NATSVLISHVILI AND TOGONIDZE v. GEORGIA

THIRD SECTION

DECISION

Application no. 9043/05
Amiran NATSVLISHVILI and Rusudan TOGONIDZE
against Georgia

The European Court of Human Rights (Third Section), sitting on 25 June 2013 as a Chamber composed of:

Josep Casadevall, President,
Alvina Gyulumyan,
Corneliu Bîrsan,
Ján Šikuta,
Nona Tsotsoria,
Kristina Pardalos,
Johannes Silvis, judges,
and Santiago Quesada, Section Registrar,

Having regard to the above application lodged on 9 March 2005,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,

Having deliberated, decides as follows:

THE FACTS

1. Mr Amiran Natsvlishvili (“the first applicant”) and Mrs Rusudan Togonidze (“the second applicant”) are Georgian nationals who were born in 1950 and 1953 respectively. They are represented before the Court by Ms Maka Gioshvili and Ms Manana Kobakhidze, lawyers practising in Tbilisi. The Georgian Government (“the Government”) have successively been represented by their Agents, Mr Mikheil Kekenadze and Mr Davit Tomadze of the Ministry of Justice.

A. The circumstances of the case

2. The facts of the case, as submitted by the parties, may be summarised as follows.

1. Background

3. The applicants are husband and wife.

4. The first applicant was the deputy mayor of Kutaisi, the second largest city of Georgia, from 1993 to 1995 and the managing director of the automobile factory of Kutaisi (“the factory”), a public limited company, from 1995 to 2000. On 29 December 2000 he was appointed chairman of the company’s monitoring committee at the shareholders’ general meeting.

5. The first applicant was the principal shareholder after the State (78.61% of the shares), with 12.95% of the shares purchased in 1998 and 2002. The second applicant held 2.6% of the shares, purchased in 2002, so the couple owned a total of 15.55% of the shares.

6. The first applicant was kidnapped in December 2002. After being severely beaten by his abductors, he was released in exchange for a large ransom paid by his family.

2. Criminal proceedings against the first applicant

7. On 12 March 2004 the first applicant was accused of illegally reducing the share capital of the factory for which he was responsible firstly as managing director and secondly as chairman of the monitoring committee. He was charged with making fictitious sales, transfers and write offs, and spending the proceeds without regard to the company’s interests (Article 182 of the Criminal Code – “abuse of authority by embezzling and misappropriating the property of others”).

8. On 15 March 2004 the prosecutor of Kutaisi, accompanied by members of the media, went to the first applicant’s workplace to arrest him. The arrest was filmed by journalists and broadcasted on local television that same night. The video recording in the case file contains an interview with the Governor of the Region following footage showing the first applicant’s arrest and escort down the stairs, with his arms held by policemen and surrounded by journalists. The Governor declared, among other things, that the State would not stray from the path that it had chosen in pursuit of the identification of those who had misappropriated public monies.

9. On 17 March 2004 the first applicant protested his innocence and exercised his right to silence.

10. On 17 March 2004 the prosecution authority brought an application before the Kutaisi City Court to have the first applicant detained pending trial. The authority argued that the first applicant, who was accused of a crime of a serious nature, might try to evade justice, prevent the discovery of the truth and pursue his criminal activities. Ruling on this request on an unspecified date, the City Court decided to place the first applicant in detention for three months. Applying Article 243 of the Code of Criminal Procedure (“the CCP”), the first applicant challenged that decision before the Kutaisi Regional Court, which dismissed his appeal on an unspecified date. The applicants have failed to submit a copy of either of the above‑mentioned court decisions.

11. On 14 June 2004 the first applicant’s detention pending trial was extended by the Kutaisi Regional Court until 15 July 2004, and in July 2004 it was extended until 15 September 2004. Neither of those decisions has been submitted by the applicants for the Court’s consideration.

12. During the first four months of his detention the first applicant was detained in the same cell as the person charged with his kidnapping in 2002 (see paragraph 6 above) and another person serving a sentence for murder. After the Public Defender’s Office complained of that fact on the ground that it put the applicant’s physical and psychological well-being at risk, the prison authorities transferred the applicant to another cell.

13. On 6 September 2004 the first applicant was indicted on the aforementioned charges. He again protested his innocence.

14. On the same day, 6 September 2004, both applicants transferred their shares free of charge, representing an overall total of 15.55% of the factory share capital, to the State.

15. According to a written statement in the case file from Mr G.T.‑ia, a worker in the factory, on 6 September 2004 he and nine other employees of the factory transferred their shares to the State ex gratia, at the request of the prosecution authority, in connection with the criminal proceedings against the first applicant and in exchange for the latter’s release from detention. The case file contains a copy of the relevant ex gratia agreements dated 6 September 2004.

16. The file also contains a witness statement by Mrs M.I.-dze, the second applicant’s sister-in-law, that the public prosecutor had also demanded that the first applicant’s family pay 50,000 Georgian laris (about 21,000 euros) to the Fund for the Development of State Bodies ensuring the Protection of the Law (“the Development Fund”) in order to conclude a procedural agreement releasing the first applicant from detention. Thus, the public prosecutor had supplied them with the documents necessary for the transfer, adding that the first applicant’s name must not appear as the one paying the money. The public prosecutor insisted that the money not be paid to the Development Fund directly by the applicants. Mrs M.I.-dze therefore agreed to pay the required amount in her own name.

17. As confirmed by the relevant bank transfer receipt, that payment was made on 8 September 2004, with Mrs M.I.-dze’s name duly appearing on the document as the source of the transfer.

18. On the following day, 9 September 2004, the first applicant filed a written statement with the public prosecutor, requesting him to arrange for “a procedural agreement” (hereafter “a plea bargain”), which procedure had been introduced into the Georgian judicial system in February 2004. The applicant specified that, whilst considering himself to be innocent, he was willing to reach an agreement as regards the sentence and to repair the damage caused to the State; he stated that he would pay GEL 35,000 (EUR 14,700) to the State budget in that connection.

19. On the same day the public prosecutor of Kutaisi offered and the first applicant accepted a plea bargain regarding the sentence (Article 679 § 2 of the CCP). The written record of the plea agreement mentioned that, whilst the applicant refused to confess to the charges, he had “actively cooperated with the investigation by voluntarily repairing the damage of GEL 4,201,663 (approximately EUR 1,765,000) caused by his criminal activity by returning 22.5% of the shares in the factory to the State.” The prosecutor further noted that, notwithstanding the fact that the applicant was charged with a particularly serious offence liable to a term of imprisonment of six to twelve years, it was still possible, having due regard to the full compensation of the damage and in the interest of the efficient use of State resources, to offer him a plea bargain. Notably, the prosecutor promised that he would request the trial court to convict the applicant without an examination of the merits, seeking a reduced sentence in the form of a GEL 35,000 (EUR 14,700) fine. It was explained to the applicant that the proposed plea bargain would not exempt him from civil liability. The first applicant stated that he fully understood the content of the bargain and was ready to accept it and that his decision was not the result of any duress, pressure or any kind of undue promise. The record of the plea agreement was duly signed by both the prosecutor and the applicant and his two lawyers.

