The opinions of the GDI regarding the draft law “On Amendments to the Code of Criminal Procedure”
On July 4, 2013, the government of Georgia submitted the draft law “On Amendments to the Code of Criminal Procedure of Georgia” for the consideration of the Parliament of Georgia. The aforementioned draft law amends Article 332 of the Code of Criminal Procedure of Georgia and provides that the new procedure of interrogation which only allows the interrogation of a witness before a court will take effect from December 1, 2014, instead of September 1, 2013.
We believe that the passage of the submitted draft law will reflect negatively on the condition of human rights in Georgia and leave the real implementation of the principle of procedural equality of the prosecution and defense parties and adversariality in danger.
In accordance with Paragraph 3 of Article 85 of the Constitution of Georgia, court proceedings shall be exercised on the basis of the principle of equality of parties and adversariality. It is unequivocal that the aforementioned provision is an integral part of Article 42 and constitutes an important component of the right to a fair trial. The aforementioned requirement of the Constitution implies giving equal opportunities to both parties in the process of administration of justice, so that they defend their positions and interests.
In accordance with Subparagraph D, Paragraph 3, Article 6 of the European Convention on Human Rights and Fundamental Freedoms, “Everyone charged with a criminal offence has the following minimum rights: to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him.” The aforementioned article establishes a standard on equal rights of the prosecution and defense sides in the process of interrogation of a witness, which strengthens the principle of adversariality and equality. The European Court of Human Rights has established a violation of Subparagraph D, Article 6.3 in many cases. The violations were committed with the motive that a convicting verdict of a court had been based on the testimonies of persons the defense had not been able to interrogate .
It should be noted that in October 2009 the Parliament of Georgia adopted a new Code of Criminal Procedure that is systemically different from the 1998 Code of Criminal Procedure which had been in force before. Whereas the 1998 Code of Criminal Procedure was based on the principle of inquisition, the new Code is oriented to the introduction of the principle of equality of parties and adversariality.
According to the current wording, the date of implementation of the new procedure of interrogation of witnesses is set for September 1, 2013, in accordance with Article 332 of the same Code. It should be noted that this date was moved back by three months from December 2013 because of the changes made to the Code on January 18, 2013.
As already noted, according to the amendments to be made, in accordance with Article 332 of the Code of Criminal Procedure (The Temporary Procedure of Interrogation during Investigation), till December 1, 2014, interrogations will be conducted according to the Code of Criminal Procedure of February 20, 1998. In other words, according to the draft law initiated in the Parliament, the current procedure of interrogation, according to which a witness can be interrogated both during investigation by an investigator and before a court, will remain in force till December 1, 2014.
The current procedure of interrogation according to which witnesses are examined without a court leaves a room of arbitrariness for an investigator and increases the chances of putting pressure on witnesses and making them give a testimony that is harmful for the defense party. At the same time, witnesses who have been interrogated by an investigator, to some extent, become a hostage to their testimony, because changing it during a court hearing will make them criminally responsible.
If the submitted amendments are implemented, the defense side will still remain on an unequal footing with the prosecution, which, in its turn, contradicts the spirit of the right to a fair trial protected by the European Convention and the Constitution of Georgia.
It is unequivocal that we, the lawyers’ corps, like the organizations working on human rights, were looking forward to the implementation of the new procedure of interrogation of witnesses on September 1, 2013, which would significantly decrease the risk of putting physical and psychological pressure on witnesses and create equal opportunities of the defense party to protect its interests. It should be noted that the current system of the Code of Criminal Procedure, which is based on the equality of parties and adversariality, is structured in a way that the failure to implement the procedure of interrogation of witnesses only by a court in a timely manner erodes its essence and diminishes the high standard of human rights which is given clearly in the principles of the same Code.
As already noted, the equality of parties is a fundamental aspect of the right to a fair trial and implies administration of justice on the basis of adversariality. The submitted draft amendments will not only fail to create effective guarantees for the exercise of human rights at the legislative level, but also decrease the quality of administration of justice in the state to a greater extent. It is also alarming that the explanatory note to the draft law questions the general soundness of the institution (interrogation of witnesses only before a court) which is the main pillar and integral part of the system of the current Code.
Due to all the aforementioned, we consider it impermissible to implement the submitted amendments to the Code of Criminal Procedure.
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Windisch v. Austria (1990)
Saidi v. France (1993)
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