Issue date: November 2022
Merab Turava: Foreword
Author: Tinatin Erkvania
The territorial organisation of Georgia in the current context is difficult to describe with complete precision, but it can be defined as unitarianism with regional autonomies. In this respect, the regional autonomies are the Autonomous Republic of Ajara and the Autonomous Republic of Abkhazia. In addition, the temporary administrative-territorial unit established on the territory of the former Autonomous Region of South Ossetia has a special status.
In general, three classical models (conventional classification) are relevant in the context of territorial organisation: unitarianism, regionalism, and federalism. There are several configurations of these three models. Federalism, in a broad sense, is a subtype of regionalism, while unitarianism can also be represented by attributes of regionalism. Regionalism, in a narrow sense, refers to a constitutional-legal format which includes the classification of territorial units into regions and the territorial division of the unified state into regional autonomies (for example, Spain and Italy).
Given all of the above, the main aim of the Article is to overview the extended standard of regional/political autonomy, with a focus on the idea of improving the Georgian model of territorial organisation, only using Catalonia and South Tyrol as examples so far.
This Article was written as part of a research mission to the Faculty of Law of Humboldt University of Berlin. It aims to implement the research project “Strategy for Georgia’s De-Occupation and Future Perspectives of Territorial Organisation”. The Article presents only one of the topics that have been developed in the framework of this project. In particular, what exactly, for example, Abkhaz political autonomy should look like (power structure, regional institutions, the structural composition of the central bicameral parliament, the issue of local citizenship, judicial organisation, etc.). All of this is the subject of ongoing research in the framework of the above project. This project covers an overview of as many essential models and configurations of territorial organisation as possible in the Georgian context, and is quite multifaceted.
In general, everything depends on a political decision to be taken by the Georgian state, taking into account the political rights of Abkhazians as an ethnic minority (or people), and this path may end up in the process of federalisation of the country. In this perspective, the concrete prospect of federalisation of Georgia is among the topics to be explored and is the subject of ongoing research within the framework of the above project.
As a result of the constitutional reform in 2017-2018, it was clarified that the territorial structure in Georgia would be reconsidered once jurisdiction over the entire territory was fully restored, and it should be emphasised that the de-occupation process should start with defining legal benchmarks and identifying a specific model of a territorial structure. The political process cannot outpace the legal process and vice versa.
Paper: Unitarianism with Attributes of Regionalism – Certain Aspects and Relevant Georgian Context
Author: Eva Gotsiridze
The article concerns the practice of the Strasbourg Court in exercising advisory opinion jurisdiction, which has developed since the entry into force of Protocol No. 16 to the European Convention on Human Rights. The purpose of the article is to draw initial conclusions about the effectiveness and the strengths and weaknesses of this new jurisdiction of the European Court. The article reviews not only the cases in which the Grand Chamber of the Court has already issued advisory opinions but also those in which only decisions on admissibility have been made.
The author will look at problematic issues and challenges that have already been identified in practice or are logically expected. These include requests by national courts for advisory opinions on issues already answered in the Strasbourg Court’s case-law and which they could have dealt with themselves; difficulties in adequately formulating their questions in accordance with the requirements of Protocol No. 16; the risk of change of the substance of questions asked as a result of reformulating of the questions by the Grand Chamber; the conditionality of the non-binding nature of the opinions of the Grand Chamber and the challenges that may arise from different interpretations of those opinions by national courts and parties to a case. The article critically discusses whether the new jurisdiction directly or indirectly threatens the independence of national courts, particularly in terms of the appearance of independence, as it concerns a kind of interference in the review of cases pending before domestic courts by a Grand Chamber giving guidance. The author also considers the perceived attitude of parties to a case to be problematic, which may arise if the Grand Chamber’s opinion is taken or not taken into account by the national court. The question is also raised as to whether the existence of the Grand Chamber’s preliminary opinion will have a negative impact on the admissibility of an application filed under Article 34 of the Convention in the same cases, and whether the content of the opinions will predetermine the fate of the application. Attention is also paid to procedural issues. The article contains some scepticism about the necessity and effectiveness of Protocol No. 16.
Paper: Advisory Jurisdiction of the Strasbourg Court – Effectiveness and Challenges
Author: Giorgi Nakashidze
Georgia belongs to a small group of states where it is permitted to contest the constitutionality of a treaty in force (ex post constitutional review). According to the primacy of international law, a state is not in a position to refuse to fulfil a treaty by referring to its national law, including the unconstitutionality of a treaty. On the other hand, based on the principle of the supremacy of the constitution, the primacy of international law in Georgia is not absolute at the national level, one of the manifestations of which is the ex post constitutional review of treaties. This Article analyses the relationship between the Constitution of Georgia and international law, and it is argued that the Georgian model of the ex post constitutional review of treaties, which may lead to the invalidity of a treaty in force or its norm at the national level, is incompatible with the primacy of international law and requires to modify the ex post review model in a manner that, instead of automatic invalidation, would defer to the executive or legislative branch of the government to eliminate the unconstitutionality.
