Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;(Art. 35-4) Rejection of application at any stage of the proceedings;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Six-month period;No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 18+5-1 - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5 - Right to liberty and security;Article 5-1 - Lawful arrest or detention);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;András Sajó;Angelika Nußberger;Egidijus Kūris;Ganna Yudkivska;Georgios A. Serghides;Guido Raimondi;Helen Keller;Helena Jäderblom;Iulia Motoc;Jean-Paul Costa;Jon Fridrik Kjølbro;Kristina Pardalos;Linos-Alexandre Sicilianos;Loukis Loucaides;Luzius Wildhaber;Nona Tsotsoria;Paulo Pinto De Albuquerque;Robert Spano;Vincent A. De Gaetano;Yonko Grozev;Georges Ravarani;Ksenija Turković;Pere Pastor Vilanova

The applicant was born in 1968 and is now serving a sentence of imprisonment in Tbilisi.

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.

The applicant was an active participant in those events, a close collaborator of Mr Saakashvili, and a leading figure in UNM.

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.

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.

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.

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.

According to the Government, on 30 November 2012 the applicant had attempted to cross the border at Tbilisi Airport using a fake passport.

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.

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.

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.

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.

The same day the applicant and Mr Z.T. appeared before the prosecuting authorities and were interviewed as witnesses.

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.

On 13 February 2013 the applicant was examined as a witness in the context of those separate criminal proceedings.

On 20 May 2013 the two sets of proceedings were joined.

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.

The applicant appeared for the interview, which took place from 12.25 p.m. to 3.05 p.m. on 21 May 2013.

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.

Shortly before that, at 3.31 p.m., the investigator had also arrested Mr Z.T.

Later that day, at 9.50 p.m., the applicant was charged.

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 1641 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.

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.

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.

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.

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.

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.

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).

The prosecution requested that the applicant’s co-accused, Mr Z.T., also be placed in pre-trial detention.

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.

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.

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.

The court fixed the pre-trial conference hearing for 15 July 2013.

The applicant was remanded in custody in Prison no. 9 in Tbilisi.

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.

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.

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.

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.

The pre-trial conference hearing took place on 12, 19 and 25 September 2013.

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.

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.

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”.

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.

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.

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.

On 17 February 2014 the Kutaisi City Court found the applicant guilty of buying votes contrary to Article 1641 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.

The applicant appealed against that judgment, but on 21 October 2014 the Kutaisi Court of Appeal upheld it in full.

On 18 June 2015 the Supreme Court declared the applicant’s ensuing appeal on points of law inadmissible.

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.

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.

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.

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.

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”.

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.

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).

According to the applicant, he was then taken back to Prison no. 9, arriving in his cell at about 2.30 a.m.

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.

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.

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.

The applicant’s allegations prompted public reactions from several high officials.

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.

For her part, the Minister of Justice stated that, while the allegations appeared “unbelievable”, they were to be addressed seriously.

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

On 3 January 2014 one of the inspectors interviewed the applicant and the governor and deputy governor of Prison no. 9.

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.

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.

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.

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.

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.

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.

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.

Neither Mr O.P. nor Mr D.D. were interviewed or asked to provide explanations in the course of the inquiry.

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.

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).

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.

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?”

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.

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.

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).

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.

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.

On 21 June 2016 the Chief Public Prosecutor’s Office opened a criminal investigation and assigned it to two investigators from its investigative department.

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.

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.

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.

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.

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).

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.

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 roadtraffic 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.

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.

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.

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 specialforces 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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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).

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.

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.

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.

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.

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.

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.

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.

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.

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”.

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”.

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.

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.

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.”

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.”

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.]. ...

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. ...

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. ...”

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. ...

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.

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.

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.

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.

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.

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.

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.”

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);

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).”

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.

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).

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.

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.

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. ...”

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.”

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.


George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicant, Mr Mero Canaj, is an Albanian national, who was born in 1944 and lives in Fier. He is represented before the Court by Mr V. Kosta, a lawyer practising in Tirana.

The Albanian Government (“the Government”) were represented by their then Agent, Ms L. Mandia and, subsequently, by Ms A. Hicka of the State Advocate’s Office.

The facts of the case, as submitted by the parties, may be summarised as follows.

It would appear that, between 1960 and 1986, the applicant served a total of twenty-one years in prison. He submitted a criminal history record (vërtetim i gjendjes gjyqësore) in support of this claim. The applicant stated that, while in prison, he had mostly worked in mines, labour camps or other State entities. From 1965 to 1967, on the strength of a court decision, he performed his compulsory military service. From 1986 to 1990 he was sentenced to internal exile (internim) and performed corrective labour at an agricultural cooperative (kooperativë bujqësore).

On unspecified dates the applicant requested the authorities to count the work he had undertaken during his imprisonment as insurance years for the purpose of assessing his pension rights and obtaining an old-age pension.

On 27 June 2007 and 23 January 2009 the Ministry of Labour, Social Affairs and Equal Opportunities (“the Ministry”) informed the applicant that, having regard to a considerable number of former prisoners who had not obtained an old-age pension, an inter-ministerial working group had been established to examine the possibility of recognising work undertaken during imprisonment in the communist period in the calculation of insurance years for the purpose of obtaining an old-age pension. A draft proposal was made and submitted in 2007 to the Ministry of Finance and the Ministry of Justice. The Ministry instructed the applicant to contact his local authority to seek ways of obtaining financial assistance (ndihmë ekonomike).

To date, no legislative act has been adopted either by Parliament or the Government as regards the affiliation of former working (non-political) prisoners of the communist period to the old-age pension system.

