15 research outputs found
მოსამართლე და სასჯელის ინდივიდუალიზაცია
No full textWhy is the crime rate not decreasing? Why are we still unable to succeed despite the resources concentrated? If we defi ne the law as a system of ideas, values, principles, norms, institutions, methods, mechanisms, processes etc. we acknowledge that the abovementioned components should function orderly otherwise the system might fail. What if there is a mismatch or even contradiction between some of these components? On the one hand, the legislator sets the clear goal within the Penal Code of Georgia – prevention of new crime (article 39). Consequently, the judge is obliged to fi nd the punishment that would be proportional to the individual circumstances of criminal case and the person he/she is going to sentence (article 53). On the other hand, the Penal Code of Georgia does not allow the judge to use suspended sentence (article 63) or a punishment that is milder than the one established by the law (article 55), even when this is preferable or even necessary in terms of proportionality of the punishment (unless there is a plea of bargain). This is a serious contradiction between the goal and the means. Thus no wonder that we have problems in terms of achieving the goal. Therefore, the legislators should revise the matter wisely
დანაშაულის პროვოკაციის შემადგენლობა
No full textEvery single element of each particular offence requires to be considered with great care and precision. Entrapment is no exception. From the theoritical point of view it will allow us to determine whether Entrapment is kind of instigation or just delictum sui generis? From the practical point of view, it will allow to separate entrapment from resembling concepts such as the test purchase, controlled delivery etc. We will be able to grasp exactly what should be imputed to the provocateur. But before doing that we need to determine what exactly Entrapment is. What are the elements of crime that establish entrapment
Dark Legacy of Zero Tolerance in Georgia (Criminal Punishment and Sentencing)
No full textFollowing much-praised promises to reduce crime to zero Georgian Government in 2004 imposed a “zero tolerance” policy embodied in both criminal legislation and legal practice. The fateful phrase “No probation! Everybody to the prison!” explicitly indicated the way of thinking of government officials at that time. This, of course, primarily affected regulations on criminal punishment and sentencing. Unfortunately, the principle of proportionality was largely disregarded, and the goals of punishment were narrowed. In 2012, the new government faced all the consequences of such a one-sided approach – overcrowded prisons, massive human rights violations, etc. As expected, the policy was largely revised. Some radical regulations were repealed. For example, a judge was allowed to use absorption or partial addition of punishment when imposing a sentence in the case of cumulative crimes and cumulative sentences. Sadly, many instances of punishment, such as conditional sentence, imposing more lenient sentences than provided for by law, etc., remain unchanged, presenting the dark legacy of zero tolerance policy.
Keywords: Punishment, sentencing, proportionality, zero tolerance.
Introduction
It is fair to say that Georgian criminal law has seen good, bad, and ugly for the last hundred years. The first two decades (1921-1941) of soviet occupation can safely be defined as the dark age. Both criminal legislature and justice system were oriented to simply punish as many people as possible and as severely as possible, ignoring even the nullum crimen sine lege principle. It is not surprising that such repressions in the 1920s and 1930s left a bleeding wound on both the state and society. Nevertheless, from the late 1950s, Georgian legal scholars once again aimed to implement a more elaborate approach. Namely, the principle of proportionality of criminal liability and punishment was reintroduced in and implemented in the Criminal Code of Georgia of 1960. After Georgia regained its independence, the new Criminal Code of 1999 became even more based on proportionate punishment. This consistency was broken in 2004 when the new government declared a “zero tolerance” policy. Step by step Criminal Code was amended to make punishment more and more severe, even when it was not necessary. The judge was left with fewer and fewer freedom in terms of sentencing. While some short-term gains were achieved, overcrowded prisons and massive human rights violations became more than apparent. Overall, things were so bad that in 2012, the newly elected parliament was faced with the need to pass a sweeping amnesty and simultaneously revise the Criminal Code. Since then, many radical regulations have been revised. The purpose of this article is to clarify whether Georgia has finally overcome this issue or still has to deal with the dark legacy of zero tolerance.
Since between 2004 and 2012 Criminal Code of Georgia was amended 93 times, this article cannot cover all of the amendments. Instead, it is primarily focused on the most important general provisions of punishment and sentencing since these are the ones that have the greatest impact on the outcome.
Methodological Base
Criminal punishment has come a long and thrilling way in evolution from simple revenge to a modern, elaborate concept.[1] The most ancient idea behind punishing someone was built around the offender him/herself. On the other hand, the modern concept is much more mature and targets the entire society. Moreover, it sets specific goals for punishment that need to be achieved. Generally speaking, these are retribution and crime prevention. More specifically, they are divided into several sub-goals, but eventually they all aim to bring two things into society: justice and social good. They are recognized not only by the overwhelming majority of legal scholars but are also directly prescribed in the law. Namely, §1 of Article 39 of the Criminal Code of Georgia indicates that: “The goal of a sentence is to restore justice, prevent repeated commission of a crime and re-socialize the offender”. Since these goals are set, every decision regarding punishment and sentencing should be focused on achieving those goals. Respectively, any idea or concept around punishment and sentencing can be and should be analyzed through the prism of retribution and crime prevention. If the idea itself initially contradicts these goals, it is not surprising that the result may seem unsatisfactory. On the other hand, if an idea is more likely to assist in achieving these goals, it is more likely to be acceptable. Since the present article primarily focuses on issues of punishment and sentencing, it would be simply a shame to ignore these very goals.
