Template substantiation of judgments on the example of a single judge
04.08.2022
Table of contents
On June 2022, 17, we received a response from Brussels on the prospect of our membership in the European Union. The European Commission has set priorities, the fulfillment of which are mandatory if Georgia wishes to be granted candidate status.
One of the priorities concerns the proactive application of the judgments of the European Court of human rights by the Georgian courts in the consideration of cases.
The establishment of a discussion on the judgments of the European Court of human rights "allows national courts to correctly interpret the general and vague norms of domestic normative acts of Georgia"; the National Court prefers the European standard when a domestic normative act creates a conflict with it or when it fills the legal vacuum existing in domestic normative acts. The National Court relies on the practice of the European Court, when the decision against it may serve as a basis for holding Georgia liable at the European level; the application of European standards gives "legal certainty" to the decisions of national courts and, most importantly, "allows the development of national human rights standards in line with European standards.“1
Justification of the judgment as a provision of law
The code of Criminal Procedure lays down three key requirements to comply with the court verdict –Legality, justification, and fairness.2
The court's ruling either finds the accused guilty of committing a crime or acquits him. The essence of the judgment demonstrates the vital importance of its substantiation for the credibility of justice both in the eyes of the parties and the public.
"The court's verdict is justified if it is based on judicial review during the examined, reasonable doubt excluded evidence agglomeration.“3
A reasoned verdict has the resource to convincingly demonstrate the legality and fairness of the verdict. Accordingly, the existence of the other two components follows from the substantiation of the judgment and vice versa.
Justification of the verdict in judicial practice
The issue of the substantiation of court judgments and how European standards are applied for this purpose will be discussed in the example of the court practice of a single judge.
Below are the verdicts delivered by a single judge, which clearly show the problem of their patterning.
In total, 31 verdicts were randomly chosen.
„Evaluation of evidence, including determination of their relevance, is the prerogative of national courts (See. Decision of the European Court of human rights, 1988, December 6 on the case Barberà, Messegué, Jabardo v. Spain, no. 10590/93, 06/12/1988, article 68). The European Court considers that the domestic court is in a better position, compared to the European Court, to evaluate evidence, establish facts and clarify domestic legislation(See. European Court of human rights 2010 April 8 decision on the case Bulychevy v. Russia, no. 24086/04, 04/10/2010, article 32) Based on the abovementioned, the court assesses the evidence in the case, which has not been disputed by the parties, from the point of view of their relevance, admissibility, veracity and considers it unambiguously confirmed verdict 1.1. Factual circumstances specified in the paragraph.“
What is the purpose of using this extract by the Georgian Court?
First of all, we note that the European Court always uses this formulation to limit its scope of competence. He explains that compared to the European Court, the National Court, especially the First Instance Court, is in a better position to assess the relevance of the evidence examined before it. Therefore, the European Court does not consider the dispute reviewed by the National Court on its merits again, but only checks whether the procedure by which it was conducted in its entirety (including the way of assessing the evidence of the prosecution and the defense) was fair, i.e. whether the requirements of Article 6 of the convention were met. Accordingly, the European Court separates the National Court and its competencies to make clear its role in the evaluation of the decision made by the National Court.
In the case discussed by us, the above reasoning is cited by the National Court to emphasize that it is in the best position to establish the facts and evaluate the legal norms. No one expects the decision of the National Court to separate its competence from the European Court; Accordingly, showing this distinction is out of place and completely out of context, and if we consider the use of this quote as a means for the court to emphasize its function (such as evaluation of evidence, the establishment of facts, the definition of norms), this is already such an essential and key purpose of the court, it is even embarrassing to verify any source to say that the court is entitled to carry out justice.
The reasoning developed in the above quotation is presented in unchanged form in the following judgments:
What is the purpose of using this extract by the Georgian Court?
First, it should be noted that this excerpt consists of two paragraphs, both of which are identical in content - representing two variations of the translation of the same original text.
The bottom line of this excerpt is that the European Court itself uses the "beyond reasonable doubt" standard in assessing evidence and explains what is meant by this standard.
The Criminal Procedure Code of Georgia for finding a person at fault by a guilty verdict provides for "a standard of a set of agreed evidence beyond a reasonable doubt..“4The code defines "beyond reasonable doubt" standard as " a set of evidence necessary for a court to deliver a judgment of conviction that would convince an objective person of the guilt of the person.“5 In addition, the code requires that "evidence be evaluated in terms of its relevance, admissibility, and veracity to the criminal case.“
Accordingly, the standard of "beyond reasonable doubt" evaluation of evidence is already strengthened and clarified by the legislation of Georgia. The use of the quotation on the implementation of the European Court of justice by the Georgian Court does not serve the purpose of interpretation of vague normative acts, resolution of legal vacuum or collusion, as well as the application of the European standard, as an imperative above the law, which establishes a legal provision different from the law; It does not develop a National Human Rights standard.
