Foreign nationals and criminal liability in Georgia: serving a sentence and replacing it with expulsion

This is not merely a technical amendment to criminal law. In effect, the state is building a link between the penitentiary system, the Ministry of Internal Affairs, the Migration Department and the mechanisms for monitoring the presence of foreign nationals in the country.

The amendments provide that a foreign convict sentenced to a fixed term of imprisonment may, after actually serving a set portion of the term, be expelled from Georgia instead of continuing to serve the sentence in a penitentiary institution.
This is not a full release from liability. It is a replacement of the unserved part of the sentence with another, more lenient type of punishment — removal from Georgia and an entry ban.

In other words, the state's logic is as follows: the foreign national has already served a certain part of the sentence in Georgia, but instead of continued detention in the penitentiary system the state may decide to remove them from the country's territory and restrict their ability to return.

The changes concern foreign convicts who have been sentenced to a fixed term of imprisonment.

Foreign convicts include:

• persons who are not citizens of Georgia;
• stateless persons holding the relevant status in Georgia.

At the same time, the mechanism does not apply to foreign convicts placed in a high-risk custodial facility, nor to convicts assessed as posing a high degree of danger.

Replacement is not possible immediately after the verdict. The law sets a minimum portion of the term that the foreign convict must actually serve.

1. For a less serious offence - no less than one third of the term.
2. For a serious offence - no less than one half of the term.
3. For a particularly serious offence - no less than two thirds of the term.

If the person was previously released on parole but the parole was revoked, or if the previously unserved part of the sentence had already been replaced with a more lenient punishment and that replacement was revoked, they will have to actually serve two thirds of the sentence imposed.

In addition, the term of imprisonment actually served must in any case be no less than three months.

An important feature of the amendments is that the matter does not depend entirely on the initiative of the convict.

If a foreign convict has actually served the portion of the term set by law, the penitentiary institution must immediately submit a request to the local council of the Special Penitentiary Service.

At the same time, the institution must notify the foreign convict of this.
If additional time is required to locate and process the necessary information, the request may be submitted within 7 days.

In practice this means that once the set term is reached, the question of replacing the sentence must be triggered as an administrative matter. The convict does not need to request the start of the procedure themselves, although they, their defence lawyer, legal representative or a close relative may submit additional information.

The matter is considered by the local council of the Special Penitentiary Service.
The council may take one of two decisions:

• refuse to replace the unserved part of the sentence;
• replace the unserved part of the sentence with a more lenient type of punishment - for a foreign convict, this punishment may be removal from Georgia and an entry ban.

If the council finds that it needs additional information from the convict, an oral hearing may be held.

When considering the matter, the council assesses not only the formal expiry of the required portion of the term.

The following are taken into account:

• the convict's behaviour while serving the sentence;
• the commission of offences in the past;
• the convict's personality;
• family situation;
• the nature of the offence committed;
• other circumstances shown while serving the sentence that affect the assessment of the situation.

If the matter specifically concerns replacing a foreign convict's sentence with removal and an entry ban, circumstances that may prevent removal must additionally be taken into account.

This is an important block, because expulsion cannot be applied automatically in every case.

Replacing the sentence with removal and an entry ban is not possible if there are grounds preventing removal.

In particular, the principle of non-refoulement must be taken into account.
This means that the state must not remove a person to a country where they may face persecution, torture, inhuman treatment or other serious risks incompatible with Georgia's international obligations.

Replacement is also not possible if extradition proceedings are being conducted in respect of the foreign national.

The opinion on whether circumstances preventing removal exist is issued by the Ministry of Internal Affairs of Georgia. For this, the local council of the Special Penitentiary Service applies to the Ministry, which must issue its opinion within 30 days.

Normally, replacing the unserved part of a sentence with a more lenient type of punishment requires the convict's consent.

But for foreign convicts a special exception is introduced.

If the matter concerns replacing the unserved part of the sentence with removal from Georgia and an entry ban, the foreign convict's consent is not required.

This is one of the key practical consequences of the amendments.

A foreign convict will not be able to block such a replacement simply because they do not agree to leave Georgia.

A council decision refusing to replace the unserved part of the sentence may be appealed to court under administrative procedure.

At the same time, appealing a decision to replace a foreign convict's sentence with removal and an entry ban does not suspend the enforcement of the removal.

This means that a court appeal will not always be an effective tool for temporarily keeping a person in Georgia until the case is resolved.

In practice, this makes it especially important to work with evidence already at the stage when the council considers the matter: information about family ties, removal risks, the circumstances of residence, possible obstacles to expulsion and other significant facts must be submitted in good time.

If the council refuses to replace the unserved part of the sentence with removal and an entry ban, the matter may be reconsidered after 6 months.

There are exceptions:

• if the remaining term of the sentence does not exceed 6 months;
• if there is a special circumstance.

At the same time, the question of replacing a foreign convict's sentence with removal and an entry ban must be reviewed regularly - once every 6 months.

If the remaining term of the sentence does not exceed 6 months, the council considers the matter on the basis of a written application from the foreign convict.

Once the decision is taken, the penitentiary institution must immediately notify the relevant structural unit of the Ministry of Internal Affairs of Georgia about the release of the foreign convict whose sentence has been replaced with removal and an entry ban.

The actual enforcement of the removal is carried out by the Migration Department of the Ministry of Internal Affairs of Georgia.

As a result, the procedure is distributed among several bodies:

• the penitentiary institution initiates the request;
• the local council of the Special Penitentiary Service considers the matter and takes the decision;
• the Ministry of Internal Affairs checks for obstacles to removal;
• the Migration Department of the Ministry of Internal Affairs carries out the actual expulsion.

These changes show the general direction of regulation: Georgia is strengthening control over the presence of foreign nationals not only through visas, residence permits and administrative fines, but also through criminal-enforcement and investigative mechanisms.

For foreign nationals, this leads to several practical conclusions.

1. First, criminal liability in Georgia may carry not only the usual consequences in the form of punishment, but also migration consequences: removal and an entry ban.
2. Second, if a foreign national has already been convicted and is serving a sentence, the state may raise the question of their expulsion without their consent.
3. Third, appealing a removal decision does not always suspend its enforcement.
4. Fourth, when the question of replacing the sentence is considered, decisive weight will be given to evidence confirming obstacles to removal, family ties, risks of returning to the country of origin and other individual circumstances.
5. Fifth, a foreign national's migration status, the lawfulness of their stay, the absence of violations and correct interaction with state bodies become even more important.

The amendments create a new mechanism at the intersection of criminal, penitentiary and migration law.

A foreign convict who has actually served the set portion of the term of imprisonment may be expelled from Georgia with an entry ban instead of continuing to serve the sentence.

The procedure is initiated by the penitentiary institution, the decision is taken by the local council of the Special Penitentiary Service, the Ministry of Internal Affairs checks for obstacles to removal, and the Migration Department of the Ministry ensures the actual enforcement of the expulsion.

Key features of the new mechanism:

• the foreign convict's consent to such a replacement is not required;
• a court appeal does not suspend the enforcement of the removal;
• the matter must be reviewed regularly;
• the principle of non-refoulement and other obstacles to expulsion must be taken into account;
• the Ministry of Internal Affairs and the Migration Department gain a broader role in the area of migration control.

The main takeaway: for foreign nationals, a criminal case in Georgia may now have not only criminal-law but also direct migration consequences - up to and including expulsion from the country and a ban on returning.