Chronology of Amendments to the Code
Georgia has an abysmal record of torture and other ill-treatment in pre-trial detention and of unfair trials. Over the past several years, Georgian nongovernmental organizations, Amnesty International, Human Rights Watch, and other organizations have documented numerous instances of police brutality, torture, and deaths in custody in Georgia.1 These reports include instances in which the government's political opponents have been subject to torture and deprived of fair trials. For example, the U.N. Human Rights Committee, the treaty-monitoring body established under the International Covenant on Civil and Political Rights (ICCPR), a treaty binding on Georgia, in May 1998 found in favor of four defendants. The four, all supporters of former president Zviad Gamsakhurdia, reported that they had been tortured, and that their right to choose their lawyer freely was denied. The Human Rights Committee in its consideration of the cases of Victor Domukhovsky, Zaza Tsiklauri, Petre Gelbakhiani, and Irakli Dokvadze, found that all four had been tortured, and that, in addition, Gelbakhiani and Tsiklauri had been denied the right to be defended by counsel of their own choosing by being forced to accept state-appointed lawyers.2
Torture in Georgia is not confined solely to political cases. Those suspected of ordinary criminal offenses also frequently report that they have been tortured. Further, corruption is rampant in Georgian law enforcement, and cases include incidents of arbitrary detention, followed by torture, and then extortion of family members to gain a detainee's release from custody. Physical abuse and police brutality have also been used against journalists, members of human rights organizations working to combat torture, members of nontraditional religious organizations, and those advocating the rights of minority ethnic groups such as Meskhetians. In many of these cases, victims faced reprisals and harassment by police or other officials for bringing the incidents to public attention, or for attempting to seek legal redress.
Georgian and international human rights organizations, alarmed by the great frequency of reports of torture and of impunity for such abuse, have repeatedly called on the government to adopt the comprehensive measures necessary to combat it. For its part, Human Rights Watch called on Georgian President Eduard Shevardnadze in April 1999 to formulate and to present for public discussion a comprehensive government plan to combat torture and ill treatment. This, we said, should include an end to tolerance of torture and other abuses by senior government officials, vigorous prosecution of perpetrators, including prosecution of responsible senior officials higher up in the chain of command; punishment befitting the seriousness of the crime; a commitment to make public the results of all investigations; and further reform of the criminal justice system, including reform of the police and other security forces involved in criminal investigations, of the procuracy and of the judiciary.
In February 1998, President Shevardnadze signed a new criminal procedure code, legislation outlining the rights of persons under investigation for criminal offenses and delineating the respective roles of police and other law enforcement agencies, the security forces, and the courts while carrying out criminal investigations and trials. The new code was drafted after substantial consultation with defense lawyers actively working in the area of criminal law, and it contained numerous safeguards and reformed procedures intended to ensure the rights of those involved in criminal investigations. On May 15, 1999, the new code went into force in Georgia, replacing the Soviet-era 1961 code. The adoption of the new code, along with measures to reform the court system, raised hopes that these steps wouldcontribute to ending the practice of torture and unfair trials that have plagued Georgia, and that they would provide appropriate remedies in cases of abuse.
Yet, more than a year after the new code went into force in May 1999, there has been no discernible improvement in Georgia's record on torture. Reports of torture continue unabated-most involve individuals who are detained and abused shortly afterwards in police lockups, or who, while awaiting trial, were transferred from remand facilities to police lockups during the course of the criminal investigation. Other cases involve police beatings of detainees before they arrive at lockups-and some such beatings have resulted in deaths of detainees. A recent case provoked considerable media attention and strong protests from Georgian nongovernmental organizations because of the brazenness with which police acted, and the apparent lack of fear that they would be identified and punished. The case concerned Davit Vashakmadze, a Tbilisi resident, who pulled over the car he was driving near Freedom Square in downtown Tbilisi to answer a mobile telephone call on the evening of November 13, 1999. He and his companion were then approached by two police officers who, after Vashakmadze failed to produce his car registration, took them to a nearby location on the bank of the River Mtkvari, a popular night spot lined with restaurants, and brutally beat them for several hours. Other police officers also arrived at the scene and joined in the beating. A woman working at one of the nearby restaurants, hearing the victims' screams, approached the group to inquire what was going on, but was told by police to mind her own business. Vashakmadze died two days after the beating; his companion, Zaza Buadze, survived, but sustained serious injuries.3 Although the vast majority of cases involve severe and brutal beatings by the police inside detention facilities, more recently Human Rights Watch has also received persistent reports of the use of electric shock torture in facilities such as the Tbilisi Main Police Department.
