Supreme Court of Georgia

The Supreme Court of Georgia Comments on the Opinion of the Venice Commission

Published: 06/19/2013

On June 18, 2013 – The Venice Commission published its joint opinion on the Draft Law on the Temporary State Commission on Miscarriages of Justice of Georgia, which was adopted by the Venice Commission at the 95th Plenary Session on 14-15 June.

The Supreme Court of Georgia welcomes the fact that the Venice Commission has considered the comments submitted by the court. In particular, the Venice Commission considered that “the very idea of a process of 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 enshrined in the Georgian Constitution as well as in international standards”. 

However, the Venice Commission wish to stress that “it seems difficult to reconcile the rule of law imperatives which must apply to any process of re-examination of criminal cases with the specific features of today’s Georgia, in particular the extremely polarized political context and the limited size of the judiciary”.

In case, if the Government of Georgia still decides to establish the above mentioned Commission, the Venice Commission has a number of comments, which must be taken into consideration for the operation of this type of institution. 

The Supreme Court of Georgia welcomes the fact that the Venice Commission while elaborating its recommendations gave the legally correct evaluation to the role of the Court during the implementation of the Judiciary. The Venice Commission explains, that “the final decision in cases which are reopened has to remain with the judiciary only. Any decision on the determination of the criminal charges against plaintiffs having suffered a miscarriage of justice must be adopted by a court. The TSCMJ is not a court and the final decision is not made by the TSCMJ but by a court of appeal, which re-opens the case. Consequently, the TSCMJ should not have the same powers as a court”.

Also, the experts of the Venice Commission are of the opinion that “the Temporary State Commission on Miscarriages of Justice should concentrate on individual cases and not on systemic causes of miscarriage of justice”. They have called for the initiators of the draft law to reconsider the time limits the cases to be considered (according to the draft law the Commission will only examine the cases existed as of January 1, 2004 until January of 2012). 

The Venice Commission also discussed the legal aspects of the establishment of a special “chamber for miscarriages of justice” and indicated in its Opinion, that establishment of such formation would be contrary to the constitutional prohibition of extraordinary courts.
The Georgian Judiciary hopes that the parliament will take into consideration the opinion of the Venice Commission and express its readiness to proceed with the further reform of the judiciary and to cooperate with all the constructive sides.