Under the code in effect prior to May 15, 1999, those under criminal investigation, or those deemed by the authorities to be involved in criminal investigations, such as witnesses or victims, did not have the right to submit a complaint to a court of law. However, in a significant departure from Soviet-era criminal procedure, under the 1998 code, provision was made for criminal suspects, defendants, witnesses, victims, experts, court translators and certain others to submit complaints to the courts during the pre-trial period.
Article 73(j) stated that criminal suspects had the right "to make complaints to a procurator or a judge about the acts and decisions made by an inquiry investigative body, inquiry investigator, or investigator."66 This right also applied to criminal defendants (article 76(2)). Other participants, such as witnesses, victims and experts in the criminal investigation would also have enjoyed this right under other provisions of the code.67
Backtracking on Pre-trial Access to Courts
However, the May and July 1999 amendments severely eroded these rights during the criminal investigation. For example, a May 28 amendment to article 73 of the code abolished the right of suspects to petition a court about procedural irregularities or ill-treatment committed by the police, procuracy, or other investigator before trial.68 Under the code, defendants have the same rights as suspects. Thus, the May amendments required detainees during the pre-trial period to submit any complaint first to the investigator handling the case, then to higher-level procuracy officials for review, and if the procuracy failed to satisfy the complaint, only then to a court of law.
However, a second set of amendments, adopted on July 22, 1999 revoked entirely the suspect's right-previously guaranteed under article 232 (8) of the 1998 code-to petition a court if the procuracy failed to satisfy a complaint.69 Similarly, an amendment adopted on July 22, 1999 precluded individuals from submitting a civil suit to attempt to overturn a procuracy decision during a criminal investigation except in those cases established in the code.70
The circumstances in which a defendant has direct access to a court during the pre-trial period are outlined in article 140, which governs the conduct of court proceedings to review the lawfulness of detention (see below), and in article 242 (1-3), which states that a court can be approached after the procuracy declines a petition regarding the confiscation of property, or declines a petition requesting that a criminal case either be opened or halted. However, all other types of complaints of procedural violations-such as a detainee alleging that he has been denied access to a lawyer or a forensic medical examination-are not heard by a court, but by procuracy officials, during the pre-trial period.
Thus, under current Georgian criminal procedure, any complaint alleging misconduct by a police or other investigator during the pre-trial period must be submitted first to the investigator handling the case, and then subsequently may be submitted to higher-level procuracy officials. However, during the pre-trial period, the complaint cannot be submitted directly to the court except in the very limited cases discussed above.
In practice, this means that, in many cases, the official who allegedly committed the violation is the person who initially hears and decides the detainee's complaint. Thus, an investigator who may have assaulted a detainee is the official responsible for determining whether or not that detainee is allowed to have a forensic medical examination that could prove the abuse. And when the investigator refuses to permit such forensic examinations, the detainee's appeal against this decision is decided by a higher level procurator-the investigator's superior. The close relationship between the investigator and the superior inevitably means that detainees are reluctant to file complaints.
The absence of judicial oversight is particularly troubling since defendants may be detained for up to nine months during the pre-trial period (article 162). For those who are not detained, but under investigation, the procurator general may extend the investigation period indefinitely (article 271 (4-d)). During these periods, they are inevitably open to abuse by investigators and other officials, yet have no effective means of appeal or redress.
Judicial Review of the Lawfulness of Detention
In theory, a detainee's first appearance before a judge-at the hearing to determine the lawfulness of detention-could provide an individual with the opportunity also to submit a complaint about physical ill-treatment or violations of procedural rights, and therefore serve as a check on ill-treatment and other abuse during the interrogation period.
Article 140 (7) of the code requires a judge to rule within seventy-two hours on the procuracy's petition requesting a "restraining measure" prior to trial.71 Such a "restraining measure" might include detention prior to trial, being freed on bail, release under police or other supervision, or being freed on another's recognizance. At this hearing, the judge may order an initial period of pre-trial detention of up to three months. Subsequently, the investigator can request that the period of pre-trial detention be extended for a maximum period of nine months for preliminary investigation.72 A hearing must be held to review each request for an extension.
However, defense lawyers report that investigators sometimes attempt to avoid holding the hearing altogether-on occasion failing to bring the detainee to the proceeding, or pressuring the detainee ostensibly voluntarily to waive his or her attendance at the hearing.
Even if a detainee is brought before a judge, the amendments to the code severely restrict the ability of the detainee or his defense counsel to submit complaints of abuse to the court and to obtain adequate judicial review of the procedural and substantive conditions of detention. Lawyers interviewed by Human Rights Watch stated that in practice, the judges tend to rule only on the narrow issue of the appropriateness of the restraining measure. Further, since the May and July 1999 amendments specify that complaints of ill-treatment or other misconduct during detention must be heard by higher-level procuracy officials, defense counsel is precluded from presenting the judge with a complaint regarding violations by investigators.
