Working Group on Arbitrary Detention statement upon conclusion of its mission to Georgia (15-24 June 2011)

The United Nations Working Group on Arbitrary Detention conducted a country mission to Georgia from the 15 to 24 June 2011, following an invitation from the Government. The delegation was headed by me* as Chair-Rapporteur of the Working Group, and two other members: Mr. Roberto Garretón (from Chile) and Mr. Vladimir Tochilovsky (from Ukraine). We were accompanied by two members of the Working Group’s Secretariat from the United Nations Office of the High Commissioner for Human Rights in Geneva.

Firstly, I would like to thank the Government of Georgia for extending an invitation to the Working Group to visit the country and for its full cooperation throughout the various stages of the visit. The Working Group received full support from the United Nations Development Programme in Georgia and also the staff of the Office of the High Commissioner for Human Rights here in Tbilisi. The Working Group wishes to thank various representatives from Georgia’s civil society including human rights defenders, lawyers, and numerous non-governmental organizations for the information and assistance they provided. The Working Group had hoped to have the opportunity to also visit the regions of Abkhazia and South Ossetia and regret that, due to particular circumstances outside its control, this could not be possible.

The Working Group benefited from various meetings held with State authorities and it appreciates the valuable information they have provided. The Working Group met with senior authorities from the Executive, Legislative and Judicial branches of the State, including the: Minister of Labour, Health Care and Social Protection; the Minister of Corrections and Legal Assistance; the First Deputy Minister of Internal Affairs; Deputy Minister of Foreign Affairs; the Vice-President of the Supreme Court of Justice;  the First Deputy Minister of Justice; the First Deputy Chief Prosecutor of the Ministry of Justice; the Chair of the Batumi City Court; the Head Prosecutor of Kutaisi; the Chair of the Kutaisi Court of Appeals;  the Chief of Administration for the Ministry of Defence; the Head of the Legal Department for the Ministry of Defence; and authorities from local Police and the Prosecutor’s Office in Batumi and Kutaisi. The Working Group also met with the Public Defender of Georgia (Ombudsman); with representatives of the Georgian Bar Association; with representatives from international organizations; members of the United Nations Country Team; and with several representatives of  civil society.

The Working Group visited the following detention facilities in Tbilisi, Batumi and Kutaisi: Establishment No. 3 in Batumi; Adjara Regional Temporary Detention Isolator; Establishment No. 2 in Kutaisi; Establishment No. 14 in Geguti; Prison No. 8 in Tbilisi (Gldani); Special establishment for juveniles in Avchala; Prison No. 5 for women in Rustavi; Prison No. 6 in Rustavi; Tbilisi Medical Facility for Remand and Convicted Prisoners No. 18 with special focus on the psychiatric unit and the Tbilisi Mental Health Centre. It also met and interviewed 154 detainees in the abovementioned penitentiary and correctional facilities.

With regard to its findings, the Working Group would like first, to commend the Government for the positive efforts it has made, particularly through legislative reforms, to improve the situation of deprivation of liberty in Georgia. It acknowledges that Georgia has, in the past few years, made progressive changes to improve the situation of detainees and prisoners and their right to fair trial guarantees. The Working Group particularly notes the reforms made to various legislative norms, particularly the Criminal Procedure Code adopted in 2009. This procedural code has been amended to bring Georgian penal legislation into conformity with international human rights standards. The Working Group also notes some amendments made to the Constitution of Georgia, which inter alia, provide for longer appointment of judges as well as the improvement of their salaries. Such measures are often necessary to guarantee the independence, impartiality and integrity of the judiciary.

Various parties including representatives from civil society noted the progress made by the Government in reducing corruption. Throughout its interviews, the Working Group did not receive any allegation that Government officials in the relevant institutions were corrupt in carrying out their functions. The Working Group understands that the policy of zero tolerance has also effectively reduced the crime rate in Georgia. Other positive developments the Working Group has observed are in the area of juvenile justice with the establishment of a diversion scheme in some cities, as an alternative to detention for juvenile offenders and the offering of rehabilitative measures such as education opportunities to juveniles deprived of their liberty. The amendment to raise the age of criminal responsibility from 12 to 14 is also an important step. A free legal aid system also gives access to the local population to legal assistance.

The Working Group further notes the efforts to improve the physical conditions in the prisons and detention centres it visited. It also highlights the establishment of a special database for all temporary detention isolators in Georgia, which allows for proper functioning of an informed and centralized registry which contains relevant data of all detainees.

