent, including in relation to the prosecution, which has been a point of concern in previous reports. This seems to be confirmed by the court proceedings against former government members, where requests of the prosecution have regularly been denied. There has been a decrease in the granting of pre-trial detention by the courts, combined with a decline of requests by the prosecution service. According to the authorities, in the first half of 2013, the prosecution service made 9% fewer requests for pre-trial detention than in the same period the previous year, and only 46% of the requests for measures of constraint, such as pre-trial detention or bail, were granted by the courts. However, despite this positive trend, the use of pre-trial detention is still too widespread in Georgia. ...
90. Following the 2012 parliamentary elections, more than 20 000 complaints were lodged with the prosecutor general by citizens claiming to have been victims of abuses committed by, or under, the previous authorities. More than 4 000 claims concern allegations of torture and ill-treatment in prisons, while more than 1 200 concern violations of property rights and approximately 1 000 complaints were filed against in total 322 prosecutors by persons claiming that they were forced to accept plea-bargain agreements.
91. The authorities announced that the ‘restoration of justice’ would be one of their key priorities and underscored that there would be no impunity for former officials for past abuses. In the following months a number of leading members of the former governing party and ministerial officials were arrested for alleged crimes committed under their responsibility during their tenure in office. The United National Movement has decried these arrests as political prosecutions and as revanchist justice. For its part, the authorities have stressed that no selective or political motivated justice is taking place, or will take place, in Georgia, but that these people are accused of serious ordinary crimes, for which the authorities have sufficient proof to warrant an investigation or initiate prosecution.
92. In support of their position, the authorities point to the fact that both the Minister of Defence and the Minister of Justice left the country in a hurry the day after the elections, as did a number of high-level officials from the Ministry of the Interior. While the former Minister of Defence voluntarily returned to Georgia, the others are still on the run and are the subject of an Interpol Red Notice.
93. There has been some confusion regarding the number of former officials concerned by these investigations. Until now, 35 officials of the former authorities have been charged with criminal offences. Of these, 14 are in pre-trial detention, 13 have been released on bail, one was released without restrictive measures, five have fled the country and three have been convicted, one of whom was pardoned by President Saakashvili. In addition, charges have been brought against a considerable number of former civil servants.
94. The allegations of selective and politically motivated justice and revanchist policies by the new authorities are of concern. In addition, they considerably raise emotions and tensions in an already politically tense climate, which is not beneficial for the political environment and democratic development of the country.
95. The most publicised cases against former UNM government officials are those against former Minister of Defence [B.A.], former Prime Minister and Interior Minister – and current UNM Secretary General – [the applicant], and former Tbilisi Mayor [G.U.], who were all influential members of former President Saakashvili’s inner circle.
102. We wish to emphasise that there cannot be any impunity for ordinary crimes including, or even especially, for government members and politicians, whether current or past. However, especially in the current political context, it is important that in the criminal cases against former government officials, any perception of politically motivated or revanchist justice is avoided. The authorities should therefore ensure that the legal processes are conducted transparently and in a way which fully respects Georgia’s obligations under Articles 5 and 6 of the European Convention on Human Rights. Not only should selective or politically motivated justice not take place, it should also be seen as not taking place.”
135. In Resolution 2077 (2015), adopted on 1 October 2015, the Council of Europe’s Parliamentary Assembly stated:
“7. The following abusive grounds for pretrial detention have been observed in a number of States Parties to the European Convention on Human Rights, namely:
7.1. to put pressure on detainees in order to coerce them into confessing to a crime or otherwise co-operating with the prosecution, including by testifying against a third person (for example ... certain cases of opposition leaders in Georgia, such as [the applicant]);
7.2. to discredit or otherwise neutralise political competitors (for example, certain cases of United National Movement (UNM) leaders in Georgia);
11. The root causes of the abusive use of pretrial detention include:
11.4. the possibility of ‘forum shopping’ by the prosecution, which may be tempted to develop different strategies to ensure that requests for pretrial detention in certain cases are decided by a judge who, for various reasons, is expected to be ‘accommodating’ (for example in Georgia, the Russian Federation and Turkey);
11.5. the possibility for the prosecution to circumvent statutory time limits imposed on pretrial detention by modifying or staggering indictments (for example, in the cases of [G.U] and [B.A.], before the judgment of the Constitutional Court of Georgia in September 2015).”
136. As a result of the concerns about the criminal prosecutions against former government officials from UNM, in February 2013 the OSCE’s Office for Democratic Institutions and Human Rights assigned monitors to fourteen of those cases, including the case against the applicant at issue in these proceedings. In its report, published in December 2014, the Office noted a number of shortcomings with respect to those fourteen cases, including the cases against the applicant. The specific points in the report highlighted by the applicant related to the criticisms, in paragraphs 222-29, of the Georgian courts’ failure to give appropriate reasons regarding the credibility of the witness and other evidence against him, of the cogency of those courts’ findings in relation to each of the elements of the offences of which he was convicted, for example the exact manner in which he had exceeded his powers, and of the quality of their reasoning in relation to the factors determining his sentence.
137. By way of general findings, the report also noted, in paragraph 6 of its executive summary, that Georgian law was generally in line with international standards and guaranteed the right to an independent tribunal. There were, however, some aspects which raised concerns in that respect, such as the practices of transferring judges between courts, allocating cases without a fully transparent procedure, and changing judges in the course of ongoing proceedings with no explanation. Another issue was comments by public officials about ongoing criminal proceedings made in a manner implying that they had some control over the prosecuting authorities (see paragraph 7 of the executive summary). Public officials had also expressed their views on the guilt of some defendants before they had been convicted, which raised an issue with regard to the presumption of innocence (see paragraph 9 of the executive summary). The report also expressed concern about the courts’ failure in some cases to give reasons for their decisions to order pre-trial detention or to reject requests for release, and about the lack of provision in the Code of Criminal Procedure for periodic review of pre-trial detention. That had contributed to a practice of automatic prolongation of pre-trial detention up to the maximum statutory time-limit of nine months (see paragraph 11 of the executive summary).
3. Refusals to extradite former UNM officials to Georgia
138. In a decision of 27 February 2014 (no. 58/EXT/2014), the Court of Appeal of Aix-en-Provence refused to extradite to Georgia Mr D.K., Minister of Defence from 2006 to 2008. It held, among other things, that the prosecution against him was politically motivated. It based that finding on the fact that even though the Georgian court had issued warrants for the arrest of both Mr D.K. and his brother-in-law, who were being sought on identical charges, and even though the two had been found together when Mr D.K. had been arrested by the French authorities, the Georgian authorities had at first only sought the extradition of Mr D.K., specifically mentioning his political responsibilities in the Interpol Red Notice. The only difference between the two was that Mr D.K.’s brother-in-law was not involved in politics.
139. In a judgment of 9 April 2015 (no. 447/2015), the Greek Court of Cassation refused to extradite to Georgia Mr D.A., former head of the Ministry of Internal Affairs’ Department for Constitutional Security. It held that there were compelling reasons to believe that there was a risk that, if extradited, his position would worsen owing to his political beliefs and his having held high office in a previous government which was in opposition to the current one.
140. In a decision of 21 March 2016 (unreported), the Westminster Magistrates’ Court also refused to extradite Mr D.K. to Georgia (see paragraph 138 above). Having reviewed at length reports and other evidence about the political and legal situation there since 2012 and the criminal proceedings against Mr D.K., the chief magistrate concluded:
“On the facts as found above ... I am not sure that the request for Mr [D.K.]’s extradition is for the purpose of prosecuting or punishing him on account of his political opinions. I am aware that the requests may have been made for entirely proper purposes. The evidence may be there to sustain one or more convictions. However this is not the test. On balance I consider it more likely than not that the desire to prosecute former UNM politicians is a purpose behind these requests. It may not be the only purpose, but without that factor I do not believe, on balance, that these requests would have been made and pursued in the way they have been.
As for the future, I have considerable respect for the judiciary of Georgia. I believe it is likely that the judiciary will successfully resist pressure on them from the administration, through the public prosecutors. However, looking at what has happened to others, I am satisfied that there is a reasonable chance, a serious possibility, that this defendant’s liberty will be restricted (and in particular that he may be detained in pre-trial detention) because of a flawed prosecution process motivated by a desire to obtain a conviction of a UNM politician, or by a desire to obtain evidence from Mr [D.K.] that can be used against senior former colleagues. ...”
141. The court described the evidence which had led it to conclude that there was a possibility that Mr D.K. could be placed in pre-trial detention in order to be pressured to give evidence against former colleagues of his in UNM in these terms:
“I have heard evidence, about which I cannot be sure but think it is likely correct, that pressure has been applied by the prosecutor’s office to witnesses to leave UNM and/or give false testimony. ... Mr [G.U.] gave evidence that he was told by former [P]rime [M]inister Garibashvili, who was also relaying the views of former Prime Minister Ivanishvili, that if he helped to locate [Mr] Saakashvili’s bank accounts ‘it would help relieve the situation of [Mr D.K.] as well and that all the charges against him w[ould] be dropped.’ The same witness suggested that if returned, illegal methods would be used to force him ([Mr D.K.]) to give evidence against [Mr] Saakashvili.”
4. Interpol’s deletion of information about Mr Saakashvili and Mr D.K.
142. In July 2015 Interpol decided to delete from its files all information relating to Mr Saakashvili and Mr D.K. It did so on the basis of two recommendations by the Commission for the Control of Interpol’s Files, according to which the political elements surrounding their cases prevailed over the common-law criminal elements. In arriving at that conclusion, the Commission said that in cases of doubt, it had to decide in the interest of the party seeking deletion.
143. Since 2010 criminal proceedings in Georgia have been conducted under a new Code of Criminal Procedure, which superseded the previous Code which had been in force since 1998.
144. Pursuant to Article 171 § 1 of the Code, 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 only relevant one in this case is sub-paragraph (e), according to which 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 characteristics.
145. Pursuant to Article 176 § 1 of the Code, an arrest record must be drawn up immediately after the arrest. If there are valid reasons why that cannot be done, it has to be drawn up as soon as the arrestee is brought to a police station or before a law-enforcement authority.
B. Provisions governing pre-trial detention
1. Grounds for ordering pre-trial detention
146. Under Article 198 § 2 of the Code, a measure of restraint – which, in accordance with Article 199 § 1, can be bail, an undertaking not to leave one’s place of residence and to observe good behaviour, a surety, or pre-trial detention – may be applied if it can reasonably be assumed that without it the accused will flee, destroy evidence or reoffend. Article 198 § 1 provides that an accused may only be placed in pre-trial detention or subjected to an alternative measure of restraint if a less severe measure cannot ensure that he or she will appear for trial or cease his or her alleged criminal activities.
147. Pursuant to Article 205 § 1 of the Code, pre-trial detention can only be imposed where it is the only means of preventing the accused from fleeing or interfering with the course of justice, obstructing the gathering of evidence or reoffending.
148. Article 205 § 2 of the Code provides – as does Article 18 § 6 of the Constitution – that the duration of pre-trial detention must not exceed nine months. Article 205 § 2 goes on to specify that the period of pre-trial detention normally begins to run from the time of arrest and lasts until judgment of the first-instance court on the merits of the criminal case. It also provides that if the period comes to an end before the first-instance judgment is given, the accused must be released.
149. Article 205 § 3 of the Code provides that if the time between the accused’s arrest and the pre-trial conference hearing exceeds sixty days, the accused must be released, unless the court has adjourned the pre-trial conference at the request of one of the parties, as is possible under Article 208 § 3 of the Code.
150. In a 2015 case brought by another of UNM’s leaders, Mr G.U., former mayor of Tbilisi (no. 3/2/646, 15 September 2015), the Constitutional Court held that to the extent that Article 205 § 2 of the Code could be read as allowing someone to be kept in pre-trial detention for more than nine months if the prosecuting authorities brought further charges against him or her in a separate case with undue delay, it ran counter to Article 18 § 6 of the Constitution, according to which pre-trial detention could not last longer than nine months (see paragraph 148 above).
151. Under Article 206 §§ 1 and 8 of the Code, the accused may at any stage of the proceedings, including at the pre-trial conference hearing, request that the measure of restraint to which he or she has been subjected be varied or set aside. Within twenty-four hours, the court must review the request on the papers, checking whether it raises new essential issues. If it finds that to be the case, it must then examine the request at an oral hearing. Article 206 § 9 provides that in such proceedings the burden of proof lies on the prosecution. Pursuant to 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 measure of restraint.
152. Article 219 § 4 (b) of the Code provides that during the pre-trial conference hearing the court must review the need to keep the accused in pre-trial detention regardless of whether he or she has sought release, and must then review every two months the need to keep the accused in custody.
C. Power of the prosecuting authorities to drop charges
153. Under Article 250 § 1 of the Code, the prosecutor dealing with a case may, with the consent of the higher prosecutor, fully or partly drop the charges, or replace them with lesser ones. If the charges are fully or partly dropped, the court must fully or partly discontinue the proceedings. Under Article 250 § 2, the prosecution may do so at any point in the proceedings. Article 250 § 3 specifies that charges which have been dropped may not be re-introduced against the same accused.
III. RELEVANT INTERNATIONAL MATERIALS
154. The Convention’s early drafts did not contain a provision corresponding to Article 18. Such a provision appeared for the first time in the draft produced by the Conference of Senior Officials in June 1950 (see Collected edition of the “Travaux Préparatoires” of the European Convention on Human Rights, Martinus Nijhoff, vol. IV, 1977, pp. 190, 226 and 280). In its report to the Committee of Ministers, that Conference described that early version – Article 13 § 2 of its draft – as an application of the theory of “ détournement de pouvoir ”, expressed in English as “misapplication of power” (ibid., pp. 258-59). On 16 August 1950, during the first part of the Consultative Assembly’s second session, when speaking about the ways in which States could restrict the rights enshrined in the Convention, the French delegate, Mr P.-H. Teitgen, referred to the restrictions’ “ légalité interne ”, and drew a parallel with abuses of power by the administration in France, noting that they could be annulled by the Conseil d’État (see Collected edition of the “Travaux Préparatoires” of the European Convention on Human Rights, Martinus Nijhoff, vol. V, 1979, p. 293).
155. Misuse of power is a well-established concept in European Union law. It has, since 1952, been one of the grounds for annulling acts of institutions of the Union, formerly the Communities (see Article 33 § 1 of the 1951 Treaty establishing the European Coal and Steel Community (Treaty of Paris, 261 UNTS 140), as originally worded, and later reworded by Article H § 13 of the 1992 Treaty on European Union (Maastricht Treaty, 1757 UNTS 3) and then by Article 4 § 15 (a) of the 2001 Treaty of Nice amending the Treaty on European Union, the treaties establishing the European Communities and certain related acts (2701 UNTS 3); Article 146 § 1 of the 1957 Treaty Establishing the European Atomic Energy Community (298 UNTS 167), as originally worded, and later reworded as Article 146 § 2 by Article I § 13, Title IV, of the Treaty on European Union, and then again reworded by Article 3 § 15 of the Treaty of Nice; Article 173 § 1 of the 1957 Treaty Establishing the European Economic Community (Treaty of Rome, 298 UNTS 11), as originally worded, and then reworded as Article 173 § 2 by Article G § 53 of the 1992 Treaty on European Union, later again reworded and renumbered Article 230 § 2 by Article 2 § 34 of the Treaty of Nice; Article K.7 § 6 (later renumbered Article 35) of the Treaty on European Union, as reworded by Article 1 § 11 of the 1997 Treaty of Amsterdam amending the Treaty on European Union, the Treaties establishing the European Communities and certain related acts (2700 UNTS 161); and, currently, Article 263 § 2 of the Consolidated Version of the Treaty on the Functioning of the European Union (OJ 2016/C 202/01, p. 47)).
156. According to the settled case-law of the Court of Justice of the European Union, an act is vitiated by misuse of power if it appears, on the basis of objective, relevant and consistent evidence, to have been undertaken solely or mainly for an end other than that for which the power in question was conferred (see, among many other authorities, judgment of the Court of Justice of the European Communities of 13 November 1990 in FEDESA and Others, C-331/88, EU:C:1990:391, paragraph 24; judgment of the Court of Justice of the European Union of 16 April 2013 in Spain and Italy v Council, C-274/11 and C-295/11, EU:C:2013:240, paragraph 33; and judgment of the Court of Justice of the European Union of 4 December 2013 in Commission v Council, C-111/10, EU:C:2013:785, paragraph 80).
C. Case-law of the Inter-American Court of Human Rights
157. Article 30 in fine of the American Convention on Human Rights (1144 UNTS 123) provides that the restrictions which “may be placed on the enjoyment or exercise of the rights or freedoms recognized [in that Convention] may not be applied except ... in accordance with the purpose for which such restrictions have been established”.
158. The Inter-American Court of Human Rights has held that this means that “the ends for which the restriction has been established [must] be legitimate, that is, that they pursue ‘reasons of general interest’ and do not stray from the ‘purpose for which (they) have been established’”, and that this requirement is a “teleological criterion ... establish[ing] control through the deviation of power” (see Advisory opinion OC-6/86 of the Inter-American Court of Human Rights on The Word “Laws” in Article 30 of the American Convention on Human Rights, 9 May 1986, Series A No. 6, § 18 (b)).
159. The Inter-American Court has also held that when checking the real purpose of measures alleged to amount to a misuse of power, it can rely on circumstantial evidence, indicia and presumptions, and has in practice done so (see Judgment of the Inter-American Court of Human Rights in Ivcher Bronstein v. Peru, Merits, Reparations and Costs, 6 February 2001, Series C No. 74, §§ 154-64; Judgment of the Inter-American Court of Human Rights in Supreme Court of Justice (Quintana Coello et al.) v. Ecuador, Preliminary Objection, Merits, Reparations and Costs, 23 August 2013, Series C No. 266, §§ 173-77; and Judgment of the Inter-American Court of Human Rights in Constitutional Tribunal (Camba Campos et al.) v. Ecuador, Preliminary Objections, Merits, Reparations and Costs, 28 August 2013, Series C No. 268, §§ 210-19).
