International organizations offered the Government and the Parliament of Georgia to develop a special model for independent investigative mechanism. On February 25, presentation of the draft law was held at Hotel Holiday Inn, which was attended by human rights defenders, international donors and non-governmental organizations, political parties, representatives of the parliament and government officials. International expert Manfred Nowak was specially invited to present his opinion on the independent mechanism. His recommendations are considered in the draft law.
Independent investigative mechanism is a necessary condition against torture and inhumane practices. This recommendation was also considered in the report of the Open Society Georgia Foundation, which was published in November and revealed the systematic character of inhuman treatment.
“After completing the research, one of the recommendations was to establish the independent investigative mechanism, as the lack of investigation was a major problem due to which torture was systematically practiced and widespread. A completely independent structure will be established through the mechanism proposed by us, which should not be controlled by any ministry or prosecutor’s office. It might be a commissioner elected by the Parliament for a period of 7 years. In addition, it is important that this structure should have the power/be authorized to launch and carry out investigation and criminal prosecution. I think that those, who are opposed to the establishment of independent mechanism, support torture.” – said Nika Jeiranashvili, Human Rights Program Manager at Open Society Georgia Foundation.
Experts and representatives of various organizations estimate that the main subject of discussion may become the provision of independent investigative mechanism with the power to launch criminal prosecution. “The most important issue on which we will have to debate and stir up a discussion will be the granting independent investigative mechanism authority to investigate and launch criminal prosecution.” – said Besarion Bokhashvili, representative of the Office of the United Nations High Commissioner for Human Rights.
Representative of Open Society Georgia Foundation Giorgi Burjanadze spoke about the Draft Law: “We started thinking about the model through analysis of the international practice. We were interested in how independent structures operate in other countries. We examined some different types of models, and we believe that in case of Georgia, the most effective mechanism will be a completely independent structure, which will not be controlled by the executive power and together with investigation, will be authorized to carry out criminal prosecution.”
Several important issues should be considered in the process of developing an independent mechanism – jurisdiction, i.e. circle of individuals who will be investigated, election of commissioner and accountability. It will be of crucial importance to protect a proper balance between accountability and independence.
Two types of jurisdictions are proposed in the draft law: Exclusive jurisdiction, which refers to the powers of the Independent Investigative Mechanism to start and carry out an investigation and prosecution in case of illegal actions, resulted in manslaughter, grave, less grave or minor damage to health, beating, violence, degrading treatment, violation of sexual freedom and security of the persons under effective state control, or an unlawful and offensive action was committed by a representative of law enforcement bodies notwithstanding the fact whether he/she was performing his/her official duties and the action resulted in manslaughter, grave, less grave or minor damage to health, violation of sexual freedom and security.
The second case, when the Independent Investigative Mechanism shall have priority jurisdiction on any crime is when there is a reasonable assumption that a conflict of interests might rise, due to which investigation cannot be conducted objectively by state investigation agencies.
Giorgi Burjanadze spoke in detail about the method of electing the commissioner. According the draft law, commissioner should be elected
- By Legislative Censes – experience in the fields of human rights should be considered. A person cannot be elected as the Commissioner if he/she has worked as a prosecutor or an investigator for the last 3 years in order to ensure his/her impartiality;
- Ad hoc Committee, composed of representatives of different sectors, should be established;
- The candidate elected by the Committee to be presented to the Chairman of the Parliament;
- The candidate should be nominated by the Chairman of the Parliament and the Parliament should elect the candidate;
- The Commissioner of the Independent Investigative Mechanism should be appointed for a seven-year term.
Authors of the draft law also discussed the issues related to the mechanisms of accountability. According to the draft law, the Commissioner should submit the report to the Parliament twice a year and at the same time should ensure proactive publication of information.
The presentation of the draft law was attended by the Chair of the Human Rights Committee at the Parliament Eka Beselia, who welcomed the idea of establishing a mechanism, however, admitted that the law needs to be even more discussed and elaborated.
“Today, we have gathered around a very interesting idea. Yesterday I read the contents of the project. This idea is not new for us. This is considered by the National Strategy on Human Rights. I am willing to discuss the draft law in details.” – said Eka Beselia.
Former public defender and representative of the Georgian Democracy Initiative Giorgi Tugushi admitted that establishment of the Independent Investigative Mechanism was also envisaged in 2010 Report of the European Committee for the Prevention of Torture. “We all agree that such a mechanism should be established. This recommendation has been provided in 2010 Report of the European Committee for the Prevention of Torture.” – He said.
Key presentations were made by Alessandro Savaris from the Council of Europe Office and Eva Pastrana – EU delegation to Georgia. After the presentation of the draft law, discussion was held.
The event was organized by the Open Society Georgia Foundation, the Office of the United Nations High Commissioner for Human Rights and the Council of Europe.
Draft law and the presentation in English and Georgian can be found here.