{"id":2514,"date":"2019-04-28T14:32:48","date_gmt":"2019-04-28T14:32:48","guid":{"rendered":"https:\/\/laweuro.com\/?p=2514"},"modified":"2019-04-28T17:15:16","modified_gmt":"2019-04-28T17:15:16","slug":"case-of-kereselidze-v-georgia","status":"publish","type":"post","link":"https:\/\/laweuro.com\/?p=2514","title":{"rendered":"CASE OF KERESELIDZE v. GEORGIA (European Court of Human Rights)"},"content":{"rendered":"

FIFTH SECTION
\nCASE OF KERESELIDZE v. GEORGIA
\n(Application no. 39718\/09)<\/em><\/p>\n

JUDGMENT
\nSTRASBOURG
\n28 March 2019<\/p>\n

This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.<\/p>\n

In the case of Kereselidze v. Georgia,<\/strong><\/p>\n

The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:<\/p>\n

Angelika Nu\u00dfberger, President,
\nYonkoGrozev,
\nAndr\u00e9 Potocki,
\nS\u00edofra O\u2019Leary,
\nM\u0101rti\u0146\u0161Mits,
\nL\u04d9tifH\u00fcseynov,
\nLadoChanturia, judges,
\nand Milan Bla\u0161ko, DeputySection Registrar,<\/p>\n

Having deliberated in private on 5 March 2019,<\/p>\n

Delivers the following judgment, which was adopted on that date:<\/p>\n

PROCEDURE<\/strong><\/p>\n

1.\u00a0\u00a0The case originated in an application (no. 39718\/09) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by a Georgian national, Mr IrakliKereselidze (\u201cthe applicant\u201d), on 27 July 2009.<\/p>\n

2.\u00a0\u00a0The applicant was represented by Ms\u00a0M. Japaridze and Mr\u00a0D.\u00a0Khachidze, lawyers practising in Tbilisi. The Georgian Government (\u201cthe Government\u201d) were represented by their Agent, Mr\u00a0L.\u00a0Meskhoradze, of the Ministry of Justice.<\/p>\n

3.\u00a0\u00a0The applicant alleged, under Article\u00a05 \u00a7\u00a01 and Article\u00a06 \u00a7\u00a01 of the Convention, that a rectification of an appellate court\u2019s judgment in respect of the starting date of his cumulative sentence had prolonged his imprisonment, amounting to an unlawful detention, and that he had been deprived of the opportunity to make representations in respect of the rectification procedure before the appellate court. The applicant further complained, under Article\u00a013 of the Convention, of the lack of an effective domestic remedy for his grievances.<\/p>\n

4.\u00a0\u00a0On 22 September 2014 notice of the complaints concerning Article\u00a05 \u00a7\u00a01, Article\u00a06 \u00a7\u00a01 and Article 13 was given to the Government and the remainder of the application was declared inadmissiblepursuant to Rule\u00a054 \u00a7\u00a03 of the Rules of Court.<\/p>\n

THE FACTS<\/strong><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/p>\n

5.\u00a0\u00a0The applicant was born in 1975 and, as can be seen from the case materials, is currently serving a sentence in a penal institution (see paragraph\u00a020 below).<\/p>\n

6.\u00a0\u00a0On 24 May 1996 the applicant was convicted of aggravated double murder and other offences. He was sentenced to the death penalty, which was subsequently commuted to twenty years\u2019 imprisonment in 1997 (\u201cthe first conviction\u201d). The sentence started to run from the date of the applicant\u2019s arrest on 24 August 1995 and was due to expire on 24\u00a0August 2015.<\/p>\n

7.\u00a0\u00a0On 29 March 2002 the applicant attempted to escape.<\/p>\n

8.\u00a0\u00a0On 12 April 2006 after a series of decisions and the remittal of the case to the investigating authorities, the Tbilisi City Court convicted the applicant of attempted escape and the illicit procurement of an official document. He was sentenced to four years and six months\u2019 imprisonment (\u201cthe second conviction\u201d). The first-instance court added the applicant\u2019s outstanding sentence for the first conviction to the subsequent sentence, resulting in a total cumulative sentence of thirteen years and six months. The court indicated that the cumulative sentence would start to run from 29\u00a0March 2002, the date of commission of the second offence. It was due to expire on 29\u00a0September 2015.<\/p>\n

9.\u00a0\u00a0On 29 December 2006 the provision of the Criminal Code regulating the imposition of cumulative sentences was amended. Article\u00a059 of the amended law provided that, as regards accumulated sentences, the final sentence imposed should be calculated from the imposition of the later sentence. The amended legislation did not explicitly address the question of its retroactive effect (see paragraph\u00a021 below).<\/p>\n

10.\u00a0\u00a0On 20 April 2007, in a different set of proceedings, instituted by the applicant to have legislative amendments reducing the maximum length of a sentence for aggravated murder applied to his first conviction, the Supreme Court reduced the applicant\u2019s sentence for the first conviction to fifteen years\u2019 imprisonment. When doing so, the Supreme Court did not refer either to the starting date of the sentence or the applicant\u2019s second conviction.<\/p>\n

