This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 18

A plea bargain is an agreement in a criminal case between the prosecutor and defendant whereby the defendant agrees to plead guilty to a particular charge in return for some concession from the prosecutor. This may mean that the defendant will plead guilty to a less serious charge, or to one of several charges, in return for the dismissal of other charges; or it may mean that the defendant will plead guilty to the original criminal charge in return for a more lenient sentence. A plea bargain allows both parties to avoid a lengthy criminal trial and may allow criminal defendants to avoid the risk of conviction at trial on a more serious charge. Plea bargaining can present a dilemma to defense attorneys, in that they must choose between vigorously seeking a good deal for their present client, or maintaining a good relationship with the prosecutor for the sake of helping future clients. In charge bargaining, defendants plead guilty to a less serious crime than the original charge. In count bargaining, they plead guilty to a subset of multiple original charges. In sentence bargaining, they plead guilty agreeing in advance what sentence will be given; however, this sentence can still be denied by the judge. In fact bargaining, defendants plead guilty but the prosecutor agrees to stipulate (i.e., to affirm or concede) certain facts that will affect how the defendant is punished under the sentencing guidelines. (Source)

In the case of Natsvlishvili and Togonidze v. Georgia the Court held that plea bargain in Georgian misappropriation case did not breach the accused’s right to a fair trial (no violation of Article 6 § 2 (presumption of innocence) and no violation of Article 1 of Protocol No. 1 (protection of property))In this case the Court for the first time examined in detail the compatibility of plea-bargaining arrangements with the right to a fair trial.

The applicants, Amiran Natsvlishvili and Rusudan Togonidze, husband and wife, are Georgian nationals who were born in 1950 and 1953 and currently live in Moscow (Russia) and Kutaisi (Georgia) respectively. Mr Natsvlishvili was the mayor of Kutaisi from 1993 to 1995 and the managing director of the automobile factory in Kutaisi, one of the largest public companies in Georgia, from 1995 to 2000. He and his wife together owned 15.55% of the shares in the factory and were the principal shareholders after the State. In December 2002 Mr Natsvlishvili was kidnapped and was only released in exchange for a large ransom paid by his family. In March 2004, Mr Natsvlishvili was arrested on suspicion of illegally reducing the share capital of the factory for which he was responsible and charged with making fictitious sales, transfers and write-offs, and spending the proceeds without regard for the company’s interests. His arrest was filmed and broadcast on local television. The Governor of the Region also made a declaration, without directly referring to Mr Natsvlishvili, that it was the State’s intention to pursue and identify all those who had misappropriated public money. During the first four months of his detention Mr Natsvlishvili was held in the same cell as the man who was charged with kidnapping him and with another man serving a sentence for murder.

Following negotiations with the prosecutor in September 2004, Mr Natsvlishvili accepted a plea bargain in which he was to be convicted without an examination of the merits and fined

35,000 Georgian laris (GEL), the equivalent of 14,700 euros, in exchange for a reduced sentence. The trial court – noting that Mr Natsvlishvili did not plead guilty but had actively cooperated with the investigation by returning 22.5% of the shares in the factory to the State – sanctioned the agreement and convicted him. The decision was final and not subject to an appeal. He was immediately released from the courtroom. After the applicants’ case before the European Court of Human Rights had been communicated to the Georgian Government in September 2006, they alleged that the prosecuting authorities put them under pressure to withdraw their application before the Court. They submitted a copy of an email exchange which their daughter had initiated with a representative of the Georgian General Prosecutor’s office, who was an acquaintance of hers. In the course of the correspondence, the representative informed the applicants’ daughter in December 2006 that the prosecution would be ready to reopen Mr Natsvlishvili’s case and possibly reach a settlement at national level.

The Court noted that plea bargaining between the prosecution and the defence was a common feature of European criminal justice systems and not in itself open to criticism. In Mr Natsvlishvili’s case, the plea bargain – a procedure introduced into the Georgian judicial system in 2004 – had been accompanied by sufficient safeguards against abuse. Mr Natsvlishvili had entered into the plea bargain voluntarily, having understood its contents and consequences.

"90.  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.
91.  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).
92.  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: (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.
93.  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).
94.  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.
95.  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.
96.  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).
97.  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.

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

Judge Gyulumyan expressed a partly dissenting opinion, which is annexed to the judgment.

"I am unable to subscribe to the opinion of the majority of the Court that there have been no violations of Article 6 § 1 of the Convention or Article 2 of Protocol No. 7 to the Convention. I agree, however, that there have been no violations of Article 6 § 2 or Article 1 of Protocol No. 1 to the Convention and that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

1.  At the outset, I would like to point out that the manner in which the relevant authorities used the plea-bargaining procedure in Georgia at the material time was a target of heavy public criticism. In particular, many legal commentators considered that plea bargaining was used not so much for the legitimate purposes outlined in Article 15 of the Code of Criminal Procedure (“a faster and more efficient justice system”), but rather to fill the State treasury with funds and other assets extorted from the defendants. In line with this criticism, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe went further by urging the Georgian authorities, on 24 January 2006, to “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” (see paragraphs 55-56 of the judgment).

2.  However, I also wish to make it clear that it is not my objective to call into question the system of plea bargaining as such, in general terms. Rather, it is the particular circumstances of the present case which have led me to the conclusion that the early Georgian model of plea bargaining, as applied by the relevant domestic authorities with respect to the first applicant, fell foul of the safeguards provided by Article 6 § 1 of the Convention for the following reasons.

