The sufficiency of evidence to convict the person for committing a crime of intolerance based on discriminatory grounds and its importance in determining the sentence

Abstract

All human beings are born free and equal in dignity and rights. The fight against discrimination is recognized by the Constitution of Georgia – “All persons are equal before the law”, any kind of discrimination is not allowed. This is emphasized in the principles and norms specified in international conventions and declarations. The obligation to study the discriminatory motive within the framework of the full, comprehensive and objective investigation stipulated by the procedural legis- lation rests with the law enforcement officers, and the court is obliged to administer justice, to make a summary decision based on the evidence. In addition, it must be substantiated. According to the legislation of Georgia, to convict a person is necessary to have a set of evidences that would convince an objective person of the person’s guilt. In the case of a crime motivated by hate, it is additionally necessary to have such indicators – evidence, which is necessary to confirm the existence of the motive. National law, which is in full compliance with international law, requires that the summary judgment passed by the court and the type and extent of the sentence applied must be justified. The court’s verdict should give any person the opportu- nity to get information on what evidence and why the court made this particular decision. In this paper are discussed the indicators of crimes committed with the motive of intolerance based on discrimination and the types of evidence to be obtained based on them, as well as the decisions of the national court and the standards of substantiation of these decisions are studied – on what evidence is the summary decision made and to what extent does the motive of hatred influence the type and size of the relative punishment.

Keywords: Crimes motivated by intolerance committed on the grounds of discrimination, Hate Crime, Evidence sufficient to convict a person, Importance of motive in sentencing, Punishment, Practice Analysis

Introduction

According to the Constitution of Georgia, all people are equal before the law and discrimination on any basis is prohibited. In 2012 and 2017, amendments were made to the Criminal Code of Georgia (hereinafter CCG), through which the national legislation recognized the motive of intolerance based on discrimination as an aggravating circumstance of the crime. The implementation of the changes was based on many circumstances, including the standard established by the practice of the European Court of Human Rights, which obliges the state to respond to hate crimes in a timely, appropriate and effective manner.

The obligation to study the motive of hatred, within the framework of the complete, comprehensive and objective investigation stipulated by the Criminal Procedure Code of Georgia (hereinafter CPCG), rests with the law enforcement body, and the court is obliged to administer justice and issue a legal, justified and fair verdict.

The CPCG does not allow the prosecutor and the judge to aggravate the person with guilt at the stage of substantive consideration of the case in court. According to the law, only before the case is sent to the court, the prosecutor has the right to include the motive of the crime as an aggravating circumstance of the crime in the decision on the charge. The judge is guided by the evidence in the case and the decision on the charge of the person, therefore, the possible crime specified in the decision on the charge is the most serious for which the person can be convicted.

In order to convict a person, it is necessary to have a set of evidence that would convince an objective person of his guilt. It is the responsibility of the investigation to collect evidence, to reflect the motive in the decision on the charge - of the prosecutor's office, to discuss the motive and increase the punishment based on it - of the court. Article 53¹ of the CCG, which is used during the trial, imperatively imposes on the judge the obligation that, in the presence of aggravating circumstances, when imposing a term of imprisonment at the time of committing the crime, the term of the sentence to be paid for the committed crime must be at least one year longer than the minimum term of the punishment stipulated by the relevant article or the section of the article of this code.

Unfortunately, a large part of the judgments passed by the court does not provide an opportunity to conclude that the mandatory provision provided by the CCG is always fulfilled. In many cases, part of the sentencing rationale is so vague, in some cases even abstract, that it is impossible to identify whether the court paid attention to the aggravating circumstance at all. Also, it is difficult to discuss the circumstances and evidence that were used as a basis for establishing or excluding the motive of intolerance based on the grounds of discrimination while committing a crime.

The decisions of the international court unanimously emphasize the state's obligations in the process of combating crimes committed with the motive of intolerance on the grounds of discrimination, including such an important obligation as - the crime committed on the grounds of intolerance on the grounds of discrimination shall not be considered as a crime similar to an ordinary crime with no similar motive.[1] The fulfillment of this obligation does not mean only conducting an investigation and identifying the motive, it is necessary for the state to impose the appropriate liability. The punishment determined for the committed crime should be fair, should not encourage the offender and should ensure the achievement of the goals of the punishment. The state must ensure that at the time of sentencing, attention is paid to the additional harm caused by the hate motive, thus the harm caused by such motive must be taken into account when sentencing.

