CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 29 avril 2014

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GEORGIA   (Application no. 9043/05)                 JUDGMENT       STRASBOURG   29 April 2014     FINAL   08/09/2014   This judgment has become final under Article 44 § 2 of the Convention. In the case of Natsvlishvili and Togonidze v. Georgia, The European Court of Human Rights (Third Section), sitting 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 deliberated in private on 15 October 2013 and 3 April 2014, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.     The case originated in an application (no. 9043/05) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by two Georgian nationals, Mr Amiran Natsvlishvili (“the first applicant”) and Mrs   Rusudan Togonidze (“the second applicant”), on 9 March 2005. 2.     The applicants, who had been granted legal aid for the purposes of an oral hearing on the merits (see paragraphs 5 and 6 below), were represented by Ms M. Gioshvili, Ms E. Fileeva and Mr K. Koroteev, lawyers practising in Georgia and the Russian Federation. The Georgian Government (“the Government”) were successively represented by their Agents, Mr   M.   Kekenadze, Mr D. Tomadze and Mr L. Meskhoradze, of the Ministry of Justice. 3.     The first applicant alleged, in particular, that the plea-bargaining process, as provided for by domestic law at the material time and applied in his case, had been an abuse of process and unfair, in breach of Article   6   §   1 of the Convention and Article 2 of Protocol No. 7. He further alleged that the publicity given to his arrest had breached his right to be presumed innocent under Article 6 § 2 of the Convention. In addition, both applicants alleged that the State had hindered them in the exercise of their right of individual petition, contrary to Article 34 of the Convention, and that the financial penalties imposed upon them as part of the plea ‑ bargaining process had breached their property rights under Article   1 of Protocol No. 1. 4.     The applicants and the Government each filed observations on the admissibility and merits of the application. 5.     By a final decision of 25 June 2013, the Court declared the application admissible in part (Article 29 § 1 in fine of the Convention). As to the further procedure, the Court decided to obtain the parties’ oral submissions on the merits (Rule 59 § 3 of the Rules of Court). 6.     A hearing on the merits took place in public in the Human Rights Building, Strasbourg, on 15 October 2013 (Rule 59 § 3). There appeared before the Court: (a)     for the Government Mr G. Lortkipanidze , Deputy Minister of Justice, Mr A. Baramidze , Deputy Minister of Justice , Mr L. Meskhoradze , Agent , Ms Sh. Mezurnishvili, MsN. Mezvrishvili, Advisers ; (b)     for the applicants Ms M. Gioshvili, Ms E. Fileeva, Mr K. Koroteev, Counsel.   The Court heard addresses by Mr Meskhoradze, Ms   Gioshvili, Ms   Fileeva and Mr Koroteev. 7.     On 1 February 2014 the Court changed the composition of its Sections, but the present application was retained by the Third Section. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 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. A.     Background 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. B.     Criminal proceedings against the first applicant 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 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”). 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. C.     The proceedings before the Court 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 above ‑ mentioned 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). II.     RELEVANT DOMESTIC LAW AND INTERNATIONAL DOCUMENTS A.     The Code of Criminal Procedure (“the CCP”) 49.     The relevant provisions concerning “procedural agreements” (“ საპროცესო შეთანხმება” in Georgian, saprotseso shetankhmeba ), or plea bargaining, were introduced into the CCP on 13 February 2004 and amended for the first time on 24 June 2004, and were thus applicable at the material time. They 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.     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.     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 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.     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.” 50.     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). 51.     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 plea bargain (Article   679 ‑ 3 § 2 (1)). 52.     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].” 53.     The amendment in question did not specify whether an appeal could lie, on the aforementioned grounds, against decisions prior to 25   March 2005. B.     Council of Europe 1.     Recommendation No. R (87) 18 of the Committee of Ministers to member States concerning the simplification of criminal justice 54.     This Recommendation was adopted by the Committee of Ministers of the Council of Europe on 17 September 1987 and concerned simplified and summary procedures. A relevant excerpt reads as follows: “Having regard to the increase in the number of criminal cases referred to the courts, and particularly those carrying minor penalties, and to the problems caused by the length of criminal proceedings; Considering that delay in dealing with crimes brings criminal law into disrepute and affects the proper administration of justice; Considering that delays in the administration of criminal justice might be remedied, not only by the allocation of specific resources and the manner in which these resources are used, but also by a clearer definition of priorities for the conduct of crime policy, with regard to both form and substance, by: –     resorting to the principle of discretionary prosecution; –     making use of the following measures when dealing with minor and mass offences: –     so-called summary procedures, –     out-of-court settlements by authorities competent in criminal matters and other intervening authorities, as a possible alternative to prosecution, –     so-called simplified procedures; –     the simplification of ordinary judicial procedures; ...” 2.     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 2004 55.     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 plea 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 [United States dollars] 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.” 3.     Resolution 1415 (2005) of the Parliamentary Assembly of the Council of Europe 56.     On 24 January 2005 the Parliamentary Assembly of the Council of Europe, 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: ... a.     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; ...” 4.     Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Georgia from 18 to 20   April 2011 57.     The relevant part of the Report issued by the Commissioner for Human Rights on 30 June 2011, which concerned the plea-bargaining system in Georgia, reads as follows: “ 2.     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 t