On July 27, 2023, the Constitutional Court made a significant decision and substantially increased the degree of protection of the procedural rights of the affected persons. In particular, the court satisfied the claims of the plaintiffs - Samson Tamariani, Malkhaz Machalikashvili and Merab Mikeladze, which were related to the rights of a victim in the criminal case to review the case materials, to receive information about the progress of the investigation, to terminate the investigation and criminal prosecution, and to appeal the decisions on the refusal to start the criminal trial and considered that the limitation of these procedural rights was unconstitutional and violated the right of the affected persons to a fair trial (paragraph 1 of Article 31 of the Constitution) and the right to equality (Article 11 of the Constitution).

Within the mentioned case, which, by the decision of the court, integrated two lawsuits, the interests and rights of Malkhaz Machalikashvili and Merab Mikeladze were protected by the Social Justice Center. Our organization appealed to the Constitutional Court on January 23, 2019.

The right to receive information about the progress of the investigation and to familiarize with the case materials

Based on subsection "h" of Article 57, Part 1 of the Criminal Procedure Code of Georgia (hereinafter - "CPC"), a victim has the right to receive information about the progress of the investigation and review the case materials. However, at the discretion of a prosecutor, this right may be limited to protect the interests of the investigation. Based on the disputed norms, the victim could appeal this decision only once by appealing to the superior prosecutor. According to the claims of the defendant, such settlement of the issue was contrary to the right of a fair court since it deprives the victim of the opportunity to make the case a dispute before a neutral body.

In the process of reviewing the case, the respondent, the Parliament of Georgia, argued that in this situation, as a counterweight to the lack of a mechanism for appealing to the court, there was a procedural opportunity to familiarize the victim with the case materials, without any exceptions, before the pre-trial session, thus sufficiently protecting the victim's right to a fair trial.

The Constitutional Court fully shared the plaintiffs' position. According to the court's explanation, "the victim's ability to have information and, accordingly, to control the investigative process has a positive effect on the responsibility of the relevant authorities and increases their accountability. In addition, the availability of information, on the one hand, significantly reduces the deficit of public trust in public bodies, and, on the other hand, increases the victim's trust in them." According to the reasoning of the Constitutional Court, introducing judicial control in this process will balance, on the one hand, the risks of arbitrariness or abuse of power by the prosecutor. On the other hand, it will reduce the chances of the prosecutor making a wrong decision and possibly harming the victim, even in less likely conditions.

The issue of appealing the decisions on termination of legal prosecution and refusal to initiate criminal prosecution

The second request of the plaintiffs concerned the manner in which the victim can appeal the decision to terminate the investigation or criminal prosecution and to refuse to initiate the criminal prosecution. In particular, on the basis of Article 106, Part 1¹  of the Criminal Code, the victim has the right to appeal the decision of the prosecutor on termination of the investigation and/or criminal prosecution to the superior prosecutor. According to the disputed norm, only those victims had the right to appeal the decision of the superior prosecutor to the court, whose case was investigated under a particularly grave crime, or if the crime was included in the list of crimes under the State Inspector’s Service. While in the case of less serious and serious crimes, the decision of the superior prosecutor was final and was not subject to further appeal. A similar provision was included in the 2nd part of 168 of the CPC, which allows the victim to appeal the decision to refuse to initiate criminal prosecution.

According to the plaintiffs, this arrangement was contrary to the constitutional right to equality and unjustifiably discriminated between, on the one hand, victims of particularly grave crimes and, on the other hand, victims of less serious and/or serious crimes. The claimant considered it important that each victim experienced the damage caused by the crime with different intensity and that this circumstance did not depend on which category of crime a person suffered. In addition, the possibility of appeal by the position of the plaintiffs would also play a deterrent role and prevent a potential abuse of power by the investigative authorities.

According to the position of the parliament, the defendant in this case, granting the right to appeal the decision of the investigation and/or criminal prosecution to the court may have caused a violation of the principle of competition while giving the right to appeal the prosecutor's decision through the court would have prevented the swift and efficient administration of justice.

The court identified that the ability of persons affected by particularly grave crimes to challenge the prosecutor's decisions in court is equally important for the category of persons affected by less serious and serious crimes. "According to the disputed norms, one category of person completely deprived of the possibility to use the appeal to the court as a means of protection of the right, even if the prosecutor terminates the investigation or criminal prosecution or refuses to initiate the prosecution."^[1] The Constitutional Court considered that the interest of the victim to have information on the progress of the investigation and to check the legality of the aforementioned decisions made by the prosecutor through judicial control outweighs the possible risk of overloading the court, which is why the court considered the disputed norm unconstitutional.

It is important that the mentioned decision is already in force and it will affect all victims, regardless of the crime category. The spread of judicial control over the prosecutor's decisions will significantly contribute to preventing arbitrariness and possible mistakes in the investigation process, while the victims will actively participate in the proceedings and protect their rights and interests even more effectively.

This case was conducted by the Social Justice Center with the support from the USAID Rule of Law Program.

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