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Autumn Fly

November 5, 2013
 
Editorial

Aleko Tskitishvili

When reading last pardon acts issued by the President Mikheil Saakashvili, it is hard not to recall autumn fly, which bites bitterer than usually.

Misha is leaving but before going he tries to rescue his political clan with his extraordinary and even irresponsible decisions; the clan was created during his presidency and lately its members became subjects of judiciary punishment.

Pardon acts issued by the President on October 30 and November 3 caused fair discontent of the society. On October 30, the President pardoned about 250 prisoners, among whom were police officer Maizer Liparteliani, convicted in the murder case of Buta Robakidze, Davit Adeishvili - brother of the former minister of justice Zurab Adeishvili and husband of deputy minister Tamar Burjaliani. At the same time, he pardoned prisoners, who were convicted for grave crimes; this fact caused concern of the MIA and confused society.

More precisely, according to the MIA among the pardoned prisoners are: 15 persons charged for the attempted premeditated murder; 4 persons charged for premeditated murder (12 of them were fully released from imprisonment – all of them were convicted for grave crimes); 32 people convicted for burglary (majority of them for aggregated crimes – 13 of them belong to the category of particularly grave crimes), 70 people for narcotic crime (majority of them were drug-dealers, those for whom Amnesty Law was not applicable late in 2012), 27 persons for thievery (part of them were charged for several crimes), 6 persons were charged for robbery, 30 people for misappropriation/extortion (part of them for several crimes), 6 people for professional abuse (three of them for bribery), 9 people for unintentional crimes and 15 people for other crimes (illicit restriction of freedom, taking hostage, resistance to police officer, hooliganism, smuggler, avoiding tax payment, illicit crossing of border, etc). 

On November 3, 14 days before his authority expires, President of Georgia made one more politically motivated decision and pardoned former Minister of Internal Affairs Bachana Akhalaia in the so-called prison-riot case, where the court convicted him and several co-defendants to 3, 9 year in jail on October 28. 

This pardon act is particularly cynical considering the fact that according to the official information, seven people died and several dozen prisoners injured during prison riot for what neither legal nor political responsibility was imposed on that time chairman of the penitentiary department – Bachana Akhalaia. In similar cases, senior governmental officials at least quit positions. But Bacho Akhalaia was promoted to the positions of the Minister of Defense and then of Interior and continued his “activities” (how he did it, it is topic of another discussion).

Public Defender responded to the pardon act issued on October 30 and recommended to the law-makers to place this privilege of the President of Georgia within judicially rational constitutional and legal boundaries. Human Rights Center fully agrees the recommendation of the Public Defender and believes that law shall not allow the president to unilaterally grant pardon to prisoners without considering recommendations of the pardon commission. Also, a person shall not be pardoned unless he/she has served at least 1/3 of the term.

The history of granted pardons is very interesting; it clearly demonstrates that President Saakashvili placed himself over the law.

Regulation concerning the Procedure of Pardon approved by July 19, 2004 order of the President, lists conditions how a convicted person can be pardoned. According to these conditions, the pardon commission shall study the petition/application of the convicted person and recommend to the president to pardon a prisoner. The order also lists guidelines for the commission members in order to release positive recommendation. For example, a person shall have served at least 1/3 of the term in order to be pardoned; she/he shall plead guilty, regret the committed crime and apply for pardoning; some other significant pre-conditions are also considerable when a president pardons a prisoner. 

However, after the order was issued, the President introduced some changes in it, which contradicted the aforementioned pre-conditions. Namely, as a result of the changes in the Article 2 Paragraph VII of the Order, the following provision was added to the regulation “the President of Georgia is entitled to make a decision upon pardoning an individual at any stage of the examination of an appeal for pardon and/or without following the requirements prescribed by the regulation.”

Thus, the president personally acquired the authority to unilaterally make decisions on pardoning declining recommendations of the commission. It is particularly alarming that normative act itself reads that president can issue pardon act through neglecting the normative act.

Human Rights Center underscores this incompliance and believes that the regulation shall be placed within legal and constitutional boundaries. Moreover, it is necessary when president uses it as a tool of political contest and issues politically motivated pardon acts. We have plenty of examples of it. 

In this regard, as the Public Defender of Georgia noted in his statement, the case of “Enukidze and Girgvliani v. Georgia” heard by the European Court of Human Rights can be taken into consideration. Paragraph 273 of the judgment on this case explicitly states: “The Court is struck by the fact that on 24 November 2008 the President of Georgia found it appropriate to pardon State agents convicted of such a heinous crime by reducing the remainder of their sentences by half.” 

Experts were also concerned with pardoning of the Samegrelo-Zemo Svaneti region former governor Tengiz Gunava, when president not only pardoned him but also discharged him from all liability and appointed to high position.  

I think if the pardoning process is placed within legal frames, such irresponsible decisions will no longer be made and society will be better protected from “autumn flies”. Based on past experience, we should consider our risks and it will be better if the Parliament of Georgia will acquire authority to issue pardon acts. Thus, president (whoever he is) will no longer have authority to add illegal regulations in his orders (normative acts). 

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