EHRM, 29-04-2014, nr. 9043/05

The first applicant was the deputy mayor of Kutaisi, the second largest city of 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.

The first applicant was the principal shareholder in the factory after the State (78.61% of the shares), holding 12.95% of the shares through purchases made in 1998 and 2002. The second applicant held 2.6% of the shares, purchased in 2002, so together the couple owned a total of 15.55% of the shares.

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.

On 12 March 2004 the first applicant was accused of illegally reducing the share capital of the factory, for which he had been responsible firstly as managing director and secondly 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’).

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 that 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 on-going criminal investigation and would be assessed and analysed’; and that the charge which the first applicant faced carried up to twelve years in prison.

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’.

On 16 March 2004 the first applicant appointed a lawyer to protect his interests.

When questioned for the first time in the capacity of a suspect on 17 March 2004, the first applicant, assisted by his lawyer, protested his innocence and exercised his right to silence.

On the same day, 17 March 2004, the prosecution authority brought an application before the Kutaisi City Court to have the first applicant detained pending trial. The authority argued 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.

On 25 March 2004 the first applicant addressed a letter to the prosecution 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.’

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.

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.

On 1 August 2004 the applicant and his lawyer were given access to the criminal case materials. On 6 August 2004 the first applicant designated a second lawyer to protect his interests in the proceedings.

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.

On the same day, 6 September 2004, both applicants transferred their shares free of charge, representing an overall total of 15.55% of the factory's share capital, to the State.

According to a written statement in the case file from Mr G.T.-ia, 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 prosecution 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.

The file also contains a witness statement by Mrs M.I.-dze, the second applicant's sister-in-law, that the public prosecutor had also demanded that the first applicant's family pay 50,000 Georgian 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.-dze therefore agreed to pay the required amount in her own name.

As confirmed by the relevant bank transfer receipt, that payment was made on 8 September 2004, with Mrs M.I.-dze's name duly appearing on the document as the source of the transfer.

On the following day, 9 September 2004, the first applicant filed a written statement with the public prosecutor, requesting him to arrange for ‘a procedural agreement’ (hereafter ‘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.

On the same day the public prosecutor of Kutaisi offered and the first applicant accepted a plea bargain regarding the 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 repairing the damage of GEL 4,201,663 (approximately EUR 1,765,000) 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 both the prosecutor and the applicant and his two lawyers.

On the same day, 9 September 2004, the public prosecutor filed a brief with the Kutaisi City Court, requesting approval of the aforementioned procedural agreement 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.

On the same day, 9 September 2004, Mrs M.I.-dze effected a bank transfer whereby the State was paid the fine of GEL 35,000 (EUR 14,700) as per the above-mentioned procedural agreement between the first applicant and the public prosecutor.

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 27 above), his rights under Article 679-3 of the Code of Criminal Procedure. 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 procedural bargain, as submitted by the prosecutor, confirming that they fully assumed its consequences. The lawyer added that he had assisted 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.

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, 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’.

The City Court further held that, following the judicial examination, it reached the conclusion that the procedural agreement 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.

As mentioned in the operative part, the Kutaisi City Court's decision of 10 September 2004 was final and not subject to an 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.

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.

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.

In support of that assertion, the applicants submitted a written statement given by their daughter, Ms A. Natsvlishvili, dated 6 November 2007.

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.

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.

Ms Natsvlishvili was the first to contact, on 14 September 2006, Ms T.B., asking the latter, as a friend and an experienced lawyer, to give her some advice about her master's thesis and a forthcoming examination in law.

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.

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’.

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.

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.

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:

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’.

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:

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).

The relevant provisions concerning a ‘procedural agreement’ (‘საპროცესო შეთანხმება’ in Georgian, saprotseso shetankhmeba), or plea bargaining, as introduced into the CCP on 13 February 2004 and amended for the first time on 24 June 2004 and thus applicable at the material time, read as follows:

Article 15

Article 679-1

Article 679-2 §§ 2, 3 and 4

Article 679-3

Article 679-4 §§ 1, 3, 4, 5, 6 and 7

Article 679-7 §§ 2 and 3

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).

