COMMUNITY WORK AS AN ALTERNATIVE TO IMPRISONMENT IN THE MODERN GEORGIAN LAW (Evolution and Transformation)

ანოტაცია

 This article is devoted to community service as an alternative to imprisonment and the legal problems of its use. It includes interesting and different views on the distribution of the benefit provided by the law of exemption from serving a sentence, which is based on a deep analysis of practice and research of scientific works. This small journalistic work is an attempt to make a modern scientific analysis of the introduction/establishment of a punishment that was previously foreign to our country, to what extent the mentioned legal innovation was justified, and what can be done for its further refinement/perfection, in addition, the specified concept focuses on the factors that allow for a correct complex approach from both the court and the decision-making body when deciding on the usage of the named legal mechanism. In addition, the present article aims to discuss the main problems with the given mechanism of release from serving a sentence, as well as to propose suggestions of a recommendatory nature for the regulation of legal relations, including, as mentioned, legislative initiatives in terms of improving/perfecting the current legislation. Additionally, a comparative legal analysis is made in the article, which makes the scientific research process of changing the punishment from punishment to work useful for society even more interesting and diverse. In particular, the existing system at the national level is compared with internationally known models, based on this comparison, a comparative analysis is made, which shows the similarities and differences between the models. The final part is devoted to the summary propositions that I have acquired due to the study and scientific processing of the raised issue. Historical, formal-logical, dogmatic, formal-legal, comparative-legal, descriptive, and systematic methods are used to re- search the problem in a separate chapter. Furthermore, the data of legal statistics are used through the study and generalization of the practice of local councils and the court. The opinions, proposals, and recommendations presented in the article will be interesting for theorists and practitioners interested in the given issue, as well as for legislative and administrative bodies, as well as for the court. In addition, the work will be interesting for non-lawyers, as it scientifically elaborates on community service as an alternative to imprisonment in modern Georgian law.

Keywords: community service, evaluation criteria, imprisonment, resocialization, judicial practice

Introduction                                                                                                                                             
In modern Georgian law, a lot of attention is paid to the humanization of criminal legislation because the strictness of the law did not turn out to be a solution to the situation created in practice. Such a trend can be observed in European and American criminal law; Georgian criminal law does not lag behind this approach. This is also confirmed by the fact that the democratic processes implemented in recent years and the liberalization of the criminal law policy have added a special importance to such an important institution in modern Georgian law, which is called useful work for society. This is mainly because the mentioned legal mechanism is both a real and effective alternative to imprisonment, which is not related to the complete isolation of a person from society and is the best means of limiting the use of imprisonment, as well as the resocialization of convicts - rehabilitation. That is, in the field of fighting crime, in addition to coercive methods, the state already uses other methods of persuasion. It is regulated in the "post-criminal incentive" norms, such as the legal bases for assigning work useful to society and others. Community service as an alternative to imprisonment is not new in Georgian legislation, and it was introduced/developed in 1999. After establishing this institution as an alternative type of punishment, a considerable period has passed, and a certain scientific analysis has already been performed on how effective this type of punishment is and what can be done for its further perfection and improvement. Based on this, there is no doubt that the interest in the mentioned issue is constant, which requires a correct understanding of the given legal mechanisms at the stage of scientific research and conducting measurable operations in practical activities to solve the problems raised during the appointment of community service, as well as to achieve the goals of punishment. The named topic, along with the theoretical one, has great practical importance in law-making and law enforcement. In addition, modern Georgian legal literature on this topic is very scarce because the main focus is on the problem of crime, and the final opinion on what can be done to solve the legal problems in assigning community service has not yet been formed, there is still no answer to the question of how to To make the correct use of this legal mechanism so that the goals of the punishment are effectively achieved and to prevent the commission of new illegal and criminal acts and the return of a non-resocialized person to society. In addition to this, the domestic legislation is not entirely favorable and requires appropriate changes, in addition, there is a heterogeneous practice of the court in relation to the "revision" of the decisions made by the local councils of the Special Penitentiary Service. Also, it should be noted that until now, there is no statistical recording of the subjects related to the issue of return to the penitentiary institution of those persons who were released by the local councils of the special penitentiary service and replaced the unpaid part of the sentence with community service, also there is no statistical recording of the persons whom the court mainly As a punishment, useful work for the society was determined, but despite this, they did not fulfill the assigned duties or they committed crimes again. The purpose of the research topic is to determine the essence and meaning of community service, to establish the pros and cons of community service as an alternative to imprisonment, to analyze the importance of legitimate operations when using a lighter type of punishment - community service, to establish how much it is possible for the local council of the special penitentiary service to rely on when making a decision Only one criterion is to determine to what extent it is permissible for a court to deprive a person of one type of benefit provided for by the law in another form, which is designated by the local council of the special penitentiary service, to outline the circumstances leading to the heterogeneous practice of the court, to determine the main methods that will contribute to the effective functioning of the given mechanisms, to analyze the punishment Procedural legal problems of discharge, for example, the extent to which enforcement is possible assigned duties and how adequate their form is in relation to the circumstances of a specific person, etc. Hypothesis of the research topic: how effective is the form of punishment, and what causes the legal problems of its use. To achieve the goal of the research, the task is formulated: to study the opinions of scientists and to achieve the goal of the research by answering questions related to problematic topics, at the same time, to examine the experience of foreign countries and make recommendations in terms of adjusting/improving the current legislation. The subject of the research is the opinions in the legal, sociological, and philosophical literature in relation to the issue of assigning work useful to society, as well as identifying the causes of the problems arising from its use, and the types and forms of detection. The object of the research is legal problems identified in the use of community service. The paper will discuss the characteristic features of the critical aspects of the given topic and the determining factors. 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;


• In the article, the position will be formulated as to whether the court has the right to invalidate the decision made by the local council of the Special Penitentiary Service on the basis that it only mentions the issue of resocialization of the convict and goes beyond the evaluation criteria established by Article 13 of the rule approved by the order N320 of the Minister of Justice of Georgia on August 7, 2018.


