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SECOND
SECTION
CASE OF
BEKAURI v. GEORGIA
(Application
no. 14102/02)
JUDGMENT
(Preliminary
Objection)
STRASBOURG
10
April 2012
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention. It may be
subject to editorial revision.
In the case of
Bekauri v. Georgia,
ITMarkIntroduction
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Françoise Tulkens,
President,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria,
Kristina Pardalos,
Guido Raimondi,
judges,
and Stanley Naismith,
Section Registrar,
Having
deliberated in private on 20 March 2012,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 14102/02) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Georgian national, Mr Pridon Bekauri (“the
applicant”), on 31 March 2002.
- The
applicant was represented before the Court by Ms Eliso Butkhuzi,
Ms Lia Mukhashavria and Mr Vakhtang Vakhtangidze, lawyers
practising in Tbilisi. The Georgian Government (“the
Government”) were successively represented by Mr Konstantine
Korkelia, the former First Deputy Minister of Justice, and their
current Agent, Mr Levan Meskhoradze of the Ministry of Justice.
- The
applicant mainly alleged that his life sentence was not compatible
with Article 3 of the Convention.
- By
a decision of 29 June 2010 the Court declared the above mentioned
complaint under Article 3 of the Convention admissible, rejecting the
remainder of application as inadmissible for various reasons
- The
Government and the applicant each filed, on 5 October and
30 November 2010 and 28 February 2011, their observations on
the merits (Rule 59 § 1).
THE FACTS
ITMarkFactsComplaintsStart
- The applicant was born in 1977 and is currently
detained in Ksani prison no. 7.
I. AS THE CASE STOOD PRIOR TO THE COURT’S DECISION OF 29 JUNE
2010
- On
2 May 2005 the Court communicated the application, asking the parties
about the compatibility of the applicant’s life sentence, which
had resulted from his conviction for murder of a police officer, with
Article 3 of the Convention.
- On
30 August 2005 the Government submitted their observations on the
admissibility and merits of the case, which the Court transmitted to
the applicant, who was represented by Ms Butkhuzi (“the
applicant’s first representative”) at that time. The
representative was invited to submit observations on behalf of her
client by 24 November 2005 but failed to do so. The Court then
extended of its own motion the relevant time limit until
10 February 2006, but the representative still failed to submit
any observations.
- By
a letter of 14 February 2006 the Court, noting her persistent failure
to submit observations on behalf of the applicant, advised Ms
Butkhuzi that it would proceed with the examination of the case as
its file stood.
- On
10 May 2006 the applicant’s first representative, claiming to
have lost the case materials, requested the Court to provide her with
a copy of the file. The Court granted that request on 16 May 2006.
- On
3 July 2006 Ms Mukhashavria and Mr Vakhtangidze informed the Court of
their designation as additional legal counsels for the applicant
(“the new representatives”) and expressed their intention
to submit observations on the admissibility and merits of the case in
the near future. The Court replied on 10 July 2006, reminding the new
representatives of the applicant’s unjustified failure to
submit observations within the previously allotted and extended
time-limits, in breach of the relevant procedural rules. The Court
stated that no further extension of the relevant time-limit could be
allowed at that stage and advised the new representatives to contact
their colleague, Ms Butkhuzi, in order to obtain the necessary
documents and additional information about the proceedings.
- On
12 July 2006 the new representatives again requested the Court to
give them another time-limit for the submission of observations. The
Court rejected that reiterated request on 31 July 2006.
- On 15 February 2007 the new representatives requested
the Court to provide them with another copy of the case materials,
explaining that the applicant’s first representative had not
shared the materials with them. In reply, the Court, noting that the
relevant materials had already been sent to the first representative,
still granted, as an exception, the new representatives’
request on 6 March 2007 by providing them with another copy of the
file.
- On
7 May 2007 the applicant’s new representatives reiterated for
the third time their readiness to submit observations on behalf of
the applicant.
- On
21 January 2010 the applicant’s father enquired with the Court
about the state of the proceedings. He complained that he had been in
a complete information vacuum as regards the development of the case
and also requested to be provided with a copy of the case materials.
II. THE CIRCUMSTANCES DISCOVERED AFTER THE COURT’S DECISION OF
29 JUNE 2010
- On
5 October 2010 the Government submitted, as part of their
observations on the merits, a copy of the final and enforceable
decision of 12 March 2007 of the Supreme Court of Georgia.
- As
disclosed by that decision, the Supreme Court, granting Ms Butkhuzi’s
request of 28 April 2006, had commuted the applicant’s life
sentence to the sixteen years’ imprisonment in the light of
amendments to the Criminal Code mitigating criminal responsibility
for the offence he had committed. Consequently, the applicant’s
new prison term would expire and result in his release on 7 August
2014.