11.\u00a0\u00a0On 20\u00a0February 2008 the Supreme Court rectified its decision of 20\u00a0April 2007 based on the applicant\u2019s request to that end, stating that the outstanding sentence for the applicant\u2019s first conviction and the sentence for the second conviction were to be cumulative, and that the cumulative sentence of eight years and six months had to start running from 29\u00a0March 2002, namely the date of commission of the second offence rather than the date of the imposition of the later sentence, which was 12\u00a0April 2006. Appellate proceedings concerning the second conviction were still pending when the Supreme Court adopted the two decisions. Based on the decision of the Supreme Court of 20 February 2008, the applicant\u2019s sentence would have expired on 29\u00a0September 2010.<\/p>\n

12.\u00a0\u00a0On 3\u00a0December 2008, without taking note of the Supreme Court decisions of 20\u00a0April 2007 and 20\u00a0February 2008 (see paragraphs 10-11 above), the Tbilisi Court of Appeal upheld the applicant\u2019s second conviction and ruled that he had to serve a cumulative sentence of thirteen years and six months which had started to run on 29\u00a0March 2002 which was again, the date of the commission of the second offence. That sentence would have expired on 29\u00a0September 2015.<\/p>\n

13.\u00a0\u00a0On an unspecified date the applicant lodged an appeal on points of law against the appellate court\u2019s judgment of 3\u00a0December 2008. He requested a reduction in the sentence imposed for his second conviction and the reduction of the cumulative sentence by five years in view of the Supreme Court\u2019s decisions of 20\u00a0April 2007 and 20\u00a0February 2008 to that end (see paragraphs 10-11 above). The case file and the applicant\u2019s appeal on points of law were sent to the Supreme Court on 21\u00a0January 2009.<\/p>\n

14.\u00a0\u00a0On 3 April 2009, while the applicant\u2019s appeal on points of law was pending before the Supreme Court, the Tbilisi Court of Appeal adopted, by means of a written procedure and without the parties\u2019 involvement, a decision rectifying an error in its judgment of 3\u00a0December 2008 (\u201cthe rectified appellate decision\u201d). Relying on Article\u00a0615 of the Code of Criminal Procedure (\u201cthe CCP\u201d \u2013 see paragraph\u00a024 below), the decision corrected the starting date of the cumulative sentence to 12\u00a0April 2006 \u2013 the date on which the first-instance court\u2019s decision concerning the second conviction had been adopted. The appellate court did not elaborate on its decision except for noting that the judgment of 3\u00a0December 2008 had contained \u201can inaccuracy\u201d regarding the starting date of the sentence. Based on that new starting date, the applicant\u2019s sentence was due to expire on 12\u00a0October 2019. As shown by the case files, the decision of 3\u00a0April 2009 was served on the applicant on 16\u00a0April 2009.<\/p>\n

15.\u00a0\u00a0On 7\u00a0April 2009 the Supreme Court issued a reasoned decision, without holding a hearing, and granted the applicant\u2019s appeal on points of law. It noted that the appellate court had failed to take account of the reduction of the applicant\u2019s first sentence by the Supreme Court on 20\u00a0April 2007 (see paragraph\u00a010 above). The Supreme Court further reduced the sentence for the applicant\u2019s second conviction to three years. It took note of the rectified appellate decision of 3\u00a0April 2009 (see paragraph 14 above) and stated that the re-calculated cumulative sentence of seven years\u2019 imprisonment had started to run on 12\u00a0April 2006, namely the date of the imposition of the sentence for the second offence. That term was due to expire on 12\u00a0April 2013.<\/p>\n

16.\u00a0\u00a0On 22 April 2009 the applicant requested the rectification of the decision of the Supreme Court of 7 April 2009 in respect of the starting date of his cumulative sentence. He noted that it was only by means of the Supreme Court\u2019s final decision that he had learned about the rectified appellate decision of 3\u00a0April 2009. He submitted that the rectified appellate decision had been contrary to the final decision of the Supreme Court dated 20\u00a0February 2008 which had set a different starting date for his cumulative sentence, and would have resulted in a release date of 29\u00a0September 2010. He further submitted that the rectification had lacked any legal basis and had gone beyond the scope of Article\u00a0615 of the CCP, as it had substantially affected the duration of his sentence. Maintaining that his appeal had been the sole basis for the appellate court\u2019s judgment of 3\u00a0December 2008, the applicant submitted that the rectified appellate decision, made by that very court, had been in violation of Article\u00a0540 \u00a7\u00a01 of the CCP which had provided a guarantee for an appellant against a worsening of his or her position in the proceedings in the absence of an appeal from the prosecuting authorities. The applicant further indicated that, in addition to the foregoing arguments, taking into account the reduction of his sentence by the Supreme Court on 7\u00a0April 2009, his sentence should have expired on 29\u00a0March 2009 and that accordingly he was to be released from prison immediately.<\/p>\n

17.\u00a0\u00a0On 24\u00a0April 2009 the Head of the Registry of the Chamber of Criminal Cases of the Supreme Court replied to the applicant, stating that the rectified appellate decision of 3 April 2009 had constituted an integral part of the appellate judgment of 3 December 2008. Therefore, the Supreme Court was not in a position to address the applicant\u2019s complaint.<\/p>\n

