PAROLE AS A SPECIAL MECHANISM OF RELEASE FROM PUNISHMENT IN MODERN GEORGIAN LAW

Abstract

The presented article is dedicated to one of the special mechanisms of release from punishment in modern Georgian law – parole, it discusses the legal problems of using the benefit provided by this law, which is based on a deep analysis of practice and a small amount of scientific research, since the issue has not been thoroughly researched and has rarely been the subject of scientific research interest. The debate on the conditional release mechanism as an essential and necessary tool was initiated by the unfavourable state of the regulatory legislation, the existence of a heterogeneous practice on the part of the court, and the scarcity of modern Georgian juridical literature regarding the mentioned concept. This article aims to understand the parole mechanism in Georgia and in the example of some foreign countries, which will make the scientific research process even more interesting and diverse. It also aims to compare, evaluate and synthesize the results obtained from further research, including the mistakes of their usage in practice and the development of scientifically based recommendations to eliminate the mistakes in the parole regulations. Formal-logical, historical, formal-legal, dogmatic, comparative-legal, descriptive and systematic methods are used in researching the problem posed in a separate chapter of the article. The conclusions, provisions, and recommendations mentioned in the article can be used to improve the qualifications of the people interested in this topic and to find practical aid for the employees working in the field.

Keywords: parole, judicial practice, alternative to prison sentence, standard of decision justification.

Introduction

In the wake of the liberalization of state policy, based on which man was considered the highest value, the purpose of punishment was determined not to inflict pain but to resocialize, restore justice and prevent new crimes. A person should be a “goal” and not a means of achieving the goal.[1] Accordingly, executing the punishment should not cause suffering. Alternatives to the punishment should be sought to reduce the pain. In some cases, it is possible to stop reacting to the crime altogether.[2] In the case of imprisonment, parole can be considered one of the best means of reducing the pain caused by the punishment in modern Georgian law, which is an essential legal opportunity for the beneficiary to be motivated, in the post-sentence period, to be entirely focused on the resocialization process and as a result to hope to use this mechanism effectively. Even though the special mechanism of release from this sentence does not have a very long history in Georgia, a considerable period has passed since its introduction, and the changes made during this period have raised many question marks, especially regarding the proper functioning of the parole institution.

The current reality in Georgia - the unfavourable state of domestic legislation and the presence of non-uniform court practices - clearly emphasizes the problem’s urgency. Based on this, it is of great interest to find out the nature and extent of conditional release, not only in the example of Georgia but also in the example of some foreign countries, as well as the analysis of mistakes made in practice in scientific research. To achieve the goal of the research, the following tasks have been formulated: to study the opinions of scientists and to achieve the goal of the research by answering the questions, at the same time, to examine the experience of foreign countries and make recommendations in terms of adjusting/improving the current legislation.

When talking about the scientific novelty of the topic, the following should be emphasized:

• This article is the first attempt at a complex study of the research topic and represents the first monographic study;


• The article will formulate a position on the following issue: to what extent it is possible to consider the issue of conditional release of a convicted person based on a petition filed by a legal representative;


• The article will analyze the point of view regarding the exceptional rule of consideration of parole issue;


• A position will be proposed regarding the introduction of a legal norm regarding the rule of grace period calculation;


• It will be assessed how appropriate it is for the local Council to release the person who has already benefited from the benefits provided by the law;


• It will be analyzed whether only the excess/quantity of positively or negatively assessed criteria constitutes a basis for making a positive or negative decision on unconditional and automatic parole;


• It is analyzed to what extent an incentive measure against the convict is a special circumstance after the refusal of parole, which will allow the Council to consider the mentioned issue without the 6-month term, etc.

A brief historical overview of the origin and development of parole as a special mechanism for release from punishment

Imprisonment, prison overcrowding and prison population growth are significant problems for the criminal justice system, especially for the institution’s administration in terms of both human rights protection and effective management of penal institutions.^[3] This problem prompts the state to consider effective release policies to limit or reduce incarceration rates. Such initiatives are based on the “front door” or “back door” strategy, which involves reducing the number of convictions caused by the increase in the use of alternative punishments (“front door” strategy) and increasing the number of parolees (“back door” strategy).[4] The institution of parole is one of the most effective and constructive measures to prevent reoffending, which provides for the planned, supervised reintegration of the offender.[5]

In addition to the above, it can also be said that parole is one of the types of non-custodial punishment, but also a form of incentive for the convict, which allows the beneficiary to leave the penitentiary a few months or years before the end of the sentence, and the release motivation helps the convict in rehabilitation programs during the sentence. To be resocialized through inclusion and to refrain from illegal activities after leaving the penitentiary.