160. In a recent case, in which the Venezuelan authorities had refused to renew the broadcasting licence of the country’s oldest and most popular television station, a vocal critic of the government, the Inter-American Court first noted that in their decisions the authorities had set out an aim – to ensure more variety in the content available to viewers – which was legitimate. However, the court went on to examine whether that had been the real aim of the decisions. It took as its starting point the presumption that the authorities had acted in good faith. But it noted four strongly worded public statements by the then president, Mr Hugo Chávez, made shortly before the decisions, that the licence would not be renewed because the television station was hostile to the government. Analysing those statements jointly, the court concluded that the refusal to renew the licence had in reality been meant to silence criticism of the government. Though not referring to Article 30 of the American Convention, it held that this had been a misuse of power (see Judgment of the Inter-American Court of Human Rights in Granier et al. (Radio Caracas Television) v. Venezuela, Preliminary Objections, Merits, Reparations and Costs, 22 June 2015, Series C No. 293, §§ 184-99).
D. Disguised prosecution for political opinions in extradition law
161. The rule in extradition law that extradition must be refused if the requesting State is seeking someone’s extradition for a seemingly ordinary criminal offence in order to prosecute or punish him or her on account of a political opinion is well settled.
162. It features in all modern multilateral conventions and instruments relating to extradition (Article 3 § 2 of the 1957 European Convention on Extradition (ETS No. 24; 359 UNTS 273); Article 5 of the 1977 European Convention on the Suppression of Terrorism (ETS No. 90; 1137 UNTS 93); Article 6 § 6 of the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances (1582 UNTS 95); Article 15 of the 1999 International Convention for the Suppression of the Financing of Terrorism (2178 UNTS 197); Article 16 § 14 of the 2000 United Nations Convention against Transnational Organized Crime (2225 UNTS 209); Article 44 § 15 of the 2003 United Nations Convention against Corruption (2349 UNTS 41); Recital 12 of the 2002 Council Framework Decision on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA, OJEC 2002/L 190, pp. 1-18); Article 3 (b) of the 1990 United Nations Model Treaty on Extradition (UN Doc. A/RES/45/116); and clause 13(a)(i) of the 1966 London Scheme for Extradition within the Commonwealth, as amended in 2002).
163. The rule has also been included in many bilateral extradition treaties (see, for example, Article 7 § 4 of the 1972 Treaty on Extradition between Denmark and the United States of America (952 UNTS 29); Article 4 § 2 of the 1978 Treaty Concerning Extradition between Germany and the United States of America (1220 UNTS 269); Article 3 § 1 (a) of the 1979 Treaty on Extradition and Mutual Assistance in Criminal Matters between Turkey and the United States of America (1273 UNTS 83); Article 4 (a) of the 1985 Treaty of Extradition between Australia and Italy (1598 UNTS 31); Article 3 § 1 (b) of the 1987 Treaty Concerning Extradition between Australia and Germany (1586 UNTS 185); Article 3 § 1 (b) of the 1987 Treaty on Extradition between Australia and Luxembourg (1536 UNTS 31); Article 4 § 3 of the 1996 Extradition Treaty between Cyprus and the United States of America (2927 UNTS ...); Article 4 § 4 of the 1996 Extradition Treaty between France and the United States of America (2179 UNTS 341); Article 3 (b) of the 2005 Extradition Treaty between Canada and Italy (2859 UNTS 197); Article 3 (b) of the 2007 Extradition Treaty between France and the People’s Republic of China (... UNTS ...); and Article 3 § 7 of the 2010 Extradition Treaty between Belarus and Bulgaria (2849 UNTS ...)).
164. It also features in many domestic extradition laws. For instance, in France it is set out in Article 696-4 § 2 of the Code of Criminal Procedure; in the United Kingdom it is set out in section 13(a) of the Extradition Act of 2003; and in Greece it is set out in Article 438 (c) of the Code of Criminal Procedure.
165. Under nearly all the international instruments, the standard to which a hidden political purpose must be proved is “substantial grounds for believing”.
166. Misuse of power, or détournement de pouvoir as it is called in France, where the notion originated, is a well-known concept in administrative law. Despite variations in the formulation, it now exists in many domestic legal systems. It is one of the ways in which decisions by the administrative authorities can be tainted or, put differently, one of the grounds on which they can be set aside.
167. There is misuse of power when an authority uses its power for a purpose other than the one for which it was conferred. It is based on the idea that the authorities are not free to choose the aims which they can pursue, and must only use their powers to further the goals for which the law has bestowed those powers on them. This means two things: first, that the authorities must act in the public interest, and secondly, that each of their powers must only be used for the specific purpose or purposes for which it was conferred.
168. According to information available to the Court, the courts of several High Contracting States accept as proof of misuse of power the terms of the impugned decision, documents in the file relating to the adoption of that decision, documents created in the course of the judicial ‑ review proceedings, presumptions of fact, and, more generally, contextual evidence. When faced with a situation in which an authority has pursued both an authorised and an ulterior purpose, they assess which of those purposes was predominant. If they find that the authorised purpose was predominant, they regard the authority’s decision as valid. If, conversely, they find that the ulterior purpose was predominant, they quash the decision as invalid.
169. The Court considers it important to clarify from the outset the scope of the case.
170. The applicant’s complaints concerned only his deprivation of liberty between his arrest on 21 May 2013 and his conviction by the Kutaisi City Court on 17 February 2014 on the criminal charges against him relating to the State Programme for Job Seekers and the house in the village of Kvariati. The Court is therefore not directly concerned with whether the applicant’s detention following his conviction was compatible with the Convention, or with the other criminal cases against the applicant (see paragraphs 56-59 above).
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
171. The applicant complained that his arrest and pre-trial detention had been unlawful and unjustified. He relied on Article 5 § 1 of the Convention, which provides, in so far as relevant:
“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[.]”
172. The Chamber did not deal with the lawfulness of the applicant’s arrest.
173. With regard to the pre-trial detention, the Chamber held that the applicant’s case could not be likened to cases in which the detainees had been held in custody solely on the basis that the prosecution had filed an indictment against them, and thus without a clear legal basis and for a potentially unlimited period of time. Though such a problem had existed in Georgia under the 1998 Code of Criminal Procedure, that was no longer the case under the 2010 Code of Criminal Procedure. The absence of a time ‑ limit in the decisions to place the applicant in pre-trial detention, which was consistent with the Georgian courts’ practice at that time, did not make that detention unlawful within the meaning of Article 5 § 1 of the Convention, since Article 205 § 2 of the 2010 Code made it clear that pre-trial detention could not last longer than nine months, which was a point that the applicant could easily have understood through the advice of his counsel. Moreover, under Article 206 of that Code he could at any point during those nine months have sought release on the basis that the grounds for his pre-trial detention had ceased to obtain. It could not therefore be said that he had been detained for a potentially unlimited time or otherwise placed in a position of legal uncertainty.
B. The parties’ submissions to the Grand Chamber
174. The applicant submitted that his arrest had been unlawful because it had been made without a judicial warrant although none of the exceptions to that requirement applied in his case. The circumstances of his arrest showed that the decision to take him into custody had been taken in advance and for an ulterior purpose, and that the summons to appear for questioning had not been a bona fide attempt to obtain his cooperation in relation to the case. Yet, despite the lack of any urgency, the authorities had not applied for a warrant. Moreover, even though the applicant had specifically asked the Kutaisi City Court to review the lawfulness of his arrest, that court had not done so in any detail.
175. The pre-trial detention had not met the requirement of legal certainty because, when deciding to place the applicant in detention, the Kutaisi City Court had not fixed its duration. Although that court had made a passing reference to Article 205 of the Code of Criminal Procedure, the second paragraph of which laid down the maximum duration of pre-trial detention, it had not made it clear for how long it was placing the applicant in custody. Since the nine-month maximum could arguably be counted separately for each charge, and since the applicant had been presented with several charges, the position in his case had been particularly uncertain. The Georgian courts’ practice of not fixing time-limits for pre-trial detention was in breach of the requirement of legal certainty. That was not offset by the possibility of subsequently seeking review of the detention because under Georgian law the bar for doing so was too high: only where “new essential issues” had arisen after the initial placement in detention.
176. Moreover, the detention had been unjustified, as a less restrictive measure could have been used. In opting for detention, the Kutaisi City Court had principally had regard to the seriousness of the charges against the applicant rather than his personal circumstances, and had not explored whether a less stringent measure, such as bail or a personal surety, possibly combined with measures restricting the possibility of leaving Georgia, could have ensured the applicant’s availability for trial. The real purpose of his detention had been to exclude him from political life. The ulterior motives for the detention had become manifest when the applicant had been taken to the Chief Public Prosecutor on 14 December 2013 and asked for information and threatened by him. That incident had shown that the detention had been arbitrary.
177. The Government submitted that the applicant’s arrest had fully complied with Article 171 of the Code of Criminal Procedure, which in turn was fully in line with Article 5 § 1 of the Convention. The arrest had been made without a warrant owing to the risk of flight. The decision to arrest had not been taken in advance, but had been based on the developments which had followed the summons to the applicant to appear for questioning: his wife’s departure from Georgia and his reaction during questioning to the incriminating evidence with which he had been presented. Having reviewed the file, the Kutaisi City Court had been satisfied that no procedural breaches had occurred in the course of his arrest. The risk of the applicant’s fleeing had been further corroborated by the incident on 30 November 2012, and confirmed by the Kutaisi City Court’s decision to place him in pre-trial detention.
178. The arrest had been based on a reasonable suspicion that the applicant had committed the offences with which he had been charged. In the months before the arrest, the prosecuting authorities had obtained ample evidence supporting those charges. The Kutaisi City Court, whose decision had been upheld by the Kutaisi Court of Appeal, had reviewed the prosecution’s assessment of that evidence and had been satisfied of the existence of a reasonable suspicion. The purpose of the applicant’s arrest had only been to bring him before a competent legal authority – which had been done the following day. There was no evidence that the authorities had had anything else in mind.
179. The applicant’s pre-trial detention had also been lawful and justified. The prosecution had supported its request to place him in pre-trial detention with enough evidence and arguments, and the Kutaisi City Court had found that a less stringent measure would not have prevented the risks of flight or obstruction of the proceedings.
1. Whether the Grand Chamber has jurisdiction to examine the complaint relating to the applicant’s arrest
180. The “case” referred to the Grand Chamber under Article 43 of the Convention is the application as it was declared admissible by the Chamber (see K. and T. v. Finland [GC], no. 25702/94, § 141, ECHR 2001-VII). In his application the applicant complained under Article 5 § 1 of the Convention of the alleged unlawfulness of his arrest. Though not specifically dealing with that complaint in its reasoning, the Chamber declared the application admissible as a whole. The complaint relating to the applicant’s arrest was therefore covered by its admissibility decision. This is also borne out by the Chamber’s adverting to the arrest in its description of the facts of the case (see paragraph 18 of its judgment). It follows that the Grand Chamber can examine the complaint that the arrest was in breach of Article 5 § 1 of the Convention (see, mutatis mutandis, K. and T. v. Finland, cited above, § 145; Kamasinski v. Austria, 19 December 1989, § 59, Series A no. 168; and Scott v. Spain, 18 December 1996, § 59, Reports of Judgments and Decisions 1996-VI).
2. General principles under Article 5 § 1 (c) of the Convention
181. Article 5 § 1 of the Convention guarantees the fundamental right to liberty and security, which is of primary importance in a “democratic society” (see De Wilde, Ooms and Versyp v. Belgium, 18 June 1971, § 65, Series A no. 12; Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33; and Assanidze v. Georgia [GC], no. 71503/01, § 169, ECHR 2004-II). More generally, Article 5 is, together with Articles 2, 3 and 4, in the first rank of the fundamental rights that protect the physical security of the individual, and as such its importance is paramount (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 84, ECHR 2016 (extracts)).
182. As is apparent from its wording, which must be read in conjunction with both sub-paragraph (a) and paragraph 3, which forms a whole with it, the first limb of Article 5 § 1 (c) only permits deprivation of liberty in connection with criminal proceedings (see, among other authorities, Ciulla v. Italy, 22 February 1989, § 38, Series A no. 148; Jėčius v. Lithuania, no. 34578/97, § 50, ECHR 2000-IX; and Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, § 72, ECHR 2011 (extracts)).
183. To be compatible with that provision, an arrest or detention must meet three conditions.
184. First, it must be based on a “reasonable suspicion” that the person concerned has committed an offence, which presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence. What is “reasonable” depends on all the circumstances, but the facts which raise a suspicion need not be of the same level as those necessary to justify a conviction, or even the bringing of a charge (see, among other authorities, Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 32, Series A no. 182; Labita v. Italy [GC], no. 26772/95, § 155, ECHR 2000-IV; and O’Hara v. the United Kingdom, no. 37555/97, §§ 34 and 36, ECHR 2001-X).
185. Secondly, the purpose of the arrest or detention must be to bring the person concerned before a “competent legal authority” – a point to be considered independently of whether that purpose has been achieved (see, among other authorities, Brogan and Others v. the United Kingdom, 29 November 1988, §§ 52-53, Series A no. 145-B; Murray v. the United Kingdom, 28 October 1994, §§ 67-68, Series A no. 300-A; and K.-F. v. Germany, 27 November 1997, § 61, Reports 1997-VII).
186. Thirdly, an arrest or detention under sub-paragraph (c) must, like any deprivation of liberty under Article 5 § 1 of the Convention, be “lawful” and “in accordance with a procedure prescribed by law” (see, among other authorities, Guzzardi v. Italy, 6 November 1980, § 102, Series A no. 39; Kemmache v. France (no. 3), 24 November 1994, §§ 37 and 42, Series A no. 296-C; and K.-F. v. Germany, cited above, § 63). Those two expressions, which overlap to an extent, refer essentially to domestic law and lay down the obligation to comply with its substantive and procedural rules (see, among other authorities, Winterwerp, §§ 39 and 45; Kemmache (no. 3), §§ 37 and 42; K.-F. v. Germany, § 63; and Assanidze, § 171, all cited above). That is not, however, sufficient; Article 5 § 1 of the Convention also requires that domestic law itself be compatible with the rule of law. This in particular means that a law which permits deprivation of liberty must be sufficiently accessible, precise and foreseeable in its application (see, among other authorities, Amuur v. France, 25 June 1996, § 50, Reports 1996-III; Jėčius, cited above, § 56; Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000-III; and Kakabadze and Others v. Georgia, no. 1484/07, §§ 62 and 68, 2 October 2012). It also means that an arrest or detention must be compatible with the aim of Article 5 § 1, which is to prevent arbitrary deprivation of liberty (see, among other authorities, Winterwerp, § 39; Jėčius, § 56; Baranowski, § 51; Assanidze, § 171; and Kakabadze and Others, § 63, all cited above). This presupposes, in particular, that a deprivation of liberty genuinely conforms with the purpose of the restriction permitted by the relevant sub-paragraph of Article 5 § 1 (see Winterwerp, cited above, § 39; Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93; and Saadi v. the United Kingdom [GC], no. 13229/03, § 69, ECHR 2008).
3. Application of those principles
187. The applicant did not claim before the Court that his arrest had not been based on a reasonable suspicion of his having committed the offences in relation to which he was taken into custody, and the Government gave a full account of the incriminating material obtained by the authorities before the arrest (see paragraphs 29-31 and 174 above). 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 (compare Gusinskiy v. Russia, no. 70276/01, § 55, ECHR 2004-IV, and contrast Lukanov v. Bulgaria, 20 March 1997, §§ 42-45, Reports 1997-II; Kandzhov v. Bulgaria, no. 68294/01, §§ 57-61, 6 November 2008; Ilgar Mammadov v. Azerbaijan, no. 15172/13, §§ 90-99, 22 May 2014; and Rasul Jafarov v. Azerbaijan, no. 69981/14, §§ 121-32, 17 March 2016). Nor does it appear that the charges themselves were related to the exercise of the applicant’s rights under the Convention.
188. There is, moreover, nothing to suggest that at the time of the applicant’s arrest there was no intention to bring him before a competent legal authority. That happened the next day (see paragraphs 33 and 38 above). That was enough to make his arrest compatible with the “purpose” requirement of Article 5 § 1 (c) of the Convention (compare Gusinskiy, cited above, § 55). The question whether the arrest also pursued another purpose falls to be examined under Article 18 of the Convention.
189. It remains to be established whether the arrest was “lawful” and “in accordance with a procedure prescribed by law”.
190. Under Article 171 § 1 of the Georgian Code of Criminal Procedure, an arrest must as a rule be based on a judicial warrant. Article 171 § 2 sets out the situations in which the arrest may, by way of exception, be made without a warrant. The only one relied on by the authorities in this case was point (e), according to which a warrant can be dispensed with if there is a risk of flight. Article 171 § 3 lays down a further requirement: that the risk cannot be prevented by an alternative measure that is proportionate to the circumstances of the alleged offence and to the characteristics of the accused (see paragraphs 26 and 144 above). The points on which the parties disagreed were whether there was such a risk in the applicant’s case and whether it could have been averted without resorting to his arrest.
191. Although those questions concern the application of Georgian law, the Court is competent to examine them. As already noted, where the Convention refers back to domestic law, as it does in Article 5 § 1 (c), disregard of that law entails a breach of the Convention, which means that the Court can and should review whether that law was complied with (see, among other authorities, Winterwerp, cited above, § 46). Its power in that respect is, however, subject to inherent limits, because even where the Convention refers to domestic law, it is in the first place for the national authorities to interpret and apply that law (see Winterwerp, § 46; Kemmache (no. 3), § 37; and Lukanov, § 41, all cited above).
