Judges Should Obey “Guidelines”
December 14, 2007
Last week, judge Merab Kozmava of the Kutaisi Civil Court finished the discussions on the criminal case against Irakli Ghudunidze. Ghudunidze was charged under article 177, paragraph II-a and paragraph III-a, c of the Georgian Criminal Code. He was accused of stealing various belongings of Leila Giorgadze; the total value of the stolen goods amounted to 1500 lari.
The court sentenced Irakli Ghudunidze to 4 years and six months imprisonment. The decision coincided with the guidelines of the Georgian Supreme Court on problematic issues in criminal judiciary practice. Those guidelines were prepared five months ago and it has become an Achilles’ Heel for Georgian lawyers.
Lawyers from Kutaisi speak about the problems they have faced since the guidelines were adopted during their visit to the Kutaisi office of the Human Rights Centre.
Giorgi Chikaberidze, attorney for Leila Giorgadze and working for the Kutaisi office of the Georgian young Lawyers Association (GYLA): “The verdict on Irakli Ghudunidze according to those guidelines will serve as a precedent in Georgian jurisprudence. However, we know that since those recommendations were adopted, all judges from all instances in Georgian courts have used them for discussing cases. Consequently, lawyers have to cope with many problems. In this particular case, the state prosecutor demanded five years imprisonment and we demanded the maximum sentence of seven years imprisonment. However, the judge sent the accused to prison for 4 and a half years. We demanded the maximum penalty, because the material damage has not been compensated and the accused has been convicted twice before. Consequently, the circumstances created a dangerous situation, but the court did not take those factors into consideration.
Representatives of GYLA in Kutaisi think that it is very important to establish a single judiciary practice that was initiated by Kote Kublashvili, the chairman of the Supreme Court; that initiative was the primary reason for preparing the guidelines. However, it should be pointed in the guidelines that according to Georgian legislation only courts have the power to interpret the law.
“Interpretation of the law can only have legal fact when the interpretation was done by the court and if it reflects on only one particular case. It might be unattainable to foresee all possible circumstances of a case in a single document, here the guidelines. The specific circumstances of a case define the final character of the crime and should reflect the duration of the penalty given. Consequently, it is essential to maintain the discretion or evaluation for a judge which enables the judge to act based on his/her personal belief and understanding,” stated Rezo Tofuria, a lawyer for GYLA in Kutaisi.
Evgeni Omanadze, chairman of the organization “Society and Justice”: “In its context, the so-called guidelines or recommendations mean suggestions for judges that should be implemented during their activities; however it does not mean that guidelines have more power than the law. Because of the importance given to the guidelines there is contradiction with the law and the independence of judges is reduced. Although a judge should define the law himself/herself, in reality courts of all instances act according to the “guidelines’ and one and the same result can be achieved at all courts. Consequently, people often have to apply the European Court for Human Rights in Strasbourg.”
Ana Chiafidze, a lawyer: “The adoption of the recommendations was aimed at establishing an “on all fours”(meaning a case is in all points similar to another) judiciary system, but in this case we will not have corresponding results because a precedent can be reached which is not in accordance with the content of an article but based on the character of one particular case. In this case the recommendations roughly estimate penalties based on the articles of the code covering a crime and neglects the individual character of the discussed case. The essence of the “on all fours" judiciary system aims to establish a single practice based on the character and context of one particular case. For example, article 177, paragraph I covers crimes that might be different from each other but the qualification according to the code might be equal. Consequently, we cannot achieve a single practice which will enable us to establish an “on all fours” judiciary system.”
Niko Kankava, lawyer for the Kutaisi office of the Human Rights Centre: “Based on the specifics of my activities, I must claim the innocence of my client and I should not force him/her to plead guilty after which I will have to think of how to mitigate the penalty (I try to avoid such cases in my practice). The so-called “guidelines” do not create many problems for me. However I do not like article 50, paragraph IV of the Georgian Criminal Code which states that if an accused regrets the committed crime and cooperates with the investigation, the penalty decided on by the court will be reduced by half. But the guidelines do not mention that article at all. Thus it is a dead article in the code as well as many other articles. The principal point is that the guidelines restrict the court’s authority. A judge does not have right to use certain articles according to his/her personal view to a case and very often the work of lawyers loses its essence because courts of all instances pass verdicts according to the guidelines.”
The lawyers consider that the so-called “guidelines” aim to completely subdue the judiciary authority and “common to all mankind” principles, which are used as a basis for adopting the recommendations, is an ordinary disguise and in reality aims to complete subdue the society.
Lela Khidasheli, Kutaisi