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Venice Commission Says Separation of Obligations of Prosecution and Investigators is Acceptable but Offers Recommendations

By Gvantsa Gabekhadze
Thursday, March 21
The Venice Commission of the Council of Europe says that amendments offered by the Georgian Interior Ministry to the Criminal Procedure Code of Georgia regarding the separation of obligations between the prosecution and investigators are acceptable. However, there are steps which should be completed for the successful implementation of the reform.

The amendments read that an investigator will be responsible for the beginning of the investigation and its independent conduct, while prosecutors will be obliged for legal prosecution, managing the case to the court.

“The establishment of an independent investigation is a legitimate objective, and is not contrary to the international standards, which leave the Georgian legislator a considerable margin of appreciation in those matters,” the Venice Commission says.

The Venice Commission, however, recommends that:

The authorities should introduce transitional arrangements enabling them to see how the new division of responsibilities between the police and the prosecutor’s office works out in practice.

The prosecutor should be able to monitor the work of the investigator, through an electronic information system or otherwise. At the early stages of the reform, the prosecutor should be able to keep closer supervision in respect of certain categories of most difficult/important cases and should be able, at least, to overrule the decision of the investigator not to proceed with the criminal investigation in such cases.

Instructions by the prosecutor to the investigative authorities should in principle be in writing (both binding orders and “recommendations”); decisions of the prosecutor overriding decisions of the investigator should contain reasoning;

The future bill should explicitly provide the duty of the investigator to collect all evidence (incriminating as well as exonerating) and provide that the prosecutor should not rely on illegally obtained evidence;

A multi-annual plan should be adopted and implemented to accompany the legislative reform; this plan should provide for adequate legal training of the investigators, strengthening of internal controls mechanisms within the relevant ministries, etc., and should be supported by an adequate allocation of resources.

The bill will be presented to parliament shortly, Interior Ministry says.