Public Defender's Amicus Curiae Brief in the “Cables” Case
The Public Defender considers that in the so-called cables case it is important the Constitutional Court to consider the constitutionality of embezzlement – a norm envisaged by the Criminal Code of Georgia; in particular, how it meets the requirements of the law. On August 31, 2016, the Public Defender filed amicus curiae brief with the Constitutional Court with regard to the mentioned issue.
The Public Defender considers that embezzlement – a crime envisaged by the Criminal Code of Georgia – can be widely interpreted. The norm does not clearly establish whether or not the motive of covetousness is necessary to commit embezzlement.
It is necessary to clearly define whether the motive of covetousness is important for committing embezzlement - a crime against property. In this case it is problematic to describe the action as embezzlement as similar motive is not established.
Tbilisi City Court noted with regard to the mentioned case that the motive does not have impact on categorization of the action as embezzlement.
The Public Defender considers that any legislative act and/or relevant article of the law, which leads to a person’s criminal liability, should be foreseeable and should provide the possibility of presuming the expected liability in advance. However, article 182 of the Criminal Code of Georgia cannot meet the standard of foreseeability, namely, it is vague whether the motive of covetousness is necessary for committing embezzlement.
At the same time, it is necessary to clearly define the issue of “management” of property right for categorization of an action as embezzlement. In this particular criminal case of the plaintiffs, the money has been considered as “managed” by the defendants even though it had not been clearly established whether they had the authority to use or manage the money considered as embezzled.
The vagueness of the crime of embezzlement is further strengthened by the contradictory and inconsistent practice of common courts of Georgia, which once again confirms the need the Constitutional Court to establish constitutionality of embezzlement – a norm envisaged by article 182 of the Criminal Code of Georgia, namely, whether it meets the requirements of the law or not.