CASE OF GOGITIDZE AND OTHERS v. GEORGIA
Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property)
George Nicolaou;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney
7. The first, second, third and fourth applicants were born in 1951, 1973, 1940 and 1978 respectively. The second and fourth applicants are the first applicant’s sons and the third applicant is his brother. The first, second and fourth applicants live in Moscow, the Russian Federation. 8. New political forces came to power in the Ajarian Autonomous Republic (“the AAR”) in May 2004, following the so-called “Rose Revolution” which occurred in the country in November 2003 (see Georgian Labour Party v. Georgia, no. 9103/04, §§ 11-13, ECHR 2008). 9. On 25 August 2004 the first applicant, who had previously held the posts of Ajarian Deputy Minister of the Interior and President of the Audit Office, was charged, amongst other offences, with abuse of authority and extortion. 10. On 26 August 2004 the Public Prosecutor’s Office of the AAR initiated proceedings before the Ajarian Supreme Court to confiscate wrongfully and inexplicably acquired property from the applicants under Article 37 § 1 (1) of the Code of Criminal Procedure (“the CCP”) and Article 21 §§ 5 and 6 of the Code of Administrative Procedure (“CAP”); the legislative provisions in question had been adopted on 13 February 2004. 11. The public prosecutor affirmed that he had reasonable grounds to believe that the salaries received by the first applicant in his capacity as Deputy Minister of the Interior between 1994 and 1997 and President of the Audit Office between November 1997 and May 2004 could not have sufficed to finance the acquisition of the property, which had occurred during the same time span, by himself, his sons and his brother. 12. The prosecutor attached to his brief numerous items of evidence (twenty-three documents) which showed that, on the one hand, the first applicant had earned 1,644 and 6,023 euros (EUR) respectively in official salaries when he had occupied the above-mentioned two posts in the Ajarian Government, whilst, on the other hand, the total value of the property that he and the other applicants had acquired corresponded to some EUR 450,000 (1,053,000 Georgian laris (GEL)). The latter figure was based on the expert opinions of two independent auditors who had conducted an assessment of the disputed property on 20 August 2004. 13. The public prosecutor therefore requested the Ajarian Supreme Court to rule that the items of property concerned, which are listed below, should be confiscated from the applicants and transferred to the State. 14. The first applicant’s property included: (a) a house located at 54 Mazniashvili Street, Batumi; (b) a house located at 13 Griboyedov Street, Batumi; (c) the first floor of a house located at 60 Gorgasali Street, Batumi; (d) a share in the capital of the Sanapiro Hotel, Kobuleti; (e) a Mercedes car; (f) a flat located at 1 Ninoshvili Street, Kobuleti. 15. The second applicant’s property included: (g) two guest houses located at 32 April 9th Street, Kobuleti. 16. The third applicant’s property included: (h) a house located at 245 Aghmashenebeli Street, Kobuleti. 17. The fourth applicant’s property included: (i) a flat located at 58b Gorgasali Street, Batumi; (j) a flat located at 4-6 Gudiashvili Street, Batumi; (k) a flat located at 20 H. Abashidze Street, Batumi; (l) a house located at 6 General A. Abashidze Close; (m) a house located at 186 Aghmashenebeli Street, Kobuleti. 18. On 30 August 2004 the Ajarian Supreme Court accepted the public prosecutor’s request for an examination on the merits. It transmitted the prosecutor’s brief together with all the supporting documents to the applicants, inviting them to submit their written replies and attend an oral hearing scheduled for 7 September 2004. 19. As attested by the relevant postal acknowledgements of receipt, the Ajarian Supreme Court’s subpoenas were duly served at all four applicants’ home addresses, but only the second applicant, represented by legal counsel, filed written comments on 6 September 2004. 20. The second applicant submitted that the property mentioned at (b) above in fact belonged to him and not to the first applicant. To prove it he produced a contract of sale dated 2 December 1997, between himself and a certain G.V., plus a document from the Land Registry. He stated that he had purchased the property for EUR 10,174. His father-in-law, with whom the second applicant and his wife lived after they married, had helped him purchase the property. He produced a certificate from the bank stating that his father-in-law had taken out the loan, as well as statements by different witnesses. 21. The second applicant further explained that the property mentioned at (f) above belonged to Mr N.U., who was neither a close relative nor in any way connected with the first applicant. It was therefore not subject to confiscation. 22. As to the property mentioned at (g) above, the second applicant alleged that the first applicant had had no part in purchasing or renovating it and that he, the second applicant, was the sole owner. He had bought the property from a lady for EUR 4,069 with the help of his godfather, V.M., who had allegedly lent him 50,000 United States dollars (USD) to renovate the site. 23. In sum, the second applicant requested that the properties mentioned at (b) and (f) and (g) above be removed from the confiscation list, and that due consideration be given to the evidence he had presented showing that the property concerned had not been wrongfully acquired. 