draft amendments are trying to introduce manifestly disproportional sanctions for the
same types of conduct. Furthermore, the Ministry of Corrections has not provided
any reasoned and evidence-supported explanation of why administrative detention
would be more effective in maintaining order in special-risk institutions than other
disciplinary sanctions. Accordingly, we believe the aforementioned draft proposed by
the Ministry of Corrections should not be adopted.
Pursuant to the jurisprudence of the European Court of Human Rights, proceedings
for imposing administrative detention are considered criminal charges for the
purposes of Article 6 of the European Court of Human Rights.130 Accordingly, a person
whose administrative detention is considered enjoys the minimum rights guaranteed
in paragraph 3 of Article 6 of the European Convention.131 Among other rights, he/
she should have adequate time and possibility to prepare his/her defense. The
requirement that accused person must be allowed adequate time to prepare their
case is a guarantee against hasty judicial decisions.132 In determining the adequacy
of time afforded, account should be given to the nature and complexity of the case.
If new circumstances arise during proceedings, the accused person should be given
additional time to appropriately shape his/her position133 for which reason he/
she should have the right to request adjournment of the hearing;134 in some cases,
where this is in the interests of justice, the court should adjourn a hearing on its own
initiative.135
Pursuant to Article 90 of the Imprisonment Code, a decision imposing administrative
detention should be submitted, within 24 hours after it is made, to the competent
court according to the location of the institution. The court (a single) judge will examine
the decision at an open hearing within 48 hours after the decision has been lodged
with the court. A reasoned judgment of the court must be rendered immediately
after judicial examination of the decision is completed. Therefore, it is clear from the
procedure envisaged by the Imprisonment Code that a prisoner has 72 hours at most
to contact a lawyer, develop a defense strategy, obtain evidence and lodge a complaint
with the court. It should also be mentioned that there is no possibility of adjourning
a hearing after 48 hours have passed following the lodging of the detention decision
with a court because the court must make a judgment within 48 hours anyway. As
130 Ezeh and Connors v. the United Kingdom; Campbell and Fell v. the United Kingdom.
131 According to Article 6(3), every accused person has the following minimum rights: (a) to be
informed promptly, in a language which he understands and in detail, of the nature and cause
of the accusation against him; (b) to have adequate time and facilities for the preparation of his
defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has
not sufficient means to pay for legal assistance, to be given it free when the interests of justice so
require; (d) to examine or have examined witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to
have the free assistance of an interpreter if he cannot understand or speak the language used in
court.
132 Kröcher and Möller v. Switzerland (dec), Bonzi v. Switzerland (dec), OAO Neftyanaya Kompaniya
Yukos v. Russia, § 540.
133 Miminoshvili v. Russia, § 141, Pélissier and Sassi v. France [GC], § 62, G.B. v. France, §§ 60-62.
134 Galstyan v. Armenia, § 85, Campbell and Fell v. the United Kingdom, § 98.
135 Sadak and Others v. Turkey (no. 1), § 57, Sakhnovskiy v. Russia [GC], §§ 103 and 106.
NATIONAL PREVENTIVE MECHANISM OF GEORGIA
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