The mechanism of applying appropriate punishment and restoring justice in this way is emphasized in many international documents[2] and decisions made by the European Court of Human Rights.[3]

Based on the analysis of the legislation and the study of the judgments passed by the court, this paper will try to evaluate the problematic aspects related to the implementation of justice for crimes committed with the motive of intolerance based on discrimination, namely: evidentiary standards established by judicial practice for this category of crimes, the influence of the motive of intolerance based on discrimination on punishment and other important issues. In addition, this paper will try to assess the current trends and challenges and propose solutions to the identified problems.

Crimes Motivated by Intolerance Based on Discrimination

Before discussing the crime of intolerance based on discrimination, the meaning of this term should be clarified – “In theory and practice, the crime of intolerance based on discrimination has several names - discriminatory crime, hate motivated crime, hate crime, intolerance motivated crime and others. Essentially, each concept carries one content, namely: the motive for committing a crime is hatred, fear, disgust or stereotypical, biased attitude”.[4]

There is a distinction between a hate incident and a hate crime, “Intolerance crimes based on discrimination are distinguished from hate speech by the presence of an element such as crime. Only an attitude motivated by a stereotype or hatred cannot become the basis for imposing criminal liability, if it does not contain signs of a crime.”[5] Accordingly, the crime committed with the motive of intolerance based on the sign of discrimination is an intentional crime provided by the CCG, the motive of which is intolerance, hatred or contempt for a specific sign.

It should be noted that the regulations related to this category of actions are indicated in virtually all international agreements[6] or documents.[7] The OSCE Office for Democratic Institutions and Human Rights defines hate crimes as criminal offenses motivated by bias. The first element of this action is to criminalize it, if there is no crime under the CCG, there is no hate crime. The second important element is bias, the latter is what distinguishes this crime from other crimes.[8]

Georgian legislation is quite close to international standards. In addition to the fact that in 2014 the law of Georgia on the Elimination of All Forms of Discrimination was adopted, the motive of intolerance on the grounds of discrimination is provided for in the CCG, both in the general provisions (Article 53¹) and in the composition of the action (e.g. Article 156) or as a qualifying element of the action (e.g. Article 109).[9] It can be said that the Georgian legislation, in the main cases, provides the opportunity to determine the correct legal qualification.

A Set of Evidences Sufficient to Convict a Person

In order to convict a person, it is necessary to have evidence, which the investigative agency has the authority to obtain, and the court has the authority to evaluate. The European Court of Human Rights (hereinafter the European Court) clarified in the case of Barbera and others that the assessment of evidence, including the determination of its relevance, is the prerogative of national courts.[10]

According to the Constitution of Georgia, the decision on imposing a liability on a person as an accused must be based on a well-founded assumption, and the verdict of guilty must be based on unmistakable evidence. Any doubt that cannot be proved in accordance with the law must be resolved in favor of the accused. “The mentioned constitutional provision is one of the foundations of the legal state, it reinforces the important, universally recognized principle of avoiding the conviction of an innocent person – “in dubio pro reo”, according to which it is not allowed to convict a person on the basis of accusations of a dubious nature and, therefore, in the process of criminal prosecution, a person It creates an important guarantee of rights protection. The principle of imposing liability only on the basis of irrefutable evidence is a guarantee that an innocent person will not be convicted as a result of the arbitrariness or mistakes of state officials”.[11]

According to part 1 of Article 82 of the CCCG, “evidence must be evaluated in terms of its relevance, admissibility and truthfulness to the criminal case.” In accordance with the 3rd part of the same article – “in order to declare a person guilty by a verdict, a set of agreed evidence beyond a reasonable doubt is required”. The “beyond a reasonable doubt” standard defined by Article 3, Section 13 of the CCCG is defined as the set of evidence necessary for the court to issue a guilty verdict, which would convince an objective person of the person's guilt. “The given evidentiary standard means that an objectively observing person (in this case, a judge or a jury) should have no reason to doubt the existence of certain facts, the truth of the charge presented to the accused and the latter's guilt as a result of the evidence examined in court. Otherwise, any doubt should be resolved in favor of the accused (the so-called principle of in dubio pro reo)”.[12]

If there is any doubt about the credibility of the evidence, it should be decided in favor of the accused. According to the judicial practice of Georgia: “The authenticity of the evidence must be evaluated according to several criteria:

1. Does each piece of evidence, including the testimony of a witness, contain conflicting and mutually exclusive information;


2. Each piece of evidence supports other pieces of evidence, if there is a contradiction between them, whose quality assessment is the competence of the court in every individual case;


3. How honest and impartial the witness is, does he have a physical defect that has a negative impact on the adequate perception of events;


4. Under what conditions has the formation of evidence taken place, for example: environmental conditions - poor visibility, crowded place, distance between the witness and the scene of the accident, etc.