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 bargain (Article 679-3 § 2(1)).

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

The amendment in question did not specify whether an appeal could lie, on the aforementioned grounds, against decisions prior to 25 March 2005.

In February 2010, Transparency International Georgia (TI Georgia), a national chapter of the above-mentioned international non-governmental organisation, issued its first analytical report on the plea-bargaining system in Georgia — Plea Bargaining in Georgia.

After having set out the procedure, the State's rationale for the introduction of plea bargaining into its legal system, the facts concerning its use (according to the official statistical data, in 2005 the number of criminal cases terminated by plea bargaining constituted 12.7%), the report analysed the risks that the unique Georgian model of plea bargaining posed to the right to a fair trial.

Accordingly, some of the relevant excerpts from the latter part of the report read as follows (all the statistics mentioned in the report were official, obtained by TI Georgia either from the Supreme Court of Georgia or the GPO):

According to the official statistics obtained by the TI Georgia from the Supreme Court of Georgia and quoted in its two above-mentioned reports, the rate of acquittals in Georgia represented 0.4% in 2004, 0.7% in 2005, 0.2% in 2006 and remained at 0.1% between 2007 and 2009.

The Government submitted that plea bargaining, a form of consensual and abbreviated criminal justice, had been successfully incorporated in the legislation and practice of various European States and worldwide in harmony with the fundamental fair trial guarantees. The emergence and spread of plea bargaining had been driven by the increased interests of procedural economy. The Government highlighted that as early as in 1987 the member States of the Council of Europe had been advised by the Committee of Ministers to develop means of simplifying and expediting trial procedures, which included summary judgments, out-of-court negotiations and guilty pleas (see paragraph 54 above). They further emphasised that the plea-bargaining process represented a practical and one of the most successful tools against corruption and organised crime. The introduction of plea bargaining in Georgia in 2004 could not possibly be fully understood without appreciating the context of endemic criminality and corruption pervading in the country at that time. The use of plea bargaining had been intended to be an urgent response to those systemic problems.

The Government submitted that plea bargaining in Georgia implied a waiver of certain procedural rights in exchange for a more lenient sentence and an expedited trial. Nevertheless, the most substantive guarantees of a fair trial had still been retained under the domestic law, and they had been duly put into practice in the first applicant's criminal case. Thus, first of all, the first applicant had been represented by qualified legal counsel, had given his prior approval before negotiations with the public prosecutor were started, and had provided the requisite written acceptance, countersigned by his lawyer, of the terms of the agreement reached. Subsequently, the trial court had examined the plea bargain at an oral and public hearing, during which it had enquired as to whether the plea bargain had been reached without duress and under otherwise fair conditions and whether the first applicant was willing to accept it in full awareness of the nature of the charges and the potential sentence. As further guarantees, the Government referred to the fact that not only had the first applicant been entitled to reject the agreed plea bargain during the court's review, but also the judge, who had been required to assess the validity of the accusations, had been empowered to block the plea bargain in the event of any doubt as to the first applicant's criminal liability.

In support of the claim that the first applicant had been in full awareness of the contents of the plea bargain and had consented to it voluntarily, the Government referred to the following factual circumstances of the case. Firstly, the first applicant had been represented by a qualified lawyer of his choice as early as on 16 March 2004, the very next day after his arrest (see paragraph 15 above). On 25 March 2004 he had addressed a letter to the public prosecutor, expressing his intention to cooperate with the authorities and reach a settlement (see 18 paragraph above). On 1 August 2004 the first applicant was given access to the criminal case materials, and on 6 August 2004 he appointed a second qualified lawyer of his choice (see paragraph 21 above). With the investigation having been terminated and the evidence against the first applicant added to the case file by 6 September 2004, an indictment accusing the first applicant of large-scale misappropriation of public funds had been issued by the public prosecutor. Having duly acquainted himself with the indictment and the evidence collected, the first applicant, represented by his two lawyers, had again confirmed his readiness to cooperate with the authorities and had transferred on the same day, 6 September 2004, the shares in the factory to the State in reparation of the damage caused by his conduct (see paragraphs 22 and 23 above).

