IDFI’s Opinion on the Reform Separating Prosecutorial and Investigative Powers

News | Rule of Law | Good Governance | Publications | Analysis 28 March 2019

In 2018, the Georgian Government initiated a wide-scale reform of the investigative system with one of the key elements of the reform being separation of the investigative and prosecution functions.

 

As per Georgian legislation, beyond the function of prosecution, the prosecutors are responsible for supervision of the investigation process. This includes execution of many additional functions, which are not part of a criminal prosecution, for instance determination of an investigation strategy, qualification of a criminal act, etc.

 

Such an extensive involvement of prosecutors in the investigation process hinders the criminal prosecution and, without any justification, increases the workload of the prosecutors. Thus, the quality of criminal prosecution is undermined and comprehensive prosecution - deteriorated. The so-called Khorava Street case, which resulted in a murder of two juveniles, exemplifies this situation. Due to inefficient investigation and prosecution of this case, murderers of one of the juveniles are still unknown. One of the main findings of the Parliamentary Fact Finding Commission was that the unclear separation of responsibilities between the Prosecution Service and the Ministry of Internal Affairs had deterred the proper investigation of the murder.

 

In its statement, the Government of Georgia notes that the purpose of the abovementioned reform is to establish solid legislative guarantees for ensuring an efficient and unbiased investigation and a balanced system with a clear separation of investigative and prosecution powers.

 

At its 118th Plenary Session, the European Commission for Democracy through Law (Venice Commission) adopted the opinion on the concept of the reform separating the prosecutorial and investigative powers. The Commission has positively assessed the fact that there is an almost unanimous agreement regarding the reform in the country. Yet, the Venice Commission has underlined that the concept of the reform is of a general character and certain details of the proposed reform remain unclear, which, according to the Commission, has made proper analysis of the proposals challenging.

 

The Venice Commission in its opinion has positively answered two key questions: 1. whether the proposed model is compatible with international standards and 2. whether, from the practical perspective, it will be capable of achieving its objectives.

 

IDFI believes that in the process of implementing the proposed reform it is crucial that all the sensitive elements that the Venice Commission is highlighting are thoroughly analyzed. Namely, the Government of Georgia has to acknowledge that due to the lack of competences of investigators it might be dangerous to implement the reform full-scale at an initial stage. The Government of Georgia should consider transitional mechanisms for improving the competences of investigators in parallel to the process of separation of powers between prosecutors and investigators.

 

IDFI recommends that at each stage of the reform, the Government of Georgia evaluate the impact of the draft amendments and that the amendments enter into force only after a preliminary analyses and risk assessment.

 

It is advisable that at the initial phase the prosecutors retain a relatively broad range of competences in the investigation process (especially on high-profile cases), however, these competences should later be reduced gradually. After the implementation of the reform, it is crucial to create sufficient safeguards to avoid inactivity of the investigator for instance, by giving the prosecutor full access to criminal case materials and, at the initial stages, the authority to override the decision of an investigator to launch or to refuse to launch an investigation through a written substantiation.

 

IDFI notes that in the process of separating the investigative and prosecutorial powers the number of disputes between the prosecutors and investigators may increase. Therefore, it is important to establish a dispute resolution mechanism to solve potential conflicts between prosecutors and investigators (e.g. file a complaint to the higher prosecutor).

 

This reform must ensure an objective and unbiased conduct of criminal prosecution and prevent prosecutors from becoming a party, the sole interest of which is to prove guilt.

 

IDFI believes that the civil society must be actively involved in the implementation of the reform, including in the process of elaboration of the multi-year action plan, which will determine the stages of reform implementation parallel to conducting relevant trainings for investigators.

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