Composition of the Board:

Konstantine Vardzelashvili – President of the hearing, Judge Rapporteur;

Ketevan Eremadze – Member;

Vakhtang Gvaramia – Member;

Besarion Zoidze – Member.

Secretary of the Hearing: Lili Skhirtladze.

Title of the case: Citizen of Canada – Hussein Ali and citizen of Georgia – Elene Kirakosian v. the Parliament of Georgia.

Subject of the dispute: Constitutionality of Article 6977(2) and Article 6978(2) of the Code of Criminal Procedure of Georgia in terms of Article 42(1) of the Constitution of Georgia.

Participants of the hearing: Alexander Baramidze, Representative of Hussein Ali (claimant) Meri Japaridze and Anna Tvaradze, representatives of Elene Kirakosian (claimant) Batar Chankseliani and Levan Kasradze, representatives of the Parliament of Georgia (respondent).

I

1. On 11 September 2006 Hussein Ali, citizen of Canada residing in Georgia, lodged a constitutional claim with the Constitutional Court (registration number 403); on 29 May 2007 citizen of Georgia, Elene Kirakosian lodged a constitutional claim with the Constitutional Court (registration number 427).

2. The Constitutional Court of Georgia under the recording notice of 9 November 2006 admitted the constitutional claim of Hussein Ali for the consideration of the merits under the head of constitutionality of Article 6977(2) and Article 6978(2) of the Code of Criminal Procedure of Georgia in terms of Article 42(1) of the Constitution of Georgia. Since #403 and #427 constitutional claims concerned the same impugned provision – Article 6978(2) of the Code of Criminal Procedure of Georgia, the Constitutional Court admitted the constitutional claim of Elene Kirakosian for the consideration of the merits under the recording notice of 24 December 2007 and merged it with #403 constitutional claim with the view of examining them within joint proceedings. The Constitutional Court held hearings on the merits on 2 and 3 April 2008.

3. The legal ground for submission of the constitutional claims is the following: Article 42(1) and Article 89(1)(f) of the Constitution of Georgia, Article 19(1)(e), Article 39(1)(a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, Article 1(2), Article 10(1) and Article 16 of the Law of Georgia “On Constitutional Legal Proceedings).

4. Under Article 6978(2) of the Code of Criminal Procedure of Georgia, the parties to plea bargain – a convicted and a prosecutor have the right in cases enlisted in Article 6796 to submit an appeal to higher judicial instance with regard to a decision on approval of plea bargain. However, it is stated in Article 6978(2) that victim does not have a right to appeal a plea bargain. According to the constitutional claims, the impugned provision fails to comply with the Constitution, since it precludes the access to a court and opportunity of a fair trial.

According to the constitutional claim of Hussein Ali, the criminal act was directed against the claimant. In particular, certain people through fraud have appropriated his 90% share in LTD Georgian Tobacco Production. On 16 August 2001 notary Ketevan Chkhikvadze approved a proxy power, according to which Hussein Ali vested Tamaz Melkadze with powers to represent his interests in all judicial instances. On 6 September 2004 David Lanchava - representative of Akhmed Junes, citizen of Iraq, submitted an application to Isani-Samgori District Court and requested that Hussein Ali repay him 8 million USD. At the court hearing Tamaz Melkadze as a representative of Hussein Ali owned up to the debt, in consequence of which a settlement was agreed, pursuant to which Tamaz Melkadze handed over to Akhmed Junes Hussein Ali’s 90% share of Georgian Tobacco Production. On 18 September 2004 Akhmed Junes handed over 90% share of Georgian Tobacco Production to Avtandil Tsereteli who as the result of the transaction became 100% shareholder of the company.

On 27 November 2004, on the basis of Hussein Ali’s application, proceedings were instituted by operative department of financial police of the Ministry of Finance on the account of the unlawful and fraudulent appropriation of Hussein Ali’s property. On 1 July 2005 Tamaz Melkadze and Ketevan Chkhikvadze were formally charged. They plead guilty, but according to the representative of Hussein Ali, they have not named other persons involved in the crime. On 13 April 2006 a plea bargain was agreed with both accused. On the same day, by the order of a prosecutor, a criminal case of Tamaz Melkadze and Ketevan Chkhikvadze was taken away from the initial case for a separate prosecution.

