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Public Defender Criticizes Govt for Putting ‘Commission on Miscarriages of Justice’ on Hold

Public Defender, Ucha Nanuashvili, said financial constraints, cited by the government as a reason behind its decision to put on hold launch of a commission to look into alleged miscarriages of justice cases, is not a valid argument.

The Justice Ministry has been working in the course of this year on a draft law envisaging setting up of Temporary State Commission on Miscarriages of Justice. According to the draft after the October, 2012 parliamentary elections thousands of citizens have filed complaints to the authorities claiming that they were unlawfully and unjustly convicted of criminal offences in 2004-2012. It says that government’s intention is “to restore law and justice with respect to all those persons who were convicted unlawfully and/or unjustly, for which reason it is necessary to design some additional and temporary legislative mechanisms.”

Justice Minister, Tea Tsulukiani, said on November 28 that when her ministry put the draft before a government session to seek endorsement for further legislative procedures in the Parliament, it was decided to suspend its progress for now because of financial reasons. She said that if planned commission finds that an applicant was convicted unlawfully or unjustly, this applicant will have the right to seek pecuniary compensation from the state.  “Today our country is not financially ready for that,” she said.

Public Defender, Ucha Nanuashvili, said on November 29 that scarce finances cannot serve as an argument for “legitimate expectations” of those who claim that they were convicted unlawfully or in violation of due process. He said that the government and GD ruling coalition have been speaking about this planned commission for months already, further fueling expectations.

“With the use of available mechanisms, the government can set procedures and timeframe for granting potential compensations in such a way so that not to cause a huge financial burden at once for the state budget,” Nanuashvili said in a statement.

He said that the Public Defender’s Office will itself initiate the bill in the Parliament if the government does not revise its decision.

Justice Minister, Tea Tsulukiani, told Imedi TV late on November 29 that government’s decision put the initiative on hold for now does not mean that the plan has been dropped; she said that government members will discuss the issue again in coming days.

The draft law on creation of “Temporary State Commission on Miscarriages of Justice”, which has been put on hold by the government, was proposing setting up of a 15-member commission for a three-year term with a possibility to extend its authority for maximum one more year.

The commission, if established, will be authorized to study applications filed by those who think that they were unfairly convicted in cases involving “grave” or “especially grave” crimes; those, convicted for “less grave crimes”, will also have the right to apply for review of their cases if they were sentenced to imprisonment. It was also proposed to give the commission authority to look into those cases which were settled through plea bargaining, in particular by assessing whether these plea bargain deals were or not made in conformity with relevant procedures set by the law. If the commission finds that there was a miscarriage of justice, the bill says, the case should to the court, which has to review it.

Council of Europe’s advisory body for legal affairs, Venice Commission, said in its opinion on this bill that massive examination of possible cases of miscarriage of justice by a non-judicial body “raises issues as regards the separation of powers and the independence of the judiciary.” It recommended to the Georgian authorities to make it explicit in the draft that decision in cases which are reopened has to remain with the judiciary only.

Justice Minister Tsulukiani said that existing final draft took into consideration recommendations by the Venice Commission and it explicitly states that the judiciary will have the final say.

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