On January 10, 2025, after an approximately 8-hour hearing, Tbilisi City Court Judge Ketevan Jachvadze considered the Prosecutor's Office's motion to maintain the detention imposed as a preventive measure against 11 defendants arrested in the context of the November-December 2024 protests: Andro Chichinadze, Onise Tskhadadze, Guram Mirtskhulav, Luka Jabua, Jano Archaia, Ruslan Sivakov, Valeri Tetrashvili, Giorgi Terishvili, Irakli Kerashvili, Revaz Kiknadze, and Sergey Kukharchuk. Similar to Judge Tamar Mchedlishvili's decision at the first presentation hearing, Judge Ketevan Jachvadze once again granted the Prosecutor's Office's motion and remanded the aforementioned individuals in custody.

At the first presentation session, GYLA assessed the detention used as a preventive measure against the aforementioned individuals and noted that the motion submitted by the prosecutor's office regarding the use of detention was not properly substantiated. 1

In view of the above, GYLA called on the Prosecutor's Office to initiate changing the detention used as a preventive measure to a less severe one.²   However, the Prosecutor's Office of Georgia disregarded the provision of criminal procedure law, which stipulates that detention as a preventive measure should be used only if it is the sole means to prevent the risks posed by the accused. ³

Representatives of the Georgian Prosecutor's Office, Vazha Todua and Giorgi Mukbaniani, argued at the court hearing for maintaining the detention imposed on all activists as a preventive measure, as decided in the initial hearing. They asserted that no new circumstances or evidence had emerged that would justify changing the detention to a less severe preventive measure. The Prosecutor's Office maintained that the defendants still posed risks of absconding, committing new offenses, and tampering with evidence. Additionally, as in the initial hearing, the Prosecutor's Office representatives did not consider the individual characteristics of the defendants or the specific threats posed by each defendant, opting instead for a general approach.

In presenting their case, the defense lawyers contested the legitimacy of using detention as a preventive measure. They urged the court to avoid imposing detention, proposing instead alternative measures. These included petitions for bail in certain cases, personal surety in one instance, and additional obligations to neutralize potential threats for the majority of the defendants. The lawyers emphasized these measures as sufficient to address any concerns without resorting to detention.

a) GYLA observed this process in the courtroom, and we present the following information and assessment of the important episodes that emerged during the process, namely:

1. The 11 defendants are charged with crimes related to public security and order. The prosecutor's office argued that the severity of the charges and the fear of expected punishment were sufficient reasons to believe that the defendants might abscond. However, during the hearing, it was disclosed that the judge at the initial presentation did not agree with the prosecutor's assessment of the risk of flight for most of the defendants. This indicates a divergence between the judge's and the prosecutor's evaluation of the likelihood that the defendants would evade legal proceedings if released.

2. When justifying the threats of committing new crimes, destroying evidence, and influencing witnesses, the representatives of the prosecutor's office emphasized that the investigation period had been extended. They argued that releasing the defendants would likely impede the investigation, suggesting that continued custody was necessary to prevent these risks and ensure the investigation's progress.

• GYLA notes that the representatives of the Georgian Prosecutor's Office still failed to specify how the defendants could obstruct the investigation or influence witnesses. Most of the witnesses are police officers, whom the Prosecutor's Office has yet to identify or question, even over a month after the investigation commenced. This lack of action raises concerns about the justification for continued detention.

According to the defense's argument on this issue, the court unjustifiably took into account the cumulative risk of committing new crimes and destroying evidence when applying detention at the first presentation stage. The defense further noted that the witnesses in the case are law enforcement officers, and the defendants have no opportunity to influence them.

3. Representatives of the prosecutor's office also stated that various forms of expertise were necessary for the items that had been seized.

• GYLA notes that representatives of the Georgian Prosecutor's Office could not/did not specify: (1) the nature of the influence the defendants could have had on the investigation; (2) how such influence would affect the expert examinations carried out by the investigative body or expert institutions; (3) what methods they would use to destroy the seized evidence; or (4) what means they would employ to pressure police officers, who were questioned as witnesses (if any), to refrain from providing incriminating testimonies (if any) against the defendants.

The defense also pointed out on this issue that, as only expert examinations are to be conducted and publicly released videos are to be reviewed, it remains unclear how the defendants could obstruct these processes. They emphasized that the defendants cannot physically influence the examinations or the viewing of the videos, which are both accessible to the public.

4. It is also noteworthy that several representatives of the defense presented at the session the information reflected in the protocol on the exchange of information regarding possible evidence after the presentation of the charge. In addition, the session presented a list of the investigative actions to be conducted, which is the reason the Prosecutor's Office requested the postponement of the pre-trial hearing. The list of investigative actions to be conducted significantly exceeds the actions that the Prosecutor's Office had carried out within a month.

