Nino Jomarjidze, Lawyer, Georgian Young Lawyers’ Association
For many years, the lack of transparent, independent and effective investigation of crimes committed by law enforcement agencies has been identified as one of the most serious problems in Georgia. Impunity cultivated by the failure to investigate and punish perpetrators of ill-treatment has led to the systemic abuse of power by law enforcement officials.
This article explores the Georgian Government’s failure to ensure the institutional and practical independence of investigative bodies, in spite of some general measures being undertaken by the Government on the basis of judgments from the European Court of Human Rights (ECtHR) delivered against Georgia in the Gharibashvili group of cases. The article firstly argues that the adopted general measures have been inadequate to ensure the independence and impartiality of investigative authorities nationally. Secondly, this article examines some of the deficiencies in the domestic legislation regarding the requirements of impartiality of investigative bodies, namely the importance of creating an independent investigative mechanism with prosecutorial and investigative powers as an effective tool to execute the general measures undertaken on the basis of the ECtHR judgments. Finally, the article highlights the need to enhance efforts for the meaningful involvement of victims into investigations.
Execution status of the Gharibashvili group of cases
The Committee of Ministers (CM) has supervised Georgia’s implementation of the ECtHR’s Gharibashvili group of judgments since 2008. This group of six judgments concerns the lack of an effective investigation into allegations of violations of the right to life and of ill-treatment (procedural limbs of Articles 2 and 3 of the European Convention on Human Rights (ECHR)). In addition, in two cases the Court found a substantive violation of Article 3 due to the excessive use of force by the police in the course of the applicant’s arrest and/or in custody. Despite differences in factual circumstances, in all of these cases the ECtHR concluded that the official investigations conducted at the material time lacked the requisite independence and impartiality due to the institutional connection, and even hierarchical subordination, between those implicated and the investigators in charge of the cases. This group of judgments include the case of Tsintsabadze v Georgia, in which the Georgian Young Lawyers’ Association (GYLA) and the European Human Rights Advocacy Centre represented the applicant before the ECtHR. This case concerned the death of the applicant’s son at a penitentiary institution, where prison officers discovered him hung in the prison's storeroom. The applicant consistently denied that her son had committed suicide and claimed that he had been killed and then hung to conceal the murder. The ECtHR found a violation of the procedural limb of Article 2 on account of deficiencies and omissions identified in the course of the investigation into the death of Mr. Tsintsabadze.
Additionally, in December 2016, the Committee decided to transfer the 11 friendly settlements from the standard to the enhanced supervision procedure and to join them with the Gharibashvili group. In all of the cases, the Government of Georgia acknowledged allegations of failure to investigate violations of right to life and ill-treatment and has undertaken the obligation to provide effective investigation.
In December 2016, while examining this group of cases, the CM called upon the Georgian authorities to intensify “their efforts to remedy the deficiencies in domestic legislation regarding the requirements of impartiality of investigative bodies, in investigations to which Articles 2 and 3 of the Convention apply.”
On 6 September 2017, a quarterly civil society briefing was held on cases scheduled for review at the 1294th Human Rights Meeting (DH) of the CM from 19 to 21 September 2017. During the meeting the members of the CM were briefed on the implementation of different cases, including Gharibashvili group v Georgia. GYLA provided an overview of general measures taken by the Georgian authorities and highlighted the need to adopt further measures in order to ensure systematic and meaningful reform of the investigative authorities and to enhance efforts relating to effective involvement of victims into investigations.
As the latest decision adopted on 21 September by the CM reveals, the CM closed the examination of two cases (cases of Gharibashvili and Khaindrava and Dzamashvili v. Georgia) and underlined that the examination of the outstanding questions regarding individual and general measures in the former Gharibashvili group of cases will be pursued within the framework of the new Tsintsabadze group of cases.
Overview of the national legislation
In order to remedy the deficiencies regarding the independence and impartiality of investigative bodies, the Georgian Government has adopted various legislative amendments in the Law on the Prosecutor’s Office and Order 34 of the Minister of Justice of Georgia (7 July 2013) on Determination of Territorial and Investigative Subordination of Criminal Cases (hereafter “the regulations”). However, the amendments (described below) made in these regulations fail to adequately address the primary concerns surrounding the independence, impartiality and politicisation of the Prosecutor’s office.
