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Batiashvili v. Georgia
Batiashvili v. Georgia
Batiashvili v. Georgia
JUDGMENT
STRASBOURG
10 October 2019
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
BATIASHVILI v. GEORGIA JUDGMENT 1
PROCEDURE
1. The case originated in an application (no. 8284/07) against Georgia
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (the Convention) by a
Georgian national, Mr Irakli Batiashvili (the applicant), on 31 January 2007.
2. The applicant was represented before the Court by Mr I. Baratashvili,
a lawyer practicing in Tbilisi; lawyers of a Tbilisi-based non-governmental
organisation called “Article 42 of the Constitution” – most recently
Mr N. Legashvili; and Mr P. Leach, Mr B. Bowring, and Ms J. Evans of the
European Human Rights Advocacy Centre (EHRAC). The Georgian
Government (the Government) were represented by their successive Agents,
most recently Mr L. Meskhoradze of the Ministry of Justice.
3. The applicant, relying on Article 5 § 3 of the Convention, alleged that
the domestic authorities had failed to justify his detention pending trial. The
applicant also complained under Article 5 § 4 about the absence of oral
hearings at appellate level, and his limited access to the case material.
Relying on Article 6 § 2 of the Convention, the applicant further
complained that the presumption of his innocence had been violated by the
government’s dissemination of evidence that had been tampered with to the
media.
4. On 16 January 2008 notice of the application was given to the
Government.
2 BATIASHVILI v. GEORGIA JUDGMENT
THE FACTS
A. Background
conversation between the applicant and E.K. lasted one minute and
forty-four seconds and, in so far as relevant, went as follows [the parts of
the conversation that had not been included in the recording as aired by
Rustavi 2 (see paragraph 15 above) are italicised]:
“[The applicant]: Yes...
[E.K.]: Yes, I wanted to say that, as they said that [I] met with the [so-called]
Minister of Defence of Abkhazia...
[The applicant]: [Expletive]
[E.K.]: Yes, of course, and ... I don’t know the Minister of Defence at all, nor the
other one, the Chief of the Peacekeeping Forces, right?
[The applicant]: Yes, yes
[E.K]: I don’t know him either and I was called by that K. [representative of the
Abkhaz separatist forces] with which I always maintain peace, right?
[The applicant]: Yes.
[E.K]: So, he called and asked what was going on.
[The applicant]: Yes, and now...
[E.K]: He offered me, like before, that he will stand by my side with a certain
number, he said a considerable number and I said I would do it myself and when
they exterminate us then he could do whatever he wanted, but they will not live to
that day.
[The applicant]: [laughs] Listen, they are spreading that on purpose now...
[E.K.]: I know, yes, yes.
[The applicant]: This discre... But you know what, regardless of everything, all
that they now showed on television about you still plays in your favour, because it
shows that you are a fighter for this [part of the country].
[E.K.]: In short you did very well, otherwise the people here were demotivated,
saying they did not want Georgia at all.
The applicant: [laughs] Don’t worry, be strong, be strong now...”
23. On 1 August 2006 Mr G.T., Chairman of the Defence and Security
Committee of the Parliament of Georgia made the following statement at a
press conference regarding the applicant which was aired live on Rustavi 2:
“We have witnessed further evidence presented by the Prosecutor’s Office in
relation to the Batiashvili case and I think you have all seen that Mr Irakli Batiashvili
was giving advice to [E.K.]. This advice was designed to help the latter with
achieving a successful conclusion to the rebellion. ... I think naturally we did not have
any questions regarding the guilt of this person [the applicant], and I think if anyone
did have [questions], they should no longer have such questions. Accordingly, if there
had been a need for ‘lustration’ of those in our political opposition, I think they
effectively ‘lustrated themselves’ when they unanimously declared this person to be
illegally detained and a political prisoner while he was involved in treason, in the
organisation of a rebellion against the State. By this [action] I think they finally
revealed their views, their absolutely anti-governmental thinking and turned their
BATIASHVILI v. GEORGIA JUDGMENT 7
backs on their homeland at a decisive moment, and I think society has answered them
many times and that finally they will get this answer at the elections.”
relevant document. The lawyer remarked that the file had not contained a
recording of the applicant’s interview given to a Russian television channel,
and audio recordings of the applicant’s telephone conversations with E.K.
