Georgian politicians should fully respect the independent mandate of the Public Defender

Published in Politics
Wednesday, 24 November 2021 13:31

Strasbourg, 23 November 2021 - "Public attacks by members of the Georgian Parliament against the Public Defender of Georgia, in connection with her and her Office’s work related to the imprisonment of the former President of Georgia, Mikheil Saakashvili, and his hunger strike, are unacceptable", said today Council of Europe Commissioner for Human Rights, Dunja Mijatović. 

"I commend the Public Defender and her Office for their efforts to uphold the highest possible standards of protection of the human rights of all individuals over whom the Georgian authorities exercise jurisdiction.

This issue was high on my agenda during the meeting I had yesterday in Strasbourg with the Chairman of the Georgian Dream Party, Irakli Kobakhidze, and the Chair of the Committee on European Integration in the Georgian Parliament, Ms Maka Botchorishvili.

Under the Venice Principles, member states are obliged to effectively protect their Ombudsman institutions from any threats or action aiming at or resulting in any hurdles to their effective functioning. I call on the Georgian authorities to ensure that the Public Defender, her office and associated experts can operate in a climate that is conducive to them carrying out their mandate independently, effectively and safely, in line with the Recommendation (2021)1 of the Committee of Ministers of the Council of Europe on the development and strengthening of effective, pluralist and independent national human rights institutions.

It is crucially important first and foremost for all citizens of Georgia but also for Georgia’s international partners, including the Council of Europe, to be able to count on the expertise of an Ombudsman institution which is able to discharge its works independently and effectively, in full compliance with international standards, including the Paris Principles and the Venice Principles. I look forward to discussing this and other human rights issues during my forthcoming visit to Georgia in February next year."

Source: https://bit.ly/3xeG7ud

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    The Public Defender of Georgia

     

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    He pledged to “stand guard over parliamentary sovereignty as the Parliament is the institution in which the power of the people – the source of governmental authority – is expressed to the greatest extent.”

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    [1] Parliamentary Report of the Public Defender of Georgia 2019, p. 251, available at: <https://bit.ly/3CJscy1> [09.12.2021]; See also the statement of the Public Defender of Georgia of October 24, 2018 on the International obligations of the Government to support the activities of human rights defenders, available at: <https://bit.ly/3kBAySa> [09.12.2021]

    [2] Statements of the Public Defender of Georgia are available on the website: <https://bit.ly/3CDI58Z>, <https://bit.ly/3AAGtMN>, <https://bit.ly/3lLqiWG>, , <https://bit.ly/2W3IlOX> [23.09.2021].

    [3] Information is available on the website: <https://bit.ly/3yajvM8>, <https://bit.ly/3EwXSHX>, <https://bit.ly/3lCyQzZ>, <https://netgazeti.ge/news / 555767 />, <https://bit.ly/3oy0qQw> [09.12.2021].

     

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    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.

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