A Step Backwards: Judge Konstantine Kublashvili’s Order?

Nona Suvariani, Tbilisi

A commission was set up based on the resolution passed by the Chairperson of the Georgian Supreme Court. The Commission published “Guidelines and Recommendations”. Various lawyers think that these recommendations are intended to circumvent Georgian law.

“One more step to get around the law,” Giorgi Turazashvili, Manager Partner of the legal office of “Turazashvili, Dzagania, Razmadze” partners, and a member of the Georgian Bar Association, published a statement with that very title. He also came out with a similar assessment in response to the Resolution # 3 of the Chairperson of the Georgian Supreme Court that was passed on February 5 2007. This resolution provides for a permanent commission that will work for the estimation of various guidelines for the judges of lower courts and to explain rules of procedure with the overall judiciary system. The commission prepared and published various “Guidelines and Recommendations,” which provide the list of remedies that must be imposed on accused individuals under certain circumstances.

Giorgi Turazashvili: “The special commission is staffed by judges and members of the Supreme Council of the Judicial Council, which seeks to establish some kind of order in how practice is carried out in the criminal judiciary system. In short, this means that when a criminal court passes a verdict, and if a person is found guilty the court decides how the charge can be changed, there will be established guidelines to be followed based on contributing circumstances.”

“The court states that it is a resolution with its legal context and acts as a sentencing guideline for judges. However, the resolution does not have the weight of law; it is merely a code or guideline passed by the Chairperson of the Supreme Court. Laws can only be adopted by the parliament.”

“We did not have independent court and now the situation is worst because the current system is staffed with judges who don’t consider the law. In fact, they completely trash the law. Now we have a system where the big “boss” prepared special recommendations for Georgian judges and these are the receipt book for punishing people according to those stipulated recommendations.

“Today, a person knows at the preliminary level of his encounter with the court system just how many years will be imposed on him/her for a certain crime,” said the statement published by the lawyers.

Giorgi Turazashvili defined why he takes exception to the resolution of Konstantine Kublashvili.

“There is a chapter in the Criminal Code that is named “Basis for Imposing Punishment” – and this means that a judge should consider several issues as he goes about the imposition of a sentence on the guilty party. Many circumstances were envisaged when this law was drafted and incorporated. This chapter is to be used by a judge as a guideline when passing a verdict. There were several cases during recent days when the judge followed guidelines and not Georgian law. The judge sentenced a person to seven years and nine months in prison while the relative article envisaged only a term of 7 years in prison. The judge did not mention any article of the code while passing sentence.  When I returned to my office I looked through the guidelines and saw exactly that amount of imprisonment in it that was used by the judge. He did not indicate any chapter of the code in the verdict because as he actually followed the recommended guidelines.”

Elizbar Khachapuridze, the lawyer for the Human Rights Centre, cannot see anything negative in the preparation of those guidelines. He thinks those recommendations neither hinders nor supports the independence of judges.

“Introduction of the guidelines in the judiciary system in the form of recommendations is not a step-backward for the judiciary system. Instead, it is a way to force the activities of judges to be more transparent. It will create the possibility to make judiciary system more democratic.”

Elizbar Khachapuridze also added that guidelines will support judges when they mention a concrete penalty in their conclusion of law and findings of fact.  However, it does not mean that while evaluating the evidences the judges will necessarily envisage the position of the defense side, or based a decision only on principle of comparability. Alternatively, they will pass verdict according to their personal experience and outlook on the case. Guidelines do not envisage them to act in such a manner.

“Recommendations assist judges to be discharged from the extra burden of responsibility in order to avoid any doubt that they passed decision that may have been influenced by corrupt practices or their own opinions, thus avoiding imposing extremely harsh or petty penalties. However, until that the standing judge must personally assess the situation and only after that will be able to pass a sentence on the basis of the presented evidence.

 Naturally, it goes without saying: “The Doctrine of Evidence Theory is not envisaged under these guidelines.”