Investigation to Be Discharged of All Responsibilities

Nino Zhgenti, www.for.ge

It will no longer be necessary to seal up all documents withdrawn during the search procedures. Relevant amendments are to be introduced to the Criminal Procedural Code of Georgia. According to acting provision, all subjects withdrawn during search or withdrawal procedures shall be examined, described and sealed up. Date and signatures of the persons, who attended the sealing up procedures, shall be left on the seal.

A new norm will be added to the Code together with these new norms. The former will state a document, which is withdrawn due to its content, shall not be sealed up during search or withdrawal.

Amendments are also drafted for the Criminal Procedural Code which states investigator’s resolution will no longer be necessary to conduct prompt investigative activities.

According to the bills, this regulation deals with the investigation procedure, which restricts property rights, ownership or inviolability of personal life and which shall be carried out only based on the motion of the party and judge’s conclusion.

Namely, there are cases when a delay of procedures might cause devastation of significant data. In this case, investigative activities can be conducted without court, only based on the investigator’s resolution. According to the draft-law, investigator’s resolution will no longer be necessary for prompt investigative activities.

One of the initiators of the bill is MP Zviad Kukava who spoke about this initiative with for.ge. He said the withdrawn document will not be sealed up if it is withdrawn not as evidence, but became important for the investigation due to its content.

“The problem of sealing up is that any subject shall be unsealed in the presence of the same person who attended the sealing up process. Investigator might need to study the document several times during the investigation process and its unsealing is odd barrier moreover when it is not interesting as evidence but its content is important,” Zviad Kukava told for.ge.

He said sealing-unsealing procedure of the evidence might prolong investigation procedures so the parliament decided to remove this formal barrier.

As for the second legislative change, which allows investigator to pass resolution due to urgent necessity, Zviad Kukava clarified the essence of the resolution. He said the resolution is an act, which shall be motivated and where the investigator shall verify why he made decision about these particular investigative activities. All these procedures require time and when it is urgent necessity, Kukava said, investigators often encounter formal barriers.

Kukava clarified that due to urgent necessity judge shall legalize any resolution of the investigator passed about any investigative procedures. The investigator petitions to the court and latter can either legalize it or decline investigator’s petition. In this regard, investigator’s resolution shall provide motivations.

“Thus, we decided that extra barriers were not reasonable because finally the petition of the investigator to the court shall indicate to all those motivations for what the investigation procedures occurred. If investigator fails to prove it, the judge will annul his/her investigative procedures,” Zviad Kukava said.

There is a question – how reasonable is to introduce amendments to the Criminal Procedural Code when those norms have been in force for dozens of years and whether it will have negative influence on the investigation – Zviad Kukava answered that existing norms are just odd barriers and initiated amendments will not decay investigation procedures.

For.ge talked with lawyer Gela Nikolaishvili about the drafted amendments to the Criminal Procedural Code. He said everything has become formality in Georgia and court already satisfies any motion of the investigation and prosecutor’s office. Nikolaishvili said there are no cases when court declined any motion or application of the investigation or prosecutor’s office.

“Due to current reality in Georgia, the judiciary system has formal function and judge will approve any resolution of the investigator; so it will be more correct if they introduce these amendments to the Code and make those procedures lawful. However, legally, each resolution has power and significance and you cannot erase or amend it. When you already have conducted search procedures, you can change the motive of the search. Resolution on urgent necessity shall be well-grounded from the very beginning. When you find something, which you did not except to find in the scene of search, it will be very easy to prove it was necessary to enter there because you were not required to write anything about it in advance. You can prove that you entered that particular place for that particular subject, which you found there,” Gela Nikolaishvili said.

He said the initiated legislative changes will discharge investigation from all responsibilities in order not to allow anybody to blame them in poorly conducted search. So, Nikolaishvili said investigator will be able to conduct any investigative procedures and then he/she will start bothering how to justify it.

As for necessity to seal up documents, Gela Nikolaishvili said sealing and unsealing are ordinary investigative procedures which do not create any problems at all.

“It is noteworthy that investigation holds evidence and they might need to print only one sentence. However, they discharge themselves from all responsibilities in order not to be restricted during any operations. This is the purpose of those amendments,” Gela Nikolaishvili said.

Original text