20. On the same day, 9 September 2004, the public prosecutor filed a brief with the Kutaisi City Court, requesting approval of the aforementioned procedural agreement consisting of no examination of the merits of the case, of finding the first applicant guilty of the charges brought against him and of reducing the sentence to which the offences were liable by fining the accused GEL 35,000 (EUR 14,700). It was mentioned in the prosecutorial brief that it was accompanied by twelve volumes of the criminal case materials.

21. On the same day, 9 September 2004, Mrs M.I.-dze effected a bank transfer whereby the State was paid the fine of GEL 35,000 (EUR 14,700) as per the above-mentioned procedural agreement between the first applicant and the public prosecutor.

22. At an oral hearing on 10 September 2004, the Kutaisi City Court, sitting in a single-judge formation, examined the prosecutor’s request of 9 September 2004. As disclosed by the record of the hearing, the judge explained to the first applicant, who was assisted by one of the two lawyers who had countersigned the plea bargain (see paragraph 19 above), his rights under Article 679-3 of the Code of Criminal Procedure. In reply, the applicant acknowledged that he was well aware of his rights and that he had agreed to the bargain voluntarily, without having being subjected to any kind of undue pressure during the negotiations with the prosecutor. That was confirmed by the lawyer as well. The first applicant and his lawyer then asked the judge to endorse the procedural bargain, as submitted by the prosecutor.

23. Without examining the merits of the case before it and relying solely on the documentary evidence and the testimony of various witnesses acquired during the investigative stage, the Kutaisi Court found that the charges brought against the first applicant were well founded. The court also noted that, charged on 6 September 2004 with crimes under Article 182 § 2 (a), (b) and (c) and 3 (b) of the Criminal Code, the applicant “did not plead guilty and exercised his right to silence. However, having actively cooperated with the investigation, he had voluntarily repaired the damage of GEL 4,201,663 (EUR 1,765,000) caused by his criminal activity by returning 22.5% of the shares in the factory to the State”.

24. The City Court further held that, following the judicial examination, it reached the conclusion that the procedural agreement had been concluded in accordance with the law, that the first applicant had signed it in full knowledge of the facts and that it was not the result of any duress, pressure or any kind of promise which went beyond what was permitted in plea bargaining. The court thus sanctioned the agreement by declaring the first applicant guilty of the charges brought against him and sentencing him to a GEL 35,000 (EUR 14,700) fine. The first applicant was then immediately released from the courtroom.

25. As mentioned in the operative part, the Kutaisi City Court’s decision of 10 September 2004 was final and not subject to an appeal. A request could be made to have the decision quashed and the case reopened though, if newly discovered circumstances justified such a course of action.

26. According to the case file, after the termination of the criminal proceedings and his consequent release from detention, the first applicant left Georgia and has since been residing in Moscow, Russia.

3. The proceedings before the Court

27. After notice of the application had been given to the respondent Government on 21 September 2006 and the parties had exchanged their observations, the applicants informed the Court, on 12 November 2007, that the General Prosecutor’s Office (“the GPO”) was continuing to exert pressure on them, this time with the aim of having their application withdrawn from the Court.

28. In support of that assertion, the applicants submitted a written deposition of their daughter, Ms Ana Natsvlishvili, dated 6 November 2007.

29. According to that testimony, after having been told by her parents that pressure was being brought to bear on them, Ms Natsvlishvili decided to telephone an acquaintance of hers who was working at the GPO. That telephone conversation took place on 1 December 2006, at the time when Ms Natsvlishvili was a student at the Central European University in Budapest, Hungary. Subsequently, Ms Natsvlishvili exchanged several electronic mails with her acquaintance in which the latter, claiming to act on behalf of the Prosecutor General, expressed that authority’s position on the applicants’ case. The case file contains a copy of the relevant e-mail exchange.

30. The applicants also submitted a written deposition of their daughter’s roommate in Budapest, a student from Croatia, also dated 6 November 2007. The roommate confirmed having seen Ms Natsvlishvili having a stressful telephone conversation with the GPO’s representative and having witnessed her subsequent nervous breakdown. According to the roommate’s deposition, the reason for Ms Natsvlishvili’s nervous collapse was the pressure exerted by the Georgian authorities on her parents.

31. The Government commented on 4 January 2008, stating that the GPO had simply been trying to conduct friendly settlement negotiations with the applicants. The Government also added that it was unethical for the applicants to have disclosed the contents of those negotiations, in breach of the confidentiality principle contained in Rule 62 § 2 of the Rules of Court.

B. Relevant domestic law and international documents

1. The Code of Criminal Procedure (CCP)

32. In accordance with Article 593 §§ 1 and 2 of the CCP, a request for the quashing of a final conviction/acquittal could be filed, without any time‑limit, on the basis of newly discovered circumstances. These could arise mainly on the basis of other, unrelated, court decisions which, after becoming operative, established that the evidence on which the conviction/acquittal in question was based had, in reality, been fabricated or unlawfully obtained, or that the court which had convicted/acquitted the defendant had been unlawfully composed or that a judge, a prosecutor or another investigating officer had committed a criminal offence during the proceedings in which the defendant had been convicted/acquitted. Other grounds for a retrial were factual circumstances which, had they been submitted to the domestic courts during the original examination of the case, would have led to a different outcome.

33. The relevant provisions concerning a “procedural agreement” (“საპროცესო შეთანხმება” in Georgian, saprotseso shetankhmeba), or plea bargaining, as introduced into the CCP on 13 February 2004 and amended for the first time on 24 June 2004 and thus applicable at the material time, read as follows:

Article 15

“A procedural agreement may be reached in accordance with the principle of the independence of the judiciary. A procedural agreement contributes to a faster and more efficient justice system.”

Article 679-1

“1. A court may deliver a judgment based on a procedural agreement without examining the merits of the case before it. The procedural agreement is based on an agreement regarding the responsibility of the accused or the sentence. It is a prerogative of the prosecution to propose a procedural agreement.

2. When an agreement is reached regarding sentence, the accused does not plead guilty but reaches an agreement with the prosecutor regarding sentence or lack of sentence and/or agrees to cooperate with the investigation.

3. When an agreement is reached regarding responsibility, the accused pleads guilty and/or cooperates with the investigation.

4. A procedural agreement is concluded with the hierarchically superior prosecutor’s consent.

5. On the basis of the procedural agreement, the prosecutor may request a reduction of sentence for the defendant, or decide to lessen some of the charges brought against him or abandon a number of them on condition that the accused plead guilty on all counts.

6. Before deciding on a reduction of sentence or lessening of charges, the prosecutor must consider (a) the severity of the sentence to which the accused is liable, as well as the seriousness of the illegality of the acts and the guilt of the accused; (b) the use of the State’s resources in the way that most favours the general interest. ...

7. A procedural agreement shall not be reached without the involvement of a defence lawyer and without the prior consent of the accused as to the contents of the agreement.

8. The procedural agreement is reputed null and void if it subsequently emerges that the information and evidence supplied by the accused for the investigation... is not reliable and does not contribute to a real possibility of identifying those responsible. The decision to nullify a procedural agreement is made by a court.

9. In particular cases, in which the cooperation of the accused in an investigation has led to the discovery of a particularly serious crime or the criminal activity of a public official, and where the accused has directly assisted in making an investigation feasible, the public prosecutor may ask the court for the accused to be acquitted of criminal responsibility. [...]

