SITUATION IN PENITENTIARY INSTITUTIONS against him and not to investigate the ill-treatment against him.14 Usually allegations of ill-treatment administered against prisoners in the Georgian penitentiary institutions are investigated by the Investigation Department of the Ministry of Corrections – a fact that puts a big question mark about effectiveness of these investigations. It is without saying that the above-described practice cannot be deemed compatible with the procedural requirement of Article 3 of the European Convention – effective investigation of each occurrence of ill-treatment. Investigation into possible facts of ill-treatment cannot be effective if it is done as part of investigation into a criminal case against the victim. Veracity of this statement is corroborated, for example, by the above-mentioned case of A.B., in which the investigation was discontinued on account of lack of elements of crime. It should be noted that in that case the investigating authorities were investigating possible storage and carriage of a prohibited item by the prisoner. The only way to terminate the investigation was to find that the prisoner had not committed a crime, while the prisoner’s allegations about ill-treatment remained unexamined at all. It is of crucial importance that each investigation into alleged ill-treatment of prisoners in penitentiary institution be commenced and carried out by an agency that is institutionally detached from the Ministry of Corrections15 to ensure independence, impartiality and thoroughness of investigation. In regard to effective investigation of ill-treatment, incorrect legal qualification of the conduct remains a major concern. Usually, investigation is commenced not under the torture article16 or the article on inhuman or degrading treatment17, but under Article 333(1) of the Criminal Code18 – with the latter envisaging a rather milder sanction.19 In its 2010 Report, the Committee for the Prevention of Torture (CPT) indicated that the Prosecution Office often failed to initiate criminal cases into complaints of ill-treatment, and when cases were opened, this was rarely under Section 144 of the Criminal Code, but rather under Section 333. Furthermore, it was said that the proceedings were protracted and very rarely led to convictions, which diminished trust in the system for investigating complaints.20 In 2013, too, if the authorities were opening criminal cases, they were doing so under Article 333 and, accordingly, investigation in these cases cannot be described as effective. The European Court of Human Rights has been reiterating in its judgments that investigation into ill-treatment must be such as to bring about detection and punishment of those responsible; otherwise, the general legal prohibition of ill-treatment would, despite its fundamental importance, be ineffective in practice [...]21 Pursuant to information received from the Georgian Chief Prosecution Office, in 2014, criminal prosecution was commenced against 48 employees of the Penitentiary Department on account of alleged perpetration of ill-treatment and other related criminal offenses by these individuals against prisoners. 28 of these 48 employees were convicted. It should be noted with satisfaction that the criminal offenses committed by these individuals were given the legal qualification of torture or inhuman or degrading treatment; however, this is only true about actions committed before Fall 2012, while since then, the alleged offenders are prosecuted under Article 333 of the Criminal Code.22 15 Having in mind the current legal system in Georgia, it would be the most appropriate for the prosecution office to in charge of investigation into allegations of ill-treatment. 16 Article 1441 of the Criminal Code. 17 Article 1443 of the Criminal Code. 18 Exceeding official powers. 19 A sanction under Article 333(1) of the Criminal Code is deprivation of liberty for up to three years, from nine to fifteen years under Article 1441 (1) and from four to six years under Article 1443 (2). 20 CPT Report to the Georgian Government, 2010, par. 17. 21 Assenov and Others v. Bulgaria, Judgment of 28 October 1998, par. 102. Labita v. Italy, par. 131; Boicenco v. Moldova, par. 102 22 It should be noted that, despite our request, the Chief Prosecution Office did not furnish the Office of the Public Defender with statistical data about the number of members of the Penitentiary Department prosecuted in 2013 for crimes under Articles 332, 333, 1441, 1442 and 1443 of the Criminal Code. Accordingly, the above-described opinion is based on the cases dealt with by the Office of the Public Defender. 2013 14 Nechiporuk and Yonkalo v. Ukraine, Judgment of 21 April 2011, par. 164. NPM Report 9