The active role of the Public Defender of Georgia is also important to highlight. The Public Defender has an indispensable role in monitoring human rights violations. The creation of the National Preventive Mechanism as called for under the Optional Protocol to the International Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, operating in the office of the Public Defender, is critical particularly with the visits it conducts to places of detention. The Working Group encourages the Government of Georgia to continue providing its full support and co-operation to strengthening this institution.   The Working Group would like to invite the Government to consider facilitating civil society and human rights non-governmental organizations in visiting persons in prisons and detention centres.

Notwithstanding these positive achievements, the Working Group notes a number of issues that are of particular concern and would like to draw the Government’s attention to these.

The paramount issue that the Working Group would like to raise is the principle of proportionality in the application of preventive measures and punishment. Georgia has one of the highest number of prison population in the world. The information we received supports the notion that detention and arrest are used in an overwhelming majority of cases that go through the courts.

The increase of the maximum punishment for administrative offences to 90 days is also problematic because it means that a person has to serve a more severe and longer punishment in temporary detention isolators, but without the safeguards accorded to those convicted of criminal offences. In particular, the short length of the procedure which requires adjudication of the case within 24 hours cannot be considered to be in conformity with the requirements of international human rights standards.

A person convicted of a criminal offence can enjoy such rights as visits from relatives and friends whereas a person serving a sentence for an administrative offence can be detained for up to 90 days without visitations. The Working Group also notes that temporary detention isolators were intended for short term detentions and are not fit for detention of long durations. Given the seriousness of administrative detention, the Working Group is concerned that the rights of the detainees in this regard are not adequately protected and are not compatible with requirements of international human rights standards (Article 10 of Universal Declaration of Human Rights; and Article 14 of International Covenant on Civil and Political Rights, both in relation to criminal charges but provide standards of fair trial that need to be upheld in all situations of deprivation of liberty).

The Working Group would also like to raise the issue of the plea bargain procedure. What it is concerned about is the role and independence of the judiciary in this process. Under the current law the judge is bound by the plea agreement. In particular, the judge cannot reduce the agreed sentence if the prosecutor does not consent.

In addition, many of those interviewed felt that the prosecutor was the most influential party within the plea bargain arrangement and most often, determined the terms of the agreement. The fact that about 90 per cent of cases that go through the court resort to plea bargain arrangements with minimal intervention from judges is alarming, even if they have positive results such as the reduction of sentences. Additionally, the payment of a substantive financial penalty or fines in the majority of plea bargains has placed stringent burdens on those who are poor. The Working Group understands that the rate of acquittal in Georgia is an estimated 0.1%; meaning that 99.9% of defendants are ruled guilty of the crime they are accused of. Additionally, sentences of imprisonment were considered harsh in relation to the crimes committed. With this statistic showing an extreme low rate of acquittal, a majority of defendants who go through regular court procedures can often find themselves in detention.

The principle of equality of arms between the prosecution and defence is a fundamental pre-requisite of a fair trial. Various parties interviewed, including lawyers, held the view that judgements often favour the prosecution over the defence, not only in plea bargain arrangements, but generally in the criminal justice system.

The estimated 0.1% acquittal rate supports the assertion that a majority of cases are in favour of the prosecution. Some of the detainees interviewed also stated that they felt pressured to agree to a guilty plea as there would be minimal chance of getting an acquittal. If they did not participate in a plea bargain, they would likely end up with a guilty verdict and an excessively harsh sentence. The concerning issue regarding this is that many defendants forgo their right to trial because they already envisage that a fair and impartial trial would not be possible. Detainees consistently voiced their lack of trust in the judicial system stating that one must have a competent and strong defence lawyer to provide effective legal assistance. Yet the Working Group, after interviewing lawyers from different sectors and regions, discovered that even their highly efficient and qualified counterparts did not have successful cases in court. An interview with one such lawyer revealed that, since 2004, he only had three cases where his clients were successful and none were due to an acquittal but to some charges being dropped. We also received information that in one particular region, out of 1400 cases, only six had acquittals.

