Refinement of criminal legislation is the first objective stated by Georgia’s National Strategy of Human Rights Protection (for 2014 – 2020). Correspondingly, the first chapter of Georgia’s Governmental Action Plan of Human Rights Protection (for 2016 – 2017) is titled Criminal Justice. The chapter envisages two goals, which are as follows: 1) to review criminal justice legislation for its approximation with international human rights standards; and 2) to prevent offenses within the law-enforcement system to the maximum extent and provide an effective response to any deviation.
While certain attempts were made by Georgian agencies to fulfil the actions envisaged by the Action Plan of Human Rights Protection (HRAP) chapter, unfortunately, no concrete or effective steps have been made. This concerns substantive and procedural criminal codes as well as the obligation to conduct a systematic review of the Code of Administrative Offenses. Moreover, reform processes that had been initiated have been suspended until the end of 2017 due to obscure reasons (according to the information provided by the Ministry of Justice, the Secretariat of the Interagency Council working on the Criminal Code resumed its work on the draft substantive Criminal Code at the end of 2017). The mere inclusion of certain missions and actions in the HRAP is not sufficient for creating a just criminal justice system oriented towards the protection of human rights. The implementation of specific, more effective and result oriented (timely) actions by the government would be highly appreciated. It is also of great importance that the law-enforcement agencies should strive to train and retrain their employees in a systematic manner. The schedule of training/programs envisaged by the HRAP should be planned and the application of the acquired knowledge should be thoroughly monitored.
By the time of preparing the report on the implementation of the government’s HRAP, none of the 13 actions envisaged by the HRAP had been fully completed; 5 actions were mostly completed and 8 were mostly incomplete. To reiterate, the overall progress of implementing Chapter I of the government HRAP amounts to 49%.
1. Overall Assessment of Chapter I of the Action Plan on Human Rights
1.1. Structural Problems of Chapter I of the HRAP Such as the Relevance, Effectiveness and Priorities of the Objectives and Actions. Chapter I of the government’s HRAP aims at reviewing criminal justice legislation for fulfilling international human rights standards satisfactorily.
The aim of Chapter I is to evaluate the relevance, effectiveness and priorities of the objectives and corresponding actions envisaged by the HRAP with reference to its goal and whether it would be achieved if the responsible agencies carried out all the actions thoroughly.
With regards to the structure of the HRAP, it is important to emphasise several issues which are as follows:
- Irrelevance of the Actions and Objectives with the Goal
The first goal envisaged by the HRAP is to review criminal justice legislation for its approximation with international human rights standards. The drafters of the HRAP set out objective 1.1.4. (improvement of the protection of human rights in the criminal justice system through the enhancement of the role of the judge) under the goal of reviewing the legislation as the means of achieving it. Without doubt, the objective itself is of utmost importance, however, enhancement of the role of judges cannot be considered as an adequate and sufficient means for achieving the goal of approximating the legislation with international standards. Moreover, the HRAP envisages training for judges to enhance their performance, which is also very important, though irrelevant to the goal. Unfortunately, it is impossible to evaluate within the framework of our monitoring the degree of enhancement that would be achieved through such training. This issue, as well as the enhancement of judicial sensitivity through such training, is discussed in a more detailed manner below, in the section dedicated to the objective evaluation. Setting out an obligation to safeguard presumption of innocence as an action (22.214.171.124.2.) under the objective (126.96.36.199.) related to the development of human resources of the Ministry of Internal Affairs of Georgia (MIA) is obscure as well.
- Timeframes for the Implementation of the Actions
In terms of the timeframes provided by the HRAP, there is a visible tendency of indicating 2016 as the deadline for the implementation of the processes initiated years ago. This is logical concerning the Criminal Code and the Code of Administrative Offences. However, indicating 2016 as the deadline for the implementation of certain actions that are continuous in nature and cannot be fulfilled by 2016 is confusing (for example, action 188.8.131.52.1. – improve standards of crime prevention and effective investigation within the police system).
