{"id":10011,"date":"2012-12-18T16:47:12","date_gmt":"2012-12-18T13:47:12","guid":{"rendered":"http:\/\/www.waynakh.com\/eng\/?p=10011"},"modified":"2012-12-18T16:47:12","modified_gmt":"2012-12-18T13:47:12","slug":"baisuev-and-anzorov-v-georgia","status":"publish","type":"post","link":"https:\/\/www.waynakh.com\/eng\/2012\/12\/baisuev-and-anzorov-v-georgia\/","title":{"rendered":"Baisuev and Anzorov v. Georgia"},"content":{"rendered":"

The ECHR case of Baisuev and Anzorov v. Georgia (applications no. 39804\/04).<\/span><\/p>\n

.<\/span><\/p>\n

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CASE OF BAISUEV and ANZOROV v. GEORGIA<\/strong><\/span><\/p>\n

(Application no. 39804\/04)<\/strong><\/span><\/p>\n

JUDGMENT<\/strong><\/span><\/p>\n

STRASBOURG<\/strong><\/span><\/p>\n

18 December 2012 <\/strong><\/span><\/p>\n

This judgment will become final in the circumstances set out in Article 44 \u00a7 2 of the\u00a0Convention. It may be subject to editorial revision.<\/span><\/p>\n

In the case of Baisuev and Anzorov v.\u00a0Georgia<\/strong>,<\/span><\/p>\n

\n

The European Court of Human Rights (Third Section), sitting as a Chamber composed of:<\/span><\/p>\n

Josep\u00a0Casadevall,\u00a0President,<\/span>
\n Alvina\u00a0Gyulumyan,<\/span>
\n Corneliu\u00a0B\u00eersan,<\/span>
\n J\u00e1n\u00a0\u0160ikuta,<\/span>
\n Luis\u00a0L\u00f3pez Guerra,<\/span>
\n Nona\u00a0Tsotsoria,<\/span>
\n Kristina\u00a0Pardalos,\u00a0judges,<\/span>
\n and Santiago Quesada,\u00a0Section\u00a0Registrar,<\/span><\/p>\n

Having deliberated in private on\u00a027 November 2012,<\/span><\/p>\n

Delivers the following judgment, which was adopted on that date:<\/span><\/p>\n

PROCEDURE<\/strong><\/span><\/p>\n

1.\u00a0\u00a0The case originated in an application (no.\u00a039804\/04) against\u00a0Georgia\u00a0lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (\u201cthe Convention\u201d) by two Russian nationals, Mr Adam Baisuev and Mr Rustam Anzorov\u00a0(\u201cthe applicants\u201d), on 6 August 2004.<\/span><\/p>\n

2.\u00a0\u00a0The applicants were represented before the Court by lawyers from \u201cArticle\u00a042 of the Constitution\u201d, a human-rights NGO based in\u00a0Tbilisi. The Georgian Government (\u201cthe Government\u201d) were represented by their former Agent, Ms. Irine Bartaia of the Ministry of Justice.<\/span><\/p>\n

3.\u00a0\u00a0On\u00a025 May 2005\u00a0the Court decided to communicate the complaints under Article\u00a05 \u00a7\u00a7\u00a01, 2 and 4 of the Convention concerning the circumstances of the allegedly unlawful detention of the applicants by police (Rule 54 \u00a7 2 (b) of the Rules of Court). It was also decided to rule on the admissibility and merits of the application\u00a0at the same time\u00a0(Article\u00a029\u00a0\u00a7\u00a01).<\/span><\/p>\n

4.\u00a0\u00a0The Government and the applicants each submitted observations on the admissibility and merits of the communicated complaints\u00a0(Rule\u00a054\u00a0(a) of the\u00a0Rules of Court).\u00a0The Russian Government did not make use of their right to intervene in the proceedings (Article 36 \u00a7 1 of the Convention).<\/span><\/p>\n

THE FACTS<\/strong><\/span><\/p>\n

I.\u00a0\u00a0THE CIRCUMSTANCES OF THE CASE<\/span><\/p>\n

5.\u00a0\u00a0The applicants are Mr Adam Baisuev (\u201cthe first applicant\u201d) and\u00a0Mr\u00a0Rustam Anzorov (\u201cthe second applicant\u201d), two Russian citizens of Chechen origin who were born in 1980 and 1979 respectively. At the material time they were residing in\u00a0Tbilisi,\u00a0Georgia, where they had refugee status.<\/span><\/p>\n

A.\u00a0\u00a0The applicants\u2019\u00a0detention<\/span><\/p>\n

6.\u00a0\u00a0According to the applicants, early in the morning of 7 December 2002 police officers arrived at their homes to question them. The police proceeded to search their premises without producing a warrant. Their identity papers were taken from them and the applicants were asked to follow the officers to police station no.\u00a03 in the Vake-Saburtalo district of Tbilisi\u00a0(\u201cthe police station\u201d). There the applicants were photographed and questioned about the armed conflict in the Chechen Republic\u00a0of the Russian Federation\u00a0and asked if they and their family members had been involved. They also had their fingerprints taken. Three hours later they were released and their identity papers were handed back to them.<\/span><\/p>\n

7.\u00a0\u00a0The Government disagreed with the version of events presented by the applicants. They maintained that on 7 December 2002 the police officers had gone to the applicants\u2019\u00a0home to conduct a regular identity check of people living inTbilisi\u00a0without registration. The applicants were asked to follow the police officers to Vake-Saburtalo police station, where their ID and refugee cards were checked. The Government rejected the applicants\u2019\u00a0contention that their homes had been searched and other investigative measures taken.<\/span><\/p>\n

8.\u00a0\u00a0According to the Government, the applicants were kept at the police station for thirty minutes. They were released immediately upon completion of\u00a0the identity check.<\/span><\/p>\n

B.\u00a0\u00a0Legal steps taken by the applicants<\/span><\/p>\n

9.\u00a0\u00a0According to the applicants, on 20 January 2003 they lodged complaints with the Office of the Prosecutor General of Georgia\u00a0(\u201cthe PGO\u201d), criticising the way the police had acted. They sought explanations regarding the legal basis for the search of their homes, for them being taken to the police station and for the criminal procedural measures to which they had been subjected. The Government maintained that they were unable to find those complaints lodged with the PGO.<\/span><\/p>\n

10.\u00a0\u00a0On 7 February 2003 the second applicant reiterated his request to the PGO for information concerning his detention. In its reply of 31\u00a0March 2003 the investigator from the Vake-Saburtalo District prosecutor\u2019s office explained that the\u00a0second\u00a0applicant had not been detained, but had been taken to the police station along with other temporary residents of different nationalities to have his identity and legal status in Georgia checked. The investigator claimed that not a single investigative act had been carried out and that the applicant had been released immediately after the identity check.<\/span><\/p>\n

11.\u00a0\u00a0On 2 April 2003 the applicants applied to the Tbilisi Public Prosecutor\u2019s office to have criminal proceedings initiated against the police officers who had carried out their detention. According to the applicants, their application was forwarded to the Vake-Saburtalo District prosecutor\u2019s office, which did not reply. The Government again maintained thatthey\u00a0were\u00a0unable to find the applicants\u2019\u00a0letter of 2 April 2003, either with the Tbilisi Public or Vake-Saburtalo District prosecutor\u2019s office.<\/span><\/p>\n

12.\u00a0\u00a0On 17 November 2003 the applicants requested a written reply to their application dated 2 April 2003.<\/span><\/p>\n

