Abuse of Power or Constitutional Right?

Last week, Tbilisi City Court found Georgia's third President Mikheil Saakashvili guilty of the abuse of power during his Presidency and sentenced him to three years of imprisonment. The case relates to using Presidential pardons to release former law enforcement officers convicted for the Girgvliani’s murder case. Other criminal cases filed in Georgia against Saakashvili include: the violent dispersal of anti-government mass protests on November 7, 2007; unlawful raiding of Imedi Television Company by the police; exceeding of official powers in case of the attack on Valeri Gelashvili and appropriation or embezzlement of the budget money in large quantities (more than GEL 8.8 million).

The trial of convicted policemen for murdering Sandro Girgvliani ended on 9 July 2006. At that time, the court ruled that Gia Alania, ex-chief of the first unit of the Interior Ministry’s Department for Constitutional Security (DCS) would be sentenced to 8 years of jail and three other officers of DSC Avtandil Aptsiauri, Aleksandre Ghachava, and Mikheil Bibiluridze would face the imprisonment of seven years.

On November 28, 2008, President Saakashvili used his constitutional power and without consulting with the Pardon Commission, reduced the sentence of convicts of jail time to 3.5 years. The decision caused sharp responses from the society at that time. According to the Georgian legislation, a pardon cannot be granted to a person, convicted of a heavy crime, who has been sentenced to more than five years and have not made half of it. Nevertheless, due to the use of Presidential pardon, the jail time for the convicted was reduced.

"Mikheil Saakashvili, as the leader of the country, can use his constitutional rights but his way of using them is alarming and once again, demonstrates the kind of government we have today,” said then head of the Pardon Commission Gia Tsagareishvili back in 2008.

After 10 years from the event on 5 January 2018, Tbilisi City Court assessed the President’s use of his constitutional rights to pardon murder convicts as an abuse of power. Consequently, Saakashvili was sentenced to 3 years of jail time.

The decision of City Court caused controversy of opinions. The current President Giorgi Margvelashvili believes that the court’s decision will hurt the country's image.

“From an international point of view, persecution for using the constitutional rights, raises a great deal of questions and seriously damages the foreign policy of Georgia," Margvelashvili said.

One of the leaders of the United National Movement (UNM), Zaal Udumashvili, said that the pattern is dangerous and it can be repeated any time if the Government illegally decides to find the President guilty of using his constitutional rights.

“To prosecute the President for using his constitutional right is a dangerous precedent. Consequently, this decision does not apply to only Mikheil Saakashvili, it is directed against the state and its institutions," Udumashvili said.

Members of the Ruling party do not agree with the opinion. In his interview with TV Company Rustavi 2, Gia Volsky noted that the court did not sentence Saakashvili for using his Presidential power, but he was convicted for taking part in the criminal performance.

"Any President can use his authority, and no one is doubting it, but while doing this, he must not become a part of criminal performance that preceded the court’s decision, "said Volsky.

The expert Ramaz Sakvarelidze believes the court’s decision was right. Sakvarelidze also responded to the opinion about the court’s decision potentially damaging the international image of the country.

"The paragraph in the legislation may allow a President to make such decisions, but if he uses his power on the side of injustice, then it is an abuse of power. The former President of Israel was imprisoned but it did not damage the international image of the country,” said Sakvarelidze referring to Israel’s former President Moshe Katsav. “The fact that one’s position does not protect a person from the law is an advantage for the state’s image,” he added.

Former President of Georgia, Mikheil Saakashvili responded to the decision of Tbilisi City Court and termed it as “politically motivated.”

“Conviction of a President for using his constitutional right to pardon convicts speaks about the political nature of the trial. The Georgian authorities could not find any serious proof for 5 years: neither for corruption nor for any other offense. Any President in the world can be prosecuted with such accusations,” said Saakashvili.

Presidential pardon rights are one of the most controversial and widely discussed issues. There are many examples, when such decisions have caused fierce disagreements even in the history of old democracies, however, there has not been a case when an ex-president had been convicted for using pardon rights.