Conviction for bribery as a result of a secret police operation
JUDGMENT
Tchokhonelidze v. Georgia 28.6.2018 (no. 31536/07)
SUMMARY
Sentence of a senior regional Government official for bribery. Result of a secret business. Inability of courts to challenge the applicant’s claim to be trapped. Request of the accused for the examination of an additional witness, another secret police officer. The National Courts tried, but failed to call the extra witness, as they could not locate him.
Infringement of Article 6 § 1 (fair trial) because the criminal proceedings against the applicant were not fair.
PROVISION
Article 6 § 1
PRINCIPAL FACTS
The applicant, Eldar Tchokhonelidze, is a Georgian national who was born in 1956 and lives in the village of Tsereteli (Marneuli Region, Georgia).
Mr Tchokhonelidze, Deputy Governor of the Marneuli Region, was found guilty in July 2006 of requesting a bribe in exchange for his help in obtaining a permit to build a petrol station. He was sentenced to seven years’ imprisonment, but granted early release in November 2008.
His conviction was the result of an undercover operation after Ms K., the person applying for the construction permit, reported to the police that the deputy governor had requested a 30,000 US dollar bribe from her for the permit. The police requested a court order to film their ensuing meetings and tap their telephone conversations. Mr Tchokhonelidze was finally arrested in December 2005 when Ms K. handed over the money in pre-marked banknotes.
Throughout his trial and appeal Mr Tchokhonelidze complained that he had been entrapped by Ms K., alleging that she was a paid undercover agent, and requested the courts to summon an additional witness, another undercover agent.
The courts did not answer the allegation of entrapment. They tried but failed to summon the additional witness as they could not locate her.
THE DECISION OF THE COURT
When examining complaints of entrapment, the Court has developed two tests.
The first is a substantive test. It involves establishing whether the authorities have good reasons for mounting a covert operation and whether they have remained within the bounds of their undercover work, rather than inciting someone to commit an offence that he or she would not otherwise have committed.
The second is a procedural test. It requires the judiciary, when faced with an arguable complaint of incitement, to follow a procedure which is adversarial, thorough, comprehensive and conclusive. To ensure the overall fairness of a trial in entrapment cases the courts also have a duty to hear the undercover agents and other witnesses and allow them to be cross-examined by the defence.
The first test, as applied in Mr Tchokhonelidze’s case, was inconclusive. It was Mr Tchokhonelidze who had first requested a pay-off from Ms K. Therefore the Court could not determine for sure that Ms K. had taken an active and decisive role in instigating the commission of the bribe offence.
The Court went on to apply the procedural test, notably examining whether Mr Tchokhonelidze had been able to complain effectively about police entrapment in the domestic proceedings.
First, it found that he had had an arguable complaint of entrapment and that, under the relevant law (the Act on Special Investigative Activity), he was thus entitled to complain before a court.
Normally, the prosecuting authorities should have had the burden of disproving incitement.
However, throughout the proceedings, the prosecuting authorities had not made any argument to refute Mr Tchokhonelidze’s allegations. The Court noted that that shortcoming could be explained by the fact that there had been no formal authorisation and supervision of the undercover action against him, the domestic law not providing for adequate regulation of such operations.
Nor had the courts themselves provided a single reason in their decisions as to why Mr Tchokhonelidze’s well-founded allegations ought to be dismissed. They had not said why the undercover operation had been mounted against him, shown the extent of the police’s involvement in his offence or the nature of any pressure put on him.
The courts had, moreover, failed to ensure that a key witness, another alleged undercover agent, testify at Mr Tchokhonelidze’s trial.
The Court therefore concluded that the criminal proceedings against Mr Tchokhonelidze had not been fair, in violation of Article 6 § 1.
Given that finding, the Court did not consider it necessary to make a separate ruling on his complaint under Article 6 § 3 (d).
Just satisfaction (Article 41)
The Court held that Georgia was to pay Mr Tchokhonelidze 2,500 euros (EUR) in respect of non-pecuniary damage(echrcaselaw.com editing).
