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01 Dec 2021

position of the State Inspector’s Service regarding the key aspects of the legislative initiative

 

 

 

The State Inspector’s Service responds to the legislative initiative related to separation of investigative and prosecutorial powers which was submitted by the Government of Georgia to the Parliament of Georgia. The legislative package was prepared by the Ministry of Internal Affairs.

The reform separating investigative and prosecutorial powers is important for every investigative body, but the mentioned initiative bears much more importance for the State Inspector’s Service the level of independence and effectiveness of which is essentially important for the effective investigation of the violent crimes committed by law enforcement officials and other civil servants.

 

The full control over the State Inspector’s Service by the Prosecutor’s Office and the need for timely legislative amendments in this regard was highlighted on 1-3 December 2020, at the 1390th meeting (DH) by the Committee of Ministers of the Council of Europe on the Tsintsabadze group cases.

 

According to the assessment of the State Inspector’s Service, the legislative amendments submitted to the Parliament of Georgia: fail to ensure the independence of the State Inspector’s Service from the Prosecutor’s Office, do not grant the Service authority to make a decision on carrying out important investigative actions independently from the prosecutor, fail to respond to the aim of the reform of separating the investigative and prosecutorial functions and are not in full compliance with the recommendations issued by the Venice Commission regarding the mentioned reform.

 

It should be noted that the State Inspector’s Service has presented its reasoned opinions regarding the legislative package both to the Ministry of Internal Affairs and to the Government of Georgia, most of which are not reflected in the draft law submitted to the Parliament of Georgia. In particular, the State Inspector’s Service proposed different regulations to the mentioned authorities related to the separation of investigative and prosecutorial powers on certain legal issues concerning the Service, however,under the draft law submitted to the Parliament of Georgia, the powers granted to the Service are identical to the powers granted to other investigative bodies. Thus, the legislative package does not/fails to respond to the needs the State Inspector’s Service faces – the nature, mandate, purpose of its establishment and activities, specifics of the crimes under the jurisdiction of the Service and the importance of conducting independent investigation of the crimes committed by civil servants are not taken into consideration.

 

In this situation, where clear, timely and complete separation of the investigative and prosecutorial powers is one of the essential preconditions for the effective functioning of the State Inspector’s Service, under the draft law submitted to the Parliament of Georgia, the Service is still dependent on the Prosecutor’s Office in the process of making important decisions. Namely, the Prosecutor still retains control over carrying out covert investigative actions; also, until 1 January, 2024, the Prosecutor still has full control over carrying out investigative actions restricting human rights (search, seizure, requesting computer data, etc.) and after 1 January, 2024, the authority of the investigator to file a motion before the court is restricted (it will be possible before launching criminal prosecution); the superior prosecutor will still have the authority to involve the investigator from another investigative body in a case under the investigation of the State Inspector’s Service; the Prosecutor General will still have the authority to withdraw a case from one investigative body and transfer it to another investigative body regardless of the investigative jurisdiction; the Prosecutor will still have the power to terminate the investigation;  also, on the basis of a complaint,  the prosecutor will still have the power to change qualification of the crime before initiating criminal prosecution, etc.

 

In parallel with the misallocation of the investigative and prosecutorial functions, the State Inspector’s Service disagrees with the enactment of the law concerning the restriction on carrying out investigative actions restricting human rights without the intervention of the prosecutor after 1 year (on 1 January 2023) with respect to the the Service . This leaves the Service completely dependent on the Prosecutor’s Office for further two years, which poses threat to conducting  timely and independent investigation and puts the effectiveness of the Service into question.

 

We emphasize that the State Inspector’s Service does not need a transitional period to get prepared for the legislative amendments since there are no hindering circumstances that could be the case regarding other investigative bodies. The investigators at the Investigative Department of the Service are highly qualified employees having higher legal education who were selected on the basis of the competition comprising several stages and with the involvement of the representatives of the non-governmental sector and academia. Therefore, the investigators of the Service will be able to perform newly assigned functions on them flawlessly.

 

The State Inspector’s Service has also submitted its opinion concerning the initiative to the Parliament of Georgia. We hope that when discussing the draft law by the Parliament of Georgia, the challenges the State Inspector’s Service faces and specifics of the mandate of Service will be taken into consideration.

