Kadagishvili v. Georgia
Kadagishvili v. Georgia
JUDGMENT
STRASBOURG
14 May 2020
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
KADAGISHVILI v. GEORGIA JUDGMENT
PROCEDURE
1. The case originated in an application (no. 12391/06) against Georgia
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”) by three
Georgian nationals, Mr Amiran Kadagishvili (“the first applicant”),
Ms Nana Kadagishvili (“the second applicant”), and Mr Archil Kadagishvili
(“the third applicant”), on 3 April 2006.
2. The applicants were represented by Ms L. Mukhashavria,
Mr V. Vakhtangidze, and Mr V. Imnaishvili, lawyers practising in Tbilisi.
The Georgian Government (“the Government”) were represented by their
Agent, Mr L. Meskhoradze of the Ministry of Justice.
3. The applicants alleged, in particular, that the criminal proceedings
against them had been unfair and that they had been deprived of access to
the Supreme Court, in breach of Article 6 of the Convention. The applicants
also submitted that their property had been confiscated by means of a
retroactive application of a criminal sanction, contrary to Article 1 of
Protocol No. 1 to the Convention. Relying on Article 3 of the Convention,
the first and the third applicants also complained of the inadequate
conditions of detention, and the inadequacy of medical care in prison. They
further complained under Article 34 that the Government had failed to
comply with the interim measure indicated to them by the Court under
Rule 39 of the Rules of Court.
4. On 22 August 2007 the Court, acting pursuant to a request by the
applicants, advised the Government, under Rule 39 of the Rules of Court, in
the interests of the parties and the proper conduct of the proceedings before
the Court, to transfer the first and the third applicants to a medical
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THE FACTS
6. The applicants were born in 1949, 1947, and 1978 respectively, and
live in Tbilisi. The first and the second applicants are husband and wife. The
third applicant is one of their two sons.
1. Investigation stage
7. On 20 July 2004 the first applicant and the third applicant were
arrested on suspicion of having committed various financial crimes,
including money laundering, during the period between October 2000 and
July 2004. The suspicion was based on the preliminary findings of the head
of the Financial Monitoring Service (“the FMS”), an agency in charge of
tracking money laundering, and related to the activities of Gammabank, a
Tbilisi-based joint-stock company established by the first applicant.
According to the charges brought against the two applicants, on an
unspecified date the first applicant resigned from his position as deputy
chairman of the bank’s supervisory board and appointed his son, the third
applicant, as chairman of that board. The first applicant also appointed his
second son, G.K., to various positions in the bank, and ultimately as its
director general. In practice, the first applicant continued to be the primary
manager of the bank and its operations, together with his family. The
suspicion of the commission of financial crimes also related to the activities
of three companies which were alleged to have been fictitiously created in
order to cover up acts of fraud and money laundering committed through
Gammabank (“the three shell companies”) as well as the bank’s cooperation
and transactions made in respect of various offshore companies. The
Prosecutor General’s Office (“the PGO”) conducted, as an urgent measure,
a search of the offices of Gammabank, seizing numerous financial records
and other types of documents, seals and letterheads of various companies,
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and electronic files. The company’s assets and the two applicants’ personal
bank accounts were frozen. On 21 September 2004 the second applicant was
arrested, also as a suspect in the case in relation to her role as a consultant to
the bank in 2000-03, and her subsequent involvement in its activities, and
aiding the first applicant.
8. On an unspecified date at the end of July 2004, the daily news
programme of Rustavi 2, a private television channel, reported about the
investigation into the case. The anchor of that programme made the
following statement:
“[The first applicant] is one of those people who were involved in financial
scheming [in the nineties] owing to which he had to flee his homeland. But as it
appears, he has settled the problems with the previous Government and returned to
Georgia with a new scheme. This time [it’s] Gammabank – the place where
10 billion euros [EUR] were laundered in one day. ... The Gammabank case may
enter the history of Georgian law as “the Kadagishvili case”. [The first applicant]
and [the third applicant] who were arrested ... for money laundering [are] detained in
Tbilisi prison no. 5 ...”
9. The anchor’s comments were followed by excerpts from interviews
with the PGO’s investigator in charge of the applicants’ case, and with the
head of the FMS. The investigator stated, without further elaboration, that
the investigation had established the act of transferring 10 billion euros
(EUR) through Gammabank accounts. As to the head of the FMS, he spoke
briefly about difficulties associated with investigating the activities of
offshore companies in general, without relating his comments to the
applicants’ case.
10. Between 2 August and 7 December 2004 an audit report was
prepared by financial, economic, and tax experts appointed by the PGO to
carry out an examination in respect of Gammabank’s activities. The audit
was carried out by six experts from the National Bank of Georgia, the
Revenue Service, the Ministry of the Interior, and the State Audit Office of
Georgia, and concerned the period from 1 January 2000 to 1 July 2004. The
experts assessed various documents seized from Gammabank’s offices. The
examination was attended and assisted by Gammabank’s Deputy Director
General M.Kh., Deputy Accounts Director M.K., and Director of the
Correspondent Accounts Department N.P. The experts concluded that
Gammabank owed the State 11,717,378.3 Georgian laris (GEL –
approximately EUR 5,326,115) in damages for various unpaid financial
dues. It further noted that the case-file material, including the links between
various companies (subsequently found to have been the applicants’ shell
companies) and the bank and its personnel, required further investigation.
