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3. The applicant alleged that Article 223(1) § 1 of the Criminal Code of Georgia, under which he was convicted of the offence of being a member of the “thieves’ underworld”, had not been precise and foreseeable enough for him to regulate his conduct accordingly.
THE FACTS
6. On 15 February 2006 a criminal investigation was launched into the activities of a Mr A.K., on account of his alleged association with the criminal underworld, under Article 223(1) of the Criminal Code.
Notably, he was suspected of being a “thief in law” who ran criminal syndicates and participated in the settlement of various private disputes through criminal actions.
In the course of the investigation, a number of relevant witnesses were questioned – the officers of the prisons where Mr A.K. had served his previous prison terms, his family members and other close persons, all of whom confirmed that Mr A.K. had indeed obtained, through the criminal ritual of “baptism”, the title of a “thief in law” in 1999.
Since then he had participated in management of the “thieves’ underworld”, in accordance with the special rules regulating the conduct of members of the criminal underworld.
8. On 31 July 2006 the applicant and another person, Mr Y.A., were arrested on suspicion of being members of the “thieves’ underworld”, an offence punishable under Article 223(1) § 1 of the Criminal Code. When questioned on the same day, the applicant confirmed that he had already known Mr A.K. for thirty years and was aware that he possessed the criminal title of a “thief in law”. The applicant added that a thief in law was, in his opinion, “a righteous man”.
10. By a judgment of 27 March 2007, the Batumi City Court convicted the applicant and Mr Y.A. of being members of the “thieves’ underworld” (Article 223(1) § 1 of the Criminal Code), sentencing them to seven and five years’ imprisonment respectively, whilst Mr A.K. was convicted of being a “thief in law” (Article 223(1) § 2 of the Criminal Code) and sentenced to ten years in prison.
11. The activities imputed to the applicant were described by the court, in general terms, as follows: “Acknowledging and giving recognition to the thieves’ underworld, [the applicant] has publicly expressed his support for it through his own lifestyle, and has been actively involved in achieving the goals of this underworld… by obtaining profits for its members and for other persons, and by terrorising and exercising coercion with respect to ordinary individuals; [the applicant] has disseminated the special rules of the thieves’ underworld through his own actions, and by assisting the thief in law in running this underworld.”
RELEVANT DOMESTIC LAW AND COMPARATIVE STUDY
21. There exist a number of socio-legal studies of the phenomena of “thieves in law” and “thieves’ underworld”. An aggregate summary of the most relevant findings from those studies presents the following picture.
22. The so-called “thieves’ underworld” is considered to be the backbone of the contemporary organised crime structure across the entire post-Soviet territory, including Georgia. This professional criminal underworld has its own recognised leaders, elaborate initiation rituals and a code of conduct. It has a particularly well-organised power structure, a strict system of subordination and control over its (criminal) members, but sometimes also over various different sectors of society.
The history of the Soviet-era institution of “thieves’ underworld” dates back to Imperial Russia.
The traditional structure of a Soviet criminal syndicate, beginning from the time of the 1917 Revolution, was built upon the ideas of hierarchy and strict obedience to the “Thieves’ Code”.
Members of those criminal organisations were at that time fervently anti-communist, and for the most part were required to lead modest, non-materialistic lives. However, as the Soviet era progressed, new types of criminals and criminal structures began to emerge, which were in reality concerned only with accumulating wealth and power.
These individuals broke with the traditional visions of the “thieves’ underworld” and formed new gangs based on purely materialistic interests. It has also been argued that the Soviet State contributed to the dismantlement of the traditional structure of the criminal underworld which in its turn resulted in the elevation of the “thieves in law” to mythical status.
23. “Thieves in law” are the most powerful criminals, who are obeyed by other fellow criminals, and enjoy unchallenged authority and high-ranking status within the criminal underworld in the countries previously forming the Soviet Union. They are the elite of the organised crime underworld, equivalent to the rank of “Godfather” in the Italian Mafia.
The title of “thief in law” is usually conferred upon the criminal by a more senior “thief in law”, through a criminal ritual known as “baptism”. Holders of this title are considered to be guardians of the “Thieves’ Code”.
A “thief in law” would rarely commit a crime himself. One of the most notable features of the control exerted by “thieves in law” is their reputation-based authority in criminal circles.
Thus, physical presence is by no means a determining factor in the power and authority of those criminal bosses. Instead, a well-developed network of communications and a positive public perception of the criminal bosses ensure their influence in the criminal world.