On 15 August 2006 the applicant’s lawyer familiarised himself with the
recordings of the telephone conversations in question. On 21 August 2006
the applicant’s lawyer made a complete photocopy of the criminal case file,
as confirmed by his signature.
32. On 22 September 2006 the prosecutor requested an extension of the
applicant’s pre-trial detention by one month, noting that a number of
witnesses, including E.K.’s brother, had yet to be questioned and the
investigation to be finalised.
33. On 22 September 2006 the Tbilisi City Court held an oral hearing in
the presence of the parties and extended the applicant’s pre-trial detention
by one month. It reasoned that the case being particularly complex and the
investigation being in an active phase, a number of investigative actions
such as the questioning of E.K.’s brother and persons identified from the
applicant’s phone call logs had not yet been carried out. Furthermore, three
out of four charged persons remained at large. Therefore, the reasons to
keep the applicant in pre-trial detention persisted.
34. On 24 September 2006 the applicant appealed against the extension
of his pre-trial detention. He submitted that the case materials did not
contain cassettes with the recordings of the telephone conversations or the
relevant material televised in the media and used as a basis for his charges.
Furthermore, he argued that the second charge ought to be dropped as the
transcript of the relevant telephone conversation showed that E.K. had
refused any help from separatist forces. The applicant further argued that it
was unclear why the witnesses had not yet been questioned. Furthermore,
E.K.’s brother had been questioned on 11 August 2006, yet no questions
had been put to him regarding the applicant’s case. He suggested the
investigating and prosecuting authorities were stalling the investigation to
keep him detained as long as possible. Furthermore, the applicant noted that
the need to finalise the case could not have served as a ground for extending
his pre-trial detention.
35. On 27 September 2006 the Tbilisi Court of Appeal upheld the lower
court’s decision in a written procedure. According to the court, the
applicant’s arguments regarding the persistence of the grounds justifying his
pre-trial detention had been duly addressed by the lower court, and no new
circumstances justifying the alteration of the preventive measure had
emerged. It further noted that the complexity of the case was a ground set
out in Article 162 § 3 that could justify the extension of pre-trial detention
(see paragraph 47 below). The court reasoned that in addition to the grounds
noted by the lower court, the complexity of the case made it difficult to
conclude the investigation within the initial pre-trial detention period, and
justified, in the absence of arbitrary delays on the part of the investigative
10 BATIASHVILI v. GEORGIA JUDGMENT
authorities, the need for additional time to finish the investigation and
implement certain investigative measures, draw up the indictment and send
the case for trial.
36. On 23 October 2006 the investigator applied to the Tbilisi City Court
for a second extension of the applicant’s pre-trial detention for one month.
He pointed out that a number of persons identified from the applicant’s
phone call logs were still to be questioned, the indictment had to be drawn
up, and the case was to be sent firstly to the prosecutor and then to the trial
court.
37. On 26 October 2006 the Tbilisi City Court held an oral hearing in
the presence of the parties and, agreeing with the investigator’s arguments
concerning the need to finalise the investigation, including in respect of
persons possibly connected to the applicant and the risk of the obstruction
of justice, delivered a decision to extend the applicant’s detention by
another month.
