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1. The author of the
communication is Shota Ratiani, born 1955, a Georgian citizen. He claims to
be a victim of violations by Georgia [FN1] of article 1, paragraph 1,
article 2, paragraph 1, article 7, article 8, paragraph 2, article 9,
paragraphs 1 and 4, article 10, paragraph 1, article 14, paragraphs 1, 2,
3(c), 3(d), 3(e), and 5, article 19, paragraphs 1 and 2, article 21, article
25, paragraphs (a) and (b), and article 26 of the Covenant. He is
unrepresented.
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[FN1] The Optional Protocol entered into force in relation to Georgia on 3
August 1994.
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FACTUAL BACKGROUND
2.1 The author was a supporter of the former President of Georgia, Zviad
Gamsakhurdia. He served in Mr Gamsakhurdia's National Guards, and took part
in the armed conflict in Georgia in 1993, supporting Mr Gamsakhurdia and his
government.
2.2 On 30 August 1995, following an apparent assassination attempt on
President Shevardnadze the previous day, the author was arrested together
with ten others. There was no warrant for his arrest. He was charged with
attempting to overthrow the government (high treason), attempted terrorism,
and participating in an organization acting against the State. On the day of
his arrest, representatives of the Security Service made statements on
television and in the press to the effect that the author and the others
arrested were 'terrorists' and supporters of former President Gamsakhurdia.
2.3 According to the author, members of the Security Service were
subsequently arrested in connection with the assassination attempt, but the
authorities suspected the author and those others arrested of being
accomplices in the assassination plot by diverting attention away from those
responsible.
2.4 The author contends that charges against him were fabricated, and that
accusations against him were very general. For example, he was accused of
being an 'active member' of a subversive group, because he used to meet once
a week with a group of people, one of whom was later charged with terrorist
offences.
2.5 The author claims that, whilst being interrogated on the day of his
arrest, he was beaten, threatened and insulted, and was not provided with a
lawyer. He claims he was not given prompt access to relevant case file
documents, and that the trial did not begin until a year and half after his
arrest. He states that, during his trial, only abstract and indirect
evidence was produced against him, some of which was extracted from other
detainees through threats and beatings. No details are provided in this
regard. He claims that the Court refused to consider his allegations about
'violations' committed by the Security Service, or his allegations about the
lawfulness of his arrest and trial, and that his demand to interrogate
witnesses who could prove his innocence was rejected. On 21 April 1997, he
was found guilty and sentenced to seven years imprisonment. He claims that
he was denied the right to appeal from this decision.
2.6 The author alleges that he was tried and convicted because of his
political views, as a supporter of the former President.
2.7 On 9 February 1998, the author wrote to the People's Defender of Georgia
in relation to his allegations of unlawful arrest and unfair trial. On 15
May 1999, the Public Defender sent a letter to the Presidium of the Supreme
Court, requesting it to review the author's case. It transpires that the
Supreme Court subsequently reviewed the author's case and revised the
sentence.
THE COMPLAINT
3.1 The author alleges that he was beaten and mistreated by the Security
Service, in contravention of articles 7 and 10; that his detention was
arbitrary and unlawful, in contravention of article 9; and that the Supreme
Court did not consider his allegations about the unlawfulness of his arrest
(article 9, paragraph 4). He alleges numerous violations of article 14: that
he was not afforded prompt access to relevant Court material for the
purposes of preparing his defence (article 14, paragraph 3(b)); that he was
not provided with a lawyer at particular times (article 14, paragraph 3(d));
that he was prevented from examining witnesses (article 14, paragraph 3(e)),
that the presumption of innocence was not observed in his case (article 14,
paragraph 2); and that his conviction was not subject to appeal (article 14,
paragraph 5).
3.2 The author contends that his detention and trial were politically
motivated, in contravention of his rights under article 19, paragraphs 1 and
2. He also alleges, without further substantiating these claims, violations
by the State party of articles 1, 8, 21, 25 and 26.
THE STATE PARTY'S OBSERVATIONS AND THE AUTHOR'S COMMENTS
4.1 By note dated 24 May 2001, the State party submits that the author was
sentenced to seven years imprisonment by the Collegium of the Supreme Court
of Georgia for high treason, attempted terrorism and involvement in an
anti-State organization. It states that, by decision dated 14 May 1999, the
Presidium of the Supreme Court subsequently reduced the author's sentence to
three years, eight months and fourteen days, and the author was released on
the same day from the courtroom.