In the period leading up to Georgia's admission to the Council of Europe, Georgian government officials cited the new code, signed by the president in February 1998, as an example of Georgia's willingness to put past abusive practices behind it, and of its readiness to adhere to international standards. Georgia gained admittance to the Council of Europe on April 27, 1999.
But on May 13, 1999, before the new code had even gone into effect, the parliament of Georgia adopted the first of a series of amendments. On May 13 and 28, 289 amendments were adopted; shortly thereafter, on July 22 and 23, the parliament adopted sixty-three additional amendments. Taken together, these amendments altered or replaced nearly half of the new code.4
As part of Georgia's accession process, the code, along with other legislation, was submitted in draft form to the Council of Europe for comment.5 Such reviews are intended to ensure that the domestic legislation of applicant countries conforms with the European Convention, and with standards developed in the case law of the European Court of Human Rights. After countries ratify the European Convention, citizens may forward complaints alleging violationsof the European Convention to the European Court in Strasbourg, once they have exhausted attempts to obtain redress through their own legal systems.6
In meetings with Human Rights Watch, Georgian government officials denied that the amendments were substantive, instead claiming that they were intended solely to correct technical mistakes made in the initial drafting of the code.7 Other officials told Human Rights Watch that concerns it raised in a September 9, 1999 letter to the Council of Europe regarding the erosion of defendants' rights as a result of the amendments, reflected a "misunderstanding" of the amendments on the part of Human Rights Watch.8 Later, officials failed to address the issue when Human Rights Watch wrote to the government regarding cases of abuse, noting the code's failure to provide detainees with access to the courts to hear the complaints detailed.9 Similarly, government officials did not respond to concerns raised by Georgian nongovernmental organizations, such as Article 42, a Tbilisi-based organization of lawyers providing pro bono legal assistance, who held a press conference on November 17,1999, to call attention to the erosion of defendant's rights.
When the new code was signed by the president in February 1998, it did not fully comply with international standards.10 However, the new legislation, taken in its entirety, had been a significant and serious attempt to introduce reforms to Soviet-era criminal procedure, specifically to balance the powers of the prosecution and defense (the principle of equality of arms) during criminal proceedings, and to eliminate procedures that facilitate torture in a criminal justice system that heavily relies on confessions to secure convictions. The new code allowed an individual under criminal investigation, or others involved in a criminal investigation, to submit a complaint of abuse by law enforcement officials to a court of law for review. Individuals who were under investigation would have enjoyed this right from the moment authorities officially designated them to be suspects in the criminal investigation-which for those held in detention, must occur no longer than twelve hours after being taken into custody. However, the May and July 1999 amendments effectively abolished the newly recognized right to obtain such judicial review before it could even be implemented. Because a suspect or defendant is severely hampered from submitting allegations of ill-treatmentor violations of procedural rights to independent judicial review, the procuracy, police, and other security forces are able to continue to commit such abuse with impunity.
Under article 66 of the code, designated staff of certain governmental agencies are authorized to conduct an inquiry-the first step of a criminal investigation-to determine if a crime has been committed. These agencies are the Ministry of Internal Affairs, the Ministry of State Security, the Special State Security Service (known informally as the Presidential Guard),11 the Border Guard, commanders of military units, wardens of remand and post-conviction facilities, the tax service, the customs services, and ship captains at sea.12 Procuracy officials dealing with crimes under their jurisdiction also have the power to conduct inquiries.
The Ministry of Internal Affairs may conduct inquiries into all crimes, except those that are referred to another agency's jurisdiction. The procuracy supervises the actions of those empowered to conduct inquiries, and settles all questions regarding jurisdictional disputes, under article 56 of the code. The code refers to the designated staff of those agencies empowered to conduct inquiries as inquiry investigators. The commanders of military units, for example, are empowered to conduct inquiries regarding crimes committed by their subordinates in the military unit, and any crimes that might involve civilians but that occur on the territory of their units.13
Once it is determined that a crime has been committed, and a suspect is charged, an investigator from one of three agencies-the Ministry of Internal Affairs, the procuracy, or the Ministry of State Security-is responsible for gathering evidence for trial in the next stage of the investigation, known as the preliminary investigation.