- The Relevance of the Agencies in Charge
In some instances, the approach for determining the agencies in charge is rather unclear. This mainly concerns instances where the Government of Georgia is indicated as the agency in charge. It should be emphasised that, within the framework of the monitoring at stake, there had been instances when the Government of Georgia (which was indicated as the agency in charge) was redirecting our letters to the Ministry of Justice (inter alia, about activities 184.108.40.206 and 220.127.116.11). However, parts of those letters have remained unanswered. Therefore, indicating the Government of Georgia as the agency in charge creates confusion as to who is responsible for the implementation of an action. For this exact reason, it is important to specify which agency oversees certain actions to avoid such confusions and ambiguity while implementing the HRAP.
1.2. Remarks on the Content of HRAP Chapter I – Compliance with the Existing Challenges and Recommendations
Even though the actions envisaged by the 2014-2015 Action Plan had not been fully completed, unfortunately, the present HRAP does not provide for actions related to the principles of either equality of arms or adversarial proceedings or the jury trial system’s reform. The opinion of the foreign expert, Sabrina Buchler, is noteworthy regarding these issues. She gave recommendations – back in 2016-2017 when the HRAP was being drafted – that the issues concerning the legislative amendments should have been maintained and evaluated from the viewpoint of their execution. Because, the mere act of initiating legislative amendments could not be considered as a sufficient means for achieving the goal behind them without proper implementation.
The inclusion of all the activities related to the improvement of criminal justice in the HRAP should be assessed positively. However, it should be noted that the HRAP does not fully reflect and correspond to all the challenges existing in the criminal justice system today.
Based on the GDI assessment, recommendations of foreign organisations and the report of the Public Defender of Georgia, the list of actions that should have been included under objective 1.1.1. (initiation of necessary amendments for the improvement of criminal procedure legislation) of the 2016-2017 HRAP, due to their importance for overcoming the challenges existing in the criminal justice system, are as follows:
- Reform of the Jury Trial System
It is important that the Government of Georgia takes into consideration the Public Defender’s recommendations and takes measures to remedy the shortcomings that were revealed while analysing cases tried by jurors. The legislative amendments made to the Criminal Procedure Code in 2016 should also be analysed and recommendations by foreign organisations should be taken into consideration. The problematic nature of the jury trial system is also mentioned in the report submitted by Maggie Nicholson, an expert.
- To ensure the protection of the principle of adversarial proceedings and equality of arms of the parties:
- Analyse and monitor practical use of the legislative amendments, enacted in February 2016, concerning rules of witness questioning; and if necessary, initiate additional amendments;
- Initiate legislative amendments to ensure the abolishment of the right of the prosecution to conduct an initial examination of the evidence provided by a defence party; and
- Initiate legislative amendments for creating the obligation to notify legal adversaries about witnesses (the problem had been discussed by the OSCE’s Office for Democratic Institutions and Human Rights [ODIHR] 2014 Report on Trial Monitoring in Georgia. According to the assessment provided by the report, the problem breaches the principle of equality of arms of the parties and limits the ability of the defendant to prepare for a cross-examination.).
1.3. Assessment of Other Relevant Action Plans and Strategies Related to Chapter I of the HRAP
The 2016 and 2017 criminal justice system reform strategies and action plans (APs), developed and revised by the Criminal Justice Reform Inter-Agency Coordination Council, are in force in parallel with the government’s HRAP.
As in the case of the present HRAP, the 2016 and 2017 criminal justice reform AP envisages the developing and submitting to the parliament the legislative amendments to the Criminal Code and the Code of Administrative Offences. Moreover, for improving the Criminal Procedure Code, those documents provide for the refinement – on the legislative level – of provisions governing admissibility of evidence and initiation of relevant amendments aimed at creating an independent investigation mechanism. The deadline for the completion of the given actions is 2017 just as in the case of the APs and strategies for 2016 and 2017.
In contrast to the timeframes envisaged by those APs and strategies, the given HRAP provides 2016 as the deadline for the refinement of the criminal legislation and the Code of the Administrative Offenses. The deadline for the initiation of legislative amendments regarding indirect evidence is determined to be 2016-2017.
