Tbilisi City Court sentenced Nika Gvaramia to imprisonment on May 16, 2022. On November 2, 2022, the Tbilisi Court of Appeals upheld the decision regarding Nika Gvaramia’s imprisonment.
The decision to imprison Nika Gvaramia was strongly criticized both locally and internationally. The call for the release of Nika Gvaramia was stated in the resolution of the European Parliament of June 9, 2022.
On June 16, 2022, the Media Advocacy Coalition, and on June 8, the Public Defender of Georgia appealed to the President of Georgia with a request to pardon Nika Gvaramia. After the decision of the Tbilisi Court of Appeals was announced, the discussion regarding the pardon of Nika Gvaramia by the President of Georgia has once again intensified. The Media Advocacy Coalition, as well as various political parties, once again called on the President to pardon Nika Gvaramia. The instrument of pardon is a political-legal mechanism that has its own specific place in the history of constitutionalism. The rationality of using or rejecting constitutional institutions cannot be evaluated only by the decision of a person with the relevant authority. In other words, any constitutional instrument has prerequisites for its use. In some cases, these preconditions are explicitly stated in the Constitution, although they are often only implied, and in order to explicate them, we have to refer to the constitutional experience of the world.
"Are there any constitutional prerequisites for pardoning Nika Gvaramia?" This will be the main question that we will answer in the present analysis.
The instrument of pardon is a historical component of the power of heads of state. This is also recognized by the main legislative act of Georgia. Article 53(2)(g) of the Constitution of Georgia grants the President with an exclusive pardoning authority. The instrument of pardon can have different purposes/effects. A large part of them differ according to the model of state governance, although the historical goals of this institution remain unchanged. Furthermore, without historical goals, this instrument loses its function.
Beyond the assigned functions of the mechanism of checks and balances, three traditional purposes of the pardon instrument are considered in legal doctrine:
1. Pardoning of convicts as a manifestation of a humane act;
2. Correcting an error of justice (this does not mean examining the lawfulness of court decisions);
3. Protection of state interests.
From the point of view of pardoning Nika Gvaramia, we would like to draw special attention to the final purpose mentioned above. Pardoning individuals for the protection of the interests of the state has had many manifestations in constitutionalism. However, the necessity to pardon a person or a group of persons for this purpose should be decided in each specific case with the consideration of the interests and needs of the state.
The stated aspiration of the population of Georgia is to join the European Union. The will of the Georgian nation is reflected in the main legislative act of the country, which obligates all constitutional bodies, including the President of Georgia, “to take all measures within the scope of their competences to ensure the full integration of Georgia into the European Union and the North Atlantic Treaty Organization.”
European Parliament’s resolution of June 9, 2022, “on violations of media freedom and the safety of journalists”, explicitly condemns the imprisonment of Gvaramia. In the Association implementation report of 12 August, the case of Nika Gvaramia was listed among politically sensitive cases. On 23th of June, 2022, the European Union did not grant the status of a candidate country to Georgia and indicated that Georgia should address the priorities specified in the Commission’s opinion on June 17. Protecting media freedom and reducing polarization are among the priorities. European Commission, in its opinion of June 17, points out that the court proceedings against media owners have a chilling effect on media freedom and, with regard to these cases, the highest legal standards should be met. Georgia must fulfill these priorities by the end of 2022.
The judgment of conviction against Nika Gvaramia raises many questions both in terms of the corpus delicti and the determination of the measure of the punishment. This is indicated in judgment evaluations and amicus curiaes prepared by the Public Defender and by non-governmental organizations, as well as the fact that, between 2017 and 2021, presumably no imprisonment was used for the crime for which Nika Gvaramia was found guilty. Along with the resolution of the European Parliament of June 9, this is indicated in the evaluations of the Public Defender of Georgia, who assessed the court decision as a gross violation of the international principles of justification and legality.
The purpose of the instrument of pardon is not to examine the lawfulness of court decisions. However, considering the general reputation of the Georgian judicial system and the important legal questions regarding the verdict, the decision rendered against Nika Gvaramia may become one of the obstacles to Georgia's integration into the European Union. In particular, with regard to this verdict, real signs of political persecution and selective justice against Nika Gvaramia are present. Evidently, the decision is not final and will be appealed, but in this case time has a special value. As it is known, Georgia must fulfill the preconditions for obtaining the EU candidate status in the near future. Until then, Georgia should show its strategic partners that it really aspires to EU membership and is ready to effectively eliminate obstacles in the way. This is indicated by the statements of the US Embassy and the European Union's foreign affairs and security policyon November 2, 2022.
Based on the presented facts, it is clear that the instrument of pardon is actually the only effective way to solve the problem in a timely manner and to remove the significant obstacle on the path of Georgia's European integration.
The arrest of the general director of one of the main critical media outlets may become not the only, but certainly an essential obstacle on the way to European integration of Georgia.
According to the Constitution of Georgia, the President of Georgia is the head of state. In the parliamentary republic, the main role of the president is to mitigate the current political crises in the country within the powers granted to her/him by the constitution. Furthermore, as mentioned above, the main legislative act of the state imposes the constitutional obligation on the president to take all measures for ensuring integration into the European Union.
The use of the instrument of pardon by the President is an effective way of solving the mentioned problem, which is compatible with both the constitutional goals of the instrument of pardon and the constitutional competence of the President of Georgia.
Nika Gvaramia's pardon fully meets the constitutional goals of the institute of pardon. Moreover, Article 78 of the Constitution of Georgia obligates the President to "take all measures to ensure the full integration of Georgia into the European Union and the North Atlantic Treaty Organization". As such, in the constitutional system of Georgia, pardoning Nika Gvaramia can be considered as a personal constitutional responsibility of the President of Georgia.
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