They further noted that the administrative procedures at the bank were in
violation of various regulations on processing and storing relevant
documents and correspondence. It also noted that an investigation needed to
determine the real scope of the legal relationship between Gammabank and
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2006 N.B. was heard by the Tbilisi City Court. He confirmed his earlier
statements and stated that at Gammabank he had been tasked with managing
the accounts of three shell companies established by the applicants, and he
had made various currency-exchange operations.
24. On 29 August 2005 Ms M.Kh., the Director of the Loans
Department (see paragraph 13 above), was examined. She noted the absence
of any undue pressure to testify and gave her description of the processes
related to the issuance of loan contracts to fifteen non-resident companies,
together with I.K., and her own role in creating false letterheads, and
preparing the relevant documentation. She noted that the credit committee
had not met but the loans had been issued anyway, and she had signed the
relevant documentation because it had been so decided. She did not know
whether those loans had actually been transferred to those companies.
M.Kh. confirmed never having met representatives of any of those
companies, as well as having witnessed the seizure from the bank’s offices
of various seals belonging to those companies. M.Kh. averred that she had
not known whose money had been laundered, nor about the applicants’
“pre-existing conspiracy” to commit crimes. M.Kh. repeated her statement
before the trial court on an unspecified date in 2006.
25. On 29 August 2005 Ms M.M. (see paragraph 13 above) stated that
she was the second applicant’s cousin. According to her, she had worked as
Gammabank’s securities registrar, and at the second applicant’s initiative
had been appointed Director of one of the shell companies which, according
to M.M., was owned by the applicants. She had not been aware of any
activities of that company, had had no seal, and had signed some documents
drafted in English, out of trust towards the Kadagishvili family, even though
she did not speak the language. She had put signatures to various
documents, including those brought to her on the second applicant’s orders,
out of trust towards the applicants. M.M. confirmed the contents of the plea-
bargaining agreement but noted that she was not exactly sure of the charges,
and that she had not had a prior agreement with the applicants to commit
crimes. Ms M.M. also mentioned that while in pre-trial detention she had
written a letter to the applicants from prison to apologise for having
incriminated them. That letter was admitted into evidence by the trial court,
at the applicants’ request. In the letter the witness had apologised to the
applicants and had written that the deposition had been drafted by the
investigator while she was giving information regarding the documents
presented before her and bearing her signature, and that in her weakened
condition she had felt psychological pressure to sign the deposition. During
the trial M.M. explained that she had written that letter because she had felt
remorseful for testifying against her cousin and the Kadagishvili family. She
also told the trial court that the second applicant had told her to implicate a
dead employee instead of her, but that she had not felt able to do so. On an
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3. Appellate proceedings
43. On an unspecified date the applicants appealed against their
conviction of 18 April 2006.
44. In their submissions, the applicants called into question various
findings of fact and law of the Tbilisi City Court, the court’s assessment of
witness evidence, and reliance on the statements of witnesses who had
concluded plea-bargaining agreements with the prosecution, as well as the
trial court’s statement that the plea-bargaining agreements had had the force
of binding precedent. The applicants applied to the Tbilisi Court of Appeal
to have some documents concerning Gammabank’s activities seized from
the National Bank of Georgia. The applicants also claimed that the
statements of Mr D.M., Ms M.M., Mr Z.G., and Ms N.P., should be
excluded from the case file on account of their incoherence. In addition,
they complained that Mr D.M. had been forced to testify against the second
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judges’ bench. The dock had glass partitions with several openings (and
without a ceiling), with one side being adjacent to the table assigned to the
defence counsel. The first applicant asked the presiding judge to allow him
to have a small table inside the dock. He explained that he had needed extra
space in order to arrange the material necessary for his defence. As
disclosed by the case-file material, it was indicated to the applicant that the
space in the dock did not allow for the placing of a table therein.
49. On 26 October 2006, during the last hearing before the appellate
court, the first applicant exclaimed “whose hands are we in?!” The presiding
judge found that expression to be in contempt of court and, noting that the
applicant had been previously warned on several occasions in respect of
various statements made by him, ordered the first applicant’s expulsion
from the courtroom. Towards the end of the hearing that day, the lawyer
applied to allow the first applicant’s return to the courtroom, so that the
latter could make his closing statements, but that application was dismissed
on the grounds that the first applicant had been given multiple warnings
before being expelled, and he would continue his disruptive behaviour if
returned to the courtroom. The defence lawyer made closing statements, and
a written copy of the applicant’s statement was included in the case file.
50. At the same final appellate hearing of 26 October 2006 the
applicants’ lawyer stated that he needed to familiarise himself with the
investigative document obtained from the United States Department of the
Treasury mentioned in the lower courts’ judgments. The prosecutor noted
that the material had been included in the case file. It does not appear that
the request was addressed by the court.
51. On 27 October 2006 the Tbilisi Court of Appeal delivered a
judgment, dismissing the applicants’ appeal and upholding their convictions
and sentences. Noting that no new evidence had emerged at the appellate
level, the court fully subscribed to the lower court’s factual assessment of
the case and to its legal considerations. As regards the confiscation order,
the appellate court reasoned that, whilst admittedly Article 52 § 3 of the CC
had come into force after the offences had been committed, the provision
could nevertheless apply retroactively, in so far as the issue of an additional
penalty did not affect the scope of the applicants’ criminal liability as such.
