The working meeting of the Legal Issues Committee in view of enforcement of the order of the Constitutional Court
On May 13-14, Borjomi hosted the working meeting held by the Legal Issue Committee, Supreme Court, Ministry of Justice and High Council of Justice within USAID-funded PROLoG. The meeting was dedicated to Development of Legislative Change in view of Enforcement of the Order of the Constitutional Court of February 15, 2017.
The Order declares the normative context of the paragraph 41 of the Article 36 of the organic law on Common Courts as unconstitutional, which envisages appointment of the person as the Judge of the Court of Appeals and the Regional (City) Courts with the term of 3 years who is the incumbent or former judge and has at least 3 years of similar experience.
The Chair of the Committee, Eka Beselia and the Chair of the Supreme Court, Nino Gvenetadze opened the meeting. The meeting aimed at development of the legislative change in view of enforcement of the Constitutional Court Order. The meeting was attended by international organizations and the expert, Judge Timothy J. Baland.
Eka Beselia participating in Public Forum dedicated to the judicial reform
The Chair of the Legal Issues Committee, Eka Beselia participated in the Public Forum on “Judicial system of Georgia: Reform Outcomes and Perspectives” organized by the Coalition for Independent and Transparent Judiciary.
In her speech, she noted that three stages of judicial reform shall be followed with the exact diagnosis and accurate planning of the fourth stage. “The Legal Issues Committee declared that the judicial reform and enhancement of the judicial system are main priorities. All the issues under the Committee competences are important but the priority is conferred to judicial reform continuation and support. Everything is comparative and we shall compare the current situation, where we are now to some other situation. Naturally, we see the dynamics and release the grave situation we were in, moving forward to progress but we do not put full-stop and state about accomplishment of the reform after these three stages. We continue the reforming within the system and monitoring of the process. Particularly important factor I consider is to make the exact diagnosis after three stages, to make accurate assessment of the results, of the gaps to be eliminated, enhanced, corrected and to accurately plan the fourth stage”.
The Court is ready to see the real situation and along with the parties concerned make steps to enhance judicial system and increase independence thereof. “I am full of hopes for the process and believe that we are able in the shortest time to deal with the problems. It requires rational and correct decision-making in the forms and with the methods allowing obtaining optimal results. We are committed to it”.
She thanked EU and USA for support of enhancement of judicial system in Georgia. The Chair of the Coalition, Ana Natsvlishvili; Chair of the Supreme Court, Nino Gvenetadze; Deputy US Ambassador, Nicholas Berliner and the EU Ambassador, Janos Herman also addressed the attendees.
The forum concluded sundry panel discussions. E. Beselia participated in the discussion on Guarantees for Independence of Judges and spoke about efforts for creation of these guarantees, including: improvement of legal procedures of appointment of the judges, increase of social guarantees of judges, 3-year probationary period of judges, business-trip rules of the judges etc. She introduced the record in the draft Constitutional Changes regarding independence of judges.
The Coalition introduced the study results providing reform analysis, overview of the latest tendencies in the judicial system and consideration of the issues related to selection and appointment of the judges, as well as probationary period and life-tenure appointment, number of judges and their specialization, their estimation and promotion, administration of the Court and management etc.
The study is supported by the GYLA, TI-Georgia, Human Rights Training and Monitoring Center and Partnership for Human Rights.
The forum was held by means of USAID-funded PROLoG implemented by EWMI
Eka Beselia echoed the statement made by the President at the public consideration of the draft Constitutional Changes
The Chair of the Legal Issues Committee, Eka Beselia echoed the statement made by the President at the public consideration of the draft Constitutional Changes and stated that the President tries to demonstrate that allegedly his authorities have been deprived due to the personal attitude thereto. “He reveals the situation as if upon direct election of the President he will have the guaranteed victory”.
Even under the current Constitution, the authorities of the President fail to give the legal basis for direct elections. “The real situation is that in the event of direct election of the President, the candidate of the ruling political force “Georgian Dream” will win. I doubt that the incumbent President in the event of direct elections, has the chances for victory. We refuse the real possible outcome Georgian Dream candidate would achieve in case of the direct elections”.
The direct elections are related to unjustified expenditures from the budget. “In the event of indirect elections, unjustified expenditures will be spared in the budget. The mandate obtained by the ruling political party upon the elections is binding implying change of the current incorrect and contradictive norms in the Constitution, change of the model we have today”. It is the system transition to the new Parliamentary model envisaging necessity of the rule of Presidential election.
