Public Defender Responds to Proposed Rules of Questioning of Witnesses

The Public Defender is responding to the amendments to be made to the rules for questioning of witnesses at the stage of investigationand negatively evaluates the Government's initiative.

According to the proposed amendments, if a witness refuses to be questioned when there are facts and/or information that he/she has necessary information for determining circumstances of a criminal case, he/she may be questioned before a magistrate judge. The Public Defender considers that this represents broad basis for questioning of witnesses before magistrate judges, which will lead to a situation when overwhelming majority of witnesses will be questioned in this manner and the principle of voluntary questioning of witnesses will become only formal. This exceptional rule will acquire large-scale nature and practically the rule of forced questioning of witnesses will move from investigative bodies to courts. The Public Defender considers that relevant standards should be raised and questioning of witnesses before magistrate judges should be carried out only if there is a reasonable cause (facts and information) to believe that the witness has information necessary for determining circumstances of a case.

In addition, the Public Defender criticizes the fact that only the prosecution is authorized to apply the abovementioned rule. According to him, this puts the defense in unequal conditions and cannot provide equality and competitiveness of the parties. Provision of equal conditions for the prosecution and the defense is essential for ensuring fair system of criminal justice in compliance with international standards.

The Public Defender considers that in the process of reforming the rules of questioning of witnesses, we cannot leave without attention the problem of criminal responsibility for giving essentially contradictory testimony (under article 3711of Criminal Code of Georgia). This article was quite frequently used to intimidate witnesses, which served as opportunity to manipulate the criminal justice. This issue is of high importance in relation to the legislative changes, as the witnesses questioned before magistrate judges will be limited by the given testimonies, the change of which at the main trial will lead to criminal liability. In addition, given that the law envisages criminal liability for false testimony and false libeling and that responsibility for false reporting is added to the proposed package, the necessity for maintenance of article 3711of the Criminal Code of Georgia remains unclear. We believe that maintenance of this article should be revised given the problems and shortcomings related to the use of this article in practice.

According to the bill, the 1998 rule of questioning of witnesses is maintained as an exception for a certain category of crime, including crimes against the state, human life and health, as well as crimes that contain violence and endangers the state, human life or health, etc. The abovementioned is justified by the necessity of making immediate response to the crimes and carrying out a number of immediate investigative actions, including questioning of witnesses, as well as the danger of destruction of evidence, damage to the crime scene and witness hiding.

The Public Defender cannot accept the arguments based on which the Government of Georgia demands two-year postponement of the new rules of questioning of witnesses with respect to certain categories of crimes. We believe that such a threat exists in relation to other crimes too; in addition, it is not clear how these threats will be eliminated in two years. It must be said that the law enforcement agencies had enough time and resources to carry out preparatory measures for introducing this institution in practice, to raise employees' skills and professionalism that would have promoted practical realization of the principle of voluntariness of questioning of witnesses.

Accordingly, we call on the Parliament of Georgia to take into account the opinions of the Public Defender and to bring the aforementioned draft law in compliance with international human rights standards. We express our readiness to participate in parliamentary discussions.

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