The claimant asserts that the criminal act resulted in moral and pecuniary damages. According to the representative of the claimant Alexander Baramidze, his client’s right to property and right to a fair trial were violated, as the impugned provision precludes the respect for the constitutional right to property through a judicial remedy and to receive compensation for damages.

6. According to the constitutional claim of Elene Kirakosian, on 16 September 2001, her son Rodion Kirakosian was lethally stabbed by brothers Matinian. Under the decision of Isani-Samgori district court, one of the accused – Artur Matinian was held guilty on the account of offences stated in Article 19 and Article 108 of the Criminal Code of Georgia and was sentenced up to 8 years of imprisonment. Under the decision of the same court, the criminal case of other perpetrators of crime was relinquished to the prosecutor’s office for additional investigation. As a consequence, Araik and Sergo Matinian were accused on the account of offences stated in Article 19 and Article 119 of the Criminal Code of Georgia. According to the constitutional claim, on 28 July 2006 a plea bargain was concluded between the prosecutor’s office and the accuseds and subsequently approved by the court.

The claimant thinks that the prosecutor gave an incorrect qualification to the committed crime, namely instead of intentional murder, criminals were accused of an intentional aggravated bodily injury, which resulted in death. The court gave a guilty judgment on the basis of the charges brought by the prosecution. The claimant asserts, that if there was no impugned provision, the victim could have better protected the right to life - could have questioned the qualification of crime as well as the degree of the punishment.

The claimant is of the opinion that the State should not have a monopoly over the determination of criminal responsibility. The purpose of criminal procedure is to protect interests of a victim and that is why the law grants him/her the right to appeal a court judgment in two instances.

The representatives of Kirakosian also invoke Article 2 of the European Convention on Human Rights, which places States under positive and negative obligations to protect the right to life. A negative obligation, according to their interpretation, means that State officials should not take a human life, whereas a positive obligation means that they must conduct adequate and due investigation. Therefore, in the case of their client, a positive obligation has been violated – there was no proper investigation to protect the interests and rights of the victim.

7. Both claimants think that the impugned provision does not give an opportunity to a victim to receive compensation for moral and pecuniary damages, achieve a fair and adequate punishment for offender, which as claimants argue follows from the principles of a fair trial.

According to the constitutional claims, the impugned provisions, which only give the right to appeal to the parties of a plea bargain, enables investigative bodies to enter into unlawful agreements whereas the judiciary is not capable of examining a plea bargain. According to the claimant, these conditions in the majority of cases are against the interests of victims.

8. According to the claimants’ representatives, Article 42 of the Constitution of Georgia includes the right to appeal. Hussein Ali’s representative believes that the wording of Article 42 of the Constitution of Georgia, particularly, the words “each person has the right to ….” mean each and every person, including a victim. In order to substantiate the position, the claimants invoke the judgment of 17 March 2005 of the Constitutional Court of Georgia – Citizen Oleg Svintradze v. the Parliament of Georgia, in which the Court held that Article 42 of the Constitution of Georgia guarantees the right to appeal not limited to the first instance but access to second instance as well.

The representatives of claimants argue, that the wording of the Constitutional Court concerns not only an accused but also victims. Additionally, the representative of Hussein Ali argues on the basis of Article 517 of the Criminal Procedural code of Georgia under which “an accused, an victim, a civil claimant and a civil respondent have the right to request the examination of the case at least in two instances.”

According to the claimants, the impugned provision is incompatible with Article 6(1) of the ECHR, which enunciates the right of access to a court. The claimants invoke the jurisprudence of the ECtHR – Golder v. United Kingdom (21 February, 1975) and Ashingdane v. United Kingdom (28 May 1985).

9. The representatives of the claimants maintain, that restriction of a victim’s right to appeal threatens the ability to receive compensation for the damages. The Code of Criminal Procedure grants a victim a right to file a civil claim for compensation only with regard to the accused and only in the part in which the accused was held guilty. The representatives of the claimants invoke Article 68(1) of the Code of Criminal Procedure of Georgia, pursuant to which “a victim is a State, physical or legal person, being morally, bodily or materially damaged…” and Article 106(c) of Civil Procedural Code, pursuant to which during civil proceedings a judgment rendered in a criminal case has a force of evidence.

