Amendments made to the legislation of Georgia within 2003-2012 were directed to strengthening of Saakashvili and his regime. The political force which came to power through revolution started amending the legislation right away in order to adjust it to its own political interests. The new government made the parliament to make amendments to the constitution in February 2004 whilst the term of office of that parliament had expired in November 22, 2003.
The process of usurpation of power by Mikheil Saakashvili had kicked off and ran at full speed in 2005 after the Prime-Minister Zurab Jvania’s death in mysterious circumstances and in 2008 when the Chair of the Parliament Mrs. Nino Burjanadze established an opposition party.
Democracy during Saakashvilis period as well as legislative amendments were just façade by which the ruling party managed to create imitation of success and reform.Ease of doing business by which the representatives of the former government are still boasting implied only simplified process of registration of an enterprise which meant that establishing a firm was easy but carrying out real business activity – impossible.
Various successful business enterprises that had been established before the revolution were transferred either to the persons being in close relationship with the members of the ruling party or to the state in often cases in the name of the law or via open violence. There is not a few numbers of precedents when detained or imprisoned business enrepreneurs “voluntarily” transferred their own property and companies to the builders of the “beacon of liberty” at late night hours through the aid of one and the same notary. Unfortunately, the businessmen who lost their property in 2003-2012 as well as those people who were persecuted for their political views neither gained back their loss nor received any kind of compensation.
Formation of a repressive machine, which the representatives of the previous government call “successful reform of the police”, deserves to be highlighted separately. In the wake of building “democracy” Georgia became a champion in Europe in terms of the number of prisoners on per capita basis! Virtually there was not a single family throughout the country which did not become the victim of the repressive machine and those, who did not have anything to be deprived of, Saakashvili simply “washed off”; he filled the staff of State Universities with the members of the non-governmental organization “Kmara” (“It’s enough”). Autonomy of Universities became fictitious; members of the “National Movement” remembered them only after 2012 Parliamentary elections when they lost their power and the single hope for keeping jobs for their supporters became the principle of non-involvement of the state.
Statements made by the parliamentary representatives of the “National Movement” on “defeating corruption” are also ridiculous and cynical. Representatives of the Shevardnadze’s government could not even dream about the sums of money that the youth wing of the Shevardnadze’s party embezzled in a very short period of time through various illegal ways after they had come to power for the second time via the “Rose Revolution.” Abolishment of anti-monopoly and other state controlling bodies (including the body controlling safety of imported products) which was motivated as if by elimination of corruption actually served to monopolization of import whilst illegal sums, which were distributed by evading the state budget, became legal excess profit.
Now, after signing the Association Agreement with the EU this issue is still of top importance; without quality control Georgian product cannot have access on European market. Often the reforms brought about by Mr. Saakashvili were based upon such paradoxes, not common sense.
Nowadays citizens have to pay far more to the budget for purchasing public services then they had to before the Revolution. Much talked about electricity which “Misha made available to us”, is also too expensive for the majority of the population. Salaries and bonuses of state officials twenty times exceed to the average pension in the country. Evil practices of the “National Movement” are still being followed. “Today we are the majority and we will decide everything to our liking” – everybody remembers this popular statement of one of the leaders of the UNM. Nowadays, the ruling majority has changed but those of the yesterday’sare still trying to do what they were doing – to decide everything in a manner favourable to them, not to the people!
In 2013-2014 Global Research Center held a number of meetings and seminars in order to obtain assessments on legislative amendments from expert as well as from the persons participating in the events of the period of the “National Movement”.
Gia Meparishvili – Doctor of Law, Full Professor at the Caucasus International University, retired Chief State Advisor of Justice.
Amendments and additions to the Criminal and Crominal Procedure Legislation of Georgia from November 23, 2003 to October 1, 2012
On November 23, 2003 government in Georgia was changed through violance, which afterwards was called a “Rose Revolution”. The revolution left its trail on the constitution, legislation and, inter alia, in the first place, the legislation on the Police, Criminal Code and Criminal Procedure Code of Georgia.
After coming to power “National Movement” prolonged 4 year term of the 1999-2003 parliament of Georgia (5th convene) and numerous amendments and additions were made to the acting legislative acts. The first thing that the illegitimate parliament did was that it made amendments and additions to the Constitution of Georgia on February 6, 2004 on the basis of Constitutional Law and after strengthening the power through Constitutional ways the ruling party started adjusting the legislation to those political desires and ambitions that the young “reformers” had.
Altogether, from February 13, 2003 to October 1, 2012, 92 amendments and additions were made to the Criminal Code of Georgia (Criminal Code of Georgia of July 22, 1999, in force from June 1, 2000) while to the Criminal Procedure Code of Georgia (Criminal Procedure Code of Georgia of February 20, 1998, in force from May 15, 1999 to October 1, 2010) were made 64 amendments and additions. Further in the same recently amended Criminal Procedure Code (in force from October 1, 2010) 24 amendments and additions were made until October 1, 2012.
It can be said that the world legislative practice does not know a country, which makes principal amendments to the legislative base with this frequency and without proper consideration. Principal changes in regard with the political course in the country are also significant. In this regard Georgia is really exceptional with its “aggressive legislative dilettantism” outcomes of which will be difficult to correct.
It is fair to be noted that the population of Georgia had high hopes that after the defeat of the National Movement in October 1, 2012 elections, the new political power would manage and correct that vicious heritage that the 9 year of the National Movement as a ruling party left to the legislation of the country. Certain steps in this direction have been definitely made though the process is going on languidly and need to be pace up. The present work is an effort of researching the amendments and additions made to the Criminal Code and Criminal Procedure Code of Georgia throughout 9 years via scientific abstraction. The work aims at identifying the criteria that the legislators used as their basis within 2003-2012 when introducing legislative innovations.
It is noteworthy that any legislative innovation is always based on the the achievements of comparative jurisprudence (the world practice) and legal science. Georgian law makers must have used the experience of the world’s leading countries though the reasonability of Georgian interpretation of this lawmaking is often contentious. The quality of lawmaking activity is so low and the legislative base is so poor that the legislative act in its present form is often questioned. This is what happened in regard with the Criminal Code and 2009 edition of the Criminal Procedure Code of Georgia. The laws on “Operative-Search Activity”, “Police” and “Advocates” are also in poor condition.
Amendments and additions made to the criminal legislation of Georgia throughout 2003-2012 were clearly politically motivated. In particular, large-scale repressive measures were being prepared against the representatives of the previous government (referencing to the high rank officials of President Shevardnadze’s government). First thing done in this direction was the decision on establishment of two legal entities of private law: Institutional Development Fund of the Prosecutor’s Office and “Defense Fund” under the Ministry of Defense of Georgia by adopting legislative acts.
These two Funds served as, let’s say, “Money boxes” in which the property of businessmen and former high rank officials expropriated either via court of law or ordinary state racket were contributed to. The number of the sums mobilized in either of these two funds within 2004-2008 is unknown. We can only suppose that the number of these sums might be measured in billions which were spent by the previous government without any control and neither the legislative government nor the Chamber of Control held any kind of information on the funds.
As the funds were registered in the form of legal entities of private law, the heads of funds did not disclose any information either to media or Parliament members or anybody; the funds, in which flew “voluntary” contributions, functioned under such conditions of “full transparency.” The circumstance that it is more than 10 months since the change of government in Georgia is also noteworthy; however, nobody could reveal the actual situation in the above-mentioned funds. The only information that we have is that the first Chair of the Institutional Development Fund of the Prosecutor’s Office was Mr. Kote Kublashvili (currently the Chair of the Supreme Court of Georgia). Below we will review the ways through which the funds were filled.
For receiving expected political and economic results, numerous relevant amendments were made to the Criminal Code of Georgia and Criminal Procedure Code of Georgia which, at the expense of human rights, facilitates used repressions and gave possibility of deprivation of as much property as possible. For example, on July 21, 1997 Constitutional Court of Georgia recognized confiscation of property, as an additional form of punishment in the Criminal Code anticonstitutional, as it was in contradiction with Article 21 of the Constitution. Constitutional Court allowed the possibility of special confiscation in the legislations of Criminal Procedure and Administrative Offences. The above decision of the Constitutional Court was absolutely neglected and the new law of Georgia adopted on December 28, 2005 stipulated relevant addition to Article 52 of the Criminal Code of Georgia which made deprevation of property possible even without using special confiscation.
On February 13, 2004 relevant additions were made to the Criminal Procedure Code of Georgia which legalized a practice unknown to the countries falling within the Roman-German jurisdiction;the practice was established through the influence of the US legislation. The pactice implies a plea bargain which was interpreted into Georgian legal system in a more repressive and improper way than its well-known American equivalent “bargain on pleaing guilty”.
In particular, first “quick and effective” administration of justice was outlined in the Criminal Procedure Code of Georiga (Article 151) which was then added plea bargain on guilt or punishment (Chapter XIV1). Georgian surrogate of the American legislation had severe influence on the population of Georgia and gave foundation to establishment of vicious tendencies during pre-trial investigation and administration of justice in the court as well. Plea bargain in Georgia was used virtually for every type of crime so that the victim was not asked almost nothing; after some time the victim was not asked anything at all on the closing of the criminal case with plea bargain. In 2011 thanks to plea bargains, bails and confiscation of property, more than GEL 108 000 000 flew to the state budget of Georgia.
In 2010 the sum was more than GEL 86 000 000. Altogether, within 2004-2011 more than GEL 1 billion was mobilized in the state budget of Georgia through confiscation of property and plea bargain. Sum of plea bargain was further added “voluntary transfers” to the above-mentioned funds made by theaccuseds. We do not know the total sum that flew into the funds. We are afraid that such information may be lost. At the same time the “process of requisition” was largely supported and mass media carried out propaganda of the fairness of the new government compared to the unfair old one.
In 2005, at his annual Parliamentary address, the President of Georgia made following statements: “Zero tolerance to criminals” and “every culprit should be sent to prison.” After this political statement Georgian legislators made a number of amendments and addtions to the acting Criminal Code and Criminal Procedure Code of Georgia. These amendments were related to introduction of strict criminal policy as a result of which 25 000people (charged prisoners or the prisoners in pre-trial detention), according to thedata of 2012, were sent to prison.
More than 150 000 people were imprisoned and detained for various offences within 2004-2012 whilst the number of probationers was far higher. Introduction of strict criminal policy determined stricter criminal liability in almost every article of the General Part of the Criminal Code of Georgia. Liability for the crimes commited in the fields of political and economic activities became particularly strict. Comparatively liberal restrainingmeasures (house arrest, transfer under the supervision of police,reconigzance not to leave,and personal bail) were deleted from the Criminal Procedure Code of Georgia from 2005.
At the same time area of application of imprisonment, as a restraining measure, became stricter. Only within 2005-2008 period imprisonment, as a restraining measure, was used more often than in any other country of the world. For example, the number of imprisoned within 2005-2006 was more than 70%. Application of imprisonment decreased during the following period but bail amount increased and reachedterrible numbers. All the above mentioned took place in a country population of which is socially vulnerable, where the minimum salary is the lowest and utility bills – one of the highest. Such recklessness and absolutely unsubstantiated strict criminal policy resulted in further impoverishment of poor population and emerging of so-called “private hypothecators”.
These so-called “private hypothecators”, who issued loan agreements with very high interest rate to private persons, mostly accepted immovable property, especially residential apartments and commercial areas, as mortgages. Fiscal policy carried out by Georgian commercial banks also became merciless. Often accused persons had to encumber their property with mortgage either with “private hypothecators” or with commercial banks, and as they could not pay back the necessary sum they lost their property. The main reason why they took loans from banks and private hypothecators was bail and plea bargain.
According to the August 1, 2013 data, more than 200 000 people who lost their property either with private hypothecators or with commercial banksare registered in Georgia. The problem is apparently bearing political nature. It’s difficult to say how this acute problem will be decided. This is what we yield from reckless and strict criminal policy on which no one wants to take responsibility today. It is important to highlight that very often with the purpose of obtaining the money necessary for plea bargain relevant divisions of the Prosecutor’s Office and the Ministry of Internal Affairs acted as mediators between the banks and the accuseds.
Currently, numerous applications are registered at the Prosecutor’s Office and its territorial divisions, and investigations have started on them. Initial data of such investigation and rulings on several cases reviewed in court is terrible.
Strict criminal policy has also resulted in the introduction of the rule of cumulative sentence copied from American criminal legislation. This legislative innovation made possible such imprisonment termsthat had never been in criminal practice before (for ex: based on the law of December 29, 2006, the highest term for imprisonment was 40 years in case of application of cumulative sentence) without bringing about any relevant measures in the penitentiary system. It is noteworthy that the maximum term of imprisonment in the criminal legislation of Georgia at the time of the dissolution of the Soviet Union did not exceed 15 years.
One more dark side of strict criminal policy: Georgian legislation for administrative offences stipulates imprisonment for 90 days (paragraph I of Article 31 of the Criminal Offences Code of Georgia (in force from July 17, 2009) and for violation of public order in court and disrespect towards court – imprisonment for 60 days (paragraphs 7 and 8 of Article 85 of the Criminal Procedure Code of Georgia). Maximum terms for administrative offences in Georgia at the time of dissolution of the Soviet Union was 15 days while plea bargain related to depreviation or restriction of liberty was not specified at all.
