Cases declared inadmissible under Article 18 in conjunction with Article 5
II. RELEVANT DOMESTIC LAW AND PRACTICE A. Code of Criminal Procedure, as it stood at the material time 57. The relevant provisions of the Code of Criminal Procedure concerning the preventive measure of pre-trial detention read as follows: Article 159 §§ 1 and 2 “Detention” “1. No one may be arrested without a court order or other judicial decision. 2. Courts, prosecutors and investigators are obliged to immediately release any person who is detained unlawfully.” Article 417 §§ 1 and 3 “Committal for trial” “1. Where there is a sufficient basis for hearing the case, the judge (court), without prejudging the merits of the case, shall commit the accused for trial... 3. During the admissibility hearing, in addition to deciding whether to commit the accused for trial..., the judge (court) shall decide whether to impose a measure of restraint on the accused.” Article 419 “Time-limits for committal decisions” “The judge (court) shall decide whether to commit the accused for trial within 14 days or, in complicated cases, within a month of the date of delivery of a final judgment on the last criminal case registered with the same judge (court).” B. Criminal Code 58. At the time the applicant held the post of chairperson of the CAA, Article 332 of the Criminal Code, proscribing the offence of abuse of official authority, read as follows: Article 332 § 1 and 3 – “Abuse of official authority” “1. Abuse of official authority by an officer or a person of equivalent status, to the detriment of public service requirements and in order to gain any personal profit or privilege or any profit or privilege for another person, and which has substantially affected the rights of a legal or natural person, or the legal interests of society or the State, shall be punishable by a fine or a term of up to three years ’ imprisonment, a bar on holding public office or a bar on engaging in professional activities for a period of up to three years. 3. The action referred to in paragraph 1 ... above: ( a) committed on more than one occasion; ... shall be punishable by a term of imprisonment of between three and eight years, accompanied by a bar on holding public office or a bar on engaging in professional activities for a period of up to three years.” C. The Law of 29 October 1996 on Normative Legal Acts, as in force at the material time 59. At the time the applicant held the post of chairperson of the CAA, the relevant parts of sections 33 and 54 of the Law read as follows: Section 33 ( 4 ) “The draft of a normative act to be issued by a minister or by a head of a public authority shall be submitted to the Ministry of Justice, which, within a period of two weeks, shall issue an opinion as to the compatibility of the draft with legislative acts and presidential decrees.” Section 54 “1. Any public authority ... that has issued a normative act must forward that act to the Ministry of Justice for registration within a period of ten days of the date of signature thereof by the authorised person. 2. All such normative acts ... must be accompanied ... by the opinion of the Ministry of Justice referred to in sub-section 4 hereof. 3. The Ministry of Justice shall enter the normative act into the State register and allocate it a number within a period of three days of [it] having been forwarded ... 4. Before being entered into the State register as normative acts, the Ministry of Justice must issue an opinion as to whether draft normative acts are compatible with normative acts of a higher legal force. If the opinion is negative, the Ministry of Justice may not enter the act in the State register. 5. Registration of a normative act may be refused where: ... b) following amendments to the relevant legislation, the legal relationships on which the normative act is based are governed by new rules ... ” D. The Act of 28 May 1999 on Public-Law Entities, as it stood at the material time 60. At the time the applicant was chairperson of the CAA, Section 13 ( d ) of this Law read as follows: Section 13(d) “Public-law entities may be funded by ... d) income received for work performed on a contractual basis ...” E. Various legal acts on civil aviation 61. Domestic law concerning State regulatory activities in the field of civil aviation changed significantly over time. For the purposes of the present case, an overview of the relevant legal provisions can be divided into two periods – i. how the relevant legal framework developed between 12 March 2002 and 13 March 2004, when the applicant held the post of chairperson of the civil aviation authority; and ii. the changes that occurred in the legal framework after the applicant resigned on 13 March 2004 and up to the present date. 1. As the domestic law on State regulatory activities in the civil aviation stood prior to 13 March 2004 (a) Order no. 110 of the Minister for Transport of 28 December 2001 62. By this order, the Minister for Transport approved the Articles of Association of the CAA. 63. Article 1 §§ 1 and 3 of the Articles of Association defined the CAA as a public-law entity, entrusted by the State with the task of regulating, supervising and controlling civil aviation. In performance of that task, the CAA reported to the Minister for Transport. 64. Under Article 2 § 1, the regulation of civil aviation was intended to ensure the safety of flights and to regulate the legal, technical, technological and financial aspects of their operation. 65. Under Article 7, the chairperson of the CAA, who was appointed by the Minister for Transport, ensured that those objectives were achieved by the CAA, issued orders within the scope of his remit, and so on. Under sub ‑ paragraph (k) of Article 7, the chairperson also performed “other activities for which he is responsible under Georgian law”. 