On an unspecified date the applicant was awarded assistance in the form of financial aid by his local authority, having regard to his family’s financial difficulties. The family consisted of his wife and his son born in 1996.

On 20 June 2009 the applicant’s wife left the country to join her brother in Italy in the hope of finding employment. However, she fell ill and it would appear that she has been unable to work since.

On an unspecified date the financial assistance was revoked.

On 27 July 2009 the Ministry informed the applicant that he was not entitled to an old-age pension, as he had not accumulated the required number of insurance years. He was further informed that, by virtue of a Government decision of 2005, financial assistance was not awarded to families whose members had left the country, unless they had gone away for the purpose of pursuing studies or receiving medical treatment. The applicant was invited to submit supporting documents to prove that his wife was ill in Italy and to seek a further award of financial assistance from the local authority.

On 22 January 2013 the local authority indicated that the applicant was in receipt of financial assistance in the sum of 3,200 Albanian leks per month, approximately 23 euros per month.

The Social Insurance Act has been amended at least fifteen times since its first enactment. According to the Act, a male is entitled to: (i) a full old-age pension at the age of 65, after having accumulated thirty-five insurance years; (ii) a reduced old-age pension at the age of 65, after having accumulated thirty-two insurance years; or (iii) a partial old-age pension at the age of 65, after having accumulated between fifteen and thirty-five insurance years. Insurance years comprise the period in which contributions have been paid. Under section 58, the Government may recognise other periods as insurance years, provided that the payment of social insurance contributions is borne by the State budget.

Section 5 of the Act provides that families in need, with no source of income or with insufficient means, are entitled to financial assistance (ndihmë ekonomike), which can be total or partial. It consists of a monthly payment in cash or in kind. The head of the family makes an application for financial assistance to the social administrator of the local authority where the family resides. A decision refusing an award of financial assistance is amenable to appeal before a court.

Recital 10 (c) of Government decision no. 787 of 14 December 2005 provides that families, one of whose members lives abroad for whatever reason, other than for the purpose of pursuing studies or receiving medical treatment, are not entitled to financial assistance.

The Prisoners’ Rights and Treatment Act governs the rights and treatment of prisoners, as well as the responsibilities and duties of the competent authorities.

Section 34 recognises prisoners’ right to work (të gjithë të dënuarve u njihet e drejta për të punuar), which can be undertaken within or outside the prison facility. Work is remunerated in accordance with criteria defined by a separate Government decision.

Section 35 provides that work undertaken in prison is taken into account in the calculation of an old-age pension. Government decision no. 396 of 27 July 2000 sets out the criteria for the calculation of benefits for the old-age pension.

In an effort to recognise the innocence of former politically persecuted persons and former political prisoners and to publicly ask those people to forgive them for the suffering they experienced during the communist period, Parliament enacted the Rehabilitation Act. Section 5 recognised their time spent in prison as insurance years for the purpose of obtaining an old-age pension.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Alena Poláčková;Helen Keller;Johannes Silvis

The applicant, Mr Mokhammed Makhmud, is a Somali national, who was born in 1979 and currently lives in the United States of America.

On an unspecified date the applicant arrived to Russia. He was granted refugee status by the Russian authorities and applied to the United States authorities for asylum.

According to the Russian authorities, the applicant was involved in transportation of four illegal migrants from Russia to Finland.

On 28 May 2012 the applicant was arrested and formally charged.

On 31 May 2012 the Primorsk District Court of St Petersburg remanded the applicant in custody. The District Court noted that the applicant was a foreign national without a permanent place of residence in Russia and official employment and charged with a serious crime. The District Court also noted that his application for asylum was pending before the United States Consulate in Russia.

On 1 June 2012 the applicant’s representative appealed.

On 12 July 2012 the St Petersburg City Court quashed the detention order of 31 May 2012 on appeal and referred the matter back to the first-instance court.

On 19 July 2012 the District Court, relying on the same grounds, ordered the applicant’s detention between 28 May and 28 July 2012. In doing so, the District Court considered that neither the applicant’s refugee status nor his permanent place of residence and dependent family members (wife and child) justified the application of an alternative preventive measure. Finally, it referred to the applicant’s intention stated at the hearing eventually to leave the Russian territory.

On 20 July 2012 the applicant’s counsel appealed.

On 3 September 2012 the St Petersburg City Court upheld the detention order on appeal.

On 20 July 2012, the District Court, relying on the same grounds, extended the applicant’s detention.

On 26 July 2012 the applicant appealed.

On 13 September 2012 the St Petersburg City Court upheld the detention order on appeal.

On 12 September 2012, the District Court, relying on the same grounds, extended the applicant’s detention until 14 October 2012.

On 18 September 2012 the applicant appealed.

On 13 December 2012 the St Petersburg City Court rejected the applicant’s counsel’s appeal.

On 22 January 2013 the St. Petersburg City Court held a preparatory hearing and again extended the applicant’s detention for another six months.

On 25 January 2013 the applicant appealed.

On 14 March 2013 the St Petersburg Regional Court upheld the detention order.

On 4 June 2013 the District Court, by a collective detention order in respect of both co-defendants, extended the applicant’s detention for another three months.

On 13 June 2013 the applicant appealed.

On 4 September 2013 the St Petersburg City Court upheld the detention order on appeal.

On 26 September 2013 the District Court extended the applicant’s detention until 28 December 2013. The applicant was in detention pending trial at least until 2 January 2014.

On 9 April 2014 the District Court found the applicant guilty and convicted him to two years’ imprisonment.