Composition of the Board:

Konstantin Vardzelashvili – Chairman of the Hearing;

Vakhtang Gvaramia – Member;

Ketevan Eremadze – Member;

Besarion Zoidze – Member, Judge Rapporteur;

Secretary of the hearing: Lili Skhirtladze.

Title of the case: “The Public Defender of Georgia, citizen of Georgia Elguja Sabauri and citizen of the Russian Federation Zviad Mania versus the Parliament of Georgia”.

Subject of the dispute: “Constitutionality of the first part of Article 3of the Criminal Code of Georgia with respect to the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia”.

Participants to the case: Giorgi Mshvenieridze, Vakhtang Meabde and Tamar Charbadze representatives of the Claimant – The Public Defender of Georgia; Rusudan Mchedlishvili and Archil Chopikashvili, representatives of the Claimant: Elguja Sabauri; Batar Chankseliani and Levan Kasradze, representatives of the Respondent: the Parliament of Georgia; and specialist to the case: professor Otar Gamkrelidze, Chairman of Scientific Board of the Institute of State and Law named after Tinatin Tsereteli.

I

On 30^th of May 2007, a constitutional claim (registration N428) was lodged with the Constitutional Court of Georgia by the Public Defender of Georgia. On 13^th of February 2008, a constitutional claim (registration N447) was lodged with the Constitutional Court of Georgia by the citizen of Georgia, Mr. Elguja Sabauri, and on 24^th of July 2008, a constitutional claim (registration N459) was lodged by the citizen of the Russian Federation, Mr. Zviad Mania.

The First Board of the Constitutional Court of Georgia, based on the recording notice of the administering sitting held on 29^th of October 2007, admitted the constitutional claim (N428) of the Public Defender of Georgia for the consideration on the merits. Under the recording notice of 24^th of April 2008, the constitutional claim (N447) of Mr. Elguja Sabauri, the citizen of Georgia was also admitted for the consideration on the merits, and because of the similarity of the subject of the dispute, they were joined with a view to considering them jointly before the Constitutional Court of Georgia. On 5^th of November 2008, the First Board of the Constitutional Court of Georgia admitted a constitutional claim of Mr. Zviad Mania, the citizen of the Russian Federation for the consideration on the merits in accordance with the recording notice and consolidated it with the constitutional claims under the registration numbers 428 and 447 for the purpose of considering them jointly.

Subparagraph “f” of the first paragraph of Article 89 of the Constitution of Georgia, subparagraph “b” of the first paragraph of Article 38 of the organic law of Georgia “On the Constitutional Court of Georgia”, and subparagraph ”i” of Article 21 of the organic law of Georgia “On the Public Defender” were indicated as a ground for lodging the constitutional claim (registration N428). Subparagraph “f” of the first paragraph of Article 89 of the Constitution of Georgia; subparagraph “e” of the first paragraph of Article 19, Article 31, the first paragraph of Article 39 of the organic law of Georgia “On the Constitutional Court of Georgia”; paragraph 2 of Article 1, the first paragraph of Article 10 and Article 16 of the law of Georgia “On the Constitutional Legal Proceedings” were indicated as the ground for lodging the constitutional claim (registration N447). Article 6, paragraph 5 of Article 42, subparagraph “f” of the first paragraph of Article 89 of the Constitution of Georgia; subparagraph “e” of the first paragraph of Article 19, subparagraph “a” of the first paragraph and paragraph 2 of Article 39 of the organic law of Georgia “On the Constitutional Court”; paragraph 2 of Article 1, the first paragraph of Article10 and Article 16 of the law of Georgia “On the Constitutional Legal Proceedings”.

Disputed first part of Article 3 of the Criminal Code of Georgia has the content as follows: “The criminal law which nullifies criminality of the action, or mitigates the punishment shall be retroactive. The criminal law, which lays down the criminality of the action, or toughens punishment, shall in no way be retroactive.” All three Claimants contend that the disputed norm contradicts the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia, under which, “The law that neither mitigate nor abrogate responsibility shall have no retroactive force”.

It is ascertained from the constitutional claim N428 that citizen, Mogeli Tkebuchava applied to the Public Defender of Georgia, who had committed an illegal action on 5^th o f May 2000. Under the Criminal Code in force at that time, 5 years was defined as the term of limitation of criminal liability for the action committed by him. On 20^th of May 2006, Mogeli Tkebuchava was brought an accusation, because the Criminal Code of Georgia in force by that time determined 6-year term of limitation for the same crime, and by the moment of bringing an accusation, 5 year, 7 months and 15 days had passed since the commission of the crime. In the Claimant’s opinion, the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia permits retroactive force of the laws only in the circumstance, if the law mitigates or abrogates the responsibility. The formulation of the disputed norms for the Claimant means that if the criminal law that does not rule the criminality of the action or does not toughen punishment may have retroactive force. Respectively, the Claimant submits that the disputed norm narrows the constitutional right of a citizen much more than it is allowed by the Constitution.

From the constitutional claim N447 it is clarified that the under the bill of indictment of 19^th of June 2006 of the District court of Kazbegi, the Claimant was administered the punishment for the crime committed on 19^th of September, 2004 as prescribed by subparagraph “a” of the second part of Article 143 of the Criminal code of Georgia providing the restriction of freedom in the term of 3 years. Pursuant to Articles 63 and 64 of the Criminal Code of Georgia that was in force by the time of commission of the crime, the mentioned crime was deemed to be conditional. Under the indictment ruling of 11^th of September 2007, the Chamber of criminal cases of the Appeal Court ascertained that the wording of Articles 63-64 of the Criminal Code of Georgia that was adopted after commission of an illegal action should have been applied and accordingly, the Claimant was awarded the restriction of freedom in the term of 3 years instead of the conditional sentence. In the Claimant’s opinion, by ding so the court granted retroactive force to the mentioned norms, the ground of which was given by the wording of the first part of Article 3 of the Criminal code of Georgia in force at present.

According to the constitutional claim N549, Mr. Zviad Mania a citizen of the Russian Federation was charged of the assault perpetrated on 10^th of June 1992. The preliminary investigation of the case started on 29^th of March 2004. The Criminal Code of 1960 applicable by the moment of commission of the crime, established the criminal liability with the limitation term of 10 years for the action that was charged against the claimant, and under the criminal code in force by the time when the investigation had started, 25-year term of limitation was determined for the same crime. In the Claimant’s opinion, if the law that was applicable by the time of committing the crime was applied against him, he would not be subject to the criminal liability after expiration of 10 year term of limitation, it means that less severe criminal liability was prescribed by the old law. Under the requirements of paragraph 5 of Article 42 of the Constitution, the law that mitigated the liability should be applied. Against the requirement of the Constitution, the disputed norm does not allow the Court to apply the terms of limitation existing at the time of commission of the crime against the Claimant and release him from criminal liability. The disputed norm only ensures that after commission of the action, the law shall not have retroactive force when laying down the criminality and toughening punishment. In all other events, in the Claimant’s opinion, the law has retroactive force based on the disputed norm, despite the circumstance that it otherwise improves or aggravates the condition.

The sittings of the First Board of the Constitutional Court of Georgia considering the merits of the case were held on 26^th and 27^th of February and 6^th of March 2009. Mr. Viler Tsortsomia, who was willing to defend the interests of Mr. Zviad Mania, failed to present the valid authorization at the sitting of the consideration on the merits and accordingly, was unable to exercise the powers entrusted to the proxy of the party before the Constitutional Court.

Mr. Giorgi Mshvenieradze, representative of the Public Defender of Georgia based on the first sentence of paragraph 5 of Article 42 of the Constitution declared that only those laws fall within the scope under protection of the disputed norm, by which the criminal offence character of an action and responsibility because of them are determined. Here, it implies material and not procedural legislation; however the decisive factor is whether or not the norm substantively establishes the illegality of any action and responsibility because of them. Only two exceptions are allowed by the Constitution in the mentioned scope: if the law mitigates or abrogates responsibility, it will have the retroactive force. In all other cases, the Constitution prohibited to give retroactive force to the law, even if a new law does not change the legal state of a person. In reply to the question from the Judge, Mr. Giorgi Mshvenieradze stated that “abrogation of responsibility” implies not only abrogation of punishability of an action in general, but also abrogation of responsibility towards a person.

Just like other Claimants, representative of the Public Defender drew his attention to the term “responsibility” used in paragraph 5 of Article 42 of the Constitution, which, in his opinion, is broader than the notion of punishment and encompasses also other issues related to a release from responsibility. The representative of the Claimant indicated that the Criminal Code itself makes distinction between responsibility and punishment, and envisages different grounds for release from them.

Based on the mentioned, representative of the Public Defender explained that the Constitution of Georgia unlike other international acts (European Convention for the protection of Human Rights and Fundamental Freedoms, International Covenant on Civil and Political Rights) regulates not only the matters on establishment of the criminality of the action and giving the retroactive force to the law when toughening the punishment, but also the matter on otherwise aggravation of a person’s condition. The disputed norm leaves the matter on giving the retroactive force to the criminal law open, when the law does not apply to the criminality or punishability of the action, but otherwise aggravates the condition of the person. Since the disputed norm uses the two grounds “criminality” and “punishment”, some space, to which the retroactive force is not extended, is left (remain). Because of the fact that the norm leaves a gap, in the Claimant’s opinion, it is obscure, which brings up the question of interpretation of the norm. In the opinion of a representative of the Claimant, in order to decide the question of retroactive force, the Appeal Court could directly apply paragraph 5 of Article 42 of the Constitution and the law of Georgia “On Normative Acts”. However, it is a fact that there is an incorrect practice established in the courts of general jurisdiction. Arising from the requirements of Article 26 of the Organic law of Georgia “On the Constitutional Court of Georgia”, he believes that the Constitutional Court should assess as to what the extent the homogenous practice with regard to the disputed norm is established and if this practice breaches the rights, the Court should abrogate it.

As concerns the issue whether the term of limitation for release from criminal liability is fallen within the meaning of the concept “responsibility” used in paragraph 5 of Article 42 of the Constitution of Georgia, Mr. G. Mshvenieradze declared that responsibility also contains the term of limitation, as the term of limitation improves the condition of a person. Accordingly, in the event of expiration of the limitation, the responsibility should not be imposed. Increase of the term of limitation, by means of giving the law retroactive force, directly contradicts the Constitution. Besides, representative of the Claimant, Mr. V. Menabde stated that in terms of law, it does not matter if the already expired term of limitation is restored or the term of limitation shall be increased, when the term prescribed by the old law is not expired yet.

While discussing the genuine idea of the disputed norm, the Claimant indicated the change that had been added to the disputed norm. In his opinion, by removing the words “or otherwise aggravates the condition of the offender” from the disputed norm, “the state underlined that every act would have retroactive force, if it would not rule the criminality of an act or would not aggravate the punishment”.

The representative of the Public Defender reduced the scope of the claim with respect to the first sentence of Article 3 of the Criminal Code of Georgia. On the one hand, he declared that in the given dispute, the issue whether or not the law determining the shortened terms of limitation should be given retroactive force in order to examine the constitutionality of the first sentence of Article 3 of the Criminal Code, was not raised. Additionally, I his concluding speech, he pointed out that paragraph 5 of Article 42 of the Constitution, in general, prohibits to give the law retroactive force in the protected scope, except in the case, when the law abrogates or mitigates responsibility. Nevertheless, in this case, the Constitution gives opportunity to give the retroactive force and does not imperatively require that the abrogating or mitigating laws are given retroactive force. This is decided by a legislator.

10. Mr. A. Chopikashvili, representative of the Claimant: Mr. Elguja Sabauri paid additional attention to the motivation of the Appeal Court that Article 3 of the Criminal Code applies only to the norms of the private part of the Criminal Code. Since Article 63 that lays out the regulation related to conditional sentencing was not in the Private part, it was given retroactive force. In the A. Chopikashvili’s opinion, the present applicable wording of the disputed norm provides the possibility of such interpretation, which is the already established practice. In Mr. A. Chopikashvili’s statement, types of punishment are determined by Article 40 of the Criminal Code and conditional sentence does not belong to them. Punishments applicable to a particular crime shall be established by the private part of the Criminal Code. Because of this, the Claimant believes that appeal on “Punishment” of the disputed norm gave the ground to the Appeal Court to apply Article 3 with regard to the private part of the norms only and to give retroactive force to it, in case of toughening the criteria for awarding the conditional sentence by the new law. In his concluding speech, representative of Mr. Elguja Sabauri reiterated that the disputed norm only prohibits retroactivity of the law in case of awarding or aggravating punishment, which, in the Claimant’s opinion, means that in other cases, the Criminal law shall have retroactive force.

In the assertion of a representative of Mr. Elguja Sabauri, the concept “responsibility” as provided for by paragraph 5 of Article 42 of the Constitution of Georgia, unlike the disputed norm, also includes conditional sentence. Accordingly, the disputed norm narrows the broad right established by the Constitution which protects a person from awarding retroactive force to the law aggravating responsibility. Because of the norm has an omission and comes in contradiction with the Constitution. Mr. A. Chopikashvili stated that what is written in the disputed norm contradicts the Constitution, considering its genuine idea and the practice of its application.

In response to the assertion that the norm is constitutional, but the court practice (case-law) is incorrect, the representative of Mr. Elguja Sabauri stated that this is not the circumstance that should be envisaged by the Constitutional Court, since pursuant to Article 26 of the Organic Law of Georgia “On the Constitutional Court of Georgia”, the Constitutional Court shall be responsible to envisage the practice of application of the disputed norm, i.e. in case of consideration, to envisage how the norm is construed by the general courts. The representative of the Claimant mentioned that “it is suffice to recognize this norm as unconstitutional because the incorrect court practice has been established by means of it”.

10. Under the statement of representatives of the Respondent, in order for the legal norm to have retroactive force in relation to this or that legal relation, it is required that this legal relation really exists. Based on the mentioned interpretation of retroactive force, the Respondent indicates that the sole legal relation is regulated by the law on the term of limitation for release from criminal liability, which is called release a person from criminal liability. Release from liability occurs as a result of expiration of the limitation. When before expiration of the limitation, this term is increased by the law, the relation regulated by the old norm is not present, and accordingly, here the retroactivity of the law does not take place. The representatives of the Respondent distinguish this case from the situation, when the already expired limitation is restored. In this case, in their opinion, the retroactive force occurs and its restoration would amount to the violation not only of the Constitution, but also of the disputed norm. However, such case did not take place in the cases of neither Mr. Mogeli Tkebuchava provided by the Public Defender nor Mr. Zviad Mania. Respectively, the Respondent considers that the requirement to recognize Article 3 as unconstitutional in relation to the increase of the term of limitation is without grounds.