18.\u00a0\u00a0On 11 May 2009, relying on Article\u00a0553 of the CCP (see paragraph\u00a022 below), the applicant lodged an interlocutory appeal on points of law against the rectified appellate decision. The applicant reiterated the arguments set out in his rectification request of 22\u00a0April 2009 (see paragraph 16 above).<\/p>\n

19.\u00a0\u00a0On 15 June 2009 an assistant to the Chairman of the Tbilisi Court of Appeal replied to the applicant\u2019s appeal of 11\u00a0May 2009 (see paragraph\u00a018 above), noting that the Tbilisi Court of Appeal had adopted a judgment on 3\u00a0December 2008 and subsequently rectified on 3\u00a0April 2009 an error regarding the starting date of the sentence. It was further noted that, in its decision of 7 April 2009, the Supreme Court had accepted the rectification of the inaccuracy by the appellate court regarding the starting date of the sentence and that the rectified appellate decision had therefore been left unchanged. Accordingly, the response concluded, the interlocutory appeal on points of law against the decision of 3\u00a0April 2009 could not be accepted for consideration.<\/p>\n

20.\u00a0\u00a0The applicant was released from prison on 27\u00a0January 2013 \u2013 earlier than the anticipated release date of 12\u00a0April 2013 \u2013 based on an Amnesty Act. As the applicant\u2019s submissions before the Court show, on 6\u00a0February 2017 he was arrested on charges of aggravated fraud and repeated forgery of official documents. On 18\u00a0October 2017 the applicant was sentenced, at first instance, to eight years\u2019 imprisonment. This set of proceedings against the applicant is not the subject of the present application.<\/p>\n

II.\u00a0\u00a0RELEVANT DOMESTIC LAW AND PRACTICE<\/p>\n

21.\u00a0\u00a0Article 60 of the Criminal Code (1999), as it stood when the first-instance court initially applied the sentence in the context of the applicant\u2019s second conviction and in so far as relevant, provided as follows:<\/p>\n

\u201c1. In the case of cumulative sentences, the sentencing court shall add to the latest sentence the outstanding prior sentence in part or in its totality …\u201d<\/p>\n

As of 29 December 2006, Article\u00a059 of the Criminal Code regulated the imposition of cumulative sentences. That provision provided as follows:<\/p>\n

\u201c… 2. In the case of cumulative sentences, the sentencing court shall add to the latest sentence the outstanding prior sentence in its totality …<\/p>\n

5. The final sentence imposed as a result of the accumulation of sentences shall be calculated from the date of the [imposition of the] later sentence …\u201d<\/p>\n

22.\u00a0\u00a0Under Article 553 of the Code of Criminal Procedure (1998) (\u201cthe CCP\u201d), in force at the material time, an interlocutory appeal on points of law could be lodged against any final decision of an appellate court, except for a conviction, if the appellant regarded it as having been taken in violation of the law.<\/p>\n

23.\u00a0\u00a0Article 540 \u00a7\u00a01 of the CCP provided for a prohibition of any change to an appellant\u2019s circumstances for the worse (reformatio in peius)in the following terms:<\/p>\n

\u201can appellate court may not deliver a judgment of conviction instead of a judgment of acquittal, apply a stricter provision of the Criminal Code, impose a heavier penalty, increase the value of a civil claim, or adopt any other decision that is more unfavourable to the accused if a review of the case is carried out based on an appeal lodged by an accused, his or her lawyer or legal representative, by a civil respondent or his or her representative, in the absence of an appeal lodged by a prosecutor, a victim, or any other person representing the prosecution.\u201d<\/p>\n

24.\u00a0\u00a0Article 615 of the CCP, in so far as relevant, provided as follows:<\/p>\n

\u201cThe adjudicating court may rectify an ambiguity [or] inaccuracy present in a decision which shall not result in the decision being overturned or changed; in particular [it may]:<\/p>\n

…<\/p>\n

e) make other clarifications to a decision that do not affect the court\u2019s conclusion regarding the classification of the action of the convicted person, the sentencing measure, or the civil action and the determination of its value.\u201d<\/p>\n

25.\u00a0\u00a0According to the Supreme Court, in a judgment handed down over two years after the relevant amendment of the Criminal Code, Article\u00a059 of the Criminal Code provided for cumulative sentencing, and could have retroactive effect to apply to circumstances that had arisen before the amendments of 29\u00a0December 2006 (see Case no.\u00a02\u10d9\u201127-I-08, Chamber of Criminal Cases, 20\u00a0January 2009). It noted that \u201cwhile Article\u00a060 of the Criminal Code was removed from the Code as a result of the legislative amendments of 29\u00a0December 2006, its provisions were not abolished, but integrated under Article\u00a059 of the Code which, prior to those amendments, had regulated the imposition of a sentence in relation to cumulative crimes\u201d. The Supreme Court further specified that at the time of imposing a new sentence \u201cthe sentencing court shall add to the latest sentence the outstanding prior sentence in its totality. In such cases, the cumulative sentence will start to run from the date of the imposition of the latest sentence\u201d (ibid).<\/p>\n

THE LAW<\/strong><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 6 \u00a7 1 OF THE CONVENTION<\/p>\n

26.\u00a0\u00a0The applicant complained that he had been denied access to a court as the rectification procedure regarding the starting date of his cumulative sentence had been conducted without his participation. He relied on Article\u00a06 \u00a7 1 of the Convention, which, in so far as relevant, reads:<\/p>\n