192. In the record of the applicant’s arrest, the investigator noted that in 2012 he had tried to cross the border with a fake passport, which made it likely that he would attempt to leave Georgia, and that he had been out of the country many times, which showed that he would have no difficulties going abroad (see paragraph 26 above). Accordingly, she answered the first question directly and the second one implicitly. The Court does not find that her findings on those two points, which should not be revisited with the benefit of hindsight, were arbitrary or patently in breach of Article 171 §§ 2 and 3 of the Code of Criminal Procedure. Whilst a fuller explanation of why the risk of the applicant’s fleeing was sufficiently serious and could not be averted otherwise than by arresting him would have been desirable, nothing suggests that the level of detail of the reasons set forth in the record of the applicant’s arrest clearly fell short of the requirements of Georgian law.
193. Moreover, when deciding the next day whether or not to place the applicant in pre-trial detention, the Kutaisi City Court also touched, albeit briefly, on the lawfulness of his arrest (see paragraph 39 above), and its decision was upheld by the Kutaisi Court of Appeal (see paragraph 43 above). The Court cannot depart lightly from the national authorities’ and courts’ findings on the application of domestic law.
194. In view of the foregoing, the Court finds no breach of Article 5 § 1 of the Convention in relation to the applicant’s arrest.
(b) The applicant’s pre-trial detention
195. As already noted, the applicant did not claim before the Court that his arrest and pre-trial detention had not been based on a reasonable suspicion. He rather took issue with the Kutaisi City Court’s failure to fix the duration of his pre-trial detention, and argued that the detention had been unjustified because it had been imposed without due consideration for his personal situation and because it had in reality pursued an ulterior purpose.
196. The Court does not find that either of those points casts doubt on the compatibility of the applicant’s pre-trial detention with Article 5 § 1 (c) of the Convention.
197. The Kutaisi City Court’s failure to fix its duration does not raise an issue under that provision. That was not required under Georgian law (contrast Logvinenko v. Russia, no. 44511/04, §§ 37-38, 17 June 2010; Fedorenko v. Russia, no. 39602/05, §§ 48-50 and 54-55, 20 September 2011; and Roman Petrov v. Russia, no. 37311/08, §§ 43-45, 15 December 2015). Article 18 § 6 of the Georgian Constitution and Article 205 § 2 of the Code of Criminal Procedure limit pre-trial detention to nine months, but that does not mean that the court imposing it must specify its duration in its decision. Article 206 § 6 of the Code, which sets out the elements which the court’s decision on pre-trial detention must contain, says nothing about an obligation to fix the period of the detention (see paragraphs 148 and 151 above).
198. Nor is there a freestanding requirement under Article 5 § 1 of the Convention that decisions ordering pre-trial detention fix its duration.
199. It is true that detention for an unpredictable amount of time owing to a legislative gap is in breach of the requirement of legal certainty (see Baranowski, cited above, § 56; Gigolashvili v. Georgia, no. 18145/05, §§ 31 and 35, 8 July 2008; Yeloyev v. Ukraine, no. 17283/02, § 53, 6 November 2008; Solovey and Zozulya v. Ukraine, nos. 40774/02 and 4048/03, §§ 70 ‑ 72, 27 November 2008; Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 106-10, 27 January 2009; Feldman v. Ukraine, nos. 76556/01 and 38779/04, § 73, 8 April 2010; Kharchenko v. Ukraine, no. 40107/02, § 74, 10 February 2011; Tymoshenko v. Ukraine, no. 49872/11, § 267, 30 April 2013; and Gal v. Ukraine, no. 6759/11, § 36, 16 April 2015). But that was not the case here. Georgian law provided a clear basis for the applicant’s pre-trial detention and itself limited its duration. Admittedly, in three judgments the Court has said that if a national court does not fix the duration of pre-trial detention, that gives rise to uncertainty even if its maximum is clear from domestic law (see Lutsenko v. Ukraine, no. 6492/11, § 73, 3 July 2012; Gal, cited above, § 37; and Kleutin v. Ukraine, no. 5911/05, § 105, 23 June 2016). But those rulings must be understood in context. In all three cases the national courts had also failed to give even minimally cogent reasons for ordering pre-trial detention. They are similar to several cases in which the Court found a breach of Article 5 § 1 of the Convention owing to the combination of a lack of any reasons for ordering pre-trial detention and a failure to fix its duration (see Khudoyorov v. Russia, no. 6847/02, §§ 136-37, ECHR 2005-X (extracts); Vladimir Solovyev v. Russia, no. 2708/02, §§ 95-98, 24 May 2007; Gubkin v. Russia, no. 36941/02, §§ 111-14, 23 April 2009; Arutyunyan v. Russia, no. 48977/09, §§ 92-93, 10 January 2012; and Pletmentsev v. Russia, no. 4157/04, § 43, 27 June 2013, with further references). Those judgments should not therefore be read as laying down a requirement under Article 5 § 1 of the Convention for the national courts to fix the duration of pre-trial detention in their decisions regardless of how the matter is regulated in domestic law. All that this provision requires is rules that are foreseeable in their application.
200. Under Article 205 § 2 of the Georgian Code of Criminal Procedure, the applicant could not be detained for more than nine months in connection with the charges against him (see paragraph 148 above). It cannot therefore be said that there was uncertainty about the rules governing his pre-trial detention or a risk that it would last indefinitely.
201. In the event, he was convicted on 17 February 2014, eight months and twenty-seven days after being arrested (see paragraph 53 above).
202. It is true that in 2015 Georgia’s Constitutional Court held that to the extent that Article 205 § 2 of the Code could be read as allowing someone to be kept in pre-trial detention for more than nine months if the prosecuting authorities brought further charges against him in a separate case with undue delay, it was in breach of Article 18 §§ 1 and 6 of the Constitution (see paragraph 150 above). However, the reasons given by that court show that its ruling was meant to forestall the possibility for the prosecuting authorities to keep bringing fresh charges against someone already in pre ‑ trial detention to justify prolonging that detention beyond the nine-month period.
203. No such issue, however, arose in the applicant’s case. Between his arrest on 21 May 2013 and his conviction on 17 February 2014 he was presented with further charges twice. The first time was on 28 May 2013, six days after he was first placed in pre-trial detention (see paragraph 56 above). Those charges, though leading to a separate decision on 30 May 2013 by the Tbilisi City Court to place him in pre-trial detention (ibid.), did not serve as a basis for keeping him in such detention for longer than nine months, as he was convicted in the criminal case under consideration here less than nine months after his arrest. The second time was on 24 June 2013, one month and five days after he was first placed in pre-trial detention (see paragraph 57 above). Those charges did not, however, become a basis for keeping the applicant in pre-trial detention, as the Tbilisi City Court turned down the prosecution’s request to that effect (ibid.). All those factors, and in particular the relatively short interval between bringing the initial and the subsequent charges, make it hard to see those subsequent charges as an expedient on the part of the prosecuting authorities to circumvent the statutory rule capping the amount of time that the applicant could be kept in pre-trial detention.
204. Thus, to the extent that the bringing of fresh charges in separate proceedings could be said to introduce uncertainty in the application of Article 205 § 2 of the Code, it did not affect the applicant. In proceedings originating in an individual application the Court’s task is not to review domestic law in the abstract but to determine whether the way in which it was applied to the applicant gave rise to a breach of the Convention (see, among other authorities, Golder v. the United Kingdom, 21 February 1975, § 39 in fine, Series A no. 18; Minelli v. Switzerland, 25 March 1983, § 35, Series A no. 62; and Nikolova v. Bulgaria [GC], no. 31195/96, § 60, ECHR 1999-II).
205. Whether the Kutaisi 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 sufficient raises an issue not under Article 5 § 1, but 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; Buzadji, cited above, § 99 in fine; and Vaščenkovs v. Latvia, no. 30795/12, § 42, 15 December 2016). This will be examined in detail below. In view of the case-law cited in paragraph 199 above, 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 the lawfulness of the detention within the meaning of Article 5 § 1 (contrast Lutsenko, §§ 67-72, and Tymoshenko, §§ 269-70, both cited above).
206. Moreover, the reasons given by that court show that the applicant’s pre-trial detention did pursue a purpose consistent with sub-paragraph (c) of Article 5 § 1 of the Convention. That was enough to make it compatible with that provision. As already noted, the question whether it also pursued another purpose falls to be examined under Article 18 of the Convention.
207. In sum, the applicant’s pre-trial detention was in line with Georgian law, which, as applied to him, was sufficiently foreseeable and was not arbitrary.
208. There has therefore been no breach of Article 5 § 1 in relation to the applicant’s pre-trial detention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
209. The applicant complained that the Georgian courts had not given relevant and sufficient reasons for his pre-trial detention, either when they had first imposed it or when they had later reviewed it. He relied on Article 5 § 3 of the Convention, which provides, in so far as relevant:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
210. The Chamber noted that the applicant had spent a total of eight months and twenty-seven days in pre-trial detention. The whole of that period could not automatically be justified on the basis of the reasons set out in the initial decisions to place him in detention. It was therefore necessary to verify not only whether the courts had given relevant and sufficient reasons for placing the applicant in detention, but also whether they had done so when rejecting the applicant’s request for release on 25 September 2013. The initial decisions had endorsed both reasons cited by the prosecution for placing the applicant in custody: the risk that he would flee and the risk that he would obstruct the proceedings. The latter risk had been substantiated by reference to the applicant’s former high position and by his conduct during the incident of 30 November 2012. The former risk had been borne out by the applicant’s possession of a fake passport, his wife’s hasty departure abroad on the day he had been summoned for questioning, and the discovery of large sums of cash in his flat. All of those grounds had been sufficiently specific. It had therefore not been unreasonable to place the applicant in pre-trial detention.
211. By contrast, when the applicant sought release on 25 September 2013, the Kutaisi City Court, instead of checking even more carefully whether his continued detention remained justified, had rejected his request with one sentence, without giving any reasons for its decision, in breach of the relevant provisions of the 2010 Code of Criminal Procedure and of Article 5 § 3 of the Convention.
B. The Government’s preliminary objection
212. The Government submitted that the applicant had failed to appeal against the Kutaisi City Court’s decision of 25 September 2013 to the Investigative Chamber of the Kutaisi Court of Appeal, as would have been possible under Article 207 of the Code of Criminal Procedure. Such an appeal was an adequate and effective remedy. The Government therefore invited the Grand Chamber to declare the complaint inadmissible on that ground, pointing out that under Article 35 § 4 in fine of the Convention the Court could do so at “any stage of the proceedings”.
213. In their oral submissions on behalf of the applicant, his representatives submitted that under the Georgian Code of Criminal Procedure decisions taken by the first-instance court during the pre-trial conference hearing were not amenable to appeal.
2. The Grand Chamber’s assessment
214. Under Article 35 § 4 in fine of the Convention, the Court can dismiss an application that it considers inadmissible “at any stage of the proceedings”. The Grand Chamber can therefore examine, if appropriate, questions relating to the admissibility of an application. If it finds that an application, or part of it, should have been declared inadmissible, it may – even at the merits stage – reconsider the decision in that respect (see, among other authorities, Odièvre v. France [GC], no. 42326/98, § 22, ECHR 2003-III; Azinas v. Cyprus [GC], no. 56679/00, § 32, ECHR 2004-III; and Muršić v. Croatia [GC], no. 7334/13, § 69, ECHR 2016). But that possibility is subject to Rule 55 of the Rules of Court, according to which “[a]ny plea of inadmissibility must, in so far as its character and the circumstances permit, be raised by the respondent Contracting Party in its written or oral observations on the admissibility of the application submitted as provided in Rule 51 or 54 [of the Rules of Court]” (see K. and T. v. Finland, cited above, § 145; N.C. v. Italy [GC], no. 24952/94, § 44, ECHR 2002-X; and Sejdovic v. Italy [GC], no. 56581/00, § 41, ECHR 2006-II). Only exceptional circumstances, in particular that the grounds for the plea occurred or came to light later, could dispense a respondent Government from the obligation to raise it in their observations under Rule 51 or 54 (see N.C. v. Italy, cited above, § 44; Mooren v. Germany [GC], no. 11364/03, § 57, 9 July 2009; and Medvedyev and Others v. France [GC], no. 3394/03, § 69, ECHR 2010).
215. In their observations on the admissibility of the application filed in the course of the Chamber proceedings the Government did not claim that the applicant could have availed himself of the remedy under Article 207 of the Code of Criminal Procedure. They did not argue that there were exceptional circumstances that dispensed them from the obligation to do so, and the Grand Chamber has itself been unable to discern any such circumstances. The Government are thus estopped from raising that objection.
216. It follows that the objection must be dismissed.
217. The applicant submitted that the decision to place him in pre-trial detention had been essentially motivated by the seriousness of the charges against him and had failed to take into account his arguments in favour of his release. He invited the Grand Chamber to disregard the specific points pleaded by the prosecution in support of their contention that he might flee, noting that neither the Kutaisi City Court nor the Kutaisi Court of Appeal had mentioned them in their decisions. He also pointed out that he had been allowed to travel out of Georgia six times after the incident of 30 November 2012, each time returning as scheduled. The risk of his obstructing the proceedings had not been properly established either. Lastly, the courts had failed to duly consider alternative measures, such as bail or a personal guarantee.
218. The applicant went on to argue that the Kutaisi City Court’s failure to give reasons for its decision of 25 September 2013 had been in breach of the Code of Criminal Procedure and had been particularly problematic since at that time he had already been in custody for four months.
219. The Government submitted that in their request that the applicant be placed in pre-trial detention, the prosecution had put forward a number of concrete arguments in support of their submission that there was a risk that he would flee or obstruct the proceedings. The Kutaisi City Court had heard those arguments at a public hearing at which the applicant had been able to comment on them, and had then endorsed them, as had the Kutaisi Court of Appeal.
220. The Government went on to submit that in opposing the applicant’s request for release of 25 September 2013 the prosecution had likewise cited a number of concrete arguments. Those arguments had formed the basis for the Kutaisi City Court’s decision to reject the applicant’s request. That court had made its decision after fully adversarial proceedings and had taken into consideration all arguments put forward by the parties in those proceedings. Its oral ruling had not breached the Code of Criminal Procedure.
(a) Period to be taken into consideration
221. The period to be taken into consideration began on 21 May 2013, when the applicant was arrested, and ended on 17 February 2014, when he was convicted at first instance (see paragraphs 26 and 53, and Buzadji, cited above, § 85, with further references). It therefore lasted eight months and twenty-seven days.
(b) The reasonableness of that period
222. The persistence of a reasonable suspicion that the detainee has committed an offence is a condition sine qua non for the validity of his or her continued detention. But when the national judicial authorities first examine, “promptly” after the arrest, whether to place the arrestee in pre-trial detention, that suspicion no longer suffices, and the authorities must also give other relevant and sufficient grounds to justify the detention. Those other grounds may be a risk of flight, a risk of pressure being brought to bear on witnesses or of evidence being tampered with, a risk of collusion, a risk of reoffending, or a risk of public disorder and the related need to protect the detainee (see Buzadji, cited above, §§ 87-88 and 101-02, with further references). Those risks must be duly substantiated, and the authorities’ reasoning on those points cannot be abstract, general or stereotyped (see, among other authorities, Letellier v. France, 26 June 1991, § 51, Series A no. 207; Clooth v. Belgium, 12 December 1991, § 44, Series A no. 225; Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX (extracts); and Giorgi Nikolaishvili v. Georgia, no. 37048/04, §§ 73 and 76, 13 January 2009).
223. In particular, the risk of flight cannot be gauged solely on the basis of the severity of the possible sentence; it must be assessed with reference to a number of other factors, such as the accused’s character, morals, assets, links with the jurisdiction, and international contacts (see W. v. Switzerland, 26 January 1993, § 33 Series A no. 254-A; Smirnova, cited above, § 60; and Buzadji, cited above, § 90). Moreover, the last sentence of Article 5 § 3 of the Convention shows that when the only remaining reason for detention is the fear that the accused will flee and thus avoid appearing for trial, he or she must be released pending trial if it is possible to obtain guarantees that will ensure that appearance (see Wemhoff v. Germany, 27 June 1968, p. 25, § 15, Series A no. 7; Letellier, cited above, § 46; and, more recently, Luković v. Serbia, no. 43808/07, § 54, 26 March 2013).
224. Similarly, the risk of pressure being brought to bear on witnesses cannot be based only on the likelihood of a severe penalty, but must be linked to specific facts (see, among other authorities, Jarzyński v. Poland, no. 15479/02, § 43, 4 October 2005; Kozłowski v. Poland, no. 31575/03, § 43, 13 December 2005; Krzysztofiak v. Poland, no. 38018/07, § 48, 20 April 2010; and Saghinadze and Others v. Georgia, no. 18768/05, § 137, 27 May 2010).
225. It is essentially on the basis of the reasons set out in the decisions of the national judicial authorities relating to the applicant’s pre-trial detention and of the arguments made by the applicant in his requests for release or appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see, among other authorities, Wemhoff, cited above, pp. 24-25, § 12; Neumeister v. Austria, 27 June 1968, p. 37, §§ 4-5, Series A no. 8; Letellier, cited above, § 35; and Buzadji, cited above, § 91).
(ii) Application of those principles
(α) The applicant’s initial placement in pre-trial detention
226. The reasons given by the Kutaisi City Court for its decision to place the applicant in pre-trial detention – the risk that he would flee and would influence witnesses (see paragraph 39 above) – were relevant. The question is whether they were also sufficient.
