Composition of the Plenum:

Giorgi Papuashvili – Chairman of the Hearing;

Konstantine Vardzelashvili–Member;

Ketevan Eremadze – Member;

Maia Kopaleishvili – Member, Judge Rapporteur;

Merab Turava – Member;

Zaza Tavadze – Member;

Otar Sichinava – Member;

Lali Papiashvili – Member;

Tamaz Tsabutashvili – Member.

Secretary of the Hearing: Darejan Chaligava

Title of the Case: Citizen of Georgia Giorgi Ugulava v. the Parliament of Georgia

Subject of the Dispute:

a) Constitutionality of normative content of section 2 of article 205 of the Criminal Procedure Code of Georgia which allows 9 months period of detention on each criminal case on which person is accused in a crime committed before his/her detention with respect to paragraph 5 of article 42 of the Constitution of Georgia;

b) Constitutionality of section 11 of article 205 of the Criminal Procedure Code of Georgia and normative content of section 2 of Article 198 of the same code which enables the use of detention as a restrictive measure against an individual based on probable cause with respect to paragraph 1 of article 18 of the Constitution of Georgia;

C) Constitutionality of the third sentence of section 8 of article 206 of the Criminal Procedure Code of Georgia with respect to paragraph 5 of article 42 of the Constitution of Georgia;

d) Constitutionality of wording "or will commit new crime" of section 2 of article 198 and subparagraph "c" of section 1 of Article 205 of the Criminal Procedure Code of Georgia with respect to paragraph 1 of article 18 of the Constitution of Georgia.

Participants of the Hearing: Representatives of the Claimant – Beka Basilaia; Representative of the Parliament of Georgia – Tamar Meskhia, Zurab Matcharadze and Zviad Bregadze.

I
Descriptive Part

1. On April 30, 2015 a constitutional claim (registration N646) was lodged to the Constitutional Court of Georgia by the citizen of Georgia Giorgi Ugulava.

2. The legal basis indicated in the constitutional claim for submission of the constitutional claim is: subparagraph “f” of paragraph 1 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, paragraph 5 of article 25 and subparagraph “a” of paragraph 1 of article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”, Paragraph 2 of article 1 and articles 15 and 16 of the Law of Georgia “On Constitutional Legal Proceedings”.

3. The Plenum of the Constitutional Court decided that the case might raise a rare and/or especially significant legal issue of the interpretation and/or application of the Constitution, and pursuant to the Recording Notice N3/1-1/646 of May 27, 2015 the constitutional claim N646 was admitted for consideration on Plenum. For ruling on admission of the case for consideration on merits, preliminary session of the Plenum of the Constitutional Court with oral hearing was held on June 10, 2015. Pursuant to the Recording Notice N3/5/646 of June 26, 2015, the claim was admitted for consideration on merits. The hearing on merits was held on July 31, 2015.

4. Section 11 of article 3 of the Criminal Procedure Code of Georgia defines notion of probable cause. According to the mentioned provision the probable cause is the unity of facts and information, which together with circumstances of the criminal case, would satisfy an unbiased person to conclude the possible commission of crime by the individual. The probable cause constitutes evidentiary standard for conducting investigative activities prescribed by the Criminal Procedure Code and for using restrictive measures.

5. Section 2 of article 198 of the same code prescribes legal ground for using restrictive measures, specifically "probable cause that an accused will flee, or will not appear at the court hearing, will destroy information important for the criminal case or will commit a new crime".

6. Regulation in relation to specific type of restrictive measure - detention is included in article 205 of the Criminal Procedure Code. According to paragraph "c" of section 1 of this article, use of detention is allowed only if it is the only possible measure for avoiding commission of new crime by the accused. Section 2 of article 205 of the same Code establishes the allowed period of detention and states that "the total term of detention of an accused shall not exceed 9 months. After passing the mentioned period an accused shall be released from detention. The period of detention commences from the moment of an arrest of the accused, if arrest was not made from the moment of enforcement of the court ruling on the selection of this restrictive measure, the detention period ends at the moment of delivery of the judgment of the first instance court which heard case on merits".

7. Article 206 of the Criminal Procedure Code of Georgia defines the procedures for applying, changing or terminating the restrictive measures. According to sentence 3 of section 8 of this article "the motion should indicate to the newly arisen circumstances which were not known at the time of selection of the restrictive measure and suitable evidences (materials) on mentioned new circumstances should be annexed". As a result of the amendments of July 8, 2015 made in the Criminal Procedure Code the sentence 3 of the mentioned provision was newly formulated as follows "the magistrate judge adopts ruling on admission of evidences".

8. Paragraph 1 of article 18 of the Constitution of Georgia establishes the right of inviolability of human liberty. Paragraph 6 of article 18 defines maximum period for preliminary detention of an individual, which shall not exceed 9 months. According to paragraph 1 of article 42 of the Constitution of Georgia "Everyone shall have the right to apply to the court for protection of his/her rights and freedoms".

9. According to the constitutional claim criminal prosecution against the Claimant Giorgi Ugulava is ongoing on several criminal cases. On one of the cases detention of the Claimant was imposed as a restrictive measure on June 4, 2014 and on March 15, 2015 1 month prior to lapsing the period of the first detention, Tbilisi City Court imposed the detention for second time as restrictive measure against him on a different criminal case. The Claimant party considers that responsible bodies artificially split criminal cases in order to repeatedly impose detention on the accused.

10. By the constitutional claim N646 the normative content of section 2 of Article 205 of the Criminal Procedure Code of Georgia which allows 9 months period of detention on each criminal case on which a person is accused in a crime committed before his/her detention is disputed with respect to paragraph 5 of article 42 of the Constitution of Georgia. The Claimant indicates that the disputed provision refers to the first time imposition of detention as a restrictive measure against individual; however, since the disputed provision does not contain suitable guarantees for avoidance of repetitive imposition of similar restrictive measure against already detained, it allows the use of detention for more than 9 months. The Claimant indicates that such restriction might be considered as proportionate means for achievement of the legitimate aim when it is used for the first time but in cases of repetitive imposition of the detention restriction of the right is not justifiable notwithstanding the legitimate aim it pursues, because it involves the risk of deprivation of liberty for an indefinite time. Such act increases the danger of arbitrariness and implementation of measures in violation of human rights by the state.

11. The Claimant considers that the disputed provision does not include adequate guarantees to prevent arbitrary imprisonment of an individual and possibility of imposition of detention measure for indefinite times on an individual which is already detained. Therefore, the Claimant considers that the disputed provision contradicts fundamental principle of presumption of liberty enshrined in paragraph 1 of article 18 of the Constitution of Georgia which implies that individual must be free, unless there are exceptional circumstances when defined legitimate aim exists and the means employed are proportionate to the aim pursued. Furthermore the Claimant considers that the disputed provision contradicts paragraph 6 of the article 18 of the Constitution of Georgia which prescribes maximum allowed time period for detention.

12. The Claimant party also indicated that paragraph 6 of article 18 of the Constitution of Georgia establishes maximum allowed period for detention which amounts to 9 months. Although the grounds for using the restrictive measures might still exist after lapse of 9 months detention period, the Constitution clearly defines that even in such cases extension of detention period is not allowed. The mentioned approach is derived from the interest to protect the right to liberty of an individual, which prevails the risks of causing harm to public interests and creates the duty of the state to conduct effective investigation. The Claimant states that 9 months time frame established by paragraph 6 of article 18 of the Constitution is an imperative requirement and repetitive use of 9 months detention period is not allowed against persons accused not only in less serious or serious crimes but also in the crimes of particularly serious character.

13. The Claimant also disputes constitutionality of section 11 of article 205 of the Criminal Procedure Code of Georgia and normative content of section 2 of article 198 of the same code which enables the use of detention as a restrictive measure against an individual based on probable cause. The Claimant considers unjustifiable to use same evidentiary standard (probable cause) for imposition of detention and other restrictive measures which are less restrictive for liberty of an individual. The Claimant refers to the notion of accusation, arrest and detention and indicates that for any of them evidentiary standard of probable cause is used in the same way.

14. The Claimant party also indicated that notion of probable cause as prescribed by the Criminal Procedure Code is very general since it does not refer to the necessity of existence of clear and verifiable information. Furthermore, the "unity of facts and information" which creates the probable cause does not constitute evidences, and, accordingly the issues of admissibility, relevance and incontrovertibility of such facts is not evaluated at all, as a result of which anything is considered to be information by the court. The Claimant indicates that absence of the mentioned evaluation mechanism leads to admissibility of illegally acquired information among others, which means that the probable cause might be formed based on illegally acquired facts and information.

15. By the Constitutional Claim third sentence (version in force till July 8, 2015) of section 8 of article 208 of the Criminal Procedural Code is also disputed. The provision obliges the defence party to prove the existence of new circumstances which was not known during selection of the restrictive measure via presenting relevant evidences. The Claimant considers that by switching the burden of proof on him the disputed provision unjustifiably restricts his right to a fair trial guaranteed by paragraph 1 of article 42 of the Constitution of Georgia.

16. During oral hearing on merits in relation to Constitutionality of the third sentence of section 8 of article 208 of the Criminal Procedure Code of Georgia the Claimant drew attention towards the changes made in the code on June 8, 2015 and indicated that although new rule on use of detention implies review of necessity of the detention by the court by its own initiative and assigning burden of proof on accusation party in every case the disputed provision still has problematic character. The Claimant indicates that during the period of 2 months the termination of grounds for detention is possible at any moment and burden of proof on admissibility of the application and duty to indicate to new circumstance is still on the accused party. Such reversal of the burden of proof leads to unconstitutionality of the provision.

17. In addition to the mentioned the Claimant party considers wording "or will commit new crime" of section 2 of article 198 and subparagraph "c" of section 1 of article 205 of the Criminal Procedure Code of Georgia to be unconstitutional. According to the disputed provisions the detention might be used for the purpose to avoid commission of new crime. The Claimant indicates that the disputed provisions do not specify the crime prescribed by the Criminal Code danger of commission of which is needed in order to use the mentioned measure. The use of detention is allowed by referring to avoidance of both crimes committed intentionally or by negligence, as well as crimes which do not envisage imprisonment as a punishment. Therefore the Claimant considers that the disputed provisions violate principles of foreseeability of law and legal certainty and constitute disproportionate interference into the liberty of individual.