A previously unknown legal model - parole was established in 1847 by the French A. Bonneville de Marchangie, which originally meant releasing a convict after serving a certain period of his sentence, subject to satisfactory behaviour in the future. The mentioned definition is in the criminal legislation of almost all countries with some minor changes. In this respect, Georgia is not an exceptional case. Four parole systems have been changed in Georgia. Until 2006, the director of the penitentiary institution presented the personal case of the convicts to the court. Since 2006, this function was taken away from the directors of the institution and transferred to a commission created in the Department of Corrections, which performed a kind of “filter” function, reviewed the case of all convicts who served the minimum sentence required for parole and made a decision on which case was presented to the court for final consideration and decision. to receive In this case too, the court had the final say. In 2009, the issue of parole was considered by the Permanent Commission. As for local councils, since 2010, they have dealt with the issue of conditional release of convicts. In addition, a permanent commission acted as a controlling link for the Council. In particular, he imposed an obligation to submit a report on the activities performed to the permanent commission once every three months and to supervise their activities. The function of the permanent commission was particularly noteworthy: to consider the cases of those convicts who were refused parole during the consideration of the local councils and to make a different decision from the local councils, which was a superior legal force, and the person was subject to immediate release. Since 2014, the permanent commission has been canceled, and the Council has become an administrative body.[6]  Based on this, four stages of changes can be distinguished as follows:

1. Until 2006, the director of the penitentiary institution presented the case of the convicts to the court according to the territorial conviction;


2. Since 2006, the directors of the penitentiary institution have been deprived of the right to submit petitions. A permanent commission was established in the Penitentiary Department as an intermediary link between the court and the convict. Based on Article 68 of the Prison Code, convicts had the right to petition the Permanent Commission. The latter assessed certain circumstances and decided to submit to the court for parole;


3. In September 2009, this parole model was also abolished and replaced by the Permanent Commission of the Ministry of Penitentiary, Probation and Legal Assistance of Georgia. In this case, the competence to consider the issue was shifted from the department to the ministry level, with the difference that the issue was discussed and the final decision was made by the standing commission, not the court;


4. From October 1, 2010, a new prison code came into force, which radically changed the system in force in the country and created local councils, which were tasked with reviewing and deciding on the cases of convicts. i.e. The judicial circle dropped out of the given process, it retained only the appellate function.

Since 2018, convicts have been divided according to the risk of danger, and an important change has been made in the Prison Code. Under current law, local councils will no longer consider parole for high-risk offenders.[7] This circumstance is a “filter” that allows local councils to be more efficient and focused on public safety.

The parole system in our legislation is not automatic, as the legislation mixes automaticity with discretionary parole.^[8] The prerequisite for considering the issue of parole is that the convicted person has served the grace period stipulated by the law, which depends on the category of the crime, the age of the convicted person, the crime committed during the probationary period, and others. This is confirmed by the relevant legislative norms, in particular, Article 72 of the Criminal Code[9] and Article 95 of the Juvenile Justice Code[10] stipulate the minimum terms of the sentence to be served, at which time the convicted person will have the opportunity to use conditional release, and not the guarantee that he will be released without parole. No such legal reservation in nature would oblige the local council, the authority dealing with the specified issue,[11] to replace the unpaid part of the sentence with parole after serving the grace period and automatically release the beneficiary. In practice, there are often such cases when, together with the convicts and the defenders of their interests, they think that if the person deprived of liberty has served the mentioned term, the authorized administrative body is obliged to take further action in terms of release, which, as mentioned, is completely inconsistent with the content of the provisions of the applicable legal norms.

There is a logical parallel to this topic, the question of how the concession period is determined and whether there is a legal record that directly determines the relevant rules for calculating the period. If we take a look at the legislation, we will see that this issue is not regulated at all, and this often causes problems in practice, especially in cases where there are deductions according to the sentence, in particular, when the time of arrest and imprisonment and the counting of the sentence started from the moment of actual arrest, the calculation in relation to this matter is carried out by the employees of the special accounting department of the penitentiary institution in two ways, one part first subtracts the sentence to be served from the calculation and then determines the actual term of service, and the other part subtracts the calculation after determining the actual term, and this creates a different situation, since The time is different and these two methods determine completely different periods. For there to be no place for the claims of persons deprived of their freedom in relation to the calculation, non-uniform practice and, to some extent, confusion, it is advisable to write a corresponding legal norm which will regulate the mentioned problems.