227. The Kutaisi City Court did not set out all the arguments cited by the prosecution in relation to those matters, especially with respect to the risk of flight. It did, however, expressly refer to the prosecution’s pleadings. By doing so, it made it clear that it had taken into account the specific points put forward by the prosecution and had found them sufficient to justify placing the applicant in pre-trial detention. Whilst more detailed reasoning would have been desirable, the Court is satisfied that this was enough in the circumstances, and that it can have regard to those specific points. It is true that under Article 5 § 3 of the Convention it is in the first place for the national judicial authorities to review all considerations for or against detention and set them out in their decisions (see, among other authorities, Letellier, § 35; Labita, § 152; and McKay, § 43, all cited above). But there is no single standard of reasoning in those matters, and nothing precludes the national judicial authorities from endorsing or incorporating by reference the specific points cited by the authorities seeking the imposition of pre-trial detention (see, mutatis mutandis, Helle v. Finland, 19 December 1997, §§ 56-60, Reports 1997-VIII, and Lăcătuş and Others v. Romania, no. 12694/04, § 100, 13 November 2012).
228. The risk of the applicant’s influencing witnesses was not strongly substantiated. It is true that many witnesses in the case against him were former subordinates of his, and that he wielded considerable influence in some sectors of Georgian society (see paragraph 31 above). But the proceedings had been opened more than five months before his arrest, and it was not asserted that during that time he had tried to influence any witnesses in those proceedings. The only concrete incident cited in support of that proposition – the applicant’s alleged attempt to intimidate the head of the Border Police on 30 November 2012 – even assuming that it was true, which the applicant denied – had taken place before the case had been opened, and had no connection with the charges in respect of which the applicant was placed in pre-trial detention.
229. The risk of flight was established in more concrete terms. The prosecution referred, generally, to the applicant’s wide network of international contacts and his many trips abroad. They also noted, more specifically, that his wife had left Georgia straight after he had been summoned for questioning on 21 May 2013, that a search of his flat had revealed large sums of cash which he might have prepared in order to facilitate his departure from Georgia, and that he still had a fake passport (see paragraph 34 above). Those facts, which were amplified by the seriousness of the punishment which awaited the applicant if convicted, suggest that at that time, straight after he was charged, the risk of his fleeing abroad could be seen as sufficiently real and incapable of being averted by a less restrictive measure.
230. The Court therefore finds that there has been no breach of Article 5 § 3 in relation to the applicant’s initial placement in pre-trial detention.
(β) The continued justification for the applicant’s pre-trial detention
231. The first challenge against the applicant’s detention was made on 25 September 2013, four months after it had been imposed. In their submissions to the Kutaisi City Court on that date the applicant’s counsel and the prosecution essentially rehashed the arguments about the risk of flight and the risk of influencing witnesses that they had already made on 22 May 2013. The only new arguments by the prosecution appear to have been that the applicant might have other unidentified fake passports and that such passports had already been used by other former officials to flee abroad, and that the risk of influencing witnesses remained, as the witnesses, though already interviewed, were still due to testify at trial, which was by law the only way of adducing their evidence. On the applicant’s side, the only new argument appears to have been that the investigation had already been concluded (see paragraphs 47 and 48 above).
232. All those arguments had a bearing on the continued justification for the applicant’s pre-trial detention, and none of them was entirely devoid of merit. Even if many of them were identical to those made four months previously, they all required a fresh examination, since by their very nature reasons which at first justify the imposition of pre-trial detention can change over time (see Letellier, cited above, § 39; I.A. v. France, 23 September 1998, §§ 105 and 110, Reports 1998-VII; and Kudła v. Poland [GC], no. 30210/96, § 114, ECHR 2000-XI).
233. Yet the Kutaisi City Court said nothing in relation to any of those points (see paragraph 49 above). By omitting to give any reasons for its decision of 25 September 2013, it did not make it clear why it was persuaded by the reasons cited by the prosecution and why it found that they outweighed the arguments put forward by the applicant. It is not for the Court to supplement that omission (see Ilijkov v. Bulgaria, no. 33977/96, § 86, 26 July 2001; Panchenko v. Russia, no. 45100/98, § 105, 8 February 2005; and Giorgi Nikolaishvili, cited above, § 77).
234. In its subsequent decision, of 7 October 2013, the Kutaisi City Court briefly noted that the applicant had not pointed to any new facts or evidence, but had merely referred to the reasons set out in the initial decision to place the applicant in pre-trial detention. It thus entirely disregarded the passage of time and made it clear that it was for the applicant to show that his detention was no longer justified (see paragraph 51 above). However, under Article 5 § 3 of the Convention it is incumbent on the authorities, rather than the detainee, to establish the persistence of reasons justifying continued pre-trial detention (see Ilijkov, cited above, § 85, and Bykov v. Russia [GC], no. 4378/02, § 64 in fine, 10 March 2009). As already noted, even if such reasons exist when that detention is first imposed, they can by their very nature change over time. The reasons given by the Kutaisi City Court on 7 October 2013 did not therefore suffice to justify the continuation of the applicant’s detention.
235. In view of the above, the Court concludes that, at least from 25 September 2013 onwards, the applicant’s pre-trial detention ceased to be based on sufficient grounds, in breach of Article 5 § 3 of the Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
236. The applicant complained that the Kutaisi City Court’s decision of 25 September 2013 rejecting his request for release had been given orally and had not contained any reasons. He relied on Article 5 § 4 of the Convention, which provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
237. Noting that it had examined the lack of reasons for the Kutaisi City Court’s decision of 25 September 2013 under Article 5 § 3 of the Convention, the Chamber did not find it necessary to review the same issue under Article 5 § 4 of the Convention.
238. The applicant pointed out that on 25 September 2013 the Kutaisi City Court had rejected his request for release orally and without giving any reasons for its decision, rendering his ensuing detention arbitrary. Since the initial risks of flight and obstruction of the proceedings – which had in any event never been duly substantiated – had necessarily diminished with the passage of time, the lack of any reasons had been particularly problematic.
239. The Government’s submissions on that complaint are summarised in paragraph 220 above.
240. The Court has already examined, under Article 5 § 3 of the Convention, the Kutaisi City Court’s failure to give any reasons for its decision of 25 September 2013 rejecting the applicant’s request for release (see paragraph 233 above). It sees no need to deal with the same point under Article 5 § 4 of the Convention as well (see Khodorkovskiy and Lebedev v. Russia, nos. 11082/06 and 13772/05, § 525, 25 July 2013).
V. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 § 1
241. In his application, the applicant alleged that the purpose behind the criminal proceedings against him and his pre-trial detention had been to remove him from the political scene and to prevent him from standing in the Georgian presidential election in October 2013.
242. In his observations in reply to those of the Government, filed with the Chamber on 19 December 2014, the applicant further alleged that on 14 December 2013 the Chief Public Prosecutor had attempted to use his detention as leverage to pressure him to provide information about Mr Saakashvili’s bank accounts and about Mr Zhvania’s death.
243. The applicant relied on Article 18 of the Convention, which provides:
“The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.”
244. The Chamber was not convinced that the criminal case against the applicant and his pre-trial detention had been intended to exclude him from Georgia’s political life, noting that the only evidence cited in support of that allegation were statements by institutions, non-governmental organisations and public figures. It was, however, persuaded by the applicant’s allegations about his late-night meeting with the Chief Public Prosecutor. It found the applicant’s account coherent and detailed. It also noted that the applicant had voiced his allegations immediately after the meeting; that his story had been partly confirmed by an official, Ms L.M., who had been dismissed shortly after speaking out; that the authorities had not provided access to recordings by the prison surveillance cameras which could have shed light on the allegations; and that the authorities had not duly checked the incident or provided any materials from the inquiry into it by the General Inspectorate of the Ministry of Prisons. The Chamber concluded that the applicant’s detention had been used not only for a legitimate law-enforcement purpose, but also for extraneous ones: to further the authorities’ investigation into Mr Zhvania’s death and to enable them to inquire into Mr Saakashvili’s finances. It accordingly concluded that there had been a breach of Article 18 of the Convention.
B. The Government’s preliminary objection
245. The Government submitted that the applicant had failed to raise his allegations about the meeting with the Chief Public Prosecutor within six months of the alleged meeting, or even within six months of his lawyer being informed that the inquiry into the matter by the Ministry of Prisons’ General Inspectorate had been closed. In the Government’s view, the applicant had thus failed to comply with the six-month rule laid down in Article 35 § 1 of the Convention.
246. The applicant submitted that he had raised his complaint under Article 18 of the Convention in good time. He also pointed out that the alleged incident had taken place after he had lodged his application, and stated that the Government’s argument was misconceived.
2. The Grand Chamber’s assessment
247. Although the Government did not raise the above objection in their observations on the admissibility of the application in the proceedings before the Chamber, there is no estoppel, notwithstanding the requirements of Rule 55 of the Rules of Court, because the six-month rule set out in Article 35 § 1 of the Convention is a public-policy one which the Court can, and indeed must, apply even of its own motion (see Sabri Güneş v. Turkey [GC], no. 27396/06, §§ 25-31, 29 June 2012, and Blokhin v. Russia [GC], no. 47152/06, §§ 102-03, ECHR 2016), and even for the first time in proceedings before the Grand Chamber following a referral (see Svinarenko and Slyadnev v. Russia [GC], nos. 32541/08 and 43441/08, § 85, ECHR 2014 (extracts)).
248. The Grand Chamber can therefore examine whether the six-month rule was complied with.
249. The secret meeting with the Chief Public Prosecutor was said to have taken place a little over three weeks after the application was lodged (see paragraphs 1 and 60 above). The allegations in respect of it could not therefore feature in the application. They were not duly raised before the Court until the applicant filed his observations in reply to those of the Government in the proceedings before the Chamber, on 19 December 2014. That was more than six months after the alleged meeting and even more than six months after the applicant’s lawyer had been informed that the inquiry into the matter by the Ministry of Prisons’ General Inspectorate had been completed (see paragraphs 89 above). If the allegations are to be seen as a separate complaint, they were out of time.
250. But the Grand Chamber does not find that the allegations were a separate complaint under Article 18 of the Convention. They were simply a further aspect, or a further argument in support of, the complaint already set out in the application, namely, that the restriction of the applicant’s right to liberty had been applied for a purpose not prescribed by the Convention (see, mutatis mutandis, Sâmbata Bihor Greek Catholic Parish v. Romania (dec.), no. 48107/99, 25 May 2004; Rasmussen v. Poland, no. 38886/05, § 30, 28 April 2009; and Mathloom v. Greece, no. 48883/07, § 39, 24 April 2012, and contrast Ekimdjiev v. Bulgaria (dec.), no. 47092/99, 3 March 2005; Cornea v. Romania (dec.), no. 13755/03, § 51, 15 May 2012; Kırlangıç v. Turkey, no. 30689/05, § 54, 25 September 2012; and Fábián v. Hungary [GC], no. 78117/13, §§ 95-97, ECHR 2017 (extracts)). In examining a complaint the Court can take account of facts which are subsequent to the application but are directly related to those covered by it (see Stögmüller v. Austria, 10 November 1969, p. 41, § 7, Series A no. 9; Matznetter v. Austria, 10 November 1969, pp. 31-32, § 5, Series A no. 10; and, more recently, Khayletdinov v. Russia, no. 2763/13, § 82, 12 January 2016).
251. It follows that the Grand Chamber is not precluded from dealing with those allegations and that the Government’s objection must be dismissed.
252. The applicant submitted that Article 18 was a fundamental provision of the Convention. Its object was to protect democratic values, which, as was clear from the Preamble and the Court’s case-law, underlay the entire Convention. Pluralism, free elections and political parties were key among those values. That was particularly relevant in this case, in which criminal proceedings had been used to prevent a major opposition politician from taking part in the political process. The role of Article 18 was to prevent such abuses. The question how complaints under that provision were to be made out had been answered inconsistently by the Court in its case-law. Divergences could be detected in particular with respect to the standard of proof and the types of evidence capable of showing an ulterior purpose. Those points had to be resolved in a flexible and realistic way, for instance by requiring applicants to make a prima facie case and then shifting the burden of proof to the Government, or by taking account of the broader context. In cases in which the authorities had pursued more than one purpose, the presence of even one purpose not prescribed by the Convention was sufficient to give rise to a breach.
253. In the applicant’s case, there were two strands of evidence showing an ulterior purpose behind his arrest and pre-trial detention. On the one hand, there was evidence which showed that he had been taken out of his cell on 14 December 2013 and pressured by the Chief Public Prosecutor to provide information about Mr Zhvania’s death and about Mr Saakashvili’s bank accounts. On the other, there was the whole context showing that the applicant and other members of his political party had been targeted for political reasons.
254. The applicant’s version of the events of 14 December 2013 was more credible than that of the Government for a number of reasons. He had informed his lawyers about the incident and then spoken publicly about it at the first opportunity. His successive accounts of it had been detailed and consistent. Senior officials had from the outset dismissed his allegations out of hand and opposed a proper investigation into them. Both investigations into those allegations had been carried out by officials who had not been sufficiently independent. The second investigation, by the Chief Public Prosecutor’s Office, had been opened only after the Chamber judgment. The Government’s explanation about the limited amount of time for which the surveillance camera footage was kept was unconvincing. The footage from the surveillance cameras of private establishments and the road-traffic cameras had not been properly examined and had not been provided to his lawyer, in spite of his express request. The statements by prison officers during the internal inquiry had been very brief and formulaic. Neither Mr O.P. nor Mr D.D., the main protagonists, had been interviewed in the course of that inquiry. Nor had any attempt been made to take the applicant to Mr D.D.’s office in order to check his assertion that he could recognise it. It was odd that in their statements gathered during the criminal investigation all the prison officers had been able, without referring to contemporaneous records, to recall their movements and actions on a particular day two and a half years earlier; that called their credibility into question. There was evidence from three inmates, Mr G.Ts., Mr I.P. and Mr K.T., which supported the applicant’s account and which had not been properly rebutted by the Government. The statements of Mr O.P. and Mr D.D. during the second investigation were not credible. There had been no attempt to verify the applicant’s allegations by checking the mobile telephone records of the men in the car transporting him from Prison no. 9 to the Penitentiary Department or by carrying out an identity parade. Lastly, no proper explanation had been given for the exorbitant bonuses paid to various prison officials in December 2013.
255. The facts showing that the criminal proceedings against the applicant had been politically motivated and intended to remove him from the political scene in the run-up to the 2013 presidential election and thereafter were that: (a) shortly after the October 2012 parliamentary election criminal proceedings had been opened against many former members of UNM governments and other former high officials from UNM, which had prompted many foreign governments, international bodies, such as the Parliamentary Assembly of the Council of Europe, and non-governmental organisations to express concern about possible political persecution; (b) senior figures from Georgian Dream had publicly called for UNM’s elimination, and the Prime Minister had privately threatened a UNM politician with prosecutions against UNM figures; (c) in 2015 the Constitutional Court had deplored attempts to apply public pressure against it in the case brought by Mr G.U.; (d) in 2014 and 2015 courts in France, Greece and the United Kingdom had refused to extradite two high-ranking former UNM officials to Georgia, finding that the criminal prosecutions against them were politically motivated, and Interpol had recalled or refused to issue two “Red Notices” on the same basis; (e) the OSCE trial monitoring report had highlighted a number of shortcomings in the fourteen criminal cases against former UNM officials, including the cases against the applicant; (f) in the criminal case at issue in these proceedings, the prosecution had taken statements from 3,969 witnesses and had sought and obtained leave to call all of them at trial, with the intention of intimidating them, delaying the proceedings, and thus prolonging the applicant’s pre-trial detention; (g) the proceedings in that case had been conducted in Kutaisi even though both the applicant and his co-defendant, Mr Z.T., as well as most of the witnesses lived in Tbilisi; (h) several thousand UNM activists and supporters had been repeatedly questioned and intimidated by the law-enforcement authorities, a number of UNM figures had been assaulted without an adequate police response to the incidents, and many UNM officials at local level had been forced to resign or dismissed and prosecuted.
256. The Government submitted that there were very few cases in which the Court had examined complaints under Article 18, as the Convention’s whole structure rested on the assumption that the High Contracting Parties’ authorities acted in good faith. It was for the applicant to demonstrate convincingly that the authorities’ real aim had differed from the one proclaimed. A mere suspicion, however arguable, that the State’s entire legal machinery had lacked independence and had been misused was not sufficient. Otherwise, the Court would have to find a breach of Article 18 in every case in which the applicant’s status, wealth, reputation and so on gave rise to a suspicion that the restrictions of his or her Convention rights had been made for an ulterior political purpose. In other words, high political status did not grant immunity. That had been clearly stated in the Court’s case-law under Article 18.
257. Cases in which a breach of Article 18 had been found could be split into two groups: those in which there had existed direct proof of an ulterior purpose, and those in which, in spite of the absence of such proof, it had been possible reasonably to infer an ulterior purpose from case-specific facts.
258. In cases of the first kind, the ulterior purpose had been directly spelled out in written documents: an agreement with the authorities or official decisions. Evidence of that sort could not reasonably be rebutted or validly challenged by the respondent Government. But no such evidence had been put forward in this case, and it did not therefore fall into that category.
259. In cases of the second kind, the Court had made reasonable inferences about the ulterior purpose from combinations of facts which had not been disputed between the parties and which had clearly demonstrated the ulterior purpose. But since all the facts in the case at hand continued to be disputed and since the Government had validly rebutted all assertions made by the applicant, none of which were based on objective proof, the case did not fall into that category either. There was therefore no room for inferences such as those drawn by the Chamber.
260. The presumption of good faith on the part of the authorities, although rebuttable in theory, was difficult to overcome in practice. The presence of several purposes could not overcome it either. It could only be rebutted through incontrovertible evidence provided by the applicant, and in assessing the point the Court could only take into account the specific facts of the case. The standard of proof under Article 18 was very high and could differ from those applied domestically, and the burden of proof remained on the applicant throughout the proceedings. All that had been clearly stated in the Court’s case-law.