On 9 September 2004 the first applicant had filed another written statement with the public prosecutor. He had expressed his wish to reach a plea bargain as regards the sentence and pay GEL 35,000 as a fine. In that statement, he had explicitly confirmed that he fully understood the concept of plea bargaining. On the same date, the public prosecutor had visited the first applicant in prison, where, in the presence of his two lawyers, a written record of the agreement had been drawn up and signed by all persons concerned. Subsequently, that record had been duly examined by the court (see paragraphs 27–29 above).

As regards the adequacy of the judicial review of the plea bargain between the first applicant and the prosecution authority, the Government submitted that during the hearing of 10 September 2004 the judge had ensured that the agreement had been reached on the basis of the first applicant's free will and informed consent. In support, the Government referred to the relevant excerpts from the record of the hearing. The Government stressed that the Kutaisi City Court had been fully able to verify whether the guarantees of due process had been respected by the parties during the plea-bargaining negotiations, given that it had had the complete file before it, including: the first applicant's statement of 9 September 2004 expressing his willingness to enter into a plea bargain; the agreement itself, signed by both the first applicant and his lawyer and by the public prosecutor; and the prosecutor's application for the court to approve that agreement.

Furthermore, as confirmed by the record of the hearing of 10 September 2004, the City Court had questioned the first applicant, who had unambiguously maintained his interest in terminating the proceedings by means of the plea bargain. The same had been confirmed by his lawyer. In other words, the City Court had done everything possible to ensure that the first applicant had freely and knowingly entered into the plea bargain. Otherwise, the City Court would have rejected the bargain, as it had had the power to do by virtue of applicable domestic law. The Government further submitted that, even if the plea bargain had been protected by a confidentiality clause (Article 679-2 § 4 of the CCP), which was conditioned by a number of legitimate considerations, the hearing on 10 September 2004 had been open to the public. In support of that contention, the Government submitted written statements taken from the first applicant's lawyer, the prosecutor and a member of the Registry of the Kutaisi City Court, dated 10 and 11 July 2007, all of whom had attended the hearing in question. Those witnesses had confirmed that the hearing had been public and that the court administration had not prevented any interested person from entering the courtroom.

Lastly, as regards the first applicant's inability to lodge an appeal against the Kutaisi City Court's decision of 10 September 2004, the Government argued that by having accepted the plea bargain he had unambiguously waived, similarly to some other fair trial rights, his right to appeal. All in all, the Government argued that the plea-bargaining process which had resulted in the first applicant's conviction through an abridged form of trial had not infringed either Article 6 § 1 of the Convention or Article 2 of Protocol No. 7.

The first applicant maintained that the termination of the criminal proceedings against him through the use of the plea bargain had amounted to a breach of Article 6 § 1 and Article 2 of Protocol No. 7 of the Convention, in so far as the charges against him had been determined without a fair trial and the possibility of lodging an appeal. Whilst the acceptance of the bargain had entailed a waiver of certain procedural rights, that waiver had not been accompanied by effective safeguards against the abuse of due process by the prosecution authority. To demonstrate the deficiencies of the Georgian model of plea bargaining in general, the first applicant gave his own comparative overview of how similar plea-bargaining mechanisms function in a number of other European countries (notably in Germany, the United Kingdom, Italy, France and Russia). On the basis of that comparison, he claimed that, unlike legal systems of the aforementioned countries, the Georgian model of plea bargaining had not allowed him to be represented by an advocate from the beginning of the investigation and had not allowed a judge to undertake sufficient review of the fairness of the circumstances in which the plea bargain had been reached.

