TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): La réponse est non.
AP1 (Applicant): Il faut remarquer que l'on ne peut ni préciser ni confirmer depuis quand le procureur a commencé à proposer l'accord procédural au requérant, puisque cette proposition a été orale.
AP1 (Applicant): Cependant, lorsque le requérant et les collaborateurs ont cédé les actions à l'Etat également, lorsqu'un proche du requérant a versé une somme au Fonds d'Etat, l'accord avait déjà été conclu.
AP1 (Applicant): Pourtant, des procès-verbaux sur la proposition du procureur et ensuite sur les négociations ultérieures n'ont pas été dressés et le déroulement de la négociation n'a non plus été enregistré.
AP1 (Applicant): Par conséquent, les enregistrements évoqués n'ont pas été déposés devant le tribunal puisqu'ils n'existaient pas.
AP1 (Applicant): La question suivante de la Cour est de savoir si l'examen de l'accord procédural par les tribunals représentait une forme suffisante de contrôle judiciaire.
AP1 (Applicant): La réponse du requérant est non.
AP1 (Applicant): Le procureur a déposé une requête au tribunal le 9 septembre 2004.
AP1 (Applicant): Le même jour, le requérant a payé une amende de 35 000 arrêts.
AP1 (Applicant): Il est à noter qu'il a été fait payer avant que le tribunal homologue l'accord procédural.
AP1 (Applicant): Selon la loi, les juges devraient vérifier si l'accord procédural a été conclu par mensonge ou contrainte et si les consentements de l'accusé étaient volontaires.
AP1 (Applicant): Selon la ligne A2 de l'article 679-3 du Code des procédures pénales géorgiennes, les juges devaient poser huit questions à l'accusé pour s'assurer non seulement que l'accord était volontaire mais aussi que l'accusé comprenait les charges contre lui et les faits que la conclusion de l'accord procédural constituait la rénonciation à ses droits constitutionnels.
AP1 (Applicant): Or, selon le procès verbal de l'audience du 10 septembre 2004, devant le tribunal d'Ekutaïsi, la seule question posée par les juges au premier requérant portait sur le caractère volontaire du consentement à l'accord procédural.
AP1 (Applicant): Le tribunal devait également vérifier selon la loi si l'accusation était argumentée et si la peine indiquée dans la requête était légitime.
AP1 (Applicant): Dans la pratique, cette vérification avait un caractère purement formel.
AP1 (Applicant): D'après les rapports des Transparencies internationales et commissaires des droits des langues cités dans la décision de la Cour sur la récevabilité, il est peu probable que les juges vérifient réellement les preuves.
AP1 (Applicant): Les juges tenaient presque toujours en compte des preuves déposées par les procureurs et, dans la majorité des cas, ils approuvaient la démande présentée par les procureurs.
AP1 (Applicant): En l'espèce, le tribunal n'a pas étudié les détails de l'affaire, notamment le fait que le requérant détenait au total que 15,5% d'actions.
AP1 (Applicant): Le tribunal a examiné l'accord procédural les lendemains de dépôt d'une requête par les procureurs.
AP1 (Applicant): Les pièces du dossier présentées par le parquet comportaient 12 volumes.
AP1 (Applicant): Le tribunal n'avait pas physiquement le temps d'en prendre une réelle connaissance.
AP1 (Applicant): Le juge a copié la requête du procureur et a considéré que, représentée par le procureur, prouvait la commission de l'infraction par le requérant.
AP1 (Applicant): Par conséquent, le tribunal n'a pas effectué les contrôles réels et suffisants sur les déroulements et la conclusion de l'accord procédural et n'a pas intéressé à examiner s'il représentait par le procureur prouvait la commission de l'infraction par le requérant.
AP1 (Applicant): Quant à la question de savoir si l'audience était publique, la réponse est non.
AP1 (Applicant): L'audience était nue à huis clos.
AP1 (Applicant): En fait, elle ne pourrait pas être publique, puisque la requête sur l'homologation de l'accord procédural, en vertu de la lignée 4 de l'article 679.2 du Code de procédure
AP1 (Applicant): pénale, était confidentielle.
AP1 (Applicant): Et elle n'était pas applicable que pour les partis.