4. Appeal-on-points-of-law proceedings
52. On an unidentified date the applicants lodged an appeal on points of
law against the Tbilisi Court of Appeal’s judgment of 27 October 2006. In
their appeal the applicants primarily contested the lower courts’ findings of
fact and their assessment of the evidence and the relevant domestic law. The
applicants also complained about the lower courts’ decision to admit into
evidence the witness statements given by M.M. and D.M., the appellate
court’s refusal to admit into evidence the video recording provided by the
second applicant in respect of D.M., the potential negative impact that the
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5. Subsequent developments
54. On 18 April 2009 the third applicant was pardoned and released
from prison.
55. On 10 November 2012 the first applicant was released from prison,
apparently as a result of having been granted conditional early release.
56. As it transpires from the case-file material, sometime in 2015 the
Chief Prosecutor’s Office opened an investigation into exceeding official
powers as part of the criminal investigation carried out in the applicants’
case. The investigation appears to be ongoing.
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in the duty doctor’s notes, how frequently the medication was administered,
to what extent the applicant was supervised, and what the treatment plan
had been.
71. As regards the third applicant, a medical note regarding an
examination carried out on 8 February 2007 at a private clinic disclosed that
in addition to the original diagnosis of a benign brain tumour, he also had
stones in the gallbladder, a gastric ulcer, and inflammation of the upper part
of the small intestine. No medical history or information is available as to
whether these diagnoses were followed up on, what treatment was made
available to the third applicant, or if there was any treatment plan in place in
his regard.
72. On 9 July 2007 the applicants’ representatives before the Court (“the
representatives”) asked the management of Rustavi prison no. 2 to provide
them with a copy of the first and the third applicants’ medical files
recording the treatment provided to them in prison. The representatives also
enquired as to whether the first applicant had been regularly examined by an
endocrinologist and provided with the requisite diet. They brought the
prison management’s attention to the fact that the third applicant had been
known to have been suffering from pneumonia and severe kidney pain for
two months, thus also requiring a special diet in that regard.
73. On 12 and 13 July 2007 the second applicant asked the prison
authority to grant various medical specialists leave to enter Rustavi prison
no. 2 in order to conduct comprehensive medical checks and laboratory tests
on her husband and son with the aim of developing their treatment plan. She
specified that she was ready to cover the costs of that treatment. It does not
appear that the letter was answered by the relevant authorities.
74. In a letter dated 24 July 2007, the management of Rustavi prison
no. 2 replied to the representatives’ letter dated 9 July 2007, stating that the
state of health of the first and the third applicants was admittedly of
concern, but nevertheless was stable, and that they had benefited from
medical care on an outpatient basis from the date of their arrival at that
prison. It was noted that the applicants had been regularly provided with the
relevant drugs and symptomatic treatment. As regards the first applicant’s
situation, he had had episodic worsening of his health which had been
addressed with symptomatic treatment. The letter acknowledged that the
prison management’s medical staff did not include an endocrinologist. Yet,
the first applicant had still benefited, on one occasion, from an examination
by such a specialist, who had been called in from a civil hospital. The
endocrinologist did not recommend any adjustment to the conventional
outpatient treatment which had already been provided to the first applicant
in prison. A specialist would see the first applicant again, should the group
of medical experts of the Prison Service visit the prison again. As concerns
the third applicant, he had been treated for pneumonia, of which he had
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85. On 28 October 2010 the first applicant was placed in the prison
hospital. On an unspecified date he was transferred to Rustavi prison no. 17
following repeated requests on his part to that end. The Government’s
subsequent submissions suggested that the first applicant had not complied
with the diabetic diet in September and October 2011.
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acquired through criminal means, also of any proceeds derived from such property or
the property of the equivalent value. The court shall order the confiscation of property
acquired through criminal means for all intentional crimes provided for in this Code,
if it is proved that such property has been acquired by means of a crime.”
89. Article 194 of the CC, as it stood at the material time, defined money
laundering as “giving a legal form to money or other property, as well as the
concealment [of] the source, location, placement, allocation, [or] movement
of illicit income, real owner or possessor of property, or [of] a property
right”.
90. The Code of Criminal Procedure (1998) (“the CCP”), as it stood on
1 January 2004, provided as follows:
Article 113 § 3 [Circumstances established without proof. Res judicata effect]
“Facts to which a res judicata [quality is attached] can be rebutted by one of the
parties to the proceedings, a judgment, or a decision, if such facts are inconsistent
with the evidence assessed before a court and go against the judges’ inner conviction.”
Article 190 (object and grounds for a preliminary injunction to freeze assets)
“1. In order to guarantee a civil lawsuit, monetary sanctions, as well as procedural
confiscation and criminal compulsory measures, a court may issue a preliminary
freezing order in respect of property, including bank accounts, belonging to a suspect,
accused, or a person standing trial, [or] a person materially responsible for his or her
actions, if there is information, that the property will be hidden or spent, or that the
property had been obtained through criminal means. ...”
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95. The relevant parts of the Report of 30 June 2005 (CPT/Inf (2005)
12) on the visit to Georgia carried out by the European Committee for the
Prevention of Torture and Inhuman and Degrading Treatment or
Punishment (“the CPT”) from 18 to 28 November 2003 and from 7 to
14 May 2004, and of the Report of 25 October 2007 (CPT/Inf (2007) 42) on
the visit to Georgia carried out by the CPT from 21 March to 2 April 2007
were summarised in the cases of Ramishvili and Kokhreidze v. Georgia
(no. 1704/06, § 70, 27 January 2009) and Ghavtadze v. Georgia
(no. 23204/07, § 56, 3 March 2009).
96. The relevant parts of the Human Rights Watch Report “Undue
Punishment: abuses against prisoners in Georgia.” (Volume 18, No. 8(D)
September 2006) were summarised in the case of Ramishvili and
Kokhreidze (cited above, § 71).