Since ancient times until quite recently, revenge on the offender has been the main idea of criminal punishment. According to theories of Kant and Hegel, punishment should compensate for the criminal’s culpa. Punishment should serve fairness instead of social good.[2] These are often referred to as absolute theories. Kant and Hegel claim that criminal conduct breaches the law; therefore, punishment must be, first and foremost be perceived as a just retaliation for it. Things like social good or expediency of punishment are completely rejected, and the issue is solved purely based on morality. Being immoral, the criminal opposes his will to the law. Therefore, through his action law becomes breached. Consequently, punishment is the means of restoration of what he/she has breached. Hegel rejects the concept of the deterrence effect of punishment combined with the goal of re-education. He argues that since man has free will, the threat of punishment and the attempt to re-socialize him/her would mean reducing him/her to the level of an animal. Kant directly refers to the Talion principle − “An eye for an eye” – and argues that a criminal must be punished since he/she deserves punishment due to what he/she has committed.[3] Sometimes, absolute theories are named theories of retribution. Utter denial of utilitarian ideas brings the offender to the punishment which he/she simply deserves for what he/she has done, and no one cares whether it is socially expedient or not.[4] In this regard, absolute theories are oriented towards the past.[5] Despite their popularity among the people, absolute theories met resistance from some scholars. Beccaria claimed that criminal sentencing based purely on retribution is wrong. He pointed out that punishment must have an exact proportion to the magnitude of the evil that the criminal has committed, make the strongest and most lasting impression on the mind, but be the least painful to the sensibilities of the unfortunate.[6]
The evolution of legal science and consistent retreat from pure retribution made possible the invention of more socially oriented theories commonly known as relative theories. These were based on the idea of expediency instead of morality.[7] Revenge was largely disregarded. Instead, social benefit was considered the main goal, and it was to be achieved through the prevention of crime.[8] In that regard, relative theories became oriented towards the future.[9] Furthermore, two main types of crime prevention were developed.
The first type of prevention developed by List is specifically oriented towards the offender. Therefore, it is commonly known as the concept of special prevention. There are two subtypes of special prevention. Negative special prevention aims to isolate the most dangerous criminals from society and thus protect it.[10] Positive special prevention intents to influence the offender in the right way to prevent him/her from committing another offence in the future.[11] This theory has been much hailed and greatly contributed to the introduction of such important provisions as alternative measures to criminal punishment, parole, etc.[12]
The other type of crime prevention is oriented towards the entire society. It is commonly known as general prevention and was developed by Feuerbach. The main priority here is to influence and deter those individuals who are thinking about committing a crime but have not developed an intent yet. Deterrence is to be achieved through a threat of punishment. Simultaneously, general deterrence is reinforced by sentencing an actual offender. Hesitant individuals should take it as an example and give up criminal thoughts for good. This subtype of general prevention is often referred to as negative general prevention.[13] On the other hand, positive general prevention aims to win the hearts and minds of citizens instead of deterring them. Once an actual offender is sentenced, it instills confidence among citizens, building trust in the integrity and effectiveness of law enforcement in society.[14]
All these theories have been criticized over and over again.[15] The biggest problem was that each of them concentrated on a particular issue and failed to grasp the subject entirely.
Finally, the goals of punishment were systematized as non-utilitarian and utilitarian goals.[16] Based on this system, new unified theories of punishment were developed. Instead of focusing exclusively on one goal, they managed to collect all the good theses put forward by absolute and relative theories. Hence, both non-utilitarian and utilitarian goals are acknowledged at the same time. Adepts of unified theories think that none of the goals guarantees the necessary result on its own. Indeed, instead of picking one, it is possible to combine the best thesis of all three into one unified theory.[17] Of course, it was not done overnight. It took time and effort.[18] It was indeed uneasy since, at first glance, non-utilitarian and utilitarian goals of punishment contradict each other.[19] The state must punish the offender and take revenge on him/her because it is fair and he/she deserves it. At the same time, the state should take care of the criminal, mitigate the punishment if possible, and create a chance for rehabilitation. Despite seeming contradiction, these goals create dialectical unity and complement each other. As Hälschner once noticed, although punishment must serve a multitude of goals, its nature is not determined by one or another of them, not even the majority of them. It is determined by only the absolute goal – justice, since it is truly fair and automatically serves all the relative goals.[20]
Since clarity on methodological basis has been achieved, it is time to analyze specific amendments on punishment and sentencing made to the Criminal Code of Georgia and understand to what extent they contribute to achieving the goals of punishment.