4.2 The State party contends that the author had the right to apply to the
court for 'rehabilitation', but that no such application was made.
5.1 In his comments on the State party's submissions dated 28 July 2001, the
author provides further information about the apparent assassination attempt
of the Georgian President in 1995. He quotes former officials, cited in
newspaper articles, who claimed that the assassination attempt was
orchestrated by the security forces and the President himself in order to
incriminate supporters of former President Gamsakhurdia.
5.2 In February 1998, following his conviction by the Supreme Court, which
was not subject to appeal, the author wrote to the newly appointed office of
the Public Defender for assistance, seeking to have his conviction reviewed.
The letter was forwarded to the Presidium of the Supreme Court, which on 16
June 1998 rejected his request. On 25 January 1999 the Public Defender
forwarded another letter to the Presidium of the Supreme Court on the
author's behalf. The author states that, under Georgian law, the Presidium
of the Supreme Court was required to comment on the Public Defender's
statements within 2 months. When no response was received by May, the author
went on a hunger strike, requesting an answer. The author states that on 14
May 1999, the Supreme Court reviewed his conviction in closed session, and
decided to reduce his sentence to reflect the precise amount of time he had
already spent in prison. The author adds that he was not, as the State party
contended, released from the Courtroom, as he was not present in Court, but
was released the following day.
FURTHER SUBMISSIONS BY THE PARTIES
6.1 In observations on the author's comments dated 27 August 2001, the State
party forwards information from the Office of the Prosecutor General
regarding the author's case. It states that the author was convicted by the
Collegium of the Supreme Court on 21 April 1997. Under the law applicable at
the time, it was not possible to file an appeal from such a decision.
However, the Presidium of the Supreme Court considered the author's
'supervisory complaint' (the complaint forwarded by the Public Defender) and
commuted the sentence which had been imposed. However, his conviction
stands.
6.2 The State party notes that, following the decision of the Supreme Court
on 14 May 1999, the author was released from prison after the necessary
formalities were completed. It contends that the extracts from newspapers
referred to in the author's comments cannot be viewed as a substantiation of
his claims about his innocence.
6.3 Finally, the State party explains that, if the author could identify new
circumstances which cast doubt on the correctness of his conviction, he
could apply to the Supreme Court of a retrial. If acquitted, he would have
the right to 'rehabilitation' under Georgian law.
7. In further comments dated 19 October 2001, the author states that the
newspaper articles referred to in his earlier comments are relevant to the
question of his innocence. The author provides further details of the Public
Defender's 'recommendation' to the Supreme Court that his sentence be
overturned, quoting 4 extracts which address apparent flaws in the evidence
on which he was convicted, and other evidence which pointed to his
innocence.
8. In further observations dated 27 December 2001, the State party encloses
a memorandum from the President of the Supreme Court, which lists the
offences of which the author was convicted, the original sentence imposed
and its subsequent commutation. It states that, under Georgian criminal
procedure legislation, a decision of the Presidium of the Supreme Court of
Georgia may only be revised on the basis of new circumstances, and that an
application for review must be made to the Prosecutor General. The Supreme
Court will review the case if the Prosecutor General declares that new
circumstances exist, and recommends a review.
9. In further comments dated 12 February 2002, the author reiterates his
earlier claims. On 2 September 2004, the author presented a further
submission, in which he reiterates that, under Georgian legislation
prevailing at the time, his conviction by the Supreme Court on 21 April 1997
did not entail any right of appeal. He also attaches a copy of the letter
sent by the Office of the Public Defender to the Presidium of the Supreme
Court in January 1999, seeking a review of his conviction, and encloses a
copy of the decision of the Presidium of the Supreme Court dated 14 May
1999, by which his sentence was reduced.
ISSUES AND PROCEEDINGS BEFORE THE COMMITTEE
10.1 Before considering any claims contained in a communication, the Human
Rights Committee must, in accordance with rule 93 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol to the
Covenant.