THE LAW
97. The first and the third applicants complained that they had not
received adequate medical care in prison. They further submitted that the
conditions of their detention had been contrary to the standards established
under Article 3 of the Convention, which reads as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or
punishment.”
98. The Government contested that argument.
A. Admissibility
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the third applicant stayed at the prison hospital for slightly more than one
month (see paragraphs 60-61 above). While both applicants were
subsequently returned to Tbilisi prison, the first applicant was placed in
ordinary prison cell no. 130 only for three days before being transferred to
the medical ward of that prison on 19 October 2004, and the third applicant
was immediately placed on the medical ward on 18 September 2004 (see
paragraph 61 above). It was only in October 2005, approximately a year
after their placement at the medical ward, that the two applicants were
transferred to ordinary prison cell no. 130 (see paragraphs 61-63 above).
Considering that the applicants’ detailed account of the allegedly
unfavourable prison conditions only concerns ordinary cells no. 88 and
no. 130, and given the difference between the detention regimes of an
ordinary prison cell and that of a medical wing of a prison, the Court
considers that the applicants’ lengthy stay at the medical ward ended, for the
purposes of the calculation of the six-month time-limit, the “continuous
situation” in respect of the conditions of their detention in ordinary prison
cells in July-August and October 2004 (see Ananyev and Others, cited
above, § 77, in fine).
108. Accordingly, as the application was lodged with the Court on
3 April 2006, the first and the third applicants’ complaints regarding the
prison conditions at ordinary prison cells in July-August and October 2004
were submitted more than six months after the respective detention periods
had ended and such complaints must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
109. As concerns the applicants’ complaints concerning the conditions
of detention during their stay in cell no. 130 in October and November
2005, these complaints were submitted within the six-month time-limit. The
latter complaints are not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention or inadmissible on any other grounds.
They must therefore be declared admissible.
(iii) Rustavi prison no. 2
110. Considering the above-noted date of lodging of the present
application with the Court and the first and the third applicants’ placement
in Rustavi prison no. 2 on 7 December 2006, their complaints in respect of
that prison were also submitted within the six-month time-limit.
111. However, the Court notes that the core of the two applicants’
complaints with respect to the conditions of detention at Rustavi prison
no. 2 concerned the allegedly poor diet at that prison given the two
applicants’ health conditions (see paragraph 68 above and
paragraphs 114-115 below). This aspect of their submissions will therefore
be addressed as part of their complaints relating to the adequacy of medical
treatment in prison (see paragraphs 125 and 129 below).
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B. Merits
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underwent at his own expense. In any event, that procedure was, according
to the third applicant, belated.
(ii) The Government
116. The Government maintained that the two applicants had been
provided with adequate medical treatment at all times. In particular, in so far
as the first applicant was concerned, the insulin injections, while brought
into prison by the first applicant’s family, were given to the latter as part of
the Government’s anti-diabetes program. Furthermore, all the necessary
medication prescribed by relevant doctors had been provided to the
applicant by the State. The first applicant’s family had been able to
supplement the medication as and when they had chosen. The receipts
submitted in support of their claim regarding the availability of medication
did not reveal who it had been purchased by or for whom. As regards the
first applicant’s special diet, it had been provided following a
recommendation of a panel of experts on 11 September 2007 and
administered accordingly, even though the first applicant’s shopping history
in prison suggested, according to the Government, that he had not complied
with the diet in September and October 2011. As regards the third applicant,
his state of health was monitored adequately, and treatment provided in
accordance with the doctors’ recommendations.
117. In support of their argument, and in so far as the two applicants’
stay at Tbilisi prison no. 5 was concerned, the Government referred to the
applicants’ medical history relating to their time in the medical ward of that
prison. As concerns the applicants’ placement in Rustavi prison no. 2, the
Government relied on a medical note issued by a duty doctor of that prison,
and four medical notes made in respect of the first applicant throughout his
stay at the prison in question. As concerns the surgery referred to by the
third applicant, the Government submitted that it had been the third
applicant’s choice to have opted for an expensive procedure rather than the
standard surgery offered by the Government at the expense of the State.
(b) Conditions of detention
118. The first and the third applicants submitted that the conditions of
detention, and especially the severe overcrowding, in cell no. 130 of Tbilisi
prison no. 5 had been wholly inadequate.
119. The Government submitted that the conditions of detention in all
the relevant penal institutions had been satisfactory, without elaborating on
the conditions of detention in Tbilisi prison no. 5.
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during his placement at Rustavi prison no. 2 between 7 December 2006 and
his transfer to the medical wing of that prison following the Court’s
indication of interim measures under Rule 39 of the Rules of Court on
22 August 2007. A generic note of the duty doctor, and records of four
medical assessments of the first applicant apparently made in response to
his hypoglycaemic episodes (see paragraphs 70 and 81 above) cannot be
taken as proof of the Government’s argument regarding the consistency and
adequacy of the medical care administered to the first applicant. On the
contrary, the medical notes indicate that the first applicant had crises which
were only addressed symptomatically, and do not disclose how the overall
situation was managed, if at all. Nor does it appear that during his time in
Rustavi prison no. 2 the applicant was regularly seen by an endocrinologist,
as had been previously recommended (see paragraph 65 above), except for
one occasion (see paragraph 74 above). Furthermore, no record exists in
respect of the insulin injections administered to the first applicant at Rustavi
prison. The Court hence considers that the Government failed in discharging
their burden of proof concerning the availability of adequate medical
supervision and treatment to the first applicant in prison (see Irakli
Mindadze, cited above, § 47, with further references).
