CASE OF TCHOKHONELIDZE v. GEORGIA
Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer
5. The applicant was born in 1956 and lives in the village of Tsereteli, Marneuli Region, Georgia. 6. On 1 December 2005 a certain individual, Ms K., applied to the Governor of the Marneuli Region for the permit necessary for the construction of a petrol station on a plot of land situated in the region. The Governor assigned the examination of the application to the applicant, his deputy, who was responsible for the development of the region’s infrastructure and the management of State lands. 7. A meeting between the applicant and Ms K. took place on the same day, 1 December 2005, in the former’s office. According to the official version of events, during the meeting, when Ms K. enquired about the necessary documents and applicable procedure for the issuance of the construction permit, the applicant replied that, apart from the necessary formalities, she would also need to make a pay-off (ქრთამი) to the amount of 30,000 United States dollars (USD); of this amount, USD 20,000 would be the share of the Governor himself, whilst the rest would be divided between the applicant and representatives from the various agencies involved. 8. On 6 December 2005 Ms K. informed the Department of Constitutional Security of the Ministry of Internal Affairs (“the DCS”) that the applicant had requested a bribe from her in return for a promise to assist her in obtaining the requisite construction permit. She expressed her readiness to cooperate with the DCS. The authority immediately opened a criminal case into Ms K.’s allegations (“the bribery case”). 9. Still on 6 December 2005, the General Public Prosecutor’s Office (“the Prosecutor’s Office”) issued the DCS with a general authorisation to remain in charge of the bribery case and to conduct all types of investigative measures necessary. 10. By rulings dated 7 December 2005, the Tbilisi City Court authorised secret video surveillance of the applicant’s meetings with Ms K., as well as the tapping of their telephone conversations. 11. On 8 December 2005 Ms K. bought a plot of land from another private individual, Ms N. (hereinafter “the sales agreement”), for the purpose of constructing a petrol station on it. On the same day, the applicant contacted a notary and the head of the Land Registry of the Marneuli Region, requesting them, respectively, to certify the sales agreement and to register, in an expedited manner, the plot in Ms K.’s name. 12. On 12 December 2005 Ms K. brought to the applicant’s office the sales agreement and a record from the Land Registry of the Marneuli Region confirming her title to the newly acquired plot of land. During that second meeting, which was secretly filmed by Ms K., the applicant reiterated his request for a bribe. He asked her to bring USD 10,000 as a down payment, emphasising that this sum was not supposed to cover any official fees or charges prescribed by law for the issuance of a construction permit. Ms K. promised to bring the sum the following day. 13. On 13 December 2005 Ms K. brought USD 10,000 to the applicant in cash. The banknotes had been 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. and closely supervised by the DCS. As soon as Ms K. handed over the money to the applicant, DCS officers entered the room and arrested the applicant. 14. A search of the applicant’s person was conducted on the spot, which led to the discovery of the banknotes in the right inner pocket of his suit. The law-enforcement officers immediately examined the banknotes using a special lamp and observed the marks made by a substance previously applied by the DCS. The same substance was also detected on both of the fingers of the applicant’s hands and on the clothing of his suit. The accuracy of these findings was later confirmed by a forensic chemical examination. 15. On 14 December 2005 the applicant was charged, under Article 338 § 2 (b) of the Criminal Code of Georgia, with the crime of requesting a bribe in a large amount. 16. The results of an examination of the secret recordings of the various meetings between the applicant and Ms K. confirmed the authenticity of those recordings. On 8 February 2006 the investigator in charge of the case acquainted the applicant and his lawyer with the results of the abovementioned forensic examinations. The accused party did not contest that evidence. 17. When questioned by the Bolnisi District Court, the applicant, who was represented by two lawyers of his choice, complained that he had been entrapped by the DCS. He stated that he had never had any intention of accepting a bribe but had been helping Ms K. out of good will, as he had considered her to be a distant relative. He confirmed that he had been assisting Ms K. in the various administrative formalities related to the purchase of the relevant land. The applicant furthermore admitted to having received money to the amount of USD 10,000, from the applicant, but added that the sum had been meant to be transmitted to a construction company as an advance payment for its upcoming construction of the petrol station. He stated that he could not explain why Ms K. would have wished to induce him to accept a bribe. 