Referring to the relevant international observations concerning the Georgian model of plea bargaining, the first applicant submitted that such a process could not fairly operate in a criminal justice system with a 99% conviction rate (see paragraphs 57–60 above). He also referred to the results of an empirical study, according to which even in those criminal justice systems in which the acquittal rate amounted to 15–20%, accused persons who considered themselves innocent often chose to plead guilty. In other words, it could not be said that his decision to accept a plea bargain had been truly voluntary. Consequently, the only real opportunity for him to avoid a lengthy term of imprisonment had been entering into a plea bargain. The first applicant emphasised in that connection that, at the time of accepting the plea bargain, he had been detained in particularly intolerable and highly stressful conditions, sharing a cell with a murderer and a person who had abducted and ill-treated him in December 2002. He also referred in that connection to the systemic problem of poor physical conditions of detention in all of the post-conviction custodial institutions of Georgia at the material time.

The first applicant complained that the Georgian model of plea bargaining gave unrestricted rights and privileges to the prosecution authority, a legislative deficiency which excluded any possibility of an agreement being reached between the parties on a more or less equal footing. In that respect, the first applicant again referred to the conclusions of the study conducted by Transparency International Georgia (see paragraphs 58–60 above). He also condemned the fact that only the prosecutor and not the defendant was entitled, under the domestic law, to apply to the court with a plea bargain request at the material time and that it was the prosecutor and not the judge who had been empowered to choose what kind of punishment was to be imposed pursuant to the plea bargain. The first applicant also criticised the absence of a clear definition of the notion of ‘cooperation with the investigation’ under domestic law, a legislative lacuna which increased the risk of procedural abuses.

The first applicant asserted that neither the public prosecutor nor the judge had warned him about the waiver of all his procedural rights in the event of entering into a plea bargain. He also complained that the domestic court's powers in the plea-bargaining process had not represented a sufficient system of checks and balances on potential abuses of power by the prosecutor. The domestic court had only been able to review the plea agreement itself, and had been unable to enquire as to how the relevant negotiations had been conducted and whether any abuses had been committed during those negotiations, as there had been no written or audio record of those negotiations. Thus, even if the Kutaisi City Court had formally asked the first applicant during the hearing of 10 September 2004 whether he had been subjected to any form of pressure during the preceding negotiations, that enquiry could not have been an effective check, as it was clear that the first applicant, who had been detained at that time under the control of the executive branch of the State, would not have dared to confide in the court about such duress. Furthermore, the domestic court had not attempted to ensure that the applicant, an accused person, had fully understood the facts which had given rise to the charges against him.

The first applicant complained that the Kutaisi City Court had endorsed the plea bargain in a single day, whereas it had been objectively impossible to study the case materials in such a short period. His guilt and punishment had, in reality, been established by the prosecutor, and the domestic court had formally endorsed the prosecutor's findings without carrying out its own judicial inquiry. Furthermore, observing that the transfer of the shares and the payments had taken place on 6, 8 and 9 September 2004, that is, prior to the approval of the plea bargain by the Kutaisi City Court on 10 September 2004, he submitted that if he had refused to accept the proposed plea bargain before the Kutaisi City Court on 10 September 2004, that would have only led to the continued deprivation of his liberty, in addition to the loss of all the previously forfeited assets, without receiving anything in exchange. In that respect, the first applicant emphasised that he had never pleaded guilty to the offences he had been accused of. Lastly, the first applicant maintained his complaint of the inability to lodge an appeal against the City Court's decision of 10 September 2004 convicting him on the basis of the plea bargain, claiming that the relevant criminal procedural legislation had not provided him with any legal avenue through which to contest the coercion applied to him during the plea-bargaining negotiations.