125. The situation is aggravated by the inability of Rustavi prison no. 2,
as expressly admitted by the relevant authorities, to provide the first
applicant with the requisite diabetic diet (see paragraph 75 above)
prescribed to him in November 2005 (see paragraph 64 above). The need to
provide the first applicant with the special diet was also flagged as an issue
by the duty doctor of Rustavi prison no. 2 on 20 January 2007 (see
paragraph 70 above). While the authorities appear to have allowed the first
applicant’s family to provide him with the relevant products as of March
2007 (see paragraph 77 above), his complaint of August 2007 discloses that
the products may not have always been let through (ibid.). Therefore, there
is no indication that the first applicant’s environment in detention was
adapted to his state of health (see Yunusova and Yunusov v. Azerbaijan,
no. 59620/14, § 147, 2 June 2016). This finding cannot be offset by the first
applicant’s seeming disregard of the diabetic diet four years later, in 2011
(see paragraphs 85 and 116 above).
126. The foregoing considerations are sufficient for the Court to
conclude that there has been a violation of Article 3 in so far as the first
applicant’s medical treatment in prison is concerned.
(ii) The third applicant
127. The third applicant also complained about the inadequacy of
medical care in respect of his health issues, and the failure of the prison
authorities to provide him with the special diet. Against this background, the
Court notes that his diagnosis of a pituitary adenoma (a benign brain
tumour) and complaints of weakness, insomnia, and permanent headaches
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...
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or,
if he has not sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him...”
A. Admissibility
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effective remedy was available to them, the Court notes that this complaint
was raised before it on 3 April 2006, while the event complained of
occurred at the end of July 2004 (see paragraphs 8-9 above). Accordingly,
this complaint has been introduced out of time and must be rejected, in
accordance with Article 35 §§ 1 and 4 of the Convention.
139. As concerns the remainder of the applicants’ complaints under
Article 6 of the Convention, the Court finds that these complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention, nor are they inadmissible on any other grounds. They must
therefore be declared admissible.
B. Merits
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which had been one of the elements on which their conviction had been
based.
143. The first applicant also complained that he had been seated in a
barred dock in the courtroom of the appellate court which had not
constituted adequate facilities in which to prepare and make his case. Given
the absence of a table in that dock, he had been unable to arrange documents
and work on the case-file material to efficiently defend himself during the
appellate proceedings in a financial case which had required his specialist
knowledge. Furthermore, his eventual expulsion from the courtroom had
deprived him of an opportunity to deliver his closing statements in person.
144. The applicants furthermore complained of the Supreme Court’s
refusal to admit their appeal on points of law for examination, stating that
their case had been the first of its kind and no relevant precedent had
existed, rendering the Supreme Court’s consideration of the matter all the
more necessary.
(b) The Government
145. The Government submitted that the plea-bargaining procedure had
been attended by relevant procedural standards through which the
applicants’ former colleagues could have given fully informed consent, and
the witnesses denied having been subjected to any pressure. Furthermore,
the ten witnesses had all attested to the different roles they had played in the
criminal schemes employed by the applicants; and their statements had been
consistent with those given at the pre-trial investigation stage. While some
had been unable to give the legal definition of “money laundering” and
“fraud”, it had not been their role as witnesses to have done so. Even
accepting that some of the witnesses had not been aware of the ultimate goal
of their otherwise illegal actions, such a lack of knowledge could not have
altered the nature of the criminal activities or the culpability of those
involved. In any event, in the Government’s submission, the witness
statements had constituted only one part of the evidence on which the
applicants’ conviction rested. The evidence had also included the results of
the searches of Gammabank’s offices, falsified letterheads, seals, and
facsimiles, payment orders in respect of the fictitious companies,
documentation obtained from personal computers, documentation received
from the United States Department of the Treasury, the Act of Revision, and
other items.
146. As concerns the applicants’ argument concerning the failure to
isolate witnesses and the possible negative impact upon their trial, the
Government submitted that while some witnesses may not have been
isolated during the hearing of 9 June 2005, the witnesses in question had
already given their statements to the investigating authorities, as well as
during the court hearing of 21 February 2005 in respect of the plea-
bargaining procedure, and subsequently in January 2006 when they had
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after the appellate hearings had started on 21 July 2006, and following six
prior warnings given to the first applicant in respect of his behaviour. As the
personal attendance of a defendant did not have the same significance for an
appellate hearing, the applicant’s expulsion, following multiple warnings
not to interfere in the administration of justice, had not, in the Government’s
submission, been in breach of Article 6 of the Convention.
150. The Government further submitted that the Supreme Court, as a
court of cassation which did not assess a case on its merits, was a body
determining judicial policy of the country and whether a case had important
precedential value. Therefore, the Supreme Court’s decision to declare the
applicants’ appeal on points of law inadmissible despite their argument
concerning the importance of their case for the development of the Supreme
Court’s case-law, had been in compliance with their right of access to a
court under Article 6 of the Convention.
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applicants had been charged (see paragraphs 19-20, 22-27, and 31-
32 above).
