RESTRICTIONS ON ACCESS TO COUNSEL

The criminal justice system continues to put great emphasis on "isolating" detainees in lockups and remand facilities during criminal investigations, and incommunicado detention continues to be a serious concern in Georgia. Visits from family members and other outside contact is severely limited during the pre-trial period and subject to the control of the procuracy. What is more, even defense lawyers often find it difficult to meet with their clients, and there are persistent complaints that investigators impede lawyers from visiting their clients, or in some cases, prevent detainees from retaining lawyers of their own choosing. The amendments to the criminal procedure code severely weakened judicial oversight of the power of the procuracy during the pre-trial period, and defendants face enormous hurdles in trying to submit evidence of ill-treatment or other rights violations. The near absence of judicial oversight prior to trial is particularly troubling, as this is the time when most torture and ill-treatment occurs.

The right to consult with a lawyer of one's choice is critically important, not only because of the procedural protection it affords defendants in the preparation of their defense, but also because it may be the only opportunity that a detainee has to inform another person of torture or other ill-treatment occurring in detention. In Georgia, where torture and other ill-treatment is routine, attempts by the procuracy to manipulate the family's or detainee's choice of a lawyer, or to impede a lawyer's access to her client, often appear specifically intended to prevent complaints about abuses from becoming known.

For instance, defendants accused of participation in the February 1998 assassination attempt against President Shevardnadze, a high-profile political case that involved a total of fourteen defendants, made several complaints regarding access to a lawyer. For example, Zurab Ejibia stood in court on the opening day of the Supreme Court's proceedings on August 12, 1999, and stated that, although he had been in detention for more than a year, it was the first time that he had seen the lawyer representing him.18 To Human Rights Watch's knowledge, Ejibia's court appearance was the first opportunity that he had had to make a public statement, and thus to complain about his lack of a lawyer during his lengthy period of pre-trial detention. Another defendant in the case complained that he had not been allowed to attend a preliminary hearing usually held several days before the trial starts. Tariel Bukia stated on the first day of the trial that the judge had been incorrect when he stated in court at a prior preliminary hearing (known as a planning session) that Bukia and other defendants had not wished to attend the preliminary hearing. In fact, according to Bukia, he had wanted to attend the preliminary hearing, but the authorities had not allowed him to be present.19 (It is unclear why Bukia, rather than his lawyer who was in the court room at the time, drew this complaint to the attention of the judge and the public.)

Restrictions on Consultation with Counsel

Under Georgian criminal procedure, defense lawyers are the only persons expressly allowed to visit detainees. The code contains no provision that expressly permits family members or others such as doctors to visit detainees, and any such visit requires the permission of the investigator handling the case, which is rarely granted.20 In fact, a lawyer is frequently the only person other than officials to see an individual while in detention awaiting trial. However, Human Rights Watch has received persistent complaints that procuracy and other investigators, employing a variety of tactics, prevent lawyers from visiting their clients.21

The Georgian criminal procedure code states that all detainees must be informed of their right to a lawyer from the moment they are detained, but it is vague as to whether the right to consult with a lawyer begins at that same moment, or only after the detained person is formally deemed a suspect. Under article 72 (3), the code requires that detaining authorities inform an individual immediately after detention regarding his right to consult with a lawyer. The code does not expressly state, however, that a detainee has the right to consult with a lawyer during this initial period of detention prior to being deemed a suspect. The code is explicit only about this right at the point when a detainee is deemed a suspect, and cites this right under "Suspect's Rights" in article 73 (1-d). However, article 73 (1-a) of the code allows an individual to be held in custody for a twelve-hour period without the requirement that the individual be officially deemed a "suspect."22

It is unclear whether the vague provisions of article 73 are actually used as the basis for denying detainees access to a lawyer. As discussed below, Human Rights Watch has ample evidence of detainees being denied access to a lawyer both during this initial detention period, as well as after the detainee has been formally deemed a suspect. In either situation, these practices clearly contravene Principle 17(1) of the U.N. Body of Principles, which states, "A detained person shall be entitled to have the assistance of a legal counsel. He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it." The Georgian government's failure to clarify in the new code that the right to consult with a lawyer begins at the time of detention is particularly troubling because this was a specific point of concern raised by the U.N. Human Rights Committee in its April 1997 review of Georgia's initial report on compliance with the International Covenant on Civil and Political Rights. The Committee stressed that "all persons who are arrested must immediately have access to counsel."23

Moreover, the code in article 73 (1-d), allows detainees to meet and consult with counsel in private, but not for longer than one hour per day. Under article 76 (2), all rights that apply to suspects also apply to defendants, so this daily restriction on the right to consult with counsel applies throughout the period of pre-trial detention and trial.