Regulations on Punishment and Sentencing
First of all, it should be noted that these elaborate goals of punishment do not make a judge’s life easier. They require strict adherence to the principle of proportionality of punishment. For some people, proportionality itself seems unattainable. The judge must take into account all important mitigating and aggravating circumstances of the criminal case and impose a proportional sentence. Of course, the task becomes even more difficult when one realizes that he/she needs to achieve proportionality essentially across all five sub-goals of punishment at the same time.[21]
The significance of proportionality of punishment is dictated by the goals of punishment themselves. It is not even so much about the contradiction between non-utilitarian and utilitarian goals. It’s about different approaches that these goals require and also about the balance between them. Retribution is about strictness to the criminal. It is about punishing the criminal as he/she deserves due to the seriousness of the crime he/she committed. Therefore, if the sentence is not severe enough, retribution may not occur. On the other hand, positive special prevention is more about perception and even compassion for the criminal to clear his way back into society. It’s about imposing a sentence that is enough for the re-socialization of the offender. Therefore, if the sentence is too harsh, it may be counterproductive and further alienate the offender from a law-abiding society. Based on the above, the sentence must not be too lenient and not too severe. It must be proportionate. Yes, not all five goals have the same weight all the time. Sometimes one of them can become more important than the others. For example, in cases of juvenile offenders, retribution is completely rejected while crime prevention, especially positive special prevention, is a full priority. What if a criminal deserves five years of imprisonment due to the seriousness of the crime he/she committed, but at the same time, three years of imprisonment are enough for him/her to re-socialize? In this case, the judge him/herself must choose which goal is more important – retribution or special crime prevention, and carefully tip the scales in favor of one of them. Anyway, it is extremely important to keep in mind the significance of proportionality and balance between strictness and leniency.
Despite all these difficulties intention of Georgian lawmakers in 1999 on this matter was pretty apparent. Firstly, Article 40 of the original Criminal Code of Georgia of 1999 provided for as many as ten types of punishment. Such diversity certainly contributed to better individualization of punishment, thereby achieving proportionality. Article 41 provided basic and supplementary punishments, making sentencing even more flexible. §3 Article 53 obliged the judge to take into account specific mitigating and aggravating circumstances such as the motive and goal of the crime, the unlawful intent demonstrated in the act, the character and degree of the breach of obligations, etc. However, amendments made since 2004 paint a completely different picture.
Imposing a Sentence in the Case of Cumulative Crimes and Cumulative Sentences
Article 59 of the Criminal Code of Georgia, adopted in 1999, contained three options for punishing a cumulative of crimes: absorption, partial addition, and full addition (cumulative punishment). In case of two or more less serious[22] offences, more severe punishment would absorb the less serious punishment(s). This provision was amended in 2000 so that partial and full addition of punishment was also allowed. At the same time final sentence could not have exceeded 5 years.[23] In case of two or more serious or particularly serious crimes, the punishments imposed for each crime individually would have been partially or fully added up. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 25 years. In case of less serious and serious crime or less serious and particularly serious crime, absorption as well as partial addition and full addition were allowed. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 20 years. At first glance, these provisions were indeed intended to promote the goals of punishment. It would allow the judge to consider all the mitigating and aggravating circumstances of the case and impose a proportional sentence.[24]
In 2006 Parliament of Georgia adopted an amendment to Article 59. According to the new regulation, in case of cumulative crimes, the punishment had to be imposed for every crime individually and then added up (aggregate sentence). Hence, neither absorption nor even partial addition was available to the judge anymore. At the same time, Article 50 of the Criminal Code of Georgia was also amended, and the possible term of imprisonment imposed as a final sentence was increased from 20 to 30 years.[25]
As mentioned above, in 2012 newly elected Parliament of Georgia faced the necessity to declare an amnesty for a vast number of prisoners.[26] Parliament also had to rethink the approach to the subject of imposing sentences in cases of cumulative crimes.[27] New law allowed judges much more freedom. According to the new law, in every case except for recidivism more severe sentence shall absorb a less severe sentence. In case of recidivism,[28] when imposing a final sentence for cumulative crimes, a more severe sentence shall absorb a less severe sentence or the sentences provided for these crimes shall be added up in part or in full. In the case of recidivism, the term of imprisonment imposed as a final sentence may not exceed 30 years.
From the perspective of retribution, this 2013 change makes things significantly better. As mentioned above, retribution is about punishing the offender for what he/she has committed. e/she gets punished because he/she deserved it. So instead of simply adding up the sentences for individual crimes, it’s better to think about how severe the punishment the criminal deserves. For example, one individual has committed theft by illegal entry into a dwelling place three times. Each time he/she stole 200 GEL (68 EUR), overall 600 GEL. This criminal would face 4 to 7 years of imprisonment for each offence. If there were only full addition available, he/she would face 12 to 21 years of imprisonment. At the same time, another person who committed homicide (intentional killing) would face 7 to 15 years. Does this thief who stole 600 GEL deserve more severe punishment than a murderer? Well, maybe… maybe not. At least a judge should have the right to answer this question, and if the answer is “no”, he/she should be able to apply absorption. Although there is also a significant risk of unfairness. Since the judge can’t apply partial or full addition unless there is recidivism, some people may receive undeserved leniency. If an offender has committed a series of crimes, for example, 15 episodes of fraud. If this criminal doesn’t have recidivism, he/she will face only absorption as if he/she had committed only one episode.
