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Statement Regarding the Pardon Granted by the President on October 30, 2013

November 5, 2013
 
The institution of Presidential Pardon that is granted to convicted persons is a privilege of the President of Georgia guaranteed by the Constitution. Therefore, the President, as the Head of State exercises a constitutional privilege – a special right to grant pardon to convicted persons. This privilege of the President of Georgia is prescribed by Article 73 (n) of the Constitution of Georgia, which is turn is a part of the article defining constitutional authority of the President.   
  
Article 69 of the Constitution of Georgia defines the political and legal nature of the President of Georgia and states that the President of Georgia is elected on the basis of universal, equal and direct suffrage and “shall be the Head of State…”, and “shall lead and exercise the internal and foreign policy of the state. He/she shall ensure the unity and integrity of the country and the activity of the state bodies in accordance with the Constitution.” 

  
Therefore, the Public Defender of Georgia regards, that the right of the President defined by Article 73 (n) of the Constitution of Georgia - to grant pardon to convicted persons, as well as other authority of the President should be considered in view of Article 69 of the Constitution, especially taking into account the unity and integrity of the country and the activity of the state bodies in accordance with the Constitution. It is also noteworthy that the mentioned authority of the President should be in compliance with the main idea of the preamble of the Constitution of Georgia, especially with the rule-of-law based social state, as well as other principles of rule of law generally recognized by the Constitution. 
  
According to Paragraph 1 of the Regulation Concerning the Procedure of Pardon approved by July 19, 2004 order of the President, this “regulation determines the procedure of pardoning the convicts and those individuals that have already served their sentence and their convictions have not been annulled or their criminal record has not been expunged.” 
  
The given regulation prescribes the requirements, which the person requesting pardon should satisfy and the procedures for making a decision upon pardoning an individual. In case, the convicted individual does not meet the given requirements his/her case shall not be considered or there will be a negative answer. 
  
According to Article 2 of the Regulation Concerning the Procedure of Pardon, after a relevant commission examines appeals for pardon and makes decisions upon them, only those cases are submitted to the President upon which a positive recommendation has been issued. The final decision on these cases is made by the President. 
  
Therefore, the regulation defines the main requirements and procedures which ensure the direct legal application of the privilege granted to the President of Georgia by the Constitution. 
  
As a result of the changes made on May 30, 2005 the following provision was added to the regulation “the President of Georgia is entitled to make a decision upon pardoning an individual at any stage of the examination of an appeal for pardon and/or without following the requirements prescribed by the regulation.” 
  
Therefore, after the enforcement of the changes, the President of Georgia is entitled to pardon any number of convicted individuals, at any time, regardless their crime, without following the rules and requirements prescribed by the relevant regulation. 
  
The Public Defender regards that granting such wide privilege to the President of Georgia by the Regulation "Concerning the Procedure of Pardon may contradict the political and legal nature of the President defined by the Constitution of Georgia, especially, with one of the main functions of the President – to ensure compliance of work conducted by the state bodies (in this case - judicial) with the Constitution. 
  
It should be taken into consideration that this privilege of the President of Georgia cannot be unlimited and it should fall within the boundaries of constitution and legal rationality. Otherwise, there is a possibility of transforming the Presidential Pardon, an institution based on the principle of humanity, into a precondition for discrimination, inhumanity and other injustice. 

In this regard, the case of “Enukidze and Girgvliani v. Georgia” heard by the European Court of Human Rights can be taken into consideration. Paragraph 273 of the judgment on this case explicitly states: “The Court is struck by the fact that on 24 November 2008 the President of Georgia found it appropriate to pardon State agents convicted of such a heinous crime by reducing the remainder of their sentences by half.” 
  
Considering all of the mentioned above, the Public Defender of Georgia regards that it is essential to adopt appropriate changes in order to place this privilege of the President of Georgia within judicially rational constitutional and legal boundaries.

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