The amendments to the Law on the Prosecutor’s Office puts in place a new procedure for the appointment of the Chief Prosecutor and rules for the appointment, dismissal, promotion and discipline of city, regional and other prosecutors. Yet the amendments still do not ensure sufficient protection from political interference with the Chief Prosecutor’s selection and appointment and does not fully achieve the stated goal of depoliticising the office of the Chief Prosecutor. This is due to several reasons, including:
· The law on the Prosecutor’s Office proclaims that the Prosecutorial Council, one of the functions of which is to select the Chief Prosecutor, “shall be established at the Ministry of Justice”. The meaning of this provision is not entirely clear and could be defined as being an integral part of the executive branch. The goal of establishing the Prosecutorial Council was to ensure the depoliticisation and autonomy of the prosecution service from the executive (including the Ministry of Justice) and legislative branches, thus the present norm raises doubts about the independence and impartiality of the Prosecutorial Council.
· The Minister of Justice, which is part of the Government representing the parliamentary majority, heads the Prosecutorial Council. According to the Law, the position of the Minister of Justice within the Prosecutorial Council is very strong. In particular, he/she has the following powers: 1) to chair the meetings of the Prosecutorial Council ex officio; 2) to nominate a candidate for the position of the Chief Prosecutor; and 3) vote as a member of the Prosecutorial Council for the approval of this person. Even if the Minister is a member of the Prosecutorial Council ex officio, having him/her chair the Council raises doubts as to the independence of this body.
· The Minister of Justice has the initial power to nominate the candidate. According to the new amendments, the Minister of Justice shall hold formal discussions concerning the candidates for membership and substantiate his/her choice before presenting three candidates to the Prosecutorial Council. Despite the obligation of the Minister to hold discussions/consultations concerning the candidates, it did not make the process transparent as under the Law the Minister is not bound by any rules of selection. Second, the Government and the Parliament, by a simple majority, approve the decision of the Prosecutorial Council on the appointment of the candidate proposed by the Minister of Justice. Thus, the powers of the Minister of Justice with respect to the nomination of candidates for the position of Chief Prosecutor are too strong and should therefore be reconsidered and the influence of the Government/parliamentary majority reduced.
The above-mentioned shortcomings clearly confirms that the reform remains essentially political in nature and attempts to depoliticise the Office of the Chief Prosecutor have not been successful.
In addition, Order 34 provides that crimes allegedly committed by law enforcement officials fall under the jurisdiction of the Prosecutor’s Office of Georgia (POG). However, the Order retains a discretion for other investigative bodies to investigate crimes allegedly committed by law enforcement officials in particular circumstances. For example, under the Order investigators of the Ministry of Corrections (MOC) are entitled to investigate crimes committed on the territory of the penitentiary institutions of the MOC. The investigative jurisdiction of the MOC covers crimes committed by both its employees and by prisoners. In order to carry out the investigation the MOC has created an Investigative Division (ID). Hence, when the ID investigates a crime allegedly committed on the territory of the penitentiary institution by its employees, legitimate questions arise regarding independence and impartiality of the investigation since the ID is a department within the MOC. Furthermore, the present Order allows crimes allegedly committed by the employees of the Ministry of Internal Affairs (MIA) to be investigated by the investigative authorities of the same Ministry if these crimes are uncovered by the MIA. The same rule applies to the POG, which under the law is authorized to investigate crimes committed by its employees.
Moreover, one of the most significant disadvantages of the legislation is the wide discretion granted to the Prosecutor to transfer a criminal case from one investigative body to another without providing any justification or supporting arguments for the decision. Such wide discretion gives the possibility to the Prosecutor to transfer the criminal case to another investigative body even if under the Order, the case falls under the jurisdiction of the POG.
Proposed draft law to create an effective independent investigative mechanism
The lack of institutional independence while investigating crimes allegedly committed by law enforcement officials therefore remains a challenge in Georgia. Concern about the systemic failure to conduct effective investigations has also been raised by both international and national organisations.
