An Independent Investigative Mechanism: Identifying Ways To Combat Impunity In Georgia

By Mariam Uberi

According to a number of civil society and human rights commentators, Georgia requires an effective independent body to deal with the investigation of torture perpetrated by law enforcement officials.

Between 2013 and 2015, the Public Defender’s office made 58 referrals to the General Prosecutor’s office to investigate alleged ill treatment of prisoners either by the police or prison staff. Some reports indicate that the Prosecution office has either dropped some investigations or did not provide any information during the course of the investigation.

In 2016, the number of alleged acts of ill treatment committed by the police was higher than that perpetrated by prison staff. The number of referrals for investigations into ill treatment in prisons dropped by one third. Reportedly, only two of 173 allegations of ill treatment perpetrated by police were brought to the court.

These statistics raise serious questions around whether the investigative powers vested to the State security services, the Ministry of Corrections and the Ministry of Internal Affairs lack adequate guarantees of independence and impartiality to address legal wrongs by its public authorities. Further, the Public Defender’s office and various UN human rights bodies have highlighted trends of either dismissing allegations of ill treatment against state agents or instigating charges that carry lesser sentences.

This post will review the national legislative framework on torture and ill treatment and how it is implemented. It will then provide an overview of pertinent human rights obligations and will review a draft law on independent investigative mechanisms aimed at ending impunity by law enforcement agents.

Legislative framework and common practices

Torture is prohibited under the Constitution of Georgia. The definition of a perpetrator of torture under Article 144 (1) of the Georgian Criminal Code is different to Article 1 of the  UN Convention against Torture. The Criminal Code has a broad definition of aggravating circumstances in which torture can occur, rather than a defined list as seen in the UN convention. As noted by the United Nations Special Rapporteur on Torture, “[t]he definition of the perpetrator/s in Criminal Code Article 144(1) is different, in that it does not state that “pain or suffering” may be, inter alia, “inflicted […] at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. The Public Defender of Georgia, the United Nations Special Rapporteur on Torture  and the UN Human Rights Committee have reported on cases in which police officers suspected of ill-treatment have had their case initiated  for “exceeding official power”–rather than for “torture or ill-treatment”, which carries harsher sentences. This practice continued throughout 2016 in relation to police officers. By contrast, allegations of ill treatment committed by prison guards were instigated under Article 144 of the Criminal Code.

To address some of the deficiencies of national investigative bodies, in 2013 Georgia issued various legislative amendments and orders. These amendments appear to fall short of adequate standards to guarantee independence and impartiality of the Prosecutor’s office. In addition, the Chief Prosecutor retained full discretion to transfer criminal cases from one investigative body to another without justification.

In 2014 Georgia issued a resolution supporting the initiative of the Public Defender’s office to work alongside the Georgian Government to establish an independent investigative agency. The Action Plan on Protection of Human Rights (2014-2015) recognised the importance of an ‘’effective and impartial investigation of torture’’, while its interim progress report pointed out the ‘‘necessity of a new independent investigation body’’. In 2014 Georgia signed an Association Agreement with the European Union.  In its 2017-2020 Association Agenda, Georgia made a commitment to set up an independent mechanism to investigate allegations of ill treatment by law enforcement bodies. The 2016 draft law initiated by civil society sought to establish an independent investigative mechanism and contained adequate safeguards against the executive, judicial and prosecutorial authorities.

In February 2018, however, the Georgian Parliament considered a government draft that would undermine the institutional independence of the mechanism. The amendments expand the powers of the already existing Office of the Personal Data Protection Inspector to investigate complaints of torture and ill-treatment committed by law-enforcement officers. After the expiry of her tenure, she will be replaced by a State Inspector appointed by the State Commission. In addition, the draft law does not allow for an authority to initiate a prosecution or to file a case to the national courts. These functions are delegated to the prosecutor’s office. The present criminal procedural provisions allow the prosecutor to suspend investigations or alter charges during the investigative period. This can lead to a case being removed from the jurisdiction of the State Inspector altogether. The lack of prosecutorial functions during the investigation has become a main concern for civil society. The Parliament held a second hearing of the draft in July this year and no decision has been made at the time of writing.