11. When concluding the procedural agreement the prosecutor must inform the accused that the agreement does not clear him of civil liability. In special circumstances, the public prosecutor or deputy public prosecutor may, by a reasoned decision, clear the accused of civil liability. In these circumstances, liability will fall on the State.”

Article 679-2 §§ 2, 3 and 4

“2. It must be confirmed, in a written declaration signed by the accused or his legal representative and his lawyer, that, having benefited from legal advice, the accused gave his consent freely to the judicial ruling without examination of the merits of his case. The accused must fully understand the contents of the brief that the prosecutor will submit to the court, as well as the legal consequences of the decision that may be delivered.

3. Once the accused and the prosecutor have reached a procedural agreement, the prosecutor must compose a brief in which he sets out the contents of the agreement. The brief is then signed by the prosecutor, the accused’s lawyer and the accused.

4. The content of the brief referred to in paragraph 3 of the present Article is confidential and can only be consulted by the signatories and the court.”

Article 679-3

“1. The procedural agreement must be in written form and must be approved by a court during a public hearing, unless compelling reasons call for a hearing in camera. The court’s decision must reflect the procedural agreement. The court must ensure that the agreement was reached without violence and intimidation and without deception or illegal promises. The court must also ensure that the accused consented freely and was in a position to receive qualified legal assistance.

2. Before approving a procedural agreement, the court must ensure that

(a) the accused fully understands the nature of the crime with which he is charged;

(b) the accused fully understands the sentence liable to be incurred for the crime to which he admits;

(c) the accused is aware of all the legal requirements relating to an admission of guilt in the context of a procedural agreement;

(d) the accused fully understands that the court is under no obligation to accept a brief by the prosecution which, based on the procedural agreement, recommends the mitigation or absolute discharge of the sentence;

(e) the accused understands that he has the following constitutional rights:

- the right to a defence;

- the right to refuse to enter into the agreement stating his admission of guilt;

- the right to have the merits of his case examined.

(f) the procedural agreement is not the result of duress, intimidation or a promise which goes beyond what is permitted in such an agreement;

(g) the accused does not contest the facts on which the agreement containing his admission of guilt is based.

3. The court shall make its decision in accordance with the law and is under no obligation to sanction the agreement between the accused and the prosecutor.”

Article 679-4 §§ 1, 3, 4, 5, 6 and 7

“1. In situations envisaged in the previous Chapter, the court may deliver either a judgment [endorsing the plea bargain] without an examination on the merits or a decision remitting the case to the prosecutor for indictment.

3. The court must ensure, on the basis of the case file, that the charge is well founded, that the sentence proposed in the brief is fair and that the accused has freely pleaded guilty.

4. If the court agrees with the prosecutor’s factual and legal assessment of the case and considers that the recommended sentence is fair, it delivers a judgment within one month following receipt of the relevant brief of the prosecutor [...].

5. If the court finds that that the submitted evidence does not substantiate the charge or that the procedural agreement has been reached in breach of Article 679-1, it will remit the case to the prosecutor for indictment.

6. If the court considers that the sentence recommended by the prosecutor is too severe, it has the power to reduce it.

7. The accused has the right to refuse to enter into a procedural agreement which is based upon his admission of guilt at any point during the judicial proceedings before the court gives its ruling. This refusal does not have to have been agreed with his lawyer. Once the court has ruled, it is no longer possible to refuse to be bound by the procedural agreement.”

Article 679-7 §§ 2 and 3

“2. No appeal lies against the judgment [envisaged in the previous Articles], which becomes enforceable upon delivery.

3. The judgment may be revised in accordance with the usual rules regarding new circumstances of fact or law.”

34. Following an amendment of 25 March 2005 to the CCP, the filing of a request with a court to have the proceedings terminated by a plea bargain was no longer the prosecutor’s prerogative. Such a request could also be filed by the accused (Article 679-1 § 1). Furthermore, the content of the prosecutor’s brief was no longer confidential (Article 679-2 § 4), barring the section containing the information that the accused had given during the investigation. The same amendment made it compulsory to have the hearing in which the court approved the procedural agreement recorded verbatim in the record of the proceedings (Article 679-3 § 4).

35. Furthermore, the amendment of 25 March 2005 made it compulsory for the court, when considering the lawfully filed plea bargain, to explain to the defendant that, should he raise a complaint about having been subjected to undue treatment by the prosecution during the preceding negotiations, such a complaint would not hinder the approval of the bargain (Article 679‑3 § 2(1)).

36. Moreover, whilst before 25 March 2005 Article 679-6 had only provided for the possibility of an appeal against a judgment declaring the procedural agreement null and void, the amendment in question gave the accused the possibility of lodging an appeal with the higher court against the approval of the agreement within fifteen days of the ruling if

“(a) the procedural agreement was concluded using deception;

(b) the defence rights of the accused were restricted;

(c) the procedural agreement was concluded by violence, force, threats or intimidation;

(d) the court dealing with the case neglected its duties as laid out [in the above Articles].”

37. The amendment in question did not, however, specify whether and under what circumstances an appeal could lie, on the aforementioned grounds, against decisions prior to 25 March 2005.

2. Council of Europe

(a) Honouring of Obligations and Commitments by Georgia, Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee), 21 December 2005

38. The relevant excerpts from the above-mentioned Report of the Monitoring Committee read as follows:

“44. The co-rapporteurs also have some reservations about the growing tendency to transplant foreign, usually non-European legal models into Georgia’s domestic judicial system. This, for example is the case with the recent law on plea bargaining, which tries to imitate the United States legal practice, and to which the co-rapporteurs wish to return in the paragraph on the fight against corruption. [...]

47. While it is clear that the authorities must take into account the public demands for immediate and decisive action in the most notorious cases of alleged corruption, the co-rapporteurs insist that popular expectations cannot justify violations of the rights of suspects and the failure to respect the basic principles of due criminal procedure. Arrests of some former officials accused of corruption were carried out in spectacular circumstances, often without warrants even in cases where there was no indication that suspects had the intention to flee. Human rights organisations reported several cases of excessive force, some arrests were filmed and images – degrading to the suspects’ human dignity – were widely broadcasted on several television channels. The respect for the principle of the presumption of innocence for some categories of suspects has yet to take hold in the new Georgia.

48. The “plea bargaining” system, which makes it possible for some suspects to have their charges reduced or dropped in return for the payment of the money they have allegedly embezzled, is, to say the least, controversial. While plea bargaining is broadly used in the United States as well as in some Council of Europe member states, it usually relates to agreements by which accused persons agree to plead guilty (denounce other culprits, etc.) in return for a lesser charge. The Georgian plea bargaining goes a step further and introduces a financial component into the quotation – the accused are asked to repay a certain sum, which is an approximation of what they have allegedly stolen. In return the prosecutor agrees to reduce or drop the charges. The deal must finally be approved by a judge.

49. The co-rapporteurs consider that the specificities of the Georgian version of the plea-bargaining system, especially the introduction of the financial component and the seemingly arbitrary way in which it is applied to some cases and not to others, make this practice incompatible with Council of Europe standards. The system may not only create an impression that big thieves are allowed to buy an immunity from justice, but is also worrisome because the lack of legal and administrative checks and balances in the Georgian police, prosecutor services and courts create a risk of abuse. The co‑rapporteurs understand that the money obtained through “plea bargaining” (some 30 million USD so far) is very important and has helped to pay for pensions and other immediate needs, but they disagree with the notion suggested by the Prosecutor General that the efficiency of justice can be measured against the budgetary income it helps to generate. After years of a widespread corruption and systematic disregard for the rule of law Georgia needs justice which is efficient and equal for all.

