One of the most important principles of the democratic state is the protection of human rights. This principle cannot be realized without an impartial and independent judiciary. The composition of courts is of high importance in terms of ensuring effective justice. By adopting amendments to the Georgian Constitution, namely paragraph 5 of Article 82 (the Jury hears the cases in the common courts according to the law) the state authority clearly expressed its political will of establishing the jury institution. Obviously, the corresponding provision could not have determined the status of the jury, their conduct, rights and obligations. Thus, later on October 1st of 2010, a completely new Criminal Code came into effect; one of the main new innovations was the Jury Institution.
This corresponding institution is often identified as a democratic value. That is why European revolutions were characterized with the adoption of the jury Institution. It is unquestionable that this institution has rich traditions and has played an important role in the restoration of trust towards the court system, as well as the inclusion of people in realizing justice and improving the quality of human rights protection. However, nowadays, when in many leading states the jury’s popularity has drastically decreased along with the number of cases heard by them, the following question is asked: how effective can the jury institution be in the modern world? This question is particularly relevant for Georgia.
The authors of the jury institution are apparently satisfied with the outcome. However, its opponents predict its failure. Their main argument is that Georgia is a small country, everybody knows each other and it will be very hard to find 12 objective jury members. Another argument is that this system might be expensive and the state unable to cover this expense. The initiators of the amendment argue that the expense is not the problem since the budget can well finance such activities. According to Georgia’s Supreme Court Head, Kote Kublashvili, the problem that arises with acquaintances is solvable:
“For many citizens in Georgia, the main thing is dignity, objectivity and not the acquaintances/friendship [dynamic] – this problem can be solved with thorough questioning of jury candidates e.g.: whether or not they have connections with the defendant, state bodies and such.”
Tina Khidasheli, a Republican Party member and a lawyer points explains, “as a lawyer and politician, I do not support a jury institution in Georgia. I think that in the 21st century adopting an institution that lost its meaning even in its constitutive states is unjustifiable and risky. Statistically, a jury trial hears only 4% of cases in the United States of A. [This number constitutes one of the highest percentages] of jury-heard cases in the whole world. As a politician, I think that by adopting this institution, the government wants to impose responsibility on the people for illegal decisions. If up until now, the government was blamed for the illegal decisions of the judiciary, people will be blamed from here on in.”
The Jury Court consists of 12 basic and 2 substitute judges. They are selected at a jury session from the common list of voters. According to the new code, the jury must possess the language of the criminal proceedings. This means they must possess the state language and live in the territory which belongs to the jurisdiction of the court where the process is taking place. In addition, people with limited physical and intellectual abilities will automatically be excluded from consideration.
According to the new Criminal Code of Georgia, an individual will not be able to participate in the criminal proceeding if he/she is a state official, an investigator, policeman, is a member of Georgian armed forces, a religious figure, a participant in the criminal proceeding in the corresponding case, a defendant, or anyone who has been assessed with an administrative fine due to minor drug use. Lawyers, psychologists and others who are potentially able to utilize their professional experience or views are also not obligated to serve on the jury.
As for the social guarantees, both the jury and a jury candidate have a right to receive the state payment for all the expenses associated with their obligation of jury membership in a timely manner. The public figure and the employee of a state-financed organization are maintained with the work place and payment, but the corresponding does not concern the officials employed in the private sector. In fact, the law emphatically states that the court is obligated to individually envisage the lawful interests of the jury, and in the case of such interests, release him from the duty of jury member.
Except for the above mentioned incompatibility that gives rise to the preclusion of an individual from being a jury participant, the parties by their initiative and with the consent of the court may preclude a concrete jury. The jury member can also preclude himself/herself if: a) he/she has been on the jury for the past year b) fulfils work- changing of which will cause significant damage; g) because of his/her state of health d) has been abroad for a long time or is leaving Georgia; and e) is older than 70 years of age.
In case the jury (jury candidate) does not fulfill his/her duty, the responsibility will be imposed according to Georgian legislation.
“Being on the jury is an obligation, but a very honorable obligation” – stated Kote Kublashvili, the Deputy Head of the Criminal Chamber of the Georgian Supreme Court at a jury presentation. According to Human Rights Center lawyer, Nino Andriashvili, “The criminal case where the jury will operate is the gravest crime of all. For example, in a case with a deliberate murder and where the verdict depends on the jury. If we consider that an 18-year-old individual given the right to be a jury member has an average education or incomplete higher education, we can conclude, that the verdict taken by such people will not be legally refined. Specifically, there is the problem of achieving the correct evaluation of the available evidence. Another important factor that should be taken into consideration is the security of the jury and the danger of pressure upon them. I think there are no protection mechanisms provided to them in Georgia today.”
The lawyer of Article 42 of the Constitution Manana Kobakhidze finds it hard to evaluate the jury institution because of the absence of the relevant practice. However, she thinks that it has a range of risks that might cause irremediable problems for the state. “Generally the jury institution is a characteristic of the states of common law, but we are part of continental law. I think this institution was artificially transferred to Georgia so the judiciary could have been more independent. This way the judiciary wants to free itself from the responsibility and pass it on to the public in order to place blame on them for illegal decisions. On the other hand, the courts are experiencing a great deal of pressure by the prosecution nowadays and what can be worse?”
Public opinion is also divided regarding the jury institution. This part of the public is skeptical of the new initiative and considers that any dispute must be solved by a competent judge. Another part welcomes the direct inclusion of society in justice implementation and considers it a precondition for achieving objective and democratic decisions.
Sopo Getsadze, 22-years-old: “I do not support the adoption of the jury institution. I think that one qualified judge can decide any criminal case better than 12 non-qualified jury members.”
Nino Peradze, 28-years-old: “I welcome the adoption of the jury institution in Georgia and think that in order to attain a fair verdict in a criminal case the qualification of lawyer is not necessary.”
Another reason for the contentious discussions regarding the jury institution operating in Georgia revolves around the possibility of a verdict coming in contradiction with Article 6 of the European Convention on Human Rights (ECHR): “The jury makes the verdict without any argumentation. That is a violation of Article VI of ECHR (the right to a fair trial). Essentially, the jury is free of any legal argumentation and thus, the violation of Article VI is afoot,” – stated Manana Kobakhidze.
It is important to mention that the ECHR has just delivered a judgment in the case of Taxquet v. Belgium (Application no. 926/05). In this case the applicant submitted that his right to a fair trial had been infringed upon in view of the fact that his conviction by the Assize Court had been based on a guilty verdict which did not contain reasons and could not be appealed against to a body with full jurisdiction. He alleges a violation of Article 6 § 1, the relevant part of which provides: “In the determination of … any criminal charge against him, everyone is entitled to a fair … hearing … by [a] … tribunal …” As the case had been extremely complex in both factual and legal terms, it had been difficult for twelve jurors without any appropriate legal qualifications to be able to make a wholly lawful assessment of the merits of the charge against him. The lack of reasoning in the guilty verdict precluded any possibility of an appropriate judicial review of the reasons for which the jury’s finding had been based. The ECHR maintains that the applicant was not afforded sufficient safeguards enabling him to understand why he was found guilty. Since the proceedings were not fair, there has accordingly been a violation of Article 6 § 1 of the Convention.
Shorena Latatia
