Report of the Public Defender of Georgia – The Situation of Protection of Human Rights and Freedoms in Georgia

01.07.2021 - Category: Politics

A Report from the Public Defender of Georgia On the Situation of Protection of Human Rights and Freedoms in Georgia concluded these remarks about the politically motivated sentencing of David Kezerashvili in 2021 (page 89):

4.6.3 The case of David Kezerashvili

Under the Tbilisi City Court August 30, 2017, and the Tbilisi Appeals Court May 23, 2018 judgements, David Kezerashvili was found innocent of embezzlement.

According to the charges, under David Kezerashvili's orders, a fictitious contract was concluded in violation of the provisions of the legislation with an offshore company owned by an individual related to David Kezerashvili. The contract subject matter was scheduled combat training of the Ministry's relevant subunits. According to the charges, such training was already underway at army units.

The judgments of acquittal indicate that according to the evidence filed by the prosecution, certain training was underway at the Ministry's relevant military units during the period of the alleged action, although the evidence of whether that ongoing training was the one for which the litigious contracts were concluded had not been presented. Hence, the courts regarded the prosecution’s allegation about the fictitiousness of contracts as ungrounded. The Appeals Court additionally indicated that the prosecution failed to submit evidence that the training envisaged under the litigious contract did not take place.

At the Supreme Court, the court did not deliberate on the circumstance established by the two lower instance courts that the prosecution had not presented authentic evidence for the commissioning of the offence. In particular, a comparative analysis of questionable contracts was not performed and it was not confirmed that the disputed training did not take place. The City and Appeal courts relied on the aforementioned when they did not consider the stance of the prosecution, unlike the Supreme Court.

The Cassation Court regarded the absence of the delivery and acceptance report and other written documentation as proof of embezzlement and explained that documentary evidence is given superiority relative to other evidence. Thus, the court decided on the composition of embezzlement, fictitiousness of agreements, non-receipt of the service envisaged under contracts and other key matters against the defendant based only on the fact that a delivery and acceptance report was not drawn up.

According to the Public Defender, the decision of the Supreme Court of Georgia does not identify the circumstances that are necessary to qualify the identified action as embezzlement. The decisions of all three instance courts regarded it proven that the documents on the procurement of the disputed services and of the rendered services were not adequately drawn up. This may involve the elements of a misdemeanour in office, although the mere absence of written evidence cannot be used to prove embezzlement beyond reasonable doubt.

The conviction rendered against David Kezerashvili fails to meet the constitutional standard of beyond reasonable doubt and is contrary to the provisions of Article 6 of the ECHR since the decision is not adequately justified. The flaw in the justification of the judgement is particularly damaging considering that it has been rendered by the Supreme Court of Georgia which decision may not be challenged.

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