In a judgment released on April 29, the European Court of Human Rights examined the compatibility of a plea bargain procedure with the fair trial protections of the European Convention on Human Rights. See ECtHR, Natsvlishvili and Togonidze v. Georgia, no. 9043/05, Judgment of 29 April 2014. This Chamber decision marks the first case in which the European Court has analyzed in detail any plea bargaining system. [ECtHR Press Release] Although the Chamber eventually found no violations concerning articles 6(1) (fair trial), 6(2) (presumption of innocence), and 34 (individual petition) of the European Convention on Human Rights, Article 1 of Protocol No. 1 (protection of property), or Article 2 of Protocol No. 7 (right of appeal in criminal matters), the Chamber judgment is notable for its discussion of the standards applicable to plea bargains and for its failure to address head-on the “shady factual circumstances” emphasized by Judge Gyulumyan in a partial dissent.
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The Applicants’ Allegations
As summarized by the European Court:
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 to the Convention. 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.
ECtHR, Natsvlishvili and Togonidze v. Georgia, Judgment of 29 April 2014, para. 3 (emphasis added).
The first applicant, former deputy mayor of Georgia’s second largest city and subsequently the managing director of a public company, was charged in 2004 with embezzling and misappropriating funds from the company. Id. at paras. 9-12. His arrest was broadcast on local television, at which time the prosecutor and regional governor both made public comments but did not speak about the particulars of the case. Id. at paras. 13-14. His wife, the second applicant, also owned shares in the company. After the first applicant was indicted, both applicants and several company employees transferred their considerable shares in the company to the State at the request of the prosecutor, who also required the first applicant’s family to make a payment of €14,700 to secure his release. Id. at paras. 23-25.
The first applicant then entered into a plea agreement whereby the prosecutor took note of his voluntary payments to repair the damage to the State and agreed to a reduced sentence in the form of an (apparently additional) €14,700 fine, although the applicant refused to confess to the charges. At the time of the agreement and upon its review by the judge, the first applicant stated that he fully understood the plea bargain and entered into it voluntarily. Id. at paras. 27-32. The agreement was approved by the local court and the first applicant was released. Id. at paras. 32-33.
Before the European Court, the first applicant argued that the plea bargaining process had been an abuse of process, in that the charges against him had been determined without a fair trial and he did not have a right to appeal the judicial approval of the agreement. Id. at para. 76. He further alleged that he should have been entitled to representation from the beginning of the criminal investigation and that the plea bargaining process did not include sufficient judicial review for fairness. Id. at para. 85.
More interestingly, the applicant supported his contentions by pointing to the general unfairness of the Georgian plea bargaining model and poor conditions of detention, arguing that:
…such a process could not fairly operate in a criminal justice system with a 99% conviction rate (see paragraphs 57-60 above). […] 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.
Id. at para. 86 (emphasis added). The applicant also alleged it was unfair that Georgian law allowed the prosecutor, only, to seek judicial approval of a plea bargain and to select the punishment to be imposed. Id. at para. 87. He further argued that the court should have been empowered to ask about the negotiations leading up to the agreement and to have access to a record of those discussions. Id. at para. 88.
Plea Bargain Proceedings
With regard to plea bargains generally, the European Court noted that it “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.” Id. at para. 90 (emphasis added).
Confirming that Article 6 (fair trial) of the European Convention does not prevent the waiver of procedural rights through plea bargaining, the Court emphasized that any such waiver must be clearly established, accompanied by minimum safeguards, and not against the public interest. Id. at para. 91. Specifically, the Court considered Article 6 to require that: “ (a) the bargain had to be accepted by the first applicant in full awareness of the facts of the case and the legal consequences and in a genuinely voluntary manner; and (b) the content of the bargain and the fairness of the manner in which it had been reached between the parties had to be subjected to sufficient judicial review.” Id. at para. 92 (emphasis added).
The Chamber noted the facts tending to show that the agreement was made voluntarily and with full awareness, including that the applicant had requested a plea bargain, “unequivocally expressed” his willingness to pay the money to the State, had access to the criminal case materials, was represented by legal counsel of his choosing from before the first investigative interview, was asked by the judge whether he had been subjected to any kind of undue pressure, and confirmed his understanding of the agreement on several occasions. Id. at para. 93.
Furthermore, the court reviewed the written record of the agreement, which was signed by the first applicant, his lawyer, and the prosecutor. Id. at para. 94. And, the court was entitled to reject the agreement and to assess and lessen the proposed sentence. Id. at para. 95. The European Court found no problem with the waiver of an ordinary trial or right of appeal through a plea bargain. Id. at paras. 96-97.
Based on the foregoing, the European Court concluded that the plea bargain respected the first applicant’s rights and “was an undoubtedly conscious and voluntary decision.” Id. at para. 97. Notably, the Chamber did not evaluate the impact on the fairness of the process, if any, of the conditions of the applicant’s detention or of the payments made prior to the plea agreement.
Publicity & Presumption of Innocence
With regard to the first applicant’s allegations that the public officials’ television interviews and broadcast of his arrest violated the presumption of his innocence, the European Court found no violation because “[the governor] did not make any specific reference either to the first applicant in person or to the criminal proceedings instituted against him” and, in its view, “the media coverage…did not extend beyond what can be considered as merely information the public about the arrest of the managing director of one of the largest factories in the country.” Id. at paras. 103-06.
Property Rights
Concerning the applicants’ allegations that the State “coerced them into forfeiting their shares in the factory free of charge and extorted additional money payments in exchange for the discontinuation of the criminal proceedings,” the European Court again found no violation, reiterating “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” and, having found that process to be fair, the sanctions were provided for by law. Id. at para. 110.
Partial Dissent of Judge Gyulumyan
In his partial dissent regarding the fairness of the plea bargain, Judge Gyulumyan emphasized the weaknesses of the Georgian plea bargaining procedure, which had been noted by legal commentators and the Monitoring Committee of the Parliamentary Assembly of the Council of Europe. ECtHR, Natsvlishvili and Togonidze v. Georgia, Judgment of 29 April 2014 (J. Gyulumyan, partly dissenting), para. 2. In focusing on this case, Judge Gyulumyan argued that it would have been impossible for the local judge to evaluate the fairness of the negotiations without access to a full recording, which was neither available in this case nor required by Georgian law. Id. at para. 3.
In Judge Gyulumyan’s view, “[s]everal shady factual circumstances of the case” “taint[ed] the presumption of equality between the parties pending the relevant negotiations,” including the fact that the company shares were transferred and monetary payments made to the State before the plea bargain was negotiated and that the first applicant was allegedly deliberately detained in stressful conditions. Id. at para. 3.
And, in view of the 99.6% conviction rate in Georgia, the applicant could not really believe he had a possibility of being acquitted or that he could negotiate the terms of the plea agreement. Id. at para. 4.
Further, Judge Gyulumyan viewed the judicial review as insufficient, both because the court completed its examination in one day and because the case materials available to the European Court did not seem to support the charges threatened by the prosecution. Id. at para. 5.
In light of the fact that the applicant had refused to plead guilty, Judge Gyulumyan argued that the Chamber should have differentiated instances in which a defendant admits his guilt when entering into a plea bargain from instances in which the defendant only agrees to the sentence, and that stricter procedural safeguards should apply to the latter scenario, particularly concerning the legitimacy of the charges. Id. at para. 7. The dissenting judge found these facts sufficient to constitute a violation of Article 6(1) (fair trial) of the Convention and Article 2 (right of appeal) of Protocol No. 7. Id. at para. 8.