Case No. 71503/01
Judgment date: 8 April 2004
The applicants were represented by lawyers from Article 42 of the Constitution and a lawyer and member of the Union of Independent Lawyers of Georgia.
The applicant, Tengiz Assanidze, was formerly the mayor of Batumi and a member of the Ajarian Supreme Council. He was accused of illegal financial dealings in the Batumi Tobacco Manufacturing Company, and of unlawful possession and handling of firearms. On 28 November 1994 he was sentenced to eight years of imprisonment and orders were made for his assets to be confiscated. On 27 April 1995 the Supreme Court of Georgia upheld the applicant’s conviction for illegal financial dealings. The applicant was granted a pardon by the President of the Republic on 1 October 1999, but was not released by the local Ajarian authorities. While the applicant was still in custody (despite having been pardoned), further charges were brought against him on 11 December 1999 in connection with a separate case of kidnapping. On 2 October 2000 the Ajarian High Court convicted the applicant and sentenced him to twelve years of imprisonment. Although he was subsequently acquitted by the Supreme Court of Georgia on 29 January 2001, he was still detained by the Ajarian authorities in a cell at the Short-Term Remand Prison of the Ajarian Security Ministry for over three years.
In determination of the findings under Article 5(1) the Court examined applicant’s detention in two separate periods, rather than continuous from 1 October 1999 as claimed by the applicant. The Court considered that the period of detention from 1 October 1999 (when the presidential pardon was granted) to 11 December 1999 had to be declared inadmissible as being out of time. As to the period from 11 December 1999 (when the applicant was charged) to 29 January 2001, it found that the complaint fell outside the scope of the case referred to the Grand Chamber for examination. The Court examined the applicant’s detention from 29 January 2001 onwards, when the Supreme Court of Georgia ordered the applicant’s release. The applicant had remained in custody since then, despite the fact that his case had not been reopened and no further order had been made authorising his detention. The Court considered that “to detain a person for an indefinite and unforeseeable period, without such detention being based on a specific statutory provision or judicial decision, is incompatible with the principle of legal certainty and arbitrary, and runs counter to the fundamental aspects of the rule of law”. It found violation of Article 5(1).
The Court also found a violation of Article 6(1) in that the judgment of 29 January 2001, which was a final and enforceable judicial decision, had not been complied with more than three years later, thus depriving the provisions of Article 6(1) of the Convention of all useful effect.
Having regard to the particular circumstances of the case and the urgent need to put an end to the violation of Articles 5(1) and 6(1), the Court considered that the respondent State must secure the applicant’s release at the earliest possible date. In addition it awarded EUR 150,000 “in respect of all the damage sustained”, for applicant’s detention from 29 January 2001.
The issue of jurisdiction was not raised and contended by either party in their submissions. However, the Court examined whether any such issues would arise given the history of Georgia and status of Ajarian Autonomous Republic in comparison with two other autonomous entities (Ossetia and Abkhazia, which had separatist aspirations). The Court concluded that the Ajarian Autonomous Republic was an integral part of the territory of Georgia and subject to its competence and control. It therefore found that the actual facts out of which the allegations of violations arose were within the “jurisdiction” of Georgia within the meaning of Article 1 of the Convention. Furthermore, even though in the domestic system those matters are directly imputable to the local authorities of the Ajarian Autonomous Republic, it was solely the responsibility of the Georgian State engaged under the Convention.