Venice Commission adopts pivotal Georgian draft law
By Ana Robakidze
Thursday, June 20
The Commission was addressed by the Minister of Justice of Georgia and the Director General of Human Rights and Rule of Law of the Council of Europe in May 2013 and asked to provide an opinion on the draft Law on Temporary State Commission on Miscarriage of Justice, which shall be created to review the cases that have already been adjudicated by the courts.
There some questions can be raised over the idea that a massive examination of cases of miscarriage of justice will be carried out by a non-judicial body. The Commission wants to be sure that creating the additional mechanism to monitor judicially issues will not harm the separation of powers and the rule of law in the country.
“The very idea of a process of massive examination of possible cases of miscarriage of justice by a non-judicial body raises issues with regard to the separation of powers and the independence of the judiciary as enshrined in the Georgian Constitution. It may only be conceived in very exceptional circumstances. If the Parliament of Georgia were of the opinion that indeed such circumstances occur nowadays in Georgia, it is evident that the mere re-examination of cases without a profound reform of the judiciary would be insufficient. Any such measure would have to be accompanied by a wider reform of the judiciary in order to strengthen its independence and impartiality,” the document says.
The commission is concerned over the fact that the Georgian government decided to create a non-judicial body for reviewing criminal cases.
“There is a red line which must not be overstepped, lest Georgia fail to live up to standards of the Rule of Law: any decision on the determination of criminal charges must be adopted by a court,” the document says.
The Venice Commission will not intervene in identifying the task of the state commission and take a position on whether in fact there were miscarriages of justice in Georgia nor on whether such miscarriages of justice were of a systemic nature and require the creation of this Temporary State Commission. The Venice Commission will only try to ensure that the mechanism proposed is in conformity with the principles of separation of powers and independence of the judiciary enshrined in the Constitution of Georgia.
The document also advises the Georgian government to reconsider the actual name of the state commission. According to the document, the name of the commission should be changed to a more neutral title. The Commission considers that the temporary state commission has the task to review miscarriages of justice and offers the government to create a “Temporary Commission on Criminal Cases”.
The opposition United National Movement (UNM) party welcomes the joint opinion of the Venice Commission. MP from the UNM, Gigi Tseretli, said he agrees with the document, that the state commission may threaten the independence of the judicial system. Tsereteli says the government can even turn the commission into a tool against its political opponents.
However, Chairman of the Legal Committee of the Georgian Parliament, Vakhtang Khmaladze, commented on the Venice Commission conclusion and said that there is no threat to the rule of law, or to the separation of powers. “None of the court decisions will be abolished by the State Commission itself, neither will the commission adopt new decisions (on criminal cases),” Khmaladze said. According to him, the state commission will study each case and reveal new related circumstances, if they exist. After the commission finalizes its work, cases will be forwarded back to the court for the further discussion.
The Supreme Court of Georgia released an official statement and welcomed the fact that the “Venice Commission, while elaborating its recommendations, gave the legally correct evaluation to the role of the Court during the implementation of the Judiciary.” It is very important for the Supreme Court that the commission advises the government to leave the final decision on the determination of the criminal charges in cases which are reopened to the Georgian court.