Communicated on 28 June 2018

FIFTH SECTION

Application no. 13708/18 Gizo GLONTI and others against Georgia lodged on 14 March 2018

STATEMENT OF FACTS

1. A list of the applicants is set out in the appendix.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicants, may be summarised as follows.

1. Background

3. At the material time the applicants held different positions in the Ministry of Defence of Georgia (“the Ministry”).

4. In 2013, the Ministry decided to connect all military units in an internal electronic communications network with a fibre-optic cable. Two of the applicants prepared the technical terms of the project while three others were in charge of the procurement of products and services required for the project. In the procurement process all five liaised with each other and with other officials of the Ministry with a view to selecting the most feasible and cost-effective procurement package.

5. In August and September 2013, the Ministry directly invited several companies to express their interest in the procurement call. Out of several proposals the Ministry opted for the one offered by JSC Silknet with which the Ministry signed a procurement contract on 26 December 2013.

2. Initiation of investigation and arrest of the applicants

6. In June 2014, the Office of the Chief Prosecutor launched a criminal investigation into the allegations of embezzlement in connection with the above mentioned procurement of the fibre-optic cable project at the Ministry. The investigation was triggered by a complaint of Delta Comm , one of the contenders in the procurement call by the Ministry.

7. On 28 October 2014 the applicants were arrested and subsequently detained on suspicion of embezzlement (with aggravating circumstances, among them, abuse of power), a crime under Article 182 §§ 2 (a) (d) and 3 (b) of the Criminal Code of Georgia (“CCG”). They were accused of having embezzled 4,102,872.6 Georgian laris (“GEL”), the difference between the market value of the assets delivered by JSC Silknet following the completion of the project and the amount the Ministry agreed with the company to pay for the project.

3. Pre-trial conference

8 . On different dates in April and May 2015, the Tbilisi City Court held a pre-trial conference, hearing the applications of the parties on the admissibility of evidence. By a follow-up decision of 5 June 2015 the pre ‑ trial judge excluded as inadmissible some parts of the multi-disciplinary forensic examination report #01/348 (“the report #01/348”), an item on the list of the prosecution evidence. The pre-trial judge concluded that significant findings in the report were based on the letters from a company, Delta Comm (“Delta Comm letters”), dated 7 and 11 October 2014 respectively, the so-called ‘ market information ’ and the non-disclosure of these documents and information to the defence defied the authenticity of the evidence.

9. On 15 June 2015 an appeal judge, acting at the request of the prosecution, quashed the pre-trial judge ’ s ruling of 5 June 2015 and fully admitted the report #01/348 into prosecution evidence. The appeal judge held that the pre-trial judge had erroneously excluded the report #01/348 as inadmissible evidence on authenticity grounds. In particular, he considered that the Delta Comm letters upon which the report was based were quoted in the report itself and had been moreover presented by the prosecution during the pre-trial conference. With respect to the so-called “market information”, another challenged source of the report #01/348, the appeal judge held that the forensic expert had simply meant the Delta Comm letters behind it. The judge further added that in any event the authenticity and reliability of the report #01/348 would be examined further at the trial.

10. The applicants contested the above conclusions of the appeal judge as untrue. They alleged that the letters in question had never been handed over either to the defence or to the court and that the defence had had no opportunity to examine them before the trial judge. As for the “market information” it appeared throughout the trial, that it was a separate source of information, on which the experts had relied upon (see paragraph 12 below).

4. Trial

11 . In the course of the trial, counsels for the applicants cross-examined the experts who had issued the report #01/348. In connection with the letters from Delta Comm , they asked one of the experts whether the letters were accompanied by relevant supplementary documents justifying the financial evaluations given in these letters as subsequently quoted in the report #01/348. In reply, the expert said that he could not recollect whether such documents had been attached to the Delta Comm letters. The same expert further testified that he copied into the report parts of the letters that he believed to be relevant to answer the questions put to him by the prosecution.

12 . In connection with the ‘ market information ’ , the same expert testified that he had made relevant findings based on internet websites of various Georgian and foreign companies, the names of which he could not remember. He also admitted that he had not identified the sources of the ‘ market information ’ in the relevant parts of the report.

13. By a judgment of 16 May 2016 the Tbilisi City Court found the applicants guilty as charged and sentenced them each to seven years in prison. They were barred from holding public office for two years. The report #01/348 was one of the principal pieces of evidences on which the applicants ’ conviction was based. The relevant parts of the report along with other pieces of evidence were used by the court to establish the fact of embezzlement and the exact amount embezzled by the applicants. The other forensic evidence that the prosecution adduced to prove the same facts was the report produced by the Forensic Unit of the Ministry of the Interior. However, the court almost exclusively relied on the report #01/348 in its pertinent findings about the applicants ’ guilt.

14. The trial court, in its judgment, dismissed the defence argument that the ‘ intent to gain benefit for himself or for another person” was an implied element of the crime of embezzlement and that the prosecution had failed to adduce pertinent evidence. The court noted, however, in obiter dicta that even assuming that the impugned element was constituent of the crime of embezzlement, the evidence submitted by the prosecution would still support it.

5. Appeal proceedings

15. The applicants appealed against the judgment of the Tbilisi City Court complaining about the unfairness of the trial inter alia on account of the failure of the prosecution to disclose various documents on which the report #01/348 was based. The applicants also argued that ‘ intent to gain benefit for himself or for another person” was an implied element of the crime of embezzlement and that the trial court erred in law while holding otherwise.