Even given these restrictions, there are reports that procuracy and other investigators use a variety of tactics to deny altogether or delay an individual access to an attorney. Lawyers state that they are often kept waiting at lockups or remand prisons, sometimes for hours, while authorities claim they are attempting to locate detainees. They noted that in some cases their client is not produced, even after a long wait; instead authorities instructed them to return the next day or on subsequent days. Lawyers also reported cases in which other tactics are employed.

Denial of Access to Counsel for "Witnesses"

One such tactic is the misleading classification of an individual who is in fact a suspect in a criminal investigation as a "witness." Prior to amendment, the 1998 code granted those who were deemed witnesses by investigators the right to have a lawyer present during questioning. However, the May and July 1999 amendments-including amendments to article 94 and article 305 (5)-abolished this right.

The provision appears to have been adopted in the new code to combat what defense lawyers say is a common tactic police use to deprive individuals of a lawyer and other rights that they should properly be accorded as suspects. By misleadingly classifying suspects as witnesses, procuracy and other investigators are able to deprive them of the right to counsel and other rights-such as to be informed of the offense they are under suspicion of having committed-to which suspects are entitled under the code. For instance, lawyers for Dato Natelashvili, a twenty-one-year-old Tbilisi resident, told Human Rights Watch that Natelashvili was picked up at his home at 8:30 a.m. on June 26, 1998 and taken in for questioning in his capacity as a witness.24 When his mother, Tamar Lomzadze, asked police about a lawyer for her son, police told her that he was in the police station for questioning only as a witness, and therefore there was no need for her to obtain a lawyer.25 At approximately 2:30 p.m., after almost six hours in custody, investigators officially deemed Natelashvili a suspect. It was only at that point that Mrs. Lomzadze learned that her son was actually suspected of having committed a theft and attempted to contact a lawyer.

In another case, a thirty-four-year-old convicted prisoner, Gotcha Patsuria was transferred from Ksani Corrective Labor Colony on August 25, 1999, to Investigative Isolator No. 5, a pre-trial detention facility at the Ministry of Internal Affairs headquarters in Tbilisi. Patsuria's mother, Tsira Patsuria, told Human Rights Watch that after the transfer she was not allowed to visit her son.26 Furthermore, she said, the procuracy investigator had rejected several requests by the lawyer she had retained to meet with her son because he had been designated a "witness" in an investigation.

On October 18, 1999, Patsuria's mother met with procuracy investigator Mamuka Guramia in the reception area of the General Procuracy in Tbilisi. She told Human Rights Watch that "They did not allow the lawyer to see him, and they did not bring the doctor to him...I asked the investigator to allow me to see him [her son], but he said my son was being kept as a witness."27 Tsira Patsuria stated that Guramia refused to acknowledge that her son was under suspicion of having committed any crime, even after she asked him directly what crime her son was suspected of having committed, and why her son had been moved to a pretrial detention facility and her visits to him had been denied by remand prison authorities. Patsuria's lawyer also told Human Rights Watch that investigators had not allowed him to meet with his client on the grounds that Patsuria had been classified as a witness.28

Tsira Patsuria believes that her son had been transferred, and had not been allowed to consult with a lawyer, as retribution for her attempts to seek the conviction of a police officer who had been acquitted of murdering another of her sons. She later reported that on November 26 or 27, the procuracy officially charged her son with assault, resulting in the death of the victim.29

The procuracy and other investigators have substantial coercive powers under the code regarding those they deem to be witnesses. Article 94 (3) of the code states that-under articles 370 and 371 of the criminal code-it is a criminal offense for someone considered a "potential witness" to refuse to provide testimony when ordered to do so by a procuracy or other investigator. Those who are deemed witnesses by investigators during criminal investigations are compelled directly into custody. Witnesses have the right to appeal their designation or complain about any mistreatment to higher-level procuracy officials, not to a court.