18. The Claimant indicates that in case the prosecution party manages to prove when requesting the use of restrictive measure that there is probable cause that an individual will commit new crimes, it is assumed that either preparation or attempt of crime is presented, which is grounds for presenting new criminal charge. Furthermore, in is intolerable to impose detention on an individual based on hypothetical risks of possible commission of any new crime. In absence of prescribing suitable standard the existing regulation established by the disputed provisions contradicts paragraph 1 of article 18 of the Constitution of Georgia.

19. In relation to the provision which prescribes possible commission of new crime by the accused as a ground for detention the Claimant indicated that the unconstitutionality of the disputed provision is derived from absence of suitable guarantees, specifically the disputed provision does not prescribe an obligation to demonstrate existence of real danger of commission of new crime similar to the one person is accused for. The Claimant considers that it is intolerable to establish risk of possible commission of new crime solely based on the fact that a person is accused of crime, which is not yet confirmed. Under such conditions solely the fact that person is accused in several crimes might possibly become sufficient to establish risk of possible commission of new crime.

20. In order to substantiate his argumentation the Claimant party refers to the precedents of the Constitutional Court of Georgia and constitutional courts of other countries, as well as precedents of the European Court of Human Rights.

21. According to the Respondent's statement the term "preliminary detention" indicated in article 18 of the Constitution implies detention in the period from accusation of person till delivery of the first instance court judgment. However paragraph 6 of article 18 of the Constitution does not indicate that the 9 months maximum period of detention should be used in relation of different criminal cases. Therefore, the Respondent considers that the disputed provision replicates principle equivalent to the one established by paragraph 6 of article 18 of the Constitution and relates the 9 months period to each ongoing criminal case against an accused.

22. In relation to the mentioned part of the dispute the Respondent also indicated that in case the circumstances constituting prerequisites for use of detention as a restrictive measure were arisen during prosecution of new charge, the fact that the detention was used in another criminal case should not exclude the use of detention on the new one. The abuse of power by the state bodies during the use of detention on new criminal case is prevented on the one hand by the legally prescribed requirement of existence of probable cause and on the other hand by criminal law which according to the definition of the Respondent enables imposition of criminal responsibility on public officer which intentionally delays the proceeding of criminal prosecution. It is intolerable to imperatively restrict imposition of detention as a restrictive measure on an accused which was detained for the period of 9 months on another criminal case, because such approach might create serious practical problems in relation to fight against crime and investigation of certain criminal acts.

23. The Respondent party referred to the provision which implies the use of detention as a restrictive measure based on the standard of probable cause and defined that the notion of probable cause as defined by Criminal Procedure Code establishes sufficient guarantee for protecting interests of an accused. The facts and information which is considered during evaluating existence of probable cause, should at the same time be sufficiently reliable and real, in order to assure unbiased observer that they are true. Therefore hearsay or any other less reliable evidence cannot be sufficient for assuring unbiased person into the necessity of the use of detention as a restrictive measure. According to the rationale of the Respondent the Criminal Procedure Code allows a possibility for the judge not to rely on such evidence which is ground for rejection of motion requesting the use of restrictive measure presented by the prosecution party.

24. In relation to this part of the dispute the Respondent additionally indicated that standard of probable cause as prescribed by the Criminal Procedure Code is content wise compatible with the Constitution of Georgia as well as with the standards established by the international legal acts.

25. In relation to the third sentence of section 8 of article 206 of the Criminal Procedure Code of Georgia the Respondent indicated that as a result of amendments, the current version of this provision has entirely different content. Therefore, the Claimant’s claim in this part of the dispute is ungrounded. At the same time section 9 of the same article was formulated as follows: "The burden of proof when assessing the issue of use, change or termination of a restrictive measure is on prosecution party in all cases". The Respondent defines that the mentioned provision excludes the possibility for switching burden of proof which arms an accused with additional procedural guarantee.

26. According the Respondent's statement the Criminal Code of Georgia prescribes several mechanisms for reviewing the ruling on use of detention. Specifically - appeal of the ruling on detention, review of the ruling by the court on its own initiative in every two months and review based on the motion of defence party. The Respondent considers the mentioned legal mechanism to be sufficient for protection of interests of the accused. The requirement to reason the motion by indicating to new circumstances which were not presented before, serves avoidance of loading the court by the motions which are content wise identical.

27. The Respondent defines that the provisions which allow the use of detention in order to avoid risks of commission of new crime should be evaluated together with other provisions prescribing legal basis for the use of detention. The Respondent considers that the deputed provisions correspond to the principle of foreseeability of the law, since they are applied not by referring to the hypothetical danger of commission of any new crime, but based on the standard of probable cause, which implies assurance of unbiased observer that sufficient grounds exist for the use of detention. The mentioned condition precludes the possibility of the use of detention by referring to the danger of commission of crime in negligence; because it is impossible to assume beforehand the possible commission of such crime with standard of probable cause. Therefore the Respondent considers that the disputed provision is in full compliance with the requirement established by article 18 of the Constitution of Georgia.

28. During the oral hearing of the preliminary session the witness - representative of Persecutor's Office of Georgia, Maia Jvarsheishvili indicated that the repetitive use of detention happens only in cases when substantially new crime is prosecuted and when both material and formal grounds for the use of restrictive measure re-emerges. The witness considers that since the defence party is armed with mechanisms to avoid artificial delay of the criminal prosecution the mentioned regulation is in compliance with the Constitution.

29. Based on paragraph 1 of article 14¹ of the law of Georgia "On Constitutional Legal Proceedings" the non-profit organisation "Transparency International Georgia" presented amicus curiae opinion to the court. The amicus curiae considers that the legal content of section 2 of article 205 of the Criminal Procedure Code which enables the law enforcer to use detention as a restrictive measure in parallel criminal legal proceeding in a way to ensure prolongation of detention of the accused should be declared unconstitutional. The amicus curiae considers that the disputed provision is in compliance with maximum allowed term of 9 months for detention established by the Constitution, but contradicts with constitutional principles, because it disregards the importance of the right to liberty, creates possibility for non-uniform interpretation of the provisions and does not satisfy the legality requirements.

30. In relation to evidentiary standard for the use of restrictive measures the amicus curiae indicates that the probable cause has content identical to the "reasonable suspicion" prescribed by the European Convention of Human Rights, which is considered to be sufficient standard for accusation and the use of detention. Therefore, the amicus curiae opinion considers that following the probable cause as an evidentiary standard in the process of the use of restrictive measures does not contradict the Constitution of Georgia.

31. In relation to the third sentence of paragraph 8 of article 206 of the Criminal Procedure Code of Georgia the amicus curiae indicates that switching the burden of proof to the accused based on the disputed provision contradicts paragraph 1 of article 42 of the Constitution of Georgia, European Convention of Human Right, relevant case law and International Covenant on Civil and Political Rights. According to the amicus curiae the mentioned sources on the one hand preclude obliging the accused to prove his/her innocence and on the other hand underline the role of prosecution and the court in the process of use of restrictive measures. Therefore, amicus curiae considers that obliging the accused to present information about new circumstances influences the right of an individual to appeal court ruling and makes existence of this right a formality.

32. The written amicus curiae opinion was also presented by a non-profit organisation "Georgian Young Lawyers Association". In relation to the first part of the dispute the amicus curiae indicated that the 9 months term prescribed by paragraph 6 of article 18 of the Constitution does not have an absolute character and in some cases extension of the mentioned period might be justifiable. However extension of the 9 months period should be allowed only in cases when the prosecution party did not have information about new grounds of detention during 9 months period of first detention. The amicus curiae refers to the principle of speedy trial and obligation of particular due diligence, which obliges the prosecution party to immediately respond to the factual circumstance which was known to it in order to avoid artificial division of the criminal case based on the mentioned factual circumstances. In the absence of the mentioned guarantees the amicus curiae considers the normative part of the disputed provision which in absence of newly found factual circumstances enables detention of an accused for more than 9 months, which is charged with the crime committed prior to the imposition of detention measure against him/her contradicts paragraphs 1 and 6 of the Constitution of Georgia.

33. In relation to the standard of the probable cause the amicus curiae draws parallel to the standard of "reasonable suspicion" prescribed by the European Convention of Human rights. The amicus curiae considers that at the first stage of prosecution the use of probable cause as an evidentiary standard for imposition of detention is sufficient, but for extension of period of detention it is important to present additional evidences. According to the opinion of the amicus curiae imposition of new detention based on the same evidentiary standard under the same factual circumstances would not be sufficient and would not satisfy the constitutional requirements.

II
Reasoning Part

Constitutionality of the Disputed Part of Section 2 of Article 205 of the Criminal Procedure Code of Georgia

1. According to paragraph 1 of the article 18 of the Constitution of Georgia "human liberty shall be inviolable". The mentioned provision of the Constitution protects physical liberty of an individual; it aims at avoidance of unlawful, unreasoned and arbitrary deprivation of individual's liberty. Article 18 of the Constitution includes both material and procedural guarantees for protection of human liberty. "The liberty of an individual is guaranteed not only by the material norm, but also by the combination of procedural norms upgraded in the constitutional rank" (Judgment N2/1/415 of the Constitutional Court of Georgia of April 6, 2009 on the case of " The Public Defender of Georgia v. the Parliament of Georgia”, II-1). Therefore in order to satisfy the requirement of the mentioned provision of the Constitution legislator is obliged to create legal system which on the one hand precludes restriction of human liberty without existence of solid, constitutional grounds and on the other hand guarantees procedural rights prescribed by article 18 of the Constitution.

2. According to paragraph 2 of article 205 of the Criminal Procedure Code of Georgia (hereinafter" CPC) “the entire period of detention of the accused shall not exceed 9 months. After passing of the mentioned period an accused shall be released from detention". At a glance the disputed provision prescribes restriction of the duration of detention, with the period same as required by paragraph 6 of article 18 of the Constitution. But despite the formal similarity, the content of the constitutional provision might be different from the one prescribed by the law. The Constitutional Court should assess not only formal compatibility of the disputed provision with the constitutional provision but it also should establish whether the disputed provision content-wise ensures protection of the essence of the constitutional right. According to paragraph 3 of article 26 of the law of Georgia on "Constitutional Legal Proceedings" "During the examination of a normative act the Constitutional Court shall take into consideration not only the verbatim implication of the impugned provision, but also the genuine idea implied therein and the practice of its application, as well as the essence of the relevant constitutional provision". Therefore, in the present case the Constitutional Court should determine contextual compatibility of the disputed provision with the relevant provisions of the Constitution.

