PARTLY DISSENTING OPINION OF JUDGE GYULUMYAN

I am unable to subscribe to the opinion of the majority of the Court that there have been no violations of Article 6 § 1 of the Convention or Article 2 of Protocol No. 7 to the Convention. I agree, however, that there have been no violations of Article 6 § 2 or Article 1 of Protocol No. 1 and that the respondent State has not failed to comply with its obligations under Article 34 of the Convention.

1. At the outset, I would like to point out that the manner in which the relevant authorities used the plea-bargaining procedure in Georgia at the material time was a target of heavy public criticism. In particular, many legal commentators considered that plea bargaining was used not so much for the legitimate purposes outlined in Article 15 of the Code of Criminal Procedure (“a faster and more efficient justice system”), but rather to fill the State treasury with funds and other assets extorted from the defendants. In line with this criticism, the Parliamentary Assembly of the Council of Europe went further by urging the Georgian authorities, on 24 January 2006, to “critically review the present practice of the ‘ plea bargaining ’ system which – in its present form – on the one hand allows some alleged offenders to use the proceeds of their crimes to buy their way out of prison and, on the other, risks being applied arbitrarily, abusively and even for political reasons” (see paragraph 56 of the present judgment).

2. However, I also wish to make it clear that it is not my objective to call into question the system of plea bargaining as such, in general terms. Rather, it is the particular circumstances of the present case which have led me to the conclusion that the early Georgian model of plea bargaining, as applied by the relevant domestic authorities with respect to the first applicant, fell foul of the safeguards provided by Article 6 § 1 of the Convention for the following reasons.

3. I believe that the question whether the first applicant and the prosecutor had been on an equal footing during the plea-bargaining negotiations could not have been duly examined by the Kutaisi City Court without those negotiations having been recorded in full. However, as no such obligation was contained in the Georgian Code of Criminal Procedure, the prosecution did not apparently record its negotiations with the first applicant. Several shady factual circumstances of the case – the fact that the transfer of the factory shares and of the monetary payments had occurred even before the procedural agreement was struck; the statements of Mrs M.I. and of the former employees of the factory accusing the prosecuting authority of undue pressure; the fact that the first applicant had been detained, allegedly deliberately, in stressful conditions, etc. – also taint the presumption of equality between the parties pending the relevant negotiations.

4. As regards the question whether the first applicant had agreed to the plea bargain in a truly voluntary manner, I note that the conviction rate in Georgia amounted to some 99 % at the material time, in 2004 (see paragraph 60 of the judgment). With such a sky-high rate, it is difficult to imagine that the applicant could have believed, during the relevant plea-bargaining negotiations, that his chances of obtaining an acquittal were real. The same argument, moreover, that in systems with high conviction rates the plea-bargaining system can hardly function fairly, was voiced by Transparency International Georgia in its report on the Georgian model of plea bargaining (see paragraph 60 of the present judgment). Thus, the applicant had no real option other than to accept the “take it or leave it” terms dictated by the prosecutor. Of further importance in this regard is the manner in which the General Prosecutor ’ s Office apparently treated the first applicant ’ s case at domestic level, with its representative actually threatening the applicants ’ family with annulling the plea bargain and reopening proceedings against the first applicant and even going so far as to predict the content of a court decision (see paragraphs 42 and 47 of the judgment). Such a disturbing attitude on the part of the prosecuting authority is also revealing as to the leverage it might have had with respect to the first applicant when the proceedings against him were still pending.

5. Another important fairness safeguard as regards the plea bargaining is that the first applicant should not have been threatened by the prosecution with charges unsupported by prima facie evidence. The Kutaisi City Court should have ensured, pursuant to Article 679-4 §§ 3 and 4 of the Code of Criminal Procedure, that there had been a prima facie case against the first applicant. Whether that requirement was duly met by the domestic court seems, in my view, to be extremely dubious in the light of the available case materials; the Government have not submitted sufficient arguments or evidence which would enable me to reach a positive conclusion in this connection. On the contrary, it would have been an extremely difficult task for the Kutaisi City Court to examine the well ‑ foundedness of the charges in one day alone, given that the prosecutor had applied to the court with the relevant brief on 9 September 2004 and that, already on the following day, the City Court approved the plea bargain and found the first applicant guilty (see paragraphs 29 and 31-33 of the present judgment).

6. Lastly, I note with particular concern that the relevant domestic law did not entitle the first applicant to lodge an appeal against the court decision endorsing his plea bargain. The absence of such a remedy obviously resulted in a further limitation of the judicial supervision of the fairness of the plea bargaining. The Georgian authorities apparently acknowledged that serious shortcoming themselves when, on 25 March 2005, they finally introduced the right of appeal in plea-bargaining situations (see paragraphs 50-52 of the present judgment).

7. All the above-mentioned deficiencies gain an additional dimension when assessed against the fact that the first applicant agreed to a bargain with the prosecution in respect of the sentence alone and refused to plead guilty to the charges . I regret that the majority did not consider it necessary to distinguish, as a matter of principle, between plea bargaining in respect of the charges, where the defendant freely and knowingly confesses to the offence committed, and a situation where the bargain relates solely to the sentence without a guilty plea. In the latter situation, as in the present case, I believe that the procedural safeguards in the plea-bargaining procedure must be even stricter. For instance, since the applicant never confessed to any of the offences of which he had been accused by the prosecution, the domestic courts should, in my opinion, have subjected the well- foundedness of the charges to a much higher level of scrutiny than that which is normally reserved for situations where accused persons voluntarily plead guilty.

8. The above-mentioned considerations are sufficient for me to conclude that there has been a violation of Article 6 § 1 of the Convention and of Article 2 of Protocol No. 7.