Without evaluating the evidence according to these criteria and making a judgment about it, it is practically impossible to make an in-depth assessment of the authenticity of the evidence”.[13]

Each piece of evidence obtained as part of the investigation is evaluated, both individually and in combination with other pieces of evidence.

Legislation and practice do not specify by name what evidence must exist for a person's conviction, only the standard is indicated - a set of evidence that is mutually agreed upon, clear and convincing. At this time, the subject of evaluation are not the types of evidence, but the standard created by their combination, which convinces an objective person of the person's guilt.

Possible Evidence Establishing a Motive of Intolerance Based on the Grounds of Discrimination

In order to convict a person, it is necessary to have evidence, and in the case of a hate crime, there must also be evidence of a biased motive. The character, nature of the crime, the quality of the investigation proceeded and other circumstances affect the final decision.[14]

The Office for Democratic Institutions and Human Rights (ODIHR) explains that one of the evidences of motive can be the nature of the crime committed, for example, offensive graffiti about Islam, or hanging a pig's head in a cemetery, making hateful comments before, during or after the attack, there can be hard-to-identify evidence, for example, the perpetrator's possession of hate literature, etc.[15]

It is worth noting that the legislation of some countries provides a list of evidence that can be used to establish a motive, for example, according to the French Criminal Code “if the crime is preceded, accompanied or followed by written or verbal words, images, objects or actions of any nature that injure to the honor or reputation of the victim, or to the group of persons to which the victim belongs”.[16] Under UK law, such evidence can be: “During the commission of the crime or before or after the commission of the crime, the offender shows hostility towards the victim based on the victim's membership (or alleged membership) of a racial or religious group...” - this can form the basis of a conclusion that a crime has been committed on the basis of religious or racial enmity, hatred.[17]

The case is a bit more complicated when there are crimes committed with mixed motives, when the criminal may have been motivated by several motives. At this time, the offender's actions may be influenced more by situational factors (for example, social factors) than by personal individual views.[18] For example, a transgender person may become a victim of a robbery based on a mixed motive: first, that the offender wants to receive property benefits, and second, the offender hates people with a different gender identity and by this action, in addition to receiving property benefits, takes revenge on them.

The existence of a mixed motive is recognized by the legislation of some countries, for example, in the Criminal Code of Belgium, it is directly written that hostility, hatred and contempt for a person due to a protected characteristic can be “one of the motives of the crime”.[19] The requirement that bias to be the only motive, would significantly limit the cases of identification of these crimes.

As for the evidence establishing the crime committed with the motive of intolerance on the basis of discrimination - the starting point when discussing the above should be the circumstances and indicators indicating a biased attitude. An indicator is an objective criterion that can be used to judge the motive of hatred, although indicators alone are not enough to convict a person, it is necessary to present relevant evidence to the court.[20]

The Office of Democratic Institutions and Human Rights (ODIHR), which provides quite important clarifications in connection with crimes committed with the motive of intolerance on the basis of discrimination, explains in its documents that there may be several indicators in a criminal case:[21]

• Perception of the victim/witness – whether he believes that the crime was committed with a motive of hatred;


• Comments, written statements, gestures or graffiti – whether the alleged perpetrator made discriminatory comments, written statements, or gestured towards similar attitudes, or left graffiti, drawings or symbols at the scene of the incident. , which indicate the motive for committing the crime;


• Racial, ethnic, gender and cultural differences – do potential offenders and victims differ by race, religion or ethnic/national origin or sexual orientation? Is there a history of hostility between the victim's group and the alleged perpetrator? Is the victim a member of a group that predominates over other groups in the area where the incident occurred? Was the victim engaged in activities supporting his group before the incident?


• Action organized by hate groups – were there objects or items left at the scene that indicate the crime was organized by a nationalist organization or hate group? Is there evidence that such a group is active in the neighborhood (eg posters, graffiti or leaflets)?


• Preceding bias crimes/Incidents – Have there been similar incidents in the same area? Who were the victims? Has the victim received offensive mail, phone calls, or been the victim of verbal abuse based on his or her affiliation or membership in a targeted group?


• Location and time of the act – was the victim in or near an area commonly associated with a particular group (e.g. a community center, mosque, church or other place of worship)? If the property was targeted, was it a site or site of religious or cultural significance, such as a historic monument or cemetery? Did the incident occur on a day of special significance (e.g., a religious holiday)?

It should be noted that the given list of indicators is conditional and not exhaustive, which implies that in each specific case such a circumstance, an indicator may be revealed, that does not appear in this list, although it indicates a biased attitude and may become a source of evidence for a hate motive. The Georgian legislation does not know the regulation of such content. Unfortunately, there are no academic papers that explain the issue in depth and based on Georgian legislation and practice.