38. The applicant appealed, arguing that the investigating authorities had
failed to demonstrate why it had been impossible since 29 July 2006 to
determine with precision the identity of the relevant witnesses and to
question them, and querying which calls in his call logs had been
suspicious. Furthermore, the need to finalise the indictment and send the
criminal case to the prosecutor did not figure as one of the legitimate
grounds for continuing pre-trial detention either in domestic law or the
Convention. Nor was the complex nature of a case such a ground. Finally,
the court’s conclusion that the risk of the applicant absconding and
obstructing justice “was not excluded” had not been based on any reasoned
arguments or evidence, especially considering the applicant’s voluntary
cooperation with the investigating authorities.
39. On 1 November 2006, the Tbilisi Court of Appeal examined the
applicant’s appeal in a written procedure and upheld the lower court’s
findings. The appellate court noted that the criminal case no. 090060756
concerned the applicant “and other individuals”. The court reasoned that
considering the particular complexity of the case and the investigative
measures that remained to be carried out, and in the absence of arbitrary
delays, extra time was objectively necessary for the authorities to conclude
the investigation. The appellate court further reasoned, regarding the
possible use of non-custodial measures of restraint, that factors such as the
factual circumstances of the case, the nature of the charges, the severity of
the penalty and the existence of co-perpetrators that needed to be identified,
in their totality created a reasonable doubt that, without the use of pre-trial
detention, the applicant would abscond, tamper with the evidence, and
reoffend. The court further noted that in accordance with the domestic
legislation on the matter (see paragraph 48 below) it was within an appellate
court’s discretion to dispense with an oral hearing.
BATIASHVILI v. GEORGIA JUDGMENT 11
E. Subsequent developments
45. As it appears from the parties’ submissions, the applicant was found
guilty by the court of first instance and the appellate court on 23 May and
13 September 2007 respectively. However, on 28 January 2008 the
Supreme Court discontinued its consideration of an appeal on points of law
lodged by the applicant in view of an earlier presidential pardon, granted on
an unspecified date.
THE LAW
51. The Government contested that argument. They submitted that the
reasons justifying the use of pre-trial detention in respect of the applicant
had persisted throughout all four months of his pre-trial detention.
Therefore, there was no need to refer separately to individual judicial
decisions ordering and subsequently extending the applicant’s pre-trial
detention. As for the grounds relied on to justify the applicant’s pre-trial
detention, the Government submitted the following. First, the risk of
reoffending had been demonstrated by the fact that the charge against the
applicant consisted of aiding and abetting the military rebellion aimed at
overturning the constitutional order and was based on his support for the
rebels expressed through telephone conversations – an activity which the
applicant could have resumed if released, given that the rebels had still been
at large, issuing threats against the government. Second, if released, the
applicant could have interfered with the investigation by influencing the
witnesses that remained to be questioned. It was in this context that the
complexity of the criminal investigation in question justified the applicant’s
continued detention. Third, the applicant’s release would have threatened
public order owing to the risk of him continuing to influence public opinion
in order to gain public support for the rebels. The Government maintained
that in sensitive cases such as the applicant’s, involving matters of state
security and the territorial integrity of the country, a genuine requirement of
public interest existed that outweighed the rule of respect for individual
liberty. Furthermore, the domestic courts also relied on other grounds such
as the risk of absconding. These reasons, taken cumulatively, were adequate
and sufficient to justify the applicant’s pre-trial detention under Article 5 § 3
of the Convention. In any event, the overall duration of four months’
pre-trial detention, following which the applicant had been released, had not
been unreasonable.
52. The applicant submitted that none of the grounds relied on by the
domestic courts to maintain his pre-trial detention had been based on
14 BATIASHVILI v. GEORGIA JUDGMENT
convincing reasoning and evidence, and that complexity of a case had not
been a valid ground on which to base a pre-trial detention.
