ბოლო განახლება: 5 თებერვალი 2020

Pursuant to Rule 9(2) and Rule 15(2) to the Committee of Ministers of the Council of Europe with respect to the cases of Giorgi Bekauri and others v. Georgia (application no. 312/10) (Tsintsabadze Group of Cases)

Committee of Ministers

Department of Execution of Judgments of the

European Court of Human Rights

Submission made by the Coalition for Independent and Transparent Judiciary

Pursuant to Rule 9(2) and Rule 15(2) to the Committee of Ministers of the Council of Europe with respect to the cases of

Giorgi Bekauri and others v. Georgia (application no. 312/10)

(Tsintsabadze Group of Cases)

October 2019

Tbilisi, Georgia

Contents

I. Introduction. 3

II. Brief summary of the case. 3

IV. Malpractice of the common courts when examining cases under the CAO.. 7

V. Suggested methods to create the neutral evidence for sensitive cases. 9

VI. Conclusion and suggested general measures. 10

I. Introduction

1. The Coalition for independent and transparent judiciary represents a unity of 40 non-governmental organizations in Georgia. The goal of the Coalition is to consolidate the efforts of legal professional associations, NGOs, business associations, and media into a joint advocacy for an independent, transparent and accountable justice system. The Coalition activities include research and monitoring, development of recommendations, advocacy for judicial reforms, and promotion of public discussions on the problems critical to the justice system.

2. The present submission is made pursuant to Rules 9(2) and 15(2) of the Committee of Ministers' Rules for the Supervision of the Execution of Judgments with regard to the effective execution of the ECtHR decision on the case of Giorgi Bekauri and others v. Georgia (application no. 312/10, judgment of 15/09/2015).

II. Brief summary of the case

3. The supervision of execution of the decision in the case of Giorgi Bekauri and others v. Georgia is conducted within the Tsintsabadze Group of cases[1]. The group of cases under the enhanced procedure of execution raises the issue of lack of effective investigations into allegations of breaches of the right to life and ill‑treatment allegedly imputable or linked to action or negligence of state agents (law enforcement officers of the Ministry of Internal Affairs, the Department of Constitutional Security, the Ministry of Corrections, the Ministry of Justice, the Public Prosecutor’s Office).

4. The case of Bekauri and Others concerns the violations, which occurred during the forceful dispersal of a peaceful demonstration on June 15, 2009. Through the friendly settlement the Government acknowledged violations of Article 3, Article 6 §§ 1 and 3 with respect to the judicial determination of the administrative offences and violation of Article 11 of the Convention.

5. The Government acknowledged, inter alia, its failure to ensure a fair trial in proceedings of administrative misdemeanor (violation of Article 6 §§ 1 and 3) with respect of the three applicants (M. Chikashvili, M. Meskhi and G. Chitarishvili).

6. The violation acknowledged by the Government under Article 6 §§ 1 and 3 of the Convention in the mentioned case raises the issue similar to the ECtHR judgments in the cases of Mikiashvili v. Georgia (application no. 18996/06, judgment of 09/10/2012) and Dvalishvili v. Georgia (application no. 19634/07, judgment of 18/12/2012) also belonging to the Tsintsabadze group of cases. In both cases the ECtHR found, inter alia the following procedural shortcoming: domestic courts based their conclusions mainly on testimony given by the police officers involved in the incidents. That particular violation is also relevant for the case of Bekauri and others in the context of ensuring fair trial rights in the proceedings of an administrative misdemeanor.

7. The Committee of Ministers concerning the execution of the above-mentioned ECtHR judgments indicated the following:

a) “As regards the role of the judiciary, the continued training measures are noted. In order to assess whether they are apt to avoid a repetition of the procedural shortcomings found in certain judicial proceedings brought against state agents, it would be necessary to demonstrate that these shortcomings have been addressed and overcome (notably lack of adversarial public proceedings and decisions rendered in camera, court decisions based mainly on testimony given by the police officers involved in the incidents, lack of sufficient time and facilities to study the case materials etc. )”[2]

8. The Committee of Ministers examined the progress of execution of the Tsintsabadze group of cases for the last time in September 2018 (1324th meeting) (DH).[3] The Committee decided to resume consideration of these cases in December 2019.[4]

9. The analyses below demonstrate that the violations stemming from the above-mentioned practice are not sufficiently addressed on the national level and remain to be a systemic problem also in the new cases examined by the national courts.

