On June 17, 2013, the Venice Commission and the Justice and Human Dignity Directorate, which is a structural unit of the Directorate General of Human Rights and Rule of Law of the Council of Europe, released a joint opinion on the draft Law of Georgia on the Temporary State Commission on Miscarriages of Justice.
It should be noted that the Venice Commission and the Directorate are not expressing their view on the existence of miscarriages of justice in Georgia, their systematic character, or the necessity to create the temporary commission. Their only aim is to help ensure that the proposed mechanism correspond as much as possible with the principles of separation of powers and independence of the system of justice which are reinforced by the Constitution of Georgia.
It is noted in the opinion that the process of checking alleged miscarriages of justice in criminal cases by a non-judicial body will bring forward issues related to the principles of separation of powers and judicial independence which are reinforced by the Constitution of Georgia. Such a mechanism can only be used in extraordinary circumstances. If the Parliament of Georgia deems that such circumstances are now present in Georgia, obviously, it will not be enough to review the cases without a thorough reform of the justice system. Any such measures must be accompanied by a wider reform of the judiciary to strengthen its independence and impartiality. It is particularly important that the rule of law is not weakened by measures that will be perceived by some people as politically motivated, because provisions that emphasize their political nature will only lead to discrediting of the justice and judiciary system.
The approach of the Georgian authorities which involves a non-judiciary body in this process is in line with the assessment that the entire judiciary and the Prosecutor’s Office took part in these alleged massive miscarriages of justice. However, if the Georgian authorities are ready to go in this direction in spite of the constitutional obstacles, there is a red line that must not be crossed, so that Georgia will not abandon the standards of the rule of law: any decision on criminal cases of plaintiffs damaged as a result of miscarriages of justice must be made by a court.
Considering the specific characteristics of today’s Georgia, the Venice Commission and the Directorate would like to note that they consider it difficult to ensure that the reviews of all criminal cases correspond with the imperative demand of the rule of law. Specifically, the extremely polarized political environment and the limited size of the judiciary branch should be taken into account in this respect. In this context, the Venice Commission and the Directorate point to the very different contexts in which criminal case review commissions work in European countries.
In total, the opinion reflects 15 recommendations given to the Georgian authorities which deal with various provisions and regulations included in the draft law.
Taking into consideration that the Venice Commission has been making a particular contribution to the improvement of the Georgian legislation for several years, we believe that the Parliament of Georgia must take into account the important observations and recommendations that are reflected in the aforementioned opinion when it reviews the draft law and makes a decision.