The extent to which a person with the right to appeal to local councils in case of conditional release can be the legal representative of the convict has often become a subject of dispute from the side of scientists and practitioners. If we carefully read and analyze Article 42 of the Prison Code[12] We will see that only the convicted person can enjoy this right. Neither based on a warrant nor a power of attorney, a petition should be requested from the penitentiary institution to consider the above-mentioned issue by presenting a document confirming the representation so that it is possible to discuss the conditional release of the convicted person. The rule of consideration of the issue would be a direct reference to the circle of authorized persons in the relevant norm.

When considering the issue of parole, the local councils are in charge “On approving the procedure for consideration and decision-making of the issue of parole from serving a sentence by the local councils of the state sub-departmental institution - Special Penitentiary Service included in the system of the Ministry of Justice of Georgia” approved by order of the Minister of Justice of Georgia dated August 7, 2018 N320 In accordance with the criteria established by Article 13 of the Rule:

1. a) Nature of the crime - when evaluating the mentioned criterion, attention should be paid to the severity of the crime committed by the person, under what circumstances the crime was committed, as well as whether the crime was committed during the period of probation;


2. b) The behaviour of the convicted person during the serving of the sentence - when evaluating the mentioned criterion, attention should be paid to how many and what kind of disciplinary, administrative and incentive measures were applied to the convicted person during the serving of the sentence, as well as, specifically, for what kind of action such a decision was made; Attention should also be paid to the information about the institution of imprisonment, the daily schedule of the institution, the fulfilment of the duties stipulated by the legislation of Georgia and the observance of the legal regime of the institution during the period of serving a sentence by the convict;


3. c) The fact of the convicted person committing a crime in the past, conviction - when evaluating the mentioned criterion, attention should be paid to the number of times, the severity and the type of crime committed. Also, what kind of crime, what severity, and how many times he was convicted;


4. d) Family conditions - when evaluating the mentioned criterion, attention should be paid to the relationship of the convicted person with his family members, whether he has minor children, other family members who are unable to work, the material condition of close relatives, etc.;


5. e) The personality of the convicted person - when evaluating the mentioned criterion, attention should be paid to the attitude of the convicted person to the crime committed, to the employees of the institution and other convicts, information about the participation in social activities during the period of serving a sentence, whether it requires special supervision by the management of the institution and other important issues that provide an opportunity to evaluate the personality.[13] The assessment of convicted people is carried out for each criterion separately, and a reasoned decision is made based on the analysis and reconciliation of already assessed criteria. The given criteria make it possible to analyze the risk factors, which will determine the extent to which society is at risk of committing a repeated crime from the person who will be released on parole. Here, the fact cannot be left out of attention that, on August 7, 2018, the Minister of Justice of Georgia on the review and decision-making process of the issue of conditional release from serving a sentence by the local councils of the special penitentiary service, a state sub-departmental institution included in the system of the Ministry of Justice of Georgia. Article 13 of Order N320 does not explain each assessment mark in detail in terms of content or defines a circumstance relevant to the relevant criterion. When evaluating the behaviour of the convict, a relevant circumstance may be - the number, severity, nature and content of disciplinary punishments - why the said measure was used, including whether a new disciplinary violation was committed during the period of serving another punishment; Incentive measures and all the information related to the behaviour of the convict during his stay in the penitentiary institution and others. This kind of reference on the part of the decision-making body largely determines the observance of the standard of justice.

The subject of interest in the research process was the analysis of such a case in relation to the evaluation criteria, how the council should assess the legal status of the convicted person when the established factual circumstance is the lack of conviction of the convicted person and the existence of facts of committing a crime in the past by this person. The guiding criterion for a local council is not only a current conviction but also a past offence, which means that the council is empowered to assess the fact that a crime has been committed in the past, even when the conviction has been overturned. According to Article 79, Part 6 of the Criminal Law Code, an overturned or cancelled conviction is not taken into account when deciding the issue of a criminal impact measure. When making a decision on the issue of conditional release from serving the sentence. Dismissal or removal of conviction does not change the fact of committing a crime in the past, therefore, this circumstance should not cause the board to take into account the said factual circumstance in combination with other factual circumstances.