The Influence of the Motive of Intolerance On the Basis of Discrimination on Punishment

It is explained by the Supreme Court of Georgia that "the court considers the case within the framework of the charges presented. According to Article 17, Part 2 of the CCCG, charging a person is the sole authority of the prosecutor. According to Article 169, Part 3, Sub-Clause “b” of the same Code, the resolution on the accusation should state: formulation of the charge – “Description of the incriminating action, indicating the place, time, method, means, weapon, as well as the result caused by this action. Thus, within the framework of the presented charge, the wording of the charge formulated by the prosecutor in the decision on the charge is understood, in which, the description of the illegal and guilty action (how it was manifested), which the prosecution claims against the accused, the place, time, method, means, with reference to the weapon, as well as the result caused by this action should be clearly specified”,[22] which means that when considering the issue of guilt-innocence of a person, the court cannot deviate from the wording specified in the resolution on the charge, accordingly, if the accuser, the prosecutor misses or ignores the circumstances qualifying the action, at the stage of the trial, the judge, even in the presence of hundreds of evidences, will not be able to aggravate the guilt for a person.

The Office for Democratic Institutions and Human Rights (ODIHR) regarding the use of punishment for crimes committed with the motive of intolerance based on discrimination, notes that there are three main arguments for the use of harsher punishments for this category of crime: the first is the symbolic value, the meaning, that the state specifically condemns this category of crime; the second is punishment for the harm caused – a crime of intolerance based on discrimination causes greater harm to the victim than other crimes, it also affects other members of the protected group, and therefore the punishment is determined according to the harm caused to the individual as well as to society; the third argument is that at this time a greater crime, a more serious crime, is being punished, which makes it necessary to use proportional punishment.[23]

It is important to evaluate the experience of foreign countries regarding the use of harsher punishments for the crime of intolerance based on discrimination, based on which two approaches can be formed: one, when generally there is a heavier punishment for any crime committed with a motive of bias, and second, a heavier punishment in case of committing specific crimes with a motive of bias. For example, according to the Criminal Code of the UK, if the crime is racially aggravated, the court must consider this as an aggravating factor.[24] Article 67 of the Criminal Code of Ukraine says approximately the same.[25] However, for example, under Belgian law, the commission of a hate crime is an aggravating circumstance that can double the punishment for crimes such as rape, assault, intentional homicide, and other crimes specified in the same article.[26]

In this regard, the legislation of Georgia can be attributed to a mixed model, since the CCG recognizes both a general provision - in the form of Article 53¹ of the CCG (which aggravates liability for any crime, the motive of which is intolerance on the grounds of discrimination) and also recognizes a special provision of crimes committed with the motive of intolerance based on the grounds of discrimination, for which the application of a more severe punishment is reflected in the sanction specified in the same article, for example, subsection “h” of Article 109 of the CCG - intentional murder, committed with the motive of intolerance based on the grounds of gender.

When determining the type and size of the punishment, the court is guided by Articles 53 (general principles of sentencing) and 53¹ (aggravating circumstances of the punishment) of the CCG. Article 53 of the Code is an article of general content, which states that when determining the punishment, attention is paid to the “motive of the crime” among other circumstances, while Article 53¹ is a special article and talks about a specific aggravating circumstance of the punishment. In case of competition between general and special clauses, priority is given to the special clause. Accordingly, the court should be guided by the regulation of this article in the verdict on the crime committed with the motive of intolerance on the basis of discrimination, at the stage of judging the punishment, and should reflect it in the justification of the severity of the punishment. It will not be a mistake to refer to Article 53 of the Code, as an article containing the general principles of punishment, however, the main justification should still be derived from Article 53¹ of the Code as a special and specific article.

Analysis of Court Practice

To better assess the issue, it is important to study and analyze the current practice. In the judgment of the Tbilisi City Court of February 5, 2021, which was related to the threat made against a family member (Article 11¹, subparagraph “d¹” of the second part of Article 151 of the CCG) and non-fulfillment of the requirements and obligations stipulated by the restraining order against the family member (Article 11¹, the first part of Article 381¹ of the Code), the court considered the testimony of the victim as proof of the motive of gender discrimination, where she described how her ex-spouse controlled her, demanded to agree on all details with her, humiliated and insulted her. It should be noted that in the criminal case, no other evidence was found confirming the motive of intolerance, except for the testimony of the victim and the confession of the accused.            In the justification of the sentence, the court referred to Article 53¹ of the CCG and based on it, the convicted person was sentenced to imprisonment for 1 year and 6 months.[27] Also, according to the judgment of the Tbilisi City Court of March 9, 2021, by which the court found the person guilty of committing the crime provided for in Articles 11¹ and 151 of the CCG with the motive of gender intolerance, in the justification of the sentence, it was indicated that due to the existence of the aggravating circumstance - the motive of gender intolerance, and based on the requirements stipulated in Article 53¹ of the Code, imprisonment for a period of 1 year and 6 months was determined as the form and measure of punishment.[28]