• It will be substantiated from a judicial and rule-making point of view, how reasonable it is to regulate the most important detail of replacing the unpaid part of the sentence with a lighter one - the standard of justification of the decision - by a by-law.


• The idea is proposed to add other types of evaluation marks, "evaluative measures" to the criteria established by Article 13 of the rule approved by the order N320 of the Minister of Justice of Georgia on August 7, 2018.


• The opinion will be analyzed as to how appropriate it is to add the victim's position to the criteria established by Article 13 of the rule approved by Order N320 of the Minister of Justice of Georgia on August 7, 2018.


• Legal problems of criminal procedure will be analyzed, for example, when appointing the mechanism of release, the court takes into account the issue of achieving the goals of punishment, how far it is possible to fulfil the assigned duties and how adequate their form is in relation to the circumstances of a particular person.


• It will be discussed whether the local council of the Special Penitentiary Service is justified in justifying the negative decision based on only one criterion.


• The manner of conducting the oral hearing session, etc., will be evaluated.

Chapter I. A Brief Historical Perspective of the Establishment and Development of Work Useful to Society, Existing Practice and its Comparative Legal Characterization

• The Essence of Work Useful to Society

Work useful to society is in absolute accordance with the definition of work, the only difference is that, in this case, work is not a voluntary measure, but it is a form of punishment. Community service is a healthy alternative to punishment that benefits the convict, the community, and the government. This type of punishment is cost-effective and helps the state to save costs. The convict is required to perform certain work for free under the supervision of a probation officer. The main goal is to make the offender understand the crime committed and take responsibility for it. In addition, community service should be used only when no specific victim exists.^[1]

According to paragraph 47 of the Recommendation of the Committee of Ministers of the Council of Europe CM/Rec (2010) 1 "On the Probation Rules of the Council of Europe to the Member States", community service is a form of public punishment or a measure that involves the organization of free labor by the probation authority for the benefit of the community and Overseeing it, in the form of real or symbolic compensation for the damage caused by the offender. Community service should not have a humiliating character, and probation authorities should try to find work that will contribute to developing the convict's skills and social involvement.^[2] In its essence, this type of punishment represents a form of restitution, its punitive function is manifested in the fact that it restricts the freedom of the convicted person for a particular time and deprives him of time.^[3]

1.2 Labor Origin and Development Useful Work to the Public

This form of punishment has stood the test of time. The origin of useful work to the society is the original collective work of the Soviet government in 1920 without imprisonment.^[4] In Germany, it was mentioned for the first time in 1892 in Liszt's criminal policy tasks. In 1895, the German Lawyers' Union paid attention to him at the 23rd Conference of Lawyers.^[5] Community service was first used in European countries in 1971 in Switzerland in juvenile criminal law.^[6] From 1972, this form of punishment was introduced in England and Wales. Then community service was introduced in the Netherlands in 1981, in Denmark, France, and Ireland in 1982, and in Norway in 1984. Today, the legislation of almost all European states recognizes community service and assigns it as public sanctions and measures.^[7] Scandinavian countries (except Denmark) introduced community service in the 90s.^[8]

At this stage, useful work for society is used in various ways as an alternative to short-term imprisonment in European countries. In less serious and serious crimes, this is the punishment provided by the sanction. This type of punishment is voluntary. Community service will be replaced by a fine or imprisonment if the person does not work. It can also be used as a surrogate for a specific punishment, i.e., punishment is imposed, and then the particular punishment is replaced by community service. The judge will first pass a sentence of imprisonment and then replace this sentence with community service. Community service is used only when a person is sentenced to imprisonment. In Luxembourg, Denmark, and Sweden, community service is not an independent form of sanction but an obligation linked to sanctions, fines, and imprisonment. In Sweden, community service is not a separate form of sanction but is a commitment to a form of sanction such as protective supervision, which is used instead of short- and medium-term imprisonment for young offenders, and in Norway, it is used not only as a sanction but also as a commitment in juvenile probation.^[9]

Community service was first used in the US in 1966 for drunk drivers, and has since been introduced in all states, and has since spread to Australia, New Zealand, and South Africa.^[10] Today, community service is used in every state in the US as either an independent sentence or a requirement of probation, or an alternative to imprisonment or fines. It should also be taken into account that in the USA, every day of community service reduces the amount of the fine.^[11]

In Georgia, community service as a punishment appeared in the legislation since 1999, when the Criminal Code of Georgia was adopted, although for a long time, it was the so-called "Dead norm". Its effective use started on March 11, 2011, after the implementation of legislative changes. Currently, community service is used not only as a punishment but also as one of the conditions of diversion.^[12]

According to the legislation in force in Georgia, work, useful to society, can be assigned in five instances, namely:

• The corresponding norm of the private part of the Criminal Law Code of Georgia provides for community service as punishment;


• When the justice implementing body appoints this punishment as an additional punishment;


• During the signing of the plea agreement, based on Article 55 of the Criminal Code of Georgia, when community service is prescribed as the main punishment, while the corresponding article of the private part of the criminal law of Georgia does not provide community service as a punishment;


• Based on Article 42, Part 6 of the Criminal Code of Georgia;^[13]


• by the local board of the special penitentiary service, although this does not apply to high-risk convicts and persons deprived of liberty for life.^[14]

Here, the council decides in accordance with Article 73 of the Criminal Code of Georgia, Articles 40, 41 and 43 of the Prison Code, as well as the "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 On approval of the procedure for considering the issue and making a decision" the procedure approved by the order No. 320 of the Minister of Justice of Georgia dated August 7, 2018. From the aforementioned legal acts, the Criminal Law Code and the Prison Code of Georgia regulate the issue of the use of benefits provided by the law only in general, the important details of the issue, such as evaluation criteria and the measure of justification, are determined by the Order N320 of the Minister of Justice of Georgia. In this case, the question is logically raised: from the point of view of justice, how appropriate is it to resolve the issue of replacing the unpaid part of the sentence with a lighter punishment by order of the minister? The answer to this question is not so simple.