13.\u00a0\u00a0On 19 November 2003 the Vake-Saburtalo District prosecutor\u2019s office replied that on 7 December 2002 the applicants, along with several other Chechen refugees, had not been \u201carrested\u201d, but had been taken to the police station to have their identity and their legal situation in Georgia checked. Once the check was complete they were released immediately. The prosecutor\u2019s office did not indicate on what legal basis the applicants had been taken to and kept in the police station. No information was provided about the applicants\u2019\u00a0request for criminal proceedings to be initiated.<\/span><\/p>\n

14.\u00a0\u00a0On 18 December 2003 the applicants reiterated their request to the Vake\u2011Saburtalo District prosecutor\u2019s office and again on 16\u00a0January 2004 they received a reply to the effect that they had not been detained but rather taken to the police station for identity check purposes.<\/span><\/p>\n

15.\u00a0\u00a0On 27 February 2004 the applicants made yet another application to the Vake\u2011Saburtalo District prosecutor\u2019s office, requesting that the police reports concerning their stay at the police station and the criminal investigative measures to which they had been made subject be made available to them, in accordance with Article 150 of the Code of Criminal Procedure of Georgia\u00a0(\u201cthe CCP\u201d).<\/span><\/p>\n

16.\u00a0\u00a0In its response, dated 10 March 2004, the prosecutor\u2019s office pointed out that the detention complained of had lasted only thirty minutes. Without indicating the legal basis for holding the applicants, it claimed that bringing them to the police station had not been unlawful. It did inform them, however, that no record had been kept of their presence at the police station.<\/span><\/p>\n

17.\u00a0\u00a0On 29 August 2005, following communication of the application to the Government, a preliminary investigation was initiated under Article\u00a0333 of the Criminal Code of Georgia (abuse of power) concerning unlawful taking of Chechen Russian citizens\u00a0to various police stations on 7\u00a0December 2002. The criminal proceedings covered the case of the second applicant. In addition, on 11 October 2005 similar proceedings were initiated with respect to the first applicant\u2019s incident. The relevant documents submitted by the Government to the Court included only the copies of the decisions to open preliminary investigation. The Government committed to informing the Court about the progress of the relevant proceedings; however, no information has been submitted since then.<\/span><\/p>\n

II.\u00a0\u00a0RELEVANT LAW AND PRACTICE<\/span><\/p>\n

A.\u00a0\u00a0Georgian domestic law<\/span><\/p>\n

1.\u00a0\u00a0Code of Criminal Procedure (\u201cthe CCP\u201d), as in force at the material time<\/span><\/p>\n

18.\u00a0\u00a0The relevant Articles of the CCP read as follows:<\/span><\/p>\n

Article 24 \u00a7 4 \u2013 Public criminal prosecution<\/span><\/p>\n

\u201cIn all cases disclosing signs of an offence, an investigative body, investigator or a prosecutor are responsible, within the limits of their powers, to initiate public criminal proceedings\u00a0…\u201d<\/span><\/p>\n

Article 55 \u00a7 5 \u2013 Prosecutor\u2019s office<\/span><\/p>\n

\u201cA superior prosecutor is authorised to quash a decision issued by a subordinate prosecutor, amend it or replace with a new one.\u201d<\/span><\/p>\n

Article 146 \u00a7 1 \u2013 Procedure and review of the lawfulness and legitimacy of placement in police custody<\/span><\/p>\n

\u201cAs soon as an individual is taken to a police station\u00a0…, a report on his or her placement in police custody must immediately be drawn up….\u201d<\/span><\/p>\n

Article 235 \u00a7\u00a7 1 and 2 \u2013 Lodging a complaint<\/span><\/p>\n

\u201cThe complaint is to be lodged with the body responsible for criminal proceedings or the state employee who, in accordance with the law, has jurisdiction to examine it and to reach a decision…<\/span><\/p>\n

A complaint against an action or decision of an investigator, investigating body, investigating office or head of an investigating body is to be submitted to the relevant prosecutor. A complaint against an action or decision of a prosecutor shall be submitted to the prosecutor with hierarchical superiority…\u201d<\/span><\/p>\n

Article 261 \u2013 Obligation to initiate a preliminary investigation<\/span><\/p>\n

\u201cUpon receipt of information concerning the commission of a crime, the investigator and the public prosecutor, within the limits of their powers, shall open an investigation. …\u201d<\/span><\/p>\n

Article 265 \u00a7\u00a7 1 and 4 \u2013 Consideration of information concerning the commission of an offence<\/span><\/p>\n

\u201cInformation that a criminal offence has been committed may be submitted in writing or orally.\u00a0…<\/span><\/p>\n

Information thus submitted shall be examined promptly. Where the suspected perpetrator of an offence has already been arrested, verification of the information that a criminal offence has been committed and institution of a prosecution must be carried out within twelve hours of the person\u2019s being apprehended by the police or other investigating body. In other cases, institution of proceedings may also be preceded by verification of the information received, but this must not last more than twenty days.\u201d<\/span><\/p>\n

Article 279 \u00a7\u00a7 1 and 2 \u2013 Appeal against an act or decision of an investigator or prosecutor<\/span><\/p>\n

\u201cAn appeal lies against an action or decision of an investigator with the relevant prosecutor.<\/span><\/p>\n

An action or decision of a prosecutor can be appealed against to a superior prosecutor or in court, in cases and according to the procedure provided for in this Code.\u201d<\/span><\/p>\n

2.\u00a0\u00a0Police Act of 27 July 1993, as in force at the material time<\/span><\/p>\n

19.\u00a0\u00a0The relevant parts of the Police Act read as follows:<\/span><\/p>\n

Section 8 \u00a7 1 (c) and (r) \u2013 Police duties<\/span><\/p>\n

\u201cIn accordance with their functions, the police shall\u00a0…<\/span><\/p>\n

restrict the rights of individuals only as provided for by law. When enforcing a restriction of those rights, all police officers must make themselves known to the person, produce their official identification, explain the basis for the restriction and inform the person of his or her rights….<\/span><\/p>\n

Ensure the observance of the registration and movement rules by\u00a0aliens\u00a0…\u00a0on the\u00a0territory\u00a0of\u00a0Georgia.\u201d<\/span><\/p>\n

Section 9 (b), (c), (5) and (11) \u2013 Police Rights<\/span><\/p>\n

\u201cIn order to fulfil their official duties, police officers may…<\/span><\/p>\n

inspect a person\u2019s identity papers if there is sufficient cause to believe that he or she has committed a crime or an administrative offence;<\/span><\/p>\n

in the context of proceedings relating to a criminal or administrative offence, summon the person concerned to a police station and request an explanation as well as the necessary information and documents. If the person fails to appear without a valid reason, he or she may be brought to the police station compulsorily in accordance with the statutory provisions\u00a0…<\/span><\/p>\n

bring an offender to a <\/span><\/a>police\u00a0station and keep him or her for up to eight hours in order to establish his or her identity and check any relevant items. A report of the detention must be drawn up immediately in accordance with the statutory provisions\u00a0…<\/span><\/p>\n

in order to prevent a crime, arrest a suspect or an accused or where human life is in danger, enter a private residence\u00a0…\u00a0without the permission of the occupants\u00a0…\u00a0and inform the prosecutor in writing within twenty-four hours.\u201d<\/span><\/p>\n

Section 33 \u2013 Remedies against police actions<\/span><\/p>\n

\u201cAll citizens shall have the right to challenge police actions before a competent senior official, the prosecutor or a court.\u201d<\/span><\/p>\n

3.\u00a0\u00a0Presidential Decree no. 634 dated 29 November 1999 \u201cconcerning urgent provisional measures aimed at regulating the registration of the entry,\u00a0residence\u00a0and departure of\u00a0aliens\u201d<\/span><\/p>\n

