REALITY EQUATING RESOLUTION ON CHARGES TO A GUILTY VERDICT

In Georgia, in approximately 50% of criminal cases, bail is granted to the accused as a preventive measure, and the statistic has not changed significantly for years. Bail is one of the types of preventive measures defined by the Criminal Procedure Code of Georgia. Generally, the prevention measure is used for the following purpose: 

• The accused not be able to avoid appearing in court;
• To prevent his further criminal activities;
• To ensure the execution of the verdict.

“If the defendant, for whom bail has been selected as a preventive measure, has violated the condition of using this measure or the law, based on the motion of the prosecutor, the bail shall be replaced by a stricter preventive measure.” So, to replace bail (as a type of preventive measure) with a stricter preventive measure, one of two grounds must be present:

• The accused does not comply with the condition, which may be expressed in non-payment of bail or failure to comply with the condition of using bail established by the court;
• The accused violated the law, for example, committed a new offense; committed administrative misconduct, or violated the requirements of the law within the framework of a civil relationship.

Thus, even in the presence of one of these two grounds, based on the prosecutor’s motion, the bail will be replaced with a more severe preventive measure by the court’s decision.

The court is authorized to use imprisonment as a preventive measure against the accused only if it is impossible to achieve proper behavior of the accused by using other, less severe measures. Thus, imprisonment is the most severe preventive measure. In case the topic of replacing bail with stricter measures, it shall be replaced only with imprisonment, as other preventive measures (Agreement on not leaving the country and good conduct, personal warrant, command oversight of military serviceman’s conduct, applicable to military serviceman only) with their context and intensity of intervening in human rights are stricter, but even much lighter.

Let’s discuss the case when bail was imposed on the accused as a preventive measure, and because of a violation of the law (for example, in case of committing a new offense), the bail was replaced with imprisonment.

It is interesting, what was meant under “committing the new offense”? A final court verdict of guilty or an indictment?

According to the presumption of innocence, a person is considered guilty (in this case, of committing a new offense) only when a guilty verdict is established by the court. The said process requires so much time that neither prosecution nor the court will wait for the final clarification of the issue. Therefore, in practice, when revising a preventive measure, the commission of a new crime is determined not by a legally binding court verdict, but by a decision on charges. Equating the decision on charges with the verdict of guilty creates such a contradictory reality that using it in practice becomes impossible.

On the other side, if the decision on charges equals a legally binding guilty verdict, this means interpreting the law against the accused, which is unfair. In addition, the prosecution is given an extremely broad opportunity to simply, based on the decision of charges, request replacing bail with imprisonment.

In theory, under such conditions, it would be best if the prosecution, in all cases, would investigate the circumstances of the case in detail and would never abuse the above-mentioned leverage at its disposal. However, this is only a theory and even assuming this theory, every time a defendant’s bail is changed to imprisonment, the principle of legality becomes questionable.

Generally, any legal norm must meet the criterion of foreseeability. This requirement is especially strict when the basic human right – of freedom is at stake. The legal norm must be both legal and fair, and at the same time, clear.

The discussed provision defines a condition, in the case of which the prevention measure can no longer achieve its goal - cannot ensure the proper behavior of the accused and, for this reason, it is replaced by the imprisonment of a person, which is logical and appropriate; however, the Code of Criminal Procedure does not define clearly enough how to assess that the condition (violation of the law) for replacing the bail with a stricter preventive measure is in place.

Georgian Court Watch Project “Active Citizens Engagement for Better Judicial System” The article was prepared with the European Foundation funding, within the framework of a grant from the Danish International Development Agency. The author is responsible for its content. The article does not reflect the official positions of the European Foundation and the Danish International Development Agency.

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Georgian Court Watch Project: "Active Citizen Involvement for a Better Judicial System"

The article was prepared with funding from the European Foundation, within the framework of a grant from the Danish International Development Agency. The author is responsible for its content. The article does not reflect the official positions of the European Foundation and the Danish International Development Agency.