 

According to the draft law:

 

  • The prosecutor still retains full control over carrying out covert investigative actions, including, before initiating criminal prosecution. The investigator of the Service does not have the power to file a motion before the court for carrying out covert investigative actions without consent from the prosecutor whereas when investigating crimes committed by civil servants, covert investigative action is one of the important actions (sometimes, decisive), especially, in cases when there is a reasonable suspicion/threat influencing a witness/suspect. Therefore, in the process of investigating this category of criminal cases, the investigative body is still fully dependent on the Prosecutor’s Office. Not only does this delay the investigative process, but it also deprives the investigative body of the possibility to carry out investigative actions and file its opinions before the court in case of disagreement between the investigative body and the Prosecutor’s Office;

 

  • Also, until January 1, 2024, the Prosecutor will still have full control over carrying out investigative actions restricting human rights (search, seizure, requesting computer files, etc.), and after 1 January 2024, the investigator has a restricted power to file amotion before the court (this will be possible before initiating criminal prosecution). Delaying enactment of the mentioned provision leaves the Service fully dependent on Prosecutor’s Office, thus posing threat to conducting timely and effective investigation.

 

  • As for conducting investigative actions restricting human rights after 1 January 2024, after initiating criminal prosecution, the investigator s not authorized to file a motion before the court to obtain an order for carrying out the mentioned actions (search, seizure, computer data, etc.) without the prosecutor’scosent. Given the fact that after initiating criminal prosecution, the investigator is still obliged to carry out investigation thoroughly, fully and impartially, such level ofinvolvement of the prosecution in the process of the investigation may pose a threat to the effective conduct of the investigation, including in obtaining exculpatory evidence. Restriction of the power of the investigator is especially problematic in criminal cases when, following initiating criminal prosecution, the investigation continues in respect of other individuals or/and other episodes of the crime.

            Participation of the prosecutor in the process of conducting procedural/investigative actions restricting human rights is not deemed to be mandatory according to the Venice Commission if the court control over it is still retained.

 

  • The superior prosecutor will still have the power to involve the investigator of other investigative bodies in the process of a criminal investigation under the State Inspector’s Service. The mentioned provision allows for legislative possibility to involve in the case an investigator of the agency against which the Service conducts the investigation. This is incompatible with the mandate of the independent investigative body;

 

  • The Prosecutor’s Office of Georgia (Prosecutor General and a person authorized by him/her)will still have the power to withdraw a case from one investigative body and transfer it to another investigative body, regardless of the investigative jurisdiction. This power of the Prosecutor General is especially problematic regarding the criminal cases under investigation of the State Inspector’s Service. It should be noted, that the Committee of the Minister of the Council of Europe negatively assessed the mentioned power of the Prosecutor General in the decision on Tsintsabadze group cases. Additionally, according to the decision of 23 September 2021 of the Constitutional Court of Georgia, the normative content of the power of the Prosecutor General to transfer the criminal cases qualified as torture, threat to torture or degrading and inhuman treatment to the investigative body, when there is an objective cause that the representative of the investigative body has committed the mentioned actions;

 

  • The prosecutor retains the power to terminate investigation. Undoubtedly, the State Inspector’s Service recognizes the importance of prosecutorial oversight over decisions on terminating investigation, however, the mechanism of appealing the ruling on termination of investigation before the prosecutor and the possibility of revoking the ruling on termination of investigation by the prosecutor on his/her initiative, would eliminate the risks of making illegal decisions regrding termination of investigation by investigative bodies, whereas the power of the investigative body to terminate the investigation ensures making timely final decisions;

 

  • The prosecutor retains the power to change the qualification of the criminal case before initiating criminal prosecution. Considering that the prosecutor is authorized to grant the case  qualification that can exclude the State Inspector’s Service from continuing investigation on the case at hand (as the new qualification may not constitute the crime under the jurisdiction of the State Inspector’s Service), it is essentially important that when deciding the complaint regarding changing the qualification by the prosecutor, the power of the investigative body to submit its opinion to the prosecutor is guaranteed under the legislation. Otherwise, by changing the qualification of the case there is a threat of transferring the case under the jurisdiction of the State Inspector’s Service to other investigative agency.