20.\u00a0\u00a0According to the above Decree, the Ministry of\u00a0the\u00a0Interior\u00a0is among the State agencies overlooking the lawfulness of entry, stay and departure of\u00a0aliens\u00a0to and from the\u00a0territory\u00a0of\u00a0Georgia. Article 3 provides that the Ministry of\u00a0the\u00a0Interiorshall, with other law-enforcement bodies, within the limits of its powers and according to the relevant legislation, react to violations of the rules concerning the entry, stay and departure of\u00a0aliens. According to Article 5 (b) of the same Decree, the Ministry of\u00a0the Interior\u00a0is responsible for monitoring compliance by\u00a0aliens\u00a0with the permissible dates of their stay in the country.<\/span><\/p>\n

4.\u00a0\u00a0Code of Administrative Offences, as in force at the material time<\/span><\/p>\n

21.\u00a0\u00a0Under Articles 24 and 32 of the Code, administrative detention is one of the penalties for administrative offences. It is decided on by a first\u2011instance judge and cannot exceed thirty days.<\/span><\/p>\n

22.\u00a0\u00a0According to Article 173 of the Code, persistent refusal to comply with orders or requests issued by a police officer in the exercise of his or her public order duties constitutes an administrative offence, punishable by a fine or by administrative detention for up to thirty days. Proceedings relating to such an offence fall within the jurisdiction of the courts of first instance (Article 208 of the Code).<\/span><\/p>\n

23.\u00a0\u00a0In accordance with Articles 244, 245 and 246 of the Code, for the purposes of identifying a person in the context of proceedings relating to an administrative offence, that person may be subject to administrative detention and to a strip-search, and may have objects and documents confiscated. Detention where the offence is one defined under Article\u00a0173 of the Code, falls within the competence of the Ministry of\u00a0the\u00a0Interior\u00a0and must not exceed three hours. The time-limit begins running when the individual is brought to the police station to have a police report drawn up. The report on the person\u2019s administrative detention must include the date and time, the duties and name of the officer, information about the detainee, the time of detention and the reasons for it.<\/span><\/p>\n

B.\u00a0\u00a0International reports<\/span><\/p>\n

1.\u00a0\u00a0The report by the\u00a0Parliamentary Assembly\u2019s\u00a0Political Affairs Committee\u00a0on the situation in Georgia and the consequences for the stability of the Caucasus region, 24 September 2002,\u00a0(Doc.\u00a09564)<\/span><\/p>\n

24.\u00a0\u00a0The report, in its relevant part, states the following:<\/span><\/p>\n

\u201cE. Consequences of the conflict in the\u00a0Chechen\u00a0Republic<\/span><\/p>\n

34. When the current stage of the conflict in the\u00a0Chechen\u00a0Republic\u00a0started in 1999, the authorities of the\u00a0Russian Federation\u00a0accusedGeorgia\u00a0of sheltering Chechen fighters and asked the Georgian authorities to authorise the Russian army to operate in\u00a0Georgia\u00a0to fight Chechen \u201cterrorists.\u201d<\/span><\/p>\n

35.\u00a0Georgia\u00a0denied these accusations and called upon the OSCE to observe and report movements across the border between\u00a0Georgiaand the\u00a0Chechen\u00a0Republic\u00a0of the\u00a0Russian Federation.\u00a0…<\/span><\/p>\n

37. The most serious concerns have been expressed about the presence of Chechens in the\u00a0Pankisi\u00a0Valley, situated around 35 kilometres north of\u00a0Tbilisi. This valley is generally considered as a largely lawless area, mostly controlled by criminals and fighters. The\u00a0Georgiaauthorities maintain that the Chechens, who live in the valley\u00a0(possibly around 8.000 people), are refugees. The Russian authorities claim that the valley is used by Chechen fighters as a safe haven and a base for their operations in\u00a0Russia.<\/span><\/p>\n

38. Last year, the Georgian authorities accused\u00a0Russia\u00a0of bombarding its territory on the pretext of fighting Chechen terrorists.\u00a0Russiastrongly denied the accusations.<\/span><\/p>\n

39. In the spring of 2002, the\u00a0US\u00a0government declared that Al\u2011Qaida terrorists were hiding in the\u00a0Pankisi\u00a0Valley. The Georgian government accepted the presence of some 200\u00a0US\u00a0instructors to help train the Georgian anti-terrorist units.\u00a0…<\/span><\/p>\n

41. In these circumstances, it does not seem likely that the Pankisi valley serves in any meaningful manner as an active base for the Chechen fighters. It is, nevertheless, impossible to claim that there has not been a presence of Chechen fighters there. The lawless situation in Pankisi undoubtedly represents a security threat both to\u00a0Georgia\u00a0and to\u00a0Russia. Both countries have an interest in collaborating in order to solve this situation, while fully respecting the principles of sovereignty and territorial integrity. I welcome the declared willingness of the Georgian government to restore the rule of law in the\u00a0Pankisi\u00a0Valley.<\/span><\/p>\n

42. However, the situation has been severely aggravated by the declaration of the President of the Russian Federation of 11 September 2002, which contained the threat of using unilateral military action based on Article 51 of the UN Charter against suspected terrorists on Georgian territory, but also expected Georgian agreement on joint efforts during the next CIS Summit on 7 October 2002. In response hereto, the Georgian President invited on 13 September a monitoring mission to the\u00a0Pankisi\u00a0Valley\u00a0by the OSCE including Russian participation.\u00a0…\u201d<\/span><\/p>\n

2.\u00a0\u00a0Follow-up report to the recommendations of the Commissioner for Human Rights, following his visit to Georgia, from 1 to 10\u00a0June 2000 (excerpt from the 3rd\u00a0Annual Report of the Commission for Human Rights (CommDH(2003)7)<\/span><\/p>\n

25.\u00a0\u00a0The relevant part of the report reads as follows:<\/span><\/p>\n

\u201c1. Chechen Refugees<\/span><\/p>\n

Since the Commissioner\u2019s first report numerous, and occasionally worrying, developments have taken place in respect of the Chechen refugees in\u00a0Georgia.\u00a0…<\/span><\/p>\n

As of September 2002, troops from Georgian Ministry of Interior have conducted several checks in the [Pankisi] valley. Similar operations have also been conducted in\u00a0Tbilisi, notably on 7th\u00a0December 2002, when 100 Chechens were detained and questioned. In a separate incident, on the same day, 5 Chechens were allegedly killed. The extradition of 5 Chechens to\u00a0Russia\u00a0on 4th\u00a0October 2002, and a further 8 afterwards following the obtaining of procedural guarantees from\u00a0Russia\u00a0by the\u00a0European Court of Human Rights has increased the feeling of insecurity amongst the Chechen refugee population in\u00a0Georgia.<\/span><\/p>\n

For so long as the situation in the\u00a0Chechen\u00a0Republic\u00a0is such that the refugee population in\u00a0Georgia\u00a0cannot freely return, it is incumbent on the Georgian authorities to provide all the protection afforded by the Geneva Convention. Whilst the restoration of order in the Pankisi Gorge must remain a priority for Georgian authorities and a concern of their Russian counterparts, it is essential that the necessary measures be conducted by the Georgian authorities, in an even-handed manner and in full respect of the rule of law….\u201d<\/span><\/p>\n

3.\u00a0\u00a0The United Nations High Commissioner for Refugees (\u201cthe UNHCR\u201d), The Global Report 2002<\/span><\/p>\n

26.\u00a0\u00a0In its Global Report 2002 the UNHCR noted with respect to\u00a0Georgia:<\/span><\/p>\n

