1208 meeting (23-25 September 2014) (DH)

Transcription

1 SECRETARIAT GENERAL SECRETARIAT OF THE COMMITTEE OF MINISTERS SECRETARIAT DU COMITE DES MINISTRES COMMITTEE OF MINISTERS COMITÉ DES MINISTRES CONSEIL DE L'EUROPE Contact: Anna Austin Tel: Date: 11/08/2014 DH-D D(2014)956 Documents distributed at the request of a Representative shall be under the sole responsibility of the said Representative, without prejudice to the legal or political position of the Committee of Ministers. Meeting: Item reference: 1208 meeting (23-25 September 2014) (DH) Communication from a NGO (Article 42 of the Constitution) (09/12/2013) in the case of Enukidze and Girgvliani against Georgia (Application No /07) Information made available under Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements. * * * * * * * * * * * Les documents distribués à la demande d un/e Représentant/e le sont sous la seule responsabilité dudit/de ladite Représentant/e, sans préjuger de la position juridique ou Réunion : Référence du point : 1208 réunion (23-25 septembre 2014) (DH) Communication d'une ONG (Article 42 de la Constitution) (09/12/2013) dans l affaire Enukidze et Girgvliani contre Géorgie (Requête n 25091/07) (anglais uniquement) Informations mises à disposition en vertu de la Règle 9.2 des Règles du Comité des Ministres pour la surveillance de l exécution des arrêts et des termes des règlements amiables.

2 DGI Secretary to the Committee of Ministers Council of Europe Avenue de l'europe Strasbourg Cedex 0 9 DEC SERVICE DE L'EXECUTION DES ARRETS DE LACEDH Xovember 2013 Enukidze and Girgylinni v Georgia (25091/ July 2011) Communication from the Article 42 of the Constitution Tbilisi, Georgia I. Introduction. Article 42 of the Constitution with its scat in Tbilisi. Georgia is a no n- governments I. non-political, human rights advocacy organization founded on September The members of the organization arc professional lawyers providing free legal assistance to victims o f human rights abuses in local and international courts and other state agencies. The organization tints at promoting the establishment of rule of law in Georgia through introduction of international standards for the protection o f human rights and freedoms and increase o f legal awareness o f the public. Article 42 of the Constitution therefore wishes to submit its communication on the execution process of the judgment Enukidze und Girgvliani v Georgia, following rule 9, paragraph 2 of the rules o f tire Committee of Ministers for the supervision of the execution of judgments and of the terms of friendly settlements. II. Brief summary of the case In the respective case, the applicants' 28-year old son was abdicted and beaten to death by a group of senior officers of tire Ministry of Interior in The European Court ol Human Rights (ECtHR) found a violation of the procedural limb o f Article 2 o f the Convention on account of the lack of an effective investigation into the death of the applicant's son. It also found that the authorities had not complied with their obligations to furnish all necessary facilities to the Court on the grounds that the Georgian Government had been late, and had partly failed to submit a number o f requested items of evidence to the Court, without providing convincing reasons for it (violation o f Article 38).

3 As regards the lack of an effective investigation (violation o f Article 2). the Court noted in particular the following shortcomings: The part of the investigation carried out by the Ministry o f Interior between 26 January and 5 March 2006 lacked the requisite independence and impartiality due to the institutional connection and even hierarchical subordination between the implicated senior Ministry officer and the investigators in charge o f the ' case. I he part of the investigation carried out by the Tbilisi City's Prosecutor's Office lacked the requisite thoroughness and objectivity and was devoid o f integrity. The Court noted a number o f serious omissions, the main one being the refusal, on the basis of Article 69 (j) ol the Code o f Criminal Procedure (CPP). to grant the applicants leave to he involved in the investigation. The prosecution authority did not even inform them o f the findings made in the course o f the investigation. In addition, a number of potential witnesses had not been identified or questioned, and important items ot evidence had either not been collected at all. or disclosed. As regards the judicial proceedings, the Court held that a major deficiency was the domestic courts' persistent retiisal to provide the applicants with sufficient time and facilities to study the case materials, thus depriving them of the opportunity to prepare their position for and participate effectively in the trial. Meanwhile, the accused had unrestricted access to the case materials from the investigation stage, the applicants, as the civil party, found themselves in a clearly disadvantageous position durine the trial. Finally, as regards the punishment of the convicted persons, the Court concluded tliat the sentences as initially imposed upon the convicts by the domestic courts anu actually implemented by the relevant domestic authorities did not constitute adequate conviction punishment. I II. Individual measures Despite the positive developments taken by the Government o f Georgia to re-open the investigation in the case aller the October 2012 elections with the shill o f the government, the inv estigation process is still pending. On the general level, we. as civil society representatives, highly welcome the recent amendments to the relevant national laws, which consider LCtHR judgment as a newly revealed circumstance in a case. That allows a victim to apply to Appeal Court for the re-opening o f the case. IV. General measures Article 42 o f the Constitution welcomes the Government's commitment to effectively implement the respective judgment and make relevant reforms to prevent similar violations in the future, as stated in its action plan. We would however like to draw attention to certain issues that are o f particular concern with regard to prevention of similar violations and have to be taken into urgent account by the Government. a) Independence of Judiciary The independence o f the judiciary is formally guaranteed by Article 84 o f the Georgian Constitution