50. Consequently, the rapporteurs call on the Georgian authorities to immediately and substantially review the present plea-bargaining procedure, in order to bring it in line with Council of Europe standards.”

(b) Resolution 1415 (2005) of the Parliamentary Assembly of the Council of Europe

39. On 24 January 2006 the Parliamentary Assembly of the Council of Europe, after having examined the above-mentioned Report of the Monitoring Committee, adopted Resolution 1415 (2005), the relevant excerpts from which read as follows:

“9. The Assembly, after having consulted the Georgian authorities, [...] asks Georgia to: [...]

Critically review the present practice of the ‘plea-bargaining’ system which – in its present form – on the one hand allows some alleged offenders to use the proceeds of their crimes to buy their way out of prison and, on the other, risks being applied arbitrarily, abusively and even for political reasons; ...”

(c) Implementation of Resolution 1415 (2005) on the honouring of obligations and commitments by Georgia, Report of the Monitoring Committee, 5 January 2006

40. On 5 January 2006 the Monitoring Committee commented on the implementation of Resolution of 1415 (2005), in so far as plea bargaining was concerned, as follows:

“107. In our previous report we expressed certain doubts about the application of the plea-bargaining system, [...]. The authorities have assured us that the system would be improved through the introduction of an appeal procedure. According to information provided by the office of the Prosecutor General, draft amendments to the CCP under consideration by Parliament provide that the plea agreement can only be accepted after the court has ascertained that there has been no torture, inhumane or degrading treatment. The accused has the right to request criminal proceedings against the relevant person(s) in case of such treatment.”

(d) Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Georgia from 18 to 20 April 2011

41. The relevant parts of the Report issued by the Commissioner for Human Rights on 30 June 2011, which concerned the plea-bargaining system in Georgia, read as follows:

“Plea-bargaining agreements

63. The Commissioner devoted special attention to the issue of plea-bargaining and its application in criminal cases.

64. Plea-bargaining now pervades the operation of criminal justice in Georgia. Its application has witnessed a steep increase since its introduction in 2004. The Chairman of the Supreme Court informed the Commissioner that in 2010 plea agreements were applied in around 80% of all criminal cases.

65. Indisputably, plea-bargaining has been a successful tool in combating corruption and organised crime. It also offers the important benefit of speedy adjudication of criminal cases, alleviating the workload of courts, prosecutors and lawyers. Further, it contributes to the reduction of sentences and as a result to the number of prisoners, which is crucial in the context of the high rate of prison overcrowding in Georgia.

66. The current plea-bargaining model, anchored in the new CPC, implies pleading guilty or agreement with the prosecutor on sentence (nolo contendere plea). It can be initiated either by the defendant or by the prosecutor.

67. A defence lawyer is mandatory in the context of plea-bargaining; however, the role of the lawyers in this process is limited. According to the information obtained by the Commissioner, most defendants are virtually certain that they will be sentenced, and lawyers, instead of working towards their clients’ acquittal, advise them to plea‑bargain with the prosecutor to reduce the sentence to a minimum. This attitude is particularly common for violations that foresee imprisonment as a punishment. However, the Deputy Minister of Justice pointed out that the new Code of Criminal Procedure provisions which provide enhanced rights for the defence will also positively affect the defence’s position in the context of the plea agreement.

68. One concern of the Commissioner relates to the discretionary powers of the prosecutor during the negotiation of the plea agreement. For instance, the prosecutor can now ask for sentences even below the minimum sentence provided in the law, a competence many believe should rest with the judge. In addition, the law does not define the required degree of cooperation of a defendant with the prosecution, which leads to subjectivity and inconsistency of practice.

69. A plea agreement is approved by court decision. In the course of the review of the agreement by the court, the judge should make sure that the plea agreement is not concluded upon coercion and intimidation and should examine the evidence supporting the charges. The authorities assert that judicial oversight of the plea agreements is an important safeguard, stressing that the court can refuse to approve an agreement if charges are unsubstantiated or a violation is observed. However, lawyers maintain that in practice, the judge relies essentially on the evidence that the prosecutor presents when examining the terms of the agreement, and in the overwhelming majority of cases the judge agrees with the demands of the prosecutor.

70. One of the peculiarities of the Georgian plea-bargaining system relates to Article 42 of the Criminal Code, which provides that fines can be imposed in the context of plea agreements even for violations of the Criminal Code for which this form of punishment is not foreseen. According to Transparency International Georgia, in practice fines are paid in 99% of the cases, a figure which is disputed by the authorities. The process lacks transparency, due to the absence of clear criteria for determining fines. Human rights defenders in Tbilisi alleged that this is done based on an assessment of the defendant’s ability to pay; this has led to a perception that freedom can be bought.

71. Although the implementation of plea-bargaining in practice has given rise to concerns, the authorities maintain that sufficient safeguards exist in the system. The Deputy Minister of Justice did, however, acknowledge the need to increase transparency of the system and improve perceptions.

72. The law also provides for a full release from sentence in exceptional cases where there is effective cooperation with the investigation. While this possibility may certainly help in resolving criminal cases, instances of abuse have been reported in this context. ...

73. Concerns have also been raised that the system of plea-bargaining might make defendants more reluctant to complain against ill-treatment or excessive use of force by police, if this has been the case. The authorities have in the past acknowledged the problem and have introduced safeguards. However, the problem may lie not with the existence of system of plea-bargaining per se but rather, as already noted, the context in which it is being operated. In view of an almost certain conviction, for many defendants plea-bargaining is the only alternative to get a lighter sentence, and a defendant is less likely to bring a justified complaint of ill-treatment if there is a perceived risk that this could undermine the chance to conclude an agreement with the prosecutor.

Conclusions and recommendations

74. The functioning of the plea-bargaining system cannot and should not be seen as separate from the operation of the entire criminal justice system. The combination of several factors – very high conviction rates, a stringent sentencing policy and the low public trust in the administration in the justice system – may very well influence defendants to plead guilty even if innocent, leading to a distortion of justice.

75. It is important to bear in mind that when consenting to a guilty plea, a defendant waives a number of rights, including the right to give testimony and the right to trial. The Commissioner notes that while safeguards may be provided in the legislation, their implementation in practice has been subject to criticism. Judges should exercise adequate control over plea-bargaining agreements and see to it that these safeguards are fully implemented in practice. The Commissioner is also concerned with the very limited role that the defence plays in the negotiation of a plea agreement.

76. It is essential that the defendant’s plea must always be made voluntarily and free from any improper pressure. To this end, the system further needs the development of objective standards for the negotiations between the defence and the prosecutor, including a clearer definition of the concept “cooperation with the investigation”, as well as clear criteria for determining the amount of fines imposed upon the defendant.

77. Finally, there is an urgent need for concrete steps to increase the transparency of the system. The Commissioner supports the efforts of the authorities in this regard and encourages them to adopt an inclusive approach by consulting with all relevant groups, including human right defenders and lawyers.”

3. Transparency International

42. In February 2010, Transparency International Georgia (TI Georgia), a national chapter of the above-mentioned international non-governmental organisation, issued its first analytical report on the plea-bargaining system in Georgia – Plea Bargaining in Georgia.