\u201cChechen refugees and asylum seekers<\/span><\/p>\n

In April, the Ministry for Refugees and Accommodation carried out a registration exercise, with UNCHR\u2019s financial and technical assistance. The number of\u00a0prima facie\u00a0registered refugees was reduced from about 8,000 to some 4,000, mainly because of previous double and triple registration or refugees, as well as the erroneous registration of local people.\u00a0…<\/span><\/p>\n

The context<\/span><\/p>\n

The refugee caseload in the Pankisi valley has proven to be a politically sensitive issue. There were frequent security incidents during the year, the most important being the bombing and shelling of areas close to the refugee settlements by an unidentified aircraft in August.\u00a0…\u00a0In August 2002,\u00a0Georgia\u00a0law enforcement units were deployed in the valley but the security situation remained very difficult and dangerous.\u00a0…\u201d<\/span><\/p>\n

4.\u00a0\u00a0Human Rights Watch \u201cIn the name of counter-terrorism: human rights abuses worldwide\u201d (25\u00a0March 2003)<\/span><\/p>\n

27.\u00a0\u00a0The relevant part of the report reads as follows:<\/span><\/p>\n

\u201cGeorgia<\/span><\/p>\n

U.S.-supported anti-terror measures in\u00a0Georgia\u00a0have focused on the Pankisi Gorge and on\u00a0Georgia\u2019s Chechen population. In implementing these measures the government has committed serious human rights violations, which it refuses to address. President Eduard Shevardnadze indicated the government\u2019s attitude toward observing human rights in its counter-terrorism campaign on October 5, 2002, one day after Georgia had extradited five Chechens to Russia without due process, when he said: \u201cInternational human rights commitments might become pale in comparison with the importance of the anti-terrorist campaign.\u201d\u00a0…<\/span><\/p>\n

Human Rights Watch has documented four \u201cdisappearances,\u201d one extrajudicial execution, and cases of incommunicado detention, attributable to Georgian security forces engaged in counter-terrorism.\u00a0…<\/span><\/p>\n

In a massive passport check in\u00a0Tbilisi\u00a0on December 7, 2002, police briefly detained nearly one hundred ethnic Chechens, including some minors. Given the context, many in\u00a0Georgia\u00a0believed this operation to be connected with counter-terrorism efforts, though no official publicly linked the two.\u201d (Footnotes omitted)<\/span><\/p>\n

THE LAW<\/strong><\/span><\/p>\n

I.\u00a0\u00a0ALLEGED VIOLATION OF ARTICLE\u00a05 \u00a7\u00a7\u00a01, 2\u00a0AND\u00a04 OF THE CONVENTION<\/span><\/p>\n

28.\u00a0\u00a0The applicants alleged that their three-hour detention at the police station on 7 December 2002 in the absence of any relevant legal basis was in breach of domestic law and, consequently, of Article 5 \u00a7 1 of the Convention. They further complained that they had not been informed about the reasons for their detention and had been denied the opportunity to challenge its lawfulness before the domestic courts. The Court considers that the present complaints fall to be examined under Article 5 \u00a7\u00a7 1, 2 and 4 of the Convention, which reads as follows:<\/span><\/p>\n

Article 5 \u00a7\u00a7 1, 2 and 4<\/span><\/p>\n

\u201c1.\u00a0\u00a0Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:<\/span><\/p>\n

(a)\u00a0\u00a0the lawful detention of a person after conviction by a competent court;<\/span><\/p>\n

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court in order to secure the fulfilment of any obligation prescribed by law;<\/span><\/p>\n

(c)\u00a0\u00a0the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;<\/span><\/p>\n

(d)\u00a0\u00a0the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;<\/span><\/p>\n

(e)\u00a0\u00a0the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;<\/span><\/p>\n

(f)\u00a0\u00a0the lawful arrest or detention of a person to prevent his effecting an authorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.<\/span><\/p>\n

2.\u00a0\u00a0Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.\u00a0…<\/span><\/p>\n

4.\u00a0\u00a0Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.\u201d<\/span><\/p>\n

A.\u00a0\u00a0Admissibility<\/span><\/p>\n

29.\u00a0\u00a0The Government raised several objections to the admissibility of the application.<\/span><\/p>\n

1.\u00a0\u00a0Exhaustion of domestic remedies<\/span><\/p>\n

(a)\u00a0\u00a0The parties\u2019\u00a0submissions<\/span><\/p>\n

30.\u00a0\u00a0The Government argued that the applicants had not exhausted the available domestic remedies. Their assertion was based on two grounds.\u00a0Firstly, the investigation of the allegedly unlawful detention of the applicants was still pending and no final decision had yet been taken at the domestic level (see paragraph 17 above). Therefore, the applicants\u2019complaints were premature. Secondly, they argued that as the applicants had alleged that their 2 April 2003 application for the initiation of criminal proceedings had not been followed up with a formal written decision issued within twenty days, as required by Article 265 \u00a7 4 of the CCP, the applicants should have lodged a hierarchical complaint of failure to take action against the district prosecutor (Articles 55, 235 and 279 of the CCP).<\/span><\/p>\n

31.\u00a0\u00a0The applicants insisted that the investigation had been ineffective. In their opinion, the fact that the proceedings had been opened only after communication by the Court of the application to the respondent Government, and almost three years after the alleged incident, was proof in itself of the ineffectiveness of the investigation. The Government also failed to submit the case file, which would have indicated that certain investigative measures had indeed been taken in the course of the relevant proceedings. The applicants also complained in this connection that they had been informed about the initiation of relevant criminal proceedings only through the Government\u2019s observations of 12 October 2005.<\/span><\/p>\n

32.\u00a0\u00a0As regards the hierarchical complaint, the applicants maintained that despite their reiterated requests, they had not been issued with a formal written decision concerning either the initiation or refusal to initiate criminal proceedings, as provided by Article 265 of the CCP. Hence, they were deprived of the opportunity to challenge a decision of a district prosecutor through the normal procedure. A mere general complaint of failure to take action against a district prosecutor would have been just another formal and ineffective measure further protracting\u00a0the proceedings.<\/span><\/p>\n

(b)\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

33.\u00a0\u00a0The Court notes at the outset that in the present case the parties have disputed when exactly the applicants lodged their initial formal complaints with the competent prosecution authorities. Another issue in dispute was also related to the fact that the Government failed to find some of the applicants\u2019\u00a0complaints stated to have been lodged with the relevant prosecution authorities. In the Court\u2019s opinion there is no need for it to resolve these disputed matters, for the following reason:\u00a0the\u00a0Government has never contested that the incident of 7 December 2002 as such was more than adequately brought to its attention, thus triggering the relevant authorities\u2019\u00a0duty to act promptly to verify the information and to institute a prosecution in the event of evidence of an offence being identified\u00a0(Articles\u00a024 \u00a7\u00a04, 261 and 265 \u00a7\u00a04 of the CCP). Even if the Government\u2019s version of events is accepted, the prosecution authorities learned about the second applicant\u2019s grievances concerning the police actions at the latest in February 2003 and, with respect to the first applicant\u2019s complaint, at the latest in November 2003. The Court is, therefore, satisfied that the applicants raised their complaints about the police actions before the appropriate domestic bodies; the prosecution authorities were accordingly obliged under relevant domestic provisions to carry out a preliminary inquiry with a view to opening criminal proceedings.<\/span><\/p>\n

34.\u00a0\u00a0Turning to the substance of the Government\u2019s non-exhaustion plea, in connection with the first limb of the objection the Court notes that it was not until almost three years after the incident, in August and October\u00a02005 respectively, and only after communication of the application by the Court to the respondent Government, that a preliminary investigation was launched by the prosecutor\u2019s office. Its progress is dubious, as the Government failed to submit any relevant documents from the case file (see paragraph 17 above). In the Court\u2019s view, the belated commencement of the inquiry and the apparent delay in the progress imputable to the relevant domestic authorities renders the investigation on the whole ineffective. Hence, the Court does not consider that the applicants should have waited for completion of the investigation. The Government\u2019s argument that the applicants\u2019\u00a0complaints are premature should therefore be\u00a0dismissed.<\/span><\/p>\n

