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“Mr. President, do not you thank that the pardon order is just a formal act?!”

27.07.2017

 
Natia Gogolashvili 

“I have your order on pardon dated by 2014 in front of me. I may have read the legal document at least hundreds times and in particular the so-called criteria which must be met by every applicant convicted person to be pardoned. Mr. President, do not you think that the pardon order is just a formal act?! Freedom is huge happiness for any woman but I failed to find links between the estimated criteria with the conditions the already pardoned convicted people had when applying to you,” the convicted Ketevan Khmaladze expects answers to these questions, shared by other pardon-applicant women, from the President. 

Human Rights Center’s lawyer Eka Kobesashvili said the criteria for being pardoned shall be understandable for the prisoners. “While some prisoners are refused to be pardoned because they do not meet the criteria, some prisoners are pardoned through complete negligence of those criteria. It causes ambiguity among the prisoners. They cannot get well-grounded answers to their question, why they were not pardoned. I think the prisoner shall receive well-grounded clarification about the negative answer so that she/he took the circumstances into account in future,” Eka Kobesashvili said.

Human Rights Center organized a round table Pardon Mechanism in Georgia – Problems and Challenges within framework of the project “Survey of the Pardon Mechanism”. Chairman of the State Pardon Commission Zviad Koridze said the pardon mechanism is not linked with lawfulness and fairness of the decision. 

“Pardoning is a human action. Pardoning is a principle of humanism, which lies in the fundament of the state. This is the only lever, which is used to outline humanity. Pardoning is an exclusive right of the President, which is imposed to him by the constitution. Therefore, we have to talk about those problems that make the pardon mechanism current for the society. Pardoning has nothing to do with legality or justice. When we say that it is an exclusive right of the President, it breaches the principle of equity,”- said Zviad Koridze.

The Report on the Power of Pardon reads that neither the Georgian Constitution nor regulating acts contain information about the purpose of the pardon, creating confusion about its use and encourage false expectations. 

“Both Pardon Commission members and representatives of non-governmental organizations state that convicts often perceive the purpose of the pardon is to undo miscarriages of justice. This misperception is a result of unimplemented regulations specifying the purpose of pardons. The Commission and NGOs also added that since the state has not yet fully consolidated its power, convicts consider the pardon to be the only tool to restore justice by either commuting sentences or altogether excusing the offense. Some of the Commission members also stated that prisoners apply for pardons who believe they are victims of arbitrary judgments. Both the President of Georgia and the Pardon Commission reject these types of applications because a pardon cannot be applied as tool to review a verdict even if the prisoner believes himself a victim of an arbitrary verdict,” the report reads.

Within framework of the survey, Human Rights Center obtained the statistic information from the President’s Administration, which shows that in the two years between November 2013 until the end of 2015 (1,797 prisoners were pardoned) more convicts were pardoned than in the ten years between 2004-2013 (3,068 convicts were pardoned). At the same time, it can be observed that from November 2013 the President of Georgia has had a more human approach towards women and juvenile convicts. In the 10 years between 2004-2013 the President pardoned 216 women, he pardoned 80 women in the two years between November 2013 to the end of 2015.

The tendency of using the pardon mechanism in Georgia in 2004-2015 it the following:

Between January 2004 and November 2013 49,599 convicts petitioned the Pardon Commission. Among them 45,618 petitioners were men, 3,698 were women. Among them, based on the recommendations of the Pardon Commission, the President of Georgia pardoned 3,068 convicts. Among those pardoned, 2,803 petitioners were men, 216 were women. 

Between January 2004 and November 2013, about 6% of the female convicts were pardoned (216 out of 3,698 convicted women).

Between November 2013 and December 2015 13,394 convicts petitioned the Pardon Commission. Among them 627 were women. Based on the recommendations of the Pardon Commission, the President of Georgia pardoned 1,797 convicts. Among them 80 were women.

Of those pardoned, about 13% of the female convicts were pardoned (80 out of 627 convicted women).

Lawyer of Human Rights Center Tamar Avaliani said working on the Survey of the Pardon Power they identified several major problematic issues.

“Neither legislative nor law-subordinate normative acts regulate the rule and procedures of the formation of the Pardon Commission, selection criteria of its members, and the number of members for a miscarriage. It is desirable to normatively regulate the number of the Pardon Commission members and their educational requirements. At the same time, the Commission Members shall not be elected due to their religious background but due to their humanity and liberal approach. We should also pay attention to the following issue: the President may pardon a person by neglecting the criteria based on particular circumstances. However, there is no clear list of those particular circumstances. It causes misunderstandings among prisoners. We recommend to elaborate the list of the particular circumstances based on the internal instruction. For example, the practice showed that health problems of the prisoner, or his/her being victim of torture and relevant court judgment on that, as well as if the female convict has underage children and they need particular care, may be referred as particular circumstance. The exclusive right of the President to pardon the prisoner through neglecting the criteria, causes the biggest concern. In this situation the President does not request the recommendation from the Commission and pardons the prisoner individually. We believe it is dangerous competence,” Tamar Avaliani said.

Based on the March 27, 2014 Order # 120 of the President of Georgia the new rule of the Pardon was approved. It is worth to mention the positive innovations of the March 27, 2014 Order. 

The new edict enables convicts with a life sentence to request that their sentence be commuted after only 15 years, not 25 years. 

Before the edict, unless the convict admitted to a crime, the Pardon Commission would not consider his petition. After the edict, a confession is no longer an obligatory criterion for clemency. 

In 2014, the resolution on juvenile convicts was amended to enable the Pardon Commission to review cases of adults, who committed crimes while still a juvenile, without all the same criteria. 

Convicts, who have conditional sentences, will be reviewed by the Pardon Commission based on their original prison term, not the conditional sentence. 

Also, a convict will only be able to re-petition the Pardon Commission six months after a previous attempt, while before it was only three months. 
While previously the Pardon Commission would not consider petitions of amnestied or pardoned convicts who are repeat offenders, the new norms allow for such petitions, but only if the convict has served at least two-thirds of his terms

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