10. To consolidate their arguments, the representative of Hussein Ali – Alexander Baramidze submitted to the Constitutional Court the decision of 13 November 2006 of the Civil Chamber of Tbilisi District Court, which held that the claim of Hussein Ali against the respondents – Avtandil Tsereteli, Ahmed Junes, David Lanchava, Tamaz Melkadze and Ketevan Chkhikvadze was ill-founded. In the judgment of the Civil Chamber of Tbilisi District Court it is stipulated, that a claimant should indicate the circumstances, on which he/she bases his claim regarding the compensation of either moral or pecuniary damages. According to Alexander Baramidze, the ground for the rejection of Hussein Ali’s claim was that there were no conviction rendered with respect to David Lanchava, Avtandil Tsereteli and Ahmed Junes.

11. According to the representatives of Elene Kirakosian, the crime committedd against Rodion Kirakosian was qualified as an intentional aggravated bodily injury. The victim can argue only regarding this crime and not regarding murder, as murder was not recognised by the plea bargain. According to the representatives of the claimants, moral damages are dependent upon the seriousness of the crime. Additionally, the judgment in a criminal case has a priori force of evidence in civil proceedings. Apart from this, the conviction of the person who has committed a crime is a form of compensation for moral damages.

12. The representatives of claimants state, that the right of access to a court is not an absolute right. According to the case-law of ECtHR, the right to access may be restricted if the “restriction has a legitimate aim and is proportionate”. At the same time it is necessary for proportionality that there is a reasonable balance between public and private interests. The claimants think that in the given case the fair balance is not struck. A speedy and effective justice which is the aim of the plea bargain procedure will be better guaranteed if a victim will have a right to appeal because in this case the public interests which include interests of victims will be better respected.

13. In the opinion of the representatives of the respondent, claims are ill-founded and should not be upheld as Article 42(1) of the Constitution guarantees the right of access to a court, when case concerns directly the person applying and not protection of other person’s legal interests. According to representatives of the respondent, criminal law is a public law and it is not branch of law that should regulate relations between the victim and the offender. In every legal system an accused person is perceived as inflicting damages to public interests and not to interests of victim. When case concerns protection of these interests, the essential role and function is given to the State. A victim cannot be defender of public interests. According to them, since during the criminal prosecution, priority is given to public interests, the prerogative to punish the offender is within the exclusive competences of the State. The State is the only arbiter to decide whether to punish the person or not. The State enjoys an absolute monopoly over criminal process and therefore its prerogatives include whether to terminate or to continue a particular criminal prosecution.

The representatives of the respondent are of the opinion that a victim should not have the right to appeal a plea bargain with the view of restoring justice. In their opinion, the restoration of justice should be a matter between the perpetrator and the public interest and not between a victim and an accused. The justice should be administered for the sake of public interests and not for private interests.

14. The representative of the respondent observed, that the purpose of a punishment should not be the fulfillment of victim’s revenge. If a victim thinks that as the result of a crime he/she was injured he/she can request compensation through civil procedure. The punishment for criminal law offence should only be determined by the State. The representatives of the respondent maintain, that during a plea bargain an accused recognises his guilt, which puts a victim in an advantageous position for civil proceedings. According to them, a judgment in criminal proceedings and a plea bargain have an important evidentiary force during the determination of compensation in civil proceedings. Additionally a civil court is not in any way constrained by the mentioned acts in the determination of the amount of compensation.

15. According to the respondent, the aim of a plea bargain is a speedy and effective justice. The State takes into account a victim’s interests during the plea bargain procedure. It may be the case that a victim’s interests and that of the public are common, however, it also maybe that they are not. In the latter case there will be a conflict of interests and cases should be decided benefiting the protection of public interest. Apart from this, if a victim is given the right to appeal a plea bargain, then he/she could influence the process. It is highly probable that victims will appeal plea bargains and this will result in the delay of criminal prosecution and thus the aim of the plea bargain – a speedy and effective justice will not be achieved.

16. From all the abovementioned, the representatives of the respondent maintain, that a victim does not have a constitutional right to appeal a plea bargain and a subsequent court judgment. However, if the impugned provision is considered an interference with claimants’ Article 42 constitutional right, then the issue of proportionality of such a restriction should be addressed, as the right at stake is not an absolute one.

II

1. Right to fair trial is a significant instrument, which regulates disputes between private individuals and the State, as well as between private parties, guarantees effective realisation of constitutional rights and ensures the protection against unreasonable interference with rights. In the case Citizens of Georgia Onise Mebonia and Vakhtang Masurashvili v. the Parliament of Georgia the Constitutional Court held that the exercise of this right “ is related to the principle of rule of law and substantially defines its essence”. Therefore, it is of utmost importance that legislation guarantees the right of access to a court and the opportunity of a fair trial.

