Georgian Democracy Initiative calls on the Chief Prosecutor’s Office of Georgia to transfer case materials to the lawyers of the high-ranking officials of the Ministry of Defense, Gizo Glonti, Nugzar Kaishauri, Giorgi Lobzhanidze, Archil Alavidze, and Davit Tsipuria, and to allow them to enjoy the safeguards provided by the European Convention and the Georgian legislation.
On October 28, 2014, the Chief Prosecutor’s Office of Georgia detained high-ranking officials of the Ministry of Defense under the charge of embezzlement of the state budget funds in the amount of GEL 4,102,872 in the process of state procurement. On October 30, 2014, the Tbilisi City Court sentenced them to imprisonment as a measure of restraint.
According to news reports, the defense has yet to receive the materials that the prosecution is going to submit to the court as evidence. The main reason for this, according to the prosecution, is that the materials are classified.
According to Parts 1, 3 and 8 of Article 83 of the Code of Criminal Procedure of Georgia, before a defendant is first brought to the court, the parties are obliged to give each other an opportunity to get acquainted with the information and evidence that they are going to submit to the court, as well as with copies of written evidence. At any stage of criminal proceedings, a demand of the defense to get acquainted with the information that the prosecution is going to submit to the court must be satisfied immediately. After the demand to exchange information is made, the failure to transfer the full materials that exist at that moment renders the evidence inadmissible.
The only restriction on transfer of evidence to the defense envisaged by the Code of Criminal Procedure pertains to cases when this is done by a court on the basis of a motion of the prosecution. This restriction only pertains to the part of evidence that was obtained as a result of an operative-investigative measure or a secret investigative action, and only applies before the pretrial conference.
On November 19, 2014, a representative of the Prosecutor’s Office made a public statement according to which the Prosecutor’s Office was ready and had offered representatives of the defense to familiarize themselves with the case materials in the building of the Prosecutor’s Office, in a room specially assigned for them, on several occasions. However, the law directly obliges the Prosecutor’s Office to transfer copies of evidence when the defense does not consider such form of familiarization with the evidence of a criminal case as a sufficient opportunity to prepare the case for the defense.
At the same time, the right to a fair trial provided for in the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter “the European Convention”) includes the principle of equality of arms which implies that each party must be afforded a reasonable opportunity to present his/her case under conditions that do not place him/her at a disadvantage vis-à-vis his/her opponent.[1] The fundamental principle of a fair trial also includes adversarial proceedings, which means the right of the parties to be informed and to be able to comment on all the evidence obtained by the other party. [2]
In the assessment of the European Court of Human Rights, in the case of Öcalan v. Turkey, the respect for the rights of the defense requires that restrictions imposed on the defendant and his lawyer in connection with access to court materials do not deprive the defendant of the opportunity to familiarize himself with the materials of the said case before the court hearing and, at the same time, that he is allowed to present his opinion through his lawyers during the verbal hearing.[3]
In addition, in the case of Jespers v. Belgium, the European Court of Human Rights found that the principle of equality of arms, when read in accordance with Article 6 (3 “b”) of the European Convention, imposes on prosecuting and investigating authorities an obligation to give the defendant all the materials in their possession that may help him to reinforce his case. And in the case of Foucher v. France, in the assessment of the ECHR, the fact that, with the decision of the Prosecutor, the claimant was denied access to the case materials and, at the same time, was not allowed to make copies of the documents, and, as a result, was not able to prepare adequately to defend his case, constituted a violation of the principle of equality of arms.[4]
[1]Bulut v. Austria, Application No. 17358/90, 22 February 1996, § 47; DomboBeheer B.V. v. the Netherlands, Application No. 14448/88, 27 October 1993, § 33; Öcalan v. Turkey, [the Grand Chamber], Application No. 46221/99, 12 May 2005, § 140; De Haes and Gijsels v. Belgium, Application No. 19983/92, 24 February 1997, § 53.
[2]Borgers v. Belgium, Application No. 12005/86, 30 October 1991, § 24.
[3]Öcalan v. Turkey, [the Grand Chamber], Application No. 46221/99, 12 May 2005, §140.
[4]Foucher v. France, Application No. 22209/93, 18 March 1997.
