DRI: The decision of the Ministry of Justice to restrict Mikheil Saakashvili from participating in his trial is illegal
The Democracy Research Institute (DRI) is responding to the restriction of Mikheil Saakashvili's right to participate in court hearings in person and considers that the decision of the Special Penitentiary Service subordinated to the Ministry of Justice is illegal.
On November 15, 2021, the Penitentiary Service issued a statement regarding the "transfer" of Mikheil Saakashvili to court, explaining that based on information received from the State Security Service, uncontrollable situation and chaos could occur in the event of Mikheil Saakashvili’s transfer to the court. In addition, the Service cited as an additional argument the fact that Saakashvili's transfer and attendance at the trial posed an additional risk to his health. The Penitentiary Service expressed its readiness to ensure the remote participation of Mikheil Saakashvili in the trial, as well as to hold the court session in Penitentiary Establishment No. 18.
Attendance at the court hearing is an integral part of the right to a fair trial under Article 31 of the Constitution of Georgia. According to the European Convention on Human Rights, everyone has the right to a public hearing. According to the case law of the European Court of Human Rights, ensuring the right of the defendant to be present in the courtroom is considered to be one of the essential requirements of Article 6. In addition, an important aspect of criminal proceedings is the ability of the defendant to oppose witnesses in the presence of a judge who makes the final decision in the case.
The arguments provided by the Special Penitentiary Service regarding the remote participation in the hearings do not comply with legal requirements for holding a hearing remotely. Moreover, legislation of Georgia does not recognize the restriction on attendance at the court hearing on the above basis at all. Consequently, the decision of the Special Penitentiary Service to restrict Mikheil Saakashvili from exercising his constitutional right to participate in his trial is illegal.
The possibility of holding court hearings remotely is regulated by Article 3325
- Temporary Rules for Holding Court Sessions until January 1, 2022 -
of the Criminal Procedure Code of Georgia. This article emerged in Georgian legislation in a situation caused by the pandemic and as a temporary measure
, aims to prevent the spread of the Covid-19 virus.
Holding hearings remotely without the presence of defendants/convicts does not comply with the principles of criminal justice.
According to the literal meaning of the above-mentioned article of the Criminal Procedure Code: 1. The possibility of holding a hearing remotely is provided not to reduce the security or health condition of the defendant/convict, but to reduce the dangers posed by the pandemic; 2. The decision to hold a hearing remotely shall be made only by the court; 3. The consent of the defendant/convict is required for holding a hearing remotely.
According to media reports, Mikheil Saakashvili expresses willingness to take part in his trial. In addition, it is important that on November 10, 15 and 16, the court called on the special penitentiary institution to allow Mikheil Saakashvili to participate fully in his trial. Given that Mikheil Saakashvili’s attendance was demanded by the court, the illegal refusal by the Penitentiary Service operating within the system of the Ministry of Justice indicates politicization of the agency.
The Democracy Research Institute calls on the Ministry of Justice to remain within the framework of the European Convention on Human Rights, the Constitution of Georgia and legislation of Georgia, and to ensure the physical presence of Mikheil Saakashvili in the court.
In case of the danger of spreading a pandemic and/or an epidemic that is particularly dangerous for health, the court session provided for by the Criminal Procedure Code of Georgia may be held remotely, if the defendant is imprisoned or detained or if the conduct of the court session in a courtroom may violate the public interest of solving a crime and holding the person liable for the crime.