66. Pursuant to Article 8 § 1, the primary source of income of the CAA was “the annual regulation fee for transport activities”, as defined by the State Regulation Act, as well as the sources of funding provided for by section 13 of the Public-Law Entities Act. 67. On 14 July 2003, prompted by the legal effects of the Constitutional Court ’ s judgment of 10 January 2003, the term “annual registration fee for transport activities” was deleted from Article 8 § 1 (see also paragraphs ... below). (b) Order no. 109 of the Minister for Transport of 28 December 2001, valid until 14 July 200 3 68. By this order, the Minister for Transport approved the rules for determining the amount and payment of the “annual regulation fee for transport activities” in the field of civil aviation. 69. Under Article 2, the regulation fee was payable annually and constituted the CAA ’ s primary sources of revenue. It was directly linked to performance by the CAA of its regulatory functions as defined by the law, and did not represent income from commercial activities. 70. Pursuant to Article 4 § 2, the full annual regulation fee was to be paid by the company concerned for the account of the CAA, which would make use of it in accordance with the law. 71. On 14 July 2003, prompted by the legal effects of the Constitutional Court ’ s judgment of 10 January 2003, the Minister repealed Order no. 109. (c) The Act of 20 June 2001 on the Rules of State Management and the Regulation of Transport and Communication (“ the Regulation Act”) 72. A direct consequence of the Constitutional Court ’ s judgment of 10 January 2003 was a major revision to the Regulation Act, which took the form of an amendment of 14 August 2003. 73. The following is a summary of how that Amendment affected the CAA. 74. Prior to the Constitutional Court ’ s judgment of 10 January 2003, Section 1(u) and 9 ( 5 ) of the Act had provided that “the annual regulation fee for transport activities”, which had constituted one of the CAA ’ s primary sources of revenue, was to be determined by a normative act of the Minister for Transport and Communications. The fee was linked to performance by the CAA of the regulatory functions entrusted to it by law, it had to be a reasonable amount and non-discriminatory, and did not represent income from commercial activities. 75. The Constitutional Court ’ s judgment of 10 January 2003 declared the above-mentioned sections unconstitutional, with effect from 1 April 2003 ( see also paragraphs 9-13 above). 76. Prior to 1 April 200 3, section 14 of the Regulation Act read as follows: [Former] Section 14(2), (3) and (5) “2. The budget sources of a transport authority are: a) the annual regulation fee for transport activities; b) other income provided for by the Public-Law Entities Act. 3. The annual regulation fee for transport activities shall be paid in full into the account of the relevant authority in accordance with the rules laid down by law. The relevant authority will use such sums in accordance with the law. 5. The budget of the authority concerned, together with the corresponding explanatory report, shall be approved by the Minister for Finance upon the report of the Minister for Transport and Communications. 77. After 1 April 200 3, paragraphs 2(a) and 3 of the former section 14 lost their legal effect because they were unconstitutional, whilst the amendment of 14 August 2003 also repealed paragraph 5. Thus, by virtue of the amendment, the revised section 14 read as follows: [New] Section 14 “The budget sources of the authority concerned shall be income received in accordance with the National Independent Regulatory Bodies Act, the Public-Law Entities Act and other relevant normative acts.” 78. Prior to 1 April 200 3, section 22 ( 1 ) (b) read as follows: Section 22 ( 1 ) (b) “With regard to transport, the fees for services shall include any charge which is necessary in order to provide the service and which is economically justified, including the annual regulation fee for transport activities ... “ 79. The amendment of 14 August 2003 replaced the term “the annual regulation fee for transport activities” in section 22(1)(b), which had been declared unconstitutional on 10 January 2003, by “and any other necessary charge provided for by law”. 80. The Amendment Act of 14 August 2003 also introduced transitional provisions, including the following in section 24 ( 5 ) : Section 24 ( 5 ) “Pending adoption of a new legislative act on the matter by Parliament, the rates of the various regulation fees ( რეგულირების საფასური ) shall be set as determined directly by the transport authority concerned.” 81. Article 1 of Order no. 1, the legal act issued by the chairperson of the CAA on 25 November 2003, indicated that it was based on section 24(5) of the Regulation Act (see also paragraph 16 above). Thus, the Order set the amount and modalities of payment of the regulation fee for transport activities in the field of civil aviation. (d) Presidential Decree no. 364 of 25 July 2003 82. According to its preamble, the decree ( ბრძანებულება ) was issued by the President of Georgia in accordance with the judgment of the Constitutional Court of 10 January 2003 and section 13 of the Public-Law Entities Act, and within the consequent framework of necessary institutional reforms. Article 1 of the decree read as follows: Article 1 “The public-law entities created pursuant to the [Regulation] Act, such as ..., the CAA, are hereby authorised to fund their respective budgets by charging amounts corresponding to the value of the service provided on the basis of contracts.” 