Which agency is ultimately responsible for conducting the preliminary investigation is determined by the type of crime, as outlined in article 62 of the code. The investigators of the Ministry of Internal Affairs have jurisdiction over crimes such as assault, theft, and production, transport, and possession of illegal drugs.14 Procuracy investigators are tasked with investigating what are considered serious violent crimes, such as murder and rape involving civilians, aswell as crimes involving most law enforcement and other government officials, which may involve such offenses as illegal detention of citizens, abuse of authority, and bribery. The military procuracy, an office subordinated to the Procuracy General, carries out the preliminary investigation of crimes allegedly committed by certain special units of law enforcement, the armed forces, and other security force personnel.15
Meanwhile, investigators of the Ministry of State Security are responsible for the investigation of crimes such as treason, public disclosure of state secrets, terrorist acts and sabotage of state-owned industrial facilities or other infrastructure, the import, export or transit of illegal drugs or nuclear weaponry, and illegal border crossing.
After the inquiry, the responsible investigator brings charges against a suspect, with the sanction of the procuracy. Under the code, a judge must rule within seventy-two hours of an arrest on the lawfulness of the individual's detention. The code does not make it obligatory for a detainee or a defense lawyer to be present at such a hearing, and the detainee and defense lawyer may waive their presence if the detainee so chooses. At such a proceeding, the judge rules on whether the type of "restraining measure" requested by the investigator is appropriate to the crime the individual is alleged to have committed. Restraining measures include pre-trial detention, being freed on bail, release under police or other supervision, or being freed on another's recognizance.
Once the preliminary investigation is concluded, which can take as long as nine months if the individual has been detained, the defense is presented with the full case file containing all evidence that has been collected by the investigator. The defense may petition the investigator to collect further evidence or question additional witnesses. The case is then forwarded to a court for trial, which the code considers a court investigation.
Georgia's Court System
The court system is composed of district (city) courts, which serve as first instance courts for most cases depending on the offense charged, regional courts (located in Tbilisi and Kutaisi), the high courts of the autonomous republics of Abkhazia and Adjaria, and the Supreme Court. Only the Constitutional Court adjudicates alleged violations of constitutional rights, and issues arising from incompatibility with the constitution. Cases involving crimes committed by members of the security forces are heard in the civilian courts under the same procedures outlined in the code for civilians, and no special military courts exist.16
A high-profile reform of the Georgia court system is currently under way with the assistance of the international community, including the World Bank. The reform includes such measures as qualification examinations and training for judges and measures to improve administration of the court system to enable it to better handle its case load. Presently the Georgian court system continues to be widely criticized by defense lawyers and others as being heavily subject to executive influence, unwilling to respond appropriately when confronted by even blatant prosecutorial misconduct, and for endemic corruption among judges. Because judicial corruption has been a problem in Georgia, judges have been granted substantially higher salaries than most civil servants. However, reports that judicial salaries are several months in arrears had raised concern that this anti-corruption measure may prove ineffective.17 Nevertheless, defense lawyers have told Human Rights Watch that the reform efforts have occasionally resulted in improvements in some judges' responses to prosecutorial misconduct when such issues have been raised at trial.
1 See for example, Amnesty International, Georgia: Continuing Allegations of Torture and Ill-Treatment (London: Amnesty International, February 2000), EUR 56/01/00.
2 After finding that the detainees had been tortured, the Human Rights Committee stated that the four were entitled to be released. Tsiklauri and Domukhovsky were subsequently released, but as of early February 2000, Gelbakhiani and Dokvadze remained imprisoned. U.N. Human Rights Committee, May 29, 1998, Communications No. 623-624 & 626-627/1995: Georgia. 29/05/98. CCPR/C/62/D/623, 624, 626 &627/199. (Jurisprudence).
3 The details of this incident, widely reported in the Georgian media, were confirmed by Mr. Buadze's lawyer Mamuka Chabashvili, in an interview with Human Rights Watch in Tbilisi in April 2000. Mr. Chabashvili told Human Rights Watch that after the incident one police officer had been administratively detained, and that upon request of the Buadze family, he had petitioned the procuracy to open investigations into the participation of two other police officers. Media articles regarding the incident include, "Crime Demands Criminal's Punishment," Dilis Gazette, November 22, 1999. Tbilisi, Georgia.
4 On May 4, 2000, the president signed into law a further 129 amendments to the code which the parliament had adopted at the end of April. These amendments do not significantly alter or address any of the concerns raised in this report. Rather, some of these new amendments raise further concerns. For instance, article 429 (2) was amended to limit in certain cases the period during which participants, including the defense, may examine case materials at the conclusion of the preliminary investigation phase of a criminal investigation. If the defendant had no lawyer or a different lawyer during the preliminary investigation, the defense is now limited to a maximum period of ten days, or in especially complex cases thirty days, to examine all case materials collected by the prosecution prior to the commencement of a trial. This raises concern that defendants in some cases will have insufficient time to review thoroughly all evidence against them, and prepare an adequate defense.
