Journal of Constitutional Law - Vol. 2 (2023)
Journal of Constitutional Law - Vol. 2 (2023)
Issue date: December 2023
Merab Turava: Foreword
Author: Claus Kreß
Abstract
As from 24 February 2022, Russia has been escalating its unlawful use of force against Ukraine, which had begun as early as in 2014, to a comprehensive war of aggression. As the world has been witnessing since the beginning of this escalation, Russia’s course of action constitutes an existential threat to Ukraine and its people. In addition to that, it implies the serious risk that the authority of the prohibition of the use of force may erode. This study, which has grown out of a speech delivered in Karlsruhe, where Germany’s Federal Constitutional Court and Federal Court of Justice are seated, sets out the international legal framework for current and possible future reactions by Ukraine, third States and the international community as a whole in response to Russia’s fundamental challenge to what the International Court of Justice has called a “cornerstone of the United Nations Charter”.
In large parts, the study is of a doctrinal nature. But it also attempts to shed light on the historic dimension of the topic as well as on some aspects of legal principle. In conclusion, the study recalls previous calls for ringing the death knell for the prohibition of the use of force and the encouraging fact that the supposed patient has always survived. In that vein, this paper argues that if the support of Ukraine from within the international community will be sufficiently determined and steadfast, there is no reason to ring the death knell for Ukraine in its internationally recognized borders and for the universal prohibition of the use of force.
Paper: The Ukraine War and the Prohibition of the Use of Force in International Law
Pages: 9
Author: George Khazalia, Nino Chochia
Abstract
A judgment adopted by the constitutional court reveals its true res judicata nature and binding force through enforcement. Certain court judgments are self-executing, while others require an active involvement of various branches of government to ensure their enforcement. The practice of the Constitutional Court of Georgia shows that some judgments were not enforced at all, were enforced with delay, or only partially. For the effective execution of judgments, it is essential to have a necessary component of trust between state institutions but also to ensure the existence of all appropriate mechanisms for their enforcement. The applicable Georgian legislation primarily focuses on the mechanisms for restoring individual rights in response to the Constitutional Court judgments, while broader measures such as the adoption of new legislation are relegated to the political process. This article will assess the effectiveness of the Georgian legal framework of enforcing the Constitutional Court judgements, analyze the best international practices and provide recommendations for elaboration of the instruments that will promote their effective enforcement.
Paper: Refining Georgia’s Legal Framework for Enforcing Constitutional Court Judgements
Pages: 11-32
Author: Gia Markoidze
Abstract
A parallel can be drawn between the idea of entrapment and the biblical story of Adam and Eve. In the Garden of Eden, Eve was tempted by the serpent, leading her to partake in the forbidden fruit at the urging of another.
Temptation is a social phenomenon and an inseparable part of human interaction as societies evolve. The Law, in its turn, which permeates all spheres of social life, encompasses the aspect of temptation as well, bringing about the development of a separate legal doctrine. Criminal law encompasses the idea of temptation through the concept of entrapment, which applies to situations where a law enforcement officer provokes someone to commit a crime, leading to prosecution.
Criminal proceedings function as an effective tool for the state to combat crime while ensuring the protection of individuals’ fundamental rights through procedural safeguards. Among these guarantees, the right to a fair trial holds significant importance, with the entrapment defense serving as one of its key components. In legal doctrine, establishing an acceptable equilibrium in the use of provocative measures during covert investigative activities is of critical importance. This article examines that balance, offering the author’s perspective on the interpretation of relevant legislation and the incorporation of best practices.
Paper: Permissible Limits of Entrapment in Covert Investigations and Operative-Investigative Measures
Pages: 33-66
Author: Nino Rukhadze
Abstract
Local self-governments are increasingly striving to assert themselves in the international system, showing their active participation in international relations. Every indication point to the growing tendency of their active presence in the global arena. Against this backdrop, the questions arise as to what status do local self-governments hold in international law, and whether their increasing role necessitates reconsidering the legal/constitutional framework concerning their status.
This article highlights the recent trends of growing participation of local self-government bodies in global processes, and examines the need for revisiting a legal/constitutional dimension of municipalities’ involvement in international relations.
Pages: 67-78
Author: Malkhaz Begiashvili
Abstract
Separation of powers is an ‘elastic concept’. Many authors recognize an unwavering interest of legal experts towards the principle of separation of powers, acknowledging at the same time, the complexity of the concept. In recent years, the Constitutional Court of Georgia has increasingly been applying the principle of separation of powers when examining the constitutionality of the presented cases.
This study approaches the principle of separation of powers from a different perspective. It does not aim to analyze the theory of separation of powers but to consider its application in the context of positive law. Specifically, it examines how the Constitutional Court of Georgia, in its case law employs this principle as a standard, as defined in Article 4, paragraph 3 of the Georgian Constitution, which states: “The state authority is exercised based on the principle of separation of powers.” As a result, the inclusion of this provision in the Constitution transforms the principle of the separation of powers to a positive constitutional norm.
Whereas the principle of the separation of powers has been enshrined as a constitutional norm, the Constitutional Court is obligated to pursue the compliance of the normative provisions it judges upon, with this norm. To accomplish this, the court should develop its own concept of the separation of powers, which will be gradually reinforced through its judicial practice.
A review of the Constitutional Court’s case-law shows that when confronted with a legislative provision potentially affecting the functional separation of powers, the Court tends toward supporting a ‘separatist doctrine’ (also known as a ‘separation doctrine’ or ‘non-delegation doctrine’). At the same time, it ensures that none of the government branches encroaches on the functions assigned to the others. However, in some cases the Constitutional Court refrains from applying the separatist doctrine given that the Constitution explicitly provides for permeability of the principle of the separation of powers that Court cannot override.
Paper: Separation of Powers in the Constitutional Court’s Case-Law
Pages: 79-95
Author: Mariam Chikadze, Irakli Jojua
Abstract
The practice of Georgia’s general courts in applying a ‘beyond reasonable doubt’ standard being necessary for convicting a defendant is inconsistent. Whereas until recently, at least two direct pieces of evidence were required to convict a person, in its recent decisions, the Supreme Court of Georgia has changed this approach to some extent, allowing guilty verdicts to be based on indirect evidence as well.
As a result, the above-mentioned change in the court practice allows convicting a person based on indirect evidence that could raise concerns, including those regarding with compliance with the Constitution. In its precedent-setting judgment N1/1/548 of January 22, 2015 Citizen of Georgia Zurab Mikadze v. the Parliament of Georgia, the Constitutional Court of Georgia declared unconstitutional the normative content of the articles of the Criminal Procedure Code of Georgia, allowing for indictment and conviction of a person based on hearsay testimony (being the most common form of indirect evidence).
The article examines the practice of general courts of Georgia with a particular focus on the recent interpretations made by the Supreme Court of Georgia, their potential impact on the parties involved in criminal proceedings, and their compatibility with the right to a fair trial and the presumption of innocence, as safeguarded by the Constitution of Georgia and international legal instruments. These issues are examined through the perspective of the legal doctrines and practices adopted by national courts, as well as those established by the European Court of Human Rights and the courts of the United States.
Paper: Indirect Evidence – A Constitutional-Legal Basis for Conviction?
Pages: 97-116
Paper: Overview of Judgments of the Constitutional Court of Georgia
Pages: 117-128