The ECHR judgment of March 28, 2019 in the case of Kereselidze v. Georgia (application No. 39718/09).
In 2009, the applicant was assisted in preparing the application. Subsequently, the application was communicated to Georgia.
The case is appealing against the correction of the start date of serving a sentence of imprisonment without an oral hearing. The case has violated the requirements of paragraph 1 of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms. There are no violations of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Circumstances of the case
The applicant was convicted of murder and sentenced to imprisonment for a term of 20 years (hereinafter referred to as the first sentence). The applicant was later found guilty of attempted escape from the place of deprivation of liberty and sentenced to imprisonment for a term of four years and six months (hereinafter - the second sentence). The trial court indicated that the sentence of sentences began to flow from the date of the second offense.
After this decision was made by the court of first instance, the provisions of the Criminal Code of Georgia governing sentencing in the aggregate of sentences were amended, according to which the final punishment in the aggregate of sentences should be calculated from the date of a later sentence.
The Supreme Court of Georgia, having examined the applicant’s complaint, reduced the sentence for the commission of the first crime to 15 years imprisonment and recognized that the sentence of the applicant in the aggregate of sentences began to flow from the date he committed the second crime.
Accordingly, the sentence imposed on the applicant was due to expire on 29 September 2010.
The Court of Appeal upheld the second sentence imposed on the applicant and ruled that he should have served his sentence based on the totality of sentences that began to flow on the date of the second offense. At the time when the Supreme Court of Georgia considered the applicant's complaint on legal issues, the court of appeal, in written procedure and without the participation of the parties, decided to correct the error in the decision: the date from which the sentence began to run on the aggregate of sentences was changed to the date of appointment last punishment.
The Supreme Court of Georgia upheld the applicant's legal complaint filed for the second sentence. The Supreme Court of Georgia noted that the court of appeal did not take into account the reduction in the term of the first sentence imposed on the applicant. He took into account the corrected ruling of the court of appeal and admitted that the term for the re-calculated punishment in the aggregate of sentences began to flow from the date the sentence for the second crime was sentenced. This punishment was to expire on April 12, 2013, but the applicant was released earlier, in January 2013.
The applicant's request for correction of errors in the decision of the Supreme Court of Georgia regarding the date of commencement of the sentence on the totality of sentences was dismissed.
QUESTIONS OF LAW
Concerning compliance with article 6, paragraph 1, of the Convention. (a) Application of Article 6 § 1 of the Convention. The correction of the start date of the sentence on the aggregate of sentences assigned to the applicant introduced by the court of appeal into the sentence affected the expected date of his release. The question of whether the mistake made in the earlier decisions and decisions was sufficiently obvious, and whether it could be corrected with the help of the error correction mechanism, seemed at least to have various interpretations. Accordingly, the procedure for correcting errors in court decisions applied in the applicant's case, by its nature, influenced the determination of the punishment imposed on the applicant as part of the criminal proceedings in his case. Consequently, Article 6 § 1 of the Convention could be applied in the present case.
(b) Merits. The applicant's arguments concerning the specific circumstances of the case, for example, on the existence of a decision of the Supreme Court of Georgia made at an earlier date, which indicated the date the sentence commenced on the basis of the sentence (this decision was not explicitly set aside), whether the court of appeal the scope of Article 615 of the Code of Criminal Procedure (hereinafter - the Code of Criminal Procedure of Georgia) (which regulated the limits for making corrections), and whether the amended decision of the court of appeal could be equated with a deterioration of the legal status The applicant’s statements, in violation of the provisions of the Code of Criminal Procedure of Georgia, made his complaint about corrections made to the court decision, at least not unreasonable, and demanded consideration of this issue in the courts of Georgia in the framework of adversarial proceedings.