10.2 The Committee has ascertained that the same matter is not being
examined under another procedure of international investigation or
settlement for the purposes of article 5, paragraph 2(a), of the Optional
Protocol.
10.3 With regard to the author's claims under article 1, the Committee
recalls its previous jurisprudence, and notes that such claims are not
justiciable under the Optional Protocol. With regard to the claims under
articles 2, 8, 9, 10, 14, paragraph 3(d), 19, 21, 25 and 26 of the Covenant,
the Committee considers that the author has not provided sufficient
substantiation in support of his allegations, and accordingly declares them
inadmissible under article 2 of the Optional Protocol.
10.4 In relation to the author's claims under articles 7 and 10, namely that
he was beaten, threatened and insulted, and in relation to his claim that he
was not provided with access to a lawyer, contrary to article 14, paragraph
3(d), the Committee notes that the author's claims in this regard are
general in nature, and considers that the author has not provided
sufficiently detailed information in order to substantiate them.
Accordingly, the Committee declares these claims inadmissible under article
2 of the Optional Protocol.
10.5 In respect of the author's claims under article 14, paragraph 1, that
he was wrongly convicted, the Committee considers that the subject matter of
the allegations relates in substance to the evaluation of facts and evidence
in the course of proceedings before the Supreme Court of Georgia. The
Committee recalls its jurisprudence and reiterates that it is generally not
for itself, but for the courts of States parties to review or to evaluate
facts and evidence, unless it can be ascertained that the conduct of the
trial or the examination of the facts and evidence was manifestly arbitrary
or amounted to a denial of justice. [FN2] The Committee concludes that the
conduct of judicial proceedings in the author's case did not suffer from
such deficiencies. Accordingly, the author's claims under article 14,
paragraphs 1 and 2, are inadmissible under article 2 of the Optional
Protocol.
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[FN2] See, for example Communication No 546/1993, Errol Simms v. Jamaica,
Views adopted on 3 April 1995, paragraph 6.2.
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10.6 As to the author's allegations that his right to the presumption of
innocence was violated by public statements made by representatives of the
security service, the Committee recalls its General Comment No.13 on article
14, which states that it is the duty of all public authorities to refrain
from prejudging the outcome of a trial. [FN3] However, the author's claims
in this regard are general, and the Committee considers that the author has
failed to provide sufficiently detailed information in order to substantiate
them. Accordingly, the Committee declares these claims inadmissible under
article 2 of the Optional Protocol.
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[FN3] See also: Communication No 770/1997, Gridin v Russian Federation,
Views adopted 20 July 2000, paragraph 8.3.
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10.7 Regarding the claim under article 14, paragraph 3(c), the Committee
notes that the State party has not provided information on the length of
time between the author's detention and his trial, however it recalls its
jurisprudence and considers that a period of a year and half does not, of
itself, constitute undue delay. [FN4] The question of what constitutes
'undue delay' depends on the circumstances of each case, such as the
complexity of the alleged offences and their investigation. In the absence
of further information, the Committee considers that this allegation is not
sufficiently substantiated and accordingly declares it inadmissible under
article 2 of the Optional Protocol.
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[FN4] For example, in Kelly v Jamaica (Communication 253/1987, Views adopted
8 April 1991), a period of 18 months delay between arrest and the
commencement of trial was considered not to amount to undue delay, as it had
not been established that the investigations could have been concluded
earlier.
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10.8 In relation to the author's allegation that, not having had the
opportunity to call certain witnesses, he was deprived of his rights under
article 14, paragraph 3(e), the Committee notes that no details have been
provided about the identity of the witnesses in question, or the
circumstances in which the author requested, and the Court denied, the
presence of these witnesses in Court. Although the State party's submissions
do not address this issue, the Committee considers that this allegation is
not sufficiently substantiated, and accordingly also declares it
inadmissible under article 2 of the Optional Protocol.
10.9 The Committee sees no impediment to the admissibility of the author's
claim under article 14, paragraph 5, and proceeds to the examination of the
merits.
CONSIDERATION OF THE MERITS
11.1 The Human Rights Committee has considered the present communication in
the light of all the information made available to it by the parties, as
provided in article 5, paragraph 1, of the Optional Protocol.
