Saakashvili v. Georgia and the Global Trend Toward Judicial Review of the Pardon Power

By Andrew Novak

The decision of the European Court of Human Rights in Saakashvili v. Georgia provides a novel comparative analysis of the executive clemency power and an executive’s immunity from prosecution for misuse of that power. The debate over the nature of the pardon, filed by the former president of the Republic of Georgia, was raised in the context of a complaint concerning Article 6 (right to a fair trial) and Article 7 (nullum crimen sine lege) ECHR. Former President Mikheil Saakashvili challenged the lawfulness of his criminal convictions for abusing his official authority when he granted several politically motivated commutations of sentence. The majority opinion found that his exercise of an official discretionary power did not render him immune from prosecution if his use of that power was contrary to law. By contrast, a dissent by Judges Ravarani and Šimáčová took a more traditional view of the pardon power: if the president had unlimited discretion to grant clemency, he could not later be prosecuted for doing so. This post will provide a brief overview of the facts and decision and then consider the ECHR’s analysis of the executive clemency power in light of international trends.

Facts

The Applicant was Mikheil Saakashvili, President of the Republic of Georgia between January 2004 and November 2013, when he was constitutionally barred from running for a third term. As leader of the opposition United National Movement, Saakashvili became prominent during the Rose Revolution in 2003 that ended in the resignation of President Eduard Shevardnadze. Almost a decade later, Saakashvili’s own party suffered a defeat by the now-ruling Georgia Dream party. After Saakashvili left office, he became a citizen of Ukraine and governor of a Ukrainian oblast. Investigations into human rights abuses during his term as President of Georgia led to two in absentia trials. In one, he was convicted of the crimes of complicity in criminal battery and misuse of authority, and, in the other, of abuse of official authority. He was arrested in Tbilisi, Georgia, in October 2021, after attempting to clandestinely enter the country. He is currently serving a six-year sentence.

The application concerns the lawfulness of the charges against and the conviction of President Saakashvili. The Court received two communications from the Applicant: the first for the conviction for complicity in battery and misuse of authority (Application 6232/20) and the second for his conviction for abuse of official authority (Application 22394/20). The first incident related to the beating of a sitting member of Parliament on President Saakashvili’s orders and the second to the murder of a young man named Sandro Girgvliani. In the Applicant’s first communication, he alleged an Article 6 ECHR violation concerning the right to a fair trial because his trial judge lacked impartiality and because of certain evidentiary issues, including reliance on hearsay testimony.

Saakashvili’s second communication related to his conviction for the abuse of official authority for granting several pardons, which he alleged violated both Article 6 and Article 7, the principle of legality. The charge of abuse of official authority related to events on 28 January 2006, when Girgvliani was found dead following an exchange in which he insulted a government minister’s wife. In that incident, four individuals were subsequently convicted of the murder, which was upheld on appeal with sentences ranging between six and a half to seven and a half years in prison. Using his pardon power, President Saakashvili granted the four men executive clemency in the form of a commutation (or conditional pardon) that reduced their sentences to three years.

After the commutation of the sentences on 24 November 2008, Girgvliani’s parents brought a case to the European Court of Human Rights alleging a violation of Article 2 ECHR, the right to life, owing to the Georgian authorities’ ineffective criminal investigation. In its decision, the Court found a violation of Article 2, as the investigation lacked independence, impartiality, objectivity, and thoroughness. As part of efforts to remedy the violation, Georgian authorities opened another investigation into Girgvliani’s death. This investigation revealed that the then-director of the Constitutional Security Department had promised the four murder suspects that if they pled guilty in light of the public outcry surrounding the murder, their families would receive compensation, they would receive more comfortable conditions of detention, and their prison terms would be reduced by means of a conditional pardon. The director had personally obtained a promise from President Saakashvili that he would commute the sentences on the condition that they served a portion of the time.

As a result of the second inquiry, President Saakashvili was convicted of abuse of official authority in January 2018 for promising a pardon to the four men in order to frustrate the criminal investigation into Girgvliani’s death. This conviction formed the basis for the alleged violation of Article 7, the principle of legality. In essence, Saakashvili argued, if he was entitled to grant a pardon to the four men, then it was unlawful to hold him criminally liable for exercising this discretionary power and he could not reasonably foresee that his actions were criminal.

The Court’s Analysis

In considering the potential right to a fair trial violation under Article 6(1) and Article 6(3)(d), the Court treated the two applications together. In the first application, Saakashvili argued that his conviction had been solely based on hearsay evidence from two witnesses for the prosecution, who had become his political opponents and therefore had biased motives. The Georgian Government, opposing the application, explained that a body of other circumstantial evidence supported the reliability of the witness statements and that Saakashvili had the opportunity to cross-examine the evidence at his trial in which he was duly represented by a qualified lawyer of his choosing even though the proceeding was in absentia. In the second application, Saakashvili alleged that the judge in his criminal trial lacked impartiality because they had participated as a judicial assistant in the Girgvliani murder trial. In considering the allegation of the violation of the right to a fair trial, the Court explained that both the impartiality of the judge and the fairness of the evidence are presumed unless the Applicant makes a showing otherwise. Considering both objective and subjective factors, the Court found that personal or political animosity was insufficient to create an inference that the judge or witnesses were biased in the case. The Article 6 complaints were hence ruled to be unfounded.