The Working Group notes that the law of Georgia generally provides appropriate protection for the independence, impartiality and integrity of the judiciary and the right to a fair trial. It does not dispute the protections and safeguards guaranteed by the Constitution and various existing legislation. However, it is concerned that the internal practices of the judiciary may not be in conformity with the international human rights instruments it has ratified and the national laws it has adopted.  The right to liberty of any citizen is significantly affected and undermined if the independence of the judiciary is not rigorously upheld. This does not mean that the Working Group believes that there are interferences between the various branches of the State in the work of the judiciary, but rather that the actions of judges and magistrates are required to be autonomous and uninfluenced in the course of administering justice. The judiciary in Georgia is capable of making fundamental progress through the various positive reforms it has made, but it must demonstrate its independence and impartiality by ensuring that the right to fair trial is granted without bias, to the parties before it. The Working Group received a lot of information that seems to support the notion that the rights of the accused are quite often minimal in relation to those of the prosecution.

The law of Georgia provides for preventive measures of restraint and alternative measures to detention, such as bail, but the use of such measures are practically non-existent. Many detainees, who qualify and applied for bail, were unsuccessful. The detention of the accused as a restraint measure is used in the majority of cases we encountered. A case in particular relates to a  woman undergoing investigation for negligence and yet her application for bail was denied and she remains in pre-trial remand. The Working Group urges the Government to consider the use of other measures that do not involve deprivation of liberty in cases where it is clearly justifiable to do so. 

The various initiatives made by the Government to reform legislation have been complemented by State funded trainings for judges, magistrates and prosecutors which are seen as positive developments. However, non-governmental defence lawyers do not enjoy the same opportunities. In this regard, the opportunity for these defence lawyers to develop and enhance their skills is limited, which can ultimately affect the right of the accused to an effective defence.

The issue of illegal entry of foreigners to Georgia has also been considered by the Working Group, as the illegal crossing of borders is penalised by the law. The Working Group received information of a four year sentence imposed on a group of asylum-seekers that attempted to cross the border. Detention of those for illegal border crossing, coupled with harsh sentencing, raises again the issue of proportionality and how this needs to be carefully addressed and remedied by the Government.

It also provides further examples of situations where alternatives to detention can be used, and where the qualification for amnesty declared by the President can be regularly applied. Plea bargain fines have also been imposed on foreigners who are already in vulnerable situations without family or any means of financial support. The Working Group interviewed an individual who was in a difficult situation because he could only speak French, and had difficulty communicating with his State assigned lawyer. The Working Group’s mandate covers the protection of asylum seekers, immigrants and refugees against arbitrary deprivation of liberty. It requests the Government to ensure that the rights of these individuals are protected in accordance with international human rights standards. In particular, the Government will need to ensure individual procedural guarantees are granted to such individuals immediately upon their detention especially in relation to interpretation, legal counselling and provision of information such as the right to seek asylum. Detention should also be used as a last resort and applied in exceptional cases, for a clearly specified reason and for the shortest duration possible.   

Furthermore, the Working Group received a considerable amount of information, from civil society and the Government, regarding the detention of individuals in the context of recent protests. The Working Group’s mandate is to inter alia, ensure that a person is not arbitrarily deprived of his/her liberty, particularly in the exercise of certain fundamental rights, in particular, the right to freedom of peaceful assembly and of association; the right to freedom of expression and opinion; and the right to fair trial and due process. In this regard, it urges the Government to ensure the rigorous protection of these rights for its citizens.

In conclusion, we would like to reiterate that the Working Group is well aware that the Government has made a lot of improvements in terms of reforming the criminal justice system. We encourage it to continue in its efforts to ensure that its institutional and legal framework regarding deprivation of liberty fully conforms to the human rights standards enshrined in its legislation and in international human rights standards. We also invite the Government to consider the issues that we have raised this morning.

These are our preliminary observations at the end of our visit. A final report on the visit will be presented to the Human Rights Council at a session of the Human Rights Council in 2012.  In its report, the Working Group will submit several recommendations to the Government.

Thank you very much.                                             
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* El Hadji Malick Sow is from Senegal and has been the Chair-Rapporteur of the Working Group since 2009.
The former Commission on Human Rights established the five-member Working Group in 1991 to investigate allegations of arbitrary deprivation of liberty. Its mandate was extended in 1997 to cover the issue of administrative custody of immigrants and asylum-seekers. The other two members are Ms. Shaheen Sardar Ali (from Pakistan) and Mr. Mads Andenas (from Norway).

For further information on the Working Group, please visit the following webpage: http://www2.ohchr.org/english/issues/detention/index.htm or consult http://www.ohchr.org/Documents/Publications/FactSheet26en.pdf

For inquiries and media requests, please contact Mr. Miguel de la Lama, Secretary of the Working Group  (+41 79444 5172).