261. The criminal cases against the applicant and other UNM figures had been the result of more than twenty thousand complaints to the prosecuting authorities, lodged after the October 2012 elections by people who had fallen victim to abuses of power during UNM’s time in office. The need to respect and redress the rights of those complainants had been underlined by the Council of Europe’s Parliamentary Assembly and by the European Union Special Adviser on Constitutional and Legal Reform and Human Rights in Georgia. An International Prosecution Advisory Panel, set up in 2014 at the initiative of Georgia’s Chief Public Prosecutor to review the materials in high-profile cases processed by the Georgian prosecuting authorities and consisting of three foreign criminal-justice professionals, had found the evidence in those cases sufficient to justify prosecution. This showed that the applicant’s arrest and pre-trial detention had only been intended to bring him before a competent legal authority on a reasonable suspicion of having committed an offence. Since there had been no breach of Article 5 § 1 of the Convention, as confirmed by the Chamber, there was no room for a breach of Article 18 either. In fact, this was the only case in which the Court had found a violation of Article 18 in conjunction with Article 5 § 1 without having first found a violation of the latter – a possibility which had previously only been envisaged theoretically. In all previous cases, if the Court had found no breach of the Article in conjunction with which Article 18 had been pleaded, it had either not examined the complaint under Article 18 on the merits or had found no violation of that provision. The case at hand was also the only one in which the underlying facts continued to be disputed between the parties.
262. The evidence cited by the applicant in support of his claim that the prosecution against him had been politically motivated consisted of the opinions of others. However, under the Court’s case-law, such opinions were not enough to show an ulterior purpose.
263. Nor was there any direct or indirect proof supporting the assertion that the applicant’s detention had been used to obtain from him information about Mr Zhvania’s death and Mr Saakashvili’s bank accounts. All the facts to which the applicant referred in support of that assertion were disputed rather than clearly established, and hence could not form the basis of inferences. Apart from the statement of Ms L.M. in May 2014, there was no evidence corroborating the allegation that the applicant had been covertly taken to the Chief Public Prosecutor. That allegation, first voiced three days after the alleged incident, was not proof of its reality. It had been examined twice, first during the inquiry by the Ministry of Prisons’ General Inspectorate and again in the course of the investigation by the Chief Public Prosecutor’s Office. The ample evidence gathered in those procedures – witness statements, video footage and prison records – had shown the applicant’s allegation to be false.
During the hearing before the Grand Chamber, the Government further stated that while no one had asked the applicant anything about Mr Zhvania’s death on 14 December 2013, there was still a “huge question” to him in relation to that death (see paragraph 61 above).
(a) Interpretation and application of Article 18 of the Convention in the former Commission’s and the Court’s case-law
264. Since the Court’s examination of this case has brought to light a need to clarify its case-law in this area, it will first provide a survey of the existing case-law.
265. The former Commission, having briefly referred to Article 18 when examining a complaint under Article 10 of the Convention (see X v. Austria, no. 753/60, Commission decision of 5 August 1960, Yearbook 3, p. 310) and then in the context of the validity of derogations under Article 15 of the Convention (see De Becker v. Belgium, no. 214/56, Commission report of 8 January 1960, Series B no. 2, pp. 132-33, § 271, and Denmark, Norway, Sweden and the Netherlands v. Greece, nos. 3321/67 and 3 others, Commission report of 5 November 1969, Yearbook 12, p. 112, § 225), dealt for the first time with a complaint under that Article in some detail in Kamma v. the Netherlands (no. 4771/71, Commission report of 14 July 1974, Decisions and Reports (DR) 1, p. 4). Mr Kamma had been detained on extortion charges, and the police had used his period in custody to question him about his alleged involvement in a murder. The Commission established two points which the Court has since confirmed (see paragraph 271 below): (a) although Article 18 cannot apply alone, it can be breached even if there is no violation of the Article in conjunction with which it is applied, and (b) it can only be contravened if the Convention right which has been interfered with is subject to restrictions – that is, is qualified rather than absolute. The Commission found no breach, saying that the police had been entitled to proceed as they had, and that the detention had not prejudiced Mr Kamma’s position in the murder case (ibid., pp. 10 ‑ 12).
266. In later cases the Commission dealt with such complaints in a more summary manner, dismissing them as manifestly ill-founded or on the merits for lack of proof (see, for instance, X v. the Netherlands, no. 5763/72, Commission decision of 18 December 1973, Collection 45, p. 76, at pp. 83-84; X and Y v. the Netherlands, no. 6202/73, Commission decision of 16 March 1975, DR 1, p. 66, at p. 71; Handyside v. the United Kingdom, no. 5493/72, Commission report of 30 September 1975, Series B no. 22, p. 52, §§ 174-75; McFeeley and Others v. the United Kingdom, no. 8317/78, Commission decision of 15 May 1980, DR 20, p. 44, at p. 102, § 133; Bozano v. Italy, no. 9991/82, Commission decision of 12 July 1984, DR 39, p. 147, at p. 157; and Bozano v. Switzerland, no. 9009/80, Commission decision of 12 July 1984, DR 39, p. 58, at p. 70).
267. Article 18 was given more attention in some Commission reports. For instance, in Engel and Others v. the Netherlands (nos. 5100/71 and 4 others, Commission report of 19 July 1974, Series B no. 20, p. 86, §§ 191-92) the Commission found that (a) the choice of disciplinary over criminal proceedings had not engaged Article 18 as it had not restricted the applicants’ rights under the Convention, and that (b) the presence of a legitimate aim for an interference meant that no ulterior purpose under Article 18 could be made out. In Times Newspapers Ltd and Others v. the United Kingdom (no. 6538/74, Commission report of 18 May 1977, Series B no. 28, p. 77, §§ 263-65) in response to a submission that a side ‑ effect of the interference could result in a breach of Article 18, the Commission said that there was no indication that the authorities had pursued any purpose different from the stated one, which it had already accepted as legitimate.
(ii) The Court’s rulings prior to 2004
268. Until 2004 the Court had not found a separate breach of Article 18 or given more than very brief reasons for its findings in relation to that Article. In all cases which it examined on the merits and in which a complaint had been made under Article 18, the Court either found no need to deal with the complaint or dismissed it summarily by reference to its rulings under the substantive Articles in conjunction with which Article 18 had been pleaded – often because the parties had either not pursued the point at all or had done so with insufficient specificity (see, among others, Engel and Others v. the Netherlands, 8 June 1976, §§ 93 and 104, Series A no. 22; Handyside v. the United Kingdom, 7 December 1976, § 64, Series A no. 24; The Sunday Times v. the United Kingdom (no. 1), 26 April 1979, § 75, Series A no. 30; Sporrong and Lönnroth v. Sweden, 23 September 1982, § 76, Series A no. 52; De Jong, Baljet and Van den Brink, cited above, § 63; Bozano v. France, 18 December 1986, § 61, Series A no. 111; Akdivar and Others v. Turkey, 16 September 1996, § 99, Reports 1996-IV; Lukanov, cited above, § 49; United Communist Party of Turkey and Others v. Turkey, 30 January 1998, § 62, Reports 1998-I; Beyeler v. Italy [GC], no. 33202/96, § 129, ECHR 2000-I; Timurtaş v. Turkey, no. 23531/94, § 118, ECHR 2000-VI; Cyprus v. Turkey [GC], no. 25781/94, § 206, ECHR 2001-IV; Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 others, § 137, ECHR 2003-II; and Tahsin Acar v. Turkey [GC], no. 26307/95, § 247, ECHR 2004-III).
269. Parallel to that, in its first ever judgment on the merits of a case and a number of subsequent ones, the Court used Article 18 as an aid to interpretation of the restriction clauses of other provisions of the Convention or its Protocols (see Lawless v. Ireland (no. 3), 1 July 1961, p. 59, § 38, Series A no. 3 (Article 15); De Wilde, Ooms and Versyp, cited above, § 93 (Article 8 § 2); Winterwerp, cited above, § 39 (Article 5 § 1); Guzzardi, cited above, § 102 (Article 5 § 1); Ashingdane, cited above, § 44 (Article 5 § 1); Lingens v. Austria, 8 July 1986, § 36, Series A no. 103 (Article 10 § 2); Gillow v. the United Kingdom, 24 November 1986, § 54, Series A no. 109 (Article 8 § 2); Weeks v. the United Kingdom, 2 March 1987, § 42, Series A no. 114 (Article 5 § 1); Beyeler, cited above, § 111 (Article 1 of Protocol No. 1); Kafkaris v. Cyprus [GC], no. 21906/04, § 117, ECHR 2008 (Article 5 § 1); Kucheruk v. Ukraine, no. 2570/04, § 177, 6 September 2007 (Article 5 § 1); and United Macedonian Organisation Ilinden-PIRIN and Others v. Bulgaria (no. 2), nos. 41561/07 and 20972/08, § 83, 18 October 2011 (Article 11 § 2)).
(iii) The Court’s rulings since 2004
270. The first case in which the Court dealt with a complaint under Article 18 in more detail and found a breach of that provision was Gusinskiy (cited above, §§ 73-78). Mr Gusinskiy, a wealthy businessman who owned a media company, had been charged and placed in pre-trial detention in order to be coerced to sell that company to a State-owned company.
271. In that judgment the Court confirmed two lines of reasoning under Article 18 previously only mentioned in Commission decisions and reports and Court admissibility decisions (see Kamma, at p. 9; Bozano v. France, at p. 141; and Bozano v. Italy, at p. 157, all cited above, and E.O. and V.P. v. Slovakia (dec.), nos. 56193/00 and 57581/00, 16 September 2003, and Oates v. Poland (dec.), no. 35036/97, 11 May 2000). The first was that Article 18 could only be applied in conjunction with another Article of the Convention, but could be breached even if there was no breach of that other Article taken alone. The second was that a breach could only arise if the right at issue was qualified, that is, subject to restrictions permitted under the Convention (see Gusinskiy, cited above, § 73).
272. The Court did not, however, clarify two other important points. First, it did not explain what proof would be required to sustain an allegation that a restriction had been applied for an ulterior purpose. In Gusinskiy itself, direct proof flowed from a written agreement, endorsed by a government minister, linking the dropping of the charges against Mr Gusinskiy to the sale of his company, and from the terms of the decision discontinuing the criminal proceedings against him, which referred to that agreement; also, the respondent Government had not sought to deny that link (ibid., § 75). Secondly, the judgment did not clearly explain what the position was when, as had happened in that case, and as often happens in practice, there was a plurality of purposes, that is, when a restriction pursued both a purpose prescribed by the Convention and an ulterior one; it merely stated that since Mr Gusinskiy’s right to liberty had been restricted not only for the purpose prescribed under Article 5 § 1 (c) of the Convention but also for other reasons, there had been a breach of Article 18 (ibid., §§ 77-78).
273. Even after that judgment the Court has on a number of occasions dismissed or declined to examine complaints under Article 18 without giving detailed reasons, as it had done before 2004 (see, among others, Öcalan v. Turkey [GC], no. 46221/99, § 206, ECHR 2005-IV; Sisojeva and Others v. Latvia (striking out) [GC], no. 60654/00, § 129, ECHR 2007-I; Nemtsov v. Russia, no. 1774/11, §§ 129-30, 31 July 2014; Navalnyy and Yashin v. Russia, no. 76204/11, § 116-17, 4 December 2014; Frumkin v. Russia, no. 74568/12, §§ 172-73, ECHR 2016 (extracts); Kasparov v. Russia, no. 53659/07, §§ 73-74, 11 October 2016; and Kasparov and Others v. Russia (no. 2), no. 51988/07, § 55, 13 December 2016).
274. The Court reverted to a more detailed analysis of a complaint under Article 18 in 2007 when, in Cebotari v. Moldova (no. 35615/06, §§ 49-53, 13 November 2007), it found that the head of a State-owned company had been placed in pre-trial detention on fabricated charges in order to pressure him with a view to hindering a private company with which he was linked from pursuing its application to the Court. The Court based that finding on the fact that the materials in the case could not lead an objective observer reasonably to believe that Mr Cebotari could have committed the offence in relation to which he had been detained, although it was also influenced by the context of the case (ibid., §§ 52-53).
275. The next case in which the Court dealt in detail with a complaint under Article 18 was Khodorkovskiy (cited above). Mr Khodorkovskiy, a wealthy businessman who was also active in politics, complained that the real aims of a criminal case against him and his related pre-trial detention were to take him out of the public arena and enable the State to appropriate the assets of his company, Yukos, one of the biggest oil producers in Russia (ibid., §§ 249 and 251). The Court found no breach of Article 18. It started from the general assumption that the High Contracting States’ authorities acted in good faith, and held that it could only be rebutted if applicants “convincingly show[ed] that the real aim of the authorities [had] not [been] the same as that proclaimed (or as [could] be reasonably inferred from the context)” (ibid., § 255). In relation to such allegations, the Court “applie[d] a very exacting standard of proof”, and the burden of proof remained on the applicant throughout the proceedings (ibid., § 256). The Court then found that the authorities’ perception of Mr Khodorkovskiy as a serious political opponent and the benefit accruing to a State-owned company as a result of Yukos’s demise were not enough to establish a breach of Article 18 because the criminal prosecution of anyone with such a high profile would benefit his opponents, and because the charges against Mr Khodorkovskiy had been genuine (ibid., §§ 257-58). The opinions of others – political institutions, non-governmental organisations or public figures – regarding the political motivation behind the case against him were not evidence in the legal sense (ibid., § 259). The rulings of courts which had refused to extradite associates of his to Russia, or had denied legal assistance to, issued injunctions against, or made awards against the Russian authorities in Yukos-related cases, although a strong argument, were not sufficient because the evidence and arguments before those courts could have differed from those before the Court, and because, in any event, the standard of proof applied by the Court in cases under Article 18 was very high and could be different from those applied domestically. The claim that the authorities had acted in bad faith throughout the entire criminal proceedings required “incontrovertible and direct proof”, which, in contrast to Gusinskiy, was lacking (ibid., § 260).
276. In the related case of OAO Neftyanaya Kompaniya Yukos v. Russia (no. 14902/04, §§ 663-66, 20 September 2011), which concerned related tax proceedings leading to Yukos’s demise, the Court likewise found no breach of Article 18. It again held that such finding could only be based on “incontrovertible and direct proof” adduced by the applicant (ibid., § 663). With reference to its conclusions regarding Yukos’s substantive complaints, it found that the authorities had legitimately acted to counter tax evasion and that it was for the applicant company to show that in doing so they had had an improper purpose (ibid., § 664). As in Khodorkovskiy, the Court held that the opinions of others on the political reasons behind the case against Yukos were of little evidentiary value for the purposes of Article 18. Since there was no evidence of further defects in the tax proceedings, it could not conclude that the authorities had misused them to destroy Yukos and take control of its assets (ibid., § 665).
277. During the next two years the Court dealt with complaints under Article 18 in Lutsenko (cited above) and Tymoshenko (cited above). In neither case did it accept the allegations that the whole criminal cases against the applicants, former government ministers and leaders of opposition parties, had pursued political purposes. It focused instead on specific aspects of those proceedings (see Lutsenko, §§ 104 and 108, and Tymoshenko, § 298, both cited above). In Lutsenko this was the arguments in the investigator’s request to place Mr Lutsenko in pre-trial detention that, by talking to the media, he was trying to distort public opinion, discredit the prosecuting authorities and influence his upcoming trial. For the Court, that showed that the detention had pursued a reason not envisaged by Article 5 § 1 (c) – to punish Mr Lutsenko for publicly disputing the charges against him (see Lutsenko, cited above, §§ 26 and 108-09). In Tymoshenko this was statements in the prosecution’s request to place Ms Tymoshenko in pre-trial detention and in the corresponding court order which showed that the purpose had been to punish her for disrespect towards the court and perceived obstructive conduct during hearings (see Tymoshenko, cited above, §§ 30, 31 and 299).
278. In both of those cases the Court – while reiterating (see respectively §§ 106-07 and 294-95) the applicant’s burden of proof as set out in Khodorkovsky (cited above, §§ 255-56), but not the requirement stated therein of “direct and incontrovertible proof” (ibid. § 260; see paragraph 275 above) – based its findings of a breach of Article 18 on direct written evidence of ulterior purpose, as it had done in Gusinskiy (cited above). The question of plurality of purposes did not arise, as in both cases the Court found that there had been no valid grounds to detain the applicants (see Lutsenko, §§ 63-65 and 67-72, and Tymoshenko, §§ 269-71, both cited above).
279. In the case of Khodorkovskiy and Lebedev (cited above, §§ 897 ‑ 909), which concerned a later phase of the same criminal proceedings as Khodorkovskiy (cited above), the Court confirmed the approach to proof taken in that earlier case. It resisted the applicants’ suggestion that if they provided contextual evidence of ulterior purpose, the burden to prove otherwise should shift to the respondent Government (see Khodorkovskiy and Lebedev, cited above, §§ 899-903). It did not accept that the whole criminal case against the applicants had been for an ulterior purpose, an allegation which the Court described as “sweeping” and contrasted with allegations about specific episodes in such proceedings. Even if there had been a mixed intent behind that case, the ulterior purpose was not fundamental or decisive, as the case concerned serious accusations relating to common criminal offences unrelated to the applicants’ political activities and had a “healthy core” (ibid., §§ 904-08).
280. More recently, in the case of Tchankotadze v. Georgia (no. 15256/05, §§ 114-15, 21 June 2016), the Court found that public threats that the applicant, a high-ranking civil servant, would be “jailed”, uttered by Mr Saakashvili, then a presidential candidate and later elected, were insufficient to find an ulterior purpose behind his prosecution and related pre-trial detention, in the absence of proof that the prosecuting or judicial authorities had themselves been driven by political motives.