2. Development of domestic law on civil aviation from 13 March 2004 to present day 83. On 30 June 2004 a new Chapter VI, relating to the regulation fee, which repealed the above-mentioned transitional section, 24 ( 5 ) ( see paragraph 80 above), was introduced to the Regulation Act. The relevant provisions of that Chapter read as follows: Section 23 ( 1 )( 1 ) and (1)( 2 ) “1. The regulation fee [for civil aviation] constitutes a means of covering the expenses necessarily incurred in the performance of the regulatory functions allocated by law to the CAA. The regulation fee may not exceed 2% of the price of the service provided by the payer or the amount, excluding VAT, received by the payer in respect of its civil aviation activities. The CAA may, by a normative act, set the regulation fee below the maximum amount defined above. 2. The rules for payment of the regulation fee shall be laid down by a normative act of the CAA so as to ensure: a) that the CAA is able to perform its tasks ...; b) that the expenses incurred by the CAA in providing companies with regulatory services are covered; c) that the rights of the parties concerned are safeguarded through the safe and effective performance of transport activities ...” 84. It was on the basis of the new Chapter VI in the Regulation Act that the applicant ’ s successor, appointed after the applicant resigned, issued Order no. 3 on 16 August 2004. Similarly to the applicant ’ s impugned Order no. 1, the new order set rates for the regulatory fees chargeable by the CAA on various private commercial activities in the field of civil aviation. Order no. 3 was duly approved by the Minister of Justice and was enforced without any impediments. 85. On 30 March 2007 the Georgian Parliament adopted a new Act on State Regulatory Activities in Transport (“the new Act on State Regulation in Transport” ), which is currently in force. The adoption of the new law automatically resulted in the repealing of the previous Act of 20 June 2001 on State Regulation, and the accompanying Order no. 3 issued by the chairperson of the CAA (see the preceding paragraph). 86. Pursuant to sections 1(j) and 9 of the new Act on State Regulation in Transport, the CAA was entitled to receive “onto its own account” regulatory fees from private companies operating in the same field so it could perform its regulatory activities in the field of civil aviation on behalf of the State. The law emphasised that the payment of those fees was “mandatory” as it constituted compensation for the public services provided by the regulatory authority. In addition to the payment of those fees, section 9 provided for a number of other additional sources of revenue for the CAA, such as the possibility for the authority to conclude various civil contracts and gain subsidies from the State budget. 87. On 14 April 2011 the Minister of the Economy and Sustainable Development issued Order no. 1-1/583, endorsing the Articles of Association of the CAA, in accordance with the new Act on State Regulation in Transport. Article 7 ( c) and (d) of the Order, which are still in force, confirmed that the primary sources of revenue for the CAA were either regulatory fees mandatorily collected from companies operating in the civil aviation sector in exchange for the regulatory services it provided, or income received from separately established contractual relations. 88. Furthermore, on the basis of the new Act on State Regulation in Transport, the Minister of the Economy and Sustainable Development issued, on 18 April 2011 and 20 April 2012, two more Orders, nos. 1-1/611 and 1-1/1025, which set detailed rates for regulatory fees on various, specific commercial activities which were mandatory and were to be paid directly to the CAA ’ s account in exchange for the regulatory activities it provided. Those rates are still applicable. THE LAW I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION 89. The applicant complained under Article 5 § 1 of the Convention that his detention between 16 September 2004, the date of the expiration of his five-month detention period, and 16 March 200 5, the date of his committal for trial, had been unlawful. That provision of the Convention reads, in so far as relevant, as follows: Article 5 “1. ... No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ... (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence ... ;” 90. The Government submitted that there had been no need for a court to authorise the applicant ’ s pre-trial detention after the five - month detention period had expired on 16 September 2005 because by that time the investigation of the case had already been terminated and a few days later, on 20 September 2005, the case had been transmitted to the first-instance court for trial. The Government stated that in accordance with the relevant provisions of the Code of Criminal Procedure (“the CCP”) the fact that the case had been transmitted to the trial court had sufficed for the detention to fall under “judicial scrutiny” and thus to be compatible with Article 5 § 1 of the Convention. 91. The applicant replied that his detention from 16 September and 16 March 2005 had been unlawful because it had not been covered by a valid court decision. A. Admissibility 92. The Court notes that this complaint is not manifestly ill ‑ founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 93. The Court notes that it has already found a violation of Article 5 § 1 of the Convention in a number of cases, including those directed against Georgia, concerning the practice of holding defendants in custody solely on the basis of the fact that a bill of indictment had been filed with a trial court. Detaining defendants without a specific legal basis or clear rules governing their situation – with the result that they may be deprived of their liberty for an unlimited period of time without judicial authorisation – is incompatible with the principles of legal certainty and protection from arbitrariness, which are common threads throughout the Convention and the rule of law (see, amongst many other authorities, Khudoyorov v. Russia, no. 6847/02, § 146-147, ECHR 2005 ‑ X (extracts); Baranowski v. Poland, no. 28358/95, §§ 53-58, ECHR 2000 ‑ III; Ječius v. Lithuania, no. 34578/97, §§ 60 ‑ 64, ECHR 2000 ‑ IX; Ramishvili and Kokhreidze v. Georgia, no. 1704/06, § 106 ‑ 111, 27 January 2009; and Gigolashvili v. Georgia, no. 18145/05, §§ 32 ‑ 36, 8 July 2008). 