The Georgian Young Lawyers Association (GYLA) claims that the parliament, after adopting the final changes, has infringed upon the rules of procedure in parliament. “These amendments were not discussed at the first hearing and were then adopted at the second and third hearings. As a result, the majority of the rules of the code are unconstitutional”. Georgian society was not given the opportunity to discuss the final amendments, which is a breach of transparency principles. This breach of parliamentary procedural rules is not the only concern of the GYLA: “These amendments significantly limit the rights of the defendant.

Excluding civil participation in the adoption of criminal procedural codes is criticized in Article 42 of the Constitution. “Only a few organizations were given an active role in the process of adopting the newest code. Practical lawyers, who have decades of experience in criminal procedure, were not even consulted.”

The new code contains negative and positive aspects in terms of human rights and rule of law principles, but generally it is considered as a step forward in meeting international standards. Some of the more important aspects to this new code include: adversarial criminal procedure, uniform concept and the status of the defendant, three evidentiary standards as a basis of the whole criminal procedure, discretionary prosecution based on the public interest, voluntary questioning of a witness by the prosecutor/investigator instead of his/her interrogation, new status of the victim with limited rights, the introduction of the presumption of liberty and other non-custodial preventive measures.

Criminal justice reform was declared as one of the main priorities of Georgia’s new government following the Rose Revolution. Aside from the reform of the criminal procedural code, criminal justice reform also includes the following fields: juvenile justice, the police, prosecution, legal aid, the judiciary and reform of the penitentiary system. With this aim to implement reforms, the Georgian government issued the strategy and action plan in criminal justice reform in 2005. Changes to the action plan were made in 2009 when the criminal justice reform council was established by the president of Georgia. The government aimed to bring criminal justice codes in line with human rights protections, the rule of law principle and other international standards. As stated in the “Criminal Justice reform strategy”, the objective in reforming Georgia’s criminal procedure code is to strengthen the criminal procedure system, and bring it into compliance with international human rights standards and rule of law principles. However, actors within civil society have criticized the criminal code in terms of restricting the rights of the defendant and diminishing the rights of the victim, as not being party to the criminal process. They also underscore some positive changes, and hope that these will be implemented in practice.

Adversarial Process:

The principle of the adversarial criminal process is one of the most important and controversial aspects of the new criminal procedure code. The adversarial process is ensured during the investigation and the trial. In short, the adversarial process means that the defender is granted with investigative competence and the judge has no right to question the witness on trial or to conduct any investigative action. Attorneys claim that the principle of adversarial process is not fully implemented in the new code, as the defense has fewer rights compared to the prosecution and investigative team. They claim that several inequalities between the parties during the investigation leads to doubts on the advantage of the adversarial process as provided by the new code.

Attorney for GYLA legal aid center Maia Khutsishvili states, “the adversarial process is good, but its implementation faces several difficulties. One problem is that investigations are conducted by well-resourced state officials, while the defense team is essentially one physical person with not nearly enough materials and resources for an investigation. As a result, the defender and prosecutor are not on equal footing with regard to resources. For me, as a practical lawyer, it would be much better if these activities were held by the State and I had the right to appeal on them. For the most part, only attorney offices will conduct the complex investigations properly”.

With reference to Article 42 of Constitution, Maia Kobakhidze argues that the new criminal code makes it impossible for the defendant to receive the most important evidence to prove his/her innocence as he/she is not entitled to conduct search and seizures, and covert investigative activities. Kobakhidze points to a prior case in which a juvenile defender was unable to use evidence available to from a mobile service company as part of his defense. His request was deemed as seizure by the court and subsequently denied.

Maia Khutsishvil from GYLA continues by pointing out that “other examples of inequality appeared in the code after changes inputted on September 24 of 2010. Now the prosecutor has the right to ask the court to issue a warrant to investigate computer crimes (to search information on computers). The same right is not bestowed upon the defense. Changes on special protective measures also impede the principle of the adversarial process, as they disregarded the defendant’s right to ask the court to issue a warrant on the usage of special protective measures, and to prevent witnesses from violating his/her basic rights”.