24. As the first, third and fourth applicants failed to submit written arguments or appear before the Ajarian Supreme Court on 7 September 2004, the latter decided to postpone the hearing until 9 September 2004. The relevant subpoenas were again duly served at those applicants’ home addresses, but none of them appeared before the court, either in person or by designating an advocate, on the second occasion either. 25. The Ajarian Supreme Court opened a hearing on 9 September 2004 which the first, third and fourth applicants and their lawyers failed to attend, without giving reasons. It was attended by the second applicant’s lawyer, who additionally pleaded that the property mentioned at (d) above also belonged to him, but that he was giving it to the State as a gift. In response, the Ajarian Supreme Court changed the name of the defendant in that part of the case and named the second applicant as the owner of the property concerned. The second applicant further explained that in addition to the money his godfather had lent him, he had bought and renovated the property mentioned at (g) above with his salary as the director of a company in which he owned a quarter of the shares. According to the minutes of that company’s board meeting of 1 July 2004, the profit generated by its activities was EUR 17,987. 26. On 10 September 2004 the Ajarian Supreme Court gave judgment in the absence of the first, third and fourth applicants, who had been notified twice but had failed to appear without good reason (Article 26 § 1 (2) of the CAP). 27. Thus, the Ajarian Supreme Court ordered the confiscation of the property belonging to the first applicant listed under (a), (c) and (e), that belonging to the second applicant listed under (d) and (g), and that listed under (i) to (m) belonging to the fourth applicant. It considered in particular that the sums of EUR 1,644 and EUR 6,023 which the first applicant had earned as Deputy Minister of the Interior and President of the Audit Office respectively could not have sufficed to acquire the property in issue, and that the other applicants did not earn enough either. The salaries the first applicant earned were only enough to provide for the needs of a family of four. The court stated that the applicants, in particular the three who had failed to appear before the court, had failed to discharge their burden of proof by refuting the public prosecutor’s claim. 28. As regards the property mentioned at (g) above, the Ajarian Supreme Court concluded that the second applicant had failed to prove the lawful origins of the money he had used to acquire the property, which had been valued by independent auditors who had assessed both the plot of land and the four guest houses situated on it at no less than EUR 94,000. 29. Furthermore, the Supreme Court of Ajara considered it established that the property mentioned at (b) above belonged to the second applicant and that the property mentioned at (f) belonged to a third party. The prosecutor’s case concerning these two properties was thus dismissed: concerning the first property, the court accepted the second applicant’s arguments as to its lawful origins. 30. As regards the third applicant’s property mentioned at (h) above, it was established that this was a family home unrelated to the first applicant’s activities. However, as the property had been refurbished while the first applicant was in public office, making it worth EUR 24,418 according to an official valuation, the third applicant was ordered to pay the State compensation in the amount of EUR 10,174. 31. All four applicants, represented by legal counsel, as well as the public prosecutor, appealed against the first-instance court’s judgment of 10 September 2004. 32. The applicants requested that the confiscation proceedings be suspended pending the termination of the criminal proceedings against the first applicant. They complained that the burden of proof had been shifted onto them in the confiscation proceedings. The first, third and fourth applicants also complained that they had not been given an opportunity to submit their arguments before the first-instance court. The first applicant additionally complained that he had been denied the right to be presumed innocent in the confiscation proceedings. 33. On 22 October 2004 the first applicant’s wife asserted before the Supreme Court of Georgia that she and her son, the fourth applicant, were the owners of the property mentioned at (m) above. She explained that she was a Russian national and had sold the family house in the Smolensk region, with her siblings’ consent, to buy the property in Kobuleti, where her Russian relatives would spend their summer holidays. 34. On 3 November 2004 a third party, Mr S. Tchitchinadze, applied to the Supreme Court of Georgia, stating that the decision of the Ajarian Supreme Court concerning the property mentioned at (a) above was unlawful because the property had previously belonged to him and was currently the subject of a dispute between himself and the first applicant. On 15 December 2004 Mr Tchitchinadze sent the Supreme Court of Georgia a decision of the Batumi City Court dated 14 November 2004 recognising him as the owner of the property in question. He requested that his property be removed from the confiscation list submitted by the public prosecutor (for more details, see Tchitchinadze v. Georgia, no. 18156/05, § 13, 27 May 2010). 35. At the hearing the four applicants’ legal counsel contended that the case concerning the first, third and fourth applicants should be remitted for fresh examination because the three men had not been able to participate in the proceedings at first instance. He further complained that the evidence presented by the second applicant had not been given due consideration. 