5 Human Rights Watch interview with Caterina Bolognese, Directorate of Legal Affairs, Council of Europe, Strasbourg, June 23, 1999.
6 Notably, the European Convention requires that the domestic remedy be effective. Article 13 of the European Convention states: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. In certain cases involving torture, the European Court has ruled that it is not necessary to exhaust domestic remedies before an individual may apply for relief. In the case of Aksoy v. Turkey (judgment of 18 December 1996, 100/1995/606/694), the European Court, found a violation of article 13, inter alia. It held that a prosecutor took no action, although aware of injuries and under duty to investigate, and as such the individual was absolved from the obligation to exhaust domestic remedies. The European Court reiterated that, "Where an individual has arguable claim to have been tortured by agents of the State, the notion of `effective remedy' entails, in addition to payment of compensation where appropriate, thorough and effective investigation capable of leading to identification and punishment of those responsible."
7 Human Rights Watch interview with Mikhael Saakashvili, member of parliament and leader of the parliamentary faction representing Georgia's ruling party, the Citizen's Union, Tbilisi, August 1999. Saakashvili had been chairman of the parliament's legal committee during debate and adoption of the criminal procedure code.
8 Human Rights Watch interview with Lana Gogoberidze, Georgian ambassador to the Council of Europe, Council of Europe Parliamentary Assembly session, Strasbourg, September 20 to 25, 1999.
9 See for example, Annex 1: Natelashvili Complaint and the Government of Georgia's Response, in this report.
10 In analyzing the human rights violations described in this report, Human Rights Watch examined not only the international human rights treaties to which Georgia is a party, but also other norms of international law, which are not treaties and therefore not binding, but which do offer authoritative guidance and reflect international consensus as to the manner in which states should comply with their human rights obligations. These include, for example, the U.N. Standard Minimum Rules for the Treatment of Prisoners, the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and the U.N. Basic Principles on the Role of Lawyers.
Georgia is a party to two treaties that focus exclusively on the prohibition of torture and two others that include an express prohibition against this human rights violation. They include the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment, the International Covenant on Civil and Political Rights, and the European Convention for the Protection of Human Rights and Fundamental Freedoms.
11 The Special State Security Service is responsible for providing on-site security of oil-related infrastructure and facilities, according to The Armed Forces in Georgia, (Washington, D.C.: Center for Defense Information, March 1999) p. 28. Article 66 (2-I) of the code empowers this body to conduct inquiries of crimes committed by its own personnel, and inquiries into crimes involving the objects that it guards.
12 As of January 1, 2000, remand prisons and post-conviction penitentiaries are under the responsibility of the Ministry of Justice.
13 For those serving under his or her command, the commander of a military unit has discretion to determine if an incident or action should be considered a disciplinary offense or a criminal offense. If the commander determines that it is a criminal offense, he or she will then forward the case to the military procuracy, an office subordinated to the general procuracy. Investigators from the military procuracy carry out the preliminary investigation according to procedures outlined in the code, and the case is heard in the civilian court system.
Nongovernmental organizations report that the discretion to decide whether or not an offense is disciplinary is frequently abused. For instance, due to vagueness in regulations governing disciplinary offenses, a commander may initially improperly designate the offense as a disciplinary one to escape the obligation to adhere to time limits for detaining individuals without charge and other provisions in the criminal procedure code, which are intended to protect detainees and which would have been applicable if the offense had been properly designated as criminal from the outset.
14 On June 1, 2000, a new criminal code went into force in Georgia. As per new jurisdictions, assault refers to article 125 of the criminal code, theft (article 177) , and production, transport, and possession of illegal drugs (article 260). Crimes investigated by the procuracy include, murder (article 108), rape (article 137), illegal detentions of citizens (article 147), abuse of authority (article 333), and bribery (articles 338 and 339). Offenses within the jurisdiction of the Ministry of State Security include treason (article 307), public disclosure of state secrets (article 313), terrorist acts such as bombings (article 323), sabotage of state-owed facilities or infrastructure (article 318), the import, export or transit through Georgia of illegal drugs (article 262), offenses related to illegal possession or production of nuclear weaponry (articles 230-235) and illegal border crossings (article 334).
15 There are no special military courts in Georgia and all crimes are investigated and tried in front of civilian courts, according to procedures outlined in the code.
16 Special martial courts may be created during war within the system of regular courts according to the Organic Law of Georgia on the Courts of General Jurisdiction.
17 "Judges Demand Their Salaries," Caucasus Press, January 7, 2000. Mikhael Saakashvili, leader of the ruling Citizens Union parliamentary faction, is quoted in the report as stating, "Leaving judges without salaries, we push them to corruption."