The representative of the Respondent Mr. L. Kasradze declared that restoration of the expired term of limitation does not represent the establishment of criminality or the toughening of punishment as prescribed by the disputed norm, but it still falls within the scope of the disputed norm. The latter should be applied by the common courts, arising from the aim of the norm, from the general principles of criminal legal proceedings, from its conformity with the Constitution and International law in such a way that it should spread over to general responsibility and should include those relations that, under the “classic understanding”, stay beyond the criminality and punishment. Especially, the attention would be paid to general principle that a judge based on the law and inner faith, should impose the minimum responsibility and should construe the disputed norm by using this principle.

As for a conditional sentence, pursuant to the concluding speech presented by the representative of the Respondent, it falls within the definition “punishment” of the disputed norm, as it is used on the ground of a judgment of conviction, leads to conviction and implies a number of restrictions. In reply to the argument of Mr. Elguja Sabauri’s representative, the representative of the Respondent indicated that main and additional punishments, like conditional punishment, are not also included in the list of punishment (Articles 40, 82 and 107³), but they still represent punishments. In the event of toughening of the conditions of a conditional sentence, “toughening of punishment” takes place within the meaning of the first part of Article 3 of the Criminal Code. Accordingly, the Appeals Court should have applied the law in such a way as it was applied by the Court of the first Instance, because the disputed norm did not allow acting otherwise.

As regards the fact whether “criminality” and “punishment” implies that what will be considered as “criminal” and “punishable” acts in relation to a particular person, the representative of the Respondent declared that the Criminal law as a whole is in personam, ad hominem law. Therefore, the term “criminality” of the disputed norm should be construed so that it includes not only presence or non-presence of the signs of the crime, in general, laid out in the private part of the Code, but also in case of a particular offender, all criminal regulation applied towards him/her, nevertheless that it is contained in the private part or in the general part. In the Respondent’s opinion, another term “punishment” of the disputed norm should be also interpreted broadly. In the event of such interpretation, the disputed norm fully includes the essence of the constitutional term “responsibility”.

The Respondent drew his attention to the fact that “responsibility” is a broad term and apart from the punishment, other issues can be considered under it, for example, previous conviction. In the opinion of Mr. L. Kasradze, it is important that the circumstance that the disputed norm does not exhaustively defines the cases for prohibition of retroactivity. Even if a court makes a narrow interpretation of this norm, this will not prevent it from applying the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia during the decision on the issue of retroactivity of the law.

The Respondent assessed the discussion of the Claimants as appeal to the incorrect judicial practice. In their concluding speech, they explained that incorrect perception of the disputed norm and the incorrect judicial practice by the common courts cannot be the ground for recognizing the norm as unconstitutional. The Constitutional Court during the assessment of the normative act should take into account the practice of application of the norm, but it should not rely on it without assessment, that is, it should find out as to what extent this practice is correct.

With regard to the competence of the Constitutional Court, it was indicated in the concluding speech of the Respondent, that the Constitutional Court assesses the constitutionality of what is written in the norm. What is not written there and what, in the Claimant’s statement, the norm misses, in terms of constitutionality, does not subject to assessment. Based on all the abovementioned, the Respondent considers that the disputed norm is in full conformity with paragraph 5 f Article 42 of the Constitution of Georgia.

12. In the opinion of a specialist, Mr. Otar Gamkrelidze, the disputed norm bears more narrow content than the second sentence of paragraph 5 of Article 42 of the Constitution.

In his opinion, the term “responsibility” given in the Constitution has a broader concept and contains both the criminality of an act and punishment as well as other measures that change the legal condition of an offender. The words “mitigate or abrogate responsibility” set out in the Constitution imply not only abrogation of criminality of an act or mitigation of punishment, but also other cases of abrogation of responsibility. It contains the norms regulating the terms of limitation and conational sentencing, and accordingly, if such law regulating the mentioned institutions that aggravates the condition of an offender is adopted, then it should not be given retroactive force.

In the specialist’ opinion, the first part of Article 3 of the Criminal Code narrowed the principle of prohibiting the retroactivity enshrined in the Constitution, because it appealed only on “the criminality of the action” and “punishment”. He considers that the mentioned terms do not include the laws defining the terms of limitation and conditional sentencing. The terms of limitation of the crime are not linked with “lays down the criminality of the action”. Also, we cannot relate the institution of a conditional sentencing with “punishment”, since the punishment is an institution against the criminal action, and the object of the conditional sentencing is a person by himself.

The Specialist considers that such formulation of the disputed norm led to such establishment of judicial practice as it is described in the claims. He believes that the disputed norm, with its direct meaning, does not leave the law-enforcer the opportunity to otherwise construe the norm. In his opinion, the Judge is also pushed to literally apply the disputed norm by the circumstance that the words “or otherwise improves the condition of the offender” were deleted as a result of changes introduced therein.

Based on the mentioned circumstances, the specialist concluded that the first part of Article 3 of the Criminal Code contradicts the second sentence of paragraph 5 of Article 42 of the Constitution.

II

In order to ascertain the constitutionality of the first part of Article 3 of the Criminal Code, for the first time, it should be clarified what guarantees for protection of good are provided not only in the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia, with respect to which the Claimants demand to assess the disputed norms, but also it’s the first sentence of the same Article. In particular, this paragraph of the Constitution says: “No one shall be held responsible on account of an action, which did not constitute a criminal offence at the time it was committed. The law that does not mitigate or abrogate responsibility shall have no retroactive force”.

Such fundamental principle of law is enshrined in the given paragraph of the Constitution as the principle of legitimacy (nullum crimen sine lege). Prohibition of retroactive force is an expression of this principle, which is one of the circumstances defining application of laws in time. The mentioned paragraph of the Constitution, on the one hand, determines that the law shall no retroactive force; on the other hand, it defines the exceptions, when the law may have retroactive force. In particular, it is seen from the first sentence of the mentioned paragraph of the Constitution, that a person shall not be held responsible on account of an action , which will be declared as a criminal offence after a person has committed it. Consequently, according to the Constitution, a bare fact of an action is not the object of assessment from the angle of responsibility, but an action that is normatively deemed as an offence. By this, the Constitution protects a citizen from the negative impact of the law. The first sentence of paragraph 5 of Article 42 of the Constitution of Georgia ensures a person’s ability, pursuant to beforehand defined, publicly accessible and non-individualized legal rules, to predict what actions are criminal offences and to accordingly conduct his own behavior, which is an important guarantee against arbitrary persecution and prosecution.

Prohibition of the retroactivity restricts the freedom of a legislator to introduce such law that would impose responsibility to a person for an action which was not punishable at the moment of its commission. By this, the Constitution recognizes that the mentioned principle has an absolute character and its violation is inadmissible. In the event of non-respect of this principle, not only the constitutional rights of an individual person will be endangered, but also the order of values, legal security, which itself is the foundation of the existence (protection) of the constitutional rights. The normative order of values is the tool for determining the behavior of an individual citizen. Under the circumstances of such order, people have the reasonable expectation that the State will act within the limits established by the law and will assess the action committed by him/her under the circumstances of normative reality.

2. The fact that prohibition of the retroactivity of the law is a recognized guarantee of the offender is seen from the International legal acts. Paragraph 2 of Article 11 of the Universal Declaration of Human Rights protects a human being from the responsibility for the acts “which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed”. The same principle contains Article 15 of the International Covenant on Civil and Political Rights and Article 7 of the European Convention for protection of Human Rights and Fundamental Freedoms. In all cases, the guarantee for prohibition of the retroactivity by the International legal acts concerns the legal consequences related to the offence, which is explicitly and unambiguously affirmed by them. But, what will be the scopes of operation of the mentioned acts will depend on how they will be construed. The Constitution of Georgia establishes the broad scope for prohibition of retroactive force and, in general, connects it with the legal responsibility.

3. Consequently, the given sentences of paragraph 5 of Article 42 of the Constitution create an organic unity and ensure that the criminal offence that is the ground for responsibility and responsibility by itself, because of this criminal offence as an aggregate of coercive measures undertaken by the State, will be such, as it was determined by the law that was applicable at the time the offence was committed. There is only one exception from this absolute constitutional requirement – within the scope of protection of paragraph 5 of Article 43, the legislator may award the law retroactive force, if it abrogates or mitigates the responsibility provided for by the law that was applicable at the time the criminal offence was committed. By this latter rule, the Constitution expresses humanistic approach towards citizen rights and it, through this way, stimulates positive actions from their side. The new normative reality replaces the old one and consequently, strengthens the guarantees for protection of the rights of the offender.

4. In order to assess the disputed norms, it is necessary to clarify the content of those legal categories with regard to which the Constitution introduced the rule for prohibition of retroactive force. It is seen from the first sentence of paragraph 5 of Article 42 of the Constitution that the case relates to an action, which may be assessed from the angle of criminal offence. The Constitution generally speaks about a criminal offence and we should think that it does not imply only criminal delicts. As for the second sentence of the mentioned paragraph, prohibition - permission of the retroactivity of the law is linked with the category of responsibility. The responsibility is there, where the criminal offence is present, which reaffirms the institutional unity of paragraph 5 of Article 42 and respectively, logic inter-conditionality during their assessment. Therefore, the guarantees for prohibition of the retroactivity are stipulated by both the first sentence and the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia. The principle on prohibition of retroactivity of the law, stemming from this paragraph of the Constitution, implies the prohibition of retroactivity of the law determining the legal responsibility.

Stemming from the abovementioned, the law could be incompatible with the Constitution, if it has retroactive force and at the same time, it establishes or toughens the responsibility of a person. Consequently, in order to decide the constitutionality of the disputed norm, the following questions should be answered: 1. whether or not the disputed norm provides the possibility to apply the retroactive force; 2. whether or not expansion with retroactive force of the norms regulating the terms of limitation or excluding a conditional sentencing shall cause the establishment or toughening of the responsibility; The disputed norm may be considered as incompatible with the Constitution only in case if the both questions are replied with positive answers.

5. The term “responsibility” should be construed broadly and we should imply any legal responsibility by it. As for abrogation of the responsibility, here, first of all, it supposes the exclusion of this or that illegal action from the category of offences. Accordingly, establishment of responsibility for the action shall be declaration of this action as an offence. The responsibility, under the circumstances of such assessment, is abrogated or is established as a normative category. Besides, abrogation or establishment of the responsibility towards a concrete person may be also occurred when it continues existence as a normative reality. This is possible when the punishability of the action has not been abrogated at all, but the panishability of the concrete action towards the concrete subject is abrogated. In this case, the abrogation or establishment of the responsibility should be assessed within the scope of paragraph 5 of Article 42 of the Constitution. This norm of the Constitution provides guarantees even in the case when the aggravation of the responsibility takes place.

Therefore, the responsibility, as an objective category of law and a normative reality, is connected with the action in general. And the responsibility, as the responsibility of a concrete person, as a subjective category, is simultaneously connected with the concrete action. Paragraph 5 of Article 42 of the Constitution combines the both cases.

6. By prohibiting retroactive force, the Constitution provides the guarantee that subjects of law be protected from negative consequences caused as a result of the operation of the laws. Since any law is an immediate product of the life of the society, it is not excluded that a new law in comparison with the rule aggravates the condition of a subject. Exactly here the question will be raised whether t the absolute nature of the prohibition of retroactivity of the law is acceptable or not. It is necessary to make distinction between the true retroactivity of the laws and untrue retroactivity of the laws. Within the scope of the given disputed norm, we will confine ourselves to clarify the mentioned issue with regard to only norms regulating the responsibility caused by the criminal offence. The true retroactivity implies the extension of application of the law to those relations that have been derived and implemented before enactment of the new law and causes changes in the results of the legal relations occurred in the past. Such retroactivity of the law constitutes the retroactive force of classic, institutional character, which, as a rule, is prohibited and is permitted as an exception, when the new law places the subject of the right in better conditions. The untrue retroactivity of the law means the extension of applicability of the law to those relations that arise before adoption of the law, but continue existence during the period of its application. The untrue retroactivity of the law does not cause the change in legal results arisen and completed before enactment of the new law. The case-laws of both the national and European courts demonstrate that the prohibition of retroactive force may not have the ambition for universality. It is enough that we allow possibility of this, and continuity in time and stability of human rights will face a serious threat.

7. When the talk is about the constitutional guarantees, here it is supposed the protection of legal subjects from the true retroactive force of the law. The law does not have true retroactive force. This in its way means that the law does not have retroactive force in terms of aggravation of the right. When paragraph 5 of Article 42 of the Constitution indicates that the law may have retroactive force in favor of a person, stemming from this, we should suppose that the mentioned norm of the constitution is about prohibition of the true retroactive force of the law regulating the responsibility. “It is strange for the rule of law based state to apply true retroactive force of the law. The opinion that the new law does not operate based on the relations derived from the old law, which have not been completed and are still in progress, is not extended to the scope of Public Law”. (Judgment N. bs-21-21 (k-07) of 21 June 2007, of the Grand Chamber of the Supreme Court of Georgia). The untrue retroactive force is a natural and necessary form of the laws’ application in time. The issue of whether or not the law will be given retroactive force depending on if the condition of the subject is improved or aggravated is not raised here. In both cases, it shall be given the retroactive force. Such retroactivity in reality is not at all retroactivity and only constitutes the recognition of those relations that were derived before fully fall within the influence of the new law.

Existence-functioning of the right, in most cases, requires its adjustment with the new normative reality, regardless of what influence is exerted by the law on the content of this right. It is evident that this does not mean that the application of the old law to the continuing relations is excluded. The legislator shall decide the issue of which law shall be applied to them. The legislator decides this issue based on the specificity of every specific relation.

