issued by the Registrar of the Court

ECHR 214 (2016)

21.06.2016

Criminal conviction of former chairman of Georgia’s aviation agency was not

based on sufficient reasons
In today’s Chamber judgment1 in the case of Tchankotadze v. Georgia (application no. 15256/05)
the European Court of Human Rights (ECtHR) held, unanimously, that there had been:
a violation of Article 5 § 1 (right to liberty and security) of the European Convention on Human
Rights, and
a violation of Article 6 § 1 (right to a fair trial).
The case concerned the pre-trial detention of the former the chairperson of the Civil Aviation Agency
(CAA) of Georgia and his criminal conviction of abuse of power.
The ECtHR observed that the Georgian authorities had prosecuted Mr Tchankotadze for his failure to
abide by a judgment of the Constitutional Court of January 2003, which had allegedly banned the
CAA from charging any fees to civil aviation companies. However, the ECtHR noted in particular that,
having regard to the reasoning of the January 2003 judgment, it could not be concluded that the
Constitutional Court had entirely forbidden the CAA from entering into service agreements with civil
aviation companies. The ECtHR therefore found it difficult to understand that the trial court, when
convicting Mr Tchankotadze, had not given any meaningful answer to his defence argument that he
had merely followed the Constitutional Court’s indication to enter into such contractual
relationships.

Principal facts
The applicant, Zurab Tchankotadze, is a Georgian national who was born in 1952 and lives in Tbilisi.
Mr Tchankotadze was the chairperson of the Civil Aviation Agency of Georgia (CAA) between March
2002 and March 2004, when he resigned. In March 2004 criminal proceedings were brought against
him on charges of repeated abuse of power. In particular, he was accused of having entered into civil
contracts in his capacity as chairperson of the CAA with three civil aviation companies, which
undertook to pay the CAA on a monthly basis a “fee for services rendered in relation to the
regulation of activities”, and of having issued an order, in November 2003, which had allowed the
CAA to charge several companies the same fee. According to the investigator, Mr Tchankotadze had
in this way circumvented the legal effects of a judgment of the Constitutional Court of 10 January
2003 which had declared unconstitutional the obligation on airline companies to pay an “annual
regulation fee for transport activities” to the CAA.
Mr Tchankotadze was arrested on 16 March 2004 and a district court ordered his detention pending
investigation and trial for three months. His appeal against the detention order was dismissed. In
June 2004 his detention was extended until 16 September 2004. Mr Tchankotadze remained in
detention after that date, and in February 2005 he complained that he had ben unlawfully detained
since September 2004. Without replying to his complaint, the competent court decided, on 16
March 2005, to uphold the measure, in particular on the basis of the “nature of the charges”.

1. Under Articles 43 and 44 of the Convention, this Chamber judgment is not final. During the three-month period following its delivery,
any party may request that the case be referred to the Grand Chamber of the Court. If such a request is made, a panel of five judges
considers whether the case deserves further examination. In that event, the Grand Chamber will hear the case and deliver a final
judgment. If the referral request is refused, the Chamber judgment will become final on that day.
Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.
Further information about the execution process can be found here: www.coe.int/t/dghl/monitoring/execution.
In August 2005 the trial court convicted Mr Tchankotadze of two of the three episodes of abuse of
power of which he had been charged but acquitted him with respect to the CAA collecting a fee from
eight of the aviation companies concerned. He was sentenced to five years’ imprisonment and
banned from holding public office for two years. On appeal, he was acquitted in respect of the
charge relating to a further 14 companies, but the appeal court upheld the conviction as to the
remaining charges. Mr Tchankotadze’s prison sentence was amended and set at four years. His
appeal on points of law was dismissed by the Supreme Court in September 2006.

Complaints, procedure and composition of the Court

Relying on Article 5 § 1 (c) (right to liberty and security) of the Convention, Mr Tchankotadze
complained that his detention between 16 September 2004, the date of the expiration of his five-
moth detention period, and 16 March 2005, the date of his committal for trial, had been unlawful.
He further complained of a violation of Article 6 § 1 (right to a fair trial), maintaining that the
domestic courts had not given sufficient reasons for their decisions to convict him of a criminal
offence. Moreover, he relied, in particular, on Article 18 (limitation on use of restrictions on rights)
taken in conjunction with Article 5 § 1, complaining that the criminal proceedings against him and
his pre-trial detention had had ulterior, abusive motives.
The application was lodged with the European Court of Human Rights on 12 March 2005.
Judgment was given by a Chamber of seven judges, composed as follows:
András Sajó (Hungary), President,
Vincent A. de Gaetano (Malta),
Boštjan M. Zupančič (Slovenia),
Nona Tsotsoria (Georgia),
Paulo Pinto de Albuquerque (Portugal),
Egidijus Kūris (Lithuania),
Gabriele Kucsko-Stadlmayer (Austria),

and also Marialena Tsirli, Section Registrar.