For example, Papuna Guruli believes that it is inappropriate for the most important detail of the grounds for conditional release, replacing the unpaid part of the sentence with a lighter one - the standard of justification of the decision - to be regulated by a by-law.^[15] He writes: "In order to achieve the goals of the punishment, both the stage of imposing the punishment and its execution are important. During the latter, control over the effectiveness of the punishment should be carried out and two things should be determined: 1. Have the goals of the punishment already been achieved? 2. Will it help to achieve the goals of the punishment if it is only partially done?". The question arises - if the punishment is regulated by the criminal law code, why should its effectiveness be checked based on the by-law? Naturally, the law goes through a much more difficult and multi-step verification process before adoption, and the level of trust in it is much higher. Moreover, the "Typical decree of the local council of the Ministry of Corrections of Georgia" is in its essence only an organizational (administrative) document, and entrusting it with an important criminal law issue indicates a decrease in the importance of the issue.^[16] 

It is true that, on the one hand, there may be a tendency to "lower the game", but it should be noted that this issue will be regulated by the criminal law code or will be binding in all cases written by an individual administrative-legal act. Therefore, the local council will not exceed the established limits in any case. Requirements, in no case, will he have the authority to reject or leave any criteria outside the evaluation; according to the results, I believe that the implementation of law-enforcement activities will take a more formal form. In addition, the Minister's order was issued on Article 41 of the Prison Code, "On Normative Acts", Article 25, Sub-Clause 1 of the Law of Georgia, and "On Amendments to the Prison Code" of Georgia on the 5^th of 2018 According to Article 2, Clause 5 of Law N3128 of July, i.e., an individual administrative-legal act is based on the foundations of a normative act, it should also be taken into account that there are no less procedures to go through in terms of acceptance before the legal act takes a perfect form and arbitrary writing of a specific legal issue cannot be done.

Article 13 of the rule approved by Order No. 320 of the Minister of Justice of Georgia on August 7, 2018, "About reviewing and deciding on the issue of parole 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", establishes five criteria, based on which the appropriate decision is made based on their assessment and mutual reconciliation, here one may think that the legislator rejected the legitimate approach altogether, however, we must remember that the council is not given unlimited authority, at its own discretion, to decide without any normative basis, especially when there is a right to appeal, which is not difficult at all.

It is also necessary to analyze how exhaustively all the evaluation marks are written, whether one of the mandatory criteria is necessarily the position of the victim in relation to the person whose freedom is prevented since the clarification of the relationship between the offender and the victim should be given the most significant importance, first of all, because this does not contribute to new revenge-based to commit a crime. I think that the correct measurement of this fact implies the use of legimetry, which should also take into account the fact that there are often cases when the victims, due to personal feuds, do not give their consent to not have a claim against the convicted and want to retaliate in this way, in addition, there are facts when forced or by providing certain material benefits, the desired document is obtained. To avoid such consequences, I think a logical question arises, would it not be unreasonable for the position of the victim to be taken into account by the review body as a non-binding guideline standard? My answer to this question is positive, based on the goals of its activity, the local council does not reject this concept.

The same approach can be used to determine the mandatory criteria for holding an oral hearing. In the special report of the Public Defender of Georgia, it is recommended to write a norm that will directly oblige the council to invite the convicted person to the oral hearing.^[17] I believe that the mentioned legislative initiative to amend the Prison Code is inappropriate because it violates the Council's discretionary powers based on its content, and all mandatory criteria are expected to be general in nature, which are taken into account based on unwritten norms. Also, it is impossible to hold an oral hearing session for all persons. It is pointless because there are cases when the presented motion and case materials do not need to raise additional questions.

The need to use a legitimate approach is visible in the cases of administrative appeals against the local council's decision on the refusal to change the unpaid part of the sentence of the convicts to a lighter one in relation to the proceedings of the persons deprived of their liberty. Due to the established practice, prisoners cannot always benefit from the relief mechanisms provided for by law, in particular, if the convicted person has appealed against the negative decision in the court according to the administrative procedure, it is not possible to re-examine his case in the council until the end of the trial, and the reason is that their complete personal files are sent to the justice administration body. That's why the special accounting department of the institution can no longer send the relevant petition (characterization). In this case, it turns out that the convicted person has to choose between the rights guaranteed by the law to appeal the individual administrative-legal act adopted by the council or not to appeal and use the mechanism provided by the law within the time limit set again. I believe there is a need for a regulation that will eliminate the named problem and not hinder the regular functioning of the preferential mechanisms defined by the law.

The fact that community service is an effective and real alternative to imprisonment in Georgia is evidenced by the provisions mentioned above, as well as the statistical data that confirm the use of this legal mechanism, even in the case when the local councils replace the remaining sentence of the convict with community service. Let us cite the statistical data of 2022 as an argument: for 117 convicts, within 12 months, the unpaid part of the sentence was changed to a lighter type of punishment - community service,^[18] here we should not miss the point that the council will consider the issue in general based on the written consent of the convicts, i.e., in accordance with their wishes. It is only regrettable, the fact that at this stage, statistical data is not counted according to the principle that directly describes what its use has brought and how many returned to the penitentiary institution; similar statistics are not produced by the justice implementing body, which prescribes community correction as a main punishment and does not use a more severe form of punishment, such as imprisonment. Based on this, we can conclude that it is necessary to carry out statistical accounting in accordance with the named principle to analyze how effective the form of punishment is, how beneficial it is and whether its use has brought some kind of loss even if the goals of the punishment are not achieved at an angle.

As we can see, implementing useful work for society globally takes place differently. Its introduction and use depend on the state arrangement, society's attitude towards crime and criminals in general, available resources, and priority directions in the country.^[19]

1.3 Court Practice in regards to Lighter Type of Punishment – Useful Work to Society

There are frequent cases when the judge has not substantiated the expediency of appointing the benefit provided by the law and the argumentation that this punishment is adequate, proportionate, and proportional to the illegal and guilty action.