3. During the oral hearing on merits several rulings of general courts were presented by the Claimant which demonstrates the application of section 2 of article 205 of the CPC in practice. According to the rulings the detention as a restrictive measure was imposed on the Claimant (as accused) for the second time, as a result of which duration of his detention exceeded 9 months period. It is noteworthy that the Respondent confirms the validity of such interpretation of section 2 of article 205 and considers that the restriction on the maximum period of detention prescribed by the disputed provision is applicable on one criminal case and when several criminal cases are ongoing against the accused 9 months period of detention might be used on each of them. Therefore, the Constitutional Court will be guided with the mentioned content of section 2 of article 205 of the CPC while assessing its constitutionality. Based on this the Constitutional Court faces the need to interpret paragraph 6 of article 18 of the Constitution of Georgia. Specifically two issues need to be determined: 1. which period of criminal prosecution does "preliminary detention" indicated in paragraph 6 of article 18 of the Constitution relates to and whether it implies the use of detention in the period from accusation of a person till delivery of the court judgment; 2. whether repetitive use of 9 months detention period prescribed by paragraph 6 of the article 18 of the Constitution is allowed against same individual on different criminal cases.

The content of the preliminary detention indicated in paragraph 6 of article 18 of the Constitution of Georgia

4. An arrest constitutes one of the strictest (intensive) interference in human rights and freedoms. Generally, criminal prosecution especially if detention is used as a restrictive measure constitutes heavy burden on the accused. He/she is confronted by the state whose significant resources are directed towards proving commission of crime by him/her. The detention of the accused makes his/her criminal prosecution easier; therefore it is possible that the authority responsible for prosecution might have some interest in imposing detention against an individual. At the same time possibility of imposition of unreasoned detention on an individual as a result of abuse of power or mistake could not be precluded in the criminal proceeding. Therefore, the Constitution of Georgia creates clear procedural guarantees upholding of which are mandatory for the state during imposition of restrictions on human rights. Giving the constitutional protection to the procedural guarantees creates strict boundaries for adoption and implementation of restrictive norms by the state.

5. In order to determine the content of the term "preliminary detention" indicated in paragraph 6 of article 18 of the Constitution first of all it should be indicated that constitutional terms have autonomous meaning (Judgment N2/4/532,533 of the Constitutional Court of Georgia of October 8, 2014 on the case of "Citizens of Georgia - Irakli Kemoklidze and Davit Kharadze v. the Parliament of Georgia”, II-63; Ruling N2/4/532,533 of the Constitutional Court of Georgia of October 8, 2014 on the case of "Citizens of Georgia - Davit Kandelaki, Natalia Dvali, Zurab Davitashvili, Emzar Goguadze, Giorgi Meladze and Mamuka Pachukashvili v. the Parliament of Georgia”, II-3; Judgment N2/2/579 of the Constitutional Court of Georgia of October 8, 2014 on the case of "Citizens of Georgia Maia Robaqidze v. the Parliament of Georgia”, II-19) and its content is not determined by the definitions used in the subordinate normative acts. The Constitution by itself determines the content and the scope of the right prescribed by its provisions. The content of the constitutional right and the meaning of the terms used for its description cannot be influenced by definition made by the legislation. For the Constitutional Court the law is the notion under assessment and not the instrument used for determination of constitutional standards. For defining constitutional terms, the Constitutional Court might guide itself with essence of the right, in relation to which the term is used, with structure of constitutional provision (provisions), with analysis of similar terms included in other constitutional provisions and etc.

6. The case law of the Constitutional Court is also taken into consideration while defining the constitutional terms. In this sense the Judgment N2/3/182,195,191 of the Constitutional Court of Georgia of January 29, 2003 on the case of “Citizens of Georgia Piruz Beriashvili, Revaz Jimsherishvili and the Public Defender of Georgia v. the Parliament of Georgia” needs to be indicated. In the mentioned case the Court indicated that “Paragraph 6 of article 18 regulates only term of arrest and preliminary detention of a suspect and an accused and it does not establish the term of detention of person on trial until the court passes the sentence”. Based on this definition the Constitutional Court declared paragraphs 8 and 9 of article 162 of the Criminal Procedure Code of Georgia (in force in 2003) to be constitutional. According to these provisions the detention period for a person on trial was set to 12 months, extension of which was allowed additionally with 6 months.

7. The Constitutional Court expresses its respect towards the composition of the Court delivering the mentioned judgment; it also confirms that the judgment was without any doubt positive one in the process of development of the constitutional law and justice. However the Court considers that there is possibility and necessity for different, more beneficial to human rights, interpretation of paragraph 6 of article 18 of the Constitution of Georgia.

8. It should be indicated that in the mentioned judgement there are no arguments presented, which would indicate why the “accused” and “person on trial” as prescribed by the Criminal Procedure Code constitute the subjects with different legal status for the purposes of paragraph 6 of article 18 of the Constitution of Georgia. In the Court Judgment there is no reasoning on why the constitutional term “accused” does not unite the terms “accused” and “person on trial” prescribed by the Criminal Procedure Code in force at the time of delivering the Judgment. What were the criteria used by the Court when it decided that for the purpose of the Constitution the person is considered to be “accused” not until conviction, but until another stage of proceeding, after which he/she is considered to be a “person on trial” procedural status and rights of which is not defined by the Constitution. It is obvious that in the Judgment of 2003 the Constitutional Court essentially founded determination of content of constitutional terms on the regulation on that matter prescribed by the Criminal Procedure Code in force at the time. Since then the Constitutional Court has indicated in several judgments that the determination of meaning of constitutional rights and terms; definition of their content should be conducted independently from the definitions made by the law. In the present case the Court cannot be bound with the determination of the right made in 2003 based on the definitions established by the law and if the constitutional provision enables definition, which is more beneficial to the right, the Constitutional Court has constitutional duty to apply it.

9. At the same time the Judgment N1/5/193 of the Constitutional Court of Georgia of December 16, 2003 on the case of “The Public Defender of Georgia v. the Parliament of Georgia” needs to be indicated. Based on the Judgment paragraph 7 of article 162 and paragraph 4 of article 406 of the CPC were declared unconstitutional. The disputed provisions did not take into account the time prescribed for getting acquainted with the materials by the accused (defence party) for determination of 9 months detention period. In this case the Constitutional Court indicated that “according to paragraph 6 of article 18 of the Constitution of Georgia the preliminary detention period of the accused should not exceed 9 months. The mentioned provision has unequivocal and imperative nature”.

10. It is noteworthy that article 18 of the Constitution of Georgia establishes different procedural guarantees for different forms of restriction of liberty (arrest, detention, other type of restrictions of personal liberty, imprisonment). Therefore in order to determine the content of the procedural guarantees prescribed by the Constitution it is important to determine the meaning and the essence of the terms listed above.

11. As a general rule the Constitutional Court does not make exhaustive interpretation of the constitutional provisions while deciding on a certain case. The content of the constitutional provision is defined in the context of the case before the Court. In many cases making exhaustive definition might be impossible and even erroneous.

12. According to paragraph 2 of article 18 of the Constitution of Georgia “Imprisonment or other type of restrictions of personal liberty shall be inadmissible without a court decision”. Hereby, a court decision is a necessary precondition for imprisonment or other type of restriction of personal liberty. This is the general rule exception from which is established by the Constitution itself under paragraph 3 of the same article. According to the third paragraph arrest and other type of restrictions of personal liberty might be conducted without the court decision as well; however in this case the person who is arrested or whose personal liberty is otherwise restricted shall be presented before the court within 48 hours. It is noteworthy that establishment of such specific rule relates to exigent necessity when it is not possible to obtain court decision or the delay involves real danger towards the constitutional legitimate aims – public order and security, protection of rights of others and administration of justice.

13. By taking into a consideration the existence of exigent necessity the Constitution allows restriction of personal liberty without court decision but at the same time prescribes strict time limit for such exceptional cases. Therefore, the exception prescribed by the third paragraph enables restriction of physical freedom of a human without court decision only for the strictly limited period of time. In cases when exigent necessity of interference in the right exists, the restriction of liberty of an individual constitutes sole and necessary measure.

14. In order to prevent disproportionate and/or arbitrary interference into the right to liberty the decision of arrest or other type of restriction of personal liberty is subject of the judicial control. Hereby the court decision constitutes precondition of restriction of personal liberty and in exceptional circumstances when the restriction is derived from exigent necessity it is allowed for not more the 72 hours.

15. Therefore, for the purposes of the Constitution the term “arrest” relates to physical restriction of liberty of person, which shall not exceed 72 hours and is terminated with the court ruling on detention of an individual or by releasing him from the custody. The restriction of the right to physical liberty has relatively wider content and includes not only an “arrest” but also other type of physical restriction of liberty, such as placing (imprisonment) of a person in prison (or other suitable establishment), as well as home detention, or other type of restriction of free movement of an individual.

16. Neither article 18 of the Constitution nor any other constitutional provision divide notions of “accused” and “person on trial”. The Constitution does not recognise the term “person on trial” at all and any person against whom criminal prosecution is conducted and is not convicted yet is deemed “accused”. For example according to paragraph 3 of article 40 of the Constitution “any suspicion that cannot be proved as provided for by law shall be solved in favour of the accused”. According to paragraph 6 of article 42 of the Constitution “an accused shall have the right to request attendance and examination of witnesses on his/her behalf under the same conditions as the prosecution witnesses”. Based on this it is clear that the Constitution intends to place every individual against whom the criminal prosecution is conducted and are not convicted yet, under the status of the “accused”. It is obvious that the rights protected under paragraph 3 of article 40 and paragraph 6 of article 42 are equally relevant on any stage of criminal prosecution. If the status of an accused were related only to certain, initial state of criminal prosecution (and on the following stage of prosecution an individual fell under the notion of “person on trial” or another similar term) not only the rationale behind the Constitution for arming the accused which the mentioned right only on initial (investigative) stage would become unreasonable but it would also limit the right of the accused exercised during the hearing on merits during criminal prosecution. It is also clear that paragraph 3 of the Constitution prescribes resolving the doubt which exists at the time of delivery of court judgment in favour of the accused, this matter further underlines that the Constitution considers person under criminal prosecution to be “accused” until his/her conviction or acquittal.

17. The abovementioned provision of the Constitution of Georgia indicates that for the purposes of article 18 of the Constitution both “accused” and “person on trial” as defined by the Criminal Procedure Code in force at 2003 fall under the term “accused”. The fact that according to the Criminal Procedure Code in force at 2003 the status of “accused” and “person on trial” were related to different stages of criminal prosecution cannot by itself be sufficient ground to interpret the term “accused” included in paragraph 6 of article 18 of the Constitution narrowly. The term used in CPC cannot become the source of interpretation of a constitutional notion. At the same time, it should also be indicated that terminology used in criminal procedural legislation is subject to changes, for example the Criminal Procedure Code of 2009 does not use the term “person on trial”.

