GOGITIDZE AND OTHERS v. GEORGIA JUDGMENT
9
criminal or the administrative legislation. If neither criminal nor
administrative liability arose, disciplinary action, such as dismissal from the
post, was to be taken.
B. Domestic law on the forfeiture of wrongfully acquired property or
unexplained wealth, as in force at the material time
49. On 13 February 2004 two major legislative amendments aimed at
bolstering efforts to combat criminality, with a particular emphasis on
economic offences and those committed in the public service, were adopted.
One of those amendments introduced plea bargaining into the Code of
Criminal Procedure (see Natsvlishvili and Togonidze v. Georgia,
no. 9043/05, § 49, ECHR 2014 (extracts)), whilst the second one, which
concerned both the Code of Criminal Procedure and the Code of
Administrative Procedure, regulated the mechanism for the forfeiture of
wrongfully acquired property.
50. As a result of that second amendment of 13 February 2004, Georgian
law provided for two procedures for the forfeiture of property: “criminal
confiscation” and “administrative confiscation”. Criminal confiscation was
of a general nature and dealt with deprivation of the objects of an offence
and the instrumentalities of and proceeds from crime, imposed as part of the
sentencing proceedings following a final conviction establishing the
person’s guilt. Meanwhile, the latter procedure, which was governed by
Article 37 § 1 of the Code of Criminal Procedure (“the CCP”) and Articles
21 §§ 4 to 11 of the Code of Administrative Procedure (“the CAP”), was
specifically aimed at recovering wrongfully acquired property and
unexplained wealth from a public official, as well as from the latter’s family
members, close relatives and so-called “connected persons”, even without
the prior criminal conviction of the official concerned.
51. Although a criminal conviction was not a necessary precondition,
administrative confiscation could only be initiated if an official had first
been charged with offences (including corruption) committed during his or
her term in office against the interests of the public service, the enterprise or
organisation concerned, or of one of the following offences: money
laundering, extortion, misappropriation, embezzlement, tax evasion or
violations of custom regulations, regardless of whether the official in
question was still in office or not.
52. Thus, if the public official in question was accused of one or more of
the above-mentioned offences, and the public prosecutor in charge of the
investigation had a reasonable suspicion that the property in the possession
of that public official and/or of his or her family members, close persons
and “connected persons” might have been acquired wrongfully, the
prosecutor could file “a civil action” (სარჩელი) with the court under