94. The Court notes that the present application is no different from the Ramishvili and Kokhreidze or Gigolashvili cases cited above, owing to the identical deficiencies in the Georgian criminal procedural law and practice at the material time. 95. Notably, under Article 417 §§ 1 and 3 of the CCP, once the prosecution had terminated the investigation and transmitted the criminal case file to the court with jurisdiction, the latter could hold an admissibility hearing and decide whether to commit the accused for trial and whether it was necessary to impose a restraint measure on that individual. However, a problem arose with the timing of such a hearing. Pursuant to Article 419 of the CCP, an admissibility hearing was required to be held within fourteen days or, for “complicated cases”, within a month of the delivery of a final judgment on the last, unrelated criminal case brought before the same judge, but the latter had no time constraints in deciding that “last” case. The CCP neither required that a judicial order authorising the defendant ’ s detention should be issued in the meantime, nor did it specify any statutory limits for this phase of detention. Such statutory lacunae resulted in the practice of detaining defendants without any judicial decision for months (see also Absandze v. Georgia (dec.), no. 57861/00, 20 July 2004; and Ramishvili and Kokhreidze, cited above, §§ 108-109 ). 96. It follows that for six months, between 16 September 2004 and 16 March 2005, there was no judicial decision authorising the applicant ’ s detention. The fact that the criminal case file and the bill of indictment had been sent to the trial court did not render the remaining period of detention “lawful” within the meaning of Article 5 § 1 of the Convention (see Gigolashvili, cited above, § 36, and Nakhmanovich v. Russia, no. 55669/00, § 68, 2 March 2006). 97. There has thus been a violation of Article 5 § 1 of the Convention in respect of that period of detention. II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION 98. The applicant complained under Article 6 § 1 of the Convention that the domestic courts had not given sufficient reasons for their decisions to convict him of a criminal offence. The relevant part of Article 6 reads as follows: Article 6 “1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...” 99. The Government submitted that the courts had fully examined the case in the light of all the most important evidence submitted by the applicant, including the audit report of 2 0 July 2 004. The examination of the case had been conducted in truly adversarial proceedings, during which the principle of the equality of arms had been duly respected. Both parties ’ legal and factual submissions had been carefully addressed by the courts in their decisions. 100. The applicant maintained that there had been a manifest lack of duly reasoned domestic decisions confirming his guilt. Notably, the domestic courts had failed to address the fact that by concluding contracts with the various companies working within civil aviation, the applicant had simply followed the instructions given by the Constitutional Court in its judgment of 10 January 2003. Nor had the courts taken into consideration the fact that he had issued the impugned Order no. 1 on the basis of Presidential Decree no. 364 of 25 July 2003. It was equally problematic that the domestic courts had not explained in their decision why he had been acquitted with respect to his dealings with fourteen aviation companies but convicted in relation to the remaining companies, whereas the factual circumstances underlying both the acquittal and conviction had been identical. A. Admissibility 101. The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible. B. Merits 102. Although it is not the Court ’ s function to deal with errors of fact or law allegedly committed by national courts (see Tejedor García v. Spain, 16 December 1997, § 31, Reports of Judgments and Decisions 1997 ‑ VIII; and Buzescuv. Romania, no. 61302/00, § 63, 24 May 2005 ), it still reiterates that according to its established case-law, reflecting a principle linked to the proper administration of justice under Article 6 § 1 of the Convention, the judgments of courts and tribunals should adequately state the reasons on which they are based, and which should be void of manifest arbitrariness, in order to show that the parties were duly heard and ensure public scrutiny of the administration of justice (see Taxquet v. Belgium [GC], no. 926/05, § 91, ECHR 2010; Salov v. Ukraine, no. 65518/01, § § 89-92, ECHR 2005 ‑ VIII (extracts), Jgarkava v. Georgia, no. 7932/03, § 71, 24 February 2009; and Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001). 103. Admittedly, Article 6 § 1 cannot be understood as requiring a detailed answer to every argument raised by the parties, and the question whether a court has failed to fulfil its obligation to state reasons can only be determined in the light of the circumstances of a particular case (see Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303-A, Suominen v. Finland, no. 37801/97, § 36, 1 July 2003; and Boldea v. Romania, no. 19997/02, § 30, 15 February 2007 ). However, even though a domestic court has a certain margin of appreciation when choosing arguments in a particular case and admitting evidence in support of the parties ’ submissions, the injured party can expect a specific and express reply from the court to those submissions which are decisive for the outcome of the proceedings in question (see Hiro Balani v. Spain, 9 December 1994, §§ 27 ‑ 2 8, Series A no. 303 ‑ B; Grădinar v. Moldova, no. 7170/02, § § 107 ‑ 108, 8 April 2008; and Gheorghe v. Romania, no. 19215/04, § 43, 15 March 2007 ). 