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Constitutionalist Mikheil Sharashidze about Recent Judgments of the Constitutional Court

December 21, 2015
 
Natia Gogolashvili

“Georgian Citizen Giorgi Ugulava v Parliament of Georgia “ – the Constitutional Court of Georgia ruled that the 9-month term of pre-trial imprisonment in each criminal case shall include the period of time which the accused person spent in the detention setting after the charge was brought against him/her in the frame of other case; the Constitutional Court of Georgia declared the norms of the Election Code of Georgia unconstitutional which regulated the formation of 73 single-mandate majoritarian election districts; with regard to the TV-Company Rustavi 2 the Constitutional Court upheld the motion of the suitors and suspended the action of the Article 268 “g” of the Civil Procedural Code of Georgia which estimates one of the basis to immediate enforcement of the judgments passed by the first instance court; on October 12, 2015 the Plenum of the Constitutional Court of Georgia accepted the constitutional lawsuit where the claimant appeals the amendments to the Organic Law of Georgia on the National Bank – constitutionalist Mikheil Sharashidze answered questions of humanrights.ge about the recent judgments of the Constitutional Court of Georgia.

1. How the Georgian legislation regulates 9-month pretrial detention? How long can a person be kept in pre-trial detention if guilty verdict is not passed against him?

Nine-month pre-trial imprisonment of the accused person is mentioned in the Article 18 Paragraph 6 of the Constitution of Georgia.  A person is accused who allegedly committed an action or a crime punishable by the criminal code of Georgia. It is noteworthy that existence of criminal offence is not enough to impose pre-trial imprisonment on the suspect. Additional conditions are needed to use pre-trial imprisonment as preventive measure. Namely, interests of justice shall be under risk in that particular criminal case. For example, witnesses may be oppressed, evidence may be destroyed, etc. Pre-trial imprisonment shall aim at preventing the accused to commit new crime in future. Consequently, when the court identifies similar pre-conditions, the decision is made on 9-month pretrial imprisonment. Within this period of time the first instance court shall pass guilty verdict. If the court fails to pass guilty verdict the accused person shall be freed from pre-trial imprisonment. However, there are cases when exceptions are used and pre-trial imprisonment exceeded nine months. For example, if a person commits a new crime within 9-month term, for what he is sentenced to imprisonment. 9-month term is extended if other crimes were committed before detention but the prosecutor’s office learned about other criminal offences after imposing the pre-trial imprisonment.

If the accused has committed several crimes and the prosecutor’s office has obtained evidence only in one of those crimes, the pre-trial imprisonment applies to other crimes too. In other words, legitimate goal of the pre-trial imprisonment is achieved in equally for other crimes too. It is inadmissible that court used pre-trial imprisonment separately for each charge, when investigation into all alleged crimes starts simultaneously - for example, murder and robbery. If a person was accused for these crimes simultaneously but the court sent him to pre-trial imprisonment for murder charge, the pre-trial imprisonment is automatically meets the public interests related with the robbery. 

2. What will happen if a person is in pre-trial detention (for example for robbery charge) but the crime was not proved and meanwhile the prosecutor’s office learns about new grave crime committed by the same person in the past (for example murder)?

In similar situation the accused will be sentenced to 2-months pretrial detention and afterwards based on the prosecutor’s office solicitation the court may expand his imprisonment term several times but total length shall not exceed 9 months. 

If a person is accused of robbery and he spent 9 months in pretrial imprisonment in total and if the prosecutor’s office learned about another crime committed by him, and it is necessary to impose pretrial imprisonment on him for the second crime too, of course the prosecutor can request imprisonment. The term of the second nine-month pretrial imprisonment will be calculated from the day he was charged for it. 

3. On September 15, 2015 the Constitutional Court of Georgia passed verdict on the case Giorgi Ugulava v Parliament of Georgia. The Constitutional Court ruled that 9-month pretrial imprisonment term shall include the period which the person spent in prison after being accused. How would you evaluate the decision of the common court with regard to former Tbilisi City Mayor Gigi Ugulava’s case?

In case of Ugulava there were several crimes and pretrial imprisonment was used only in one case which lasted 9 months. In this regard, 9-month imprisonment was applied to other crimes too and met the requirements of pretrial imprisonment in other charges too. The prosecutor’s office had to use the 9-month pretrial detention for other crimes too. If the prosecutor’s office had chance to use 9-month term for each charge separately, it would allow them to nonconstitutionally manipulate with the pretrial imprisonment terms. Similar manipulation violates the constitutional rights – inviolability of freedom that is guaranteed by the Article 18 of the Constitution. The Constitutional Court passed verdict in accordance to the Article 18. 