In terms of special prevention, the current regulation is even more significant. It allows the judge to properly individualize the sentence, thus supporting the proportionality of punishment and greatly supporting the re-socialization of the offender. Although recidivism should not be a prerequisite for at least partial addiction, as discussed earlier. Some criminals may need partial addition of sentences to properly re-socialize.[29]
As for the general prevention, the current approach has slight problems. Since general prevention relies largely on the threat of punishment, i.e., the deterrence effect, using absorption instead of partial or total addition may not always be effective. For example, an offender has committed a series of crimes, 15 episodes of fraud, and gets punishment only for one. Such a sentence will not have a deterrence effect on the members of society who think about committing a crime. For most of them, this will be a signal of the possibility of evading responsibility. Thus, the judge should have the right to apply at least partial addition even in cases where there is no recidivism, but there is a need to impose a more severe punishment for general prevention. In general, recidivism is not always a good prerequisite for partial or full addiction. The original (1999) regulation was better than the current (2013) regulation in terms of both specific and general prevention, as it allowed for a more sophisticated approach instead of simply setting a single precondition, such as recidivism.
Overall, it is fair to say that the current revised (2013) provisions on imposing a sentence in the case of cumulative crimes and cumulative sentences are much more focused on the goals of punishment. At least the overt radicalism that characterized the zero-tolerance policy is no more. At the same time, undoubtedly, a more detailed differentiation is needed to prevent unjust sentences in the future.
Imposing a More Lenient Sentence than Provided for by Law
The original 1999 Criminal Code of Georgia introduced a mechanism allowing a judge to impose a more lenient sentence than provided by law if there was a particularly mitigating circumstance in the criminal case.[30] The judge should also have taken into account the personality of the offender him/herself. This provision was consistent with the legislative intent present in 1999. As mentioned above, the goals of punishment require strict adherence to the principle of proportionality. This is usually achieved by individualization of punishment. The judge weighs all the mitigating and aggravating circumstances present in an individual criminal case and imposes the most proportionate punishment. But a judge can’t be given absolute power. The measure or term of punishment can’t be fully dependent on the judge’s opinion. To prevent legal voluntarism, legislator implements the principle of differentiation of criminal liability and punishment. In the special part of the Criminal Code, offences are differentiated from each other. For example, a theft i.e. secretly taking another person’s movable property for its unlawful appropriation[31] is to be punished by imprisonment for a term of one to three years; The same act committed by illegally entering a building or other storage facility[32] is to be punished by imprisonment for a term of three to five years; The same act committed with a preliminary agreement by a group[33] is to be punished by imprisonment for a term of four to seven years; The same act committed by an organized group[34] is to be punished by imprisonment for a term of six to ten years. Specific offences are differentiated due to the level of social danger that they pose. Each of them gets their minimum and maximum term of punishment. For example, an individual is found guilty of theft committed by illegally entering a building or other storage facility. Accordingly, he/she faces three to five years of imprisonment. This is due to the fact that the act he/she committed represents such a degree
IMPOSING A SENTENCE IN CASE OF CUMULATIVE CRIMES: (Legislative Tendencies in Georgia)
No full textFollowing the principles laid in foundation of Criminal Code adopted in 1960 Georgian legal scholars have always been very cautious to issues of criminal punishment. Remembering bloody consequences of soviet repressions, they always tried to follow the principle of proportionality. So did the legislature. Criminal Code of Georgia adopted in 1999 was largely based on that principle. Yet, in 2004 Georgian Parliament declared policy of zero tolerance which led to number of legislative innovations. Rules on imposing a sentence in case of cumulative crimes were substantially affected. Despite high expectations in just eight years it became apparent that something went wrong. In 2012 newly elected Parliament faced a necessity to declare a significant amnesty for vast number of prisoners and rethink the policy overall. Present article attempts to analyze these legislative tendencies through the prism of theories of goals of punishment. Author argues that above mentioned issues were mostly consequence of superficial approach to the subject. The chase for statistics made government less mindful towards fundamental categories of criminal punishment. Namely, the goal of restoration of justice was almost entirely sacrificed for the sake of general prevention while special prevention was to a great extent misinterpreted as well. In 2013, thanks to further legislative innovations, general radicalism was largely overcome, but there is still much room for improvement.
