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Human rights defenders evaluate the new rule of witness interrogation


Natia Gogolashvili

Human Rights Center finalized working on the research – New Rule of Witness Interrogation. The researchers assessed legal acts and statistical data through the methods of descriptive and systemic analysis; this enabled the collection of information regarding the legal regulations of new rule of witness interrogation. Also, lawyer-monitors of Human Rights Center interviewed 50 practicing criminal law lawyers using the written questionnaires. The research revealed negative and positive sides of the new rule, also it identified the problems in the investigative bodies and in the court during the interrogation/questioning of the witness. 

Human Rights Center presented the findings of the research into the new rule of witness interrogation on October 3 in the hotel Tbilisi Marriott. The project “Researching New Rule of Witness Interrogation in Georgia” was implemented by Human Rights Center with financial support of the Open Society Georgia Foundation.

In accordance to the February 20, 2016 amendments into the Criminal Procedure Code of Georgia, a person summoned to the investigative body for questioning has right to refuse to be questioned and request to give testimony in the court in front of the magistrate judge (Article 114 of the Criminal Procedure Code of Georgia). 

“This is the reform, which commenced in Georgia several years ago. Two years ago respective amendments were introduced into the law, which referred to the questioning of witnesses into the criminal case. We wanted this process be similar to the process in the western countries. However, some changes were done and the articles, which are not coherent with the human rights standards, were added to the law,” said Giorgi Burjanadze, human rights program manager at the Open Society Georgia Foundation. 
The author of the research, head of the legal aid service at HRC Tamar Avaliani said the research revealed several problematic trends in the legislative amendments. Namely: Granting the right to request interrogation of witness before the Magistrate Judge to only the prosecution side; criminal liability for the substantially contradictory testimonies; difficulty of substantiation in the cases when the witness is question through substantial violation of the law. 

The authors assess that several shortcomings were observed with regard to the new rule of witness interrogation:
Granting the right to request interrogation of witness before the Magistrate Judge to only the prosecution side significantly violates the principles of adversarial hearing and equality of arms, as with the new regulation the defense side does not attend the questioning of the witness in front of the Magistrate Judge that means the side cannot evaluate trustworthy of the witness.
The new rule of witness interrogation substantially neglects the necessity of voluntary cooperation with the witnesses and their notification. In similar conditions, voluntary procedure of interrogation is ineffective and nominal that raises questions about the need of similar investigative operations at all.
New rule on witness interrogation is incompatible with the principle of immediacy which implies substantial review of all evidence and verifying their reliability in front of the decision-making judge.
Only few of the interviewed 50 practicing lawyers had experience of using the new rule of witness interrogation. Only 30 witnesses were interrogated in front of the Magistrate Judge since February 20, 2016 to present. The research authors asses that the existing statistic data underline the fact that investigative body does not effectively inform the citizens about voluntary manner of the interrogation.
HRC lawyer monitor Giorgi Kakubava said the beneficiaries of the lawyers working in the criminal law are mostly summoned to the investigative body with regard to economic crimes, which are punishable under Article 177-187 of the Criminal Code of Georgia, also with regard to the crimes punishable under the Article 126 of the CCG, like battery or other violence.
“All lawyers noted that when witness goes to the investigative body to give a testimony without the lawyer often the investigators do not clarify their rights and responsibilities to the witnesses. The witnesses do not have information about their right to refuse to be questioned and request interrogation in front of the Magistrate Judge in the court. At the same time, we observed the tendency when the witness, who refuses to be questioned by the investigator in the investigative body and requests interrogation in front of the Magistrate Judge, the investigator/prosecutor express discontent about his/her request and notes the witness complicates the situation. The witness is told that if he/she is interrogated in front of the Magistrate Judge in the court he will assume more responsibility. Similar statements negatively influence the opinion of the witness and he/she refuses to be interrogated in the court,” Giorgi Kakubava said.
Lawyer Giorgi Mdinaradze said he never had any case in his practice when the witness was interrogated in accordance to the new rule. As the lawyer states, the society is not informed about their rights.
“As if nothing has changed in practice. Investigator does not clarify his/her rights to the witness and in reality neither the witness queries about his/her rights. The purpose of the new rule was to prevent violence against the witness from the side of police officer. The reality is different. The new rule has not yet become preventive measure,” Giorgi Mdinaradze said.
HRC lawyer-monitor Giorgi Kakubava said the views of part of lawyers are significant who often do not demonstrate initiative to motion interrogation of their clients in front of the magistrate judge in the court. “The lawyers said they mostly prefer that their clients were questioned in the investigative body and not in the court because they have more opportunity to assist the witness to give correct testimony in the investigative body.”

The authors of the research state that regardless the miscarriages in the new rule, the practicing lawyers unanimously state that the new rule of witness interrogation is a step forward in the Georgian criminal law. 

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