It’s crucial to address the exception to the 6- month grace period after parole denial. According to Article 42, Part 7 of the Prison Code, if the board decides to refuse parole from serving the sentence, the petition on the same issue can be reconsidered only after 6 months unless the term of the sentence to be served does not exceed 6 months or /and there is a special circumstance. Consideration of the conditional release of a convicted person from serving his sentence is mandatory once every 6 months. If the term of the sentence to be paid does not exceed 6 months, the council will consider the issue of conditional release of the convicted person from serving the sentence based on the written application of the convicted person.[14] It is acceptable to consider what the specified record means – “special circumstance”. Not a single legal act, like the Prison Code, contains a list of special circumstances or any kind of definition which would allow the local council to consider the petition of the convicted person in violation of the established term. That is, the concept mentioned in the 7^th part of Article 42 of the Prison Code – “special circumstance” is only an evaluative category. I think it is necessary to make appropriate changes in the Prison Code and to explain the “dead record” of the given norm, which will contribute to the development of practice in this direction. One of the special circumstances can be considered the case when the court invalidates the decision made by the local council and after investigating and evaluating the circumstances relevant to the case, issues a new individual administrative-legal act regarding the conditional release of the convict. In this case, the local council should no longer wait for the 6 months established by the law to pass after the refusal and is obliged to execute the court’s decision. In relation to the special circumstance, it is also important to consider whether the incentive measures applied to the convicted person after his request was not met constitute a legal basis that would allow the local council to consider the petition of the beneficiary in violation of the requirements of Article 42, Section 7 of the Prison Code. Of course, the dynamics of the development of positive behaviour of the convicted person after the refusal of parole is welcome by the local council, although the circumstance that the convicted person was encouraged does not represent such a special case that can be considered in its content, firstly because such a case will have many times place both for this person deprived of liberty and in the case of another convicted person, and the second is because it is less possible for the convicted person to carry out such a rare case that distinguishes him from other convicted persons due to individual circumstances. In such a case, it is expected that there will be a purposeful and not thought-out manifestation of positive behaviour, therefore, in relation to the given issue, the members of the Council should base their decision on a qualified assessment of objective and subjective circumstances. I think that the discussion will help those interested in the above-mentioned concept to develop the process of scientific research further and expand the list of special circumstances.

Court analysis of practice in relation to the issue of parole

In the present chapter, the issue of parole will be discussed only based on judicial practice, only a part of the cases where small flaws are identified is selected, this does not serve to criticize or reprimand the court, but rather to avoid violations in the future, to avoid non-uniform practice, to reduce the number of errors, because it is established objective truth about the case.