At the outset and in reply to the first applicant's certain empirical arguments about the viability of the early Georgian model of plea bargaining, the Court reiterates that it cannot be its task to review whether the relevant domestic legal framework was, per se, incompatible with the Convention standards. Rather, this matter must be assessed by taking into consideration the specific circumstances of the first applicant's criminal case. The Court further notes that it may be considered as a common feature of European criminal justice systems for an accused to obtain the lessening of charges or receive a reduction of his or her sentence in exchange for a guilty or nolo contendere plea in advance of trial or for providing substantial cooperation with the investigative authority (see the comparative legal study, paragraphs 62–75 above; see also, in this connection, Slavcho Kostov v. Bulgaria, no. 28674/03, § 17, 27 November 2008, and Ruciński v. Poland, no. 33198/04, § 12, 20 February 2007). There cannot be anything improper in the process of charge or sentence bargaining in itself (see, mutatis mutandis, Babar Ahmad and Others v. the United Kingdom (dec.), nos. 24027/07, 11949/08 and 36742/08, ECHR 6 July 2010). In this respect, the Court subscribes to the idea that plea bargaining, apart from offering the important benefits of speedy adjudication of criminal cases and alleviating the workload of courts, prosecutors and lawyers, can also be, if applied correctly, a successful tool in combating corruption and organised crime and can contribute to the reduction of the number of sentences handed down and as a result to the number of prisoners.

The Court considers that where the effect of plea bargaining is that a criminal charge against the accused is determined through an abridged form of judicial examination, this amounts, in substance, to the waiver of a number of procedural rights. This cannot be a problem in itself, since neither the letter nor the spirit of Article 6 prevents a person from waiving these safeguards of his or her own free will (see Scoppola v. Italy (no. 2) [GC], no. 10249/03, § 135, 17 September 2009). The Court observes in this connection that as early as in 1987 the Committee of Ministers of the Council of Europe called upon the member States to take measures aimed at the simplification of ordinary judicial procedures by resorting, for instance, to abridged, summary trials (see paragraph 54 above). However, it is also a cornerstone principle that any waiver of procedural rights must always, if it is to be effective for Convention purposes, be established in an unequivocal manner and be attended by minimum safeguards commensurate with its importance. In addition, it must not run counter to any important public interest (see, amongst other authorities, Scoppola (no. 2), cited above, § 135–136; Poitrimol v. France, 23 November 1993, § 31, Series A no. 277-A; and Hermi v. Italy [GC], no. 18114/02, § 73, ECHR 2006-XII).

The Court thus observes that by striking a bargain with the prosecution authority over the sentence and pleading no contest as regards the charges, the first applicant waived his right to have the criminal case against him examined on the merits. However, by analogy with the above-mentioned principles concerning the validity of such waivers, the Court considers that the first applicant's decision to accept the plea bargain should have been accompanied by the following conditions:

In this connection, the Court first notes that it was the first applicant himself who asked the prosecution authority to arrange for a plea bargain. In other words, the initiative emanated from him personally and, as the case file discloses, could not be said to have been imposed by the prosecution; the first applicant unequivocally expressed his willingness to repair the damage caused to the State (see paragraphs 14, 18, 22 and 27 above). He was granted access to the criminal case materials as early as 1 August 2004 (see paragraph 21 above). The Court also observes that the first applicant was duly represented by two qualified lawyers of his choice (compare with Hermi v. Italy, cited above, § 79). One of them started meeting with the first applicant at the very beginning of the criminal proceedings, representing him during the first investigative interview of 17 March 2004 (see paragraphs 15 and 16). The two lawyers ensured that the first applicant received advice throughout the plea-bargaining negotiations with the prosecution, and one of them also represented the first applicant during the judicial examination of the agreement. Of further importance is the fact that the judge of the Kutaisi City Court, who was called upon to examine the lawfulness of the plea bargain during the hearing of 10 September 2004, enquired with the first applicant and his lawyer as to whether he had been subjected to any kind of undue pressure during the negotiations with the prosecutor. The Court notes that the first applicant explicitly confirmed on several occasions, both before the prosecution authority and the judge, that he had fully understood the content of the agreement, had had his procedural rights and the legal consequences of the agreement explained to him, and that his decision to accept it was not the result of any duress or false promises (see paragraphs 27, 28 and 31 above).

The Court also notes that a written record of the agreement reached between the prosecutor and the first applicant was drawn up. The document was then signed by the prosecutor and by both the first applicant and his lawyer, and submitted to the Kutaisi City Court for consideration. The Court finds this factor to be important, as it made it possible to have the exact terms of the agreement, as well as of the preceding negotiations, set out for judicial review in a clear and incontrovertible manner.