35.\u00a0\u00a0As to the second limb of the objection, according to which the applicants should have challenged the district prosecutor\u2019s failure to take action before a higher prosecutor, the Court reiterates that in general a hierarchical remedy cannot be regarded as effective, because litigants are unable to participate in such proceedings (see\u00a0Giorgi Nikolaishviliv.\u00a0Georgia, no. 37048\/04, \u00a7 112, 13 January 2009).\u00a0Since the competent authorities remained passive in the face of the applicants\u2019\u00a0allegations of misconduct and abuse of power by State agents, the applicants could justifiably have regarded any further requests to the same authorities as a futile exercise (see\u00a0Giorgi Nikolaishvili,\u00a0cited above, \u00a7 114).\u00a0As to possible judicial proceedings, the applicants were never served with a formal decision on whether the requested criminal proceedings would in fact be instituted. Consequently, the applicants cannot be criticised for not appealing against it (see,a contrario,\u00a0Ramishvili and Kokhreidze v.\u00a0Georgia\u00a0(dec), no.\u00a01704\/06, 26 June 2007, and\u00a0Chitayev and Chitayev v.\u00a0Russia, no.\u00a059334\/00, \u00a7\u00a7\u00a0139 and 140, 18\u00a0January 2007).<\/span><\/p>\n

36.\u00a0\u00a0In these circumstances,\u00a0the Court finds that the applicants did everything that could reasonably be expected of them to have their rights redressed (see\u00a0Ramishvili and Kokhreidze\u00a0(dec.), cited above). The\u00a0Court hence dismisses the Government\u2019s objection of non-exhaustion.<\/span><\/p>\n

2.\u00a0\u00a0Compliance with the six-month time-limit under Article 35 \u00a7 1 of the Convention<\/span><\/p>\n

(a)\u00a0\u00a0The parties\u2019\u00a0submissions<\/span><\/p>\n

37.\u00a0\u00a0The Government argued that the application had been submitted outside the six-month time-limit prescribed by the Convention. They maintained that, in so far as the applicants\u2019\u00a0main argument was that the prosecution authorities had neglected their request of 2 April 2003 concerning initiation of criminal proceedings and had accordingly failed to issue a written decision within twenty days, in violation of Article 265 \u00a7\u00a04 of the CCP, 22 April 2003 should have served as the starting point for the six-month period. The Government further contended, in the alternative, that in view of the content of the letters of 19 November 2003 and 16\u00a0January 2004 the applicants should have understood the futility of their efforts at the domestic level earlier and should not have waited for still another letter, on 10 March 2004, before applying to the Court.<\/span><\/p>\n

38.\u00a0\u00a0The applicants disagreed, claiming that the Government\u2019s position regarding the starting point for the six-month period was inconsistent. According to the applicants, on the one hand, the Government were arguing that the applicants\u2019application was premature, as the criminal proceedings were still pending, whilst on the other hand they claimed that the six\u2011month period had started to run on 22 April 2004. Furthermore, the applicants argued that, contrary to the Government\u2019s submission, they had continued to make attempts to obtain a review of their detention, but their complaints had been discarded without being considered. The last letter received from the prosecutor\u2019s office in this respect was dated 10 March 2004, which, according to the applicants, should have been taken as a starting point for the six-month time-limit.<\/span><\/p>\n

(b)\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

39.\u00a0\u00a0The Court reiterates that the six-month period runs from the date of the final decision in the process of exhaustion of domestic remedies. Article\u00a035 \u00a7 1 of the Convention cannot, therefore, be interpreted in a manner which would require an applicant to bring his complaint to the Court before his position in connection with the matter had been finally settled at the domestic level. Where, therefore, an applicant avails himself of an apparently existing remedy and only subsequently becomes aware of circumstances which render the remedy ineffective, it may be appropriate for the purposes of Article 35 \u00a7 1 to take the start of the six-month period from the date when the <\/span><\/a>applicant <\/span><\/a>first\u00a0became\u00a0or\u00a0ought\u00a0to\u00a0have\u00a0become\u00a0awareof those <\/span><\/a>circumstances\u00a0(see\u00a0Paul and Audrey Edwards v.\u00a0the United Kingdom\u00a0(dec.), no. 46477\/99, 7 June 2001).<\/span><\/p>\n

40.\u00a0\u00a0Turning to the case at hand, the Court observes that the applicants and their lawyers lodged several complaints with the prosecutor\u2019s office of unlawful police actions taken on 7 December 2002;\u00a0however, their attempts produced no results. It is true that with the passage of time the applicants must have become aware of unwillingness on the part of the prosecution authorities to initiate an investigation. That being said, the relatively short period involved is not sufficient for the Court to conclude that the applicants should already have been aware, more than six months before they lodged their application on 26 August 2004, of the ineffectiveness of the measures applied (see\u00a0Stanimirovi\u0107\u00a0v. Serbia, no. 26088\/06, \u00a7 33, 18 October 2011). The Court also notes that the Government have failed to advance any convincing argument as to why the Court should disregard the prosecutor\u2019s letter of 10 March 2004. The letters of 19 November 2003 and 16\u00a0January 2004 in this respect were not formal decisions capable of precluding with certainty the initiation of the requested criminal proceedings in the future.<\/span><\/p>\n

41.\u00a0\u00a0It follows that the applicants\u2019\u00a0complaints are not out of time for the purposes of Article 35 \u00a7 1 of the Convention. This objection is therefore also to be dismissed.<\/span><\/p>\n

3.\u00a0\u00a0Abuse of the right of application<\/span><\/p>\n

42.\u00a0\u00a0The Government claimed that the applicants had deliberately submitted false information to the Court\u00a0and thus abused their right of petition to the Court. The applicants disagreed.<\/span><\/p>\n

43.\u00a0\u00a0The Court reiterates that, except in extraordinary cases, an application may only be rejected as abusive if it was knowingly based on untruth (see, amongst others,\u00a0Keretchashvili v. Georgia\u00a0(dec.), no.\u00a05667\/02, 2\u00a0May 2006, andPirtskhalaishvili v. Georgia\u00a0(dec.), no.\u00a044328\/05, 29\u00a0April 2010).<\/span><\/p>\n

44.\u00a0\u00a0Having regard to the statements made by the applicants in the present case, the Court does not consider that they amount to an abuse of the right of petition. Accordingly the Government\u2019s objection is dismissed.<\/span><\/p>\n

45.\u00a0\u00a0The Court further finds that the complaints under Article\u00a05\u00a0\u00a7\u00a7\u00a01, 2 and 4 of the Convention are not manifestly ill-founded within the meaning of Article\u00a035\u00a0\u00a7\u00a03\u00a0(a) of the Convention and that they are not inadmissible on any other grounds. The complaints must therefore be declared admissible.<\/span><\/p>\n

B.\u00a0\u00a0Merits<\/span><\/p>\n

1.\u00a0\u00a0Alleged violation of Article 5 \u00a7 1 of the Convention<\/span><\/p>\n

(a)\u00a0\u00a0The parties\u2019\u00a0submissions<\/span><\/p>\n

46.\u00a0\u00a0At the outset, the Government described the challenging security context prevailing in\u00a0Georgia\u00a0at the material time. After the influx of the Chechen refugees into\u00a0Georgia\u00a0at the end of 1999, the country had been accused of sheltering Chechen fighters. Whilst addressing security considerations particularly in the Pankisi valley, where most of the Chechen refugees were (see paragraphs 24\u201126 above), the Government had also initiated a country-wide registration procedure for aliens\u00a0(see paragraph\u00a026 above). The Ministry of the Interior, being involved in the registration procedure, had been conducting check of aliens\u2019\u00a0identities and their legal status in\u00a0Georgia.<\/span><\/p>\n

