The Venice Commission has remarks with regard to Article 22 of the Law on Amnesty.
According to the Venice Commission report, article 22 of the Law on Amnesty, provides for discharge from criminal responsibility and punishment of persons who have been granted politically imprisoned or persecuted status by virtue of the Resolution of the Parliament of Georgia.
According to paragraph 48 of the report, ‘’No attempt was made in the Law to establish an objective criteria according to which an individual is considered a political prisoner. The Law does not specify what offences are covered or during what period. It does not mention a criterion such as “serious doubt about the fairness of the proceedings leading to the conviction of the individual”. Although reference is made to the Council of Europe’s resolution on political prisoners in the preamble of the Law, these criteria are not incorporated in the Law itself’’.
"As previously mentioned, the process of selection of cases was non transparent, and therefore appears to be arbitrary.
Failure to incorporate a clear criterion into the Law has also as a consequence that it would be extremely difficult and perhaps not possible for any person to challenge Parliament’s decision.
The Law does not provide for an appeal to a court of law in the case of a person whose name is not on the list and considers that he or she is entitled, as anybody else, to be released on the grounds that he or she was a political offender. In any event, in the absence of a clear criterion for inclusion in and exclusion from the list, a challenge could hardly succeed.
Article 22 of the Law on Amnesty is meant to be an amnesty for people imprisoned on political motives but appears to be a general amnesty. On a literal reading, the Law would appear to cover not only political offences, but also ordinary offences which had no connection to politics and even - although most probably theoretically - international criminal offences such as torture or war crimes.
Even if one allows that the process was carried out in good faith, if a person who had genuinely been imprisoned for political reasons turned out to have previously committed a serious offence unrelated to politics he or she appears to have been granted immunity from prosecution for non-political offence at all times.
Moreover, in case Parliament have included in their list persons who are not in any sense political offenders or the objects of political persecution and who have committed ordinary offences not connected to politics, there is no method by which the decision can be challenged.
The Venice Commission is mindful of the reasons put forward for the adoption of these texts (i.e. the urgency to take immediate steps to end the scandal of persons being held in prisons for political reasons as it was explained to the delegation during its visit; see, also in the preamble of the Law, references to a general “principle of humanity” and to particular circumstances in the country “pursuant to the demand from society to restore justice, taking into consideration the necessity to reduce the number of inmates and conditionally sentenced persons and interest of public safety”) and has taken note of the exceptional scope of the measure (“single, temporal and special”). Nevertheless, the Commission is of the opinion that this measure was taken irrespective of the Law and of the above-mentioned fundamental principles. This has to be said without questioning the sincerity of the members of NGOs who had been campaigning on the issue’’, the report says.