43. After having set out the procedure, the State’s rationale for the introduction of plea bargaining into its legal system, the facts concerning its use (according to the official statistical data, in 2005 the number of criminal cases terminated by plea bargaining constituted 12.7%), the report analysed the risks that the unique Georgian model of plea bargaining posed to the right to a fair trial.

44. Accordingly, some of the relevant excerpts from the latter part of the report read as follows (all the statistics mentioned in the report were official, obtained by TI Georgia either from the Supreme Court of Georgia or the GPO):

“[...] The statistics show that plea bargains, once agreed upon between defendant and prosecutor, are almost always upheld.

In theory, the presiding judge is meant to ensure that the plea bargain was not attained as a result of undue pressure on the defendant and that the deal was made voluntarily. The judge must also ensure that the defendant’s core rights (such as that of assistance by a defence attorney) were not violated. In practice, only eight plea bargains were denied by Georgian judges in 2008 out of a total that year of 8,770, a rate of less than 0.1%. Judges are also meant to ascertain that there is a prima facie case. In other words, the judge must be satisfied that the evidence provided by the prosecutor would be considered sufficient to warrant a full trial. The difference being that, in a plea bargain, the evidence is not questioned by the defendant.

The lawyers interviewed by TI Georgia all doubted that judges reviewed the prima facie case ‘in anything but the most procedural manner’. One example of judges allegedly failing to look into the case properly is that of Natsvlishvili and Togonidze vs. Georgia, where the defendant said that the prosecutor only agreed to enter into a plea bargain after he transferred shares in a car manufacturing plant to the government and paid GEL 50,000 ‘of his own free will’. The court then upheld a plea bargain, based on an official fine of GEL 35,000, which did not include the ‘presents’ paid beforehand, without even looking into the suspicious payments. [...]

An Omniscient Prosecutor?

If you’re charged for a crime in Georgia, you can be pretty sure that you’ll be found guilty. Conviction rates are sky high. Of the 17,639 criminal cases filed at Georgian courts during 2008, only seven ended in an acquittal and 111 more were terminated before a verdict was reached. That makes for a 99% conviction rate, which opponents of plea bargaining say is a direct result of the loss of judicial independence caused by the practice. Prosecutors say that the high conviction rate is the result of ‘hard work’ and “careful prosecution” and is evidence of the system working well.

 Deputy chief justice of the Supreme Court, Zaza Meishvili, argues that the conviction rate is nothing out of the ordinary when compared to the USA, where 90‑95% of criminal cases end in a plea bargain and therefore a guilty verdict.

The difference however, is that a very high proportion of non-plea-bargaining cases in Georgia also end in conviction. Most countries have conviction rates far lower than Georgia’s. For example, amongst OECD countries, only Japan’s 99.7% conviction rate exceeds Georgia’s. [...]

While the proportion of acquittals has dropped since plea bargaining started in 2004, the numbers were so low before that it hasn’t made much difference. We have come from a 97% conviction rate in 2003 to a 99% conviction rate in 2009. In fact, in 2005, the year plea bargaining graduated from being an anti-corruption measure to being widespread practice in ordinary criminal cases, the number of acquittals and terminated cases almost doubled and the conviction rate came down to 94%; the lowest on record.

The explanation for high conviction rates has less to do with plea bargaining and more to do with Georgia’s Soviet legal legacy, a system in which confession was king. As one academic put it: ‘the most powerful person in the Soviet model of criminal justice was, and largely remains, the prosecutor. He or she was responsible for directing the entire criminal proceeding, and thought little of using coerced confessions, falsified evidence or pre-trial detention as a method of inducing a confession’.

Deputy Chief Justice of the Supreme Court Zaza Meishvili reaffirmed the high incidence of confessions to TI Georgia, saying the ‘vast majority’ of plea bargains involved a defendant’s confession.

No Choice but to Bargain

But while we cannot blame plea bargaining for overtly high conviction rates, the overwhelming statistical likelihood of conviction has another very negative effect. The essence of plea bargaining dictates that it should be just that, a bargaining process with the defendant trying to extract the lightest possible sentence from the prosecutor. This is possible only when the defendant has sufficient leverage to make such a deal worth the prosecutor’s while. In other words, the prosecutor knows that if he doesn’t agree to the defendant’s terms, he will have to go through a lengthy legal process, perhaps through three levels of courts. When you have conviction rates approaching 100%, this leverage is much weakened, allowing prosecutors to dictate the terms and leaving defendants with ‘take it or leave it’ offers.

In systems with high conviction rates, plea bargaining doesn’t work. When even innocent defendants feel pressure to “admit guilt” because the statistical likelihood of an acquittal is so low, the power is left in the hands of the prosecutors. Thus, unless Georgia’s conviction rate comes down to something more realistic, plea bargaining as an institution cannot work effectively.

Conclusions and Recommendations

Plea bargaining is neither the wonderful success that the government says it is, nor is it the unmitigated disaster that its opponents allege. The fact is that plea bargaining, while important, does not change the main problem, which is that Georgia’s courts are not yet independent enough and that the working culture is not yet developed enough to produce a fair system.

Georgia has a dilemma. On the one hand, it suffers from prisons bursting at the seams and a shortage of judges, but it also has a legal system that has not developed sufficiently for plea bargaining to work properly.

Georgia is a country where the Soviet style presumption of guilt has not been fully replaced by a universal presumption of innocence. Astronomically high conviction rates and the predominance of the confession as evidence attest to this. The introduction of a fair system of plea bargaining into such a system is very difficult. However, plea bargaining has arguably not made matters much worse than before: if we do not have fair trials now, we certainly didn’t have them before the introduction of plea bargaining either.

Therefore, in the circumstances, the government’s introduction of plea bargaining was justified, at least in the very short term, to avoid a complete overload of the penitentiary system and the courts. But five years after its introduction, it is time for the government to make some difficult choices. It must transform the system and ensure public trust in the courts rises to a level where entering into a plea bargain is a choice rather than a necessity. [...]”

45. In its second report on the Georgian plea-bargaining model – Plea Bargaining in Georgia: Negotiated Justice – issued on 15 December 2010, the TI Georgia mostly reiterated its previous findings, summarising its concerns about the fairness of the system in the following manner:

“However, if we talk about the fairness of the plea bargaining system, the situation is much more complicated. Under the present circumstances, the prosecutor is more powerful than the judge and the defendant must choose between plea bargaining or trial where he risks the full severity of the law, without much chance of being found innocent. It is therefore hard to talk about the fairness of the system. When speaking about the power of the prosecutor, we refer to the broad authority that allows the prosecutor to offer and agree to a plea bargain agreement and its specific terms at his or her own discretion. Lack of transparency regarding the calculation of the required fine and the amount of imposed and collected fines leads to widespread suspicion towards prosecutors and plea bargaining in general.”

46. According to the official statistics, obtained by the TI Georgia from the Supreme Court of Georgia and quoted in its two above-mentioned reports, the rate of acquittals in Georgia represented 0.4% in 2004, 0.7% in 2005, 0.2% in 2006 and remained at 0.1% between 2007 and 2009.

COMPLAINTS

47. Under Article 3 of the Convention, the first applicant complained that during the first four months of his detention he had been detained in the same cell as the person charged with his kidnapping, as well as another person serving a sentence for murder, in order to put him under pressure. The applicant also claimed that he had not been provided with adequate medical care during his detention.