The analysis of court practice has established that judges, when approving a plea agreement, do not carefully examine the features of the offender's personality, such as his state of health and the extent to which he will be able to perform community service. We are dealing with a similar case with the judgment of Gori District Court 1/491-20 of November 24, 2020, when the plea agreement was approved and G.V. He was found guilty under Article 178, Part 1 of the Criminal Code of Georgia, and 200 hours of community service was determined as an additional punishment along with a 4-year suspended sentence. During his admission to the probation bureau, when the probation officer was explaining to him the terms and conditions of serving a sentence, G.V. stated that he had difficulty with his eyesight. In a few days, he submitted an appropriate report, which revealed that the convicted person had been granted the status of the second group of disabled since 2019. As a result of the interview, it was established that he received information about the essence of the punishment at the probation bureau, and no one explained the essence of the punishment to him, neither during the plea agreement nor during the trial, nor did he ask about his health. This judgment also states that the sentence determined by the plea agreement is legal. However, I believe that we have a legal basis for refusing to approve the plea agreement and returning the case to the prosecutor.^[20] The analysis of the court judgments made even clearer the flaws accompanying this punishment when entering into a plea agreement in Georgia.

As for the appeal mechanism regarding the decisions made by the local councils, it is presented as follows: the internal departmental appeal of the decisions of the local councils is not provided for by the legislation, it is only possible to appeal by court order. It should be noted that when the court examines the action of the convicted person regarding the annulment of the decision taken by the local council, the court examines the legality of the act and not the expediency. In court practice, we often come across the opinion that the court cannot assess the appropriateness of an administrative legal act. The court checks whether the decision of the local council contains all the elements of the legal definition of an individual administrative-legal act, as well as the compliance of the decision with the relevant norms governing the issuance of the act established by the General Administrative Code of Georgia, the Prison Code and the provisions of the regulatory by-law regarding the mentioned topic. In the research process, the point was also highlighted that in practice, such a case is often made when the court makes an unsubstantiated decision, the reason for this is that the criteria established by Article 13 of the rule approved by order of the Minister of Justice of Georgia on August 7, 2018, N320 are not taken into account - the nature of the crime, the severity of the crime. Based on this, there are cases when a non-resocialized convict is released.

As an illustration, we present the court's decision by which G.B.'s claim was satisfied regarding the annulment of an individual legal act and the order to issue a new act. The case was as follows: O. A. On 05.11.2018, according to the verdict of the Tbilisi City Court, he was found guilty of committing the crime stipulated by Article 330 1, Part 2 of the Criminal Code of Georgia, and imprisonment for a term of 4 years was determined as the main punishment. The nature of the O.A. crime was as follows: "Ruh Abbas - O." was registered in the social network "Facebook" under the name of A. At the beginning of April 2016, hostilities resumed in Nagorno-Karabakh, and the situation between the republics of Armenia and Azerbaijan became extremely tense. On April 4, 2016, O.A. On his personal page on the social network "Facebook", he publicly published a post with the following content in the Azerbaijani language: "For those who want to go to war in order to liberate Nagorno-Karabakh from the Armenians, we offer an easy way to seize the Armenian embassy in Tbilisi and take all the embassy employees under the command of the ambassador as hostages. If the occupying Armenian army leaves Nagorno-Karabakh, give them 24 hours, this is the simplest and most optimal way." On April 8, 2016, on the same personal page, he published a post with the following content: "If we want Nagorno-Karabakh to be freed from Armenian occupation, instead of going to the embassy of the Republic of Azerbaijan in Tbilisi in support, a protest should be held at the embassy of the occupying Armenia and the flag of Armenia should be burned". In such a serious matter, with the said procamations, in the conditions of ongoing hostilities between the Republics of Armenia and Azerbaijan, an obvious, direct, and substantial threat of terrorist activity was created in Georgia. On June 6, 2022, the local council discussed O.A. Petition to replace the remaining sentence with community service, and the petition was not accepted, which was based on the nature of the committed crime June 6 decision of O.A. He appealed to the court, where the convicted person's claim was rejected. The court considered that the appealed act does not contain sufficient motivation regarding the reasons for the negative decision of the disputed issue by the administrative body. I think the given argument is not enough to invalidate the decision of the local council, first of all, the attention is paid here to the circumstances and circumstances of the crime, its gravity, and expected consequences, in addition, the council's reasoning is rightly based in relation to the crime and in reality it could not have been exceeded. When evaluating the criteria approved by the statute, the legislation also does not impose an unconditional obligation to release the convicted person in case of serving the relevant part of the prescribed sentence, and also, it seems that the court did not take into account how adequate the served sentence is to the committed action.

In the process of research, I noticed that there are cases when the justice implementing body annuls an individual administrative-legal act and returns it to the council for reconsideration, basing part of the justification on such factual circumstances, which are not given in the decision-making standard of the decision to replace the unpaid part of the sentence with a lighter one, nor in the assessment is a criterion. For example, the following case: by the verdict of the Ozurgeti District Court on April 19, 2018, the person convicted was convicted under the first part of Article 116 of the Criminal Code, which involves the negligent killing of a person. The board denied the convicted person parole. The court shared the position of the local council concerning the nature of the crime but considers that in each specific case, the personal characteristics of the convict, the achievement of the purpose of the sentence, and the issues of resocialization of the convict should be of principle importance. The court explains that the decision made by the local council should be based on the examination of all the criteria established for the evaluation of the issue, mutual opposition, and determination of their priorities. According to the court's opinion, the decision should be within the framework established by the statute, which means that the local council, based on its discretionary powers, has the authority to evaluate individual criteria, the possibility of giving priority to any of them, although this does not mean its right to reject and/or leave any of them out of the evaluation. According to the court's assessment, the decision made against the said convicted person contains a discussion only about the general characteristics established by the law for the committed act, which without the attitude of the convicted person himself regarding the committed act, cannot be considered as an evaluation of the issue according to the criteria defined by the typical regulation of the council. The court's decision mentions that the council did not evaluate the execution of the sentence by the convict in a semi-open institution. I think this argument cannot be shared because no criterion considers the mark in the given assessment.^[21]

