Human Rights Watch values its cooperative dialogue with the government of Georgia on human rights issues. We are writing in the spirit of this cooperation to express concern about the proposed amendment to the Law on Imprisonment regarding punishment of prisoners. We believe the amendment, in the draft that cleared first reading in the parliament, is incompatible with the European Convention on Human Rights (ECHR), to which Georgia is a party.

As you may be aware, in September 2006 Human Rights Watch published a report on the condition of prisons in Georgia (Undue Punishment: Abuses against Prisoners in Georgia). In the report and in subsequent correspondence with the Ministry of Justice we document various violations of prisoners’ rights in Georgia’s prisons. We also appreciate the problems facing prisons in Georgia, and understand the need for an effective system of prison discipline. However, Human Rights Watch believes that the approach to prison discipline set out in the draft amendment risks exacerbating overcrowded and often inhuman conditions in the prison system, one of the key problems documented in the report. Moreover, having carefully studied the draft amendment we believe it would violate the European Convention on Human Rights (ECHR). Therefore, if adopted, the law would bring Georgia in violation of its international legal obligations.

The draft amendment proposes that prisoners who are deemed to have committed either a gross violation of an internal prison regulation, failed to fulfill a legal order of a relevant prison official or insulted a prison official, where that act does not amount to a criminal act, be subject to punishment of extra days of imprisonment, termed “administrative detention” of between 10 – 90 days.

If the Prison Director, or a person lawfully designated by him, considers that a prisoner has committed the offending behavior, he may issue an order on administrative detention and have it validated by the court. The draft amendments provides that any written submissions by the accused prisoner, any witness, and the alleged victim, are to be attached to the detention order presented to the court, but provides no information in relation to how the right of the prisoner to have written submissions included is to be exercised or safeguarded.

Upon presentation of the Director’s order to the court, a hearing is conducted by a single judge to determine whether the order should be enacted. The draft amendment makes reference to an open hearing on the matter, but makes no explicit provision for what, if any, rights the prisoner has to be present at the hearing, to make oral submissions, to call witnesses, or to have legal representation. It is also unclear whether the judge has a right to interrogate the prisoner or the victim and to call witnesses. The judge’s decision is subject to appeal before a panel of 3 judges. It appears from Article 9 (4) (1) of the draft amendment that when lodging an appeal, a prisoner may have access to some form of representation, but not necessarily legal representation. Furthermore, nowhere in the draft amendment is there reference to any right to legal counsel.

For the reasons set out below, the draft amendment contravenes both Articles 5 and 6 of the ECHR, and should either be withdrawn or extensively amended if it is to proceed to adoption.

Compatibility with Article 5

Article 5 of the ECHR guarantees everyone the right to liberty and security and provides that no one shall be deprived of their liberty except by a procedure provided for in law, and for certain and exhaustive purposes set out in the Convention. The proposed amendment clearly provides for a new deprivation of liberty imposed for punitive reasons after a finding of culpability, over and above the sentence which a prisoner was given at the time of original conviction. Article 5 therefore clearly applies to the deprivation of liberty provided for in the draft amendment. The “administrative detention” time proposed cannot claim to be lawful under Article 5 by virtue of the fact that the persons on whom it will be imposed are already detained, because the “administrative detention” time has no causal link to the original conviction as is required by the ECHR (See Van Droogenbroeck v. Belgium, June 24, 1982). Therefore unless the additional days of detention are imposed in a manner which constitutes a period of “lawful detention … after conviction by a competent court”(Article 5 (1)), the detention will be arbitrary and incompatible with Article 5 (See Weeks v U.K. March 2, 1987).

The process set out in the draft amendment for the detention does not comply with the ECHR requirements under Article 5 (1) and therefore cannot be considered lawful.

Vagueness

The European Court of Human Rights has been very clear that in order to be lawful, any rules relied upon to deprive individuals of their liberty must be sufficiently precise and cannot be overly vague (Baranowski v. Poland, March 28, 2000 and Jėčius v. Lithuania July 31, 2000). Under the draft amendment, the offenses for which the person can be subject to administrative detention are arguably overly vague in relation to what constitutes a gross violation of an internal prison regulation or an insult to a prison official; the latter in particular is open to subjective and arbitrary interpretation.

Even if the offense were deemed to be sufficiently precise, the manner in which the punishment of imprisonment for the offense can be imposed does not meet the due process standards required by the ECHR.

Compatibility with Article 6

Article 6 of the ECHR requires that anyone facing a criminal charge receives a fair and public hearing within a reasonable time before an independent and impartial tribunal. Article 6 sets out specific safeguards for those facing such charges. Although the draft amendment specifically provides that the offending behavior leading to detention should not be criminal, and calls the imprisonment “administrative detention,” whether something is an “offense” for the purpose of Article 6 of the ECHR does not depend on the domestic classification of the offense. Instead, according to the ECHR case law, the nature of the offense and punishment as whole must be considered to determine whether it is akin to a criminal charge (Engel v the Netherlands, November 23, 1976).

With respect to the proposed amendment, although the offense as a matter of domestic law is classified as non-criminal and the offense can be committed only by prisoners and not all citizens, the punishment by imprisonment of up to 90 days is not consistent with an offense of a purely disciplinary matter. As pointed out above, the imposition of additional days of detention constitutes a fresh deprivation of liberty imposed for punitive reasons after a finding of culpability. As a substantial period of imprisonment may potentially be imposed, the ECHR case-law makes clear that the presumption is the offenses are criminal (see Ezeh and Connors v United Kingdom, October 9, 2003). Therefore Article 6 is applicable to the proposed amendment.

We would therefore ask you to clarify, with reference to relevant provisions in Georgian law, how the following rights to which the prisoner is entitled will be met, should the amendment be adopted:

a) Will the prisoner be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him?
b) Will the prisoner have adequate time and facilities for the preparation of his defense?
c) Will the prisoner have the right to legal representation?
d) Will the prisoner enjoy the right to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him?
e) Will any prisoner have the free assistance of an interpreter if so required?

Conclusion

The proposed amendment to the Law on Imprisonment, as currently drafted, is not compatible with Articles 5 and 6 of the European Convention on Human Rights. If the amendment were to be adopted and implemented, any prisoner subject to “administrative detention” pursuant to it, would be entitled to compensation for unlawful detention in accordance with Article 5 (5) of the ECHR. If the Georgian government wishes to proceed with the amendment it should take the following steps in order to bring the amendments in line with the ECHR:

1. Clarify the exact acts and behavior which would make a prisoner liable to the prescribed punishment, and ensure that behavior such as “insulting” a prison officer is not open to subjective and arbitrary interpretation.
2. Provide in law that extra days imprisonment shall only be imposed as a punishment as a matter of last resort where other forms of sanctions have been exhausted or deemed inappropriate.
3. Where a prisoner faces additional days of imprisonment provide in law that these can be imposed only by a court following a full hearing, whereby the prisoner has been afforded an opportunity to understand the nature and cause of the accusation against him, adequate time and facilities for the preparation of his defense, the right to legal representation, and the right to call and examine witnesses.

Human Rights Watch urges the Georgian authorities to withdraw the amendment and to reconsider reforms and improvements to prison discipline that are human rights compatible. Human Rights Watch is particularly concerned about the implications of having redress to imprisonment as a punishment where Georgian prisons already suffer from severe overcrowding and conditions which are often inhuman and degrading.

I thank you for your attention to this matter.

Sincerely,

Holly Cartner
Executive Director
Europe and Central Asia division