\u201cIn the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing … by [a] … tribunal …\u201d<\/p>\n

27.\u00a0\u00a0The Government contested that argument.<\/p>\n

A.\u00a0\u00a0The parties\u2019 submissions<\/strong><\/p>\n

28.\u00a0\u00a0The Government submitted that the rectification procedure had been limited in scope and had not concerned the determination of the applicant\u2019s criminal responsibility or his sentence. It had been aimed merely at correcting an obvious error in the respective judgments regarding the starting date of the applicant\u2019s cumulative sentence. Therefore, the applicant\u2019s arguments could not have influenced the decision on rectification.<\/p>\n

29.\u00a0\u00a0The applicant submitted that, considering the substantial impact the change to the starting date had had upon the duration of his sentence, the appellate court\u2019s decision of 3 April 2009 went beyond the formal scope of a rectification. He further submitted that, taking into account the existence of earlier court decisions specifically setting the starting date of his cumulative sentence as the date of the commission of the latest crime, the rectification had not concerned obvious errors in those decisions and had accordingly required an adversarial argument before a court. Therefore, the lack of an opportunity for the applicant to make representations in respect ofthe rectification procedure before the appellate court had been in violation of Article\u00a06\u00a0\u00a7 1 of the Convention.<\/p>\n

B.\u00a0\u00a0The Court\u2019s assessment<\/strong><\/p>\n

1.\u00a0\u00a0Admissibility<\/em><\/p>\n

30.\u00a0\u00a0The Court reiterates that in criminal matters Article\u00a06 \u00a7\u00a01 of the Convention covers the whole of the proceedings in question, including any appeal proceedings and the determination of sentence (see, among other authorities, Eckle v.\u00a0Germany, 15\u00a0July 1982, \u00a7\u00a7\u00a076-77, Series A no.\u00a051; T.\u00a0v.\u00a0the United Kingdom [GC], no. 24724\/94, \u00a7\u00a0108, 16\u00a0December 1999, and AleksandrDementyevv. Russia, no. 43095\/05, \u00a7\u00a023, 28\u00a0November 2013).<\/p>\n

31.\u00a0\u00a0In the instant case the rectification procedure as set out in the domestic legislation was explicitly limited in scope, did not envisage the participation of the parties through adversarial argument, and aimed at correcting ambiguities and inaccuracies in judgments that would not affect the relevant court\u2019s conclusion regarding the classification of the action of the convicted person or the sentencing measure (see paragraph 24 above). Therefore, the rectification procedure, as set out in the law, was of an explicitly limited nature (see, mutatis mutandis, Nurmagomedov v.\u00a0Russia, no.\u00a030138\/02, \u00a7\u00a048, 7\u00a0June 2007).<\/p>\n

32.\u00a0\u00a0Nevertheless, the Court is mindful that the Convention is intended to guarantee rights that are practical and effective and not theoretical and illusory, and that in determining Convention rights one must frequently look beyond appearances and concentrate on the realities of the situation (see, among other authorities, Dvorski v. Croatia [GC], no. 25703\/11, \u00a7\u00a082, ECHR 2015, with further references). In this connection the Court cannot overlook the fact that the rectification of the applicant\u2019s conviction by the appellate court, in respect of the starting date of his cumulative sentence, had an impact on the applicant\u2019s anticipated release date. Furthermore, considering the applicant\u2019s reasoned arguments raised at domestic level (see paragraph\u00a016 above), the question of whether the error made in the earlier judgments and decisions had been sufficiently obvious and had been capable of being remedied by means of the rectification procedure appears, at the very least, to have been open to interpretation. Therefore, the rectification procedure, as applied in the applicant\u2019s case, was of such a nature as to affect the determination of the applicant\u2019s sentence as part of the criminal proceedings pending against him (contrast, Nurmagomedov, citedabove, \u00a7\u00a7\u00a044-51).<\/p>\n

33.\u00a0\u00a0It follows, in the specific circumstances of the present case, that Article\u00a06 \u00a7\u00a01 of the Convention is applicable under its criminal head to the rectification procedure in so far as it changed the starting date of the applicant\u2019s cumulative sentence and thereby affected the overall length of his imprisonment.<\/p>\n

34.\u00a0\u00a0The Court further notes that this complaint is not manifestly ill\u2011founded within the meaning of Article 35 \u00a7 3 (a) of the Convention or inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

2.\u00a0\u00a0Merits<\/em><\/p>\n

35.\u00a0\u00a0The Court takes note of the applicant\u2019s complaint that he had been denied access to a court by not being able to have his position against the rectification procedure, as implemented in his case, considered by domestic courts (see paragraphs\u00a026 and\u00a029 above). The question put by the Court to the Government in that respect was whether the manner in which the second set of proceedings had been conducted against the applicant had rendered those proceedings unfair within the meaning of Article 6 \u00a7\u00a01 of the Convention. In that connection, the applicant\u2019s complaint may be approached from the angle of the right of access to a court (see paragraph\u00a036 below) or from the perspective of the right to an oral hearing (see paragraph\u00a037 below), the former being a precondition and the latter an inherent aspect of the right to a fair trial guaranteed by Article 6 \u00a7\u00a01 of the Convention.<\/p>\n