Soviet legislation set forth warning, dismissal from courtroom, charging administrative fine for undue performance of plea liability and violation of order in court. If the crime was commited during a case hearing in court, materials would be transferred to the Prosecutor for investigation and the case was transferred to another judge for its review on merits.
Thanks to the legislative innovation introduced by the “National Movement” the victim judge who is reviewing another case can sentence 90 days imprisonment to a particular offender. Fundamental principles of modern law are violated: person is depriviated of liberty without proving his/her culpability, victim is the one who sentencesand what is the most important – ruling issued by a judge shall not be further appealed (?!). It should be noted that such legislative disorder is still in force.
Law of July 27, 1993 of Georgia on the Police is the first legislative act in adoption of which I have participated. The law was adopted at a hard time under hard circumstances and I would like to underline with content that it has successfully resisted time. At the same time I would like to note that such reckless and often illogical amendments and additions were made to this law within the recent 5-6 years, that it has actually lost its initial intention and nowadays it is one more sample of aggressive legislative dilettantism.
As you may be aware, political will and desire of the ruling elite in the first place is reflected on laws and the Law of Georgia on the Police could not have been spared from it too. The amendments and additions mentioned above clearly prove it. I would like to review them in more detail.
In not a very distant past, on September 24, 2010, a number of amendments and additions were made to the law of Georgia on Police. These additions and amendments were followed by diverse reactions from people. Part of the public at large, especially those who supported the government, liked the above-mentioned legislative innovations, another part had acute reaction on them. A discussion on what type of state was Georgia, resumed: what was the arrangement of the state we were living in: legal or police?
In particular, they were going to legalize facilitation of the process of stopping, detention,search in urgent cases and other activities, which did not have either scientific or social substantiation (see weekly newspaper “Versia,” December 2-3, 2009). It seemed that everything was said and disclosed back then. However, not everything was the way, we wanted to be. Let’s pay some attention to new “legislative diamonds”. On the basis of the above-mentioned amendments and additions:
- The task of the police is: “Carry out preventive measures with the purpose of prevention of violation of law and suppression of crime. Identification and investigation of such actions, searchand detention of the persons accused as well as development of the strategy and tactics for fighting the crime” (Paragraph 2 of Article 2 of the law).
Dear reader, have you understood anything? Personally me – nothing! And I am sure there are a lot who are in my state. The role of the police in the part of development of the strategy and tactics for fighting crime is especially ambiguous.
- “If dealy poses threat to the life and health of a person, police officer is authorized to enter residential aparemtns of people, on the territories and premises of enterprises and organizations (except for the premises of diplomatic representations, Consulates and international organizations that enjoy diplomatic immunity) to prevent crime or/and detain a person who committed the crime or who is convicted for committing the crime” (sub-paragraph b of paragraph one of article 9”.
It seems as if everything is clear in this passage and should not be contentious; the police should have this right; however, this unharmful legislative passage was distorted after making new amendments to it – imperative liability of the police on notifying the Prosecutor’s office within 24 hours on their entrance to the residential area or other property of citizens necessitated by urgency in order the prosecutor’s office to apply to the court for determining the lawfulness of such action is deleted.
This “tiny”, “insignificant” detail was omitted by our legislators! Now, let’s realize what may happen in such case and how each of us can protect ourselves from illegal actions of the police. By the way, the fact that such legislative innovation contradicts to the Constitution of Georgia and the norms of International Law is not of less importance, too.
On one more legislative blunder: a so-called “reasonable doubt” is introduced to the Law of Gorgia on the Police in case of which use of the rule stipulated by the Criminal Procedure Code of Georgia implying the right of stopping and frisking of a person (Article 19).
Reader must be interested in the so-called “reasonable doubt” and how our police are planning to stop citizens and frisk on the basis of it. I should say from the very beginning that here we are dealing with the legislative “Gordian knot” and let’s try to unravel it. According to the above-mentioned amendments, policeman is allowed to stop a person if there is a reasonable doubt on possible commitment of crime by the person (?).
Term of detention is the necessary term for either confirmation or annulation of the reasonable doubt (do you understand anything?). Do not smile at it; our state is not funny at all! Let us follow the wording and I promis that you will not be smiling any more: policeman is allowed to carry out frisking toensur his/her safety if he/she has reasonable doubt. If, during frisking, emerges any further basis for search, authorized person shall carry out search in accordance with the rule established by the Criminal Procedure Code of Georgia (paragraph 4 of Article 19).
And here we are! But do not be afraid, according to paragraph 5 of the same law, the citizen “stopped and searched” has the right to appeal stopping and frisking in court according to the place of stopping within 5 days term and demand compensation (paragraph 5 of Article 9).
My sarcasm has the grounds and I am going to prove it: in 1993 edition of the law the wording was absolutely different according to which a policeman was authorized to search a persons ID if there were enough data on commiting crime or administrative offence by that person. As for the detention of a person, police officer was authorized to act so only in the cases stipulated by the Criminal Procedure Code.
Now, let’s go through the difference between the expressions: “enough data” and “reasonable doubt”. “Reasonable doubt” is not typical for Georgian and European legislation. It is a criminal procedure institute characteristic for the countries belonging to the family of common law and it has nothing to do with the legislation on the police.
Let us not forget the fact that according to the new Criminal Procedure Code of Georgia, police officer is neither a party nor a participant in the criminal procedure. A question arises: if, according to the legislation in force, a policeman is not a participant of a case, why was considered in this regard in the law on the Police?
Now, let’s review the term “enough grounds”, removed from the law. It was an assessment category and quite a solid court practice, as well as special literature, getting familiar with which would clarify the concept of the legislation (for example: if a policeman became an eye-witness of a crime or an administrative offence or an eye-witness or a victim notified a policeman about a crime or an administrative offencethen a decision on the searchof an offender is made based on relevant photo and description, etc). The term is used quite successfully in European, especially of the Eastern European police legislation.
As for the new term “stopping”, it is absolutely uncomprehensible. The law stipulated quite broad discretion of interpreting this term, which is very dangerous and Georgian society will definietely reap its results. Pay attention to the language of the law: the term stopping is the reasonableterm necessary either for confirmation or annulation of the reasonable doubt. Then, how long can that term last? The law does not mention it at all! In this part too, the Georgian legislation creates many awkwardnesses and openly contradicts not only to the Constitution of Georgia and the Human Rights Convention of Europe, but with the court practice of Strasbourg Human Rights Court.
Let’s pay attention to another formulation of one of the passages in the law which is as it follows: “In case of reasonable doubt a policeman shall be authorized to carry out friskingon the clothes of the stoppedperson to ensure his/her own safety. If frisking gives grounds for further examination, an authorized person shall perform it in accordance with the rule established by the Criminal Procedure Code of Georgia.” It seems that a policeman is authorized, including in case of absence of operative data and evidence, to stop and frisk any person randomly.
What are we dealing with? An investigative action? No, a policeman is not a participant of the procedure. By the way, friskingwas the part of investigative action before October 1, 2010 and only investigator and prosecutor had the right to carry it. As for the Administrative Offences Code of Georgia, it does not set forth checking but it sets forth frisking and seizing of an item (Article 248) and only of the person, who have commited an administrative offence. As for frisking, it is not set forth in a new Criminal Procedure Code of Georgia neither as an investigative action and nor the procedure of carrying it out is mentioned in the law.
And about one more “awkwardness”: amendments made to the law on the Police do not stipulate any type of guarantees for protection the rights and freedoms of citizens. For example: a policeman is authorized to carry out ramndom check of a person of his/her opposite sex (?) Well, the law does not prohibit it. In addition, the right of the person stopped – to appeal the action of a policeman in a court under whose jurisdiction falls the place of his/her stopping and examination – is very interesting too as long as it is just a legal fiction and nothing more! What will a detaine and frisked person appealthe action of the policeman or the act which the policeman drew up? A policeman is not required to draw up any act on such action and appealing against the action of a policemanis doubtful and almost impossible. Well, the world legislation does not know any such action so far.
Opponents of the above reasoning may say that the world police activities know such practice, for example: why are we checked before boarding a plan or any other public transport? What are the rules and regulations that guid the police in such cases?
To those people I would answer: safety of citizens is ensured by the security service of that particular air transport and it must be so. By the way, the relevant legislation stipulates these procedures in detail. The police only participate in conducting these procedures in order to prevent violation of public order. In cases when it is necessary to check either a passanger or luggage on security, we are dealing with absolutely another case which has nothing to do with the situation which the law of Georgia intends to regulate.
On July 17, 2009, amendments and additions were made to Article 12 of the Law of Georgia on the Police which refered to the regulation of the use of special devices in the police activity. In particular, the list of special devices (handcuffs or other means of restraint, rubber batons, tear gas, sonic weapons, devices for demolition of barriers and stop vehicles, armored cars, special paints, police dogs and horses, electro shock devices), which was comprehensive was further added: pepper gas (?), acustic device (?), non-leathal weapon (including non-lethal missile (?)) Well, how do you like the Georgian?
Adoption of the above-listed amendments and additions was not accidential at all and it had quite an acute ground. The issue was on the devices used by the Georgian police for dispersing protest demonstration on Rustaveli Avenue and Rike on November 7, 2007 (acustic radiowave weapon, non-lethal (non-combat) special sevices “AL6” and “FN303”, by which special missiles are fired for dispersing demonstrations). The same happened on May 6, 2009 for dispersing the rally in front of the Tbilisi City Police building.
Non-leathal weapon used by the Georgian police damaged health of tens of people, including of three citizens – severely (they lost eyesight). As it turned out, the police illegally used special devices as the Law of Georgia on the Police did not stipulate the list of such devices. Scandal snowballed and, as it should happen in any legal state, such action of the police should be assessed relevantly after proper investigation. However, the Government of Georgia neither investigated the cases nor raised the issue of accountability of anyone at all. Justification of such actions from the Government of Georgia was quite “convincing” – as if everything, what happened, was within the frames of law and the international law and legislation of East European countries stipulate the right to use such non-lethal devices!
As it seems we have to go through the issue in more details: “AL6” and “FN303” belong to special police devices and police divisions in many countries use them for suppressing unrest, group vandalism or in other cases of mass disobedience of law.
The way of using of these special devices is simple – special missile (bullet) which is a mass of rubber or plastic substance treated by a certain technology – is fired from relevant devices which resemble an ordinary weapon very much. Such missile (bullet) does not cause death (lethal result), does not mutiliate or severely damage the victim. In the countries where the use of such and similar devices is allowed, the rules of its use are regulated very strictly. Particularly, by-laws prohibit the use of such special devices at night and under the conditions of poor vision; use of such devices against women and children is prohibited; firing to the direction of head and the parts of the body which may be lifethreatening is prohibited, etc.
I want the reader to understand the fact that despite the devices are widely used across the world, there are countries which prohibit the use of so-called “non-lethal missiles (bullets)” as the practice shows that their use is often followed by significant deterioration of health.
According to the July 27, 1993 Law of Georgia on the Police, the police is not authorized to use rubber or plastic bullets. Based on paragraph 1 of Article 10 of the same Law a policeman shall be authorized to use physical force and compulsion, special devices and service firearms in the cases and according to the rule stipulated by this law. In Article 12 of the same Law is given a list of every special device that the police are authorized to use and which can be further added other devices only on the basis of the Law. The list does not set forth the use of rubber or plastic missiles (bullets) though it is quite long and contains rubber batons, tearing gas, electro shock device, etc.
In 1993 the third convene Parliament of Georgia showed discretion and did not authorize the police to use rubber and plastic bullets in the first Law of Georgia on the Police though there were deputies who insisted that the list of special devices (Article 12) should not be comprehensive and the right of its extension should be given to the Minister of Internal Affairs in Agreement with the Minister of Health. The majority of that Parliament firmly defended its position.
As for some opponents who say that the Police was legally authorized to use so-called rubber or plastic “non-leathal missiles (bullets)” and refer to Article 13 (?!) Law of Georgia on the Police for substantiation of such arguments. Article 13 of the Law of Georgia on the Police refers to the right of use of firearms by the police (!). Neither “AL6” nor “FN303” belong to firearms. Both of them are special devices and the rules of their use are absolutely different from the ones of firearms; however, it is not so in the Georgian legislation.
Georgian legislation justified the measures carried out against civilians on November 7, 2007 and May 6, 2009, though they did it on July 17, 2009 (!!!). Reader should assess this action. One thing is undisputable – such actions go beyond the frames of legal state.
On December 2005 legislative innovation was made to paragraph 2 of Article 263 of the Criminal Procedure Code of Georgia. The paragraph stipulated the rules on reviewing the evidences on crime. The innovations authorized investigators and prosecutors to start preliminary investigation on the basis of anonymous evidences while before the innovation anonymous evidences did not represent the basis for filing a criminal lawsuit and such evidences were counter-checked only within the frames of operative-search measures (with covert methods, without summoning and interrogating a person providing such evidences).
Moreover, majority of that Parliament adopted the innovation with acclaim. After a very short time the innovations caused discontent within public and consequently the Parliamentarian majority compromised: “An investigator and prosecutor shall be authorized to start preliminary investigation on the basis of anonymous evidences. Criminal persecution against a person only on the basis of anonymous evidences shall be inadmissible” (?!) At first sight it seems that we are dealing with an absolutely insignificant amendment, which specified and improved the previous wording. But, this is at first sight…….
