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აღკვეთის ღონისძიების მიზნები საფუძველები და დასაბუთება
Date Issued
2020
Author(s)
Institution
Publisher
Abstract
In the course of legal proceedings, it is clear that using of restraining measures is extremely important, but it is also very important that using them should not be unreasonable, based on stereotyped decisions. And when there are appropriate grounds, it should be lawful, proportionate and it should not restrict the rights and freedom of defendant.
It is the power of the prosecutor to apply to the court to use the preventive measure. Accordingly, the prosecutor is obliged to rationalize the legitimacy of ccertain type of restraining measure requested by him and the impossibility of using another, less severe preventive measure. Therefore it is clear that, first, the prosecutor must rationalize the factual and formal grounds necessary to use the preventive measure.
The factual base is related to the standard of proof, which means that the combination of the evidence presented and the evidence in the criminal cases, hould prove the fact that a person has committed a crime. As to the formal grounds, the Criminal Procedure Code of Georgia contains the purposes and grounds for using preventive meauseres and requires that it shuld be used only if there is a real and confirmed risk of hiding the defendant, destroying evidence and committing a new crime. Consequently, use of a preventive measures is permissible only to ensure that defendant will not hiden, he/she will attend the court hearing and the decision of the court will be enforced.
Therefore, the prosecutor should request the use of prevention measures only if it is necessary and justified.
Once the existence of the purposes and grounds for the use of prevention measures has been confirmed, the prosecutor must prove the legitimacy of using certain type of prevention meausre and should request the measure which ensure the proper behavior of the defendant.
The Criminal Procedure Code of Georgia provides the main and additional types of preventive measures. The main types are: bail, personal bail, agreement on absence and proper conduct, supervision of the command of the military serviceman, in the case of a juvenile defendant - transfer to supervision, and finally, imprisonment, which should be used as an "extreme measure". Among the main types of preventive measures, the most commonly used are: imprisonment and bail. This tendency is not justified andwe think, the reason is that the list of key measures is not sufficient and it is needed to be expanded. The judge should have a wide discretion to choose a proper form of preventive measure against defendant that is relevant to the facts of the case; With the personality of defendant ; Which will be proportionate to severity of the alleged criminal act committed and will ensure the security of our society.
As mentioned above, in addition to the main types of preventive measures, the Criminal Procedure Code of Georgia provides additional measures, which can be used only in conjunction with the main measures.We believe that these restrictions should be repealed and it should be possible to use them independently, without any restrictions, which we believe will significantly help to change existing practices and to avoid the tendency of using the most stringent measures.
It is the power of the prosecutor to apply to the court to use the preventive measure. Accordingly, the prosecutor is obliged to rationalize the legitimacy of ccertain type of restraining measure requested by him and the impossibility of using another, less severe preventive measure. Therefore it is clear that, first, the prosecutor must rationalize the factual and formal grounds necessary to use the preventive measure.
The factual base is related to the standard of proof, which means that the combination of the evidence presented and the evidence in the criminal cases, hould prove the fact that a person has committed a crime. As to the formal grounds, the Criminal Procedure Code of Georgia contains the purposes and grounds for using preventive meauseres and requires that it shuld be used only if there is a real and confirmed risk of hiding the defendant, destroying evidence and committing a new crime. Consequently, use of a preventive measures is permissible only to ensure that defendant will not hiden, he/she will attend the court hearing and the decision of the court will be enforced.
Therefore, the prosecutor should request the use of prevention measures only if it is necessary and justified.
Once the existence of the purposes and grounds for the use of prevention measures has been confirmed, the prosecutor must prove the legitimacy of using certain type of prevention meausre and should request the measure which ensure the proper behavior of the defendant.
The Criminal Procedure Code of Georgia provides the main and additional types of preventive measures. The main types are: bail, personal bail, agreement on absence and proper conduct, supervision of the command of the military serviceman, in the case of a juvenile defendant - transfer to supervision, and finally, imprisonment, which should be used as an "extreme measure". Among the main types of preventive measures, the most commonly used are: imprisonment and bail. This tendency is not justified andwe think, the reason is that the list of key measures is not sufficient and it is needed to be expanded. The judge should have a wide discretion to choose a proper form of preventive measure against defendant that is relevant to the facts of the case; With the personality of defendant ; Which will be proportionate to severity of the alleged criminal act committed and will ensure the security of our society.
As mentioned above, in addition to the main types of preventive measures, the Criminal Procedure Code of Georgia provides additional measures, which can be used only in conjunction with the main measures.We believe that these restrictions should be repealed and it should be possible to use them independently, without any restrictions, which we believe will significantly help to change existing practices and to avoid the tendency of using the most stringent measures.
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Tamar Gamazardashvili Samagistro.pdf
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აღკვეთის ღონისძიების მიზნები საფუძველები და დასაბუთება
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599.85 KB
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Adobe PDF
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