Mechanisms for restoration of justice have their own flaws
“Miscarriages of justice“– we use this term to characterize the problems existing in the system of Georgian judiciary during ex-president Mikheil Saakashvili’s governance.
Zero tolerance, persecution of political opponents, cases of property seizure, negative practice of plea agreements, increasing influence of the Ministry of Justice, Ministry of Internal Affairs and Prosecutor’s Office of Georgia over the judiciary – those problems decayed Georgian judiciary.
The most significant fact is that the old system had thousands of victims; most of them are still prisoners and wait for the restoration of justice, which was the promise of current ruling Coalition Georgian Dream before 2012 parliament elections.
Besides prisoners, there are former political prisoners, businessmen, torture victims and many others who suffered from the injustice in the past. They were released from prisons and no longer become victims of different persecution but the state has not yet restored their rights. Nongovernmental organizations, providing people with free legal aid, see problems of those people most vividly and they clearly see their everyday problems.
As we see now, eradication of miscarriages of justice and restoration of justice is not as easy, as it seemed to the Georgian Dream before 2012 parliamentary elections. After the parliamentary elections, Ministry of Justice elaborated a draft law on the establishment of the commission for the eradication of miscarriages of justice. Three-year state commission would have had authority to study applications of citizens who think they were unfairly convicted for grave and especially grave crimes. People convicted for less grave crimes would have been able to request re-examination of their cases if they were still in imprisonment.
Suddenly, in the end of 2013, Minister of Justice Thea Tsulukiani made a statement that Government of Georgia revoked decision to establish the commission on miscarriages of justice for “one reason” – the state is not ready to give compensations to the victims. The statement caused huge discontent among prisoners. As that time Minister of Corrections Sozar Subari said on December 2, 2013, 52 prisoners started hunger-strike with the request to “re-examine their unfair judgments.” By the end of December, 2013, 1032 prisoners were on hunger strike and 18 of them sewed up their mouths as a form of protest. Wave of protest continued in January and February, 2014 too. Only in spring of 2014 the Government managed to subdue the protest first of all with the promises to continue work on the eradication of miscarriages of justice Unfortunately, the government did not keep its promise. Several nongovernmental organizations still request establishment of mechanisms for the eradication of miscarriages of justice, but the process is not progressing. To advocate the problem, on April 24, the conference “Judiciary Miscarriages and Mechanisms for Their Eradication” was organized in the conference hall of the Human Rights House Tbilisi by Human Rights House Tbilisi and Human Rights Center. Representatives of different nongovernmental organizations and Public Defender’s Office, as well as donor organization, participated in the conference. Initially, Deputy Minister of Justice Sandro Baramidze got interested in the conference topic, but having read the conference agenda he said neither he nor any other representative of the Ministry of Justice would participate in it.
There were five speeches on the agenda: 1. Consequences of the miscarriages of justice and their influence over convicts (reporter: Tamar Avaliani, head of legal center at Human Rights Centre); 2. Commission for the identification of miscarriages of justice and alternative legal mechanisms (Kakha Kojoridze, chairman of Georgian Young Lawyers’ Association); 3 Property rights and problems of business freedom in Georgia ( Irakli Kereselidze, head of legal program at the Center of Business and Economy); 4. Public Defender’s participation in the eradication process of miscarriages of justice (Natia Katsitadze, head of Justice Department at Public Defender’s Office); 5. Difficulties related with the judiciary shortcomings and role of state in it (Sandro Baramidze, deputy minister of justice.)
Since the deputy minister refused to participate in the conference participants could not hear the position of the government, about their concrete plans and whether eradication of the miscarriages of justice is still in their interests. Head of Legal Aid Center at Human Rights Center, Tamar Avaliani stated that the majority of prisoners protest their verdicts and claim they are unfair. At the same time, most of them are victims of torture and inhuman treatment: “State has positive responsibility to combat torture that means that every fact of torture must be investigated. We have unpleasant tendency in the prosecutor’s office: they either do not start investigation into torture cases or drag out endlessly; majority of prisoners do not have status of victim either. Although situation with regard to accessible medical care has improved, torture victim prisoners still cannot get proper medical treatment for the diseases that they acquired during imprisonment as a result of torture and ill-treatment. The State has not yet established mechanism to restore their rights; there is no agency, which will grant status of torture victim to current or former prisoners, in fact, they cannot get psycho-social rehabilitation and legal aid is not available either.”
Natia Katsitadze from Georgian Public Defender’s Office stated that most applications submitted to their office refer to judiciary shortcomings. Citizens with breached rights, particularly prisoners urge for the restoration of their rights. Thus, public defender proposed initiative to establish the mechanism at the Constitutional Court, which will have new authority – to discuss reasonability of the judgments passed by general courts. In parallel to that, Ombudsman thinks it will be good if the Constitutional Court will not receive this authority only temporarily. Head of Georgian Young Lawyer’s Association, Kakha Kozhoridze noted that assigning similar authority to the Constitutional Court of Georgia might be problematic though other mechanisms for the eradication of miscarriages of justice cannot be absolutely perfect either: “We already know that idea of establishing the commission for the identification of miscarriages of justice also had some shortcomings. There is an idea to create a chamber within the Supreme Court to review past judgments. Neither this idea can be evaluated as perfect because we might have a question: how well will the judges of the Supreme Court manage to impartially review the judgments of the same institution? If the Parliament appoints new judges in the chamber, how free they will be from political influence? At this stage, human rights defenders have one tool – to renew investigation of similar cases at prosecutor’s office and to conduct strict monitoring of the ongoing investigation process.”
We detect signs of judiciary miscarriages in the cases related to property rights and freedom of business. We observed similar cases during previous government too. Irakli Kereselidze of the Center of Business and Economy said previous government created legislation which was used as a tool to jeopardize business and restrict property right. Plea-agreement was the most common method to seize business from owners. When it was not enough, they started direct intimidation of family members and relatives. With the initiative of the Center of Business and Economy together with international experts, a public commission will be established, which will study facts of oppression on businessmen and general tendencies. At the end of the research experts will prepare recommendations to the state how to handle identified problems. This idea is supported by the Coalition for Independent and Transparent Judiciary.”
Besides the declared reason that State cannot afford to pay huge compensations to victims of torture, there is another reason which was actively discussed among professionals – undermining independence of the court by establishing commission which would review the court decisions. Representatives of human rights organizations state that risks must be considered but via active discussion of legislative initiatives and public debates the state would have been able to find solution if they had political will too.
Recent developments convince human rights defenders that state does not have aforementioned political will at this stage. In parallel to that, one of the obstacles for the restoration of justice is the fact that those prosecutors who have participated in the practice of injustice still occupy high positions. They have participated in the illegal persecution of thousands of people. All in all, leaving citizens without effective legal remedy jeopardizes principles of rule of law and democratic development of the country.