48. Relying on Article 5 §§ 1 and 3 of the Convention, the first applicant complained that the court decisions of March 2004 ordering his pre-trial detention for an initial period of three months lacked sufficient reasoning. Invoking Articles 5 § 4 and 13 of the Convention, the applicant claimed that no appeal lay against the court decisions, delivered in June and July 2004, extending his initial period of detention and that, in general, the relevant domestic law did not provide for a possibility to have the legality of pre-trial detention examined at regular intervals.

49. Relying on Article 6 §§ 1 and 3 (a) and (b) of the Convention, the first applicant complained that the plea-bargaining procedure, as envisaged by the domestic law at the material time and applied in his case, had been an abuse of process and unfair and represented a total negation of the right to a fair trial. He claimed that he had not freely chosen to accept that bargain because he knew that his refusal to do so would have resulted in his continued detention in unbearable conditions.

50. The first applicant also complained that his public arrest, covered by the media, who had been there at the prosecutor’s invitation, and the Regional Governor’s interview on 15 March 2004 had breached his right under Article 6 § 2 of the Convention.

51. Relying on Article 2 of Protocol No. 7, the first applicant also complained of the inability to lodge an appeal against the decision of 10 September 2004 which approved the plea bargain and declared him guilty.

52. Subsequent to the communication of the application, both applicants complained, under Article 34 of the Convention, that the respondent State, acting through the GPO, had requested them to withdraw their application to the Court, on pain of unilaterally annulling the plea bargain between the first applicant and the prosecution and reopening criminal proceedings against him.

53. Relying on Article 1 of Protocol No. 1, both applicants complained that they had been victims of racketeering on the part of the State, which had extorted all their shares (15.55%) and coerced them to pay GEL 50,000 (EUR 21,000) unofficially to the Development Fund and GEL 35,000 (EUR 14,700) as an official fine in exchange for the first applicant’s freedom.

THE LAW

A. As regards the first applicant’s complaints under Article 6 §§ 1 and 3 of the Convention and Article 2 of Protocol No. 7 concerning the plea bargaining

54. The first applicant complained that the plea-bargaining procedure, as it had been applied in his case, had been an abuse of process and that no appeal to a higher court lay against the judicial endorsement of that arbitrary procedural agreement. He relied on Article 6 §§ 1, 3 (a) and (b) of the Convention and Article 2 of Protocol No. 7. These provisions read, in their relevant parts, as follows:

Article 6

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law. ...

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence; ...”

Article 2 of Protocol No. 7

“1. Everyone convicted of a criminal offence by a tribunal shall have the right to have his conviction or sentence reviewed by a higher tribunal. The exercise of this right, including the grounds on which it may be exercised, shall be governed by law.”

1. The Government’s arguments

55. The Government argued that, since the first applicant had never requested the quashing of the final decision of 10 September 2004 on the basis of newly discovered circumstances under Article 593 §§ 1 and 2 of the CCP, he had not exhausted the available domestic remedy. The same non‑exhaustion rationale applied to his failure to lodge an appeal against the above-mentioned decision after the amendment of 25 March 2005 to Article 679-6 of the CCP had entered into force. Admittedly, that amendment stipulated that an appeal could be filed within fifteen days following the delivery of a first-instance court’s decision approving the plea bargain. However, the Government argued, in the applicant’s particular situation that time-limit limit had started to run not from the delivery of the contested decision of 10 September 2004 but from the time the amendment of 25 March 2005 had entered into force.

56. The Government further submitted that if the first applicant had been coerced by the prosecution to accept the plea bargain he should have complained of that coercion before the Kutaisi City Court on 10 September 2004. As he had not done so, his application represented, according to the Government, an abuse of the right of petition within the meaning of Article 35 § 3 of the Convention. The Government also stated that the complaint about the arbitrariness of the plea-bargaining procedure in the first applicant’s criminal case was unsubstantiated and manifestly ill‑founded for the following reasons.

57. The Government claimed that, in general, the Georgian model of plea bargaining, as it had been applied in the first applicant’s case, was fully compatible with Article 6 § 1 of the Convention. In support of that argument, they referred to the fact that the final decision approving the plea bargain between the applicant and the prosecution had belonged to an independent and impartial tribunal. Of further importance was the fact that that tribunal, the Kutaisi City Court, had not only examined the well‑foundedness of the charges on the basis of the criminal case materials but also duly ascertained from the first applicant whether he could be deemed to have been subjected to any kind of coercion during the plea‑bargaining negotiations with the prosecutor. In addition, despite undergoing a shortened and expedited form of trial, the first applicant had still benefited from all the fair trial rights, such as the right to remain silent and not to incriminate himself, to have his presumption of innocence respected, to be assisted by legal counsel during the plea-bargaining procedure, to have the evidence in the file examined by the court in full, etc.

58. The Government stressed that the Kutaisi City Court had been fully able to verify whether the guarantees of due process had been respected by the parties during the plea-bargaining negotiations, given that the court had had before it the complete file: the first applicant’s statement of 9 September 2004 expressing his willingness to conclude a plea bargain, the agreement itself, signed by both the applicant and his lawyer and the public prosecutor, and the prosecutor’s request for the court to approve that agreement. Furthermore, as confirmed by the record of the relevant hearing, the City Court had duly questioned the applicant, who had unambiguously maintained his interest in terminating the proceedings by means of the plea bargain. The same had been confirmed by his lawyer. In other words, the court had done everything possible to ensure that the applicant had entered into the plea bargain freely and had fully understood the legal consequences of his decision. Otherwise, the City Court would have rejected the bargain, as it had power to do by virtue of the relevant domestic law applicable at the material time.

59. The Government further argued that the first applicant had been legally able to reject the plea bargain during the relevant hearing before the Kutaisi City Court. Admittedly, the actual wording of Article 679-4 § 7 of the CCP, as that provision stood at the material time, stated that the right to reject the plea bargain related to the charges, which was distinguishable from the applicant’s agreement on the sentence. However, that defective wording was just a technical omission on behalf of the legislator, which had subsequently been corrected.

60. The Government further submitted that, even if the plea bargain, as such, was protected by the confidentiality clause (Article 679-2 § 4 of the CCP), which was conditioned by a number of legitimate considerations, the hearing on 10 September 2004 had been open to the public. In support of that contention, the Government submitted written depositions of the first applicant’s lawyer, the prosecutor and the member of the Registry of the Kutaisi City Court, dated 10 and 11 July 2007, all of whom had attended the hearing in question. Those witnesses confirmed that the hearing had been public and that the court administration had not prevented any interested person from entering the courtroom.

61. Lastly, the Government also commented on the reparation by the applicant of the damage of GEL 4,201,663 (EUR 1,760,000), which had been caused by his criminal activity, by having returned 22.5% of the shares in the factory to the State. Thus, they stated that the return of those shares had been the major precondition for reaching the plea bargain with the prosecution, which, from the legal point of view, could be qualified as a form of “cooperation with the investigation”, within the meaning of Article 679‑1 § 2 in fine of the CCP. The Government acknowledged that the number of the returned shares exceeded what had actually been owned by the first and second applicants together (15.55 % of the factory’s share capital) but stated that that issue went beyond the State’s responsibility and represented the applicants’ own concern. What mattered for the GPO was to retrieve the lost assets in their entirety; whether the applicants had repaired the loss from using their own assets or with financial assistance from their friends and/or colleagues was totally irrelevant.