AP1 (Applicant): C'est pour cette raison que les personnes intéressées n'ont pas été admises à l'audience.
AP1 (Applicant): La question suivante de l'accord consiste à savoir si l'absence de recours possible contre la décision du 10 septembre 2004 était compatible avec l'article 2 du protocole n°7.
AP1 (Applicant): La jurisprudence de votre cour n'admet pas les interdictions inconditionnelles totales de faire appel d'une condamnation terminale, plus dans les cas des infractions minières, comme en Cacabase contre Georgie, ou pour les accusés qui ont fui le procès, comme Crombard contre France.
AP1 (Applicant): Ainsi, l'interdiction totale de faire appel du jugement homologue à l'accord procédural n'est pas compatible avec l'article 2 du protocole n°7.
AP1 (Applicant): Avec votre permission, M. le Président, j'accèderai la parole à Mme Phileva, qui
AP1 (Applicant): va apporter à votre cour les réponses aux autres questions.
Josep Casadevall (JudgeP): Mrs. Fileeva.
AP2 (Applicant): Mr. President, I start with the violation of Article 6,
AP2 (Applicant): Paragraph 2 of the Convention.
AP2 (Applicant): The European Court of Human Rights has repeatedly pointed out that the presumption of innocence provided by the Convention in the second paragraph of Article 6 is violated if the court decision or a public affair statement reflects that the accused is guilty when his guilt is not lawfully established in advance.
AP2 (Applicant): In the present case, the prosecutor, accompanied by journalists, appeared at the first applicant's workplace in order to arrest him.
AP2 (Applicant): A TV broadcast that same evening showed how police officers took the accused down the stairs.
AP2 (Applicant): This served as background for an interview with the Kutaisi governor, who stated that those who embezzled the state property would be criminally punished.
AP2 (Applicant): The fact that the prosecutor decided to arrest the applicant in the presence of the journalist and the governor's interview were purposely made to ensure that the society believed that the applicant was guilty of repatriation of the state property.
AP2 (Applicant): There was no final and binding judicial decision convincing the first applicant at the time of his arrest.
AP2 (Applicant): So the presumption of innocence was violated.
AP2 (Applicant): The second question I start is the violation of Article 1 of the Additional Protocol of the Convention.
AP2 (Applicant): The prosecutor asked the applicants to transfer their shares to the government and also to transfer 50,000 Georgian lari to the state fund.
AP2 (Applicant): This was the condition for concluding the plea agreement with the first applicant for a seizure of property to comply with the Article 1 of the Protocol 1 that has to be carried out in accordance with the law and meet the public need.
AP2 (Applicant): In the present case, the Georgian state was granted victim status in criminal proceedings against the first applicant.
AP2 (Applicant): The government could sue the first applicant for damage after the court approved the plea agreement and found him guilty.
AP2 (Applicant): According to the prosecutor's request to return the share to the government before the conclusion of the plea agreement was not lawful and not based on any legal rule.
AP2 (Applicant): The first applicant did not transfer the share voluntarily and it was not recorded as a part of the plea agreement.
AP2 (Applicant): He was forced to cede shares to the government in exchange for release.
AP2 (Applicant): The transfer of 50,000 Georgian lari carried out by the applicants relative to the state fund was directly related to the plea agreement.
AP2 (Applicant): It happened on the 8th September, 2004, so the plea agreement could be signed the following day.
AP2 (Applicant): As it follows from the witness statement in the case file, the prosecutor has explicitly required that the transfer be a precondition for the conclusion of the plea agreement.
AP2 (Applicant): If anything, this case reminds the case of Kucinski against Russia, where the applicant was required to transfer his share in a broadcasting company to the Russian government to exchange of release.
AP2 (Applicant): No public need was established in Kucinski and not was argued by the respondent government in the present case.
AP2 (Applicant): In sum, the requirement to return share to the government and to pay 50,000 Georgian lari to the state fund had no legal basis, and therefore, we are not in accordance with the Article 1 of Protocol 1.
AP2 (Applicant): The next question.
AP2 (Applicant): Article 34 of the Convention and Rule 32 of the Rules of Court, Paragraph 2 of the Rules of the Court.
