Constitutional Amendments
The aspiration of the authors of the new Constitution was to reconsider and limit the President’s authority of dismissing Parliament in order to advance the separation of powers. However, the situation remains the same; the new Constitution does not really balance the President’s redundant authority, and following problematic issues remain the same:
1) The Georgian President is authorized to appoint the Prime Minister and other Ministers without the consent of Parliament;
2) In case the newly elected Parliament declares no confidence to government, the President has the right to leave the Prime Minister in office and give him consent to appoint Ministers;
3) The President is authorized to halt or cancel the actions of government departments if they come into conflict with the Constitution, international agreements and/or legislation;
4) After the President’s inauguration, the government withdraws its authority before the President, but this measure is not taken when electing the Parliament.
There are many other problematic issues which violate the principle of separation of powers. Hence, the aims and objectives of the draft law are unachieved (for detailed information, please visit: http://humanrightshouse.org/Articles/15234.html).
According to the amendments made to the Organic Law on Citizenship, an individual can relinguish his Georgian citizenship only when he/she receives citizenship of another country. Previously, an individual had to relinguish Georgian citizenship in order to submit the request of citizenship to another state. If another state rejected his/her request, the applicant would have become a person without citizenship. This legislative amendment protects people from losing citizenship in case they are rejected citizenship of another state. The President’s Decree on Leaving Georgian Citizenship takes effect only after there is a document issued granting citizenship of another state. Before receiving this document, an individual is still considered to be a citizen of Georgia,” – stated Deputy Minister of Justice, the head of Civil Registry Agency Giorgi Vashadze at the public press conference.
According to the amendment made to the Law on Public Service on December 4th of 2009, since January 6th of 2010, the labor book and the list of past services have been abolished. It is no longer necessary to require a signature regarding the compliance to the requirements established by the law and the labor book. The labor books issued before the activation of the corresponding law maintain the effect. Every municipality needs to ensure the compliance of sublegislative acts on the labor books and a list of services to the corresponding law two months after the abolition of the labor books. Moreover, beginning January 6th of 2010, labor books will no longer be issued.
The corresponding amendment may seem positive today, as it makes it easier for an indivual to be appointed to a job. This is problematic however. People are given pensions according to their time of service, but if the organization where they worked no longer exists and there is no relevant record in the archive, how can a person prove that for years they really worked there?
On October 1st of 2009 the Council of Europe Venice Commission issued on its web site a conclusion regarding two of its members (www.venice.coe.int) pertaining to the amendments carried out by the Georgian Parliament this Summer. These amendments concerned the Law on Association and Manifestation, Administrative Offenses and Police.
One of the Irish members of the Venice Commission, Filona Flanagan noted with Netgazeti that the Georgian Parliament made legislative amendments too quickly, and so the opposition parties blocked Rustaveli Avenue with the request of President Saakashvili’s resignation. According to Flanagan, the legislative amendments are almost always inadequate when they are adopted for the suppression of concrete incidents. In addition, the Georgian Parliament did not wait for the conclusion from the Venice Commission. The Head of Parliament noted in August that the Georgian Parliament would have foreseen the conclusions of the Venice Commission and would have changed the already adopted amendments in case the Commission expressed any concerns.
According to the amendments made to the Law on Assembly and Manifestation, it is prohibited to block the street if it is not necessary according to the number of participants of an assemble or manifestation. Considering the that the number of protest participants is always disputable and that it is practically impossible to precisely regulate this matter, as well as the fact that it is prohibited to block the street with artificial barriers and constructions, it can be concluded that it will not be possible to put up tents anywhere without paying significant fees.
The Georgian Constitution gives us the right to publicly gather without arms either indoors or outdoors and without prior permission. Necessitating the prior notification of the authorities may be established by law in cases where a public assembly or manifestation is held on a public thoroughfare.
With regard to the amendments made to the Code of Administrative Offenses– specifically the increased prison term from 30 days to 3 months. This comes in contradiction with democratic development: all international organizations (European Parliament, European Commission, UN, OSCE, Representatives of The Council of Europe in Georgia and Representatives of the European Commission) indicate to government that the arrests and prison terms must be used as a last resort measure.
