1. The Coalition for independent and transparent judiciary represents a unity of 40 non-governmental organizations in Georgia. The goal of the Coalition is to consolidate the efforts of legal professional associations, NGOs, business associations, and media into a joint advocacy for an independent, transparent and accountable justice system. The Coalition activities include research and monitoring, development of recommendations, advocacy for judicial reforms, and promotion of public discussions on the problems critical to the justice system.

2. The present submission is made pursuant to Rule 9(2) of the Committee of Ministers' Rules for the Supervision of the Execution of Judgments with regard to the effective execution of the ECtHR judgment on the case of Tchokhonelidze v. Georgia (application no. 31536/07, judgment of 28.06.2018).

3. The ECtHR judgment with respect to the case of Tchokhonelidze v Georgia became final under Article 44 § 2 of the Convention, on September 28, 2018. According to the information provided in the annual report of the Ministry of Justice of Georgia to the Parliament of Georgia, the government has paid the amount of the just satisfaction, EUR 2,500 on November 26, 2018^{^[1]}. In the communication submitted to the Committee of Ministers on 12 September 2019, the Georgian Government indicated that “the legislation in force is currently being analysed and in case of necessity, following appropriate consultations with the Committee, further measures will be planned.”^{^[2]}

4. Pursuant to article 310(e) of the Criminal Procedure Code of Georgia a judgement of the European Court of Human Rights establishing the violation of the Convention, is one of the grounds for reviewing the judgements/decisions of the national courts due to newly found circumstances^{^[3]}.

5. Organizations making the present submission are unaware if Mr. Tchokhonelidze applied to the national court with the request of re-trial of his case based on the ECtHR judgment.

6. The present submission will provide the Committee of Ministers with the information relevant for the implementation of the general measures pursuant to Rule 6, paragraph 2(b)(ii) with respect to the mentioned ECtHR judgment.

Brief summary of the case

7. The case of Tchokhonelidze v. Georgia concerns the alleged police entrapment of the applicant, a senior regional government official at the material time. Following an undercover police operation, the applicant was convicted of passive bribery in 2006. In the criminal proceedings against him he unsuccessfully alleged that he had been incited into committing the offence. The Court found that the prosecuting authorities had not made any argument to refute the applicant’s arguable complaint of police entrapment, nor had the courts then provided any reasons for dismissing his well-founded allegations. The Court also found that the domestic law did not regulate adequately the conduct of such covert operations, a situation that led to the unfairness of the criminal proceedings (violation of Article 6 §1).^{^[4]}

8. European Court of Human Rights found the violation of Article 6 §1 of the Convention, because of unfairness of the criminal proceedings against the applicant. According to the Court:

“[T]he absence of sufficient legislative framework of the mounting of the undercover operation against the applicant, the undercover agent’s failure to remain strictly passive in her activity, the failure of the Prosecutor’s Office to discharge its burden of proof, and the insufficiency of the judicial review of the applicant’s well-substantiated allegations of entrapment – the Court concludes that the conduct of the criminal proceedings against the applicant was incompatible with the notion of a fair trial. There has accordingly been a violation of Article 6 § 1 of the Convention.”^{^[5]}

9. The undercover operation was carried out without of any formal authorization and supervision, either by a court, or any other independent public authority. The domestic law did not provide the sufficient regulation for carrying out of covert operations.^{^[6]}

10. The issues raised in the above mentioned judgment are relevant to the present time in similar cases; particularly, initiation and planning of the undercover operations by the law enforcement and examination of criminal cases by the national courts when the allegations of involvement of an agent provocateur are raised.

11. Therefore, the aim of the present submission is to provide the Committee of Ministers with the information and recommendations how to effectively implement the ECtHR judgment in the case of Tchokhonelidze v. Georgia in terms of conducting general measures.

Deficiency in “The Law of Georgia on Operative-Investigative Activities” to launch and conduct covert operations

12. The legislative framework criticized in the case of Tchokhonelidze is the Criminal Procedure Code of Georgia (hereinafter the CPCG) and the Law of Georgia on Operative-Investigative Activities. Since 2005 (the time of mounting the criminal proceedings against the applicant), the national legislation concerning the covert investigative operations was amended several times.

