Legal basis of Georgia has changed dramatically during last 2-3 years. There were adopted new criminal, civil, criminal procedure and civil procedure codes, the capital punishment has been abolished, the Ombudsman apparatus was created, judiciary reform was carried out, etc. For formulation of a civil society the new Criminal Procedure Code is very important, the Code was adopted in 1998 and went into force on May 15 1999.
The importance of the Criminal Procedure Code is that it has changed the accustomed understanding of the former Soviet Criminal Procedure Code. Many of the changes have created convenient conditions for human rights protection. That is why civil society has approved the adoption of this Code and has pinned its hopes upon it. The up coming possibility of the adoption of this Code had huge positive impact on Georgia's submission to the Council of Europe. Unfortunately soon it became evident that progressive and democratic legislation is nothing but a decorative facade for Georgian government. Cosmetic effort to secure the country's entry into the Council. Thus, on April 27th 1999 Georgia became the member of the Council and right after that on May 13 and 28 1999 Georgian Parliament made 289 amendments to the abovementioned Criminal Procedure Code. And on July 22 and 23 added some 63 amendments more and in fact changed almost the half of the progressive code. Here are several examples of how undemocratic do the amendments to the Criminal Procedure Code look:
Example #1:
Prior to the amendments the Code was allowing the defendant to sue in the court if he/she has been a subject to any physical abuse for gaining a confessions or for any other purposes. Now after amendments the defendant can complain only to the prosecutor. This amendment is of principal importance because police brutality and ill treatment of detainees is more the usual way of how they operate rather than exclusion. The question of assigning an expertise remains also unsolved. In order to undertake forensic-medical expertise one needs to have agreement of investigator from the Prosecutor General's Office or from police. If the investigator refuses to assign the expertise this refusal can be protested not directly with the judge but with the higher-ranking prosecutor. Meanwhile, time passes and traces of torture disappear and finally the medical-examination makes no sense.
Example #2:
The new Criminal Procedure Code abolished Public Defender's institute while this form of defense existed even during Soviet times. Than it was of course a formal post but by abolishing it now the legislator has deprived the representatives of NGOs the right to participate actively in the monitoring of judiciary system.
Example #3:
Before the amendments were made the Criminal Procedure Code allowed to all the witnesses to have their own advocates. No they are deprived of this right. This nuance has huge importance for local practice, because representatives of law enforcement very often question their victims as "witnesses" while taking advantage of this norm (despite the fact that law enforcement representatives have more than enough evidence to start a criminal case against this individual). It is very easy to work with a "witness" like this as long as he doesn't have an advocate one can easily torture him/her, make him/her sign suitable confession, etc. After everything is done, than law enforcement starts a criminal case and allows an advocate to appear on the screen. Another way is to release a victim once the convenient confession is gained or the bribe has been paid and the criminal case is not started at all. Victim has hard time proving the abuse because he/she doesn't know the abuser in face as they usually wear masks. Even if medical forensic expertise reveals body injuries a victim can never prove that they have appeared after the detention rather than during or prior the it. In this line we would like to mention that there is no law concerning independent medical forensic experts.
According to the Georgian Constitution:
Article 6
2. 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 are not in contradiction to the Constitution of Georgia, have prior legal force over internal normative acts.
And further,
Article 7
The state recognized and defends generally recognized rights and freedoms of the individual as everlasting and the highest values. The people and the state are bound by these rights and freedoms as well as by current legislation for the exercise of state power.
Despite such clear definitions stated in the constitution the reality concerning these issues is quite different. Georgian officials too often complain that there are no mechanisms allowing them to practically realize the abovementioned articles of the Constitution. The existing legislative vacuum hinders the realization of some important principles of the Constitution, for instance the Parliament has not yet adopted any law regulating such important fields of public life as freedom of speech, freedom of religion, law on bar, etc. This creates serious problems for journalists, advocates, etc.