281. In two other recent cases, Ilgar Mammadov and Rasul Jafarov (both cited above), the Court – while again emphasising (see respectively §§ 137-38 and 153-54) the applicant’s burden of proof as set out in Khodorkovsky (cited above, §§ 255-56), but not the requirement of “direct and incontrovertible proof” (ibid. § 260; see paragraph 275 above) – found a breach of Article 18 of the Convention, basing itself on contextual evidence of ulterior purpose. The cases concerned the pre-trial detention of, respectively, an opposition politician and blogger critical of the Government, and that of a well-known human-rights activist. In both cases the Court analysed the factual and legal aspects of the charges and found that the detention had not been based on a reasonable suspicion, in breach of Article 5 § 1 (see Ilgar Mammadov, §§ 93-101, and Rasul Jafarov, §§ 121-34, both cited above). In itself, that was not enough to find a breach of Article 18, but proof of ulterior purpose – to silence or punish the applicant in the first case for criticising the authorities and spreading information that they were trying to suppress, and the applicant in the second case for his human-rights activities – derived from a juxtaposition of the lack of suspicion with contextual factors. In the first case, these were a close chronological correlation between the applicant’s blog entries, the authorities’ public statement denouncing them, the charges, and the arrest (see Ilgar Mammadov, cited above, §§ 141-43). In the second case, they were the increasingly harsh regulation of non-governmental organisations and their funding in Azerbaijan, allegations by officials and the pro-government media that activists such as the applicant were a “fifth column”, and the contemporaneous detention of other such activists (see Rasul Jafarov, cited above, §§ 156-62).
(b) The need to clarify the case-law
282. The above survey of the case-law under Article 18 of the Convention shows that in the relatively few cases in which the Court has thus far examined complaints under that provision in some detail, it has, since Khodorkovskiy (cited above), started from the general assumption that the national authorities of the High Contracting States have acted in good faith, adding that this assumption can only be rebutted if the applicant convincingly shows that the purpose for which those authorities have restricted his or her rights under the Convention or the Protocols thereto was in reality not the one cited by them and permitted under the Convention. In other words, the Court’s scrutiny in such cases has focused on the issue of proof of bad faith in this regard.
283. But inasmuch as they underscore the exhaustiveness of the purposes for which the rights in the Convention may be restricted, Article 18’s terms (“shall not be applied for any purpose other than ...”) appear capable of allowing a more objective assessment of the presence or absence of an ulterior purpose and thus of a misuse of power (“ détournement de pouvoir ”, as stated in the Convention’s Travaux Préparatoires – see paragraph 154 above). Moreover, an approach that simply focuses on proof of bad faith does not sit well with that taken by the Court with respect to the restriction clauses in the Convention, which Article 18 is intended to complement. For example, in examining whether an interference with the rights guaranteed by Articles 8 to 11 is “necessary in a democratic society” for the pursuit of a legitimate aim, the Court always insists that its supervision is not limited to ascertaining whether the respondent State’s authorities have exercised their discretion reasonably, carefully and in good faith (see, for example, The Sunday Times (no. 1), cited above, § 59; Olsson v. Sweden (no. 1), 24 March 1988, § 68, Series A no. 130; and Perinçek v. Switzerland [GC], no. 27510/08, § 196 (iii), ECHR 2015 (extracts)). In cases under Article 5 § 1, the authorities’ good faith is likewise only one of the elements showing a lack of arbitrariness (see Saadi, cited above, §§ 69-74). Moreover, although “bad faith” and “ulterior purpose” are related notions, they are not necessarily equivalent in each case.
284. Furthermore, in the cases under Article 18 the Court’s approach to proof has not been entirely consistent, since some, but not all, of the recent judgments have insisted on “direct and incontrovertible proof” of an ulterior purpose (see paragraphs 278 and 281 above).
285. Lastly, and perhaps most importantly, the above survey of the case ‑ law shows that the Court has thus far not clearly separated the question how an ulterior purpose can be made out from the question how a restriction characterised by a plurality of purposes is to be analysed under Article 18 of the Convention.
286. It is thus necessary for the Court to clarify those points and, more generally, to spell out in some detail the manner in which Article 18 is to be interpreted and applied.
(c) Interpretation and application of Article 18 of the Convention
287. In a similar way to Article 14, Article 18 of the Convention has no independent existence (see, in relation to Article 14, Marckx v. Belgium, 13 June 1979, § 32, Series A no. 31; Van der Mussele v. Belgium, 23 November 1983, § 43, Series A no. 70; Rasmussen v. Denmark, 28 November 1984, § 29, Series A no. 87; Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28 May 1985, § 71, Series A no. 94; Thlimmenos v. Greece [GC], no. 34369/97, § 40, ECHR 2000-IV; and Konstantin Markin v. Russia [GC], no. 30078/06, § 124, ECHR 2012 (extracts)); it can only be applied in conjunction with an Article of the Convention or the Protocols thereto which sets out or qualifies the rights and freedoms that the High Contracting Parties have undertaken to secure to those under their jurisdiction (see Kamma, at p. 9; Gusinskiy, § 73; Cebotari, § 49; Khodorkovskiy, § 254; OAO Neftyanaya Kompaniya Yukos, § 663; Lutsenko, § 105; Tymoshenko, § 294; Ilgar Mammadov, § 137; Rasul Jafarov, § 153; and Tchankotadze, § 113, all cited above, all of which expressed the same idea by saying that Article 18 “does not have an autonomous role”). This rule derives both from its wording, which complements that of clauses such as, for example, the second sentence of Article 5 § 1 and the second paragraphs of Articles 8 to 11, which permit restrictions to those rights and freedoms, and from its place in the Convention at the end of Section I, which contains the Articles that define and qualify those rights and freedoms.
288. Article 18 does not, however, serve merely to clarify the scope of those restriction clauses. It also expressly prohibits the High Contracting Parties from restricting the rights and freedoms enshrined in the Convention for purposes not prescribed by the Convention itself, and to this extent it is autonomous (see, mutatis mutandis, in relation to Article 14, Rasmussen, § 29; Abdulaziz, Cabales and Balkandali, § 71; Thlimmenos, § 40; and Konstantin Markin, § 124, all cited above). Therefore, as is also the position in regard to Article 14, there can be a breach of Article 18 even if there is no breach of the Article in conjunction with which it applies (see, on that point, Kamma, at p. 9; Gusinskiy, § 73; and Cebotari, § 49, all cited above).
289. Lastly, being aware – as already highlighted – of a certain inconsistency in its previous judgments regarding the use of the terms “independent” and “autonomous” in these contexts, the Court seizes the opportunity offered by the present case to align the language used in relation to Article 18 to that used in relation to Article 14, as has been done above.
290. It further follows from the terms of Article 18 that a breach can only arise if the right or freedom at issue is subject to restrictions permitted under the Convention (see Kamma, at p. 10; Gusinskiy, § 73; Cebotari, § 49; and OAO Neftyanaya Kompaniya Yukos, § 663, all cited above).
291. The mere fact that a restriction of a Convention right or freedom does not meet all the requirements of the clause that permits it does not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article is only warranted if the claim that a restriction has been applied for a purpose not prescribed by the Convention appears to be a fundamental aspect of the case (see, mutatis mutandis, in relation to Article 14 of the Convention, Airey v. Ireland, 9 October 1979, § 30, Series A no. 32; Dudgeon v. the United Kingdom, 22 October 1981, § 67, Series A no. 45; Chassagnou and Others v. France [GC], nos. 25088/94 and 2 others, § 89, ECHR 1999-III; Aziz v. Cyprus, no. 69949/01, § 35, ECHR 2004-V; Timishev v. Russia, nos. 55762/00 and 55974/00, § 53, ECHR 2005-XII; and Oršuš and Others v. Croatia [GC], no. 15766/03, § 144, ECHR 2010).
292. A right or freedom is sometimes restricted solely for a purpose which is not prescribed by the Convention. But it is equally possible that a restriction is applied both for an ulterior purpose and a purpose prescribed by the Convention; in other words, that it pursues a plurality of purposes. The question in such situations is whether the prescribed purpose invariably expunges the ulterior one, whether the mere presence of an ulterior purpose contravenes Article 18, or whether there is some intermediary answer.
293. In assessing that point, the Court will begin by taking account of Article 18’s wording and place in the general scheme of the Convention. As already noted, it complements the clauses which provide for restrictions of the rights and freedoms set forth in the Convention. Its wording (“shall not be applied for any purpose other than”) matches closely the wording of those clauses (for example, Article 5 § 1, second sentence: “save in the following cases”; Article 8 § 2: “no interference ... except such as ... is necessary in the interests of”; Article 9 § 2: “be subject only to such limitations as ... are necessary ... in the interests of”; and Article 11 § 2: “No restrictions ... other than such as ... are necessary ... in the interests of”). The similarity is even clearer in the French text (Article 18: “ que dans le but ”; Article 5 § 1: “ sauf dans les cas suivants ”; Article 8 § 2: “ Il ne peut y avoir ingérence ... que pour autant que ”; Article 9 § 2: “ d’autres restrictions que celle qui ”; and Article 11 § 2: “ ne peut faire l’objet d’autres restrictions que celles qui ”). Since the Convention must be interpreted in a way which promotes harmony between its provisions (see, among other authorities, Klass and Others v. Germany, 6 September 1978, § 68, Series A no. 28; Stec and Others v. the United Kingdom (dec.) [GC], nos. 65731/01 and 65900/01, § 48, ECHR 2005-X; and A and B v. Norway [GC], nos. 24130/11 and 29758/11, § 133, ECHR 2016), and since, when using the same terms, its different provisions must normally be taken to refer to the same concept (see Perinçek, cited above, §§ 134 and 146, with further references), in interpreting Article 18 the Court must thus take into account its usual approach to those restriction clauses.
294. The lists of legitimate aims for the pursuit of which Articles 8 to 11 of the Convention permit interferences with the rights guaranteed by them are exhaustive (see Golder, cited above, § 44, and Šneersone and Kampanella v. Italy, no. 14737/09, § 90, 12 July 2011, with regard to Article 8 § 2; S.A.S. v. France [GC], no. 43835/11, § 113, ECHR 2014 (extracts), with regard to Article 9 § 2; The Sunday Times (no. 1), cited above, § 65, with regard to Article 10 § 2; and Sidiropoulos and Others v. Greece, 10 July 1998, § 38, Reports 1998-IV, with regard to Article 11 § 2; see also, generally in relation to Articles 8 to 11, Ždanoka v. Latvia [GC], no. 58278/00, § 115 (b), ECHR 2006-IV; Yumak and Sadak v. Turkey [GC], no. 10226/03, § 109 (iii), ECHR 2008; and Sitaropoulos and Giakoumopoulos v. Greece [GC], no. 42202/07, § 64, ECHR 2012).
295. Yet, in cases under those provisions – as well as under Articles 1, 2 and 3 of Protocol No. 1, or Article 2 §§ 3 and 4 of Protocol No. 4 – respondent Governments normally have a relatively easy task in persuading the Court that the interference pursued a legitimate aim, even when the applicants cogently argue that it actually pursued an unavowed ulterior purpose (see, for example, Weber v. Switzerland, 22 May 1990, §§ 44-45, Series A no. 177; Informationsverein Lentia and Others v. Austria, 24 November 1993, §§ 31 and 33, Series A no. 276; Federation of Offshore Workers’ Trade Unions v. Norway (dec.), no. 38190/97, ECHR 2002-VI; and United Macedonian Organisation Ilinden-PIRIN and Others (no. 2), cited above, §§ 85-90).
296. The cases in which the Court has voiced doubts about the cited aim without ruling on the issue (see, for example, Kandzhov, cited above, § 73; Tănase v. Moldova [GC], no. 7/08, §§ 164-70, ECHR 2010; Bayatyan v. Armenia [GC], no. 23459/03, § 117, ECHR 2011; and Stamose v. Bulgaria, no. 29713/05, § 32, ECHR 2012), left the issue open (see, for example, Christian Democratic People’s Party v. Moldova, no. 28793/02, § 54, ECHR 2006-II; Christian Democratic People’s Party v. Moldova (no. 2), no. 25196/04, § 19, 2 February 2010; and Alekseyev v. Russia, nos. 4916/07 and 2 others, § 69, 21 October 2010), or has rejected one or more of the cited aims (see, for example, Sidiropoulos and Others, cited above, §§ 37-38; Vereinigung Bildender Künstler v. Austria, no. 68354/01, § 31, 25 January 2007; Stoll v. Switzerland [GC], no. 69698/01, §§ 54-55, ECHR 2007-V; S.A.S. v. France, cited above, §§ 118-20; and Perinçek, cited above, §§ 146-54), are few and far between. The cases in which it has found a breach of the respective Article purely owing to the lack of a legitimate aim are rarer still (see Khuzhin and Others v. Russia, no. 13470/02, §§ 117-18, 23 October 2008; Nolan and K. v. Russia, no. 2512/04, §§ 73-74, 12 February 2009; P. and S. v. Poland, no. 57375/08, § 133, 30 October 2012; and Karajanov v. the former Yugoslav Republic of Macedonia, no. 2229/15, §§ 75-77, 6 April 2017), although in a recent case the Grand Chamber found an absence of legitimate aim and yet went on to examine whether the interference had been necessary (see Baka v. Hungary [GC], no. 20261/12, §§ 156-57, ECHR 2016).
297. The Court has indeed itself recognised that in most cases it deals with the point summarily (see S.A.S. v. France, cited above, § 114). Even when it excludes some of the cited aims, if it accepts that an interference pursues at least one, it does not delve further into the question and goes on to assess whether it was necessary in a democratic society to attain that aim (see, for example, Open Door and Dublin Well Woman v. Ireland, 29 October 1992, §§ 61-63, Series A no. 246-A; Sidiropoulos and Others, cited above, §§ 39-47; Nikula v. Finland, no. 31611/96, § 38, ECHR 2002-II; Vereinigung Bildender Künstler, cited above, §§ 29 and 32-39; Stoll, cited above, §§ 56-62 and 101-62; A.A. v. the United Kingdom, no. 8000/08, §§ 52-71, 20 September 2011; and Perinçek, cited above, §§ 155-57 and 196-281).
298. The list of situations in which Article 5 § 1 of the Convention permits deprivation of liberty is likewise exhaustive (see Engel and Others, cited above, § 57; Ireland v. the United Kingdom, 18 January 1978, § 194, Series A no. 25; Winterwerp, cited above § 37; and Saadi, cited above, § 43), except when it is being applied, in the context of an international armed conflict, to the detention of prisoners of war or of civilians who pose a threat to security (see Hassan v. the United Kingdom [GC], no. 29750/09, § 104, ECHR 2014). If a given instance of deprivation of liberty does not fit within the confines of one of the sub-paragraphs of that provision, as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 171, ECHR 2009, and Baisuev and Anzorov v. Georgia, no. 39804/04, § 60, 18 December 2012).
299. Though only sub-paragraphs (c) and (d) refer to the “purpose” of the types of deprivation of liberty which they cover, it is clear from their wording and the overall structure of Article 5 § 1 that this requirement is implicit in all sub-paragraphs. While that is a point which the Court checks in each case (see Stoichkov v. Bulgaria, no. 9808/02, § 52, 24 March 2005, in relation to sub-paragraph (a); Gatt v. Malta, no. 28221/08, §§ 42 and 48, ECHR 2010; Ostendorf v. Germany, no. 15598/08, § 97, 7 March 2013; and Baisuev and Anzorov, cited above, §§ 57-58, in relation to sub ‑ paragraph (b); Engel and Others, cited above, § 69, and the judgments cited in paragraph 185 above in relation to sub-paragraph (c); Bouamar v. Belgium, 29 February 1988, § 50, Series A no. 129, in relation to sub ‑ paragraph (d); Ashingdane, cited above, § 48, and Enhorn v. Sweden, no. 56529/00, § 35, ECHR 2005-I, in relation to sub-paragraph (e); and Chahal v. the United Kingdom, 15 November 1996, § 112, Reports 1996-V, and Saadi, cited above, §§ 77 and 79, in relation to sub-paragraph (f)), it usually does not neatly separate it from the other elements affecting the compatibility of the detention with Article 5 § 1.
300. Moreover, in such cases, if the Court is satisfied that the detention was for a purpose authorised under one sub-paragraph, it normally stops there, without checking whether it also pursued another aim (see, for example, Winterwerp, § 42 in fine; Brogan and Others, § 53; and K.-F. v. Germany, § 62, all cited above). Also, a single sub-paragraph is sufficient to legitimise the detention: when the respondent Government plead several, the Court examines each plea individually, on the understanding that it is sufficient for the detention to fall under one sub-paragraph to be compatible with Article 5 § 1 (see, for example, Engel and Others, §§ 67-69; Ciulla, §§ 35-40; Gatt, §§ 36 and 44-45; and Ostendorf, §§ 48, 76 and 89, all cited above).
301. On the other hand, if there is some manifest irregularity which, seen in context, shows that a deprivation of liberty was chiefly meant for an ulterior purpose – the applicants are detained on vague or fabricated charges to prevent or punish their participation in rallies (see Shimovolos v. Russia, no. 30194/09, §§ 52-57, 21 June 2011; Hakobyan and Others v. Armenia, no. 34320/04, § 123, 10 April 2012; Nemtsov, cited above, § 103; Gafgaz Mammadov v. Azerbaijan, no. 60259/11, §§ 107-08, 15 October 2015; Kasparov, cited above, §§ 50-56; Huseynli and Others v. Azerbaijan, nos. 67360/11 and 2 others, §§ 146-47, 11 February 2016; and Ibrahimov and Others v. Azerbaijan, nos. 69234/11 and 2 others, §§ 126-27, 11 February 2016); or the authorities manipulate procedures to prolong the detention for the same purpose (see Navalnyy and Yashin, cited above, §§ 92-95), or to delay having to obtain judicial authorisation for the detention, as required under domestic law (see Oleksiy Mykhaylovych Zakharkin v. Ukraine, no. 1727/04, §§ 86-88, 24 June 2010), or to proceed with a disguised extradition (see Bozano v. France, cited above, §§ 59-60; Nowak v. Ukraine, no. 60846/10, § 58, 31 March 2011; Azimov v. Russia, no. 67474/11, §§ 163 and 165, 18 April 2013; and Eshonkulov v. Russia, no. 68900/13, § 65, 15 January 2015); or the applicant is illegally abducted and surrendered to another State (see Iskandarov v. Russia, no. 17185/05, §§ 109-15 and 148-51, 23 September 2010); or the citizens of another State are indiscriminately arrested with a view to being deported en masse as a measure of reprisal (see Georgia v. Russia (I) [GC], no. 13255/07, §§ 185-86, ECHR 2014 (extracts)) – the Court finds an absence of a legitimate ground for the deprivation of liberty and accordingly a breach of Article 5 § 1.
