Investigation should be initiated on the basis of the information revealed by Ivane Merabishvili - საერთაშორისო გამჭვირვალობა - საქართველო

Investigation should be initiated on the basis of the information revealed by Ivane Merabishvili

27 January, 2014

On December 16, Ivane Merabishvili made a statement, according to which, on December 14, he was transferred outside the penitentiary building in a vehicle with his head covered and taken to an unidentified location.

Ivane Merabishvili declared that he was transported to an unfamiliar building, possibly to the Penitentiary Department, were he met the General Prosecutor of Georgia – Otar Partskhaladze and another person, whom he does not recognize. According to Ivane Merabishvili, the General Prosecutor asked him to cooperate regarding the Zurab Zvania criminal case and also to provide the bank account details of Mikheil Saakashvili. In favor of these, the General Prosecutor offered Merabishvili assistance in leaving the territory of Georgia, however, in case Merabishvili refused the cooperation, he was threatened with deteriorating prison conditions and arrest of his friends.

The statement of Ivane Merabishvili was followed with fierce discussions on whether criminal investigation should be opened on the basis of this information. The majority of the governmental representatives argued that the statement of Ivane Merabishvili is unsubstantiated and far from realistic, therefore, no investigation should be instituted. Only few members of the Government supported initiation of the investigation. It was also argued that the decision of investigation rests under the discretion of the General Prosecutor’s Office of Georgia.

We would like to once more substantiate our position regarding the above-mention issue:

1. According to Article 100 of the Georgian Criminal Procedural Code, “Prosecutor and investigation are obliged to start investigation upon receiving information regarding a crime”. The same Code, Article 101, further stipulates, “The basis for initiation of investigation is information sent to the investigator or prosecutor, disclosed during criminal procedures or disseminated in media.”

It should be emphasized that in accordance with the Georgian legislation, in the present case the Prosecutor’s Office does not possess a discretionary right regarding initiation of the investigation. Article 100 of the Criminal Procedural Code clearly imposes an obligation not a discretionary right. The decision to initiate investigation does not depend on who believes in validity of the provided information. It is unfortunate, that we still have to provide such simple explanations.

In addition, it is not required for Ivane Merabishvili or any other person to address the investigatory body with an official statement. As it is stipulated in Article 101 of the Criminal Procedural Code of Georgia, such information could lead to investigation even if disseminated only by media sources.

2. When high officials of the Georgian Government discuss whether they should initiate investigation or not, it is similar to discussing whether the Prosecutor’s Office should act in accordance with the legal obligations or not. We consider that discussion of such matters is inappropriate. Statements by the Georgian officials that vividly go against the legal standards are unacceptable and dangerous.

3. We would like to address the statement of the Minister of Corrections and Legal Assistance of Georgia, according to whom, the footage of the video cameras could not be disclosed, unless the Prosecutor’s Office starts investigation.

The Georgian legislation requires otherwise. According to Paragraph 8 of the July 7, 2013 Decree N34 of the Minister of Justice of Georgia on “Defining Investigatory and Territorial Investigatory Subordination of Criminal Cases”, “Investigators from investigatory division of the Ministry of Corrections and Legal Assistance of Georgia investigate crimes committed within the territory of an established organs under the Penitentiary Department.”

The statement of Ivane Merabishvili, if correct, does not suggest possible criminal responsibility of the General Prosecutor only. At large, it is impossible for the prisoner to leave his cells and be transported to a different territory without help from staff of the Penitentiary Department. Therefore, implied suggestion by Ivane Merabishvili regarding involvement of the Penitentiary Department in his transfer, which could have happened within the territory of the organs of the same Department, entails that investigation should be initiated by the investigators of “investigatory subdivision of the Ministry” and not by the Prosecutor’s Office. As noted, this obligation is imposed by the above-mentioned Decree of the Ministry of Justice, which is compulsory for the Ministry of Corrections and Legal Assistance of Georgia.

It is unacceptable for the Ministry of Corrections and Legal Assistance, not to be interested in revealing whether its staff members committed a crime or not.

Therefore, the Ministry of Corrections and Legal Assistance not only has the right to start the investigation, rather is obliged to do so, notwithstanding the fact, whether Prosecutor’s Office initiates the investigation or not. It should also be noted, that in case the Ministry sincerely desires to see the video footage, the prerequisite of which it considers to be initiation of the investigation, the Ministry could do so, if it acts in accordance with the law and initiates the investigation itself.

One might also find elements of crime in the decisions the Persecutor’s Office and the Ministry of Corrections and Legal Assistance officials who refuse to carry out their obligations and initiate investigation (for example, neglect of official duty, Article 342 of the Criminal Code of Georgia).

We consider, that truth-finding in the present case should be first and foremost in the interests of the Georgian Government. If Ivane Merabishvili is dishonest, then it will not be hard to establish the truth. This should be done by an effective and objective investigation. On the other hand, refusing or procrastinating to initiate the investigation, including due to the reason of non-disclosure of the video footage or any similar explanations, only validates the opinion, that the statement made by Ivane Merabishvili is true. 

Consequently, we urge the Prosecutor’s Office and the Ministry of Corrections and Legal Assistance to immediately proceed with the investigation. In addition, we urge all of the officials to protect the requirements of the Georgian legislation and do not make any contrary interpretations of the law.

Georgian Young Lawyers Association

Article 42 of the Constitution

International Society for Fair Elections and Democracy

Transparency International Georgia

Human Rights Education and Monitoring Center (EMC)

Lawyers for Independent Profession

Institute for Development of Freedom of Information (IDFI)

Public Movement “Multinational Georgia”

Civil Integration Fund

Georgian Bar Association

Non-Governmental Organization ”CIDA”

Centre for Protection of Constitutional Rights