• GYLA notes that while the legislation does provide for the extension of the investigation period, the prosecution, particularly when the accused individuals have been imprisoned, is obligated to rationally manage and utilize the investigation time. However, the information presented at the hearing suggests the opposite—indicating that the prosecution has failed to use the available time efficiently.

5. It should be noted that the same experienced representatives of the Prosecutor's Office, in order to understand the scope of the case and foresee the investigative actions to be carried out, requested at the first presentation session that the pre-trial hearing be set within a tight timeframe. However, during the process, the Prosecutor's Office did not disclose which evidence formed the basis for the change in its position or explained how it impacted the continuation of the investigation, other than the suspension of the two JSC cases. The Prosecutor's Office also assumed the completion of these investigations within the same timeframe.

• According to GYLA, the above-mentioned arguments of the Prosecutor's Office, and their lack of substantiation, reinforce the assumption that the Prosecutor's Office combined two criminal cases into one proceeding. This combination seems to have been motivated by a desire to argue that, due to the scope of the case and the progress of the investigation, it was not timely transferred for substantive consideration. The continuation of the investigation into the case was again cited as an argument at the first review session of the imposed imprisonment.

• According to GYLA, the circumstances revealed during the first presentation of the defendants to the court also highlighted the problematic nature of the absence of a reasonable presumption standard in the cases mentioned. The extension of the pre-trial hearing showed that the prosecution still lacked a set of compatible and convincing evidence at this stage, which would be sufficient for a high degree of presumption that a guilty verdict could be rendered in the given case.⁴

6. At the hearing, in arguing for the change in the detention as a preventive measure, the defense lawyers referenced the prosecutor's office's motion for the extension of the pre-trial period. They contended that the new information presented, alongside other circumstances, should have served as grounds for altering the preventive measure. However, during the process of determining whether the detention should remain in effect, the judge began to justify the extension of the pre-trial period without providing a legal foundation for this explanation. 

In response, the defense filed a motion for the judge's disqualification, questioning his objectivity and impartiality. The only opposing view came from one defendant and their attorney, who was appointed by the Legal Aid Service. Judge Ketevan Jachvadze ultimately rejected the motion to disqualify him.

b) GYLA's assessment of detention as a preventive measure

When submitting a motion for a preventive measure, the prosecutor is required to substantiate the appropriateness of the requested measure and explain why less severe alternatives would be inappropriate. The court is authorized to impose imprisonment as a preventive measure only if the objectives outlined in Part One of Article 198 of the Criminal Procedure Code cannot be achieved using a less severe measure. Therefore, both the prosecutor and the court, according to domestic and international legal standards, must provide a justification for the necessity of imprisonment for each specific accused individual. This justification should be based on reasonable assumptions about the prevention of real threats posed by the accused, and not solely on the discretion of prosecutors or judges. Unsubstantiated assumptions regarding the dangers posed by alternative measures or concerns about the accused’s interest in freedom cannot outweigh an individual’s right to liberty.

GYLA believes that, based on the issues discussed above (see section (a)), there was no valid reason for maintaining the detention. The court's decision to grant the prosecutor's unfounded motions undermines the court's role, reducing it to a mere extension of the prosecutor’s office. This also negatively affects the qualifications of prosecutors, as the lack of proper court oversight leads to an expectation that the court will automatically approve motions, which in turn harms the rights of individual defendants. Furthermore, this erodes the credibility of the justice system, which already faces significant challenges and a lack of trust.

c) Organizing a judicial session

Despite the large number of defendants (11 people), their lawyers, and the high public interest, the court initially did not ensure that the hearing was held in the largest available hall, which was free at the time and foreseeable. The judge only changed the hall after the defense requested it and held the hearing in the smaller room.

GYLA highlights that the organization of court space plays a critical role in ensuring the right to a fair trial. Effective communication between the lawyer and the defendant is crucial for a fair trial and must be both practical and efficient. Even after changing the hall, the court did not address the defense's concerns and stated that the decision to change halls was not based on public access or the need for better communication between the parties.

GYLA asserts that the court disregarded foreseeable logistical issues, and by holding the hearing in a smaller courtroom, it risked undermining key procedural safeguards of the defendants' right to a fair trial.

 ¹ GYLA assesses the use of Criminal Justice Mechanisms against Protesters https://gyla.ge/en/post/sisxlissamartlissaqmeta-monitoringi 

²  Like Aleko Elisashvili, the Prosecutor's Office should review the detentions used in the cases of other individuals detained at protests, https://gyla.ge/post/aqciaze-dakavebuli-pirebis-patimorbebis-sakitxs-prokurturam-unda-gadaxedos. 

³  Criminal procedure Code 205

⁴  Criminal Procedure Code of Georgia, Article 3.