4 and recent years have seen the introduction of an impressive range o f legislative and institutional relbrms intended to strengthen judicial independence in the area o f appointments, discipline and tenure.1 Nonetheless, international community, civil society and numerous advocates continued to express their concern that the judiciary is not yet a sufficiently -»pen institution and remains vulnerable to political interference, particularly in criminal and administrative cases. Particular concern has been raised in cases where the defendants, whether b cause o f their political or other public activities, are viewed as being opponents of the government. For example, a report published in 2011 by the Georgian Young l awyers Association (U Y LA ) concluded that many o f the prosecutions tliat took place following anti-government demonstrations in 2009 may have been politically motivated and that the judiciary had failed in its responsibilities both to control the arbitrary actions o f the investigating authorities, and to properly scrutinize the strength and validity of the evidence presented by the prosecution.2 We welcome the current government's resolute intention to mike needed reforms in that regard. As referred by the government in its action plan o f the respective judgment, the national legislation in force does not meet the requirements o f impartiality that should be met by investigating bodies in cases falling under Articles 2 and 3 o f the Convention. A study has been initiated within the Ministry o f Justice with the aim o f proposing an amendment to the ministerial decision o f regarding investigating powers. \N c encourage I lie Ministry of Justice to present llu* study and develop relevant proposals for amendments aiming to ensure the principle of impartiality. Moreover, a dialogue with civil society focusing on such issues would he very welcomed. b) Equality of Arms There have been significant recent changes to Georgia's Criminal Procedure Code, which was rev ised in 2009 and entered into force in October One of the most important amendments was the introduction of adversarial as opposed to inquisitorial proceedings in criminal cases. Jury trials have also been introduced, although only in murder cases. Other amendments to the CPC have raised minimum evidence requirements and strengthened the protection o f due process in criminal cases. However, serious concerns remain about equality o f arms in criminal prosecutions. The failure to respect the principle o f equality of arms have a detrimental effect on the ability o f advocates to represent their clients effectively in Georgia's adversarial criminal justice system. Although not a definitive indication o f such an imbalance, many observers have noted Georgia's extremely high conviction rates. In 2011, only 2.3 per cent of those defendants whose cases reached trial were acquitted by first instance courts. In the rate o f acquittal in such cases was even lower, at 0.2 per cent. 1 C o t Commissioner for Human Rights, "Report by Thomas Hammartxrg, Commissioner for Human Rights o f the Council o f Europe, following his visit to Georgia from 18 to 20 April 201V. Com m DH(20l 1)22. para 24. https: wcd.coe.ini View Doc jspid= I SOOTS^&Site-A: BackColor Internet BtiBDEE&BackColorlntranet^FFCD4FifcBackC olorlogged-ffc679 2 G Y LA. Legal Analysis o f Cases o f Criminal and Administrative Offences with Alleged Political Motive' (G Y LA. Tbilisi 2011). 98. also available at attachments 964 savaniudod*'e20politikurie's20mtxiv.iciisyi20saqmeebi_full_eng.pdf

5 As a member o f the CoE. Georgia is bound by the provisions of the ECHR. which guarantees, at.article 6. the right to a fair trial in criminal and civil proceedings. In its extensive jurisprudence in this area, the FClHR has explained that the principle of equality of arms is one of the features o f the w ider concept of a fair trial. It implies iliat "each party must be afforded a reasonable opportunity to present his case under conditions that do not place him at a substantial disadvantage \is-a-vis his opponent*5. In this context, the ECtHR has also emphasised the overlapping right to adversarial proceedings. This includes "the opportunity for parties to a criminal or civ il trial to have know edge of. and comment on. all evidence adduced or observ ations tiled (...) with a view to influencing the court s decision4'. We therefore welcomed the government's initiative to amend the provisions of the Criminal Procedure Code (Article 57) which entails restrictions on the civil party's access to case files. No amendments have been made to date. \ \ e consider such amendments to he of crucial importance in ensuring the principle of equality of arms and urge the Government to make needed reforms as soon as possible. The current regulation violates the principle of equality since although the defending party cannot force the witness to give a testimony, the accusing body can still call for a compulsory meeting with the w itness to question them. Moreover, if a witness docs not comply w ith the obligations placed on them, they are then brought before a law enforcement body where refusal to testify is subject to a criminal liability. I f this issue were resolved, it would eliminate a problem that has persisted for y ears. For example, not only did the police have the right to call the witness in for questioning without the decision of the judge, but in some cases, live witnesses were unable to bring in their lawyers. It is unfortunate that the new government, which has criticized the existing regulations regarding witness interrogation, did not prove to be ready for acting out the progressive changes, and instead deferred the enactment of the new regulation to September I This initiative is currently being discussed in parliament, meaning that parties involved in criminal proceedings continue to bear unequal conditions, with the accusing side enjoying certain privileges. The adversarial principle between the parties, therefore, remains violated. We call upon the Government to reconsider the deference of enactment of the new regulation and ensure its consideration at an earlier stage. The other important initiative that lias been deferred by the Parliament and the new government is a change initiated on February , which gives the defense a right to request an investigative activity in its favor. This means that live side o f the defense (tlic lawyer) has the right to ask the court for conducting search and seizure, and to request and receive any document or evidence from the stale bodies or private entities without delay. Such a regulation will aid the e fleet iv e defense of an offender's rights. It will also serve as a guarantor of the principle of equality and competitiveness. Similarly to the first initiative, however, the enactment o f this change has been deferred to September I The gov ernment bases its deferral o f the new regulation which gives additional rights to the defense on the argument that the law enforcement bodies are not ready for new norms However, it is unclear what kind of preparation is needed for the implementation of these two crucial norms. Providing analogous arguments for years resulted in the current problem o f an inability to provide party equality in the criminal justice system, which endangers the interests o f the defense side, as well as the principle of j. De Maes am! Gijsels v Belgium. App No ECtHR. 24 February " Borgers \ Belgium. App No ECtHR, 30 October I99

6 equality and the quality o f justice. c) We welcome the fact that the Parliament has already amended the Prison Code and enforced the prohibition to place persons accused in the same case in the same cell. Prison Code of Georgia was amended in «559. Nikoloz Legashvili Lawyer.Article 42 of the Constitution