To conclude, 2016-2017 HRAP and 2016 and 2017 APs and strategies for the criminal justice system reform are quite similar in terms of the reform of the substantive and procedural criminal codes and that of the Code of Administrative Offences. However, sections dedicated to criminal justice in 2016-2017, criminal justice system strategies and AP do not take into consideration important activities envisaged by the HRAP, such as the analysis of the amendments made to the criminal procedure legislation concerning strengthening victims’ rights; refinement of relevant provisions if necessary; and indicating grounds of discrimination referred to in the Law of Georgia on Elimination of All Forms of Discrimination as an aggravating circumstance in the disposition part of relevant provisions of the Criminal Code of Georgia. Therefore, since 2016 and 2017 strategies and APS for criminal justice reform only deal with important issues in criminal justice reform in general, it would be more appropriate to include all the relevant activities and objectives in the document in a more detailed manner.
The following measures must be taken for further improvement of human rights situation in the criminal justice system. Recommendations:
To the Government of Georgia/the MIA/the Criminal Justice Reform Inter-Agency Coordination Council:
- Refinement of the criminal procedural legislation (for improving the protection of the rights of the accused and victims) and the incorporation of these issues in the 2018-2020 Government AP;
- Timely initiation of the new project of amendments to the Code of Administrative Offences in the parliament;
- Timely initiation of the package of amendments developed for the liberalisation of the Criminal Code and its approximation with international standards.
To the High School of the Ministry of Justice:
- To increase the number of judges retrained on the issues of hate crimes across the country (regional coverage) and the development of special modules; and
- To increase the number of judges retrained on the issues of domestic violence across the country (regional coverage) and the development of special modules.
To the Prosecutor’s Office:
- To increase the number of prosecutors retrained on the issues of domestic violence across the country (regional coverage) and development of special modules.
To the MIA:
- To increase the number of MIA’s employees retrained on the issues of domestic violence across the country (regional coverage) and development of special modules;
- To continue the reform of the internal control mechanisms within the MIA and establish new standards for ensuring institutional independence of those mechanisms (refinement of the normative framework and establishment of relevant practice);
- To develop plans and modules for specialised training necessary to retrain employees of the MIA’s Central Crime Police Department;
- To continue retraining of the MIA’s employees on the issues of protection of human rights for fully covering the subject and to establish means of assessing the effectiveness of training; and
- To introduce special regulations for ensuring the protection of presumption of innocence in the MIA system (with the involvement of the General Inspectorate and the MIA Public Relations Department).
 Buchler S., Expert on Government Human Rights Action Plan Development, Promoting Rule of Law in Georgia (PROLoG), December 2015, 7.
 The Report of the Public Defender of Georgia on the Situation of Human Rights and Freedoms in Georgia, 2016, pp. 247-251, see also pp. 517-519.
 For example, problems related to the jurisdiction and territorial jurisdiction of a jury, as well as the obligatory character of the jurors’ court recommendations on a number of issues, etc. Also, see GDI’s 2015 evaluation report, pp. 23-27, available at: http://gdi.ge/uploads/other/0/368.pdf.
 Report on Progress in the Implementation of the National Strategy for the Protection of Human Rights in Georgia 2014-2020, and Recommendations as to Future Approaches, Maggie Nicholson, 2017, pp. 11-13.
 See GDI on the Implementation of Chapter I on the Human Rights Action Plan, pp. 13-14 and the 2015 Report of the Public Defender of Georgia, p.456.
 See GDI’s Report on the Implementation of Chapter I on the Human Rights Action Plan, pp. 20-22 and Ensuring the Principles of Adversarial Proceeding and Equality of Arms of Parties in Criminal Proceedings, research and recommendations, Association of Law Firms of Georgia (ALFG), 2016, available at: http://alfg.ge/wp-content/uploads/2015/07/sisxlis-temaze-kvleva_opt.pdf.