In this connection, the Court notes that the amended decision of the court of appeal was made without the participation of the applicant and was handed to him after the final decision of the Supreme Court of Georgia. Indeed, the Supreme Court of Georgia was aware of the amended decision of the court of appeal, and he apparently agreed with this decision by explicitly stating the corrected date of the start of the sentence for the aggregate sentences. However, by the time the amended decision of the court of appeal was made by the court of appeal, the applicant’s complaint regarding legal issues had already been sent to the Supreme Court of Georgia. In addition, given that the Supreme Court of Georgia examined the case without an oral hearing, the applicant was virtually unable to find out about the appeal court making a corrected decision and present his arguments in addition to the previously filed complaint or separate claim regarding the revised sentence commencement date in the aggregate sentences and its compliance with the legislation of Georgia.
Regardless of whether the matter was examined from the point of view of the right to access to justice or the right to an oral hearing, the essence of the issue was that due to the application of the procedure for correcting errors in judicial decisions to the applicant in such a way that he was deprived of the opportunity to present his arguments as regards the change in the start date of the sentence based on the totality of verbal or written sentences, the trial of the criminal case brought against the applicant became unfair.
RESOLUTION
In the case there was a violation of the requirements of paragraph 1 of Article 6 of the Convention (adopted unanimously).
Regarding compliance with article 5 of the Convention. The applicant was imprisoned on the basis of a sentence imposed by a competent court. In this connection, it was necessary to consider whether the decision to change the start date of the sentence on the basis of the sentence violated the appeal court's decision earlier in the proceedings, which the Court found to be in violation of Article 6 of the Convention, the requirement of “lawfulness” in in accordance with paragraph 1 of Article 5 of the Convention.
In the present case, it was necessary to establish whether the applicant was “lawfully” deprived of his liberty for a term that actually increased after the date of the sentence began to be changed in the aggregate of sentences. In this regard, the question was whether the mistake made by the Georgian courts regarding the commencement date of the sentence imposed by the aggregate of sentences was obvious, as a result of which the correction of this mistake was expected and permissible in accordance with the law and practice in force during the period related to to the circumstances of the case, or such a correction went beyond the relevant provisions of the law.
On the one hand, the Criminal Code of Georgia, as amended at the time the applicant committed the second crime, did not directly specify the start date of the sentence on the basis of the aggregate sentences. On the other hand, the subsequent correction of errors in the court decision was apparently based, albeit indirectly, on the amended version of the Georgian Criminal Code, which explicitly stated that the date of commencement of the sentence on the basis of the sentence was the date of the final sentence. In a decision in another case, the Supreme Court of Georgia clarified that the relevant provision could be retroactive. This decision preceded both the introduction of corrections by the court of appeal in the court decision and the adoption by the Supreme Court of Georgia of a final decision in the applicant’s case.
Consequently, although the question of the predictability of the application of the legislation regarding the start date of the sentence for the aggregate sentences was not examined by the Georgian courts, the judgment was corrected, apparently, after clarifications given by the Supreme Court of Georgia in another case. In such circumstances, the Court is not entitled to make assumptions as to the lawfulness of the applicant’s deprivation of liberty after 29 September 2010, which was carried out on the basis of legislation and practice in force during the period relevant to the circumstances of the present case. Accordingly, the applicant's ex facie deprivation of liberty did not violate Georgian law.
The Court has previously rejected the argument that each violation of Article 6 of the Convention entailed a violation of Article 5 § 1 of the Convention. Although the Court found a violation of Article 6 of the Convention, it did not consider that the nature of the violation destroyed the very essence of the right guaranteed by this Article of the Convention. Thus, a violation of Article 6 of the Convention did not constitute an explicit denial of access to justice.
Consequently, the applicant’s deprivation of liberty was justified in accordance with Article 5 § 1 (a) of the Convention.
RESOLUTION
In the case there was no violation of the requirements of Article 5 of the Convention (adopted unanimously).
COMPENSATION
In application of Article 41 of the Convention. The Court awarded the applicant 1,500 euros (EUR) in respect of non-pecuniary damage.