Statement of Human Rights Center in relation with the president’s moratorium on pardons

Human Rights Center echoes the President’s pardoning of the prisoners convicted for grave crimes and follow-up scandal, which ended up with her new initiative to put moratorium on pardons. 

HRC believes the moratorium on pardons cannot and will not resolve the problem and undermine the practical implementation of the constitutional-legal purpose of the pardon power. It is crucial that the President restored the pardon commission and composed it of the competent people, who enjoy public trust. At the same time, respective normative act and practice shall be elaborated to eliminate all previous shortcomings identified during the previous pardons issued by the Head of the State. 

In the history of independent Georgia, we observed several cases of pardoning, when the presidents enjoyed their constitutional right to pardon prisoners and it caused public turmoil at different times. The presidents’ decisions many times became topics of public concern and criticism. The recent pardons issued by the President Salome Zurabishvili once again revealed the problems and miscarriages of the power. The President pardoned two prisoners convicted for the well-known murder cases and did not clarify the motives of her decisions to the society.

Pardon is human act of mercy exercised by the head of the state which allows a convict to be freed from punishment, have his term reduced, or criminal record quashed. 

According to the well-appropriated practice in the constitutionalism of different states, pardon power is mostly the constitutional prerogative of the head of the state and is regulated by state constitutions and other legal acts. Only the head of state is legally authorized to issue a pardon. In Georgia, the institution of the pardon is the exclusive constitutional prerogative of the President as the head of the state. The new edition of the Constitution of Georgia, Article 53 of regulates the issue, whose Part 2 – “g” stipulates that “a countersignature of the Prime-Minister shall not be required for legal acts of the President of Georgia related to pardoning of convicts.”

The institution of the pardon aims to effectively carry out the mandate of the Criminal Code of the Georgia. In accordance with Article 78 of the Criminal Code of Georgia, “The President of Georgia shall administer pardon toward individually unspecified persons. The criminal may be released from criminal liability under the act of pardon and the convict may be released from the sentence or the sentence rewarded against him/her may be commuted to a less severe sentence. The act of pardon may quash the previous conviction of the person who has served s sentence.”

In accordance with Article 11 of the Law of Georgia on Normative Acts, the President of Georgia shall issue edicts, decrees, and orders based on and within the scope of the authority granted to him by the Constitution of Georgia. Consequently, based on the exclusive pardon authority, the President with his/her edict, establishes the rules and conditions for pardoning the convicts, and composes the pardon commission that fully meets the requirements of the Constitution of Georgia. 

Pardon acts issued by different presidents of Georgia often became topics of public criticism. Supposedly, the initiative of the acting president of Georgia was related with that fact, when she, in March of 2019, announced in the Parliament that Pardon Commission shall be delegated to the Ministry of Justice. 

Similar model of the pardon mechanism was not innovative for the world constitutionalism history. Introduction of this model in the Czech Republic is related with the intention to overcome the crisis and protect public interests. Namely, the society criticized the President Vaclav Klaus (2003-2013) for pardoning many prisoners and finally it resulted into the initiation of impeachment procedures for the President. In order to overcome the crisis, the new president (Milos Zeman) delegated his constitutional power to the Ministry of Justice and maintained only humanitarian purpose of the power (when health conditions of the prisoner are particularly grave).

With the declared position of President Salome Zurabishvili about the pardon power to be delegated to the Ministry of Justice, it is very obscure why the President issued pardons on 91 convicts individually. 

Big part of the society got astonished with pardon act issued by the Salome Zurabishvili on August 28, the Saint Mariam’s Day, when she pardoned two persons convicted for murder. The low transparency of the pardon acts and sensitiveness of the cases once again raised questions about selfishness of the president to enjoy the pardon power. It becomes particularly disputable because one of the grounds for the criminal charges brought against the former president Mikheil Saakashvili by the current Georgian Dream government was pardoning convicts through ignoring the position of the pardon commission members. Salome Zurabishvili also criticized her predecessor ex-president Giorgi Margvelashvili for enjoying the pardon power unreasonably.  

It is inadmissible for Human Rights Center that President Salome Zurabishvili considers her discretion power has no limits and context. The discretion authority of the president shall serve the principles of accountability and meet high standard of responsibility in front of the citizens of Georgia. The pardon act shall serve human principle rather than the interests of some individuals. 

Discretion power shall be widely viewed as it serves human goals and meets the criminal law policy. We shall pay attention to the ruling of the European Court of Human Rights over the case “Enukidze and Girgvliani vs Georgia”. The judgment states, “The Court is struck by the fact that on 25 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.”

The president, like other constitutional bodies, are restricted with the constitutional principles when exercising their constitutional powers and their action shall not go beyond the Constitution. The Constitutional Court of Georgia many times declared that the Constitution provisions shall be interpreted in relation with the constitutional principles. Therefore, the President of Georgia is entitled to execute her discretion power based on preliminarily established, publicly available and clearly predictable criteria rather than selfishly and based on personal interests. 

In case of the strong democratic governance this issue could be regulated based on the constitutional practice but considering the Georgian reality and recent practice, it is crucial to regulate it on the legislative level that will prevent the unreasonable use of the pardon mechanism and its discrediting. 

In 2016, Human Rights Center published the survey report “The Power of Pardon – the Georgian Model and International Experience”, which reviews the Georgian model of pardon power as well as the international experience in details. The survey report elaborated the recommendations towards different institutions, which have not fulfilled them yet. 

In accordance to the survey, since the Constitution of Georgia grants the right to pardon convicts exclusively to the head of the state (President), the institution of the pardon will be evaluated as positive only when the President creates an advisory body (Pardon Commission) which may advice him on specific petitions by convicts. This model, although democratic, needs improvement to prevent the appearance of randomness and partiality of pardons granted by the President both in society and among convicts. 

Some of the recommendations elaborated in the frame of the abovementioned survey, are still urgent today. Namely: 

1. For serious crimes, the Pardon Commission and the President should take into account the position of the victim. For other crimes of a less grave nature, rejecting a petition based solely on the position of the victim may undermine the nature of the pardon;

2. The President should ensure that legal regulations of the scope of accountability of direct pardons exist so that the pardons will be predictable for the petitioners and society. This will allay doubts in the society about any impartiality towards applicants on the part of the President;

3. To avoid any false expectations about pardons among convicts, the goals of the pardon power should be normatively regulated and a proper practice should be established;

4. Due to the important status of the Pardon Commission and its mandate, it is recommended that the rules for its formation, the procedures and criteria for the selection of its members, and the number of its members be established normatively, increasing the public’s awareness of the pardon power in Georgia;

5. To better explain differences between the decisions of the President and the Pardon Commission, his advisory body, vis-a-vis pardon confirmations, it is recommended that the President and the Commission systematize their communications. The President should provide the Commission with information about each decision after making a decision about each pardon.