Parliament passed with 73 votes to 6 with its third and final reading on April 5 a controversial amendment to the code of criminal procedure, depriving a defendant upper hand in choosing whether to have a trial by jury or a judge.
The government-proposed amendment, which was strongly opposed by the UNM parliamentary minority group, was debated and passed with its first reading at a parliamentary session on April 4.
The existing provision in the code now reads that a case can be tried by jury, “except when a defendant motions for the case to be heard without jury.”
The amendment envisages changing of this wording with the following one: “a case is heard by jury trial, except when parties agree the case to be tried without jury”, meaning that jury trial will not apply only when there is an agreement of both prosecution and defendant.
The existing code also has a provision, according to which if holding of a jury trial may violate right to fair trial, a case can be heard without jury upon decision of a presiding judge and approval from the Chairman of Supreme Court. The newly passed amendment removes this provision from the code.
The amendment is related to pending trials into high-profile cases of former or sitting officials, who are President Saakashvili’s allies.
In January, 2013 the Parliament amended the criminal procedures code allowing applying jury trials to those cases in which former or acting officials face criminal charges. At the time UNM lawmakers supported that amendment on the condition that a defendant would have retained advantage in choosing whether to have a trial by jury or a judge.
In early March, during a trial of former defense and interior minister Bacho Akhalaia into multiple criminal changes, which is now ongoing, Akhalaia and other co-defendants made use of an existing provision in the law giving a defendant upper hand in choosing between trial by jury or a judge and made choice in favor of the latter; prosecutors wanted the case to be tried by jury.
Argument of lawyers of Akhalaia and other co-defendants in favor of trial by judge was a claim that the current authorities contributed to stirring negative public perception of their clients and there was a high probability of jurors’ preconceived bias against the defendants.
If the government-proposed bill goes into force, the new regulation will have no retroactive power and it cannot be applied to already ongoing trials, so Akhalaia’s case will be still be tried by a judge; but it may apply to some other high-profile trials, which are still pending, among them is the case against Tbilisi Mayor Gigi Ugulava.
Initially the proposed bill failed to gain support of the parliamentary committee for legal affairs.
“Trial into a criminal case by jury represents the right of a defendant, hence limiting defendant in choosing [between trial by jury or judge] by prosecution’s consent contradicts essence of this institution itself,” Georgian Dream MP Vakhtang Khmaladze, chairman of the parliamentary committee for legal affairs said, while reading out a conclusion of his committee on the proposed bill at the parliamentary session on April 4; he also said that decision of the committee against the bill was not unanimous. The proposal, however, was still discussed with its first reading on April 4.
On April 5 the committee, however, endorsed the bill for discussion with its second and third readings.
Citing the same arguments, which were laid out in the initial conclusion of the legal committee, UNM lawmakers were strongly against of the bill; UNM MPs said during the April 4 parliamentary debates that introduction of such a provision would turn jury trials into instrument of political persecutions.
“It seems that prosecutors fail to achieve results in respect of certain cases and so it became needed to again raise this issue” related to depriving a defendant advantage in choosing between trial by jury or a judge, UNM PM Pavle Kublashvili said.
On April 4 UNM lawmakers even resorted to a so called procedural war in an attempt to drag out time and delay voting on the bill.
According to the procedures the Parliament is authorized to hold sittings and voting only before 9pm. About ten minutes before 9pm on April 4, UNM lawmakers requested a five-minute break; the session, however, resumed a bit earlier, triggering protest of UNM lawmakers, who were also requesting to give them a chance to make closing brief remarks in an attempt to further drag out time; they were refused in the request on making brief remarks on the grounds that they did not undergo registration before the vote. The voting was underway when UNM lawmakers started walking out of the chamber in protest with some of them telling Parliamentary Chairman Davit Usupashvili that he was violating procedures.