4. Justice Merab Turava said he did not have enough time to make decision into Gigi Ugulava’s case. On September 16, the chairman of the Constitutional Court visited him even in hospital but Justice Turava did not sign the decision of the Constitutional Court on the case Giorgi Ugulava v Parliament of Georgia claiming that he was under oppression. Besides that, he said he did not have enough time to read the decision.
What is reasonable time for the justice to review the judgment and express his/her opinion? Do you detect interests of the Government in the activities of Justice Turava?

In general, the Constitutional Court has 9-month term to review each case but considering the fact that the Constitutional Court receives many cases and they discuss lawsuits in turn. The 9-month term is calculated from the moment the Court starts processing of the concrete case. However, the term for the justice in charge of concrete case is not regulated. It should be a reasonable period of time considering the nature of the concrete case. I cannot unilaterally declare why Justice Turava did not have reasonable time to study the case thoroughly. However, it should be noted that Turava had right to write different opinion about the verdict and it would have been enclosed to the verdict when it was published. The procedure is the following: the justice in charge signs the decision regardless the fact he/she agrees it or not. However, if she/he has different opinion, he/she can enclose it to the verdict.

5. On September 16, 2015 after Justice Turava finally refused to sign the verdict, the Court made decision to announce the judgment without his signature. What do you think about it?

I believe the Court had right to announce the decision without Turava’s signature. The decision is usually made by the majority of the votes in the Plenum. Consequently, the Court had authority to make decision. For example, it may happen that all justices will not manage to sign the decision and do you think the Court should not announce the judgment?! With regard to Ugulava’s case the Court acted in accordance to the interests of the suitor. The main issue is that the Constitutional Court ruled the constitutional rights of the suitor were breached. The Court took step to restore the breached rights and acted in accordance to best interests of the suitor. I think the Court acted correctly when they respected the interests of the suitor.

6. Giorgi Okropiridze was accused of the murder of 25-year-old Lasha Makharadze. The jury court already discussed this case but could not pass verdict. After the 9-month pretrial imprisonment term expired, a new charge was imposed on Giorgi Okropiridze – false denouncement and false testimony for what new pretrial imprisonment term was imposed on him. “In accordance to the September 15, 2015 judgment of the Constitutional Court, repeated pretrial imprisonment is not always non-constitutional. Namely, the pretrial imprisonment can be repeated for the crime which was committed by the accused person before the first pre-trial imprisonment term,” Tbilisi City Court clarified. 

Please clarify what was the difference between Giorgi Ugulava and Giorgi Okropiridze’s cases and what were the arguments of the Constitutional Court’s decisions with regard to their cases?

It should be noted that in terms of law the second accusation brought against Okropiridze is quite controversial. It was about slander and misleading of investigation. Okropiridze petitioned to the Public Defender of Georgia about his physical abuse and degrading treatment and the Public Defender recommended the Prosecutor’s Office to start investigation into the alleged crimes. The Prosecutor’s Office concluded that Okropiridze provided the investigation with fake information. For that reason, the prosecutor’s office launched a new criminal case against him and expanded his pretrial imprisonment. I think, when the Court refused to free Okropirdze, it was formally correct decision because Okropiridze committed the crime after he was already in pre-trial imprisonment. Normative context of the procedural norms regulating the pretrial imprisonment, which was applied in Okropiridze’s case, was declared non-constitutional by the Constitutional Court. Another issue is how legally correct is the charge brought against Okropiridze. There are many international acts which protects applicant from criminal liability. They have right to provide the Public Defender even with false information. And it shall not become ground of criminal liability. When person is in prison, it is very difficult to claim that he was intimidated. Thus, the state shall create additional defense mechanism. If this mechanism does not exist, prisoner may not appeal to the Public Defender at all fearing that he cannot prove the allegation and be additionally charged for that.

7. Constitutional Court declared the norms of the Election Code of Georgia which regulated the formation of 73 single mandate majoritarian election districts. In 2012 you were co-author of this lawsuit together with current Public Defender of Georgia.

Please clarify, what was the purpose of the lawsuit and with the decision of the Constitutional Court, do you think that the by-elections of Sagarejo and Martvili districts contradict the Constitution?

