The Kyiv Administrative Court of Appeal on Feb. 5 rejected ex-Georgian President Mikheil Saakashvili’s political asylum appeal, potentially opening a way for his deportation or extradition from Ukraine.
The court had considered Saakashvili’s appeal against the Kyiv Administrative District Court’s rejection of his application for political asylum. He argued that he needs the status because criminal cases against him in his native Georgia are politically motivated. Ukraine’s State Migration Service previously also denied him asylum.
Saakashvili’s lawyers have argued that their client cannot be legally deported or extradited regardless of his asylum status, since it is unlawful to deport or extradite permanent stateless residents of Ukraine. Saakashvili also cannot be extradited or deported under the law because he is under investigation in a criminal case in Ukraine, they say.
Forced deportation or extradition is only possible under Ukrainian law if there is a specific court warrant for deportation or extradition. Even in that case, such a ruling can be appealed within 30 days, and extradition or deportation can only happen after the appellate court’s decision.
Saakashvili’s deportation or extradition will also be illegal during the next appeal stage because his lawyers have filed an appeal against the Feb. 5 ruling on asylum with the Supreme Court and because his current residence permit from the State Migration Service is valid until March 1, Saakashvili’s lawyer Ruslan Chernolutsky said on Feb. 6.
However, Saakashvili and his lawyers fear that he can be expelled from the country unlawfully. In October and November, seven Georgian associates of Saakashvili were deported to Georgia by Ukrainian authorities without court warrants, with the Georgians claiming they had been kidnapped and beaten.
Human Rights Ombudsman Valeria Lutkovska said in November that three of the Georgians had been illegally kidnapped and deported by the National Police without court warrants. The authorities denied accusations of wrongdoing, but failed to present the legal grounds for the deportations.
Saakashvili’s Movement of New Forces party interpreted the Feb. 5 ruling as the authorities’ reaction to the Feb. 4 march for President Petro Poroshenko’s resignation co-led by Saakashvili. He also plans another major rally for Poroshenko’s resignation for Feb. 18.
Selection of judges
Saakashvili’s lawyers on Feb. 5 requested that the judges hearing the case recuse themselves, saying there is evidence of unlawful political interference in the automatic distribution of the Saakashvili case. The judges refused.
The lawyers also said they had not been given all the documents on the selection of the judges that they had requested.
On Jan. 22, Saakashvili’s lawyers asked three judges who considered the case, Olena Hanechko, Andriy Korotkikh and Natalya Litvina, to recuse themselves. On the same day, three other judges of the Kyiv Administrative Court of Appeal – Vitaly Faiduk, Yevhen Mezentsev and Yevhen Chaku – were chosen to consider recusing them from the Saakashvili case.
However, on Jan. 23 Mezentsev was replaced with Yaroslav Sobkiv “due to changes in the court panel, other reasons or merger of cases” – a bizarre reason that Saakashvili’s lawyers believe to be unlawful. The judges refused to recuse Hanechko, Korotkikh and Litvina.
Despite the absence of recusal, Hanechko and Litvina were suddenly replaced on Jan. 31 with Faidyuk and Chaku to consider the Saakashvili case. Saakashvili’s lawyers argued that Faidyuk and Chaku had no right to do so because they had already considered the recusal and were thus prejudiced.
Saakashvili’s lawyer Pavlo Bogomazov told the Kyiv Post he had found signs of illegal political interference in the selection of judges for Saakashvili’s lawsuit against Poroshenko’s cancellation of his citizenship when the High Administrative Court selected them last year. Specifically, some judges could not take part in the selection because they were allegedly on vacation, but in fact they had been working and hearing cases at the time, he added.
Motions rejected
The court rejected all of the motions filed by Saakashvili’s lawyers on Feb. 5, prompting the ex-Georgian president’s supporters to accuse the judges of being biased in favor of Poroshenko. In their motions the lawyers sought to delay or suspend the legal proceedings due to Saakashvili’s separate lawsuit against the State Migration Service due to its refusal for months to consider a complaint against the actions of its Kyiv branch.
