Recommendation to the Minister of Corrections, Probation and Legal Assistance13 06 2012
In accordance with Paragraph C of Article 21 of the Georgian Organic Law on the Public Defender of Georgia, the Public Defender of Georgia, George Tugushi, has addressed the Minister of Corrections, Probation and Legal Assistance of Georgia, Khatuna Kalmakhelidze, with a recommendation to take appropriate measures that will ensure the possibility of full exercise of the right to defense by prisoners who are placed in Establishment No. 7 of the Department of Prisons.
At the time of unplanned monitoring of Establishment No. 7, it became known to employees of the Public Defender’s Department of Prevention and Monitoring that lawyers were restricted from entering the institution.
The administration of the penal institution relates this fact to damage that the building sustained as a result of the torrential rains and flood on May 12-13 and to the introduction of emergency conditions in the institution. Emergency conditions shall be introduced in a penal institution with issuing the relevant act, which, as a rule, requires the minister’s permission. However, as the administration states, they, unfortunately, do not have this act.
The Law of Georgia, “The Code of Imprisonment”, relates introduction of emergency conditions to restriction of certain rights of prisoners (for example, the right to have a walk). At the same time, the law does not contain any provisions about restricting the right of prisoners to meet with their lawyers in similar cases.
In accordance with Article 42 of the Constitution of Georgia, “The right to defense shall be guaranteed.” The said provision is not of a declarative character only, and it imposes a positive obligation on the state to create relevant mechanisms so that persons can ensure the exercise of their right to defense in a timely manner and fully, which unconditionally includes the right to meet with their lawyers.
The Constitution of Georgia does not envisage restriction of the aforementioned right even in times of war and state of emergency.
Accordingly, the Public Defender considers it impermissible to restrict the aforementioned right in a penal institution in the case of declaring emergency conditions.
It should be noted that the infrastructural problems that were created as a result of the rain have already been solved as much as possible, which makes the restriction of the aforementioned right particularly incomprehensible.
Proceeding from the aforementioned, the Public Defender considers that the restrictions existing in establishment No. 7 are illegal and violate the exercise of the right to defense which is guaranteed by the Constitution.