2. In the case Citizen of Georgia Anatoli Kozlovski v. the Parliament of Georgia the Constitutional Court also stated, that exercise of the right of access to a court “requires existence of the right, protection of which is sought through the access to a court.” The more important the interest which is to be protected through judicial remedy, the stricter are the criteria, which are used to review the constitutionality of a restriction of the right of access to a court.

3. Both claimants named compensation for damages as the right to be protected through judicial remedy. At the hearing of the consideration of the case on merits, the claimants observed that impugned provision did not give them this opportunity. They maintained, that if a person is not recognised as an accused or if a prosecutor on the grounds of plea bargain decides to mitigate or partially drop the criminal charge, it will be impossible for the victim to receive a full compensation for bodily or pecuniary damages inflicted as the result of a crime, as pursuant to procedural law, civil responsibility of an accused could be only within the guilt as determined by a court.

4. It is undisputable that a person should be guaranteed in the access to a court in order to receive a compensation for the damages inflicted upon him/her as the result of a crime. It follows from Article 42(1) of the Constitution of Georgia that State has an obligation to create effective mechanisms, which would give a victim such possibilities, independently of the charge or severity of the punishment. It is noteworthy that, the right is guaranteed in Part LXIV1 of the Code of Criminal Procedure, which contains provisions regulating plea bargain. In particular, Article 6791(8) states imperatively, that plea bargain does not exempt the accused from the responsibility. Therefore, in case of a bargain wither on a charge or a punishment, an accused is not exempted from the responsibility to compensate the damages inflicted as the result of the crime. It should also be noted that, under the criminal procedural legislation, damages subjected to compensation include not only pecuniary damages but also the expenses for the rehabilitation of damages to health; a victim’s right to request compensation for moral damages is likewise recognised.

5. It should also be noted that the constitutional cases concern prohibition of appeal by the victim of the plea bargain. The norms that the claimants dispute, namely Article 6977(2) and Article 6978(2) of the code of Criminal Procedure of Georgia do not contain a provision that precludes from receiving compensation for damages. As regards the charge mitigation and partial acquittal, Article 6791(5) regulates them, whereas the compensation for the damages inflicted as the result of a criminal act – by civil procedural legislation. “It is noteworthy that the Constitutional Court is limited by the contents of the claim. It assesses only the contents of the impugned provision in terms of the Article of the Constitution, in terms of which the claimant argues unconstitutionality of the provision.” (Citizens of Georgia – David Jimsheleishvili, Tariel Gvetadze and Neli Dalalishvili v. the Parliament of Georgia). The Constitutional Court states, that the arguments adduced by the claimants are related to those provisions of criminal and civil legislation, assessment of which is impossible within the scope of the given dispute.

6. According to the representative of Hussein Ali, the impugned provision does give possibility to his client to protect his interests under investigation. On the basis of the constitutional claim and the arguments provided at the hearing it seems that the claimant thinks the main problem is an incompetently undertaken investigation. For example, the victim does not question the culpability of the two individuals prosecuted, but on the other hand wants to appeal the court judgment, because he believes that only this way he can achieve an adequate investigation and the punishment of those who in his opinion organised the crime. Through the appeal of the plea bargain the claimant intends to have the case relinquished to preliminary investigation. Therefore, the right to appeal is perceived as a means for criminal prosecution against those persons, the responsibility of which is not the result of the investigation.

It should be noted, that criminal legislation in force grants a victim the right to appeal unlawful acts of an investigative body or a decision of a prosecutor about the termination or refusal of prosecution. It follows from the adduced evidence that this right was exercisable by the claimant; he exercised it but could not achieve the intended result. Therefore, the claimant was guaranteed with all necessary legal remedies for the protection of his interests. On the basis of the abovementioned, the claim under this head and the consolidating arguments are ill-founded, since the arguments produced are related to the lawfulness of the decisions made by the investigative body. It is beyond the competence of the Constitutional Court to review the lawfulness of the application of legislation, it cannot assess whether investigation was undertaken competently.