Although Human Rights Watch found some defense lawyers who did attempt to bring allegations of abuse to the attention of the judge during the hearing on the legality of detention, the rules in the code instructing participants, including the judge, on how such hearings are to be conducted appear to discourage judges from fully and impartially reviewing complaints of procedural violations during these hearings.
Presence of Defendants and Their Counsel at Hearings on Lawfulness of Detention
Provisions governing the conduct of hearings on the lawfulness of detention appear to facilitate government attempts to avoid any effective hearing being held. Under article 140, such hearings are closed to the public and to a detainee's family members; the only participants allowed at the hearings are the judge, the procuracy, the investigator, the detainee, and his or her lawyer.73 Under article 140, the participation of the investigator or procuracy official is obligatory, while the participation of both the detainee and his defense lawyer are optional. What is more, there is not even a requirement that a detainee, his or her lawyer, family member, or any other member of the public be notified that a hearing has been scheduled.
Tamila Gochelashvili, a defense lawyer with eight years of experience practicing in Tbilisi, told Human Rights Watch that she and her colleagues are frequently not even notified when a hearing on the lawfulness of detention is scheduled. Gochelashvili described a hearing on the lawfulness of detention on June 2, 1999, in Krtsanisi district court for a client charged with large-scale misappropriation of state property (article 96 of the criminal code).
I was afraid that I would not be notified about the hearing date, because as a rule they do this very often, they won't notify lawyers about the hearing date. So I went to the court and wrote a petition [asking that the court] not hold the hearing without me because the evidence in the case was not lawful [lawfully obtained] and I did not want them to hold the hearing without me....Lawyers should keep their ears open and be ready for anything, because it happens...There is no mechanism, no rule in the code for notifying lawyers. This is why we have to stay day and night at the courts to be aware of what is going on.74
Gochelashvili said that notices announcing the schedule of hearings on the legality of custody are not routinely posted in courthouses, and that defense lawyers must rely on the procuracy to learn when the hearings are scheduled.
Another lawyer, Khatuna Salukvadze, who has worked as a lawyer since 1989, said that in a recent high-profile political case, she was not notified of the hearing and that even a protest to the court failed to get her client brought before a judge.75 Her client, Temur Papuashvili, a forty-four-year-old Tbilisi resident, was detained on May 22, 1999, on charges of treason and preparation of a terrorist act, and died in the Ministry of Internal Affairs' Investigative Isolator No. 5 on January 5, 2000. Salukvadze said she had been hired shortly after Papuashvili was detained on May 22.
Neither the accused, nor I, the lawyer, was notified about the restraining measure hearing that was held by Supreme Court Judge Tsiskarisvhili on May 24...I appealed for two days to the Supreme Court cassation chamber with a petition asking that Papuashvili be brought to the hearing...but Judge Tamar Kurasvhili, the chair of the cassation chamber, refused, and they usually don't write the reason for their refusals.
In other cases, lawyers said that investigators simply put pressure on detainees or tried to mislead them into not attending the hearings. "I've had cases where they don't bring the accused [defendant]...they are obliged to go and to inform the accused, but they pressure them...they fool them by telling them, `you'll only be taken there and back, do you want this? Why do you need it? Stay in bed and get some rest,'" said Valerian Kirvalidze, a Mhsketa-based lawyer with twenty-one years of experience in the Georgian criminal justice system.76
Salukvadze, the lawyer cited above, recounted another case, in which she believed there was an attempt to pressure her client, twenty-three-year-old Tbilisi resident Irakli Djahoteli, not to attend his hearing. Djahoteli was detained on September 7, 1999, on suspicion of drug possession, and held in the Ministry of Internal Affairs' Investigative Isolator No. 5. According to Salukvadze, Djahoteli alleged that the deputy warden of the facility had tried to force him to sign a written statement that he did not wish to participate in the hearing, but that he had refused to sign it, and then was brought before the judge.