18. It is obvious that paragraph 6 of article 18 of the Constitution aims to avoid restriction of human liberty for indefinite time before delivery of the first instance court judgment. The detention imposed on “accused” and “person on trial” does not differ in terms of form of restriction of individual liberty. In both cases liberty of individual is restricted based on certain level of assumption. It should also be indicated that the longer the restriction of liberty, more intensive the interference into the right is. Therefore, detention of “person on trial” might constitute more intensive restriction of the right because restriction of liberty is related to the longer period of time.

19. The maximum term of 9 months allowed for detention prescribed by paragraph 6 of article 18 of the Constitution together with other constitutionally defined procedural guarantees represents a guarantee against disproportionate restriction of physical liberty of an individual. The restriction of liberty of an individual, until his/her conviction by the court with the standard of beyond reasonable doubt, is based only on assumption about his/her guilt. Hereby, paragraph 6 of article 18 of the Constitution prescribes certain period after which a person should not be detained only based on the (reasoned) assumption that he/she committed (or may commit) a crime, or may conduct another unlawful action. The Constitution and the Criminal Procedure Code in force prescribe imperative rule that the detention should be terminated once 9 months period is lapsed from the moment of arrest, notwithstanding whether the detention is necessary in the interest of criminal prosecution.

20. It is unreasonable to assume that that the Constitution relates “preliminary detention” to the period prior to the stage of sending the criminal case to the court. Neither article 18 not any other provision of the Constitution indicates to this. The decision on detention is adopted by the court and determination of necessity of detention is under judicial control during the entire period of “preliminary detention”. Therefore, the argument according to which the “preliminary detention” is terminated at the moment when the case is delivered to the court, since after that the case is under judicial control is false. The mentioned conclusion cannot be doubted based on the fact that the word “preliminary” is used in paragraph 6 of article 18 of the Constitution. The word “preliminary” indicates to the temporary nature of detention, differentiates it from the detention which can be used as a punishment or penalty. At the same time it should be indicated that the judge rules on the use of detention when administration of justice (witness tampering, destruction of evidences, flee of an accused) is under the risk or it is necessary in order to avoid commission of new crime. Avoidance of mentioned risks might result in the detention of the accused since it might be necessary in the interests of criminal prosecution. However the mentioned risk (risks) might continue existence on investigative stage as well as during the hearing of the case on merits by the court. It should also be indicated that such risks might arise after the completion of investigation and sending the case to the court for hearing on merits. Therefore, detention as a restrictive measure might be imposed on the accused independent form the stage of criminal prosecution. For the purposes of the Constitution such detention constitutes preliminary detention. Therefore the preliminary detention (detention till the conviction) constitutes temporary restriction of human liberty, which is conditioned not by the certain stage of criminal prosecution, but by the existence of dangers derived from the accused. However, since the judgment of conviction against preliminary detained person is not yet rendered, the existence of dangers derived from him/her could be confirmed only on the level of (reasoned) assumption, therefore the Constitution prescribes strict limit on the term of preliminary detention.

21. The procedural safeguard established under paragraph 6 of article 18 of the Constitution not only protects an individual from unreasoned detention caused by arbitrariness of prosecution party, but also ensures the prevention of the use of preliminary detention against the accused for an indefinite time as a result of judicial mistake, incorrect assessment of the circumstances by the judge and delay of criminal proceeding. Therefore, the need to restrict the term of preliminary detention is also relevant during the hearing of the criminal case on merits by the judge.

22. It should also be mentioned that the representative of the Parliament of Georgia indicated in her closing speech during the hearing of the case on merits that the 9 months term of detention refers to the detention used during the period from accusation of an individual till delivery of the first instance court judgment. The positions of the parties coincide on this matter. Derived from the structure of article 18 of the Constitution and its purposes, the preliminary detention includes period from the arrest of an accused till delivery of the first instance court judgment.

23. For the purposes of article 18 of the Constitution the term detention means placing a person in the prison (or in other suitable facility). It might include detention as a restrictive measure as well as restriction of physical liberty as a result of punishment. It should also be indicated that the notion of detention is used with the same meaning by several international human rights documents. For example article 5 of the European Convention of Human Rights uses the notion “detention” to describe deprivation of liberty as a punishment imposed by the court (subparagraph "a" of paragraph 1 of the article 5), as well as restriction of individual liberty prior to the court judgment (subparagraph "c" of paragraph 1 of the article 5). Therefore, the "preliminary detention" constitutes constitutional term which implies temporary restriction of liberty of accused, maximum duration of which should not exceed 9 months and the use of which is necessary against the accused ("accused", "person on trial") till delivery of the court judgment on the criminal case. The Constitution excludes the possibility for leaving an individual without constitutional safeguards in any period from his/her accusation till conviction. It is intolerable, the restriction of human liberty to be left beyond the constitutional protection at any stage of criminal proceeding. It is obvious that allowing the mentioned possibility would immensely increase the risks of arbitrariness and abuse of power by the state.

24. At the same time there is a clear institutional similarity between the values protected by the Constitution of Georgia and the international norms. The case-law of the European Court of Human Rights as well as UN Human Rights Committee clearly indicates on restriction of detention used in the period of time prior to the delivery of the first instance court judgment. Similar to paragraph 6 of article 18 of the Constitution of Georgia international human rights documents do not differentiate detention used prior to transferring the case to the court and after that. On both stages of criminal prosecution the detention is used against an individual who is presumed to be innocent and, therefore the aim and necessity of restriction of time of detention is similar. For example according to the paragraph 37 of the General Comment 35 of the International Covenant on Civil and Political Rights the person detained is entitled to trial within a reasonable time or to the release. That requirement specifically applies to periods of preliminary detention ("pre-trial detention"), that is, detention ("detention") between the moment of the arrest and the moment of the judgment at first instance (General comment №o. 35 CCPR/C/GC/35). Accordingly, similar to the international norms the notion of "preliminary detention" prescribed by the Constitution of Georgia implies the period from the arrest or detention of an individual till delivery of judgment of the first instance court. The Constitutional Court of Georgia considers that there is no essential difference between the detentions used on different stages of criminal prosecution prior to the acquittal/conviction judgment of the court. In the absence of special reference made by the Constitution of Georgia there is no ground to consider that the end of preliminary detention relates to the moment of transferring the criminal case to the court. Therefore, the 9 months term established by paragraph 6 of article 18 constitutes ceiling on period of detention used prior to the delivery of the first instance court judgment. After the mentioned period of time is lapsed an accused shall be released, unless judgment of conviction is delivered against him by the court. Therefore the conclusion according to which detention implies restriction of liberty during the period prior to court judgment and preliminary detention refers only detention used till the certain stage of proceeding of the case would be the result of incorrect interpretation of paragraph 6 of article 18 of the Constitution.

25. It should be indicated that the period of preliminary detention is rarely prescribed by the constitutions of certain countries. In many occasions the period of arrest is not regulated on constitutional level either. In some occasions constitutions of certain counties determine specific period of time for the first appearance of an accused in the court (in many occasions this period of time is 24 or 48 hours), but does not regulate specific period for preliminary detention. As it was indicated above, in order to adequately protect the right to human liberty the Constitution of Georgia clearly defines the maximum period for the arrest as well as for the detention: an arrested person should be released from the custody after 72 hours is lapsed unless the court issues a ruling for his/her detention. At the same time an accused should be released from preliminary detention immediately after 9 months period is lapsed, unless the court delivers judgment of conviction against the individual.

26. On the one hand isolation of a person from the society might be necessary in the interests of certain legitimate aims, but on the other hand since the mentioned legitimate aims are confronted by such important values as is human liberty the legislator cannot justify detention for an indefinite time. It is the constitutional duty of the legislator to ensure achievement of legitimates aims without allowing the risks of unreasoned, disproportionate restriction of human liberty. The isolation of an individual from the society, his/her placement in prison (arrest or detention) might constitute necessity derived from the interests of justice, however the Constitution sets boundaries, which should not be overcome by the state even in cases when detention is conditioned by the mentioned necessity. The procedural guarantees such as terms of arrest and detention prescribed by the Constitution are examples of such boundaries.

Issue of repetitive use of detention

27. As it was already indicated, paragraph 1 of article 18 of the Constitution guarantees human right to physical inviolability and personal liberty. It constitutes one of the most fundamental foundations of basic human rights and is subject to special constitutional protection (Judgment №1/2/503,513 of the Constitutional Court of Georgia of April 11, 2013 on the case of “Citizens of Georgia – Levan Izoria and Davit-Mikheili Shubladze v. the Parliament Of Georgia”, II-2). On the one hand it has declaratory character, however on the other hand any interference which restricts the essence of physical liberty of a human should be reviewed with respect to the mentioned paragraph.

28. On the case of "The Public Defender of Georgia v. the Parliament of Georgia" the Constitutional Court indicated, that "the right to human liberty is such a weighty basic right that interference with it from the State authorities should be considered as ultima ratio" (Judgment N2/1/415 of the Constitutional Court of Georgia of April 6, 2009 on the case of "The Public Defender of Georgia v. the Parliament of Georgia”, II-15). Therefore, "the Constitution of Georgia strictly demarcated the area of actions for the State, and as a counterbalance to it, it equipped an individual with such procedural rights that will protect the right to liberty from unjustified or/and excessive interference by the State" (Judgment №1/2/503,513 of the Constitutional Court of Georgia of April 11, 2013 on the case of “Citizens of Georgia – Levan Izoria and Davit-Mikheili Shubladze v. the Parliament Of Georgia”, II-4). “The circumstance that the restriction of physical freedom and especially the most intense form of it - deprivation of liberty hinders and sometimes completely excludes the realization of other rights and freedoms by an individual also increases the degree of strictness of constitutional-legal scrutiny" (Judgment N2/1/415 of the Constitutional Court of Georgia of April 6, 2009 on the case of "The Public Defender of Georgia v. the Parliament of Georgia”, II-6).

29. Paragraph 6 of article 18 of the Constitution of Georgia contains certain procedural safeguard - establishes the maximum allowed term of preliminary detention of an accused. In some cases paragraph 6 of article 18 might not be excluding repetitive use of the 9 months term against an individual. As it was indicated by the Claimant himself paragraph 6 of article 18 does not preclude the use of preliminary detention against an individual, who is accused of a crime committed after his/her detention, for the second time. The Constitution allows restriction of human liberty for period of 9 months until the first instance court judgment is delivered against him/her. The aim of establishing the maximum 9 months term for preliminary detention is to preclude detention of an accused for an indefinite or disproportionately long time.