Saakashvili’s second application also alleged a violation of Article 7, the nullum crimen sine lege principle. On his theory, he had been unlawfully convicted of abuse of official authority for granting a pardon, as that act under the Georgian constitution was subject to unlimited discretion and protected by immunity from prosecution. For its part, the Government argued that Saakashvili had been convicted not of using his pardon power, but of abuse of authority by holding out a promise to interfere in a criminal investigation. The Court’s analysis on the Article 7 allegation was more involved. The Court had to determine whether the application of an existing criminal law to the Applicant’s actions (here a pardon in exchange for political gain) was sufficiently foreseeable. Surveying the European legal landscape, the Court determined that the majority rule was that the head of state’s immunity for official acts was not unlimited, especially in republics. The Court therefore discounted the Applicant’s assertion that the prevailing constitutional custom was to shield presidents from criminal liability for exercise of discretionary constitutional powers. According to the Court, “it should have been a matter of common sense for the applicant to have been able to foresee that there would have been serious consequences arising from his decision to collude with the people who had either directly committed the homicide or had conspired to cover up the scope of that very serious crime” (¶ 154). The Court also dismissed as manifestly ill-founded a complaint that the Georgian government had the improper motive of attempting to remove Saakashvili from political life, allegedly in violation of Article 18 of the Convention (misuse of rights).

While the holding on the Article 6 allegations was unanimous, two judges dissented from the Court’s holding on Article 7. According to the dissent, the presidential pardon power in the Georgian Constitution was unconditional. Therefore, it was not possible to punish Saakashvili for exceeding his power. On this theory, he could not have reasonably foreseen that he might be punished for misusing that power. Rather, authorities could have charged him with witness tampering under the criminal code, as the exercise of the pardon power would not be the material part of the actus reus of the offense.

Discussion

To some degree, the rightness or wrongness of the Court’s decision as to whether the Republic of Georgia violated Saakashvili’s Article 7 rights depends on whether we interpret this case as a pardon case or as an abuse of office case. If Saakashvili were prosecuted for using his pardon power to benefit the convicted murderers, then we would probably expect that Saakashvili, as President of the Republic, would have official immunity from prosecution for carrying out an act that was entirely constitutionally in his discretion. A conviction therefore would violate Article 7. On the other hand, if the conviction were framed as inherent self-dealing by interfering with a criminal prosecution for political gain, and the pardon was only instrumental to that result, then Saakashvili would have been on notice that such acts of corruption were prohibited in the Georgian criminal code. This would not violate Article 7.

There is merit in both positions. However, the second interpretation—that the exercise of the pardon was instrumental to the act of corruption—is probably more consistent with modern views of the pardon power in a constitutional democracy. First, although historically courts could not review an executive’s clemency decision-making process, this does not mean that all pardons were necessarily constitutional in every context, and saying the pardon power truly was “unconditional” requires some qualification. For instance, an executive who granted a pardon on a condition that required funding from the legislature would have violated the separation of powers and the condition would presumably be void. By analogy, some traditions have interpreted written constitutions as implicitly prohibiting self-dealing or conflicts of interest. This argument has arisen in the United States over the much-debated question of whether the President can self-pardon. If we interpret the constitution as implicitly forbidding executives from self-dealing or from undermining the constitutional order for personal gain, then a pardon that has that effect could be considered void in theory. Second, the Court’s decision in Saakashvili is consistent with a kind of “clean hands” doctrine, according to which Saakashvili is not allowed to seek the protection of the European Convention on Human Rights for what amounts to his own wrongdoing. This is consistent with the protections of the Convention against the abuse of rights (Article 17): the Court wants to be careful about validating the use of the pardon power in a way that undermines other worthwhile goals such as good governance and prevention of corruption.

The third and most important reason that the Court’s decision in Saakashvili is probably the right one is that it is consistent with the modern trend of the constitutional pardon power in democracies toward opening the pardon power to judicial review and administrative constraints rather than preserving it as a residue of monarchical power. Notably, this trend may well include the Republic of Georgia, which had already applied principles of administrative law to the exercise of the President’s discretionary powers (though the pardon procedure in Georgia has been significantly reformed since Saakashvili’s term in office). In common law systems the clear forty-year trend and present majority rule is that the pardon power is amenable to judicial review to determine whether the head of state properly followed the constitutional procedure for granting clemency, as ratified by courts in Canada, Australia, South Africa, Commonwealth Caribbean, India, and elsewhere. This trend is also observable in Roman-Germanic civil law systems, including in Central and Eastern European states like Poland and Slovakia. Also notable are attempted law reforms following pardon controversies in countries such as Hungary and Romania. The Court’s ruling that Saakashvili should have anticipated that he would not receive immunity for a corrupt pardon is also consistent with the Court’s prior case law on the principle of legality according to which the progressive development of criminal law through ordinary development of jurisprudence does not necessarily render new frontiers of the law retroactive in application. Given these global trends and this case law of the Court, an executive today could anticipate that her or his use of the pardon power could be opened to scrutiny by a court or administrative agency.

Conclusion

In Saakashvili v. Georgia, the European Court of Human Rights was confronted with a tension familiar to pardon scholars. Should we see clemency as an act of grace, a lightning bolt from the sovereign? Or as a routine administrative task, subject to constitutional and regulatory limits? The Court viewed President Saakashvili’s corrupt pardons more along the lines of the second conception of the pardon power. This aligns both with the Court’s broader policy interests toward good governance and transparency and with the global trend toward subjecting the pardon power to administrative and judicial review. The decision in Saakashvili is also novel for its development of Article 7 jurisprudence on the principle of legality. Although the Court has had pardon challenges in its past, the alleged violations have been different, usually involving a spurned pardon-seeker or a pardon recipient whose pardon is subsequently not recognized by authorities. This case was unusual in that it was the granter of the pardon rather than the recipient who raised the challenge. In conceiving of the pardon power as a residue of monarchical power, the brief dissent, while powerful and elegant in its simplicity, is less in keeping with the global jurisprudential changes of the last four decades.