In other cases, officials attempt to avoid hearings in cases involving extension of the period of detention. For instance, defense lawyer Zurab Rostiashvili told Human Rights Watch that he believed that one procuracy investigator had resorted to falsifying documents in one case in which he was involved, after failing to file the necessary application with the court to get an extension of the pre-trial detention.77 Under the code, there must be judicial review of requests for an extension of detention past the initial three-month maximum. Such hearings, however, are governed by the same rules as set out in article 140, requiring that they be closed to the public with no requirement for advance notification that they are to take place. Rostiashvili told Human Rights Watch that the detention period of his client, JonduJavishvili, who was accused under article 104 of the criminal code with murder with aggravating circumstances, should have expired on May 13, 1999, three months after Javishvili was detained. Yet, by May 19, 1999, the procuracy had yet to file a petition requesting that the pre-trial detention period be extended:
On May 20, I applied to the prison authorities as well as to the procuracy to release him, but they didn't release him...and instead they rushed to [Tbilisi city] court and applied for an extension....I waited until May 20 because there really was no cause to prolong the detention, the evidence wasn't really strong. It was my mistake, I should have waited even longer [to make it clear that investigators had insufficient evidence on hand to prolong the detention], because on May 21 the Tbilisi court didn't accept the investigator's petition, saying that the Supreme Court should have heard this.78
They [procuracy officials] applied to the Supreme Court on May 24 and Judge Jemal Lionidze prolonged the detention for six months...but in the case file there appeared a petition as if they had applied to the Tbilisi City Court for extension on May 14...and the investigator wrote there that the judge had agreed to schedule a hearing on May 14....It is obvious that the investigator is lying, if he had such an appointment with the judge, why wasn't I notified?79
Rostiashvili said that during the proceedings at the Supreme Court he strongly protested the investigator's notation on the falsified petition, stating that on May 14, "the judge did not discuss the case but the reason for this is not known to us..." Rostiashvili said that Judge Lionidze skirted the issue of this notation, which the lawyer maintained was false and had been added to make it appear as if a petition seeking extension had been filed with the court, but that the court had failed to hold the hearing. The judge apparently brushed aside the allegations that the procuracy had failed to file the extension, and had subsequently falsified the petition, by stating that judicial reforms in progress had made such things understandable.
Under international human rights standards, a person who has been detained is entitled to have his initial arrest and ongoing detention subject to review by a judicial authority.80 Upon his initial detention, article 5 of the European Convention on Human Rights states that:
(3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized to exercise judicial power ....81
At this first hearing in Georgia, the judge is occupied solely with determining whether there are reasonable grounds to consider that the detainee has committed a crime and whether ongoing detention is justified. The European Court, in the Schiesser case, has made clear that, for purposes of an article 5(3) hearing, the detainee must be physically present:
[U]nder Article 5(3), there is both a procedural and a substantive requirement. The procedural requirement places the "officer"[i.e. the presiding judicial officer] under the obligation of hearing himself the individual brought before him...; the substantive requirement imposes on him the obligations of reviewing thecircumstances militating for or against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons.82
Similarly, legal scholars have concluded that:
It is for the detaining authority to bring the detained individual before the judge. This means to take him from the cell to the court room, so that the judge can personally see and hear him. The independence of the judge and the personal meeting between the two are fundamental safeguards for anyone falling within the scope of Article 5(1)(c) and hence Article 5(3). It is not enough for the detainee's legal counsel or other representative to attend this meeting.83
Furthermore, detaining authorities have an additional obligation under the European Convention-the detainee must be given the right to initiate legal proceedings to challenge the legality of the detention. Article 5 (4) of the European Convention states:
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.84
The European Court, in interpreting article 5(4), has stated that:
[I]t is essential that the person concerned should have access to a court and the opportunity to be heard either in person, or, where necessary, through some form of representation, failing which he will not have been afforded the "fundamental guarantees of procedure applied in matters of deprivation of liberty."85
The European Court has noted that the concept of equality of arms may be considered violated when the detainee is not physically present, at least in those cases where the detainee is not represented by counsel. For example, in the Kampanis case, the court found a violation of article 5 (4) "on the basis of lack of respect for the principle of equality of arms" where the "domestic court had refused to give a prisoner leave to appear before it in order to present arguments in support of his application for release, whereas the court heard the prosecutor argue against the release."86
The Georgian authorities' failure to bring detainees promptly before a judicial authority following detention is a clear violation of article 5(3) of the European Convention. The European Court's interpretation of this article in its case law is clear-the detainee must be brought before the judicial officer, and must be physically present at the hearing.
Meanwhile, Georgian authorities have a second and separate obligation under article 5(4) of the European Convention and other international standards. That is, to provide detainees with the right to initiate legal proceedingsto challenge the legality of the detention. The failure to provide for the presence of the detainee and/or his representative at such hearings is a violation of this standard.87
Ability to Submit Complaints of Ill-treatment at Article 140 Hearings
While in the cases cited above, investigators appear to have flouted outright the requirement to bring a detainee before a judge during hearings on the lawfulness of detention, even when a detainee is presented in court, the rules governing article 140 hearings hinder defense efforts to present evidence of ill-treatment that has occurred during the course of the investigation.