8. Since the retroactive force implies the change of results of the legal relations occurred in the past, first of all, it should be determined which law should be applied to establish the results of concrete legal relations and only after it, it can be ascertained whether or not the change in these results have been occurred by the law adopted later. Different elements of the legal relations may be exercised not in one defined moment of time, but at various times. Considering the concrete legal relations, to find out as to which law is to be applied and when the change of legal results of the relations or retroactive force occurs is possible not to be univocal. Consequently, within the legal space, not only the issue of when the law may have retroactive force or of when the retroactivity of the law is prohibited is problematic, but also it is difficult to ascertain when we have to do with the retroactivity of the law.

9. Paragraph 5 of Article 42 of the Constitution of Georgia does not leave the freedom to the legislator to decide when the laws establishing criminal offences and because of them responsibility does have or does not have retroactive force. The first sentence of paragraph 5 clearly establishes that the point of departure for establishing the applicable law is the time when the action occurred. Consequently, in order to decide whether or not the action carried out by the person constitutes the criminal offence, and in case of positive answer, what responsibility should be imposed to the person for it, the legislator possesses fully clear constitutional directive that the law that is in force at the time when the action was committed shall be deemed as applicable law. Application of any other law adopted (promulgated) later for determining the criminal offences and responsibility shall be deemed as giving the retroactive force and by this as violation of the constitution, unless we deal with the law mitigating or abrogating responsibility.

10. Since untrue retroactive force may cause the change in subject’s legal condition towards both positive and negative directions, the law-enforcer is obliged to strictly make distinction between the true and untrue retroactivity of the law in order to avoid confusion between them. It is enough to apply the true retroactive force where there is no place for it, from every new law, only that part that improves the condition of the subject will be applicable towards relations arisen before its enactment, and therefore, the law will be partially obligatory for the subject. If the law-enforcer acts to the contrary and applies the untrue retroactive force where there is a place for true retroactive force, then the good protected by prohibition of retroactive force will be endangered and new laws with their results will be spread, without any obstacle, both over the past and over the future, the untrue retroactive force will absorb the true retroactive force and people will be left beyond the protection of the Constitution.

11. In the event of the untrue retroactive force, the substantial transformation of the laws should take place in such manner that aggravation of the legal condition of a person shall be prompted by exceptional and unavoidable necessity. A person may oversensitively perceive any restriction of the right, but when there is the perception of normative necessity for this, the perception that if being in the legislator’s place, she/he would act in the same way as the legislator did, and this estrangement would lose its ground. That is why the reliability towards the laws constitutes the significant ground for their constitutional presumption.

12. We should strictly make distinction between the scopes for permissible and necessary operation of the law. The discretion of the legislator, the scopes for operation of his/her will, shall be restricted by the Constitution. This is reflected in Article 47 of the law of Georgia “On Normative Acts”, under which, the legislator may give the retroactive force to the normative act, but his/her authority is restricted by the Constitution. In order not to endanger the rights guaranteed by the Constitution, the cases that the legislator may not change under his/her normative will are clearly underlined in the mentioned law. In particular, “A normative act that defines or aggravates legal liability may not be retroactive force”. The legislator may not adopt a norm ignoring this provision. The legislator is also restrained by the constitutional provision of the same Article, stipulating that if an offence was committed and, afterwards, a law repealed or alleviated liability for such an offence, then the norms defined by the new law shall be applied.

13. Since the criminal law, in the constitutional terms, is a responsibility law, it should adequately reflect the provision of the constitution that the law shall not have retroactive force, if it does not mitigate or abrogate responsibility. Particularly, the criminal law should reflect, first of all, the fact when the norms regulating responsibility do not have retroactive force and secondly, those cases when, as an exception from the rule, they have retroactive force. The guarantee for prohibition of retroactive force implies the guarantee for protection from negative consequences of the responsibility, and the criminal law should lay down this in conformity with the Constitution. Since the basic rights are citizens’ self-defence rights against the State, the legislator is obliged to normatively define the good protected through the prohibition of retroactive force. It is to be envisaged that in order to rightly construe both the Constitution and the Criminal law, it is necessary to make the united analysis of all those norms regulating the operation of the laws in time. Also, it is to be considered that the circumstance that any field based on the categories characterized to it, lays down the legal goods as prescribed by the Constitution. The main requirement made to them is that they, in all cases, should correctly and completely lay down the content of the norms stipulated in the Constitution.

14. Prohibition of the retroactivity of the law, as it was stated above, is one of the expressions of the principle of legitimacy. This principle is enshrined in the first part of Article 2 of the Criminal Code, which states that “The criminality and punishability of the action shall be determined under the criminal law applicable at the time of committing this action”. This provision, as a rule, excludes application of the law adopted after the criminal offence was committed, to the relations existing before its commission. This circumstance indicates that the criminal offence is an evaluative category. Particularly, its existence (life) as a criminal offence and as a punishable action starts with normative assessment. When this or that action was not the subject of normative assessment at the time of its commission, it will not become such just because the similar actions becomes the object of this assessment in the future. During the assessment of the mentioned norm of the Criminal Code, the circumstance is to be envisaged that the constitutions of some countries with similar norm exhaustively lay down the prohibitions of the retroactivity of the law.

15. Together with the general norm on operation of the laws in time, the first part of Article 3 of the Criminal Code of Georgia contains the provision regulating the retroactivity of the law, which under the claim requirement, should be considered as unconstitutional. The mentioned norm, in one case, sets forth the reality when the law shall have the retroactive force, in particular: “The criminal law which nullifies criminality of the action, mitigates the condition of the offender shall be retroactive”. In another case, it sets forth when the law shall not have retroactive force, in particular: “The criminal law that lays down the criminality of the action, toughens punishment or otherwise aggravates the condition of the offender shall in no way be retroactive”.

Here, it should be stated that we should not consider as correct the opinion that the law “On Normative Acts” gives the answer to the requirements of the Claimants and not the disputed norms of the Criminal Code. Exactly the latter determines the retroactivity of the criminal law. Nevertheless, the law of Georgia “On Normative Acts” should be considered during the interpretation of the disputed norm.

16. It is to be mentioned that one part of the Claimants demands to recognize the disputed norm as a whole unconstitutional, but another part considers that only the second sentence of the disputed norm causes the violation of their right. In both cases, the Claimants have common approaches to the motivation of demand. In their opinion, the disputed norm fails to completely reflect the standards provided for by the Constitution, because it narrows the concept of responsibility. In particular, it associates the principle of prohibition of the retroactivity with only punishment and criminality of the action, because of which the guarantees related to conditional sentencing and retroactivity of the limitation stays outside of its limits, which liberates the law-enforcer to give the retroactive force to the norms that aggravate the condition of the person, which is also verified by the legal practice. The special criticism from the side of the Claimants causes the second sentence of the disputed norm, because it provides for two cases for prohibition of the retroactive force, when the punishment is aggravated or when the action is announced as criminal. In their opinion, to confine oneself with only these cases of the guarantees for prohibition of the retroactivity contradicts the provision of the Constitution that if the law does not mitigate or abrogate responsibility, it shall have no retroactive force. The universal guarantees for prohibition of the retroactive force were rejected by the disputed norm. In the opinion of one part of the Claimants, if the second sentence of the disputed norm is admitted as unconstitutional, the problem would be solved by the fact that the criminal law, save to the cases as provided for by the first sentence, shall have no retroactive force any longer.

17. During the assessment of the disputed norms, it is important to ascertain the margins of its interpretation. Any norm of law is subject to interpretation. Because of the fact that the norm of law may provide the possibility to construe it differently and may facilitate existence of different precedents, it does not mean that this norm is unconstitutional. Precisely, different interpretation becomes the ground for finding the correct interpretation of the norm in the end. Even under the conditions of positive law, there are sufficient mechanisms to establish which precedent should be considered as correct interpretation and which not. It is evident that the most correct interpretation will be the interpretation that corresponds to the Constitution. The interpretation of the disputed norm, as it was stated above, is provided by the mentioned norm of the Constitution. The law-enforcer is obliged to construe the norm in compliance with the Constitution, if it is possible within the scopes of the given norm. The scopes of the norm are not identical to the Article in which its disposition is set forth. Any norm is an organic part of the whole normative act and its reading should be done against this background. The Constitutional Court pointed out in one of its decisions: “… the disputed norm shall not be considered as isolated from other norms that are related to it, as such approach by the Constitutional Court may lead to the wrong conclusion… if under the circumstances of interpretation in good faith, it is impossible to apply the norm, then the norm shall fully comply with the requirements of legal security” ( Judgement N2/2/389 of 26^th of October 2007 on the case “Citizen of Georgia Ms. Maia Natadze and others against the Parliament of Georgia and the President of Georgia”).

The opinion of the European Court of Human Rights is to be taken into account, that necessity for judicial interpretation of the criminal norm is caused by the fact that …”There will be always the necessity for adaptation with changed circumstances and incomprehensible moments” (Judgments on cases “S.R. V. the United Kingdom”, paragraph 34 and “S.V. v. the United Kingdom”, paragraph 36, the European Court of Human Rights).

18. The law-enforcer is obliged to apply the method for interpretation that the most clearly and objectively explains both the essence of the norm and the scopes of its operation. The law-enforcer should manage to correctly perceive the will that creates the spirit of the law. It should be clarified both the will of the legislator enshrined in the law and the will of the law itself, which is formulated and revealed during the process of its application. The law is not determined by the will of the legislator as once and for all given unchanged value. We should look at the law as a living organism, whose will is revealed and sophisticated during the process of regulation of different life’s occasions. Therefore, upon assessment of the disputed norms, we should find out not only the idea the legislator had in mind, but also the idea, the ambition of which the disputed norm itself may have.

The practice of the Constitutional court speaks about the correctness of the mentioned methodology for interpretation of the law, under which, “when interpreting the norm, we should be find out both the will of the legislator and that of the law itself. In separate cases, it is possible that the legislator could not express with sufficient precision, obviousness and adequate concreteness his/her own will. Consequently, the text of this or that norm will actually part from the real views and desires of the legislator with regard to its content, that is, the will of the law will be separated from the will of the legislator. At such time, the law-enforcer should indispensably get familiar with the genuine essence of the applicable norm, penetrate into the concrete aim of the legislator, but the norm itself should help him/her in this. The law-enforcer, first of all, relies on the text of the norm. If it is impossible to exactly find out the will of the legislator from the text of the norm, from the essence actually reflected in it, it is natural, the will of the law will be decisive for the law-enforcer” (Judgement of 26^th of December 2007 on the case “The Young Georgian Lawyers’ Association and citizen of Georgia, Ms Ekaterine Lomtatidze against the Parliament of Georgia”).

In any case, the will enshrined in the law should constitute the character of this law and the idea singled out by means of its interpretation should stem from the content of this law. By means of interpretation it is not allowed to attribute the idea to the law, which it may acquire after the legislative changes only. The law-enforcer is not allowed to pas beyond the demarcation line in the event of crossing of which, she/he from the interpreter turns into the legislator. Simultaneously, the law-enforcer should not become captive of narrow interpretation of the law, which will seriously impede the elucidation of the genuine content of the law and will endanger viability of the law. In particular, the law will be estranged from that reality for regulation of which it was drafted. Diversity of the relations regulated by the law and their constant dynamics obligate the legislator within the limits of the will derived from the law, to provide an existential assessment to the developments and to make adjustment of law with a fact and assure their peaceful co-existence. The law-enforcer is obliged, in all cases, to observe the scopes of operation of the norm and not to pass beyond the equivalent interpretation of the Constitution. The issue of equivalent interpretation of the Constitution is brought up when the law contains obviously divergent possibilities of interpretation and, at least, one of them is interpreted as opposed to the constitutional meaning.

Not only normative acts themselves, but also their interpretations should be in line with the Constitution. When only the interpretation contradicting the Constitution is read from the normative act, in such case, the subject of the assessment becomes the normative act itself, and it should be considered as unconstitutional. Whereas in the case, when simultaneously, the interpretation corresponding to the Constitution is read from the normative act, then the subject of the assessment, at this time, becomes the cases of interpretation of the norm. The possibility of its dual (ambivalent) interpretation confers the characteristic of ambiguity on the norm. The constitutional presumption of the norm is operable in case of ambiguity, and consequently, it should be interpreted in compliance with the Constitution.

During the interpretation of the disputed norm, we should envisage the circumstance that all normative acts are interpreted by the interpretation methods existing in law. When it is permissible that the constitutional norm concerning the guarantee for prohibition of the retroactivity be construed broadly, then the branch norms of law should be analogously construed. When under the Constitution, it is possible to construe the abrogation-determination of responsibility as the presence of the action both objective and subjective condition, why it is not possible that abrogation-establishment of “criminality of the action”, the phrase given in the disputed norm of the criminal law may be understood as a similar expression of the existence of the action.

19. When we speak about the broad interpretation of the criminal law, it does not mean at all that it comes in contradiction with the principle of clarity of the laws. We should envisage the circumstance that no matter to what extent the law is defined, it may not be more precise than what is derived from the genuine nature of the subjects. It is true that the law should be clear, predictable, and perceivable in order to acquire the property of obligatoriness, but this does not mean that identification of the content of any law is possible only through its empirical vision. The law may be considered as undefined, when all methods for interpretation are tried, but its genuine content is still uncertain, or the essence is clear, but the scopes of its operation are unclear. During the assessment of the normative acts, the Court is obliged to envisage their genuine content and not only literal meaning of these acts. The genuine content of the laws is created not only by theirs direct meaning, but also by their indirect one, it is important that the possibility to apply the latter meaning is provided by the normative act. When the case concerns the criminal law, it is true that the especially high standards of clarity of the laws are operated here, but this does not cause estrangement from broad interpretation of criminal law norms, when the case deals with the issue of interpretation in favour of the offender.

The broad interpretation of the norm, when the relationship existing between the norm and the fact provides such possibility, does not cause the interfusion of legal concepts and categories. When stemming from the aims of the law, this or that concept may be normatively given the broad meaning, why it is not possible for it to acquire the similar character through a reasonable, broad interpretation by the Court.