In general terms, “thieves in law” have to fulfil four basic functions in order to maintain effective leadership in the criminal underworld: (1) an informational function (that is, the collection, analysis and evaluation of information on a wide range of topics, including those regarding specific individuals and events); (2) an organisational function (that is, planning of various specific activities and delegation of responsibilities to other members of the criminal underworld); (3) a normative-regulatory function (that is, dissemination of criminal ideology, romanticising of criminal life, recruitment of youth, maintenance of the Thieves’ Code within the criminal community); and (4) a decision-making function (directing and coordinating the activities of other affiliated organised criminal group, such as housebreakers, racketeers, robbers, pickpockets, vehicle hijackers, kidnappers).
Furthermore, one of the most important tasks assumed by a “thief in law” was that of administering the common monetary fund of the criminal underworld, or the “kitty” (obshyak).
It should also be stressed that “thieves in law” had control and authority not only over criminals, but also over sectors of society in general. In the past, they were considered to be respectable social authorities, and were frequently used as dispute resolution facilitators.
They were held up as models for young people, due to their enormous wealth and authority. Indeed, the significance of the affiliations and overlaps between the social and criminal elites has often been noted as one of the most vivid features of the institution of “thieves in law”.
24. All these developments deeply influenced the formation of criminal power structures in Georgian civic society and the prison world, starting in Soviet times. Furthermore, Georgian “thieves in law” were considered to be one of the most powerful and influential ethnic groups among their peers in the criminal elite throughout the Soviet Union (in terms of statistics, Georgian “thieves in law” made up 31.6% of the overall number of criminal bosses, and were the second largest ethnic group after the Russian “thieves in law”, who made up 33.1% of that population).
Decisions by Georgian “thieves in law” traditionally carried particular weight for criminals of similar or lower ranks. In 1985 the Central Committee of the Georgian Communist Party ordered the law-enforcement bodies to crack down on the country’s “thieves in law”. To emphasise the importance of this mission, the Central Committee made it clear that officials failing to carry out the assignment would be treated as lawbreakers themselves and be dealt with accordingly.
By 1986, 52 Georgian “thieves in law” had been arrested. However, the domestic courts imposed the lightest possible sentences. This was partly explained by the absence of a relevant legislative basis for effective prosecution of organised crime (there was no law at the relevant time proscribing the fact of being a criminal boss).
Thus, four “thieves in law” were imprisoned for violating rules on probation, nine for being vagrants and leading other forms of “parasitic lifestyles”, fourteen for illegal possession or storage of firearms and ammunition, and nineteen for drug dealing, and the remaining six “thieves in law” were imprisoned for various illegal activities of a minor nature. In any event, it remained difficult to prevent in any effective way the imprisoned “thieves in law” from plying their trade, since they could easily continue to run the criminal underworld from their prison cells.
THE COURT’S ASSESSMENT
(a) General principles
33. Article 7 § 1 of the Convention goes beyond prohibition of the retrospective application of criminal law to the detriment of the accused. It also sets forth, more generally, the principle that only the law can define a crime and prescribe a penalty. While it prohibits, in particular, extending the scope of existing offences to acts which previously were not criminal offences, it also lays down the principle that the criminal law must not be extensively construed to an accused’s detriment, for instance by analogy. It follows that offences and the relevant penalties must be clearly defined by law.
This requirement is satisfied where the individual can know from the wording of the relevant provision and, if need be, with the assistance of the courts’ interpretation of it, what acts and omissions will make him criminally liable. When speaking of “law”, Article 7 alludes to the very same concept as that to which the Convention refers elsewhere when using that term, a concept which comprises statute law as well as case-law and implies qualitative requirements, including those of accessibility and foreseeability (Cantoni v. France, 15 November 1996, § 29; Coëme and Others v. Belgium, № 32492/96, 32547/96, 32548/96, 33209/96 and 33210/96, § 145; Sud Fondi S.r.l. and Others v. Italy, № 75909/01, §§ 107-108, 20 January 2009).
34. As a consequence of the principle that laws must be of general application, the wording of statutes is not always precise. That means that many laws are inevitably couched in terms which, to a greater or lesser extent are vague, and their interpretation and application depend on practice. Consequently, in any system of law, however clearly drafted a legal provision, including a criminal law provision, may be, there is an inevitable element of judicial interpretation.
There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Whilst certainty is highly desirable, it may bring in its train excessive rigidity and the law must be able to keep pace with changing circumstances. A law may still satisfy the requirement of “foreseeability” where the person concerned has to take appropriate legal advice to assess, to a degree that is reasonable in the circumstances, the consequences which a given action may entail (Achour v. France [GC], № 67335/01, § 54; Huhtamäki v. Finland, № 54468/09, § 44, 6 March 2012).
(b) Application to the present case
35. Returning to the circumstances of the present case, the Court notes that the applicant was convicted of being a member of the “thieves’ underworld” under Article 223(1) of the Criminal Code. Thus, the essence of the dispute between the parties is whether the meaning of that particular offence was clear and foreseeable enough in order for the applicant to regulate his conduct in advance.