10. This has been confirmed following the very recent events of 20-21 June 2019 in Tbilisi, when hundreds of demonstrants were arrested and held responsible under the Code of Administrative Offences for the alleged resistance to the police and/or violating the public order.[5] The violation of rights claimed in the newly emerged cases are very similar to the infringements acknowledged by the Government in the case of Bekauri and Others under Article 6 §§ 1 and 3 of the Convention.

11. Therefore, the aim of the present submission is to provide the Committee of Ministers with the information regarding the gaps in the Code of Administrative Offences of Georgia and the lack of sufficient procedural guarantees for ensuring the fair trial rights during judicial determination of the administrative offences (for the purposes of protection of article 6 §§ 1 and 3 of the Convention). Legislative gaps and malpractice of police and judicial authorities that led to a violation of Article 6 §§ 1 and 3 of the Convention in the case of Bekauri and Others, if not amended, will result in similar violations also in future.

12. The present submission discusses the general measures necessary to effectively execute the decision in the case of Giorgi Bekauri and others v. Georgia (application no. 312/10 15/09/2015) and to also address the shortcomings found in the cases of Dvalishvili (application no. 19634/07) and Mikiashvili (application no. 18996/06) v. Georgia.

13. We believe the information provided in the present submission will assist the Committee of Ministers to fulfill its mandate under Rule 6, paragraph 2(b)(ii)[6].

III. Shortcomings of the Code of Administrative Offences

14. The current Code of Administrative Offences of Georgia (hereinafter referred to as CAO) was adopted in 1984, during the Soviet period. The Code comprises substantive and procedural provisions. Due to various procedural flaws, lack of fair trial guarantees and outdated material provisions the comprehensive reform of the CAO is required. Public Defender of Georgia and Georgian civil society organizations have been advocating for the reform of the CAO for number of years.[7]

15. The absence of due process guarantees is especially problematic in cases examined under articles 166 (petty hooliganism)[8] and 173 (non-compliance with a lawful order of a law enforcement officer)[9] of the CAO. Both articles, apart from a fine, provide for an administrative imprisonment up to 15 days as a sanction; both articles are usually used by the police to arrest the demonstrants/rally participants and hence, are an indirect way of restricting the freedom of peaceful assembly, similar to the facts of the case of Giorgi Bekauri and others.

16. According to the Public Defender of Georgia:

a. „There are fundamental deficiencies in administrative proceedings that the Public Defender of Georgia emphasised in the reports of the previous years, which remain problematic to date. In particular, the code does not regulate comprehensively the procedure of conducting examination of administrative violations; does not provide a person adequately with the elements making up the right to a fair trial; and does not determine the procedure of gathering, examining and assessing evidence. The nonexistence of the standard of proof required for holding a person responsible creates significant problems in practice. Besides, the nonexistence of the duty to refer to evidence substantiating the circumstances established during examination of the case along with other factors causes the lack of reasoning of court decisions; the majority of court decisions lack reasoning and are rendered in a formulaic template; all pieces of evidence are gathered by one body/official and there is only formal unity of evidence. Due to the nonexistence of sharing burden of standard of proof, the formal legality of the report is verified without referring to accepted or rejected evidence. Regarding evidence, the shortcomings regarding the use of body cameras are noteworthy. Patrol police has the right, not the obligation, to carry out audio and video recording in accordance with a procedure prescribed by law. Besides, despite an express statutory obligation to record stop and searches by the police with either a body camera or a video camera, arrests are not recorded with this equipment. This issue is particularly problematic due to the nonexistence of neutral pieces of evidence in case-files. The right to a fair trial is violated by the practice of common courts holding individuals responsible without neutral pieces of evidence. This contradicts the case-law of the European Court of Human Rights and shifts the burden of proof to a citizen.“[10]

17. As mentioned above, the procedure for judicial determination of administrative offences, regulated in the chapter XXI of the CAO is deficient. It does not envisage, inter alia, an evidentiary standard necessary for the imposition of administrative detention or other sanctions. Moreover, the short timeframe defined for the court proceedings fails to give a person adequate time and ability to prepare for the defense.

18. According to Article 236 of the CAO (Evidence)

a) The evidence in an administrative case shall be all those facts based on which the relevant body (official) establishes, according to the procedure defined by the legislation of Georgia, the existence or non-existence of an administrative offence, the guilt of a person in its commission, and other circumstances that are important for correct resolution of the case.

b) These facts shall be established by the following means: an administrative offence report, the statement of a person prosecuted for the administrative offence, the victim and witness statements, an expert’s opinion, the findings of an alcohol, drug or psychotropic test, a videotape or photo-film, material evidence, a report on the seizure of an item or document, and any other documents.[11]

19. According to Article 237 of the CAO (Evaluation of evidence)

a) Being guided by law and legal consciousness, the relevant body (official) shall evaluate evidence with his/her inner conviction based on a comprehensive, full and objective examination of all the circumstances of the case in their entirety.[12]

20. General wording of the above-mentioned articles and the fact that the law (unlike the criminal procedure code of Georgia) does not prescribe the standard of proof necessary to establish the commission of an administrative offence (inter alia, under Articles 166 and 173 of the CAO), full and unquestioned legacy is given to the statements of police officers, which gives raise to an abuse of power by police and delivery of unsubstantiated findings by the national courts.