20. As concerns the court practice, which is often referred by the Claimants, it is true that when assessing the normative act, the Constitutional Court takes into account existing precedents, but the constitutionality of the norm should derive from the content of the norm itself and not only from its legal practice. “It should be noted that probability of inhomogenous reading of the norm will not always suit for contending the norm as unconstitutional. The possibility to read the norm even in several versions, moreover, existence of the practice against the Constitution based on it does not simply refer to the unconstitutionality of the norm, as well as the existence of the correct practice based on the vague norm will not always serve as an exhaustive argument for contending the norm as constitutional” (Judgement N1.3.407 of 26^th of December 2007 on the case “The Young Georgian Lawyers’ Association and citizen of Georgia, Ms. Ekaterine Lomtatidze against the Parliament of Georgia”).

21. In order to ascertain to what extent the position of the Claimants is correct, it is necessary to explain, based on the methodology for interpretation of the norms provided above, the nature of such categories given in the disputed norm as punishment and criminality of the action. In particular, it is required to ascertain their reference to criminal law category of the responsibility in the single organism of the criminal law order. It should be stated that there is no criminal responsibility without the criminality and punishability of the action. Precisely, the whole criminal creature is revealed in the criminality and punishability of the action, and all criminal measures, no matter what name they bear, are associated with it and are arisen from it. If we say that the criminal law is the law of the criminality and punishability of the action, then it may be said with the same success that it is the law of criminal responsibility. The first part of the first Article of the same Code indicates the inter-conditionality of the given categories, which lays down the subject of criminal law regulation. It is true that the concepts “criminality” and “punishability” are not identical, but they are linked with each other by the cause-and-effect, logic necessity. There is no punishability without criminality. All punishable actions are criminal actions.

While making the mentioned conclusion, we should envisaged the fact that Paragraph 2 of Clause 103 of the Constitution of Germany speaks about only the punishability of the action and it implies the punishment as well as deeming the action itself as the criminal offence. That is why when the Constitution speaks about the guarantees of retroactive force concerning the responsibility, here it implies the punishment and criminality in their life’s forms.

22. There is no criminal responsibility without the crime, since under Article 7 of the Criminal Code the crime is the bases for this responsibility. The criminality of the action implies assessment of the action as the criminal delict, as the crime. The action with certain qualities is deemed as the crime, in particular, the illegal and disorderly action provided under the Criminal Code. The responsibility itself in terms of its content (in substance) is in essence revealed in the sentence. The sentence is the life form of the responsibility. It is true that Section 4 of the Criminal Code separates the cases of release from criminal responsibility and sentence from each other, albeit this does not mean that we deal with the events that are in principle different from each other. The legislator, in the mentioned cases, separates various conditions for expression of the responsibility from each other. When we talk about the release from responsibility, here the legislator takes into account the cases when it is not justified to impose responsibility, when the responsibility is no longer revealed in the concrete sentence. Hence, the release from the criminal responsibility is a refusal to apply the probable sentence. And in the case when there is a sentence present, here the responsibility is not possible, but the fact of reality, this is the realization of the concrete sanction. Since the responsibility is here revealed in the concrete sanction, the legislator deemed it as expedient to draw its attention to the release from this sanction (sentence). Hence, in one case, because of the criminal action, the responsibility is provided as the possibility, in another case – as the real fact. Therefore, the mentioned cases demonstrate the conditions of the possibility and reality.

23. According to the disputed norm, in one case the criminality of the action is determined, in other time it is nullified. This means that in one case the responsibility for the action is determined, at other time, it is nullified. In the Claimants’ opinion, under the condition of the limitation, the action still remains punishable (criminal), but due to the expiration of the limitation, the person is released from the responsibility. Evidently, if we imply only the normative margins (assessment) of the criminality of the action in the disputed norm, then the position of the Claimants will be correct. Nevertheless that the person was released from the responsibility, the action he/she committed as a fact of the objective, normative reality, exists and remains as a part of the system of crimes. But, if we look at this event as it was stated above, when construing paragraph 5 of Article 42 of the Constitution in relation with the responsibility, the person’s release from the responsibility means that the assessment of the action was rejected and consequently, this action in the concrete condition with regard to the concrete person has lost the criminal character. The refusal to continue criminal prosecution and the person’s release from the responsibility imply that the concrete action no longer constitutes the object of criminal law assessment, and according to this opinion, with indirect, broad understanding it is no longer criminal. Following that, the legislative provision “nullifies criminality” should be broadly construed, not only by its direct meaning, but also by its indirect meaning. Upon making this assessment, we should take into account that the law is such creation that lives in its own environment. This environment is not only the legislative context, the nucleus of the norm, but the legal cover (material), that surrounds it, and it is perceived in this environment. Hence, it is to be envisaged that the margins of the interpretation of the norm are not exhausted by the margins of positive law of this norm under the Constitution, it is necessary to take into account the non-positive life of the norm. This contains the main purpose for reading the text of the law with the hermeneutical aspect. Otherwise, the law would turn out to be identical to the positive law.

24. When assessing the disputed norms, we should take into account the institutional nature of the limitation. Some countries consider it as material-legal institution and in any event, exclude its application retroactively. Others consider it as procedural legal institution, the retroactivity of which does not raise doubts. Under the “mixed” system, the extension of the limitation is allowed only in the event, if it has not been expired yet. The signs of the mixed system in the Georgian law are confirmed. The criminal prosecution of the person is exercised within the terms of limitation. The retroactivity of the new law is prohibited, when the terms of limitation established by the old law are expired.

To give the law retroactive force in case of increase of the term of limitation, may lead to reanimation of that legal reality, to which refusal was stated by expiration of the old term of limitation, which the legislator exclude from the space of assessment. In such case, the person gets the legitimate expectation that the repressive measures will no longer applied against him. Therefore, the action that has lost the criminal character in the concrete situation, again acquires such character. That is why this case with the broad interpretation implies that the legislator considered the old action of the concrete person as a criminal action, capable to be assessed. This is nothing than laying down the criminality of the action with its indirect, broad meaning. The fact that was normatively criminal is also declared as criminal towards the concrete person. Therefore, the phrase of the second sentence of the disputed norm “lays down the criminality of the action” by its broad interpretation may be considered as extension of the new term of limitation over those relations towards whom the term of limitation prescribed by the old law was expired.

25. When the legislator in such a way increases the terms of limitation, while the term of limitation established by the old law has not yet been expired, this case can not be deemed as infringement of the Constitution. It does not contradict with the constitutional principle on prohibition of the limitation of the law and respectively, not it is considered within the limits of the prohibition as provided for under the disputed norm. It is true that in this case also, the scope of person’s right undergoes certain negative affect as the criminal prosecution against him/her is extended, but this normative reality is justified by the criminal security interests. By this, the legislator underlines the circumstance that the terms established under the old law are not enough for the criminal prosecution of the person. Since the equitable justice requires the defined terms of limitation, it is impossible to release the person from the responsibility simply on the ground that the other term was determined under the old law. Till the term of limitation is not expired, the material right of the subject of the criminal prosecution to be released from the responsibility will not arise. The person will not have the legitimate expectation that the state will not or cannot exercise the criminal prosecution within the limits of the term of limitation. Before the expiration of the limitation, the person will not have the legitimate expectation that he/she will be released from the responsibility. Before the expiration of the term, the extension of the limitation will not infringe the person’s possibility to beforehand predict the legal consequence of his/her action. In terms of predictability of the legal consequences of the action, the state is identical before the extension of the limitation and after its extension. Consequently, before expiration of the term of limitation, its extension will not infringe the legitimate expectations of the person. Before expiration of the limitation, no matter how its duration is changed, this may be by no means regarded as interruption of this term. In all cases, it is discussed as the united term. It is enough to allow bifurcation of the term of limitation, that the prosecution of the person within reduced terms as established under the old law will lose its sense, since it will not be sufficient to achieve the aim by which the mentioned terms are determined and under this logic, the person should be immediately released. When the legislator determines that criminal prosecution may be exercised within the defined terms, it is impossible to carrying out it within other terms (time-limits). When it is impossible to bifurcate the grounds and interests of the prosecution, it is impossible to bifurcate the term for exercising this prosecution. It is not allowed to stipulate different terms of limitation for one and the same criminal offence. Along with this, the limitation itself is not excluded to represent an individual’s right, when the legislator obviously goes far beyond the principles of its determination and by this he/she endorses “immortality” of the criminal prosecution. The unreasonable, groundless extension of the term should not be eradicated by awarding retroactive force to it, but by legislator’s acting within the constitutional responsibility and correctly defining those terms. When the legislator violates this obligation, then the term of limitation itself becomes the object of assessment. The person’s inviolable right is that the criminal prosecution against him should be conducted within the reasonable terms. Since the criminal prosecution implies carrying out of those actions that are necessary for assuring the application of measures against the person as provided for by the criminal and criminal procedural laws, the legislator should have the right to apply for this as much term as it is reasonably necessary. While asserting the mentioned, we should take into account the case-law of the European Court of Human Rights, under which, extension of the term of limitation does not constitute violation of Article 7 of the Convention (“Coëme and others v. Belgium”, Judgement of 22 June, 2000 of the European Court of Human Rights, par. 149-151).

It should be accounted the circumstance that the guaranteeing function of the criminal law should not go beyond the ambit of operation of the criminal law and those scopes of this guarantee, that are necessary for protection of an individual’s right and legal security, peaceful and balanced co-existence. The criminal law, in order to protect an individual’s right, provides as much guarantee as it is necessary and possible.

26. According to Article 71 of the Criminal Code, the limitation results in releasing from the criminal responsibility. The existence of this institution, on the one hand, is the recognition of the fact that after certain term has passed, it is not practical to exercise an objective justice and to hold fair trail, because the evidences together with the circumstances necessary for this are lost and testimonies of the witnessed are not any longer reliable. Its aim is to legally ensure that the court will not be obliged to render a decision based on those evidences that are regarded as incomplete due to the expiration of the term. By this, the legislator rejects suspicious justice, decides the issue in favour of the person and releases him/her from responsibility. As a result, it follows the person’s right not to be criminally prosecuted due to the expiration of the term of limitation. This is the recognition that the criminal action has lost the quality of assessment ability that would be necessary for prosecuting a person, and secondly, the criminal action that is qualified as criminal offence not as the fact of factual reality, but that of legal reality, will lose its characteristic in relation to the concrete person. If not these circumstances, to release from the responsibility due to the term of limitation would lose its sense. Where the obligation to carry out the criminal prosecution is extinct, in this case it is impossible the change occurred in the legal condition of the subject not be deemed as his/her right. In such case, extension of the real retroactivity over the person already released from the responsibility leads to negligence of predictability and reliability of the law and what is more important, such law put under the question the result occurred under the law – the person released from the criminal liability to be tried and punished.

27. The limitation makes extinct the punishability of the action, this is proved by the fact that after the expiration of the term, no matter how credible evidences may be revealed, this may not any longer become the ground for re-starting the criminal prosecution. The legislator, by such approach, defends the person from negative consequences of the expectation for negative responsibility, since the person, during the process of criminal prosecution, undergoes certain right restrictions. Clarity of the limitation with reasonable time is intensified by the fact that until the Court does not find the person guilty, he is deemed as innocent. Consequently not only the interest of criminal prosecution, but also the presumption of innocence preconditions the character of the term of limitation.

28. The validity of the mentioned assessment should be backed up by the materials collected during the process of consideration of the case. Particularly, the Opinion sent from the Venice Commission speaks about various approaches towards the mentioned problem. Namely, it is mentioned that expiration of the term of limitation not only nullifies the punishability of the action and criminal prosecution o9f the action, but also nullifies the criminality of the action ex nunc. When the term of limitation is expired, punishment of the offender is not any longer needed; it means that after the passing of the time, the criminality of the action is nullified. Therefore, its retroactive application violates the principle of legitimacy.

The judgement N11/1992 of the Constitutional Court of Hungary is to be taken into account. The Court noted that as the law determines the term of limitation, it declares the action as punishable, which was not any longer punishable under the legal system in force, by which the principle of prohibition of retroactivity of the law is definitely breached.

Pursuant to one of the precedents of the US Supreme Court (Stogner v. California, 123, S. Ct. 2446 (2003), the law of California, which after expiration of the term of limitation renewed the criminal prosecution, was deemed as violating paragraph 9 of the First Article of the Constitution of the USA, which prohibited adoption of legislation ex post facto. The court indicated that as the person was not held responsible due to the expiration of the term of limitation, and the new law has imposed such responsibility, this situation amounts to the situation when the concrete action is not punishable, but the very same action becomes punishable under the new law.

29. The fact that the legislator does not directly says that the terms of limitation should have retroactive force, must be explained in favour of the broad interpretation of the disputed norm. In case of such note, the legislator’s opinion would be definite and its unconstitutionality would be clear. If we interpret the disputed norm narrowly with its direct meaning, as it takes place in the traditional word-combination, it is evident that it would be impossible to convey the idea about which we spoke above, with the mentioned expressions. Because the legislator does not directly speak about other occasions on prohibition of retroactive force, their exclusion would be legitimate only if the norm would not provide the possibility of broad interpretation. When there is no note injurious to the person in the law, the presence of this note does not mean interpretation of the norm in question to the detriment of the person.

When it speaks about broad interpretation of the norm, the ground for this is not just reference to the guarantee for prohibition of the retroactivity, but also the fact that in the criminal law, any interpretation should be decided in favour and not to the detriment of the person, which was confirmed by the specialist invited to the given case. This axiomatic provision is the characteristic of the whole organism of criminal law and expression of its guarantee function. Furthermore, the Criminal Procedure Code also stands on this position. This circumstance indicates that while construing the will enshrined in the criminal law norm, we should not become a hostage of the expressions of traditional meaning and the normative will should be assessed by common aspiration of the whole law. As it was stated, paragraph 2 of Clause 103 of the Constitution of Germany characterizes the guarantees for prohibition of retroactive force as the punishable category and by this, it implies the retroactivity of the law regulating the punishment and criminality of the action. Even if the second sentence of the disputed norm could suppose only two occasions mentioned by the Claimants with their direct, literal meaning and not with the prohibition of retroactivity of the limitation, this would not, by any means, mean that in other case, when the condition of the person is aggravated, retroactivity of the law is permitted. Aggravation of the legal condition of the person should be directly envisaged under the law, which is one of the basic requirements of the clarit of the law.