Keywords: punishment, aggregate sentence, retribution, special prevention, general prevention
Introduction
For past twenty years, legislative approach to criminal punishment has significantly changed at least twice in Georgia. First in 2004-2006 following newly proclaimed concept of zero tolerance Georgian legislature adopted number of laws that aimed to make legal consequences for committing a crime a lot more severe. Naturally provisions that regulated imposing a sentence in case of cumulative crimes were affected a lot. Population of Georgia, quite tired of many years of criminal activity, initially praised the pursuit. Nevertheless the approach was so one-sided and radical that some authors even refer it as a sign of authoritarianism.[1] Despite high expectations in just eight years newly elected parliament, dealing with the consequences of earlier praised zero tolerance policy, had to declare a significant amnesty for vast number of prisoners and rethink overall approach. In 2013 Parliament adopted a massive legislative package that included subject of present article. It seems that legislature aimed to overcome the radicalism so inherent to zero tolerance policy. In addition to rethinking existing provisions some new ones were introduced. For example a new type of punishment such as house arrest was introduced[2] that up to this day serves as a good alternative to imprisonment.[3]
What was the reason for such a massive turn around in just eight years? Answer may lay deep in the fundamental categories of punishment. May be while chasing statistics of reduced crime government disregarded something essential? In order to answer that question present article aims to analyze above mentioned legislative tendencies and ascertain whether they were in compliance with the goals of punishment well praised by legal science and acknowledged by legislator himself, namely: restoration of justice, special prevention of crime and general prevention of crime.
1. Methodological Base
In order to fully and consistently analyze the subject of present article it is necessary to be equipped with a proper methodological base for the analysis. Otherwise, the consistency of argument may be easily lost and discussion may become pointless. The subject of present paper will be analyzed through the prism of goals of punishment which are: restoration of justice (retribution), special prevention of crime and general prevention of crime. This choice was made because of two main reasons. First, goals of punishment are central to entire concept of criminal law. Hence the approach that assists reaching those goals has a good chance to be considered acceptable. On the other hand, the approach that hampers reaching those goals is most likely to be rejected. So the goals of punishment could be a good orientation point for sentencing in general and imposing a sentence in case of cumulative crimes in particular. Plus, the above mentioned goals of punishment are not only well appreciated by criminal science but acknowledged by the legislature as well. Namely, section 1 of article 39 Criminal Code of Georgia directly indicates, that: “The goal of a sentence is to restore justice, prevent repeated commission of a crime and resocialise the offender.“
Ideas about goals of punishment went through a long and uneasy way from primitive revenge to modern elaborate concept.[4] For a large period of time revenge on the offender has been the main goal of criminal punishment. According to theories developed by Kant and Hegel, Punishment should have compensated for criminal\u27s culpa. Punishment should have served fairness, rather than social good.[5] These are often referred as absolute theories. Methodologically they are based on morality, or to be exact on the idea of moral law. According to these theories, criminal act constitutes a breach of moral law, therefore punishment is a fair retaliation which follows that breach. Any kind of social goal or practical expediency of punishment is absolutely rejected and the issue is solved purely based on morality. Since the offender puts his will against the will of society and thereby breaches the law, the punishment to which he eventually gets sentenced is the mean of restoration of what he has breached. Hegel also rejects the concept of deterrence through the threat of punishment, as well as the idea of re-education of criminal. He believes that since the criminal has a free will, threatening him or punishing him with the goal of re-education would mean to reduce him to animal. Kant directly refers to Talion principle − "An eye for an eye" – and argues that a criminal must be punished since he deserves punishment due to what he has committed.[6] Therefore absolute theories of punishment are frequently referred as theories of retribution. Complete rejection of utilitarian goals means that a criminal must be punished purely because it is fair to punish him, nevertheless whether it is socially expedient or not.[7] In this regard absolute theories are oriented towards past, towards the fact that has already happened.[8]
Despite its popularity the idea of pure retribution was opposed pretty strongly by some scholars. For example, Beccaria consistently argued why sentencing based purely on retribution is wrong. Finally, he points out that since revenge is no more the primary goal the punishment must have an exact proportion to the magnitude of the evil that criminal has committed, make the strongest and most lasting impression on the mind, but to be the least painful to the sensibilities of the unfortunate.[9]
Farther evolution of legal science conditioned development of relative theories of punishment, which considered practical expediency as its main goal. Namely they pointed that punishment must be oriented on benefiting society instead of revenging on the perpetrator. Therefore, relative theories are frequently referred as utilitarian theories of punishment. Unlike absolute theories relative theories are methodologically based on expediency instead of morality.[10] Social benefit is achieved not through retribution but rather through prevention of crime.[11] In that regard unlike absolute theories relative theories are oriented towards future, towards prevention of what has not yet been committed.[12] Crime prevention itself is divided into special and general prevention.
The concept of special prevention was developed by List. He argued that main goal of punishment is to influence the criminal in right way that prevents him from committing yet another offence.[13] Evolution of this thesis brought to life very important provisions such as alternative measures to criminal punishment, parole, etc.[14]
The concept of general prevention belongs to Feuerbach. It is oriented on larger part of society rather than the offender himself. Main priority is to influence and deter potential criminals from committing crime through threat of punishment. At the same time general deterrence is reinforced by application of punishment to the actual offender. It serves as an example for those who think about committing a crime but have not developed the actual criminal intent yet. Such prevention is often referred as negative general prevention.[15] On the other hand, positive general prevention is oriented towards spreading respect and loyalty to law among society instead of fear of punishment. In this regard the application of punishment to the actual offender is intended to ensure trust to integrity and efficiency of legal order in society.[16]
Each of the above mentioned theories has been subject of a fair amount of criticism, including some well-reasoned.[17] The core of the problem was that each of them concentrated on particular issue and failed to grasp the subject entirely.