Pursuant to article 140, the judge rules on a petition submitted by the investigator, and approved by the procuracy, requesting that an individual be detained or that another type of restraining measure (such as bail) be employed. As noted above, many lawyers interviewed by Human Rights Watch stated that, in practice, the judges rule only on the narrow issue of the appropriateness of the restraining measure. They noted that, while the code requires the judge to determine whether the detention, and any evidence gathered in the course of the investigation, meets procedural norms, the May and July amendments-which specify that complaints of ill-treatment or other misconduct during detention may only be heard by higher-level procuracy officials-preclude defense counsel from submitting a complaint of investigative misconduct to the judge. Instead, lawyers said they would attempt to raise complaints with higher level procuracy officials as they had been accustomed to doing under the Soviet-era criminal procedure.
Some lawyers, however, said that they attempt to use the hearings to complain about mistreatment if they can specifically link the allegation of abuse to the issue of the appropriateness of the restraining measure sought by the procuracy. Eka Beselia, a defense lawyer in private practice in Tbilisi, told Human Rights Watch that she intended to present evidence at an article 140 hearing that her client had been tortured, by arguing that his coerced confession constituted the evidence upon which the procuracy's request to extend her client's detention was based.88 Her client, Kakha Barbakadze, twenty-eight years old, had been detained with three others on suspicion of theft at the outskirts of Tbilisi early on September 25, 1999. Barbakadze and the others were held at the Tbilisi Main Police Department lockup for a month, then transferred to a remand prison. Barbakadze alleged that he had been beaten while detained at the lockup to coerce him to sign a confession, and forced initially to accept a state-appointed lawyer who did not represent his interests as his defense counsel. According to Beselia: "During the period during which they were abused [Barbakadze and the three other individuals arrested along with him], there was a state-appointed lawyer who, of course, didn't complain or ask for a forensic medical exam...."
Other Obstacles to Full and Impartial Review
Lawyers interviewed by Human Rights Watch stated that judges are reluctant to consider defendants' allegations that evidence against them was obtained unlawfully during hearings on the lawfulness of detention. And article 140 may reinforce some judges' disinclination to hold a full review of evidence presented by the defense of procedural violations.
Article 140 (8) states that a judge is allowed to summon and question persons whose testimony supports the procurator's petition for a restraining measure, such as pre-trial detention (which also applies to a request for extensionof the order of detention). The defense may offer objections to the procurator's petition, but article 140 does not stipulate that the defense has the right to submit petitions or complaints, or to call witnesses in support of defense petitions or complaints.89 In practice, defense lawyers do submit petitions opposing the procuracy's petition to, for example, extend the period of detention. But lawyers noted that judges are reluctant to call defense witnesses who might provide independent confirmation of the defense's claim that there is insufficient evidence to detain an individual. As defense lawyer Valerian Kirvalidze stated:
I had one case where I asked the judge for witnesses to be questioned, but he did not satisfy this petition...he said he was not looking for information concerning the person's guilt, and that there were proofs and evidence that to his mind were enough. But they would have refuted what was said [by the investigator].
The initial hearing to review the lawfulness of the detention, and any subsequent extension hearings, represent the only opportunities cited in the code during which a detainee may be physically brought before a judge. There are no provisions in the code that would allow any judicial review of alleged ill-treatment or procedural violations during the intervals between these hearings.
The physical presence of the detainee in court is intended to provide a safeguard against torture or other ill-treatment, which are widespread during pre-trial detention in Georgia. When a detainee is denied an opportunity to be brought before an independent judicial authority during the pre-trial period, and has no opportunity, therefore, to present evidence of torture or other ill-treatment, the Georgian government is effectively failing to meet its obligations under international human rights law. For example, the U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment requires those subjected to torture or other ill treatment to have a right to complain and to have their allegations promptly and impartially examined (under article 13), and to ensure that no statement established to have been made as a result of torture be invoked in any proceedings against the detainee (under article 15).
Procuracy Adjudication of Detainee Complaints
International standards hold that measures affecting the human rights of individuals detained prior to trial, and those sentenced prisoners in post-conviction facilities, should be under the effective control of a judicial or other authority whose status and tenure affords the strongest possible guarantees of competence, impartiality, and independence in law. For instance, Principle 4 of the U.N. Body of Principles for the Protection of All Persons under Any Form of Detention and Imprisonment (Body of Principles), states:
Any form of detention or imprisonment and all measures affecting the human rights of a person under any form of detention or imprisonment shall be ordered by, or be subject to, the effective control of a judicial or other authority.