In contrast to the above-mentioned practice, in the judgment of the Tbilisi City Court of February 15, 2021, which was related to the crimes committed on the basis of gender intolerance based on Article 11¹, part 1 of Article 381¹ of CCG (three episodes), Article 11¹, part 2, subparagraph “d” of Article 151 of the Code, and Article 11¹, subparagraph “c” of part  2 of Article 151¹ of the Code, we read that the court discussed the aggravating circumstance of liability, although it did not explain what impact this circumstance had on the issue of determining the punishment at the stage of deliberation.[29] The same trend was revealed by the judgment of the Tbilisi City Court of April 6, 2022.[30]

In the verdict of the Tbilisi City Court of April 01, 2021, which was related to the commission of the crime provided for in the subparagraph “a” of second part of Article 156 of the CCG, the parties made the factual circumstances and evidence indisputable, in particular: witness statements, the report of the inspection of the scene of the accident and the recovered material evidence (religious literature), additionally, the defendant admitted to the presented charge. In the justification of the sentence, the judge drew attention to Article 53 of the Code, although he did not mention Article 53¹ of the Code, however, he pointed out that there is an aggravating circumstance in the form of religious intolerance and imposed a prison term of 1 year and 6 months, which he considered conditional for 2 years of probationary period.[31]

According to the judgment of the Tbilisi City Court on August 25, 2021, which was related to committing the crimes based on discrimination on other grounds under subparagraph “a” of part 2 of Article 156 of the Code, the first part of Article 126 of the Code, and first part of Article 151 of the Code, when identifying the motive, the court took into account the following evidence presented by the prosecution: witness statements, expert opinion, report of the scene of the incident, photographs and video recordings that confirmed the actual circumstances and the motive for the crime. 6 months of imprisonment and a fine of 2500 GEL were determined as the type and size of the punishment. During the deliberation on the punishment, the court pointed to the regulation provided for by the third and fourth parts of Article 53¹ of the CCG.[32]

In the verdict of the Tbilisi City Court, which was related to the commission of the crime provided for in Article 155 of the Code, the judge does not discuss at all the evidence on the basis of which the person was convicted (the verdict covers a total of three pages), only the fact that the parties do not dispute the factual circumstances and evidence of the case is explained – “witness interview protocols, personal arrest and personal search protocol and other infallible evidence in the case”, it is therefore impossible to assess what evidence existed in the case that would confirm the bias motive.[33]

The analysis of the studied practice provides an opportunity to identify those evidences confirming the motive of intolerance on the grounds of discrimination, which are familiar to the Georgian judicial practice, namely:

• First and most prominent: witness statements where the witness/victim indicated discriminatory sentences, phrases that the perpetrator used towards the victim – for example homophobic, transphobic or xenophobic comments, gender stereotyped phrases or attitudes, etc.;


• Protocols for viewing the information reflecting the correspondence and these correspondences themselves, where the stereotypical, biased or discriminatory attitude of the offender and the commission of the crime based on this attitude were observed;


• The defendant's own admission that his specific action was motivated by one or another biased view (despite the divorce, the wife has no right to look at another man, everything must be consulted with her ex-husband, the so-called crimes committed “in the name of honor”, or the testimony of the accused, where he indicates that the professional work of a particular person was unacceptable to him and it was in connection with this work that he had a negative attitude towards him, which turned into a violent act);


• Crime scene – for example, a place of religious worship;


• The method of committing the crime – tearing and destroying literature containing religious information.

The presence of other types of evidence, for example: the defendant's past conviction for committing a similar category of crime, discriminatory statements made by him on social networks, making hateful drawings or writings at the scene of the incident, a special method of committing the crime - humiliating, mutilating, etc., are not revealed in the studied verdicts.

When considering the evidence possibly establishing a biased motive and the application of an appropriate sentence, it is necessary to focus on international standards. For example, in the case considered by the European Court, “Identoba and Others v. Georgia”, the court explained regarding the administrative sanction applied to two persons (a 100 GEL fine) that “taking into account the level of unjustified violence and aggression against the applicants, the court does not consider that such a light administrative sanction is sufficient for the State to fulfill its procedural obligation in accordance with Article 3 of the Convention”.[34]

The European Court has focused on a number of indicators regarding the evidence establishing the motive of intolerance for committing the crime, including: the time of the crime,[35] the place,[36] the comments made at the scene,[37] the offender's biased and stereotypical attitude towards the victim,[38] and others. Decisions made by the European Court provide an opportunity to establish guidelines that will guide national authorities and establish a non-exhaustive list of evidence (indicators) pointing to the motive of intolerance.