According to the amendment made to the Law on Police, law-enforcement officials are only legally authorized to use non-lethal arms. There is nothing illegal in itself in this initiative. It is up to state to decide whether or not to let such arms be used by the law-enforcements officials, but it raises question why this right was not given before.
The government explains that it was necessary to initiate this legislative change in order to make this matter more precise and understandable.
Besides, law-enforcement officials have the right to conduct raids in times of emergency or instances of war. While conducting a raid, the police have the right to stop and frisk an individual and their means of transportation. The amendments have added one more word – “frisk.” Georgian legislation does not have an exact definition of this word. In reality it means “search,” which is disguised under the word “frisk.” This provision gives law-enforcement officials the right to check- or ‘frisk’- anyone who is found within the proximity of the place for which the raid is taking place. The Georgian Constitution and Criminal Code strictly determine when the search can take place – when an individual is a suspect in the crime. However, according to the corresponding law, any citizen, even an ordinary passerby can be searched.
New legislative amendments restrict the availability of public information. In international courts the cases filed against Georgian high officials and the state of Georgia will not be made public. Thus, the General Administrative Code determines the guarantees of the freedom of information. The relevant chapter does not concern the activity of those executive bodies- the work of which is connected to international arbitration, proceedings in foreign countries or international courts and the participation of the state of Georgia in the case hearing. It is admitted to restrict the freedom of public information if this information belongs to private, professional or state secrecy or if the publication of this information may violate the principle of party competition or hinder the effective criminal proceeding.
Criminal Procedural Code
In September of 2010, Georgian Parliament adopted the amendments to the new Criminal Code in an expedited way, behind closed doors, and by violating the principles of Parliament regulation. Thus, it has deprived the interested parties the opportunity to express and defend their opinions on the planned changes.
The transparency of the legislative process is particularly important when the legislative changes may have a direct and substantial influence on the rights and freedoms of citizens.
The following changes have been implemented: According to the new Criminal Procedural Code, the charge-sheet has been abolished. The prosecutor will not read it at the trial. Prior to the new criminal procedural code, the detainee or ‘suspect’ was assigned the status of defendant only by the decision of the court. In conjunction with the new crimanl code, suspects are now deemed ‘defendents’ which is effective at the time of detainment. Put differently, the status of ‘suspect’ and ‘the accused’ are now united under the status of ‘defendant’. The prosecutor will not request penalization, just recognition of guilty. The judge independently determines the size and type of the sentence.
There are also changes in the length of prison terms. Prior to the amendments, prison terms were 90 days. It has now been reduced to 60 days. At a minimum, the use of prison terms must be eliminated. The agreement on home arrest and proper conduct has been reestablished. The minimum amount of bond payment has been diminished by half and now amounts to 1000 GEL. A new term has been introduced – a magistrate judge will discuss only compulsory measures (until now the same judges discussed both compulsory and substantial cases). The admissibility of evidence and the dates of case hearings are determined by the judge from the previous court session. The judge no longer has the right to ask the witness questions. The status of witness will operate only in the court (however, this Article will take effect later, on October 1st of 2012). During trials, the following individuals can have the statuts of witness; an investigator, a prosecutor, a victim, a defendant, expert and an interpreter. The victim is no longer a party that confirms that the new Code violates the principle of equality. For instance, the mother of the murdered will be interrogated as a witness and not as a victim. Thus, she will not be able to appeal against the decision; at best, she can act as a witness in court. All this singlehandedly conflicts with the Constitution, international conventions and represents a human rights violation. The interests of the victim are defended by the prosecutor (It used to be the same way before, but victim had right to ask questions to the defendant or witness during the criminal proceeding). Now the prosecutor determines the victim. The prosecutor is obligated to preliminiraly inform the victim of the procedural agreement. In other words, provide him the right of discretion. The prosecutor makes the decision on whether or not to prosecute the case; the victim’s position is not relevant for him. He has the right not to raise the criminal prosecution at all. The victim cannot defend his right at such a moment. For instance, if the mother finds out that the murder of her child is qualified as a lighter crime but in reality the crime has been severe, she will not be able to appeal against this in the court. She will just have a right to appeal once to the lead prosecutor, but if the appeal is rejected she will not be able to restore her violated rights.