Decision of the Court

Article 5
The ECtHR had already found violations of Article 5 § 1 in a number of cases, including cases 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. It underlined that detaining defendants
without a specific legal basis or clear rules governing their situation was incompatible with the
principles of legal certainty and protection from arbitrariness.
Mr Tchankotadze’s case was no different from those other applications owing to the same
deficiencies in Georgian criminal procedural law and practice at the time. Notably, under the Code of
Criminal Procedure, once the prosecution had terminated the investigation and transmitted the case
file to the competent court, 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 him or
her. However, under certain circumstances – when the case was “complicated” and the trial judge
was dealing with another criminal case – there were no time limits as to when such a hearing was to
be held. It was not required that a judicial order authorising the defendant’s detention should be
issued in the meantime. This resulted in the practice of detaining defendants without any judicial
decision for months. In Mr Tchankotadze’s case, there had been no judicial decision authorising his

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detention for six months, between 16 September 2004 and 16 March 2005, in violation of
Article 5 § 1.

Article 6
The first action on account of which Mr Tchankotadze had been convicted was his having concluded
service agreements in his capacity as chairperson of the CAA with three civil aviation companies for
the purpose of collecting fees for services. The ECtHR observed that, in that respect, the Georgian
authorities had prosecuted him for his failure to abide by the Constitutional Court’s judgment of
January 2003, which had allegedly banned the CAA from charging any fees to civil aviation
companies.
However, having regard to the reasoning of the January 2003 judgment it could not be concluded
that the Constitutional Court had entirely forbidden the CAA from entering into service agreements
with civil aviation companies. Indeed, while the judgment had declared unconstitutional the
obligation to pay the “annual regulation fee for transport activities”, it had also held that it was
preferable, from a constitutional point of view for the CAA and civil aviation companies to enter into
freely-formed contractual relations, which would include companies’ obligation to pay a fee in
exchange for the regulatory services provided by the CAA. The ECtHR therefore found it difficult to
understand that the trial court, when convicting Mr Tchankotadze, had not given any meaningful
answer to his major defence argument that he had merely followed the Constitutional Court’s
indication to enter into such contractual relationships.
The ECtHR moreover observed, in particular, that an audit report of July 2004, commissioned by the
authorities themselves, had suggested that the conclusion of the contracts in question by Mr
Tchankotadze in his capacity as the chairperson of the CAA had been in accordance with the
Constitutional Court’s judgment of 2003.
As regards the second action on account of which Mr Tchankotadze had been convicted – his having
charged several companies the same regulation fee on the basis of the order he had issued in
November 2003 – the Georgian courts had concluded that it had been unlawful for him to set
regulation fees unilaterally after the Constitutional Court’s judgment of January 2003. However, the
ECtHR considered that the Georgian courts had failed to address the fact that the order had been
based on a transitional provision which had been introduced by an amendment in August 2003
following the Constitutional Court’s judgment. Notably, under that transitional provision the CAA
was entitled to set regulation fees on its own, pending the adoption of a new piece of legislation on
the matter. Given that a new law had set the rates for regulation fees only in June 2004, it was
difficult to see why it had been wrongful for Mr Tchankotadze to regulate the matter by issuing the
order in question in November 2003. Furthermore, if it had been manifestly unlawful for him to
issue the order the Ministry of Justice should have flagged up the legal defects of the order.
Although Mr Tchankotadze had voiced all relevant arguments relating to those factual and legal
aspects, the domestic courts had not given them any meaningful consideration in their decisions.
The courts had not attempted in their decisions to address the correlation between Mr
Tchankotadze’s actions, the reasoning of the Constitutional Court in its judgment of January 2003,
and the relevant statutory law in the immediate aftermath of that judgment.
Indeed, it was difficult to see why Mr Tchankotadze’s acts had been described as criminal at all. The
criminal law had been arbitrarily construed to his detriment. There had accordingly been a violation
of Article 6 § 1.

Article 18 in conjunction with Article 5

The Court declared this part of the application inadmissible for being manifestly ill-founded, noting
that it could not be established on the basis of the submissions by Mr Tchankotadze that there had
been improper motives behind his criminal prosecution and detention.

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Just satisfaction (Article 41)
The Court held that Georgia was to pay Mr Tchankotadze 20,000 euros (EUR) in respect of non-
pecuniary damage and EUR 15,000 in respect of costs and expenses.

Separate opinions
Judges Sajó, Tsotsoria and Pinto de Albuquerque expressed a joint concurring opinion; Judge Kūris
expressed a concurring opinion. These separate opinions are annexed to the judgment.

The judgment is available only in English.

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The European Court of Human Rights was set up in Strasbourg by the Council of Europe Member
States in 1959 to deal with alleged violations of the 1950 European Convention on Human Rights.