The non-uniformity of the existing judicial practice in relation to the decisions made by the local council is evidenced by the decisions of the Administrative Affairs Board of the Tbilisi City Court of October 20, 2021[15] and June 30, 2022,[16] which were issued against the same person, based on identical factual circumstances, in one case the judge partially satisfied the claim of the beneficiary, and in the second case, it was not satisfied, part of the reasoning is so well-argued that an objectively thinking person will not even notice the special difference when reading them. The argumentation that the inner conviction of the judge dictated this is not sufficient justification in this case. In the presence of similar circumstances, it is expedient to develop the judicial practice in such a way that some common standard is formed, and there is no place for non-uniform decisions to be made. As an illustration, we present the following situation: N.C. was convicted under subsection “e” of part 2 of Article 109 of the Criminal Code of Georgia, which was expressed as follows: i. Q. What did L. intend for his mother? Q. To inflict special pain and kill him, to fulfil his intention, he asked his friends for help: B.S. Minor N. Ch. and together with them planned L. Q. kill. On October 19, 2016, in the “Smart” supermarket on Rustaveli Avenue in Tbilisi, B. Sh., I. Q. and N.C. They met each other according to the agreement, at which time they specified L. Q. Details of the murder, in addition, to place and hide the body parts of the crime victim, they bought polyethylene bags, then they went by car to the apartment located at N5/41 Beri Gabriel Salosi Street, Tbilisi, where L. Q. He was alone. Upon arriving at the apartment, L. Q. He opened the door and let them into the house. After that B. Sh., according to agreement, L. Q. He held his hand firmly in the mouth and nose area and tried to hug her. At the same time i. Q. and N. Ch. L. K.’s hands and feet were held and he was not allowed to move. After that B. Sh. He was stabbed several times in the temple area with a knife, as a result of which L. Q. fell. To an unconscious person b. Sh., I. Q. and N. Ch. They tied their hands and feet with adhesive tape, put them in a bag and took them by car to St. B. located in Tbilisi, Vedzesi 4^th exit N4. Sh. in the apartment rented by N. Ch. and I. Q. L. Q. The body was dismembered using a saw. In particular, first, they cut off the head, the fingers of the upper limbs, the upper and lower limbs, and B. Sh. Cut out the heart and liver. They placed the dismembered body parts in a polythene bag and transported them by car to St. On the 13^th kilometre of the Tbilisi bypass road, in the territory of the former landfill, where they were thrown into an existing pit, poured gasoline and burned. On December 3, 2020, the local council refused to replace the unpaid part of the sentence with house arrest. The said decision was appealed by the convict in the Tbilisi City Court, however, by the decision of October 20, 2021, the said claim was rejected. In the decision, it was indicated that the local council, while considering the issue, took into account the attitude of the convicted person towards the administration of the institution and other personal characteristics, the fact that the convicted person was encouraged during the period of serving the sentence, however, it focused on the nature of the crime, it was a violent crime, in particular, with particular cruelty, intentional murder committed in a group under aggravating circumstances. Based on the above, the nature of the committed crime, the way the action was carried out, and the result of the crime had a particularly negative impact when considering the issue of the convicted person. Accordingly, at this stage, the Council considered that the negative considerations accompanying this criterion could not be invalidated and could not be outweighed by other positive context criteria. Accordingly, the Tbilisi City Court considered that the respondent administrative body did not exceed the scope of exercising its discretionary powers. Taking into account the factual circumstances of the case, the review council’s assessment, in this case, was fully consistent with the decision-making procedure of the special penitentiary service of the state sub-departmental institution included in the system of the Ministry of Justice of Georgia” on August 7, 2018, by the order No. 320 of the Minister of Justice of Georgia the requirements established in the approved manner and the appealed decision were issued in compliance with the requirements of the law, therefore there was no reason to invalidate the contested act. Also, by the decision of April 1, 2022, the convict was denied parole. The negative decision was based on the nature of the crime, the motive, the method and the result of the crime. In addition, the circumstance that the position of the victim’s successor was not presented was taken into account. The mentioned legal act was appealed, and by the decision of the Tbilisi City Court on June 30, 2022, the claimant’s claim was partially satisfied, and the reviewing local council was ordered to issue a new administrative-legal act against the convicted person. On the one hand, the court shared the Council’s explanation regarding the nature and gravity of the crime committed; however, it explained that when assessing the issue, it is first of all important to assess the personal characteristics of the convicted person properly. Also, the achievability of the goal of punishment and issues of resocialization of the convict.

In the research process, there were also cases where completely unsubstantiated decisions were taken from the justice implementing body in relation to the results of the local council, which are directly related to the conditional release of convicts. As an illustration, we present the decision of the Administrative Affairs Board of the Tbilisi City Court dated April 27, 2023, by which D.K. The claim was partially settled. D.K. While considering the issue of parole, the council got acquainted with the victim’s position regarding the use of the benefit provided by the law towards the convict, taking into account the convict’s behaviour during the period of serving the sentence, which is encouraged by the circumstances. However, he focused on the nature of the crime. The convict has committed a crime against human rights and freedoms - illegal deprivation of liberty, which is confirmed by the manner of the committed crime, in particular, the fact that the act was committed in a group, using the so-called “khamutes” to bind the hands and feet of the victim. A particularly aggravating circumstance of the crime is that a pre-agreed group committed the act. Also, the fact that the crime was carried out with the threat of taking life. According to the form of the charge, the crime was committed with direct intent, which means that D.K. He was aware that he was entering into illegal imprisonment. The purpose and motive accompanying the illegal deprivation of liberty, which was manifested in the extortion of a large amount of money. Accordingly, at that moment, the Council considered that the negative opinions accompanying the criteria determined by order of the Minister of Justice N 320 could not be canceled and could not be outweighed by other positive context criteria. Against the background of these factual circumstances, the judge D. St. The claim was partially satisfied on the grounds that the victim D.K. He forgives the illegal act committed against him and has no complaints with him.^[17] Here, the judge rejected the criteria defined by the Council’s guideline standard and brought forward the notarized consent of the victim in the case in the previous year, in the background that the position of the victim is not at all an evaluation mark established by the mentioned act, of course, this position should not be understood as if it does not matter if the victim To understand the point, however, partial satisfaction of the claim on this basis alone is completely groundless, besides, there is not a single legal norm, which represents the mentioned additional type of material as an unconditional reason for the release of the convicted person. “The use of punishment should be based on individual circumstances, the complexity of the case, the dangers arising from the act, the prerequisites for committing the act, motives, consequences, the characteristics of the offender’s personality, the impact of the punishment on the offender’s future life”.[18] Based on this, the decision of the council and the court should be aimed only at achieving the goals of punishment.