AP2 (Applicant): After the government became aware of the present application, it started requesting it be withdrawn.
AP2 (Applicant): We have submitted copies of the government letter to the end.
AP2 (Applicant): As regards any possible friendly settlement, the applicant insisted on the conduct of negotiation within the framework of the proceeding before the court.
AP2 (Applicant): The government, however, refused and returned with a new indictment and cancellation of the plea agreement.
AP2 (Applicant): The court has held a number of occasions, including in Balinovich against Croatia, that the requirement of confidentiality of friendly settlement or negotiation contained in Rule 62 of Rules of Court is absolute and does not allow for an individual assessment of how much detail was disclosed.
AP2 (Applicant): In present case, given that the negotiation, contrary to the applicant's insistence, were conducted outside the framework of the proceedings before the court, Rule 62 did not apply.
AP2 (Applicant): Even if it didn't apply, we submit that no information was disclosed by the applicant to the press, to the public, or to any third party.
AP2 (Applicant): All the communications were with the court only.
AP2 (Applicant): As the commission ruled in 1996 decision of Malic against France, the requirement of confidentiality serves to protect the party, in particular the applicants and the convention bodies from the attempt to exert pressure.
AP2 (Applicant): We view in the light of the protection, streets of view proceeding against the applicant if the application is not withdrawn, even if made in the context of friendly settlement negotiation is precisely the kind of undue pressure against which the convention and rules protect the applicants.
AP2 (Applicant): We submit such streets violate Article 34 of the convention.
AP2 (Applicant): This concludes oral observation of behalf of the applicants.
AP2 (Applicant): We respectfully invite the court to find violation of articles 6, paragraph 1 and 2 of the convention, article 1 of the protocol 1 to the convention, as well as respondent governments failing to comply with the requirement of article 34 of the convention.
Josep Casadevall (JudgeP): I call Mr. Meskhoradze.
GR1 (Government): Good morning, Mr. President, honorable members of the court.
GR1 (Government): It is a great honor for me to appear before you today on behalf of the Georgian government.
GR1 (Government): In my submission, I will raise the following issues in response to the court's questions and argue.
GR1 (Government): First, the Georgian model of plea bargaining applied in the applicant case was compatible with Article VI, Paragraph 1 of the Convention.
GR1 (Government): Second, the criminal proceedings with regard to the applicant was fair.
GR1 (Government): He was afforded all the safeguard against any undue influence or intimidation.
GR1 (Government): And in the course of the conclusion of plea agreement, he acted in a genuinely voluntary manner.
GR1 (Government): Third, the applicant's right to presumption of innocence was respected in the present case.
GR1 (Government): Fourth, no hindrance with the effective exercise of the applicant's right of application has occurred.
GR1 (Government): Furthermore, I will submit that by disclosing the contents of friendly settlement negotiations, the applicants undermined the confidentiality principle in breach of the rules of court.
GR1 (Government): Last, I will submit that no violation of Article I, Protocol 1 of the Convention can be observed in the present case.
GR1 (Government): Your Excellencies, let me start with the first submission.
GR1 (Government): The plea bargaining, a form of consensual and abbreviated criminal justice, has been widely accepted in the procedure of different legal systems for a long time.
GR1 (Government): It has been successfully incorporated in the legislation and practice of various European states and worldwide in harmony of international criminal law and criminal procedure principles.
GR1 (Government): None of the international human rights tribunals have suggested that plea bargaining undermines human rights provisions.
GR1 (Government): Quite contrary, International Criminal Tribunal for former Yugoslavia and International Criminal Tribunal for Rwanda, the institutions dealing with the most egregious human rights violations, crimes against humanity, genocide, and mass murders, and therefore, known by strong procedural safeguards, use plea bargaining as a standard practice.
GR1 (Government): As practice shows, in those Western European and American states where plea bargaining is most extensively used, these rights appear to be best protected.
GR1 (Government): Emergence and spread of plea bargaining system in the world is driven by the increased interest of procedural economy as it provides for an efficient and rapid disposal of cases.
GR1 (Government): As early as in 1987, the member states of the Council of Europe were being 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.