Principle 33 of the U.N. Body of Principles holds that a detainee or imprisoned person, and his or her defense counsel or other persons knowledgeable about the case, have the right to submit complaints regarding the detainee's treatment to prison authorities and, when necessary, to authorities vested with remedial powers.90 Principle 33recommends that such complaints be promptly dealt with, and that in the case of inordinate delay, the individual be allowed to bring the complaint before a judicial or other authority. The U.N. Body of Principles specifies that, "The words "a judicial or other authority" means "a judicial or other authority under the law whose status and tenure should afford the strongest possible guarantees of competence, impartiality and independence."
Since adoption of the May and July 1999 amendments, the Georgian criminal procedural code requires that the vast majority of complaints prior to trial be heard by the procuracy. In past cases brought before it, the European Court has found that a procuracy with powers similar to those of the Georgian procuracy cannot provide the guarantees of impartiality or independence required by international law. Georgia's procuracy is responsible both for investigating a wide range of crimes prior to trial and for prosecuting all crimes at trial. Under article 56 of the Georgian code, the procuracy also has supervisory oversight of staff of other ministries that are responsible for investigating crimes that are not investigated directly by the procuracy. The procuracy thus investigates cases under its jurisdiction, supervises the actions of investigators of all agencies during inquiries, and of the Ministry of Internal Affairs and State Security during both inquiries and preliminary investigations. The procuracy may overturn any decision made by such investigators during the course of an investigation.
The European Court has held that procuracies with powers similar to those of the Georgian procuracy are executive, not judicial, authorities for purposes of judicial review of the lawfulness of detention.
For instance, in the case of Assenov and Others v. Bulgaria, the court found that officials of the Bulgarian procuracy, which plays both an investigative and prosecutorial role and which is linked closely in law to, and responsible for the supervision of, investigative bodies such as the police,91 could not be considered a judicial authority empowered to review the lawfulness of a detention.92 In a similar finding in the case of Nikolova v. Bulgaria, the European Court reiterated that those empowered to exercise judicial authority must be independent of the executive, and of the parties in the case.93 The court added that, if it appears that an official of the procuracy may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be in doubt.
Other factors suggest that the Georgian procuracy is an executive authority distinct from the courts. Procuracy officials take qualifying examinations that are separate and distinct from those taken by judges, and under article 7 (6)of the Organic Law of Georgia on the Procuracy, the procurator general has discretion to determine the rules for such qualification examinations. Furthermore, appointment, disciplinary and removal procedures for procuracy officials are different from those of judges. Article 7 (6) of the law on the procuracy gives the procurator general the sole authority to appoint and remove lower level procuracy officials. Meanwhile, disciplinary measures involving procuracy staff are decided by the board of the Procuracy General, which is headed by the procurator general, and whose other members are senior procuracy officials, and when necessary the Ministers of Internal Affairs and National Security. Under article 8 (5) of the law on the procuracy, the procurator general makes the final decision when there is a conflict between him or herself, and the board of the procuracy.
But some judges and government officials interviewed by Human Rights Watch stated that, under article 91 of the Georgian constitution, the procuracy is afforded the status of a judicial authority, and thus that the code's delineation of the procuracy's power to hear and decide complaints prior to trial is proper.94 However, Georgia's procuracy has a dual function-both to investigate crimes prior to trial and to represent the prosecution in court-similar to that of the Bulgarian procuracy in the two cases discussed above. It is highly likely, therefore, that the Georgian procuracy would be considered an executive authority under the jurisprudence of the European Court.
Other Potential Venues to Redress Complaints
The Constitutional Court
The Georgian legal system provides the individual with an opportunity to seek redress in the Constitutional Court if he or she believes a normative act has violated a constitutional right. Article 39 of the Law on the Constitutional Court of Georgia specifies that individuals may directly petition the Constitutional Court if they believe that their constitutional rights, as outlined in section 2 of the constitution, have been violated. Normative acts in Georgia include laws such as the criminal procedure code, decisions made by those authorities considered to be part of the executive based on such laws impacting more than a single individual or single legal entity (law subordinated acts), and presidential or ministerial decrees.95
At this time it is unclear how the Constitutional Court will respond to complaints from individuals alleging that the criminal procedure code is itself in violation of constitutional rights. Human Rights Watch is aware of at least one individual who has brought a complaint to the Constitutional Court alleging that one of the recently adopted amendments to the criminal procedure code violates his constitutional rights. Zaza Kobulashvili submitted a petition to the court for review on June 25, 1999, alleging that portions of article 680 of the new code contravene guarantees to judicial redress outlined in article 42 of the constitution. However, the lawyer who submitted the case told Human Rights Watch that, as of mid-December 1999, the Constitutional Court had yet to assign a hearing date for the case.96
To Human Rights Watch's knowledge, no case has been heard by the Constitutional Court alleging that specific provisions in the code that preclude detainees from submitting a complaint for judicial review during the pre-trial period violate the constitution or international standards. Article 42 of the Georgian constitution guarantees citizens the right to judicial redress.97 But article 42 does not specify if citizens enjoy the right to submit complaints to a court during a criminal investigation before trial has commenced.
