Proposal to the Parliament of Georgia regarding a draft law on introduction of amendments into “the Criminal Procedure Code”
The Public Defender of Georgia addressed the Parliament of Georgia with a proposal regarding a draft law of Georgia on introduction of amendments into “Criminal Procedure Code of Georgia”. The Public Defender gives a negative assessment to a suggested change into the article 120 of the Criminal Procedure Code of Georgia, according to which in case of emergency situation, conduction of investigation actions such as search and seizure will no longer need a special order from an investigator.
The Public Defender of Georgia does not share an opinion expressed in the draft law that the suggested amendment only serves elimination of inaccuracy. As analysis of numerous criminal cases conducted by the Public Defender’s Office of Georgia shows that arguments presented to confirm urgent necessity of conduction of investigative actions are often formal. Many times the latter was the subject to criticism of the Public Defender and non-governmental organizations. We believe that elimination of obligation of a written order will even further formalize the task of presenting arguments of urgent necessity and will not promote adoption of an argument-based decision in the process of the criminal justice which is one of the most important standards defined by the European Court of Human Rights.
We should note that legitimacy of search or seizure conducted in case of urgent necessity is confirmed by the court. Materials of the criminal case (or their copies) that prove urgent necessity of conduction of investigation actions should be presented to the court. As a result of discussion of the appeal the court adopts a decision recognizing conduction investigative actions as legitimate/illegitimate. In case of interference in a sphere protected by the right safeguarded by article 20 of the Constitution of Georgia (inviolability of private life) during urgent necessity, it is important to have a relevant written document that will include grounds, reason and necessity of conduction of search or seizure without a court decision. It is necessary that apart from the court possibility to assess and appeal against the above is ensured for an individual himself/herself towards whom these actions are undertaken if he/she believes that there were no urgent necessity for conduction of search. Lack of written order can hinder ability of the party to exercise the said right.
Another circumstance should be also taken into account that despite existence of urgent necessity drawing up an order by an investigator does not take a long time and will not cause delay in conduction of relevant investigative actions.
The Public Defender expresses readiness to take active part in additional discussion on the above regulations. We hope that the proposal of the Public Defender will be taken into consideration and the presented draft law will be brought in compliance with international human rights standards.