ECtHR: Property Confiscation Legal When Serving Public Interest in Combating Corruption
Last week, on May 12, 2015, in Gogitidze and Others v. Georgia, the European Court of Human Rights held that the confiscation of property from a former public official did not violate the European Convention on Human Rights. The applicants claimed that Georgia had violated their right to property under the First Protocol to the European Convention, and their right to a fair trial under the European Convention. In finding no violation of the right to property, the Court reasoned that the State had struck a fair balance between the means taken to confiscate the applicants’ assets and the public interest in combating State corruption. Regarding the right to a fair trial, the Court found that the applicants had waived their right to participate in proceedings by failing to appear at the trial. See ECtHR, Gogitidze and Others v. Georgia, no. 36862/05, Judgment of 12 May 2015.
The four applicants were Sergo Gogitidze, his two sons Anzor and Aleksandre Gogitidze, and his brother, Tengiz Gogitidze. Sergo had previously held the post of Ajarian Deputy Minister of the Interior and President of the Audit Office. In 2004, he was charged with abuse of authority and extortion, based on the prosecutor’s assessment that Sergo’s salary was not sufficient for him to have acquired all of the property he, Anzor, Aleksandre, and Tengiz possessed, which included multiple homes and vehicles. Sergo had earned 7,667 euros in the two posts that he had held, but their property was valued at 450,000 euros. See id. at paras. 7–11.
In 2004, the Ajarian Supreme Court notified the applicants of their court date multiple times. However, the applicants failed to submit any arguments in writing or to appear either in person or through an advocate. They also did not provide reasons for their absence. The court ordered that some of their property be confiscated because, by not refuting the public prosecutor’s claim against them, they had failed to discharge the burden of proof against them. In 2005, after a series of appeals filed by the applicants, the Supreme Court confirmed the decision that the applicants had failed to prove that the money that had been used to buy the property had lawful origins, with the exception of two properties that had been established as lawfully acquired. See id. at paras. 18–36.
Sergo also went on to file a constitutional complaint against the State arguing that the Code of Criminal Procedure and the Code of Administrative Procedure were contrary to provisions of the Constitution of Georgia, including the protection of property and the presumption of innocence. For example, he argued that his right to the presumption of innocence was violated when his property was confiscated. He also alleged that a 2004 legislative amendment introduced the confiscation procedure and that the fact that these provisions were retroactively applied to his case was unconstitutional. On July 13, 2005, the Constitutional Court dismissed this complaint. With respect to the argument of retroactive application, the Court explained that the new amendment streamlined, rather than introduced, the confiscation procedure and that it was therefore not new. See id. at paras. 37–43.
On July 4, 2005, the four applicants lodged a complaint with the European Court. They claimed that the confiscation of their property violated Article 1 of the First Protocol to the European Convention, and that the domestic proceedings violated their right to a fair trial under the European Convention. See id. at paras. 1, 3, 116.
The Court’s Discussion of the Right to Property
Article 1 of the First Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms states that:
[e]very natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
The applicants argued that the confiscation of their property had been arbitrary, and that it should have been the public prosecutor’s responsibility to prove guilt beyond a reasonable doubt, as opposed to their having to carry the burden of proof with respect to the confiscation of their property. See id. at para. 88.
The Court found Article 1 to be applicable because the confiscation of the applicants’ property did interfere with their peaceful enjoyment of their possessions. The Court noted that, with respect to the question of whether interference with the peaceful enjoyment of possessions serves a legitimate public interest and can therefore be justified, national authorities are best placed to make this determination. Similarly, with regard to the requirement that any interference must be reasonably proportionate to the public interest it is aiming to serve, the Court again emphasized the “wide margin of appreciation” given to the State in matters of political, economic, or social strategy. See id. at paras. 93–97.
The Court went on to decide that the confiscation was lawful. This was based on the fact that the 1997 Act on Conflict of Interests and Corruption in the Public Service had created the confiscation procedure, and that the 2004 amendment “merely regulated afresh the pecuniary aspects of the existing anti-corruption legal standards.” Therefore, the application of the law to the applicants did not constitute retroactive extension of the law. See id. at paras. 99–100. Additionally, the Court reasoned that the confiscation served a legitimate aim, which was to “prevent unjust enrichment through corruption . . . by sending a clear signal to public officials” that corruption would not serve their or their families’ pecuniary interests. See id. at para. 102.
The applicants had also argued that the proceedings were unreasonable because their guilt on corruption charges had not been established and the burden of proof to prove that they had lawfully acquired the property had been shifted to them. See id. at para. 104. The Court stated that the measure of proof required in a case addressing confiscation of property on the basis of the illicit origins of the property is not a “beyond reasonable doubt,” standard, but rather, “proof on a balance of probabilities or a high probability of illicit origins, combined with the inability of the owner to prove the contrary.” See id. at para. 107.
Additionally the Court reasoned that the applicants were given a reasonable opportunity to address the charges against them, but chose not to do so. Consequently, there was no basis to the argument that they were denied the opportunity to put forward their case or that there was any arbitrariness in the court’s findings. See id. at para. 113.
The Court also made a point of noting that the Council of Europe Committee of Experts on the Evaluation of Anti‑Money Laundering Measures and the Financing of Terrorism (MONEYVAL) and other institutions had previously advised Georgia to put into place measures to address serious offenses involving unjust enrichment as a way to tackle corruption. The Court stated that Georgia had put into place such measures by, for example, adopting the February 2004 amendment and that international legal expert bodies had commended Georgia for doing so and for further aligning Georgian legislation with relevant Council of Europe Conventions. See id. at para. 106.
Consequently, the Court concluded that there was no violation of the right to property because the confiscation procedure was lawful, proportional, and served the public interest of combatting corruption. See id. at paras. 114–15.
The Court’s Discussion of the Right to a Fair Trial
The applicants alleged that the confiscation proceedings violated their right to a fair trial under Article 6(1) of the European Convention, which provides that “[i]n the determination of his civil rights and obligations . . . everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” The Court rejected this claim, reasoning that the applicants chose to waive their right to take part in the proceedings and explaining that it was not its role to question the findings that had been made by the Georgian courts. Additionally, the Court stated that it was not arbitrary to require the applicants to establish that the property was lawfully acquired. See id. at paras. 121–23.
The applicants also alleged that Article 6(2), which provides that “[e]veryone charged with a criminal offence shall be presumed innocent until proved guilty according to law,” was violated. The Court held that this provision was inapplicable because the confiscation of property is a civil matter, not criminal. See id. at paras. 124–27.