104. The Court observes that the applicant was convicted of abuse of official authority on account of two specific actions that he took in his capacity as chairperson of the CAA: (i) the fact that he had concluded service agreements with the three civil aviation companies on 28 March and 13 August 2003 for the purpose of collecting fees for services, which in actual fact represented the regulation fee in disguise, from them between 1 April and 1 October 2003, and (ii) the fact that the same regulation fees had continued to be collected from some eight other civil aviation companies on the basis of Order no. 1, which had been issued unlawfully by the applicant on 25 November 2003. 105. With respect to the first episode – the collection of the fee for services from the companies by the CAA on the basis of service agreements dated 28 March and 13 August 2003 – the domestic authorities prosecuted the applicant for his failure to abide by the Constitutional Court ’ s judgment of 10 January 2003, which had allegedly banned the authority from charging any fees to civil aviation companies. However, having regard to the reasons given in the constitutional judgment in question, it cannot be resolutely concluded that the Constitutional Court outright forbade the CAA from entering into service agreements with the civil aviation companies. Admittedly, the constitutional judgment invalidated the statutory obligation to pay the “annual regulation fee for transport activities” under the law. However, in the reasoning of the same judgment, the Constitutional Court also entertained the idea, as an answer to the CAA ’ s argument of its alleged inability either to function without being funded with fees for services and to sign services contracts with civil aviation companies, that it was, on the contrary, preferable from the constitutional point of view for the CAA and civil aviation companies to enter into freely-formed contractual relations, whereby the latter companies would undertake a contractual obligation to pay a fee in exchange for the regulatory services provided by the CAA, in accordance with section 13(d) of the Public-Law Entities Act (see paragraphs 11-12 and 60 above). That being so, the Court finds it difficult to understand why the Tbilisi City Court, when convicting the applicant for having entered into services agreements with the civil aviation companies, did not give any meaningful answer to the applicant ’ s major defence argument that he had merely followed the Constitutional Court ’ s indication to enter into such contractual relationships (compare paragraphs 43 and 47 above). Of further significance is the audit report of 20 July 2004, an investigative measure that had been commissioned by the authorities themselves, which suggested that the initiation and conclusion of the impugned contracts by the applicant in his capacity as chairperson of the CAA was apparently in accordance with the Constitutional Court ’ s ruling of 10 January 2003 (see paragraph 22-26 above). The Court further observes that at least one of those contracts, the second one, dated 13 August 2003, had been based on an additional legal ground, which was Presidential Decree no. 354 of 25 July 2003. That decree stated outright that the CAA was empowered to charge fees to civil aviation companies in exchange for regulatory services, on the basis of privately concluded contracts. Noteworthy in this regard was that the decree itself emphasised in its preamble that for the CAA to follow such a mode of operation “was in accordance with the judgment of the Constitutional Court of 10 January 2003” (see paragraph 8 2 above). 106. As regards the second episode on which the applicant ’ s conviction was grounded – the charging of the regulation fee between 1 October 2003 and 16 March 2004 on the basis of Order no. 1 of 25 November 2003 – the domestic courts concluded that it had been unlawful for the applicant to set regulation fees unilaterally after the Constitutional Court ’ s judgment of 10 January 2003 had heavily amended the Regulation Act by removing all references to the “the annual regulation fee for transport activities”. However, the Court considers that the domestic courts failed to address the self-evident fact that Order no. 1 had been based on section 24 ( 5 ) of the State Regulation Act, a transitional provision which was introduced by the Amendment of 14 August 2003. Notably, that transitional provision read that the CAA, as a transport regulation authority, was entitled to set regulation fees on its own, pending the adoption of a new piece of legislation on the matter by Parliament. Given that a new law set rates for regulation fees as late as 30 June 2004 ( see paragraph 83 above), it is difficult to understand why it was wrongful for the applicant to regulate the matter by issuing Order no. 1 on 25 November 200 3 as head of the CAA, in accordance with the above-mentioned section 24 ( 5 ). Furthermore, if it was manifestly unlawful for the applicant to issue Order no. 1, which took effect from 1 October 2003, then the Ministry of Justice, the authority in charge of overseeing the lawfulness of various sub-legislative legal acts, should ordinarily have flagged up all the underlying legal defects of the order. Furthermore, the audit report of 2 0 July 2004, the only forensic item of evidence available in the case file (see paragraphs 22, 24 and 42 above ), again suggested that the applicant had apparently acted in conformity with the then existing legislation, when issuing Order no. 1 (see also paragraphs 80 and 81 above). 