GR1 (Government): Looking across the Europe as a whole, it is crystal clear that plea bargaining has rapidly become an essential aspect of criminal procedure, which allows consensual disposal of a vast majority of cases.
GR1 (Government): It is further an effective system, allowing great flexibility in resource management.
GR1 (Government): The most powerful inducement for the establishment of a regime of plea bargaining is that it represents a tried, practical, and arguably the most successful weapon against corruption and organized crime, with an impressive record both in Europe and internationally.
GR1 (Government): Expressed simply, plea bargaining offers the opportunity for prosecutors to break through the walls of silence and fear, which surrounds and protects such criminality.
GR1 (Government): With the global spread of plea bargaining in the last few decades, Georgia has followed the suit.
GR1 (Government): It is important to note that the introduction of plea bargaining in Georgia in 2004 cannot be fully understood without appreciating the context of endemic criminality and corruption pervading the country at that moment.
GR1 (Government): Plea bargaining was thought to be an urgent response and means to address these systemic problems.
GR1 (Government): Your Excellencies, my submission will be that plea bargaining system is in full conformity with human rights and liberties, among which it is the right to a fair trial.
GR1 (Government): And the Georgian model of plea bargaining applied in the applicant case was compliance with Article VI, paragraph 1 of the convention.
GR1 (Government): I submit that the concept of plea bargaining implies the waiver of some rights in exchange of certain benefit in the form of reduced sentence, conditional sentence, non-custodial sentence, and the defendant gets the final decision without delay.
GR1 (Government): As noted in paragraph 59 of Dimitrov and Hamono versus Bulgaria case, it is common feature of the criminal justice system in Europe for a defendant to receive a reduction in his or her sentence for a guilty plea in advance of trial.
GR1 (Government): Let me now refer to the Kwiatkowska versus Italy case, in which the court underlines that the waiver of certain rights under Article VI means that the trial is shortened.
GR1 (Government): Witnesses are not questioned, and the evidence is not examined in details.
GR1 (Government): The court has constantly emphasized in the case law that neither the letter nor the spirit of Article VI of the convention prevents a person from waiving of his own free will.
GR1 (Government): I will allow myself to refer to the Divya versus Belgium case as well, where the court in paragraph 49 clearly stated that in contracting states, the waiver is frequently encountered in civil matters in the shape of arbitration clause in contracts or criminal matters in the shape inter alia of fines paid.
GR1 (Government): The waiver, which has undeniable advantages for the individual concerned as well as for the administration of justice, do not in principle offend the convention system.
GR1 (Government): Honorable members of the court, I would like to emphasize that despite a waiver of certain rights, a pre-agreement procedure in no way results in the evasion of trials.
GR1 (Government): It is of paramount importance to underline that in Georgia, like in other states, the reduced and expedited trials in substance retain all necessary characteristic to ordinary court hearings.
GR1 (Government): Let me enlist these fundamentals.
GR1 (Government): The agreement must be reached voluntarily.
GR1 (Government): The both parties shall participate in the conclusion.
GR1 (Government): The right to remain silent and the right not to incriminate oneself remain in force.
GR1 (Government): The participation of the counsel is mandatory.
GR1 (Government): The court supervision is ensured.
GR1 (Government): The case must be decided by independent and impartial tribunal.
GR1 (Government): Prima facie evidence must be evaluated by judge.
GR1 (Government): The case must be examined in public trial.
GR1 (Government): Your excellencies, I will submit that the applicant, despite waiving the right to have a full-scale trial, had offered each of the guarantees I have just listed.
GR1 (Government): Pre-bargaining, like all other aspects of criminal justice procedure, cannot operate in a successful and non-abusive way unless it is accompanied by the effective implementation of essential due process safeguards.
GR1 (Government): I would like to stress that criminal legislation in force at that material time provided sufficient safeguards against abuse of power by prosecution authorities during the conclusion of plea agreement.
GR1 (Government): Namely, the participation of the counsel was mandatory.
GR1 (Government): A prior consent of a defendant was necessary for an agreement to be reached.
GR1 (Government): The pre-bargaining procedure required the written declaration signed by the accused or his lawyer reflecting voluntary consent to the judicial ruling without examination of the merits of the case.
GR1 (Government): The court must have examined the motion in public trials.
