Alleged violation of article 5, pars. 1,2,3 and 4 of the European Convention of Human Rights with respect to the applicants

Although, in the case Fox, Campbell and Hartley v. the United Kingdom the European Court of Human Rights stated that an interval of 7 hours between detention and delivery of the information complies with this requirement (30 August 1990, Series A, no. 182), but it also determined principles of application of Article 5, par. 2. Namely, as one can read there: "Paragraph 2 of Article 5 (art. 5-2) contains the elementary safeguard that any person arrested should know why he/she is being deprived of his/her liberty. This provision is an integral part of the scheme of protection afforded by Article 5 (art. 5): by virtue of paragraph 2 (art. 5-2) any person arrested must be told, in simple, non-technical language that he/she can understand, the essential legal and factual grounds for his/her arrest, so as to be able, if he/she sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph 4 (art. 5-4) (see the van der Leer judgment of 21 February 1990, Series A no. 170, p. 13, § 28). Whilst this information must be conveyed "promptly" (in French: "dans le plus court délai"), it need not be related in its entirety by the arresting officer at the very moment of the arrest.

Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features".

Considering the above statement, the applicants emphasize that in appellants' case Article 5, par. 2, has been violated with respect to them. They state that this issue could not be discussed in case, if the applicants would be informed "promptly" that they were detained or arrested, at least, after they appeared at the prosecutors' office and that is why their right to free displacement was prevented. Therefore, the applicants state that their detention was an arbitrary and illegal act by the prosecutors' office. Article 5, pars. 1 and 2, is clearly applicable when someone incurs this kind of detention.

In regard with Article 5 of the Convention, it is also important to examine the question of application of preventive measures to the applicants. Both applicants were sentenced to three-month pretrial imprisonment. It is very interesting what was the reason and ground for application of the strictest preventive measure - imprisonment of the applicants. It is to be mentioned that the prosecutors' office did not originate this matter and based its petition seeking application of pretrial imprisonment as a preventive measure to the applicants upon the grounds prescribed in the relevant Articles of the criminal procedure code of Georgia. The prosecutors' office maintained the same position at the Mtskheta Regional Court and then at the investigative collegium of the Tbilisi Appellate Court at the hearing on application of a preventive measure. Namely, their position was the following:

"Because we have a reasonable suspicion that the accused N. Lobzhanidze will hide from investigation and trial in order to escape possible penalty and, thus, will prevent finding the truth in this case, being in freedom she will hide from the parties to this case and will commit another crime, we consider it reasonable to sentence her to three-month pretrial imprisonment" (see the attached Annex A.. - protocol of hearing at the Mtskheta Regional Court- Iosava).

Prosecutor Ok. evaluated a "social danger" of the first applicant exactly with the same words.

If one not familiar with this case reads the prosecutor's above statement, he/she will be surprised that the applicants are contesting their sentence to pretrial imprisonment as a preventive measure. Though, it is very easy to show the baseless of the above statement by noting that the prosecutors' office did not even try to prove its "reasonable suspicion" by any evidence, which would be attached to the case.

It is to be mentioned that the prosecutors' office sought to release the third accused on this case, Tina Sv. on bail with the motive that she was seventy years old. Namely, at the hearing of the applicants' appeal of preventive measure at the investigative collegium of the Tbilisi Appellate Court the prosecutor stated regarding Tina Sv. the following:

"The accused Sv. is seventy years old and therefore pretrial imprisonment can be rarely applied in such case. If not this circumstance our position would be the same". (see the attached Annex A.. - protocol of investigative collegium).

First of all, it is to be mentioned that pursuant to the Georgian criminal legislation, pretrial imprisonment as a preventive measure is not applied to seventy years old women "as a rule" and not "rarely" like the prosecutor mentioned. As it seems, he did not know about it. But probably the prosecutor intentionally mentioned "rarely", because if he wanted, Tina Sv.'s age would not prevent him to seek pretrial imprisonment against her as well. There are many such examples in Georgian reality.

The fact that the prosecutors' office's reference to Sv.'s age was not sincere is proved by prosecutor Ok.'s position expressed at the Mtskheta Regional Court at the hearing of this issue, when along with Tina Sv.'s age he mentioned several circumstances, why he did not seek to apply pretrial imprisonment to Tina Sv.. Namely, he stated:

"Taking into account that the accused Tina Sv. is seventy years old, has no previous convictions, has a permanent address and we have reasonable suspicion that she will not hide from investigation and trial, will not prevent finding truth on this case we consider it reasonable to release Tina Sv. on bail for amount of 15,000 (fifteen thousand) Gel" (see the attached Annex A..).

It is evident that the prosecutors' office's position would be more fair and sincere, if it had the same approach to Dr. Tina Sv. as to the applicants and justified its demand on releasing her on bail just with such objective circumstance that she was seventy years old. Of course, the applicants do not insist that Dr. Tina Sv. should be sentenced to pretrial imprisonment. On the contrary, because of her age's factor, she should be applied another preventive measure, a bail, in this specific case. This is correct. Though, the applicants just would like to attach kind attention of the Court to the prosecutor's position, when he lists some circumstances in order to justify that Tina Sv. should not be sentenced to pretrial imprisonment.

It is very interesting what is the difference between Tina Sv's characterization by the prosecutors' office and the objective reality existent with respect to the applicants (of course, the applicants do not mean by that the "reasonable suspicion" of the prosecutor, which is intentionally fabricated in order to justify his petition). While making such comparison, the applicants start from the fact that like Tina Sv., the applicants neither have any previous convictions and both of them have permanent address. As for the prosecutor's "reasonable suspicion" that, Tina Sv. would not hide from investigation and prevent the court from finding truth on this case, "differently from the applicants", in the meantime, the prosecutor did not indicate any circumstance, which would prove such "suspicion". Fortunately, the prosecutor has neither presented any evidence proving his "reasonable suspicion" regarding the applicants.

Unfortunately, both the Mtskheta Regional Court and the Tbilisi Appellate Court have fully agreed with the prosecutor's position regarding all the three accused and based their resolution upon the prosecutor's "reasonable suspicion", which, unfortunately, was never well-founded. Consequently, Article 140, par. 3, of the criminal procedure code of Georgia was violated, which prescribes that investigator's or prosecutor's every petition seeking a judge's order to conduct any of procedural actions mentioned in paragraph 1 of this Article must be well-founded, while paragraph 1 of Article 140 along with other procedural acts proscribes pretrial imprisonment as well. In addition, Article 151, pars. 1 and 3, of the criminal procedural code was violated.

Article 153 of the criminal procedure code of Georgia states that:

"When deciding a question of application of preventive measure and determining its type, a researcher, prosecutor and court take into consideration seriousness of accusation, person of an accused, his/her activity, age, state of health, the family and material status and other circumstances".

The prosecutor and the court considered none of the above provisions regarding the applicants. As mentioned above, none of them have previous convictions; they both have a permanent address and have children. The first applicant has one minor child and the second applicant has four children, the youngest of which is only five years old. The applicants did not invent these facts. The Judgment of 9 August 2006 of the Mtskheta Regional Court refers to above characterization of the applicants. Regarding the first applicant one can read there the following:

"In determining the penalty against Z. Oboladze the court takes into consideration the circumstance that he is characterized positively, has a wife and a minor child depending on him, has an impeccable past and has no aggravating circumstances". (see the attached Annex A.. - judgement). The second applicant is referred with the same words: "While determining the penalty against N. Lobzhanidze the court takes into consideration the circumstance that she is characterized positively, has four children, has an impeccable past and has no aggravating circumstances". (see the attached Annex A.. - judgment).

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