3.  I believe that the question whether the first applicant and the prosecutor had been on an equal footing during the plea-bargaining negotiations could not have been duly examined by the Tbilisi City Court without those negotiations having been recorded in full. However, as no such obligation was contained in the Georgian Code of Criminal Procedure, the prosecution did not apparently record its negotiations with the first applicant. Several shady factual circumstances of the case – the fact that the transfer of the factory shares and of the monetary payments had occurred even before the procedural agreement was struck; the statements of M.I. dze and of the former employees of the factory accusing the prosecution authority of undue pressure; the fact that the first applicant had been detained, allegedly deliberately, in stressful conditions, etc. – also taint the presumption of equality between the parties pending the relevant negotiations.

4.  As regards the question whether the first applicant had conceded to the procedural bargain in a truly voluntary manner, I note that the conviction rate in Georgia amounted to some 99.6% at the material time, in 2004 (see paragraph 61 of the judgment). With such a skyrocketing rate, it is difficult to imagine that the applicant could have believed, during the relevant plea-bargaining negotiations, that his chances of obtaining an acquittal were real. The same argument, by the way, that in systems with high conviction rates the plea-bargaining system can hardly function fairly, was voiced by Transparency International Georgia in its report on the Georgian model of plea bargaining (see paragraph 60 of the judgment). Thus, the applicant had no real option other than to accept the “take it or leave it” terms dictated by the prosecutor. Of further importance in this regard is the manner in which the General Prosecutor’s Office had apparently been treating the first applicant’s case at domestic level, when its representative actually threatened the applicants’ family with annulling the plea bargain and reopening proceedings against the first applicant and even went so far as to predict the content of a court decision (see paragraphs 42 and 47 of the judgment). Such a disturbing attitude on the part of the prosecution authority is also revealing as to the leverage it might have had with respect to the first applicant when the proceedings against him had still been pending.

5.  Another important fairness safeguard as regards the plea bargaining is that the first applicant should not have been threatened by the prosecution with charges unsupported by prima facie evidence. The Tbilisi City Court should have ensured, pursuant to Article 679-4 §§ 3 and 4 of the Code of Criminal Procedure, that there had been a prima facie case against the first applicant. Whether that requirement was duly met by the domestic court seems, in my view, to be extremely dubious in the light of the available case materials; the Government have not submitted sufficient arguments or evidence which would enable me to reach a positive conclusion in this connection. On the contrary, it would have been an extremely difficult task for the Kutaisi City Court to examine the well foundedness of the charges in one day alone, given that the prosecutor had applied to the court with the relevant brief on 9 September 2004 and that, already on the following day, the City Court approved the plea bargain and found the first applicant guilty (see paragraphs 30-32 of the judgment).

6.  Lastly, I note with particular concern that the relevant domestic law did not entitle the first applicant to lodge an appeal against the court decision endorsing his plea bargain. The absence of such a remedy obviously resulted in a further limitation of the judicial supervision of the fairness of the plea bargaining. The Georgian authorities apparently acknowledged that serious shortcoming themselves when, on 25 March 2005, they finally introduced the right of appeal in plea-bargaining situations (see paragraphs 50-52 of the judgment).

7.  All the above-mentioned deficiencies gain an additional dimension when assessed against the fact that the first applicant agreed to a bargain with the prosecution in respect of the sentence alone and refused to plead guilty to the charges. I regret that the majority did not consider it necessary to distinguish, as a matter of principle, between plea bargaining in respect of the charges, where the defendant freely and knowingly confesses to the offence committed, and a situation where the bargain relates solely to the sentence without a guilty plea. In the latter situation, as in the present case, I believe that the procedural safeguards in the plea-bargaining procedure must be even stricter. For instance, since the applicant never confessed to any the offences of which he had been accused by the prosecution, the domestic courts should, in my opinion, have subjected the well-foundedness of the charges to a much higher level of scrutiny than that which is normally reserved for situations where accused persons voluntarily plead guilty."

In its decision in the case of Marro and Others v. Italy the European Court of Human Rights held that Italian authorities did not fail to meet their obligation to protect a prisoner who was addicted to drugs and died in prison from an overdose and declared the application inadmissible.The case concerned the death, from an overdose, of a prisoner who was addicted to drugs. The Court considered that the Italian authorities only had an obligation to put in place appropriate measures to prevent drug trafficking in prisons. In the present case, no failing could be identified on the part of the prison staff. Indeed, they had taken numerous measures (searches, inspection of parcels, etc.) to prevent drugs being brought into prisons. Accordingly, and in view of the authorities’ margin of appreciation, the Court concluded that the State’s responsibility could not be incurred solely on account of the fact that a prisoner was able to obtain drugs.

In the case of Preda and Others v. Romania the Court held that a law passed by Romanian Parliament provides in principle an accessible and effective framework of redress for alleged violations of the right to peaceful enjoyment of property confiscated or nationalised by the communist regime (violation of Article 1 of Protocol No. 1).The case concerned administrative and/or judicial proceedings for compensation or restitution in respect of property confiscated or nationalised by the communist regime, in accordance with laws passed by Romania after the fall of the regime in December 1989. The Court concluded that, bearing in mind the margin of appreciation enjoyed by the Romanian State, the law enacted by the Romanian Parliament provided in principle – except in situations where there were multiple documents of title for the same building – an accessible and effective framework of redress for alleged violations of the right to peaceful enjoyment of possessions, and that it was up to the claimants concerned to make use of that framework.

Texts build on the press releases of the European Court of Human Rights. 

This selection covers categories 1 and 2 judgments.