The entry into legal force of a judgment of conviction does not mean that a convicted person loses the rights guaranteed by law. During the enforcement of the sentence, the person has the right to receive assistance from a lawyer, obtain appropriate medical care, maintain contact with family, and appeal an unlawful decision or action of a penitentiary institution.
The work of a lawyer for a convicted person may include protecting the rights of a prisoner in a penitentiary institution, as well as matters concerning parole, replacement of the unserved portion of the sentence with a more lenient sentence, release on health grounds, and pardon.
Avtandil Giorgadze provides legal assistance to convicted persons in penitentiary institutions, before the relevant administrative authorities, and in court.
Convicted Prisoner
A convicted person is a person against whom a court has delivered a judgment of conviction. The sentence imposed on a convicted person does not always involve imprisonment.
The services of a prisoner’s lawyer are directly related to the rights of a convicted person held in a penitentiary institution and the conditions under which the sentence is served.
If the judgment is still being appealed through appellate or cassation proceedings, the relevant service concerns the appeal of a criminal judgment. Matters related to the enforcement of a judgment that has entered into legal force constitute a separate area of protection of a convicted person’s rights.
Fundamental Rights of a Convicted Person
In accordance with the procedure established by law, a convicted person held in a penitentiary institution has the right to:
- receive information about their rights and obligations;
- receive the services of a lawyer;
- meet and communicate with a lawyer confidentially;
- receive medical care appropriate to their health condition;
- be protected from torture and inhuman or degrading treatment;
- maintain contact with family members;
- use correspondence, telephone communication, and visits in accordance with the procedure established by law;
- submit statements, requests, and complaints;
- receive information about decisions made concerning them;
- exercise freedom of religion and belief;
- participate in rehabilitation, educational, and employment programs;
- request protection where a real threat exists;
- appeal an unlawful decision or action restricting their rights.
The rights of a convicted person may be restricted only on the basis of law, for a legitimate purpose, and to the extent necessary.
Confidential Meeting With a Lawyer
A convicted person has the right to meet with a lawyer and discuss legal matters confidentially.
When visiting a penitentiary institution, the lawyer:
- meets with the convicted person;
- determines the circumstances of possible violations of their rights;
- reviews the documents in their possession;
- assesses medical, disciplinary, and other problems;
- explains the available avenues of appeal;
- prepares a statement, request, or complaint;
- contacts the Penitentiary Service, the court, and other authorized authorities where necessary.
The confidentiality of meetings with a lawyer is an essential condition for the effective legal protection of a convicted person.
Medical Care in a Penitentiary Institution
A prisoner has the right to receive timely medical care appropriate to their health condition. Depending on the need, this may include:
- consultation with a doctor;
- diagnostic examinations;
- medication-based treatment;
- involvement of a specialist;
- transfer to a medical institution;
- psychiatric or psychological assistance;
- proper management of a chronic illness;
- emergency medical care.
If medical care is delayed, refused, or provided inadequately, the lawyer may:
- request and review medical documentation;
- request an appropriate examination or specialist consultation;
- request that the necessary treatment be provided;
- apply to the relevant authorities within the penitentiary system;
- use judicial and other legal mechanisms where necessary.
A health-related matter requires a particularly prompt response where there is a threat to life or a risk of substantial harm to health.
Ill-Treatment and Safety
A convicted person must be protected from violence, threats, pressure, torture, and inhuman or degrading treatment.
If a prisoner faces a threat from another prisoner or an employee of the institution, the lawyer may request:
- immediate protection;
- an investigation into the possible act of violence;
- medical documentation of injuries;
- preservation of video recordings and other evidence;
- placement of the convicted person in a safe area or consideration of transfer to another institution;
- application of an appropriate protective measure;
- legal action against the persons responsible.
In such a case, it is important to document the incident promptly because video recordings, medical information, or other evidence may no longer be available later.
Appeal of a Disciplinary Sanction
A convicted person may be subjected to a disciplinary sanction for violating the rules of a penitentiary institution. When the decision is made, the procedure established by law must be followed, and the convicted person must be given an opportunity to present their position.
The lawyer examines:
- the specific violation alleged against the convicted person;
- whether evidence confirming the violation exists;
- whether the person was given an opportunity to provide an explanation;
- whether the relevant documents were prepared correctly;
- whether the sanction imposed corresponds to the alleged violation;
- whether the procedure and time limit for appeal were observed.
An unlawful or unsubstantiated disciplinary decision may be appealed in accordance with the procedure established by law.
Visits, Telephone Calls, and Correspondence
A convicted person has the right to maintain contact with family members and other persons under the conditions established by law.
A lawyer’s assistance may be required when:
- the convicted person’s right to visits is restricted without justification;
- a problem arises in exercising the right to make telephone calls;
- correspondence is not sent or received;
- the restriction is not documented in writing and properly substantiated;
- the convicted person has not been informed of the procedure for appealing the decision.
The specific form and frequency of contact depend on the type of institution, the convicted person’s legal position, and other circumstances provided by law.
Parole
Parole, also known as conditional early release, means releasing a convicted person before the sentence has been served in full where the conditions established by law are satisfied.