Trouble of Georgian businessmen was not groundless – was there anything disguised in the legislative “innovation”, which would harm business and, human rights, indeed? Sadly their fear did not turn out to be groundless: after introducing the above-mentioned legislative innovation, terrorizing of business started and Georgian reader possibly remembers the fact that the first business enterprise which was harmed by the innovation was fast food restaurant “Nikala.”
The terms “anonymous” from Greek means a document without signature, without title, identity of an author of which is unknown.
During the Soviet era when particular persons appealed either the Union or Republican Council, partisan or law enforcement bodies for years with unsigned statements and complaints with the purpose of revenge or other wicked intentions, commissions established for counter-cheking the facts state in letters held ad hoc verifications, spent plenty of time, resources.
Most of anonymous statements did not turn out to be true. Unique “professional anonymous informers (squealers)” characteristic only for the Soviet system emerged during the 30s’ – 70’s of the previous century. These informers spoilt quiet lives and damaged nerves of many conscientious people.
In order to eliminate such malpractice, by the Order of February 2, 1988 Presidium of the Supreme Soviet of the USSR considered written application of a citizen anonymous if the application did not contain data on the identity, work place, educational institution or actual address of the author of the letter and the application was not subject of further processing.
Inadmissibility of reviewing anonymous tidings is still considered as one of the most important democratic achievements of “perestroika”.
Article 3 of the Law of December 24, 1994 on “The Rule of Reviewingapplications, complaints and appeals registered in state institutions, enterprises, establishments and organizations (despite their organizational-legal form) prohibited review of anonymous letters. The approach of secondary acts (General Administrative Code of Georgia, Law of Georgia on Police, and Organic Law of Georgia on Prosecutor’s Office) currently in force is clear towards this issue.
It’s clear that during investigation of some of the criminal cases either police or investigator has to verify authenticity of certain anonymous evidences. Often either victims or eye-witnesses have to hide their identity with the fear of possible revenge from the people who commited that particular crime. That’s why the majority of findings of criminal case are anonymously kept by law enforcement bodies.
It has been proved that due and professional examination and scrutinization of anonymous evidences are often decisivein a criminal case which is difficult to unravel quickly.
There is a well-approved, wise and human rule on covert verification of operative-search measures of anonymous evidences in order not to restric human rights with ungrounded interrogations, search, and entering into their place of residence and other procedural or investigative actions without reliable evidencesat hand.
Was the restoration of obsolete rule on reviewing anonymous evidences necessary in the Criminal Procedure Code?
I should say with all the responsibility that it was not necessary! But happened what was the most feared. The true reason of such amendment became clear as soon as the legislative innovation entered into force. As they say: “there is no secret that will not be revealed”…..
Georgian businessmen have been speaking about groundless recketing of various trade, financial or industria objects on the basis of anonymous data. When search and other investigative actions are carried out only on the basis of anoynous data business climate becomes poor.
Now, as for a “big concession” made in part 2 of article 263 of the Criminal Procedure Code of Georgia, according to which “criminal persecution against a person shall be inadmissible only on the basis of anonymous data.” The above-mentioned wording is just a fiction and nothing more and here is the reason why: Criminal Procedure Code stipulates the analoguous rule and the “concession” did not contribute to the human rights protection at all.
According to Article 281 of the Criminal Procedure Code of Georgia the basis for charging (i.e. for starting criminal persecution) shall be the unity of the evidences that are enough for reasonable presumption that a certain person commited the crime. The evidences shall by all means be meeting strict, imperative requirements of law, according to which “evidence shall be considered invalid if it is obtained from a person who cannot specify the source, location, time and circumstances of obtaining the evidences provided by him/her” (Sub-paragraph “d” of part one of Article 11 of the former Criminal Procedure Code of Georgia).
Sadly, this vicious norm was neither neglected in the new Criminal Procedure Code of Georgi which entered into force on October 1, 2010. In particular, paragraph 3 of Article 101 of the new Code highlights that the investigator shall be authorized to start preliminary investigation on the basis of anonymous evidence. Criminal persecution against a person only on the basis of anonymous evidence shall be inadmissible. We think thatcomment upon theabove-statement is useless. What was unacceptable from scientific, comparative jurisprudence and common sense point is acceptable now, as it is the political will.
According to theLaw of December 20, 2005, part 3 of Article 161 of the old Criminal Procedure Code of Georgia, which prohibited carrying out operative works with detainees in pre-trial facility, is deleted.
This minor change actually destroyed that general spirit which was in the old Criminal Procedure Code of Georgia. Ground of the right of the accused – to testify voluntarily without any physical or mental coercion, freely talk about every circumstance known to him/her and not to respond to the questions that reveal him/her in commiting a crime – guaranteed by the International law, Constitution and Criminal Procedure legislation, was shaken.
Practice which existed in the operative-search service but condemned was now given a green light and within the frmaes of legislation.
The main purpose of so-called “processing”of an accused in a pre-trial detention facility is obtaining information secretly about the crime at hand or another crime which the investigation and operative service did not know about. Blackmailing, beating-torture, degrading treatment, homosexual attempts or intimidating with using such intercourse was often behind such “processing.” “Processing” which is regulated on the basis of secret acts, was carried out by confidants (covert agents) recruited by operative employees, the major part of whom were so-called “criminalauthorities”. After such “processing” the accused was more “sincere” at the interrogation by the investigator and gave confession voluntarily.
Deletion of part 3 of Article 161 from the old Criminal Procedure Code created was in material disagreement with part one of Article 5 of the 1950 Convention on Human Rights (ratified by the Parliament of Georgia), which prohibits obtaining confession from an accused through deception, violence, blackmailing and violation of these rights is considered as brutal violation of fundamental human rights.
Carrying out operative work with the accused under pre-trial detention is also allowed by the legislation of European countries and the US. However, such work is carried out by operative services of prisons with the purpose to avoid escape of, violence against, sedition of and other anti-law activities by prisoners. Such service has nothing to do either with the police or investigative bodies. Operative services of prisons do not work on the crimes that have not been opened.
Pragmatic East European countries established very effective mechanism even in this system; the mechanism allows protection of public security as well as protection of human rights.
In not a very distant past we were the part of the society which had to live and work in a country with so-called “preskhati” and “press detention facilities” (deriving from the word “press,” “pressing”). These were the facilities where investigation managed to obtain confession from an accused and open a crime via this very operative activity.
How did the Georgian society, especially human rights defenders, lawyers and politicians, meet this legislative innovation? They did not express their opinion! Everyone kept silent. No one can dream in their worst dreams what could have happened if such legislative innovation had been made before the “Rose Revolution”. You should have seen how our foreigner “inspectors” and Georgian politicians would react upon it.
Unfortunately, the Criminal Procedure Code of Georgia which entered into force from October 1, 2010 and the new Code on Imprisonment still left the issue open. So the police are authorized to carry out operative work in detention facilities for opening a crime and it is doing it quite intensively.
Statistical data on the crimes registered in Georgia and opened crimes needs to be highlighted too. Achievements can be observed but saying that Georgia has the best indicators in this term across the Europe and the world is too excessive. Criminogenic situation in Georgia is quite difficult especialy in the part of the crimes commited on the basis of self-interest and drug related crimes. Below is the data published in special editions which will make real situation evident.
(SeeTable #1, #2, #3)
Note:
- Registered is the crime if it is registered by the state and is conferred registration number right after the investigation had started;
- Premeditated or unpremeditated crimeis considered less severe if it is punishable with no more than 5 years term by the Criminal Code;
- Premeditated crime is considered grave for which maximum term of punishment does not exceed 10 years by the Criminal Code; accidental crime is considered grave for which the Criminal Code stipulates more than 5 years term;
- Premeditated crime is considered especially grave for which the Criminal Code stipulates imprisonment for more than 10 years or life imprisonment;
- Unraveling of crime– when the person who commited the crime is identified and considered accused.
A lot is written about the absence of independent court in Georgia and it should be mentioned that the situation is not enviable. Here I would like to present statistical data on the number and percentage of acquittals. Acuittals show the level of independence and impartiality of Georgian courts while reviewing and ruling on criminal cases.
Such percentage in East European countries is significantly high. For example, according to the 2008 data, courts in the US made 42,5% acquittals out of every 100 criminal case; courts in England – 58%; Germany – 32,4%; acquittals made by the courts of the Russian Federation was 2,9% in 2005 while the data decreased in 2008 and was 1,5% – 1,4%. In 2011, the number of acuittals made by the common courts of Georgia was 0,01% (!).
I would also like to present another type of data which is very interesting and requires thorough consideration. It is clear that the population of Georgia lost trust towards its government, especially towards common courts. Georgia is the leader in the number of lawsuits (in consideration with the number of total population of the country) filed in the court of Human Rights (Strasbourgh) among the EU countries.
Statistic Data of Crimes Registered in Some of the Countries of Europe (2009)
| Country | Number of Population | Number of registered crime | % indicator of opened crimes | Number of prisoners (in pre-trial detention and after sentencing) |
| France | 64 700 000 | 3 771 850 | 57,00 % | 60 403 |
| Germany | 81 757 600 | 6 284 661 | 55,6% | 73 319 |
| Spain | 46 661 950 | 2 309 859 | 29,2% | 67 100 |
| Greece | 11 306 183 | 423 422 | 84,2% | 10 280 |
| Czech | 10 403 000 | 357 391 | 42,1% | 18 904 |
| Slovakia | 5 394 837 | 110 802 | 45,2% | 8 235 |
| Hungary | 10 019 000 | 426 914 | 56,1% | 14 743 |
| Poland | 38 192 000 | 1 152 993 | 57,00% | 90 199 |
| Finland | 5 359 742 | 343 820 | 73,2% | 3 370 |
| Estonia | 1 340 021 | 50 375 | 38,8% | 3 486 |
| Lithuania | 3 300 431 | 67 990 | 29,1% | 7 770 |
| Latvia | 2 254 653 | 55 620 | 49,7% | 6 548 |
| Georgia | 4 385 400 | 35 949 | 46,9% | 23 331 |
Separate Statistic Data of Crimes Registered in Europe, Total Number of Crimes and % Indicator of Opened Crimes
| Year | 2004 | 2005 | 2006 | 2007 | 2008 | 2009 | % of opened crimes 2009 |
| France | 3 825 442 | 3 775 838 | 3 725 588 | 3 589 293 | 3 468 382 | 3 347 271 | 57,00 % |
| Germany | 6 633 156 | 6 391 715 | 6 304 223 | 6 284 661 | 6 114 128 | 6 054 330 | 55,6% |
| Spain | 2 141 295 | 2 230 906 | 2 267 114 | 2 309 859 | 2 417 648 | 2 638 693 | 29,2% |
| Greece | 405 627 | 455 952 | 463 750 | 423 422 | 412 520 | 424 512 | 84,2% |
| Czech | 351 629 | 344 060 | 336 446 | 357 391 | 378 962 | 385 726 | 42,1% |
| Slovakia | 131 244 | 123 563 | 115 152 | 110 202 | 1 123 587 | 113 157 | 45,2% |
| Hungary | 418 833 | 436 522 | 425 941 | 426 914 | 437 825 | 448 956 | 56,1% |
| Poland | 1 461 217 | 1 379 962 | 1 287 918 | 1 152 993 | 1 043 872 | 1 256 267 | 57,00% |
| Finland | 354 453 | 339 715 | 324 575 | 343 820 | 353 631 | 344 321 | 73,2% |
| Estonia | 53 048 | 52 916 | 51 834 | 50 375 | 50 256 | 51 147 | 38,8% |
| Lithuania | 62 173 | 51 435 | 62 328 | 55 620 | 54 510 | 54 400 | 29,1% |
| Latvia | 84 136 | 82 074 | 75 474 | 67 990 | 66 786 | 68 428 | 49,7% |
Acquittals in Georgia
| Years | % of the persons acquitted |
| 1937-1940 | 10 |
| 1941-1945 | 10 |
| 1946-1950 | 9 |
| 1967-1970 | 1,0 |
| 2003 | 0,7 |
| 2005 | 0,8 |
| 2006 | 0,2 |
| 2007 | 0,05 |
| 2008 | 0,01 |
| 2009 | 0,01 |
| 2010(8 months) | 0,01 |
Number of complaints filed in the European Court of Human Rights
| 2000 | 7 Complaints |
| 2001 | 22 Complaints |
| 2002 | 29 Complaints |
| 2003 | 35 Complaints |
| 2004 | 48 Complaints |
| 2005 | 72 Complaints |
| 2006 | 105 Complaints |
| 2007 | 162 Complaints |
| 2008 | 1771 Complaints |
| 2009 | 2122 Complaints |
| Separate statistic data of total crime registered in Georgia | ||||||||||||||||||||||
| Year | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | 2009 | ||||||||||||
| Total number of crimes and % indicator of opened crimes | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | ||
| 15029 | 13432 89,4% | 15662 | 13516 86,3% | 16658 | 13927 83,6% | 17397 | 13329 76,6% | 24856 | 13016 52,4% | 43 266 | 15675 36,2% | 62283 | 18207 29,2 | 54746 | 20746 37,9% | 44644 | 20934 46,9% | 35949 | 17659 49,1 | |||
| Including grave and especially grave crimes | 8112 | 6830 84,2% | 8601 | 7013 81,5% | 9658 | 7291 75,5% | 10326 | 6854 66,4% | 17833 | 7541 42,3% | 24320 | 7583 31,2% | 29249 | 8128 27,8 | 13174 | 5549 42,1% | 13055 | 6341 48,6% | 11203 | 6091 54,4% | ||
| Separate statistic data of total crime registered in Tbilisi | ||||||||||||||||||||||
| Year | 2000 | 2001 | 2002 | 2003 | 2004 | 2005 | 2006 | 2007 | 2008 | 2009 | ||||||||||||
| Total number of crimes and % indicator of opened crimes | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | Total | Crimes opened% | ||
| 3882 | 3341 86% | 3936 | 3387 86% | 4488 | 3704 82,5% | 5342 | 3961 74,1% | 9463 | 3339 35,3 | 18439 | 4211 32,8% | 35619 | 5650 15,9% | 29219 | 7356 25,2% | 22316 | 9379 42,0% | 17334 | 6949 40,1 | |||
| Including grave and especially grave | 2516 | 2117 82,2% | 2473 | 2081 84,1% | 2669 | 2297 77,4% | 3610 | 2334 64,6% | 7407 | 2020 27,3% | 12384 | 2688 21,7% | 18209 | 3065 16,8% | 7212 | 2116 29,3% | 6238 | 2554 40,9% | 5410 | 2410 44,5% | ||
Kakha Kakhishvili – Head of the “Center for Election and Political Technologies”
From year to year election code in Georgia was actually adjusted to those political subjects who either governed the country or were partly represented in the government and put their own interests in the election legislation. I think that before the elections of November 2, 2003 the law was intentionally developed in a manner to make large-scale protests possible against those elections or to annul the results of elections; otherwise holding elections was impossible according to that law. OSCE prohibits making amendments to the election legislation at least one month priori to the elections in order the election candidates to have the opportunity and prepare in accordance with the regulations established by the election code.
