The Code of Administrative Offenses, or How the State Punishes Us. Vol-2

The state that the citizens of Georgia are striving to build must correspond to the principles that are central to the state itself. On the one hand, it is the state's obligation not to interfere in the activities of citizens/free individuals, except in exceptional cases; on the other hand, alongside non-interference, the state is obliged to ensure the security of the individual (both positive and negative obligations). The existence of a court is necessitated not merely "to exist as a discriminator between the right and the wrong"; rather, the court must be effective in its very existence. Effectiveness does not merely mean holding the appropriate status, wearing the robe, or having legislative guarantees. Effectiveness means that even a single individual must be more valuable than the rest of the material world and/or the so-called "state interest." It is better to have a hundred guilty persons walk free than for one innocent person to be punished. This principle is neither unrealistic nor a utopia; if this principle is not established within the state, especially within the justice system, injustice devours the individual.

The oppression of an individual by the state must not be an ordinary occurrence. Against this, the court must have not just the right, but the obligation; because no matter how strict the state may be, if it is not fair alongside its strictness, the balance is disrupted—a balance whose existence determines the development of both the state and each individual. The state, as a given reality, constantly tries to be a "mother" or "father" to the individual, attempting to raise its citizens, whereas this is the least of the state's obligations. The state's obligation is not to create an order that "oppresses the individual," even if the individual is guilty. If an individual violates the established order (and the order, in turn, must be fair, while the violation must entail a breach of fairness; otherwise, an unfair order deserves to be violated), they deserve retribution. But if a proportion is not maintained between the retribution and the action, the retribution (the limits of responsibility for one's own actions) inevitably turns into punishment. And whenever we see punishment, or a love for punishment from the state, it brings us back to the state's position as a "mother" or "father," and reduces the individual to the position of a child, with one sole difference: the state is incapable of love (since upbringing is a moral category, not a legal one).

I would not have written such an introduction, or this introduction would have suited a different kind of article, were it not for the reality that, to my regret, seems insignificant to society. Yet, this reality lives around us every minute, every hour, and every day, and the state implements this reality through its so-called Code of Administrative Offenses, adopted in 1984 (which, even by its title with the year 1984, strongly resembles a very good book).

Imagine, the 1984 Code of Offenses, that is, the Soviet code, remains in effect to this day. True, no other law has undergone more amendments than this one, but it nonetheless was and remains in the hands of the state as a "mechanism of punishment." Although the purpose of the 1984 code was subsequently changed, in its time it began like this: "The task of the legislation of the Georgian Soviet Socialist Republic on administrative offenses is to protect the public order of the USSR, socialist property, and the socio-economic rights of citizens..." It seems like an insignificant provision, yet here too, the mark of red injustice is visible when: in the first place, the code considers its purpose to be the protection of public order, followed by socialist property, and only then comes the human being. If a human being is not the supreme value for a state in the first place, that state is unjust. We humans create the state for the sake of the "human/individual," and not for the minister, the mayor, the head of the department, or the prime minister. The purpose of the state is to strive toward making the human being its center. In this pursuit, the state must create a legislative framework that ensures "the existence of fair rules" in the event of a dispute between the state and the individual; and a case judged by fair rules by the court leaves no residual feeling that "the state is unjust."

No one is saying that the state should not have rights; on the contrary, confining the state within legal boundaries is good for the state itself, because in such a case, the state continues its pursuit of development, and this pursuit does not halt. Therefore, if the human being is not at the center of any law, that law does not deserve to exist, even if thousands of amendments have been made to it, because the fruit of the Red Terror must be dismantled and a new one must spring up in its place. Even today, instead of the human being, the code places property at the center: "The task of the legislation of Georgia on administrative offenses is the protection of property, and the socio-economic, political, and personal rights and freedoms of citizens..." Property exists for humans, not vice versa; humans do not exist for property. Words matter primarily, written words even more so. Thus, the question arises: why is the human being not the center of this code? And why does it begin with property? If humanity considers the right to property as a human right, can a right possibly surpass the human being? For a right cannot live, nor will it live, without a human being.

An administrative offense differs from criminal prosecution, because in this case, the nature of the "violation" has not reached a magnitude that could be criminally punishable. Furthermore, the adjudication of an administrative offense, like any other judicial dispute, has its own principles. Principles are nothing more than the "rules of the game" established by the state, or more simply, rules regarding who must prove what. The leading thesis of the procedural part of criminal law regarding the "agreement on the rules of the game" is a constitutional principle. According to Article 31.6 of the Constitution of Georgia: "No one is obliged to prove their innocence. The burden of proving the charge rests with the prosecutor." This very provision determines the guarantee that "a person shall not be prosecuted unlawfully." Moreover, this thesis is so all-encompassing that the accused is relieved of the burden of proving what "they did not commit"; conversely, the state, with its inquisitorial apparatus, attempts to prove that "the individual did commit it."