107. The Court observes that a clarification of all the above-mentioned factual and legal aspects was indispensable for the purposes of establishing the applicant ’ s guilt in relation to both episodes. However, despite the fact that the applicant duly voiced all the relevant arguments before the domestic authorities ( see paragraphs 28, 30, 43-44, 50 and 52 above), the domestic courts manifestly omitted to give them any meaningful consideration in their decisions. Indeed, it is irregular that none of the three judicial instances attempted in their decisions to have a discussion about the correlation between the applicant ’ s actions, what exactly was said in the Constitutional Court ’ s judgment of 10 January 2003 and what the relevant statutory law was in the immediate aftermath of that constitutional judgment. 108. The foregoing considerations are sufficient for the Court to conclude that the domestic courts gave no reasoned consideration to the above-mentioned, significant aspects of the criminal case directed against him. Those aspects could have had decisive implications for the determination of the applicant ’ s guilt ( compare Salov, cited above, § 92, Grădinar, cited above, § § 114 and 115; and Gheorghe, cited above, § 50 ). The resultant incongruity renders the applicant ’ s conviction for abuse of official authority far from being convincingly determined from the standpoint of an objective legal observer, such as the Court. What is at stake in the present case is not the applicant ’ s individual criminal responsibility or the establishment of the elements of the offence, matters which are exclusively within the domestic courts ’ domain. Rather, the situation, prompted by the absence of sufficient reasons in the decisions of the domestic courts, is that of incomprehension for the Court as to why the applicant ’ s acts – the collection of the fee on the basis of service agreements and the sub-legislative legal act – were described as criminal at all. In other words, the applicant cannot be said to have had the benefit of fair proceedings in so far as the criminal law – notably, the scope of the offence of abuse of official authority prosecuted under Article 332 of the Criminal Code – was inexplicably and thus arbitrarily construed to his detriment by the domestic courts. 109. There has accordingly been a violation of Article 6 § 1 of the Convention. III. ALLEGED VIOLATION OF ARTICLE 18 OF THE CONVENTION TAKEN IN CONJUNCTION WITH ARTICLE 5 110. Citing Article 18 of the Convention in conjunction with Article 5, the applicant complained that the criminal proceedings against him and his subsequent pre-trial detention had had ulterior, abusive motives. That provision provides as follows: Article 18 “The restrictions permitted under [the] Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.” 111. The Government submitted that pre-trial detention had been imposed on the applicant strictly for the purposes of the criminal proceedings initiated against him for abuse of power, falling squarely within the exception envisaged by Article 5 § 1 of the Convention. Apart from purely law-enforcement considerations, there had been no other “hidden agenda” behind the relevant domestic authorities ’ actions when conducting the criminal proceedings in question. 112. The applicant replied by elaborating that the initiation of the criminal proceedings against him and the associated imposition of pre-trial detention had been a direct outcome of Mr Saakashvili ’ s clear and specific public threat that had been directed against him in December 2003, during the latter ’ s presidential election campaign (see paragraph 55 above). Indeed, as soon as Mr Saakashvili had been elected President of Georgia in January 2004, the threat of “jailing the applicant” had started to materialise. A. Admissibility 113. The Court emphasises that Article 18 of the Convention does not have an autonomous role. It can only be applied in conjunction with other Articles (see Gusinskiy v. Russia, no. 70276/01, § 75, ECHR 2004 ‑ IV). As it has previously held in its case-law, the whole structure of the Convention rests on the general assumption that public authorities in the member States act in good faith. Indeed, any public policy or individual measure may have a “hidden agenda”, and the presumption of good faith is rebuttable in theory. However, it is difficult to overcome this assumption in practice. Indeed, an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed or which could be reasonably inferred from the context. A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached (see Khodorkovskiy v. Russia, no. 5829/04, § 255, 31 May 2011). When an allegation under Article 18 of the Convention is made, the Court applies a very exacting standard of proof. As a consequence, the Court has only been satisfied in a few cases that such a standard was met, such as Gusinskiy v. Russia ( cited above, § § 73–78); Cebotari v. Moldova (no. 35615/06, §§ 46 et seq., 13 November 2007); or Lutsenko v. Ukraine, ( no. 6492/11, § 108, 3 July 2012 ). For a contrasting example, see Sisojeva and Others v. Latvia (striking out) ( [GC], no. 60654/00, § 129, ECHR 2007 ‑ I). 