36.\u00a0\u00a0The Court reiterates that the \u201cright to a tribunal\u201d under Article 6 \u00a7\u00a01 of the Convention, of which the right of access is one aspect (see Golder v.\u00a0the United Kingdom, 21\u00a0February 1975, \u00a7\u00a036, Series A no.\u00a018), is not absolute; it is subject to limitations permitted by implication, in particular where the conditions of admissibility of an appeal are concerned. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of domestic rules of a procedural nature. The Court\u2019s role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention (see Majski v. Croatia (no. 2), no.\u00a016924\/08, \u00a7\u00a068, 19\u00a0July 2011). However, limitations to a person\u2019s access to court must pursue a legitimate aim and be proportionate and must not restrict access to court in such a way or to such an extent that the very essence of the right is impaired (see Marc Brauerv. Germany, no.\u00a024062\/13, \u00a7\u00a034, 1\u00a0September 2016, with further references).<\/p>\n

37.\u00a0\u00a0The Court further notes that an oral, and public, hearing constitutes a fundamental principle enshrined in Article 6 \u00a7\u00a01 (see Jussila v. Finland [GC], no. 73053\/01, \u00a7\u00a040, ECHR 2006\u2011XIV). The obligation to hold a hearing is not absolute, and the attendance of the defendant in person does not necessarily take on the same significance for the appeal hearing (see Timergaliyev v. Russia, no. 40631\/02, \u00a7\u00a050, 14\u00a0October 2008). In assessing the matter, regard must be had to,\u00a0inter alia, the special features of the proceedings involved and the manner in which the defence\u2019s interests are presented and protected before the appellate court, particularly in the light of the issues to be decided by it and their importance for the appellant (see Timergaliyev, cited above, \u00a7\u00a050, with further references; see also Jussila, cited above, \u00a7\u00a041).<\/p>\n

38.\u00a0\u00a0Turning to the circumstances of the present case, the Court has already found that the rectification of the applicant\u2019s conviction in respect of the starting date of his cumulative sentence had an impact on the applicant\u2019s release date (see paragraph 32 above). In that connection, the applicant\u2019s arguments regarding the particular circumstances of his case \u2013 such as the existence of an earlier decision of the Supreme Court, concerning the starting date of his cumulative sentence (a decision which had never been explicitly set aside), whether the appellate court had exceeded the scope of Article\u00a0615 of the CCP (which regulated the scope of rectifications), and whether the rectified appellate decision had amounted to a worsening of his legal situation in breach of Article\u00a0540 of the CCP (see paragraph\u00a016 above) \u2013 rendered the applicant\u2019s case against the rectification at least arguable and called for it to be considered by the domestic courts as part of adversarial proceedings.<\/p>\n

39.\u00a0\u00a0Against this background, the Court notes that the rectified appellate decision did not involve the applicant and was served on him only on 16\u00a0April 2009, after the Supreme Court had already reached a final decision on the applicant\u2019s case on 7\u00a0April 2009 (see paragraph 14 above). It is true that the Supreme Court had been aware of the rectified appellate decision and appears to have endorsed it when expressly taking note of the corrected starting date of the applicant\u2019s cumulative sentence (see paragraph\u00a015 above). However, at the time that the rectified appellate decision was delivered by the appellate court, the applicant\u2019s appeal on points of law had already been sent to the Supreme Court (see paragraphs 13-14 above). Furthermore, considering that the Supreme Court had decided the matter without holding an oral hearing (see paragraph\u00a015 above), the applicant had effectively been precluded from becoming aware of the rectified appellate decision and from presenting his arguments, as part of his appeal or separately, regarding the revised starting date of his cumulative sentence and its compliance with domestic law. When becoming aware of it and requesting the rectification of the decision of the Supreme Court of 7\u00a0April 2009 he was not heard by a judge. His request was first rejected by the Head of the Registry of the Chamber of Criminal Cases of the Supreme Court on 24\u00a0April 2009 with the argument that the Supreme Court was not in a position to address the applicant\u2019s complaint (see paragraph\u00a017 above) and then by the assistant to the Chairman of the Tbilisi Court of Appeal on 15\u00a0June 2009 with the argument that the interlocutory appeal on points of law could not be accepted for consideration (see paragraph\u00a019 above).<\/p>\n

40.\u00a0\u00a0In the light of the foregoing, the Court considers that whether the matter is considered from the perspective of the right of access to a court or the right to an oral hearing, the crux of the matter, in any event, is that the manner in which the rectification procedure was implemented in respect of the applicant, depriving him of the opportunity to present his arguments regarding the alteration of the starting date of his cumulative sentence, either orally or in writing, rendered the criminal proceedings against him unfair within the meaning of Article\u00a06 \u00a7\u00a01 of the Convention.<\/p>\n

The above considerations are sufficient for the Court to conclude that there has been a violation of Article\u00a06 \u00a7\u00a01 of the Convention.<\/p>\n

II.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 5 \u00a7 1 OF THE CONVENTION<\/p>\n

41.\u00a0\u00a0The applicant complained that the rectification of the appellate court\u2019s judgment had unduly prolonged his imprisonment, amounting to an unlawful detention. He relied on Article 5 \u00a7 1 (a) of the Convention which reads as follows:<\/p>\n