As for the practice in the higher instance, the situation is as follows: the appellate court rarely changes the decisions made by the court of the first instance, in the legal assessment of leaving them unchanged, it is mainly noted that the factual circumstances have been correctly assessed by the city court and the legal validity of the decision does not raise doubts. The amendment of decision No. 3/6450-19 of the Tbilisi City Court of November 21, 2018, by which the lawsuit of the convicted person was fully satisfied, is included in the exceptional circle. Based on the factual circumstances of the case, the Tbilisi Court of Appeal partially satisfied the appeal of the local council and ordered the administrative body to re-examine the case based on the investigation of the circumstances essential to the case.^[19]

In the case of the Court of Cassation, the practice of appealing the decision of the Court of Appeal has been introduced in the penitentiary system for several months, at this stage, the majority of the Supreme Court’s administrative chamber’s ruling concerns the dismissal of the Casator’s complaint at the Court of Appeal, even if the Supreme Court is judged. The cassation appeal of E. was left unconsidered by the court of cassation, and the judgment was issued using the first article of the Administrative Procedure Code, Articles 60, 396, 399 of the Civil Procedure Code.^[20]

Compared to parole - legal description

This chapter will discuss the peculiarities of the use of parole in light of the legal traditions and experiences of foreign countries.

There are different legal mechanisms of parole in different European countries. Although the attitude towards the active use of parole is changing day by day, the power of the head of state to pardon convicts remains the most effective means of parole in many European countries. Mass pardons are still a reality. Their use is particularly marked both during periods of great political change (such as the period of post-communist changes in Eastern Europe) and as a common mechanism for commuting or at least exoneration of convicted persons (for example, in France).[21]

“As mentioned in the recommendation of the Council of Europe on parole (the recommendation was received and approved by the Committee of Ministers of the Council of Europe on September 24, 2003), three systems of parole are common in the member states of the Council of Europe: Discretionary release system, Mandatory release system) and mixed (Mixed release system). A discretionary parole system operates in most European countries, with a classical form operating in France. Mandatory system is developed in Sweden and mixed - in England and Wales. According to the mandatory system, a convicted person in Sweden is automatically released after serving 2/3 of the sentence if he has spent at least one month in prison. In the mixed system, automatic release applies to persons sentenced to short terms of imprisonment, while those sentenced to long terms are subject to discretionary parole requirements.

In Germany, the criminal code provides for the conditional release of a prisoner after serving 2/3 of the sentence. The decision on parole is made by the Criminal Court (Strafvollstreckungsgericht), the prosecutor is also present at the process, but he does not have the right to participate in the decision. In the case of life imprisonment, the court may allow the prisoner to be released early after serving at least 15 years of the sentence. The criminal law judge of the Landgericht makes the decision.

In England, people serving sentences of less than four years are eligible for parole after serving half of their sentence. Parole is limited to convicts serving a sentence of more than four years. In case of early release, they are assigned probation service supervision until 75% of the sentence is served. Some sex offenders are placed under supervision until the end of their sentence.

In France, prisoners can apply for parole to the Penalty Application Commission. If the term of the sentence exceeds one year, three months are subtracted from each year (i.e., in the case of 2 years of imprisonment, six months will be subtracted from the term of the sentence); if the term of the sentence is less than one year, seven days will be subtracted from each month (i.e., in the case of 4 months of imprisonment, one will be subtracted from the term of the sentence month). A sentence of life imprisonment may also be commuted, but the reduction of the sentence shall not exceed 20 days or one month after one year of the sentence. The decision on parole is made by the judge of penal affairs (Juge de l’application des peines); if the sentence does not exceed 10 years or three years remain, in other cases, the regional parole court (Juridiction regionale de liberation conditionnelle), the case is reviewed before parole in the national cassation court of liberation (Cour de cassation la jurisdiction nationale de la liberation conditionnelle). In all cases, a court hearing is scheduled at the request of the applicant’s lawyer, and the decision can be appealed.^[22]

Parole is a common occurrence in Georgia and is not used only in cases where negative prognoses related to the convict are evident. We encounter such practices in Belgium, Denmark, and Switzerland. For example, in Sweden, a convicted person is released on parole after serving two-thirds of the sentence unless there are a number of contradictory circumstances. As of January 1, 2007, one of these grounds is the violation of a suspended sentence, which will result in its cancellation.[23]

The comparative analysis reveals that the basis for differentiation is, first of all, the existing model in Georgia, and then the actual terms of service according to the category of the crime, as well as the authorized bodies accepting parole, which in general intersects with different approaches to the use of parole as a special release mechanism from serving a sentence.