2. The first applicant’s arguments

62. In reply to the Government’s objection of non-exhaustion, the first applicant maintained that, pursuant to Article 679-7 of the CCP as it stood at the material time, the court decision of 10 September 2004 approving his plea bargain with the prosecution was final and immediately enforceable. No ordinary appeal lay against it. As to the possibility of requesting the quashing of his conviction and requesting a re-trial on the basis of newly discovered circumstances, the applicant submitted that he simply could not use that extraordinary remedy as no such “newly discovered circumstances” had existed in his particular situation.

63. The first applicant further maintained that the termination of the criminal proceedings against him by the plea bargain had amounted to a breach of Article 6 § 1 of the Convention, in so far as the charges against him had been determined without an examination on the merits. Not one single measure of judicial investigation, such as the examination of witnesses or discussion of evidence with the adversarial participation of parties, had been conducted. In other words, the applicant’s guilt had been established without a trial. The Kutaisi City Court had endorsed the plea bargain in a single day whereas it was objectively impossible to study the case materials in such a short period. The first applicant complained that his guilt and punishment had, in reality, been established by the prosecutor and that the domestic court had formally endorsed the prosecutor’s findings without carrying out its own judicial inquiry. Since only the prosecutor, and not the defendant, was entitled to apply to the court with a plea bargain request at the material time, that unilateral prosecutorial privilege had also tainted the requisite principle of the equality of arms.

64. The first applicant also complained that the domestic court’s powers in the plea-bargaining procedure had not represented a sufficient system of checks and balances of the possible abuses of power committed by the prosecutor during the preceding negotiations. The domestic court could only review the plea agreement as such but was unable to enquire as to how the relevant negotiations had been conducted and whether any abuses had been committed during those negotiations. Thus, even though the court had asked the first applicant, during the relevant hearing, whether he had been subjected to any form of pressure during the preceding negotiations, that enquiry was not an effective check, as it was clear that the applicant, who had been detained at that time under the control of the executive authority, had not dared to confide in the court about the existence of such pressure. In fact, he, a close ally of ex-President Shevardnadze, knew that the chances he, a political and ideological opponent to the newly arrived President Saakashvili, had of receiving a fair trial in a country where the judiciary lacked institutional guarantees of independence and was vulnerable to political pressure from the executive branch were minimal. Consequently, the only real possibility for him to avoid lengthy imprisonment was the conclusion of a plea bargain; he had had no other choice, if he wanted to get out of prison, but to accept the conditions singlehandedly imposed by the public prosecutor. The first applicant emphasised in that connection that, at the time of accepting the plea bargain, he had been detained in particularly intolerable and highly stressful conditions, sharing a cell with a murderer as well as with a person who had kidnapped him in December 2002.

65. The first applicant stated that the fact that he and his wife, together with his former employees from the factory, had transferred their shares in the factory to the State free of charge and also undertaken to pay GEL 35,000 (14,700), as an official fine, and an additional sum of GEL 50,000 (21,000), the latter amount having been unofficially extorted by the prosecution authority, further proved that he had been subjected to coercion. The applicant emphasised that the transfer of the shares and the payments had taken place on 6, 8 and 9 September 2004, that is, prior to the approval of the plea bargain by the Kutaisi City Court on 10 September 2004. In other words, if he had refused to accept the proposed plea bargain before the Kutaisi City Court on 10 September 2004, that would have only led to the continued deprivation of his liberty, in addition to the loss of all the previously transferred assets, without receiving anything in exchange.

66. In any event, the first applicant continued, it was highly unlikely that he had had a right to renounce the plea bargain before the Kutaisi City Court, given that Article 679-4 § 7 of the CCP, as that provision had stood at the material time, envisaged such a possibility only with respect to the procedural agreement on guilt, not on sentence. Nor had he been able to lodge an appeal against the City Court’s decision of 10 September 2004 convicting him on the basis of the impugned bargain. In other words, the relevant criminal procedural legislation had not provided him with any legal avenue through which to contest the coercion applied to him during the plea-bargaining negotiations. He also asserted that even if the hearing of 10 September 2004 had formally been open to the public, his supporters and independent journalists had not been allowed to enter the courtroom. In support of that assertion, the first applicant submitted written depositions of three persons – two journalists and a relative – who confirmed that they had indeed been prevented from entering the courtroom on that day.

67. Referring to the relevant facts of the case which had taken place after the communication of the application, the first applicant also submitted that the respondent State’s continuous attempts to put pressure on him, this time with the aim of having his application withdrawn from the Court, was vividly telling of the extent of coercion to which he had been subjected during his detention, that is, when he had been under the domestic authorities’ exclusive control.

3. The Court’s assessment

68. The Court notes, at the outset, that the essence of the first applicant’s complaint is the compatibility of the plea-bargaining procedure, as it was applied in his particular case, with Article 6 § 1 of the Convention.

69. Whilst the impugned plea bargain, approved by the Kutaisi City Court’s final decision of 10 September 2004, represented an abridged form of the determination of the charges against the first applicant, that summary procedure attracted the applicability of the criminal limb of Article 6 § 1 of the Convention, given that the applicant was consequently convicted of the financial offences tried in the Criminal Court (see, amongst many other authorities, Engel and Others v. the Netherlands, 8 June 1976, § 82, Series A no. 22, and Galstyan v. Armenia, no. 26986/03, § 56, 15 November 2007). Consequently, Article 2 of Protocol No. 7 is also applicable to the proceedings in question (see, for example, Zaicevs v. Latvia, no. 65022/01, § 53, ECHR 2007‑IX (extracts)).

70. The Court further observes that, pursuant to Article 679-7 of the CCP, as it stood at the material time, no ordinary appeal lay against the Kutaisi City Court’s decision of 10 September 2004 definitively approving the plea bargain between the first applicant and the prosecutor. That fact was duly brought to the first applicant’s attention in the operative part of that decision. As to the Government’s suggestion that the applicant should have requested the quashing of that final decision on the basis of newly discovered circumstances under Article 593 §§ 1 and 2 of the CCP, the Court refers to its extensive case-law on the matter to the effect that an application for the quashing of a final decision and a retrial or similar extraordinary remedies cannot, as a general rule, be taken into account for the purpose of applying Article 35 of the Convention either in criminal or civil cases (see, amongst many others, Berdzenishvili v. Russia (dec.), no. 31697/03, 29 January 2004; Prystavska v. Ukraine (dec.), no. 21287/02, 17 December 2002; and Tumilovich v. Russia (dec.), no. 47033/99, 2 June 1999). Accordingly, there are no valid grounds in the present case for reproaching the applicant, on the basis of the exhaustion rule under Article 35 § 1 of the Convention, for not using the extraordinary remedy, which is not subject to any time bar, provided for by Article 593 §§ 1 and 2 of the CCP.