13. Current legislative framework provides for two different types of covert operations – i. covert investigative operations that are regulated under the Criminal Procedure Code of Georgia and ii. The operative-investigative activities regulated under the “Law of Georgia on Operative-Investigative Activities”.

14. The amended Criminal Procedure Code of Georgia provides the list of and the procedure for carrying out the covert investigative operations through the authorization of the common courts. However, conducting the operative-investigative activities envisaged in the “Law of Georgia on Operative-Investigative Activities” is beyond judicial supervision – the practice criticized in the Tchokhonelidze case.

15. “The Law of Georgia on Operative-Investigative Activities” envisages eleven types of investigative measures:

a) Interviewing a person;

b) Collecting information and conducting surveillance;

c) Carrying out a test purchase;

d) Carrying out a controlled delivery;

e) Examination of objects and documents;

f) Identification of a person;

g) Censoring the correspondence of an arrested, detained and convicted person; h) obtaining electronic communication identification data;

i) [Deleted]

j) Infiltrating a secret collaborator or an operative into a criminal group in a prescribed manner;

k) Setting up an undercover organization in a prescribed manner;

l) Monitoring internet communications by observing and participating in open and closed internet communications in the global information network (Internet), and creating situations of the illegal obtaining of computer data in order to identify a perpetrator.^{^[7]}

16. There is not distinction between the principles applicable to different types of covert investigative operations according to the ECtHR case-law. Respectively, the standards established by the ECtHR for the prevention of police entrapment are equally applicable to different types of undercover operations. For the prevention of police entrapment effective mechanism for control and supervision of investigative activities is essential. In order to avoid the presumption of existence of police entrapment, it is necessary to have a clear and foreseeable procedure for initiation, conduct and supervision of investigative activities, as well as justification for delivering such a decision.^{^[8]}

17. However, the Georgian legislation makes distinction between different types of undercover operations – while the covert investigative activities enlisted in the CPCG are subject to supervision of the judicial authorities, the operative-investigative activities envisaged under the Law on Operative-Investigative Activities are beyond such control.

18. Besides, the instruction to conduct the operative-investigative activities is not required to be substantiated. According to Article 8 of the “Law of Georgia on Operative-Investigative Activities” the legal ground to carry out any of the above-listed eleven operative-investigative activity is “an instruction of the prosecutor, or of the investigator with the consent of the prosecutor on the conduct of an operative-investigative measure.”^{^[9]} The law does not require the reasoning for the instruction of the prosecutor or of the investigator to conduct an operative-investigative measure. Conducting an operative investigative activity also does not require the court authorization.

19. This is the procedure equally applicable to all eleven types of the operative investigative activities enlisted above, despite the fact that some of them may need more justification because of their intensity of intervention. Besides, because the procedure of initiation and conduct of the operative activities are not detailed enough, it is difficult for the common courts of Georgia to effectively examine whether the defendant’s allegations about the police entrapment are substantiated and if the prosecuting authorities indeed overstepped the admissible boundaries when adjudicating the case on merits.

Gaps in legislation to address unlawful police entrapment

20. In order to meet the standards of the ECHR, the law and practice of other countries envisage two types of remedies in cases of police entrapment and incitement to the commission of a crime. Particularly, the practice of criminal courts in Germany, Austria and England demonstrates that based on national legislation, domestic courts refrain from prosecuting an accused person who was provoked to commit an offense. Therefore, the action of the police, which provoked the commitment of a crime is considered as one of the grounds for stay of the criminal proceedings, depending on the active character of the police’s actions^{^[10]}; under the English law it is also allowed to exclude the evidence from the list of evidence in the criminal case as a remedy in respect of the police entrapment^{^[11]}. Based on the mentioned practice, when the fact of police entrapment is confirmed, it is advisable that the national courts have the discretion to determine the legal outcomes based on the intensity of the established violation: either the exclusion of evidence obtained as a result of the police incitement or stay of the criminal proceedings.