Conclusion

In order to prosecute a person for committing a crime based on the motive of intolerance based on discrimination, it is necessary to have evidence confirming the motive of intolerance. The stated motive for committing the crime is an aggravating circumstance of liability and the court must take it into account at the stage of determining the punishment.

Based on the analysis of the requested verdicts, several important assessments can be made:

• The majority of the studied verdicts were related to crimes committed with the motive of intolerance based on the basis of gender, which corresponds to the existing statistical data, according to which the majority of hate crimes are committed precisely on the basis of gender.[39] However, the gender sign has its own specificity, therefore, based on it alone, we cannot judge all the characteristics of hate crimes in general and the exhaustive list of possible evidence that may exist in this category of crimes;


• Based on the study of the judgments, several indicators were determined, which can be a source of proof of the motive of intolerance: the perception of the victim/witness, the perception of the accused and the comments made by him, the presence of hateful, stereotypical correspondence, the place of the crime, the method of the crime committed. However, it must be emphasized that the list of mentioned indicators is not exhaustive;


• Based on the study of the mentioned judgments, it can be said that the court rarely develops additional reasoning beyond the composition of the action on the issue of identifying the motive. Whatever evidence the court considers sufficient for the legal evaluation of the action, based on the same evidence, evaluates the presence or absence of the motive;


• In the studied verdicts, there is only a formal reference to Article 53¹ of the CCG, and in some cases, this article is not emphasized at all, which certainly violates the obligation required by law. However, it is impossible to assess what influence the motive had in determining the type and size of the punishment.

It is worth noting that it is necessary for the agencies to conduct a detailed study of the verdicts and criminal cases of this category of crimes and to give a unified face to the indicators identified on the basis of them and use them in practice. In addition, the court should explain precisely - based on what circumstances, evidence or indicators it considered the existence/absence of the motive of intolerance to be confirmed and indicate this in detail in the verdict. In addition to the above, the court must justify why it uses a specific type of punishment and its specific size. The court should clearly indicate what led to the application of a specific punishment and that it was the motive of intolerance that became the basis for the aggravation of liability. During the mentioned justification, the emphasis should be placed on why he does not impose a lighter sentence, thus granting the used sentence as a special prevention (it will be clear to the convicted person that the crime he committed with a motive of hatred led to the use of a harsher and heavier punishment), as well as a general prevention (the will of the state would be clear to other individuals as well, that in case of committing a similar act, the law will be strict towards him as well and that committing the crime with the motive of intolerance increases the liability).

In order to improve the process of combating the crime committed with the motive of intolerance based on the grounds of discrimination, it is desirable to implement several activities:

• Integrating indicators as possible evidence of motive into any legislative act or internal documents. In the best case, implementing an amendment in the procedure code and prescribing the indicators, on the basis of which it is possible to obtain evidence establishing, proving the motive of intolerance. It is also possible to create an internal document, recommendation or guideline based on such information for state agencies working on this category of crime. On the other hand, the mentioned document should be public and accessible to all interested persons;


• Also, it is necessary to retrain the persons dealing with this category of cases - investigators, prosecutors, lawyers and judges and to equip them with special knowledge in order to know both the requirements of the national legislation and international regulations and the obligations imposed on the states in this direction;


• Alongside with training, it is desirable to study international best practices, draw up guidelines and ensure their availability to relevant specialists.

Taking into account and considering the above-mentioned circumstances will contribute both to the granting of the correct legal qualification as well as to the establishment of a uniform judicial practice.

Bibliography

Georgian Literature:

1. Constitution of Georgia;


2. Criminal Code of Georgia;


3. Criminal Procedure Code of Georgia;


4. Universal Declaration of Human Rights (1948);


5. European Convention on Human Rights (1950);


6. Gelovani, N., (2022). Analysis of the Report of Data (October-December 2020) on crime of in­tolerance committed on the grounds of discrim­ination, Law and World, 8(2);


7. Gelovani, N., (2022), Crimes Committed on Grounds of Intolerance in Georgian Criminal Law. Justice and Law, 14(3);


8. Commentary on the Criminal Procedure Code of Georgia, chief editor: G. Giorgadze, Tb. (2015);


9. National Statistics Office of Georgia, (2022, March). Joint Report of Data on Crimes Commit­ted on Grounds of Intolerance with Discrimina­tion Basis, 2022.

