The Disappearing Trial 128.  Mr Natsvlishvili eventually accepted a trial waiver (known as a “plea agreement”), then a new feature of Georgian law ushered in together with a raft of other legal reforms after the Rose Revolution.130 He agreed to make a payment equivalent to nearly €15,000 plus 22.5% of his factory’s shares to the State while maintaining his factual innocence. He later challenged the conviction as an abuse of process in violation of Article 6(1) of the ECHR (which protects the right to a fair hearing before an independent court) and Article 2 of Protocol 7 of the ECHR (protecting the right to appeal). 129. The Court took account of criticisms of Georgia’s trial waiver system made by Transparency International131 and the Parliamentary Assembly of the Council of Europe.132 It also provided a summary of the existence of trial waivers in Council of Europe member states, noting that some form of the practice existed in all but three Council of Europe Member States.133 It also noted the approval with which the Council of Europe generally looked upon trial waiver systems.134 131.  Judge Gyulumyan dissented however, arguing that it would have been impossible for the local judge to evaluate the fairness of the negotiations without access to a full recording of them (noting that there was evidence of informal negotiation that was unrecorded). She also pointed to “[s]everal shady factual circumstances of the case” that “taint[ed] the presumption of equality between the parties pending the relevant negotiations”,137 including the fact that the company shares were transferred and monetary payments made to the State before the trial waiver was negotiated and that the applicant was detained in deliberately stressful conditions. She also highlighted the weak bargaining power of a defendant in Georgia’s criminal justice system, which recorded a conviction rate of 99.6%, as well as the weakness of the inculpatory evidence in the case, which she felt could not have been adequately reviewed in one day, as it was in Natsvlishvili’s case. 130. Ultimately, the ECtHR found no violation of Article 6, based on the fact that Mr Natsvlishvili’s decision to enter into the trial waiver was “undoubtedly a conscious and voluntary decision.”135 The Court stated that the safeguards necessary to ensure the legality of the trial waiver were that: (a) “the bargain had to be accepted…in full awareness of the facts of the case and the legal consequences and in a genuinely voluntary manner”; and (b) “the content of the bargain and the fairness of the manner in which it had been reached between the parties had to be subjected to sufficient judicial review.”136 As evidence of the voluntariness of the agreement, the Court noted that the defendant, rather than the prosecution, initiated negotiations. It also highlighted several additional safeguards, including the recording of the terms of the negotiation, and a public hearing to ratify the bargain during which the judge was free to depart from the terms of the agreement. 130. The Rose Revolution refers to the transfer of power in November 2003 from the Russia-aligned Shevardnadze government to the European/Atlantic-oriented government of the United National Movement, leading to the election of President Saakashvili. 131. “Plea Bargaining in Georgia”, Transparency International, supra at n. 107. 132. “Honouring of obligations and commitments by Georgia”, Parliamentary Assembly of the Council of Europe, Resolution 1415 (2005). Available at: http://assembly.coe.int/nw/xml/XRef/ Xref-XML2HTML-en.asp?fileid=17288&lang=en. 133. See Natsvlishvili v. Georgia, supra at n. 129, paras. 62–75. 134. Recommendation No. R (87)18 of the Committee of Ministers, supra at n. 78. 135. See Natsvlishvili v. Georgia, supra at n. 129, para. 97. 136. Ibid, para. 92. 137. Natsvlishvili v. Georgia, supra at n. 129, “Partially dissenting opinion of Judge Gyulumyan”, para. 3. 65.