News

In the Tbilisi Court of Appeals, the hearings of the case of Nika Gvaramia, the founder of Mtavari Arkhi TV company, were postponed by two and a half months i.e., until October 4, 2022. As one of the reasons for such a delay, the panel of judges brought their vacations in August. Under the criminal procedural law of Georgia, the Court of Appeals had to finalize the hearing of the case by September 14, 2022, and render a judgment. According to Article 295(2) of the Criminal Procedures Code of Georgia, the appellate court shall decide without an oral hearing on the admissibility of the appeal within 10 days after receiving the appeal and case files. Under paragraph 5 of the same Article, the appellate hearing shall be held within a month from the day the appeal was considered to be admissible. According to Article 295(6) of the Criminal Procedure Code of Georgia, the appellate court shall render a judgment within 2 months after the appeal is found admissible. Accordingly, the adjournment of this case for two and a half months (instead of 2 months) on the part of the appellate court is a clear violation of the procedural term provided for by Article 295(6) of the Criminal Procedure Code of Georgia. The fact of the violation of the procedural time limits must be assessed also from the perspective of to what extent the case is procrastinated without sufficient legal grounds and whether there are judges personally culpable of the procrastination. The assessment of this issue is important because, in addition to the violation of the procedural deadline, one of the main principles of the criminal procedural law –is also violated: "Fair trial and prompt justice" (Article 8 of the Criminal Procedure Code of Georgia). To discuss this, it is appropriate to focus on the following legal issues: Article 8 (1) of the Civil Code of Georgia provides that the accused has the right to prompt justice within the time limits set by the Code. A person may waive the right if this is necessary for the proper preparation of the defense (Article 8 (2)). Article 6 of the European Convention on Human Rights recognizes the right to a public hearing of the case within a reasonable time. The provision aims to ensure that accused persons do not have to remain in the status of accused for a long time and that the issue, of whether the person is guilty or not, be determined in a timely manner (Wemhoff v Germany, § 18; Kart v. Turkey, § 68). Concerning criminal proceedings, the European Court has held that the term provided for in Article 6 covers the entire period of the proceedings (König v. Germany, § 98), including appellate proceedings (Delcourt v. Belgium §§ 25-26; König v. Germany, § 98; V. v. the United Kingdom[GC], § 109). Moreover, Article 6(1) stipulates that the period for the completion of the proceedings shall be the term of rendering a judgment on the charges brought; This can also be a judgment by an appellate court to determine whether the person is guilty (Neumeister v. Austria, § 19). When interpreting the European Convention on Human Rights, the ECtHR established a case law according to which, the reasonableness of the length of the proceedings is determined by considering the following circumstances: a) the complexity of the case, both in terms of the facts and the law, the volume of evidence to be examined, etc. (Katte Klitsche de la Grande v. Italy; Papachelas v. Greece); b) the actions of the parties, meaning, for example, frequent changes of defense counsels (König v. Germany); c) the motions intended to delay the process, or simply related to certain deadlines, as well as other actions that lead to the extension of the term of hearing the case (Acquaviva v. France); d) the activities of the judge hearing the case. The above issues should be paid attention to in terms of the refusal of the judge to conduct proceedings for a long period (Pafitis and others v. Greece; Sürmeli v. Germany). Both locally and internationally, the initiation of criminal prosecution against the general director of the critical media outlet, Nika Gvaramia, and the judgment of conviction rendered by Tbilisi City Court on May 16, 2022 (imprisonment for 3 years and 6 months) is considered to be politically motivated serving the means of retaliation. At the same time, the postponement of the hearing of the case by the judges of the appellate court in violation of the deadlines stipulated by the law, while bringing vacations as an argument, whereas the appellate court has to correct the dangerous precedent set by an illegal judgment handed down by judge Lasha Chkhikvadze of the Tbilisi City Court, raises doubts among the public about the impartiality and independence of the judges. According to Article 5 of the Universal Charter of Judges, in the performance of the judicial duties, the judge must be impartial and must so be seen. The ways things are seen are particularly important –as in such cases the trust towards courts in the democratic society is at stake. According to paragraph 3.1 of the Bangalore Principles of Judicial Conduct, a judge shall ensure that his or her conduct is above reproach in the view of a reasonable observer. Further, according to paragraph 3.2, of the same document, the behavior and conduct of a judge must reaffirm the people’s faith in the integrity of the judiciary. Justice must not merely be done but must also be seen to be done. Furthermore, the court must be impartial from an objective point of view, i.e. it must offer the public sufficient assurances to exclude legitimate doubts in this regard (Pullar v. the United Kingdom). For the assessment of independence and objectivity, namely, how impartial a judge appears to the public, a standard of a prudent independent observer is used as a criterion. The judge's behavior is evaluated hypothetically from the position of an external observer, in order to emphasize the objectivity of the criterion used, which takes into account the need to maintain public trust in the court. The issue of taking vacation as mentioned by judges cannot be considered as a justification and an objective criterion for violating the deadlines set by the criminal procedural legislation for hearing the case and rendering the judgment. Such an argument is completely unfounded, unacceptable, and illegal on the part of judicial authorities, especially when imprisonment is ruled against Nika Gvaramia, and we are dealing with political justice. All this causes "reasonable doubts" of bias

HRC calls on:
Tbilisi Court of Appeals: 

• Judges to ensure that the deadlines stipulated by the criminal procedural legislation are strictly observed so that the rights of persons under custody are not violated.
• To adhere to the Bangalore Principles of Judicial Conduct, increase public confidence in the justice system.
• The judges must ensure fair court proceedings with the rulings and judgments meeting the high standard of substantiation.