Restricting the 3^rd 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.

The Penitentiary Service named (1) the refusal of a substantial part of treatment by Mikheil Saakashvili and (2) the investigation being carried out by the State Security Service as reasons for refusing to bring the defendant to court.

First of all, it is noteworthy that an abstract reference to the fact that the transfer of the prisoner due to his hunger strike would be a risk to his health cannot be considered as a substantiated argument. This will virtually deprive all prisoners that are on hunger strike of the opportunity to participate in their own judicial proceedings and exercise their right to a fair trial. Moreover, legislation reviews the protocol of action in a similar case and requires that, in case of health risks, the accused be accompanied by a medical worker during transfer.[1]

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.

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[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.