The only thing we can say is that verifying the validity of our law in this part by the practice of the European Court may make it more convincing, but is it necessary? It does not approach the resolution of a legal issue in an individual case, which raises questions or requires substantiation. The application of this standard is a concerted approach that follows the line of legal proceedings in all criminal cases without exception and its application is never disputed by the parties. As a rule, it is problematic to assess whether the requirements of this standard are met in an individual case, and not the "beyond reasonable doubt" standard itself as such.
The reasoning given in the form of the above quotation, in unchanged form and volume, is found in the section of the legal description of decisions in the following cases:
We need the implementation of the decisions of the European Court of human rights in national practice to develop our domestic approach following them; to instill a European spirit in our laws and, first of all, to convince the court that its reasoning and reasoning are in order and follow European standards in resolving the issues on which the parties are arguing.
The use of European standards by our judicial system and blinding of the objective observer further distracts us from the task facing the judiciary, to functionally apply the decisions of the European Court in line with the sustainable goals that their implementation by the national justice systems of the member states serves in the EU.
Formality, which is devoid of content, does not have the resources to establish a high legal standard that will protect a person and cannot open the door to Europe.
Footnote
1. Opinion on the EU membership application by Georgia, Brussels, 17 June 2022;
https://ec.europa.eu/commission/presscorner/detail/en/IP_22_3790
2. Konstantine Korkelia, "why we should use European standards of human rights in the implementation of Justice", Tbilisi, 05/2020
https://clr.iliauni.edu.ge/wp-content/uploads/2020/05/konstantine-korkelia-gv.12-20.pdf
3. Criminal Procedure Code of Georgia, Article 19
4. Criminal Procedure Code of Georgia, Article 259
5. Criminal Procedure Code of Georgia, Article 82, paragraph 3
6. Criminal Procedure Code of Georgia, Article 3, Paragraph 13
https://matsne.gov.ge/ka/document/view/90034?publication=146
---
The materials distributed by courtwatch.ge and published on the website are the property of "Georgian Court Watch", when using them, "Georgian Court Watch" should be indicated as the source.
One of the priorities concerns the proactive application of the judgments of the European Court of human rights by the Georgian courts in the consideration of cases.
Why should we apply European human rights standards to justice?
The establishment of a discussion on the judgments of the European Court of human rights "allows national courts to correctly interpret the general and vague norms of domestic normative acts of Georgia"; the National Court prefers the European standard when a domestic normative act creates a conflict with it or when it fills the legal vacuum existing in domestic normative acts. The National Court relies on the practice of the European Court, when the decision against it may serve as a basis for holding Georgia liable at the European level; the application of European standards gives "legal certainty" to the decisions of national courts and, most importantly, "allows the development of national human rights standards in line with European standards.“1
Justification of the judgment as a provision of law
The code of Criminal Procedure lays down three key requirements to comply with the court verdict –Legality, justification, and fairness.2
The court's ruling either finds the accused guilty of committing a crime or acquits him. The essence of the judgment demonstrates the vital importance of its substantiation for the credibility of justice both in the eyes of the parties and the public.
"The court's verdict is justified if it is based on judicial review during the examined, reasonable doubt excluded evidence agglomeration.“3
A reasoned verdict has the resource to convincingly demonstrate the legality and fairness of the verdict. Accordingly, the existence of the other two components follows from the substantiation of the judgment and vice versa.
Justification of the verdict in judicial practice
The issue of the substantiation of court judgments and how European standards are applied for this purpose will be discussed in the example of the court practice of a single judge.
Below are the verdicts delivered by a single judge, which clearly show the problem of their patterning.
In total, 31 verdicts were randomly chosen.
#1 - Reasoning copied in 30 different cases:
„Evaluation of evidence, including determination of their relevance, is the prerogative of national courts (See. Decision of the European Court of human rights, 1988, December 6 on the case Barberà, Messegué, Jabardo v. Spain, no. 10590/93, 06/12/1988, article 68). The European Court considers that the domestic court is in a better position, compared to the European Court, to evaluate evidence, establish facts and clarify domestic legislation(See. European Court of human rights 2010 April 8 decision on the case Bulychevy v. Russia, no. 24086/04, 04/10/2010, article 32) Based on the abovementioned, the court assesses the evidence in the case, which has not been disputed by the parties, from the point of view of their relevance, admissibility, veracity and considers it unambiguously confirmed verdict 1.1. Factual circumstances specified in the paragraph.“
What is the purpose of using this extract by the Georgian Court?
First of all, we note that the European Court always uses this formulation to limit its scope of competence. He explains that compared to the European Court, the National Court, especially the First Instance Court, is in a better position to assess the relevance of the evidence examined before it. Therefore, the European Court does not consider the dispute reviewed by the National Court on its merits again, but only checks whether the procedure by which it was conducted in its entirety (including the way of assessing the evidence of the prosecution and the defense) was fair, i.e. whether the requirements of Article 6 of the convention were met. Accordingly, the European Court separates the National Court and its competencies to make clear its role in the evaluation of the decision made by the National Court.
