Published on 6 April 2021

FIFTH SECTION

Applications nos. 6232/20 and 22394/20 Mikheil SAAKASHVILI against Georgia lodged on 27 January and 25 May 2020 respectively communicated on 15 March 2021

SUBJECT MATTER OF THE CASE S

The applications concern under Articles 6, 7 and 18 of the Convention the fairness of two separate sets of criminal proceedings conducted against the applicant, a former President of Georgia.

The applicant was elected as President of the country in January 2003, after the United National Movement (“the UNM”), a political party co ‑ established and led by him, had come to power in November 2003. By the time his second consecutive presidential term expired on 17 November 2013, the UNM, defeated by the political coalition Georgian Dream in the parliamentary election of October 2012, became the main opposition force in the country (for more details, see Merabishvili v. Georgia [GC] , no. 72508/13, § § 9-13, 28 November 2017). The applicant left Georgia shortly after the expiry of his presidential tenure in late 2013, settled in Ukraine, eventually obtaining the latter country ’ s nationality.

On 5 August 2014 the Chief Public Prosecutor ’ s Office, acting within the framework of a criminal investigation launched into ill-treatment of a Member of Parliament (“the MP”) which had taken place on 14 July 2005, charged the applicant with two offences: criminal battery and abuse of authority. He was accused of having masterminded, with the help of high ‑ ranking officials of the Ministry of the Interior, the attack on the MP as a retribution for the latter ’ s public statements containing offensive speech against the applicant and his wife.

On 28 June 2018 the Tbilisi City Court, after having conducted a trial during which numerous witnesses were heard and other pieces of evidence examined in the presence of the applicant ’ s lawyer, convicted the applicant in absentia of the offences with which he had been charged. The applicant ’ s lawyer unsuccessfully appealed, complaining that the conviction was largely based on hearsay evidence. The final domestic decision, upholding the applicant ’ s initial conviction and sentencing him to six years ’ imprisonment (with an additional two years ’ ban on entering public service), was delivered by the Supreme Court on 31 July 2019. The applicant has not served his sentence.

On 5 August 2014 the Chief Public Prosecutor ’ s Office charged the applicant with an additional criminal offence of abuse of power on account of a presidential pardon granted in 2008 to four high-ranking officials of the Ministry of the Interior who had been convicted of murder in a high-profile criminal case (for more details about that murder case, see Enukidze and Girgvliani v. Georgia , no. 25091/07, 26 April 2011). In particular, he was accused of having granted pardon in breach of the relevant domestic legal procedure and for the purposes of perverting the course of justice in the murder case. Amongst other allegations, the charge was also based on the contention, allegedly confirmed by witnesses, that the applicant had had a prior agreement with the high-ranking police officers that he would pardon them in exchange for their acceptance of the criminal responsibility in the murder case.

O n 5 January 2018 the Tbilisi City Court, sitting in a single-judge bench, convicted the applicant in absentia of abuse of power, sentencing him to three years ’ imprisonment. The applicant ’ s lawyer subsequently appealed to the second and third levels of jurisdiction, mainly complaining about the following three issues: ( i ) that the trial judge had lacked independence and impartiality, (ii) that the conviction was mainly based on untested hearsay and (iii) that the applicant was convicted for an act of presidential clemency which did not constitute a criminal offence and was, moreover, the exercise of a plenary power conferred on him by virtue of the office of President and the Head of State. The appeals were rejected by the Tbilisi Court of Appeals and the Supreme Court of Georgia on 18 July 2018 and 21 May 2019 respectively. Eventually, the applicant was sentenced in absentia to three years ’ imprisonment (with an additional eighteen months ’ ban on entering public service) in this set of criminal proceedings. A written copy of the final decision of 21 May 2019 was served on the applicant ’ s lawyer on 1 October 2019. The applicant has not served his sentence.

QUESTIONS TO THE PARTIES

A. As regards application no. 6232/20

1. Insofar as the criminal proceedings opened with respect to the ill ‑ treatment of the MP were concerned, did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 § 1 and 3 (d) [1] of the Convention?

1.1. In particular, can it be said that the applicant ’ s conviction of 28 June 2018 was confirmed by untested hearsay evidence, as alleged by the applicant? If so, was that alleged hearsay the sole or decisive evidence used against the applicant? Furthermore, was the use of the allegedly untested hearsay evidence sufficiently counterbalanced by other procedural guarantees in the criminal proceedings at stake ( Al ‑ Khawaja and Tahery v. the United Kingdom [GC], nos. 26766/05 and 22228/06, § § 130-147 , ECHR 2011)?

2. Having regard to the nature of Article 6 of the Convention , in particular the question of the existence of either explicit or implied restrictions within that provision, can the scope of Article 18 be extended to cover the former provision ( Ilgar Mammadov v. Azerbaijan (no. 2) , no. 919/15 , § 261, 16 November 2017)?

2.1. If so, has there been a breach of Article 18 taken in conjunction with Article 6 of the Convention? In particular w hat purpose or purposes did the authorities pursue with respect to the restrictions allegedly imposed by the State under Article 6? More specifically, were any of the purposes of the restrictions different from those permitted by the latter provision? If the authorities pursued more than one purpose, which one was dominant ( Merabishvili v. Georgia [GC] , no. 72508/13, § § 292-308, 28 November 2017) ?

B. As regards application no. 22394/20

1. Having regard to the exceptional measures taken by the Court in the context of the COVID-19 global health crisis, was the application lodged with the Court in compliance with the six-month time-limit laid down in Article 35 § 1 of the Convention?

2. Insofar as the criminal proceedings opened with respect to the act of presidential clemency were concerned, did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § § 1 and 3 (d) [2] of the Convention?

2.1. In particular, can the trial judge (the first-instance court) be said to have been independent and impartial when examining the criminal case against the applicant, as required by Article 6 § 1 of the Convention?

2.2. Was the applicant ’ s conviction of 5 January 2018 confirmed by untested hearsay evidence, as alleged by the applicant? If so, was that alleged hearsay the sole or decisive evidence used against the applicant? Furthermore, was the alleged use of the untested hearsay evidence sufficiently counterbalanced by other procedural guarantees in the criminal proceedings at stake ( Al-Khawaja and Tahery , cited above, § § 130-147 )?

3. Has there been a breach of Article 7 of the Convention in the criminal proceedings at stake? In particular, did there exist at the material time accessible legal indicators which could have enabled the applicant, if necessary with appropriate legal advice, to foresee the legal consequences of the exercise of his power of presidential clemency, the conduct on the basis of which he was subsequently convicted of the criminal offence of abuse of power?

4. Having regard to the nature of Articles 6 and 7 of the Convention , in particular the question of the existence of either explicit or implied restrictions within those provisions, can the scope of Article 18 be extended to cover either of the former provisions ( Ilgar Mammadov , cited above, § 261)?

4.1. If so, has there been a breach of Article 18 taken in conjunction with either Article 6 or Article 7? In particular w hat purpose or purposes did the authorities pursue with respect to the restrictions allegedly imposed by the State under Articles 6 and/or 7? More specifically, were any of the purposes of the restrictions different from those permitted by the latter provisions? If the authorities pursued more than one purpose, which one was dominant ( Merabishvili , cited above, § § 292-308) ?

[1] Although the applicant referred to Article 6 of the Convention in general, he raised in substance a complaint under Article 6 §§ 1 and 3 (d), and hence the need to refer to these specific provisions in the question.

[2] Same explanation as in footnote 2 above.