DRI: The charges filed against persons arrested in connection with Saakashvili case are of a political nature
The Democracy Research Institute (DRI) is responding to the legitimacy of charges filed by the Prosecutor's Office of Georgia against three people as part of an investigation ongoing into the case against former Georgian President Mikheil Saakashvili. The detainees are charged under part 2 of Article 375 of the Criminal Code of Georgia, which pertains to the concealment of a crime without prior promise.
The article chosen by the Prosecutor's Office and its interpretation are of concern, especially given that the investigation of the concealment of a crime is ongoing into cases in which Saakashvili has already been convicted. According to the systemic interpretation of the norm, Article 375 of the Criminal Code of Georgia "Concealment of a crime without prior promise" is included in Chapter 43 of the Criminal Code - "Actions aimed against timely prevention and detection of crime" and, therefore, represents a crime against timely prevention and detection of a crime. All the crimes in this chapter are related only to the investigation stage. The above article does not apply to the stage of the delivery of a verdict by the court and the conviction of a person.
The argument of the Prosecutor's Office is based on the ruling of the Supreme Court of Georgia of November 12, 2008 (Case N2K-1073AP.-08), which defines "concealment of a crime" as follows: "providing a criminal with a place where he can hide, as well as the concealment of the weapon and means of committing the crime, the traces of the crime and the items obtained as a result of the crime." It should be noted that the ruling concerned the concealment of a crime in a pending case (no verdict was delivered).
The explanation of the Prosecutor's Office of Georgia relating to Article 375 of the Criminal Code of Georgia does not correspond to the principle of legality. The Criminal Code of Georgia does not recognize the composition of a crime of which the three people were accused in connection with the case against the former president - "providing a criminal with a place where he can hide".
According to the principle of legality, all actions that are considered to be a crime by the State must be provided for in the Criminal Code. Pursuant to the Constitutional Court of Georgia, the provision of the Constitution of Georgia, according to which "no one is liable for an act that was not considered an offence at the time of its commission," establishes the grounds for the prosecution of a person and strengthens the guarantee that any crime must be clearly defined in criminal law.
The definition of criminal law, contrary to its literal meaning, also contradicts the principle of separation of powers, because in this way the court changes the criminal norm, whereas only the Parliament of Georgia has the right to do so.
Accordingly, the explanation of the Prosecutor's Office that "the article of the Criminal Code should not be interpreted literally, but the article should be interpreted purposefully" is a complete disregard for the principles of legality and definiteness.
The Democracy Research Institute believes that the disregard for the principles of foreseeability of criminal law by the Prosecutor's Office is caused by the arbitrariness of a body making legal decisions. Accordingly, it is reasonable to assume that both the filing of the charge and the application of the most severe measure of restraint – detention – against all three persons are intended to punish the individuals for their political views.
Judgment of the Constitutional Court of Georgia of 11 July 2011 in the case of Public Defender of Georgia v. Parliament of Georgia