Foreign Literature:

1. OSCE Ministerial Council, Decision No. 9/09 on Combating Hate Crimes, OSCE Ministerial Coun­cil, Athens, 2009;


2. OSCE/ODIHR, Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Poland, 2009;


3. OSCE/ODIHR (2022) Gender-Based Hate Crime, Hate Crime Reporting, ODIHR Publishing, War­saw, Poland;


4. OSCE/ODIHR (2015) Understanding Hate Crimes a Handbook for Ukraine, Warsaw, Poland, 2015;


5. Lu-in Wang, “The Complexities of Hate”, Ohio State Law Journal, Vol. 60, 1999;


6. Crown Prosecution Service, (2022, 3 March), “Homophobic, Biphobic and Transphobic Hate Crime – Prosecution Guidance”.

International Court Decisions:

1. ECtHR, Case of Begheluri and Others v. Georgia, no. 28490/02, 07/10/2014;


2. ECtHR, Case of Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, 22/03/2021;


3. ECtHR, Case of Identoba and Others v. Georgia, no.73235/12, 12/05/2015;


4. ECtHR, Case of Angelova and Iliev v. Bulgaria, no. 55523/00, 26/07/2007;


5. ECtHR, Case of Barberà, Messegué, Jabardo v. Spain, no. 10590/83, 06/12/1988;


6. ECtHR, Case of 97 Members of the Gldani Con­gregation of Jehovah’s Witnesses and 4 Others v. Georgia, no. 71156/01, 03/05/2017;


7. ECtHR, Case of Tkhelidze v. Georgia, no. 33056/17, 08/07/2021;


8. ECtHR, Case A and B v. Georgia, no. 73975/16, 10/02/2022.

National Court Decisions:

1. Decision Constitutional Court of Georgia, Panel I, II-2, N1/1/548 on the case "Georgian citizen Zurab Mikadze against the Parliament of Geor­gia", 22/01/2015;


2. Decision of the Supreme Court of Georgia of June 24, 2014, №230AP-13;


3. Judgment of Tbilisi City Court of February 5, 2021;


4. Judgment of Tbilisi City Court of March 9, 2021;


5. Judgment of Tbilisi City Court of February 15, 2021;


6. Judgment of Tbilisi City Court of April 6, 2022;


7. Judgment of Tbilisi City Court of April 1, 2021;


8. Judgment of Tbilisi City Court on August 25, 2021;


9. Verdict N1/3828-19 of Tbilisi City Court of Sep­tember 5, 2019.

Footnotes

[1] ECtHR, Case of Begheluri and Others v. Georgia, no. 28490/02, 07/10/2014, §173, 179; Case of Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, 22/03/2021, §44; Case of Identoba and Others v. Georgia, no.73235/12, 12/05/2015, § 77.

[2] Crown Prosecution Service, (2022, 3 March), “Homophobic, Biphobic and Transphobic Hate Crime – Prosecution Guidance” <https://www.cps.gov.uk/legal-guidance/homophobic-biphobic-and-transphobic-hate-crime-prosecution-guidance> [Last Seen: 23.11.2022].

[3] ECtHR, Case of Angelova and Iliev v. Bulgaria, no. 55523/00, 26/07/2007, §104.

[4] Gelovani, N., (2022). Analysis of the Report of Data (October-December 2020) on Crime of Intolerance Committed on the Grounds of Discrimination, Law and World, 8(2), p. 37 <https://lawandworld.ge/PDF/printversionPDF/LawandWorld_N22_Print_Version.pdf> [Last Seen: 23.11.2022].

[5] Gelovani, N., (2022), Crimes Committed on Grounds of Intolerance in Georgian Criminal Law. Justic and Law, 14(3), p. 116, <https://www.supremecourt.ge/files/upload-file/pdf/ martlmsajuleba-da-kanoni-2022w-n3.pdf> [Last Seen: 23.11.2022].

[6] Universal Declaration of Human Rights (1948), European Convention on Human Rights (1950) and etc.

[7] OSCE Ministerial Council (2010). Decision No. 9/09 on Combating Hate Crimes, OSCE Ministerial Council, Athens, 2009, p. 1, <https://www.osce.org/cio/40695> [Last Seen: 23.11.2022].

[8] OSCE/ODIHR (2022) Gender-Based Hate Crime, Hate Crime Reporting, ODIHR Publishing, Warsaw, Poland, <https://www.osce.org/files/f/documents/f/1/480847. pdf> [Last Seen: 23.11.2022].

