Communicated on 8 December 2014
FOURTH SECTION
Application no. 31536/07
Eldar TCHOKHONELIDZE
against Georgia
lodged on 5 June 2007
STATEMENT OF FACTS The applicant, Mr Eldar Tchokhonelidze, is a Georgian national, who was born in 1956. He is represented before the Court by Ms L. Mukhashavria, a lawyer practising in Tbilisi. The facts of the case, as submitted by the applicant, may be summarised as follows. The applicant was the Deputy Governor of Marneuli Region at the material time responsible for the development of the region’s infrastructure and management of land. According to the official version of the events, contested by the applicant, on 1 December 2005, Ms K. met the applicant in his office and informed him of her intention to construct a gas station on a land plot she was about to purchase from Ms N. in Marneuli. She also enquired with the applicant about the necessary documents and applicable procedure for the issuance of a licence for the construction. The applicant replied that, apart from the necessary formalities, she would need to pay a bribe in the amount of thirty thousand US dollars, out of which twenty thousand was the share of the Governor himself. On 6 December 2005 Ms K. informed the Department of the Constitutional Security of the Ministry of Internal Affairs (“the DCS”) about the request of the bribe and expressed her readiness to covertly cooperate with the DCS. On 7 December 2005, at the DCS’ request, the Tbilisi City Court authorized telephone tapping of the applicant’s conversations with Ms K. as well as secret video surveillance of their meetings. On 12 December 2005, during yet another meeting between the two, as Ms K. had already registered the land plot under her ownership, the applicant reiterated to her the request for bribe and told her to bring, as an initial sum, ten thousand US dollars. Ms K. agreed to deliver the sum next day. On 13 December 2005 Ms K. brought to the applicant ten thousand US dollars in cash – the banknotes had been provided and pre-marked with a special substance by the DCS. The meeting took place in the applicant’s office and it was secretly filmed by Ms K. As the delivery of the sum was closely supervised by the DCS, immediately after Ms K. gave the money to the applicant, the DCS officers entered the room and arrested the applicant. The applicant’s personal search was conducted on the spot and the sum was found on him. The applicant was subsequently charged with bribery. During the trial, claiming that his indictment was the result of a provocation, the applicant maintained that he never had an intention to accept a bribe. He was helping Ms K. out of good will believing her to be a relative. The sum in question was meant for the construction companies to whom he had reached out on Ms K.’s behalf for conducting preparatory works (e.g. designing a project of the gas station) for the upcoming construction of the gas station. On 20 April 2006, partly retracting her statement given at the investigation stage which incriminated the applicant, Ms K. testified before the Bolnisi Regional Court that when she approached the applicant, in order to gain his trust, she invented a story that the applicant was her distant relative. To make the story credible, she mentioned to the applicant particular family details. As the applicant was convinced, without ever asking for a bribe, he promised Ms K. to do his best to help materialise her plans concerning the construction of the gas station. The sums discussed during the meetings were meant for the planned construction expenses. In early June 2005 a local newspaper published an interview with Ms K. in which she confessed that she was an undercover agent of the DCS and that in several cases she had entrapped individuals to accept bribes. Each of those individuals was subsequently convicted of bribery. In the same interview Ms K. gave a detailed account of the applicant’s case: allegedly under the direct instructions of the Head of DCS, the initial target for the entrapment was the Governor of Marneuli. After the initial plan failed, the focus was shifted to the applicant. As a part of the plan, under the DCS’ instructions, a fictitious sales agreement concerning the land plot was concluded between Ms K. and Ms N. in order for the former to have a pretext to approach first the Governor and then the applicant. After gaining the applicant’s trust, Ms K. repeatedly offered him to pay extra money to expedite the process of issuance of the licence for the construction, but the applicant repeatedly declined the offer. He would only agree to the amount strictly necessary to cover relevant official fees. The applicant was helping her without any financial interest – believing Ms K. to be his distant relative. After the applicant was arrested, the DCS paid Ms K. five hundred Georgian lari (approx. 250 euro) as a honorarium. Soon after, due to the inconsistencies found between her statements given at the investigation stage and before the court, criminal charges were brought against Ms K. for giving conflicting testimonies. She was placed under pre-trial detention. On 7 July 2006 Ms K. was again brought before the Bolnisi Regional Court to give another statement about the applicant’s case. This time she confirmed her initial testimony given during the investigation stage of the proceedings in which she had incriminated the applicant in bribery. At the same time, she confirmed that at the time when she approached the applicant she was already an undercover agent of the DCS. She also confirmed that the initial target of their undercover activities was the Governor of Marneuli, not the applicant. She further reiterated that for gaining the applicant’s trust, she had lied to him about their family ties and about her plan to invest around one hundred thousand US dollars in the construction of the gas station. Repeating that the applicant had requested thirty thousand US dollars, out of which twenty thousand was the Governor’s share, Ms K. stated that those ten thousand US dollars which she had delivered to the applicant were designated for the initial construction expenses; confirming that the applicant was negotiating with local construction companies on her behalf to minimise the construction costs, Ms K. could not assert that the applicant ever had the intention to retain part of the provided sum for his own benefit. Lastly, Ms K. also confirmed that the agreement on the purchase of the land plot from Ms N. had been concluded under the supervision of the DCS; the agreement was annulled and the land returned to Ms N. soon after the applicant’s arrest. On 17 July and 6 December 2006, respectively, the Bolnisi District Court found the applicant guilty as charged and then the Tbilisi Court of Appeal upheld his conviction. Both courts ignored the applicant’s entrapment claim. While the Bolnisi District Court refused the applicant’s motion to have Ms N. examined during the trial, the Tbilisi Court of Appeal summoned the witness; however, in spite of the applicant’s protest, it accepted Ms N.’s claim, unsupported by any medical evidence, that she needed to attend a sick family member as a legitimate justification for her failure to appear before the court. The appellate court also refused to hear two additional witnesses – the owners of the construction companies in Marneuli – on the applicant’s behalf who allegedly could have corroborated the applicant’s version of the events. On 16 April 2007 the Supreme Court of Georgia found the applicant’s cassation claim inadmissible.
COMPLAINTS
The applicant complains under Article 6 §§ 1 and 3 (d) of the Convention that his conviction for bribery, which constituted entrapment, was unfair; in addition, the domestic courts refused to hear the three witnesses on his behalf, which effectively deprived him of the opportunity to present his case.
QUESTION TO THE PARTIES
Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 §§ 1 and 3 (d) of the Convention? In particular,
- Was the applicant subjected to entrapment?
- Did the national courts give due consideration to the applicant’s entrapment claim?
- Viewed in the context of the entrapment claim, did the applicant’s inability to have the three defense witnesses examined before the domestic court infringe his right to fully present his case?
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