The working meeting of the Legal Issues Committee in view of enforcement of the order of the Constitutional CourtMonday, 15 May 2017 12:06
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.
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 ChangesThursday, 11 May 2017 14:52
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 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 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.
Today, on November 21, the Committee held the first organizational sitting. MPs developed the Regulation defining the authority of the Committee, rules of activity and decision-making, authority of the Chair, Deputies, Members and other activity-related issues. According to the Chair, Eka Beselia, one paragraph has been added to the Regulation, envisaging authority of the Committee to set up or engage the Group of Advisors. It is not the activity subject to remuneration but will be one of the formats for enhancement of Committee activity from external experts.
As E. Beselia noted, the working group is to be set up to further develop the Regulation. MPs elected the First Deputy Chair and the Deputy Chairs – Vano Zardiashvili as the First Deputy nominated by the Chair. As she stated, majority has the quote to nominate one more candidate for the position of the Deputy.
The Committee elected the member of the Patriots of Georgia, Nato Chkheidze from the opposition as the Deputy supported by 8 MPs. Another candidate is the member of minority, Otar Kakhidze supported by 4 MPs. Majority, in line with the Rules of Procedure, is authorized to nominate one candidate to the Deputy and the minority – one Deputy.
The Committee considered and supported the Code of Conduct in Election Period, initiated by: Free Democrats; Georgian Dream; Republicans; Georgian Dream-Entrepreneurs; Georgian Dream-Conservators; National Forum. The draft envisages mandatory implementation of the provisions in the statement of the electoral subjects and implementation thereof by the leaders, members and activists thereof serving the pre-condition for peaceful and democratic electoral environ.
The draft envisages obligation of the political subjects to intensively cooperate with monitoring missions as in pre-election so during the elections, transparently providing them with all necessary information. The draft also envisages importance of de-politicization of the official state, municipal and other public services, police and paramilitary instances and inadmissibility to use administrative resources.
The draft envisages obligations to media and the state. The state shall provide implementation of exclusive obligations to prevent and eliminate violence, and media shall adhere to equal, unbiased treatment principles to all political subjects.
As Victor Dolidze stated, the Speaker was actively involved in coordination and the Prime Minister supports the process. He thanked the Speaker, PM and the President for support.
The draft on Tobacco Control by Guguli Magradze envisages:
- Medical notification shall mandatorily include the pictogram;
- Description of the term “facilities”. The term is entailed with the circumstance that the draft envisages tobacco prohibitions in some facilities – in any facility except residences, tobacco smoke research specialized lab devices and penitentiary departments;
- Description of the term “public transport”. The term implies any transport used for transportation of the society for the commercial profit, including taxes;
- Prohibition of tobacco product, accessories and other units to be exposed in the shop-windows, shelves or otherwise to be visible from outside;
- Prohibition of tobacco product, accessories and other units to be distributed through lotteries or other gambling;
- Definition of responsibility of the top management of the agencies on prohibition or limitation of smoking;
- Transitional provisions defining the hotels to be granted the term till July 1, 2017 to permit 50% of rooms for smoking, as well as public instances, cafes, barber shops, shops to allocate 20% of the territory as smoking area, till January 1, 2018 the offices, factories, workshops, warehouses, terminals and stadiums to allocate smoking areas.
The draft is entailed with the alarming scale of mortality, disease rate and economic load, as well as high index of active and passive tobacco usage, also the directives and recommendations under EUAA. The Committee did not support the draft. 4 MPs voted for and 1 voted against.
The Committee considered with the I reading the draft on Civil Code of Practice, aiming at elimination of gaps in functioning of jury. The draft envisages:
- Increase of territorial coverage of the Courts of jury. The initial jury system covered Tbilisi and Kutaisi, further scheduled to be extended country-wide. Hence, the Criminal Code of Practice is to be supplemented with the respective article envisaging the jury courts in Tbilisi, Kutaisi, Batumi and Rustavi city Courts, Zugdidi, Telavi and Gori regional Courts;
- Enlargement of the case area of jury;
- Redefinition of incompatibility of jury. The person prohibited as jury on criminal cases if he/she is burdened with any basis of deterrence thereof under the Criminal Code of Practice and/or: he/she is a state-political figure; military servant; clergyman; participant of the criminal case process; convict; administrative detainee for drug-usage.
The following professions have been withdrawn from the prohibition list: investigators, policemen, lawyers, psychologists and psychiatrists.