GR1 (Government): The court must have been convinced that the agreement was not the result of duress, intimidation, or undue promise, and that defendant was in a position to enjoy the qualified legal assistance.
GR1 (Government): The court must have ensured that the defendant had full awareness of his accusation and the menacing sentence.
GR1 (Government): Judge must have guaranteed that the defendant fully understood the contents and the legal outcome of the agreement.
GR1 (Government): The court must have warranted the defendant consented freely.
GR1 (Government): The defendant was entitled to reject the agreement before the final approval by the court as provided by Article 6793EG.
GR1 (Government): The judge was authorized to reject the agreement.
GR1 (Government): The applicant was afforded each of the mentioned safeguards during the criminal proceedings.
GR1 (Government): Your Excellencies, I will allow myself to move on the second submission and argue that the criminal proceedings toward the applicant was fair as a whole, and no breach of Article 6 of the Convention can be observed in the present case.
GR1 (Government): To this end, I would like to focus, with your permission, on the following points.
GR1 (Government): First, the applicant's decision to accept the plea bargain was made in full awareness of the effects and legal consequences, and he acted in a voluntary manner without any coercion or undue promise on the part of the prosecution authorities.
GR1 (Government): Second point is that the case was heard at an open hearing, and the court approved the plea bargain after the requisite examination of the case.
GR1 (Government): I will refer to the facts of the case to corroborate my first point.
GR1 (Government): The facts of the case highlights that the applicant had full awareness of the contents of the plea agreement and the consequences thereof, and acted in one voluntary manner.
GR1 (Government): The applicant was detained on 15 March 2004 for alleged misappropriation and embassment of property, resulting in damages incurred upon the state.
GR1 (Government): I would like to draw the honorable court's attention to the fact that the applicant was assisted by the lawyer of his choice from the very next day of his arrest, which is 16 March 2004.
GR1 (Government): Since 6 August 2004, the applicant was assisted by the second lawyer, also on his choice.
GR1 (Government): Noteworthy is the fact that initial intention on cooperation was declared by the applicant in 10 days after his detention, namely on 25 March 2004.
GR1 (Government): Let me refer to this early letter addressed to the respective authorities and cite the applicant.
GR1 (Government): Since I am not indifferent to the future of the automobile factory and considering the prospect of settlement or problems therein with the support of the state, I express the readiness to transfer the shares, both mine and my wife's, to the state.
GR1 (Government): End of citation.
GR1 (Government): In this form, the applicant intended to repair the damages identified by the two expert examinations.
GR1 (Government): The mentioned written statement was made in an absolutely voluntary manner.
GR1 (Government): This is fact, which is proved by the following facts on 31 March 2004 during questioning, also attended by his lawyer.
GR1 (Government): The applicant reiterated his will to cooperate with the investigation and to this end transfer the shares in the automobile factory to the state in exchange for the damages incurred by him.
GR1 (Government): In the meantime, the investigative authorities kept on carrying out various activities, inter alia questioning the witnesses, conducting specific expert examinations.
GR1 (Government): As a result, on 6 September 2004, the final charges were brought against the applicant.
GR1 (Government): The investigator accused him of misappropriation and embezzlement of money in large amounts, resulting in substantial damages upon the state.
GR1 (Government): Having been familiarized with the final charges, the applicant, assisted by two lawyers, again expressed his readiness to cooperate with the investigative authorities and the same day transferred voluntarily the shares to the state.
GR1 (Government): I would like to further demonstrate that the applicant was fully versed in the contents of the plea agreement and the consequences thereof.
GR1 (Government): Below, I would like to illustrate the statement by the following.
GR1 (Government): On 9 September 2004, Mr. Nutzle-Shwille
GR1 (Government): filed a written statement with a public prosecutor requesting him to arrange for a plea bargain agreement.
GR1 (Government): In this very letter, the applicant noted, I quote, with the purpose of reparation of damages incurred upon the state, my will is to conclude a plea agreement as regard this sentence.
GR1 (Government): To this end, I will pay $35,000.
GR1 (Government): I am aware of the concept of the plea agreement and fully agree to it, end of quotation.
GR1 (Government): The same day, prosecutor visited the applicant at the penitentiary institution.