16. By a judgment of 26 January 2017 the Tbilisi Court of Appeal confirmed the applicants ’ conviction. At the same time, the court, acting on its own motion, reclassified the offence of embezzlement into abuse of power. The court concluded that the prosecution evidence did not support one of the constituent elements of the crime of embezzlement – control over the assets to be embezzled, and thus, the conviction under Article 182 of the CCG could not be sustained. The court further held that in such circumstances the applicants ’ conduct amounted to an abuse of power under Article 332 of the CCG. The court reduced their sentence to a year and six months in prison.

17. In connection with the reclassification, the court of appeal held that that did not prejudice the fairness of the proceedings given that the reformulation of the charges did not introduce a new element of facts on which the applicants had not had an opportunity to argue before the trial and appeal courts. In addition, the court noted that the applicants would have an opportunity to appeal against the judgment with the Supreme Court.

18. Meanwhile, the court of appeal, in a specially designed section of the judgment, elaborated on “a conduct with intent to gain a benefit or privilege for another person ” , an element of the crime of abuse of office which the trial court had ruled out to be an implicit element of the crime of embezzlement. The court also, in a separate section, developed its findings on “a conduct that substantially prejudiced the interests of State”, another distinct element of the crime of abuse of power. The report #01/348 served as a principal piece of evidence for the court of appeal to convict the applicants under the reformulated charges as well.

19. On 24 February 2017 the applicants lodged an appeal on points of law with the Supreme Court. In their appeal they inter alia argued that the reclassification of the offence by the court of appeal and the non-disclosure of the letters and sources of the so-called “market information” on which the decisive forensic report was based prevented them from properly exercising their defence rights.

20. By a decision of 14 September 2017 the Supreme Court of Georgia refused their leave to appeal.

21. In the meantime, on 27 January 2017 the President of Georgia pardoned all of the applicants.

B. Relevant domestic law and practice

1. Criminal Code of 1999

Article 182. Misappropriation and embezzlement

“1. Misappropriation or embezzlement of another person ’ s property or property rights by a person who had that property or property rights in his lawful possession or control ...

2. Any such acts committed

a. by a group of persons [acting] upon their prior conspiracy...

d. through the abuse of office...

3. Any such actions as provided for by paragraphs 1 and 2 of this Article...

b) if committed in respect of a large amount...

... shall be punishable by imprisonment for a term from seven to eleven years, and a bar on holding public office or engaging in professional activities for a period of up to three years.”

Article 332. Abuse of power

“1. Abuse of power by an official or person of equivalent status, to the detriment of public interests and in order to gain any personal benefit or privilege, or any benefit or privilege for another person, which has substantially affected the rights of a legal or natural person, or the legal interests of society or the State, shall be punishable by a fine or a term of up to three years ’ imprisonment, and a bar on holding public office or engaging in professional activities for a period of up to three years.

...”

2. Code of Criminal Procedure of 2010

Article 78. Evidentiary value of document

“1. A document may be admitted into evidence upon an application of a party if its origin is known and it is authentic ...”

Article 83. Disclosure of prospective evidence by parties

“1. At any stage of criminal proceedings, upon the request of defence , prosecution shall immediately disclose information that it intends to use as evidence in trial. In accordance with this section, prosecution shall also disclose to defence any exculpatory evidence it may have in its possession...

3. Any material that has been available by the moment of complying with a request for disclosure but was not disclosed shall not be admitted as evidence...

6. Not later than five days before pre-trial conference, parties shall disclose to each other and to the court the complete information available by the moment that they intend to use as evidence in court ...”

Article 146. Forensic expert opinion

“... 3. Items, samples, photos and schemes remaining after a forensic examination and other materials supporting the expert opinion shall be appended to the expert opinion...

4. Upon receiving an expert opinion, a party shall disclose it to the other party upon request.”

22. Under Article 298 of the Code of Criminal Procedure, a court of appeal has the authority “to make amendments to a judgment of first instance court”. As noted by the court of appeal in the case of the applicants, under the well-established domestic case-law, this power also entails reclassification of offence in the frames of appeal proceedings.

COMPLAINTS

23. Relying on Article 6 §§ 1 and 3 (a) and (b) of the Convention the applicants allege that the reclassification of the offence by the court of appeal at the last stage of the proceedings and the non-disclosure of evidence relevant for the defence rendered their trial unfair.

QUESTIONS TO THE PARTIES

Was the applicants ’ trial, taken as a whole, fair within the meaning of Article 6 §§ 1 and 3 (a) and (b) of the Convention? In answering this question, the parties are requested to address the following issues:

1. As regards the reclassification of the offence from aggravated embezzlement to abuse of power by the Tbilisi Court of Appeal:

- Did the court of appeal introduce a new element (or elements) in the reformulated charges that was not intrinsic to the initial charges?

- If so, were the applicants informed promptly and in sufficient detail of the nature and basis of the charges again st them, as required by Article 6 § 3 (a) of the Convention?

- Were they afforded adequate time and facilities to prepare their defence, as required by Article 6 § 3 (b) of the Convention (see, among others, Juha Nuutinen v. Finland , no. 45830/99, §§ 29-33, 24 April 2007; De Salvador Torres v. Spain , § 33, 24 October 1996, Reports of Judgments and Decisions 1996 ‑ V ) ?

2. As regards the non-disclosure of copies of the letters from Delta Comm dated 7 and 11 October 2014 and the sources of “the market information” upon which the forensic examination report #01/348 was based:

- Were the principles of adversariality and equality of arms respected and were the applicants afforded adequate facilities to prepare their defence, as required by Article 6 §§ 1 and 3 (b) of the Convention (see Mirilashvili v. Russia , no. 6293/04, §§ 194-209, 11 December 2008, and Matanović v. Croatia , no. 2742/12, § 161, 4 April 2017)?

- Were the handicaps under which the defence laboured justified by any legitimate interest and/or counterbalanced by appropriate procedural safeguards?

Appendix