In regard with that election code, we were not dealing with onlyamendments but the code was fundamentally changed just couple of months before the elections and such new procedures were introduced that the officials of the election administration were not supposed to know and closely observe them. In particular, it was back then when the rule on using electoral ink was first introduced. It was the very first election after introducing that rule and now we see that talks are going on deleting this rule from the Code as it is not useful and only creates obstacles and increases the number of complaints as the staff of the election administration is not learned in this procedure till this day whichcauses delays during elections! Now you can imagine the situation in this regard 10 years ago, when the incompetence of the election administration staff caused lines of people in front of election districts.
Moreover, the Election Code did not authorize the Central Election Commission to abolish the decisions made by the people appointed immediately by it. Central election administration could be presented in the court, as a party. It was only authorized to appeal against the results of the district election commission if it did not agree with it. However, the Code was not very clear either in this part: one Article stated that the District election commissionhad to send the wrap-up documentwithin three days while the second Article stated that the Central Election Commission may appeal aginst the wrap-up document of the District Election Commission within two days after it is issued; pay attention: not “received”, but “issued”; the above wording created special case. The above-mentioned fact was well-known for the chairs of every district election commission. Central election commission could not appeal against any wrap-up document which it received, even those which evidently contradicted the rules established for drawing them up as the term had expired.
We even wrote a long letter to Mr. Lado Chanturia who was the Chairman of the Supreme Court of Georgia back then and asked him to elminiate the inaccuracy, as the Central Election Commission had wrap-up documents where the number of voters and ballot papers did not coincide but we could not abolish such wrap-up documents as the legislation did not allow us to do so. The Chair of the Supreme Court responded that it was impossible; however, he partially annulled the election results after several weekswhich did not fall under his competence as the constitutionality of elections was to be established by the Constitutional Court. Even more, the Supreme Court exceeded its legal power by reviewing the suit as it was not authorized to do so; it even stated on one of the ballot papers out of three placed in one envelope that it was forged.
I would like to add post factum that, beside the fact that the supreme Court exceeded its authority and reviewed the case which belonged to the competence of the Constitutional Court, the Central Election Commission in the court was represented by a person who was not authorized to express the position of the Commission in the court by the Chair of the Commission. After the Rose Revolution that person became a member of the Central Election Commission … later he/she was the Head of the LEPL State Regulation Agency for Medical Activities… By the way the people who were committing such illegal actions became opponents of National Movement and somehow, do not remember the illegal actions they took part in.
Despite the fact that 10 years have passed since then we still have problems related to voter lists and the powers who were actively protesting against voter lists back in 2003, cannot regulate this problem even now as the issue related to the accuracy of voter lists derives from one big systemic problem. In addition, you may be aware that the Articles in the Election Code which regulate use of administrative resources and participation of government representatives in elections were often amended and adjusted only to the interests of the government.
If you take a look back to the amendments made to the Election Code from year to year and analyze them, you will observe that the ruling party was making analisys based on every previous election. In particular, if, for example, 300 complaints were registered at one election, the complaints, problematic issues and reasons causing these complaints were analyzed in order to avoid them in the future and the regulation related to the complaint was deleted from the Election Code. They did it in order to decrease the number of complaints artificially. For instance, one of the complaints was about the case that a favour cannot be done to an election candidate. The article related to this issue was deleted from the Code and what was prohibited by the Code and represented grounds for complaints became possible by making legislative amendments to the Code.
Moreover, during Saakashvili’s period the Parliament of Georgia went even further and made a decision which allowed officials to participate in pre-election campaign. Ministers, deputy ministers, heads of executive bodies, governors were no more bound by the election legislation and regulations and got involved in the election process without violation of the Election Code. Their involvement in the pre-election campaign implied using state cars, telephones and other means which they should use at work. Even deputies were allowed to get involved in the pre-election campaign and use cars on the balance of the Parliament for this purpose.
During the last parliamentary elections the government and the opposition even disputed whether the Minister of Internal Affairs should have the right to participate in the pre-election campaign. It was absolutely shocking when a part of non-governmental organizations stated that the Minister of Internal Affairs could participate in the pre-election campaign on the ground that the Minister is a political figure, not a police representative. As we know, participation in a pre-election campaign is prohibited for a policeman by the Constitution, the Law of Georgia on the Police and by the Regulation approved by the President and governing the police activity and its involvement in a pre-election campaign. Nevertheless as it turned out, all this applied only to anordinary policeman and not the Minister who brings about the policy of the Ministry.
And here we are… for example: the Law on Local Self-Government states that a head of executive body is an ordinary economist who is appointed upon the consent of the relevant city council. To conclude, the Law on Local Self-Government says that the head of executive body is an ordinary official who should not have political goals and the basis for his/her appointment should be the vision on the development of municipality. At the same time, the Election Code stated that the head of the executive body is a political official who has the right to participate in pre-election campaign. We had to deal with such absurd cases in regard with the election code.
In 2003 candidates who participated in the elections could appoint their lawyers at Legal department which meant that every candidate who had a representative and member in the Central Election Commission could appoint one lawyer at the Legal Department of the Central Election Commision. Legal Department of the Central Election Commission had two employees; the rest were appointed by election candidates. Parties requested the Commission to send their lawyer to the court hearing of their lawuit. They wanted the position of the Commission and their lawsuit to coincide. From year to year the Election Code was losing the regulations and goal for which the laws are adopted as it should be regulating specific areas of activity, competences and authority of various people. In this case the Election Code became a regulation only for major oppostional parties as the governing party had absolute freedom of action.
Today we want to know whether the environment for holding elections has improved. It has improved in terms of the political will of the government, as it is not to win elections by using administrative resources and influence voters and other candidates through the Constitutional Security Departmen, other special divisions and Prosecutor’s Office; however, there is another problem: the majority of today’s Parliament actively criticized the Election Code of Georgia for five years. Moreover, even an “eight” was established (Union of opposition parties) and major part of it, which is in the government today, disagreed with the National Movement on the rules of composition of election administration, review of election lawsuits, election procedures and, inter alia, voters lists.
They have done nothing at all to eliminate those flaws to say nothing of the election system as a whole which is the subject of criticism of not only our political parties but Council of Europe and EU have made multiple statements on it, when the principle of equality of votes and the principle of the value of vote are not observed. You see that the rules of staffing the election administration have not changed and currently it is composed of two governmental parties. One of them is the “Georgian Dream” which holds the leverages of the Prime-Minister and the Government and the other is the “United National Movement”, which holds the leverages of the President’s administration, the President and most of local self-government in Georgia.
Based on the above-stated, Georgian parliament did not even think about amending election administration rules. Current Chairman of the Parliament Mr. David Usufashvili, who was in the oppositionback then, had good proposals, including establishing separate arbitrage for the election related lawsuits. These proposals were documented within the frames of the “Eight”; despite the fact that Mr. Usupashvili is currently the Chairman of the Parliament, he has not remembered his own proposals implementation of which he was requesting when he was in opposition of that government. Currently the election code is absolutely adjusted to the interests of a ruling party and I think that the parties that turned out to be in the government are content with the fact that the leverages that the “National Movement” had given them are in their hands. They do not think to change the election code at all.
Election threshold was a subject of criticism for a very long time. It has always been a problem; 30% threshold for majoritarian elections is favourable for the government as administrative resources make success possibleunder 30% threshold conditions. Let’s review by-elections. Governmental candidate Kordzaia in Nadzaladevi, received 39%, non-parliamentary opposition minus the “National Movement”. Who are we implying in this case? – Kakha Kukava, Chitishvili and others. They received 49%; non-governmental candidates, candidates of non-parliamentarian opposition received 49%. The number does not include candidates from the “National Movement.” Thus, Tamar Kordzaia received 39%, 10 or 12% – National Movement and 49%, which does not include the votes that the “National Movement” received – non-parliamentary opposition.
That’s why the 30% threshold is not fair: candidate, who received 39% of votes, becomes a deputy. What would be the situation like under the conditions of 50% threshold? Kordzaia received 39% of votes, Kukava went on the second place in terms of the votes received; as neither of them would surpass 50% threshold second round of elections would be appointed, Kordzaia would probably receive Davitaia’s votes but with a very low percentage, though, at the same time the electorate of non-parliamentary opposition, who did not support neither the governmental party nor the “National Movement” would vote for Kukava and he would become a deputy. That’s why the threshold is not raised to 50% (before the local self-government elections “Georgian Dream” raised 30% threshold to 50% – auth.)
The most important issue is the 5% threshold established for proportional election system; the threshold is very high compared to the Post Soviet countries and the countries similar to us. The threshold is high because for 9 years the ruling party permanently tried to destroy every other political party in the country, only a few parties have the resource to participate in elections and one of them is the “national Movement” as it has strong partisan structure established for years, definitely by using budget resources, as it owns number of offices and not a few of the members of their party receive salaries from the state budget. Under such conditions 5% threshold is artificial, which enables only two major actors to enter the Parliament; in consideration of the above-said we cannot have diverse Parliament, where the deputies would be presented in accordance to the votes they have received and not to the amount of money they have spent for that particular elections.
To summarize, these are the general problems plus the problematic formula of counting votes. Various formulas give various number of winner deputies. We use the formula which actually makes winning of election for the candidates from ruling party possible. The world knows several methods of counting votes while Georgia uses the worst of these methods.
One more issue: election system. We have mixed election system when the Parliament is composed of the deputies from both majoritarian and proportional lists. Such system is used in the Post soviet states as it gives more opportunities to the governmental party to be in majority permanently. Moreover, we have the election system which enables the governmental party to be in majority even if it does not surpass 5% proportional threshold and win only majoritarian elections. This is the situation in terms of elections in Georgia; a party may not surpass 5% threshold because of absence of support from voters but if it has rich and powerful candidates in the regions,who are supported by state resources, it can enter the Parliament with majority.
Q: In the beginning you said that making amendments to the election code is inadmissible just couple of months before elections; elections are held every year in Georgia, when should the Code be amended then?
Kakha Kakhishvili: well, we do not have one and the same elections every year. I think it was possible to work on the draft law of Parliamentarian elections during Presidential elections. I think that the problem with us is that opposition parties protest situation not because that situation is unfair, but because it is not fair particularly to them. If we had a third party with the leverages at election administration, it would never criticize the rule of composing of that election administration. This is the problem.
Take close observation to what is going on. Generally, politicians consider that the Election Code is the document that they can talk over. They do not think that it is the document based on which we directly elect high rank officials; they think that it is the document with which they regulate the rules of their game. That’s why whoever happens to be with the leverages through which the rules of the game can be changed, changes only the part that is not acceptable personally for him/her. To conclude, the threat that the Election Code and the rule of composition of election administration will not change in the nearest future is very high.
Tamaz Imnaishvili – Head of analytic Center of the General’s Club of Georgia, Expert on Military-Political Issues, Vice-Colonel of Reserve
Transformations in the fields of Defense and Security
After re-gaining independence Georgia had to face challenges and threats. It started establishing state institutions which is a necessary condition for a democratic state. Unlike the countries of the Warsaw Pact armed forces of which needed only restructuring, Georgia had to start building up its armed forces from scratch. Georgian armed forces started formation on the base of the officers trained according to the old Soviet system. The model of defense and armed forces that the Soviet Union had, turned out to be unacceptable and the Ministry of Defencee had to bring about reforms.
Tasks and objectives of the Armed Forces were defined at the very beginning of the reforms. First of all it was highlighted that the military policy of Georgia was of defensive nature and does not claim territories with other states.
Its tasks were defined as follows:
- Ensure defense of state borders from aggression;
- Ensure unity of the state;
- Prevent any attempt of changing state institutions via force;
- Define the threat of war;
- Participate in the measures intended to elimination the results of disasters;
- Participate in peacekeeping operations;
- Carry out military cooperation.