As a further guarantee of the adequacy of the judicial review of the fairness of the plea bargain, the Court attaches significance to the fact that the Kutaisi City Court was not, according to applicable domestic law, bound by the agreement reached between the first applicant and the prosecutor. On the contrary, the City Court was entitled to reject that agreement depending upon its own assessment of the fairness of the terms contained in it and the process by which it had been entered into. Not only did the court have the right to assess the appropriateness of the sentence recommended by the prosecutor in relation to the offences charged, it had the power to lessen it (Article 679-4 §§ 1, 3, 4 and 6). The Court is further mindful of the fact that the Kutaisi City Court enquired, for the purposes of effective judicial review of the prosecution authority's role in plea bargaining, whether the accusations against the first applicant were well-founded and supported by prima facie evidence (Article 679-4 § 5). The fact that City Court examined and approved the plea bargain during a public hearing, in compliance with the requirement contained in Article 679-3 § 1 of the CCP, additionally contributed, in the Court's view, to the overall quality of the judicial review in question.

Lastly, as regards the first applicant's complaint under Article 2 of Protocol No. 7, the Court considers that it is 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, which represents a waiver of the right to have the criminal case against the accused examined on the merits, than it is with respect to a conviction based on an ordinary criminal trial. It reiterates in this connection that the Contracting States enjoy a wide margin of appreciation under Article 2 of Protocol No. 7 (see, amongst others, Krombach v. France, no. 29731/96, § 96, ECHR 2001-II). The Court is of the opinion that by accepting the plea bargain, the first applicant, as well as relinquishing his right to an ordinary trial, waived his right to ordinary appellate review. That particular legal consequence of the plea bargain, which followed from the clearly worded domestic legal provision (Article 679-7 § 2), was or should have been explained to him by his lawyers. By analogy with its earlier findings as to the compatibility of the first applicant's plea bargain with the fairness principle enshrined in Article 6 § 1 of the Convention (see paragraphs 92–95 above), the Court considers that the waiver of the right to ordinary appellate review did not represent an arbitrary restriction running afoul of the analogous requirement of reasonableness contained in Article 2 of Protocol No. 7 either (for the general principle concerning the correlation between the fairness requirements of these two provisions, see Galstyan v. Armenia, no. 26986/03, § 125, 15 November 2007).

In the light of the foregoing, the Court concludes that the first applicant's acceptance of the plea bargain, which entailed the waiver of his rights to an ordinary examination of his case on the merits and to ordinary appellate review, was an undoubtedly conscious and voluntary decision. Judging by the circumstances of the case, that decision could not be said to have resulted from any duress or false promises made by the prosecution, but, on the contrary, was accompanied by sufficient safeguards against possible abuse of process. Nor can the Court establish from the available case materials that that waiver ran counter to any major public interest.

It follows that there has been no violation of either Article 6 § 1 of the Convention or Article 2 of Protocol No. 7.

The Government submitted that the Regional Governor's carefully worded interview had not amounted to a statement that the first applicant was guilty. The Governor had never made specific reference to the criminal case against the first applicant, but rather had expressed the State's position as regards corruption in general. The Governor had not even mentioned the first applicant's name, let alone made any declaration transgressing the presumption of the first applicant's innocence. As to the fact that there had been media coverage of the first applicant's arrest, the Government argued that the applicants had failed to submit any evidence which could suggest that the journalists had been there upon the authorities' invitation.

The first applicant disagreed. He maintained that his arrest in front of the journalists' cameras, which had allegedly been there upon the prosecutor's invitation, and the Governor's interview, had served the purpose of giving the public the impression that he was guilty. The first applicant claimed that the prosecutor and the Government had instigated a media campaign against him which had adversely affected his right to the presumption of innocence and the subsequent trial.