302. That overview shows that although the legitimate aims and grounds set out in the restriction clauses in the Convention are exhaustive, they are also broadly defined and have been interpreted with a degree of flexibility. The real focus of the Court’s scrutiny has rather been on the ensuing and closely connected issue: whether the restriction is necessary or justified, that is, based on relevant and sufficient reasons and proportionate to the pursuit of the aims or grounds for which it is authorised. Those aims and grounds are the benchmarks against which necessity or justification is measured (see The Sunday Times (no. 1), cited above, § 59).
303. That manner of proceeding should guide the Court in its approach to the interpretation and application of Article 18 of the Convention in relation to situations in which a restriction pursues more than one purpose. Some of those purposes may be capable of being brought within the respective restriction clause, while others are not. In such situations, the mere presence of a purpose which does not fall within the respective restriction clause cannot of itself give rise to a breach of Article 18. There is a considerable difference between cases in which the prescribed purpose was the one that truly actuated the authorities, though they also wanted to gain some other advantage, and cases in which the prescribed purpose, while present, was in reality simply a cover enabling the authorities to attain an extraneous purpose, which was the overriding focus of their efforts. Holding that the presence of any other purpose by itself contravenes Article 18 would not do justice to that fundamental difference, and would be inconsistent with the object and purpose of Article 18, which is to prohibit the misuse of power. Indeed, it could mean that each time the Court excludes an aim or a ground pleaded by the Government under a substantive provision of the Convention, it must find a breach of Article 18, because the Government’s pleadings would be proof that the authorities pursued not only the purpose that the Court accepted as legitimate, but also another one.
304. For the same reason, a finding that the restriction pursues a purpose prescribed by the Convention does not necessarily rule out a breach of Article 18 either. Indeed, holding otherwise would strip that provision of its autonomous character.
305. The Court is therefore of the view that a restriction can be compatible with the substantive Convention provision which authorises it because it pursues an aim permissible under that provision, but still infringe Article 18 because it was chiefly meant for another purpose that is not prescribed by the Convention; in other words, if that other purpose was predominant. Conversely, if the prescribed purpose was the main one, the restriction does not run counter to Article 18 even if it also pursues another purpose.
306. This interpretation is consistent with the case-law of the Contracting States’ national courts and of the Court of Justice of the European Union (see paragraphs 156 and 168 above), which the Court can take into account when construing the Convention (see, mutatis mutandis, Demir and Baykara v. Turkey [GC], no. 34503/97, §§ 76-77, ECHR 2008, and Opuz v. Turkey, no. 33401/02, §§ 184-90, ECHR 2009). That is especially appropriate in this case, since the preparatory works to the Convention clearly show that Article 18 was meant to be its version of the administrative-law notion of misuse of power (see paragraph 154 above).
307. Which purpose is predominant in a given case depends on all the circumstances. In assessing that point, the Court will have regard to the nature and degree of reprehensibility of the alleged ulterior purpose, and bear in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law.
308. In continuing situations, it cannot be excluded that the assessment of which purpose was predominant may vary over time.
309. A perusal of the judgments cited in paragraphs 275, 276 and 279 above in the light of the above clarifications shows that what the Court really meant when it spoke of a stricter standard of proof under Article 18 was that it considered that a purpose prescribed by the Convention was invariably a cover for an ulterior one. But if the two points are clearly distinguished, the questions in relation to proof become simply how it can be established whether there was an ulterior purpose and whether it was the predominant one.
310. In doing this, the Court finds that it can and should adhere to its usual approach to proof rather than special rules (contrast the judgments cited in paragraphs 275 and 278 above, and see paragraph 316 below).
311. The first aspect of that approach, first set out in Ireland v. the United Kingdom (cited above, §§ 160-61) and more recently confirmed in Cyprus v. Turkey (cited above, §§ 112-13 and 115) and in Georgia v. Russia (I) (cited above, §§ 93 and 95), is that, as a general rule, the burden of proof is not borne by one or the other party because the Court examines all material before it irrespective of its origin, and because it can, if necessary, obtain material of its own motion. As early as in Artico v. Italy (13 May 1980, § 30, Series A no. 37) the Court stated that that was the general position not only in inter-State cases but also in cases deriving from individual applications. It has since then relied on the concept of burden of proof in certain particular contexts. On a number of occasions, it has recognised that a strict application of the principle affirmanti incumbit probatio, that is that the burden of proof in relation to an allegation lies on the party which makes it, is not possible, notably in instances when this has been justified by the specific evidentiary difficulties faced by the applicants (see, for example, Akdivar and Others, cited above, § 68, in relation to the exhaustion of domestic remedies; Baka, cited above, §§ 143 in fine and 149, and the examples cited therein, in relation to various substantive Articles of the Convention; and J.K. and Others v. Sweden [GC], no. 59166/12, §§ 91-98, ECHR 2016, in relation to the risk of ill-treatment in the destination country in removal cases under Article 3 of the Convention).
312. Indeed, although it relies on the evidence which the parties adduce spontaneously, the Court routinely of its own motion asks applicants or respondent Governments to provide material which can corroborate or refute the allegations made before it. If the respondent Government in question do not heed such a request, the Court cannot force them to comply with it, but can – if they do not duly account for their failure or refusal – draw inferences (see Janowiec and Others v. Russia [GC], nos. 55508/07 and 29520/09, § 202, ECHR 2013, with further references). It can also combine such inferences with contextual factors. Rule 44C § 1 of the Rules of Court gives it considerable leeway on that point.
313. The possibility for the Court to draw inferences from the respondent Government’s conduct in the proceedings before it is especially pertinent in situations – for instance those concerning people in the custody of the authorities – in which the respondent State alone has access to information capable of corroborating or refuting the applicant’s allegations (see, among other authorities, Timurtaş, cited above, § 66; Aktaş v. Turkey, no. 24351/94, § 272, ECHR 2003-V (extracts); and El-Masri v. the former Yugoslav Republic of Macedonia [GC], no. 39630/09, § 152, ECHR 2012). That possibility is likely to be of particular relevance in relation to allegations of ulterior purpose.
314. The second aspect of the Court’s approach is that the standard of proof before it is “beyond reasonable doubt”. That standard, however, is not co-extensive with that of the national legal systems which employ it. First, such proof can follow from the coexistence of sufficiently strong, clear and concordant inferences or similar unrebutted presumptions of fact. Secondly, the level of persuasion required to reach a conclusion is intrinsically linked to the specificity of the facts, the nature of the allegation made, and the Convention right at stake. The Court has consistently reiterated those points (see, among other authorities, Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 147, ECHR 2005-VII; El-Masri, cited above, § 151; and Hassan, cited above, § 48).
315. The third aspect of the Court’s approach, also set out as early as in Ireland v. the United Kingdom (cited above, § 210), is that the Court is free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it. In Nachova and Others (cited above, § 147), the Court further clarified that point, saying that when assessing evidence it is not bound by formulae and adopts the conclusions supported by the free evaluation of all evidence, including such inferences as may flow from the facts and the parties’ submissions. It has also stated that it is sensitive to any potential evidentiary difficulties encountered by a party. The Court has consistently adhered to that position, applying it to complaints under various Articles of the Convention (see Baka, cited above, § 143, with further references).
316. There is therefore no reason for the Court to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof to such allegations.
317. It must however be emphasised that circumstantial evidence in this context means information about the primary facts, or contextual facts or sequences of events which can form the basis for inferences about the primary facts (see Ilgar Mammadov, § 142, and Rasul Jafarov, § 158, both cited above). Reports or statements by international observers, non-governmental organisations or the media, or the decisions of other national or international courts are often taken into account to, in particular, shed light on the facts, or to corroborate findings made by the Court (see Baka, cited above, § 148).
(d) Application of the above approach
318. The Court has already found that the applicant’s arrest and pre-trial detention were carried out for a purpose prescribed under Article 5 § 1 (c) of the Convention (see paragraphs 188 and 206 above). It has not been argued that those measures constituted a restriction of any other rights of the applicant under the Convention. It follows that, even if it is established that the restriction of his right to liberty also pursued a purpose not prescribed by Article 5 § 1 (c), there will only be a breach of Article 18 if that other purpose was predominant.
319. The Court must thus determine whether that was so with respect to each of the two purposes cited by the applicant.
(i) The allegation that the applicant’s arrest and pre-trial detention were meant to remove him from the political scene
320. In view of the context in Georgia between 2012 and 2014, the timing of the applicant’s arrest and pre-trial detention, and the nature of the offences with which he was charged, it is understandable that there was a degree of suspicion that there was a political impetus behind the charges, even though the charges themselves were not overtly political. It is also true that, when it comes to allegations of ulterior purpose behind a criminal prosecution, it is hard to divorce the pre-trial detention from the criminal proceedings (see Lutsenko, § 108; Tymoshenko, § 298; and Tchankotadze, § 114, all cited above). Yet, there is no right as such under the Convention not to be criminally prosecuted (see I.J.L. and Others v. the United Kingdom, nos. 29522/95 and 2 others, § 101, ECHR 2000-IX; Patsuria v. Georgia, no. 30779/04, § 42, 6 November 2007; Mustafa (Abu Hamza) v. the United Kingdom (dec.), no. 31411/07, § 34, 18 January 2011; and International Bank for Commerce and Development AD and Others v. Bulgaria, no. 7031/05, § 129, 2 June 2016, as well as, mutatis mutandis, Artner v. Austria, 28 August 1992, § 21, Series A no. 242-A). The Court is thus chiefly concerned with the purpose underlying the pre-trial detention ordered by the Kutaisi City Court on 22 May 2013 and extended on 25 September and 7 October 2013.
321. The Court must therefore assess whether the factors which, according to the applicant, showed that that detention was principally meant to remove him from Georgia’s political scene are sufficient, considered alone or together, to establish that.
322. The factors deriving from the broader political context in which the criminal case was brought against the applicant are not sufficient proof in that respect.
323. Although the criminal prosecutions against a number of former ministers and other high officials from UNM could suggest a wish to eliminate or harm that party, they could equally reflect a desire to deal with alleged wrongdoings under a previous government whose members could not be held to account while in power. The mere fact that a politician is criminally prosecuted, even during an electoral campaign, is not automatically in breach of his or her right to run for office (see Uspaskich v. Lithuania, no. 14737/08, §§ 90-100, 20 December 2016). But more importantly, those prosecutions cannot in themselves lead to the conclusion that the courts which dealt with the question whether or not to place and keep the applicant in pre-trial detention were driven by such a purpose.
324. The same goes for the statements about the criminal cases against UNM figures by officials from the Georgian Dream Government (see paragraph 127 above, and compare with Tchankotadze, cited above, § 114). Such statements can only be seen as proof of ulterior purpose behind a judicial decision if there is evidence that the courts were not sufficiently independent from the executive authorities. No such evidence has been put forward in this case. On the contrary, it appears that in many cases against former UNM officials – including the case against the applicant’s co ‑ accused, Mr Z.T. – the courts turned down the prosecution’s requests to impose pre-trial detention, and that, as of September 2013, fourteen out of the thirty-five former high officials from UNM who had been charged with criminal offences were in pre-trial detention and fourteen others had been released on bail (see paragraphs 39, 131 and 134 above). Lastly, it should be noted that the Constitutional Court ruled in a manner favourable to Mr G.U. (see paragraph 150 above).
325. The manner in which the criminal proceedings against the applicant were conducted does not reveal a predominantly political purpose behind his pre-trial detention either.
326. The large number of witnesses whom the prosecution wished to call did not unduly prolong the trial and the applicant’s pre-trial detention. The trial started on 7 October 2013 and ended with the applicant’s conviction four months and eleven days later, on 17 February 2014, just before the expiry of the maximum period of nine months for which he could be kept in pre-trial detention (see paragraphs 50, 53 and 148 above). In the circumstances, that can hardly be regarded as an unreasonable amount of time.
327. The applicant insisted that the proceedings’ taking place in Kutaisi rather than Tbilisi suggested forum shopping by the prosecuting authorities, and thus an ulterior purpose. But, without going into the question whether that was in line with the Georgian rules of criminal procedure – a point not discussed by either party in their observations – the Court is not persuaded that this was redolent of forum shopping, for two reasons. First, although it placed the applicant in pre-trial detention, the Kutaisi City Court ordered the release on bail of his co-accused, Mr Z.T., who was also a prominent UNM figure. Secondly, on 30 May 2013, just eight days after that decision, the Tbilisi City Court also placed the applicant in pre-trial detention in relation to separate charges brought against him on 28 May 2013 (see paragraph 56 above).
328. It is true that four months later, during the pre-trial conference hearing on 25 September 2013, the Kutaisi City Court did not give any reasons for its decision to reject the applicant’s request for release, and that it did not properly examine his further request for release on 7 October 2013 (see paragraphs 49 and 51 above). But those shortcomings, while inconsistent with the requirements of Article 5 § 3 of the Convention (see paragraphs 233 and 234 above), are not in themselves proof of a political purpose behind that court’s decisions.
329. In sum, although the applicant’s pre-trial detention took place against the backdrop of bitter political antagonism between UNM and Georgian Dream, the various points cited by him, between which there is a degree of overlap, are not sufficient to show that the predominant purpose of that detention was to hinder his participation in Georgian politics rather than to ensure the proper conduct of the criminal proceedings against him.
330. It is true that courts in France, Greece and the United Kingdom turned down requests by the Georgian authorities for the extradition of two high-ranking former officials from UNM on the basis, inter alia, that the criminal prosecutions against them were politically motivated (see paragraphs 138-140 above). But, as noted in Khodorkovskiy (cited above, § 260), that does not necessarily determine the Court’s assessment of that point, for two reasons. First, the facts of the cases examined by those courts, while connected with those of the case before the Court owing to the fact that those cases also concerned allegations against other prominent UNM figures, were not identical. Secondly, the extradition courts were in essence assessing a future risk, whereas the Court is concerned with past facts; that colours their respective assessment of inconclusive contextual evidence.
331. The same considerations apply to the decisions of Interpol in relation to Mr Saakashvili and Mr D.K. (see paragraph 142 above).
332. In view of the foregoing, the Court does not find it established that the applicant’s pre-trial detention was chiefly meant to remove him from Georgia’s political scene.
(ii) The allegation that in December 2013 the authorities attempted to use the applicant’s pre-trial detention as leverage to obtain information from him
(α) Whether the allegation can be regarded as proven
333. The applicant’s allegations about his covert removal from his prison cell on 14 December 2013 were fully disputed by the Government. In such cases the Court is inevitably confronted with the same difficulties as those faced by a first-instance court (see El-Masri, cited above, § 151). It is sensitive to its subsidiary role and recognises that it must be cautious in taking on the role of a primary finder of fact. Yet, when faced with allegations of such a serious nature as those made by the applicant, who at the relevant time was in the authorities’ custody, it must apply a particularly thorough scrutiny, even if – as here – domestic investigations have taken place. In doing so, the Court may take into account the quality of those investigations and any possible flaws in the decision-making process (ibid., § 155).
334. The first point that needs to be emphasised is that the applicant’s account of the way in which he was covertly taken out of Prison no. 9 and to the meeting with the Chief Public Prosecutor was, as highlighted by the Chamber, detailed and specific, and remained consistent throughout (see paragraphs 60-63, 81 and 99 above, and, mutatis mutandis, El-Masri, cited above, § 156). The fact that the applicant only voiced his allegations three days after the said meeting does not weaken their credibility. Even assuming that he could have done so earlier, it is not surprising that, being in custody, he chose to make them in a way designed to achieve maximum publicity. The alleged meeting took place in the early hours on a Saturday and the applicant spoke publicly about it at the next public hearing in his case, which was the following Tuesday.
335. It is true that there is no direct evidence in support of his account. But it must be acknowledged that the applicant, who was in the custody of the authorities, was hardly in a position to provide such evidence. There are, however, several indirect elements which tend to corroborate his assertions.
336. First, there is some evidence that at the relevant time the authorities were pressuring other senior UNM figures to give evidence against their former colleagues (see paragraph 141 above).
337. Secondly, two witnesses interviewed during the investigation by the Chief Public Prosecutor’s Office, Mr G.Ts. and Mr I.P., stated that they had on several separate occasions heard Mr G.G., who was head of the special forces of the Ministry of Prisons at the relevant time, say that he had been one of those transporting the applicant to the meeting with the Chief Public Prosecutor (see paragraphs 108 and 109 above). It is true that Mr G.Ts.’s and Mr I.P.’s statements are hearsay and that their reliability may be open to question in view, in particular, of the positions of subordination to the applicant that the two of them had previously held (see paragraph 96 above). But in Mr G.Ts.’s case that factor was somewhat offset by the fact that the applicant had dismissed him from his post and had caused him to be detained (see paragraph 108 in fine above). Moreover, when seen against the backdrop of the fact that in December 2013 Mr G.G. was paid an extraordinarily high bonus, apparently on the basis of the decision of another official alleged to have played a central role in the events on 14 December 2013, Mr D.D. (see paragraph 93 above), Mr G.Ts.’s and Mr I.P.’s statements cannot be dismissed out of hand, even if such bonuses were also paid to other prison officials. The authorities do not appear to have attempted to verify those statements by objective means, for example by obtaining the video recording from the pre-trial hearing during which Mr G.G. was said to have spoken about his role in the events of 14 December 2013, or third-party evidence about Mr G.G.’s whereabouts in the early hours of 14 December 2013. They instead focused their efforts on interviewing Mr G.G., Mr I.M. (the other special-forces officer with whom he was alleged to have acted in concert), and their former colleagues in the special forces of the Ministry of Internal Affairs, with whom they had shared a cell in Prison no. 9 (see paragraphs 110 and 111 above). The fact that they denied their involvement during those interviews is hardly surprising.