30. The Claimants mention the previous applicable wording of the disputed norm as one of the major arguments for upholding it as unconstitutional, which in their opinion, perfectly envisaged the guarantee for prohibition of the retroactivity. In particular, under the old wording, save to the cases applicable today, retroactive force was applied to such law that “otherwise improved the condition of the offender”, and as for the law that “otherwise aggravated the condition of the offender” did not have retroactive force. Respondents presented at the court hearing the explanatory note “on draft law of Georgia on changes and amendments to some legislative acts of Georgia”, which among other things, deals with deleting the given words from the disputed norm, and which says that these changes “as a whole does not alter the concept of the Code”. The concrete motivation of these changes is not given in it. During the legal trial, the parties failed to present the evidences of what was the legal practice of the mentioned norm. It is seen from the files to the case that similar norms regulating retroactive force of the law are met in some post soviet countries only.

The circumstance is to be considered that when we talk about the guarantees for prohibition of the retroactivity in criminal law, in all cases the punishment and criminality carry this character.

31. The Claimant, Mr. Elguja Sabauri demands to uphold the disputed norms as unconstitutional, referring to the fact that it does not allow the possibility of prohibiting retroactivity of the law with regard to the conditional sentence. The conditional sentence, it is true, does not represent a type of punishment, albeit it is always connected with the punishment. The provision “mitigates” or “aggravates” as given in the law, should not be understood as only modification of the categories of punishment from the angle of mitigation and aggravation. The punishment, in this case, shall not be understood as only quantitative feature of the sanction. Its qualitative feature is important, which is revealed not only in the sanction of concrete category, but also in the form of the existence (realization) of this sanction. Since the goal of any sanction is to exercise certain influence on a person, it will not be correct to exclude the significance of these factors, when assessing the guarantees for prohibition of retroactive force of the law. Individual judicial precedents demonstrate that mitigation or aggravation (toughness) of the punishment, as its properties determining its existence, practically can be revealed during the whole time than he can affect on the legal condition of the subject.

We should give regard to the attitude taken by the European Court with regard to the concept “punishment”. The Court noted that this concept bears independent nature and while its assessment we should not be limited by the external features of the concept.

The US judicial practice on so called credit system of “the time saved” appears to be in favour of the demand on conditional sentencing, when the law reduced the number of those days that are deemed as additional for the prisoner, and that caused the extension of the term of detention for two more years (Viver V. Gam, 450, U.S. 24 (1981)). Since the mentioned law significantly changed the consequences resulted from commission of the crime, the possibility of early release was restricted, the punishment for the crime became more aggravated and this violated the principle of prohibition of retroactive force of the law.

32. When the conditional sentence is determined by the side of this or that punishment, it would be mistake if we would not see its effect on the existence of this punishment. Particularly, existence of conditional sentence allows the guarantee the possibility that the punishment may not be applied in its traditional form. When the person is awarded conditional sentence instead of serving his/her sentence, this, with its indirect meaning, is the manifestation of more advantage than that of mitigation of the punishment. The legislator, under this rule, gives the chance to the subject of the crime to avoid the sentence. Therefore, nullification of conditional sentence for the criminal action after the crime was committed should be deemed as indirect toughening of the punishment, nevertheless, that it is not envisaged in the system of punishments. The circumstance should be noted that conditional sentence is in the sphere of the system of indirect punishments. It is of accessory nature, since there is no conditional sentence without punishment and in that sense, it is, to a certain extent, a companion of the punishment. Its independent assessment does not take place and that is why we state that it exerts its effect on the sentence.

33. We should consider as incorrect the idea that the disputed norms relating to the principle of prohibition of the retroactivity, may not be applied to the relations regulated by the general part of the criminal law and consequently, the mentioned guarantees should not b extended to the conditional sentencing. It is true that the main purpose of the general part of the Code is shown in qualification of the concrete criminal actions and imposition of the punishments as prescribed under the private part of the Code, but this does not at all mean that norms of the general part does not condition one another. The guarantee for prohibition of retroactive force is a prescribed guarantee for the whole part of criminal law as the organic connection of norms and not for its one part only. When we speak about retroactivity of the law, here the whole body of the criminal law norm is implied.

All of the above mentioned show that the first part of Article 3 of the Criminal Code of Georgia does not contradict with the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia. It requires the corresponding interpretation of the Constitution.

III

Having been guided by subparagraph “f” of the first paragraph and paragraph 2 of Article 89 of the Constitution of Georgia, subparagraph “e” of the first paragraph of Article 19paragraph 2 of Article 21, paragraph 3 of Article 25, subparagraphs “a” and “b” of Article 39, paragraphs 2, 4, 7, 8 of Article 43 of the organic law of Georgia “On the Constitutional Court of Georgia”, Articles 32 and 33 of the law of Georgia “On Constitutional Legal Proceedings”,

The Constitutional Court of Georgia
Rules:

1. Not to uphold the Constitutional claim of the Public Defender of Georgia against the Parliament of Georgia on the constitutionality of the second sentence of the first part of Article 3 of the Criminal Code of Georgia with respect to the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia and the constitutional claims of a citizen of Georgia Mr. Elguja Sabauri and a citizen of the Russian federation Mr. Zviad Mania on the constitutionality of te first part of Article 3 of the Criminal Code of Georgia with respect to the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia;

2. he present judgement shall be in force from the moment of its public delivery at the hearing of the Constitutional Court;

3. The present judgment is final and shall not subject to appeal or revision;

4. Copies of the present judgment shall be sent to the parties, the Supreme Court of Georgia, the President of Georgia and the Government of Georgia;

5. The present judgment shall be published in “Sakartvelos Sakanonmdeblo Matsne” within 15 days.

Members of the Board:

Konstantin Vardzelashvili

Vakhtang Gvaramia

Ketevan Eremadze

Besarion Zoidze

Dissenting Opinion of Konstantin Vardzelashvili
Member of the Constitutional Court of Georgia
On Motivational Part of the Judgment
On Judgment N1/1/428, 447, 459 of 13 May 2009 of the First Board of
the Constitutional Court of Georgia

I would like to express my respect to my colleagues – members of the First Board of the Constitutional Court of Georgia and, at the same time, in accordance with Article 7 of the law of Georgia “On the Constitutional Legal proceedings”, I express a dissenting opinion to the motivational part of Judgment N1/1/428, 447, 459 of 13 May 2009 of the Constitutional Court of Georgia.

It is indisputably correct to see the close connection between criminality and punishability. Also, the opinion is worth to be shared that criminality does not exist separately from punishabilty and vice versa. But, at the same time, it should be mentioned that general interpretation of these concepts may not be in conformity with the content that is offered by the Criminal Code itself. Consequently, such interpretation of “criminality” by the law-enforcer runs on the verge of reasonable reading. The resource for interpretation of the expression (term) used in the law is exhausted, if there is a clear, definite and unambiguous will of the legislator with regard to the content of the term.

I believe that the arguments specified below create sufficient ground for ascertaining the constitutionality of the norm with the Constitution.

Within the limits of the given constitutional dispute, the Constitutional Court should assess to what extent the first part of Article 3 of the Criminal Code preconditions the possibility of retroactively applying the norms regulating responsibility. The disputed norm may be deemed as incompatible with the Constitution only if we consider that in the mentioned norm the legislator shall obviously read out the ground for spreading retroactively the law that aggravates the responsibility.

The principle of prohibition of retroactivity of the law is an instrumental guarantee, which protects rights of a person and legitimate expectations. Violation of the constitutional principle of prohibition of retroactivity cannot be occurred, if the law itself does not determine the ground for retroactive application of the norms that aggravate the responsibility.

It should be noted that the principle, under which, what is not prohibited – is permitted, operates only in relations of private law. Application of the mentioned principle is inadmissible when exercising repressive actions from the part of the State, the State is strictly restricted by the power conferred on it by the law. Accordingly, the argument stated by the Claimants, that the law-enforcer might fail to read in the disputed norm about the prohibition of retroactive application of the term of limitation after its expiration, does not give the ground to give retroactive force to this norm of the criminal law.

Criminal law generally envisages laying down rights-restrictive, coercive, repressive measures in response to illegal and disorderly actions. Exactly that is why it is unacceptable to use the norms aggravating responsibility when this is not directly envisaged under the legislation. In criminal law, any issue should be settled in favor of the accused, unless the law explicitly and clearly indicates the contrary.

Along with it, it should be noted that Article 47 of the law of Georgia “On Normative acts” imperatively declares that the legislative norm may have retroactive force, if it is directly provided for by the law. The law of Georgia “On Normative Acts” determines the general rule for application of the norms, among them, issues related to giving the law retroactive force. Exactly because the principles established by this law are of practical importance in he event when the criminal law norm does not provide a concrete instruction or the rule for application of the norm raises doubt.

The law of Georgia “On Normative Acts” is irrelevant in the event when the issue is comprehensively regulated under the criminal law. In the given case, paragraph 2 of Article 47 of the law of Georgia “On Normative Acts”, which foresees retroactive force only for the law that mitigates legal liability, gives additional unambiguous instructions to the law-enforce.

The Constitutional Court in one of its judgments pointed out that “… the disputed norm shall not be considered in isolation of other norms having ties to it, as such approach may lead the Constructional Court to an erroneous conclusion… if under the conditions of interpretation in goof faith, it would be impossible to apply the norm arbitrarily and to the determent of human rights, then the norm would fully comply with legal security requirements (Judgment N2/2/389 of 26 October 2007 on the case “Citizen of Georgia, Maya Natadze and others versus the Parliament of Georgia and the President of Georgia”).

Exactly that is why reasonable reading of norms of the Criminal Code of Georgia, with due regard to constitutional guarantees enshrined in the law of Georgia “On Normative Acts”, does not provide the ground for reading the disputed norm in non-compliance with the Constitution.

And lastly, the circumstance that the law-enforce is obliged to be guided by the constitutional norm when the law does not give a clear instruction to settle the issue he/she faces, should not either raise any doubt.

The law-enforce makes an initial assessment of compliance of the law with the Constitution, when it applies to the Constitutional Court with a constitutional submission. In such case, the judge considers that the normative act, he/she shall apply, may be incompatible with the Constitution. On the other hand, when there is no disagreement between the Constitution and legislative norms, but the law does not give explicit instruction or leaves open this or that issue, the judge should be guided by the Constitution, if the concrete instructions necessary for settling the mentioned case are provided in the Constitution.

The law is incompatible with the Constitution, if with regard to regulation of the concrete issue, the requirement of the disputed norm is not co-existent with requirement of the Constitution. But, when there is no disagreement between the Constitution and legislative norms, the law-enforce is able to read the norms regulating the concrete issue in the Constitution itself. In such case, there is no ground for declaring the disputed norm as incompatible with the Constitution.

The discussion provided in the judicial decision is significant and worth to be shared, it dealt with “… Not only normative acts, but also their interpretations should be in compliance with the Constitution… the law-enforce is obliged to construe the norm in accordance with the Constitution, if this is possible within the scopes of the given norm”.

Konstantin Vardzelashvili

Chairman of the First Board

Member of the Constitutional Court

Dissenting Opinion of Ketevan Eremadze
Member of the Constitutional Court of Georgia
On Judgment N1/1/428, 447, 459 of 13 May 2009 of the First Board of
the Constitutional Court of Georgia

I would like to express my respect to my colleagues – members of the First Board of the Constitutional Court of Georgia and, at the same time, in accordance with Article 47 of the organic law of Georgia “On Constitutional Court of Georgia” and Article 7 of the law of Georgia “On the Constitutional Legal proceedings”, I express a dissenting opinion on Judgment N1/1/428, 447, 459 of 13 May 2009 of the Constitutional Court of Georgia.

1. The present dissenting opinion is devoted to substantiate that there is a reasonable ground for unambiguous interpretation, including the content that is opposed to the Constitution, of the first part of Article 3 of the Criminal Code. It is true I do not exclude the possibility to construe the norm in such manner as it is provided in the judgment of the Constitutional Court; however, I believe that it is one of the correct ways and not the sole way of its interpretation. The norm truly fails to raise the obligation of its interpretation and application, in such manner, by the law-enforcer. The text of the norm, first of all, does not unequivocally refer to it; moreover, its complete interpretation leads us to an opposed conclusion.

2. When the norm provides the possibility of different interpretations (including interpretation compatible with the Constitution, as well as that incompatible with it), the law-enforcer might find all or some ways of its interpretation. If he/she can see the possibility to read the norm simultaneously in accordance with and in contradiction with the Constitution, it is natural, that he/she should construe the norm in accordance with the Constitution. However, obscurity of the norm is conveyed in providing the reasonable ground for different judges to read it in different versions. Certainly, if the law-enforcer, while applying the norm, believes that its constitutionality is questionable, then he/she should be directly guided by the Constitution, but this circumstance will not remove the problem of constitutionality of the norm.

It is indisputable that the law-enforcer has the obligation to act in accordance with the Constitution, violation of which will entail relevant consequences, but existence of such obligation cannot refute the constitutionality of the norm and cannot justify leaving unconstitutional norms in force. In case of suspicion on unconstitutionality of the norm, if direct application of the Constitution were sufficient guarantee, then the function of the constitutional review over normative acts would lose any sense.

3. The Constitutional Court is authorized and also obliged to construe the concrete norm (both norm of the Constitution and the disputed norm) as much broadly as possible in favor of human rights. It, naturally, is not restrained to literally read the norm. But, at the same time, the range of interpretation of the norm is confined by the content implied therein. The Constitutional Court is not unrestricted, it cannot give the norm the content that is not laid in it; it cannot interpret it singularly and unequivocally in such a manner as the Court regards correct, if the norm itself does not provide such possibility. Interpretation of the norm implies the complete understanding of its content within the scopes of the will expressed by the legislator and that expressed by the law. Only through this it is possible to further assess the norm.

It is true that the Constitutional Court, on the one hand, is obliged to broadly interpret the norm, to the maximum possible extent, in favor of human rights, on the other hand, to defend the presumption of constitutionality of the norm to such an extreme point, when it becomes impossible to argue its constitutionality, albeit this does not give the Constitutional Court the right to uniformly interpret questionable and obscure norms in accordance with the respective content of the Constitution, if the norm itself does not carry such resource. The Court’s obligation is to ascertain the constitutionality of the norm and not to award the constitutional content to unconstitutional norms by means of interpretation.