157. Furthermore, while the trial court noted – after reviewing the
witness evidence examined before it – that the plea-bargaining agreements
concluded with the ten witnesses had had the force of binding precedent
(see paragraph 40 above), the Court does not lose sight of the fact that no
finding of fact in that procedure was admitted in the applicants’ case
without full and proper examination at the applicants’ trial (contrast and
compare Navalnyy and Ofitserov v. Russia, nos. 46632/13 and 28671/14,
§ 105, 23 February 2016). Moreover, the domestic legislation and judicial
practice, while accepting the potential res judicata effect of facts established
in final judgments, provided for the verification of the admissibility and
credibility of such facts at the request of the parties to the proceedings, and
the domestic courts were free not to accept such facts as established if the
evidence available in the case-file material before them so warranted (see
paragraphs 90 and 93 above). In such circumstances, reference by the trial
court to the precedential value of the plea-bargaining agreements confirmed
in another set of proceedings did not, in and of itself, have a prejudicial
effect on the fairness of the criminal proceedings against the applicants
(contrast and compare with Navalnyy and Ofitserov, cited above, §§ 107-
108). What is more, while the Supreme Court was an effective forum for
addressing any such negative impact (see paragraph 93 above), the
applicants’ cassation appeal did not raise the question of possible prejudicial
effect or other impact the plea-bargaining agreements may have had upon
the fairness of the criminal proceedings, save for challenging the difference
in the respective sentences (compare paragraphs 52 and 93 above).
158. The Court further takes note of the applicants’ contention that the
alleged non-isolation of some witnesses during one of the hearings
negatively influenced the trial (see paragraph 21 above). It remains unclear
how many witnesses were present at the trial court’s hearing of 9 June 2005.
In any event, it does not appear that the applicants duly raised the matter
before the appellate and cassation courts in accordance with the applicable
procedure. In such circumstances, the Court does not find this aspect of the
applicants’ complaint to be sufficiently substantiated.
159. Furthermore, and in any event, in finding that the fairness of the
proceedings had not been undermined, the Court pays particular regard to
the fact that the applicants’ conviction was based on a body of evidence
including witness statements given by other employees of the bank who had
not been part of the plea-bargaining process (see paragraphs 12, 28, and 30
above), and various items of evidence, including false seals and letterheads
seized from the bank, financial records, documents retrieved from the first
applicant’s second son’s personal computer, and other evidence (see
paragraphs 36-40 above).
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164. In this connection, the domestic courts, which are normally best
placed to assess the credibility of witnesses and the relevance of evidence to
the issues in the case (see Karpenko v. Russia, no. 5605/04, § 80, 13 March
2012), addressed the applicants’ related requests to have D.M.’s statements
declared inadmissible and took into account D.M.’s arguments concerning
the absence of coercion (see paragraphs 35 and 45 above). In addition, the
Court particularly notes the fact that the witness in question was re-
examined by the trial court after he retracted the initial statement, in the
applicants’ presence, and the latter were afforded an opportunity to put
questions to the witness (contrast and compare Cabral v. the Netherlands,
no. 37617/10, §§ 10, 13, and 34-37, 28 August 2018, and Bondar
v. Ukraine, no. 18895/08, §§ 75-82, 16 April 2019).
165. As concerns the applicants’ other requests, including those relating
to the calling of certain witnesses and admission of certain documents into
evidence, they were duly addressed (see paragraphs 33-34 and 45-46 above)
by the first-instance court and the Court of Appeal. In the light of the
general principles concerning the calling of defence witnesses (see
Murtazaliyeva v. Russia [GC], no. 36658/05, §§ 150-168, 18 December
2018), the Court does not consider that the trial and appellate courts’ refusal
to question certain witnesses on the applicants’ behalf had a negative impact
upon the overall fairness of the proceedings in the applicants’ case.
Furthermore, and in any event, the Court emphasises the fact that the
applicants did not pursue the matter before the Supreme Court (see
paragraph 52 above).
166. Additionally, the Court reiterates that the applicants’ conviction
was based on a large body of corroborating evidence (see paragraph 159
above). The applicants having had the benefit of adversarial proceedings,
the Court finds that no issue under Article 6 of the Convention arises on
account of the domestic courts’ treatment of the applicants’ applications
regarding admissibility of evidence and questioning of witnesses.
(γ) Access to evidence
167. The Court observes that the applicants’ defence lawyer requested
access to the investigative document obtained from the United States
Department of the Treasury at the final hearing of the appellate court (see
paragraph 50 above). However, the first applicant appears to have
familiarised himself with the part of the case file which had included the
impugned document (compare paragraphs 16 and 40 above), and that
document had been included in the list of evidence sent to the trial court
(see paragraph 16 above). In the absence of the applicants’ complaints
regarding the matter either before the first-instance court or the appellate
court at an earlier stage of the proceedings, and given that the applicants
failed to raise this issue before the Supreme Court (see paragraph 52 above),
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the Court does not find the applicants’ complaint regarding the limited
access to the impugned document to be sufficiently substantiated.
168. Therefore no issue arises under Article 6 of the Convention in this
connection.
(δ) The first applicant’s placement in a dock during the appellate proceedings,
and his subsequent expulsion from the courtroom
169. The Court reiterates that a measure of confinement in the
courtroom may affect the fairness of a hearing guaranteed by Article 6 of
the Convention. In particular, it may have an impact on the exercise of an
accused’s rights to participate effectively in the proceedings and to receive
practical and effective legal assistance (see Yaroslav Belousov v. Russia,
nos. 2653/13 and 60980/14, § 149, 4 October 2016).
