Coalition views on the proposed amendments to witness interrogation rules

8/20/2019 Coalition views on the proposed amendments to witness interrogation rules

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Coalition Members:

Article 42 of theConstitutionMultinational GeorgiaGeorgia Small andMedium EnterpriseAssociationCivil IntegrationFoundationGeorgian a!"ers forIndependent #rofession

iberalCenter for #rotection of Constitutional $ightsInternational Societ"for Fair Elections and

%emocrac"&he 'nion (2) Centur"*Georgian +oung

a!"er,s Association-uman $ight Center&ransparenc"International'nion of Mes.hetian%emocrats

ibert" InstituteGeorgian /arAssociation

Civil %evelopmentAgenc"'nited 0ationsAssociation of Georgia&he European a!Students, AssociationCivil Societ" Institute1pen Societ" GeorgiaFoundationInstitute of %emocrac"American Chamber ofCommerceEurasia #artnershipFoundationInstitute of%evelopment ofFreedom of Information-uman $ights #riorit"&bilisi Media Club-uman $ightsEducation andMonitoring CentreFoundation for theSupport of egalEducation

Institute of CivilEngagementAssociation of la! rmsof Georgia

Coalition views on the proposed amendments to witnessinterrogation rules

On October 31, 2015 the Ministry of Justice presented the updated draftlegislation on witness interrogation at the criminal law reform interagencycouncil. he !oalition belie"es that the updated "ersion contains no"ationsthat considerably worsen the legal standing of the defense party and areo"erall threatening to the principles of ad"ersarial proceedings and e#ualityof arms. $nfortunately the problematic pro"isions on which the ci"il societyhas e%pressed sharply negati"e opinion at earlier stages of wor&ing on the

draft, are retained unchanged .1

he proposed "ision does not fully address the witness interrogation problems and at the same time introduces substantially incompatible elementsto the current procedural system, which will in the future create numerousimportant legal and practical problems.

't must also be noted, that the Minister of Justice once again affirmed clear political will at the coordination council meeting, that the e%istingformulation in the !riminal (rocedure !ode, which has been postponed for years, will not be enacted. he go"ernment representati"es) rhetoric that

forced the audience with a choice between the problematic rules adopted in1**+ and acting today, or the deficient draft proposed by the Ministry of Justice, is especially distressing for the !oalition.

he !oalition has e%pressed its position multiple times, that it supportsenactment of the witness interrogation model that has been repeatedly

postponed. $nfortunately, the go"ernment has at no point presentedcon"incing e"idence that enactment of this model would result in the collapseof the ustice system. -ence, the !oalition belie"es that the o"ernment)srigid and unyielding position is completely un ustified.

Contents of the Draft'n case of the witness)s refusal to be "oluntarily inter"iewed, the draften"isages the possibility of forced interrogation in the presence of amagistrate udge. his possibility is afforded only to the prosecution and for this it must show the magistrate udge that the person possesses importantinformation on the circumstances of the case. he udge only satisfies the

prosecution re#uest only when the rele"ant standard / sufficient grounds for presuming that the person in #uestion does indeed possess rele"antinformation.

he draft only clarifies the abo"e mentioned standard of proof and it is metwhen there is a fact or information that would be sufficient for an objective

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person to conclude probable possession of information needed for ascertaining circumstances of a criminal case rticle 3.10 1 . his definitionshows that the new standard is set lower than the standard of reasonabledoubt set for in"estigati"e acti"ities and is met e"en when there is only onespecific fact or information and not a set of facts and information.

ccording to the abo"e mentioned procedure the defense party does notattend the witness interrogation in the presence of the magistrate udge,howe"er s he may ma&e a motion at a pretrial hearing to ma&e the witnesstestimony gi"en before the magistrate udge inadmissible, if s he considersthat the process was conducted with substantial "iolations of the law rticle114.13 . t the same time, the legislation considers that if the witness whohas been interrogated in front of a magistrate udge cannot be present at themain trial in court, his her statement may be read aloud in the court, howe"er

basing a guilty "erdict solely on this e"idence is prohibited.

The Need for New Ruleshe proposed draft is deficient in a number of ways and will cause significant

problems in ustice system, in case of adoption. -owe"er, before starting thediscussion on its contents and problems, it must be noted that its authors ha"eto this time failed to substantiate the need for new regulation. pecifically,they ha"e not clarified why the edition of the !riminal (rocedure !ode,which is to enter into force on January 1, 2016 is dangerous to effecti"enessof the law enforcement and why would it cause a collapse of the usticesystem.

't is worth noting that the e%isting norms of the procedural code allow for the prosecution to inter"iew the witness in front of the magistrate udge if they pro"e that otherwise it will be impossible to proceed with the in"estigationand establishing the truth on the case will be in doubt ticle114.1 para ! of the !riminal (rocedural !ode . he e%isting pro"ision also allows for notha"ing the other side present during the witness inter"iewing at thein"estigati"e stage, if this would endanger the witness) safety or the interestsof ustice in general ticle114.4 of the !riminal (rocedural !ode .

hese two mechanisms ensure protection of the interests of in"estigation and protect the ustice system from collapse, since if there is no other e"idence inthe case or their procurement would re#uire unreasonable effort, the lawenforcement bodies may inter"iew a witness in front of a udge including,without the presence of the other side . -ence it is unclear what specificflaws of these mechanisms are and why is it necessary to introducesystemically new regulation which substantially limits the defense party)srights to be present at inter"iewing and then casting doubt on "alidity of thetestimony.