11.2 As to the claim that the author was unable to appeal his conviction by
the Supreme Court, the Committee recalls its jurisprudence that article 14,
paragraph 5, requires there to be an available appellate procedure which
should entail a full review of the conviction and sentence, together with a
due consideration of the case at first instance. [FN5] In the present case,
three review procedures have been referred to by the author, and the
Committee must consider whether any of them satisfies the requirements of
article 14, paragraph 5. Firstly, the author stated that he complained about
his conviction to the Office of the Public Defender, who, it appears,
reviewed the author's case, and prepared a recommendation to the Presidium
of the Supreme Court. It transpires that, as a result of this process, the
Presidium of the Supreme Court reviewed the author's case and ultimately
revised his sentence, whereupon he was released from imprisonment. The State
party notes that, under Georgian law then in force (2001), it was not
possible to file an appeal against a decision of the Collegium of the
Supreme Court, which convicted the author, but that, based on the author's
'supervisory complaint', the Presidium of the Supreme Court reviewed the
author's case and commuted his sentence. The Committee notes that the State
party itself does not refer to this process as being equivalent to a right
of appeal; rather, it is referred to merely as a 'supervisory complaint'.
The Committee recalls its previous jurisprudence that a request for a
'supervisory' review which amounts to a discretionary review, and which
offers only the possibility of an extraordinary remedy, does not constitute
a right to have one's conviction and sentence reviewed by a higher tribunal
according to law. From the material before the Committee, it appears that
the supervisory complaint process in this instance is of such a nature.
Accordingly, based on the information before it, the Committee considers
that this process does not amount to a right of appeal for the purpose of
article 14, paragraph 5, of the Covenant. [FN6]
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[FN5] See for example Communication No 842/1998, Romanov v Ukraine, Views
adopted 30 October 2003.
[FN6] See Communication No 836/1998, Gelazauskas v Lithuania, Views adopted
17 March 2003. Note also that the European Court of Human Rights has
determined that a 'supervisory' appeal of this nature does not constitute an
'effective remedy' for its admissibility requirements, due to its
discretionary nature; see Tumilovich v Russia, no. 47033/99, 22 June 1999 (dec);
and Pitkevich v Russia, no. 47936/99, 8 February 2001 (dec).
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11.3 Secondly, the State party submits that the author could apply to the
Supreme Court for a review of his case, through the Prosecutor General, if
he could identify new circumstances which called into question the
correctness of the original decision. However, the Committee does not
consider that such a process meets the requirements of article 14, paragraph
5; the right of appeal entails a full review by a higher tribunal of the
existing conviction and sentence at first instance. The possibility of
applying to a Court to review a conviction on the basis of new evidence is
by definition something other than a review of an existing conviction, as an
existing conviction is based on evidence which existed at the time it was
handed down. Similarly, the Committee considers that the possibility of
applying for rehabilitation cannot in principle be considered an appeal of
an earlier conviction, for the purposes of article 14, paragraph 5.
Accordingly, the Committee considers that the review mechanisms invoked in
this case do not meet the requirements of article 14, paragraph 5, and that
the State party violated the author's right to have his conviction and
sentence reviewed by a higher tribunal according to law.
12. The Human Rights Committee, acting under article 5, paragraph 4, of the
Optional Protocol, is of the view that the facts before it disclose a
violation of article 14, paragraph 5, of the Covenant.
13. Pursuant to article 2, paragraph 3(a), of the Covenant, the author is
entitled to an appropriate remedy. The State party is under an obligation to
grant the author appropriate compensation, and to take effective measures to
ensure that similar violations do not reoccur in the future.
14. By becoming a State party to the Optional Protocol, the State party has
recognized the competence of the Committee to determine whether there has
been a violation of the Covenant or not, and that, pursuant to article 2 of
the Covenant, that the State party has undertaken to ensure all individuals
within its territory or subject to its jurisdiction the rights recognized in
the Covenant, and to provide an effective and enforceable remedy in cases
where a violation has been established. The Committee wishes to receive from
the State party, within 90 days, information about the measures taken to
give effect to the Committee's views. The State party is also requested to
publish the Committee's views.
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Adopted in English, French and Spanish, the English text being the original
version. Subsequently to be issued in Arabic, Chinese and Russian as part of
the Committee's annual report to the General Assembly. |
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