Last Updated on June 19, 2019 by LawEuro
Information Note on the Court’s case-law 219
June 2018
Tchokhonelidze v. Georgia – 31536/07
Judgment 28.6.2018 [Section V]
Article 6
Criminal proceedings
Article 6-1
Fair hearing
Insufficient judicial review of entrapment defence:violation
Facts – An individual, acting as an undercover agent, alerted the Department of the Constitutional Security of the Ministry of Internal Affairs (“the DCS”) that the applicant, a deputy regional governor at the material time, requested a USD 30,000 bribe in exchange for his help in obtaining a construction permit. Upon court authorisation, her subsequent meetings with the applicant were filmed and telephone conversations tapped. After the hand-over of the money in pre-marked banknotes, the applicant was arrested. He was subsequently convicted of the crime of requesting a bribe in a large amount. His allegations of entrapment were not addressed by the domestic courts.
Law – Article 6 § 1: The Court had to first make a substantive assessment as to whether the DCS had confined itself to “investigating criminal activity in an essentially passive manner” and then secondly, if this substantive test was inconclusive, to assess the procedure by which the plea of incitement was determined by the domestic courts (the procedural test).
There was no evidence that the applicant had committed any corruption-related offences prior to the one in question. The following facts tainted the legality of the police operation mounted against the applicant. The undercover agent had been the DCS’s usual collaborator in a number of unrelated criminal investigations and when approaching the applicant for the first time, she had already been acting under the DCS’s instructions. However, it was not the agent who had proposed the bribe; rather on the contrary, it was the applicant who had first requested the pay-off. In such circumstances, it could not be determined with sufficient certainty that the agent had taken an active and decisive role in the creation of the stratagem that instigated the commission of the bribe offence in question. The substantive test was therefore inconclusive.
Regarding the procedural test, the legal framework provided for a possibility to exclude evidence obtained as a result of such an investigative technique. However, when faced with the applicant’s arguable claim of entrapment, the Prosecutor’s Office had made no attempt to refute his allegations. That could be explained by the objective impossibility to discharge the requisite burden of proof due to the lack of judicial authorisation or supervision as those were not required by the relevant domestic legislation for the covert operation in question. Hence, domestic law did not provide for adequate regulation of such covert operations.
The domestic courts, confronted with the applicant’s well-substantiated allegations, had not provided any single reason in their decisions for dismissing them. They had also failed to secure attendance and examination of a key witness, probably another undercover agent engaged by DCS to entrap the applicant. The judicial review of the allegations of entrapment had not been conducted with sufficient respect for the principle of adversarial proceedings.
Due to the absence of a sufficient legislative framework to mount an undercover operation against the applicant, the undercover agent’s failure to remain strictly passive in her activity, the prosecutor’s failure to discharge the requisite burden of proof, and the insufficiency of the judicial review of the applicant’s well-substantiated allegations of entrapment, the conduct of the criminal proceedings against the applicant had not been compatible with the notion of fair trial.
Conclusion: violation (unanimously).
Article 41: EUR 2,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
(See also Miliniene v. Lithuania, 74355/01, 24 June 2008, Information Note 109; Ramanauskas v. Lithuania [GC], 74420/01, 5 February 2008, Information Note 105; and Matanović v. Croatia, 2742/12, 4 April 2017, Information Note 206)
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