Conclusion

As we can see, parole is an alternative type of imprisonment. It is not alien to Georgian legislation and judicial practice. The past period clearly showed its advantages and disadvantages, which were discussed in the present article with a general legal description.

As a result of the study of practical and scientific materials, I consider it appropriate to formulate several provisions that include an innovative solution to the existing shortcomings in relation to the present topic:

• It is recommended to write a legal norm to regulate the appropriate rule for calculating the grace period.


• The position was substantiated in cases related to the exceptional rule of consideration of the issue of parole.


• The circle of persons authorized to petition the local council was defined, and the opinion was substantiated that in the case of submission of a power of attorney or a warrant, the local council should not request materials from the penitentiary institution where the beneficiary is serving a sentence based on the lawyer’s application.


• It was established that the dismissal or removal of the conviction does not change the fact of committing a crime in the past and does not oblige the local council to take into account the said factual circumstance in combination with other factual circumstances when examining the legal status of the person deprived of liberty.


• The article selects only a part of the cases where small flaws are revealed, this serves not to criticize or reprimand the court but rather to the process of avoiding violations and reducing the number of errors in the future, as the objective truth is established.


• Disparate judicial practice regarding the issue of conditional release was highlighted.


• By comparison - by conducting a legal analysis, the existing system at the national level was compared with the models known at the international level, the peculiarities of the use of parole were highlighted in the light of the legal traditions and experiences of foreign countries, and others.

Bibliography

Georgian language literature:

1. Collective of Authors., (2007). General part of criminal law, ed. c. Nachkibia, Tbilisi.


2. Christie N., (2017). The Limits of Pain, The Role of Punishment in Penitentiary Policy, First Georgian Edition, Tbilisi, “Sezani”.


3. Mikanadze G., (2012). The right to parole of a prisoner, European experience and the reality of Georgia, in the book: K. Korkelia, Protection of human rights, achievements and challenges, collection of articles, Tbilisi.


4. Commentary of Constitution of Georgia. Collective of authors., (2013). Chapter two. Georgian citizenship. Basic human rights and freedoms, Tbilisi, “Petit”.


5. Khmaladze M., (2017). The issue of conditional release of convicts in foreign countries, information magazine for the project of the Prison Code of Georgia, Tbilisi.

Foreign language literature:

1. Dunkel F., (2010). Kommentierung $57 StGB, in U. Kindhauser, U. Neumann and H. Paeffgen (eds.) Nomos Kommentar zum Strafgesetzbuch. Vol. 1 (3^rd).


2. Levy R., (2007). Pardons and Amnesties as Policy Instruments in Contemporary France (From Crime, Punishment, and Politics in Comparative Perspective) Michael Tonry, ed. - See NCJ-241880.


3. Padfield N., van Zyl Smit D. and Dunkel F., (2010). Release from Prison, European Policy and Practice, Willan Publishing, USA.

Normative material:

1. Prison Code of Georgia.


2. Criminal Law Code of Georgia


3. Juvenile Justice Code of Gerogia


4. Order N320 of August 7, 2018 of the Minister of Justice of Georgia "On the review and decision-making procedure of the issue of parole from serving a sentence by the local councils of the special penitentiary service, a state sub-departmental institution included in the system of the Ministry of Justice of Georgia".

Recommendations:

1. Europe Committee of Ministers, Recommendation No. R (99)22, on Prison Overcrowding and Prison Population Growth, Preamble.


2. Committee of Ministers of the Council of Europe, Recommendation Rec (2003) 22, on parole, preamble.

Court decisions:

1. the Supreme Court of May 30, 2023, Nbs-283(K-23).


2. Tbilisi Court of Appeal dated September 11, 2019.


3. Decision of the Constitutional Court of Georgia on July 11, 2017, in the case “Georgian citizen Imeda Khakhutaishvili vs. Parliament of Georgia”, paragraph II-10.


4. the Tbilisi City Court of October 20, 2021.


5. the Tbilisi City Court of June 30, 2022.


