ECHR ruling of June 28, 2018 in the case of Chokhonelidze (Tchokhonelidze) v. Georgia (application N 31536/07).
In 2007, the complainant was assisted in preparing a application. Subsequently, the application was communicated to Georgia.
The case was successfully considered a application about the lack of judicial control over the consideration of the issue of protecting the rights of the applicant, who claimed a provocation by law enforcement agencies. The case was a violation of Article 6 of the Convention.
THE CIRCUMSTANCES OF THE CASE
A law enforcement officer who acted "under cover" warned the Department of Constitutional Security of the Ministry of Internal Affairs of Georgia that the applicant, who was the deputy head of the local executive authority at the material time, demanded a bribe of $ 30,000 in exchange for assistance in obtaining a building permit. On the basis of the court’s sanction, further undercover agent’s meetings with the applicant were taped and his telephone conversations were intercepted. After the transfer of the amount of bribe in the banknotes marked the applicant was detained. Subsequently, he was charged with extortion of bribes on a large scale. The courts of Georgia did not consider his complaints of provocation.
QUESTIONS OF LAW
Regarding compliance with paragraph 1 of Article 6 of the Convention. First, the European Court had to consider whether the Department of Constitutional Security of the Ministry of Internal Affairs of Georgia confined itself to a “criminal investigation of a criminal activity”, and secondly, if the results of this check were uncertain, evaluate the procedure by which the domestic courts considered a complaint of provocation by law enforcement (procedural check).
There is no evidence in the case that the applicant had committed crimes related to corruption before the case in question. The following facts questioned the legality of the operation conducted by law enforcement officers against the applicant. The undercover agent was an ordinary informant in the Department of Constitutional Security of the Ministry of the Interior in a number of other criminal cases, and when he contacted the applicant, he was already acting on instructions from that department. However, it was not the agent who offered a bribe, rather, on the contrary, the applicant first demanded payment of money. Under such circumstances, it is impossible to determine with a sufficient degree of accuracy that the agent played an active and decisive role in creating the situation that contributed to the commission of the corruption offense in question. The check on the merits of this question did not give accurate results.
With regard to procedural verification, the legislation provided for the possibility of exclusion from the case of evidence obtained as a result of the investigative actions in question. At the same time, when the applicant filed a complaint with the prosecutor’s office about a provocation by law enforcement officers, the prosecutor’s office did nothing to refute these allegations. This could be explained by the objective lack of ability to succeed in proving due to the lack of court sanction or supervision, since the domestic legislation did not require their availability for conducting covert surveillance operations, as in the present case. Therefore, domestic legislation did not ensure proper regulation of covert surveillance operations.
The courts of Georgia, faced with the applicant’s properly substantiated complaints, did not lead in their decisions to a single ground for their rejection. They also did not provide for the presence and questioning in court of a key witness, probably another “undercover” agent, appointed by the Department of Constitutional Security of the Ministry of the Interior to provoke the applicant. Judicial examination of provocation complaints was not carried out with due respect for the adversarial principle.
Due to the lack of a sufficient legislative basis for the operation of covert surveillance of the applicant, the agent’s "undercover" inability to remain completely passive, and the prosecution authorities to carry out the necessary proof, and given the insufficient judicial review of the complainant’s substantiated complaints of provocation by law enforcement officers, a criminal The proceedings against the applicant did not correspond to the concept of a fair trial.
The case was a violation of Article 6 § 1 of the Convention (adopted unanimously).
In application of Article 41 of the Convention. The Court awarded the applicant EUR 2,500 in respect of non-pecuniary damage, the claim for pecuniary damage was rejected.