The Court reiterates that the presumption of innocence enshrined in Article 6 § 2 of the Convention is one of the elements of a fair criminal trial required by Article 6 § 1. It will be violated if a statement of a public official concerning a person charged with a criminal offence reflects an opinion that he is guilty before he has been proved so according to law. It suffices, even in the absence of any formal finding, that there is some reasoning to suggest that the official regards the accused as guilty (see, mutatis mutandis, Allenet de Ribemont v. France, 10 February 1995, § 35, Series A no. 308, and Minelli v. Switzerland, 25 March 1983, § 37, Series A no. 62). The Court is mindful of the importance of the choice of words by public officials in their statements before a person has been tried and found guilty of an offence (see Daktaras v. Lithuania, no. 42095/98, § 41, ECHR 2000-X). The principle of the presumption of innocence may be infringed not only by a judge or court, but also by other public authorities, including prosecutors (see Kuzmin v. Russia, no. 58939/00, §§ 51–63, 18 March 2010; Daktaras, cited above§ 42; and Konstas v. Greece, no. 53466/07, § 32, 24 May 2011). The question whether a statement of a public official is in breach of the principle of the presumption of innocence must be determined in the context of the particular circumstances in which the statement in question was made (see Daktaras, cited above, § 43).

As regards the Regional Governor's interview, the Court attaches importance to the fact that that official did not make any specific reference either to the first applicant in person or to the criminal proceedings instituted against him. Rather, the Governor made a general declaration about the State's policy on the fight against corrupt public officials in the country. Judging by that interview, the Court cannot conclude that the Governor aimed in any manner at rendering the first applicant identifiable, either directly or indirectly, as the subject of his comments in question (contrast, for instance, with Konstas, cited above, §§ 39–40).

The Court has also had regard to the first applicant's argument concerning a media campaign allegedly instigated against him by the prosecutor and the Governor. Indeed, in certain situations, a virulent media campaign can adversely affect the fairness of a trial and involve the State's responsibility. This may occur so with regard to the impartiality of the court under Article 6 § 1, as well as with regard to the presumption of innocence embodied in Article 6 § 2 (see Shuvalov v. Estonia, no. 39820/08 and 14942/09, § 82, 29 May 2012; Ninn-Hansen v. Denmark (dec.), no. 28972/95, ECHR 1999-V; and Anguelov v. Bulgaria (dec.), no. 45963/99, 14 December 2004). However, the Court does not consider that the filming of the first applicant's arrest by journalists from a private television station already amounted to a virulent media campaign aimed at hampering the fairness of the trial, nor is there any specific indication that the interest of the media in the matter was sparked by the prosecutor, the Governor or any other State authority. In the Court's opinion the media coverage of the present case did not extend beyond what can be considered as merely informing the public about the arrest of the managing director of one of the largest factories in the country.

There has accordingly been no violation of Article 6 § 2 of the Convention.

The Government submitted that there had been no violation of Article 1 of Protocol No. 1, given that the forfeiture of their various assets and payment of the fine had not constituted a deprivation of property or some other type of interference with the peaceful enjoyment thereof, but rather a voluntary decision to reimburse the damage caused to the State by the first applicant's criminal activity and had formed part, in the form of a lawful and entirely proportionate measure, of the relevant plea bargain.

The applicants disagreed, maintaining that they had not freely chosen to forfeit the assets and pay the fines but had been coerced into doing so as a result of the undue pressure exercised by the prosecution in the course of the plea bargaining.

The Court reiterates that the forfeiture of the applicants' assets and the other payments which occurred pursuant to the plea bargain were intrinsically related to and resulted from the determination of the first applicant's criminal liability (see Natsvlishvili and Togonidze v. Georgia (dec.), no. 9043/05, § 84, 25 June 2013). The lawfulness and appropriateness of those criminal sanctions of a pecuniary nature cannot thus be dissociated from the issue of the fairness of the plea bargain itself. However, having regard to its comprehensive findings under Article 6 § 1 of the Convention and Article 2 of Protocol No. 7 (see paragraphs 90–98 above), the Court concludes, for the same reasons, that there has been no violation of Article 1 of Protocol No. 1.