21. Georgian legislation is deficient with regard to the legal consequences of unlawful police entrapment.

22. The CPCG contains a general regulation about the inadmissible evidence:

„Evidence obtained as a result of the substantial violation of this Code and any other evidence lawfully obtained based on such evidence, if it worsens the legal status of the accused, shall be considered inadmissible and shall have no legal effect.”^{^[12]}

23. Neither this nor any other Code envisages a special rule to deal with the evidence obtained through the unlawful police entrapment. In law and also in practice the general provision cited above does not constitute a sufficient procedural guarantee to effectively protect the people against the consequences of unlawful police entrapment; this is particularly problematic because of the absence of transparent and foreseeable procedure for launching and conducting operative investigative measures. Therefore, it is required to amend the CPCG to meet the standards of remedying the situation when the person was incited to commit a crime by the police.

24. Furthermore, although the incitement to commit a crime is a criminal act under the Criminal Code of Georgia (Article 145), the statistics of launching criminal investigation and/or conviction under Article 145 is very low^{^[13]}. In particular, according to the information provided by the Supreme Court of Georgia one person was convicted under Article 145 in 2016, while according to the Office of The Prosecutor General of Georgia no criminal investigation was initiated under Article 145 between 2016 and 2018^{^[14]}.

25. Besides, academics criticize the definition of the crime of provocation due to the lack of providing differentiated sanctions for provoking commitment of a crime of different gravity.^{^[15]}

26. Therefore, it is advisable for the Article 145 of the criminal code of Georgia – provocation of crime – to specify the scope of application of this Article.

Improper distribution of burden of proof

27. According to the well-established case-law of the ECtHR in case of alleged police entrapment, the burden of proof lies on the prosecution.^{^[16]} However, the case-law of Georgian domestic courts is not in conformity with the ECtHR standards.

28. Article 42 of the Constitution, for the purpose of the present submission analyzed randomly selected ten judgments of the Tbilisi City Court, where the defendants claimed the police entrapment.

29. Analyses of the mentioned judgments demonstrate that the Tbilisi City Court does not pay sufficient attention to such claims. In number of judgments the court reasoning is limited to only formal reference to the case-law of the ECtHR, stating that the involvement of a covert agent in the investigative activity is not a violation of the Convention standards per se and therefore, does not constitute a ground for staying of the criminal proceedings.

30. Furthermore, the national courts do not examine the reasons of launching the operative-investigative activity and whether the acts of undercover agents were within the limits meeting the fair trial standards^{^[17]}.

31. Therefore, it is advisable that the CPCG provides for an explicit provision concerning the distribution of burden of proof in cases where the allegation of the incitement to commit a crime is made by the defendant. Furthermore, the training of national judges about the ECtHR standards how to examine the cases similar to the case of Tchokhonelidze v. Georgia is important.

Conclusion and recommendations

32. In order to ensure effective execution of the judgment in the case of Tchokhonelidze v Georgia and to avoid the similar violations in future, it is recommended for the Government of Georgia to at least implement the following measures:

The Law of Georgia on Operative Investigative Activities shall be reviewed and the operative-investigative activities shall be carried out under the judicial supervision;
Instruction of the prosecutor/investigator to launch an operative investigative measure under the Law of Georgia on Operative Investigative Activities shall be substantiated and the police entrapment shall be proportional to the gravity of a potential crime; such requirements shall be prescribed under the law;
The Criminal Procedure Code of Georgia shall prescribe that the burden of proof lies on the prosecution in cases where the allegation of the incitement to commit a crime is made by the defendant;
The Criminal Procedure Code of Georgia shall specify the legal consequences of the police entrapment; particularly, the possibility of either exclusion of the evidence obtained as a result of the police entrapment or stay of the criminal proceedings (substantive defense);
The law shall entitle a judge to request the detailed information from the investigation authorities about the initiation of operative investigation measures, which shall be provided;
National judges, investigators and prosecutors shall be trained about the ECtHR standards concerning the investigation and examination of allegations about the incitement to commit a crime and about the mechanisms and/or legal consequences of abusive police entrapment.