Paper: Constitution of Georgia, Primacy of International Law and ex post Constitutional Review of Treaties
Author: Lavrenti Maghlakelidze
Criminal law protects, on the one hand, individual and general good from criminal infringement, and on the other hand, the rights and freedoms of accused and convicted persons, through the retroactivity of criminal law, the analogy of law, the prohibition of double punishment, and other guarantee conditions, that act in their favour. All of the above are considered to be the demonstration of general legal principles (principles of justice, legality, and humanity) in legal science.
The principle of legality, together with the principles of justice and humanity, is an essential element of the principle of legal state and is directly related to substantive criminal law. According to national or international provisions, if an act is not considered an offence at the time of its commission either under national or international law, criminal liability shall not be imposed on a person. Therefore, according to that provision, the national legislator may not adopt provisions that retroactively impose or toughen liability.
In addition to the legislator, judges shall not have the right either, when imposing liability, to retroactively apply a legal provision if it worsens a person’s condition. Checking whether a certain act violates national or international law or not, is the objective and subject of discussion by domestic judicial authorities.
This article analyses whether that important principle of legality is properly exercised in the judgments made by domestic courts. This paper focuses on the problem of the application of the retroactivity of law in terms of both, a limitation period and a conditional sentence, and the issue of liability of a person if the conditional sentence is changed or mitigated. This article also analyses practical examples of the application of the principle of non-retroactivity in relation to blanket provisions. All the above-mentioned problems are analysed based on the judgments delivered by the Constitutional Court of Georgia, after which the author provides the interpretation of Article 3 of the Criminal Code of Georgia in accordance with the Constitution of Georgia.
Paper: Problem of Non-Retroactivity in Substantive Criminal Law (Analysis of the Court Practice)
Author: Tamar Avaliani
The present Article analyses the political nature of the pardon power, its historical origins, and the essence of the mechanism to maintain constitutional order. The pardon power is an important mechanism in the hands of the Head of State to do politics and influence it. It is based on exclusive power and the idea of alienation. The Article analyses the prerogative of the Head of State to influence criminal law policy and the function of influencing justice. The Article develops a discussion about the exclusive nature of the pardon power and the necessity to interpret it according to constitutional principles. The Article analyses gaps in the Georgian model of pardon power, and dubious norms, and develops recommendations to improve the pardon power in Georgia and regulate it more clearly.
Paper: Presidential Pardon Power as a Mechanism to Maintain Constitutional Order
Authors: Marine Kvachadze, Natia Jugeli, Elene Gvinjilia
Despite significant legislative and institutional changes in recent years, combating violence against women and domestic violence remains a challenge.
Given the increasing number of facts of domestic violence in the country, in some cases, perpetrators go unpunished, as domestic violence cases are generally characterised by a lack of evidence, and it is difficult to obtain direct evidence, especially where the victim uses the constitutional right and refuses to testify against the perpetrator who is their close relative.
Although the Supreme Court of Georgia has repeatedly noted in recent years that due to the specific nature of a domestic crime, even if no victim’s testimony or document confirming the absence of claims of the victim against the accused is adduced to the case, the issue of liability of the accused must be decided based on other evidence, yet the practice of the common courts shows that special attention is paid to the victim’s testimony in rendering judgments of conviction in such cases, especially where, by the judgment of the Constitutional Court of Georgia of 22 January 2015, it is inadmissible to render a judgment of conviction based on indirect testimony.
In addition, because it is usually difficult to obtain direct evidence in domestic violence and domestic crime cases, in practice a guilty verdict is to some extent prevented by the provision of the Criminal Procedure Code of Georgia being narrowly interpreted by the Supreme Court, according to which a judgment of conviction should only be based on a “body of consistent, clear and convincing evidence”, which is interpreted by the court as requiring at least two pieces of direct evidence.
To facilitate a better administration of justice, this Article will review the criminal law of common law countries in relation to victim testimonies. In addition, the decisions of the Supreme Court and the Constitutional Court will be analysed to illustrate existing jurisprudence in Georgia.
Paper: Importance of Refusal to Give Evidence and of Indirect Evidence in Domestic Violence and Domestic Crime Cases
Author: Malkhaz Nakashidze
Yaniv Roznai’s “Unconstitutional Constitutional Amendments, The Limits of Amendment Powers” (Oxford University Press, 2017) analyses the increasing tendency in global constitutionalism on limitations of formal amendments to the constitutions. The book starts with a table of jurisprudence, legislation and instruments. It also includes the rules on unamendable provisions of various national constitutions, and a bibliography. Part I of the book concerns comparative constitutional unamendability, Part II deals with the theory of constitutional unamendability, and Part III with enforcing constitutional unamendability. The author offers his views in the conclusion concerning unconstitutional constitutional amendments.
Paper: Unconstitutional Constitutional Amendments – Review of Yaniv Roznai’s Book