It is also interesting to note the decision of the Administrative Affairs Board of the Tbilisi City Court dated September 21, 2022, by which the plaintiff P.J. The lawsuit request to replace the unpaid part of the sentence with community service was completely rejected, and in the reasoning, the court pointed out that the council did not thoroughly investigate P.J. The issue of resocialization. The resolution of the issue by the council unequivocally focusing only on the nature and gravity of the committed crime on the facts of past crimes, without properly confronting it with the criteria considered positive, calls into question the legality and illegality of the exercise of discretionary powers.^[22] I think that in this case, the court already made the appropriate argumentation in terms of expediency and did not take into account its authority, in addition, it based the main justification on a concept that is not provided for by the guiding standard of the councils, besides, it did not take into account a number of circumstances that the person who has been convicted more than once, did not take into account as The valid conviction was also disproved, no attention was paid to how many times and what gravity and what type of crime was committed, how many times he was convicted. In addition, it did not consider the fact that the said person had been given legal relief in the past and was released by amnesty, although he still committed a new crime. It should have been taken into account here that there was still a high probability of committing a new crime on the part of P.J. Therefore, I think the given justification is illogical on the part of court. He opposed a number of factors and even explained the regularity of obtaining such a result.

It should also be noted that the appellate court rarely changes the decision made by the court of first instance 27¹ of the Administrative Procedure Code of Georgia. The Court of Appeal's legal assessment of leaving the decision of the first instance court unchanged mainly indicates the correct assessment of the factual circumstances and the legal validity of the City Court. It was one of the exceptional cases Amendment of the 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 regarding the replacement of work useful to society. Based on the factual circumstances of the case, the Tbilisi Court of Appeal partially satisfied the appeal of the Special Penitentiary Service and ordered the administrative body to reconsider the case.^[23]

The appellate court's decision on the replacement of socially useful work may be appealed in the court of cassation, although such a practice does not exist at this stage.

In conclusion, I would like to illustrate the only precedent when the judge replaced community service ordered by the council with another type of legal measure, namely parole. The basis of the appeal to the court was the appeal of the Probation Bureau Office, which was accepted by D. c. The submission was based on the fact that D.G. performed his assigned duties, he had a total of 1203 hours of work and 254 hours left to be paid, so the behavior shown by the mentioned person became the basis for the fact that he was replaced by conditional release from community service. In particular, the court determined one month and 22 days as the probationary period. The court was guided by Articles 72-73 of the Criminal Code of Georgia, 291 of the Criminal Code of Georgia, and Article 21 of the Georgian Law on "Crime Prevention, Procedures for Execution of Non-Custodial Sentences and Probation". The given case is pleasing and presents a motivating tool for other convicts and a contributing factor to their resocialization-rehabilitation.

1.4 Comparative – Legal Description of Useful Work to Society

Current legislation of the countries of the border region allows us to prove that in different countries, community service is used in different ways and forms and is an alternative to imprisonment, which achieves the goals of punishment. I will support the given position with the examples below, which refer to the current legal issues in foreign countries regarding community service assignment.

In Spain, the court can order the convict to do community service with his prior consent. The character of the work useful to society derives from the character of the criminal act. The convicted person is obliged to perform unpaid work for at least 31 days to 180 days for serious crimes or from 1 day to 30 days for violations. The convict is obliged to serve a maximum of 8 hours of Unpaid work in one day.^[24] If we analyze, we will see that the requirements of the criminal law regarding the labor useful to public are similar in our country and in Spain,  with beneficial working conditions. In Spain, no special service (e.g., the relevant probation authority) would be responsible for supervising the execution of alternative sentences. A competent administrative service or center (mainly a labor center) is a body that offers the convicted individual work, and some fixed allowances and regularly informs the judge (superior judge) whether the convict fulfills his duty and also other conditions as part of the sentence imposed. Failure to properly perform community service may result in the revocation of this sentence. Failure to properly perform the assigned duty means, for example, If the convict did not report to his work voluntarily total For less than two days or the convict does not fulfill the responsibility orders issued by a person. There is also a case when the imposed working activity is low on the convict's side. In such cases, the court may decide that convict can stay in the same center or be sent to another one in the center. The court may decide that the convicted person does not meet the requirements of the sentence.^[25]

Community service has been in effect in France since June 10, 1983. It is of two types: 1. autonomous, i.e., similar to English; 2. Or one of the forms of conditional punishment is a correctional regime. i.e., we are talking about a conditional sentence, which is added Obligation to perform work useful to society. Both In this case, the duration of work is 40 - 240 hours. Its implementation The maximum term is 18 months. This punishment cannot be imposed if the accused refuses to report it or does not attend the session.^[26]

The duration of socially useful work in Slovakia ranges from 40 to 300 hours. It can be assigned to a person for the crime for which imprisonment is defined for 5 years. The convicted person has no right to receive compensation for the work performed. Except that the offender is subject to to perform certain work, he is also subject to various duties and restrictions. One of these conditions, which the offender must fulfill, is that he must engage in "proper (orderly) life". Specific prohibitions are imposed on such persons. For example: visiting specific places, such is sports spectacles and play areas. Also, visit the place where the crime was committed; Alcoholic beverages are prohibited for such persons' consumption, as well as relationships with people with whom he committed the crime. Often, such persons are prohibited from at least 5 meters approaching the victim's house at a distance; He is on probation and must compensate for the loss during the period; is obliged to leave the house or apartment where the violation of the law was committed; is obliged to participate in educational programs - under the supervision of a probation and mediation employee; The person is obliged to pay alimony and repay debts; In some instances, a person is obliged to personally or publicly apologize to the victim; Such a person is obliged to undergo medical treatment; He is obliged to attend educational training during the probationary period or participate in retraining courses, etc. In Slovakia, N. 528/2005 - Community Service Act contains a special provision on community service.^[27]