\u201c1. 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:<\/p>\n

(a) the lawful detention of a person after conviction by a competent court; …\u201d<\/p>\n

42.\u00a0\u00a0The Government contested that argument.<\/p>\n

A.\u00a0\u00a0Admissibility<\/strong><\/p>\n

43.\u00a0\u00a0The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 \u00a7 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.<\/p>\n

B.\u00a0\u00a0Merits<\/strong><\/p>\n

1.\u00a0\u00a0The parties\u2019 submissions<\/em><\/p>\n

44.\u00a0\u00a0The applicant submitted that his detention had been devoid of any legal basis after 29 September 2010, as the sentence imposed by the Supreme Court on 20\u00a0February 2008, providing for a starting date fixed at the date of commission of the second crime, had expired. He maintained that his detention beyond that date had been in violation of Article\u00a0540 of the CCP which had not permitted the worsening of an appellant\u2019s situation in the absence of an appeal by the prosecution. He also submitted that his detention had been extended by means of a procedure that had been in violation of Article\u00a06 of the Convention on account of the impossibility of having the rectified appellate decision subjected to judicial scrutiny.<\/p>\n

45.\u00a0\u00a0The Government submitted that the applicant\u2019s detention had complied with Article\u00a05 \u00a7 1\u00a0(a) of the Convention. In particular, the earlier judgments against the applicant, which had indicated a starting date for the cumulative sentence that had clearly been erroneous and had not yet been final at the material time, had been rectified by the Court of Appeal on 3\u00a0April 2009 in accordance with domestic law and procedure, a decision which had been upheld by the Supreme Court in a reasoned decision dated 7\u00a0April 2009.<\/p>\n

2.\u00a0\u00a0The Court\u2019s assessment<\/em><\/p>\n

(a)\u00a0\u00a0General principles<\/p>\n

46.\u00a0\u00a0The Court reiterates that Article\u00a05 enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Sub-paragraphs (a) to (f) of Article 5 \u00a7 1 of the Convention contain an exhaustive list of permissible grounds for deprivation of liberty, and no deprivation of liberty will be lawful unless it falls within one of those grounds (see\u00a0Khlaifia and Others v.\u00a0Italy [GC], no. 16483\/12, \u00a7\u00a088, 15\u00a0December 2016).\u00a0It is well established in the Court\u2019s case-law on Article 5 \u00a7 1 that all deprivation of liberty must not only be based on one of the exceptions listed in sub-paragraphs (a) to (f) but must also be \u201clawful\u201d. Where the \u201clawfulness\u201d of detention is in issue, including the question of whether \u201ca procedure prescribed by law\u201d has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. This primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention (see\u00a0Mozer v. the Republic of Moldova and Russia [GC], no.\u00a011138\/10, \u00a7\u00a0134, 23 February 2016).\u00a0The \u201cquality of the law\u201d implies that where a national law authorises a deprivation of liberty, it must be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness. The standard of \u201clawfulness\u201d set by the Convention requires that all law be sufficiently precise to allow the person \u2013 if need be, with appropriate advice \u2013 to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (see Del\u00a0R\u00edo Pradav. Spain\u00a0[GC], no.\u00a042750\/09, \u00a7\u00a0125, ECHR 2013).<\/p>\n

47.\u00a0\u00a0Article\u00a05 \u00a7\u00a01 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 \u00a7 1 and the notion of \u201carbitrariness\u201d in Article 5 \u00a7 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see Saadi v.\u00a0the United Kingdom [GC], no. 13229\/03, \u00a7\u00a067, ECHR 2008, with further references). The Court applies a different approach towards the principle that there should be no arbitrariness in cases of detention under Article 5 \u00a7 1 (a), where in the absence of bad faith or deception, as long as the detention follows and has a sufficient causal connection with a lawful conviction, the decision to impose a sentence of detention and the length of that sentence are matters for the national authorities rather than for the Court under Article 5 \u00a7 1 (see\u00a0T. v. the United Kingdom, cited above, \u00a7\u00a0103; Stafford v. the United Kingdom\u00a0[GC], no.\u00a046295\/99, \u00a7 64, ECHR 2002\u2011IV; and Saadi, cited above, \u00a7\u00a7\u00a069 and 71).<\/p>\n

48.\u00a0\u00a0The requirement of Article\u00a05 \u00a7\u00a01\u00a0(a) that a person be lawfully detained after \u201cconviction\u00a0by a competent court\u201d does not imply that the Court has to subject the proceedings leading to that conviction to a comprehensive scrutiny and verify whether they have fully complied with all the requirements of Article 6 of the Convention (see Stoichkov v.\u00a0Bulgaria, no. 9808\/02, \u00a7\u00a051, 24 March 2005). However, the Court has also held that if a \u201cconviction\u201d is the result of proceedings which were a \u201cflagrant denial of justice\u201d, that is to say were \u201cmanifestly contrary to the provisions of Article 6 or the principles embodied therein\u201d, the resulting deprivation of liberty would not be justified under Article5 \u00a7\u00a01\u00a0(a) (see Drozd and Janousek v. France and Spain, 26 June 1992, \u00a7\u00a0110, Series A no.\u00a0240, and Ila\u015fcu and Others v.\u00a0Moldova and Russia\u00a0[GC], no.\u00a048787\/99, \u00a7\u00a0461, ECHR 2004-VII).<\/p>\n

