Roundtable on Constitutional Court's Decision of 15 September in Giorgi Ugulava's Case

On 20 November 2015 the Public Defender held a roundtable discussion on the theme: implementationof the Constitutional Court's decision of 15 September 2015 in the case of “GiorgiUgulava v. Parliament of Georgia” by the common courts. The event was attended by judges of common courts, members of the High Council of Justice and representatives of international and non-governmental organizations.

The Public Defender considers that the Constitutional Court's decision of 15 September 2015 established a standard that must be observed by the state in criminal proceedings in order to ensuredefendant’s right to freedom. The Constitutional Court’s decision sets specific conditions, which aim to strengthen state’s obligation to justify the extreme necessity for restricting freedom. In this regard, the Public Defender considers it appropriate that a dialogue be held between representatives of judicial and legislative bodies.

At the meeting Deputy Public Defender Natia Katsitadze reviewed the Public Defender's recommendation onestablishing the kind of judicial practice that will ensure the use of detention as a pretrial measure in compliance with the constitutional principle. She noted that the Constitutional Court's decision of 15 September should necessarily be executed by common courts. She also underlined that formal approach to the decision would be wrong and would not serve protection of the constitutional right to inviolability of freedom.

The Constitutional Court’s decisionof 15 September clearly defines the preconditions that must be necessarily observed to ensure the right to inviolability of freedom guaranteed by the Constitution of Georgia. Detention of a person shall not exceed 9 months, regardless of the number of charges filed against him - this is a general norm, which applies to all criminal proceedings.

Detention may exceed 9 months only if thereare exceptional circumstances: 1. If a person commits a crime while in detention; 2. If a person had committed a crime before being ordered to detention, though grounds for filing charges for that crime became known only after indicting that person for the first crime. The court, regardless of whether the offense was committed before or after the detention, must necessarily evaluate the sequence of investigative activities and the internal between revealing grounds for presenting charges and filing charges.

Thelogic of the Constitutional Court’s decision rules out repeated pre-trial detention if there is unreasonable interval between revealing grounds for presenting charges and filing charges.

Common courts are bound to developproper judicial practice and not to allow incorrect/ incomplete interpretation or definition of the Constitutional Court's decision. Otherwise, there will be violation of the defendant’s legal rights and deprivation of liberty on unconstitutional grounds.

The Public Defender considers that the Constitutional Court's decision was improperly implemented by the common courts with regard to G.O. and G.U. In both cases the court improperly assessed the circumstances which, according to the decision of the Constitutional Court, were essential for observance of the 9-month term of pre-trial detention.

Participants of the roundtable reviewed the current practice in the common court system and also talked about the challenges that followed the Constitutional Court's recent judgments. The discussion showed that there was no common view of what could be considered as the comprehensive implementation of the Constitutional Court's decision of 15 September 2015. Accordingly, the Public Defender believes it is necessary to continue discussion of the mentioned issue through the involvement of the Constitutional Court judges.


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