Georgia started cooperation from 1992. The principal priorities of cooperation implied getting closer to and partnership with NATO. In 1992 Georgia was acceptes as a member of the NACC. In 1994 it became the member of PFP partnership for peace. In 1995 Georgia joined the Treaty on Conventional Armed Forces in Europe (CFE). In 1996 Georgia involved in Individual Partnership Program (IPAP).
In 1999 Georgia involved in international peacekeeping operations of NATO (Kosovo, Iraq, Afganistan).
From 2014 Georgia has been involved in peacekeeping operations under the aegis of the Council of Eurpe (Central African Republic, Mali).
Within the frames of military-educational cooperation relations were established with the USA, Germany, France, Italy, Great Britain, Turkey, China, Hungary, Ukrain and Russia.
Altogether, Georgia has established military-political relations with around 40 countries of the world so far.
Until 1998 Defencee structure had been developing similar to the Soviet-Russian system; since 1998 started implementation of the reforms which stipulated moving onto NATO standards.
In 2001 a so-called “White Book” was developed, which was the principal guide book for the Georgian Armed Forces and which defined tasks, functions and structure of the Ministry of Defence and Armed Forces as well as the priorities of the reform.
After coming to power in 2004, National Movement transformed the Ministry of Defence into Civilian-political structure.
It was one of the most important steps on the way to compatibility with NATO. Ministry of Defence was formed as a state-political institution.
From 2006 the Government started development of documents, which approves defence priorities and defines its tasks and objectives on legislative level.
The documents are as follows: National Miliatry Strategy, Threat Assessment Document, Strategic Review Document, Vision of Minister, etc.
Within 2004-2014 the National Strategy has been approved and adopted three times: in 2006,2010 and 2014.
Comparative analyses of all three documents show changes in terms of priorites in the field of defence.
The priorities in terms of tasks and objectives of the Armed Forces in 2006 and 2010 are: defense,deterrence and prevention, readiness; participation in international operations.
Defense implies defense of state sovereignity and territorial integrity in order the adversary not to take strategic advantage during hostilities and consider that waging will be related to high casualties. This is the task ofdeterrence and prevention.In consideration of the fact that Georgian Armed Forces is few in number compared to its potential enemy, it should ensure that the enemy does not succeed till the international community and partner states get involved in the conflict.
Based on the above-mentioned, tasks and objectives of Armed Forces implied complete readiness for hostilities and waging of war for defending sovereignity of the state and territorial integrity.
The tasks stated in the National Military Strategy approved in 2014 are absolutely different. The main task in this document is deterrence.
One of the passages from the text reads as follows: “The aim of deterrence is to avoid possible military aggression through developing combat-effective Armed Forces that are adequately manned, equipped and trained. Effective deterrence measures shall make a potential adversary consider an attack unfeasible or not worth the cost of the advantage that could be gained”.
It is clearly visible from the text that the main task of the Armed Forces is not deterrence of an adversary by hostilities and defense of territorial integrity. At the same time, the Strategy specifies that a well-prepared reserve and principle of total defense is one of the main mechanisms for fulfillment of deterrence objectives. However, how the reserve should be manned if we are moving to professional army and what are the principles that the total defense is based upon, we do not know yet.
All three documents of the Strategy state that the Armed Forces are not means for foreign policy, though, at the same time the taks of armed forces increase in international peacekeeping operations through the three documents and currently the army is virtually the means for implementing foreign policy.
The objective of around 30 military trainings held during the recent 12 years was only performance improvement of anti-terrorist operations.
Documents of the National Military Strategy of 2010 and 2014 directly state that Georgia does not have the means of defense and the means of defense is the involvement of international community.
In the combat preparation plans it is known (though unofficially) that in case of hostilities combat tasks of the Georgian Armed Forces cover only 7-14 days period with the hope that international community and partner countries will intervene.
Strategic review document is a several year plan of development and reform of the Armed Forces.New document (adopted in 2013) define budget parameters for the years 2013-2016. Average 65% of the budget is spent on protected articles, 23% – on international operations and only 12% is spent on education, development, construction, procurements, research-science in the military field.
However, the priorities identified in the documents issued by the Ministers of Defence are the same: education, equipment with modern arms and development of infrastructure.
It was noted above that the Ministry of Defence was transformed into state civil institution, though the General Staff is still in an uncertained condition and it does not have its place among the state institutions. During Shevardnadze’s period Commander-in-Chief was the Minister of Military Defence. He was the member of the Security Council and was conferred (at least formally) relevant authority of a Commander-in-Chief.
As a result of the reforms carried out by the “National” movement Chief of General Staff became the Commander-in-Chief, thus the number one military figure of the country; however, National Movement dismissed General Staff from the composition of Security Council, deprived it of the legislative mechanisms of exercising its authority and it cannot carry out its functions and tasks during wartime.
2008 August war clearly showed that neither on legislative level nor actually Commander-in-Chief of General Staff was not the force who directed hostilities; the legislative base is still legitimate.
This factor demonstrates two main postulates of the vision of the government in the fields of defence and security. Waging a war with the purpose to defend the country is not the main priority of the government and the armed forces does not have the objective to conduct hostilities to defend the state sovereignty and territorial integrity.
After Georgia has become the member of CEF or verification Treatment, the number of armed forces was defined based on the quotas stipulated by that Treaty – no more than 1% of total population of the state. According to that quota Georgia is authorized to have 44 000 militaries. Aviation, armour and weapons with caliber wider than 85mm. have their quotas. Georgia has never had neither manpower nor equipment or arms even close to the maximum amount established by the Treaty.
Note: Every neighbor state of Georgia exceeds the number of quotas established for them.Russia left the Treaty in 2008. The number of the defense structure of Georgia is one and the same – 37 thousand in the Law on “The number of armed forces” during the last decade. However, according to the 2017 planes of the Government, Georgian Armed forces are moving to the format of professional army and the number of manpower decreases to 19 thousand militaries (unofficial data).
Nowadays Georgia virtually does not have Marine fleet. It was abolished by the order of President Saakashvili in 2009. The base of the fleet was transferred to MIA as a Marine-Patrol Fusion Center.
After the Ministry of Defence sells (according to the statement made by the Minister Alasania) one big part of tanks, helicopters and aircrafts, Georgia will not have military aviation and heavy armours which can carry out hostilities on an operative level. Losses inflicted to the Georgian Armed Forces in artillery during the August war have not been reinstated and only 40% of nowaday’s artillery base is functioning properly (unofficial data).
Structure and tasks of the Armed Forces has been subject to cardinal changes since 1998. General Inspection was established at the Armed Forces in 1999 the main purpose of which was control and monitoring over combat readiness. From 2004 the task of General Inspection was changed and it does not have the function of checking combat readiness; it is more of a punitive structure inside the defence structure than a controlling one. For carrying out the above-mentioned function that the General Inspection was deprived of a Department for Monitoring over Combat Readiness was established in the beginning of 2014.
Military police within the Armed Forces of Georgia was established back in 1993. The main task of the Police was to ensure order within its structure, carry out control and monitoring over it. By 1999 the Police was abolished and the function of monitoring was transferred to military commandents. From 2004 Military police was restored and it was imposed the functions of MIA in addition to the ones mentioned above.
At the same time it was authorized to extend its competences beyond the structure and spread it over civil sector. Legal framework of the Military Police has not changed since 2007 and was given more legitimation in a number of cases. It has become more of a punitive structure than a mechanism for ensuring order and control.
As a representative of the Ministry of Internal Affairs is registered at civil service as a so-called “secret employ” since 2005, representative of the Military police is sent to every separate division and structure of armed forces. Both are carrying out the functions of control.
If during Eduard Shevardnadze’s periodcounter-intelligence service implemented its functions in accordance with the world-wide approved methods and its conclusions were only of recomendative nature for the Heads of the Ministry of Defence, National Movement introduced the practice when a sub-agency of MIA – Counter-intelligence Service actually defined the cadres policy of the Ministry of Defence and its conclusion was an important and obligatory document.
On the background of statements of the leaders of NATO and its member states made before the Walse Summit, giving MAP to Georgia and NATO-s enlargement are not planned. Picturing international community and partner countries as one of the main aides in the National Military Strategy of territorial integrity and sovereignity, leaves unanswered questions and contains priorities inadequate to the ways for fulfillingobjectives.
The institute of Commander-in-Chief of the state and its effectiveness largely defines the effective use of armed forces for defending territorial integrity and sovereignity of the state.
As a rule, in every state Commander-in-Chief of a country is the head of executive government who is elected. Only in the countries of constitutional monarchy this position is held by anointed monarch.
In case of Georgia, Commander-in-Chief is President who is a political figure elected by universal elections and it is defined by the Constitution. Though, after the October 1, 2012 elections, under the new Government, we have the following reality:
The first person and Commander-in-Chief of the country is the president, though the head of the executive government is prime-minister who is not elected. On the basis of organic law, decisions and regulations adopted by the Parliament, all the mechanisms and instruments necessary to fulfill the functions of a Commander-in-Chief have transferred under the competence of prime-minister.
In this case we are facing a legislative collision. We have a Commander-in-chief who does not have legislative base and mechanisms to exercise his powers and, on the other side, we have the head of executive government who actually has all those mechanisms that a Commander-in-Chief can use during war.
There is a Security Council the objective of which is to assist the first person of the state and Commander-in-Chief in exercising his authorities but does not have the relevant mechanism for it; and also there is a Council for Management of Security and Crisis under the President which is not authorized to act as a Security Council by the Constitution but holds every instrument for carrying out authorities identified for the Council by the Organic Law.
The situation is the weakest link of the state during force majeur and the constitutional collision will always be the heel of Achilles until the amendments are made to the Constitution and the form of governance that we actually have is defined.
Mindia Ugrekhelidze – Chairman of the Supreme Court of Georgia in 1990-1999, Judge of the Human Rights Court of Europe within 1999-2009
- What was the legal policy that the state was implementing for years and what type of constitutional amendments did it carry out within 2003-2012 that negatively influenced the situation in the country?
- I would like to start review from a comparatively distant past as right after Georgia re-gained its independence the Government took efforts to move the country to democratic rails. It should be mentioned that it was a very difficult process. Though, I should highlight one important thing – justice was liberated from the dictatorship of the Kremlin. A very important event happened – a so-called “abridged constitution” – law on state power several articles of which stipulated the issues of circumscription of authority, rule of law and a number of other issues, essential for every rule of law state – was adopted. However, all this was temporary; the real reform started along with the development of a new Constitution. Adoption of a Constitution established many guarantees. A law on constitutional court was adopted; the functions and competences of general, constitutional and supreme court were separated. A law on general courts was adopted. All this happened before 2003….
As for 2003, after the new Government came to power they publicly and openly violated the Constitution. Total power was transferred to the hands of the President. All this happened openly. I was in Strasbourgh when one of the high rank officials showed me a draft signed by Saakashvili which stated that every judge must be fired – and below, in brackets – except Kemularia. History does not know such precedent. The Constitution was a terrible, autocratic document, where the total power was in the hands of one person. It was abnormal and it was a crime.
Those who tried to protest it were silenced immediately. For example, I can remember Mr. Avtandil Demetrashvili tired to contradict all the above-mentioned but he was immediately dismissed from his work at the Council of Justice and then influenced him so, that later he was in service of this and similar illegalities.
- How did the amendments influence judges?
- The rights of judges were rudely violated when they were dismissed from work without any grounds. It’s true that if a judge accepts bribe he/she should be punished but only after proper investigation of the case. This was not the case, the case was that the Government needed jobs to emoply its supporters. Judges were dismissed to vacate places for the political powers favourable to the Government or for their supporters.
Massive dismissal of judges served to exectly this goal. It should be noted that neither the Council of Europe nor the US spoke up against the injustice. They might have contradicted the government but not as much as it was necessary and Saakashvili did what he wanted to do and even Shevardnadze could not resist the actions of the youth wing of his party “Citizens’ Union” (“Moqalaqeta Kavshiri”). It should be noted that the late Zurab Jvania was to be blamed as much as Saakashvili in this regar.
They shook the authority of a judge. All these ran against the basic principles of 1985 on the independence of Court and their invariability. This was not a reform; these were the amendments which served to personal interest of a certain person.
- You were a judge of the European Court for Human Rights; from that prospective could you tell us whether the amendments were compatible with international standards and other legal aspects.
- No, they were not compatible at all; litigation cases that were filed to the European Court of Human Rights reflected the actual situation very clearly. Finally, instead of verdicts and rulings we received information on what type of case was reviewed and what was the sentence.
- Did the government take the opinions of public and lawyers on various reforms into consideration?
- The Government did not consider anything at all; on the contrary, they did not even react and respond to your advice. They were carrying out the policy that was favourable to them and were not interested in anybody’s opinion even slightly as their goal was to take full control over every process ongoing in Georgia in order to avoid anyone like Bidzina Ivanishvili. Due to such legal malpractice, political processes were not going on at all as there was only one power, which would do whatever it wanted to and neither law nor court would create any barriers to it.
Such was the situation and that’s why I consider that Ivanishvili’s arrival at the political scene implied saving of the political process despite the fact that he did not have any political experience. Currently I think that the government should adopt laws that will ensure restoration and establishment of justice.
Manana Kobakhidze – Vice-speaker of the Parliament of Georgia, Human Rights Defender, Advocate
- How did the amendments made to the laws and the Constitution by the Govenrment within 2003-2012 influence the development of various fields in Georgia?