30. "One of the major functions of the State is to secure the safety of the society and its concrete member. The State secures this aim on the ground of enforcement mechanism, the authorities granted to state institutions by the legislation (including, by criminal norms). Exactly for this reason, Article 18 of the constitution establishes procedural guarantees towards the person, who is opposed by the State with the purpose of criminal prosecution, assurance of the law and order and of protection of the society or/and its concrete member" (Judgment №1/2/503,513 of the Constitutional Court of Georgia of April 11, 2013 on the case of “Citizens of Georgia – Levan Izoria and Davit-Mikheili Shubladze v. the Parliament Of Georgia”, II-3).

31. Generally, preliminary detention aims to eliminate the circumstances hindering the administration of justice in order to ensure fair hearing of the criminal case. At the same time, it was already indicated that the detention of an individual constitutes intensive interference within the rights. Accordingly, the Constitution by itself draws the boundaries after which it is not allowed to detain a person for the purpose (on the ground) to avoid the risks related to obstruction of justice. Based on article 18 of the Constitution in cases when an accused is detained the state is obliged to ensure delivery of judgment of conviction within the period of 9 months or release him/her. Hereby, the Constitution considers 9 months period to be somewhat sufficient time for delivery of the judgement against an accused.

32. In the situations when a person is accused of several crimes, interest to use detention in order to avoid obstruction of justice might exist in relation to each case separately. Therefore, article 18 of the Constitution does not intend to establish ceiling of the term of detention period, which will preclude the possibility of the use of detention against an individual during his/her entire life. The purpose of article 18 is to force the state to ensure timely imposition of the court judgment against the accused in cases when detention is used against him/her.

33. At the same time the aims of establishment of 9 months maximum detention period is equally applicable in relation to each simultaneous criminal case, in occasions when several accusations are simultaneously served against an individual. Under the conditions when a person is detained paragraph 6 of article 18 of the Constitution equally obliges the state to conduct speedy trial on each case. In terms of influence on the accused, detention has same effect of restriction, independent from which crime the accusation is imposed for. Therefore, when the interests of administration of justice is ensured under the condition when several accusations are simultaneously served, the aims of establishment of 9 months maximum term of detention are equally directed towards the criminal prosecution of each simultaneous case, independent from which crime the person is detained for.

34. Based on the above mentioned for the purposes of determining the ceiling time allowed for detention prescribed by paragraph 6 of article 18 of the Constitution of Georgia the accused should be considered to be detained, if after presenting this accusation, he/she was factually detained on any other criminal case. In order to determine the ceiling of preliminary detention period on each case under the condition when several accusations are simultaneously served, the period which the accused spent detained even on another criminal case after serving an accusation on this case should be counted as detention period spent on this case. Accordingly it is not allowed to use detention as a restrictive measure against an accused from the moment when the time he/she has spent in detention (on any criminal case) after serving an accusation on this case becomes equal to 9 months. Obviously the mentioned requirement does not preclude the imposition of detention in relation to the crime which was committed by an individual after detention was used against him for the second time. Repetitive use of detention might also be constitutional in cases when grounds for serving an accusation for crimes committed before the detention became known for prosecution party after imposition of detention of the first case. However in both mentioned examples use of preliminary detention will be contrary to constitutional requirements if serving an accusation or requesting detention is artificially delayed and is used for artificial prolongation of preliminary detention period. For example in cases when facts and information which became grounds for criminal prosecution were known to the investigation party and the information was sufficient for serving an accusation, however accusation was not served against an individual.

35. Therefore, the Constitutional Court considers that paragraph 6 of article 18 of the Constitution together with the first paragraph of the same article forbids manipulation with 9 months term of preliminary detention, artificial prolongation of the mentioned term by using different formally lawful methods or grounds because such prolongation contradicts with the values protection of which is aimed by paragraph 6 of article 18 of the Constitution. The Constitutional Court will assess the disputed provision in this regard.

36. Several specific examples were indicated during the hearing of the current case, analysis of which will enable us to establish the criteria for determining cases when constitutional requirements are violated. The Claimant indicated that the CPC contains the provisions which enable artificial delay of commencement of the criminal prosecution. For example, even when suitable and sufficient evidences are collected the prosecutor is authorised not to serve accusation to the person who is detained on another criminal case with intention to use newly served accusation for requesting imposition of new term of detention later. The occasion when an authorised body artificially splits criminal case into several cases in order to use them for repetitive imposition of detention was also indicated.

37. It is obvious that the disputed provision and the Criminal Procedure Code in general not only does not preclude the mentioned possibility but also create legal basis for the mentioned action as was determined based on the analysis of the case law of the general courts. At the same time according to the Criminal Procedure Code the prosecutor has discretion to select (considering several subjective and objective circumstances) the time when he/she considers serving accusation and demanding preliminary detention to be the most beneficial. At one glance the CPC contains the provision forbidding the artificial delay of commencement of criminal prosecution (section 9 of article 169 of the CPC) according to which confirmation of delay of starting criminal prosecution results in inadmissibility of some evidences. However it does not influence repetitive imposition of detention. Postponing the commencement of 9 months period of repetitive detention as a result of artificial delay of serving accusation towards an individual under the conditions, when after discovery of evidences sufficient to serve accusation on this case accused was already under detention on another criminal case, contradicts the aims of the first and the sixth paragraphs of article 18 of the Constitution and causes violation of the constitutional rights of the detained person.

38. Hereby, the normative content of section 2 of article 205 of the CPC which allows detention of an individual on a certain criminal case under the conditions, when, since discovery of evidences sufficient to serve accusation on this case he/she has already spent 9 months period under the detention on any criminal case, prosecution against him is incompatible with the first and the sixth paragraphs of the Constitution. The Constitution clearly indicates that preliminary detention period of an accused should not exceed 9 months, at the same time in order the mentioned constitutional right to be effective it is necessary the person/body authorised to conduct criminal prosecution not to have unlimited discretion to choose the moment of time when a person is declared to be an accused and the time when the mentioned constitutional guarantees become applicable. Therefore, the law, which allows an individual to be kept detained on a certain criminal case after he/she has already factually spent 9 months under the detention (on any criminal case conducted against him/her) since discovery of evidences sufficient to serve accusation on this case, will be incompatible with paragraph 6 of article 18 of the Constitution.

39. The detention imposed on one case factually ensures aims of criminal prosecution on another case as well independent from the fact whether the grounds for detention exist on the latter. Because of its specific character preliminary detention constitutes the strictest, as well as the most effective restrictive measure. Hereby, when detention is imposed on one criminal case, it also has legal and practical effect on other cases which are conducted against the accused.

40. It should also be indicated that the precedents of the general courts are not uniform with respect to the standards and the criteria of the use of restrictive measures. For example as is indicated in the ruling of Tbilisi City Court of July 14, 2014 the Court assessed the grounds for the use of detention as a restrictive measure against the Claimant (Giorgi Ugulava). The court did not uphold motion of prosecution party requesting the change of restrictive measure and imposition of detention on the accused due to the violation of bail condition by him. The Court indicated that imposition of detention on the accused was inexpedient since he had already been detained on another criminal case and therefore, use of detention was not necessary on this case. Contrary to the mentioned, based on the ruling N10a/5547-13 of Tbilisi City Court of October 26, 2013 the repetitive detention was imposed on the individual, since the Court considered that in case the accused is acquitted or pardoned by the President on another criminal case (on which detention was already imposed) the accused might be released from the custody and have the possibility to tamper with witnesses.

41. The first sentence of section 2 of article 205 of the Criminal Procedure Code of Georgia indicates that the entire detention period of the accused should not exceed 9 months. At the same time according to the case-law of the general court the mentioned 9 months term refers only to one criminal case. Therefore the disputed provision does not prescribe maximum period of detention when several criminal cases are conducted against an accused. It is noteworthy that based on the disputed provision the rule of using 9 months period of detention is not unequivocally defined. The court case-law does not indicate how long detention can be used against an individual in cases when several accusations (criminal cases) are served either. Therefore the disputed provision does not create a possibility to establish ceiling of the term of detention in cases when several accusations are served against an individual.

42. The Constitutional Court has repeatedly indicated that restriction of constitutional right, particularly the right to liberty is allowed only based on clear, unequivocal legal provisions. In the present case the Court should assess whether the disputed provision prescribes clearly formulated references in relation to restriction of the right to human liberty. The Constitutional Court upholds the position of the Claimant according to which lack of clarity might lead to non-uniform interpretation of the provision resulting in disproportionate restriction of the right to liberty.

43. Prescription of maximum term of 9 months for preliminary detention by paragraph 6 of article 18 of the Constitution of Georgia unequivocally indicates on its purpose and aspiration not to allow the use of detention for indefinite time even when such necessity is derived from the interests of administration of justice. Detention restricted in time might be justifiable for achievement of the mentioned legitimate aim, but the same could not justify the detention for any period of time. At the same time the use of detention for longer period than allowed under paragraph 6 of article 18 of the Constitution also leads to violation of paragraph 1 of the same article. Therefore the law which prescribes the possibility of the use of detention for indefinite time is unconstitutional. Based on the disputed provision the detention might be used if it does not exceed 9 months period on each criminal case. The mentioned provision enables interpretation according to which the person accused in several crimes might be detained for an indefinite time, which is contrary to the Constitution.

44. It is also established by the precedents of the European Court of Human Rights that the ambiguous provision establishing grounds for detention are incompatible with the right to human liberty. For example on the case of Šebalj v. Croatia (application number – 4429/09, June 28, 2011) after the period of detention prescribed by the law was lapsed repetitive detention was imposed against an applicant based on court ruling adopted on other criminal case. The Croatian law was prescribed the maximum allowed term for detention, but the law did not indicate whether the term was used only on one criminal case or it was applicable in occasions when accusation in several crimes were served (paragraph 160).

45. European Court of Human Rights indicated that the right to liberty protected under the Convention might be restricted only based on the law which is sufficiently accessible, precise and foreseeable in its application (paragraph 187). The Court considered the restriction of human liberty based on the law which governed statutory maximum periods of detention for different offences, but did not contain any provisions concerning the maximum detention period on the basis of detention orders adopted in parallel criminal proceedings, contrary to the Convention (paragraph 194). The Court indicated that it is contrary to paragraph 1 of the article 5 of the Convention to detain a person after the maximum statutory period for his detention has expired, on the basis of a detention order issued in simultaneous criminal proceedings, in absence of specific statutory provision or clear judicial practice which prescribes basis for detention on another criminal case after statutory detention period is lapsed (paragraph 197,198).

