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Complicated: Guide to Saakashvili’s Jail Controversy

A month ago, few in Georgia would expect that ex-President Mikheil Saakashvili’s imprisonment would be the hottest second-round topic. Yet, Saakashvili has returned after 8 years in exile and went into prison if not willingly, at least with a smile on his face. His subsequent hunger strike became a political headache for the government, and Georgia’s foreign partners: yet another crisis, which often serves as a proxy battlefield to many other real crises.

Thousands have gathered in Tbilisi’s central square on October 14 to demand Saakashvili’s release. Ex-President has been convicted on two separate charges and sentenced – in absentia – to six years in prison. Other cases are pending in court. His supporters consider Saakashvili a political prisoner. Some human rights groups cast doubts on the fairness of the trials that sentenced him – especially in terms of the procedure since he was tried in absentia. The statements of the ruling party officials have further raised doubts about the political motive behind his persecution.

Below, we tried to list some of the arguments that are advanced for and against Saakashvili’s continued imprisonment.

Charges and Key Arguments

Saakashvili has been convicted in absentia by all three instances of Georgian courts for two crimes: he was sentenced to three years in prison for pardoning the former Interior Ministry officials, who were serving time in the high-profile murder case of Sandro Girgvliani. He was also sentenced to six years for organizing an attack on opposition MP Valeri Gelashvili in 2005. According to the criminal procedure law of Georgia, however, the imprisonment sentences on multiple cases do not cumulate, so Saakashvili has to serve six years behind bars, based on his current convictions.

In 2020, after the exhaustion of domestic remedies, cases of beating and pardoning were sent to the European Court of Human Rights, alleging violations of the right to a fair trial (Article 6 ECHR), “no punishment without law” (Article 7 ECHR – in relation to the pardon case), and limitation on use of restrictions on rights (Article 18 ECHR – in relation to alleged politically motivated charges).

There are two other, ongoing cases in court, one concerning embezzlement and another one exceeding official authority in disbanding the 2007 anti-government protests and related events. Saakashvili denies the charges as politically motivated. He was additionally charged on October 20 for illegal border crossing upon returning to Georgia. Several other people have been arrested in connection with Saakashvili’s return.

  • Beating Case

The Georgian courts held that an attack on MP Gelashvili was ordered by Saakashvili in retaliation for his June 2005 newspaper interview in which he accused then-President of seizing his property and personally insulted Saakashvili and his family. To counter the allegations of the case being politically tinted, the Prosecutor’s office has been citing a preliminary conclusion by a group of “internationally renowned” criminal law experts it invited in 2014 to assist with high-profile cases. The conclusion reportedly said that “existing material is legally and factually sufficient to proceed with the prosecution of Mikheil Saakashvili” and other officials indicted in the same case.

The defense, however, has been challenging investigation findings, arguing it largely relies on hearsay and questioning the quality of witnesses. One of the key witnesses was Irakli Okruashvili, former Defense Minister and Saakashvili’s ally-turned-foe who was sentenced on various charges both during UNM and GD governments. Skeptics argue that Okruashvili both had a personal motive to revenge against Saakashvili, and may have been under duress facing charges under the GD administration. Another controversial witness was Nino Burjanadze, then-Parliamentary Speaker, who also turned into Saakashvili’s bitter political opponent. She, however, denied in 2014 being a key witness in the case or having precise knowledge of whether Saakashvili had ordered the beating.

Beka Basilaia, Saakashvili’s lawyer, also questioned the conclusion of international experts, alleging they are “retired lawyers” who are ready to “sign some conclusion” if they are paid for it. He also doubted experts’ capacity to study all the relevant evidence in a short period of time.

  • Pardons Case

The pardoning charges, stemming from the high-profile murder case of Sandro Girgviani, are probably the most controversial and complicated from the legal perspective. The dead body of Girgvliani, a 28-year-old bank staff, was found with multiple bodily injuries near Tbilisi in 2006 after the alleged altercation with high-ranking law enforcement officials in a cafe, the night before.

The prosecutors have been alleging that President abused his constitutionally bestowed power of pardon to cover up the crime of high-ranking perpetrators. According to charges, Saakashvili promised Data Akhalaia, head of the Department for Constitutional Security (DCS) at the time, who allegedly instructed the kidnapping and torture, to pardon DCS officials who directly carried out the crime. Akhalaia, in turn, promised his subordinates a Presidential pardon and other benefits in exchange for their silence about the involvement of high-ranking DCS officials.

