The third president of Georgia has not yet been given the opportunity to attend his trials. Contrary to the requirements of the law, the Penitentiary Service refuses to comply with a court request to escort him at trials.
It is disturbing that the trial judges are avoiding an in-depth examination of the grounds for non-enforcement of their judgment. It seems that the judiciary treats the threats named by the Executive as universally proven facts that do not require further investigation. Under these conditions, the Courts lose their constitutional function and the realization of the right to a fair trial becomes entirely dependent on the Executive.
To legitimize the ongoing legal proceedings, Saakashvili must be able to effectively exercise all the rights guaranteed to him by the Constitution and the law. In this regard, one of the most important is the right to a fair trial.
Unfortunately, the judiciary has so far failed to ensure the realization of one of the fundamental elements of a defendant's right to a fair trial - the right to attend the trial hearings. In particular, the legality of the circumstances hindering the escort of Saakashvili to the hearings has not yet been examined by the trial courts nor have proper legal assessments been made. Not only the accused is harmed, but the reputation of the Court and the principle of publicity of the trials are at stake too. Besides, a dangerous precedent is established.
We call on the Executive to ensure that Mikheil Saakashvili is escorted to trials;
We call on the Judiciary to properly investigate the grounds for the Penitentiary’s failure to escort Saakashvili to trials, to assess the legality of the restriction of the accused's right, and to take all measures needed to ensure that the accused realizes his right to a fair trial.
On November 10, 15, and 16, 2021, three different cases of Mikheil Saakashvili were heard by the Tbilisi City Court. The State did not ensure the presence of Saakashvili at any of the hearings.
Before the trials, the positions voiced by Saakashvili’s legal representatives made it clear that the accused had the desire and opportunity to attend his hearings. In addition, the trial judges in all three cases requested that the accused appear before the court.
In all three cases, the Special Penitentiary Service refused to comply with the court's request. To prove the legitimacy of the refusal, Penitentiary Service pointed out two circumstances: a) the investigation launched by the State Security Service under Article 315 of the Criminal Code; b) Risk of further deterioration of Mikheil Saakashvili's health condition.
Restriction of the right to a fair trial
Attending one's own hearing and publicity of hearings are an integral part of the right to a fair trial. This right is guaranteed by Article 31 of the Constitution of Georgia, as well as numerous other national or international legal acts, such as the European Convention on Human Rights. In particular,
“The principle of an oral and public hearing is particularly important in the criminal context, where a person charged with a criminal offense must generally be able to attend a hearing at first instance… [therefore] [t]he duty to guarantee the right of a criminal defendant to be present in the courtroom ranks therefore as one of the essential requirements of Article 6”.
Hence, hearing the case of Mikheil Saakashvili without his presence restricted his right to a fair trial. It should be noted, that the restrictions to the right to a fair trial are permissible if formal and material grounds necessitate the limitation.
The importance of the trial court
The responsibility to ensure the right to a fair trial of the accused within the adversarial and oral proceedings lays with the trial courts. The court must legally assess the facts that led to the non-appearance of the accused at the hearing and, as a result of such an assessment, make the appropriate decision.
For instance, if the court finds that the accused is avoiding appearing at trial, the court is empowered to continue the case without the presence of the accused. In any event, the court must examine the factual circumstances which give rise to the restriction of a person's right to a fair trial and draw the appropriate conclusion. Leaving these circumstances uninvestigated is a direct indication that the right to a fair trial is arbitrarily restricted.
Circumstances indicated by the Special Penitentiary Service, their ambiguity, and the need for the evaluation
The presence of an accused at hearings may be hindered by various legitimate reasons, among them the deterioration of the prisoner's health condition, unforeseen logistical circumstances, etc. Thus, Court’s request may not be executed in some circumstances.
It should be emphasized that the Penitentiary Service did not indicate the fact that has already materialized that hindered the transportation of Mikheil Saakashvili. Otherwise, the circumstances cited by the Penitentiary Service (which impede the technical enforcement of the court request) do not constitute a universally known fact that doe not require further investigation.
The Penitentiary Service substantiates the threat of interference with the transportation based on the information publicly disseminated by the State Security Service. Apart from the publicly available information, the Penitentiary Service did not cite any evidence of the reality of the realization of this risk. First of all, it is worth mentioning that lately, the State Security Service has been making particularly problematic statements. At all events, ensuring basic human rights must not be dependent on the Executive’s statements. Many circumstances require an assessment regarding the definitions of the Special Penitentiary Service and the justice system, in general. For example, the Special Penitentiary Service points out the obstruction of motor escorts through the creation of artificial traffic jams. The reality of that risk must be evaluated as well as why the Penitentiary Service does not provide escorts by other means of transport (Per Article 3 of the Rules Approved by the Order N149 of the Minister of Corrections and Probation of Georgia of October 19, 2015 “On Prisoner’s Escorting/Transferring Rules and Procedures”). Or, if there is an immediate risk of Saakashvili’s health deterioration, why is the relevant medical evidence not provided to the court.
Order N149 of the Minister of Corrections and Probation of Georgia of October 19, 2015 “On Prisoner’s Escorting/Transferring Rules and Procedures”, like many other legal acts does not allow the Penitentiary Service to review the Court’s request. Under Article 4 (a) of the Rules approved by the mentioned Order, escorts are carried out “for defendants/convicts to participate of in trial or procedural proceedings - at the request of the relevant court or the relevant authorized person of the Constitutional Court of Georgia, that does not require additional decisions”.
The attitude of the trial court
As mentioned above, three hearings have already been held in connection with the ongoing criminal cases against Mikheil Saakashvili. All three cases were heard by different judges. Based on the incomplete records of the hearings, the information provided by the parties, and the statement of the Tbilisi City Court regarding the November 10 hearing, we can assume that the trial judges avoided clarifying the issue. Although the law in all three cases required the defendant’s presence at the trials, the refusal of the Penitentiary Service was based on the same circumstances, and none of the judges took additional measures to thoroughly investigate the reasons for the defendant's absence from court.
The court requested the presence of the accused in all three cases, however, in none of the cases was it interested in the proper determination of the grounds for the refusal of the Penitentiary Service to comply with the request.
The court should not accept the refusal of the Executive to escort the accused as a well-known indisputable fact. The trial court must examine in depth the merits of the circumstances cited by the Penitentiary Service, and only then decide whether to adjourn the hearing or to hold it outside the courtroom. Naturally, the court is not able to ensure the accused physically being present in the court, however, it must legally assess the inaction of the Executive and set the appropriate legal consequences.
It is important to note that the Public Defender of Georgia also demands the inclusion of Mikheil Saakashvili at his trials and assesses his inability to participate in trials, to be a violation of the Constitution and the European Convention.
The Special Penitentiary Service, in violation of the requirements of the law, refers to abstract and vague circumstances and refuses to escort Mikheil Saakashvili at trials. Besides, we are under the impression that judges hearing the case are not taking reasonable measures to ensure the effective realization of the accused’s right to a fair trial and to limit the possible arbitrariness of the Executive.
Therefore, IDFI believes that the cases of Mikheil Saakashvili are still being considered in violation of the right to a fair trial of the accused. Mentioned harms not only the accused, but the reputation of the Court and the principle of publicity of trials, as well as establishes a dangerous precedent.
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