CEDH · CASELAW;CLIN;ENG — 23 mai 2024

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Georgia - 6232/20 and 22394/20 Judgment 23.5.2024 [Section V] Article 6 Article 6-1 Criminal charge Fair hearing Impartial tribunal Independent tribunal Article 6-3-d Examination of witnesses Convictions of former president in two separate sets of criminal proceedings for acts committed whilst in office: no violation Article 7 Article 7-1 Nullum crimen sine lege Conviction of former President for abuse of official authority for granting a pardon during his presidency to high-ranking officials convicted of murder: no violation Facts – The applicant, a former President of Georgia, was tried and convicted in absentia in two separate sets of criminal proceedings and given a combined prison sentence of six years which he is currently serving. The proceedings took place after a change of Government in Georgia in 2012 in the backdrop of criminal investigations, including against former high-ranking officials, in particular, into complaints of human rights violations during the applicant’s presidency and his party’s rule. In June 2018, in the first set of proceedings (application no.   6232/20), the applicant was convicted of complicity in committing criminal battery and misuse of authority by resorting to violence for masterminding, with the help of high-ranking officials of the Ministry of the Interior, an attack in 2005 on a then member of parliament. In January 2018, in the second set of proceedings (application no.   22394/20), the applicant was convicted by the first-instance court, sitting as a single-judge bench (composed of Judge G.A.), of abuse of power by a public official holding a political post for granting a pardon in 2008 to four former high-ranking officers of the Constitutional Security Department, who had been convicted of the murder of Sandro Girgvliani in 2006 (“the Girgvliani murder case”). That pardon had reduced their prison sentences (ranging from six and a half to seven years and a half years) by half. The applicant unsuccessfully challenged the convictions. Throughout both sets of proceedings, he challenged the testimony of N.B. (a former president of the Georgian Parliament) and I.O. (a former minister of the applicant’s government). Law – Article   6 §   1 ( the independence and impartiality of Judge G.A. – application no.   22394/20 ): There was nothing in the case-file that could call into question Judge G.A.’s independence on any grounds. The applicant’s complaint was rather one of objective impartiality on the grounds of the functions he had exercised during the Girgvliani murder case. There had been no sufficient link between the criminal charges examined by the trial court in that case and the charge of abuse of official authority brought against the applicant, which had been examined by Judge G.A. The applicant had not been a party to the murder proceedings, they had not concerned him in any manner and Judge G.A. had not reached any findings regarding the applicant’s guilt on the basis of the facts that had been established therein. Consequently, there could not have been any objectively justified fear that the establishment of the facts or the legal assessment of the events that had constituted the offence of which Judge G.A. had found the applicant guilty had in any manner been prejudged during the murder proceedings. Furthermore, it would have been a clear overstatement to suggest that G.A., whose professional functions had been limited to providing purely clerical and technical assistance to the judges hearing the murder case had been involved “in the determination of the criminal charges against the four police officers”. Being an assistant to a criminal judge did not amount to, under the relevant domestic law and practice, “participation” in the judicial decision-making process”. Nor was the fact that Judge G.A. had come across (at an earlier stage of his professional life) the witnesses in question, sufficient to justify, from an objective standpoint, the fear that he had been necessarily prejudiced in favour of believing those witnesses’ testimony. Indeed, the applicant had failed to explain how G.A.’s knowledge of the witnesses in question had been of such a nature and degree as to indicate a lack of impartiality on his part. In addition, the witness statements of the officers had not been the only or the decisive evidence against the applicant. Lastly, Judge G.A. had been a professional, trained judge who could thus be considered to be more equipped than, for instance, a lay judge or juror, to disengage himself from previous personal or professional experiences and to examine with the requisite detachment high-profile cases attracting heightened public attention. In conclusion, the single-judge composition of the first-instance court could not be said to have lacked either independence or impartiality. Conclusion : no violation (unanimously). Article   6 §§   1 and 3   (d) ( the question of administration of evidence by the domestic courts in both applications ): In the first set of proceedings the statements given by I.O., N.B. and the former head of the riot police had constituted first-hand testimony, not hearsay. Similarly, in the second set of proceedings, the statements of I.O. had constituted direct evidence, as he had stated that the applicant had repeatedly confided in him that he had promised to pardon the officers in question and had fully intended to fulfil those promises. Furthermore, the trial court had had before it an extensive body of circumstantial evidence which had helped to establish the applicant’s motive for committing the offence, as well as the opportunity to commit that offence. The alleged personal animosity between I.O. and N.B. and the applicant had not constituted sufficient grounds for the Court to gainsay the domestic courts’ assessment of the credibility and reliability of their statements. It was significant in that connection that the applicant had been able to confront the two witnesses during the trials in both criminal proceedings and to challenge the credibility of their statements and that the domestic courts had duly addressed those concerns in reasoned rulings. The Court did not find any arbitrariness in the reasons given; the fact that both witnesses had been questioned under oath had constituted a sufficient guarantee for the domestic courts to treat those witnesses’ statements as reliable evidence. Given the limits that constrained the Court in respect of its supervisory function with regard to the admissibility of evidence, the manner in which the domestic courts in the present case had administered evidence in both criminal cases could not be said to have violated the Convention. Conclusion : no violation (unanimously). Article   7 ( application no.   22394/20 ): The applicant’s conviction had been based on Article   332 §   2 of the Criminal Code, which criminalised the offence of abuse of official authority. However, having regard to the wording of that criminal provision, how it had been interpreted and applied in domestic judicial practice, and how similar criminal provisions were normally viewed from the comparative-legal perspective, the provision represented an example of the legislative technique of “blanket reference” or “legislation by reference”. The provision had been intentionally couched in general and abstract terms in order for it to be complemented by specific legal content, including that which could be found