114. The Court notes that when it comes to allegations of political or other ulterior motives in the context of a criminal prosecution, it is difficult to dissociate the pre-trial detention from the criminal proceedings within which such detention was ordered (see Lutsenko, cited above, § 108). In the instant case, the applicant ’ s only argument backing up his allegation of an abusive initiation of criminal proceedings against him was a reference to the public statements of presidential candidate Mr Saakashvili. The Court acknowledges the inappropriateness of the public statements in question, which can indeed be easily read as a threat to the applicant ( see paragraph 55 above). However, it is still unable, in the absence of any other additional evidence or arguments and applying an exacting standard of proof beyond a reasonable doubt, to establish that the initiation of the criminal case against the applicant was necessarily linked to the threat uttered by Mr Saakashvili, or that the latter in any other manner unduly influenced the unfolding of the criminal case after he became President. Indeed, the mere suspicion of a hidden abusive agenda, no matter how arguable that suspicion may be, cannot be sufficient for the Court to conclude that the whole legal machinery of the respondent State in the present case lacked independence and was ab initio misused under alleged pressure from the President, or that from beginning to end the prosecution and judicial authorities acted in bad faith and in blatant disregard of the Convention ( compare Khodorkovskiy, cited above, § 260). There was nothing in the present case to suggest that the prosecution or judicial authorities themselves showed, either through official or unofficial channels, the existence of any ulterior motives incompatible with the restrictions on the applicant ’ s liberty which are permitted under Article 5 of the Convention (contrast with Lutsenko, cited above, §§ 108-109; Gusinskiy, cited above, § § 73–78; and Tymoshenko v. Ukraine, no. 49872/11, § 299, 30 April 2013). 115. In the light of the foregoing, the Court concludes that by limiting the evidence to substantiate his joined complaint under Articles 5 and 18 of the Convention to the reference to the threat against him by the then candidate for the Presidency of the country, the applicant failed to discharge the requisite burden of proof. It cannot therefore be said that a prima facie case has been established that there were improper motives behind the applicant ’ s criminal prosecution and detention (see Khodorkovskiy, cited above, § 256). 116. Accordingly, this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention. IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION A. As regards the complaints directed against the domestic court decisions of 19 and 25 March and 14 June 2004 117. Citing Article 5 §§ 1 and 3 and Article 13 of the Convention, the applicant complained about the court decisions of 19 and 25 March and 14 June 2004 which imposed and extended his pre-trial detention. Notably, he stated that those decisions had been either unlawful and/or unreasonable as there had been no reasonable suspicion that he had committed a criminal offence, and that the impugned decisions had lacked sufficient and relevant reasons. 118. The Government contended that the applicants ’ complaint of a lack of a reasonable suspicion that he had committed an offence of abuse of official authority was manifestly ill-founded in so far as the items of evidence that had been collected at the early stage of the investigation had been more than enough for the domestic courts to confirm the need to keep the applicant in pre-trial detention. They also stated that the court decisions in question had been properly reasoned. 119. The Court observes that the applicant ’ s above-mentioned complaints under various provisions of Article 5 of the Convention aimed to challenge the lawfulness and reasonableness of the Krtsanisi-Mtatsminda District Court ’ s decision of 19 March 2004 and the Tbilisi Regional Court ’ s decisions of 25 March and 14 June 2004. 120. Out of those three court decisions, the first two – the decisions of 19 and 25 March 2004 – constituted two instances of the same habeas corpus procedure bearing on the initial period of the applicant ’ s pre-trial detention, with the latter decision, which was delivered by the appellate instance, being the final one (compare Saghinadze and Others v. Georgia, no. 18768/05, § 136, 27 May 2010 ). However, the present application was lodged on 12 March 2005, that is, more than six months after the final domestic decision of 25 March 2004 in the impugned habeas corpus procedure (see, for a similar conclusion in identical situations, Davtian v. Georgia (dec.), no. 73241/01, ECHR 6 September 2005; Ghvaladze v. Georgia (dec.), no. 42047/06, 11 September 2007; and Panjikidze and Others v. Georgia (dec.), 73241/01, 20 June 2006). 121. As regards the Tbilisi Regional Court ’ s decision of 14 June 2004, which extended the applicant ’ s initial pre-trial detention, no further appeal lay against that particular decision at the time, according to the Code of Criminal Procedure then in force. That decision was consequently final for the purposes of Article 35 § 1 of the Convention (compare with the identical situation in Aliev v. Georgia, no. 522/04, §§ 111 and 112, 13 January 2009). Consequently, the applicant ’ s challenge to that particular decision, lodged with the Court on 12 March 200 5, is equally belated (see also Panjikidze and Others, cited above). 122. It follows that this part of the application has been lodged out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. B. As regards the complaint about the inability to challenge the unlawfulness of the applicant ’ s detention between 16 September 2004 and 16 March 2005 123. Additionally citing Article 5 § 4 of the Convention, the applicant complained that his complaint of 1 February 2005 of the unlawfulness of his continued detention, starting from 16 September 2004, was left without any consideration by the Tbilisi City Court on 16 March 2005, when the latter instance committed him for trial. 124. The parties ’ submitted the same arguments as those made with respect to the complaint under Article 5 § 1 of the Convention of the unlawfulness of the applicant ’ s detention between 16 September 2004 and 16 March 2005 (see paragraphs 90 and 9 1 above). 