6. Decision N3/831-23 of April 27, 2023, of the Administrative Affairs Board of Tbilisi City Court.

Internet sites (addresses of web pages):

1. https://matsne.gov.ge/ka/document/view/4289728?publication=0


2. https://matsne.gov.ge/ka/document/view/2877281?publication=22


3. https://matsne.gov.ge/ka/document/view/91612?publication=41


4. https://matsne.gov.ge/ka/document/view/16426?publication=257

 Footnotes

[1] Commentary on the Constitution of Georgia. Collective of authors., (2013). Chapter two. Georgian citizenship. Basic human rights and freedoms, T. Bilis, “Petit”, p. 109.

[2] Christy N., (2017). The Limits of Pain, The Role of Punishment in Penitentiary Policy, First Georgian Edition, Tbilisi, “Sezani”, p:20.

[3] Council of Europe Committee of Ministers, Recommendation No. R (99)22, on Prison Overcrowding and Prison Population Growth, Preamble. <https://rm.coe.int/compendium-prison-overcrowding-georgian/16806ab9a8> [Last accessed: 11.10.2023].

[4] Dunkel F., (2010). Kommentierung $57 StGB, in U. Kindhauser, U. Neumann and H. Paeffgen (eds.) Nomos Kommentar zum Strafgesetzbuch. Vol. 1 (3^rd ed.), S: 41.

[5] Committee of Ministers of the Council of Europe, Recommendation Rec (2003) 22, Regarding parole, preamble. <https://rm.coe.int/compendium-prison-overcrowding-georgian/16806ab9a8> [Last accessed: 15.10.2023].

[6] Mikanadze G., (2012). The right to parole of a prisoner, European experience and the reality of Georgia, in the book: K. Korkelia, Protection of human rights, achievements and challenges, collection of articles, Tbilisi, pp. 130-131.

[7] Part 1 of Article 42 of the Prison Code. <https://matsne.gov.ge/ka/document/view/91612?publication=41> [Last accessed: 17.10.2023]

[8]Collective of authors., (2007). General part of criminal law, ed. c. Nachkibia, Tbilisi, p: 412.

[9] Article 72 of the Criminal Code. < https://matsne.gov.ge/ka/document/view/16426?publication=257 > [Last accessed: 17.10.2023].

[10] Article 95 of the Juvenile Justice Code. <https://matsne.gov.ge/ka/document/view/2877281?publication=22> [Last accessed: 18.10.2023]

[11] Article 41 of the Prison Code. <https://matsne.gov.ge/ka/document/view/91612?publication=41> [Last accessed: 17.10.2023].

[12] Article 42 of the Prison Code. <https://matsne.gov.ge/ka/document/view/91612?publication=41> [Last accessed: 17.10.2023].

[13] Order N320 of August 7, 2018, of the Minister of Justice of Georgia “On the review and decision-making process of the issue of parole from serving a sentence by the local councils of the special penitentiary service, a state sub-departmental institution included in the system of the Ministry of Justice of Georgia”.

<https://matsne.gov.ge/ka/document/view/4289728?publication=0> [Last accessed: 09.10.2023].

[14] Section 7 of Article 42 of the Prison Code. <https://matsne.gov.ge/ka/document/view/91612?publication=41> [Last accessed: 09.10.2023].

[15] Administrative Affairs Board of Tbilisi City Court of October 20, 2021 Decision N3/1134-21.

[16] Tbilisi City Court Administrative Affairs Board of June 30, 2022 Decision N3/3128-22.

[17] Tbilisi City Court Administrative Affairs Board of April 27, 2023 Decision N3/831-23.

[18] Decision of the Constitutional Court of Georgia on July 11, 2017 in the case “Georgian citizen Imeda Khakhutaishvili vs. Parliament of Georgia”, paragraph II-10.

[19] Tbilisi appeal Decision of the court No. 3 b / 295-19 of September 11, 2019.

[20] Judgment of the Supreme Court of May 30, 2023, Nbs-283(K-23).

[21] Levy R., (2007). Pardons and Amnesties as Policy Instruments in Contemporary France (From Crime, Punishment, and Politics in Comparative Perspective) Michael Tonry, ed. - See NCJ-241880, 551-590.

[22] Khmaladze M., (2017). The issue of conditional release of the convict in foreign countries, information magazine for the project of the Prison Code of Georgia, Tbilisi, pp. 2-3.

[23] Padfield N., van Zyl Smit D. and Dunkel F., (2010). Release from Prison, European Policy and Practice, Willan Publishing, USA, pg: 421.