In order to eradicate such structural and/or systemic deficiencies and guarantee the independence and impartiality of investigations, it is of the utmost importance to establish an independent investigative mechanism with a mandate to ensure the institutional independence of investigations in criminal cases. Georgian NGOs, supported by international actors, have contributed to a draft law on setting up this independent mechanism.
The draft law proposes that the mechanism will be separate from the executive authorities, and will have exclusive jurisdiction to investigate and prosecute crimes that are allegedly committed by law enforcement officials. Moreover, the mechanism has discretionary jurisdiction over any crime if there is a reasonable suspicion that a conflict of interest might arise during the investigation process or prosecution. To ensure the legal and practical independence of the mechanism, it will have a mandate to unilaterally decide whether or not to initiate an investigation or prosecution as well as to undertake relevant investigative measures. Under the draft law, victim participation is secured through mandatory information disclosures, with reasonable frequency. Furthermore, the mechanism will be headed by an independent Commissioner selected with the involvement of all three branches of the Georgian Government and civil society, ensuring the comprehensive institutional independence of the mechanism and its staff. Under the draft law, a further layer of independence and impartiality is ensured as political party members cannot be appointed as Commissioner. The draft law makes the mechanism accountable to Parliament, and the Commissioner is required to submit an activities report twice a year.
Overview of the national legislation regarding the victim’s effective involvement within the pending investigation
In order to address the discrepancies identified by the ECtHR in the above-mentioned cases regarding the victim’s effective involvement within the pending investigation, the Georgian Government amended the Criminal Procedure Code of Georgia (CPC) in 2014. By the amendments, the legislation has improved; however, the existing legislation is not in full compliance with general principles concerning the rights of the victim in the criminal proceedings, thus the condition of the victim still remains a problem.
Under the new amendments, the following procedural rights can be afforded to a victim: a right to appeal the Prosecutor’s resolution on the refusal of the status of a victim, on the annulment of the victim status and on the termination of the investigation/criminal prosecution. According to the amendments, in cases of particularly grave crime, the victims are authorized to appeal the above-mentioned resolutions to the superior prosecutor and afterwards to the domestic court of first instance. While the legislation provides the victims in case of particularly grave crime a two-tier system for appealing, the victims in case of less grave and grave crimes are deprived of such possibility. In particular, under the CPC the latter has the right to appeal the prosecutor’s resolutions on the above-mentioned issues only to the superior prosecutor.
In its action plan of June 2015 the Georgian Government noted that the fact that appeal to the domestic court is only possible in cases of particularly grave crimes reflects the State’s need to prevent the overburdening of the relevant systems by ensuring their effective and expeditious operation. However, the difficulties of general administrative nature, which may occur in case of appeal, may not be the basis for restricting the right to appeal to the court. The victim is more than just a witness, which requires proper and sufficient involvement in the process. Thus, it is not appropriate to link the right of appeal to the gravity of crime as such regulation unreasonably restricts the rights of the victims in case of less grave and grave crime. It is noteworthy to note the judgment of the Constitutional Court of Georgia regarding this issue. In particular, the Court highlighted that for proper protection of the victim’s rights, it is of utmost importance to carry out judicial control on the resolutions of the superior prosecutor. The judicial control is the most powerful and effective way to force the prosecutor to be impartial while exercising discretionary powers. Thus, the Constitutional Court underlined that the victim shall have the opportunity to appeal, including to the domestic court the resolutions on the above-mentioned issues despite the categories of crimes.
Based on the above, the Georgian Government should adopt appropriate legislative amendments and practical measures to the effect of establishing an independent investigative body to conduct investigations and bring charges in cases involving violations of Articles 2 and 3 of the Convention. Creation of an independent investigative mechanism with a mandate and competence that will guarantee the independence and impartiality of the investigative bodies is the only existing solution to counter the culture of impunity and the systemic failure of the State to effectively investigate crimes allegedly committed by law enforcement officials. Furthermore, the Georgian Government should undertake further amendments for ensuring adequate protection of the victim’s interests within the ongoing investigation as well as for the full execution of the general measures communicated by the ECtHR to the Georgian Government in the Gharibashvili group of cases (re-grouped by the CM as the Tsintsabadze group since 17 September 2017).
This is an updated version of the article published in the Summer 2017 Bulletin of the European Human Rights Advocacy Centre.