At the plenary session of the Parliament of Georgia, whilst discussing the Bill on Juvenile Justice initiated by the Government of Georgia, the Chairman of the Human Rights and Civil Integration Committee, Eka Beselia, stated: "Today we have a Code which uses the same punishment for both juveniles and adults."
FactChecktook interest in the accuracy of Ms Beselia’s statement and looked into it.
There is no specific normative act regulating juvenile justice to date and the regulations and norms about this issue are scattered in different legislative acts; however, the fact that the existing legislation partly includes a specific approach to juveniles is described in the explanatory note of the new bill itself (p. 56).
The Criminal Procedure Code of Georgia determines the general procedures to be used for juveniles. As for more specific rules, the Code points towards the legislative acts such as the Law of Georgia on Imprisonment, Directives No. 181 and No. 216 of the Minister of Justice of Georgia, Directive No. 29 of the Minister of Corrections and Legal Assistance of Georgia and so on. Hence, when the case concerns a juvenile, it is often not enough to use just one article of the Criminal Procedure Code of Georgia.
According to the existing legislation, only judges, prosecutors and investigators with special training in psychology and pedagogy are authorised to participate in the proceedings against a juvenile. The prosecutor who is authorised to start or end a criminal proceeding is expected to follow the Public Interest Rule determined by the Guiding Principles of Criminal Policy. In the case of juveniles, the Public Interest Rule is confronted with the best interest of the juvenile which is determined based upon the psychical and psychological conditions of the juvenile, the necessity of re-socialisation and the facilitation of re-education and other interests which must be determined according to the personality traits of the juvenile.
Taking into account the interests of the juveniles and the standards of international justice, alternatives to the criminal proceedings and imprisonment should be used as often as possible. These alternative mechanisms include diversion and mediation with these programmes having started in certain regions of Georgia from 2010 and covering all its territory from 2013. According to the statistics published by the Prosecutor’s Office of Georgia, the number of diversion programmes used for juveniles is increasing significantly each year:
- 2010 – 2 juveniles
- 2011 – 81 juveniles
- 2012 – 120 juveniles
- First quarter of 2013 – 25 juveniles
The aforementioned programme enables the prosecutor to not start or end criminal proceedings on certain cases without failing to appropriately react to the crime whilst not ignoring the interests of those affected by the criminal act as well. The responsibility and rights and obligations of juveniles included in the diversion and mediation programmes are determined by special contracts. Signing the contract is voluntary and the prosecutor takes into account the best interests of the juvenile, the nature and gravity of the crime and the inflicted damage and assesses the potential influence of the programme upon a juvenile, the risks of recurrence in the cases of both diversion and criminal proceedings and so on.
It should be pointed out that, since 2011, diversion has been actively used for adult convicts as well although with certain differences in the procedures. Based upon the Guiding Principles of Diversion and Criminal Policy, the prosecutor is authorised to not only divert the juvenile from criminal liability but prioritise the diversion of juveniles who committed a less severe crime for the first time. In addition, the juvenile undergoes a bio-psycho-social assessment which is later used to determine the conditions of the contract and the obligations which are proportionate to the committed crime. The contract might include the obligations of the juvenile, the restriction of his activities and his inclusion in various other programmes. As for the adult convicts, the conditions of their contracts during a diversion programme are stricter and much more punitive.
As for the second alternative to criminal proceedings, mediation is used only for juveniles. Mediation implies a dialogue between a juvenile and those affected by his crime under the coordination of a mediator. The aim of the process is to resolve the conflict between the parties.
The Law of Georgia on Imprisonment also includes a significant difference between adult and juvenile convicts. Specifically, there is a mandatory consideration of the possibility of early release for juveniles every three months whilst this time period is every six months for other convicts. There is a difference in the deadlines for the nullification of previous convictions as well. Specifically, in the case of an adult, the previous convictions are nullified in a year in the case of a sentence lighter than imprisonment, in three years for a less severe crime, in six years for a severe crime and in eight years for an especially severe crime. In the case of a juvenile, however, these deadlines are shortened and are six months, one year, three years and five years, respectively.
During her speech, Ms Beselia pointed out that the biggest achievement of the bill includes the immediate nullification of previous convictions, the principle of protection of the best interests of juveniles and contracted deadlines. According to the bill, the maximum time of pre-trial imprisonment for a juvenile must be 40 days instead of 60 whilst the overall time of imprisonment of the convict should not exceed six months instead of nine. It should be noted that, according to the current legislation, there is no differentiation between juvenile and adult convicts in this sense. Hence, taking these and many other changes into account, the new bill represents a special normative act regulating juvenile justice which is in accordance with international standards.
Conclusion
Eka Beselia’s statement concerned the factual separation of the actions determined to be used against juvenile and adult convicts in legislation. As we have seen, the existing legislation includes differing approaches for adult and juvenile convicts in many aspects and the protection of the best interests of a juvenile. However, as pointed out in an explanatory note of the new bill, there is no special normative act regulating juvenile justice which would bring together the specific rules of participation in the judicial procedures for juveniles and make them easier to understand and perceive. The new bill initiated by the government, on the other hand, unites the already existing regulations about juvenile justice as well as adding new rights and represents a normative act in accordance with international standards.
Hence, Eka Beselia’s statement: "Today we have a Code which uses the same punishment for both juveniles and adults," is HALF TRUE.