170. Turning to the circumstances of the present case, the Court affords
particular importance to the fact that the first applicant was not placed in a
barred dock during the proceedings before the first-instance court, and the
applicant was able to fully participate in those proceedings while seated
next to his lawyer (see paragraph 18 above, contrast and compare with
Yaroslav Belousov, cited above, §§ 151-52). The disputed measure was used
only at the appellate level and, contrary to the first applicant’s submissions
referring to a barred dock, he was placed in a dock with glass partitions (see
paragraph 48 above). While, in principle, such an arrangement could have
had an impact on his powers of concentration and mental alertness, he
benefited from the assistance of his defence lawyer throughout the appellate
proceedings. Nothing suggests that the applicant’s placement in the dock
made it impossible for him to communicate confidentially and freely with
his lawyer or to communicate freely with the court. The applicant himself
did not make such allegations either (see Ashot Harutyunyan v. Armenia,
no. 34334/04, § 138, 15 June 2010). The Court therefore concludes that the
first applicant was able to put his case effectively and it cannot be said that
the measure in question placed him at a substantial disadvantage vis-à-vis
the prosecution.
171. As concerns the first applicant’s expulsion from the courtroom of
the Tbilisi Court of Appeal, the Court reiterates that the personal attendance
of the defendant does not take on the same crucial significance for an appeal
hearing as it does for the trial hearing according to the relevant general
principles under the Convention (see Hermi v. Italy [GC], no. 18114/02,
§ 60, ECHR 2006-XII, with further references). It particularly notes the fact
that the first applicant was expelled after having been given prior warnings
(see paragraph 49 above; contrast and compare with Idalov v. Russia [GC]
no. 5826/03, §§ 176-178, 22 May 2012), and only during the last hearing
before the appellate court. Furthermore, the first applicant was duly
represented by his defence lawyer who made closing statements, and the
first applicant’s statement was added by the court to the case file (see
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178. The applicants complained of the fact that their property had been
confiscated as a result of a retroactive application of a criminal sanction.
They relied on Article 1 of Protocol No. 1 to the Convention. The Court, of
its own motion, categorised the complaint under Article 7 of the
Convention, and also notified the Government thereof. The provisions in
question read as follows:
Article 7
“1. No one shall be held guilty of any criminal offence on account of any act or
omission which did not constitute a criminal offence under national or international
law at the time when it was committed. Nor shall a heavier penalty be imposed than
the one that was applicable at the time the criminal offence was committed.
2. This article shall not prejudice the trial and punishment of any person for any act
or omission which, at the time when it was committed, was criminal according to the
general principles of law recognised by civilised nations.”
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has, for example, considered of its own motion complaints under Articles or
paragraphs not relied on by the parties. A complaint is characterised by the
facts alleged in it and not merely by the legal grounds or arguments relied
on (see Molla Sali v. Greece [GC], no. 20452/14, § 85, 19 December 2018,
with further references). Since the main focus of the present case is the
retroactive application of a criminal sanction rather than the deprivation of
property as such, the Court will consider the case solely under Article 7 of
the Convention.
A. Admissibility
180. The Court observes at the outset that the confiscation order
concerned several properties (see paragraph 41 above). Among other things,
it concerned the building where Gammabank’s offices had been located, but
which, according to the court, “[had been] fictitiously sold to General
Charter Bank”. In that connection, the Court takes note of the fact that the
building and its supposed ownership was mentioned during the criminal
proceedings against the applicants on several occasions (see paragraphs 10,
12, and 20 above). Even though the domestic courts found the selling of that
property to have been a sham transaction, and even assuming that it had
been indeed owned by the bank, the applicants – who had not been the de
jure owners of that bank – failed to substantiate their individual titles to that
property in order to demonstrate the extent to which they had been affected
by the confiscation measure. As concerns the shell companies and the
related confiscated property, the applicants had maintained throughout the
proceedings the absence of any links to those companies. While the
domestic courts established that the applicants had been the de facto owners
or managers of those companies for the purposes of carrying out various
illicit transactions, the Court does not find the applicants’ individual titles to
the property of such companies sufficiently established in order for the
Court to assess the extent to which the confiscation order affected the
applicants. This part of their complaint must therefore be rejected as
manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the
Convention.
181. By contrast, the Court will address the application of the
confiscation order to the applicants’ personal bank accounts. The Court
finds that this aspect of the applicants’ complaint is not manifestly ill-
founded within the meaning of Article 35 § 3 (a) of the Convention, nor is it
inadmissible on any other grounds. It must therefore be declared admissible.
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B. Merits
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191. The Government submitted that they had complied with the interim
measure indicated by the Court by transferring the third applicant to the
prison hospital and administering the requisite examinations and treatment
to him. As concerns the first applicant, there had been no need to place him
in the prison hospital as Rustavi prison no. 2 had been recently refurbished,
with a medical ward in which the first applicant had been subsequently
placed.
192. The first applicant reiterated his complaint that the Government had
failed to abide by the interim measures of 22 August 2007 by failing to
place him at the prison hospital until 28 October 2010. He further noted that
he should have been placed in a civilian hospital rather than the prison
hospital. As concerns the third applicant, the prison hospital had not been an
adequate medical facility. The first applicant also submitted that on 21 July
and 15 August 2011 his representatives before the Court were prevented
from meeting him in prison to discuss his position in respect of the
Government’s observations before the Court.
193. The relevant general principles have been summarised in, among
other authorities, Yunusova and Yunusov (cited above, §§ 109-12).
194. Turning to the circumstances of the present case, the Court notes
that the first applicant’s complaint concerning the inability to meet his
representatives on two occasions to discuss his position in respect of the
Government’s observations before the Court lacked further elaboration and
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was unsupported by any evidence. Therefore the Court does not consider it
to have been sufficiently substantiated to warrant consideration.