21. Such a scarcity regulation of the standard of proof in the cases of administrative offences is reflected in the case-law of the common courts of Georgia.

22. In practice, usually, a protocol about the commitment of an administrative offense drawn up by the police officer involved in the incident is sufficient evidence to confirm the charges. The national courts, while adjudicating on similar cases, do not require the charges to be confirmed by the neutral evidence, alongside with the protocol drawn up by the police. The common courts usually do not give evaluation to the fact that the police officers, although they can obtain the neutral evidence (for example, by using their body video cameras) do not use such possibility.

23. Therefore, the relevant provisions of the CAO shall be amended to define the standard of proof for establishing the commission of an administrative offence, make reference to the body of evidence required in the case and provide for the necessity of collection of neutral evidence, when appropriate.

24. Furthermore, similarly to the Criminal Procedure Code of Georgia, the CAO shall provide for the distribution of the burden of proof and specify that it always lies on the law enforcement body[13].

IV. Malpractice of the common courts when examining cases under the CAO

25. In 2018 the Tbilisi City Court examined 2 889 cases under articles 166 (petty hooliganism) and 173 (non-compliance with a lawful order of a law enforcement officer) of the CAO.[14]

26. “Article 42 of the Constitution” – member NGO of the Coalition[15], analyzed randomly selected 32 decisions of the Tbilisi City Court delivered during the last 6 months of the year 2018. The court decisions were analyzed from the perspective of their compatibility with the case law of the ECtHR.

27. Out of the evaluated 32 decisions the administrative proceedings were stayed due to the absence of administrative offenses in 2 cases, in 6 cases the court confirmed the commitment of the offenses based on the confession, while in 24 cases although the defendants challenged the charges brought against them and argued that the police abused the authorities, the court found them guilty.

28. The case analysis disclose the systematic problems of examination of cases under Articles166 and 173 of the CAO in the common courts.

29. The decisions are usually based only on the testimonies of the police officers directly involved in the incidents. There are also instances, when the police officers presenting the case before the court are not the eyewitnesses of the incident, but became involved in the case only during the court proceedings. In such a case, the only evidence to prove the guilt of a person is the administrative protocol drawn up by their fellow colleagues. As mentioned above, such an approach founds the grounds in the CAO, but is also largely development by the national court practice.

30. The national courts have developed a uniform doctrine of giving advantage to the information provided by the police officers, the so called "presumption of credibility of police officer’s testimony", when the defendant challenges the commitment of an administrative offence. Tbilisi City Court in one of its decisions, delivered on 13 July 2018, stated the following:

a. "The court clarifies that to reveal the administrative offense is the specific activity. Identification of the offense means to determine and to identify the legal fact, which has the relevant legal effect. According to the Court's view, it is assumed that the police officer has the relevant professional skills, to adequately and objectively assess the specific fact and action. This, of course, does not exclude the possible inaccuracies and biased assessments [...} but unlike the explanations and testimonies from other witnesses, which only concern specific facts, the information provided by the police officers usually contains not only information about the fact, but also the conclusions and interpretations about them. The value of the testimony of the police officer must not only be assessed based on his ability to transfer the information objectively, but also based on his skill to provide the court with the professional assessment of the fact.”[16]

31. Besides an unquestioned privilege given to the testimonies of police officers, the national courts usually do not require any other evidence to establish the commission of an administrative offence, even if the testimony of the police officer, being the sole evidence in the case is challenged by the defendant. Usually, the court shifts the burden of proof on the defendant to quash the testimony of the police officer.

32. The decisions concerning article 173 of the CAO (non-compliance with a lawful order of a law-enforcement officer) demonstrate that, judges generally do not question the legitimacy of the order of law-enforcement officer and do not inquire about the circumstances leading to the detention of a person, although article 173 of the CAO provides that the person shall obey to the lawful order of the police. The national courts do not substantiate whether the order of a police officer was lawful or not, even if its legitimacy is challenged by the defendant.