In Belgium, the content of danger to society is expressed by the so-called community sentences, which exist as alternatives to imprisonment; however, this type of punishment is not successful. They cite as an example the decision of the criminal court against the accused in drunkenness about a student who did not want to work for three years on the prevalence of alcoholism in youth. Although in Belgian legislation, the failure of this punishment is related to the absence of social services. The situation is similar in Canada. Here, this sentence is combined with probation; for example, the judge orders the offender to assist the Refugee Association. The courts here are the best for community work rehabilitation.^[28]

German criminal law considered community service as a way to pay the fine when unable or unwilling to pay the fine. Since 1986, German law has provided for imprisonment in lieu of fines for non-payment of fines. Later, the federal states' governments were granted the right to allow the prosecutor to allow the convicted person to serve imprisonment in lieu of fines by performing community service. Therefore, this type of labor is not used as an independent form of punishment but as a means of serving a prison term in lieu of a fine. The German Constitutional Court indeed points out the necessity and importance of compensation for the convict's labor in its decision, but in accordance with paragraph 2, paragraph 2 of the introductory law of the German Criminal Code, the work useful to society must be free of charge. The said work does not give rise to the rights and duties between the worker and the employer as a result of the labor contract. The use of community service as a punishment is controversial in German literature because of its compatibility with the constitution. In particular, we refer to the constitutional norm that guarantees that free work and forced labor is prohibited.^[29] According to the legislation in force in Georgia, the work performed to serve a sentence does not belong to forced labor, this is confirmed even by Article 73 of the Criminal Code, Article 43 of the Prison Code, etc. Therefore, community service is not a form of punishment in Germany, but an obligation related to non-custodial sentences, that is why there is a discussion in the German criminal law literature about the possibility of introducing it as a punishment. A new type of punishment is proposed - a combination of a fine and community service. When this punishment is imposed, the person will be obliged to pay a monetary fine or repay the corresponding amount with his labor in installments over time. The positive resolution of this issue and the introduction of community service as one of the main punishments is opposed by the prohibition of forced labor specified in Article 12 of the German Basic Law. That is why this legal change is not expected in German criminal law. The example of Switzerland should also be considered, where establishing community service as a criminal sanction worsened the statistics of its use.^[30]

To clearly present the advantage of alternative punishment, it is legally relevant to consider the practice of community service on the example of the USA, since it successfully implements the effective use of said alternative punishment. In particular, the juvenile justice system actively uses the institution of probation, which in many cases includes community service, and in some instances, the latter is used independently as an alternative to imprisonment. For example, in Canada, the sentence is combined with probation, as a result of which the judge, in some instances, instructs the offender to provide specific assistance to the refugee association. Courts consider community service as the best means of rehabilitation. It is the same approach in the USA.^[31] For example, in the state of Arizona, under the conditions of enhanced supervision of probation, a minor, along with obediently observing the conditions of probation, which include receiving a mandatory high school education and completing a course of compulsory treatment, must also perform community service under supervision for at least 32 hours per week.^[32] In the US, the situation varies by state. Some state laws list conditions, or the judge is free to do so, while in other states, the judge refers the case to probation committees. The American Bar Association supports specific conditions, including the imposition of duties that include medical care, restitution, restitution, or a curfew.^[33] American researchers in the fight against recidivism have made a positive conclusion regarding using alternative punishments such as community service programs. In this regard, it is appropriate to distinguish the following types of alternative sentences in the USA - community service, work release, and weekend punishment programs, of which only community service is used for both adult and juvenile offenders, as much as work release and weekends The weekly punishment programs do not indicate the possible participation of juvenile delinquents in them. Thus, it is appropriate to focus on the specificity of community service according to the USA, where the mentioned alternative punishment is often additional to other punishments. It is mainly used as a punishment for the so-called white-collar criminals, juvenile delinquents, and those who have not committed serious crimes. In accordance with the Georgian Criminal Law Code, the mentioned non-custodial sentence can be used in the case of a less serious crime, which is considered to be a legal flaw since the majority of cases on less serious crimes end with a plea agreement.^[34] Their distribution is in such governmental or private non-profit agencies, whose activities aim to perform such activities as cleaning parks, collecting roadside garbage, and assisting relevant institutions in nursing matters.^[35] There are no restrictions regarding the place of employment and the employer's profile at the international level. In New Jersey, community service can be employed in public institutions and private, non-commercial, non-profit organizations.^[36] As we can see, the list of types of work performed in the USA is quite extensive, in addition, the following jobs can be listed: cleaning parks and squares, attending educational programs, preparing a presentation about the negative aspects of crime, talking to schoolchildren about why it is harmful to drive a car while intoxicated, get a job in an enterprise, carry out renovation work, remove obscene paintings from the walls of the city, work for charity, study law, tutor children, work on construction in the slums of the city, help the elderly, take care of animals in the shelter, participate in the operations carried out by the emergency medical service and other rescue services, take care of the amenities of the city, rake leaves, mow grass, clean windows, sweep driveways, put up and then take down Christmas decorations, work for a breast cancer awareness organization, work for water conservation.^[37] As international experience shows, community service is a favorable penal measure for less serious crimes. In addition, it should be said that in Georgia, unlike other countries, there is still the problem of the amount of work useful for society, I think that, in addition to the public sector, the private sector should also be involved in the process of this type of punishment execution, because the increased employment area will give the convict a real perspective of employment, which is on the way to resocialization. It will undoubtedly be a contributing factor. However, the difference lies in the competence of the decision-making bodies and the persons determining the type of work performed since the National Probation Agency determines the kind of work performed in Georgia.^[38]

Conclusion

As we can see, community service is an alternative form of imprisonment and is not alien to Georgian legislation, judicial practice and the past period has presented the positive and critical aspects of this type of punishment, which was discussed in the present paper with a general legal characterization.

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

• The court must take into consideration the criteria established by Article 13 of the rule approved by order of the Minister of Justice of Georgia dated August 7, 2018, N320 - the nature of the crime, the severity of the crime, because there should be no place for the release of a non-resocialized convict;


• It is desirable for the justice implementing body to consider the issue of replacing the unpaid part of the sentence with a lighter type of punishment - community service;^[39]


• From the judicial point of view, it is not a problem to order the decision of the minister to change the unpaid part of the sentence with a lighter one.