Access to Counsel of One's Choice

Human Rights Watch has also received numerous reports that procuracy investigators sometimes prevent detainees from being represented by the lawyer of their choice. Coercing detainees to accept state-appointed or other lawyers whodo not vigorously represent their interests appears in some cases specifically intended to prevent lawyers from making complaints of abuse known to the public.

For instance, Soso Baratashvili, lawyer for former Georgian Finance Minister Guram Absnadze, a defendant accused of involvement in the February 9, 1998 assassination attempt on President Shevardnadze, reported that his client had initially been coerced into accepting counsel not of his choosing. According to Baratashvili, his client was initially forced to accept a lawyer who, although not a state-appointed lawyer, had formerly worked as an investigator and did not represent Absnadze's interests.30 After Absnadze's extradition to Georgia in March 1999, officials showed Absnadze a list of lawyers and told him to pick one from the list, but Absnadze believed that none of those on the list would vigorously represent his interests. Absnadze's extradition from Russia and continued detention in Georgia, however, provoked numerous protests from nongovernmental organizations, and subsequently, he was allowed to retain Baratashvili, the counsel of his choice.

In the case of Dato Natelashvili, whose case is cited above, procuracy officials appear to have used a different tactic to deprive him of his right to a lawyer of his own choosing. Lawyers and family members alleged that this was intended to cover up his torture while in detention. In early November 1999, defense lawyer Zurab Rostiashvili told Human Rights Watch that the procuracy had designated him and his partner Mikhael Marchelashvili as "witnesses" in the criminal case against Natelashvili to preclude them from meeting with their client. They showed Human Rights Watch a summons from Tbilisi City Procuracy officials demanding that they appear at noon on November 24, 1999 at the procuracy offices. Procuracy officials then notified Natelashvili's mother that the lawyers had been removed from the case and told her to retain a different lawyer.31 The lawyers had submitted a complaint regarding this action to higher-level procuracy officials, as required by the code, but had received no response.

Natelashvili's mother, Tamar Lomzadze, told Human Rights Watch that she believed the procuracy's designation of the two lawyers as "witnesses" was solely a pretext to prevent them from seeing her son, who at the time was being held incommunicado in the lockup of the Tbilisi Main Police Department, a facility intended for uncharged detainees.

Natelashvili had been detained on June 26, 1999. After being charged with theft he had spent most of his detention in a remand prison for charged detainees, the Ministry of Internal Affairs Investigative Isolator No. 1 at Ortachala, but when his brother, Mikhael, went there on November 21 with a food parcel, he learned that authorities had transferred his brother to the temporary lockup on November 19 without having informed any family member of the transfer.

On November 22, Mikhael Natelashvili and his brother's two lawyers went to the Tbilisi Main Police Department and requested a meeting with Dato, but were denied a visit by authorities at the facility. "The head of the prison [lockup] said that he had orders from the investigator that we weren't allowed to meet with him. We complained to the procuracy about this," Rostiashvili said. It was then that the procuracy designated the two lawyers as "witnesses" in the case to strip them of their right to continue working on it, the lawyer noted. He added that he believed that officials had tried to remove him from the case because he had previously complained to investigators that they were reluctant to collect evidence and question witnesses that might exonerate his client.

On November 25, authorities allowed Natelashvili to meet with a new lawyer, Marina Pkhaladze, whom his family had retained. Pkhaladze told Human Rights Watch that during their morning meeting at the Tbilisi Main Police Department, Natelashvili was unable to sit upright without intense pain and began to cry uncontrollably.32 According to Pkhaladze, Natelashvili had told her that he was beaten and subjected to electric shock torture for two days after his transfer to the facility in order to coerce him to sign a confession to murder. Natelashvili asked that he be transferredfrom the facility, but expressed great fear of retaliation about making a complaint known to the authorities, according to Pkhaladze.