The rule according to which 73 single-mandate majoritarian election districts were formed was non-constitutional. The main issue is that different number of voters lives in different election districts. For example, there are 130 000 voters in Saburtalo district whilst there are only 5 100 voters in Kazbegi district. Voters of both districts have only one single mandate MP. Consequently, voters from Saburtalo district have less chance to make adequate influence on the elections. In fact, 20% of the Georgian voters was under risk of losing right to adequately impact majoritarian elections. In 2012 we sued the formation rule, according to which majoritarian districts were formed in accordance to municipal territorial entities. Formally, the Constitutional Court did not discuss constitutionality of 2012 Parliamentary Elections. Consequently, the 2012 majoritarian elections were legitimate. If by-elections in Martvili and Sagarejo districts were appealed, in reality the voters of both districts could lose right to vote at all while the rest 71 majoritarian districts had elected the MP. It could be disproportional enforcement of the judgment of the Constitutional Court and all burden of the verdict enforcement would then fall on the voters of only these two districts. There were three subjects who could appeal the election: President of Georgia, 1/5 of the Parliament of Georgia and Public Defender of Georgia. However, none of them considered it was necessary to appeal the by-elections. I think they made correct decision.

8. How will you evaluate the case of the TV-Company Rustavi 2? The Constitutional Court satisfied the lawsuit of the applicants and suspended action of the Article 268 Part “g” of the Civil Procedural Code of Georgia before the issue is finally resolved; the suspended Article envisage one of the basis for immediate enforcement of the court judgment. However, in similar case, the first instance court had right to appoint temporary managers in the TV-Company. Judge Urtmelidze made decision to appoint temporary neutral management in the TV-Company but several days later he annulled his decision. What do you think was the judgment of the Constitutional Court of Georgia right with regard to this case and how will you evaluate the activities of the Judge Urtmelidze?

The Court concluded that unless they suspended immediate enforcement of the verdict, it could create irreparable problems. The decision had its political-legal motives. Thus, the Constitutional Court respected those political-legal motives and decided to suspend the norm of immediate enforcement. The Constitutional Court is authorized to judge the state policy thus its decision cannot be absolutely apolitical. I think, in this particular case the Court acted correctly. I think with this judgment the Court partly subdued the conflicting situation. The Court was also allowed to conduct the process in more peaceful environment. The decision of the Judge Urtmelidze to appoint temporary management in the Rustavi 2 was legal. However, I wished Urtmelidze’s verdict was more well-grounded. I think the threats, which Urtmelidze foresaw, were very hypothetical in the situation when Rustavi 2’s property was frozen and its managers could not sell the property. His argument that the editorial policy of the TV-Company could create some financial crisis for economy, was very general and hypothetical. 

9. On October 12, 2015 the Plenum of the Constitutional Court of Georgia accepted the constitutional lawsuit. The suitor appealed the amendments to the Organic Law of Georgia on the National Bank, based on which the public law legal entity “Financial Supervision Agency of Georgia” was established and it was authorized to implement the functions which were implemented by the National Bank before. Consequently the Plenum suspended the action of the law adopted by the Parliament of Georgia. How would you evaluate this process?

First of all, we should take nature of this litigation into consideration. Namely, the suitor – group of MPs, appealed the Constitutional Court against the supervision institution which was formed without participation of the President of Georgia that violates constitutional competence of the President. Thus, it is litigation about the constitutional competence of state institutions. In the frame of this litigation, if the Constitutional Court upholds the lawsuit and declared the law on the formation of the supervision institute as unconstitutional, it will annul the norms from the date of its adoption – that means retrospectively. 
If the Supervision Institute had chance to function, it would have had very serious authorities – for example issuing or suspending licenses on banking activities, etc. That means, all decisions made by this institution could have been declared non-constitutional (if the Court satisfies the lawsuit of the MPs). In similar situation, the state could face very significant financial problems. Thus, I think the Court acted correctly when the enforcement of this norm was suspended. The Constitutional Court can suspend a norm if there is a threat that a party might receive irreparable damage. In this particular case the plaintiff side claimed this act could do no harm to the 1/5 of the Parliament. But the Constitutional Court absolutely correctly responded to them and stated that a suitor cannot always be the assumed victim of the action. We should consider public interest which was represented by the suitor in this particular case. Consequently, if this public interest, that is financial stability of the country, may be irreparably damaged, the Constitutional Court is authorized to satisfy the request of the suitor.

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