7. The court cannot agree with the arguments provided by claimant Kirakosian that through the restriction of the right to appeal the judgment rendered on the basis of the plea bargain, the victim’s right to life was not adequately respected. It follows from the arguments presented by the claimant and his representative that, claimant relates the protection of right to life to the opportunity to influence the qualification of accusation. However, it needs further justification to assert that violation of the right is caused by bringing a charge on intentional aggravated bodily injury that resulted in death instead of intentional murder.

It should also be noted, that the charge – intentional aggravated bodily injury was brought before the plea bargain was made and the latter related only to the degree of punishment. Apart from this, the arguments provided by the claimant are not related to impugned Article 6978(2). Discretion given by the legislator to an investigatory body to enter into plea bargain on charge, mitigate or partially drop accused’s charge is stated in Article 6791 of the Code of Criminal Procedure of Georgia.

On the basis of the abovementioned, the evidence adduced by the claimants, under this head, excludes the contradiction of the impugned provision with the Article of the Constitution invoked by the claimant.

8. Both claimants also presented additional argument, which in their opinion follows from the fairness and legality principles and preconditions the right of access to a court: a victim should have opportunity to request from the court to review the judgment regarding the plea bargain, if the court comes to the conclusion that the degree of punishment is not adequate to the seriousness of crime.

9. As the result of crime, apart from bodily and pecuniary damages, a victim can be subjected to strong psychological and emotional stress; his/her private life, dignity and security may be threatened. The obligation to investigate a crime and bring the criminal before justice is related to the principle of rule of law and substantially determines the credibility of judicial system. For this reason it is of utmost importance that during the investigation, including on the plea bargain phase a victim’s legal interests and petitions be taken into account. A victim’s special attitude towards the results of the investigation and towards the punishment inflicted upon a criminal by the court is noteworthy.

10. The Constitutional Court has repeatedly stated that right of access to a court is not an absolute right and requires regulation from the side of the State. In the cases of Citizens of Georgia Olga Sumbatashvili and Igor Kharpov v. the Parliament of Georgia the Constitutional Court pronounced itself that “the right of access to a court cannot be understood as being an absolute right, without a procedural regulation…” Determination of the rights and obligations of a victim regarding the plea bargain and grounds for appeal amounts to the mentioned type of a regulation. Special attitude, which the victim may have towards the punishment of a criminal, is not a sufficient ground for exercising Article 42 constitutional right. Realisation of a speedy and effective justice, which definitely represents a legitimate aim and which is intended to be achieved through plea bargain system, implies the necessity for such a regulation of victim’s procedural rights.

11. The claimants have also based their arguments on the jurisprudence of the Constitutional Court, particularly on the case of Citizen of Georgia Oleg Svintradze v. the Parliament of Georgia also Ltd Uniservice v. the Parliament of Georgia. It is worth mentioning in this regard, that on the basis of the abovementioned cases the Constitutional Court guaranteed an individual’s right to request the review of lawfulness and justification for the use of procedural measures, as these actions result in restriction of constitutional rights and freedoms. This is the difference between the present constitutional claim and the ones mentioned above.

12.On the basis of all the abovementioned, the Constitutional Court states, that restriction of a victim’s right to appeal the judgment rendered on the grounds of plea bargain is in compliance with Article 42 of the Constitution.

III

On the basis of Article 89(1)(f), Article 89(2) of the Constitution of Georgia, Article 19(1)(e), Article 21(2) and Article 21(6), Article 23(1), Article 25(2) and Article 25(3), Article 39(1)(a), Article 43(2), Article 43(4), Article 43(7), Article 43(8) of the Organic Law of Georgia “On Constitutional Court of Georgia” and Article 32 and Article 33 of the Law of Georgia “On Constitutional Legal Proceedings”,

The Constitutional Court
resolves:

1. Not to uphold the constitutional claims of Citizen of Canada Hussein Ali and citizen of Georgia Elene Kirakosian v. the Parliament of Georgia regarding the constitutionality of Article 6977(2) and Article 6978(2) of the Code of Criminal Procedure of Georgia in terms of Article 42(1) of the Constitution of Georgia;

2. The judgment shall be in force from the moment of its announcement at the hearing of the Constitutional Court of Georgia;

3. The judgment shall be final and not subject to appeal or review;

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

5. The judgment shall be promulgated in Sakartvelos Sakanonmdeblo Matsne within 15 days.

Members of the Board:

Konstantine Vardzelashvili

Vakhtang Gvaramia

Ketevan Eremadze

Besarion Zoidze