1. Admissibility
53. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
2. Merits
54. The Court reiterates that whether it is reasonable for an accused to
remain in detention must be assessed in each case according to its special
features (see, among other authorities, Kudła v. Poland [GC], no. 30210/96,
§ 110, ECHR 2000-XI, and Pihlak v. Estonia, no. 73270/01, § 41, 21 June
2005). It is essentially on the basis of the reasons given in the decisions of
the domestic courts and of the well-documented facts stated by the applicant
in his appeals that the Court is called upon to decide whether or not there
has been a violation of Article 5 § 3 (see Buzadji v. the Republic of
Moldova [GC], no. 23755/07, § 91, 5 July 2016, and Galuashvili
v. Georgia, no. 40008/04, § 46, 17 July 2008).
55. The persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the lawfulness of the
continued detention, but, after a certain lapse of time, it no longer suffices
alone. In such cases, the Court must establish whether the other grounds
given by the judicial authorities continued to justify the deprivation of
liberty. Where such grounds were “relevant” and “sufficient”, the Court
must also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings (see Buzadji, cited
above, § 87, with further references). The complexity and special
characteristics of the investigation are factors to be considered in this
respect (see Kusyk v. Poland, no. 7347/02, § 35, 24 October 2006).
56. Turning to the circumstances of the present case, it appears from the
Government’s submissions, which the applicant did not dispute, that the
latter was released on 24 November 2006, after being committed for trial
(see paragraphs 40 and 51 above). Therefore the Court accepts that the
applicant’s pre-trial detention complained of lasted for slightly less than
four months.
57. The reasonableness of that period cannot be assessed in abstracto. In
that connection, the Court notes that the initial period of the applicant’s
pre-trial detention for two months was ordered and upheld by the
first-instance and appellate court decisions of 30 July and 3 August 2006
BATIASHVILI v. GEORGIA JUDGMENT 15
A. Admissibility
62. The Court notes that these complaints are not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that they are not inadmissible on any other grounds. They must therefore be
declared admissible.
B. Merits
1. Admissibility
(a) Applicability of Article 6 § 2
78. The Court reiterates that in criminal matters, Article 6 of the
Convention applies to a person subject to a “criminal charge”, within the
autonomous Convention meaning of that term (see, among other authorities,
Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08 and 3
others, § 249, 13 September 2016). A “criminal charge” exists from the
moment that an individual is officially notified by the competent authority
of an allegation that he has committed a criminal offence, or from the point
at which his situation has been substantially affected by actions taken by the
authorities as a result of a suspicion against him (see, among other
authorities, Simeonovi v. Bulgaria [GC], no. 21980/04, § 110, 12 May 2017,
with further references therein). The Court notes that no plea of
inadmissibility for incompatibility ratione materiae with Article 6 § 2 of the
Convention was made by the Government in their observations. However,
since this is a matter which goes to the Court’s jurisdiction, the Court must
examine it of its own motion (see Mirovni Inštitut v. Slovenia, no. 32303/13,
§ 27, 13 March 2018, see also Blečić v. Croatia [GC], no. 59532/00, § 67,
ECHR 2006 III). The relevant case-law in the context of Article 6 § 2 of the
Convention was summarised by the Court in Blake v. United Kingdom
((dec.), no. 68890/01, §§ 120-121, 25 October 2005).
79. The Court notes that the applicant was officially charged on 29 July
2006, and the dissemination of the disputed audio recording preceded that
fact by four days. However, the Court is compelled to look behind the
appearances and investigate the realities of the situation before it (see,
mutatis mutandis, Deweer v. Belgium, 27 February 1980, § 44, Series A
no. 35, and Kalēja v. Latvia, no. 22059/08, § 38, 5 October 2017). In this
context, the Court notes that the authorities based one of the charges
formally brought against the applicant exclusively on the recording (see
paragraph 26 above). It is alleged that they had first manipulated that
recording in order to insinuate the existence of a crime and then made it
available to the public before formally bringing the charge against the
applicant. Such allegedly mala fide conduct, if established or inferred during
the Court’s examination on the merits, combined with the close temporal
proximity between the timing of the release of the recording, the
questioning of the applicant and the bringing of the charge could attract, in
the particular circumstances of the present case, the protection of
Article 6 § 2 of the Convention (contrast and compare, Zollman v. the
United Kingdom (dec.), no. 62902/00, ECHR 2003-XII, and Blake, cited
above, §§ 120-121 and 123) from the moment the allegedly manipulated
BATIASHVILI v. GEORGIA JUDGMENT 21
version of the recording was made available to the public by the Ministry of
the Interior.
