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 September 20, 2019, the Second Chamber of the Constitutional Court of Georgia rendered its judgement on the case “Badri Bezhanidze v. the Parliament of Georgia” (Constitutional Claim №1365). The subject of the dispute was the constitutionality of Article 2 of Law №5196-რს of 4 July 2007 “On the Amendments and Additions to the Criminal Code of Georgia” in terms of Article 11 (1) and the second sentence of Article 31 (9) of the Constitution of Georgia.

Based on the aforementioned legislative act, the notion of repeated crime was newly defined, and prescribed that the repeated crime should mean the commission by a previously convicted person of the crime provided for by the same article of the Criminal Code of Georgia. Prior to the said legislative amendment, qualification of repeated act was carried out without prior conviction for the previously committed crime. The disputed norm stated that its force did not extend to actions committed before the entry into force of the amending law, unless the person had committed the last act after the entry into force of the law.

According to the complainant, they were convicted for two episodes of murder. The conviction was based on criminal law that was in force at the time of the commitment of the crime, and although the claimant had not previously been convicted of murder, his action was qualified as repeated murder and he was sentenced to life imprisonment.

The complainant pointed out, that in the light of the changes made to the disputed law, his action would not qualify as a repeated crime, because he was not previously convicted for the same action. Such a qualification would, in itself, result in the imposition of a less severe sentence, as existence of repeated crime is in any case an aggravating circumstance of the offence and requires a more severe sentence than it does in case of cumulative crimes. Thus, the claimant was of the opinion that the impugned provision was contrary to the constitutional rights of retroactive force of the law reducing or abrogating responsibility and equality before the law.

According to the respondent, the legitimate aims of the restriction established by the impugned norm were to impose adequate sentence for the danger arising from the action and to prevent the retroactive force of the law aggravating responsibility.

The Constitutional Court of Georgia has defined, that the second sentence of Article 31 (9) of the Constitution of Georgia stipulates the obligation to use the law reducing responsibility in cases where the adoption of a new law is dictated by the humanity of society or the absence of need for the penalty before the change. According to the Constitutional Court, repeated crime with a number of offences was defined as an aggravating circumstance and usually resulted in the imposition of a more severe sentence, than qualification of cumulative crimes. In addition, according to the position of the Parliament of Georgia, the notion of the repeated crime was defined as a result of the amendments responded more adequately to the public and social challenges and there was no need for the use of more severe penalties. Therefore, the disputed provision prohibited retroactive use of the law reducing responsibility and restricted the right protected by the second sentence of Article 31(9) of the Constitution of Georgia.

The Constitutional Court noted that restricting the right to retroactive use of the law reducing responsibility for the purpose of severely punishing perpetrators of crimes in the past ran counter to the very essence of the same right. Therefore, adequately sentencing a person, imposing severe liability on him may not be a legitimate aim that could justify a restriction on the constitutional right to use the law reducing or abrogating responsibility retroactively.

The Constitutional Court stated that preventing the retroactive use of the law aggravating responsibility is extremely important goodness. The Court did not exclude that in some cases, qualification of cumulative crimes would lead to more severe sentence compared to repeated crimes, however according to Article 3 (1) of the Criminal Code of Georgia, any new norm of the Criminal Code was applicable to the past relations insofar as it reduces or abrogates responsibility. Thus, the risk of aggravating responsibility under the impugned law was excluded and there was no causal link between the disputed provision and legitimate aim mentioned by the respondent. Based on the above, the Constitutional Court held that the impugned provision was contrary to the right guaranteed by the second sentence of Article 31 (9) of the Constitution of Georgia and declared it unconstitutional.

In discussing the constitutionality of the disputed provision with regard to the right to equality, the Court noted that there was no differentiation between non-convicted persons, who committed the same crime two or more times before and after the entry into force of the disputed law. In such a case, the norm did not treat persons unequally, instead it constituted different treatments on the acts depending on the period of its commitment rather than by whom they were committed. Thus, it could not be regarded as different treatment of persons.

The Constitutional Court held that the impugned norm treated unequally, on the one hand, the non-convicted persons, who had committed two or more offences under one article or part of the article of the Criminal Code before the entry into force of the impugned law and no longer committed the offence under the same article after the entry into force of the impugned law and, on the other hand, persons, who had committed the same offence and committed it again after the entry into force of the disputed law. According to the impugned law, the offence committed by the first category of persons should be qualified as a repeated crime, and the second category of persons, who had committed one or more offences under same article and committed the same offence after the entry into force of the new law, would fall under the new law and their actions would qualify as cumulative crimes instead of repeated crime, which could lead to a less severe sentencing. According to the Constitutional Court, considering that in the present case reducing responsibility was a consequence of committing an additional offence, it was clear that such a distinction had no logical explanation and that it was contrary to the constitutional right to equality before the law.