- After the change of government in Georgia in 2003, the role of the Parliament was diminished and the functions of the President – increased. This amendment transformed the country into a super-presidential republic and the President – an autocrat. President was the ruler of all rulers who made both the Parliement and the Government to act the way he wanted them to. Moreover, Saakashvili even ran Government sittings and determined its working process himself.
In addition, the President took over the functions of constitutional control which previously was the function only of a constitutional court. President had the opportunity to dismiss parliament and form a new government. President could change ministers so that the Parliament would not, could not interfere as it did not have any mechanisms for it. Amendments made within 2003-2012 upset the balance among legislative, executive and judiciary powers.
The country had a serious regress in terms of criminal policy; zero tolerance was announced and then further reflected in legislation. In particular, as you know the principle of merger of sentences was abolished in the Criminal Code. Severity of sanctions was too obvious and the terms of punishments calculated on the basis of the principle of cumulating sentence exceeded the terms of punishment established in any European country. As a result, Georgia became the leading country in temrs of number of prisoners on per capita basis. We had 30 000 prisoners and 300 000 people were released on probation. So-called “procedural agreement” was developed in a very malignant form and was directly related to filling up the state budget.
People were forced to confess the crimes they had not committed. Court did not even review proceduralagreement. According to these amendments judge was left only the function of a notary and he/she only verified the process of concluding the agreement which implied serious restriction of a defense.
The rights of victim were minimized almost to zero. Victim could not appeal against the conditions of procedural agreement; consequently he/she was absolutely vulnerable.
Legislation was concentrated on a very high amount of sanctions of property. Sanctions became even stricter in all directions and human principles of criminal law became less important. The balance between committed crime and punishment was lost.
As for the freedom of media, it seemed as if we had a law on the freedom of expression; however, if we take a look at the activity of the National Communication Commission we will find a lot of violations there, including related to the Public Broadcaster. The previous government was attempting to give priority only to the meadia means which it wanted to and give licenses to the persons who were in friendly terms with the government. By the way, all this is given in the investigation document of the interim commission of the Parliament which was headed by Mrs. Tina Khidasheli and a serious work was done to this direction.
I can’t review the Labour Code just briefly which authorizes employer for doing everything. Employer, without any grounds and reasoning, could fire an employee; by doing so employer seriously violated human rights. Such actions from employers resulted in that a lot of people lost their jobs. The law did not ensure accomplishement of those social and labour guarantees that everyone should be authorized to enjoy. Fortunately we, the new government, changed the situation and adopted a new Labour Code. In the Code we increased the mechanisms for protecting women’s rights – the length of maternity leave increased to 6 months and payment for a leave – to GEL 1000.
- Why the government did not want to carry out the human rights oriented legal policy?
- The government chose the policy of terror and intimidation to gain control over the population. The government interfered in every field. They dismissed people from work indiscriminately, including those from academic circles and called some of them “washed off” – coinage of the term shall be entrusted to the President.
The government wanted to fill the vacant places at school, academic institutions with the cadres selected by them in order to have control over the intellectual part of the society.
Media, independent institutes, court were all politicized and under the influence of executive government. It is not only my assessment. Various competent organizations, including experts of the council of Europe, EU and the representatives of Department of State of the US think so, too. They criticized the situation in regard with the Court when the number of acquittals was almost zero and cases were not appealed to higher instances.
- What was the preventive factor for advocates to carry out their professional liabilities?
- There were a number of norms in the Criminal Procedure Code that prevented advocates from accomplishing their professional activity properly. For example, accused had to write appeal complaint. If an accused who was in prison, did not write a complaint, advocate was not authorized to appeal the case in the court him/herself. It was an artificial barrier as an accused might have been transferred to another penitentiary facility within or outside the city and the terms for submitting complain were restricted. The situation was extremely hard when the case was to be appealed within couple of hours.
Cases when advocate were not allowed to see accused,especially if he/she was tortured and beaten and the signs were visible, were frequent. Prison administration did everything within its power to prevent advocate from seeing his/her client for several days.
In addition, meetings of an advocate and his/her client were tapped. Surveillance cameras and bugs were discovered in the rooms of some advocates which was violation of every legal standard. They eavesdropped the conversation of a prisoner and his/her advocate and if they did not like anything from the conversation they made the conditions for the accused even more severe. They revenged for what the accused told his/her advocate. Cases when an accused had to refuse the service of his/her advocate were not rare.
Previous government created a lot of problems to advocates. Around 200 advocates were imprisoned with various forged charges, including charges on fraud when criminal offence could not be identified in that particular case. Moreover, if a client had any kind of claim against his/her advocate, he/she could file a civil lawsuit but the government used all such cases for institutional persecution against advocates. Even Stalin did not imprison 200 advocates.
Eka Beselia – Chair of the Human Rights and Civil Integration Committee, advocate within 2003-2012
- What was the legal policy that the government was implementing within 2003-2012 and how did the constitutional amendments influenced human rights?
- Constitutional amendments during Saakashvili’s period were the whim of one man and served only to political interests of the members of National Movement. We remember how the previous government adopted the amendments hastily as a result of which they broke the balance among the branches of the government.
- Did the government consider public opinion on negative results of reforms?
- The government did not consider any opinion, including not of a Venice Commission. Only now, when they are in minority and opposition, they remembered the existace of this Commission.
- What was the triggering factor for the fact that Georgia was the first country throughout Europe in terms of the number of prisoners?
- National Movement scrupulously observed strict criminal policy and Georgia held first place in terms of number of prisoners thoroughout Europe. Court was politicized and there was not a single institution which could protect human rights.
- According to the amendments planned to be made to the Administrative Code of Offences limit of administrative imprisonment will decrease from 90 to 15 days. Why did this amendment become necessary?
- Previous government increased this term to prevent political opponents from the ongoing processes. Existing term of administrative offences does not comply with international standards. I welcome this amendment as it would be important step forward in terms of human rights protection.
Shalva Shavgulidze – First Deputy Chair of Legal Issues Committee
- What were the legislative amendments that the government implemented within 2003-2012 and which made the situation in terms of human rights protection even harder?
- As Georgia became the member of the Council of Europe in 1999 legislative reform started to be implemented. We based our legislation on the jurisdiction of the Court of Europe and it was harmonized with the European legislation step by step. It can be said that from 1999 to 2003 was a good period for law enforcement and justice. From 2003 government started adoption of such legislative amendments which took us far from European standards and we received legislation characteristic for dictatorial state.
In particular, principles of equality of parties and competition were ignored; thus, prosecution was given huge advantages at the expense of decreasing rights to the defense party. Interest of a victim was absolutely ignored; institute of procedural agreement, approved both in the US as well as Europe, was introduced; however, the goal of such agreement should be administration of effective and fair justice quickly. In Georgia’s case procedural agreement became the means of cashflow to the state budget.
In addition, maximum limit of fines was not determined. Imposing unproportionally high amount of fines on people shall be inadmissible and unacceptable. It is difficult to talk about everything within one interview, but to cut it short, legislative amendments carried out within 2003-2012 took our legislation and justice further from the European ones. We contradicted European standards and it was reflected in the rulings returned by the European Court against Georgia. Almost every case was lost by the state in favour of plaintiff.
- How much did the government consider international standards and a number of legal aspects while making amendments?
- Government did not take anything into consideration. All the above mentioned – degradation of our legislation – was further added following negative elements: the court was no more independent, it was under the control of executive power. The government established a rule for staffing the Council of Justice by itself. Council of Justice is a body which is responsible for control of the court and thus the court was fully under control of political leadership of the country via the Council of Justice. Government also used such malpractice as falsly blaming crime on people, secretly putting drugs and arms and as a result we received a very bad legislation, absolutely incompatible with European standards which made the population of the country lose hope that justice would be served.
Government turned the court and justice into punitive bodies; they were not the institutions that should distribute justice any more. This way the Government was trying to maintain control over people. However, such attempts are always destined to fail and none of the governments across the world could maintain such repressive regimes. All this would remind you a repressive regime of the 37s’ with the only difference – within 2003-2012 people were not sentenced to be shot.
All the above-mentioned was followed by its logical results: injustice that was brought about in the name of justiceturned out to be unacceptable for the public. This injustice was one of the main reasons why people, the voters did not vote for the previous government on 2012 Parliamentary elections.
- Amendments are planned to be made to the Code of Administrative Offence. A draft, one of the authors of which, among others, is you, has already beend submitted to the Parliament for further examination. Amendments imply decreasing the term of administrative imprisonment from 90 to 15 days. What was wrong with the old 90 days?
- Reason for the amendment is that we want to bring it closer to European standards. As imprisonment is the most rarely used means in Administrative procedure, financial and other types of sanctions should be used and imprisonment should be extreme measure. The previous government introduced 90 day term for administrative imprisonment. As a rule the government used three months imprisonment in an abusive manner against the freedom of expression. To put it simply, they detained people at opposition demonstrations and sentenced then two or three months’ imprisonment. That’s how they prevented the people unfavourable to them from participation in pre-election campaigne.
If a person deserves three months pre-trial imprisonment, then the criminal law should be applied and a person should not be kept in three months pre-trial detention with the charge of simple offence. 15 days is approved term and it has been practiced for years. If an administrative offence achieves the point where other types of financial and restraining measures is not necessary and imprisonment is not essential means, then 15 days imprisonment is absolutely normal; this way a person will analyze that his/her anti-social behavior was so unacceptable that he/she was placed in a detention facility for 15 days.
- As for the other amendment, Code of Administrative Offences does not stipulate the obligation of explaining his/her rights to offender right after detention. Approval of amendments implies that any law enforcement officer shall be obliged to explain the rights to the person detained right after detention. Why has making such an amendment become necessary? What rights were violated?
- A person was explained his/her rights only after a report on his/her detention was drawn up. Drawing up a document at the sight of detention is not necessary; it may be drawn up after a certain time from detention, when a person is already sentenced which might take much time. Consequently, a person should be explained his/her rights right after detention; he/she should know his rights in order to use them effectively. Previously, the report was drawn up in the Police division after obtaining testimony from a detained person; thus, the person could not use his/her rights. The only goal of these amendments is to help a detained person to know his/her rights.
Nino Burjanadze – Leader of the “United Democrates” Party
- You were the Chair of the Parliament of Georgia until 2008. Majority of experts negatively assess the amendments made to the legislation from 2003. These assessments also refer to you as you were the Chair of the legislative body and you are a lawer by profession. What’s your assessment of the situation?
- As for the legislative amendments, I have been reproached for them many times; I think I partly deserved these reproaches and, in some cases, I took responsibility on more than I should have.I think those who are aware of Parliamentarian life, know that the Chair of the Parliament, who does not have a team and cannot influence political decisions, is very restricted within his/her powers. By the way, the words of current Chair of the Parliament Mr. Davit Usupashvili couple of months ago, expressed what I have said above very clearly. Mr. Usupashvili said: “Why are they criticizing me? I am a Chair of the Parliament but I have the right to vote only once.”
However, I can remember that it was Mr. Usupashvili himself, his spouse, his party-membersblaming everything on me, Chair of the Parliament who had less functions back then, than Mr. Usupashvili has now and had that one vote on which Mr. Usupashvili is referring to.
I was absolutely against adopting constitutional amendments in February-March 2004, which gave indefinite authorities to Saakashvili. I was completely alone then. Neither the public, media, nor the Parliament supported me. Those amendments entailed many other negative amendments later on. However, I can tell you that there were number of regulations that I supported; for example, articles on procedural agreement and probation, which we added to the Code and supported its adoption; however, there was no political will with which we could make use of good amendments in a positive manner.
I was glad that we had adopted such a human norm. I think that when a person has an option to pay fine to the state budget and avoid imprisonment this way, well, even at least at the expense of using the finances of his/her family is ideal. This way we could save a lot of people from imprisonment.
This article is approved as the most human in any democratic country. It’s natural I could not calculate and imagin that in the hands of the National Movement this amendment would be used solely for filling the state budget and for enslaving people when people were literally tide to the gates of prison with theprocedural agreement. Any type of activity, either political or civil, represented threat for them.
- Which was the most unacceptable legislative amendment except for the constitutional one?
- There were a lot of such amendments. For example, I protested decreasing the presidential age to 35 years at Shevardnadze’s as well as Saakashvili’s period. I was the only person prostesting such amendment and people around considered that I was doing so because I was against some, uncertain person becoming a president. There were many attempts to relate my sincere and competent statements to personal interests while I did not own any media means, did not have non-governmental sector under my control and did not have a team in the Parliament. Saakashvili, and not only he, started winning over whoever were my supporters. Right after Saakashvili came to the Parliament, he offered my supporters either favourable business opportunities, or sent abroad for working or offered jobs in executive government and left me without a team. I also protested decreasing the age of judges and the amendment which later was the cause of establishing the same vertical in the Court system. I think those statements that Burjanadze was not protesting this back then is not serious; public did not react adequately onwhat I was protesting loudly.
There was another legislative amendment towards which I had a firm position on. It referred to financing media. I invited the representatives of all meadia means of Georgia. Instead of supporting me on the allowances of their taxes and freeing them from taxes, they separately stated that the amendments did not pose problem for them. It turned out that I was the only person who saw this problem.
Mariam Tsatsanashvili – PhD of Law, Professor, Parliament secretary of President before 2003
- Did the legislative amendments carried out within 2003-2012 guarante exercising independent and fair justice?
