Regarding a Decision of the Second Board of the Supreme Court of Georgia
Abstract
On April 6, 2009, the Second Board of the Supreme Court of Georgia took (N2/1/1415) another decision on the grounds of the Public Defender’s Constitutional complaint. Members of Parliament (MPs) were defendants in the lawsuit. The disputed issue was the compatibility of paragraph “f”, part 1, article 142 of the Criminal Code of Practice of Georgia with article 18 of the Constitution of Georgia. It should be noted that it was not the first complaint regarding article 142 filed in the Supreme Court. With the January 29, 2003 (2/3/182, 185, 191) decision, the Second Board of the Supreme Court abrogated part 2 of article 142 due to incompatibility with article 18 of the Constitution. By doing so, article 142 seemed to fully fit requirements of the Constitutional framework. Several years later, however, the constitutionality of the article became disputable again. The fact of the matter is that the December 29, 2006 Law amended part 1, article 142 by adding to it paragraph ”f” which said: “A person may go into hiding”. It was precisely these words that the claimant considered unconstitutional, more specifically, incompatible with article 18. This time, however, the Second Board of the Constitutional Court did not satisfy the claim by the above mentioned April 6, 2009 decision.
As already said, the subject of dispute in both above mentioned decisions of the Second Board of the Constitutional Court is one and the same article of the Criminal Code of Practice. Before going into details of the April 6, 2009 decision I would like to briefly touch upon the January 29, 2003 decision of the Constitutional Court. This decision invalidated part 2, article 142 of the Criminal Code of Practice of Georgia, which said that a suspect could be detained ”if there is other evidence providing the ground to suspect a person of committing a crime. This person may be detained only if he/she has tried to flee or he/she has no permanent residence or his/her identity is not established”.