Subsequently, the goals of punishment were divided into non-utilitarian and utilitarian goals.[18] Pros and cons of all of them are being discussed up to this day. Although subsequently absolute and relative theories were combined and unified theories of punishment were developed. Those theories acknowledge both non-utilitarian and utilitarian goals at the same time. The core idea is that neither retribution, nor special, nor general prevention can guarantee the necessary result on its own. It is extremely important to combine the best ideas of all three into one and thus balance out each other\u27s weaknesses.[19] First attempts of such combination proceeded pretty painfully.[20] It is understandable since at first sight non-utilitarian and utilitarian goals of punishment seem to contradict to each other.[21] On the one hand, the state must punish the offender, retaliate, take revenge on him, because he deserves that. On the other hand, it must show concern for the criminal, mitigating the punishment if possible, in order to use a chance for rehabilitation, if one still exists. Actually, these goals only seem to contradict each other. In fact they create dialectical unity and cooperate with each other. Hälschner once noticed that although punishment must serve multitude of goals, its nature is not determined by one or another of them, not even majority of them. It is only determined by one and only absolute goal – justice, since it is truly fair and automatically serves all the relative goals.[22]
Interestingly, the analysis of the theories of goals of punishment made the necessity of legimetrical approach even more apparent. The idea of a balance between morality and expediency which legimetry insists on is useful for solving number of issues and as it turns out issues of punishment as well. Absolute theories praised retribution and ignored social benefit of punishment since they were based purely on moral grounds. That was the problem since approach based entirely on morality was much less beneficial to society and authors of relative theories capitalized on it. They viewed crime prevention as a possible good that society could gain by punishing a criminal. So, they claimed that the approach to the punishment must expedient in the first place. The supporter of unified theories went even farther. They proposed that neither fairness nor expediency is enough if a balance between them is not well-calculated and that’s exactly what legimetry stands for.[23]
2. Legislative Tendencies
In order to answer the question asked in the introduction of present article it is necessary to analyze three phases of evolution which the subject went through: the original provisions of Criminal Code of Georgia (prior to 2006), provisions introduced in 2006 as a part of amendment package largely dictated by zero tolerance policy and provisions introduced in 2013. All three variants must be analyzed as mentioned above through the prism of goals of punishment, set by theories of criminal law and acknowledged by legislator himself.
2.1. Prior to 2006
Article 59 of Criminal Code of Georgia adopted in 1999 contained three types of imposing sentence in case of cumulative crimes: absorption, partial addition and full addition (aggregate sentence):
If offender had committed two or more less serious offences more severe punishment would absorb less serious punishment(s). Interestingly, this provision was amended in 2000 and the new regulation provided that partial and full addition of punishment (aggregate sentence) were also allowed, but final sentence could not exceed 5 years.[24]
If offender had committed two or more serious or particularly serious crimes the punishments imposed for each crime individually would have been partially of fully added up. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 25 years.
If offender had committed less serious and serious crime or less serious and particularly serious crime, absorption as well as partial addition and full addition were allowed. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 20 years.
Clearly the approach was much detailed. It enabled judge to take in account all important circumstances of criminal case and to apply most appropriate sentence. This is exactly that individualization of punishment stands for.[25] Properly applying individualization is the most precise way of achieving proportionality of punishment. Article 59 distinctly pushed forward that pursuit and was oriented on differentiation according to the crime categories: less serious crimes, serious crimes and particularly serious crimes.[26]
In terms of restoration of justice, these original provisions were pretty elaborate. As mentioned above, proportionality in this regard means that the offender must get the punishment corresponding to the evil that he has committed. That is why individualization of punishment is so important.[27] The judge must evaluate the level of severity of damage that the offence has caused and only then impose a proportionate (fair) sentence that offender deserves.[28] Original provisions would give the judge necessary freedom to individualize the punishment especially after 2000 amendment, since it allowed all three variants. At the same time there was an upper limit of five years to prevent arbitrary judgement in case if judge was too severe to the defendant. But there were risks as well. There was no limit for quantity of sentences that could absorbed by the most severe one. One (the most severe) sentence could absorb infinite number of less severe ones. For example, one offender who had committed one offence could be sentenced to 4 years of imprisonment; Another offender who had committed 7 offences could be sentenced to just 5 years of imprisonment since the most severe sentence had absorbed all others. Hence 6 more offences would make just one-year difference. So yes, in such extreme case there was a room for unfairness since not every criminal could get exactly what he had deserved.
In terms of special prevention this approach was also well-based. Special prevention as mentioned above is achieved by influencing the convict in right way to prevent repeated committing crime. In this regard it is essential to keep balance between fairness and expediency. If the punishment is too mild, it may make the convict feel like he got away too easily, so called “impunity syndrome”. On the other hand, an overly severe punishment may hinder the resocialization as well. It depends largely on willingness of the convict to re-establish himself as liable and responsible citizen and find his way back to society. If that very society presented by judge in this particular case is unfair and unjust to him, what on the earth can make him to be filled with such willingness? A rhetorical question. The original provisions of article 59 were at least at some extent were based on these considerations.