The sitting of the Legal Issues CommitteeThe Committee discussed the draft on Imprisonment Code and the accompanying drafts which were to be specified. According to the communicated edition, visual surveillance on short rendezvous has been replaced with e-surveillance and the record envisaging visual surveillance without hearing and after due notification has been specified. The particular risk convicts also will be eligible for long rendezvous. The “criminal past” shall be replaced with the “facts of commitment of crime in the past” in all the drafts. According to the current norm, the high risk convicts are eligible for 5 phone call on preliminarily agreed basis. The changes do not envisage inclusion of the hot line of the Public Defender into the list. The main novelty is set up of the Agency for Preparation of Convicts for Release for low and average risk convicts, allowing them solution of family problems until their full release, obtain education, find a job and arrange document-related problems to facilitate to their further integration into society. The change shall apply to the low and average risk convicts the penalty term of which does not exceed 6 months. The draft also replaces detention with house arrest and envisages other changes concerning money transfers for the convicts. “I am glad that we agreed on lots of issues upon the I reading and improved the changes and enhanced human approach. It is important when we deal with the convicts”, - the Chair, Eka Beselia stated. The Committee supported the draft. The Committee considered the CoE Convention on Prevention and Elimination of Violence against Women and Domestic Violence and the drafts on: Elimination of Domestic Violence, Protection and Aid of the Victims and on Criminal Code. The Convention signed on June 19, 2014 is one of the most specific documents on human rights in Europe aiming at elimination of discrimination against women and emphasizing the guarantees for the women victims of violence committed on gender basis. The Convention aims at protection of women from violence and elimination of domestic violence. It establishes three independent definition of violence: 1. Violence against women; 2. domestic violence; 3. Violence against women on gender basis. The Istanbul convention obliges the state to conduct gender-sensitive policy to be expressed in effective and complex and coordinated politics to protect the rights of the victims. NGOs and civil society shall be involved in the policy. The states shall assume to entrust conduct of hereof policy to the uniform coordination agency. As the reporter, Deputy-Justice Minister, Alexander Baramidze stated, the convention is enclosed with up to 30 drafts, though the most essential changes are to be introduced to the law on Elimination of Domestic Violence, Protection and Aid of the Victims and on Criminal Code. The draft changes the title and all the Articles providing the term “domestic violence” and replaces them with the term “violence against women and domestic violence”, implying transition to the new stage in terms of prevention and elimination of violence protecting women in and beyond the family. The new Article shall be added defining violence against women as all the violence acts on the gender basis resulting in physical, sexual, mental or economic abuse and torture of women, including menacing, coercion or arbitrary deprivation of freedom. The draft reformulates the concept of the oppressor, which can be as a family member so another person. The draft changes the suspension order enactment and annuls 24-hour obligation to submit the order to the Court for enactment thereof. The draft on Criminal Code envisages addition of the Article defining criminal responsibility for forced sterilization and the Article envisaging criminalization of female genital mutilation. Two new norms shall be added – “follow”, defining criminal responsibility: illegal surveillance of the family member or another relative in person or through the third person, as well as undesired communication through phone, electronic or other means or any other deliberate action taken place on systematic basis and entailing mental torture of the person, forcing him/her drastically change his/her lifestyle – to be fined or imposition of public labor of 120-180 hours or detention up to 2 years. The Committee decided to get resumed with consideration in two weeks. “There are the issues to be specified. It is a very important and time-consuming package. We get ready for ratification of this convention for a long time and we have great expectations”, - E. Beselia stated. The Committee heard the report on activity for 2016 by the LEPL Legal Aid Service, introduced by the Director, Meliton Benidze. In 2016, the LAS Bureaus have received 12220 cases. 75% of them were attributed to the criminal sphere, 17% - to civil and 8% - to administrative spheres. Compared to 2015, the number of civil cases increased with 6-17% and administrative cases with 6-8%. The LAS Bureau participated in criminal case considerations: 58 criminal cases were acquitted (2015 – 48); 23 cases – partially acquitted (2015 – 18); criminal prosecution terminated on 169 cases (2015 – 184); diversion on 195 cases (2015 – 115). Protection of juvenile interests increased with 200%. The report provides that Juvenile Justice Code entered into force envisaging the LAS to start protection of not only juveniles but rendering the aggrieved and witness children, as well as for convicts of 18-21 with legal aid. M. Benidze spoke about challenges and noted that the central staff shall be reinforced and analytical works shall be enhanced. “If we have the budget support, we will be able to meet other challenges as well”. “The Committee will render support on budget issues to the Legal Aid Service. We will continue active cooperation with you to provide our citizens with high quality service – free legal aid”, - E. Beselia stated. The Committee gave the positive estimation to the report.
Legal Issues Committee met with the members of the campaign “Es Shen Gekheba”
The Committee met with the civil public movement “Es Shen Gekheba” members to discuss the issue on covert surveillance. The meeting was attended by the First Deputy Chairperson, Tamar Chugoshvili and the Majority Leader, Archil Talakvadze.
As after the meeting, the Chair, Eka Beselia stated, the Committee has already set up the working group to develop the changes to the law on E-Communications, Criminal Code of Practice and other respective laws. “We all agree that security of our citizens shall be guaranteed and ensured by the state by means of all respective instruments to prevent disproportional interference in privacy. We all agree on protection of this balance and we also agree on development of additional control mechanisms other than Personal Data Protection Inspector and the Court which in any case will remain as an external control phase. We also plot to increase the Parliamentary oversight function”.
As soon as the draft is put to development, the main question will be structure of the new model and the venue of the operative-technical undertakings and their legal nature. “We agree on the objective, forms and implementation means that this balance shall be protected. All leading European states keep this path and we cannot hold the experiments in Georgia as we have complex geo-political location and it might increase threats”.
The system shall be established to allow the state effectively implementing protection of security of citizens and increasing privacy guarantees. “The Committee has already developed the survey of the models of some countries, including Germany, France, Great Britain, USA and Belgium. We studied the ways of protection of security and privacy. Due to increase of security scales, many countries enhanced preventive measures and we shared this information to NGOs”.
Deriving from the Order of the Constitutional Court, the Parliament is to develop the respective legal norms till March 31 on surveillance.
The campaign “Es Shen Gekheba” has developed the respective drafts on: Secret Investigations and E-Surveillance Material-Technical Provision Agency; E-Communications; Personal Data Protection Inspector; Counter-Intelligence Activity; State Security Service; and Criminal Code of Practice, as well as the new draft on Parliamentary Oversight Council.
The sitting of the Legal Issues Committee
The Legal Issues Committee supported the draft resolutions with majority of votes. According to the first draft resolution, continuation of consideration of 32 drafts initiated in the preceding Parliament has been recognized expedient as decided by nine Committees.
According to the second draft resolution, continuation of consideration of 9 drafts initiated in the preceding Parliament has been recognized inexpedient. The draft resolutions shall be submitted to the Bureau to be considered at the plenary session.