GEO

What changes have been made to the draft law on Amnesty?

20 December, 2012

On December 7, Parliament passed the draft law on Amnesty in its first reading (with 83 in favor and 10 against). The passing of the law was preceded by a three-week rather in-depth and comprehensive discussion in the committees in which, alongside MPs and non-governmental organizations, a long list of suggestions and initiatives was presented by the government as well. Ultimately, as a result of the discussions, it underwent significant changes. The Law shall apply to persons who have committed an offense prior to October 2, 2012.

The current preamble reads as follows: "Based on the principle of humanism and acting upon the public demand to restore justice, as well as taking into account the expediency of decreasing the number of inmates and probationers on the one hand, and the interests of public safety, on the other, with the state possessing appropriate mechanisms for crime-prevention and keeping the criminal situation under control, the Parliament of Georgia announces an act of Amnesty as a one-time, temporary and exceptional measure in accordance with the draft law on Amnesty.

 

According to the draft Amnesty law:

Those who are convicted and fall within the following descriptions will be exempt from criminal responsibility and punishment (i.e. freed from jail or the rest of their sentence):

1.     Persons who were minors at the age of committing an offence considered as less severe by the Criminal Code of Georgia (such all intentional or negligent offense for which the maximum punishment is not more than five years in prison), other than the crimes that resulted in death;

2.     Careless perpetrators, except for crimes which resulted in death;

3.     A person found guilty of an intentional crime for the first time and who has committed a less serious crime and/or prepared and/or attempted to commit a severe crime;

4.     Persons guilty of a crime under Article 273 (Illegal Preparation, Purchase, Storage of Small Quantities of Narcotics, the Analogy or Precursor thereof for Personal Use or Their Use without Doctor’s Prescription);

5.     Persons guilty of a crime under Article 260, Part one and/or two (Illicit Preparation, Production, Purchase, Storage, Shipment, Transfer or Sale of Narcotics, the Analogy or Precursor Thereof) also Article 261, Parts three and/or four (Illicit Preparation, Production, Purchase, Storage, Shipment, Transfer or Sale of Psychotropic Substance or its Analogy or Strong Substance) provided the act committed by them is not qualified as sale and they have committed an intentional crime for the first time, other than the crimes under article 273 of the Georgian Criminal Code.

6.     Persons guilty of a crime under Article 239, Part three (Hooliganism involving the use of fire-arms or other object applied as a weapon) who have committed intentional crime for the first time;

7.     Persons who have committed a crime under Article 3391 - Trade by Someone’s Influence Perpetrated by an Organized Group;

8.     Persons who have committed a crime under Article 353, Part four (Resistance, Threat or Violence against a Protector of Public Order or Other Government Representative Perpetrated by a group);

 

The following list is a continuation of the above however it consists of crimes that are considered less severe crimes under Georgian law. Nonetheless a complete Amnesty will not be applicable to perpetrators of the following specific crimes:

  • Article 110. Mercy-Killing;
  • Article 111. Premeditated Murder under Sudden Heat of Passion 
  • Article 112. Infanticide with Malice Aforethought 
  • Article 113. Manslaughter beyond Necessary Defense;
  • Article 114. Manslaughter beyond Measure Necessary for Catching a Criminal;
  • Article 115. Inciting someone to Suicide
  • Article 116. Manslaughter without Due Caution and Circumspection (Negligent manslaughter);
  • Article 117.Part one – Serious Intentional Damage to Health;
  • Article 118.Part two -  Less Serious Damage to Health on Purpose that has claim life;  
  • Article 130. Part two - Leaving Ill Person in Distress which has claimed the life of the ill person;
  • Article 133. Part three - Illegal Abortion 
  • Article 139. Coercion into Sexual Intercourse or Other Action of Sexual Character;
  • Article 140. Sexual Intercourse or Other Action of Sexual Character with One under Sixteen;
  • Article 141. Perversion 
  • Article 142. Descrimination
  • Article 1421 Part one and two – Racial Discrimination;
  • Article 1422 – Restricting the rights of persons with disabilities;
  • Article 143. Part one - Illegal Imprisonment;
  • Article 1433Part one -  Using the services of a victim of illegal trafficking  of human beings;
  • Article 1442 Threat of torture ;
  • Article 1443 Part one - Degrading or Inhuman Treatment;
  • Article 146 Part one - Malicious Criminal Prosecution of an Innocent Person;
  • Article 147 Part one Malicious Illegal Arrest or Detention;
  • Article 153 Encroachment upon the Right to Freedom of Speech;
  • Article 154 Illegal Interference into Professional Activity of Journalist;
  • Article 155 Illegal Interference into Performing a Religious Rite;
  • Article 156 Persecution 
  • Article 159 part two - Disclosure of Privacy of Personal Correspondence, Telephone Conversations or Other Message;
  • Article 160 Part three – Trespass to house or possessions
  • Article 161 Encroachment upon the Right to Assembly and Manifestation
  • Article 162 Interference into Exercising One’s Will in Elections, Referendum or Plebiscite;
  • Article 163 Interference into the Work of Election or Referendum Commissions;
  • Article 164 Encroachment upon the Right to Secret Voting, Miscounting of Votes or Incorrect Summing up of Elections Results;
  • Article 164–Voter Bribing
  • Article   164–Participating in Elections, Referendum or Plebiscite using False Documents
  • Article 164–Falsification of Elections
  • Article 166 Obstruction to Creation of Political, Public or Religious Unions or Interference in Their Activities;
  • Article 170 Part two - Breach of Labour Protection Rule that has caused the death of a person;
  • Article 171 Part three – Inducing a minor into prostitution;
  • Article 174 Swapping one baby for another baby at birth;
  • Article 186 Parts one and two - Purchase or Sale of Illegally Obtained Object at Previous Knowledge
  • Article 188 Part three - Damaging or Destruction of Objects through or arson or any other Source of Increased Danger that has caused the death of a person;
  • Article 2201 Part two – Negligence that has caused the death of a person;
  • Article 2291 Part three – Violation of the rules to use power resources that has claimed a human life;
  • Article 238 Negligent Keeping of Fire-Arms (including a Smoothbore Hunting Gun) that has caused the death of a person;
  •  Article 240 Part two - Breach of Safety Rule When Performing Mining, Construction or Other Work that has caused a person’s death;
  • Article 253 Part one - Engaging Someone in Prostitution;
  • Article 281 Part two - Violation of Traffic Safety Rules that through negligence has caused a death of a person;
  • Article 283 Part two - Violation of the Safety Rule on Building, Maintenance or Repairing of the Main Pipeline that has caused the death of a person;
  • Article 289 Part two - Violation of the Rule on Handling Microbiological or Other Biological Agent or Toxin that has caused the death of a person;
  • Article 292 Part three - Contamination of Water that has claimed a human life;
  • Article 293 Part four - Sea Contamination that has claimed a human life;
  • Article 295 Part three - Contamination of Atmosphere that has claimed a human life;
  • Article 297Part three- Rendering Land Unfit for Use that has claimed a human life;
  • Article 320 Part one -Disclosure of a State Secret;
  • Article 321 Part one -Violation of the Rule on the Protection of State Secret;
  • Article 332 Parts one and two - Abuse of Official Authority;
  • Article 333 Parts one and two - Exceeding Official Powers;
  • Article 334 Illegal Release of a Suspect or Accused from Criminal Liability;
  • Article 335 Part one - Giving Evidence or Submitting Opinion under Duress;
  • Article 337 Illicit Participation in Entrepreneurial Activity;
  • Article 339 Part one - Bribe-Giving;
  • Article 340 Accepting illegal presents/bribes
  • Article 341 Forgery/falsification during the course of employment
  • Article 342 Neglect of Official Duty;
  • Article 3421 Part two – Violation of the established official rule within a detention or penitentiary institution that has claimed human life;
  • Article 364  -Parts three and four-Obstruction to Administration of Legal Proceedings or Investigation;
  • Article 3691 Part two - Fabrication of evidence in a criminal case;
  • Article 370 part one – Giving False Evidence, Submitting False Opinion or Evidence by the Expert or Incorrect Translation
  • Article 375 Cover-up of a crime;
  • Article 376 Non-Reporting of Crime;
  • Article 378 Part two - Violence against the one placed into detention or penitentiary institution for the purpose of changing or suppressing evidence as well as to impede the convict to carry out his/her obligation as that of a citizen;
  •  Article 381 Part two - Non-execution of the effective sentence or any other court decision or impeding the execution thereof by any government representative, officer of the state, local administration or self-administration body;
  • Article 397 Part two – Intentional Damaging or Destruction of Military Property that has claimed a human life;
  • Article 405 Calling for Unleashing Aggressive War.

 

According to the draft law the sentence will be halved for those who have perpetrated the following crimes.

 

 

1.     All minors who have committed a deliberately severe and/or especially severe crime for the first time as minors;

2.     And everybody else:

  • Article 182 Parts two and three - Misappropriation or Embezzlement;
  • Article 186 Parts one and two – Knowingly purchasing or Illegally Obtained Object at Previous Knowledge;
  • Article 200  Parts two, three, and four - Production, Keeping, Sale or Freight of Excise Goods Subject to Stamping without Excise Stamps;
  • Article 202 part four – (Article 202 has no part four, we assume part four of 2002 which deals with selling, buying, using, and/or giving excisable stamps to another person in order to use them for the second time )
  • Article 203 part three – Bribing a Participant or Organizer of Professional Sports Competition or Commercial-Spectacular Contests;
  • Article 2051 Part two – Concealing Property through a hypocritical and/or false deal 
  • Article 208 Part two - Illegally Obtaining of a Loan;
  • Article 210 Part two – Forging, Sale or Use of Credit or Settlement Card;
  • Article 214 Parts two, three, and four - Breach of Customs Procedures for the import or export of Goods across the Customs Border of Georgia
  • Article 218 Part two - Tax Evasion;
  • Article 236 Parts three and four - Illicit Purchase, Keeping, Carrying, Production, Shipment, Transfer or Sale of Fire-Arms (except for a Smoothbore hunting gun), Ammunition, Explosive Materials or Explosive Devises;
  • Article 237 Part one - Illegally Taking Possession for Misappropriation Purposes or Extortion of Arms, Ammunition, Explosive Materials or explosive Devices;
  • Article 239 Part three - Hooliganism;
  • Article 2401 parts two and three - Violation of Safety standards on electric or heat power, natural gas, oil or oil-product sites ;
  • Article 267 Part one - Preparation of False Receipt or Other Document for the Purpose of Using or Using Thereof in Order to Purchase Narcotics;
  • Article 276 Part four - - Violation of Traffic Safety or Maintenance Rule related to driving a car when drunk;
  • Article 370 Part two - False Evidence, False Opinion or Evidence by the Expert or Incorrect Translation;
  • Article 384 Part two - Opposing or Compelling a Senior to Break Official Obligation;
  • Article 389, Parts one and two – Deserting from the armed forces

