GOGITIDZE AND OTHERS v. GEORGIA JUDGMENT
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Index had increased Georgia’s score from 1.8 in 2003 to 4.1, thus ranking it
66th out of 174 countries (see paragraphs 69-73 above).
83. The Government emphasised that all those positive results in the
fight against corruption could never have been achieved without the
mechanism of administrative confiscation which had been applied in the
applicants’ case. They briefly described the nature of that legal mechanism.
In particular, administrative confiscation did not constitute a part of criminal
proceedings and was not of a punitive nature but, on the contrary, was of a
civil-law, compensatory nature, being aimed at remedying the pecuniary
damage caused either to private individuals or to the State (see paragraphs
49-54 above). The Government stated that such a procedure – confiscation
of the property in question in the absence of a final criminal conviction,
with the burden of proof being shifted onto the respondent – was in full
conformity with the relevant international standards. In fact, it was the
Council of Europe bodies and the OECD who had been the first to insist
that Georgia should introduce such a measure (see paragraphs 66-70 above).
84. Observing that the proceedings for confiscation of the applicants’
property had strictly followed the judicial procedure laid down for that
purpose by Article 37 § 1 of the CCP and Articles 21 §§ 4 to 11 of the CAP,
the Government submitted that the resulting confiscation had been lawful.
Those legal provisions were readily accessible to the public and their legal
consequences were clear and foreseeable to the public at large, including the
applicants. Furthermore, it could not be said that the legislative amendments
in question had suddenly introduced revolutionary methods in the fight
against corruption in February 2004, as seven years prior to those
amendments there had already existed a law providing for the principles of
prevention, exposure and eradication of corruption and the need to hold
corrupt officials criminally, administratively and disciplinarily liable for
their illicit deeds, namely the 1997 Act on Conflict of Interests and
Corruption in the Public Service (see paragraphs 44-48 above). The
Government then argued, by reference to the Court’s judgments in the cases
of AGOSI (cited above, § 51) and Raimondo (cited above, § 29), that
confiscation should be considered as a measure to control the use of
property.
85. The Government firmly maintained that the introduction of the
procedure of administrative confiscation served the public interest of the
eradication of corruption in the public service. As to the implication of
“relatives” and “connected persons”, that particular aspect was intended as a
response to the well-known and widespread practice whereby corrupt public
officials would hide the proceeds of their illicit deeds by fictitiously
registering those proceeds in the names of their friends or relatives. In doing
so, corrupt officials attempted to avoid financial accountability before the
public, meaning that the legal obligation to submit financial declarations in
their own names, as initially provided for by the 1997 Act on Conflict of