125. The Court notes that it has already carried out a comprehensive examination of the issue of the unlawfulness of the applicant ’ s detention between 16 September 2004 and 16 March 200 5. It reiterates its previous conclusions that a violation of Article 5 § 1 of the Convention was caused by lacunae in the well-established domestic law and practice at the material time, which was a structural problem that had no possible remedy. That being so, the complaint under Article 5 § 4 of the Convention, which is closely linked to the one already examined under Article 5 § 1, must be also declared admissible. However, in the light of its previous comprehensive findings on the merits of the matter, the Court considers that there is no need for an additional, separate examination of that same structural problem from the viewpoint of Article 5 § 4 (compare with Gigolashvili, cited above, §§ 14, 15 and 30-37). IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION 126. Article 41 of the Convention provides: “If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” A. Damage 127. The applicant claimed GEL 142,600 ( some EUR 120,000 ) in respect of pecuniary damage. He explained that that amount would provide compensation for his monthly salary, which was GEL 2,300 (some EUR 1,100) at the material time and which he would have received if he had not been forced to resign as chairperson of the CAA after the institution of unfair criminal proceedings against him. 128. The applicant also claimed EUR 500,000 in respect of non ‑ pecuniary damage. He submitted that he had suffered severe stress, which had had a negative impact on his health, on account of the violations of his rights under Article 5 § 1 and Article 6 § 1 of the Convention. 129. The Government submitted that the claim for pecuniary damage was unfounded as there was no causal link between it and the alleged violations. The Government stated that the claim for non-pecuniary damage was excessive. 130. The Court does not discern any causal link between the violation it has found and the alleged pecuniary damage. Indeed, it cannot speculate on whether and for how long the applicant would have retained his job if there had been no criminal proceedings against him (compare also Georgian Labour Party v. Georgia, no. 9103/04, § 148-151, ECHR 2008 ). 131. On the other hand, the Court has no doubt that the applicant suffered distress and frustration on account of the violations of his rights under Article 5 § 1 and Article 6 § 1 of the Convention. The resulting non ‑ pecuniary damage would not be adequately compensated for by the mere finding of those breaches. Having regard to the particular circumstances of the case, the Court, making its assessment on an equitable basis, finds it appropriate to award the applicant EUR 20 ,000 under this head. B. Costs and expenses 132. The applicant claimed reimbursement of 28,200 and 11,760 United States dollars (USD) ( some EUR 25,415 and EUR 10,600) in respect of his legal representation in the proceedings before both the domestic courts and the Court respectively. In support of that claim, he submitted two billing requests dated 19 March 2008 and 7 May 2009 from his two representatives. Those documents broke down the legal services that had allegedly been provided into the number of hours worked and the lawyers ’ hourly rates. The first representative claimed that he had worked 188 hours at a rate of USD 150 (EUR 135) per hour, while the second claimed to have worked 98 hours at a rate of USD 120 (EUR 108) per hour. It was not clear from the documents that were submitted whether the amounts claimed by the two lawyers have actually been paid by the applicant. 133. The Government submitted that the costs claimed for legal representation, which the applicant had indisputably received from the two lawyers, were exaggerated. 134. The Court reiterates that to be entitled to an award for costs and expenses under Article 41 of the Convention, an applicant must have actually and necessarily incurred them. In this connection, it further reiterates that in the absence of any additional financial documents confirming that the relevant financial transaction has actually, truly occurred, mere billing requests from lawyers can hardly be taken as a proof that the legal costs and expenses claimed have “actually and necessarily” been incurred by the applicants themselves (see Georgian Labour Party, cited above, § 161 and 164; Dadiani and Machabeli v. Georgia, no. 8252/08, § 65, 12 June 2012; Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, § 77, Series A no. 316-B; and Malama v. Greece (just satisfaction), no. 43622/98, § 17, 18 April 2002 ). Furthermore, the Court is not bound by domestic legal fee scales and practices and is thus free not to endorse domestic lawyers ’ hourly rates which appear to be excessive (see Assanidze v. Georgia [ GC], no. 71503/01, § 206, ECHR 2004-II). 135. In the present case, regard being had to the lack of financial documents in its possession and the above criteria, the Court cannot accept the applicant ’ s claim in full. Rather, it finds it reasonable to award him a global sum of EUR 15 ,000 for the costs of his legal representation in the proceedings before the domestic courts and the Court. C. Default interest 136. The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
Noting in particular that there had been no judicial decision authorising the applicant’s detention for six months, the Court held that there had been a violation of Article 5 § 1 of the Convention. However, it declared inadmissible, as being manifestly ill-founded, the applicant’s complaint under Article 18 in conjunction with Article 5, noting that it could not be established on the basis of his submissions that there had been improper motives behind his criminal prosecution and detention. Moreover, there was nothing to suggest that the prosecution or judicial authorities themselves had shown, either through official or unofficial channels, the existence of any ulterior motives.