The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 14 December 2018, the Constitutional Court of Georgia delivered the judgement in the case of “Citizens of Georgia – Khvicha Khirmizashili, Gia Patsuria and Gvantsa Gagniashvili and “LLC Nikani” v. The Parliament of Georgia”.

In the present case, the complainants disputed the constitutionality of the 3^rd sentence of Article 56(5) and 3^rd sentence of the Article 56(6) of the Criminal Procedure Code of Georgia, with the respect to Article 14 and Article 42(1) of the Constitution of Georgia. Article 56(5) of the Criminal Procedure Code of Georgia regulates the rules of recognition of a person as a victim. According to the provision, if a superior prosecutor does not recognise a person as a victim, the person in question may appeal the decision of the prosecutor to a district (city) court only in cases when a particularly serious offence had been committed. Article 56(6) of the Criminal Procedure Code of Georgia constituted that if, after issuing a decree on the recognition of a person as a victim, it is established that there are no appropriate grounds for such recognition, the prosecutor shall make a decision to annul that decree. The disputed provision provided for the right of the decision of a superior prosecutor to be appealed to a district (city) court only in cases when a particularly serious offence had been committed.

The complainants pointed out that according to the disputed provision a person does not have the right to appeal a decision of a superior prosecutor on recognition of a person as a victim. Therefore, this provision violated the right to a fair trial guaranteed by Article 42(1) of the Constitution of Georgia. Moreover, the complainants noted that according to the disputed provision, the victims of particularly serious offences could appeal the decision of the prosecutor to a district (city) court in contrast with them. In their opinion, victims in less serious and serious criminal cases have identical interests, and they were unequally treated based on the category of offences committed against them. The complainants considered that the disputed provision provided an unequal treatment towards the victims of less serious and serious criminal offences and, hence, violated their right to equality guaranteed under Article 14 of the Constitution of Georgia.

The representative of the Parliament of Georgia contended that differential restriction of persons in cases of less serious or serious crimes from the right to appeal served to economize time and resources of the court. According to the respondent, granting the right to appeal to every category of crime would result in an ineffective administration of justice and could be against the protection of cost-effective litigation. Furthermore, the respondent party stated that unequal treatment in the given case was conditioned by the assumption that the degree of damage caused by a particularly serious crime is much higher than the possible damage resulting from the less serious crime.

The Constitutional Court of Georgia underlined the significance of the right to appeal in terms of recognising a person as a victim, as it works as a precondition for a person to have access to rights set forth in the criminal procedure legislation. Therefore, according to the court's judgement a person has a special interest to appeal the decision of the prosecutor on recognising him/her as a victim to a district (city) court. The Constitutional Court emphasised that the right of a person to appeal prosecutor’s decision to a superior prosecutor cannot be an equal substitution of appealing it to courts as the courts are institutionally independent authorities from the prosecutor’s office.

The Court also pointed out that while restricting the right to appeal, in order to prevent overloading of the courts, the complexity of the cases must be taken into account. It should be very carefully assessed how real is the risk of overloading of the courts in the case of granting persons the right to appeal. In the present case, in order to recognise a person as a victim, several criteria should be taken into consideration, such as criminal conduct committed against that person and whether it resulted in a moral, physical or material damage. Despite the vital importance of the decision of recognition of a person as a victim, the decision-making process and assessment are not generally considered to be distinctively complex. Therefore, granting persons with the right to appeal prosecutors’ decision to the district courts in case of serious or less serious crimes cannot result in overloading of the courts.

The Court did not adopt the respondent’s position that appellation of the decision of a superior prosecutor would limit the scope of prosecutorial discretion. According to the interpretation of the Constitutional Court of Georgia, recognising a person as a victim or decision to annul the victim’s status cannot be based on the prosecutor’s subjective assessment criteria. The prosecutor is obliged to recognise a person as a victim or annul that decree based on objective criteria regulated by the law. In case the prosecutor’s decree is appealed to a court, the legality of the decision is reviewed and not the discretion of a prosecutor.

The Constitutional Court did not rule out the possibility of the restriction of the right to appeal the prosecutor’s decision on granting victim status before the court. The court noted that the restriction would be justified in cases where the actual risk of the court’s overload and impediment of justice is present. At the same time, the gravity of the crime committed against a victim and the damage shall be assessed. In conditions of mere referencing to the courts’ overload in general, without any tangible evidence demonstrating this overload or impairment of justice, blank prohibitions, that disregard the degree of damage inflicted on the victim and the importance of exercising relevant rights of the victim, will be deemed unjustified.

In the present case, the Constitutional Court reviewed the disputed provision with respect to Article 14 of the Constitution of Georgia. The disputed rule constituted a deferential treatment of the persons affected by less serious and serious offences and people affected by particularly serious offences. Moreover, this differentiation was based on the precondition which could not be affected by a person's free will. Such treatment based on the degree of a crime was deemed unequal.

In the disputed case the comparator groups were in the same legal condition. Both, persons affected by less serious or serious crimes and victims of particularly serious offences suffered damage that could have been identical regardless of the degree of the crime. The persons had the same interest to be recognised as a victim and exercise the rights prescribed by the law.

The Constitutional Court of Georgia deemed differential treatment to lead to intensive derogation from equal treatment toward victims. Therefore, The Constitutional Court assessed the constitutionality of the disputed provisions based on the strict test; thus, used the principle of proportionality. Similar to the Court’s position regarding Article 42, the Court reiterated that no evidence was presented in order to prove that the entitlement of the persons with the right to appeal prosecutor’s decision in the district court would result in overloading of district courts. In addition, the Constitutional Court pointed out that the differentiation envisaged by the disputed norms restricted the rights of any person suffering from less serious and/or serious crimes and did not take into consideration the degree of the damages inflicted to the victim.

Considering the above-mentioned position, the Constitutional Court decided that the interest to appeal the decision of the prosecutor to a district court and the protection of persons from discrimination was of higher value than the legitimate interest to prevent the courts from excessive workload. Therefore, the disputed provisions were found unconstitutional with respect to Article 14 and Article 42(1) of the Constitution of Georgia.