On August 1, 2013 Tbilisi City Court announced its acquittal decision on one of the criminal cases of Bachana Akhalaia, concerning the three independent episodes from the period of his tenure as the Minister of Defense of Georgia. The above mentioned decision raised questions in general public regarding the effectiveness of prosecutors office and the independence of the court system. Special interest has been directed towards the judge working on the case, who was appointed at this position few months prior to the initiation of this trial[1].

EMC studied the circumstances of appointment of the judges examining B. Akhalaia’s criminal cases and found that all three judges where transferred to Tbilisi City Court on one and the same day from different district courts. Obviously, such a coincidence raises questions with respect to the trial and requires substantiated explanations from the judiciary.

From the outset we would like to clarify  that the given statement does not concern the factual or legal circumstances related to the criminal cases against B. Akhalaia. We are not analyzing the decision taken by the judge here, as well as, we are not evaluating the sufficiency of the evidences submitted by different sides.  These issues fall only within the competences of the higher courts.. With the proposed statement we want to provide additional information and explanations to the public with regard to the problems existing with the appointments of the judges in B. Akhalaia’s criminal cases and in general, with regard to the problematical character of the rules of distribution of cases within the judges itself at the court.

It’s noteworthy to observe  the factual circumstances existing around the appointments of the judges currently working on Akhalaia’s cases at Tbilisi City Court and additionally, the process of assigning the above-mentioned cases to them:

  • Judge Giorgi Darakhvelidze (who took acquittal decision on August 1, 2013) – upon the decision of the High Council of Justice was transferred to Tbilisi City Court from Sachkhere district Court[2]. Exactly he started the trial on merits of Bachana Akhalaia’s case on March 18, 2013 and the following day, on March 19, 2013, upon the decision of the High Council of Justice again, Darakhvelidze was appointed as a Tbilisi City Court judge[3].
  • Judge David Mgeliashvili (is examining the case on which decision has not been made yet and concerns the episode of B. Akhalaia’s tenure as the Minister of Interior Affairs) – was also transferred to Tbilisi City Court on February 6, 2013 from Gori Regional Court according to the decision of the High Council of Justice[4]. D. Mgeliashvili was appointed as the judge of Tbilisi City Court on March 19, 2013 as well upon the decision of the High Council of Justice[5].
  • The session discussing the episode of the prison riot was lead by judge Besik Bugianishvili. On the very same session it was said that judge Bugianishvili would  be substituted by judge Lasha Chkhikvadze. L. Chkhikvadze – alike the judges listed above, was transferred from Rustavi City Court and appointed to Tbilisi City Court as a judge by the High Council of Judges on February 6, 2013[6].

As the given facts illustrate the two criminal cases of B. Akhalaia (and presumably the third case as well) – are  being examined by the judges that according to the relevant decisions of the High Council of Justice were transferred to Tbilisi City Court only on February 6, 2013. In addition, it’s notable that two of them (G. Darakhvelidze and D. Mgeliashili) were appointed as judges of the Tbilisi Court on the session of the High Council of Justice dated March 19, 2013 – information on which has not been public and accessible[7].

The justification of the Council on bringing the above mentioned judges to Tbilisi on February 6, was the abundance of cases related to the amnesty. Although, the examination of the majority of the cases of this category should have ended in end of February, according to the Law on Amnesty. As it eventually turned out – notwithstanding the fact that the transfer of the judges was temporal, the return of the judges back to their courts did not occur. Furthermore, the judges were later officially appointed to Tbilisi City Court.

What concerns the actual distribution of cases of B. Akhalaia to the judges – it should be mentioned, that the legal regulations existing in this respect do not provide sufficient guarantees for the independence of judges and the transparency of the process ensured in general.

The distribution of cases at the common courts is regulated by the Georgian law (“the rule on distribution of cases at the common courts and the  transfer of responsibilities to  different judge”) according to which the distribution of cases at District (city) Courts and the Court of Appeals are carried out according to the following mechanism: the order of the trial initiation and the order of judges.

But in the same law we can find a rule stating the following: “…At the Court of Appeal or at the Regional Court, where there are more than two judges, when examining the cases becomes unfeasible, either because of accumulation of cases or due to any different reason, the cases are being distributed by the chairman of the respective court or by his/her deputy upon chairman’s order taking into consideration the load of work of the judge”. The given norm is granting the chairman of the court unjustifiably broad competency. The decision on which judge will examine a particular case is on the chairman’s discretion.

The conditions in which the chairmen can utilize its exclusive right are unreasonably ambiguous conditions (“accumulation of cases”, “any different reason”, “load of work of the judge”) and promote taking arbitrary decisions.

The ambiguous process of case distribution, should first of all be improved on the legislative level, which on its hand necessitates immediate legislative amendments.

Inspite of the fact that it is unknown in which manner did the case distribution happen in Akhalaia’s case, the doubts against the objectivity of the process are strengthened by the coincidence of factual circumstances and the existing legislative regulations of the case distribution.

Within the existing circumstances and taking into consideration high public interest towards the case, EMC calls on:

  • the High Council of Justice to explain the circumstances which caused the necessity of appointing the transferred judges in Tbilisi.
  • the chairmen of Tbilisi City Court to give explanations and make the respective written decisions public on Akhalaia’s cases distribution
  • and together with the above mentioned EMC calls the Parliament of Georgia to implement appropriate legal amendments in the law on distributing cases among judges.

Footnote and Bibliography

 

[1] The decision of February 6, 2013 of the High Council of Justice:http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202013/14-2013%20001.jpg

[2] Op. cit.

[3] the decision of the High Council of Justice on March 19, 2013http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202013/45-2013%20001.jpg

[4] the decision of the High Council of Justice on February 6, 2013http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202013/10-2013%20001.jpg

[5] the decision of the High Council of Justice on March 19, 2013http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202013/42-2013%20001.jpg

[6] the decision of the High Council of Justice on February 6, 2013

http://hcoj.gov.ge/files/pdf%20gadacyvetilebebi/gadawyvetilebebi%202013/16-2013%20001.jpg

[7] the information on holding the Session on March 19,2013 is not public up until now