195. By contrast, on 22 August 2007 the Court advised the Government
of Georgia, under Rule 39 of the Rules of Court, in the interests of the
parties and the proper conduct of the proceedings before the Court, to
transfer the first and the third applicants to a medical establishment capable
of dispensing adequate medical treatment for each of their diseases.
196. Following the indication of the interim measure, on 12 September
2007 and 23 February 2009 the Government provided the Court with letters
containing an overview of the two applicants’ medical conditions. The
letters indicated that the third applicant had been placed in the prison
hospital, and the relevant medical documentation demonstrated that he had
received various medical examinations and treatment. As concerns the first
applicant’s state of health, the Government submitted that it had been stable
and had not required his transfer to a medical facility, in view of the fact
that Rustavi prison no. 2 had been a newly refurbished prison with a
medical ward in which the first applicant had been placed (see
paragraphs 80 and 84 above). However, no medical documents were
attached in support of the argument except for a generic note of a duty
doctor of Rustavi prison no. 2 stating that the first applicant had been a
chronic diabetic patient and had been receiving adequate treatment (see
paragraph 81 above). It was only on 28 October 2010, more than three years
following the indication of the interim measures to the Government that the
first applicant was placed in the prison hospital (see paragraph 85 above).
However, given the considerable gap of time between the two events, the
Court considers that such placement did not follow the interim measures of
22 August 2007 but constituted a separate action falling beyond the scope of
the interim measure in question.
197. In this connection, the Court observes that the Government did not
dispute their obligation under Article 34 of the Convention to comply with
the interim measure indicated by the Court. Rather, they disputed the
applicants’ submissions and insisted that they had complied with the interim
measure in its entirety.
198. The Court will address the situation of the two applicants in turn.
199. In so far as the first applicant is concerned, the Court cannot accept
the Government’s submissions that all the material relevant to the first
applicant’s state of health and medical treatment were submitted to the
Court, and that the existing case-file material demonstrated the absence of
the need to place him in a medical establishment. The Court has already
found that no medical history existed in respect of the first applicant’s time
in Rustavi prison no. 2 (see paragraph 124 above). Against that background,
the provision of a generic note of a duty doctor of that prison, stating that
the first applicant’s condition was stable and that he had been provided with
adequate treatment on the medical ward of the prison cannot suffice to
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support the Government’s argument that there was no need to place him at
an external or dedicated prison medical facility.
200. In this connection, the Court reiterates that whilst the formulation
of an interim measure is one of the elements to be taken into account in the
Court’s analysis of whether a State has complied with its obligations under
Article 34, the Court must have regard not only to the letter but also to the
spirit of the interim measure indicated (see Paladi v. Moldova [GC],
no. 39806/05, § 91, 10 March 2009, and Patranin v. Russia, no. 12983/14,
§ 52, 23 July 2015) and, indeed, to its very purpose. The Court notes in this
respect that the main purpose of the interim measure in the present case –
and the Government did not claim to be unaware of this – was to prevent the
applicants’ exposure to inhuman and degrading suffering in view of their
poor health. In its interim measure the Court therefore advised the
Government to transfer the applicants to a medical establishment capable of
dispensing adequate medical treatment for each of their diseases. The
applicants contest to have been transferred to the proper establishments and
to have received the adequate treatment. In these circumstances, it is crucial
for the Court to be provided information by the Government concerning the
applicants’ state of health supported by the relevant medical documents,
without which the Court would not be able to assess the quality of the
treatment the applicants received and the adequacy of the conditions of their
detention for their medical needs.
201. The Court thus considers that the Government’s failure to provide
the Court with the relevant medical documents and its insistence that there
was no need to place the first applicant in an external or dedicated prison
medical establishment, without demonstrating that the facility (medical
ward of Rustavi prison no. 2) where the first applicant was placed had been
able to provide him with the adequate treatment for each of his diseases,
impaired the content and purpose of the interim measure. Accordingly, in so
far as the first applicant is concerned, the Government failed to demonstrate
to the Court that the interim measure was complied with.
202. By contrast, and in so far as the third applicant is concerned, having
regard to the information and the medical documentation provided to it by
the Government (see paragraph 80 above), the Court is satisfied that by
placing the third applicant at the prison hospital the Government complied
with the interim measure indicated by the Court.
203. In the light of the foregoing, and in so far as the first applicant is
concerned, the Court concludes that the respondent State has failed, in the
present case, to comply with the interim measure indicated under Rule 39 of
the Rules of Court, in breach of its obligation under Article 34 of the
Convention. By contrast, the Government complied with the interim
measure indicated by the Court in so far as the third applicant is concerned.
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A. Damage
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210. The applicants also claimed a total of EUR 13,174 for legal costs
and other expenses incurred before the Court.
211. The Government contested the claim as unsupported by evidence.
212. According to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the above criteria and
the absence of relevant documents, the Court decides that no award shall be
made under this head.
C. Default interest
213. 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.
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7. Holds that the respondent State has failed to comply with its obligations
under Article 34 of the Convention in respect of the first applicant;
8. Holds that the respondent State has not failed to comply with its
obligations under Article 34 of the Convention in respect of the third
applicant;
9. Holds
(a) that the respondent State is to pay the first and the third applicants
each, within three months from the date on which the judgment becomes
final in accordance with Article 44 § 2 of the Convention, EUR 12,000
(twelve thousand 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;
10. Dismisses the remainder of the applicants’ claim for just satisfaction.
57