36. On 17 January 2005 the Supreme Court of Georgia set aside the first-instance decision only in so far as it concerned the property mentioned at (a) above, the house located at 54 Mazniashvili Street in Batumi, acknowledging that the estate was the property of Mr S. Tchitchinadze (for further details see Tchitchinadze, cited above, §§ 16-17). For the remainder, it followed the reasoning of the Ajarian Supreme Court, namely that the first applicant’s income was not sufficient for him and his family members to have acquired the properties in issue, whilst the other applicants’ income was also insufficient. Concerning the arguments of the first applicant’s wife, the Supreme Court of Georgia noted that the land register named only the fourth applicant as the owner of the property mentioned at (m) above. 37. On 6 December 2004 the first applicant lodged a constitutional complaint. He argued that Article 37 § 1 (1) of the Code of Criminal Procedure (“the CCP”) and Article 21 §§ 5 and 6 of the Code of Administrative Procedure (“the CAP”), adopted on 13 February 2004, were contrary to the following constitutional provisions – Article 14 (prohibition of discrimination), Article 21 (protection of property), Article 40 (presumption of innocence) and Article 42 §§ 2 and 5 (no criminal punishment without law and prohibition of retroactive application of criminal law) of the Constitution of Georgia. 38. In his constitutional complaint the first applicant mostly reiterated the arguments that he had previously submitted before the Supreme Court of Georgia. In particular, he complained that the confiscation of his property and that of his family members amounted to a criminal punishment being imposed on him in the absence of a final conviction establishing his guilt, and that he should not have been made to bear the burden of proving his innocence, that is, the lawfulness of the disputed property. He also complained that the confiscation of the property in such circumstances was in breach of his right to be presumed innocent of the corruption charges. The first applicant also stated that he and his family had acquired the property in question well before the amendments of 13 February 2004 were enacted and that, consequently, the retroactive extension of those provisions to their situation was unconstitutional. For those reasons, he argued that the confiscation procedure provided for by the impugned provisions of the CCP and CAP had been arbitrary and amounted to a violation of the constitutional guarantee of protection of his private property. 39. By a judgment of 13 July 2005 the Constitutional Court, after having heard the parties’ arguments and evidence from a number of legal experts and witnesses, dismissed the first applicant’s complaint as ill-founded on the basis of the following reasoning. 40. First, drawing an analogy with Article 1 of Protocol No. 1 to the Convention, the Constitutional Court stated that the Georgian constitutional provision protecting the right to property (Article 21 of the Constitution) likewise did not exclude the possibility of deprivation of property if such a measure was lawful, pursued a public interest and satisfied the proportionality test. The court then went on to emphasise that only lawfully obtained property enjoyed full constitutional protection; in the first applicant’s case there had been a legitimate suspicion as to the lawful origins of the property, a suspicion which he and his family members had been unable to refute in the course of the relevant judicial proceedings. 41. The Constitutional Court further stated that the administrative confiscation proceedings provided for in Article 37 § 1 (1) of the CCP and Article 21 §§ 5 and 6 of the CAP, could in no way be equated with criminal proceedings, as no determination of a criminal charge was at stake; on the contrary, such proceedings were a classic example of a civil dispute between the State, represented by the public prosecutor, and private individuals. Given the “civil” nature of the proceedings in question, it was acceptable that the burden of proof in the proceedings should be shifted onto the respondent, the second applicant. Referring to its own comparative legal research and the Court’s judgments in the cases of Raimondo v. Italy (22 February 1994, §§ 16-20, Series A no. 281A) and AGOSI v. the United Kingdom (24 October 1986, §§ 33-42, Series A no. 108), the Constitutional Court added that such civil mechanisms, involving the forfeiture of the proceeds of crime or otherwise unlawfully obtained or unexplained property, were not unknown in a number of Western democracies, including Italy, the United Kingdom and the United States of America. 42. As to the issue of the alleged retroactivity of the application of the amendment of 13 February 2004 introducing the administrative confiscation procedure, and the second applicant’s presumption of innocence, the Constitutional Court ruled that since the proceedings in question had been “civil” and not “criminal”, the above-mentioned criminal-law guarantees could not apply. Furthermore, the amendment of 13 February 2004 had not introduced any new concept but rather had regulated anew, in a more efficient manner, the existing measures aimed at the prevention and eradication of corruption in the public service. In particular, the Constitutional Court referred to the 1997 Act on Conflict of Interests and Corruption in the Public Service, which had required all public officials not only to declare their own property and that of their family and close relatives, but also to show that the declared property had been acquired lawfully. 43. The Constitutional Court concluded that the amendments of 13 February 2004 undoubtedly served the public interest of intensifying the fight against corruption and that the test of proportionality had also been duly satisfied during the confiscation proceedings, which had been conducted fairly before the domestic courts.