This is not simply a provision written somewhere in some code. This protects any individual from the state, from the arbitrariness of the state, and returns the state and the individual to an equal footing. Because if the individual is burdened with proving that which "they did not commit," ultimately, no one could ever be acquitted in a criminal trial. This defense mechanism is not a gift offered by the state; rather, when the individual surrendered to the state the inadmissibility of executing vigilante justice, the state, in return, took on this obligation. Just as in any relationship, whether between individuals or between an individual and the state, there is a constant exchange of one right for another, where both parties "must remain winners" by virtue of the relationship existing. The Constitution as a metaphysical book is metaphysical precisely because the rights confirmed within it (and not merely reflected; a human has rights by virtue of being human, not the other way around) are not exhaustive, as they must extend to and cover all relations that might possibly exist within the state itself or that might exist in the future.

This is precisely why the provision of Article 31.1 of the Constitution of Georgia: "Every person has the right to appeal to a court for the protection of their rights. The right to a fair and timely hearing is guaranteed," is not merely an active provision today (or should be), but this provision ensures a "fair hearing" of the case in the future. In most cases, fairness as a given is difficult to define, but one simple principle certainly applies when defining fairness: what is distanced from injustice is fair. In other words, fairness cannot be unjust. Put even more simply, the rules established by the state are fair when they are not unjust. Injustice can be the greatest indignity of the law, and an unjust law does not deserve to exist. If the state allows an unjust law to operate, can fairness reign in the court? Can even a legitimized parliament that observes injustice be fair? Can a legislator who knows that a law is unjust refrain from changing it? And if the legislator knows and does not change an unjust law, then what does even the legislator deserve? And can an unjust law oblige an individual to obey it? Is the individual obliged to obey an unjust law? Does the individual have the right to declare disobedience against an unjust law? And if the judge also knows that the law is unjust (it is understood that they should not be guided solely by morality), should they judge by injustice or by fairness, or is legality paramount after all? Just because it is written so, does it mean that what is legal is a priori fair?! If legality comes first, then why does the Constitution declare "fairness" as the main principle and not legality? These are not the questions of a novice philosopher; this is what should be debated in every place where justice is to be forged, be it the parliament, the court, or any other place...

This is exactly why in the modern Code of Administrative Offenses, no reader, lawyer, penalized person or one facing a penalty, student, attorney, or judge—in short, no one—will find: the "presumption of innocence," the "module for allocating the burden of proof," "stages of the process," "admissible and inadmissible evidence," the "standard for evaluating evidence," the "right to a fair trial," etc. Imagine a country that already holds EU candidate status and which uses/punishes its individuals with the malicious legislation of 1984. What does the Code of Administrative Offenses offer us in return?

Article 7.1 of the Code of Administrative Offenses is formulated as follows: "State bodies, public organizations, and labor collectives shall develop and implement measures for the prevention of administrative offenses, the identification and elimination of the causes and conditions facilitating their commission, and the upbringing of citizens in the spirit of high consciousness and discipline, and strict observance of laws." Imagine, the purpose of the law is to educate the individual, whereas the purpose of the law should be anything but assigning it the meaning of raising the individual. However, even this might be acceptable, were it not for one sole "but" (setting aside all legal intricacies): the Code of Administrative Offenses chooses the law, while the Constitution of Georgia chooses fairness. Moreover, can discipline be the foundation of a democratic society? On the contrary, however surprising it may be, discipline is a sign of autocracy. There is no place for discipline in a democracy, because there is no single center to which everyone submits. Additionally, "observance of the law" is sometimes a greater illegality than injustice itself, because when a law is adopted, the individual gives it legitimacy, not the other way around.

Because with the same success, if we follow the essence of this code, was the protest of 1989 outside the "discipline of the Code of Offenses"? We agree that by Soviet understanding, yes, it was. But it was precisely this "indiscipline" according to the assessment of this law—and for us, the free citizens of Georgia, the fight for freedom—that brought the independence which marks our state today. Furthermore, April 9, 1989, in the view of the Soviet Union and its "Code of Offenses," was "illegal," but for us, the free citizens of Georgia, it is and will be fair. Even this simple example shows us that if the law does not recognize fairness as its primary origin and does not submit to the constitutional legal order, the law does not deserve to exist, because in such a case the law submits to a dictate, but under no circumstances to a "fair order."

