It should be noted that the rhetoric of government representatives since 2011 has changed to liberal criminal policy from the policy of zero tolerance. However, the legislative amendments adopted throughout the last years prove otherwise. According to human rights defenders, the current legislation has disproved in terms of protecting human rights for 2011.
Organic Law on Political Unions of Citizens
According to the new law, monitoring on transparency and legality of financial activity of the political party shall be implemented by the Chamber of Control, instead of the CEC. The new law shrinks the financial sources for the political parties and new regulations are set for it.
According to the law, financing of the political parties shall be significantly limited and the new regulations shall be established. The novelty of the draft is as well the fact that financial sanctions and activity restrictions apply not only the parties but the legal and natural persons, connected therewith as well, also the family members and the employees.
Georgian Law on Personal Data Protection
Law on Personal Data was adopted by Georgian Parliament on December 28th of 2011 through the third hearing at extraordinary session. Adoption of this draft law was rather unexpected since its hearing was not envisaged in the agenda of extraordinary sessions of Parliament.
Taking care of protection of personal data of individuals would have been a progressive step if not some disputable provisions. Particularly, the law envisages processing data of special category (including its issuance and dissemination) both by public and private departments. The data of special category is defined as follows: “personal data associated with the individual’s racial or ethnic background, political views, religious or philosophical beliefs, membership of a professional organization, state of health, sex life, criminal history and biometrical data that can identify the above mentioned characteristics.”
According to human rights defenders, some articles of the law create serious danger for violation of right of private life.
According to the law, all organizations have to transfer information regarding its employees to the data protection inspector. The department can process and issue information regarding the sexual life, health and religious and political beliefs without the consent of the individual in question.
According to human rights defenders, this approach is categorically unacceptable and it worsens the state of human rights protection compared to the existing legislation according to which public department not only can issue sensitive information but it is prohibited to collect, process and even preserve it.
Law on Operative-Investigative Activity
At the end of December of 2011 the amendments were made in the Law on Operative-Investigative Activity which gives law enforcement bodies right to copy the data preserved in the data case of communication system. According to experts, this shows the tendency of changing authoritarian regime to totalitarian one. According to government’s decision, a new article has been added to the Law on Operative-Investigative Activity according to which in order to fulfill the objectives of operative-investigative activity, the authorized bodies have right to copy the data from the communication channels.
In this case, operative activities are carried out by the court authorization. However, in the force majeure situations it is possible to do it without the court permission. It should be noted that this amendment was added to the draft law before the third hearing which is a grave violation of Parliament regulation since it is only possible to add editorial changes for the third hearing.
It should be noted that the amendments to the Law on Operative-Investigative Activity were made in September of 2010 which legalized the right to get information from the communication channel and computer system and install the relevant means in the computer system by court approval.
Experts state that these changes enable the law-enforcement to conduct the illegal works easier than before by applying this law.
Changes to Procedural Criminal Code
In November of 2011 new article was added to the Criminal Procedural Code of Georgia according to which the Office of Prosecutor was given right to monitor the bank account.
Particularly, on the basis of reasonable doubt, the prosecutor can address the judge with a request and ask for permission to monitor bank account. In case the court gives approval, the bank will be obliged to cooperate with the investigation and transfer information regarding the operations conducted in relation with the bank accounts. So, the banks are obliged to transfer information regarding the financial transactions of concrete individual to the police. The monitoring of the bank accounts lasts for the time which is sufficient to obtain evidence in the criminal case. We can say that this formulation is too broad and according to human rights defenders, it violates the right of inviolability of private life.
The program of aversion and mediation of juveniles is one more change in the criminal legislation. The program envisages releasing criminal responsibility of juveniles – not filing case against them or suspending the criminal proceedings. The juvenile involved in the program must confess the crime and compensate the damage inflicted against the sufferer or the state by his/her conduct.
The minimal amount of the compensation is 500 GEL. The maximum is not determined. According to experts, this condition which envisages paying compensation for the state budget is absolutely unacceptable since it enables the Prosecutor not to reimburse the damage inflicted against the sufferer.
