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One Law Can not Change Entire Georgian Legal System

October 10, 2008

Nona Suvariani, Tbilisi

Draft of the Criminal Procedural Code is a new step in on-going reforms. The chairperson of the Supreme Court made such an assessment of the draft code that will go in force in 2009. The code aims to implement innovations in three directions: to introduce the institute of jury, to appoint judges without fixed terms and to employ one member from the opposition on the Supreme Council of Justice.

“Jury will pass verdict; criminal procedures from the very beginning-starting from pretrial investigation until the final verdict, and all this procedure will be completely changed. The power of the defense side will increase and absolute compatibility will be preserved during the legal process. The attorney will have right to request all evidences from the prosecutor’s office before the trial and study the case materials. Moreover, there is an additional privilege afforded the side of the defense. Take for example, if a defendant has a serious alibi the attorney can keep in secret from the prosecutor, and only announce about it at the time of the actual trial.

Naturally this provides an advantage, as this does not afford prosecutor time to circumvent the defense’s case.  Another advantage is that unless prosecutor delivers all evidence to the defense side, such evidence cannot be later used during the trial because the judge will not accept it. The status of the witness is important as well. The first official testimony will be made during the trial and not during the initial investigation. Consequently the topic of altered testimony will not be a topic for discussion with these changes. Both the defense side and prosecutor will have to depend on the testimonies of called witnesses. In addition, only the parties will have right to ask questions during the hearing. Depending on the nature of the case, the judge (s) will not have the right to interfere the process. They will simply observe interrogation and control the legality of the process. Thus, the success of each side will depend on their skills, experience and legal knowledge. The judge is the main figure but s/he will pass final decision based on the evidence provided by both sides,” said Konstantine Kublashvili, Chairperson of the Georgian Supreme Court.

The draft code was publicly discussed with the initiative of Konstantine Kublashvili several days ago. Representatives of the NGOs, judges and members of the parliamentary opposition attended the discussion. Giorgi Chkheidze, chairperson of the Georgian Young Lawyers Association was among them.

The Human Rights Center conversed with Chkheidze and he stated that only one code cannot resolve the problems that are still in the present judicial system.

Giorgi Chkheidze: “We appreciate loud statements of the Georgian president about the independence of criminal law but his statements should be actually implemented. When we speak about the independent court, one of the biggest problems is that although after the Rose Revolution we eradicated bribery in judicial system, the court is seriously oppressed by executive authority and the prosecutor’s office.”

According to Chkheidze’s assessment society has lost its overall trust to the judicial system. The legislation has changed in some directions and the court has more discretion, like imposing sanctions, and this has been decreased. Court rooms are now closed for video/audio cameras.

“It is an array of activities that were implemented in the name of improving judicial system. I think the most serious problem in our country in this direction is that the state takes incoherent steps. Although the amendments were introduced last year that the president was deprived from the right to appoint judges but the Supreme Council of Justice acquired this right. However, that is not enough. Supreme Council of Justice should demonstrate “real” independence and should make effort to be more transparent. The fact that members of opposition parties were appointed in the council should support the transparency of their work. However, we should also discuss an additional issue as why the Supreme council does not employ a representative of the Georgian Bar Association.”

Giorgi Chkheidze spoke about positive changes that are envisaged in the procedural code. It is important that those principles are correctly preserved. And besides, a mechanism of compatibility should be created between the defense side and the office of prosecutor. For example, a witness will be interrogated in the presence of a judge during the pretrial stage. Regarding this issue there are some faults on the draft law and these still must be considered.

The chairperson of GYLA draws attention to the institute of jury. “I think that if the implementation of the institute of jury will be correctly done, and when society will be provided with correct information about this innovation, security and independence of jury will be guaranteed. This would have a very positive role in the process that is called public involvement and would bring about improvement of the system as a whole.”

One more reform that is envisaged under that code is conducting of private investigation-it means that a lawyer will be able to carry out a private investigation for supporting the case of his client.

“The code states that a lawyer has right to carry out private investigation though it is difficult to actually implement in practice. In fact, it is almost impossible. The lawyer will provide additional evidence to the prosecutor and judge but the question is how acceptable his/her proofs will be for them. Besides that, a lawyer cannot conduct certain activities on their own. Take for example, to provide for a search of premises and get evidence from the place the search was carried out, etc. Though, if independent investigation is necessary the judge has the authority to issue a search warrant. However, afterwards there will be one more question mark-who will actually conduct the investigation. A lawyer will not have right to break into the house and search it on his own. Only an official should be allowed to enter. The draft law states that similar activities should be implemented by another lawyer who will have nothing to do with that case and that is a right decision.  In this case judge shall be guarantor that the information received during the search must not be delivered to the interested lawyer; if the search is conducted by the defense side, the result can be contradictory. So, they should have right on choice-to issue or not to issue the requested information. Will the judge be the guarantor of everything? And here we again return to the problem of independence of the court.

Giorgi Chkheidze discussed problematic topics of the draft law. First of all, it is the interests of the victim side. “I think these principles are worsened in the new version rather than in an old one.”

Nestan Londaridze, lawyer for the Human Rights Center, stated that it is one of the most serious faults of this draft law. A person cannot represent a victim side that encourages him/her to resolve the problem in shortest terms and in this case s/he has to wait for the final verdict on criminal case in order to bring a suit under civil law. Otherwise, the victims will have to pay huge taxes for this to be realized.

Chairperson of the GYLA claims that the draft law has one more shortcoming. There are certain institutions that are unacceptable for the current code but envisaged in the new one. For example, criminal persecution is going on and the person does not even show up for the proceeding. The court even has the right to pass sentence in such a case.  A trial is fixed and verdict is passed in such a condition when the defendant is abroad and does not attend the hearing. However, the defendant can arrive in Georgia and appeal against the verdict; though s/he is already sentenced. Initially only governmental officials had right not to attend hearing and it dealt with some categories of the charges. Last year, based on the amendments any charge could be discussed in their absence. According to the new code, charge on every person can be discussed in his/her absence. When European Court discussed it concluded that court hearing without the defendant could work if the state proves that it is urgent for the state to discuss the charge of a person until his/her arrival in the country. However, it should only be in exceptional cases.    

Giorgi Chkheidze: “We think trials without defendant are not right and will not provide just legal decisions. Thus, the right to fair court is therefore breached. The right to defense must be guaranteed in all instances.  A family shall have only 48 hours to find attorney but if the family fails to hire an attorney the state appoints an attorney for the accused. Yes, the state attorney might be professional but how s/he will be able to contact with the person who is abroad and who might have no idea that s/he is being persecuted. Will similar defense be effective? We think that it will not be. Thus, several categories of charge can be discussed without the defendant but the right to defense shall be obviously guaranteed. A person should have more than 48 hours time to find an attorney; to learn that criminal case has been opened son him/her and to manage to arrive in Georgia.”


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