• The position of the victim should be taken into account by the reviewing body as a non-binding guideline standard.


• I believe that the legislative initiative to amend the Prison Code, which would directly oblige the Council to invite the convicted person to an oral hearing, is inappropriate, because it violates the Council's discretionary powers, and it is also impossible to conduct an oral hearing session for all persons, and it also makes no sense, because it is cases when the submitted petition and case materials do not necessarily require additional questions.


• It is mandatory for review bodies to process and produce statistical data, based on the principle that directly presents the positive and negative sides of the use of the given mechanism, even in terms of the person's return to the penitentiary institution and others.


• By means of a comparative legal analysis, we can conclude that in all countries community service is a favorable criminal measure, which is an alternative to imprisonment. In addition, it should be said that in Georgia, unlike other countries, there is still a problem with the amount of work that is beneficial to the society, besides, the difference lies in the competence of the decision-making bodies, in addition, to the persons and bodies determining the type of work.^[40]


• Based on the conducted research, we can conclude that the importance of this type of punishment, in general, of this institution, is undoubtedly great.

Bibliography

Georgian Literature:

1. Collective of authors .,(2016).Trends of Liberalization of Criminal Legislation in Georgia, Tbilisi.


2. Davitadze M., (2018).The Use of Socially Beneficial Labor and its Legal Limitations, Current Issues of Criminal Law, N3, Tbilisi.


3. Gelashvili M., (2020). Problems of Release from Serving the Sentence in the Modern Georgian Law, Master's degree paper, Tbilisi.


4. Getiashvili G.,(2016).The Essence of Work Useful to Society, Tedo Ninidze - 65, Jubilee Collection, Law Journal N2.


5. Gotua Z., (2001).General Part of Criminal Law, Tbilisi.


6. Guruli P., (2017).Parole from Serving a Sentence - a Legitimate Understanding, "Law and the World" Journal.


7. Ivanidze M., (2016).Alternative Punishments, Criminal Law, General Part, Tbilisi.         


8. Kherkheulidze I., (2014). Probation Institute - a Tool for Ensuring the Reintegration of Juvenile Osffenders (comparative analysis of the criminal justice approach of Georgia and the USA), Mzia Lekveishvili 85, Anniversary collection, Tbilisi.


9. Kherkheulidze I., (2020).Community Service - One of the Best Agents of Resocialization of Juvenile Offenders Among Non-Custodial Punishments, Tbilisi.


10. Pradel J., (1999).Comparative Criminal Law, Tbilisi.


11. Shalikashvili M., (2014).Research on Alternative Punishments in Georgia, Mzia Lekveishvili - 85, Anniversary Collection, Tbilisi.

Foreign Literature:

12.Abadinsky H., (2009).Probation and Parole, Theory and Practice, NJ.

13.Branham L., Krantz S., (1997).The Law of Sentencing, Corrections, and Prisoners, Rights, MINN.

14.Haney C., (2005).Reforming Punishment, PSYCHOLOGICAL LIMITS TO THE PAINS OF IMPRISONMENT.

15.Klaus J.,(1998).Handbook on Probation Services, Rome/London.

16.Kubinik., (2002).Strafen und ihre Alternativen im zeitlichen Wandel, Berlin.

17.Stojkovic S., Lovell R., (1992).Corrections, An introduction, Anderson pub, Cincinnati, Ohio.

18.Tobiasova L., (2007). Development And Construction of the European Legal System, Alternative Penalties, Bratislava.

19.Van Kalmthout A., Durnescu I., (2011). European Probation Service Systems, CEP.

Normative Material:

20. Criminal Code of Georgia.


21. Criminal Procedure Code of Georgia.


22. Administrative Procedure Code of Georgia.


23. Juvenile Justice Code of Georgia.


24. Imprisonment Code of Georgia.


25. Order N320 of the Minister of Justice of Georgia dated August 7, 2018.

Recommendations:

26. Recommendation CM/Rec (2010)1 of the Committee of Ministers to member states on the Council of Europe Probation Rules.


27. Special Report of the Public Defender of Georgia, The Practice of Parole and Substitution of the Unpaid Part of the Sentence with a Lighter Punishment in Georgia, (2019). Tbilisi.

Internet sites (web pages addresses):

28.https://rsf.uni-greifswald.de/storages/uni-greifswald/fakultaet/rsf/lehrstuehle/ls-harrendorf/Bd36_3_9783936999969.pdf

[Last seen : 29.03.2023].

29.Dünkel F., (2013)Gemeinnützige Arbeit, What Works? Deutschland, S:4. https://tri.swisscovery.slsp.ch/discovery/fulldisplay?docid=alma991001086529705532&context=L&vid=41SLSP_TRI:ISDC&lang=fr&search_scope=ISDC&adaptor=Local%20Search%20Engine&tab=ISDC&query=sub,exact,Arbeit,AND&mode=advanced&offset=40

[Last seen : 29.03.2023].

30.https://famm.org/wp-content/uploads/2013/08/FS-Alternatives-in-a-Nutshell-7.8.pdf

[Last seen : 19.11.2022].

31.http://sps.gov.ge/ka/saqmianoba/sasjelisgan-gathavisufleba/msjavrdebulis-pirobith-vadamde-gathavisufleba.html

[Last seen : 05.01.2023].

32.http://vmrz0183.vm.ruhr-uni-bochum.de/krimlex/artikel.php?BUCHSTABE=G&KL_ID=73

[Last seen: 06.01.2023].

33.https://www.nzz.ch/schweiz/gemeinnuetzige-arbeit-nimmt-ab-ld.823830?reduced=true

[Last seen: 01.12.2022].

34.https://lernerandrowelawgroup.com/arizona-probation/

 [Last seen : 29.03.2023].

35.https://pja.gov.pk/research

[Last seen : 29.03.2023].