Georgia's constitution requires in article 6 that Georgian legislation be consistent with universally recognized norms and principles of international law, and that they take precedence over domestic normative acts such as the criminal procedure code, if international norms do not contradict the constitution [emphasis added]. 98 However, given that the procuracy is defined as a judicial authority in article 91 of the constitution, it is unclear how the court would rule in a case alleging that the procuracy in fact functions as an executive body and, therefore, does not provide the independent and impartial review during pre-trial detention that is required by international law.
Even if the Constitutional Court should prove willing to hear complaints from detainees prior to trial, as the sole potential judicial venue to seek redress for procedural complaints, the Constitutional Court cannot be considered an effective venue for redressing complaints without undue delay. The new nine-member court has returned relatively few judgments since it began to hear cases in September 1996. There is a substantial lag between the time a petition is filed, and when the court actually begins to hear a case. An official at the Constitutional Court told Human Rights Watch that a delay of six or seven months between the time a suit is registered with the court and a preliminary hearing, known as a planning session, is held is common.99 According to statistics provided by the court at the end of October 1999, since it began hearing cases in September 1996, it received 118 petitions and returned just twenty-five judgments. A further twenty-nine cases were then under consideration, while the remaining sixty-four had either been dismissed for lack of grounds, rejected as not in the court's jurisdiction, or withdrawn by plaintiffs.
The Administrative Code
Newly-adopted administrative procedures do not offer a venue for those under criminal investigation to obtain judicial review of complaints. An administrative code was adopted in June 1999 and went into force in January 2000. It allows individuals to challenge administrative decisions made by executive bodies before boards, known as collegial administrative bodies, created within executive authorities. However, this new code, under article 3, specifically precludes individuals who are under criminal investigation from using the new procedures to challenge the administrative decisions made by any executive authority. Article 3 of the administrative code also precludes individuals from using the procedures to challenge administrative decisions made by those authorities considered part of the judiciary. Dmitri Metreveli, acting chief of the international coordinator's office of the Procuracy General, confirmed that the procuracy's administrative decisions are not subject to challenge under the new code due to the procuracy's designation as a judicial authority under article 91 of the constitution.100
The Ombudsman's Office
In Georgia, the ombudsman's office offers assistance to those who believe that abuse has occurred or a right has been violated. However, the law does not provide the ombudsman the right to forward a complaint to a court with a recommendation that it be reviewed prior to trial. Under the 1996 law on the ombudsman of Georgia, the office has the power to receive complaints from those in pre-trial detention as well as a wide variety of other types of complaints of human rights violations. The ombudsman has the right to request documents and materials related to a complaint, to visit persons while in detention, and to review documentation related to the lawfulness of their detention. Article 18 of the law gives the ombudsman the right to order that expert examination be carried out. Article 21 allows the ombudsman to make a recommendation to a court to review a complaint once a court's judgement of a case has entered into force, if the ombudsman believes that the complaint might have had a substantial impact on the outcome of it.
According to the ombudsman's office, article 21 precludes the ombudsman from forwarding complaints to a court of law for review prior to the conclusion of a trial.101 However, even if the ombudsman enjoyed such a right, this would be no substitute for a suspect or defendant's right directly to submit complaints to a court of law to seek redress for abuse. The Georgian ombudsman's office cannot be considered capable of providing individuals the strongest possible legal guarantees of competence, impartiality, or independence to hear complaints of human rights violations. Nongovernmental organizations interviewed by Human Rights Watch noted that the Georgian ombudsman's office has been the subject of numerous, persistent complaints from victims who claim that it fails to use even those limited powers that it has been granted by law to seek redress for abuses. Some nongovernmental organizations noted that David Salaridze, Georgia's first ombudsman, who held the post until July 1999, was formerly a procuracy official and subsequently deputy minister of internal affairs and, due to his background, was reluctant to act vigorously on complaints of procedural violations during criminal investigations.10266 These complaint procedures apply to all criminal investigations, and are not limited to police and procuracy investigations. The "inquiry investigator" refers to the individual responsible for carrying out inquiries who may serve in any of the Georgian law enforcement and security forces empowered to carry out inquiries. For instance, in the case of military units, the commander of the military unit is considered the inquiry investigator. The "investigator" refers to investigators from the procuracy (which includes the military procuracy), the Ministry of Internal Affairs and State Security. Thus, the amendments to the complaints procedures impacted all criminal investigations including those involving crimes committed by members of the security forces other than the police and procuracy. 67 The rights of other participants to submit complaints to a court prior to trial (which were abolished by a series of amendments on May 28) had been previously outlined in article 69 (g), to give that right to victims, article 94 to witnesses, article 99 to those giving specialized expert testimony, article 101 to court translators, and article 103 to those attending and providing signed statements regarding the results of searches conducted by law enforcement personnel. .