At the same time, possibility to inhomogeneously interpret the norm may not serve as a sufficient argument for contending about unconstitutionality of the norm. “Obscurity of the norm does not pass on the verge of its unconstitutionality until its reasonable interpretation through legal methodology is possible in a way that the genuine essence of the relations regulated by this norm becomes evident and prominent with sufficient persuasiveness” (Judgment of 26 December 2007 on the case “Young Georgian lawyers’ Association and citizen of Georgia, Ms. Ekaterine Lomtatidze versus the Parliament of Georgia”).

If the obscure norm provides the ground for its reading as opposed to the Constitution, then it fails to meet requirements of predictability and should be upheld as unconstitutional. At such time, neither the law-enforcer’s obligation – to interpret the norm in accordance with the Constitution and nor the existence of relevant practice of the Constitution only will not be able to insure the constitutionality of the norm.

4. In general, the legislator is obliged to adopt explicit, unequivocal, predictable legislation (norms) that respond the requirement of clarity of the law. This circumstance is one of the decisive criteria in assessing the constitutionality of the norm. Such obligation of the legislator derives from the principle of rule of law based state.

Only the product of the legislative activity may be deemed as “law”, which complies with requirements for quality of the law. The latter implies the conformity of the law with the principles of rule of law and legal security. Accessibility and predictability of the law is of practical and decisive importance for authentic protection of these principles. The quality of the law requires that the legislative regulation should be so clear that the person, who undergoes interference with his/her rights, could manage to adequately perceive the legal situation and could appropriately conduct his/her own action” (Judgment of 26 December 2007 on the case “The Young Georgian Lawyers’ Association and citizen of Georgia, Ms. Ekaterine Lomtatidze versus the Parliament of Georgia”).

The more intensive is interference in human rights, the stricter is the requirement towards the legislator. In such case, the legislator is obliged to provide the public authorities with guiding instructions that make predictable the possibility, lawfulness, necessity or inevitability of reaching a concrete decision by him/her, at the same time, they give an idea to a citizen what measures would be undertaken against him/her.

Predictability and accessibility of the law include the necessary condition that permissible limits of operation of persons authorized for restriction of the right shall be concrete, comprehensible, and clear. “Such requirement towards the law is necessary for assuring restriction of authorized person (body) in interfering with the right and subsequent control on him, because these official persons are charged by the rule of law state to achieve the concrete public interests. In order to be in conformity with the principle of rule of law, the law should assure the possibility to effectively protect the right from arbitrary interference from the part of the State. This, first of all, implies that power of the public authority in this field should be determined by the law itself in detail, and with sufficient degree of clarity. Accordingly, the law should not offer the possibility to let judicial or executive authorities independently define the range of their own actions. If the person authorized for interference with the right, will not be precisely and specifically aware of the limits of his/her possible actions, then on the one hand, the risk of incorrect, excessive interference with the right will unintentionally increase, and on the other hand, temptation to intentionally abuse the right, the natural effect of which is a violation of the right, will also increase” (Judgment of 26 December 2007 on the case “The Young Georgian Lawyers’ Association and citizen of Georgia, Ms. Ekaterine Lomtatidze versus the Parliament of Georgia”).

However, precision of the law also has its limits. On the one hand, it cannot envisage absolutely all possibilities. On the other hand, nevertheless that thorough clarity of the law is desirable, this may cause excessive rigidity, whereas the law should be sufficiently flexible in order to be able to adjust with changing context. Consequently, it is inevitable that more or less obscure terms and norms may be found in many laws. In such case, interpretation and application is the matter of practice. The role of justice is exactly to disperse doubts by interpretation. Therefore, in the process of complete and adequate interpretation of the substance of the law, the role of the judicial practice is truly of great importance. However, such role of the court ends there, where it becomes impossible to predict the genuine idea of the norm. Besides, the limits of interpretation of the law by the judge may not be limitless. The purpose of the Court is to fully interpret the norm and not to assign the norm with the content that is not envisaged and does not existing in it. During the interpretation and application of the norm, the law-enforcer is obliged to be guided by the reality actually described, foreseen and not to be foreseen in it. Therefore, how correctly the practice may be developed depends on clarity of the norm with sufficient degree.

Besides, while assessing predictability of the norm by means of judicial practice, the practice itself should be also predictable and accessible. This, in the first place, should be provided by the norm again.

Hence, during the interpretation of the norm, negligence of the practice of its application is not allowed, but for the law-enforcer the key to the possibility of its interpretation is still in the norm.

5. In order to find out whether the first part of Article 3 of the Criminal Code of Georgia satisfies the requirements for accessibility and predictability to the degree that its constitutionality would not raise any doubts, it is necessary to completely interpret the norm. Since the motivation of the Constitutional Court with regard to contention about constitutionality of the disputed norm depends on broad interpretation of the terms “punishment”, “criminality”, “punishability”, we, in the first place, shall pay the attention to the possible scopes for interpretation of these terms. We shall analyze as to what extent they exhaust and completely regulate the content of the criminal responsibility foreseen by the Constitution and consequently, how unambiguous the obligation to their unequivocally broad interpretation may be.

6. Term or concept foreseen in the law has its concrete and independent meaning. As we have already mentioned above, predictability and accessibility of the law require the precision and clarity as much thorough as possible of the law. Within the limits of this requirement, it is not allowed to use different terms and concepts for regulating identical relations or institutions in the one and the same law or vice versa, to use one term and concept to different by substance relations and institutions. It is possible that the relations and institutions assumed by different terms or concepts may, in light of content-wise, combine or complement one another, but in any case, when there is difference between them, the introduction of different names, simply, does not make any sense.

Stemming from the above mentioned, one should very cautiously to contend identity of different terms and concepts. If we allow such possibility, this will encourage establishment of certain terminological chaos, which will mislead both persons, to whom such norms will be applied, and the law-enforcer, and it will create the ground for different application of law. At this time, there is always a risk of making mistake.

Additionally, identification of terms and concepts to one another means an absolute identification of relations and institutions regulated by them, to allow this will naturally result in decomposition of the content of institutions themselves, will doubt the reliability of traditional meaning of concepts. All of this will create more problems on predictability of the law.

7. We agree with the opinion of the Constitutional Court with regard that, in principle, the whole criminal law is revealed in the criminality and punishability of the action and all criminal-law measure are linked with them or are derived from them. However, this, in no cases, does not mean that the term “punishment” equals to “responsibility”, “punishability” to “punishment”, “criminality” and “punishability” are identical to each other concepts.

8. Pursuant to the first part of Article 3 and the first pat of Article 7 of the Criminal Code of Georgia, the basis for the criminal responsibility is a crime, and punishment is a form of the responsibility. It is true that in the end, the criminal responsibility is revealed in the punishment, but, at the same time, it combines a number of measures which the State may undertake against the person brought to responsibility. “The Criminal Code of Georgia establishes the basis of criminal liability, determines as to which particular action is criminal, and metes out relevant punishment or other punitive measure” (the first part of the first Article of the Criminal Code). This norm indicates that from of expression of the responsibility shall not be the punishment only.

The legislator repeatedly refers to non-identity of the criminal responsibility and punishment on the criminal and criminal procedural codes. We will show you some of such norms.

The Criminal Code separately determines the grounds for releasing from responsibility and punishment, which already formally refers to their non-identity. Truly, actually during the release from the responsibility, a person is also released from the punishment, but the following distinctive signs are worth to be considered:

Release from the criminal responsibility occurs in case of presence of the following circumstances: due to effective confession, reconciliation with the victim, change of circumstance, cooperation with investigatory authorities and the expiration of the term of limitation (Articles 68-71 of the Criminal Code of Georgia). Upon presence of all these grounds, the process of releasing from the criminal responsibility precedes in time the administration of the punishment against the person (At this time, the issue to administer the punishment does not take place). The same is indicated in Article 28 of the Criminal Procedural Code, which determines the grounds for termination of criminal prosecution and preliminary investigation. In such cases, the person is released from the criminal responsibility without administering the punishment.

In this sense, it is important that the Criminal Procedural Code of Georgia foresees the grounds for rehabilitation of the person accused illegally and uncorroboratedly (Article 219). Nevertheless that the sentence was not administered to the person and therefore, he/she did not serve it, a range of measures undertaken by the State against him/her (for example, preliminary detention) constitute the measures carried out within the limits of the responsibility, in case of illegality or non-corroborativeness of which, the obligation to restore rights of the person sets in.

The person may be assigned the responsibility without serving the sentence, the guilty verdict may be reached against him with administering the sentence and release from serving it; without administering the sentence (Article 503 of the Criminal Procedural Code), conditional sentence may be imposed against him/her or certain period of probation may be awarded to him/her.

Cases on release from the punishment are provided in Articles 72-76 of the Criminal Code. Here, the legislator thinks that there is the criminal action present, there are no grounds for release from the responsibility, and consequently, the criminal responsibility and punishment are imposed against the person. However, upon existence of circumstances foreseen in the given Articles, the person may serve this sentence in lighter form or fully release from it. It means that in such cases, nevertheless that the person may not serve the sentence, the legislator thinks that he/she is not released from the criminal responsibility, as he/she deems the fact of awarding the sentence as the from of the responsibility.

Stemming from the abovementioned, there is unequivocal will of the legislator with regard to the non-identity of the criminal responsibility and punishment.

9. I agree with the opinion of the Constitutional Court with regard to interpretation of the term “responsibility” foreseen under the Constitution that it combines the matters of the terms of limitation and conditional sentencing, due to which, the issue of operation in time of the norms regulating these institutions is protected by the Constitution. In particular, under the second sentence of paragraph 5 of Article 42 of the Constitution, the laws aggravating the terms of limitation and conditional sentence shall have no retroactive force.

However, at the same time, we cannot share the opinion of the Constitutional Court on the fact that upon expiration of the term of limitation, because of its extension, laying out the criminality of the action takes place by bringing the person to responsibility, and by aggravating the conditional sentence – toughening of the punishment, because of which the norms regulating the terms of limitation and conditional sentence fell within the scope of operation assured by the first part of Article 3 of the Criminal Code, just like it is foreseen in the term “responsibility” enshrined in paragraph 5 of Article 42 of the Constitution of Georgia.

10. Under the first part of Article 7 of the Criminal Code, the crime is the illegal and disorderly action under the Criminal Code. The criminality of the action implies the character of the action to be a crime, i.e. to be characterized with the unity of three mentioned components. Hence, to deem the action as criminal, it is necessary to have both relevant normative basis i.e. it should be regarded as crime by the law, and illegality and disorderliness of the action. If any of these components is missing, the action is not criminal.

Precondition of the crime by these three components only excludes the dependence on the time factor for considering the action as criminal. Guilt and illegality of the action do not include the element of period; they are not, in any way, linked with time. Therefore, the criminality of the action cannot depend on the terms of limitation. Due to the expiration of the term of limitation, when releasing the person from the responsibility, the action remains as criminal – expiration of the term of limitation may not refute the consideration of the action as a crime under the Criminal Code, as well as illegality and guilt of the concrete person, simply it cannot be verified within certain time-limits. At this time, facts of committing and not committing the crime are equally suspicious. So commission of the crime by the person is not excluded, rather because of precisely ascertaining it, he/she is released from the responsibility and the action allegedly committed by him/her is not any longer punishable.

It is worth to be taken into account that the second sentence of the first part of Article 3 of the Criminal Code deals with “lay down the criminality”. The term “lay down” means introduction of the rule. Introduction of the rule stemming from the content of “the rule” does not occur towards the concrete person, it is extended t the circle of persons. Therefore, to lay down the criminality of the action means the introduction of the rule that finds a particular action as criminal, i.e. it implies admitting the action only as criminal under the Criminal Code and in no event, finding the concrete person guilty. It is impossible to lay down the offence against a person, the fact of committing the criminal action that is already laid down is to be ascertain (either confirm or reject) towards the person.

Since “lay down the criminality” implies only normative regulation of admitting the action as criminal, it may not be connected with the changes in the terms of limitation. By bringing the person to responsibility as a result of increase in the term of limitation, not only laying down the criminality takes place but also extension of criminal prosecution against the person for already laid down criminal action.

Stemming from the abovementioned, the disputed norm with regard to the terms of limitation does not include the regulation similar to the Constitution.

11. Analysis of separate Articles (Articles 40, 41, 82 and 107³) of the Criminal Code shows that the punishment for the Criminal Code is a general word indicating different concrete types of punishment. As for conditional sentence, it is not placed within the system of punishments; it is regulated by a separate chapter. Conditional sentence is one of the institutions of the Criminal law. The law separately defines the rule and conditions on its administration.

Conditional sentence by its nature represents certain advantage, the change of punishment under certain condition. If the Court considers that person’s improvement is possible without application of the concrete type of punishment awarded to him/her, it will consider the punishment as conditional (i.e. the person actually does not serve the sentence).

Conditional sentence represents not the type of punishment and measure, but the form of its serving, criminal-law measure, which may be undertaken towards the concrete person. Not only the Criminal Code, but also many Articles of the Criminal Procedural Code speak about this. For example, the second part of Article 508 of the Criminal Procedural Code, the conditional sentence is indicated independently along with the type of punishment and measure.

Hence, under the Criminal Code, the conditional sentence is not deemed as punishment. Accordingly, what is not the punishment for the law, neither the law-enforcer may consider as such.

Stemming from the abovementioned, the disputed norm on the conditional sentence does not include the regulation similar to the Constitution.

12. The presented analysis creates reasonable ground for the law-enforcer not to construe the first part of Article 3 of the Criminal Code so broadly as it is provided in the judgment of the Constitutional Court. Such way to read the disputed norm refers to non-identity of its content with the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia. However, non-identity of the disputed and constitutional norms, by itself, does not mean the unconstitutionality of the norm. Under the conditions of such reading, for ascertaining the constitutionality of the norm, it is necessary to further interpret it.

13. The Constitution itself defines the range allowable for system interpretation of the first part of Article 3 of the Criminal Code.

