European Court of Human Rights

Information Note on the Court’s case-law No. 173

Natsvlishvili and Togonidze v. Georgia - 9043/05

Judgment 29.4.2014 [Section III] See: [2014] ECHR 454

Article 6

Criminal proceedings

Article 6-1

Fair hearing

Conviction without the examination of the merits of the case following a plea bargain: no violation

Article 2 of Protocol No. 7

Right of appeal in criminal matters

Lack of right of appeal against conviction following plea bargain: no violation

Facts – The first applicant, the managing director of a public company in which he and his wife (the second applicant) also held shares, was charged with various company-law offences. An agreement was reached between the defence and the prosecution according to which the prosecutor undertook to request the trial court to convict the first applicant without an examination of the merits of the case and to seek a reduced sentence in the form of a fine. The trial court approved the agreement, found the applicant guilty and sentenced him to the payment of a fine. The decision could not be appealed.

In his application to the European Court, the first applicant complained that the plea-bargaining procedure was unfair and had amounted to an abuse of process (Article 6 § 1 of the Convention), that he had not been able to appeal against the decision approving the plea bargain (Article 2 of Protocol No. 7) and that his right to be presumed innocent had been breached by the extensive media coverage of his arrest and comments made by the regional governor in a television interview (Article 6 § 2 of the Convention). Both applicants also lodged complaints under Article 34 of the Convention and under Article 1 of Protocol No. 1.

Law – Article 6 § 1 of the Convention and Article 2 Protocol No. 7: The Court noted from the comparative law materials before it that it was a common feature of European criminal-justice systems for an accused to obtain the lessening of charges or a reduction of sentence in exchange for a guilty or nolo contendere plea before trial or substantial cooperation with the investigative authority. There was nothing improper in the process of plea bargaining in itself. However, where the process led to an abridged form of judicial examination and thus a waiver by the accused of a number of procedural rights, the waiver had to be established in unequivocal manner and be attended by minimum safeguards commensurate with its importance.

By striking a bargain with the prosecution over sentence and pleading no contest as regards the charges, the first applicant had waived his right to an examination of the case against him on the merits. Accordingly, the Court had to examine whether he had accepted the plea bargain in a genuinely voluntary manner in full awareness of the facts and legal consequences and whether there had been sufficient judicial review of the content of the plea bargain and of the fairness of the manner in which it had been reached.

The Court noted that the initiative for plea bargaining had emanated from the first applicant and had not been imposed by the prosecution. He had been granted access to the case materials and had been duly represented by qualified lawyers of his choice throughout the negotiations and during the judicial examination of the agreement. The judge examining the lawfulness of the plea bargain had enquired whether he had been subjected to any kind of undue pressure and the first applicant had explicitly confirmed on several occasions, both before the prosecution authority and the judge, that he fully understood the content of the agreement, that his procedural rights and the legal consequences of the agreement had been explained to him, and that he had not accepted it as a result of duress or false promises.

Importantly, a written record of the agreement had been drawn up, signed by the prosecutor, the first applicant and his lawyer, and submitted to the trial court for consideration, making it possible to have the exact terms of the agreement, as well as of the preceding negotiations, set out for judicial review.

The trial court had power to review the appropriateness of the sentence recommended by the prosecutor and to reduce it or indeed to reject the agreement altogether, depending upon its own assessment of the fairness of the terms and the process by which it had been entered into. The trial court had also enquired whether the accusations against the first applicant were well-founded and supported by prima facie evidence. In addition, it had examined and approved the plea bargain at a public hearing.

As regards the complaint under Article 2 of Protocol No. 7, the Court considered it normal for the scope of the exercise of the right to appellate review to be more limited with respect to a conviction based on a plea bargain. By accepting the plea bargain, the first applicant had waived his right to ordinary appellate review, a legal consequence that would or should have been explained to him by his lawyers. By analogy with its finding under Article 6 § 1, the Court considered that the waiver of the right to ordinary appellate review had not represented an arbitrary restriction on the requirement of reasonableness contained in Article 2 of Protocol No. 7.

Conclusion: no violation (six votes to one).

Article 6 § 2: The Court was mindful of the importance of the choice of words by public officials in their statements before a person had been tried and found guilty of an offence. However, the regional governor had not made any specific reference to the first applicant or to the criminal proceedings against him. Instead, he had made a general declaration about the State’s policy on the fight against corrupt public officials in the country, without in any way seeking to render the first applicant identifiable, either directly or indirectly, as the subject of his comments.

As to the filming of the first applicant’s arrest by journalists from a private television station, it could not be considered to have amounted to a virulent media campaign aimed at hampering the fairness of his trial. Nor was there any specific indication that the interest of the media in the matter had been sparked by the prosecutor, the governor or any other State authority. In sum, the media coverage of the first applicant’s case had not extended beyond what could be considered as merely informing the public of the arrest of the managing director of one of the largest factories in the country.

Conclusion: no violation (unanimously).

Article 1 Protocol No. 1: The forfeiture of the applicants’ assets and other payments which had occurred pursuant to the plea bargain had intrinsically been related to and resulted from the determination of the first applicant’s criminal liability. The lawfulness and appropriateness of those criminal sanctions of a pecuniary nature could not, therefore, be dissociated from the issue of the fairness of the plea bargain itself. Having regard to its findings under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 the Court concluded, for the same reasons, that there had been no violation of Article 1 of Protocol No. 1.

Conclusion: no violation (unanimously).

Article 34: The applicants alleged that the Georgian authorities had pressured them to withdraw their application. However, having regard to the content of the e-mail exchange initiated by the applicants’ daughter with the representative of the General Prosecutor’s Office and while noting that an informal channel of communication between the prosecution authority and a private third party was in no way an appropriate means by which to settle a case, the Court found that that interaction could not be said to have been incompatible in itself with the State’s obligations under Article 34. The representative’s contact with the applicants’ daughter had not been calculated to induce the applicants to withdraw or modify their application or otherwise interfere with the effective exercise of their right of individual petition, or indeed had had that effect.

Conclusion: no violation (unanimously).

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This summary by the Registry does not bind the Court.

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