In 2014, the Open Society-Georgia Foundation sponsored a project entitled Liberalizing Trends in Georgian Criminal Law organized at the initiative of a group of TSU Law Faculty Professors.

As TSU law professors clarify, the incentive to undertake such a project was to address the tendencies prevailing in Georgian legislation since 2004. The authoritarian influence on Georgian legislators was reflected by a number of changes, for example more acts were criminalized; the composition of already existing crimes were expanded; penalties were changed in such a way that the judge was not entitled to pass individualized punishments; and issuing fines, as additional punishments, became unfairly common. Furthermore, the principle of absorption while having the case of several crimes was changed into the rule of accumulating crimes.

The Head of the project, TSU professor, Doctor of Law, Nona Todua stated that the aim of the project was to provide lawmakers with recommendations contributing to the liberalization process of criminal law. Since 2013 a liberalization process began in Georgia, but a number of steps must still be taken, in the following manner: 1. decriminalization of individual acts both from a legislative point of view and the execution of justice; 2. sentence liberalization; expansion and improvement of alternative sentences; 3. sentence liberalization to make it proportionate to the seriousness of the offense; 4. sentence liberalization to grant the court more opportunities to pursue the principle of individualization. The application of conditional sentencing, which was so drastically limited by legislative changes after 2004, should be significantly extended.

In order to prepare relevant recommendations, scholars worked on the project with the collaboration of Giorgi Amiranashvili, PhD in Law, for one year. They completed several works such as The issue of decriminalizing certain acts, The issue of further liberalization of criminal law, and The institute of the conditional sentence.

As a result of legislative changes implemented in 2007, the judicial institute was attached to the plea bargain and suspended sentences gained the wrong fiscal value, which in fact laid the foundation for the unfair application of conditional sentencing. Meanwhile, conditional sentencing has become a convenient way of concealing insufficient evidence and improper qualification of acts. Todua’s work, The institute of conditional sentence also discusses how courts were prevented from using alternative sentencing due to the attachment of conditional sentence to a plea bargain. According to Mzia Lekveishvili’s (PhD in Law) thesis at TSU, The significance of the individualization principle during sentencing, when choosing a sentence the least severe punishment should be given priority. Hence, if possible, severe sentences should be pronounced less frequently. A sentence ought to deter the actions of a criminal without causing more damage, and if possible by encouraging the social reintegration of the person. In her work, this expert criticizes the legislative change adopted in 2007 that meant accumulating crimes in cases of having several offences. This alteration has, practically, distorted the principle of individualization. When committing several minor offenses an accumulated sentence might be equal to or even more severe that the sentence for committing one truly serious crime.

In his work, The problem of liberalism and the state’s right to punishment in criminal philosophy, the scholar of the project, PhD in law and TSU Emeritus, Guram Nachkebia discussed three main definitions of the term “liberalism” as 1) philosophical, 2) economic and 3) political. The political aspect of liberalism means that an individual is a free human being and restriction of his/her freedom is deemed inadmissible. Meanwhile, liberalism was a political ideology implying a significant breakthrough in the policy of criminal justice.

Notwithstanding several variations of liberalism, all of its branches recognized the fact that individual freedom was absolute, and the state was not entitled to limit this freedom. In consequence, the author believes that liberalism needs some amendments in today’s reality, as freedom that is not associated with a positive responsibility is nothing but an arbitrary power as opposed to a true freedom. To conclude, a modern interpretation of liberalism should be based on the unity of freedom and responsibility.

In her scholarly work, The role and the significance of alternative sentencing in criminal law and judicial practice, PhD in Law and TSU Professor, Maya Ivanidze talks about several kinds of punishments (fines, community work, restriction of freedom) that officially exist but that have not been applied in Georgian legal practice throughout the years. The scholar believes that the punishments discussed in her work should be definitively put into practice.

Ketevan Mchedlishvili-Hedrich, holds a PhD in Law and is a scholar at Berlin-Brandenburg Academy of Sciences and Humanities, and was an invited professor to the TSU Law Faculty. She is Associate Professor at the Georgian University working on a thesis,”The legislation and legal practice of foreign countries with respect to alternative punishments and comparative legal analysis of those countries and the Georgian legislation.” She points out that legislation in Germany, France, England and The United States is equipped with juvenile justice educational and disciplinary sanctions to protect a juvenile that committed a crime for the first time from receiving a sentence. Such practice should be adopted in Georgian legislation as well. House arrest as an alternative to imprisonment can be effective for white collar offenses, traffic offenses and minor unintentional crimes. However, it is not suitable for preventing violent crime (especially domestic valance) or sexual offences. Also, house arrest and electronic monitoring are sometimes not proportional to the crime and may have negative effects with the juveniles committing less serious crimes.

As a result of the research, the team concluded that there are a number of flaws in Georgian criminal law in terms of applying certain types of sentences that prevent the re-socialization of the offender. In this respect, community service is very noteworthy. It means engaging a convicted person in unpaid labour, which will be determined by the Probation Office. Temur Tskitishvili, Assistant Professor of the Law Faculty, project scholar, stated in Considering the principle of proportionality while passing sentence, that community service can last from 40 to 800 hours with an eight hour maximum per day. However, the fact that the service is unpaid and that a convict has to work for eight hours a day without any reward, even a symbolic one, prevents an individual from appreciating hard work or preparing himself/herself for an independent work life. In order to achieve the goal, it is important to pay convicted persons for their work. In addition, when sentencing a type of community service, the dignity of a convicted person should be taken into careful consideration. It is crucial to consider a person’s skills and abilities when choosing a relevant community service.

Recommendations from the study should assist legislators to take the following steps:

a. to free the Georgian Criminal Code from norms that are better moved to the Administrative Code;
b. to develop legislation that empowers the judge to apply the principle of individualization, as well as alternative punishments and conditional sentences; and
c. to establish a trend where not only the prosecutor but also the victim abstains from prosecuting.

These university professors point out that besides legislation, the project will be very beneficial for practicing lawyers, professors and teachers, as well as the general courts and the Constitutional Court.