It should also be noted that this program is stricter towards the juveniles than to the adult offenders. Particularly, juvenile has right to apply aversion program only once when there is no such condition determined for the adult offenders. The state is inconsistent in its approach. As a rule, the policy towards the juvenile offenders must be more liberal.
In 2011 an institution was created which determined the length and types of socially useful work. The socially useful work was also envisages in the old version of the Criminal Code. However, it was considered to be a dead norm and did not work in practice.
The issue that the Labor Code does not cover the free work of the convict is also problematic since it regulates only paid relations. This means that there is no legislative guarantee how the safe labor conditions will be ensured.
Besides, the amendments were made to the Criminal Code regarding the illegal armed formations. According to the latest version, “formation” means any formation which is armed with “guns, combative items, explosives and easily inflammable items, explosive devises, tear-gas, radioactive, neuroparalytic or poisoning substances, side-arms or any other device or item which can be used to damage the alive or other objects or destroy them.” According to human rights defenders, “any device or item” is a broad formulation which enables law-enforcement to make too wide interpretation. Besides, it would be good to pay attention to the public security particularly whether or not such formation can endanger the public. The parliament did not consider this recommendation. As a result, a group of friends who are holding the sticks can be also implied behind this law.
The word “armed” was replaced by the word “illegal.” Thus it is possible to criminally punish the creation and membership of any formation. Political party or any union which has an organizational nature can be considered to be an illegal formation according to this law. The previous law listed the items the use of which could be considered to be illegal. Today this list is enriched by the “side-arms and other items which can damage the individual.” This can be a cell-phone, book or other item which can inflict damage on a person.
According to new Criminal Code, murdering a policeman or any other government representative is punished from 16 to 20 years imprisonment. Before, the Code envisaged the similar guarantees for the protection of any individual. These changes separated the policemen and “another government representative” from the rest of the public.
Law on Freedom of Assembly and Manifestation
In 2009, set of amendments were introduced to the acts regulating right of assembly and manifestation. In parallel to it, the Parliament of Georgia sent draft amendments to the Venice Commission to get their final opinion. Relatively, the Venice Commission prepared comments on those amendments which proved that national law regulating the provisions relating with assembly and manifestation had some faults. The Venice Commission stated that restrictions relating with so-called “20 meters” restriction was exaggeration and in most cases it made the manifestation useless because it is practically impossible to assembly within 20 meter distance from the entrance of a state institution.
In March of 2010 the amended bill was sent to the Venice Commission which aimed to correct set of shortcomings in the initial edition. Despite all that, there are many other gaps in the law. In 2010, the Public Defender filed constitutional suit on every disputable norms to the Constitutional Court of Georgia. The latter annulled several norms of the law. Among them was provision which prohibited a person without Georgian citizenship to organize manifestation; provision which did not allow one person to separately organize the rally. However, on June 13, 2011 the Members of the Georgian parliament initiated a draft-law which contradicts the judgment of the Constitutional Court.
Experts state that complete or partly restoration of the norms previously annulled by the Constitutional Court is negligence of the constitutional justice and is completely inadmissible.
Amendments and Additions to the Code on Imprisonment
The amendments introduced to the Code on Imprisonment in 2011 contained both encouraging and restrictive norms.
According to the new provisions, a prisoner can have two more long-term rendezvous per year and make one more phone-conversation a month.
According to new restrictions, disciplinary punishment can be used against the prisoner and he/she will not have right to make phone call and have personal correspondence during three months. The prisoner can petition to the Public Defender. However, human rights organizations urged the lawmakers to allow them too to receive the correspondence from prisoners though it was not considered.
In addition, a prisoner might be punished by not having right to buy something in the prison shop during three months. It might reiterate his nutrition, particularly for those prisoners who have special needs and similar restrictions might worsen their health.
Human rights defenders believe the abovementioned amendment was unreasonable and disproportionate because when there is a high risk of ill-treatment in custodies, the only guarantee for the prisoner was making phone calls and have correspondence.
Human rights defenders doubt the new restrictions will place prisoners in full isolation and suspension of their right to meet the lawyer directly contradicts the 2010 Recommendation of the OMCT to Georgia.
Shorena Latatia