68 Article 73 of the code outlines the rights of suspects during criminal investigations. Article 76 (2) states that all provisions applying to suspects under article 73 also apply to the "accused," or individual who has been charged.
Prior to amendment, under article 73 (j) these rights included, "to make complaints to a procurator or a judge about the acts and decisions made by an inquiry investigative body, inquiry investigator, or investigator."
Following a May 28 amendment, article 73 (1-j) now reads, "to appeal the acts and decisions of the inquiry investigator, the inquiry investigative body or investigator to a procurator, [the acts and decisions] of a procurator to a higher-level procurator, and in some cases specified by this code, to the court."
69 The July 22 amendment abolished paragraph 8 of article 232. Paragraph 8 had previously stated, "If a suspect, accused, defender, victim, or civil plaintiff or respondent, and their representatives do not agree with a procurator's decision denying their petition, [they] have the right to appeal the refusal of the petition in the court appropriate to [where] the preliminary investigation [is carried out]."
70 Article 86 of the code lists the rights and obligations of civil plaintiffs. After amendment on July 22, article 86 (I) now reads, "to appeal against the acts of the inquiry investigator, body of inquiry, investigator and procurator to a procurator if the appeal is not satisfied, or to a court in the cases established in this code."
Prior to amendment, article 86 (I) read, "to appeal against the acts of the inquiry investigator, body of inquiry, investigator and procurator to a procurator, if the appeal is not satisfied, to a court."
71 A related article, article 146 (7), requires that charges be pressed against a detainee within forty-eight hours of the time that he or she is brought to a detention facility, and that he or she must be released if a court has not decided within the following twenty-four hours to order a pre-trial detention. Article 146 (7) reads in full, "The term limit before pressing of charges should not exceed forty-eight hours from the moment of a detainee's being brought to the inquiry investigative facility. If within the following twenty-four hours, a court does not make a decision to arrest or use another type of restraining measure, the person should be immediately released."
72 Under article 162 of the code, if a case is considered especially complex, the term of detention may be extended after three months, for no longer than a total of nine months.
73 Article 140 (6), reads, "The judge hears the petition independently, in closed session, with the attendance of the procurator and the agency having submitted the petition. During the court hearing [the following] can participate, the accused, a person against whom there is a petition to commit to a medical institution for examination (if his or her health condition allows it), [a person against whom there is a petition] to force him or her to resign, or [a person against whom there is a petition for] any other restraining measure, as well as their defenders and legal representatives."
74 Human Rights Watch interview, Tbilisi, August 30, 1999.
75 Human Rights Watch interview, Tbilisi, January 13, 2000.
76 Human Rights Watch interview, Tbilisi, December 21, 1999.
77 Human Rights Watch interview, Tbilisi, December 7, 1999.
78 The procuracy in this case requested a six month extension of the detention due to the fact that the case was especially complex, and as such the Supreme Court rules on such requests, according to article 162 (3) of the code.
80 Article 9 (3) of the International Covenant on Civil and Political Rights also guarantees this right. It states, "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release...."
81 Paragraph 1c of article 5 of the European Convention states, "[T]he lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so."
82 European Court of Human Rights judgement, Schiesser case of December 4, 1979, Application No. 00007710/76, Series A no. 34, pp. 13-14, para. 31.
83 Donna Gomien, David Harris, and Leo Zwaak, Law and practice of the European Convention on Human Rights and the European Social Charter (Strasbourg: Council of Europe Publishing, 1996), p. 146.
84 Article 9 (4) of the International Covenant on Civil and Political Rights also guarantees this right. It states, "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful."
85 European Court of Human Rights judgement, Winterwerp case of October 24, 1979, Series A no. 33, p. 24, para. 60.
86 Case of Kampanis v. Greece, judgment of 13 July 1995 (Series A no. 318B), cited in Gomien, Harris, and Zwaak, Law and Practice of the European Convention, p. 151.
