Public Defender’s Amicus Curiae Brief on Cartographers’ Case
On February 25, 2021, the Public Defender lodged an amicus curiae breif with Tbilisi City Court in connection with the cartographers’ case. The amicus curiae breif relies on the examination of 14 volumes of case materials, including covert investigative activities. Along with the examination of the investigation materials, the Public Defender held meetings with both the prosecution and the defense. The Office will monitor the trial as well.
In the amicus curiae breif, the Public Defender focused on two main issues:
(1) whether the charge filed was in compliance with the constitutional principle of legality (whether the objective side of the offence and the elements of malicious intent were evident)
(2) whether there had been a violation of Article 18 of the European Convention on Human Rights (existence of political or other purposes) during the criminal prosecution.
With regard to the principle of legality, in the amicus curiae brief, the Public Defender reviewed in detail the existence of the signs of a crime specified in Article 308 of the Criminal Code in the actions of the accused. In our estimation, the evidence adduced cannot prove that the accused wanted to transfer part of the territory of Georgia to a foreign state or that they acted with this intention. The information provided by the defendants during their interrogation as witnesses was confirmed by the documents of the covert investigative activities. The evidence obtained also failed to prove the existence of corruption, fraud, cheating, self-interest, or other elements in the defendants' actions that would have substantiated their malicious intent as part of their expert activities. Additionally, the prosecution has not yet verified the validity of the 1:200,000 scale map, the non-use of which served as basis for charging the above persons.
Given the specific political circumstances of the criminal prosecution, the Public Defender also performed a test established by the European Court of Human Rights to assess whether there was any unlawful, prohibited (political or other) motive in the indictment. In the light of the recent case law of the European Court, we assessed two issues: (1) whether there was a political or other unlawful motive in the case; (2) whether the political or other motive outweighed the legitimate motive.
The launch of the investigation into the case coincided with the parliamentary elections and became the main pre-election political issue, which was used for campaign purposes. The document cites statements made by senior officials of the ruling political party, members of the political board and the Government, MPs and others during the pre-election period, who used the case of Melashvili and Ilyichova to criticize political parties. According to the case materials, the launch of an investigation into the above case was conditioned by a political official, in agreement with the head of the relevant party. As part of the ongoing investigation, the most important examination was conducted in 4 days and involved a person officially subordinate to the main witness of the prosecution. In addition, one of the problematic circumstances is that the individuals were charged without establishing the validity of the 1:200 000 scale map of 1936-38 and the relevant examination has not been scheduled for months.
In our estimation, the present case clearly has a political or other motive that outweighs the legal motive in the light of the shortcomings identified in the case. According to the case law of the European Court of Human Rights, the above is considered to be a violation of Article 18 of the European Convention.
We hope that the Tbilisi City Court will properly and in detail discuss the elements of the crime and the circumstances of the political motive and will provide a substantiated argument on issues under consideration. The correct legal solution will have a direct impact on the protection of the rights and freedoms of the individuals, as well as the development of further case law.