Court Decision:

36. Verdict of Gori District Court of November 24, 2020 on case 1/491-20.


37. Decision No. 3/3769-20 of Tbilisi City Court of September 24, 2020.


38. Decision No. 3/541-22 of Tbilisi City Court of September 21, 2022.


39. Decision No. 3b/295-19 of the Tbilisi Court of Appeal dated September 11, 2019.

Footnotes

^[1] Abadinsky, H. (2009). Probation and Parole, Theory and Practice, NJ,  p. 336.

^[2] Recommendation CM/Rec(2010)1 of the Committee of Ministers to member states on the Council of Europe Probation Rules.

^[3] Branham, L., Krantz, S. (1997). The Law of Sentencing, Corrections, and Prisoners, Rights, MINN, p.151.

^[4] Pradel, J. (1999). Comparative Criminal Law, Tbilisi, p. 436.

^[5] Kubinik. (2002). Strafen und ihre Alternativen im zeitlichen Wandel, Berlin, p. 568.

^[6] https://rsf.uni-greifswald.de/storages/uni-greifswald/fakultaet/rsf/lehrstuehle/ls-harrendorf/Bd36_3_9783936999969.pdf

  [Last seen 29.03.2023].

^[7] Van Kalmthout, A., Durnescu, I. (2011). European Probation Service Systems, CEP, p. 26-27.

^[8]Dünkel F., (2013)Gemeinnützige Arbeit, What Works? Deutschland, S:4.

https://tri.swisscovery.slsp.ch/discovery/fulldisplay?docid=alma991001086529705532&context=L&vid=41SLSP_TRI:ISDC&lang=fr&search_scope=ISDC&adaptor=Local%20Search%20Engine&tab=ISDC&query=sub,exact,Arbeit,AND&mode=advanced&offset=40 [Last seen 29.03.2023].

^[9] Kubinik. (2002). Strafen und ihre Alternativen im zeitlichen Wandel, Berlin, p. 572.

^[10] Klaus, J. (1998), Handbook on Probation Services, Rome/London, p. 15.

^[11] https://famm.org/wp-content/uploads/2013/08/FS-Alternatives-in-a-Nutshell-7.8.pdf [Last seen: 19.11.2022].

^[12]. Getiashvili, G. (2016).The Essence of Work Useful to Society, Tedo Ninidze - 65, Jubilee Collection, Law Journal N2,

231. p.

^[13] Davitadze, M. (2018). The Use of Work Useful to Society and its Legal Limitations, Current Issues of Criminal Law, N3, Tbilisi, p. 82.

^[14] Ivanidze, M. (2016). Alternative Punishments, Criminal Law (general part), Tbilisi, p. 470.

^[15] Guruli, P. (2017). Parole from Serving a Sentence - a Legitimate Understanding, Law and the World, N6, p. 57.

^[16] Ibid pp. 52-53.

^[17] Special Report of the Public Defender of Georgia, The Practice of Parole and Substitution of the Unpaid Part of the Sentence with a Lighter Punishment in Georgia, (2019). Tbilisi, p. 56.

^[18]http://sps.gov.ge/ka/saqmianoba/sasjelisgan-gathavisufleba/msjavrdebulis-pirobith-vadamde-gathavisufleba.html

 [Last seen: 05.01.2023].

^[19] Klaus, J. (1998). Handbook on Probation Services, Rome/London.,p. 17.

^[20] Verdict of Gori District Court of November 24, 2020 on case 1/491-20.

^[21] Decision No. 3/3769-20 of Tbilisi City Court of September 24, 2020.

^[22] Decision No. 3/541-22 of Tbilisi City Court of September 21, 2022.

^[23] Decision No. 3b/295-19 of the Tbilisi Court of Appeal dated September 11, 2019.

^[24] Tobiasova, L. (2007). Development And Construction of the European Legal System, Alternative Penalties, Bratislava,

274. 274.

^[25] Collective of authors. (2016).Trends of Liberalization of Criminal Law in Georgia, Tbilisi, p. 343.

^[26] Pradel, J. (2003). Comparative Criminal Law, ed. "Sani", pp. 437-438.

^[27] Tobiasova, L. (2007). Development And Construction of the European Legal System, Alternative Penalties, Bratislava,

274. 273-274.

^[28] Haney, C. (2005). Reforming Punishment, Psychological Limits to the Pains of Imprisonment, ,,Amer Psychological Assn’’,  p. 7.

^[29] http://vmrz0183.vm.ruhr-uni-bochum.de/krimlex/artikel.php?BUCHSTABE=G&KL_ID=73 [Last seen 06.01.2023].

^[30] https://www.nzz.ch/schweiz/gemeinnuetzige-arbeit-nimmt-ab-ld.823830?reduced=true [Last seen 01.12.2022].

^[31] Pradel, J. (1999).Comparative Criminal Law, Tbilisi, p. 437.

^[32] https://lernerandrowelawgroup.com/arizona-probation/ [Last seen 29.03.2023].

^[33] Stojkovic, S., Lovell, R. (1992). Corrections, An Introduction, Anderson pub, Cincinnati, Ohio, P. 475.

^[34] Shalikashvili, M. (2014). Research on Alternative Punishments in Georgia, Mzia Lekveishvili - 85, Anniversary Collection, Tbilisi,  p. 106.

^[35] Kherkehulidze, I. (2014). Probation Institute - a Tool for Ensuring the Reintegration of Juvenile Offenders (a comparative analysis of the criminal justice approach of Georgia and the USA), Mzia Lekveishvili -85, Anniversary Collection, Tbilisi,   p. 195.

^[36] Abadinsky, H. (2009). Probation and Parole, Theory and Practice, New York, p. 336.

^[37]https://pja.gov.pk/research [Last seen 29.03.2023].

^[38] Gelashvili,  M. (2020). Problems of Exemption from Serving the Sentence in Modern Georgian law, master's thesis, Tbilisi, p. 68.

^[39] Ibid., p. 72.

^[40] Ibid, p. 66.