(b)\u00a0\u00a0Application of these principles to the present case<\/p>\n

49.\u00a0\u00a0Turning to the circumstances of the present case, the Court observes that the applicant was deprived of his liberty after conviction by a competent court, an eventuality that is explicitly covered by Article\u00a05 \u00a7\u00a01\u00a0(a) of the Convention. In particular, the detention complained of was based on a final reasoned decision of the Supreme Court, which sentenced him to seven years\u2019 imprisonment and indicated that the sentence had started to run on 12\u00a0April 2006. That sentence had been due to expire on 12\u00a0April 2013 but the applicant was released earlier, on 27\u00a0January 2013 (see paragraphs\u00a015 and 20 above). However, the Court is called upon to determine whether the earlier alteration of the starting date of the applicant\u2019s cumulative sentence by an appellate court, by means of a procedure that it has already been determined amounted to a breach of Article\u00a06 of the Convention (see paragraphs\u00a035-40 and\u00a044 above), was in breach of the \u201clawfulness\u201d requirement under Article 5 \u00a7\u00a01 of the Convention.<\/p>\n

50.\u00a0\u00a0While the applicant maintained that the Supreme Court decision of 20\u00a0February 2008 had set a fixed release date, the Court notes that, before the adoption of the rectified appellate decision of 3\u00a0April 2009, the applicant\u2019s release dates had shifted, as the lengths of individual sentences had been changed several times (see paragraphs\u00a06 and\u00a08-12 above). The Supreme Court decision dated 20\u00a0February 2008 was adopted while the appeal in respect of the criminal proceedings leading to the applicant\u2019s second conviction was still pending (see paragraph\u00a011 above). Additionally, the subsequent reasoned decision of the Supreme Court dated 7\u00a0April 2009 further reduced the overall length of the applicant\u2019s sentence (see paragraph\u00a015 above).<\/p>\n

51.\u00a0\u00a0What is in issue is whether the applicant\u2019s detention, which, in effect, had been extended owing to the alteration of the starting date of the applicant\u2019s cumulative sentence, was \u201clawful\u201d. In that connection the Court takes note of the applicant\u2019s submission that, in the absence of an appeal by the prosecution, the rectification of the appellate court\u2019s judgment in respect of the starting date of his cumulative sentence had been in breach of the principle of reformatio in peiusset out in Article\u00a0540 of the CCP (see paragraph\u00a023 above). However, the strength of the applicant\u2019s argument hinges on another legal issue. In particular, the question of domestic legality and the applicability of Article\u00a0540 of the CCP is linked to the question of whether the error made by the domestic courts regarding the starting date of the cumulative sentence had been obvious and the rectification therefore both expected and permitted by law and practice in force at the material time, or whether the rectification had gone beyond the confines of the law in that respect.<\/p>\n

52.\u00a0\u00a0Against this background, the Court notes, on the one hand, that the Criminal Code, as it stood at the time that the applicant committed the second offence, did not explicitly specify the starting date of a cumulative sentence. On the other hand, the subsequent rectification appears to have been based, albeit implicitly, on Article\u00a059 of the Criminal Code as amended on 29\u00a0December 2006, which clearly set the date of the imposition of the later sentence as the starting date for any cumulative sentence (see paragraph\u00a021 above). In that connection, the Court further takes note of the Supreme Court\u2019s decision of 20\u00a0January 2009 in a different case, clarifying that Article\u00a059 of the Code could have retroactive effect (see paragraph\u00a025 above). That decision predated both the rectification decision of the appellate court dated 3\u00a0April 2009 and the final decision of the Supreme Court in the applicant\u2019s case dated 7\u00a0April 2009 (compare paragraphs 14-15 and 25 above). Therefore, while the question regarding the foreseeability of the law in respect of the starting date of a cumulative sentence was not addressed by the domestic courts, the rectification appears to have followed a clarification offered by the Supreme Court in another case. In such circumstances, it is not for the Court to speculate on the legality of the applicant\u2019s detention beyond 29\u00a0September 2010, which was ordered by the Supreme Court in accordance with the law and practice in force at the material time. Therefore, the Court does not find that the applicant\u2019s detention was ex facie in breach of the domestic law.<\/p>\n

53.\u00a0\u00a0As concerns the applicant\u2019s additional argument that his detention had been extended through a procedure that had been in violation of Article\u00a06 (see paragraphs 35-40 and\u00a044 above), the Court has already rejected the argument that every Article\u00a06 violation results in a violation of Article\u00a05 \u00a7\u00a01 (see Hammerton v. the United Kingdom, no.6287\/10, \u00a7\u00a0100, 17\u00a0March 2016). Furthermore, in so far as the applicant\u2019s argument can be understood to mean that he had been convicted and sentenced as a result of proceedings which were a \u201cflagrant denial of justice\u201d that had affected the lawfulness of his detention under Article\u00a05, the Court reiterates that the \u201cflagrant denial of justice\u201d test is a stringent one (ibid., \u00a7\u00a099). What is required is a breach of the principles of fair trial that is so fundamental as to amount to a nullification, or destruction of the very essence, of the right guaranteed by that Article (see\u00a0Othman (Abu Qatada) v.\u00a0the United Kingdom, no.\u00a08139\/09, \u00a7\u00a0260, ECHR 2012 (extracts), and TsonyoTsonev v.\u00a0Bulgaria (no. 3), no.\u00a021124\/04, \u00a7\u00a059, 16\u00a0October 2012, with further references). While the Court has found a violation of Article\u00a06 of the Convention in the present case (see paragraphs\u00a035-40 above), it does not consider that the violation is of such a nature as to have destroyed the very essence of the right guaranteed by that Article (contrast, TsonyoTsonev, cited above, \u00a7\u00a059, and Hammerton, cited above, \u00a7\u00a7\u00a099 and 119). Accordingly, the Court finds that the violation of Article 6 in the present case did not amount to a flagrant denial of justice.<\/p>\n