Saakashvili’s lawyers argued during the hearing that the Kyiv Administrative District Court’s decision to reject Saakashvili’s asylum application contains no explanations on why Ukrainian authorities recognized the Georgian cases against Saakashvili as political in 2014 and 2015, yet stopped doing so later. Nor does the decision contain any references to the European Court of Human Rights’ ruling in November 2017, according to which the cases against Saakashvili and his allies, including ex-Interior Minister Vano Merabishvili, were recognized as politically motivated, the lawyers said.
They said that the State Migration Service had managed to consider 300 pages of materials in the Saakashvili case and rejected his application in just half a day.
The State Migration Service representative present at the hearing could not explain how the consideration of 300 pages of materials in such a short period had been possible, and declined to comment on the European Court of Human Rights’ ruling.
One of the judges who considered the Saakashvili case on Feb. 5, Faidyuk, has been accused of participating in the rigging of the 2012 parliamentary election, according to a bill on the firing of discredited judges submitted to parliament in 2016. He denies the accusations of wrongdoing.
Another judge who considered the case, Korotkikh, failed to get the minimum proficiency score during anonymous testing as part of last year’s competition of the Supreme Court.
Faidyuk and his family disclosed a land plot of 24,914 square meters, a land plot of 22,685 square meters, a house with an area of 172 square meters, a Toyota Land Cruiser worth Hr 543,599 and $21,000 in cash in his 2016 asset declaration.
The third judge considering the case, Chaku, and his family included two 184 square meter houses, a 62,300 square meter land plot, a 31,400 square meter land plot and $71,000 in cash in his 2016 declaration.
Bizarre appeal
Saakashvili’s lawyers also previously argued that the Kyiv Administrative Court of Appeal had denied Saakashvili access to justice by not giving him enough time – 30 days – to appeal against the Jan. 3 rejection of his political asylum application by the Kyiv District Administrative Court. The appeal hearing was scheduled very quickly, in contrast with common practice, the lawyers added.
The judges also unlawfully accepted the State Migration Service’s appeal against the Kyiv District Administrative Court’s decision, which completely satisfied the service’s demands, Saakashvili’s lawyers said. They also said that the service had unlawfully appealed the decision in its own favor so as to speed up Saakashvili’s deportation or extradition from Ukraine, denying him the right to file an appeal within 30 days.
Saakashvili and his lawyers said no state agency had ever appealed against a ruling that was fully in its favor.
State Migration Service spokesman Serhiy Hunko told the Kyiv Post he could not comment on the accusations.
Ukrainian authorities recognized Georgia’s criminal cases against Saakashvili to be politically motivated when they rejected Georgia’s extradition requests for Saakashvili in 2014 and 2015.
A Tbilisi court on Jan. 5 sentenced Saakashvili to three years in prison in absentia on abuse of power charges for pardoning convicts – accusations that he believes to be fabricated and unlawful. U.S. and European authorities have recognized the Georgian cases against Saakashvili as political.
Saakashvili also said on Jan. 26 that Ukrainian authorities had recently asked Poland if they could deport him there.
House arrest
The Kyiv Court of Appeal on Jan. 26 placed Saakashvili under nighttime house arrest in a criminal case.
Saakashvili’s lawyer Ruslan Chernolutsky said on Feb. 5 that the ex-Georgian president’s nighttime house arrest was expiring on Feb. 6 but prosecutors had not filed a motion to extend it. He attributed this to the authorities’ alleged plans to illegally deport or extradite Saakashvili.
Prosecutor General Yuriy Lutsenko has accused Saakashvili of accepting funding from fugitive oligarch Serhiy Kurchenko, an ally of ex-President Viktor Yanukovych, to finance anti-government demonstrations and plot a coup d’etat.
Saakashvili, who was arrested on Dec. 8, believes that the case is a political vendetta by Poroshenko. The prosecutors’ alleged evidence against Saakashvili was dismissed by independent lawyers as very weak, and he was released by Pechersk Court Judge Larysa Tsokol on Dec. 11.
Tsokol ruled that Saakashvili’s detention by the Security Service of Ukraine, or SBU, prosecutors and police without a court warrant and any other legal grounds on Dec. 5 was unlawful. Saakashvili, who was freed by hundreds of his supporters on the same day, has since claimed the detention was an attempted kidnapping.