either in constitutional provisions or in other fields of law from outside the criminal-law domain. It could not therefore be said that the foreseeability requirement had not been met because of the “too general and vague” wording of Article   332; using the general-wording “blanket reference” technique for criminalising acts or omission could not raise an issue under Article   7 §   1 as such. Article   332 made it perfectly clear that even the highest-ranking State officials – including the President of the country – could be subject to prosecution for abuse of official authority. The Law on Impeachment also clearly provided, at the time, for the possibility to hold a former President criminally liable for an offence committed during his or her tenure of office. Therefore, the applicant could not possibly have expected to enjoy immunity from criminal liability under the said referencing provision. In addition, the Court observed that based on the comparative material available to it, the applicant’s argument that he had expected pan-European constitutional custom to shield him from criminal liability for acts committed during the exercise of his discretionary presidential powers was also unfounded. Nor had the domestic complementary legal content referred to in Article   332 – namely the extended constitutional framework governing the exercise of the presidential power of clemency – given the applicant a legitimate expectation that he would enjoy immunity from criminal jurisdiction for acts committed while in office in the exercise of his discretionary powers – including the power of presidential clemency. There had been no provision in either the Constitution of Georgia or in Georgian law or in any other piece of subordinate legislation that could remotely suggest that former or current heads of the Georgian State could enjoy immunity from individual criminal responsibility for an act committed during the exercise of their mandate that fell within the scope of their discretionary powers; nor had the parties brought to the attention of the Court any domestic constitutional custom or jurisprudence capable of supporting such a conclusion. The domestic courts had dealt in detail with the applicant’s argument that the concept of abuse of official authority under Article   332 was incompatible with the discretionary nature of the presidential power of clemency because a fully discretionary power was unlimited/absolute by definition and thus could not possibly be abused. They had also confirmed that despite the presidential power in question being of a fully discretionary nature, that had not meant that “the power in question could not be abused”. Their interpretation of the relevant domestic law and of the associated legal concepts did not appear to be arbitrary or otherwise unreasonable. Having regard to the principle of subsidiarity, due deference had to be given to the manner in which the domestic courts had addressed, by applying the relevant concept of checks and balances, the constitutional dimension of the seeming dichotomy between the absolute nature of the presidential power of clemency and the possibility for that absolute power to become the object of abuse. In addition, the fact that the presidential power of clemency had been amenable to judicial review could be taken as a further indication of that power not being immune to judicial scrutiny under Georgian law. The fact that the applicant’s case had had no precedent in Georgia could not suffice to call into question the foreseeability of the relevant criminal provisions. In that respect the Court pointed out that the interpretation of the relevant domestic law by the domestic courts in the criminal proceedings at issue had been both reasonable and consistent with the essence of the offence. The Court attached significance to the fact that the applicant’s conviction had not been based only on his having performed the act of pardon; rather, the domestic courts had also established through the evidence that he had promised to pardon the four officers in exchange of them remaining silent about decisive facts related to the Girgvliani murder. On that basis, the courts had explored the applicant’s state of mind during the commission of the act in question and had found that his decision to grant a pardon had been prompted by his aim of perverting the investigation and otherwise obstructing the administration of justice in the murder case. Therefore, it should have been a matter of common sense for the applicant to have been able to foresee that there would have been serious consequences arising from his decision to collude with the people who had either directly committed the homicide or had conspired to cover up the scope of that very serious crime. Moreover, as a leading politician, he should have proceeded with a degree of caution higher than that which could have been expected of an ordinary person and could have been expected to exercise special care in assessing the severity of the risks that might arise from his collusion; a collusion that went against the pre‑eminence accorded to the right to life in all international instruments aimed at the protection of human rights (including the Convention itself and the Court’s relevant case‑law under Article   2), and the applicant could not pretend that he had not understood the criminal nature of the act of his using his power of clemency for the purposes of perverting the course of justice in the murder case. Accordingly, the Court considered that the conclusions drawn by the domestic courts regarding the scope of the relevant domestic provisions and their application to the applicant’s conduct had fallen within their remit to interpret and apply national law, and the applicant could reasonably have foreseen that his conduct would have rendered him criminally liable. Conclusion : no violation (five votes to two). The Court also rejected as manifestly ill-founded the applicant’s complaints under Article   18 regarding the allegedly ulterior motive behind the initiation of the criminal cases against him. In particular, the backdrop of bitter political antagonism between the applicant’s political party and the new ruling forces, in the absence of any other specific arguments or evidence (in the legal sense) capable of substantiating his fears, could not prove in and of itself that the predominant purpose of the opening of the criminal cases against him had been to hinder his participation in Georgian politics. Indeed, high political status could not, as a matter of principle, grant immunity against liability. Having regard to the criminal case material in its possession, in particular the duly reasoned court decisions, the Court found that the authorities’ honest desire had been to bring applicant to justice for his wrongdoings. (See also Enukidze and Girgvliani v.   Georgia , 25091/07, 26   April 2011, Legal Summary ; Haarde v.   Iceland , 66847/12, 23   November 2017, Legal Summary ; Advisory opinion concerning the use of the “blanket reference” or “legislation by reference” technique in the definition of an offence and the standards of comparison between the criminal law in force at the time of the commission of the offence and the amended criminal law [GC], P16-2019-001 , Armenian Constitutional Court, 29   May 2020)   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. To access legal summaries in English or French click here . For non-official translations into other languages click here .