33. The practice of adjudication of administrative cases by the national courts is also deficient due to improper distribution of burden of proof. Testimony of a police officer is always deemed reliable even if it is the only evidence in the case-file, while the testimony of the defendant always requires to be supported by the neutral evidence[17]. Because the testimony of the police officers involved in the case and the protocol about the commission of an administrative offence drawn up by the same officers are considered to be the credible and sufficient evidence, the burden of proof shifts and the defendant is required to prove his/her innocence.

V. Suggested methods to create the neutral evidence for sensitive cases

34. As discussed above, neutral evidence, such as video recordings, testimonies of third persons, etc. is usually lacking in the cases concerning the administrative offences.

35. Article 27 (use of self-operating photo (radar) and video devices) of the “Law of Georgia on Police” states the following:

a. To ensure public security, the police may, as provided for by the legislation of Georgia, place/install self-operating photo and video devices on their uniforms, on the roads, and along external perimeters of buildings, and use self-operating devices already installed and under the possession of other persons[18].

36. Similarly to the above-cited provision, it is a discretional power of a police officer to use the video camera in a particular case under the Ministerial Order.[19]

37. Because it is discretional to the police officers to use body video camera or not, usually they either do not make such recordings at all or the video footages are fragmental. Therefore, the video recordings included in the case file by police often do not reflect the sequence of events thoroughly, which makes them irrelevant.

38. The Public Defender of Georgia in its 2017 Parliamentary Report stated the following:

a. “[…] the shortcomings regarding the use of body cameras are noteworthy. Patrol police has the right, not the obligation, to carry out audio and video recording in accordance with a procedure prescribed by law. Besides, despite an express statutory obligation to record stop and searches by the police with either a body camera or a video camera, arrests are not recorded with this equipment. This issue is particularly problematic due to the nonexistence of neutral pieces of evidence in case-files. The right to a fair trial is violated by the practice of common courts holding individuals responsible without neutral pieces of evidence. This contradicts the case-law of the European Court of Human Rights and shifts the burden of proof to a citizen.“[20]

39. The Public Defender has been recommending that the usage of the body video cameras shall be obligatory for the police when arresting a person; this would secure the neutral evidence for the case and serve as a safeguard of false allegations against police.[21] However, the recommendation of Public Defender remains unimplemented to date.

VI. Conclusion and suggested general measures

40. In order to ensure the effective execution of the decisions originated from the forceful dispersal of a peaceful demonstration on June 15, 2009 and to avoid the similar violations in future, the following general measures shall be carried out by the Government of Georgia:

  • The CAO provisions shall be amended to prescribe the fair trial guarantees in the cases concerning administrative misdemeanor. In particular, the CAO shall provide the standard of proof to find a person guilty in commission of an administrative offence, especially, when the sanction provided is the deprivation of liberty; the law shall explicit to state that the burden of proof shall always lay with the law enforcement body.
  • Common courts shall review the cases of administrative misdemeanor thoroughly, inter alia, evaluating the lawfulness of the order of police and the possibility of collecting the neutral evidence; the court decisions shall not rely exclusively on the testimonies of police officers and the practice of presumption of credibility of the testimonies of police officers shall be replaced by the standard of proof requiring existence of information and evidence objectively establishing commission of an offence;
  • The Law on Police and the Ministerial Order shall be amended to envisage the obligation of the police officer to record the incident or the circumstances leading to drawing up a protocol of commission of an administrative offence (by using their body cameras) in order to obtain neutral evidence for the case.

[1] See, the case description, Tsintsabadze v. Georgia, available at http://hudoc.exec.coe.int/eng?i=004-5830 , last access 26/07/2019.

[2] See, Notes on the Agenda, the Committee of Ministers, CM/Notes/1273/H46-10, 1273th Meeting, 6-8 December 2016, Gharibashvili group v. Georgia, Application No. 11830/03, available at https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016806b72d9 , last access 26/07/2019.

[3] See, Notes on the Agenda, the Committee of Ministers, CM/Notes/1324/H46-6, 1324th Meeting, 18-20 September, 2018 (DH), H46-6 Tsintsabadze group v. Georgia (Application No. 35403/06), available at https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016808d0288 , last access 26/07/2019.

[4] See, Decision of the Committee of Ministers, H46-6 Tsintsabadze group v. Georgia (Application No. 35403/06), 1324th meeting, 18-20 September 2018 (DH), available at https://search.coe.int/cm/Pages/result_details.aspx?ObjectID=09000016808d5964 , last access 13/08/2019.

[5] See, EMC appeals the decisions on cases of 20 June detainees to the Court of Appeals, 23 June 2019, available at https://emc.org.ge/ka/products/emc-20-ivniss-dakavebulta-sakmeebs-saapelatsio-sasamartloshi-asachivrebs , last access 26/07/2019.