- It can be said that justice was not independent at all. It was only the government who had a number of legal mechanisms to control. That’s why the court system was completely bound by the government.
It should be noted that the amendments made in the first place were reflected on the right of ownership. People could not protect their property. The issue of relation with commercial banks became important and notaries could register an apartment of an owner on their name. It was a very difficult process; people were deprived of their property. Giving priorities to banks by the government resulted in the situation where a citizen was not valuable subject in civil relations. This is the reason why so many people have lost their residential aparments.
As for the Criminal Code, article on the principle of cumulative sentence and procedural agreement, the Govenrment used it directly for trading with people. If you paid money they would set you free; otherwise – put you in jail.
- What caused the low number of acquittals on criminal cases?
- Acquittals on criminal cases were not ruled almost at all. You can see it by yourself if you go through statistics. As the court and government were interrelated it implied that if the case went for court hearing then it would be decided the way the government wanted it to be decided despite a person accused was innocent or not. There were a few cases when the judge ruled acquittal for which the judge was punished. Judge who would make anunfavourable ruling and unacceptable for the government would lose his/her job.
- Why did not the government consider public opinion?
- What the government wanted was to stay in power permanently, establish authoritarian regime and breach the public and government, which, I should highlight, they managed quite perfectly.
Gela Nikoleishvili – Advocate, Humand Rights Defender, Member of the Parliament within 1992-1995
- What are the specific problems that the legislative amendments within 2003-2012 entailed in the country?
- In terms of legislative amendments the wrost was introduction of the principle of cumulative sentence. Based on this principle the court sentenced 15-20 years instead of 2-3 years. That’s why we had 25 000 prisoners while before introducing the above-mentioned amendment there were from 5 to 10 000 prisoners. In addition, longterm dates for prisoners was virtually abolished (which was restored only recently).
Court sessions were closed and using a voice recorder became impossible to say nothing of a video camera. Amounts of fines imposed on advocates reached catastrophic indicators. The amount of fine which had varied from GEL 50 to GEL 500 before reached to GEL 5 000.
- Why did the government act so?
- Human rights is a field which you can regulate the way you want. National Movement, like Communists and any anti-democratic regime, believed that if they did not established zero tolerance for any type of crime, not increase the number of prisoners, not sow fear in the public would not be able to establish public order. However, it is noteworthy that they have established order. They imprisoned people for every minor misdemeanor and the conditions were intolerable in prison. They were treated brutally. Everybody knew what was going on in prison and tried not to be sent there.
It is possible that the part of the total population of the country be imprisoned and for the other part be order. Actions of the government described above are acceptable for them.
- As an advocate what do you think, what rights of advocates were restricted?
- I can say that after the “Rose Revolution” the conditions for advocates became more difficult in terms of practice rather than theoretically. For example, law does not stipulate that a prosecutor should have decisive word for every judge; however, we know that when it was about restrictive measure and prosecutor requested imprisonment and advocate – bail, judge granted the request of a prosecutor in every hundred cases out of hundred. The same happened while ruling a verdict of guilty. Witness who would try to say the truth at the court hearing would be sent to prison immediately with the motive of changing the testimony while the same witness might have testifyied differently because of beating, pressure or threat; because of this witness became the hostage of his/her own testimony. Under such circumstances advocates had just formal functions.
I cannot say that the situation has changed dramatically after the change of government; however, better tendencies can be witnessed. Not because they have become kind… judges and prosecutors are the same but the policy of the government has changed. Judges are no more requested to unconditionally grant prosecution’s demand and consequently, the number of rulings in favour of bail instead of restrictive measure has exceeded 50%. The percentage rate of acquittals has also increased. It does not imply that the situation is perfect but positive tendencies are clearly visible.
Zaza Khatiashvili – Chair of the Bar Association of Georgia
- What were the legislative amendments that the government implemented within 2004-2012 and which prevented advocates from fully carrying out their professional activities.
- The country was sustaining regress in every field, including legislative. Functions of a judge were restricted maximally; prosecutor became dominant. Thus, the introduced legislative amendments were repressive, repressive state mechanism was established. Human rights violation happened on a massive scale though the court was bound by the government and when the case went to court judge could not return independent, impartial ruling.
A new Criminal Procedure Code entered into force in 2010. According to article 111 of the Code advocate was not authorized to apply to the court on implementeation of investigative actions –withdrawal of evidences and search. Withdrawalof evidence was considered requesting information. For example, I can remember one case when advocate was Mr. Levan Samushia who was defending a person detained in Batumi with the charges of robbery. The defendant was saying that he/she was in Tbilisi at the time of robbery and was requesting withdrawalof the list of phone calls made by him/her on that day which would prove that he was in Tbilisi at the time of robbery.
When the advocate applied to the court and wanted to withdraw information from the company of mobile communication “Geocell”, judge told him that it was considered take out of information and according to article 111 he was not allowed to it.Thus the right of an advocate to withdraw information was absolutely restricted. It was terrible and I would like to say that the same is going on today.
Article 6 of European Convention of Human Rights and Freedom establishes standard on equal rights of prosecution and defense parties in the process of interrogation of witness which further establishes the principle of competitiveness and equality. However, Georgian advocated cannot enjoy these rights. Prosecutor has more rights than an advocate.
The history of European countries does not know the situation that was in Georgia during recent years. During 9 years of Saakashvili’s period, 152 advocates were judged. World history does not know such massive scale of persecution of advocates. All of them were charged with criminal liability and what is important, all of them were sentenced.
When I was appointed as a Chair of Bar Association, 111 advocates were imprisoned. I appealed to the International Observatory of European Advocates and according to their conclusion practicing of advocate’s profession in Georgia was announced risky. They said that law profession was completely degraded in the country and advocates are practicing their functions under fear. Such conclusions were not written even on Lukashenko.
It can be said that the only positive event during the previous government was adopting law on press and freedom of expression which granted broader rights to media. It is noteworthy that the law was truly revolutional which protected the rights of journalists and attached highest importance to freedom of expression.
- However, media was prohibited to make audio and video records at criminal processes. What were the problems that this restriction caused?
- After Sandro Girgvliani’s case when people already knew about our court system, the government prohibited video recording at court sessions. They did it because of Girgvliani’s Vazagashvili’s, Gamtsemlidzi’s and other people’s cases as these cases became publicized and people saw what was actually going on in the court system and the aggression against the government increased. That’s why the government abolished the institute of a victim. Victim was not authorized to appeal against a case.
Prohibition of audio and video recording at court sessions resulted in faking reports. Very often judge wrote what prosecution wrote in its accusatory statement in the report instead of what the witness was saying.
The goal of the government was formation of a police state. Via massive violation and ignoration of human rights the government wanted to strengthen repressive state mechanism to have the population under permanent fear.
Lia Mukhashavria – Human rights defender, Advocate, Head of non-governmental organization “Human Rights Priority”
- What were the amendments made to the Criminal Code within 2003-2012 that had negative influence on human rights?
- Government announced zero tolerance and strict legislation policy. In 2006 when the President of Georgia and the Chair of Supremen Court announced zero tolerance, it was clear and impending that the legislation would be changed relevantly.
Consequently, principle of cumulative sentence has changed which brought us to catastrophic number of prisoners in the country. In addition, the court ruled the most severe sentence to an accused; for example, if an accused had to be sentenced from 3 to 5 years court sentenced 5 years, maximum term for the crime. Probation was hardly applied and restraining measure was always imprisonment. Every other measure in the criminal process except bail and pre-trial detention was abolished.
- As for advocates, on the background when almost all of your clleagues stated that the number of acquittals ruled by the court was almost zero, what functions were left to advocates?
- Introduction of the institute of procedural agreement stipulated simply attendance of an advocate at the court session. Advocated was merely a witness while a judge was a notary. Thus, advocates, especially those highly qualified advocates who were working on criminal cases, saw that they could not influence the criminal case and help their clients and, so many of them moved to civil and administrative fields. It is worth mentioning that the situation is changing step by step.
- Why did the government need to carry out such amendments? Why did not it introduceamendments concentrated on human rights protection?
- The government had a very simple objective – terrorize people; it can be said that it had achieved that goal. Georgia became a totalitarian state where the government did everything to have the population in terror, fully control the public and prevent people from expressing any type of protest. Thus, it is natural that all the above-mentioned was adequately reflected on legislative amendments and carried out in practice.
- However, government was always proud of the police reform….
- Yes, the government was proud of that reform but they used the policemen as witnesses when they imprisoned people absolutely illegall with political motives with the charges of resistence to the police. Police became political weapon of the government and it was very tangible.
Valeri Gelbakhiani, Member of the Parliament of Georgia within 1999-2008, Leader of a non-governmental organization “Our Georgia”
- During recent years opposition was repeatedly requesting making fundamental amendments to the election code. What was the reason for this protest? What were the legislative amendments that the government carried out wthin 2004-2012 which later had negative influence on the condition of oppositional parties and election environment?
- It can be said that election legislation is a second in terms of importance after the Constitution as the process of formation of government depends on it. Government had monopolized control over election administration. It was the first restriction of human rights, when the ruling party was in advantageous state and the rest political parties were in unequal situation. The first discrimination was adoption of that law.
Introduction of the concept of qualified parties was also discriminatory. The parties which had surpassed minimum threshold in either Parliamentary of Presidential elections were called qualified whil the rest were deprived of every right. This was on the background when every political party was requested by Constitution and the law to submit 25 000 signatures confirmed by voters to the Central Election Commission. These signatures proved that the party was qualified for participating in elections. However, the above stated ground was not considered and the parties were not considered qualified.
Advertising time-limit of broadcast for parties, which costs two-three million during pre-election period, should also be mentioned. However, dominant parties were given five million allowances while these parties had their own financial resources.
It was followed with the law on the Chamber of Control (known under this name back then), which was further strict for those political parties, which were considered unqualified. These parties had to submit a report on a weekly basis on the amount of money they had received as transfers, how did they raise financies, was that property legitimate, what did they spend money for and so forth… to leave everything else alone, plenty of time was wasted only on collection of these documentation, which had negative influence on election campaign. Quality of freedom was restricted and control mechanism on oppositional parties was increased.
Such inconsistent attitude, discriminative gradations violated constitutional principles, according to which everyone shall be equall. Constitution prohibits discrimination on every type of discrimination; however, the law directly violated the constitution and unfortunately the law is still in force.
- What amednments did the government implement in civil legislation?
The government had right on everything and it was not only in dominant and advantageous state, but did not recognize any liability as well. Instead, natural and legal entities were imposed every types of liabilities, their rights were restricted and procedural and so-called “material” legislation established total inequality. Appealing a case in higher instances was pointless. No one can remember even a single precedent when a cassation appeal was reviewed by the court. It was direct restriction of constitutional right of a person. Article 42 of the constitution stipulate that every person shall have the right to appeal to the court for protecting his/her own rights and freedoms and these rights shall be guaranteed; however, people were deprived of these rights.
A principle was adopted which stipulated that complaint must be allowed on any instance, whether cassation or appellation. Thus, the investigation requested from complainers that the review of a case shall bear an important function for the development of judiciary. Thus, the Supreme Court is legally requesting from people to prove that their case is important for the development of judiciary. Why is the state imposing this liability on people? People are meant to be going to higher instances for protecting their rights and interests. I think that such harsh attitude towards the interests of citizens in private legal relations was one of the biggest discriminations ever practiced in the field of civil law.
We have joined to the Convention on Human Rights and Basic Freedoms which states that any illegal ruling or decision shall be considered as abuse of authority from the state and every thus affected person shall be subject to counter-protection and restoration of his/her freedom. However, even a single example of upholding this part of the Convention cannot be observed neither before 2012 nor under the new government.
Parliament of Georgia adopted a ruling on 200 political prisoners, but which of them received compensation? Which of them was considered as a victim of justice? Who was punished for all this?
If both, acting and previous governments knew that they would be held responsible for what they commit they would not act so.
- So, it seems that the main problem is the impunity syndrome which entails other grave problems.
- Yes, the problem is that the state does not want to observe the liabilities undertaken by the Constitution.
We do not have labour legislation. There are approximately more than hundred conventions regulating the labour field which envisages Georgia among others but you cannot name a single convention that Georgia has complied with.
Law on enforcement which was adopted during Saakashvili’s period is still in force. According to the law, an enforcer is authorized with indefinite powers. When, by the court decision, money is withdrawn from an account, 6-7% of that money belongs to the Bureau of Enforcement. The law entitles notarys to make a decision by themselves, without court while Article 21 of the Constitution of Georgia directly stipulates that the right of ownership shall be inviolable and depriviation of property for public need shall be admissible only in the cases directly stipulated by the law, with the court decision. However, the law on enforcement makes fundamentally different statement – a notary, without a court decision, can issue a bidding document for enforcement of any obligation set forth by agreement and bring property to a bidding arranged by the National Bureau of Enforcement without informing an owner of the property. Selling property without a court decision is direct violation of Constitution.
Thus, it is difficult to review a separate case of violation on the background of a vicious legislation; let’s leave alone criminal law where we can find a lot of violations. Everything was directed towards violation of human rights in the state.
Irakli Petriashvili, Chair of Trade Unions of Georgia
- Mr. Petriashvili you protested the acting labour code quite often. What is the most unacceptable statement in this Code which affected an employee?