87 The U.N. Body of Principles requires the detainee to be present at hearings intended to provide for the opportunity to challenge the legality of a detention. Principle 32 reads: (1) A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful. (2) The proceedings referred to in paragraph 1 of the present principle shall be simple and expeditions and at no cost for detained persons without adequate means. The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority. [Emphasis added.]
88 Human Rights Watch interview, Tbilisi, December 22, 1999. Unless otherwise noted, all information cited stems from this interview.
89 Paragraph 8 of article 140, reads, "A judge has the right to summon and question a person whose testimony substantiates the petition, and ask the petitioner to submit necessary documents and physical objects substantiating the petition." An amendment adopted on July 22, 1999 added this sentence, "At the same time, the judge shall not consider the issue of the person's guilt and shall only clarify whether the requirements prescribed by this code have been met when gathering evidence and during the course of [their] procedural attachment."
90 Principle 33 states in full, "1. A detained or imprisoned person or his counsel shall have the right to make a request or complaint regarding his treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary to appropriate authorities vested with reviewing or remedial powers. 2. In those cases where neither the detained or imprisonedperson nor his counsel has the possibility to exercise his rights under paragraph 1 of the present principle, a member of the family of the detained or imprisoned person or any other person who has knowledge of the case may exercise such rights. 3. Confidentiality concerning the request or complaint shall be maintained if so requested by the complainant. 4. Every request or complaint shall be promptly dealt with and replied to without undue delay. If the request or complaint is rejected or, in the case of inordinate delay, the complainant shall be entitled to bring it before a judicial or other authority. Neither the detained or imprisoned person nor any complainant under paragraph 1 of the present principle shall suffer prejudice for making a request or complaint."
91 European Court of Human Rights judgment, Assenov and Others v. Bulgaria (90/1997/874/1086) of October 26, 1998. Paragraphs 66-68 describe the Bulgarian procuracy's powers. Paragraph 68 states, "According to the relevant provisions of the CCP [Criminal Code of Procedure] and legal theory and practice, the prosecutor performs a dual function in criminal proceedings. During the preliminary stage he supervises the investigation. He is competent, inter alia, to give mandatory instructions to the investigator; to participate in examinations, searches or any other acts of investigation; to withdraw a case from one investigator and assign it to another, or to carry out the entire investigation, or part of it, himself. He may also decide whether or not to terminate the proceedings, order additional investigations, or prepare an indictment and submit the case to court. At the judicial stage he is entrusted with the task of prosecuting the accused."
92 In the Assenov judgment, the court in paragraphs 144 to 150, found that the Bulgarian procuracy could not be considered an impartial judicial authority for the purposes of review of the lawfulness of a detention. Paragraph 146 states, "The Court reiterates that judicial control of interferences by the executive with the individual's right to liberty is an essential feature of the guarantee embodied in article 5 (3)....Before an "officer" can be said to exercise "judicial power" within the meaning of this provision, he or she must satisfy certain conditions providing a guarantee to the person detained against any arbitrary or unjustified deprivation of liberty...Thus, the "officer" must be independent of the executive and the parties...."
93 European Court of Human Rights judgment, Nikolova v. Bulgaria (application no. 31195/96) of March 25, 1999.
94 Article 91 (1) of the constitution reads, "The Georgian procuracy is a judicial authority, which carries out criminal investigations, supervises investigations, enforces sentences, and supports the prosecution of state indictments."
95 Normative acts, which include law-supordinated acts (administrative decisions that affect the interests of more than a single individual or single legal entity), are distinct from what are termed individual acts (administrative decisions that effect one individual or legal entity).
96 Human Rights Watch interview with Soso Baratashvili, December 14, 1999.
97 Article 42 (1) of the constitution reads, "Every individual has the right of appeal to the courts to protect his rights and freedoms."
98 Article 6 (2) of the constitution reads, "The legislation of Georgia corresponds with universally recognized norms and principles of international law. International treaties or agreements concluded with and by Georgia, if they do not contradict the constitution of Georgia, take precedence over domestic normative acts."
99 Human Rights Watch interview with Guram Berishvili, responsible for statistics and tracking of cases at the Constitutional Court, Tbilisi, October 25, 1999.
100 Human Rights Watch interview, Tbilisi, February 21, 2000.
101 Interview with Tamar Rukhadze, international coordination office, Ombudsman's Office, Tbilisi, February 18, 2000.
102 The Ombudsman's Office is also sometimes referred to as the Public Defender's Office in Georgia. The office has been referred to as the Ombudsman's Office in this report to avoid confusion with the Advocate's Office under the Ministry of Justice's Lawyers Collegium, which provides free state-appointed legal assistance in criminal and civil cases.