36. The Court observes that being a member of the “thieves’ underworld”, an offence proscribed under the first paragraph of Article 223(1) of the Criminal Code, is closely linked to the offence of being a “thief in law”, which is prosecuted under the second paragraph of the same criminal provision; both offences reflect a well-known institution of the organised crime, and were targeted by the wider legislative package adopted by the Georgian Parliament on 20 December 2005 for the purpose of intensifying the fight against criminal syndicates. The Court’s attention has previously been drawn to the functioning of that dangerous criminal community, and its vindictive rules, in the context of the Georgian prison sector (Tsintsabadze v. Georgia, № 35403/06, §§ 61, 66-69, 87-92, 15 February 2011).
Now, in the context of the present case, the findings of several socio-legal studies on the impact of the criminal institution of “thieves’ underworld” on Georgian society at large were explained in detail before the Court.
In consequence, and drawing parallels with the recognised social blight represented by other mafia-type organisations (Raimondo v. Italy, 22 February 1994, § 30), the Court notes the rationale behind the respondent State’s decision to create, on 20 December 2005, a legislative basis in order to combat that criminal activities more effectively.
37. Indeed, the relevant studies showed that the existence and functioning of the “thieves’ underworld” had contaminated not only the prison sector but also the public at large in Georgia, including its most vulnerable members, namely young people, long before the adoption of the anti-criminal legislative package of 20 December 2005.
Having regard to these studies and to the Government’s submissions, the Court observes that this criminal phenomenon was already so deeply rooted in society, and the societal authority of “thieves in law” was so high, that among ordinary members of the public criminal concepts such as “thieves’ underworld”, “a thief in law”, “settlement of disputes using the authority of a thief in law ”, “obshyak”, and so on, were matters of common knowledge and widely understood.
38. Consequently, the Court considers that, by introducing on 20 December 2005 two new offences, namely that of being a member of the “thieves’ underworld” and that of being a “thief in law”, the Georgian legislature merely criminalised concepts and actions relating to a criminal (“thieves’”) subculture, the exact meaning of which were already well known to the public at large. Interestingly enough, the Georgian legislature opted to maintain colloquial language in the legal definition of those offences; in the Court’s view, this was apparently done to ensure that the essence of the newly criminalised offences would be grasped more easily by the general public.
That being the case, the Court is not convinced by the applicant’s attempts to present himself as a person to whom the concepts concerning that criminal subculture were entirely foreign, especially given that he explicitly suggested the contrary in his depositions to the domestic investigation. Thus, the applicant stated that he knew that Mr A.K. possessed the special status of “thief in law” and that, in general, a “thief in law” was, in his opinion, “a righteous person”.
Furthermore, when visiting his imprisoned acquaintance, a candidate for “baptism” as a “thief in law”, the applicant, as well as discussing financial issues relating to management of the common fund of the thieves’ underworld (the kitty, or obshyak), also expressed opinions which clearly confirmed his interest in the fate of the relevant criminal subculture, the “thieves’ underworld”, and his understanding of the special set of rules governing it. Further, when willingly becoming involved in the unofficial adjudication of two private disputes, the applicant did not hesitate to use his own authority as a senior member of the thieves’ underworld, and that of his boss, the titular “thief in law” Mr A.K., as a means of persuasion.
39. Most importantly, the Court observes that the introduction of Article 223(1) to the Criminal Code, which clearly outlawed two separate offences related to the institution of “thieves’ underworld”, was only part of the wider legislative package of 20 December 2005, the aim of which was to intensify the fight against organised crime.
The other major piece of legislation, enacted on the very same date, was the Law on Organised Crime and Racketeering, section 3 of which comprehensively explained to the public the definition of such already colloquial terms as “thieves’ underworld”, “being a member of the thieves’ underworld”, “settlement of disputes using the authority of a thief in law”, “being a thief in law”, and so on.
In consequence, the Court considers that Article 223(1), when read in conjunction with the legal definitions contained in section 3 of the Law on Organised Crime and Racketeering, conveyed for the attention of an ordinary person all the necessary constituent elements of the two criminal offences relating to the functioning of the “thieves’ underworld”.
40. Accordingly, the Court concludes that, after the criminalisation on 20 December 2005 of the offence of being a member of the “thieves’ underworld”, the applicant, if not through common knowledge based on the progressive spread over decades of the subculture of the “thieves’ underworld” over the public at large, then by reference to section 3 of the Law on Organised Crime and Racketeering and, if need be, with the assistance of appropriate legal advice (Del Rio Prada v. Spain [GC], no. 42750/09, § 79), could easily have foreseen which of his actions would have attracted criminal responsibility under Article 223(1) § 1 of the Criminal Code.
41. There has therefore been no violation of Article 7 of the Convention.
Ashlarba v. Georgia, application № 45554/08, judgment 15 July 2014
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