In the case discussed by us, the above reasoning is cited by the National Court to emphasize that it is in the best position to establish the facts and evaluate the legal norms. No one expects the decision of the National Court to separate its competence from the European Court; Accordingly, showing this distinction is out of place and completely out of context, and if we consider the use of this quote as a means for the court to emphasize its function (such as evaluation of evidence, the establishment of facts, the definition of norms), this is already such an essential and key purpose of the court, it is even embarrassing to verify any source to say that the court is entitled to carry out justice.
The reasoning developed in the above quotation is presented in unchanged form in the following judgments:
#2 Reasoning copied in 13 different cases:
„The European Court of Justice: Shlychkov v. Russia, (no.40852/05, § 56, ECHR 09/02/2016)Explained: that when evaluating evidence, the court uses a standard of" beyond reasonable doubt " evidence, but adds that such evidence may be derived from sufficiently strong, explicit and mutually agreed conclusions or a set of irrefutable presumptions about a similar fact (ასევე იხ.: Keller v. Russia, no. 26824/04, § 114, ECHR 17/10/2013; Huseynli and others v. Azerbaijan, no(s).67360/11, 67964/11, 69379/11, § 87, ECHR 11/02/2016; Baka v. Hungary [GC], no. 20261/12 §143, ECHR 23/06/2016; Zyakun v.Ukraine, No. 34006/06, §40, ECHR 25/02/2016).“[...]„The European Court of human rights in the case Taniş and Others v. Turkey (no. 65899/01, ECHR 30/11/2005) Explained the following: "in assessing written and oral evidence, the court takes into account the already established standard - beyond a reasonable doubt. Such an assertion can be derived only from sufficiently strong, clear, and agreed conclusions, or from the assumption of similar indisputable facts. In addition, it should be noted that the behavior of the parties can be taken into account when obtaining evidence.“
What is the purpose of using this extract by the Georgian Court?
First, it should be noted that this excerpt consists of two paragraphs, both of which are identical in content - representing two variations of the translation of the same original text.
The bottom line of this excerpt is that the European Court itself uses the "beyond reasonable doubt" standard in assessing evidence and explains what is meant by this standard.
The Criminal Procedure Code of Georgia for finding a person at fault by a guilty verdict provides for "a standard of a set of agreed evidence beyond a reasonable doubt..“4The code defines "beyond reasonable doubt" standard as " a set of evidence necessary for a court to deliver a judgment of conviction that would convince an objective person of the guilt of the person.“5 In addition, the code requires that "evidence be evaluated in terms of its relevance, admissibility, and veracity to the criminal case.“
Accordingly, the standard of "beyond reasonable doubt" evaluation of evidence is already strengthened and clarified by the legislation of Georgia. The use of the quotation on the implementation of the European Court of justice by the Georgian Court does not serve the purpose of interpretation of vague normative acts, resolution of legal vacuum or collusion, as well as the application of the European standard, as an imperative above the law, which establishes a legal provision different from the law; It does not develop a National Human Rights standard.
The only thing we can say is that verifying the validity of our law in this part by the practice of the European Court may make it more convincing, but is it necessary? It does not approach the resolution of a legal issue in an individual case, which raises questions or requires substantiation. The application of this standard is a concerted approach that follows the line of legal proceedings in all criminal cases without exception and its application is never disputed by the parties. As a rule, it is problematic to assess whether the requirements of this standard are met in an individual case, and not the "beyond reasonable doubt" standard itself as such.
The reasoning given in the form of the above quotation, in unchanged form and volume, is found in the section of the legal description of decisions in the following cases:
Such formal, non-telling, and mechanical quoting of passages from the decisions of the European Court makes us think that the court creates an illusory feeling as if it has knowledge of the practice of the European Court of human rights and uses it in justifying its decisions.
We need the implementation of the decisions of the European Court of human rights in national practice to develop our domestic approach following them; to instill a European spirit in our laws and, first of all, to convince the court that its reasoning and reasoning are in order and follow European standards in resolving the issues on which the parties are arguing.
The use of European standards by our judicial system and blinding of the objective observer further distracts us from the task facing the judiciary, to functionally apply the decisions of the European Court in line with the sustainable goals that their implementation by the national justice systems of the member states serves in the EU.
Formality, which is devoid of content, does not have the resources to establish a high legal standard that will protect a person and cannot open the door to Europe.
Footnote
1. Opinion on the EU membership application by Georgia, Brussels, 17 June 2022;
https://ec.europa.eu/commission/presscorner/detail/en/IP_22_3790
2. Konstantine Korkelia, "why we should use European standards of human rights in the implementation of Justice", Tbilisi, 05/2020
https://clr.iliauni.edu.ge/wp-content/uploads/2020/05/konstantine-korkelia-gv.12-20.pdf
3. Criminal Procedure Code of Georgia, Article 19
4. Criminal Procedure Code of Georgia, Article 259
5. Criminal Procedure Code of Georgia, Article 82, paragraph 3
6. Criminal Procedure Code of Georgia, Article 3, Paragraph 13
https://matsne.gov.ge/ka/document/view/90034?publication=146
---
The materials distributed by courtwatch.ge and published on the website are the property of "Georgian Court Watch", when using them, "Georgian Court Watch" should be indicated as the source.
