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doi
doi.org/10.36475/L.A.W.14
ABBREVIATED TITLE
L.A.W.
Issue
Online version
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In this Article

Volume 8, issue 3

Criticism of the Judicial Decision due to the Limited Definition of Self-Defense

Authors: Tamar Gegelia

Tamar Gegelia

Juris Doctor, Affiliate Associate Professor at the Caucasus University

Email: tgegelia@cu.edu.ge



Affiliation: Juris Doctor, Affiliate Associate Professor at the Caucasus University

Abstract: The article analyzes the case where, according to the factual circumstances, the person should have been acquitted of murder, but instead he was punished. self-defense is the human right to defend oneself from an aggressor. The basis of self-defense justification is the human right to life, the right to protect it from an aggressor. The article is a critical analysis of the judicial interpretation of the limits of self-defense. The article refers to the decisions of the Zugdidi District Court and the Supreme Court of Georgia regarding a specific case. According to the authors perception, both judgments present a narrow interpretation inconsistent with the essence of self-defense, and both instances came to different results due to different legal assessments of the facts. The author of the article lists the necessary criteria for the justification of self-defense and analyzes how it should be interpreted, simultaneously criticizing its judicial interpretations. Judicial definitions, made case by case, do not serve to foresee the defining norm of self-defense, which undermines legal security. Every person has the right to defend himself against an aggressor, to use effective and proportionate means of self-defense, so as not to put himself at risk. A person has the right to know precisely when and what kind of force he can use against the aggressor. In the Georgian reality, this right is systematically violated, and analyzing a specific criminal case serves to identify this problem. According to the author, Georgian judicial practice misses the essence and purpose of the norm, which contributes to the discrediting of the right to self-defense, and everything only strengthens the aggressor.

Keywords: Self-defense, Personal Defence, Boundaries of Self-Defense,


Language: GE

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  1. SOME PROBLEMS IN IMPLEMENTATION OF JUSTICE CAUSED BY LEGISLATIVE CHANGES
    2.




BIBLIOGRAPHY:

  1. Dubber, M., Hörnle, T. (2014). A Comparative Approach, Oxford University Press; (In English)
  2. Dressler J. (2015). Understanding Criminal Law, EBook; (In English)
  3. Gamkrelidze, O. (2002). Offence Against the Person, Tbilisi: Institute of State and Law of the Georgian Academy of Sciences, 74. (In Georgian)
  4. Hessbruegge J.A. (2017). Human Rights and Personal Self-defense in International Law, Oxford University Press. (In English)
  5. Herring, J. (2020). Criminal Law, Oxford University Press; (In English)
  6. Kherkheulidze, I. (2016). The Scope of self-defense According to Georgian and Anglo-American Law, Georgian-German Journal of Criminal Law (DGStZ), #1; (In Georgian)
  7. Leverick, F. (2006). Killing in self-defense, Oxford: Oxford University Press. (In English)
  8. Turava, M. (2011). The Doctrine of Crime, Tbilisi: Meridiani. (In Georgian)
  9. Jishkariani, B. (2016). Offence Against the Person, Tbilisi: The World of Lawyers. (In Georgian)
  10. The Decision of Tbilisi City Court, March 12, 2020 (In Georgian)
  11. The Decision of the Great Chamber of the Supreme Court of Georgia 2k-86col.-02, December 10, 2001 (In Georgian)
  12. The Decision N1/411-18 of Zugdidi District Court, February 11, 2019 (In Georgian)
  13. The Decision of the Supreme Court of Georgia 2K-877 Ap.-20, March 29, 2021. (In Georgian)
  14. The Decision of the Supreme Court of Georgia 2K-756AP-19, 17 March, 2020. (In Georgian)

Notes:

  1. Leverick, F. (2006). Killing in Self-Defense, Oxford: Oxford University Press, 54-55. Also see: Hessbruegge J.A. (2017). Human Rights and Personal Self-defense in International Law, Oxford University Press.
  2. The Court of Appeal overturned this decision and convicted the person under both Article 120 and Article 108 of the Criminal Code. The Supreme Court of Georgia also agreed with the decision of the Court of Appeal. See N 2K-756AP-19, 17 March, 2020.
  3. In these words, the violence of the aggressors is evaluated by the testimony of a direct eyewitness, which the Supreme Court did not share.
  4. The Decision N1/411-18 of Zugdidi District Court, February 11, 2019, par. 4.1.2
  5. Justification criteria of self-defense in Georgian criminal law doctrine. See Turava, M. (2011). The doctrine of Crime, Commentary on Article 28 of the Criminal Code, Tbilisi: Meridiani; Jishkariani, B. (2016). Offence Against the Person, Commentary on article 113 of the criminal code. Tbilisi: The world of Lawyers.
  6. The Decision N1/411-18 of Zugdidi District Court, February 11, 2019, par. 4.1.1.1.
  7. Ibid
  8. Ibid. Par. 4.1.2.
  9. Ibid. Par. 4.1.1.1.
  10. For a critical analysis of the judicial misinterpretation of self-defense, see Gamkrelidze, O. (2002). Commentary on article 113 of the criminal code in the book: Offence against the person, Tbilisi: Institute of State and Law of the Georgian Academy of Sciences, 74
  11. The Decision of the Great Chamber of the Supreme Court of Georgia 2k-86col.-02, December 10, 2001
  12. Turava, M. (2011). The Doctrine of Crime, 536-543.
  13. Ibid. 358-359.
  14. Dubber, M., Hörnle, T. (2014). A Comparative Approach, Oxford University Press, 416.
  15. Ibid. 417.
  16. Turava, M. (2011). The Doctrine of Crime, 351.
  17. For an analysis of English court practice on proportionality, see Herring, J. (2020). Criminal Law, Oxford University Press, 651.
  18. Kherkheulidze, I. (2016). The Scope of self-defense According to Georgian and Anglo-American Law, Georgian-German Journal of Criminal Law (DGStZ), #1, 17.
  19. The Decision of the Supreme Court of Georgia 2K-877 Ap.-20, March 29, 2021.
  20. The Decision of Tbilisi City Court, March 12, 2020. p. 12. A copy of the judgment was received in response to the application for public information N1-0163/11344
  21. For the critical analysis of the Georgian judiciary law see Jishkariani, B. Offence against the person, 73.
  22. Dressler J. (2015). Understanding Criminal Law, EBook, 199
  23. Details of the case see Awaiting the verdict https://fb.watch/9I4PXaoteT/ [Last access: 13 August, 2022]
  24. Radio Liberty, news: The court acquitted Merab Kobiashvili, arrested in the case of intentional murder in Gudauri. https://www.radiotavisupleba.ge/a/31613693.html/ [Last access: 13 August, 2022]
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