- In 2006 the government adopted a labour legislation which was completely unilateral as it granted indefinite rights to an emoployer while establishing only obligations to the employed; it made an impression as if the objective of birth of every employee was to serve an employer.
Government was lying when stating as if it was observing European norms and standards. Actually, the acting labour code was violating every European standard. Employer and employee did not have communication, work overtime was unlimited, employer was allowed to request an employee to carry out as much work as the employer wanted and then dismiss him/her.
Article 37 of the labour code entitled an employer to terminate labour contract with an employee without any grounds only according to his/her good will.
- Mr. Petriashvili, there must have been cases when employed applied you, as a Chair of Trade Unions of Georgia, with complaints. What type of complaints did they have with employers?
- What I have mentioned above created serious problems. In addition, unlimited work time was also problematic. According to article 37 of the Code, employer was free to terminate labour contracts and dismiss employees. People were fired because of establishing trade unions and unfortunately these people could not find justice. In this case even the Court and its lack of independence were not problematic as the source of the problem was labour code according to which an employer was in a favoured condition.
- Can you remember a case of punishing an employer for violating the rights of an employee?
- No, I cannot. We punished employers when we went on strike. Where the staff was strong and resisted pressure, we achieved our goal. Despite the blackmail that the power structures and state officials were carrying out against us, we still managed to achieve success and concluded even commercial agreements with employers though such cases were very rare.
- Why did nothing change during that 9 year despite your protest and the protest from the public? Why did the government want to have such a Code? Why did not it want the Code which would protect the rights of employees? What was their interest in this case?
- Government was saying that establishing any type of regulation to an employer, businessman or investor would create unfavorable climate for them. However, it was only a statement. Actual reason was that the representatives of our government wanted to prove to American Republicans that inculcating the ideas that Republican neolibertarians and every other neolibertarian have about neolibertarianism was also possible in Georgian reality; the previous government carried out certain experiments on its own people.
Today I am surprised to hear the representatives of previous government saying that signing an Association Agreement with EU is their merit. They are telling us to remember who were working on this issue and they are implying Levan Ramishvili, Giga Bokeria and Vato Lejava while these are the people who have always been saying that Europe is a Socialist-Communist world, full of Arabs and Moroccans, that Georgia should quit thinking about Europe and stirve for the countries of opportunities like America, Singapore and Dubai. The Dubai and Singapore advertised by them is not Europe either in terms of Geography or economy.
- Certain amendments were made to the Labour Code after arrival of the new government. Are these amendments enough to better the situation?
- First that these amendments are not enough and second, they are not even implemented. We may have a better Code but only in the form of a Code. They are not actually practiced. People cannot make use of them.
The only positive event is that the approach has changed and the people who go on strike are not battered with batons and imprisoned as the government does not interfere with the relationship of an employed and employer in favour of an employer. A lot of issues have been regulated through dialogue but this is not a result of the Code, this is a result of the environment where employed have felt freedom.
Kakha Kukava, Leader of a political party “Free Georgia”
- What did the constitutional amendments, made within 2003-2012 by the government, resulted in?
- In 2004 after the arrival of a new government number of constitutional amendments was carried out. The amendments resulted in losing balance between the branches of government. It should be mentioned that the government was criticized by international organizations for adopting these amendments.
Based on constitutional amendtments, let’s call it, an anti-court reform was carried out which completely infringed independence of the court; the court was actually subjected to Prosecution.We rememeber that judges received direct indications from the Prosecutor General on the verdicts to return.
In addition, merging of the Ministries of Internal Affairs and the Ministry of State Security also violated human rights as the whole operative power was in the hands of one body. Indefinit authority was given to the Ministry of Internal Affairs and the bodies which balanced it – either Public Defender or Parliament or other bodies – were merely shams.
Altogether, all these very much resembled to the system of governance of the Soviet Union in the 20s’-30s’ and which is generally characteristic for authoritarian countries. This type of governance is called a police state and we can remember the amendments that the government made to the Police Law of Georgia which referred to “reasonable doubt” and allowed illegal detention, search and examination of people only on the basis of “reasonable doubt”.
- According to lawyers, problems derived also from frequently amending the Constitution…
- Making amednments to the Constitution so often is definitely unjustifiable to the countries where constitutionalism is a tradition. The difference between the constitution and other laws is that the Constitution shall be basis to every other law and consequently it should be firm.We know that as many amendments were made to the Constitution of the US within 200 years as Saakashvili made to the Georgian one within 9 years. The fact that every whim of government was reflected on the constitution vilated it.
- You mentioned a whim, how much did the government consider public opinion, opinion of opposition and lawers while making amendmants?
- The government never considered anybody’s opinion. We should also mentione the fact that the constitutional amendments were adopted in exactly the form they were initiated. Constitution, as well as many other legislative acts, becomes the subject of concensus in many countries. For example, we know that even Barack Obama cannot make amendments to the Constitution of the US in the form he wants to. He has to agree any amendment not only to the opposition but to other influential public groups too. However, Georgian government has never observed this procedure. We, the opposition wanted our notes to be properly reflected in the constitution; however, minority report has always been unacceptable for the government.
- The institute of procedural agreement,through which quite high amounts of money flew to the state budget, was the subject of criticism for years. What were the problems that derived from procedural agreement?
- Procedural agreement was an institute unfamiliar to the legislation of Europe which was copied from the US. It was copied to Georgian legislation in a very bad form. It should also be mentioned that the American institute is not much respected inEurope. However, the procedural agreement was the form of trade in Georgia. Justice did not have functions. Accused, instead of finding evidences and think of defending themselves, were trying to find an advocate who would profitably trade with the prosecution. Principle of competitiveness of parties which is approved in democracies lost meaning in Georgia.
Lali Aptsiauri – Advocate, Human Rights Defender
- What was the criminal policy that the government was carrying out within 2003-2012and how did the amendments influence the situation in the country?
- Criminal policy did not exist in the country. Judge returned a verdict in accordance with the opinion of high rank officials. Documents, whatever it might be, even a blank page, presented by the prosecution, court considered as necessary and returned a verdict of guilty. I cannot even think back what we have undergone.
I can say with all the responsibility and each ruling and criminal case also confirms that that from 2003, from the day when National Movement came to power, people were judged and punished according to the opinion of a certain high rank official.The problem was not much related to legislative amendments, as the amendments would not go beyond European standards. Fundmanetal change of any article and turning into a harsh law would definitely be visible for the internaltional community and that would be restrictive for the government. That’s why everything was in normal state at a glance, human rights were protected but everybody knew what was actually going on.
Around 400 000 people were brough to court during the period of National Movement. According to the data, actually the whole nationa was criminal. This happened because legal policy did not exist and we were beyond legal frameworks.
- Advocates even expressed their protest by holding a demonstration. What were advocates’problems?
- The government started institutional persecution of advocates on massive scale. Advocates were blackmailed and by the amendments carried out during recent years of National Movement, rights of an accused and an advocate were equal. Even back at Shevardnadze’s period an advocate needed sanction from the Supreme Court to conduct search and it was granted very rarely, only in special cases. The situation changed during the period of National Movement. Despite of all the above mentioned, I think that even under such legislation, under such hard conditions, a qualified lawyer could carry out his/her activity successfully if the court had been fair; however, no one was interested by the qualification and professionalism of a lawyer. The result was still zero even if an advocate submitted aboundance of evidences. The core problem was that the court was not independent.
I was voicing this problem from the very first day when National Movement came to power in 2003, though, as you see, without any result. You might remember that on January 9, 2004 in West Georgia, in particular Kutaisi, people protested detention of a person as the police secretly putweapon to 104 old woman. They did it by mistake and it was at that time when the government first used force against its population who protested the fact; people who were chased by Special Forcesto subdue their fair protest had to escape to forest.The goal of the government was to inculcate fear in people and control the public and they did it for 9 years. I rememeber the time when stout man whispered during visits in the prison. I told them to hold their heads up, to say hello to me; they were not even allowed to speak.
The government was boasting that they filled the budget and that they had success; today, when businessmen are allowed to speak it becomes clear how the government filled the budget. Nothing worked in the country and the state budget was filled with money received from procedural agreements. It is inadequate when the court judges a person to pay GEL 6 mln as a bail. Such precedents are not observed even in highly developed countries where the salary is EUR 5-10 mln. Was imposing such amounts of money as a bail in a country population of which was trying to cope with the level of subsistence adequate from the government? That policy left half of Georgia without a place to live in.
Shalva Khachapuridze – Advocate
- What were the constitutional amendments implemented by the government within 2003-2012 which negatively influenced human rights?
- In February, 2004 newly elected president Saakashvili implemented revolutionary amendments to the Constitution and turned the Constitution in force from 1995, which was assessed as fundamental for the development of a yound democracy by foreign experts, into a tyranious document. The constitution was an American model of Parliamentary governance which ensured independence and balance of all three branches of government. President was not allowed to dismiss parliament; formation of an executive government and control over its activity was a full prerogative of parliament. Constitutio of Georgia, in particular article 52, guaranteed freedom of expression for a deputy, his/her imunity which, on its turn, guaranteed high quality of freedom for opposition. Independence of court was guaranteed by the composition of Supreme Council of Justice. Quality of freedom of the press, a so-called fourth government, was not far from the standards of any other democratic state. After the constitutional amendments of 2004, formation of executive government became the prerogative of President; President was also responsible for dismissal of Parliament. According to article 73 of the Constitution, President was authorized to get involved in the activities of Parliament. According to the amendments, government ordered draft legislations; Parliament was not authorized to adopet a law on its own initiative or make an amendment to legislation. Consequently, Parliament became a political hostage as long as if it did not adopt the law initiated by the government, it was possible that President would dismiss it according to articles 51 and 81. Guarantees of constitutional protection of a deputy were abolished and, according to the amendments, consent from the Parliament was no more necessary on starting a criminal persecution against a deputy which gave authority to investigative bodies to interrogate a deputy as a witness, suspect or under any grounds, even for expressing his/her opinion freely. The above-mentioned amendments rudely violated basic democratic principles of government arrangement, which implies separation of authorities and which is recognized by the constitution. Such categoric assessment of violence over constitution leaves an impression of partial approach; that’s why I would like to indicate that there is an equivocally negative conclusion of the Venice Commission with the President Mr. Gianni Buquicchio whose authority is unquestionable, on the amendments made to the constitution of Georgia. Government started territorial arrangement with these amendments. As you know, Autonomous Republic of Ajara was established on the basis of Karsi Agreement and the undersignee state was the guarantor of protection of the Autonomy. President Saakashvili showed immeasurable aggression against the leadership of the Republic right on the day of his election. The situation became so tense that the leader of the Autonomy left his position and fled to Russia. In 2004, the Parliament of Georgia adopted a constitutional law on the Constitution of Autonomous Republic of Ajara. New constitution replaced the old one and the population of Ajara was deprived of the right to elect the head of the government and the right was granted to the President of Georgia. Representative body of the Government of Ajara was deprived of the right of self-governance and it was functioning only formally. Activities of the government of Autonomous Republic were so restricted that it could not make an independent decision.
Institutional reform of court did not respond to structural-organizational compliance of constitutional and territorial units of state arrangement. As for the law on common courts, administrative-territorial entities were functioning in the first instance court though later the institutional system, which is currently functioning, was established – criminal court of first instance was moved to administrative centers of districts and regions, which is at least 100km far from the population. As legislative and executive branches of government were actually subject to political intersts of a ruling party, Council of Justice was granted unprecedented authorities as a result of legislative amendments. Court was under the control of advisory body of Justice. In 2005 council of Justice considered staffing of Supreme Court with the same composition illegal after which two judges had to leave their positions; it should be mentioned that both judges were of best qualification. It is also noteworthy that the government was intentionally carrying out such policy.
- Why was the previous government acting so?
- The aim of the government was to have the population under fear. The result of this was that the number of acquittals ruled by the court was zero. As a result of constitutional amendments role and function of prosecution and the system of arrangement of administrative state changed. According to the 1995 constitution, Prosecution was not within the composition of executive government and was the part of justice system, thus in the hierarchy of independent court system, which carried out supervision over the legality of criminal cases. After the amendments, supervising body became an investigative body itself. These constitutional amendments clearly prove that the government policy was directed towards centralization of executive body and gaining control over independent court. At the end of 2005, National Association of the US conducted a search on the reform carried out in Georgia and it established that only two out of 30 issues to be examined responded to the principlesof democracy. Court was located in a finely arranged building though negatively carryied out functions imposed on it. The assassments of annual reports of International Institutes of Human Rights Protection and US Department of State were almost the same as the one mentioned above.
- You mentioned restriction of rights of judges, what about advocates?
- The institute of advocate was practically abolished in Georgia. Judge could sentence probation only through the motion of a prosecutor.
Assessments made available here by the Global Research Center cannot claim veracity and cannot review all the fields of state and public. Violance in the name of law which took place within 2003-2012 in revolutionary scales and brutality needs to be fundamentally investigated. Global Research Center hopes to make the full picture of lawmaking terror of those 9 years in the future.
However, except for the legislation there is a practice for its use which was also in poor condition within 2003-2012. People who died under Saakashvili’s regime are dead and nothing can be done with it, but the research is necessary to prevent repeating of bad history. Political prisoners should be fully rehabilitated, people who were actually robbed should be returned their property – this is the most important challenge for “Georgian Dream”.
Government should always remember that there is no peace withour justice!
