THE GROUP OF INDEPENDENT LAWYERS ISSUES A STATEMENT REGARDING THE FAILURE TO PRESENT MIKHEIL SAAKASHVILI TO THE COURT HEARING

As it became known to the public, a court hearing was scheduled for December 14, 2022, to consider the issue of a postponement of the sentence or release of the former president of Georgia, Mikheil Saakashvili. Despite the official request of the court, the convict was unable to participate in the court hearing, as he was not presented to the court or involved remotely in the prescribed manner.

The court has already twice adjourned the consideration of the issue concerning the suspension of the sentence or release of Mikheil Saakashvili for the same reason. On December 8, Mikheil Saakashvili made a public statement that he wanted to attend the court hearing despite being unwell. The reasons named for the postponement of the court session scheduled for December 9 were the efforts of the penitentiary service to solve technical problems in order to ensure the remote involvement of the convict and familiarization with the case materials.

Adjudicating the case of Mikheil Saakashvili does not present the court in the eyes of the general public as an independent body supervising the protection of human rights. This trial leaves the impression that the judge is unable to ensure the procedural rights of the convicted person against the arbitrariness or irresponsible behavior of the body implementing the detention.

Handling a court proceeding is fully the competence of the trial judge who must be able to utilize all the procedural and institutional leverage at his/her disposal to ensure timely and quality management of the process.

• The judge did not manage the court hearing in a due manner. According to the current legislation, the judge is obliged to manage the consideration of the case in court, properly organize and plan it, avoiding unreasonable delays in the process. In addition to proper knowledge of the law, the judge shall have appropriate skills. The ability to carefully and conscientiously prepare a case is one of the mandatory criteria for the appointment of a judge as per organic law. The preparation of the case means checking the attendance of the parties, as well as the technical efficiency of remote participation, as a rule, before the start of the court hearing, and taking any necessary actions in case of any shortcomings.
• Carrying out court trials remotely is a widespread practice in the courts of Georgia. Despite this, Mikheil Saakashvili's participation in the trial was not ensured twice at different times. The amendments introduced to the legislation of Georgia in connection with the spread of the Covid-19 pandemic provide for the possibility of holding court hearings remotely. According to the information from the High Council of Justice, only until July 2020, more than 16,400 remote court trials were held in the court.
• The court unequivocally accepted the completely unfounded and unconvincing statement made by the penitentiary service about the technical impossibility of ensuring the remote participation of the convict. At the hearing, it was not discussed specifically whose responsibility it was to ensure the remote involvement of the inmate or who at least was tasked to ensure the same for the next hearing.
• The judge did not take any measures after seeing the signs of unreasonable delay in the court hearing on the part of the penitentiary service. The judge is obliged to have an appropriate response to any motion made by the party: to identify whether it serves to unreasonably delay the court proceedings and to prevent the participant in the case proceedings from manipulating the legal norms, especially to the detriment of a convicted person who has health problems. In the given case, the judge approached the case superficially, in a formalistic manner. He did not enquire about the content of the technical problem, the reasonableness of the time requested for eliminating the shortcoming, and the reasons for not eradicating the problem within the specified timeframes. The judge refrained from using the procedural tools at his disposal and unconditionally granted the request of the representative of the penitentiary service.
• The judge adjourned the court trial for the second time in order to allow time for the penitentiary service to get acquainted with the same materials of the case, which the judge had already done once when he decided to postpone the hearing on December 9. The representative of the penitentiary service noted that it was December 12th when he received the case materials submitted on December 9th. The court did not discuss the volume of the materials to be examined. The defense lawyer's argument that only three pages had been added, which mainly referred to the materials stored in the penitentiary service and available to the representative of the service prior to December 9, was left unanswered. The above decision of the judge is not in line with the practice of the European Court regarding unjustified delays in the consideration of a case.

Considering the circumstances of the case, Judge Giorgi Arevadze:

• Should not have adjourned the trial to allow the representative of the penitentiary service time to review the case materials.
• Should have postponed the hearing for only a few hours to ensure the remote involvement of Mikheil Saakashvili in the trial, and if necessary, the participation of an IT specialist of the court, or to issue any necessary instructions for this purpose.
• In the event that the possibility of holding a remote hearing had been finally excluded, the court ought to have ruled on holding a court hearing in the premises of the convicted person's placement, ensuring the publicity of the trial in accordance with the law.

We believe that the judiciary, which is under increased public scrutiny in high-profile cases, should carry out the basic functions prescribed by law. Otherwise, public nihilism and distrust of the justice system will further deepen.

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