Journal of Constitutional Law (Nov 2022)
Importance of Refusal to Give Evidence and of Indirect Evidence in Domestic Violence and Domestic Crime Cases
Abstract
Despite significant legislative and institutional changes in recent years, combating violence against women and domestic violence remains a challenge. Given the increasing number of facts of domestic violence in the country, in some cases, perpetrators go unpunished, as domestic violence cases are generally characterised by a lack of evidence, and it is difficult to obtain direct evidence, especially where the victim uses the constitutional right and refuses to testify against the perpetrator who is their close relative. Although the Supreme Court of Georgia has repeatedly noted in recent years that due to the specific nature of a domestic crime, even if no victim’s testimony or document confirming the absence of claims of the victim against the accused is adduced to the case, the issue of liability of the accused must be decided based on other evidence, yet the practice of the common courts shows that special attention is paid to the victim’s testimony in rendering judgments of conviction in such cases, especially where, by the judgment of the Constitutional Court of Georgia of 22 January 2015, it is inadmissible to render a judgment of conviction based on indirect testimony. In addition, because it is usually difficult to obtain direct evidence in domestic violence and domestic crime cases, in practice a guilty verdict is to some extent prevented by the provision of the Criminal Procedure Code of Georgia being narrowly interpreted by the Supreme Court, according to which a judgment of conviction should only be based on a “body of consistent, clear and convincing evidence”, which is interpreted by the court as requiring at least two pieces of direct evidence. To facilitate a better administration of justice, this Article will review the criminal law of common law countries in relation to victim testimonies. In addition, the decisions of the Supreme Court and the Constitutional Court will be analysed to illustrate existing jurisprudence in Georgia.