After the person has served the portion of the sentence specified by law, the following may be assessed:
- the nature of the criminal offense committed;
- the convicted person’s conduct while serving the sentence;
- disciplinary violations and incentives;
- participation in rehabilitation programs;
- attitude toward work and education;
- attitude toward the criminal offense and its consequences;
- compensation for the harm caused;
- family and social environment;
- prospects for housing and employment after release;
- possible risk of reoffending;
- the degree of the convicted person’s resocialization.
Serving the portion of the sentence specified by law does not automatically result in parole. The decision is based on an assessment of the convicted person’s individual circumstances.
Preparation for Parole
The lawyer:
- determines whether the convicted person has become eligible to have the matter considered;
- reviews the judgment and the calculation of the sentence;
- reviews information relating to the convicted person’s personal file;
- collects materials confirming family ties, housing, and employment prospects;
- presents documents concerning health and other important circumstances;
- prepares the convicted person’s resocialization and post-release plan;
- represents the convicted person’s lawful interests before the relevant authority;
- assesses the grounds for appeal in the event of an adverse decision.
When parole is being considered, the period of the sentence already served is not the only relevant matter. Circumstances demonstrating the convicted person’s rehabilitation and ability to return safely to society are also important.
Appeal of a Refusal to Grant Parole
If the authorized authority refuses to grant parole, the lawyer examines:
- whether the decision is properly reasoned;
- whether all important circumstances were assessed;
- whether the decision is formalistic or contradictory;
- whether the assessment criteria were applied correctly;
- whether the decision-making procedure was followed.
Where legal grounds exist, an adverse decision may be appealed in accordance with the procedure established by law.
Replacement of the Unserved Portion of a Sentence With a More Lenient Sentence
Where the prerequisites established by law exist, the replacement of the unserved portion of imprisonment with a more lenient sentence may be considered.
When making the decision, the following may be assessed:
- the portion of the sentence already served;
- the convicted person’s conduct;
- the degree of their resocialization;
- disciplinary record;
- family and social environment;
- post-release plan;
- other circumstances provided by law.
The lawyer determines whether the convicted person satisfies the relevant legal requirements and prepares the documents and justification necessary for consideration of the matter.
Release From the Sentence on Health Grounds
Where a serious illness or a particular health condition exists, a legal issue may arise concerning the continued serving of the sentence.
The lawyer:
- collects and reviews medical documentation;
- examines the diagnosis and severity of the illness;
- determines whether appropriate treatment can be provided in the penitentiary institution;
- requests an additional medical examination or expert assessment where necessary;
- prepares the relevant statement or motion;
- represents the convicted person’s interests before the authorized authority and the court.
A health condition does not automatically result in release. The medical and legal grounds established by law must exist.
Deferral of the Sentence
In cases expressly provided by law, the issue of deferring the enforcement of the imposed sentence may be raised.
When such a request is considered, it is important to determine:
- whether grounds for deferral provided by law exist;
- what circumstance prevents the immediate enforcement of the sentence;
- how that circumstance is substantiated;
- for what period and under what conditions the deferral may be applied.
The lawyer assesses the individual circumstances of the case and prepares the appropriate legal request.
Pardon
A pardon is an individual legal mechanism through which a convicted person may be fully or partially released from continuing to serve a sentence, or the sentence may be reduced. A person who has served their sentence may have their criminal record expunged by an amnesty act.
When a petition for pardon is being prepared, the following may be important:
- the circumstances of the criminal offense;
- the portion of the sentence already served;
- the convicted person’s conduct;
- health;
- family and social circumstances;
- compensation for the harm caused;
- the victim’s position;
- remorse and understanding of responsibility;
- the degree of rehabilitation and resocialization;
- other exceptional circumstances.
A pardon is not an automatic entitlement and is applied on the basis of an individual assessment.
Transfer of a Foreign Convicted Person to Another State
Where an applicable international agreement and legal grounds exist, the transfer of a convicted foreign national to another state to continue serving the sentence may be considered.
The process may require:
- the convicted person’s consent;
- appropriate decisions by Georgia and the receiving state;
- preparation of documents concerning the judgment and sentence;
- confirmation of citizenship and other legal conditions;
- compliance with international cooperation procedures.
A transfer does not occur automatically and depends on the legal framework applicable with the particular state and the decisions of the authorized authorities of both countries.
What Do the Services of a Lawyer for a Convicted Person Include?
The services of a lawyer for a convicted person or prisoner may include:
- meeting with the convicted person in a penitentiary institution;
- assessing matters related to the enforcement of the sentence;
- obtaining and reviewing medical documentation;
- requesting appropriate treatment;
- taking legal action in response to possible ill-treatment;
- appealing a disciplinary decision;
- assessing restrictions on visits and communication;
- requesting protective measures;
- providing representation in parole proceedings;
- requesting replacement of the unserved portion of the sentence with a more lenient sentence;
- preparing a request for release on health grounds;
- requesting deferral of the sentence;
- preparing a petition for pardon;
- assisting in the procedure for transferring a convicted foreign national to another state;
- appealing unlawful decisions;
- protecting the convicted person’s interests before the relevant authorities and the court.