47.\u00a0\u00a0Against this background the Government claimed that the applicants\u2019\u00a0identity check on 7 December 2002 had been conducted precisely within the framework of the above process. They further submitted that the length of time during which the applicants had been held at the police station had not exceeded thirty minutes. Not a single\u00a0investigative action had been conducted with respect to them within this period of time. Therefore, their \u201cdetention\u201d had been so temporary that it had not amounted to a \u201cdeprivation of liberty.\u201d Moreover, the applicants had merely been requested to accompany the police to the police station for an identity check. They had been kept there only for the length of time necessary to complete the identity check in accordance with Article 8 of the Police Act (see paragraph 19 above) and Articles 3 and 5 of Presidential Decree no. 634 (see paragraph 20 above). Their \u201cdetention\u201d had therefore been lawful and justified under the above provisions.<\/span><\/p>\n

48.\u00a0\u00a0The applicants disagreed with the Government. They maintained that they had been restrained and compelled to go to the police station and confined there against their will. They claimed that they had been held in police custody for three hours. Further, they alleged that their identity documents had been seized by the police and that they had been subjected to several investigative actions, which clearly implied that they were not free to leave the police premises. In view of this sequence of events, the applicants claimed that they were deprived of their liberty within the meaning of Article 5 \u00a7 1 of the Convention.<\/span><\/p>\n

49.\u00a0\u00a0The applicants further disputed the Government\u2019s argument concerning the lawfulness of their detention. They reiterated that their detention had been arbitrary and unlawful because it had no basis in domestic law and did not fall within any of the exceptions set out in Article\u00a05\u00a0\u00a7\u00a01\u00a0(a)\u00a0to\u00a0(f) of the Convention.<\/span><\/p>\n

(b)\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

i.\u00a0\u00a0The general principles<\/span><\/p>\n

50.\u00a0\u00a0The Court reiterates that Article\u00a05 of the Convention enshrines a fundamental right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. In proclaiming the \u201cright to liberty\u201d, paragraph 1 of Article 5 contemplates the physical liberty of the person; its aim is to ensure that no one should be deprived of that liberty in an arbitrary fashion. It is not concerned with mere restrictions on the liberty of movement; such restrictions are governed by Article\u00a02 of Protocol\u00a0No.\u00a04. In order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned, and account must be taken of a whole range of factors arising in a particular case, such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and a restriction upon, liberty is merely one of degree or intensity and not one of nature or substance (see\u00a0Guzzardi v. Italy, 6\u00a0November 1980, Series A no. 39, \u00a7 92, and\u00a0H.L. v. the United Kingdom, no.\u00a045508\/99, \u00a7 89, ECHR 2004-IX; see also\u00a0Austin and Others v.\u00a0the United Kingdom\u00a0[GC], nos. 39692\/09, 40713\/09 and 41008\/09, \u00a7\u00a7\u00a052\u201160,\u00a0ECHR\u00a02012). Article 5 of the Convention may apply to deprivations of liberty of even a very short length (see\u00a0Gillan and Quinton v. the United Kingdom, no. 4158\/05, \u00a7 57, ECHR 2010\u2011… (extracts),\u00a0where the applicants were stopped for a search which did not exceed thirty minutes; see also\u00a0Iliya Stefanov v.\u00a0Bulgaria, no.\u00a065755\/01, \u00a7\u00a071, 22 May 2008, and\u00a0Foka v. Turkey, no.\u00a028940\/95, \u00a7 75, 24 June 2008).<\/span><\/p>\n

51.\u00a0\u00a0The Court points out that\u00a0sub\u2011paragraphs\u00a0(a) to (f) of Article\u00a05\u00a0\u00a7\u00a01 contain an exhaustive list of permissible grounds on which people may be deprived of their liberty and no deprivation of liberty will be lawful unless it falls within one of those grounds\u00a0(see\u00a0Austin and Others,\u00a0cited above, \u00a7 60). Where the \u201clawfulness\u201d of detention is in issue, including the question whether \u201ca procedure prescribed by law\u201d has been followed, the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law. Compliance with national law is not, however, sufficient: Article\u00a05\u00a0\u00a7\u00a01 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness. It is a fundamental principle that no detention which is arbitrary can be compatible with Article\u00a05 \u00a7\u00a01, and the notion of \u201carbitrariness\u201d in Article 5 \u00a7 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention (see, among other judgments,\u00a0Guzzardi, cited above, \u00a7\u00a092, and\u00a0A. and Others\u00a0v.\u00a0the United Kingdom\u00a0[GC], no.\u00a03455\/05, \u00a7\u00a7\u00a0162\u2011164, 19\u00a0February 2009).<\/span><\/p>\n

ii.\u00a0\u00a0Application of the above principles to the circumstances of the present case<\/span><\/p>\n

52.\u00a0\u00a0The Court observes that the parties are in dispute as to the exact length of time the applicants spent at the police station, with the applicants maintaining that they were detained for three hours and the Government arguing that they had been kept there only thirty minutes. In determining the length of time the applicants were in the police station, the Court considers that, in the absence of any official document in support of the Government\u2019s position, the benefit of the doubt should be given to the applicants, as it falls primarily on the Government to provide a detailed hour-by-hour account supported by the relevant and convincing evidence (see\u00a0Creang\u0103 v.\u00a0Romania\u00a0[GC], no.\u00a029226\/03, \u00a7\u00a7 89-90, 23 February 2012; see also\u00a0Salayev v.\u00a0Azerbaijan, no.\u00a040900\/05, \u00a7 39, 9 November 2010;\u00a0Farhad Aliyev v.\u00a0Azerbaijan, no.\u00a037138\/06, \u00a7 157, 9 November 2010; and\u00a0Boris Popov v.\u00a0Russia, no. 23284\/04, \u00a7\u00a061, 28\u00a0October 2010).<\/span><\/p>\n

53.\u00a0\u00a0The Court points out that the applicants\u2019\u00a0version of the length of their detention, as evident from the case file, was supported by other Chechen refugees who were also taken on 7 December 2002 to the same police station, and also by the applicants\u2019\u00a0consistent claims in the domestic proceedings. The extracts from the relevant international reports also refer to the detention and questioning of some 100 Chechens on 7\u00a0December 2002 (see paragraphs 25 and\u00a027\u00a0above). The Government failed to produce any copies of the documents relating to the applicants\u2019\u00a0detention or to challenge the available evidence. Accordingly, the Court accepts that the applicants were in fact kept at the police station\u00a0for three hours.<\/span><\/p>\n

54.\u00a0\u00a0The Court must now ascertain whether the applicants were \u201cdeprived of their liberty\u201d during this period. The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court\u2019s conclusion as to the existence of a deprivation of liberty (see\u00a0Creang\u0103,\u00a0cited above, \u00a7 92).<\/span><\/p>\n