ITMarkFactsComplaintsEndTHE
LAW
- The
applicant complained that the mode of the execution of his life
sentence under Georgian law was incompatible with Article 3 of
the Convention. This provision reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
THE GOVERNMENT’S PRELIMINARY OBJECTION
A. The parties’ arguments
- In
their observations on the merits of the applicant’s complaint
under Article 3 of the Convention, the Government raised two
preliminary objections. Firstly, referring to the fact of the
commutation of his life sentence by the Supreme Court on 12 March
2007, they submitted that the applicant had lost victim status.
Secondly, the Government stated that the applicant’s failure to
inform the Court of such a focal development of his case amounted to
an abuse of the right of individual petition, within the meaning of
Article 35 § 3 of the Convention.
- In reply, the applicant’s new representatives,
apart from maintaining the complaint on the merits, briefly commented
that they had first learnt of the commutation of their client’s
life sentence during a meeting with him at the end of May 2010. They
added that the applicant himself had learnt of the Supreme Court’s
decision of 12 March 2007 only in November 2007.
B. The Court’s assessment
- The
Court points out that, according to Rule 47 § 6 of the Rules of
Court, applicants, acting in person or through their legal
representatives, are under the continuous obligation to keep the
Court informed of all important circumstances regarding their pending
applications. It recalls that an application may be rejected as
abusive under Article 35 § 3 of the Convention if, among other
reasons, it was knowingly based on untrue facts (see Keretchashvili
v. Georgia (dec.), no. 5667/02, 2 May 2006; and Rehak v. Czech
Republic (dec.), no. 67208/01, 18 May 2004). Incomplete
and therefore misleading information may also amount to an abuse of
the right of application, especially if the information concerns the
very core of the case and no sufficient explanation is given for the
failure to disclose that information (see Pirtskhalaishvili v.
Georgia (dec.), no. 44328/05, 29 April 2010; and Khvichia
v. Georgia (dec.), no. 26446/06, 23 June 2009). Furthermore, the
Court reiterates that it cannot be its task to deal with a succession
of ill-founded and querulous complaints or with otherwise manifestly
abusive conduct of applicants or their authorised representatives,
which creates gratuitous work for the Court, incompatible with its
real functions under the Convention (see Petrović v. Serbia
(dec.), no. 56551/11, 18 October 2011; and The Georgian
Labour Party v. Georgia (dec.), no. 9103/04,
22 May 2007).
- Returning
to the circumstances of the present case, the Court first finds that
the conduct of the applicant’s first representative,
Ms Butkhuzi, was deplorable. Apart from the fact that she had
failed to submit observations on the admissibility and merits of the
case despite the extension of the relevant time-limit, had lost the
case materials twice, had failed to cooperate with the applicant’s
other representatives and had apparently left the applicant’s
family in ignorance as regards the developments of the case, which
omissions naturally resulted in an additional, gratuitous
administrative workload for the Court, her negligent attitude went as
far as withholding from the Court the crucial information about the
commutation of the applicant’s life sentence to the fixed
prison term, which fact related to the very core of the subject
matter of the present application.
- As
regards the applicant’s new representatives, the Court finds it
unacceptable that they, legal professionals who had assumed
responsibility for the case as early as on 3 July 2006, did not learn
about the commutation of their client’s life sentence, which
occurred in March 2007, until the end of May 2010. In any event,
pursuant to their obligations under Rule 47 § 6
of the Rules of Court, both the applicant and his representatives
should have informed the Court of that critical development of the
case immediately upon its discovery, which important circumstance
would then have been taken into consideration by the Court upon the
examination of the admissibility of the application on 29 June 2010.
Unfortunately, they failed to do so and did not even provide a
justifiable explanation for that serious procedural omission.
- The
Court thus considers that the conduct of the applicant and of his
representatives, in particular that of Ms Butkhuzi, was a “vexing
manifestation of irresponsibility” (see The Georgian Labour
Party, the decision cited above), incompatible with the purpose
of the right of individual application as provided for in the
Convention, and significantly impeded the proper functioning of the
Court. In general, lawyers must understand that, having due regard to
the Court’s duty to examine allegations of human rights
violations, they must show a high level of professional prudence and
meaningful cooperation with the Court by sparing it from the
introduction of unmeritorious complaints and, once proceedings have
been instituted, then meticulously abide by all the relevant rules of
the procedure and urge their clients to do the same. Otherwise, the
wilful or negligent misuse of the Court’s resources may
undermine the credibility of lawyers’
work in the eyes of the Court and even, if done systematically, may
result in them being banned from representing applicants under Rule
36 § 4 (b) of the Rules of Court (see Petrović,
the decision cited above).
- In the light of the foregoing, the Court considers
that the Government’s preliminary objection is well-founded and
the present application is abusive within the meaning of Article 35 §
3 (a) in fine of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Upholds
the Government’s preliminary objection as to abuse of the
right of petition and holds that it is unable to take
cognisance of the merits of the case.
Done in English, and notified in writing on 10 April 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Françoise Tulkens
Registrar President
