CASE OF NATSVLISHVILI AND TOGONIDZE v. GEORGIA
No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Higher tribunal;Review of conviction;Review of sentence);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)
Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
8. The first and second applicants were born in 1950 and 1953 and currently live in Moscow, the Russian Federation, and Kutaisi, Georgia, respectively. They are husband and wife. 9. The first applicant was the deputy mayor of Kutaisi, the second largest city in Georgia, from 1993 to 1995 and the managing director of the company operating the Kutaisi Automotive Plant (“the factory”), one of the most important public companies in the country, from 1995 to 2000. On 29 December 2000 he was appointed chairman of the factory’s supervisory committee at the shareholders’ general meeting. 10. The first applicant owned 12.95% of the shares through purchases made in 1998 and 2002 and was the principal shareholder in the factory after the State (78.61% of the shares). The second applicant owned 2.6% of the shares, purchased in 2002, so together the couple owned a total of 15.55% of the shares. 11. The first applicant was kidnapped in December 2002. After being severely ill-treated by his abductors, he was released in exchange for a large ransom paid by his family. 12. On 12 March 2004 the first applicant was accused of illegally reducing the share capital of the factory, for which he had first been responsible as managing director and then as chairman of the supervisory committee. He was charged with making fictitious sales, transfers and writeoffs, 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”). 13. On 15 March 2004 the police and the Kutaisi prosecutor went to the first applicant’s workplace to arrest him. The arrest was filmed by journalists and broadcast on a local private television station the same night. The broadcast consisted of an interview with the prosecutor following footage showing the first applicant’s arrest and escort down a flight of stairs, with his arms held by policemen and surrounded by journalists. The prosecutor made two comments in respect of the matter: that the documents seized during a search of the first applicant’s office “were relevant to an ongoing criminal investigation and would be assessed and analysed”, and that the charge which the first applicant faced carried up to twelve years’ imprisonment. 14. The prosecutor’s interview was followed by that of the Governor of the Region. The Governor, without making any reference to the first applicant or the criminal proceedings against him, declared, among other things, that the State, which was “experiencing difficult times [due to a political crisis], would not stray from the path that it had chosen in pursuit of the identification of those who had devoured public money ... which was exactly why pensions and salaries had not been able to be paid on time”. 15. On 16 March 2004 the first applicant appointed a lawyer to protect his interests. 16. When questioned for the first time as a suspect on 17 March 2004, the first applicant, assisted by his lawyer, protested his innocence and exercised his right to silence. 17. On the same day the prosecuting authority brought an application before the Kutaisi City Court to have the first applicant detained pending trial arguing 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. 18. On 25 March 2004 the first applicant sent a letter to the prosecuting authority, which read as follows: “Since I am not indifferent to the future of the automobile factory and consider it possible to settle the problems [I am having] with the State, I express my readiness to forfeit the shares in the factory which are currently in my and my wife’s possession to the State.” 19. 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. 20. 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 11 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. 21. On 1 August 2004 the first applicant and his lawyer were given access to the criminal case materials. On 6 August 2004 the first applicant appointed a second lawyer to protect his interests in the proceedings. 22. On 6 September 2004 the investigation was terminated, and the first applicant was indicted on the aforementioned charges. Having acquainted himself, with the assistance of his two lawyers, with the case file in its entirety, he again protested his innocence but confirmed his intention to cooperate with the investigation. 23. On the same day both applicants transferred their shares free of charge, representing an overall total of 15.55% of the factory’s share capital, to the State. 24. According to a written statement in the case file from Mr G.T., 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 prosecuting 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. 25. The file also contains a witness statement by Mrs M.I., the second applicant’s sister-in-law, that the public prosecutor had also demanded that the first applicant’s family pay 50,000 laris (GEL) (about 21,000 euros (EUR)) 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. therefore agreed to pay the required amount in her own name. 26. As confirmed by the relevant bank-transfer receipt, that payment was made on 8 September 2004, with Mrs M.I.’s name duly appearing on the document as the source of the transfer. 27. On the following day, 9 September 2004, the first applicant filed a written statement with the public prosecutor, requesting him to arrange a “procedural agreement” (hereinafter 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. He added that he fully understood the contents of the agreement. 28. On the same day the public prosecutor of Kutaisi offered and the first applicant accepted a plea bargain regarding 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 paying compensation in the amount of GEL 4,201,663 (approximately EUR 1,765,000) for the damage 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 the prosecutor, the applicant and one of his two lawyers. 29. Also on the same day the public prosecutor filed a brief with the Kutaisi City Court, requesting approval of the aforementioned plea bargain 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 the written record of the plea agreement and twelve volumes of the criminal case materials. 30. Also on the same day Mrs M.I. effected a bank transfer to the State in payment of the fine of GEL 35,000 (EUR 14,700) as per the above-mentioned plea bargain between the first applicant and the public prosecutor. 31. 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 28 above), his rights under Article 679-3 of the CCP. 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 plea bargain, as submitted by the prosecutor, confirming that they fully accepted its consequences. The lawyer added that he had assisted in the plea-bargaining negotiations between his client and the prosecution, that it was his client who had insisted on reaching a settlement, and that he, as a lawyer, had provided all the necessary counselling to the applicant. 