Judges Apply Rules of Substantive Hearing at Pre-Trial Hearings

Salome Chkheidze

Former Minister of Justice and Minister of Education Nika Gvaramia and six more defendants in the case refused to let jury hear their case. The prosecution had requested to transfer the case to the jury hearing. But the judge did not satisfy the request.

The prosecution substantiated its request with article 219 of Criminal Procedural Code stating that it is an imperative provision to transfer the case to jury hearing. This article stipulates that if both parties do not refuse to let the jury hear the case, then the judge appoints session for selection of jury.

According to the judge, this is a general provision and it is specified by the article 226 of the Criminal Code which notes that the defendant decides whether or not the jury should hear his case.

Nika Gvaramia states that the prosecution constantly notes on the public interest and due to this requests that the jury should hear his case. Gvaramia thinks that when there is high public interest, it is rather advisable not to let jury hear the case as they can be influenced by this interest and make emotional decision.

Assessment of Lawyer of Human Rights Center

Lawyer of Human Rights Center Tamar Barsonidze who has been monitoring trials of former high officials in the frameworks of trial monitoring project, states that while discussing the issue of transferring the case to the jury, the procedural violations were noted at the pre-trial hearing.

“Part 3 of article 219 imperatively determines that “if both parties do not refuse to let jury hear the case, the judge appoints the session for the selection of jury”. The law allows judge of pre-trial hearing not to appoint the session for selection of jury only if both parties refuse to let jury hear the case. In this case, the will of legislator that the judge of pre-trial hearing, as a rule, should appoint the session for the selection of jury and not to do it only when both parties refuse, is explicit. As for hearing case without the participation of jury only based on one party’s request, this instance is drawn out in the chapter 23 of Criminal Procedural Code which regards the substantive hearing and not pre-trial hearing. This instance is regulated by chapter 22, article 219 of which was neglected by the judge who applied the provision of substantive hearing, article 226 even though it was pre-trial hearing and not substantive hearing.

The explanation of judge that article 219 is general and article 226 is specific does not supervene from the systemic approach of interpretation of norms: if these provisions are to be used at the same stage then there would be collision because they obviously contradict one another, particularly article 219 stipulates that only when both parties refuse, appointment of jury is ruled out, when according to article 226, the case is heard without the jury only when the defendant requests so. If both provisions were to be used at the same stage at the pre-trial hearing, they would lose meaning as they contradict each other.

In reality, these provisions regard two completely different stages of hearing and thus, we think that there is no contradiction between them. The judge of pre-trial hearing may not appoint the jury only when both parties refuse jury to hear their case. For all other instances, the judge appoints the jury. The defense side can request at the substantive hearing to hear the case without the jury.”

It should be noted that in the case of Davit Kezerashvili and other defendants, the judge also applied article 226 and noted that it was newer provision than article 219 and that is why it was using 226 and not 219. Thus, in regards with the defendants who did not want to transfer the case to the jury, it appointed the substantive hearing, as for the defendants who wanted the jury to hear their case, it appointed the session of selection of jury.

Also in case of Bacho Akhalaia at the pre-trial hearing it was decided that the case would be heard without jury on the basis of refusal of defendant.