The Code of Administrative Offenses first mentions the judge only in Article 31, while prior to that, the same code informs us via Article 8 that "Cases of administrative offenses are conducted on the basis of strict observance of legality." Legality is understandable, but to this day I wonder what "strict legality" is supposed to mean. If it simply said legality, would the law lose its status as a law, would it not be considered a law? However, it is important here that this provision demanded submission from everyone, including the judge. The judge, in relation to the law, was not an "interpreter" but an "applier," and thus the space was closed off—the space that the law must grant the judge so that the latter can ensure a fair order.

We mentioned above that the Code of Administrative Offenses does not recognize such an all-encompassing concept as, for example, the "presumption of innocence." In contrast, according to the interpretation of the Constitutional Court of Georgia, the "presumption of innocence" "represents one of the foundations of a state governed by the rule of law; it reinforces the important, universally recognized principle of preventing the conviction of an innocent person—'in dubio pro reo'—according to which the conviction of a person based on charges of a doubtful nature is inadmissible, and thus, it creates an important guarantee for the protection of human rights in the process of criminal prosecution. The principle of imposing responsibility solely on the basis of irrefutable evidence is a guarantee that the conviction of an innocent person will not occur as a result of the arbitrariness or mistakes of state officials. A state governed by the rule of law implies the existence of such a legal system under which the measures of justice carried out against a person—accusation and imposition of responsibility—must be implemented in accordance with adequate standards" (Decision of the Constitutional Court of Georgia of January 22, 2015, No. 1/1/548 in the case "Citizen of Georgia Zurab Mikadze vs. the Parliament of Georgia," II-2).

True, the aforementioned applies to the aspect of criminal prosecution, but due to the qualitative nature of the Code of Administrative Offenses, this must also extend to administrative offenses. The Constitutional Court of Georgia also echoes a decision adopted by the Supreme Court of Georgia back in 2009 (BS-1635-1589(K-08), date of adoption June 30, 2009), where the court goes further and declares that "Article 17.2 of the Administrative Procedure Code relieves the plaintiff of the burden of proving the legality of the disputed act and obliges the defendant administrative body to prove that it ensured the preparation, adoption, and issuance of the decision it issued on the basis of and in accordance with the law. The Court of Cassation believes that under Article 17.2 of the Administrative Procedure Code, the administrative body is obliged to prove precisely the legal side of the disputed act, because according to substantive legislation it has a public-legal obligation to make its decision, even without the presumption of appeal, solely in accordance with the law; thus, it is perfectly logical to place the burden of proof on the administrative body." To put it more simply, the state must prove that the individual committed the offense, but the individual must not prove that they did not commit the offense. In conditions where a fair order exists, a free society is born, because "it is essential that in a free society, every person has the belief and the legal guarantee that the state will not convict them unless, as a result of a fair trial, it is convinced of the person's guilt with the highest persuasiveness (accuracy)" (Decision of the Constitutional Court of Georgia of January 22, 2015, No. 1/1/548 in the case "Citizen of Georgia Zurab Mikadze vs. the Parliament of Georgia," II-41-43).

In contrast, in 2023, a judge of the Administrative Cases Panel of the Tbilisi City Court, in a resolution on one of the cases (this is what a decision on administrative offense cases is called), recorded the following motivation: "The court also considers it important to clarify that the norms of the Code of Administrative Offenses do not establish the imposition of the burden of proof in an offense case onto the administrative body during the legal proceedings." In other words: the court placed the burden of proving that they are not "guilty" on the individual, instructed the individual that "they must prove their innocence," and violated the "fair order" for the individual because the individual was left alone facing the state. The question is, where does the provision disappear at this moment, according to which the individual must be the most valuable entity in this state? Because according to Article 31.6 of the Constitution of Georgia, "No one is obliged to prove their innocence. The burden of proving the charge rests with the prosecutor." And can an unjust law oblige an individual to obey it? Is the individual obliged to obey an unjust law? Does the individual have the right to declare disobedience against an unjust law? And if the judge also knows that the law is unjust (it is understood that they should not be guided solely by morality), should they judge by injustice or by fairness, or is legality paramount after all? Just because it is written so, does it mean that what is legal is a priori fair?! If legality comes first, then why does the Constitution declare "fairness" as the main principle and not legality?