46. The restrictive character and level of clarity of the disputed provision under assessment is similar to the norms based on which the detention was considered to be violating the Convention by the European Court of Human Rights. According to the opinion of the European Court of Human Rights detention based on ambiguous, undefined law is factually equivalent to the arbitrary detention, without the law.

47. The detention as a restrictive measure based on the first and sixth paragraphs of article 18 of the Constitution of Georgia constitutes an exigent occasion. Since the liberty of the accused is restricted only based on the probable cause the criminal prosecution conducted against the detained person requires prioritised approach from the agencies conducting criminal prosecution, in order to ensure elimination of grounds of detention or logical conclusion of criminal prosecution without delay in time. Consequently in cases when two (or more) accusations are served against a person and detention is requested only on one of them, it is intolerable to impose repetitive 9 months term of detention in relation to the second case, because 9 months term of detention starts its application with respect to both accusations/cases notwithstanding the fact whether it is requested only on one case or on both simultaneously. Therefore the Constitutional Court upholds the Claimant’s statement according to which the disputed provision allows the detention for longer period of time than it is allowed by the Constitution, which violates his right protected under the first and the sixth paragraphs of article 18 of the Constitution.

Constitutionality of section 11 of Article 205 of the Criminal Procedure Code of Georgia and normative content of section 2 of Article 198 of the same Code which enables the use of detention as a restrictive measure against an individual based on probable cause

48. As it was already indicated article 18 of the Constitution of Georgia guarantees the human right of utmost importance, physical liberty of an individual. On the one hand it establishes both substantive and procedural safeguards for protection of the right and on the other hand it allows for the possibility for its restriction. The restriction of the right is allowed if it is necessary for important constitutional values and means employed are proportionate. "The freedom of an individual is not absolute and interference with it is permissible considering strict constitutional-legal requirements that protect any persons from possible arbitrariness of the State" (Judgment N2/1/415 of the Constitutional Court of Georgia of April 6, 2009 on the case of "The Public Defender of Georgia v. the Parliament of Georgia”, II-6).

49. The disputed provision prescribes evidentiary standard for the use of detention as a restrictive measure. According to section 1 of article 198 of the CPC "a restrictive measure is used in order to ensure the appearance of the accused before the court, exclusion of his/her future criminal activity and enforcement of the court judgment". Therefore, the disputed provision aims to create suitable conditions for ensuring fair justice and prevention of future crime.

50. "It is doubtless that a person’s personal liberty, its inviolability, freedom to act according to his own will is not absolute, unrestricted right. However, it is absolutely protected by illegal, groundless and arbitrary restriction" (Judgment №1/2/503,513 of the Constitutional Court of Georgia of April 11, 2013 on the case of “Citizens of Georgia – Levan Izoria and Davit-Mikheili Shubladze v. the Parliament Of Georgia”, II-2). Therefore, the law restricting human liberty should aim at protection of important constitutional interests, be proportionate means for achievement the aim and exclude possibility of arbitrariness. Establishing criminal penalty for violating some legal values serves the protection of human rights and other important constitutional interests. Prevention of crime, as well as administration of justice against a possible criminal, constitutes important constitutional value for protection of which in some cases the right to human liberty might be restricted. This is unequivocally derived from the spirit of article 18 of the Constitution, since it by itself establishes the possibility for detention of the accused and limits it with defined period of time. Therefore, in order to settle the dispute firstly the preconditions which are allowed to be relied on by the judge for imposition of detention should be determined. After that the Court should determine whether the disputed provision corresponds to the constitutional requirements.

51. Article 18 of the Constitution of Georgia allows preliminary detention of an accused for 9 months period. For the purposes of the Constitution an accused is an individual against whom on the one hand commission of crime is not proved beyond reasonable doubt, who is not convicted by the court judgment and on the other hand there is an assumption founded on evidences that he/she has committed the crime. The constitutional intent is clear that the link between an accused and crime is based on certain level of assumption and not on proven circumstances. At the same time main purpose of article 18 of the Constitution is to prevent arbitrary, unreasoned restriction of human liberty based on subjective decision. Therefore in order the detention to be used the accusation shall be based on objective evidences, which would form solid assumption of commission of crime not only for a certain individual, but also for an objective observer. At the same time there should be real probability of potential future danger derived from an accused, it is not acceptable to restrict human liberty based on the subjective doubt of the judge or the prosecutor.

52. At the same time preliminary detention of an accused prescribed by the Constitution does not represent punishment. This form of detention is not the state response towards an individual for potentially committed act, prior execution of the potentially imposable punishment on him/her and so on. The first paragraph of article 40 of the Constitution clearly indicated that “an individual shall be presumed innocent until found guilty by a final court judgment of conviction pursuant to the rules prescribed by the law”. The detention prescribed by article 18 does not constitute punishment imposed as a result of commission of crime, rather it is a measure used against an individual who is presumed innocent. Therefore, preliminary detention prescribed by paragraph 6 of article 18 of the Constitution represents a restrictive measure, the use of which should ensure proper administration of justice and avoidance of dangers towards the society derived from an accused individual. Solely the fact that preconditions for the accusation exist by itself cannot be sufficient ground for use of detention against the accused. The detention should serve protection of important constitutional interests and at the same time there should be real danger of violation of the mentioned interests by an accused.

53. The purpose of criminal prosecution against an individual is to determine his/her guilt and impose suitable punishment or acquittal. “In the process of criminal prosecution awarding of the status of the accused to an individual serves legitimising of the investigative agency to carry out investigation activities on the one hand, and providing this person with adequate procedural guarantees on the other. Recognition of a person as an accused is the ground for commencement of criminal prosecution against him/her which finally should lead to execution of justice on the case” (Judgment №1/4/557,571,576 of the Constitutional Court of Georgia of November 13, 2014 on the case of “Citizens of Georgia – Valerian Gelbakhiani, Mamuka Nikoleishvili and Alexandre Silagadze v. the Parliament of Georgia”, II-14). A restrictive measure, including the detention might be an accompanying event of conduction of the criminal prosecution aim of which is to ensure unhindered administration of justice, protection of security of society and its individual members. Avoidance of flee of accused, witness tampering by him/her, or destruction of evidences as well as the risks of commission of new crime by him/her relate to the achievement of legitimate aims such as protection of security and order in the society, administration of justice. Therefore the democratic society recognises three significant grounds for imposition of detention: an accused might flee, he/she might destroy evidences (tamper with witnesses) and commit new crime.

54. Existence of legitimate aims constitutes necessary but not always sufficient precondition for restriction of the right to human liberty. The restriction should also be necessary and proportionate means for achievement of the aim (Judgment №3/1/512 of the Constitutional Court of Georgia of June 26, 2012 on the case of “Citizen of Denmark – Heike Kronqvist v. the Parliament of Georgia”, II-60). At the same time, clearly formulated and foreseeable criteria should be defined by the law which will enable the use of detention, the strictest restrictive measure, only based on reasoned ruling, in cases when it is extremely necessary. The use of detention should be subject to strict judicial control. “According to the Constitution, the court, on the one hand, acts as a guarantor for the physical liberty of a person, and on the other hand, as a legitimate body authorised to restrict it” (Judgment №1/2/503,513 of the Constitutional Court of Georgia of April 11, 2013 on the case of “Citizens of Georgia – Levan Izoria and Davit-Mikheili Shubladze V. the Parliament Of Georgia”, II-2).

55. The Claimant considers that the disputed provisions, section 11 of article 3 and normative content of section 2 of article 198 of the CPC which enables the use of detention based on the probable cause is incompatible with the constitutional requirement and creates risks for disproportionate restriction of the right to human liberty. Therefore, the Constitutional Court should determine whether the disputed provisions prescribe clear and foreseeable criteria for imposition of detention and whether it creates risks of disproportionate restriction of the right.

56. According to section 11 of article 3 of the CPC the probable cause is unity of facts and information, which with the unity of circumstances of the criminal case, would satisfy an unbiased person to conclude the possible commission of crime by the accused. At the same time based on the standard of probable cause the authorised person (judge, prosecutor) assesses the necessity to conduct investigative activities and/or use restrictive measures. Therefore the existence of probable cause constitutes prerequisite for accusation of an individual (or conducting other investigative actions) and the use of restrictive measures against him/her.

57. It should be indicated that the probable cause is less demanding evidentiary standard compared to “the level of high probability” (the evidentiary standard used by the court on preliminary session for deciding to proceed to the hearing of the case on merits. The standard is formed by corroborating and persuasive evidences presented to the court on the hearing which are sufficient to assume with high probability that the judgment of conviction will be delivered on the case) prescribed by section 12 of the same article and the standard of “beyond reasonable doubt” (the unity of evidences which would assure an unbiased person that the crime is committed by the accused, the standard necessary for delivering judgment of conviction by the court) prescribed section 13 of the same article of the CPC. Therefore on different stages of criminal prosecution probability of commission of crime by an individual is assessed based on “probable cause”, “level of high probability” and “beyond reasonable doubt” evidentiary standards.

58. It should be indicated, that more intensive the interference in the right to human liberty is, more strict constitutional requirements for assessment of its constitutionality are. Deprivation of liberty for a short period as a result of arrest, preliminary detention (maximum 9 months) of an accused and imposition of imprisonment as a punishment constitute interferences of different intensity within the right protected under article 18 of the Constitution.

59. An arrest or a detention constitutes temporary restriction of human liberty, maximum duration of which is defined with 72 hours or 9 months respectively. Therefore the use of certain level of assumption for imposition of preliminary detention instead of evidentiary standard founded on confirmation of a fact beyond reasonable doubt, does not automatically contradict with the requirement established by article 18 of the Constitution. However in order to determine whether the standard of the probable caused as defined by the disputed provisions satisfies the requirements of article 18 of the Constitution the Constitutional Court should determine:

a) Whether the mentioned standard contains clear and unequivocal references for assessment of validity of the use of preliminary detention;

b) Whether there is a risk that pursuant to the disputed provision the right protected under the first paragraph of article 18 of the Constitution will be disproportionately restricted.