NGO Article 42 is concerned with the effect the new code will have on the 7th Article of the older criminal procedure code. “Under this article, the defendant had the right to appeal on unlawful written acts of the prosecutor. The new code does not include this provision, and as a result, it is ambiguous whether the defender has the right to appeal on this act or not”

Another important aspect regarding the adversarial process is that during the pre-trial stage of the investigation, the witness shall have the right and not an obligation to give testimony with respect to the criminal offence. In this case, the obligation to give testimony shall be fully implemented before the judge with the presence of the defence and prosecutor. At the same time, the principle of voluntariness of the testimony of the witness in the pre-trial investigation shall have exceptions specifically prescribed by the law. Maia Khutsishvili states, “this aspect is quite important and it improves the rights of the witness but it is unclear why parliament decided to bring this provision into force in 2012”.

Gela Nikolaishvili, from the Georgian Bar Association (GBA) expresses fears that the exceptions of non-voluntariness of testimony of the witness in the pre-trial investigation will not be exceptions, and is worried that law-enforcement agencies will implement them in a bad manner.

Drawing from “Article 42 of the Constitution”, Manana Kobakhidze embraces the new principle of “full disclosure of evidence before the trial by parties” as a positive aspect, as it gives both parties the opportunity to become familiar with the evidence of the other party.

Discretionary Prosecution Based on the Public Interest

According to the new law, criminal prosecution is public and is to be conducted by the prosecutor only. The prosecutor has the right to either start or terminate prosecution, so long as the general policy of the state on criminal law is taken into account.

This provision aims to avoid unnecessary and useless prosecution and the wasting of limited state resources, including those persons from a criminal procedure who do not constitute a serious threat to society.

“This principle must be regarded as successful in democratic societies” said Maia Khutsishvili. However, she fears that it will not be properly used in the practice of Georgia. “A similar provision is included in the material criminal code where it is stated that a person whose action is formally regarded as a crime- but has not caused serious damage- shall not be subject to punishment. This provision is not used in practice. I know only three cases when the court employed it. So I have serious doubts as to whether or not the prosecutor’s discretion will be employed for the sake of socially and economically vulnerable defendants”

This change is criticized by Manana Kobakhidze from the perspective of victim rights. “There is a great chance that the prosecutor will not start prosecution at the demand of victims whose interests are not the priority of the state”.

New Status of the Victim

Under the new criminal code, the victim is not considered as party to the process, and his/ her rights are restricted compared with the older code. Maia Khutsishvili sees this change as both positive and negative. “From my point of view, the amendment is proper in terms of the economical aspects and in lesser crimes, and when it’s possible for the victim to restore his/her rights via civil procedure. But in the case of murder and other serious crimes, the victim or the relatives of victims must be provided with broader rights to satisfy their interests in order to see to it that the criminal is punished.”

“The victim should have more rights and should be considered as party to the process, as he/she has a crucial interest in restoring justice”, claims Manana Kobakhidze. “The other problem is that in civil procedure code, there was a provision stating that facts proven in a criminal procedure were automatically proven in a civil case as well. This kind of provision is not included in a civil procedure now, which means that the victim has to prove everything in a civil case what was already proven in a criminal procedure”.

Presumption of Liberty

Pointing out the positive aspects of the new code, Maia Khutsishvili underscores the presumption of liberty, which envisions decreasing the application of pre-trial detentions, and instead, encouraging non custodial and alternative measures that were increased to ten after the new criminal procedure code. “Before the adoption of the new code, the main preventive measure employed by the prosecution and court was pre-trial detention and now I catch the tendency of using bail as a commonly used preventive measure. The minimal bail amount decreased to 1,000 Lari, which is also quiet good”. However, Manana Kobakhidze does not believe that the government will actively use the presumption of liberty.

These are general criticisms of the new criminal code. Because the changes to this code are quiet broad, we will consider other parts of the criminal code, such as “Jury trial and Juvenile Justice” in future articles.

Giorgi Margiani