 

According to the draft law sentences for the following shall be reduced by one third:

 

Women guilty of severe and/or especially severe crimes, other than a crime that has claimed a person’s life.

 

Sentences shall be reduced by a quarter for those:

 

 Persons who do not fall under other articles of the law of Amnesty, except those who have committed the following offenses under the Criminal Code (the restrictions apply only to crimes carried out i.e. not to attempted crimes or conspiracy crimes)  

  • Article 108 Premeditated Murder;
  • Article 109 Premeditated Murder under Aggravating Circumstances;
  • Article 137 Parts four and five –Rape with extreme violence against the victim or other person or/and that has resulted in the death of the victim; Raping of a person under fourteen years;
  • Article 138 Parts four and five - . Sexual abuse under extreme violence against the victim or other person or/and that has resulted in the death of the victim; the same act committed against a person who has not attained the age of fourteen years;
  • Article 323 Part three - Terrorist Act bringing about a person’s death or any other grave consequence;
  • An offense for which the Georgian Criminal Code provides for life imprisonment, except the crime punishable under Article 260, Part three of the Criminal Code.

 

It should be noted that regarding persons who under Article 59 of the Criminal Code have been (or will be) awarded a sentence for multiple crimes and/or judgments the present law shall apply for each particular punishment separately.

As for those on probation, exemption from criminal liability and punishment and/or sentence reduction under the present law shall apply equally and proportionally to the actual punishment in the form of imprisonment as well as a suspended sentence and probation term, to both the main punishment and the additional one, except cases of fine and property seizure.

Under Georgian law, perpetrators of drug crimes have a number of rights removed from them (for example the right to be a lawyer, a doctor, work for the public sector etc.) it was decided that these rights would be fully restored under the draft law on Amnesty to perpetrators of drug crimes.

This draft law shall not apply to sentences delivered and enforced in the form of a fine and / or property seizure.

Another point that merits attention in the draft law is the fact that it was supplemented by article 18 (that did not initially appear in the first draft) regarding political prisoners: "Due to the established political and legal situation, guided by the criteria defined in the Council of Europe’s Parliamentary Assembly Resolution # 1900 (2012) and considering that Georgia at present has political prisoners or persons criminally prosecuted for political reasons, Parliament announces political amnesty by the present law." This applies to the list of political prisons that was recently compiled by Parliament.

According to the second part of the present article, “persons who by the decree of the Georgian Parliament have been granted the status of persons arrested or criminally prosecuted for political reasons shall be released from criminal liability and punishment.”

 

As regards the procedure of enforcement of the law, this law shall be used only in the case if the person covered by the amnesty accepts it. The decision on the application of the amnesty law is taken:  

  • At the stage of investigation against the defendant,  by the authorized prosecutor;
  • At the stage of court proceedings against the defendant and/or convict , by the relevant court;
  • For completed cases against a convict, by the initial decision-making district (city) court which receives the convict’s personal file from the relevant penitentiary institution. The court is entitled to examine the issue of amnesty application without hearing.

 

At the bureau session held on 10 December, it was said that the "Amnesty" law shall be adopted before the end of the year. The Law shall be enacted on the date of its publication and shall be enforced within two months from its enactment. The Ministry of Corrections and Legal Assistance shall enforce political amnesty without delay as soon as the law enters into force. Herewith, it should also be noted that in order for the law to enter into force, it must be signed by the President, for which he is granted a 10-day period. The law is published upon its signature. The President, however, can send it back to parliament with his notes for revision. If the President uses this right, the enactment of the law may be delayed. As already noted above, the draft law has undergone considerable amendment and is quite different from its original version. For comparison you can visit our previous blog Who will be affected by amnesty?

Transparency International - Georgia takes into account the public's interest in this particular issue and will continue to closely monitor the discussion of the draft law. Our organization is ready to examine citizens’ opinions regarding the above amendments. Please feel free to send us your questions and opinions at the following e – mail: parliament@transparency.ge

Author: Kakha Uriadmkopeli