Thursday, September 27, 2012

Georgia: Misuse of Administrative Detention Violates Rights

Source: Human Rights Watch
Authorities Should Secure Full Due Process Rights for Detainees

(Tbilisi) – Georgia’s use of administrative detention to lock up protesters and political activists violates the country’s international commitments to safeguard against arbitrary detention, Human Rights Watch said today. The government should immediately ensure all those deprived of liberty enjoy their full due process rights and receive a fair trial regardless of whether the charges against them are administrative or criminal.

In recent weeks, protests across the country have swelled in response to a prison abuse scandal, and Georgian media and political parties are reporting that police have arrested more than 28 people since September 21, 2012, on administrative, or misdemeanor, charges of disobeying police orders. Those arrested have been sentenced to up to 40 days’ imprisonment. They include activists for the Georgian Dream opposition coalition and at least six other people actively involved in the recent protest rallies in Tbilisi. The protests are taking place less than a week before the October 1 parliamentary elections.

“Anyone arrested for a misdemeanor offense is entitled to due process, and their basic rights in detention must be respected,” said Giorgi Gogia, senior Europe and Central Asia researcher at Human Rights Watch. “A misdemeanor charge may not lead to a permanent criminal record, but the punishment imposed qualifies as a criminal punishment.”

Georgia’s Code of Administrative Offences sets out prison sentences of up to 90 days for minor public order breaches, but does not provide for adequate due process rights, so that many facing administrative charges may end up in arbitrary detention. The Code does not require police to inform defendants promptly of their rights or to provide reasons for their detention. Several lawyers representing recent detainees told Human Rights Watch that the trials were perfunctory, with judges not allowing defense council to examine witnesses or introduce evidence.

Courts have consistently found all detainees guilty of violating the administrative code and sentenced almost all of them to imprisonment ranging from 10 to 40 days. One activist was released on September 25 after he had been fined GEL400 (US$242).

At least seven individuals were detained in four separate incidents in Tbilisi on September 21, 22, and 25 under similar circumstances. The Ministry of Interior stated on its website that all seven defendants disobeyed police orders and insulted them.

A lawyer for Davit Patsatsia, detained on September 21 and sentenced to 40 days administrative imprisonment, told Human Rights Watch that he was not allowed to provide an effective defense during the Tbilisi City Court hearing. The judge did not allow him and his client to question the policemen who wrote their arrest report; declined a motion to hear a defense witness who was present during the arrest, claiming he would be biased; and rejected a motion to introduce video evidence from a CCTV camera installed at the scene of the incident.

Dachi Tsaguria, 30, one of the organizers of student protests in Tbilisi, was detained on September 22 and sentenced to 10 days’ administrative imprisonment for disobeying a police order and insulting a policeman. Bekar Aladoshvili, another activist, was detained together with Tsaguria and sentenced to 10 days at the same hearing. Their lawyer told Human Rights Watch that the judge granted only one of 10 defense motions – to hear police testimony – and even then did not allow the defense to ask any questions. He and his clients had only 10 minutes to familiarize themselves with the case file and prepare their defense, which he claims was insufficient. Furthermore, Tsaguria alleged that he had been beaten during the arrest and again in police custody and he bore visible bruises during the trial. However, the judge did not inquire about the nature and circumstances of the injuries or refer the case to a prosecutor for investigation. The Ombudsman’s office representatives, who visited Tsaguria a day after his detention, confirmed that he indeed had bruises and that he claimed to have sustained them as a result of police ill-treatment.

“Anyone facing detention has the right to a real trial with a real defense, it should never be a rubber stamp,” Gogia said. “Authorities should swiftly and effectively investigate any allegations of ill-treatment in police custody.”

In a September 23 statement the Ministry of Interior alleged that Tsaguria physically and verbally assaulted patrol officers and resisted arrest, and as a result he “hurt his knee and has several scratches and redness in the armpit area of the right hand [sic].” It is not clear from the statement whether there was a thorough investigation into Tsaguria’s complaint of ill-treatment.

Police also detained activists in the towns of Rustavi, Mestia, Kaspi, Gori, Khashuri, Kareli, Sagarejo, and Kutaisi, and local courts convicted almost all of them of disobeying police orders in violation of the code of administrative offenses. The political opposition and some civil society groups said the arrests were intended to intimidate opposition supporters in the run-up to the parliamentary elections.

In a September 26 statement the Ministry of Interior denied that any of the arrests was politically motivated and expressed regret about an “upsurge in cases of violent behavior, most of them involving individuals affiliated with political parties.” It further stated that in the vast majority of cases police refrained from detaining anyone, but “in incidents where the physical safety of individuals or authorities is threatened,” police had to respond in order to avoid further escalation or more violence.

“Police do have a responsibility to maintain public order and can arrest anyone caught committing an offense, however there also need to be clear safeguards against arbitrary detention,” Gogia said. “The current legal framework does not provide for them and the courts are not offering protection, so the government needs to take urgent steps to address the gaps.”
Georgia’s justice system differentiates between criminal offenses, which are felonies, and administrative offenses, which are misdemeanors. Separate legislative acts define the offenses, set the sanctions, and govern the procedures for their application. Georgia’s Code of Administrative Offenses, adopted in 1984, governs misdemeanor offenses, which are minor public order offenses that do not accrue a criminal record. Penalties for administrative offenses range from a fine to imprisonment of up to 90 days.

A defendant in an administrative case has some due process rights, but they are weaker, or vaguely worded, compared to similar safeguards under the criminal procedures code. It does not require police to inform defendants of their rights promptly or to provide reasons for their detention. Detainees often are not allowed to contact their families and lawyers have difficulty finding detainees in custody. Trials are also often perfunctory. Detainees often serve their sentences in facilities that were not intended for stays longer than 72 hours and where conditions do not meet international standard.

In 2011 the government started to work on a new code of administrative offenses and also sought Council of Europe expertise on two drafts of the law. Although significant safeguards against arbitrary deprivation of liberty were introduced in the second draft, the parliament failed to review and adopt the law before the end of its mandate.

In January 2012, Human Rights Watch issued a report, “
Administrative Error: Georgia’s Flawed System of Administrative Detention,” documenting how the current code lacks full due process and fair trial rights for those accused of offenses under the code.