71. In reply to the Government’s suggestion that the first applicant could have appealed against the Kutaisi City Court’s final decision of 10 September 2004 after the entry into force of the amendment of 15 March 2005, which introduced the possibility of lodging an appeal, the Court notes that the amendment in question did not specify whether and under what circumstances an appeal might lie against decisions which had been delivered prior to its entry into force. A possible application of the amendment of 25 March 2005 ex post factum appears to be complicated and ambiguous, when assessed against the fact that the amendment introduced a fifteen-day time-limit for lodging an appeal, with the date of the delivery of the first-instance court’s decision being the trigger date. As to the Government’s argument that, in the applicant’s particular situation, the time-limit had started to run not from the date of delivery of the relevant decision on 10 September 2004 but rather from the date of the entry into force of the amendment of 25 March 2005, the Court notes that this is mere conjecture, unsupported, as has been noted above, either by the letter of the relevant legislative provision or, at least, by any relevant judicial practice. In other words, the Government have failed to discharge the requisite burden of proof by demonstrating to the Court that the remedy advanced by them was available in theory and in practice at the relevant time (see, amongst others, Ramishvili and Kokhreidze v. Georgia (dec.), no. 1704/06, 26 June 2007).

72. The Court further observes that the Government’s objection on grounds of an abuse of the right of individual petition is irrelevant in the circumstances of the present case.

73. As regards the question whether the complaints about the plea‑bargaining raise prima facie issues under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7, the Court considers, in the light of the parties’ arguments, that this part of the application raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. This part of the application cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

74. However, in so far as the first applicant’s complaints under Article 6 §§ 3 (a) and (b) of the Convention are concerned, the Court considers that, whilst the issue of the compatibility of the plea-bargaining procedure with the right to a fair trial would suffice to justify an examination on the merits under Article 6 § 1, the relevant circumstances of the case do not disclose the existence of any other separate, specific issues under either of the above-mentioned two provisions. This part of the application is therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4.

B. As regards the first applicant’s complaint under Article 6 § 2 of the Convention

75. The first applicant further claimed that the circumstances surrounding his public arrest, notably the Regional Governor’s statements, had tainted the presumption of his innocence, in breach of Article 6 § 2 of the Convention. This provision reads as follows:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

76. The Government submitted that the Governor’s carefully worded interview did not amount to a statement that the first applicant was guilty. The first applicant disagreed.

77. The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. It concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

C. As regards the complaint by both applicants under Article 34 of the Convention

78. The applicants complained under Article 34 of the Convention that the GPO had requested them to withdraw their application to the Court, on pain of reopening the criminal proceedings against the first applicant. This provision, in so far as relevant, reads as follows:

“The Court may receive applications from any person .... The High Contracting Parties undertake not to hinder in any way the effective exercise of this right.”

79. The Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 of the Convention that applicants or potential applicants should be able to communicate freely with the Convention organs without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996‑IV).

80. Having due regard to the relevant circumstances of the case and to the parties’ submissions, the Court considers that this allegation raises serious issues of fact and law under the Convention. It therefore decides to pursue the examination of the complaint under Article 34 of the Convention (see Lebedev v. Russia (dec.), no. 4493/04, 18 May 2006).

D. As regards the complaints by both applicants under Article 1 of Protocol No. 1

81. The applicants complained that the State had coerced them into transferring their factory shares free of charge and extorted additional monetary payments in exchange for the discontinuation of the criminal proceedings against the first applicant, in breach of Article 1 of Protocol No. 1. This provision reads as follows:

“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”

82. The Government submitted that Article 1 of Protocol No. 1 could not apply to the applicants’ situation, given that the transfer of their various assets had not constituted a deprivation of property or some other type of interference with the peaceful enjoyment thereof but a voluntary decision to reimburse the damage caused to the State by the first applicant’s criminal activities.

83. The applicants disagreed, maintaining that they had not freely chosen to transfer the assets but had been coerced into doing so as a result of undue pressure exercised by the prosecution in the course of the plea bargaining.

84. The Court observes that, as the Government have pointed out, the transfer of the applicants’ assets is intrinsically related to and resulted from the determination of the first applicant’s criminal responsibility. However, it should be recalled that a financial penalty imposed upon an applicant on account of the criminal proceedings directed against him or her may raise issues under Article 1 of Protocol No. 1 (see, for instance, Phillips v. the United Kingdom, no. 41087/98, § 50, ECHR 2001‑VII, and Mamidakis v. Greece, no. 35533/04, § 44, 11 January 2007). Whilst only the first applicant was the subject of the criminal prosecution, the property rights of the second applicant were also directly affected by the contested plea-bargaining procedure as she had also purportedly been coerced into transferring her part of the factory shares to the State in exchange for a non‑custodial sentence for her husband (compare, mutatis mutandis, Gorraiz Lizarraga and Others v. Spain, no. 62543/00, §§ 37‑39, ECHR 2004-III).

85. In the light of the above considerations and in so far as the applicants’ complaints under Article 1 of Protocol No. 1 are based on the same facts as those relating to the first applicant’s complaint under Article 6 § 1 of the Convention concerning the plea-bargaining procedure, this part of the application also raises serious questions of fact and law which are of such complexity that their determination should depend on an examination on the merits. This part of the application cannot, therefore, be considered manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

E. As regards the remainder of the application

86. Relying on Article 3 of the Convention, the first applicant complained that the prison authorities had deliberately made him share his cell, during the first four months of his detention, with a person charged with his abduction and another person serving a sentence for murder. He also claimed to have been denied medical care in prison.

87. With respect to the former complaint, the Court notes that the facts constitutive of the alleged violation could not be said to have been conditioned by general problems in the penitentiary sector but, on the contrary, purportedly resulted from specific acts or omissions committed by particular persons, namely, the relevant prison officers. Consequently, the applicant was expected to contest the conduct of those officers before the competent domestic authorities (see Ramishvili and Kokhreidze v. Georgia (dec.), no. 1704/06, 27 June 2007), which, according to the case file, he never did.

88. It follows that this limb of the complaint under Article 3 of the Convention must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

89. As to the first applicant’s complaint about the lack of medical care in prison, the Court notes that it is unsubstantiated. He did not provide the Court with details of the treatment he had or had not received or what treatment, if any, had been requested but withheld from him (see Galuashvili v. Georgia (dec.), no. 40008/04, 24 October 2006, and Mathew v. the Netherlands, no. 24919/03, §§ 185-195, ECHR 2005-IX), and the case file, as such, does not disclose any instance where the applicant applied for particular medical treatment but was refused it by the prison authorities.

90. The Court thus concludes that the first applicant’s complaint about the lack of medical care in prison is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

91. Lastly, the first applicant alleged a number of violations of Article 5 of the Convention on account of the unreasonableness and unfairness of his pre-trial detention. However, the Court notes that the applicant’s major omission is that he did not take the trouble to support his blanket allegations by submitting any of the relevant court decisions relating to the contested pre-trial detention. The Court is not even aware of the exact dates on which some of those decisions were delivered and of the reasoning they contained. The complaints concerning the first applicant’s pre-trial detention are thus wholly unsubstantiated, and the Court is consequently prevented from examining the issue.

92. It follows that the first applicant’s various complaints under Article 5 of the Convention are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the first applicant’s complaints under Article 6 §§ 1 and 2 of the Convention and Article 2 of Protocol No. 7 and both applicants’ complaints under Article 1 of Protocol No. 1;

Decides to pursue the examination of the applicants’ complaint under Article 34 of the Convention;

Declares inadmissible the remainder of the application.

Santiago QuesadaJosep Casadevall
RegistrarPresident

Full & Egal Universal Law Academy