80. Accordingly, the question of the applicability of Article 6 § 2 is so
closely linked to the substance of the applicant’s complaint under the said
provision that it should be joined to the merits.
(b) Exhaustion of domestic remedies
81. The Court reiterates that the purpose of the requirement of
exhaustion of domestic remedies under Article 35 § 1 of the Convention is
to afford the Contracting States the opportunity to prevent or put right the
violations alleged against them before those allegations are submitted to the
Court. Consequently, States do not have to answer for their actions before
an international body before they have had an opportunity to put matters
right through their own legal system (see Selmouni v. France [GC],
no. 25803/94, § 74, ECHR 1999-V, with further references, and Sabeh
El Leil v. France [GC], no. 34869/05, § 32, 29 June 2011, with further
references). The Court further notes that the existence of mere doubts as to
the prospects of success of a particular remedy which is not obviously futile
is not a valid reason for failing to exhaust domestic remedies (see Vučković
and Others v. Serbia (preliminary objection) [GC], nos. 17153/11 and 29
others, § 74, 25 March 2014).
82. The Court notes that in the present case the applicant did not even
once voice his grievances at the domestic level in so far as the statements of
the members of parliament were concerned. He could have done so within
the context of the impugned criminal proceedings (see, for example,
Fatullayev v. Azerbaijan, no. 40984/07, § 153, 22 April 2010) or, as
proposed by the Government, by lodging a civil complaint (see, for
example, Martin Babjak and Others v. Slovakia (dec.), no. 73693/01,
30 March 2004). While it is true that in the absence of any domestic
case-law concerning Article 18 § 2 of the Civil Code, the Court is not in a
position to conclude that that remedy was indeed available and effective in
practice, it still finds the applicant’s failure to complain at domestic level of
the alleged violation of the principle of the presumption of innocence
unacceptable. By not giving the Government an opportunity to address this
complaint at domestic level, the applicant, in the Court’s view, did not meet
the requirements of Article 35 § 1 of the Convention (see Tuskia and
Others v. Georgia, no. 14237/07, § 91, 11 October 2018). The applicant’s
complaint under Article 6 § 2 of the Convention relating to the allegedly
prejudicial statements of the members of parliament is therefore
inadmissible owing to his failure to exhaust domestic remedies.
83. As regards the second limb of the applicant’s complaint under
Article 6 § 2 of the Convention that the presumption of his innocence had
been violated by the State authorities by means of disseminating an edited
audio recording of his telephone conversation with E.K. to the media, the
22 BATIASHVILI v. GEORGIA JUDGMENT
Court observes that the applicant complained about the matter, though
without success, by requesting that a criminal investigation be opened as
well as by raising the matter before the domestic courts (see paragraphs
41-44 above). In such circumstances, and considering that his complaint
concerned the actions of the government authorities rather than private
individuals, the applicant could not be expected to have resorted to yet
another remedy such as civil proceedings against the television company.
The Court therefore dismisses the Government’s objection in that regard.
84. The Court further notes that the second limb of the applicant’s
complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
(a) General principles
85. The Court reiterates that the presumption of innocence enshrined in
paragraph 2 of Article 6 is one of the elements of a fair criminal trial that is
required by paragraph 1 (see, among many other authorities, Deweer
v. Belgium, 27 February 1980, § 56, Series A no. 35; Allenet de Ribemont
v. France, 10 February 1995, § 35, Series A no. 308; and Natsvlishvili and
Togonidze v. Georgia, no. 9043/05, § 103, ECHR 2014 (extracts)).