In terms of general prevention there were some risks in these provisions. As mentioned above, there was no limit for quantity of sentences that could absorbed by the most severe one. That could be less productive in terms of threat of punishment. Since an offender who had committed series of less severe crimes could have been sentenced to just five years of imprisonment, such “easy fate” could have encouraged potential criminals to elaborate their criminal intent.
To sum up, the original (1999) provisions of Article 59 of Criminal Code of Georgia were as far as possible oriented on all three goals of punishment. Although not without risks, restoration of justice was well taken into account. Special prevention of crime was also carefully considered. While in terms of general prevention the regulations contained some risks, they were well justified overall.
2.2. 2006 amendment
In 2006 in the midst zero tolerance policy Parliament of Georgia voted for an amendment package that included article 59 of Criminal Code of Georgia. According to new regulation in case of cumulative crimes the punishment had to be imposed for every crime individually and then added up (aggregate sentence). So, neither absorption nor even partial addition were available to the judge anymore. At the same time article 50 of Criminal Code of Georgia was also amended and possible term of imprisonment imposed as a final sentence was increased from 20 to 30 years.[29] Although in 2010 a new amendment was adopted that made partial addition possible, but that worked only as an exception rather than norm.[30]
In terms of restoration of justice these regulations were on the one hand pretty fair. The offender would have got as many sentences as many offences he had committed. So, he would get exactly what he deserved. If he had committed one offence, he would get one sentence. The number of sentences would be multiplied in accordance to number of offences committed. But such “fairness” was delusional. As Lekveishvili mentions, several less serious crimes could be punished more seriously than one particularly serious crime. [31] That’s true. For example, if a person had committed theft by illegal entry into a dwelling place for three times, he would inevitably face a punishment by imprisonment for a term of 4 to 7 years[32] multiplied by three, in total – 12 to 21 years of imprisonment. A person who had intentionally killed someone thus committed an intentional killing (homicide) would face imprisonment for a term of 7 to 15 years.[33] Was that fair? Rhetorical question again.
In terms of special prevention, it was least appropriate. The goal of re-socialization of the criminal was almost ignored. As mentioned above, it is crucial to influence the convict in right way. As the theory of social disintegration suggests, by committing a crime the offender becomes separated and finds himself in confrontation with legally organized society.[34] Thus the connection link between the person and the society is lost. Resocialization itself is nothing more than re-establishment of that link. The willingness of the convict to take responsibility for his actions is essential in this regard. The convict needs to have a hope that he will be able to fix past mistakes and start new life by re-establishing that link. The state must achieve this through implementing complex of measures. But if the convict was previously subjected to such unfairness by the society as described above in example of three thefts and one homicide it is hard to imagine a measure efficient enough to convince him to become responsible member of society once again.
Additionally, 2006 amendment made individualization of punishment to large extent impossible. As the principle of individualization suggests the judge must impose the sentence proportional to the needs of resocialization of the offender. That’s not only scientific point. As article 53 directly indicates that a stricter sentence may be imposed only when less severe sentence fails to achieve the goal of the sentence.[35] That’s simply because excessive punishment is not only unfair but also becomes counterproductive in terms of resocialization. So, the judge on the one hand was obliged impose a proportional punishment, taking in account all the mitigating and aggravating circumstances of criminal case. On the other hand, he lacked the power to apply absorption or partial addition no matter how necessary it was. Very same contradiction was apparent in case of imposing conditional sentence and more lenient sentences than provided for by law.[36]
In terms of general prevention, 2006 amendment made criminal code relatively more effective. In particular negative general prevention was achieved with great efficiency. No doubt, since criminals were getting severe long term sentences, the threat of punishment was becoming more and more apparent to potential criminals. In terms of positive general prevention, the approach was also efficient since by punishing offenders, the state made integrity of legal order more apparent to citizens. The question is – at what cost?