The Government submitted that the GPO had simply attempted to conduct friendly settlement negotiations with the applicants, and that it was unethical for the applicants to disclose the contents of those negotiations by referring to them during the contentious proceedings, in breach of the confidentiality principle contained in Rule 62 § 2 of the Rules of Court. In that respect, the Government, observing that the Convention system was open to ‘out-of-court’ and ‘in court’ settlements or agreements between the parties at all stages of the proceedings, argued that Rule 62 § 2 should be held applicable to the ‘out-of-court’ negotiations conducted between the applicants' daughter and a representative of the GPO.

The Government emphasised that the applicants' daughter had been the first to approach the representative from the GPO, whom she had considered to be her friend, asking the latter to explain the friendly settlement procedure. In response, the representative from the GPO had provided the applicants' daughter, in her e-mails, with all relevant information and advice. The representative had never demanded that the applicants withdraw their case, but rather had attempted to arrange a settlement acceptable to both sides.

The applicants first replied that the confidentiality principle contained in Rule 62 § 2 of the Rules of Court had not applied to their situation, as the negotiations between their daughter and the representative from the GPO had been conducted outside the Court's procedural framework. Highlighting that the GPO representative had warned the applicants' daughter, in her e-mail dated 11 December 2006, that new criminal proceedings could be launched against her father if he refused to accept a settlement and withdraw his application to the Court, the applicants maintained their complaint of undue pressure.

The Court reiterates that, according to Article 39 § 2 of the Convention, friendly-settlement negotiations are confidential. Furthermore, Rule 62 § 2 of its Rules stipulates that no written or oral communication and no offer or concession made in the course of friendly-settlement negotiations may be referred to or relied on in contentious proceedings. Noting the importance of this principle, the Court reiterates that a breach of the rule of confidentiality might justify the conclusion that an application is inadmissible on the grounds of abuse of the right of application (see Miroļubovs and Others v. Latvia, no. 798/05, § 68, 15 September 2009, and Balenović v. Croatia (dec.), no. 28369/07, 30 September 2010).

However, the Court does not see how the confidentiality principle contained in Rule 62 § 2 of the Rules of Court can be held applicable to the settlement negotiations conducted in the present case. In fact, those negotiations took place directly between the applicants' family and the General Prosecutor's Office, entirely without the Court's involvement. The parties' friendly settlement proposals, or at least their positions on the matter, were never filed with the Registry. The Court is consequently of the opinion that the confidentiality principle contained in the Rules of Court, which body of rules governs the organisation and working practices of the Court, cannot possibly apply to something which took place outside its procedural framework. The Government's objection should thus be rejected.

As to the essence of the applicants' complaint that the GPO had pressured them to withdraw their application, the Court reiterates that it is of the utmost importance for the effective operation of the system of individual petition instituted by Article 34 that applicants or potential applicants should be able to communicate freely with the Court without being subjected to any form of pressure from the authorities to withdraw or modify their complaints (see, among other authorities, Akdivar and Others v. Turkey, 16 September 1996, § 105, Reports of Judgments and Decisions 1996-IV, and Aksoy v. Turkey, 18 December 1996, § 105, Reports 1996-VI). In this context, ‘pressure’ includes not only direct coercion and flagrant acts of intimidation but also other improper indirect acts or contacts designed to dissuade or discourage applicants from pursuing a Convention remedy (see Kurt v. Turkey, 25 May 1998, § 159, Reports 1998-III).

However, having particular regard to the content of the e-mail exchange initiated by the applicants' daughter with the GPO representative (see paragraphs 36-48 above), which was the only piece of evidence submitted by the applicants in support of their complaint, the Court, whilst noting that an informal channel of communication between the prosecution authority and a private third party is in no way an appropriate means with which to settle a case, still considers that that interaction cannot be said to have been incompatible in itself with the State's obligations under Article 34 of the Convention. The Court observes that the GPO representative's contact with the applicants' daughter was not 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 this effect (compare, for instance, with Konstantin Markin v. Russia [GC], no. 30078/06, §§ 162–163, ECHR 2012 (extracts)).

The authorities of the respondent State cannot thus be held to have hindered the applicants in the exercise of their right of individual petition, and the respondent State has not failed to comply with its obligations under Article 34 of the Convention.