Duty to Remedy Human Rights breaches

Georgia’s obligation to investigate the substance of the complaint promptly and impartially is affirmed by national and international obligations. It is a signatory of the convention on UN Convention on Civil and Political Rights, UN Convention against Torture and European Convention on Human Rights. In accordance with these treaties, Georgia is required to prevent public authorities from committing torture (UN Convention against Torture, Article 2 and UNCAT General Comment 2). Moreover, there must be a ‘‘prompt and independent’’ investigation into allegations concerning torture inflicted by its personnel (UN doc CCPR/CO/3/Rev.1. 2006). The Human Rights Committee further argued that ‘‘effective remedies’’ (Curidi v Spain (CAT 212/02)) are important when dealing with torture cases where justice must be delivered ‘expeditiously.’(Rajapakse v Sri Lanka HRC.1250/04). This was echoed by the Committee Against Torture who pronounced that the State is required to conduct an ‘‘impartial investigation’’ when acts of torture have occurred. The Committee highlighted that ‘‘unreasonably long delays’’ were not consistent with the Convention. (Halimi-Nedzibi v Austria (CAT 8/91). Georgia must also ensure that the perpetrators incur adequate penalties (UN Doc CCPR/C/79/Add/61, 1996).

The Human Rights Committee stressed the preference for a “special and impartial  body’’  to investigate  cases of torture. The Committee argued that   adequate criminal sanctions must be commensurate with the ‘’gravity of their acts.’’ (HRC, Concluding observations: Georgia, 2014). The CAT further highlighted the need for an ‘independent mechanism’’ to investigate torture perpetrated by the police. (CAT, Concluding observation: Kazakhstan, 2016).

In contrast, the European Court of Human Rights (ECtHR) has not gone as far as to endorse the creation of the independent mechanism, unlike the UN treaty body mechanisms. It, however, emphasised the need for an ‘‘effective and independent investigation’’ in the Garibashvili group of cases. Notwithstanding the different factual circumstances, the ECtHR concluded that the official investigations lacked the requisite independence and impartiality due to the institutional connection, and even hierarchical subordination, between those implicated and the investigators (e.g.Tsintsabadze v Georgia). In Barbu Anghelescu v Romania, the Court also assessed effectiveness of the investigation not only by considering its institutional and hierarchical independence, but also by addressing a degree of independence of the investigation in practice. In Enukidze and Girgvliani v Georgia, it emphasised that States must set ‘‘high professional standards within their law enforcement systems’’ where persons carrying out the investigation must be independent in law and in practice and shall prevent any appearance of ‘‘collusion or tolerance of unlawful acts.’’

 Moreover, the ECtHR stressed that the State must be particularly strict when punishing their own law-enforcement officers. It also argued that the punishment must be enforced to curb a ‘’sense of impunity’’ the offenders may think they enjoy by virtue of their office. Similarly, the specific standards in the Manual on the Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) is important as the ECtHR often refers to it in its judgments when assessing and investigating allegations of ill treatment. The Istanbul Protocol also maintains the importance of a ‘‘special commission on enquiry.’’

Conclusion

Georgia has an obligation to ensure that violations of torture and ill-treatment committed by its police authorities are dealt with promptly and effectively. Current investigatory authorities do not appear to offer adequate institutional and jurisdictional guarantees of accountability for torture. Georgia’s national action plan and commitment to work together with the Public Defender’s office on addressing impunity is yet to be realised. An independent investigative mechanism with robust safeguards for independent and impartial investigation is the desired means for Georgia to counter its seemingly inefficient, sometimes non-existent, responses to ill treatment by its agents.


Disclaimer: The views expressed herein are the author(s) alone

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s