It is noteworthy to refer to a most negative impact on the existed disagreeable situation of the Human Rights protection that some provisions of the Criminal Procedural Code have caused. The Criminal Procedural Code which was adopted in accordance with the requirements of the Constitution of Georgia had been of rather a democratic character, corresponded with the Constitution and Georgia's commitments made on joining the Council of Europe. But after the pretensions of the law-enforcement agencies that the guarantees enshrined in the Criminal Procedural Code would "limit their possibilities to combat the criminality" the addenda to the code was passed in May 1999 restoring many of those powers which established favorable conditions for infringement of individuals' rights (in details see Annex #2).
As it was mentioned above the reformative tendencies of the Government of Georgia is often of a declamatory character and is not reflected on practical activities. The judicial reform as a result of which the two third of judges was replaced did not entail analogous radical changes in the Prosecutor's Office and Police. Because of the aforementioned the judiciary being reformed (but not absolutely refined) standing alone within a most corrupted and inefficient system cannot be a guarantee of progress. To the contrary there is a great possibility for its becoming a part of the existed corrupted system. Notwithstanding the radical changes currently running within the judiciary the latter still does not rely on the principle of the supremacy of law and not always follows the statutory requirements. Human Rights protection situation is adversely affected by the fact that the judiciary does not apply alternative measures to imprisonment on regular basis and no initiative is noticeable in this regard. Practically no courses are conducted with the view of teaching the Human Rights Instruments and no steps are taken with regard to raising awareness of the law-enforcement agencies for the mechanisms of the prevention of torture. Existence of corruption within the judiciary is stimulated by the considerable difference between the minimum and maximum of punishments to be applied by a judge as defined by various articles of the Criminal Code of Georgia. For example, when the Criminal Code envisages a punishment from two up to ten years imprisonment or from six to fifteen years of imprisonment for a certain crime a faithless judge is enabled to "bargain" every year of imprisonment. Under such a situation ridiculous facts occur when a person can be sentenced to 3 years of imprisonment for kicking a photograph's plastics horse or for stealing 5 GEL worth of glass tins and at the same time the high officials of energetics (Kipiani, Chachkhiani), who are revealed in causing millions of worth damage to the country and in embezzlement of big amounts of state property are sentenced to one and a half and two years of imprisonment.
At the same time it is necessary to note that the Chamber of Cassation of Criminal Cases of the Supreme Court of Georgia did their best by reaching many courageous, impartial and fair judgments. It not only refers to the well-known political cases but ordinary ones as well. In this regard the highly efficient, objective and courageous judgments of Mr. Merab Turava, and Ms. Nino Gvenetadze should be mentioned.
Furthermore, an article enabling an accused to be aided by a social defender has been abrogated. While it is true that this only was a dormant article under the Soviet Regime but under the present conditions when there are numerous NGOs this means could have been effectively exploited by the defence in terms of attracting the community's interest to the criminal case.
The absence of a special article criminalising torture is also a gap of the legislation.
Notwithstanding the above gaps of the legislation it is beyond doubt that there is a legislative basis set up in Georgia which can establish the favourable background for Human Rights protection and appropriate guarantees. But unfortunately, this legislative basis fails so far to affect the functioning of corrupted and unsound system. Consequently, the faith in development of the country and establishment of the Rule of Law State is gradually fading in the society.
According to the Georgian legislation an individual is considered an arrestee not from the moment when his/her deprivation of liberty is effected that is not when he/she is forced to get in a car or otherwise deprived of his/her liberty (be it even with the view of delivery to the police station), but instead the term of deprivation of liberty is calculated from the moment of delivery to the police station which is entered on the records. This provision enables the policemen not to deliver the arrestee to the police station for several hours (or even for several days) and obtain the needed evidences after having "browbeaten" the arrestee on the way or somewhere in an apartment.
The Criminal Procedural Code of Georgia governs in details the mechanism of the protection of suspects but does not envisage the status of an arrestee in the course of 12 hours after the delivery to the police station, i.e. before the person is recognised as a suspect and the criminal proceedings are instituted. It is stated obscurely in the Code that in the course of those 12 hours the arrestee ("the introduced person") is examined ("identified"). In the course of these very 12 hours there is a possibility that absolutely unprotected arrestee be made to confess in committing any offence and then to begin "businesslike negotiation" how much it would cost not to institute the criminal proceedings and not to recognise him/her after these 12 hours.
Under the Georgian legislation the arrestee shall be interrogated within 24 hours after the recognition as a suspect and only then he/she is entitled to apply for medical expertise. Accordingly, an arrestee in case of torture cannot apply for the expertise for 30-32 hours after the delivery to the police station (the delivery to the police station + 24 hours before the interrogation and +6-8 hours the interrogation process). It is quite possible within this period that the signs of torture on body be faded.
Under the Georgian legislation a person brought to the police station under the status of a witness had no right to have a lawyer's opinion. Thus a person against which there was grievous evidence and could be easily recognised as a suspect or even an accused was at first delivered to the police station as a witness to interrogate him/her in the absence of a lawyer. And the interrogation of unprotected gave the ample possibilities for "browbeating". As a result of the NGOs' demands in autumn in 2001 an relevant amendment was passed and now a witness has the right to be interrogated in the presence of a lawyer.
Unlike from international standards the living conditions of prisoners on remand in Georgia are far worse than those of already convicted. At the same time a person is considered innocent until conviction by a competent court and it is impermissible to place him/her in worse conditions than the convicted (for example if meetings with relatives for the convicted is provided for by law, the persons on remand may only have the meeting with investigator's consent). The aforementioned was objected by the Council of Europe experts who specially visited Georgia with the view of studying the penitentiary system in 1999. They maintain in their recommendation that the meetings of the convicts be arranged without any conditions so that no consent of an investigator were needed. The investigators should have the authority to grounded prohibition of the meeting in exceptional circumstances, particularly in the interests of the investigation. It is also noteworthy that stemming from the difficult socio-economic situation in case of detention the repression is not confined to the accused but is extended on his relatives as well. It is implied here that often state budget fails to provide for their subsistence and families are obliged to sell property sometimes even immovable property in order to maintain the prisoners' subsistence.
Under the Georgian legislation a lawyer can study the case-file after the accomplishment of investigation which denotes that the defence is not able to consult the materials being on case as a whole and to be conversant with all relevant facts. At the same time the prosecutors have the access to all materials. Thus inequality of the parties is apparent. One more obstacle on lawyers' way is the requirement to have a permission from the investigator in charge for conducting the merest procedural action. The lawyer having no access to the case-file is obliged to request for the expertise, provide the defendant with doctors etc.
Before enforcement of the May-June addenda an accused or his/her lawyer could bring the case to the court regarding degrading actions of the police or the prosecutor's office and request for expertise. At present an accused can appeal the actions of an inquirer, the agency of inquiry, investigator and a prosecutor only before the superior prosecutor and there is no right to apply to the court.
Under the various provisions of the Criminal Procedural Code and the Organic Law "On the Prosecutor's Office" everybody is entitled to apply to a prosecutor for the institution of proceedings. Moreover the prosecutors have the obligation to commence investigation without a formal application on the basis of a newspaper article, TV programme, NGOs' information if they learn about the alleged facts of Human Rights violations and torture. According to the Criminal Procedural Code the prosecutors can close the proceedings if there are not sufficient evidence on the case. But if there is no reaction in response to the lodged applications the citizens have no more rights in this regard.