After the meeting, Natelashvili was transferred to a remand prison, and his lawyers subsequently obtained a written complaint from him addressed to prison authorities and the procurator general, dated November 30, 1999, stating that he had been beaten and tortured by application of electric shocks over a period of several days shortly after he had been moved from the remand facility to the lockup. The complaint requested that a forensic medical examination be performed.33 Human Rights Watch later forwarded a copy of this complaint to Georgian authorities, and subsequently received a response from the authorities stating that two of the lawyers had been designated witnesses because they had attempted to interfere with the investigation by tampering with a witness. The response noted that all three had thereafter been allowed to resume their work on the case. Yet, by February 4, 2000, no forensic medical examination had been performed on Dato Natelashvili, despite the complaint and request for such an examination he had submitted on November 30, 1999.34

Restrictions on Substitution of Defense Counsel

Article 83 (7) gives the procuracy the right to prevent individuals from substituting defense counsel during the criminal investigation if the procuracy determines that the reason for requesting the change is deliberately to delay the proceedings.35 An individual may not appeal this decision to a court, but only to higher-level procuracy officials during the lengthy period prior to trial.

The procuracy's power under article 83 (7) to preclude a detainee from changing representation prior to trial should be subject to judicial review, especially given the evidence discussed above that the procuracy often violates a detainee's right to have a lawyer of her own choosing as outlined in Principle 1 of the U.N. Basic Principles on the Role of Lawyers, which states, "All persons are entitled to call upon the assistance of a lawyer of their choice to protect and establish their rights and to defend them in all stages of criminal proceedings."

20 A new law, the Georgian Law on Imprisonment, went into effect on January 1, 2000, to effect the transfer of remand prisons and post-conviction facilities from the Ministry of Internal Affairs to the Ministry of Justice. The law contains no provisions allowing family members to visit pre-trial detainees, and stipulates that pre-trial detainees may only make telephone calls or receive correspondence with the permission of investigator, procurator, or court.

21 A number of international standards detail the right of detainees to consult with legal counsel. For instance, Principle 8 of the U.N. Basic Principles on the Role of Lawyers, states that, "All arrested, detained or imprisoned persons shall be provided with adequate opportunities, time and facilities to be visited by and to communicate and consult with a lawyer,without delay, interception or censorship and in full confidentiality. Such consultations may be within sight, but not within the hearing, of law enforcement officials."

22 Article 73 (1-a) states, "[A suspect has the right] within twelve hours of the moment of detention and of being brought to a police station or other body of inquiry, to obtain a copy of the decision on the opening of a criminal case, as well as copies of the notice finding him a suspect, and of the detention record."

23 Cited in United Nations, Concluding Observations of the Human Rights Committee: Georgia. 01/04/97. CCPR/C/79/Add.75. Paragraph 27. The U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, makes clear that the meaning of the term "to arrest," is the apprehension of an individual, stating under Use of Terms, "`Arrest' means the act of apprehending a person for the alleged commission of an offense or by the action of an authority."

24 Human Rights Watch interview with Mikhael Marchelashvili, Tbilisi, December 6, 1999.

25 Human Rights Watch interview with Tamar Lomzadze, Tbilisi, December 6, 1999.

26 Human Rights Watch interview with Tsira Patsuria, Tbilisi, October 19, 1999.

27 Ibid.

28 Human Rights Watch interview, Tbilisi, September 22, 1999. The lawyer asked that his name not be used, stating that it might damage his relations with procuracy investigators. He noted, "personal relations mean very much."

29 Human Rights Watch interview, Tbilisi, December 3, 1999.

30 Human Rights Watch interview, Tbilisi, July 23, 1999.

31 Human Rights Watch interview with Zurab Rostiashvili, Tbilisi, November 23, 1999.

32 Human Rights Watch interview, Tbilisi, December 6, 1999.

33 This complaint, and the response from the Georgian authorities is included in Annex 1 of this report.

34 Human Rights Watch interview with Zurab Rostiashvili, Tbilisi, February 4, 2000.

35 Article 83 (7) reads, "It is impermissible to substitute lawyers, if the challenge is intended to delay judicial proceedings, and is aimed at hampering them. In the case that substitution of lawyers is denied, the inquiry investigator, investigator, with the procurator's permission, issues a reasoned statement explaining their motivation, which can be appealed to a higher-level procuracy official within five days. A superior [procuracy] official is obliged to review such an appeal and issue a decision within seventy-two hours. Upon hearing a matter in court under similar conditions, a judge shall render a ruling."