[9] Gelovani, N., (2022), Crimes Committed on Grounds of Intolerance in Georgian Criminal Law. Justic and Law, 14(3), p. 114-131, <https://www.supremecourt.ge/files/upload-file/ pdf/martlmsajuleba-da-kanoni-2022w-n3.pdf> [Last Seen: 23.11.2022].

[10] ECtHR, Case of Barberà, Messegué, Jabardo v. Spain, no. 10590/83, 06/12/1988, §68.

[11] Decision Constitutional Court of Georgia, Panel I, II-2, N1/1/548 on the case “Georgian citizen Zurab Mikadze against the Parliament of Georgia”, 22/01/2015, <https://matsne.gov.ge/ka/document/view/2714193?publication=0> [Last Seen: 23.11.2022].

[12] Commentary on the Criminal Procedure Code of Georgia, chief editor: G. Giorgadze, Tb. (2015), 33.

[13] Commentary on the Criminal Procedure Code of Georgia, chief editor: G. Giorgadze, Tb. (2015), 292.

[14] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 51, <https://www.osce.org/files/f/documents/3/e/36426.pdf> [Last Seen: 23.11.2022].

[15] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 52, <https://www.osce.org/files/f/documents/3/e/36426.pdf> [Last Seen: 23.11.2022].

[16] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 52, <https://www.osce.org/files/f/documents/3/e/36426.pdf> [Last Seen: 23.11.2022].

[17] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 52, <https://www.osce.org/files/f/documents/3/e/36426.pdf> [Last Seen: 23.11.2022].

[18] See Lu-in Wang, “The Complexities of Hate”, Ohio State Law Journal, Vol. 60, 1999, at p. 807.

[19] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 55, <https://www.osce.org/files/f/documents/3/e/36426.pdf> [Last Seen: 23.11.2022].

[20] OSCE/ODIHR (2015) Understanding Hate Crimes a Handbook for Ukraine, Warsaw, Po­land, 2015, p. 9, <https://www.osce.org/files/f/documents/4/9/208176.pdf> [Last Seen: 23.11.2022].

[21] OSCE/ODIHR (2015) Understanding Hate Crimes a Handbook for Ukraine, Warsaw, Po­land, 2015, p. 9-10, <https://www.osce.org/files/f/documents/4/9/208176.pdf> [Last Seen: 23.11.2022].

[22] Decision of the Supreme Court of Georgia of June 24, 2014, №230AP-13, <http://prg.su­premecourt.ge/DetailViewCrime.aspx> [Last Seen: 23.11.2022].  

[23] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 22-23, <https://www.osce.org/files/f/documents/3/e/36426.pdf> [Last Seen: 23.11.2022].

[24] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 33-34, <https://www.osce.org/files/f/documents/3/e/36426.pdf> [Last Seen: 23.11.2022].

[25] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 47, <https://www.osce.org/files/f/documents/3/e/36426.pdf > [Last Seen: 23.11.2022].

[26] OSCE/ODIHR (2010) Hate Crime Caws a Practical Guide, ODIHR Publishing, Warsaw, Po­land, 2009, p. 35, <https://www.osce.org/files/f/documents/3/e/36426.pdf> [Last Seen: 23.11.2022].

[27] Judgment of Tbilisi City Court of February 5, 2021.

[28] Judgment of Tbilisi City Court of March 9, 2021.

[29] Judgment of Tbilisi City Court of February 15, 2021.

[30] Judgment of Tbilisi City Court of April 6, 2022.

[31] Judgment of Tbilisi City Court of April 1, 2021.

[32] Judgment of Tbilisi City Court of August 25, 2021.

[33] Judgement N1/3828-19 of Tbilisi City Court of September 5, 2019.

[34] ECtHR, Case of Identoba and Others v. Georgia, no.73235/12, 12/05/2015, §75.

[35] ECtHR, Case of Identoba and Others v. Georgia, no.73235/12, 12/05/2015.

[36] ECtHR, Case of 97 Members of the Gldani Congregation of Jehovah’s Witnesses and 4 Oth­ers v. Georgia, no. 71156/01, 03/05/2007.

[37] ECtHR, Case of Aghdgomelashvili and Japaridze v. Georgia, no. 7224/11, 22/03/2021. Case of Begheluri and Others v. Georgia, no. 28490/02, 07/10/2014.

[38] ECtHR, Case of Tkhelidze v. Georgia, no. 33056/17, 08/07/2021, Case A and B v. Georgia, no. 73975/16, 10/02/2022.

[39] National Statistics Office of Georgia, (2022, March). Joint Report of Data on Crimes Com­mitted on Grounds of Intolerance with Discrimination Basis, 2022, <https://www.geostat.ge/media/43558/diskriminaciis-niSniT_2021.pdf> [Last Seen: 23.11.2022].