Interim measures indicated concerning Georgia

Published in Justice
Wednesday, 17 November 2021 10:55

The Court has decided to indicate interim measures in the case of Saakashvili v. Georgia and has asked the Georgian Government to provide it with information on the applicant’s state of health, to guarantee his safety in prison and to provide him with appropriate medical care.

The applicant, Mikheil Saakashvili, is the former President of Georgia. Having been convicted for a number of offences committed while in office, he is currently serving a prison sentence. The applicant claims he is a victim of ‘political persecution’ and has been on hunger strike for 41 days.

Source: https://www.echr.coe.int/Pages/home.aspx?p=home

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  • Public Defender Demands Mikheil Saakashvili’s Involvement in His Trial

    Restricting the 3rd President of Georgia, Mikheil Saakashvili, from participating in his own trial grossly violates the right to a fair trial enshrined in the Constitution of Georgia and the European Convention.

    Mikheil Saakashvili has not been allowed to appear before court three times since his arrest. In all three cases, the Special Penitentiary Service refused to bring Mikheil Saakashvili to court and the court endorsed the refusal without critical deliberation.

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    As for the refusal to transfer Mikheil Saakashvili to court for the so-called security reasons, it is noteworthy that the procedural law does not provide for such an opportunity. The subordinate normative act explicitly and unequivocally states that an accused/convicted person shall be escorted to court at the request of the relevant authorized person of common courts, which does not require additional decision-making.[2]

    In addition, legislation does not recognize the possibility for the Penitentiary Service to refuse to transfer an accused person to court due to a pending investigation into any case. It should be noted that the maximum statute of limitations for the investigation carried out by the State Security Service is ten years.[3] This allows the Penitentiary Service to illegally, arbitrarily and permanently refer to the investigation ongoing in the State Security Service, which would be a de facto annulment of the defendant’s right of defence.

    In addition, the European Court of Human Rights considers that security issues must be clearly defined and meet the criteria of necessity. Judges should consider all possible alternatives to ensure safety and security and give preferencetoa less strict measureover a stricter one when it can achieve the same purpose.[4] Guarantees of a fair trial and public hearing are considered violated when the domestic court fails to explain why the state security system would not be able to deal with the security risks.[5]

    Thus, the Public Defender believes that at this moment there is no proper argument on the basis of which Mikheil Saakashvili should be restricted from appearing before court in person. The position presented by the Special Penitentiary Service cannot outweigh the right to a fair trial guaranteed by the Constitution of Georgia and the European Convention on Human Rights, which among other guarantees includes the right of the accused to personally and directly participate in oral, public hearings, with full observance of the principles of equality of arms, adversarial process and examination of evidence.

    The Public Defender calls on the Special Penitentiary Service to properly and conscientiously perform its rights and duties and ensure that Mikheil Saakashvili is brought before court, by providing appropriate guarantees for his health and safety. The Public Defender also calls on the court to give the accused the opportunity to state his position, participate in the examination of evidence and protect his rights within the framework of all three ongoing cases.


    [1] Order No. 149 of the Minister of Corrections of Georgia on the Approval of the Rules for Escorting/Transferring Defendants/Convicts, 19.10.2015, Annex No. 1, Article 37

    [2] Order No. 149 of the Minister of Corrections of Georgia on the Approval of the Rules for Escorting/Transferring Defendants/Convicts, 19.10.2015, Annex No. 1, Article 4, suparagraph 4.

    [3] Part 1 of Article 315, part 3 of Article 12, subparagraph "c" of part 1 of Article 71 of the Criminal Code of Georgia and Article 103 of the Criminal Procedure Code of Georgia.

    [4] Riepan v. Austria, 35115/97, paragraphs 28-29; Krestovsky v. Russia, 14040/03, paragraph. 29.

    [5] Krestovsky, 29-30; Luchaninova v. Ukraine, 16347/02, 56-57.

  • Public Defender Visits Mikheil Saakashvili in Medical Establishment No.18 of Penitentiary Service

    On November 8, 2021, Public Defender Nino Lomjaria visited third President of Georgia Mikheil Saakashvili, who was transferred to Medical Establishment No. 18 of the Penitentiary Service, Public Defender reports.

    At the meeting, Mikheil Saakashvili told the Public Defender that he had no information about his transfer to Establishment No. 18, as he was informed at Establishment No. 12 that he would be transferred to a multifunctional civil clinic on the basis of the decision of the medical council, which he agreed to.

