Issue 10 (2018)

RETROACTIVE FORCE OF PENAL LEGISLATION AND ATTEMPT TO MEASURE THE LAW

Authors:

Abstract: On 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.

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