18. When questioned by the trial court for the first time on 20 April 2006, Ms K. stated that she had met the applicant in his office and informed him of her intention to construct a petrol station. She had falsely presented herself as his distant relative in order to obtain the applicant’s favour more easily. Ms K. confirmed that the applicant had then assisted her with the relevant administrative formalities with the notary and the Land Registry of the Marneuli Region. As to the sum of USD 10,000, Ms K. stated – reiterating the applicant’s version of events – that it had been intended that the money would be paid through the applicant’s offices to a private construction company in relation to the ongoing construction project of a petrol station. Ms K. emphasised that she had never been sure that the applicant had intended to retain any part of the above-mentioned sum for his personal benefit. Nevertheless, still suspecting that there might have been illegal intent involved in the applicant’s wish to be involved in the money transfer, Ms K. had decided to inform the DCS of her conversation with the applicant. 19. On 2 May 2006 the prosecutor in charge of the applicant’s criminal case instituted criminal proceedings against Ms K. for giving conflicting witness statements, on the grounds of the alleged inconsistency between the statements that Ms K. had originally given to the DCS during the investigation stage and those given before the trial court on 20 April 2009. 20. On 3 May 2006 Ms K. requested that the Bolnisi District Court hear her again in relation to the applicant’s case, stating that she had forgotten to testify in respect of a number of significant factual details when the court had previously heard her on 20 April 2006. 21. On 17 May 2006 Ms K. lodged a complaint with the Prosecutor’s Office in respect of the initiation of the criminal proceedings against her (see paragraph 19 above). She submitted that the statements she had given to the trial court on 20 April 2006 had been truthful and had fully reflected the content of her several meetings with the applicant, which could have been verified by examining the relevant secret video and audio recordings. 22. When questioned by the trial court on 23 June 2006, both the notary who had certified the sales agreement and the head of the Land Registry of the Marneuli Region confirmed that the applicant had been urging them to expedite the registration of Ms K.’s title to the plot of land on which a petrol station was scheduled to be constructed. The two witnesses furthermore stated that the plot still constituted Ms N.’s property, given that the sales agreement had been annulled shortly after having been concluded. 23. Allowing a request lodged by the applicant on 23 June 2006, the trial court admitted to the criminal case file as evidence a recording of a television programme and a newspaper article in which Ms K. had publicly acknowledged having been an DCS undercover agent in four other unrelated criminal cases. 24. On 7 July 2006 Ms K., who at that time had already been placed in pretrial detention in relation to the criminal proceedings instituted against her for giving conflicting witness statements, was heard by the Bolnisi District Court for the second time. She confirmed the statements that she had given during the investigation stage. Namely, she testified that the applicant had clearly requested her to pay “unofficially” the sum of USD 30,000 in return for promised assistance with the construction project, of which sum USD 20,000 was supposed to go, according to the applicant, to the Governor. She stated, however, that she did not know whether the applicant had any intention of retaining any part of the remaining USD 10,000 for his personal benefit. Ms K. also confirmed that the applicant had indeed conducted negotiations with a number of construction companies on her behalf at that time. 25. Ms K. did not deny that, prior to her involvement in the case against the applicant, she had acted as an undercover agent for the DCS in four other unrelated cases. She further stated before the trial court that she had already acted as an undercover agent of the DCS when she had approached the applicant for the first time on 1 December 2005. She stated that the initial objective of that undercover anti-criminal operation, led by the DCS, had been to expose the criminal activity of the Governor of the Marneuli Region. Notably, the DCS had been in possession of information that the Governor had been prone to requesting bribes in return for providing various public services. It was only after that initial plan had failed that the law-enforcement agency’s attention had shifted towards the Governor’s deputy, the applicant. Ms K. also stated that the sales agreement in respect of the plot of land had been annulled shortly after the applicant’s arrest, as it had in fact been a fictitious transaction concluded under the DCS’s close supervision. According to Ms K.’s statements, Ms N. had also been collaborating with the DCS at that time, and the first meeting between Ms K. and Ms N. had taken place on the DCS’s premises. 