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    The Public Defender has repeatedly stated in her statements that the transfer of the prisoner from Establishment No. 12 to Establishment No. 18 would lead to the disorganization of Establishments Nos. 8 and 18 due to the significant risk of verbal aggression, noise and harassment.

    It should be noted that the Public Defender's Office checked the documents on the admission of prisoners to Establishment No. 18, as a result of which it was established that no other inmates of Establishment No. 12, except Mikheil Saakashvili, have been admitted to this facility since January 18, 2021. Information about the period before January 18, 2021 is yet unknown due to the inability to access the special archive at night hours.

  • Public Defender Checks Readiness of Medical Establishment No.18 for Mikheil Saakashvili’s Admission

    On October 24, 2021, Public Defender’s representatives checked the readiness of Medical Facility No. 18 for the possible admission of the third President of Georgia, Mikheil Saakashvili. The inspection revealed that the situation in the facility, in terms of medical care, does not fully comply with the report or recommendations issued by a multifunctional group of doctors on October 23, 2021, and there are also some safety risks.

    Representatives of the Public Defender examined the readiness of the facility in terms of provision of the medical services indicated in the report of the multifunctional group of doctors. The report refers to specific medical interventions and the transfer of Mikheil Saakashvili to a medical facility capable of providing the above services.

    Interviews with the administration and medical staff of Medical Facility No. 18, as well as inspection of infrastructure and medical equipment, revealed that the facility has the necessary resources to meet the medical needs of prisoners (including hunger strikers). However, the report issued by the multifunctional group of doctors regarding the medical needs of Mikheil Saakashvili directly refers to the need of implementation of certain medical procedures, which, unfortunately, is impossible to be provided in Facility No. 18. For example, the facility cannot provide magnetic resonance imaging, computerizedtomography or duplex scanning. In addition, the facility does not currently have a resuscitationspecialist, but according to the administration, the relevant specialists are expected to be employed in the near future.

    The monitoring made it clear that Facility No. 18 will not be able to provide the medical services indicated by the multifunctional group of doctors and Mikheil Saakashvili will need to be transferred to a civil clinic periodically. Given the fact that it is virtually impossible to fully predict changes in the health condition or aggravation of health of the prisoner who has long been on hunger strike, there may be quite severe or irreparable consequences during the patient's transfer in case of a critical change in the situation.

    It should be noted that the Public Defender's detailed review of the lack of medical staff and medical services in Facility No. 18 is provided in the 2020 Report of the National Preventive Mechanism.[1]

    In addition to medical services, the Public Defender's Office inspected the ward in which Mikheil Saakashvili is planned to be placed in case of his transfer to Facility No. 18. It should be noted that Penitentiary Establishment No. 12 accommodates prisoners who have conflict of interest with other prisoners (former police officers, military servicemen, officials). Consequently, any kind of contact with other prisoners poses security risks that the penitentiary establishment must avoid, otherwise there will be a violation of prisoner's rights.

    All the locations, where the third President of Georgia may have to stay/move to (during admission to the facility, placement in a ward, meeting with lawyers or family members, enjoyment of the right to walk, provision of medical care, making telephone calls, daily/hygienic procedures), were checked during the monitoring on October 24, 2021 and it was found out that although the administration of the facility expresses its readiness to ensure the safety of any prisoner, there are certain risks with respect to Mikheil Saakashvili. The infrastructure and environment fail to exclude the risk of verbal aggression and noise, verbal abuse and psychological pressure by certain groups of prisoners. It will also be problematic for visitors to visit Mikheil Saakashvili, as any entrant, including lawyers, will have to walk through the yard of Facility No. 8, close to buildings where other prisoners are placed, which increases the risk of verbal confrontation and abuse. A similar incident was reported at Facility No. 8 in 2015.

    Since it is necessary to go through the yard of Facility No. 8 to get to Facility No. 18 and since Facility No. 18 is located close to the residential buildings of Facility No. 8, we believe that there are risks regarding prisoners’ safety and disorganization of these two facilities. These threats may impede the peace of the prisoners and staff of these facilities, the proper functioning and order of the facilities, which will ultimately affect the situation of all prisoners.

    In view of all of the above, as well as the report of the multifunctional group of doctors, we believe that the Ministry of Justice/Special Penitentiary Service should select an alternative medical facility, where it will be possible to provide full and adequate medical services and security for the third President of Georgia. 

    Public Defender (Ombudsman) of Georgia

     

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