Application of pre-trial detention: international reviews and the Georgian practice - საერთაშორისო გამჭვირვალობა - საქართველო

Application of pre-trial detention: international reviews and the Georgian practice

18 February, 2015


On February 16, at the trial of the former Mayor of Tbilisi Gigi Ugulava in the Tbilisi City Court, the defense has moved to substitute pre-trial detention with bail. The judge's decision will be made public on February 18.

Under Georgian legislation and international practice, pre-trial detention should be applied as a preventive measure of last resort. Application of pre-trial detention in high-profile cases has been discussed several times in recent reports and assessments of international organizations. As a result, we are interested in what the court's decision will be on bail or continued pre-trial detention in Gigi Ugulava’s case.

OSCE Trial Monitoring Report 2014

In their 2014 report released, the OSCE Office for Democratic Institutions and Human Rights (OSCE/ODIHR) issued significant recommendations, including on pre-trial detention, to the Georgian authorities based on monitoring of high-profile trials.

The report stresses that no one should be deprived of the right to liberty in an arbitrary fashion or without due justification. Further, the organization states that less restrictive measures should be applied against the defendant and that detention should be applied for as short a period as possible. OSCE recommends that a higher standard of justification is set for the prosecution when requesting detention as a preventive measure. OSCE urges the Parliament of Georgia to include in the legislation mechanisms of periodic revision of a pre-trial detention, where the burden of proof for continued pre-trial detention as a preventive measure will lie with the prosecution. This would avoid the practice where accused individuals were automatically detained up to the legal limit of nine months, in violation of the presumption of liberty.

Parliamentary Assembly of the Council of Europe (PACE)

The Parliamentary Assembly of the Council of Europe (PACE) also refers to the problem of frequent and improper application of pre-trial detention and expresses concern over its duration and frequency.

Further, PACE stresses that detention on remand should only be used as a measure of last resort, and that it should not be used for political purposes. In its Resolution the Assembly calls on the authorities to adopt clear guidelines for the prosecution and courts for the use of detention on remand, in order to ensure full adherence with the requirements of Article 5 of the European Convention, and Committee of Ministers Recommendation (2006) 13 on the use of remand in custody.

Georgian Legislation and Practice

As the Transparency International Georgia report on the high-profile criminal cases states, the legal gap in the legislation of Georgia provides an opportunity of abuse of detention as a preventive measure by law-enforcement agencies. In particular, in case of a new indictment prior to expiration of the full detention term of 9 months, the 9-month detention term starts running anew; as a result, in one of the high-profile cases the defendant was detained for almost a year without rendering a guilty verdict against him.

Gigi Ugulava's Detention

The former Mayor of Tbilisi, Gigi Ugulava has been in a pre-trial detention for almost 8 months. He was detained on 3 July 2014 at Tbilisi International Airport. The Tbilisi City Court has applied detention against him as a preventive measure. The prosecution accuses the defendant of organizing forceful and group actions against the Marneuli Election Commission Chair in June 2014, legalizing illicit income in especially large amounts, and using a fake official document.

Remarkably, although under a different indictment, prior to that the court had already examined the prosecution's motion on application of detention as a preventive measure against Gigi Ugulava, releasing him on bail.

Notably, Ugulava was detained few days before the runoff of the 2014 local self-government elections. Civil society representatives argue that this was a breach of the moratorium declared by Prime Minister Gharibashvili; at that time Gigi Ugulava was heading the election campaign of the "United National Movement". The moratorium consisted of an announcement in April 2014 by the Prime Minister, who called on law-enforcement agencies to refrain as much as possible from questioning and detaining persons involved in pre-election campaign throughout pre-election period.