The second sentence of Paragraph 5 of Article 42 of the Constitution of Georgia establishes for the legislator not only substantial requirements (when the law may have retroactive force or when it is prohibited), but also establishes formal requirement. In particular, under the Constitution, the law may have retroactive force, if it (i.e. this law itself) mitigates or abrogates the responsibility, i.e. the possibilities to give the law retroactive force should be regulated by this law itself. Consequently, the formal requirement of the Constitution is that the matter of giving the criminal law retroactive force should be decided by the Criminal law itself.

It is noteworthy that the second sentence of the first part of Article 3 of the Criminal Code regulates not the matters of giving the criminal law retroactive force; rather it specifies the cases of prohibiting retroactive force. Accordingly, the Respondent believes that since it is the requirement of the Constitution that the Criminal Code by itself should regulate only the matters on awarding (and not prohibiting) retroactive force, the scopes of prohibition of retroactivity of the Criminal Code may be clarified not only by this law. Therefore, in the given case, we should assess the Respondent’s opinion with regard that the legal omission existing in the disputed norm is possible under Article 47 of the law of Georgia “On Normative Acts”, which assures the prohibition of the law on increasing the terms if limitation or toughening the conditional sentence, as the law aggravating the responsibility.

Such opinion is without grounds because of the following circumstances:

a) It is true that the direct requirement of the Constitution is that the possibilities of its retroactive application foreseen by the Criminal Code, but this, naturally, means that there will be (and must be) also the answer to the limits for prohibition of retroactive force of the same law here. Since there is no other datum of operation of the law in time, to regulate the matter of giving retroactive force to the law simultaneously means establishment (correction) of the limits for prohibition of retroactive force of the law. It is impossible to determine the cases on giving retroactive force to the law without the changing the circle of prohibition of retroactive force – these processes are concurrent. Hence, the given formal requirement of the Constitution, by itself, implies that the possibility and cases both to give retroactive force to the Criminal Code and, stemming from this, to prohibit it should be provided in the Criminal Code. Consequently, the Criminal Code will have or will not have retroactive force only within those limits that will be established by the Criminal Code itself.

b) The Criminal Code anyway provides both regulations of its operation in time. Hereby, it is noteworthy that pursuant to Article 2 and the first sentence of the first part of Article 3 (analysis of these norms are provided in the following paragraphs), the limits for prohibition of retroactive force is identical to Article 47 of the law of Georgia “On Normative Acts”, because of which the issue of possibility to apply the law on Normative Acts loses its actuality at all.

Stemming from the abovementioned, the systemic analysis of the disputed norm should occur within the limits of the relevant norms of the Criminal Code only.

14. In the Criminal Code, the presumption of prohibition of retroactive force of the law is given in Article 2, and exceptional cases for allowing retroactive force of the law is given in Article 3.

It is important to clarify the scope protected by Article 2, in order to ascertain in the given case whether the general rule of operation of the criminal law I time is extended to the norms regulating the terms of limitation and conditional sentence.

We agree with the judgement of the Constitutional Court with regard to interpretation of Article 2, but considering that there is a reasonable ground to interpret “criminality” and “punishability” in such a way as it is given in the present dissenting opinion.

15. It would be incorrect to equal the term “punishability” to that of “criminality” or ‘punishment”.

It is natural that any action that is regarded as a crime under the Criminal Code is punishable and vice versa, the action that is not deemed as a crime under the Criminal Code may not be punishable. It is true that “punishability” is associated with criminality, and the term related to it, albeit not identical of it. If this were so, then its existence would lose its sense.

Simultaneously, the term “punishability” does not mean only confirmation of the punishability of the action, but also implies raising the issue in general on admitting or not admitting the action as punishable, also deciding this issue with any possible way.

The action is punishable, when a) if it is in general criminal i.e. it is deemed as a crime under the Criminal Code; b) the action foreseen under the Criminal Code is committed by the concrete person (the action of this person is punishable).

The action is not punishable, when: a) it is not deemed as a crime under the Criminal Code; b) when the circumstances excluding the criminality are present. For example, in case of presence of the circumstances excluding the guilt (release from liability due to age or mental illness) the person will not be deemed as guilty and no punishment will be imposed against him/her for illegal action as foreseen under the Criminal Code; c) when there is the circumstances excluding the responsibility present. For example, the action de to the expiration of the term of limitation shall not any longer be punishable.

Besides, “punishability” stemming from the content of the term is not identical to “punishment”. It, truly, combines the imposition of the concrete type of punishment for the concrete action as foreseen under the Criminal Code, as well as issues of mitigating and toughening the punishment, but it is not limited by this content.

Punishability is a somewhat collective name, which combines both admitting-not admitting in general the action as punishable and ascertaining issues related to serving the sentence because of the concrete action, in particular: a) Whether or not the criminal prosecution against the person will be carried out; b) what punishment will be awarded (type of punishment); c) How (in what from) will the person serve the punishment and etc.

Hence, the term “punishability” also includes ascertaining the issues related to the term of limitation and application of the conditional sentence.

Stemming from this, the rule as prescribed by Article 2 of the Criminal Code, exactly by means of the term “punishability”, includes not only the norms regulating criminality and punishment, but also it is extended to other issues, among them, to the terms of limitation and conditional sentence. Particularly, with regard to these institutions, Article 2 establishes that when applying the norms regulating terms of limitation and conditional sentence, the presumption on prohibition of retroactive force applies, i.e. the law-enforcer should apply the law applicable at the time of committing the crime.

16. Article 3 of the Criminal Code, as it is seen from the name – “retroactivity of criminal law”, is dedicated to determination of exceptional cases for awarding retroactivity to the law from the general rule 9Article 2) on prohibition of retroactivity of the law. In this Article, save to the second sentence of the first part, the legislator within the discretion awarded to him/her by the Constitution, defined as to which criminal law which mitigates the responsibility should have retroactive force.

17. In the first sentence of the first part of Article 3 the legislator determines two cases, when the criminal law should have retroactive force. These cases are: If the law nullifies the criminality of the action or mitigates the punishment; i.e. the criminal law, under the first sentence of the first part of Article 3, has retroactive force in such cases only. As a result of joint reading of Article 2 and the first sentence of the first part of Article 3 of the Criminal Code, save to the mentioned two cases, the criminal law (among them laws on increase of the term of limitation and aggravation of conditional sentence) does not have retroactive force (it is natural, here we do not touch other cases allowing retroactive force, which are foreseen by the rest part of Article 3).

Stemming from the abovementioned, nevertheless that the main purpose of the first sentence is to determine exceptional rules for awarding retroactive force, we may say that there are two rules in this norm – when the law has retroactive force and when not. In general, with regard to operation of the law in time, there is no other solution – norm either is awarded the ability to regulate the relations existing before its enactment or not.

Since there are two choices with regard to retroactivity of the law, the legislator had the possibility to determine only those cases, when the criminal law will have retroactive force as a concrete exception from the general rule on prohibition of retroactive force, by which prohibition of retroactive force will be automatically extended towards the rest cases. Exactly such is the requirement of the Constitution for the legislator. He/she should determine only those cases when the law may have retroactive force. In this case, we would have transparent regulation in the Criminal Code on deciding the issue of awarding-not awarding retroactive force to the same law.

Stemming from here, it is logic to deem the first sentence as sufficient to decide the issue of operation of the law in time for the relations foreseen by the first part of Article 3, since both questions are answered – when the law should have retroactive force and when not.

18. This normative order is broken by the second sentence of the first part of Article 3. Here, the legislator specifies two cases, when the law may not have retroactive force, particularly: if the law lays down the criminality of the action or toughens punishment. Hence, this norm directly refers not to the possibilities of allowing retroactive force, as it is required under the heading of Article 3, but to the cases on prohibition of retroactivity. Besides, it introduces special, concrete cases on prohibition of retroactive force for the general rule on prohibition of retroactivity. Such formulation of the norm, naturally, does not automatically provide the possibility to unambiguously contend that save to these two cases, the law has retroactive force. However, systemic analysis of the norm not only excludes it, rather, on the contrary, provides the reasonable ground for such interpretation exactly.

19. Prohibition of retroactivity of the law in the cases given in the second sentence of the first part of Article 3 is already foreseen by Article 2 and the first sentence of the first part of Article of the Criminal Code, with the difference that the circle of prohibition is narrowed in the second sentence of the first part of Article 3. It deals only with laying down the criminality of the action and toughening punishment. Consequently, it does not include the prohibition of retroactive force for other laws aggravating the responsibility, among them the laws on increase of the terms of limitation and on toughening the conditional sentence.

At one glance, by itself, what is written in this sentence does not contradict the Constitution, since the Constitution also prohibits giving retroactive force to the laws aggravating the punishment and establishing the criminality. It seems that the problem should not also be that the disputed norm incompletely regulates the limits for prohibition of retroactivity of the law protected by the Constitution, because, as we mentioned already, the first sentence of the first part of Article 2 of the Criminal law includes the prohibition of retroactive force for the law that aggravates the responsibility (among them for the laws on the terms of limitation and aggravating conditional sentence). Accordingly, without exigency of completely repeating these issues in the second sentence of the first part of Article 3, adequate regulation of the scope protected by the Constitution is already foreseen by the Criminal Code.

But against such background, it becomes absolutely incomprehensible the motivation for introducing the second sentence. If it does not say anything new and partially repeats what is already regulated by the Criminal Code, then its existence becomes senseless. In such case, it appears that while deciding on the issue of giving-not giving retroactive force, the law-enforcer is not retrained by its limits. This circumstance makes us think that the sole purpose of this norm is exactly that narrows the scope for prohibition of retroactivity of criminal law. Otherwise, its existence, moreover in the norm establishing exceptions from the rule, is not of any significance.

20. When establishing of the exceptions from the general rule takes place, there is no room left for spreading the general rule on them. If extension of the general rule on exceptional relations occurs, this is not any longer exception. So, it is logical that when the legislator introduces exceptions, this simultaneously means expression of his will that the general rule should not be applied on these cases, and that the general rule is not valid on within the limits of exceptions.

Stemming from this, we may say that the second sentence of the first part of Article 3 establishes 2 rules – the first rule establishes the cases in which the law will not have retroactive force, and the second one – stemming from name, purpose and aim of the Article, implies that the law will have retroactive force in all other cases. Consequently, by specifying special cases on prohibition of retroactive force, prohibition of retroactivity on other remaining cases is excluded; i.e. the norms that remain beyond the second sentence of the fist part of Article 3 of the Criminal Code, because of the second sentence, remain without the defense by prohibition of retroactive force.

The appeal on formal requirement of the Constitution, that such cases should be indicated in the law, when it may have (and is not prohibited) retroactive force, may not be served as a counter argument to the above. Only the circumstance that this formal requirement of the Constitution is not fulfilled and it does not directly contain that the law aggravating the terms of limitation and conditional sentence may have retroactive force, does not provide the possibility of contending that there is not legislator’s will on awarding retroactive force to such law.

21. The following circumstance is necessary to be considered: nevertheless that paragraph 5 of Article 42 of the Constitution establishes two rules – when the law may have retroactive force and when not, the main say still is the emphasis on the general rule on prohibition of retroactivity of the law. Against such background, it becomes more significant the special weight of the second sentence of the first part of Article 3 of the Criminal Code. When, in parallel with existence of the general rule on prohibition of retroactivity in the Criminal Code, additional introduction of the special norm on prohibition of retroactive force occurs extraordinarily, the will of the legislator on its necessity and special motivation becomes more eminent.

Hence, exactly the fact that prohibition of retroactive force became tied with two concrete cases, provides the possibility of reasonably construing the norm as the expression of the legislator’s will on declining the limits that are established by the Constitution, for prohibition of retroactivity in the scope of Criminal law. In any case, construction, purpose, name of Article 3 provides the law-enforcer with sufficient ground for such interpretation. This results in that the laws on increase of the terms of limitation and on aggravation of conditional sentence may have retroactive force. Such reading of the norm comes in contradiction with the Constitution.

22. Stemming from the all above-mentioned, the problems caused by the disputed norm becomes clearer. In particular, the first part of Article 3 both independently and together with Article 2 provides the possibility to make contradictory and conflicting conclusions. In Article 2 and in the first sentence of the first part of Article 3, the legislator prohibits giving retroactive force to the law on the terms of limitation and aggravation of conditional sentence, and in the second sentence of the first part of Article 3, he narrowing the circle for prohibition of retroactive force, excludes the prohibition of retroactivity in these same cases. Precisely the circumstance that the second sentence regulates only two concrete cases of the general rule creates contradiction both inside the first part of Article 3 and with respect to Article 2 as well.

Against such background, there is no unambiguous will of the legislator on the limits for prohibition of retroactivity of criminal law. The law-enforcer does not have an unequivocal reference as to how to act. If the law-enforcer considers that the second sentence only repeats Article 2 and it does not have an independent meaning, then no law that aggravates the responsibility should be retroactively applied. And if he considers that the second sentence of the first part of Article 3 has an independent and special weight (we have verified above the validity of such logic), then, as we already mentioned, the law-enforcer has the possibility to read and apply the norm in contradiction with the Constitution, and his such interpretation will be in accordance with the law (Criminal Code).

23. It is noteworthy that representatives of the parties (both Claimant and Respondent) do not have unambiguous positions on interpretation of the norm either. Each of them expressed many different, moreover, conflicting positions at the court hearing. Particularly, representatives of the Claimant exclude the possibility to broadly interpret the norm (all the laws aggravating the responsibility are considered in it). Besides, they do not have firm arguments with regard that the norm unambiguously contradicts the Constitution, if it provides the possibility to read it inhomogeneously and is unconstitutional due to its obscurity. They, on the one hand, based on the practice of applying the norm, substantiate that it excludes prohibition of retroactive force of the law (save to toughening punishment and establishing the criminality) aggravating the responsibility, because of which the norm is unconstitutional. However, on the other hand, its obscurity is stated as the reason for the norm to be unconstitutional, which under their opinion, is manifested in the following way: a) the norm is faulty, it fails to fully regulate the scope protected by the Constitution and give the law-enforcer the possibility to make decision based on its own judgment. b) The both sentences of the first part of Article 3 are contradictory. Under the first sentence, the law aggravating the responsibility should not have retroactive force, and under the second sentence, it may have retroactive force. Such contradiction, under their opinion, confuses the law-enforcer.

