PROBLEMATICS OF QUESTIONING A PERSON IN THE CURRENT CRIMINAL PROCEDURE LEGISLATION

Abstract

The article deals with the regulations related to the questioning of a person, its similarities, and differences with the interrogation of a witness in court in accordance with the Criminal Procedure Code of Georgia. The author presents the problems that arise in the practical application of legal norms related to the questioning of a person. This often becomes the basis for delaying the investigation and, in general, harms the justice process. The paper discusses ways to solve the problems presented. To better present the problems discussed in the article, hypothetical examples are offered that will help the reader get a clear idea of the existence of possible negative factors during the application of the norms under discussion in practice. It will assist us in studying the mentioned issue by comparing the issue under consideration with the procedural rules of interrogating the witness standing close to it. Also, an analysis of the legal framework of foreign countries regarding witness interrogation procedures is presented, which will help us identify the problem and find solutions.

Keywords: investigator, prosecutor, witness, interrogation, magistrate judge

Introduction

The current Criminal Procedure Code of Georgia, since its adoption, has undergone a number of changes, the purpose of which is to simplify the investigation, ensure competition between the parties and bring procedural rules in line with international standards.

The process of making changes and additions to the procedural legislation is natural and acceptable for the above purposes, moreover, the Council of Europe ministerial has developed a recommendation, according to which the member states were instructed to implement legislative changes to speed up and simplify the process of criminal proceedings, since the procedural legislation of the continental legal system was stretched over time.[1] In addition, with the additional recommendation of the Committee of Ministers of the Council of Europe, the member states were recommended to introduce simplified forms of proceedings in the national legislation.[2]

Contrary to this, the practice has revealed that over the years, some changes made to the current Criminal Procedure Law not only did not accelerate and simplify the litigation process but directly harmed the legitimate interests of conducting a complete, timely and objective investigation of the case.

The investigative process is unthinkable without investigative and procedural actions. Each investigative action serves as the process of gathering evidence by the parties in the case. In the article, we will touch upon the most common investigative action of questioning a person in practice. There are practically no criminal cases where witnesses were not interviewed. The proportion of evidence obtained as a result of this investigative action is impressive.[3]

In this scientific work, we will touch upon the legislative changes made to the Criminal Procedure Code of Georgia on December 18, 2015, in particular, the new procedure for questioning a person within the framework of the investigation, its negative aspects, which are clearly visible in practice. We will analyze the problems associated with conducting a specific investigative action, its goals and significance in the criminal case. The paper identifies the problems that cause irreparable damage to the investigative process and directly contribute to the unreasonable delay in the investigation, making it impossible to obtain evidence in the case on time.

The article presents the author’s vision of solving the identified problems related to the procedural norms of questioning a person. In particular, legislative changes and the rationale for their implementation are proposed.

Problems in the Current Way of Questioning a Person

In this article, we will deal with, in our opinion, the problematic issues of the rules of procedure related to the questioning and interrogation of a person. In fact, a detailed study and analysis of the questioning and interrogation of a witness during the investigation is not the goal of scientific work, and not one article will consider all aspects related to the procedural institution in question.

According to the procedure for interrogating a witness during an investigation established by the Criminal Procedure Code of 1998, a witness could be summoned to testify before the investigating authority, in which case he was obliged to appear and give evidence, otherwise he would be held criminally liable.[4]

Questioning a person was regulated in the Criminal Procedure Code of Georgia for the first time. This institution can be freely called one of the main innovations of the current Code of Criminal Procedure, according to which the witness is granted the right to have a voluntary relationship with the investigation authorities and he will have the right to freely choose whether to give information to the investigator or the representative of the defense, i.e., to act on his will. This standard was considered by the legislator as the basic standard for all legal states and an appeal was made to the precedent decision of the European Court (John Murray v. the United Kingdom, § 45).[5] Along with the introduction of novation in the procedural legislation, the lawmaker also spoke about the negative consequences that would result from such a legislative innovation in the event of an unfair refusal of a witness to cooperate with the investigation.[6] Unfortunately, these negative results really manifested themselves in practice, and in today’s situation, the issue of the witness’s cooperation with the investigation for unsubstantiated motives has become problematic in practice, which, in turn, is directly related to the procedural requirements for the timeliness and objectivity of the investigation. Because it contradicts the fundamental and guiding principle that everyone is guaranteed the right to a trial within a reasonable time.[7] We will talk about this issue in more detail in the next part of the study, before that, in the interest of fairness, it should be noted that the legislator’s appeal to the aforementioned precedent decision of the European Court, with the motive of justifying the legislative changes, was, to put it mildly, unconvincing. In this case, the European Court discussed mainly the right of the accused to remain silent and the right not to testify against himself.[8] This fundamental situation, which is typical for the criminal procedural legislation of democratic countries, is provided for both in the old and in the current procedural legislation of Georgia.[9]