The majority of defendants are not aware of the law. According to the new law, the defendant needs to submit a complaint independently, as his lawyer does not have the right to appeal against the case. In fact, the defendant may not even understand what the verdict says. The prison administration transfers the complaint to the court.
Finally, the Forensic Expertise conclusion is the main evidence in any case, thus, it is very important who issues it. According to the new law, the court examines only the conclusion issued by the state expert service, and this is a clear example of the violation of the equality right.
The Jury Trial is an approved method used in many leading states. This method facilitates civic participation in determining the outcome of legal verdicts and has reaped positive results. As the lawyers Irakli Kotetishvili and Tina Khidasheli noted while talking with the magazine Liberali, “the jury institution means implementing people’s justice when it is not the only the judge deciding the question of individual guilt but ordinary citizens as well. They (the jury) hear the sides of the defense as well as the prosecution, attend and observe the presentation and evaluation of the evidence, and in conclusion, make a decision on whether the defendant is guilty or not based on a majority vote.”
According to transitional provisions, until January 1st of 2011, the jury institution will operate only in the Tbilisi City Court and will hear criminal cases belonging to its territorial jurisdiction envisaged by Article 109 of Criminal Code (deliberate murder under aggravating circumstances).
The jury is appointed by a random method. 30 people are chosen from a common list of Georgian voters. The list is then screened. Representatives of the police, state departments, those within the spiritual community, as well as psychologists, psychiatrists and others that are not included on the list are prohibited from serving on the jury panel. Those who refuse to participate in the trial after being called upon for jury duty are administered monetary fines. If the jury member is not present at the trial due without a legitimate reason, a fine of 1000-1500 GEL will be imposed.
Code on Imprisonment
The number of people who can visit a prisoner has increased. Up until now, only the following peope were permitted visiting privileges: a spouse, a child, mother and father. Now this group has been increased to allow the visitation of the aunt, uncle, cousins, as well as nieces and nephews. There are a lot of prisoners who have neither mother, nor father or spouse. In these cases, these people are left without a right of date. From now on, this shortcoming has been abolished. Despite the prior prohibition, for Georgians, cousins are considered to be very close relatives. The length of visits has also been increased; visits have no been increased from one hour maximum to two hours. Juveniles have a right to visitation four days in a month, women prisoners – three times a month. The extent and severity of the crime does not affect these visitations. As for the male prisoners: the prisoners in closed department have the right to one visitation date per month and the prisoners in open departments – two dates. Long dates can be fixed once in three months for 2 days only for juveniles and women. The right of family life cannot be realized without long dates. The members of prisoner’s family, including spouses have the right to use only short dates. These meetings mostly occur with a dividing barrier, glass or through the telephone. By all means, short dates violate the right to family life. One of the reasons is due to financial problems. Lack of finances as a grounds for the abolition of rights which are otherwise guaranteed by the Georgian Constitution and the European convention is not a fair and legal precondition. There is a high expectancy that the prisoner will not be able to sustain a family if he/she does not have the right to live with his/her spouse, and is deprived of the right to long visitation dates with family members.
Tax Code
The new tax code began operating from January 1st of 2011. Numerous amendments have been made to it. It is disturbing to note that according to the new tax code, the salaries given out in the frameworks of grants are taxed by income tax. Up until January 1st of 2011, the income received by NGOs as a grant that paid the salaries and honorary was taxed by 12%. Now it is taxed by 20%, the same rate according to which the business sectors are taxed for instance. The main problem observed here, is that the long projects operating in NGOs are planned according to the current Tax Code. If an organization had a project envisaged for several years and a salary of an official during these years was for 500 GEL, after paying taxes, the employee’s net salary would be
440 GEL. After incorporating the latest amendments, this official will now receive only 400 GEL. To be sure, these amendments mean that the situation for all persons employed in the NGO sector will worsen. The NGOs will be forced to limit the number of employees.
Natia Chachanidze
