CRIMINAL PROCEDURE CODE REPRESENTS FUNDAMENTAL SHIFT

UNCLAS TBILISI 001130

SIPDIS

SIPDIS

STATE FOR INL, EUR/ACE, EUR/CAC
DOJ FOR OPDAT (LEHMANN/NEWCOMBE)

E.O. 12958: N/A
TAGS: SNAR PGOV OTRA KCRM KJUS GG
SUBJECT: CRIMINAL PROCEDURE CODE REPRESENTS FUNDAMENTAL SHIFT



1. Summary: In 2007, Georgia will enact a new Criminal Procedure
Code ("CPC") that replaces the former Soviet-style of prosecution
with a new approach that equalizes the government's obligation to
prosecute cases with the responsibility to protect the public's
rights. This philosophical shift to a Western system which
enshrines the protection of civil rights has been embraced
throughout Georgia's political and law enforcement communities. The
CPC debate is now centered upon the best approach to implement the
new system. Balancing the interests of the citizen and the
obligations of the state means that the Rule of Law in Georgia is
supporting the Rose Revolution's fundamental societal changes. End
Summary.

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Stop and Frisk
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2. Recent developments demonstrate that Georgia has rejected the
Soviet-style prosecution memorialized in the former criminal
procedure code with the CPC's new philosophy that balances the
government's obligations with the public's rights. On May 3-5,
legislative stakeholders met to discuss changes to the CPC. During
the 3 day OPDAT/DOJ sponsored conference, they did not discuss
whether to accept the CPC's philosophical changes and reject the
former Soviet system of prosecution. Instead, they discussed how to
practically implement the CPC. For example, they discussed the
concept of "stop and frisk." Soviet-style investigations allowed
police officers to stop a suspect, seize him, transport him to a
jail, and force him to make a statement. "Stop and frisk," by
contrast, balances an officer's obligation to investigate crime or
potential crime with a citizen's right to privacy. It permits a
police officer who reasonably believes that a person has committed a
crime or is about to commit a crime to stop the subject, pat down
his outer clothing for officer safety, and question him for a
"reasonable time" at the scene. It does not, however, permit a
police officer to seize the suspect, transport him to a jail, and
force him to make a statement.


3. The legislative stakeholders' decision to include the "stop and
frisk" concept is a balanced approach to the government's obligation
and society's rights. It puts society's rights on equal footing
with the government's obligations. This means that the legislative
stakeholders have already accepted the CPC's philosophical changes
to protect the public's rights and rejected the Soviet-style
prosecution that favored the government's obligations.

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Right to a Fair Trial
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4. In OPDAT/DOJ sponsored mock trials on April 19, prosecutors and
judges put the CPC to the test. Formerly, a Soviet-style
prosecution allowed judges to question witnesses during the trial.
Potentially, this created the appearance of bias and impropriety
because the judge's questions might have favored the prosecution.
The CPC balances the government's obligation to prosecute crimes
with the public's right to a trial free from bias and the potential
of impropriety by denying the judge the right to question witnesses.
Instead, the CPC shifts all advocacy obligations to the attorneys.
Under the CPC, the attorneys - - not the judges - - question
witnesses. This means that the judge will be, both in appearance
and fact, a fair and impartial arbiter of the law rather than an
advocate for either side. In the mock trials, the judges and the
prosecutors did not question this philosophical change. Instead,
they adapted to their new roles. Judges ruled on legal questions
and prosecutors advocated.


5. Comment. The Rose Revolution sought to put the public's rights
on par with the government's obligations. Efforts by the
legislative and legal stakeholders to implement the CPC demonstrate
that the Rule of Law has accepted this philosophical change. The
various interest groups have rejected the former Soviet-style of
prosecution and now accept a system that balances the government's
obligation to prosecute cases with the protection of the public's
rights. The final stage for the CPC will require all stakeholders
to examine the code, identify implementation problems, and resolve
these issues prior to the CPC's final passage into law. End
Comment.

TEFFT