As the Parliamentary Secretary of the Government, Shalva Tadumadze stated, the jury has been established in 2010 within criminal system reform. The first jury participated in the trial in 2011, though currently jury is less attended. The draft aims at elimination of gaps. The draft was entailed with the transitional norms regulating temporary coverage of jury till October 1, 2016. Various remarks have been expressed: unargumented deterrence and withdrawal of the professions. The reporter shared the part of the remarks: the prohibition list shall include: investigator, policemen, prosecutors and lawyers. The Committee supported the draft.
The Committee considered the draft by Gedevan Popkhadze on Civil Code of Practice, envisaging elimination of gaps in regulations. The remarks have been expressed shared by the author: the concept of temporary restriction was withdrawn and the draft provides the seizure solely as the proportional possibility to appeal. The new paragraph has also been withdrawn: “upon urgency, the remedy can be applied in capacity of a temporary restriction or security measure, which is not directly connected with enforcement of the claim and is not included into the article, though under the part 2 of the article 191, application is argumented and the party, without application thereof, will be affected, including due to the fact that the right appears impossible to be realized or instant threat of damage is evident”. The Committee supported the draft.
The Committee considered the European Agreement on International Carriage of Dangerous Goods and the drafts on Road Traffic and on Motor Vehicles. The agreement (ADR) aims at enhancement of security of carriage and defines the list of the items and substances, attributed to dangerous goods. ADR provides special terms regarding the prohibited goods. The terms provide classification of goods according to the specific types (explosives, flammable liquids, flammable gases, poisonous chemicals etc.), packaging, marking, documentation etc. in details provided in the Annex A.
ADR provides other particular requirements included in the Annex B concerning the transportation, driver training and vehicle construction. ADR binds the signatory countries to accept vehicles of other signatories if meeting ADR requirements. ADR also reserves the right of the countries to prohibit entry of the goods. Accession to ADR does not imply any financial obligations but the exporter countries shall develop administrative structures to provide packaging, cistern and vehicles inspection and approval. The Committee supported the draft.
The Committee considered with the III reading the draft organic law on Election Code, introduced by the Deputy-Defense Minister, Besik Loladze. The changes mainly concern abolishment of so-called special districts. The Committee supported the draft and considered another draft organic law on Election Code with the II reading, introduced by the Chair of Legal Issues Committee, Vakhtang Khmaladze. The draft is conditioned with the legislative initiative of the CEC of September 8, 2015 approved by the Committee. The CEC draft was entailed with discrepancies in the Code and gaps causing the problems. One of the reasons for the organic law was the Constitutional Court order of April 14, recognizing the norms of the Code as unconstitutional, which prohibited the initiative group of electors from nomination of the candidate of the Governor/Mayor. The changes are to be adopted to the organic law on Political Unions of Citizens and the Rules of Procedure. The Committee supported the draft.
The Committee considered with the II reading the draft on Relations upon Usage of Dwelling, introduced by Paata Kiknavelidze. The draft regulates the relations between the tenant and the landowner emerged within the period of February 25, 1921-November 25, 1997 (instead of June 27, 1996). The draft aims at fair distribution of rights and obligations between the parties.
Eka Beselia introduced the drafts on: Criminal Code of Practice (on facilitation to lawyer activity);Criminal Code (on impediment on proceedings, investigation and advocacy); Criminal Code (on stricter punishment for violence) with the II reading. The Committee supported the drafts.
The Committees did not support so-called “German Model” of mandate distribution according to the Proportional system. the draft organic law on Election Code by the Republicans was introduced by the Chair of Legal Issues Committee, Vakhtang Khmaladze.
The draft changes mandate distribution rule and envisages calculation of percent indices of the votes obtained in proportional system not from 77 mandates, which is currently stipulated under the Constitution but from the number of full composition of the Parliament, constituting 150. Thus, the political party obtains the number of mandates according to the index obtained in proportional elections. In the event if the party obtains higher percentage index than the number of single mandates it nominated, the vacant seats shall be filled from the party list.
One more novelty is abolishment of nomination of the candidate by the initiative groups. MPs expressed their remarks and asked the questions. Finally, the Committees did not support the draft. After the joint sitting, the Human Rights Committee resumed the sitting.
The Chair, Eka Beselia introduced the draft conclusion of the working group on inhuman treatment and torture facts in 2004-2012. The report provides 83 pages of legal estimation with the details of the torture and inhuman treatment facts, statistics data and systematization of the applications to the Committee. “All these recommendations are important for creation of state guarantees of protection of human rights. The task is not the investigation but development of legal and political estimation to put the Constitutional obligations on state policy level”.
She also introduced the draft on Criminal Code, abolishing the age of limitation on torture and inhuman treatment offense. The Change concerns torture and violence Articles to be unified in one. She also introduced the draft on Rules of Procedure, aiming at enhancement of Parliamentary oversight mechanisms.