A/HRC/4/33/Add.2
Page 49
247.
According to non-governmental sources, before amendments were introduced to
paragraph 1 of article 152 of the Criminal Procedure Code on 16 December 2005, the Code
provided for several non-custodial preventive measures,8 although pre-trial detention had been
the one mostly used9. The amendments reduced the list of alternative, non-custodial measures
leaving bail and personal guarantee as the only options. Given the specific nature of these
preventive measures, if a person cannot afford to post bail or find a reliable person who agrees to
be his or her guarantor, the individual will be detained no matter how unreasonable this measure
is in the given case. It is noteworthy, however, that the instances of applying bail as preliminary
measure has slightly increased in 2006, though in comparison with the instances of applying
preventive detention the number is still low. According to a letter of the Supreme Court of
Georgia dated 20 September 2006, detention as a preliminary measure has been applied to 5160
persons,, while bail to 2740 and personal guarantee to 343 persons. Property of the accused in
theory may also be used as bail, although the prosecutor’s office often refuses this option. Article
195 of the revised Criminal Procedure Code, to be adopted by the end of 2006, envisions a range
of alternatives to detention for suspects. Paragraph 2 specifies a number of important measures,
but states that they “may only be applied where the State has sufficient resources for encouraging
its application.” This qualification suggests that the state has no actual obligation to implement
these measures.
248.
Furthermore, senior government officials have not publicly supported the use of noncustodial measures. In a February 2006 speech to newly-appointed judges, the President
strongly discouraged the use of probation, even for those convicted of petty crime. He stated,
“People should be sent to prison for every petty crime…. [P]robation sentence will be abolished
and all culprits will go straight to prison, except when it is necessary for the investigation to get
information from the person which will help open big and serious cases…”
249.
Recommendation (j) stated: Recourse to pre-trial detention be restricted in the
Criminal Procedure Code, particularly for non-violent, minor or less serious offences, and
the use of non-custodial measures such as bail and recognizance be increased;
250.
According to non-governmental sources, there are no data or public statements to
suggest that preference is being given to non-custodial measures instead of pre-trial detention.
The pre-trial population, according to the Penitentiary Department’s own statistics, remains at
approximately 63% of the overall prison population. Anecdotic evidence suggests that many
detainees have been charged with relatively minor first offences such as selling untaxed
cigarettes, stealing without violence. Juveniles have been imprisoned for stealing a box of
biscuits, a mirror, etc. Prison numbers have risen from 6654 in 2004, 9051 in 2005, 12,992 as of
3 August 2006, to 13,199 by 23 August and to 13,700 by 3 September 2006.
251.
Authorities have not shown any interest in gathering figures in order to identify
whether people are being inappropriately detained in pre-trial. Neither did the State take action
upon suggestions that cases of mentally disturbed, allegedly trafficked women, first time
8
Including: placement under police surveillance, written undertaking not to leave place and behave properly, house
arrest (although formally house arrest belonged in the category of non-custodial preventive measures, practically, it
had nothing to do with the presence of an accused person at penitentiary institution and thus it was not a custodial
measure).
9
According to the Letter of the Office of the Prosecutor General of Georgia dated April 4 2005, since July 2005
imprisonment as a preliminary measure was used in 3175 cases, while bail was granted in only 1071 cases.
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