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

Considering the above testimony, it is clear that such behavior by Dr. Tina Sv. indicates her intension to influence witnesses, destroy evidence and prevent objective investigation of the case. It is impossible to understand why the prosecutors' office had no reasonable suspicion that Dr. Tina Sv. would do the same if she remained free, while the prosecutors' office alleged such "reasonable suspicion" with respect to both applicants, who had never been involved in such behavior. In the applicants' opinion, the victim's above testimony does not need any comment and it is up to the Court to evaluate an approach of the prosecutors' office and the court.

As for the prosecutor's allegation that the applicants' possibly would influence victims, this is absurd and nonsense. Even if the applicants made such an attempt, it is very easy to imagine whether they would achieve their goal, when the case concerned the victims' closest relative. The investigation and prosecutors' office perfectly knew the approach of Guliko M's husband - Zviad Ch., who initially sought to have punished Dr. Tina Sv. and both applicants. He stated this position also in his interview with TV company "Rustavi 2" (see the attached Annex A.. - DVD). Under such conditions, it is impossible to imagine that the prosecutors' office was more interested in objective investigation of the case, than the Guliko M's family members themselves.

Later, the prosecutors' office was probably strongly disappointed when during the hearing of this case Zviad Ch., the victim's the widower, addressed the court with an application seeking to release innocent people (the applicants) and to punish a real criminal (see the attached Annex A..). Can it be that the fact that the worst affected Zviad Ch. changed his position was a result of the applicants' influence and pressure? Can it be that the applicants achieved their goal to influence the victims (the bereaved of dead Guliko M), despite the fact that they were imprisoned? Then just one conclusion can be made, namely, that application of pretrial imprisonment to the applicants, which aimed at protecting the victims from their "deleterious influence", "could not achieve its purpose".

Finally, the applicants emphasize the prosecutor's statement that if the court modified their preventive measure, "they would do anything to prove their innocence". (See the attached Annex A.. - protocol of hearing). As it seems, the prosecutor forgot the universally recognized presumption of innocence and principle of burden of proof, according to which, no one has to prove his/her innocence, the burden of proof lies upon a prosecutor. But even if it was not so, the accusation showed unprecedented ardor and readiness to prevent the applicants from attempting to prove their innocence that, in the prosecutors' opinion, they would successfully achieve, if they were not imprisoned.

Considering the foregoing, the applicants allege violation of Article 5, par. 1(c), of the Convention with respect to them, which permits only three grounds for detention. They are:

a reasonable suspicion of having committed an offence
when it is reasonably considered necessary to prevent his committing an offence
Fleeing after having done so

It is uncontestable that "reasonable suspicion" must be evaluated in every specific case and it depends on the merits of the case. On the case Fox, Campbell and Hartley v. the United Kingdom the European Court stated:
"Having a 'reasonable suspicion' presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence". (30 August 1990, Series A, no 182, paragraph 32).

Considering the above statement of the ECHR, it is not necessary to prove that one has committed the offence; existence of a reasonable suspicion is enough. However, reasonable suspicion must be bona fide and not based upon fabricated facts, invented evidence and personal subjective considerations, as it was with respect to the applicants. Moreover, bona fide "reasonable suspicion" is not even enough. It is also necessary that a detention have an objective ground, because Article 5, par. 1, of the Convention aims at ensuring a person's bringing before the court, avoiding prevention of justice and preventing committing a specific crime (Guzzardi v. Italy, 6 November 1980, Series A, no 39).

None of the above conditions for detention existed in the case of the applicants. First of all, there was no "reasonable suspicion", especially bona fide, and it could not be, because none of the words of the prosecutor' speech regarding application of imprisonment as a preventive measure to the applicants, were based upon the case materials. This was emphasized in the Public Defender's report 2006 (see the attached Annex A..).

Secondly, if the prosecutor aimed at preventing the commission of a new crime, when he alleged that the applicants would influence witnesses and victims, primitively said, are just standard words, quasi empty clichés, and nothing more, because as mentioned above, the bereaved relatives would never allow themselves to be influenced and the main evidence - Guliko M's case history was seized by the investigation the same day when this tragedy happened and the case initiated, i.e., on 22 September 2005, which excluded any possibility of its falsification or destruction by the applicants.

Thirdly, if the applicants intended to flee, it was more evident that they would do it before their detention, because they were detained three months after the patient's death and during this period they were examined several times, they always appeared at the prosecutors' office as soon as called and gave objective testimony to the investigation, thus cooperating with them bona fide. Consequently, the applicants knew that the criminal case was initiated and the investigation was in progress and if they wished, they would really have success to achieve their goal and to flee.

Then who was supposed to evaluate these circumstances? - Of course, the court. But, unfortunately, the judiciary in Georgia is not independent, especially from the prosecutors' office, and what is most important, "de facto" a judge has no right to release an illegally detained person without obtaining such permission from the prosecutors' office. Although, this is one of the most important conditions for observation of Article 5, par. 3, of the Convention. Such situation regarding the Georgian judiciary is emphasized in the Public Defender's report 2006 (see the attached Annex A..) and the report of the US Department of State and Non-Governmental organizations (see the attached Annexes A..).

The applicants emphasize that Article 5, par. 3, of the Convention also states a principle according to which, a prosecutor is not held to be impartial, if there is a probability that he will later support an accusation on the case of a detained person. This approach can be observed in the case Huber v. Switzerland (23 October 1990, Series A, no 188). This provision was also violated in the case of the applicants, because the prosecutor who first sought their pretrial imprisonment, Guram Ok., then participated at the hearings as a public prosecutor.

He perfectly fulfilled an order or instruction, to achieve by all means, even through fabrication and falsification of the case materials, first, that the applicants were sentenced to pretrial imprisonment, but then declared guilty and sentenced to imprisonment, while Dr. Tina Sv. got privileges. Exactly prosecutor Ok. made a petition to separate of the case against Dr. Tina Sv. from the whole case, because of her "state of health" that was, of course, satisfied by court (see the attached Annex A..--).

Especially scandalous and astonishing is the fact that this petition was made and, consequently, satisfied at that stage of the trial, when the court does not examine any petition. In the meantime, the same prosecutor, Ok., did not pay any attention to both applicants' medical condition, which was so exacerbated that it became impossible to transport them to the Mtskheta Regional Court building and for this reason, based on the prosecutor Ok.'s petition, the court decided to hold the hearings at Institution #5 for Women and Juveniles, where the second applicant was allocated (see the attached Annex A.. - protocol of Levan Labauri and relevant references).

Considering all the foregoing, the applicants emphasize that Article 5; par. 1, 2, 3 and 4 of the Convention was violated with respect to them.

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