60. Since the use of detention is based only on assumption of commission of crime (which an individual is accused of), as well as possibility to flee, destruct evidences (tamper with witnesses) and the risk of commission of new crime, there is always a possibility for its incorrect use. Therefore, the legislator is obliged to create a regulation which provides the court with clear and unequivocal references on when the detention should be used as a restrictive measure. At the same time it would be unreasonable and even impossible to demand from the prosecution party or from the court to verify grounds for accusation and detention based on the strictest evidentiary standard at the initial stage of hearing of the case. The Constitution allows the use of detention; however the legal regulation should be as clearly formulated as possible and should enable the use of detention based on the most objective criteria. Only in such cases it is possible for the law restricting the human liberty to be considered as proportionate means of restriction of the right.

61. The law should give the judge clear references on what circumstances he/she should rely in the process of imposing the detention. The ruling should not be based on entirely subjective assessment. It is impossible to define the complete list of factors which can become the basis for formation of probable cause of the judge on existence of ground for imposition of preliminary detention; however the law should indicate that this should be the assumption based on objective factors. This should be derived from such facts and information, identification and verification of which is possible, which indicate towards the real danger that the accused will flee, will destroy evidences, will tamper with witnesses and will commit a new crime. In some occasions the character of the crime itself, circumstances in which it was possibly committed, or the personality of an accused might refer to the increased risk of flee of the accused, destruction of evidences and commission of new crime by him/her. However, solely declaring a person to be accused should not be sufficient for conclusion that he/she may conduct another unlawful act.

62. Similar approach should be used for imposition of detention in order to prevent commission of new crime. In order to confirm possible commission of new crime the court should assess whether the real danger of continuation of criminal activity by the accused exists. For example whether evidences exist which indicate on preparation of crime or on intention to conclude unfinished crime. Moreover, in many occasions it is important to assess whether the same circumstances exist under which an individual allegedly committed the crime. For example in cases when allegedly committed crime by a public officer is prosecuted, the court may consider whether the public officer is still in the office. At the same time the motivation of the accused for commission of alleged crime should be considered, for example if the crime is committed due to the certain emotional state of the accused or other factors accompanying the certain occasion, which are less probable to happen in future.

63. According to the section 2 of article 198 of the CPC, ground for use of restrictive measures, including the detention is “probable cause that the accused will flee or not appear before the court, destroy information important for the case or commit new crime”. According to section 11 of article 3 of the CPC probable cause is “a totality of facts or information that, together with the totality of circumstances of a criminal case in question would satisfy an objective person to conclude that a person has allegedly committed an offence”. Therefore, in order to impose detention the court investigates whether the unity of facts and information is present based on which unbiased person would conclude that the accused person may flee, not appear before the court, destroy evidences and/or commit new crime. At the same time according to section 5 of article 195 of the CPC “when deciding to apply a restrictive measure and its specific type, the court shall take into consideration the personality, occupation, age, health status, marital and material status of the accused, restitution made by the accused for the damaged property, violation of any of the previously applied restrictive measures, and other circumstances”. Therefore, the Constitutional Court should decide whether the mentioned disputed provision guarantees that the use of detention is possible only based on the assumption which is based only on objective circumstances. It should also be assessed whether the disputed provision provides the judge deciding on imposition of detention with sufficient references for formation of the probable cause.

64. The current procedural law prescribes two types of grounds for the use of restrictive measure and the existence of both is required in order the court to adopt the ruling imposing detention on an individual. Based on section 11 of article 3 of the CPC the court is obliged to confirm the existence of unity of facts or information related to the criminal case, which would assure an unbiased person in the possible guilt of the individual. The mentioned provision obliges the court to evaluate circumstances of a criminal case and use preliminary detention (or other restrictive measure) only if he/she is convinced that the presented materials suggest validity of criminal prosecution. At the same time according to section 2 of article 198 of the CPC the court should also confirm, based on the standard of probable cause, that there is real risk/probability that the accused will flee, destroy evidences and/or commit new crime.

65. The disputed provisions unequivocally indicate that in order to adopt the ruling on detention the facts and information based on which an unbiased person would conclude necessity of the use of detention should be presented. Therefore, based on the disputed provisions the judge should decide not based on his/her personal subjective doubts but it is obliged to assess the existence of factual circumstances which objectively refer to, would assure objective person in, necessity of the use of the restrictive measure. At the same time according to section 9 of article 206 of CPC "when reviewing the question of application, change or annulment of a measure of restraint, the burden of proof shall, in any event, be on the prosecutor". Therefore, the prosecuting party is obliged to prove existence of objective circumstances which indicate on necessity of the use of the restrictive measure and court is obliged to assess whether the position of the prosecution party is reasoned.

66. According to section 6 of article 206 of the CPC in the ruling on the use of restrictive measure the judge is obliged to indicate to the "evidences based on which the court was convinced of application, change or cancelation of the restrictive measure". According to section 11 of the same article if detention is used as a restrictive measure the judge explains to the parties "based on which evidences he/she decided to use the detention as a restrictive measure and why he/she considered that the aim of the restrictive measure cannot be achieved by using less strict restrictive measure". Therefore, the legislation in force allows the use of detention only if the assumption based on unity of evidences and information exists that an individual committed a crime (of which he/she is accused) and at the same time he/she might flee, destroy evidences and/or commit new crime. The mentioned standard excludes the possibility of unreasoned use of detention.

67. The disputed provision interpreted in the light of the mentioned provisions of the CPC unequivocally indicates that the ruling of detention should be based on existence of objective circumstances about the risks of possibility to flee by an individual, commission of new crime by him/her and destruction of evidences, which is supported by the evidences presented on the case. Reference to the objective person by section 11 of article 3 of the CPC gives sufficient guidance to the judge to conclude that the use of detention is allowed not based on subjective doubts, but in cases when an assumption based on solid, objective circumstances exist.

68. At the same time according to section 4 of article 198 of the CPC the court is authorised to impose detention as a restrictive measure only when "the purpose stipulated by [the detention] cannot be achieved by the application of other less severe measures of restraint”. Therefore the use of detention is allowed only in cases when it is the single possible measure for avoidance of possibility to flee by an accused, commission of new crime or destruction of evidences (witness tampering) by him. Therefore, the law allows the use of detention only in the circumstances of extreme necessity, in cases when less restrictive measure cannot ensure the achievement of legitimate aims, hereby, it does not constitute disproportionate restriction of the right to human liberty.

69. Based on all above mentioned, in the event of good faith interpretation and application of the disputed provisions, jointly with other provisions, they preclude the use of unreasoned detention against an individual on the one hand and on the other hand the proportionality of detention as the means of restriction of the right is ensured. Therefore, the disputed provisions satisfy the constitutional requirement for the use of preliminary detention and do not contradict with the first paragraph of article 18 of the Constitution.

70. It would be contrary to paragraph 1 of article 18 of the Constitution of Georgia to adopt the regulation (such application of it) based on which the court deciding on imposition of detention would take into consideration the facts or information and circumstances of the criminal case which indicate on hypothetical danger that the accused will flee, will commit new crime or destruct the evidences (tamper with witness), when only theoretical possibility and no real danger exists for commission of the illegal acts by the accused.

71. The standard of probable cause is not satisfied when the unity of facts or information presented on the criminal case instead of creating assumption based on objective factors for necessity of the use of detention, merely does not preclude the possibility for existence of the grounds for the use of detention. The circumstance that the defence party was not able to rebut arguments presented by the prosecution party, and therefore could not preclude the possibility of commission of illegal action by an accused cannot become the ground for formation of probable cause in relation to the use of detention. Section 11 of article 3 and section 2 of article 198 of CPC terminologically refers to the possible crime, possibility to flee and so on. The term "possible" does not imply the ability of commission of new crime, ability of flee, real possibility of conducting such acts. The standard of probable cause implies occasion when the assumption of fleeing, commission of new crime and destruction of evidences is based on objective circumstances, which indicate to the real danger of commission of such acts.

72. It is intolerable the preliminary detention to be used on the ground that the court "could not exclude" every possibility of commission of new crime, fleeing and/or destruction of evidences. Such approach would cause resolving even small doubts against the accused and would increase the possibility for restriction of human liberty disproportionately to the risks arisen from the accused. It is not allowed for the court to presumably consider that the ground for restrictive measures, including the detention, exists only because an individual is accused of a crime, notwithstanding of which crime he/she is accused. The standard "could not exclude" will almost always create grounds for imposition of restrictive measures against an accused. The Constitutional Court considers that such interpretation of the disputed provision (probable cause) will be result of its manifestly incorrect understanding and its unreasonable reading. As it was already indicated according to the law in force burden of proof on necessity of the use of detention is on the prosecuting party, which entails proving the existence of assumption based on the objective circumstances about real danger of fleeing, commission of new crime and destruction of evidences by an accused. Use of contrary approach by the court when deciding on imposition of detention factually means assigning the burden of proof on the defence party. The Constitutional Court agrees with the statement of the Claimant according to which it is not allowed to use the restrictive measure only based on the grounds that the defence party could not counter the evidences and arguments presented by the prosecutor. The probable cause for use of restrictive measure, especially detention, should be formed based on the evidences presented by the prosecution party. Obviously the defence party is authorised to present arguments which support the court for correct assessment of existence of possible danger; however, inability of the defence to adequately present grounds for refusal of the use of restrictive measure cannot automatically be sufficient prerequisite for the use of detention.

73. Based on the disputed provision the judge deciding on the use of detention as a restrictive measure is guided with the evidentiary standard which would lead an objective person to the conclusion that the real probability of fleeing, commission of new crime and destruction of evidences by an accused exists. Different interpretation of the provision creates the risk of restriction of the right to liberty even in cases when very little possibility of fleeing, commission of new crime and destruction of evidences by an accused exists, which cannot be excluded by the judge, as well as by another reasonable person.

Constitutionality of wording "or will commit new crime" of section 2 of Article 198 and subparagraph "c" of section 1 of Article 205 of the Criminal Procedure Code of Georgia

74. The Claimant party also requests the wording "or will commit new crime" of section 2 of article 198 and subparagraph "c" of section 1 of article 205 of the CPC to be declared unconstitutional with respect to the first paragraph of article 18 of the Constitution of Georgia. According to the disputed provisions the risk of commission of new crime by an accused constitutes the ground for use of restrictive measures, including detention, against him/her. The Claimant requests declaration of the provision unconstitutional since he considers that the use of detention based on the mentioned ground is allowed by the law even when existence of a risk of commission of new crime is not proven with adequate evidentiary standard. Therefore, he indicates that the law might enable detention of an accused in cases when only hypothetical risk of commission of new crime exists. He also indicates that the use of detention against an accused might be used to avoid risk of commission of the negligent crime, or such a crime which does not envisage imprisonment as a punishment.

