GOGITIDZE AND OTHERS v. GEORGIA JUDGMENT
29
bona fide status (see Raimondo, cited above, § 30; Arcuri and Others v.
Italy (dec.), no. 52024/99, ECHR 2001-VII; Morabito and Others v. Italy
(dec.), 58572/00, ECHR 7 June 2005; Butler v. the United Kingdom (dec.),
no. 41661/98, 27 June 2002; Webb v. the United Kingdom (dec.),
no. 56054/00, 10 February 2004; and Saccoccia v. Austria, no. 69917/01,
§§ 87-91, 18 December 2008; compare also with the more recent case of
Silickienė, cited above, §§ 60-70, where a confiscation measure was applied
to the widow of a corrupt public official).
108. Having regard to all the above considerations the Court finds, by
analogy, that the civil proceedings in rem in the present case, conducted
under the procedure regulated by Article 37 § 1 of the CCP and Article 21
§§ 4 to 11 of the CAP, can likewise not be considered to have been arbitrary
or to have upset the proportionality test under Article 1 of Protocol No. 1. In
this connection the Court also attaches importance to the similar
conclusions of the Constitutional Court of Georgia, which found the civil
proceedings in rem to be devoid of any arbitrariness (see paragraphs 37-43
above) Indeed, it was only reasonable to expect all three applicants – one of
whom had been directly accused of corruption in a separate set of criminal
proceedings, whilst the remaining two were presumed, as the accused’s
family members, to have benefited unduly from the proceeds of his crime –
to discharge their part of the burden of proof by refuting the prosecutor’s
substantiated suspicions about the wrongful origins of their assets.
Moreover, those civil proceedings for confiscation clearly formed part of a
policy aimed at the prevention and eradication of corruption in the public
service, and the Court reiterates that in implementing such policies,
respondent States must be given a wide margin of appreciation with regard
to what constitutes the appropriate means of applying measures to control
the use of property such as the confiscation of all types of proceeds of crime
(see, for instance, Yildirim v. Italy (dec.), no. 38602/02, ECHR 2003-IV,
and Butler, cited above).
(β) Whether the domestic courts acted without arbitrariness
109. Notwithstanding the above finding, the Court observes that it must
also ascertain whether the applicants, as the respondents in the civil
proceedings for confiscation, were afforded a reasonable opportunity of
putting their arguments before the domestic courts (see, Veits, cited above,
§§ 72 and 74, and Jokela v. Finland, no. 28856/95, § 45, ECHR 2002-IV).
110. In this connection the Court notes that the Ajarian Supreme Court,
as well as transmitting the public prosecutor’s claim together with all the
supporting documents, duly summoned all three applicants to make written
submissions in reply and to take part in an oral hearing (contrast with
Silickienė, cited above, § 48, and Veits, cited above, § 58). Those
summonses were served at the applicants’ postal addresses twice, with the
domestic court even postponing a hearing on one occasion, but the first and