54.\u00a0\u00a0It follows, in the circumstances of the present case, that the applicant\u2019s detention was justified under Article 5 \u00a7 1 (a) of the Convention.<\/p>\n

Therefore, the Court finds that there has been no violation of Article5 \u00a7\u00a01 of the Convention.<\/p>\n

III.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION<\/p>\n

55.\u00a0\u00a0The applicant complained that he had been denied an effective remedy in respect of the alleged violation of his rights under Article\u00a06 of the Convention. He relied on Article 13 of the Convention which reads as follows:<\/p>\n

\u201cEveryone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.\u201d<\/p>\n

56.\u00a0\u00a0The Government contested that argument.<\/p>\n

57.\u00a0\u00a0The Court notes that this complaint is linked to the one made under Article\u00a06 of the Convention, as examined above, and must therefore likewise be declared admissible.<\/p>\n

58.\u00a0\u00a0Having regard to the findings relating to Article 6 (see paragraphs\u00a035-40 above), the Court considers that it is not necessary to examine whether, in this case, there has also been a violation of Article 13 of the Convention.<\/p>\n

IV.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/p>\n

59.\u00a0\u00a0Article 41 of the Convention provides:<\/p>\n

\u201cIf 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.\u201d<\/p>\n

A.\u00a0\u00a0Damage<\/strong><\/p>\n

60.\u00a0\u00a0The applicant claimed 100,000 euros (EUR) in respect of non\u2011pecuniary damage.<\/p>\n

61.\u00a0\u00a0The Government submitted that the claim was excessive, and that an award of just satisfaction was not an automatic consequence of finding a violation.<\/p>\n

62.\u00a0\u00a0The Court considers that the applicant must have suffered distress and anxiety on account of the violation which has been found. Ruling on an equitable basis, it awards the applicant EUR\u00a01,500 in respect of non\u2011pecuniary damage.<\/p>\n

B.\u00a0\u00a0Costs and expenses<\/strong><\/p>\n

63.\u00a0\u00a0The applicant also claimed EUR 2,250 for legal costs and EUR\u00a0120 for expenses incurred before the Court. In support of this claim, he submitted a number of legal and financial documents (including contracts, invoices and receipts) confirming that the relevant services had actually been provided to him in relation to the present application.<\/p>\n

64.\u00a0\u00a0The Government did not comment on the applicant\u2019s claims.<\/p>\n

65.\u00a0\u00a0According to the Court\u2019s 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. In the present case, regard being had to the documents in its possession and the above criteria, the Court considers it reasonable to award the claimed amount in full, namely EUR 2,370.<\/p>\n

C.\u00a0\u00a0Default interest<\/strong><\/p>\n

66.\u00a0\u00a0The 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.<\/p>\n

FOR THESE REASONS, THE COURT, UNANIMOUSLY,<\/strong><\/p>\n

1.\u00a0\u00a0Declares the application admissible;<\/p>\n

2.\u00a0\u00a0Holds that there has been a violation of Article 6 \u00a7 1 of the Convention;<\/p>\n

3.\u00a0\u00a0Holds that there has been no violation of Article 5 \u00a7 1 of the Convention;<\/p>\n

4.\u00a0\u00a0Holds that there is no need to examine the complaint under Article 13 of the Convention;<\/p>\n

5.\u00a0\u00a0Holds<\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, the following amounts,to be converted into the currency of the respondent State,at the rate applicable at the date of settlement:<\/p>\n

(i)\u00a0\u00a0EUR 1,500 (one thousand five hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;<\/p>\n

(ii)\u00a0\u00a0EUR 2,370 (two thousand three hundred and seventy euros), plus any tax that may be chargeable to the applicant, in respect of costs and expenses;<\/p>\n

(b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amounts at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/p>\n

6.\u00a0\u00a0Dismisses the remainder of the applicant\u2019s claim for just satisfaction.<\/p>\n

Done in English, and notified in writing on 28 March 2019, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/p>\n

Milan Bla\u0161ko\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Angelika Nu\u00dfberger
\nDeputyRegistrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 President<\/p>\n

Facebook<\/a>Twitter<\/a>LinkedIn<\/a>Pinterest<\/a><\/div>","protected":false},"excerpt":{"rendered":"

FIFTH SECTION CASE OF KERESELIDZE v. GEORGIA (Application no. 39718\/09) JUDGMENT STRASBOURG 28 March 2019 This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the Convention. It may be subject to editorial revision.…<\/p>\n

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