[6] “[…] 2. When supervising the execution of a judgment by the High Contracting Party concerned, pursuant to Article 46, paragraph 2, of the Convention, the Committee of Ministers shall examine: […] ii. general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations”.

[7] See, the Annual Report of the Public Defender of Georgia, the Situation on Human rights and Fundamental Freedoms in Georgia, p.74, 2017, available at http://www.ombudsman.ge/res/docs/2019062409381039906.pdf, last access 26/07/2019. See, also, the Special Rapporteur on the rights to freedom of peaceful assembly and association, Coalition for an Independent and Transparent Judiciary, May 2018, available at https://article42.ge/en/media/media/article/51870-letter-special-rapporteur-on-the-rights-to-freedom-of-peaceful-assembly-and-of-association , last access 26/07/2019.

[8] See, article 166 - Disorderly conduct – swearing in public places, harassment of citizens or similar actions that disrupt public order and peace of citizens - shall carry a fine of GEL 100 or, if the application of the measure seems insufficient after taking into account the circumstances of the case and the person of the offender, an administrative detention of up to 15 days may be imposed. The administrative offences code of Georgia, available at https://matsne.gov.ge/en/document/download/28216/341/en/pdf , last access 14/07/2019, last access 26/07/2019.

[9] See, article 173 – Non-compliance with a lawful order or demand of a law-enforcement officer, military service person, officer of the Special State Non-compliance with the lawful order or demand of a law-enforcement officer, military servant, officer of a Special State Protection Service orenforcement police officer or verbal abuse of and/or any other abusive act against such person while such person is in the line of duty (except as provided by the Criminal Code of Georgia), shall carry a fine from GEL 250 to 2 000 or an administrative penalty of up to 15 days. The administrative offences code of Georgia, available at https://matsne.gov.ge/en/document/download/28216/341/en/pdf , last access 14/07/2019.

[10] See, the Annual Report of Public Defender of Georgia, the Situation on Human Rights and Freedoms in Georgia, p.74, 2017, available at http://www.ombudsman.ge/res/docs/2019062409381039906.pdf , last access 26/07/2019.

[11] See, the Code of Administrative Offences of Georgia, available at https://matsne.gov.ge/en/document/download/28216/341/en/pdf last access 14/07/2019, last access 26/07/2019.

[12] Idem.

[13] See, Alternative Report on execution of judgments/decisions of the European Court of Human Rights, Article 42 of the Constitution, June 2019, pp. 25-27, available at https://article42.ge/media/1001447/2019/07/09/42f7933b926d7298fecdb5a7db5e6aed.pdf , last accessed on 13.08.2019.

[14] The letter from the Tbilisi City Court, N3-0111/2815533, 25/01/2019.

[15] Article 42 of the Constitution is a non-governmental, watchdog organization operating in the field of human rights since 1998. Article 42 provides free legal consultations and legal aid to the vulnerable groups, works towards the harmonization of state policy and national legislation with the international human rights standards, conducts civil monitoring of state actions, works on raising public awareness about human rights and legal mechanisms for their protection, facilitates empowerment of different target groups, etc. The objective of Article 42 of the Constitution is to contribute to strengthening the rule of law and respect for human rights, see more at www.article42.ge

[16] Decision of the Tbilisi City Court, dated13/07/2018.

[17] See, Alternative Report by Article 42, supra note 13, pp. 27-30; see also, Protests Considered to be an Offence, Report, Georgian Young Lawyers’ Association, 2017, pp. 4-5, available at https://gyla.ge/files/news/2016%20%E1%83%AC%E1%83%9A%E1%83%98%E1%83%A1%20%E1%83%92%E1%83%90%E1%83%9B%E1%83%9D%E1%83%AA%E1%83%94%E1%83%9B%E1%83%90/eng.pdf

[18] See, the Law of Georgia on Police, 2013, available at https://matsne.gov.ge/en/document/download/2047533/7/en/pdf, last access 26/07/2019.

[19] See, Article 14(1)(e), Order No. 1310 of the Minister of Internal Affairs of Georgia concerning the approval of the instruction on the procedures of the patrol police, dated 15 December 2005.

[20] See, the Annual Report of Public Defender of Georgia, supra note 10, p. 74.

[21] Idem.

See, also, the annual report of the Public Defender of Georgia, the situation on human rights and freedoms in Georgia, 2018, p. 103-104, available at http://www.ombudsman.ge/res/docs/2019042620571319466.pdf, last access 26/07/2019

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