To sum up, legislative approach applied in 2006 amendment largely disregarded restoration of justice permitting an inherently unjust and unfair punishment. Special prevention of crime was also ignored for the most part since convicts will to re-socialize was actually degraded and the judge was stripped of ability to properly individualize the punishment. Overall, the main requirement established by the unified theory of punishment w
მოსამართლე და სასჯელის ინდივიდუალიზაცია
No full text Why is the crime rate not decreasing? Why are we still unable to succeed despite the resources concentrated? If we defi ne the law as a system of ideas, values, principles, norms, institutions, methods, mechanisms, processes etc. we acknowledge that the abovementioned components should function orderly otherwise the system might fail. What if there is a mismatch or even contradiction between some of these components? On the one hand, the legislator sets the clear goal within the Penal Code of Georgia – prevention of new crime (article 39). Consequently, the judge is obliged to fi nd the punishment that would be proportional to the individual circumstances of criminal case and the person he/she is going to sentence (article 53). On the other hand, the Penal Code of Georgia does not allow the judge to use suspended sentence (article 63) or a punishment that is milder than the one established by the law (article 55), even when this is preferable or even necessary in terms of proportionality of the punishment (unless there is a plea of bargain). This is a serious contradiction between the goal and the means. Thus no wonder that we have problems in terms of achieving the goal. Therefore, the legislators should revise the matter wisely
IDEA OF PRIVATE PRISONS – ITHROUGH THE PRISM OF GOALS OF PUNISHMENT
No full textThe present paper aims at bringing about reasonable arguments around the idea of private prisons discussing it through the prism of the goals of punishment. The idea is relevant since Georgia has been experiencing problems regarding its system of corrections, at least during the last decade. For example, in 2012 prisons in Georgia were so terribly overloaded that the Parliament of Georgia approved prisoner amnesty for the purposes of improvement of the situation
მოსამართლეთა დისციპლინური პასუხისმგებლობა – პრევენცია თუ წახალისება
No full textPresent paper is intended to verify how strongly the current legislation of Georgia is focused on prevention of disciplinary misconduct of judges. The matter is discussed through the prism of the concept of general prevention (Die generalpräventive Lehre). After a consistent review of legislation, following conclusion should be made: • The main idea of the general prevention – the threat of punishment – is diminished. • Current Georgian legislation is less than focused on general prevention of disciplinary misconduct of judges; • Current regulations make it even more difficult to prevent misconducts; • A deep comprehension of the matter through the prism of concept of general prevention is needed in order to create new, more acceptable regulations. The discussion offered in this paper has once again stressed on an ever existing problem: It is not necessary at all that a concept developed within certain field of law is used in a restricted way − only within the frame of that same field of law. It should be applied in process of comprehension of a problem that occurred within adjacent field of law if it is applicable considering its subject, problematics or/and methodological base
THE LAW ON SEXUAL HARASSMENT & DISREGARDING FUNDAMENTAL PRINCIPLES
No full textThe issue of sexual harassment has recently become topical among Georgian society. A whole new article to the Administrative Offences Code (AOC) of Georgia has been initiated and adopted (Article 1661) by Parliament this year. The whole process was constantly accompanied by pompous slogans about protection of human rights. However, in case of critical rethinking of this legislative innovation one’s attention might be attracted by certain weirdness of the elements of this offence: “unwanted behavior of sexual nature committed against a person in public places that aims or/and causes violation of his/her dignity and creates frightening, hostile, humiliating, degrading or insulting conditions for him/her.” A doubt might arise in terms of whether the above mentioned regulation fully follows the fundamental principles of law namely: nullumcrimen sine lege and presumption of innocence. This report is a humble attempt to present an academic opinion upon this uneasy matter. Namely the intention is to analyse the elements of article 1661 AOC of Georgia through the prism of the above mentioned principles and find out whether is there full compliance between them or not
სასჯელის მოხდისაგან პირობით ვადამდე გათავისუფლება – ლეგიმეტრიული გააზრება
No full textValue judgment is highly important in terms of criminal law. Facts need not only to be described or explained but to be judged as well. This inevitably requires measuring operations to be produced especially when it comes to punishment. It shall be done necessarily. Legimetry is a relatively new discipline which aims to elaborate effective techniques of measurement. Present study is a humble attempt to comprehend the provisions on parole imposed by Georgian legislation through legimetry and fi nd out whether they comply with the basic principles of criminal law. Consequently we came to the following conclusions: To ensure both fairness and effectiveness of punishment the principle of proportionality of criminal liability and punishment must be respected during both stages: sentencing and enforcing the sentence, as well as during the parole hearing. Each parole decision should be reasoned in terms of whether the goals of sentence are already achieved (thus further serving of punishment is unnecessary) or whether they will be achieved more effi ciently if the parole is granted. The standard of legal reasoning should be settled by the law (not by a by-law) and reinforced by the clear system of measurement reasonably limiting discretion and preventing arbitrary decisions. The opposite may cause the increase of personal/social disintegration. The provisions on parole imposed by Georgian legislation do not fulfi ll the requirements proposed above. Thus, they don’t comply with the principle of proportionality of criminal liability and punishment. A fundamental revision of the legislation is needed to correct those deviations
სისხლის სამართლებრივი კანონის უკუძალა და ცდა სამართლის გაზომვისა
No full textOn September 27th, 2017 the Supreme Court of Georgia delivered a judgment over criminal case №2K-251AP.-17 within which an issue of ex post facto law was examined. The law enacted during the cassation hearings, provided modifi ed elements of criminal offenses which the defendant was accused of (art. 137-138 penal code of Georgia). On the one hand, the defendant could no longer be accused of two separate offences: attempted rape and sexual assault and this was to reduce punishment significantly. On the other hand, he was to be accused of a completed rape rather than an attempted one and this could somewhat worsen his situation. The court referred to a procedural norm on prohibition of reformation in peius, used both laws in conjunction and found the defendant guilty of attempted rape only. Although the decision is legal it lacks a deep and comprehensive analysis of the issue, we apply the legimetrical method. It suggests measuring the problem using criteria that are inseparable structural components of law: morality which aims for fairness and policy which aims for benefit. Balance of these two is absolutely crucial or even vital for solving virtually any legal issue. Hopefully, there is enough ground given in this article to inspire Georgian Courts to attempt to measure the Law