Article 6 § 2 prohibits the premature expression by the tribunal of the
opinion that the person “charged with a criminal offence” is guilty before he
or she has been so proved according to law (see, among many other
authorities, Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62,
and Peša v. Croatia, no. 40523/08, § 138, 8 April 2010). It also covers
statements made by other public officials about pending criminal
investigations which encourage the public to believe the suspect guilty and
prejudge the assessment of the facts by the competent judicial authority
(see Allenet de Ribemont, cited above, § 41; Daktaras
v. Lithuania, no. 42095/98, §§ 41-43, ECHR 2000-X; and Butkevičius v.
Lithuania, no. 48297/99, § 49, ECHR 2002-II (extracts)).
86. The Court also reiterates that the freedom of expression guaranteed
by Article 10 of the Convention includes the freedom to receive and impart
information, including, to a certain extent, the right to seek and access
information (see Magyar Helsinki Bizottság v. Hungary [GC], no. 18030/11,
§§ 155-56, 8 November 2016). Article 6 § 2 cannot therefore prevent the
authorities from informing the public about criminal investigations in
progress, but it requires that they do so with all the discretion and
circumspection necessary if the presumption of innocence is to be respected
(see Allenet de Ribemont, cited above, § 38, and Karakaş and Yeşilırmak
v. Turkey, no. 43925/98, § 50, 28 June 2005).
BATIASHVILI v. GEORGIA JUDGMENT 23
expressed their opinions as to the applicant’s role in the events at the Kodori
Gorge (see paragraphs 17-18 and 23 above). While the applicant’s
complaints relating to those statements have been found by the Court to be
inadmissible for failure to exhaust domestic remedies (see paragraph 82
above), they nevertheless inform the overall context surrounding the
transmission of the recording and indicate that it helped create an
impression that the applicant had committed the crimes he was charged with
before his guilt was proved in court.
97. In the light of the foregoing, the Court considers that the
dissemination of the recording of the telephone conversation between the
applicant and E.K. in a manipulated form could not have been justified by
the public interest in obtaining information regarding the events at the
Kodori Gorge. The Court therefore finds that the relevant authorities’
involvement in the manipulation and the subsequent dissemination of the
audio recording to the media contributed to the applicant being perceived as
guilty before his guilt was proved in court.
It, thus, finds, in the particular circumstances of the present case, that
Article 6 § 2 of the Convention is applicable, and that there has been a
violation of the said provision.
98. The applicant complained that the purpose behind his pre-trial
detention had been to remove him from the political scene rather than any of
the grounds specified in Article 5 § 1 of the Convention. He further noted
that the statements of the high-level political figures made immediately
before and after his arrest supported his position. He relied on Article 18 of
the Convention, which reads as follows:
“The restrictions permitted under [the] Convention to the said rights and freedoms
shall not be applied for any purpose other than those for which they have been
prescribed.”
99. The Government maintained that the applicant’s pre-trial detention
had been strictly connected to his alleged involvement in a crime, had been
subject to a judicial review, and that nothing in the case file supported a
different conclusion.
100. The relevant general principles concerning the scope and
application of Article 18 of the Convention have been clarified in the
Merabishvili v. Georgia judgment (cited above, §§ 287-317).
101. The Court refers to its findings under Article 5 § 3 of the
Convention with respect to the judicial proceedings authorising the
applicant’s pre-trial detention (see paragraphs 56-60 above) and notes that
the applicant’s arrest and pre-trial detention were carried out for a purpose
BATIASHVILI v. GEORGIA JUDGMENT 27
A. Damage
109. The applicant also claimed EUR 12,500 for the costs incurred
before the domestic authorities; EUR 3,100, 475 British pounds
28 BATIASHVILI v. GEORGIA JUDGMENT
C. Default interest
113. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
6. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,600 (three thousand six
hundred euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;