55.\u00a0\u00a0The Court points out that owing to the scarcity of information at its disposal and the lack of any official records, it is unable to establish in detail all the circumstances surrounding the applicants\u2019\u00a0detention. Nevertheless, it appears indisputable to the Court that the applicants had their identification documents taken from them and were escorted by police to the police station, where they were questioned. Despite the fact that the applicants were not handcuffed, placed in a locked cell or otherwise restrained during the period in question, it would be unrealistic to assume that they were free to leave\u00a0(see, for example,\u00a0Shimovolos\u00a0v. Russia, no.\u00a030194\/09, \u00a7\u00a050, 21\u00a0June 2011, and\u00a0Osypenko v. Ukraine, no. 4634\/04, \u00a7 49, 9\u00a0November 2010). The Court, therefore, considers, in view of the coercive element clearly present in the current case\u00a0(see, for example,\u00a0Rantsev v. Cyprus and Russia, no. 25965\/04, \u00a7\u00a7 317 -318, ECHR 2010 (extracts))\u00a0and despite the relatively short period of time in question (see\u00a0Gillan and Quinton, cited above, \u00a7\u00a057, and\u00a0Shimovolos, cited above, \u00a7\u00a7 48-50)\u00a0that the applicants were deprived of their liberty within the meaning of Article\u00a05\u00a0\u00a7\u00a01 of the Convention.<\/span><\/p>\n

56.\u00a0\u00a0The Court will now examine whether the applicants\u2019\u00a0detention was free from arbitrariness. It reiterates in this connection that the list of exceptions to the right to liberty secured in Article\u00a05 \u00a7\u00a01 is an exhaustive one, and that only a narrow interpretation of those exceptions is consistent with the aim of that provision, namely to ensure that no-one is arbitrarily deprived of his liberty (see\u00a0paragraph 51 above).<\/span><\/p>\n

57.\u00a0\u00a0In the present case, the Georgian Government pointed to Article\u00a08 of the Police Act and Articles 3 and 5 of Presidential Decree no.\u00a0634 as possible grounds for the applicants\u2019\u00a0being taken to the police station and their subsequent detention. The Court does not accept the validity of the Government\u2019s argument, which, in its opinion, has a twofold defect. Firstly, neither of these two legal acts appears to provide a legal basis for detention in the situation like that of the applicants (see,\u00a0a contrario,\u00a0Foka, cited above, \u00a7\u00a7 85-86; compare with paragraphs 21\u201123 above). Secondly, the Government did not dispute that the applicants had already complied with the statutory obligation to show their identity documents at the police officers\u2019\u00a0request when they were still in their apartments (see,\u00a0a contrario,\u00a0Vasileva v. Denmark, no.\u00a052792\/99, \u00a7\u00a7 36-38, 25\u00a0September 2003, and\u00a0Foka, cited above, \u00a7\u00a7 85-86) and notwithstanding the fact that both applicants had shown valid refugee cards, the Government failed to argue that there had indeed been a need for them to be taken to the police station.<\/span><\/p>\n

58.\u00a0\u00a0Hence, there is no evidence of the applicants\u2019\u00a0failure to comply with any lawful court order or to fulfil any obligation prescribed by law and, thus, their deprivation of liberty was not covered by sub-paragraph\u00a0(b) of Article\u00a05\u00a0\u00a7\u00a01. The Court finds that no grounds have been made out which could bring the applicants\u2019\u00a0detention into any of the other sub-categories of Article\u00a05\u00a0\u00a7\u00a01.<\/span><\/p>\n

59.\u00a0\u00a0Furthermore,\u00a0the applicants\u2019\u00a0deprivation of liberty was not documented at all. The Court notes in this connection that notwithstanding the actual length of deprivation of liberty, the unrecorded detention of an individual is a complete negation of the fundamentally important guarantees\u00a0contained in Article 5 of the Convention and discloses a grave violation of that provision (see\u00a0Kurt v. Turkey, 25 May 1998, \u00a7 125,\u00a0Reports\u00a01998-III).<\/span><\/p>\n

60.\u00a0\u00a0Lastly, the Court takes note of the Government\u2019s argument that against the background of the prevailing security situation in\u00a0Georgia\u00a0at the material time, the relevant national authorities were indeed requested to implement stricter control measures on the entry and residence of aliens on the\u00a0territory\u00a0of\u00a0Georgia. This could include increased identity checks to establish the legal status of those concerned. The Court reiterates, however, that even taking into account the special circumstances of the case, Article\u00a05\u00a0\u00a7\u00a01 does not permit a balance to be struck between the individual\u2019s right to liberty and the State\u2019s interest in addressing security threats.\u00a0The Government\u2019s argument is inconsistent with the principle that paragraphs\u00a0(a) to (f) of Article\u00a05\u00a0\u00a7\u00a01 amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee (see\u00a0A. and Others, cited above, \u00a7\u00a0171, and\u00a0Al Husin\u00a0v.\u00a0Bosnia\u00a0and\u00a0Herzegovina, no. 3727\/08, \u00a7\u00a7 64-65, 7 February 2012; see also\u00a0Schwabe and M.G. v\u00a0\u00a0Germany, nos. 8080\/08 and 8577\/08, \u00a7\u00a085, ECHR 2011 (extracts)).<\/span><\/p>\n

61.\u00a0\u00a0It follows from all the above that the applicants\u2019\u00a0unrecorded detention did not have any legitimate purpose under Article <\/span><\/a>5\u00a0\u00a7 <\/span><\/a>1\u00a0and was accordingly unlawful and arbitrary. There has therefore been a violation of Article\u00a05\u00a0\u00a7\u00a01 of the Convention.<\/span><\/p>\n

2.\u00a0\u00a0Alleged violation of Article 5 \u00a7 2 of the Convention<\/span><\/p>\n

(a)\u00a0\u00a0The parties\u2019\u00a0submissions<\/span><\/p>\n

62.\u00a0\u00a0The Government reiterated that the applicants had not been deprived of their liberty within the meaning of Article 5 \u00a7 1 of the Convention, therefore there was no obligation on the part of the relevant police officers to inform the applicants of the reasons for their detention.<\/span><\/p>\n

63.\u00a0\u00a0The applicants disagreed.<\/span><\/p>\n

(b)\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

64.\u00a0\u00a0The Court reiterates that Article <\/span><\/a>5\u00a0\u00a7 <\/span><\/a>2\u00a0of the Convention contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. By virtue of this provision any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness (see\u00a0Fox,\u00a0Campbell and Hartley v.\u00a0the United Kingdom, 30 August 1990, \u00a7 40, Series A no. 182; see also\u00a0Shamayev and Others v.\u00a0Georgia\u00a0and\u00a0Russia, no. 36378\/02,\u00a0\u00a7\u00a0413,ECHR\u00a02005\u2011III).<\/span><\/p>\n

65.\u00a0\u00a0In the present case, the Court has already found, in the context of its examination of the applicants\u2019\u00a0complaint under Article\u00a05\u00a0\u00a7\u00a01 of the Convention, that the applicants\u2019\u00a0situation amounted to a deprivation of liberty. The fact that the applicants were not provided with a single written document concerning the grounds for their detention either throughout the detention itself or subsequently after their release supports the applicants\u2019\u00a0allegation that they were left in a state of uncertainty and confusion as to why they had been deprived of their liberty on 7\u00a0December 2002. It should be further stressed that according to the applicants, they were subjected to several investigative actions during their stay at the police department. The available extracts from the relevant international reports confirm the applicants\u2019\u00a0allegations at least as far as they concern their questioning (see paragraph\u00a025\u00a0above). Under\u00a0the particular circumstances of this case (see paragraphs\u00a025-27 above; see also\u00a0Shamayev and Others,\u00a0cited above), the Court considers that the applicants\u2019questioning would have driven them even more into uncertainty as regards the reasons for their detention (see,\u00a0a contrario, Foka,\u00a0cited above, \u00a7\u00a088).<\/span><\/p>\n

66.\u00a0\u00a0It follows that there has been a violation of Article<\/span><\/a> 5\u00a0\u00a7<\/span><\/a> 2\u00a0of the Convention in the present case.<\/span><\/p>\n