To support their arguments, the prosecutors further cite the 2011 judgment by ECtHR (Enukidze and Girgvliani v. Georgia), which found the violation of Article 2, right to life, in a procedural aspect. The ECtHR ruling said the Court was “struck by how the different branches of State power” all acted “in concert in preventing justice from being done in this gruesome homicide case.” It enumerates the collusion of the Interior Ministry, Prosecutor’s Office, Prisons Department, and domestic courts in the coverup, and also refers to “the unreasonable leniency towards the convicts” by the President of Georgia, Mikheil Saakashvili. The ECtHR noted it was “struck” by Saakashvili finding it “appropriate to pardon State agents convicted of such a heinous crime by reducing the remainder of their sentences by half.”

Critics argue that these elements of the ECtHR ruling point to the political responsibility of the ex-President, but cannot lead to criminal charges for using the constitutionally granted presidential power of pardon. The prosecution of this case sparked fears that it may set a dangerous precedent against the free application of their constitutional right by future presidents.

A further criticism is that justice was not equally applied to all branches listed in the ECtHR ruling, and while the ex-President and several other former officials were found guilty, investigators, prosecutors, and judges responsible for “fabricating” the case have been spared.

  • November 7/Imedi TV case

Charges of exceeding official powers consist of many separate episodes and stem from the breaking up of the November 7, 2007, anti-government protests, as well as a raid on and “seizure” of Imedi TV station and other assets owned at the time by tycoon Badri Patarkatsishvili. The prosecutor recently claimed that the Imedi TV raid was one of the rare crimes committed “live, on-air,” and the President’s role has been confirmed by direct witnesses, including by high-ranking officials at the time. Saakashvili also exceeded his powers by deploying the army, as the single official with such authority, against peaceful protesters in violation of relevant laws, the prosecutor told media, adding that this has also been confirmed by then-high-ranking military officials.

While some of the episodes indeed could have been observed on live TV back in 2007, key questions focus on establishing the chain of command for relevant orders and the reliability of witness testimonies. For example, as in the beating case, the defense had complained about one of the key witnesses in the Imedi seizure case being then-Parliamentary Speaker Burjanadze. Those skeptical of the admissibility of her testimony cite her full-hearted backing of the government’s actions in the immediate aftermath of November 2007 events (Burjanadze became president ad-interim when Saakashvili stepped down following the breakup of 2007 protests and ran for re-election – which he won). Burjanadze had ardently advocated for Saakashvili’s arrest in 2014, but she is now questioning the willingness and ability of the Georgian judiciary to ensure a fair trial.

  • Embezzlement case

Charges in what is commonly referred to as “case of suits” say Saakashvili misused funds – in the amount of up to GEL 9 mln (USD 3 mln) – allocated from the state budget to the Special State Protection Service (SSPS), the agency in charge of providing security to high-ranking officials, for personal purposes to benefit himself, his close allies, friends and family members. Former SPSS Head, Temur Janashia, is also indicted. The personal expenses allegedly included, among others, expenditures on staying in luxury hotels and spa resorts, visits to aesthetic clinics, and the purchase of clothing.

The defense argues that a similar spending mechanism for private expenses of the high officials has been used under the Georgian Dream government as well, and alleges “selective justice.” Saakashvili’s attorney Basilaia claimed earlier that identical expenses were allowed in 2013 when Saakashvili was still a President, but the GD had taken over the government, including the SPSS. The lawyers have been demanding, among others, to question current SPSS Head, Anzor Chubinidze, and to declassify the agency spending records since 2013 to inspect for similar patterns.

  • Illegal border crossing

According to the prosecution, Saakashvili was smuggled in Georgia in a clandestine fashion by sea and spent several days in various parts of the country before police captured him on October 1 in Tbilisi. He was eventually, on October 20, charged with illegal border crossing, probably the most evident of all alleged crimes.

The case is still controversial, particularly after the Prosecutor’s office charged three alleged accomplices who transported and sheltered the ex-President with “concealment of a serious crime without prior arrangement.” Arguments ensued about how much harboring the convict falls under the concealment of a serious crime. Prosecutors are citing the Supreme Court case law, which equates the concealment of a criminal with that of a crime. Another person was arrested on October 20 on the same charges.

Further Concerns

Outside the content and evidence in the criminal cases, lawyers and others questioning the due process have raised further concerns, including signs of political motivation, pending trials used as means of pressure, and the questionable reputation of the Georgian judiciary.

  • Political Motives

Saakashvili and his lawyers have been dismissing the charges as politically motivated from the beginning. However, additional questions about political influence in the case were raised by wider parts of society after Prime Minister Irakli Garibashvili’s phrase saying Saakashvili better “behave, otherwise, we will bring more articles [charges against him].”