At the stage of investigation of a criminal case, questioning a person helps to obtain important evidence; the issue of solving a crime often depends on the said investigative action.[10] The mentioned investigative action is the legal procedure during which, along with the phased overcoming of the tasks presented, the main goal of the investigative action is achieved – obtaining evidence in a case.[11] It is this circumstance that attaches particular importance to the questioning of a person during the investigation. Besides, the establishment of such bureaucratic clauses for investigative action, which in many cases delays its implementation and thereby damages the investigative process, in our opinion, will hinder the timely administration of justice.

We cannot agree with the opinion of a number of authors that the Georgian model of the institution of questioning a person is close to the status of “assisted witness” provided by the French Procedural Code and that a person can be questioned without an oath.[12] Therewith, the Georgian legislation also recognizes the questioning of a person without an oath as a type of operational-investigative measure.[13] As for the procedural rules of questioning a person, in the case of the person's statement of consent to the questioning, the party warns him in writing about the expected criminal liability for false snitching (crime under Article 373 of the Criminal Code of Georgia) and providing false information (crime under Article 370 of the Criminal Code of Georgia).[14]

The current procedural rule for questioning a person has been repeatedly postponed after the entry into force of the new procedural code, the last time it came into force on February 20, 2016, [15] and during the investigation of a number of crimes, this rule came into effect on January 1, 2017[16] and June 30, 2019.[17] Along with the new procedure for questioning a person, the procedure for interrogating a person as a witness during the investigation has also undergone a significant change[18], which has made the institution of interrogation of a witness  in the investigation more problematic. We will discuss this matter in detail in the next chapter of the paper.

Problems in the Procedure of Interrogating a Person as a Witness

As we have already mentioned, the current procedural law provides for the procedure of interrogating a person as a witness during the investigation. The law provides for the factual circumstances under which a person may be interrogated as a witness by a magistrate judge during an investigation.[19] The mentioned standard cases are not the subject of discussion in this article, so we will not dwell on them, as the given rules do not have a problematic nature, but on the contrary, they are integrated into conducting the investigation comprehensively, timely and objectively. We consider the specific amendment introduced on December 18, 2015, problematic, according to which, at the stage of investigation, a person can be interrogated before a magistrate judge for refusing to be questioned.[20] In what cases can a person refuse to be questioned by an investigator? Reasons for a person’s refusal to be interviewed may be: 1. distrust of the investigation; 2. not having information on the case; 3. using the voluntary right of questioning granted by law, and although he trusts the investigation for any positive or negative reasons, does not consider it necessary to cooperate with it.[21] The mentioned condition of the current law,[22] to put it mildly, harms the investigation process and imposes unjustified and lengthy bureaucratic barriers on the parties. Let's consider in detail in which case the person questioned may distrust the investigation. When a person considers the investigation is biased, he uses illegal methods to obtain testimony against it. Furthermore, the person to be questioned may express distrust for other subjective reasons (for example, political, social, and other unsubstantiated reasons). The process of questioning is similar to the process of exchange of opinions in human relations, the conversation is more sincere and desirable between people who have respect for each other, if there is trust for the investigative bodies the interview becomes an effective tool in terms of gathering evidence.[23] The current legislation does not require justification of the reasons, and it is enough for a person to express distrust, his testimony according to the law is a voluntary process. This circumstance can be used maliciously and subjectively by the person to be questioned, which can be directed against the legal interests of the investigation. Therewith, in the event of misconduct by an investigator or an investigating authority, the law also establishes various protection mechanisms. For example, such as the removal of the investigator in case of bias,[24] any threat and violence committed by the investigator against a participant of the process, committed in connection with the investigation of the case, constitute a criminal act,[25] and in order to investigate these criminal acts, in addition to the mechanisms of internal control, an independent investigative body, Special Investigation Department, has been established.[26] In addition to the mentioned, it is directly the responsibility of the prosecutor’s office to respond to any illegal actions of the parties. In view of the above, the presence of unsubstantiated and groundless mistrust for investigation, which is not rare in practice, in our opinion, should not be a reason for a person to refuse to be questioned. Particular attention is paid to the case of a person not possessing information as a basis for refusing to be questioned. As a rule, the party summons for questioning such persons who, according to the evidence available to the parties, have information on a specific case. However, it should not be excluded the mistake of the party and the summoning of a person who objectively does not have any information on the case. In such a case, the time-consuming procedures are detrimental to the investigation, and a person can easily claim during the investigation that he does not have any information. The third ground for refusal to be questioned, namely, when a person possesses the necessary information about the case, which is vital for establishing the objective truth in the case, but he does not consider it necessary, even for any reason, to cooperate with the investigation and for this uses the right of voluntary questioning provided by law, in our opinion, goes beyond the reasonableness. This provision of the law causes irreversible and irreparable damage to the process of justice and contradicts the constitutional provision, which obliges everyone to provide information in their possession to the investigative commission.[27] Against the background of the foregoing, we believe that granting a person the right to refuse to be questioned on unsubstantiated grounds, within the framework of the investigation, will add an unconstitutional tone to said law entry.