26. On 7 July 2006 the applicant requested the trial court to summon Ms N. as an additional witness so that he could question her in relation to her purported collaboration with the DCS and role in the sequence of the events which had led to the initiation of the criminal proceedings against him (see the preceding paragraph). In reply, the Prosecutor’s Office claimed that it had already attempted to summon Ms N. as a witness, but that the latter’s whereabouts were unknown. Relying on that standpoint, the Bolnisi District Court ruled that it was objectively impossible to summon Ms N. as a witness. 27. By a judgment of 17 July 2006, the Bolnisi District Court found the applicant guilty as charged and sentenced him to seven years’ imprisonment. The court stated that the collection of the evidence in the case file – the statements given during the trial by Ms K., the notary and the head of the Land Registry; the judicially authorised secret video and audio recording; and the results of the personal search of the applicant on 13 December 2005 and of the forensic chemical and phonoscope examinations – confirmed the applicant’s guilt beyond reasonable doubt. As regards the applicant’s statement that the money discovered on his person (USD 10,000) had not been a bribe but a valid advance payment for preparatory works associated with Ms K.’s construction project, the District Court answered that this was not supported by the totality of the collected evidence; it did not provide any additional explanation in that respect. As to the applicant’s argument that he had been induced to commit the offence in question by Ms K., who had been an agent provocateur of the DCS, the court did not address that argument at all. 28. On 15 August 2006 the applicant lodged an appeal with the Tbilisi Court of Appeal against his conviction, reiterating his complaint alleging entrapment and reasserting his version of events. 29. On 18 October 2006 the examination of the applicant’s appeal by the Tbilisi Court of Appeal began. During a hearing held on 8 November 2006, the applicant – referring to statements given by members of his family that they had recently seen Ms N. at her house – the applicant requested the appellate court to summon the latter so that he could finally question her. The appellate court granted the applicant’s request. 30. Ms N. was scheduled to appear before the appellate court on 1 December 2006, but failed to do so. The applicant noted that his family members, who were living in the same village (Orjonikidze) as Ms N., had approached her and asked her to testify before the court, but the latter had refused the request in a resolute manner. The Prosecutor’s Office noted that it had been unable to secure Ms N.’s appearance but promised to do so for the next hearing, which was scheduled for 6 December 2006. 31. On 2 December 2006 Ms N. submitted a written statement to the Tbilisi Court of Appeal. Noting that she had recently learned of the ongoing examination of the applicant’s criminal case, she stated that she was unable to appear as a witness before the appellate court because of her difficult family situation. Ms N. stated, in particular, that her aged mother had been seriously ill and remained under her constant supervision. 32. On 6 December 2006 the Prosecutor’s Office presented a handwritten letter from Ms N.’s neighbours dated 4 December 2006, according to which the witness had long abandoned her house in the village and her current whereabouts were unknown. The Tbilisi Court of Appeal ruled that it was objectively impossible to summon Ms N., as her whereabouts could not be identified. 33. By a decision of 6 December 2006, the Tbilisi Court of Appeal rejected the applicant’s appeal and upheld his conviction of 17 July 2006 in full. As with the first-instance court, the applicant’s argument about his alleged entrapment by the victim, the DCS’s agent provocateur, was left unanswered by the appellate court. The appellate court rejected as unfounded the applicant’s argument that the USD 10,000 had been meant to be used as an advance payment for construction works. The court noted in this connection that by the time the applicant had received the sum from Ms K. the construction permit had not been issued, and neither had an architectural plan and expenditure estimate been drawn up. 34. On 16 April 2007 the Supreme Court of Georgia, rejecting an appeal by the applicant on points of law as inadmissible, finally terminated the proceedings. 35. On 24 November 2008 the applicant was granted early release from prison under a presidential pardon.