Garibashvili later tried to clarify his phrase. Warning against “misinterpreting” his statements, he said he was “half-ironically” commenting on Saakashvili calling for disobedience or a coup, making a clarification that should Saakashvili commit a new crime, including while in jail, he would “naturally” be subjected to additional charges as per law. “It is, of course, not up to me to decide what articles [charges] to add to whom” he noted, adding that it was a “theoretical discussion.”

  • Judicial Independence

The fears of political meddling are exacerbated by the perceptions of the current state of judicial independence in Georgia. Civil society and the opposition have long pointed to a so-called “clan rule” in the Georgian common courts’ system, with a government-loyal group of judges allegedly pulling the strings to influence specific rulings. The reputed international actors have also been continuously critical of judicial reforms and the appointment of judges.

The questions surrounding judicial independence are shared by some other opposition forces such as the Lelo party as the key argument against him remaining behind the bars. It is also believed that the judicial clan had its roots in the UNM rule before their loyalty was taken over by the GD government. For illustration, Levan Murusidze, seen as one of the “clan leaders,” was the Supreme Court judge ruling on the Girgvliani case in 2007.

Since Saakashvili’s arrest, his defense lawyers have been also complaining that courts are intentionally delaying scheduling trials on some of the ongoing cases to prevent ex-President’s public appearance ahead of municipal election runoffs. The prosecutors claim that in November 7 case, the trial dates had been agreed earlier with the defense, while the defense argues that their well-founded motions on this and other cases are wrongfully denied.

  • Fears of Confrontation

Another argument of those opposing jailing the ex-President involves the concerns that imprisonment further divides the country or creates additional hurdles in Georgia’s western path. This view is particularly represented by part of the high-ranking clerics in the Georgian Orthodox Church, which saw splits between those advocating for “national reconciliation” versus those hinting at the need for “fair punishment.”

The clerics backing Saakashvili’s release, along with some others sharing their views, also like comparing his case with that of Zviad Gamsakhurdia, Georgia’s first President. Gamsakhurdia’s suspicious death in 1993, after his ousting, in a remote village in the western Georgian Samegrelo region remains a matter of controversy and national regret to date. There is a related view held by some that the country should rather refrain from jailing someone who once was an elected leader.

Crisis and Proposed Solutions

The opponents claim that the authorities fear jailed Saakashvili’s influence on political developments. But the Georgian Dream government does not seem willing to make any concessions. The runoff campaign for the local elections has been recast to centered around the alleged abuses committed under the UNM rule. Personal recollections of victims are often aired in government-friendly media. Those who suffered under the previous government also hold rallies demanding justice, which are amplified by the same media.

There seem to be no prospects of some sort of western intervention, as used to happen in Georgian crises before. Commenting on September 29 on Saakashvili’s then-possible return, Viola von Cramon-Taubadel, one of the Members of the European Parliament actively engaged in Georgia’s political processes, warned EU has no “resources and desire” to mediate another political crisis in Georgia. Her position is “widely” shared by other EU institutions, she added. Despite the hopes of the UNM, the key western institutions have so far refrained from weighing in.

Many of the major local civil society outfits, otherwise actively participating in political discussions in the country, seem also reluctant to clarify their positions. The Public Defender’s office, while monitoring Saakashvili’s prison conditions and inmate rights, has also stayed away from discussing the charges.

However, Saakashvili received support from individual foreign politicians and MPs. The open letter addressed to EU leaders and signed, among others, by 26 MEPs and multiple lawmakers from Central and Eastern European countries, called to suspend Saakashvili’s imprisonment “until he faces trial, in fair judicial proceedings” considering the pending ECtHR ruling. The signatories also suggested putting “some element of international observation” in place to help calm tensions.

Different solutions were proposed by domestic actors: MP Salome Samadashvili, formerly in UNM and now part of the Lelo For Georgia-led parliamentary faction, offered on October 19 to pass certain criminal law amendments. The amendments should allow suspending the ex-President’s sentence since he was unable to take part in trials where he was found guilty and to enable renewed proceedings for him to fully participate.

Mayoral candidate and lawyer Anna Dolidze voiced a different solution, citing the international law approach empowering victims to plead their cases. Dolidze suggested ensuring fair trial based “on the hybrid model similar to special chambers in Bosnia and Herzegovina and elsewhere,” inviting up to six international judges to set up two instances. The second instance should allow Saakashvili to appeal the charges where he was already found guilty as well. Critics of this proposal argue that it may not be compatible with the Constitution of Georgia, which prohibits “establishing extraordinary courts.”

Should the GD government agree to any of these proposals, however, it is another question whether international actors will be willing to offer their assistance – again.

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