[1] The annual report of the Ministry of Justice of Georgia to the Georgian Parliament on the execution of judgments/decisions of the ECtHR, 2018, p. 93, available at https://info.parliament.ge/#law-drafting/17728, last access 28/06/2019.

[2] See, Government of Georgia, Consolidated action plan in respect of the cases Kartvelishvili v. Georgia, application no. 17716/08 and Tchokhonelidze v. Georgia, application no. 31536/07, paras. 13 and 20, dated 12 September 2019.

[3]Article 310(e), Criminal Procedure Code of Georgia, available at https://matsne.gov.ge/ka/document/download/90034/64/en/pdf, last access 28/06/2019.

[4]See, the case description on the judgment Tchokhonelidze v Georgia, available at http://hudoc.exec.coe.int/eng?i=004-50349, last access 28/06/2019.

[5]See, Tchokhonelidze v. Georgia, application no. 31536/07, judgment of 28/06/2018, para. 53, available at http://hudoc.echr.coe.int/eng?i=001-183946, last access 28/06/2019.

[6] Idem, para. 51.

[7]See, Article 7, Law of Georgia on Operative-Investigative Activities, available at https://matsne.gov.ge/en/document/download/18472/40/en/pdf, last access 28/06/2019.

^{^[8]}See, Ramanauskas v. Lithuania, application no. 74420/01, judgment of 05/02/2008, para. 53, available at http://hudoc.echr.coe.int/eng?i=001-84935, last access 28/06/2019.

[9] See, Article 8, Law of Georgia on Operative-Investigative Activities, supra, note 7.

[10] See, the Decision of the Federal Court of Germany, BGH, Urteil vom 10. Juni 2015 - 2 StR 97/14 - LG Bonn, available at http://juris.bundesgerichtshof.de/cgi-bin/rechtsprechung/document.py?Gericht=bgh&Art=en&az=2%20StR%2097/14&nr=72875, last access 28/06/2019. See, also, Article 5(3), Article 133(5), Criminal Procedure Code of Austria, available at https://www.ris.bka.gv.at/GeltendeFassung.wxe?Abfrage=Bundesnormen&Gesetzesnummer=10002326, last access 28/06/2019.

[11]See, the Judgment of the House of Lords, Regina v. Looseley, dated 25/10/2001, available at https://publications.parliament.uk/pa/ld200102/ldjudgmt/jd011025/loose-1.htm last access 28/06/2019.

^{^[12]}See, Article 72, Criminal Procedure Code of Georgia, available at https://matsne.gov.ge/ka/document/view/90034, last access 28/06/2019.

[13]See, „Inducing another person to commit a crime for the purpose of his/her criminal prosecution”, Article 145, Criminal Code of Georgia, available at https://matsne.gov.ge/en/document/download/16426/157/en/pdf, last access 28/06/2019

[14]See, the Letter of the Supreme Court of Georgia no. პ-1109-19, dated 05.08.2019 and the letter of the Office of the Prosecutor General of Georgia no. 13/59413, dated 15.08.2019.

[15] See, Criminal Law, Lekveishvili M., Todua N., Mamulashvili G., Book I, Fifth Edition, p. 297.

[16] See, Human rights and criminal procedure, the case law of the European Court of Human Rights, p. 214. , available at the following link, https://www.echr.coe.int/documents/pub_coe_criminal_procedure_2009_eng.pdf, last access 28/06/2019.

[17] See, also, “Prohibition of Incitement to Crime”, Association of Law Firms in Georgia, Report, pp. 50-81, 2017, available at http://alfg.ge/wp-content/uploads/2017/08/%E1%83%93%E1%83%90%E1%83%9C%E1%83%90%E1%83%A8%E1%83%90%E1%83%A3%E1%83%9A%E1%83%98%E1%83%A1-%E1%83%9E%E1%83%A0%E1%83%9D%E1%83%95%E1%83%9D%E1%83%AA%E1%83%98%E1%83%A0%E1%83%94%E1%83%91%E1%83%98%E1%83%A1-%E1%83%90%E1%83%99%E1%83%A0%E1%83%AB%E1%83%90%E1%83%9A%E1%83%95%E1%83%90.pdf