3.\u00a0\u00a0Alleged violation of Article 5 \u00a7 4 of the Convention<\/span><\/p>\n

(a)\u00a0\u00a0The parties\u2019\u00a0submissions<\/span><\/p>\n

<\/a>67.\u00a0\u00a0The\u00a0Government reiterated their argument that Article\u00a05 of the Convention as a whole, including its fourth paragraph, was not applicable to the situation of the applicants. In any event, they maintained, in line with the non-exhaustion argument, that the applicants had had effective appeal procedures at their hand, but had not availed themselves of these remedies.<\/span><\/p>\n

68.\u00a0\u00a0The applicants disagreed, maintaining that they were not able to challenge the lawfulness of their detention. They were not provided with a written prosecutorial decision either refusing or agreeing to initiate criminal proceedings. As a consequence, the applicants claimed that they were deprived of any possibility of relying on the hierarchical and judicial means of appeal available to them under the relevant criminal and administrative law.<\/span><\/p>\n

(b)\u00a0\u00a0The Court\u2019s assessment<\/span><\/p>\n

69.\u00a0\u00a0The Court reiterates that Article 5 \u00a7 4 of the Convention deals only with those remedies which must be made available during a person\u2019s detention with a view to that person obtaining speedy judicial review of the lawfulness of the detention capable of leading, where appropriate, to his or her release. The provision does not deal with other remedies which may serve to review the lawfulness of a period of detention which has already ended, including, in particular, a short-term detention (see\u00a0Slivenko v.\u00a0Latvia\u00a0[GC],\u00a0no.\u00a048321\/99, \u00a7\u00a0158, ECHR 2003\u2011X).<\/span><\/p>\n

70.\u00a0\u00a0Accordingly, the Court does not find it necessary to examine the merits of the applicants\u2019\u00a0complaint under Article 5 \u00a7 4 of the Convention.<\/span><\/p>\n

II.\u00a0\u00a0OTHER ALLEGED VIOLATIONS OF THE CONVENTION<\/span><\/p>\n

71.\u00a0\u00a0The applicants complained of a violation of Articles 6 \u00a7 1 and 13 of the Convention on account of the failure of the relevant prosecution authorities to initiate a preliminary investigation of the circumstances of their allegedly unlawful detention, and the inability as a\u00a0consequence to bring judicial review proceedings.<\/span><\/p>\n

72.\u00a0\u00a0The Court notes at the outset that Article 6 \u00a7 1 of the Convention\u00a0does not guarantee the\u00a0right to institute criminal proceedings against a third party\u00a0(see, amongst other authorities,\u00a0Members (97) of the Gldani Congregation of Jehovah\u2019s Witnesses v. Georgia\u00a0(dec.), no.\u00a071156\/01, 6\u00a0July 2004, and\u00a0Saghinadze and Others v.\u00a0Georgia, no. 18768\/05, \u00a7\u00a089, 27\u00a0May 2010). It follows that this complaint is incompatible\u00a0ratione materiae\u00a0with the provisions of the Convention within the meaning of Article\u00a035\u00a0\u00a7\u00a03 and must be rejected in accordance with Article 35\u00a0\u00a7\u00a04. As regards the last complaint, in the light of all the material in its possession, the Court finds that no separate issue arises under Article\u00a013 of the\u00a0Convention.<\/span><\/p>\n

III.\u00a0\u00a0APPLICATION OF ARTICLE 41 OF THE CONVENTION<\/span><\/p>\n

73.\u00a0\u00a0Article 41 of the Convention provides:<\/span><\/p>\n

\u201cIf the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.\u201d<\/span><\/p>\n

A.\u00a0\u00a0Damage<\/span><\/p>\n

74.\u00a0\u00a0The applicants claimed that they had felt harassed and intimidated by the police actions and that it would be appropriate for the Court to award compensation of EUR 10,000 each in respect of non-pecuniary damage.<\/span><\/p>\n

75.\u00a0\u00a0The Government submitted that the applicants\u2019\u00a0claims were ill\u2011founded; in view of the short duration of the identity-check procedure they were subjected to, the applicants could not have suffered any psychological damage.<\/span><\/p>\n

76.\u00a0\u00a0The Court considers that EUR\u00a0500 in respect of non\u2011pecuniary damage for each applicant constitutes sufficient just satisfaction in the circumstances of the present case.<\/span><\/p>\n

B.\u00a0\u00a0Costs and expenses<\/span><\/p>\n

77.\u00a0\u00a0The applicants also claimed EUR\u00a0100 in respect of translation costs.\u00a0In support they presented a contract with a translator.<\/span><\/p>\n

78.\u00a0\u00a0The Government did not comment on this claim.<\/span><\/p>\n

79.\u00a0\u00a0Regard being had to the document in its possession and to its case\u2011law, the Court considers it reasonable to award the applicants the sum of EUR\u00a0100 in respect of translation costs.<\/span><\/p>\n

C.\u00a0\u00a0Default interest<\/span><\/p>\n

80.\u00a0\u00a0The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.<\/span><\/p>\n

FOR THESE REASONS, THE COURT UNANIMOUSLY<\/strong><\/span><\/p>\n

1.\u00a0\u00a0Declares\u00a0the complaints under Article\u00a05\u00a0\u00a7\u00a7\u00a01, 2 and 4\u00a0of the Convention\u00a0admissible and the remainder of the application inadmissible;<\/span><\/p>\n

2.\u00a0Holds\u00a0that there has been a violation of Article 5 \u00a7 1 of the Convention;<\/span><\/p>\n

3.\u00a0Holds\u00a0that there has been a violation of Article 5 \u00a7 2 of the Convention;<\/span><\/p>\n

4.\u00a0Holds\u00a0that\u00a0it is not required to deal with the merits of the applicants\u2019\u00a0complaint under Article\u00a05\u00a0\u00a7\u00a04 of the Convention;<\/span><\/p>\n

5.\u00a0\u00a0Holds<\/span><\/p>\n

(a)\u00a0\u00a0that the respondent State is to pay each applicant, within three months of the date on which the judgment becomes final in accordance with Article\u00a044\u00a0\u00a7\u00a02 of the Convention, EUR\u00a0500\u00a0(five\u00a0hundred euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, and jointly EUR\u00a0100\u00a0(one hundred euros) in respect of costs and expenses, plus any tax that may be chargeable to the applicants, to be converted into the national currency of the respondent State at the rate applicable at the date of settlement;<\/span><\/p>\n

(b)\u00a0\u00a0that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;<\/span><\/p>\n

6.\u00a0\u00a0Dismisses\u00a0the remainder of the applicants\u2019\u00a0claim for just satisfaction.<\/span><\/p>\n

Done in English, and notified in writing on\u00a018\u00a0December\u00a02012, pursuant to Rule\u00a077\u00a0\u00a7\u00a7\u00a02 and 3 of the Rules of Court.<\/em><\/span><\/p>\n

Santiago Quesada\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0Josep Casadevall<\/span>
\n Registrar\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0President<\/span><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

The ECHR case of Baisuev and Anzorov v. Georgia (applications no. 39804\/04).<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"ngg_post_thumbnail":0,"footnotes":""},"categories":[15],"tags":[],"class_list":["post-10011","post","type-post","status-publish","format-standard","hentry","category-echr-cases"],"views":990,"_links":{"self":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/10011","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/comments?post=10011"}],"version-history":[{"count":1,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/10011\/revisions"}],"predecessor-version":[{"id":10012,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/posts\/10011\/revisions\/10012"}],"wp:attachment":[{"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/media?parent=10011"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/categories?post=10011"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.waynakh.com\/eng\/wp-json\/wp\/v2\/tags?post=10011"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}