When Georgia adopted a new criminal procedure code in 1998, there was great hope that this would signal increased protection for the rights of those involved in criminal investigations and would be the first step toward ending the abuses inherent in the Soviet-era code. But shortly after the new code went into effect on May 15, 1999, the parliament of Georgia adopted a series of extensive amendments in May and July 1999, marking a notable regression in efforts to bring Georgia's criminal procedure into line with international human rights standards. The new code (hereinafter referred to as the 1998 code) would have provided criminal suspects, defendants, and witnesses, among others, with the right to seek judicial review of complaints of abuse or other violations by the procuracy, police, or other law enforcement or security agencies during the pre-trial period. Yet amendments in May and July to complaints procedures in the code severely restricted individuals' access to the courts prior to trial. The parliament's repeal of these reform measures, which had been intended to protect those under criminal investigation, is especially alarming given persistent reports of widespread torture and other ill-treatment of detainees to secure confessions, and other blatant procedural irregularities, during criminal investigations in Georgia.
Georgia's legal system, like many civil law systems, codifies most procedural rights during criminal investigation and trial into a single piece of legislation, the criminal procedure code. The code sets out the rights of persons under investigation for criminal offenses and delineates the respective roles of the law enforcement agencies, security forces, and courts while carrying out criminal investigations and trials. Georgia has no special military courts, and the code's procedures for criminal investigations and trials apply to both civilians and those serving in the military and security forces.
On May 15, 1999, a new code went into force in Georgia, which had been drafted after consultation with Georgian defense lawyers actively working in the area of criminal law. It had been adopted by parliament after serious debate and signed by the president in February 1998. Prior to its adoption, the new code had also been reviewed by Council of Europe experts to advise the Georgian government on the code's conformity with the European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter, the European Convention), to which all member states of the Council must be party, and with standards developed in the case law of the European Court of Human Rights. This new code was intended, among other things, to set out clear procedural protections for criminal suspects consistent with international law. Georgia was accepted as a full member of the Council of Europe on April 27, 1999.
However, on May 13 and 28, 1999, shortly after Georgia became a full member of the Council, Georgia's parliament adopted 289 amendments to the new code. Several weeks later, on July 22 and July 23, the parliament adopted sixty-three additional amendments. Together, these amendments altered or replaced nearly half the articles in the new code.
As noted above, torture, ill-treatment, and violations of defendants' procedural rights are common and widespread during the pre-trial period in Georgia. Yet the 1999 amendments repealed the reformed complaints procedures and reestablished severe obstacles for criminal suspects or defendants who seek to end or obtain redress for such abuse. By reimposing restrictions on access to the courts to hear complaints regarding procedural violations prior to trial, the parliament made it extremely difficult for detainees to prove abuse and for abusive officials to be held accountable.
Complaints regarding procedural violations include, for example, attempts by police and procuracy officials to hinder detainees' access to lawyers, simply by refusing access during the early stages of the investigation, by misclassifying criminal suspects as "witnesses," who do not have a right to a lawyer, or by failing to inform counsel of key hearings related to their clients. In other instances, procuracy officials have sought to coerce detainees into accepting lawyers whom they have not freely chosen, who do not vigorously complain about the mistreatment of their clients, or who otherwise fail to represent their client's best interests. These efforts by the procuracy to restrict access to, or manipulate the choice of a lawyer, appear intended to suppress complaints of physical abuse that may have occurred during arrest and interrogation, in order to preclude perpetrators from being brought to justice and to prevent detainees from later proving that their confessions were coerced.
Criminal suspects and their lawyers also report that it is difficult, if not impossible, to obtain impartial forensic medical examinations to substantiate complaints of torture. Despite attempts at reform in the code, lawyers and others recently interviewed by Human Rights Watch indicate that the procuracy often simply denies lawyers' requests that their clients receive a forensic examination. Under current Georgian law, such refusal by the procuracy is not subject to judicial review, thereby leaving suspects with no effective recourse during the lengthy pre-trial period. The absence of any independent review of a procurator's denial is especially troubling with regard to forensic medical examinations because their evidentiary value depends on the timeliness of the examination. Under the code, the period of detention prior to trial may last as long as nine months; yet, a delay of even two weeks in performing a forensic examination can allow evidence of torture and physical abuse to heal and fade. In many cases, delays preclude forensic medical doctors from establishing the nature and cause of injuries, and hinder detainees' efforts to prove that their testimony was coerced.
In theory, a detainee's first appearance before a judge-the hearing on the legality of detention, which under the law must occur within three days of being detained-could provide an individual with the opportunity 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. But defense lawyers report that investigators sometimes attempt to avoid holding the hearing altogether, fail to bring the detainee to the proceeding, or pressure the detainee, ostensibly voluntarily, to waive his or her rights of attendance at the hearing.
Meanwhile, even if the detainee does appear before a judge, his ability to obtain judicial review of a complaint of ill-treatment or procedural violations is severely limited. According to lawyers interviewed by Human Rights Watch, the May and July amendments require that complaints of ill-treatment or other misconduct during detention must be heard by higher-level procuracy officials, thereby precluding defense counsel from presenting the judge with a complaint regarding investigative misconduct. The rules in the code governing such hearings appear to discourage judges from making full and impartial reviews of such complaints.
The amendments repealed the right of individuals to submit a complaint to a court prior to trial. Instead, the code now requires that the vast majority of complaints regarding procedural rights violations during the criminal investigation be heard and decided by the procuracy. However, the procuracy in Georgia is directly responsible for conducting the investigation in certain categories of serious criminal offenses, supervising the investigations of all other criminal offenses, and representing the prosecution before the courts. This calls into question the procuracy's status as an impartial judicial authority, and the propriety of the power it has been granted in the code to hear and decide complaints alleging ill-treatment or other violations of a defendant's rights during the pre-trial period.
The government of Georgia, with the assistance of the international community, is currently carrying out a high-profile reform of the court system. Georgian officials maintain that concerns about pervasive corruption have been a motivating factor in carrying out reform of the judiciary. However, the absence of judicial review for complaints of abuse during the pre-trial period not only severely hampers an individual's ability to substantiate an allegation that a confession or other testimony was obtained through torture, but also means that detainees remain at the mercy of corrupt officials, with no possible recourse during the pre-trial period. Lawyers and criminal justice professionals note that without independent scrutiny, law enforcement officials will continue to have unfettered power to coerce bribes from those under criminal investigation. There can be very little expectation that such a criminal justice system will ensure fair trials, and given this failure, that the judiciary can ever enjoy broad public trust-which government officials maintain is the goal of their reform efforts.
As a result of the findings contained in this report, Human Rights Watch is calling on the Georgian government to take a number of steps to amend the applicable laws and improve practices so as to safeguard against torture, and to meet United Nations and other international standards regarding fair trials and the treatment of persons held in pre-trial detention. This report reiterates the U.N. Human Rights Committee's April 1997 call for the government of Georgia to investigate and prosecute complaints of torture, as well as to conduct a systematic and impartial review of all past convictions that were based on confessions allegedly made under torture. Human Rights Watch also calls onthe international community to press the Georgian government vigorously to adopt legislation that meets international standards in order to safeguard detainees, to combat widespread corruption involving law enforcement, and to foster accountability for law enforcement and security force's actions in light of the substantial bilateral and multilateral security assistance Georgia currently receives. (See below for a full list of recommendations.)
This report is based on interviews carried out in Tbilisi between March 1999 and February 2000, with judges at district (city) and regional courts, the supreme and constitutional courts, defense lawyers, forensic medical experts, members of parliament and other government officials, and the victims of human rights abuses and their families.