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

The first applicant was interrogated as an accused only at 6:25 p.m., i.e., 5 hours later after he appeared at the prosecutors' office. The examination lasted until 8:00 p.m. (see the attached Annex A.. - protocol of examination).

The second applicant was in the same situation. She came to prosecutors' office on 26 December 2005 at 01:15 p.m. (See the attached Annex A..). She was placed in a separate room. They did not inform her of the reason for her detention, refused to answer her questions, did not allow her to get in touch with her family members and, thus, isolated her from the outside world. Her interrogation as an accused commenced only at 5:00 p.m. and terminated at 8:50 p.m. (See the attached Annex A..).

This is how both applicants learned that they were being detained as the accused for the events that had taken place on 22 September 2005 at the Mtskheta regional hospital.

It is evident that the applicants' right to personal liberty was violated. This right is protected not only under the Constitution (Article 18) and the criminal procedure code of Georgia (Article 12, pars. 1 and 2, and Article 145, par. 3), but also by universally recognized international norms and principles, including the European Convention on Human Rights, specifically its Article 5, par. 1, which states that no one shall be deprived of his liberty save in the cases listed in par. 1 of this Article and in accordance with a procedure prescribed by law. The applicants will not list these cases, as the Court is perfectly familiar with them. The applicants would like to mention that such situation, the detention of a person at the prosecutor's office for 5 hours without any legal basis, is prohibited by Article 5, par. 1, of the Convention. The applicants call their treatment "detention" because they cannot call it otherwise, when one is isolated in one room and nobody allows him/her to leave this room or let someone in. Especially, when one is called to the prosecutors' office as a witness, not a suspect, and nothing said is about any accusation.

The applicants consider it uncontestable that since they were kept in the prosecutors' office building, enclosed in one room, without any possibility of free displacement, making a phone call, meeting with the relatives and so on, since they were forbidden to leave this room and the building in general, without any legal basis and neglecting a domestic procedure of detention, this is essentially a violation of both the national legislation and the Convention, namely, Article 5, par. 1. In this regard, the applicants emphasize the ECHR decision on the case Guzzardi v. Italy, where the European Court stated violation of the convention, when a person suspected of committing organized crime was confined not in one small room of the prosecutors' office, but to a one and a half kilometer-sized isle. The Court considered such attitude a prevention of freedom.

In the case Kurt v. Turkey, the European Court has stated that freedom must be afforded not only respecting the material and procedural provisions of national legislation, but also it must serve the purpose of Article 5 of the Convention, namely, protection of individual from illegitimacy and arbitrariness of government (28 May 1998). Practically the same position of the Court is expressed on the case Chakhal v. Gr. Brit. (15 November 1996).

The applicants also claim that their rights have been violated under paragraph 2 of Article 5 of the Convention. This paragraph states that: "Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him". The word "promptly" is not mentioned in this text by accident and that means that a person must be informed about his/her rights as soon as detained and not 5-6 hours later. The applicants' opponents may argue that this requirement was observed, because when the applicants were declared accused, they were informed about their rights. Though, the applicants are afraid to disappoint everyone who thinks so. They do not pretend to interpret any Article of the Convention, but they would like to emphasize that Article 5, par. 2, of the Convention should not proscribe that a person must be promptly informed about his/her rights just in case of his/her official detention (based on a legal act). Perhaps, it is so, when one's factual detention coincides with the time of issuance of the relevant legal act. But in the applicants' case they were detained with all the consequences described above, but they were only formally declared accused by resolution 5-6 hours later. The applicants presume that this is a violation of Article 5, par. 2, of the Convention, otherwise it would be meaningless, if one just imagined that someone could be actually but "informally" detained for one week without any formal charges, but that the prosecutors' office could justify these actions by stating that as soon as this person was formally detained he/she was immediately informed about his/her rights.

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