75. The evidentiary standard for possible commission of new crime, as well as for other restrictive measures is established by section 11 of article 3 and article 198 of the CPC. Constitutionality of these provisions has already been assessed above and the Court determined that they allow imposition of detention only if assumption based on objective circumstances of real danger of commission of new crime exists, which is compatible with section 1 of article 18 of the Constitution. Therefore, on the one hand the law establishes sufficient guarantees for exclusion of unreasoned detention and on the other hand the disputed provisions do not regulate evidentiary standard of existence of the ground for imposition of the detention. Therefore, the argumentation presented by the Claimant is not valid for proving unconstitutionality of the disputed provision in that direction.

76. At the same time independent from whether the possible/future crime is intentional or negligent the Court is obliged to assess the existence of the probable cause of its possible commission. This implies that there should be objective factors indicating to real danger of commission of new crime. Although it is less probable the materials presented on a criminal case to be indicative of real danger of commission of negligent crime, however if in specific case such danger is reasoned the Constitutional Court does not see the reason why the approach should be different with respect to possible commission of international and negligent crimes. During the assessment of risk of commission of the crime the court does not rely only on the subjective attitude of an individual towards the breach of the law. It is possible such circumstances indicating to a real possibility of commission of future negligent crime to be presented on a criminal case. Some negligent crime might involve greater danger towards the security of the society compared to some intentional crimes. Therefore if probable cause exists that an accused will commit new crime the use of detention against him/her cannot be excluded by the fact the crime is negligent.

77. According to section 4 of article 198 of the CPC “a court may remand the accused into custody only when the purpose stipulated by [the detention] cannot be achieved by the application of other less severe measures of restraint”. The mentioned provision should be interpreted in the light of principles of the criminal proceeding. According to section 4 of article 5 of the CPC “a person shall be free, except when the necessity of his/her detention is proved”. It is clear that the criminal procedural law considers the detention to be the measure of last resort, which should be oriented towards the elimination of important and real danger towards the society. At the same time in cases when a crime by its character does not create such social danger, for which the legislator sets imprisonment as a punishment, it is impossible the detention to be considered as necessary measure for elimination of danger of commission of such crime.

78. Article 171 of the CPC prescribes the ground for arrest of individual. Compared to detention an arrest constitutes less restriction of the liberty which is used based on the same evidentiary standard and for ensuring the same aims. However the law allows detention of an individual by court order only on the crimes for which imprisonment is set as a punishment. According to the mentioned provision “If there is probable cause that a person has committed a crime for which the law stipulates imprisonment, or the person will flee or will not appear before a court, destroys information important for a case, or will commit a new crime, upon motion of the prosecutor, the court, according to the place of investigation and without oral hearing, shall deliver a ruling for the arrest of the person”.

79. On the crime for which imprisonment is not envisaged as a punishment the law considers short term deprivation of liberty, an arrest, to be prohibited, disproportionate measure even for the purpose to avoid possible flee of an accused, commission of new crime and destruction of evidences by him/her. Intent of the law is clear, that the necessity of detention will not exist even in cases when there is a probable cause for possible commission of crime which does not entail imprisonment as a punishment. Hereby, based on the disputed provision the court is not allowed to impose detention on an individual for prevention of crimes which do not entail imprisonment as a punishment. Therefore, there is no ground to uphold request of the Claimant on declaration of wording "or will commit new crime" of section 2 of Article 198 and subparagraph "c" of section 1 of article 205 of the CPC unconstitutional with respect to paragraph 1 of article 18 of the Constitution of Georgia.

Constitutionality of the third sentence of section 8 of Article 206 of the Criminal Procedure Code of Georgia

80. In the constitutional claim the third sentence of section 8 of article 206 of the Criminal Procedure Code is also disputed. After admitting the constitutional claim for consideration on merits the disputed provision was declared invalid based on the subparagraph “b” of paragraph 2 of article 1 of the law of Georgia N3976-rs “On Amendments in the Criminal Procedure Code of Georgia”. According to paragraph 2 of article 13 of the law of Georgia “On Constitutional Legal Proceedings” “cancelation or invalidation of the disputed provision at the moment of hearing of the constitutional case results in termination of the proceeding, except when circumstances prescribed by paragraph 6 of the same article exist”. According to paragraph 6 of the same article “in cases when disputed provision is repealed or invalidated after admitting the case for consideration on merits, the Constitutional Court is authorised to rule on constitutionality of the disputed provision only if it is of crucial importance for protection of constitutional rights and freedoms”.

81. Based on the mentioned provision it is clear that the Constitutional Court is bound by the request stated in the claim. The Constitutional Court has repeatedly indicated the content of the disputed provision should be determined, among others, as a result of its systemic interpretation, at the same time factors such as intensity and the scope of restriction, etc. should be taken into consideration. Legal environment in which the disputed provision is in force has essential influence on the above mentioned. Hereby, while deciding on the constitutionality of the invalidated provision the scope of assessment of the Constitutional Court is bound not only by the disputed provision but also the normative reality in force at the time when the disputed provision was valid.

82. According to the disputed provision in the motion presented to the court in order to request the review of imposed restrictive measure the author "should indicate on the new circumstances which was not known at the time of imposition of restrictive measure and suitable evidences (material) should be supplemented regarding this new circumstances". At the same time, the procedural law in force at the time of admitting the disputed provisions for consideration on merits did not contain any other rule for reviewing the court ruling imposing the detention as a restrictive measure, besides the motion presented by the defence party based on the disputed provision. According to the Claimant the disputed provision enables shifting the burden of proof regarding changing/cancelling the restrictive measure to the defendant, which, in his opinion is the duty of the prosecution.

83. As a result of the amendments in the Criminal Procedure Code of Georgia section 9 of article 206 of the Criminal Procedure Code of Georgia has been established differently, specifically the burden of proof during the review of changing/cancelling the restrictive measure in all cases is on the prosecution. At the same time article 230¹ was added to the Criminal Procedure Code of Georgia, according to which an automatic measure of reviewing the legality of detention every two months by the court after the hearing on merits is established. It needs to be considered that during the preliminary hearing the judge is now authorised to change the restrictive measure by its own initiative.

84. When admitting the disputed provision for hearing on merits the legal regime of an accused regarding the revision of the decision of the court on detention during the admission and after the amendments are substantially different. The current legislation prescribes automatic revision of detention every two months by the court and completely puts the burden of proof on the prosecution. At the same time the accused has the right to demand revision of the court decision regarding the detention as well indicating towards newly emerged circumstances. In case this motion is declared admissible the burden of proof for continuing the detention is on the prosecution as well. Therefore as a result of legal amendments the normative content of the disputed provision has drastically changed, the disputed relationships, which establish the periodic revision of the grounds for detention, are differently regulated and provide more clear indication that the burden of proof is only on the prosecution. There is no basis for assessing the constitutionality of invalid provision stemming from paragraph 6 of article 13 of the law of Georgia “On Constitutional Legal Proceedings”.

85. Therefore the part of the Claim which demands declaring the third sentence of paragraph 8 of article 206 of the Criminal Procedure Code of Georgia with respect to paragraph 1 of article 42 of the Constitution of Georgia, there is the basis for termination of proceeding based on paragraph 6 of article 13 of the law of Georgia “On Constitutional Legal Proceedings”.

III
Ruling part

Based on subparagraph “f” of paragraph 1 and paragraph 2 of article 89 of the Constitution of Georgia, subparagraph “e” of paragraph 1 of article 19, paragraph 1 of article 21², paragraph 1 of article 23, paragraphs 1, 2 and 3 of article 25, paragraph 5 of article 27, subparagraph “a” of paragraph 1 of article 39, paragraphs 2, 4, 7 and 8 of article 43, paragraphs 1 and 2 of article 44 of the organic law of Georgia “On The Constitutional Court of Georgia”, article 13, paragraph 2 of article 24, articles 30, 31, 32 and 33 of the Law of Georgia “On Constitutional Legal Proceedings”

THE CONSTITUTIONAL COURT OF GEORGIA
RULES;

1. The Constitutional Claim N646 (Citizen of Georgia Giorgi Ugulava v. the Parliament of Georgia) shall be upheld partially.

2. The normative meaning of section 2 of article 205 of the Criminal Procedure Code of Georgia which allows the detention of an accused on a certain criminal case, if after the accusation or emergence of sufficient grounds for presenting an accusation on this criminal case he/she has in unity spent 9 months under the detention on any criminal case conducted against him/her shall be declared unconstitutional with respect to paragraphs 1 and 6 of article 18 of the Constitution of Georgia.

3. The Constitutional Claim N646 (Citizen of Georgia Giorgi Ugulava v. the Parliament of Georgia) shall not be upheld in the part disputing:

a) Constitutionality of section 11 of Article 205 of the Criminal Procedure Code of Georgia and the normative content of section 2 of Article 198 of the same code which enables the use of detention as a restrictive measure against an individual based on the probable cause with respect to paragraph 1 of article 18 of the Constitution of Georgia;

b) Constitutionality of wording "or will commit new crime" of section 2 of Article 198 and subparagraph "c" of section 1 of Article 205 of the Criminal Procedure Code of Georgia with respect to paragraph 1 of article 18 of the Constitution of Georgia;

c) Case shall be terminated regarding the constitutionality of the third sentence of section 8 of Article 206 of the Criminal Procedure Code of Georgia with respect to paragraph 5 of article 42 of the Constitution of Georgia.

4. The normative content of section 2 of Article 205 of the Criminal Procedure Code of Georgia which allows detention of an accused on am certain criminal case, if after the accusation or emergence of sufficient grounds for presenting an accusation on this criminal case he/she has in unity spent 9 months under the detention on any criminal case conducted against him/her shall be declared legally invalid at the moment of publication of this Judgment in the courtroom of the of the Constitutional Court.

5. This judgment is in force from the moment of its public announcement on the hearing of the Constitutional Court.

6. The judgment is final and is not subject to appeal or review.

7. A copy of the judgment shall be sent to: the parties, the President, the Government and the Supreme Court of Georgia.

8. The judgment shall be published in the “Legislative Herald of Georgia” within the period of 15 days.

Composition of the Plenum:

Giorgi Papuashvili

Konstantine Vardzelashvili

Ketevan Eremadze

Maia Kopaleishvili

Merab Turava – did not sign

Zaza Tavadze

Otar Sichinava

Lali Papiashvili

Tamaz Tsabutashvili