Ignoring the role of Voluntary Interviewinghe proposed draft creates real possibilities for turning the compulsory

interrogation at the in"estigati"e stage into a general rule. he draft

effecti"ely ignores "oluntary cooperation with the witnesses and the need for their consent. he "oluntary inter"iewing procedure becomes ineffecti"e and



nominal, which casts doubts on the need for such an in"estigati"e acti"ity ingeneral.

7etaining the compulsory nature of interrogation will hinder establishment of cooperation and trust based relations between citi8ens and law enforcement

bodies, since in the cases of refusal to gi"e information "oluntary, the forciblemechanisms can easily be applied. !onse#uently, the law enforcement bodieswill not ha"e a professional interests to wor& on impro"ing their s&ills,communication with the public and raising the trust towards them.

Violation of Adversarial Principlesranting the right to witness interrogation in front of the udge to the

prosecution side only significantly "iolates the principles of ad"ersarialityand party e#uality. he ad"ersarial proceeding does not mean party e#ualityonly during the substantial hearings at the court9 but rather e#uipping the

parties with e#ual legal le"ers during the entire process of criminal

proceedings. !learly this principle does not mean that prosecution anddefense parties must ha"e identical legal instruments either. -owe"er, their "arious pri"ileges must be o"erall balanced throughout the process.

dditionally, with the proposed draft the defense party may not be present atthe interrogation in front of the magistrate udge, which means, that the partycannot chec& witness reliability. :hile the defense may cross;interrogate awitness during the substanti"e hearing and thus compensate the lossesincurred by e%clusion from the witness interrogation process during thein"estigati"e stage, howe"er this too has illusory and formal character. hisdoes not effecti"ely ensure chec&ing witness reliability, which damages partye#uality and ad"ersarial nature of proceedings.

s already pointed out, the legislation allows for the public reading of thewitness statement gi"en during the interrogation in front of the magistrate

udge, in case of his her absence at the main trail rticle 243.1 . -ence, thecourt may reach a "erdict based on a testimony of a witness, who has not

been cross;e%amined by the defense. he draft specifies, that the udge maynot base the guilty "erdict solely on this e"idence, howe"er, when other

pieces of e"idence are present, the udge may use this statement for substantiating his decision.

<"en if the defense has a chance to cross;e%amine the witness during themain trial, this will not be an effecti"e mechanism for #uestioning thewitness) reliability, because gi"ing a substantially contradictory or falsetestimony by a witness is a criminal offense. !onse#uently, the witness whohas been interrogated in front of the magistrate udge &nows beforehand thathe she will face criminal charges if he she will gi"e differing informationduring the cross e%amination conducted by the defense at the main trial

rticle 113.= . 'n this situation cross e%amination effecti"ely losesrele"ance, since the witness is tied by the testimony gi"en during thein"estigati"e stage.

'n this conte%t it is also worth noting that the proposed draft also e%pands thecircumstances in which a witness)s testimony gi"en during the in"estigation



stage can be read aloud at the main trial rticle 243.2 . ccording to thedraft, a party may re#uest the main trial udge to read out the witnesstestimony gi"en during the in"estigation stage e"en when the witness is

present and is to be interrogated at the main trial. t a first glance, the purpose here is to create an effecti"e mechanism for impeaching the witness,

and in the circumstances of the 200* witness interrogation rules, this wouldha"e indeed been an effecti"e mechanism for witness impeachment.-owe"er, in the current circumstances this legislati"e proposal further limitsthe defense side in conducting effecti"e cross;e%amination and obtaininformation from the witness that differs from the one pro"ided at thein"estigati"e stage.

Incompatibility with the principle of immediacyhe proposed amendments are incompatible with the e%isting eorgian

procedural code and contradict se"eral procedural principles. <"en in case of resol"ing "arious issues that ha"e been identified among them, abolishing

criminal liability for gi"ing contradictory and false testimony by a witness, or abolishing the possibility for reading out the witness testimony during themain trial , the proposal would still remain incompatible with the currentsystem.

he current procedural legislation)s emphasis on the principle of immediacyis no less than its emphasis on the principles of ad"ersariality of proceedingsand party e#uality, which means substantial re"iew of all e"idence andchec&ing their reliability in front of the decision;ma&ing udge. ny di"ersionfrom this principle should be an e%ception and must be tied to e%tremecircumstances and not the ordinary process en"isaged by the proposed draft / the witness) refusal to "oluntarily gi"e out information. 'n this regard it iscritically important to hold witness interrogation in front of the udge, whoma&es the final decision on the case. 'n any other case, the witness will betied by the pre"ious testimony, which will also be in conflict with the

principle of immediacy and will negati"ely affect the #uality of ustice.

>ased on the abo"e argumentation, the !oalition considers it impossible toimpro"e the proposed draft in a way that would not result in diminishingad"ersarial nature of the proceedings, party e#uality and immediacy andwould not create significant practical or theoretical problems. heseob ecti"es can only be met through fundamental re"iew of the draft proposal,which the authors of the draft are precluding outright. -ence, the !oalitiondoes not see a possibility for cooperation for impro"ing the draft. 'f the(arliament supports the proposed draft, the !oalition plans to address the!onstitutional !ourt and re#uest it to consider !onstitutionality of the norms.

Coalition views on the proposed amendments to witness interrogation rules

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