338. Lastly, in May 2014 Ms L.M., a senior official at the Penitentiary Department, twice stated in interviews to the media that the applicant had been taken to a meeting with the Chief Public Prosecutor, and was shortly after that dismissed from her post by her superior, Mr D.D., who was also directly concerned by those allegations (see paragraph 95 above). Although she retracted her statements when questioned in relation to them during the ensuing criminal investigation, she does not appear to have provided a credible explanation for the discrepancy (see paragraph 117 above).
339. Further evidence in support of the applicant’s account is the statement of Mr K.T., who at the relevant time was detained in a cell in the applicant’s wing in Prison no. 9 (see paragraph 112 above). The Court is unable to place reliance on that statement however. Its reliability is somewhat weakened by Mr K.T.’s previous position of subordination to the applicant, and much further still by the fact that a physical examination carried out by the investigators showed that the prison corridor could not be observed from Mr K.T.’s cell because there was no gap in the door, by Mr K.T.’s reluctance to take part in the ensuing experiment which was supposed to test that point, and by the conflicting statements of all Mr K.T.’s cellmates (see paragraphs 113-115 above).
340. There were, on the other hand, several parts of the applicant’s account that lent themselves to verification of his allegations by objective means. Those leads were not explored however. For instance, no attempt was made to check whether the applicant could recognise Mr G.G. or Mr I.M., even though both of them were alleged by Mr G.Ts. and Mr I.P. to have been among those who had transported him from Prison no. 9 to the Penitentiary Department and the applicant stated that he would be able to recognise two of the men who had transported him (see paragraphs 81, 99, 108 and 109 above). Also, no attempt appears to have been made to check Mr G.G.’s and Mr I.M.’s mobile telephone records and cell tower data for the early hours of 14 December 2013, even though the applicant alleged that one of the men who had been in the car with him had had two mobile telephone conversations (see paragraph 81 above).
341. At the same time, the evidence put forward by the Government in support of their assertion that the applicant had not been removed from his cell and taken to the Chief Public Prosecutor is not sufficiently persuasive.
342. That evidence was gathered during the inquiry by the General Inspectorate of the Ministry of Prisons and the investigation by the Chief Public Prosecutor’s Office. The findings made in the course of those two procedures must, however, be approached with caution. The first took place against a backdrop of firm and immediate denials of the applicant’s allegations by the Prime Minister and the Minister of Prisons on 17 and 18 December 2013 (see paragraphs 68 and 70 above), and was carried out by officials of that Ministry. The second was only opened following the Chamber judgment in this case, and had a clear link with the Government’s request for a referral of the case to the Grand Chamber (see paragraph 97 above). Indeed, it was completed just twenty-five days before the Grand Chamber held its hearing (see paragraphs 7 and 125 above), and the material obtained during that investigation served as a basis for the Government’s submissions to the Grand Chamber.
343. Apart from those general considerations, there are a number of concrete elements which call the Government’s assertions into question.
344. Most importantly, there are several elements casting doubt on their claim that the footage from the surveillance cameras in Prison no. 9 and the Penitentiary Department building – which could have conclusively proved or disproved the applicant’s allegations – was automatically deleted after twenty-four hours. The Minister of Prisons does not appear to have been aware of that when speaking about the case on 18 December 2013 (see paragraph 70 in fine above). The deputy head of the General Inspectorate of the Ministry of Prisons was equally unaware of that when he requested the footage two days later, on 20 December 2013 (see paragraph 73 above). The deputy Minister of Prisons who had been in charge of reforming the surveillance system in Georgia’s prisons two years previously, in 2011, stated that the footage was kept for a month (see paragraph 77 above). Indeed, it is striking that surveillance footage from an establishment as prone to violence and accidents as a prison would be preserved for a shorter time than footage from road-traffic cameras – which was in this case still available twenty days after the alleged incident (see paragraph 84 above).
345. The exact method used to examine the footage from the private surveillance and road-traffic cameras remains unclear, and that footage was not made available to the applicant’s lawyer in spite of his requests (see paragraphs 79, 84, 107, 120 and 121 above).
346. No significant value can be attached to the statements of Mr D.D.’s deputy and those of the governor and deputy governor of Prison no. 9 and the prison officers working there (see paragraphs 82, 85, 86, 100-104, 106 and 116 above). First, both the people who gave the statements and the inspectors and investigators who took them were subordinates of the alleged perpetrators. Secondly, any admission by the statements’ authors of involvement in a covert removal of the applicant from his cell might have resulted in their own conduct being called into question.
347. The same goes for the statements of the former Chief Public Prosecutor, Mr O.P., and the former head of the Penitentiary Department, Mr D.D. (see paragraphs 118 and 119 above). Both of them clearly had a strong incentive to deny the allegations. The credibility of their statements is further weakened by the fact that they did not give them until during the course of the second investigation, in September 2016, nearly three years after the events, as no statements were taken from them during the initial inquiry (see paragraph 88 above).
348. The data showing that between approximately 1 a.m. and 1.25 a.m. on 14 December 2013 Mr O.P. was logged into the prosecuting authorities’ document-management system (see paragraph 124 above), assuming it to be authentic and attesting his presence in his office rather than in the Penitentiary Department building, does not negate the applicant’s allegations, given that the meeting between him and Mr O.P. was said to have taken place twenty to thirty minutes after 1.25 a.m. and that the distance between Mr O.P.’s office and the Penitentiary Department was apparently just a few hundred metres.
349. The Court cannot attach any significance to the absence of entries attesting the applicant’s removal from his cell and Prison no. 9 in the relevant prison logs (see paragraphs 83, 87 and 123 above). In view of the covert nature of the alleged operation, it can hardly be expected that it would have been recorded in any of those logs (see, mutatis mutandis, Al Nashiri v. Poland, no. 28761/11, § 411, 24 July 2014, and Husayn (Abu Zubaydah) v. Poland, no. 7511/13, § 411, 24 July 2014).
350. In view of the above considerations, the Court considers that it can draw inferences from the available material and the authorities’ conduct, and finds the applicant’s allegations concerning his covert removal from his prison cell sufficiently convincing and therefore proven.
(β) Whether the wish to obtain information from the applicant can be regarded as the predominant purpose of the restriction of his right to liberty
351. There is no evidence that until 14 December 2013, nearly seven months after the applicant had been remanded in custody, the authorities had attempted to use his pre-trial detention as a means to pressure him into providing information about Mr Zhvania’s death or Mr Saakashvili’s bank accounts. If the restriction of his right to liberty is thus seen as a whole, it is hard to regard the attempt to use it as a means to obtain such information as its chief purpose. But where the restriction of a Convention right amounts, as here, to a continuous situation, in order for it not to contravene Article 18, its chief purpose must remain the one prescribed by the Convention throughout its duration, and it cannot be excluded that the initial purpose will be supplanted by another one as time goes by (see paragraph 308 above).
352. There are several elements which lead the Court to find that this was so in this case. To begin with, by the time the applicant was pressured to provide information about Mr Zhvania’s death and Mr Saakashvili’s bank accounts, the reasons for keeping him in pre-trial detention appear to have receded, which led the Court to find a breach of Article 5 § 3 of the Convention in relation to the period from 25 September 2013 onwards, which was shortly before the incident of December 2013 (see paragraphs 233-235 above). Then, at that time, December 2013, Mr Saakashvili, who has since then become the target of several criminal investigations, had just left Georgia following the end of his term of office as President (see paragraphs 13 and 126 above). For its part, the investigation into Mr Zhvania’s death, which had been renewed in late 2012, had apparently not made significant progress (see paragraph 61 above). It is clear that both topics were of considerable importance for the authorities. The Government’s statement at the hearing before the Grand Chamber that there was still a “huge question” for the applicant to answer in relation to Mr Zhvania’s death is particularly telling in that regard (see paragraph 61 above). At the same time, the prosecuting authorities had the power to drop all charges against the applicant at any point without judicial control, with the consequence that the courts would have had to discontinue the criminal proceedings against him (see paragraph 153 above), and thus cause him to be released from pre-trial detention, as promised to him by the Chief Public Prosecutor, Mr O.P., if he provided the requested information. The weight which the authorities attached to the matter is also apparent from the way in which the entire incident on 14 December 2013 unfolded and was later commented upon and investigated. The applicant was taken to meet with Mr O.P., who had been appointed to the post three weeks previously (see paragraph 60 above), in a covert and apparently irregular manner, in a clandestine operation carried out in the middle of the night. The authorities’ initial reaction to the applicant’s allegations in that respect was to issue firm denials (see paragraphs 68 and 70 above), and the ensuing inquiry and investigation were, as already noted, marred by a series of omissions from which it can be inferred that the authorities were eager that the matter should not come to light. Thus, the main protagonists, Mr O.P. and Mr D.D., were not interviewed during the inquiry but only in the course of the investigation, in September 2016, nearly three years after the events, and the crucial evidence in the case – the footage from the prison surveillance cameras – was not recovered.
353. Bearing in mind all the circumstances of the case, the Court is satisfied that during the pre-trial detention, which is to be seen as a continuing situation, the predominant purpose of the restriction of the applicant’s liberty changed. While in the beginning it was the investigation of offences based on a reasonable suspicion, later on it became to obtain information about Mr Zhvania’s death and Mr Saakashvili’s bank accounts, as shown by the incident on 14 December 2013.
354. There has therefore been a breach of Article 18 of the Convention taken in conjunction with Article 5 § 1.
VI. APPLICATION OF ARTICLE 41 OF THE CONVENTION
355. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
356. Before the Chamber, the applicant claimed 15,000 euros (EUR) in respect of non-pecuniary damage.
357. The Chamber found that the applicant had suffered distress and frustration on account of the breaches of Article 5 § 3 and Article 18 of the Convention, and that those breaches could not be made good solely by its findings. Making its assessment on an equitable basis, it awarded the applicant EUR 4,000 in respect of non-pecuniary damage.
358. In the Grand Chamber proceedings the applicant was advised that his claim under that head remained as originally submitted, and he expressed no wish to amend it.
359. The Government submitted that the applicant’s claim was exorbitant, and noted that in Gusinskiy (cited above, § 84) the Court had held that the finding of a violation constituted sufficient just satisfaction.
360. The Court considers that the applicant must have suffered a certain amount of stress and anxiety as a result of the violations of Article 5 § 3 and Article 18 of the Convention in his case. Deciding on an equitable basis, it awards him EUR 4,000 in respect of that.
361. Before the Chamber, the applicant claimed 39,390 United States dollars (USD) in respect of Mr Kakhidze’s fees for 202 hours of work on the case, at USD 195 per hour; 4,350 pounds sterling (GBP) in respect of Mr Leach’s fees for 29 hours of work on the case, at GBP 150 per hour; and USD 720 and GBP 90 in respect of translation and clerical expenses in, respectively, Georgia and the United Kingdom. In support of that claim, the applicant submitted time-sheets for Mr Kakhidze and Mr Leach and two schedules of administrative expenses.
362. The Chamber noted that no copies of legal-service contracts, invoices, vouchers or any other supporting financial documents had been submitted. It nevertheless found it reasonable to award EUR 8,000 in respect of Mr Kakhidze’s and Mr Leach’s fees, but rejected the claim in respect of other expenses, citing the absence of any documents in support.
2. The applicant’s claims in the Grand Chamber proceedings
363. Following the referral of the case, the applicant was advised that his claim remained as originally submitted, but that he could amend it to take account of the Grand Chamber proceedings.
364. He sought an additional USD 4,251 in respect of the Mr Kakhidze’s fees for 21.8 of hours of work on the case, at USD 195 per hour, and GBP 10,050 in respect of the fees of Mr Leach and Ms Sawyer, from the European Human Rights Advocacy Centre at Middlesex University (“EHRAC”), for sixty-seven hours of work on the written phase of the Grand Chamber proceedings, at GBP 150 per hour for each of them. In support of that claim, the applicant submitted time-sheets detailing the number of hours spent by Mr Kakhidze, Mr Leach and Ms Sawyer on the case. Mr Kakhidze’s time-sheet mentioned an agreement between his law firm, BGI Legal, and the applicant, according to which payment of the fees would be subject to the Court’s award, and mentioned that EHRAC had joined BGI Legal on the case in December 2014. The agreement itself, however, was not submitted, and neither was an agreement between BGI Legal and EHRAC or the applicant and EHRAC. Mr Leach’s and Ms Sawyer’s time-sheets made no reference to payment arrangements between them and the applicant.
365. The applicant additionally sought GBP 15,375 in respect of Mr Leach’s and Ms Sawyer’s fees for respectively forty-four and a half and fifty-eight hours spent in preparing for the hearing before the Grand Chamber and attending it, at GBP 150 per hour for each of them. The applicant also claimed GBP 150 in respect of five hours of clerical work on the case by an EHRAC officer; GBP 31.61 for stationery; and GBP 584.80 and EUR 333 for Mr Leach’s and Ms Sawyer’s travel and subsistence expenses in connection with their attendance at the hearing. In support of that claim, the applicant submitted time-sheets for Mr Leach and Ms Sawyer, train tickets and taxi receipts for their journey to Strasbourg, hotel invoices for their stay in Strasbourg the night before the hearing, a restaurant receipt for the evening before the hearing, and an invoice for six lever-arch files bought by Middlesex University. The applicant requested that all those items be made payable directly to EHRAC.
3. The Government’s comments on the claims
366. The Government submitted that the applicant had not produced any evidence, such as an agreement between himself and his representatives or receipts, to show that he had actually paid or was legally bound to pay them any fees for their work. The same went for the expenses incurred by the representatives in connection with the case. The claims suggested that some of those items had been borne by EHRAC, and nothing showed that the applicant was under an obligation to reimburse them.
367. With respect to the Chamber proceedings, the Government submitted that there was no proof that Mr Leach had done any work on them. As for Mr Kakhidze, both his hourly rate and the number of hours he was said to have spent on the case were excessive.
368. With respect to the Grand Chamber proceedings, the Government queried the need for the services of more than one representative. They also queried the hourly rates charged by the applicant’s representatives and the number of hours they said they had spent on the case. The Government went on to say that since the authority enabling Ms Sawyer to represent the applicant had only been given on 28 February 2017, all work done by her before that date was to be discounted.
369. With respect to the hearing, the Government queried the need for additional representatives in addition to Mr Kakhidze. They also submitted that the time said to have been spent by Mr Leach and Ms Sawyer on preparing their oral submissions on behalf of the applicant was out of proportion to the limited complexity of the case. In any event, those oral submissions had been largely identical to the written submissions that they had both made previously on behalf of the applicant. They could not therefore justify the large number of hours allegedly spent on preparing them, which was even higher than the number of hours claimed in respect of the written submissions.
370. According to the Court’s settled case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum (see, as a recent authority, Buzadji, cited above, § 130).
371. A representative’s fees are actually incurred if the applicant has paid them or is liable to pay them (see Luedicke, Belkacem and Koç v. Germany (Article 50), 10 March 1980, § 15, Series A no. 36; Artico, cited above, § 40; and Airey v. Ireland (Article 50), 6 February 1981, § 13, Series A no. 41). Accordingly, the fees of a representative who has acted free of charge are not actually incurred (see McCann and Others v. the United Kingdom, 27 September 1995, § 221, Series A no. 324). The opposite is the case with respect to the fees of a representative who, without waiving them, has simply taken no steps to pursue their payment or has deferred it (see X v. the United Kingdom (Article 50), 18 October 1982, § 24, Series A no. 55, and Pakelli v. Germany, 25 April 1983, § 47, Series A no. 64). The fees payable to a representative under a conditional-fee agreement are actually incurred only if that agreement is enforceable in the respective jurisdiction (see Dudgeon v. the United Kingdom (Article 50), 24 February 1983, § 22, Series A no. 59; Kamasinski, cited above, § 115; Gentilhomme, Schaff-Benhadji and Zerouki v. France, nos. 48205/99 and 2 others, § 27, 14 May 2002; Pshenichnyy v. Russia, no. 30422/03, § 38, 14 February 2008; Saghatelyan v. Armenia, no. 7984/06, § 62, 20 October 2015; and Ivanova and Cherkezov v. Bulgaria, no. 46577/15, § 89, 21 April 2016).
372. In this case the applicant did not submit documents showing that he had paid or was under a legal obligation to pay the fees charged by his Georgian or British representatives or the expenses incurred by them, whether in respect of the Chamber or the Grand Chamber proceedings (see Luedicke, Belkacem and Koç, cited above, § 15; Artico, cited above, § 40; Airey (Article 50), cited above, § 13; and Campbell and Cosans v. the United Kingdom (Article 50), 22 March 1983, § 14 (a), Series A no. 60). In the absence of such documents, the Court is not in a position to assess the points mentioned in the previous paragraph. It therefore finds no basis on which to accept that the costs and expenses claimed by the applicant have actually been incurred by him.
373. It follows that the claim must be rejected.
374. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
1. Dismisses, unanimously, the Government’s objection of non-exhaustion of domestic remedies with respect to part of the complaint under Article 5 § 3 of the Convention;