32. Relying 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, when he was 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”. 33. The City Court further held that, following the judicial examination, it reached the conclusion that the plea bargain 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. 34. As mentioned in its operative part, the Kutaisi City Court’s decision of 10 September 2004 was final and not subject to 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. 35. 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. 36. 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 complained to 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 them withdraw their application from the Court. 37. In support of that assertion, the applicants submitted a written statement given by their daughter, Ms A. Natsvlishvili, dated 6 November 2007. 38. According to that statement, after having been told by her parents that pressure was being brought to bear on them, in September 2004 Ms Natsvlishvili, who was a student at the Central European University in Budapest at the time, decided to approach an acquaintance of hers who was working at the GPO, Ms T.B. Subsequently, Ms Natsvlishvili exchanged several e-mails with her acquaintance in which the latter, claiming to act on behalf of the GPO, expressed that authority’s position on the applicants’ case. The case file contains a copy of the relevant e-mail exchange. 39. In the e-mail exchange, Ms Natsvlishvili and Ms T.B. addressed each other on friendly terms, using shortened, pet names and familiar instead of formal forms of address. 40. Ms Natsvlishvili was the first to contact Ms T.B., on 14 September 2006, asking her, as a friend and an experienced lawyer, to give her some advice about her master’s thesis and a forthcoming examination in law. 41. On 29 November 2006 Ms T.B. advised the applicants’ daughter, whom she considered to be “a friend”, that she had been “personally” working on her father’s case and thus possessed important information emanating from the Prosecutor General. Inviting the applicants’ daughter to express her parents’ position on the matter, Ms T.B. promised to share her hierarchical superiors’ views with them. 42. On 11 December 2006 Ms T.B. informed the applicants’ daughter that the GPO would be ready to reopen the first applicant’s criminal case and then terminate it again, this time in his favour, and to return the GEL 35,000 (EUR 14,700) which had been paid by him as a fine. Ms T.B. encouraged the applicants to think about that proposal quickly and to accept it, otherwise, she stated, “the prosecution authority would defend its position in Strasbourg and might even unilaterally annul the plea bargain and reopen the criminal proceedings against the first applicant”. 43. On 16 December 2006 Ms Natsvlishvili informed Ms T.B. that her father was ready to reach a friendly settlement, as provided for “by the Convention” and under the scrutiny of the Court. Ms Natsvlishvili then asked a number of procedural questions and also enquired whether it was possible, having due regard to the substantial pecuniary and non-pecuniary damage which had been inflicted on her family by the State, to review the conditions of the proposed settlement. 44. On the same date, 16 December 2006, Ms T.B. replied that “her personal involvement in the case was a guarantee that the applicants’ family would not find itself in an inauspicious situation again”. Ms T.B. then stated that the first applicant should file an application with the GPO, complaining that the plea bargain in question had been reached without a full consideration of his interests. The GPO would then treat that application as a request for the reopening of the case on the basis of newly discovered circumstances. Ms T.B. assured the applicants’ daughter that, after the reopening of the case, the first applicant would, as a matter of fact, be rehabilitated by having obtained the deletion of the conviction from his criminal record. 45. Ms T.B. then stated that the State would be ready to return the money which had been paid by the first applicant as a fine and the shares in the factory forfeited by the second applicant; she explained that the first applicant’s shares could not be returned as they had already been assigned to a third party. The GPO employee also assured Ms Natsvlishvili that the first applicant would become eligible to return to Georgia and to start business afresh there, in which entrepreneurial activity the prosecution authority would even assist him. Ms T.B. then continued: “We all know that errors have been committed, but it has become a particularly vital issue, in the interests of the country, to set aside personal experience and trauma now, notwithstanding the painfulness of those [experiences]. I know that this is difficult, but if you can manage it, I am confident that after years have passed you would then be in a position to tell yourself that you were successful in differentiating Georgia, as your own country, from individual State agents, and to tell yourself that you made your own small sacrifice for your country.” 46. Ms T.B. specified that “they”, the GPO, were not telling the applicants to first withdraw their application from the Court and to settle the issue at the domestic level afterwards. On the contrary, the State was ready to start working on the settlement of the issue at the domestic level first. However, Ms T.B. then reminded the applicants’ daughter that “they had only a month left for [filing observations with] Strasbourg”. 47. On an unspecified date, but apparently subsequent to the abovementioned e-mail exchange, Ms T.B. informed Ms Natsvlishvili that the State would be ready to pay to the first applicant, in compensation, GEL 50,000 (EUR 22,000) and to take procedural measures to have the conviction deleted from his criminal record. She specified as follows: “As regards the issue of rehabilitation and compensation, the decision will apparently belong, according to the applicable rules of jurisdiction, to the Kutaisi Court of Appeal. It will therefore be indicated in this court’s decision that, given the fact that the remainder of [the applicants’] shares have been assigned and that the factory has become indebted, it is factually impossible to return the shares in their entirety, which would then lead to the award of GEL 50,000 [(EUR 22,000)] in pecuniary and non-pecuniary damages.” 48. Ms T.B. then assured the applicants’ daughter that they could trust the GPO, as, in any event, should there be any improper conduct by the authorities, the applicants could always then complain to the Court about the alleged hindrance of the right of individual petition under Article 34 of the Convention, which allegation would be of particular harm for the respondent State’s international image. Ms T.B. mentioned, lastly, that the State might be ready to increase the amount of compensation to a maximum of GEL 85,000 (EUR 35,700).