Actions of the state bodies towards Mikheil Saakashvili that took place during the last week violate rights of the convicted and damage legitimization of legal actions that were carried out in relation to Saakashvili. Namely, restriction of the right of the convicted to remotely attend its court hearing, also publication of the footages disregarding fundamental principles of law strengthen opinion that Georgian judiciary system is not able to consider/decide on Saakashvili’s case in full accordance with rule of law.

On December 14, Mikheil Saakashvili was not allowed to remotely participate in a court session. During the session, the representative of the Special Penitentiary Service of Georgia has not provided a single convincing argument that would justify legitimacy of  the restriction of the right to fair trial. The court ignored non-enforcement of its order and continued the hearing without the convict. There are clear signs of violation of Mikheil Saakashvili’s right to fair trial in this incident.

On December 14, the Ministry of Justice of Georgia, through the Special Penitentiary Service of Georgia, published the footages of Mikheil Saakashvili’s stay in a hospital. It is clear that the  published footages do not have any logical connection with the legitimate interests stated by the state itself. We reckon that by the publishing of the footages, the convict's right to privacy was violated and also had a significant impact on the convict's right to dignity.

It should be noted that the publication of the footages followed the European Parliament’s resolution of December 14, where the importance of reducing political polarization is discusses and the case of Saakashvili is considered in this context. On the other hand, depolarization is one of the priorities determined by the Europea Commission in its opinion of June 17 on Georgia's application for EU membership. By publishing Saakashvili’s footages the government clearly raised an already high level of polarization in Georgia.

Conducting of legal process related to the case of Saakasvhili with disrespect of fundamental principles of legal state damages not only rights of the person, but also the international image of Georgia. IDFI considers that the latest developments in Saakashvili’s case have also significantly damaged the process of Georgia’s integration in the EU.

1. Assessment of the episode of restricting remote attendance to a court session

On December 14, Mikheil Saakashvili was not allowed to remotely participate in a court session. During the session, the representative of the Special Penitentiary Service of Georgia has not provided a single convincing argument that would justify legitimacy of  the restriction of the right to fair trial. The court ignored non-enforcement of its order and continued the hearing without the convicted. There are clear signs of violation of Mikheil Saakashvili’s right to fair trial in this incident.

It should be mentioned that, the former president was not allowed to attend the session of December 9 as well the reason for which was the letter of medical center “Vivamedi” where doctors did not consider the transportation of Saakashvili to be appropriate. The court adjourned the session to December 14, 2022 and noted that it would instruct the Penitentiary Service to remotely involve Saakashvili in a proceeding. On December 13, 2022 the court issued the order (mandatory act) by which the Special Penitentiary Service was instructed to ensure the remote involvement of the convict at the session of December 14, 2022.

At the session of December 14, 2022, the Special Penitentiary Service refused to remotely involve Saakashvili in a proceeding. According to the service, “at this stage, the service does not have the ability to remotely connect Saakashvili”. It should be noted that the court continued the hearing without the convict. The Minister of Justice explained that it was caused by technical matters.

One’s right to attend its court hearing is an integral part of the right to a fair trial. This right is guaranteed by the article 31 of the Constitution of Georgia and also by the number of international acts, including the article 6 of the European Convention of Human Rights. The obligation to ensure convict’s right to be present at a court session during a criminal case hearing is one of the important requirements that the right to a fair trial provides. This right can be restricted only in exceptional cases, when there is a proper normative basis and a legitimate aim for a restriction.

The Special Penitentiary Service of Georgia has not provided a single convincing argument that would justify legitimacy of  the restriction of the right to fair trial. Namely, service’s argumentation regarding not having a technical equipment, also the justice minister’s explanation regarding technical matters are neither convincing nor justifies the legitimacy of the restriction. Namely, remote participation in a court proceeding can be conducted with a computer device, connected to the internet which can perform audio-visual communication. In other words, the internet and a computer would be enough to exercise Saakashvilis rights to a fair trial. This does not require taking technical and/or administrative measures of high complexity.

After this statement of the Special Penitentiary Service, the court continued the hearing without the convict and ignored non-enforcement of its order from the administrative body. The court must legally assess inaction of the executive and must take relevant actions. The court as one of the branches of the government is obliged to ensure effective realization of convict’s rights. If the court does not respond to the executive's non-implementation of an order, its constitutional function in the context of realizing the right to a fair trial would be put under question.

The European Parliament’s resolution of December 14, 2022 once again indicates that it is important that the case of Saakashvili, because of its high interest, must be conducted in full compliance with all requirements of the law. In order to dispel all questions and doubts in this case, to legitimize the process and to increase trust in it, it is critically important to ensure that Saakashvili effectively exercises all rights guaranteed by the constitution and law. Actions of the state should not raise doubts that it instrumentalizes a person. Also it should be mentioned that this is not the first time Mikheil Saakashvili's right to a fair trial is under question.

2. Assessment of the episode of publishing footages

By the resolution of December 14, 2022 the  European Parliament also responded to Saakashvili's case. It noted that Mikheil Saakashvili’s health is continuing to deteriorate and is still lacking proper care, which raises fears for his life. The European Parliament calls on the Georgian authorities to release former President Mikheil Saakashvili and allow him to receive proper medical treatment abroad on humanitarian grounds. The European Parliament discusses Saakashvili’s case also in the context of political polarization and reiterates that the Georgian Government bears full responsibility for the health and wellbeing of the former President and must be held accountable for the effective protection of Saakashvili’s rights (first of all, the right to life and health) in order to decrease political polarization.

On the night of December 14, 2022, the same day the European Parliament’s resolution was adopted, the Ministry of Justice of Georgia, through the Special Penitentiary Service of Georgia, published the footages of Mikheil Saakashvili’s stay in a hospital. The video is silent, montaged and, supposedly, shows different moments from the period of August 9, 2022 to December 12, 2022.

It should be noted that the minister of justice even on December 13, 2022 announced publication of the Saaksvhili’s footages if “simulations” would not stop. The statement of the Special Penitentiary Service asserted that “In the video, Mikheil Saakashvili’s simulated actions are clearly visible, the purpose of which is to hinder the administration of justice, to mislead society, and international partners”. According to the Service, the footages were published because of the high public interest.

It is clear that the published footages do not have any logical connection with the legitimate interests stated by the state itself. Namely, the footage is not valuable to prove whether Saakasvhili hindered the administration of justice or not, whether he tries to mislead society and international partners or not. It is not possible to make conclusions on the relevant issues connected to this criminal case based on these video recordings. The footages not only fail to respond to the stated aims of its publication, but also raises additional questions in public and creates a wide opportunity for speculation.

We believe that publication of mentioned video recordings, without relevant legitimate aim, violates the right to privacy of the convicted person. It is important that the Personal Data Protection Service has started to study the case of publication of Saakashvili's footages. It should be mentioned that this is not the first time when the Special Penitentiary Service publishes Mikheil Saakashvili's video recordings on the grounds of public interest. Therefore, the Personal Data Protection Service must study not only the lawfulness of publication of the recordings, but the issue of access to recordings obtained as a result of video surveillance of Mikheil Saakashvili in general as well, including by political officials.