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

Can it be that the persons so characterized deserve the severest preventive measure? Then it is absolutely impossible to understand what other characterization and circumstances a person needs in order that he/she be given a lighter preventive measure, if he/she must be applied at all?

Considering the foregoing it is obvious that the judge of the Mtskheta Regional Court and subsequently the investigative collegium of the Tbilisi Appellate Court while examining the issue of application of a preventive measure fully neglected Article 153 of the criminal procedure code of Georgia and based their decision upon the prosecutor's "reasonable suspicion".

Both the prosecutor's petition, and the court's decision, clearly demonstrate that Article 154 of the criminal procedure code of Georgia was violated, which states that:

"A preventive measure must be applied to an accused or convict only in cases where there is a risk that he/she will flee or commit another crime".

The applicants would like to call the Court's kind attention especially to the words "only in case", which means that if there is no such a circumstance, then no preventive measure can be applied at all, nothing said about imprisonment, which is the severest one.

It is interesting how the prosecutors' office proves that the applicants would try to flee or commit another crime? Of course, this statement of the prosecutor also remains empty words, which are not supported by any evidence. Moreover, the case materials demonstrate that the both applicants always appeared at the prosecutors' office as soon as they were called to. As evidence of this statement the applicants refer to the protocols of their free-will appearance at the prosecutors' office on 26 December 2005, the day when they were detained as the accused after being kept there without any explanation for 5 hours. The applicants emphasize that only this fact is enough in order to contest the prosecutor's suggestion that they would try to flee from investigation if remained free.

The applicants call the Court's attention to prosecutor Ok.'s consideration about why the preventive measure applied to the applicants was supposed to be left in force that he expressed at the hearing at the investigative collegium of the Tbilisi Appellate Court, which examined the appeals of the applicants' defense counsels seeking to rescind an order of the Mtskheta Regional Court sentencing the applicants to three-month pretrial imprisonment. Namely, the prosecutor "proved" his "suspicion" with the following:

"up to now none of the accused were sure that they would find themselves in a dock. So, they had no reason to influence witnesses. But now they will do their best to prove their innocence. It is a fact that Lobzhanidze has influence at the maternity hospital and she will have no difficulty influencing somehow witnesses and victims. As for the risk of flight, this danger also exists more or less. It cannot be ruled out that Oboladze will analogically try to influence witnesses and victims. There is a risk that he will flee and prevent finding truth in this case". (See the attached Annex A..)

First of all, as for the prosecutor's allegation that the second applicant would influence witnesses, it is to be noted that patient Guliko M died at the Mtskheta regional hospital on 22 September 2005, but the applicants were detained on 26 December 2005, i.e., three months later. The Court will agree with the second applicant that this period of time was more than enough for her "to use her position to influence witnesses". In addition, it is also to be mentioned that during these three months all the witnesses, who had any connection to this case, were already interrogated by the investigation. Moreover, the most important evidence in this case that could be available at the hospital was patient Guliko M's case history, which was taken from the Mtskheta hospital on the day that this tragedy happened. Therefore, even this evidence also proves the both applicants' innocence.

The prosecutor's allegation that there was a "danger" that witnesses would b improperly influenced by the applicants is even more ridiculous regarding the first applicant, if one considers his position at the Mtskheta regional hospital. According to his labor agreement, he was an obstetric-gynecologist on duty in the obstetrics department, who did not even work every day (see the attached Annex A.. - labor agreement).

Moreover, it is extremely interesting, that the prosecutors' office could not see any danger of influencing witnesses and destroying evidence by Dr. Tina Sv., whose position compared with the first applicant's position gave her much more possibility to do so. The first applicant would like to remind the Court that Dr. Tina Sv. had been the manager of gynecology department of the Mtskheta regional hospital for many years, but the first applicant only started to work there in June 2005, i.e., three months before this tragedy took place (see the attached Annex A..).

The first applicant's position was so low in comparison with that of Dr. Tina Sv. that he did not even have a right to perform any operation without her consent. (See the protocol of hearing- testimony of Tina Sv.…). Moreover, Dr. Tina Sv. had the most interest in influencing witnesses, because she was responsible for patient Guliko M after 10:00 a.m., i.e., after the first applicant's duty hours were over and he handed the patient over to her by observing all relevant rules. (See the statement of facts).

Moreover, Tina Sv. was the only one with respect to which the prosecutors' office was supposed to have reasonable suspicion that she would try to destroy evidence, if one consider testimony of dead Guliko M's husband - victim Zviad Ch. that he gave to the investigation. Namely, he testified that Dr. Tina Sv. falsified patient Guliko M's case history that his (Zviad Ch's) sister Mzia Ch. snatched out from her hands (see the attached Annex A..- testimony of Zviad Ch.). Zviad Ch. gave the same testimony to the court.
He stated the following:

"Tina Sv. went down to her room and locked the door. When we entered into her room, we found her writing a new case history together with another colleague. My sister snatched some papers out from her pocket. This happened after my sister had asked her to give her the case history, but Tina Sv. refused as if she was still writing it. Nevertheless, in my opinion, she was writing a new case history with another data, because, I think, the case history should already been written before. She alleged that she wanted to reflect reality at 05:00 pm, but in fact, she was writing another, new data there. I have this documentation and can present it to the court". (See the attached Annex A..).

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