Representatives of the Respondent interpret the norm broadly, and believe that it does not deal with only private part of the Criminal law and fully combine the scope protected by the second sentence of paragraph 5 of Article 42 of the Constitution. However, they did not contend that the norm should be interpreted in such way only. Moreover, initially they indicated that the term “responsibility” provided in the Constitution is broad, it includes punishment and the punishment by its content cannot equal to the responsibility. In the concluding speech, they do not exclude the possibility to interpret the norm narrowly, but in their opinion, what is written in the norm does not contradict the Constitution and the law-enforcer should fill the omission of the law by the Constitution and by the European Convention for the protection of Human Rights and Fundamental Freedoms.

We believe that unsteady position, inconsistent argumentation of the parties make the problem of the norm on its predictability more prominent.

24. As we already mentioned, for assessing predictability of the norm it is important to analyze the practice of its application.

It is noteworthy that the practice of application of the first part of Article 3 of the Criminal Code presented in the case also indicates about the possibility to read it unequivocally.

Here, it should be mentioned that existence of the practice opposed to the Constitution based on the norm, does not unambiguously suppose the unconstitutionality of the norm as well as development of the practice compatible to the Constitution cannot be always served as exhaustive argument for contending the constitutionality of the norm.

Within the margins of the constitutional dispute, the Constitutional Court should assess whether the clarity of the norm amounts to such degree that, based on its application, unequivocally excludes even single case of violation of constitutional right. Naturally, here this does not imply the cases of excessive interference with the right as a result of violation of the law. Reasoning on these issues goes beyond the limits of power of the Constitutional Court. The following circumstance has a decisive importance: possibility of what practice the norm provides in case of its reasonable reading, whether or not it causes the risk of violation of a constitutional right.

25. On the case of the Claimant, Elguja Sabauri, the District Court of Kazbegi noted in its ruling of 19 June 2006 “… we believe that the accusation of David Ghudushauri drafted under paragraph “a” of the second part of Article 143 of the Criminal Code is correctly drafted and he should be found guilty under the given qualification, the qualification of the abovementioned Article has changed during the legal proceeding of the case and it was toughened, so according to Article 3 of the Criminal Code, the old law should be applied…”.

Despite the fact that the Court did not give retroactive force to the law (laws both on sanction and on toughening the conditional sentence) aggravating the responsibility, it is difficult to argue that the Court, in aggravation of the qualification, implied both toughening the sanction foreseen by the concrete Article and aggravating the conditions for application of conditional sentence. Nothing is said in the decision on application of Article 3 with regard to conditional sentence directly, there is no relevant motivation. However, if we assume that the Court applied the lenient law (did not give retroactive force to the law in force) with regard to the conditional sentence based on Article 3, we can suppose that it broadly interpreted the term “punishment” given in Article 3 and it implied in it not only types of concrete punishment or toughening-mitigating sanction, but also conditional sentence.

It is noteworthy that the Appeal Court fully shared the argument given in the appeal complaint of the Office of Public Prosecutor and declared that the District Court of Kazbegi was not entitled to apply the conditional sentence: “It is without ground the reasoning of the judge on giving retroactive force to Articles 63-64 of the Criminal Code, as the given norms are of general nature, and Article 3 of the Criminal Code deals with norms of private part of the criminal law, which mitigate or toughen the punishment” (Decision of 11 September 2006 of the Chamber of Criminal Cases of Appeal Court of Tbilisi).

The Supreme Court on the mentioned case rendered the decision on recognizing it as inadmissible. We can see in its ruling: “as for the punishment awarded to the convict, it is fair and the Chamber of cassation also shares the opinions and conclusions of the Appeal Court in this part” (Ruling N1013ap of 14 January 2007 of the Supreme Court of Georgia). Naturally, with the fact of recognizing the case as inadmissible, the Supreme Court declared that the position of the Appeal Court, among them with regard to application of conditional sentence, was in conformity with the practice established by the Cassation instance.

Hence, Appeals and Supreme Courts consider that the scope protected by Article 3 represents only the private part of the Criminal Code and accordingly, norms regulating the conditional sentence stay beyond the limits of regulation by this Article; i.e. the Court exclude broad interpretation of the disputed norm. As it appears that they do not either consider as possible to apply Article 2 at this time, since in such case, they would apply not the new law that aggravates responsibility, but the lenient law that was applicable at the time of committing the crime, what they did not do. The following logic may be suitable for contending the lawfulness of this decision: the circumstance that there is no direct answer on conditional sentence in Article 3 does not mean that Article 3 does not affect this issue. Since in the first part of Article 3, as in the norm establishing exceptions from the general rule, the legislator confines the prohibition of retroactive force by only laying down the criminality and toughening the punishment, this preconditions that the remaining scope is not protected by such condition and extension of retroactive force over it is possible.

It is difficult to argue to what extent the motivation of the Court was like this or other, moreover, there is nothing said about it in the decision itself. We can only make assumptions within the limits of possibilities provided by the disputed norm.

In case of Mr. Mogeli Tkebuchava, both the District and Appeal courts gave retroactive force to the law on the issue on increase of the term of limitation so that they did not rely on Article 3 of the Criminal Code and did not at all reason on the possibility to extend the application of Article 3 of the Criminal Code to the law regulating the terms of limitation.

In the given case, it is also incomprehensible the Court’s motivation. If they considered that this issue does not fall within the scope protected by Article 3, then they should have applied the general rule on prohibition of retroactivity as prescribed by Article 2. However, they did not do it, they applied the new norm regulating the terms of limitation and not the one applicable at the time of committing the crime.

Nevertheless, that after expiration of the term of limitation, there are not any concrete decisions in the files to the case on application of the rule of operation of the law in time on the norms regulating these same terms (the given case is about retroactive application of the law on extension of this term before the expiration of the term of limitation), under the decision mentioned above, we may confer that in general, with regard to the terms of limitation, the Appeals and Cassation Instances will have the same attitude as they have on conditional sentencing. In the decisions, there is a general approach with regard that Article 3 may be applied with respect to only Private Part of the Criminal Code, meaning that Article 3 shall not be able to be extended to any norms of the General Part, including those regulating the terms of limitation.

26. Positions of the parties are interesting with regard to the judicial practice. The Claimants believe that decisions of Appeal and Supreme Courts, it is true, are against the Constitution, albeit are in full conformity with the disputed norm. The law provided the possibility to them to make such decision. It is another issue, that the Court at this time should have been guided by the Constitution. For example, representative of Mr. Sabauri considers that the decision of the first instance is in line with the Constitution only because that the Court directly relied on the Constitution. While representatives of the Respondent do not consider the norm as a reason for establishing such judicial practice, they raise doubts on legitimacy of the practice itself, as in their opinion the disputed norm should have been interpreted broadly.

27. Analysis of the practice refers to the following problems on application of the disputed norm:

1) There is no unequivocal position on the limits for interpretation of the norm: It is true that there is a precedent about extension of the disputed norm on the General Part of the Criminal Code (Decision of the Court of First Instance on the Case of Mr. Sabauri), however, the Appeals and Supreme Courts unambiguously construe that the scope protected by Article 2 is the Private Part of the Criminal Code only, which implies that they exclude the possibility to construe the norm broadly. It is suggestive that the Cassation Instance has such position. This means inevitability of exactly such development of the practice in the future. It is noteworthy that this practice of the Supreme Court concerns the general issue. We deal with application of the General Rule, formulation of the common approach on the limits of it interpretation, which preconditions homogenous application of the norm in all analogous cases.

2) The existing practice also refers to the uncertainty in what cases criminal law should not be given retroactive force – within the limits prescribed by Article 2 or the second sentence of the First part of Article 3.

3. When applying the disputed norm if the law-enforcer would not made decision immediately based on the Constitution, he/she would have to make choice between declaring the disputed norm as meaningless provision and giving retroactive force to the law, for which it is forbidden by the Constitution to give retroactive force.

We believe that such legislative regulation, which causes the risk of violation of the right upon application of the law, is against the requirement of preciseness and transparency of the law.

28. Stemming from the all abovementioned, we may make the following conclusions:

The disputed norm allows the possibility to construe it inhomogeneously. Each versions of its reading is reasonable and has the right for existence. Besides, neither version is definitely instructing for the law-enforcer to interpret (apply) the norm precisely and in such manner. Consequently, the legislator does not clearly determine, does not provide sufficiently explicit and precise instructions to the law-enforcer, as to how to decide the issue, by which it gives the possibility to him to make decision at his discretion.

It is noteworthy that we do not either deal with the case, when inappropriate preciseness of the norm may be completed by means of its reasonable interpretation in the judicial practice, by which the norm will finally comply with the requirements of quality of the law. In the given case, there is no sufficient degree of predictability for homogenous, sufficient interpretation by means of the judicial practice. The existing judicial practice does not remove the problem on doubtfulness of accessibility, but on the contrary, makes it more prominent instead.

Stemming from the abovementioned, the norm cannot comply with requirements of predictability and accessibility. As a result of reasonable interpretation by the legal methodology, one of the versions of its reading is against the Constitution.

30. From the present argumentation it was discerned that the problematic of the first part of Article 3 preconditions the second sentence. Without this sentence, the first sentence of the first part of Article 3 is sufficient for regulating the issues (both issues on prohibition of retroactive force and on giving retroactive force) of operation of the law in time in conformity with the second sentence of paragraph 5 of Article 42 of the Constitution of Georgia.

Stemming from the abovementioned, I believe that the second sentence of the first part of Article 3 of the Criminal Code contradicts the Constitution of Georgia.

Member of the Constitutional Court of Georgia

Ketevan Eremadze

Dissenting Opinion of Vakhtang Gvaramia
Member of the Constitutional Court of Georgia
On Motivational Part of the Judgment
On Judgment N1/1/428, 447, 459 of 13 May 2009 of the First Board of
the Constitutional Court of Georgia

I would like to express my respect to my colleagues – members of the First Board of the Constitutional Court of Georgia and, at the same time, in accordance with Article 7 of the law of Georgia “On the Constitutional Legal proceedings”, I express a dissenting opinion to the viewpoints offered on paragraph 25 of the Judgment N1/1/428, 447, 459 of 13 May 2009 of the Constitutional Court of Georgia.

In paragraph 25 of the Judgment N1/1/428, 447, 459 of 13 May 2009 of the Constitutional Court of Georgia, the Constitutional Court construed that “When the legislator in such a way increases the terms of limitation, while the term of limitation established by the old law has not yet been expired, this case can not be deemed as infringement of the Constitution. It does not contradict with the constitutional principle…”.

As a Judge participating in the legal proceeding, I believe that to give retroactive force to the law regulating the terms of limitation to the detriment of a person should be deemed as inadmissible even in the event when the term of limitation established by the old law has not been yet expired. It is sufficient to allow retroactive operation of the new term, that not only the rights of the concrete person will be infringed, but also the legal security will be breached. In particular, his may result in “immortality of criminal prosecution” against the person. If we would make idealization of interests of the justice, the legislator would still have the right to give the law retroactive force, when the term of limitation as prescribed by the old law is expired. The difference between the cases of exposition of the limitation is only that in one case, the person has already acquired a material right and, therefore, the case deals with an already existing right. In the second case, the guarantee to acquire this right is provided by the old law and, therefore, there is a future right at hand. The legislator is obliged to make not only present, but also future rights guaranteed. It is not allowable to take different approach these cases on existence and exposure of the right. It is possible that in one case, the legislator may be constrained by certain interests and in another case he/she may not be constrained by the same interests. The term of limitation should be applied towards all offenders, which was applicable at the time of committing the crime. Allowing retroactive force to the increased term of limitation, when the old term of limitation has not been yet expired, aggravates the condition of the person. If the term of limitation applicable at the time of committing the crime applied towards him/her, then release from criminal responsibility of the person would have been possible earlier than it is foreseen by the new term of limitation. By this, the new law by extension of the term of limitation again declares as punishable the action subject to nullification under the old term of limitation. This condition, by broad and systematic interpretation of the disputed norm, is inadmissible, because the limitation represents material-legal institution and its retroactive application infringes the principle of legitimacy.

Retroactivity of the law may not be justified by the interests of criminal prosecution, in particular by that the crime, despite the time of its commission, requires united terms for it. In the event of such approach, guarantee function of criminal law would lose its sense and all cases on prohibition of retroactivity would be groundless at all, because for its negation, the legislator may have stated certain interests.

When it is justified based on guarantee for prohibition of retroactive force to produce different effects for different persons envisaging the time of committing the crimes in the event of the crimes of one category and when this does not come in contradiction with the interests of objective justice, then why the principle of prohibition of retroactivity of the law should be estranged with these interests in he case of criminal prosecution. The legislator’s effort to place all offenders under the influence of unified time for criminal prosecution would be still unachievable, because it is objectively impossible to be extended to all cases. The legislator is constrained by the time and the time obligates him, when the case deals with applying the law in favour of the person. We should take into account the circumstance that any law is the product of certain time and consequently, considering this, the presumption of its necessity and obligatoriness applies. When the legislator states that after a certain period, he/she will terminate criminal prosecution, by this, he/she determines the right of the person to be released from responsibility within this concrete time period. The result of expiration of the term of limitation is impossible to be protectable good, represent the person’s right and the term by itself was excluded from the sphere of interests that are worth to be regarded. Paragraph 6 of Article 28 of the Criminal Procedural Code states in favour the abovementioned, which foresees inadmissibility of termination of criminal prosecution and the possibility of its continuation based on the will of the accused. Despite the nature of the verdict, the person is released from the responsibility. This fact also implies that existence of the right is the character of the term. If it were not so then, in case of establishing the guilty verdict, the person should not be released from responsibility. By retroactive application of the term of limitation, the pass may be opened for excessive continuation of criminal prosecution. It is noteworthy that representatives of the Respondent also confirm the prohibition of retroactivity of the limitation. In their opinion, upon reasonable reading of the disputed norm, in particular, taking into account the general principles of criminal law, and provisions provided in the Constitution, while interpreting, the First Part of Article 3 comprises all remaining cases on prohibition of retroactive force, which is not seen from literal reading of this norm. In the opinion of representatives of the Respondent, the present applicable wording of the disputed norm, under the conditions of similar reading and interpretation, does not differ from its wording applicable earlier.

Member of the Constitutional Court of Georgia

Vakhtang Gvaramia