In addition to the above-mentioned fact, during the investigation, the interrogation of a person in the presence of a magistrate creates problems in other areas as well, namely, the witness's deposition testimony is used by the court during sentencing. In addition to the above, the court considers only the testimony of the witness, interrogated during the trial with the participation of the parties, during which the right to face-to-face confrontation with a witness (The Confrontation Clause), guaranteed by the European Convention, was ensured. And such cases, when a witness is interrogated before a magistrate judge only by the prosecution, can be perceived as posing a threat to a fair trial.[28] And the current legislation allows the possibility of interrogation of a person in the presence of a magistrate only by the prosecution.[29]

In the next chapter of the work, we will try to study in detail the problems related to questioning a person, present practical barriers against the background of hypothetical examples, present statistics relating to the issue and determine the inconsistency of the norms in force with forensic approaches.

Problems in Practice

It is in the interests of the parties to conduct proceedings in an accelerated timeframe, this issue becomes especially relevant when investigating less serious and serious crimes, since timely investigation involves avoiding unjustified costs, both human and material.[30] Such is the mandate of the state and society and the obligations of the country in relation to international democratic principles. Unfortunately, controversial and problematic issues of the current legislation provide the opposite situation and create obstacles, even delaying the investigation. To clarify our idea, let's use the following hypothetical example: A and B are eyewitnesses to the premeditated murder of C, they can give the investigation accurate information and help identify the killer X. The presence of eyewitnesses became known to the investigator in the case, who summoned them to the investigative agency for questioning.[31] A and B refused to testify for the voluntary investigation.[32] In such a situation, the investigator is obliged to notify the prosecutor, who will consider the advisability of filing a petition to interrogate a person as a witness before a magistrate judge, and in case the prosecutor decides positively on the issue of conducting an investigation, [33]he has the right to personally file a petition with the court or instruct the investigator to draw up the specified petition and allow the investigator to apply to the court himself.[34] After the petition is submitted to the court,[35] the court is obliged to consider it and proceed to the interrogation of the witness within 24 hours.[36] In addition, interrogation of a witness at night is not allowed, and an interrogation that has begun must be terminated at nightfall[37] and continued the next day. In addition to the above, the law also provides for the non-appearance[38] of a witness for an honorable reason,[39] which, in turn, delays the investigation. On the other hand, a judge may refuse a petition to question a person as a witness before a magistrate judge, on which he issues a reasoned ruling and sends it to the party initiating the petition.[40] A party can appeal this petition to the investigative board of the Court of Appeal within 24 hours of its submission.[41] In case of an appeal, the judge of the investigative panel considers the petition no later than 24 hours after its filing.[42] The judge of the appellate court makes the final decision on the appeal, he either approves it or refuses to approve it. For the hypothetical example we have given, in the best scenario, namely, if the appeal is upheld, the ruling is immediately sent to the author of the appeal and to the magistrate who issued the ruling under appeal.[43] In this context, the interrogation of the witness must begin within a reasonable time but no later than 24 hours after the delivery of the ruling of the judge of the investigative panel of the Court of Appeal to the magistrate judge. In addition, in this case, the absence of a witness for an honorable reason should also be considered.[44] However, after all, that has been mentioned, the appearance of the witness in court is still voluntary, and in case of non-appearance at the appointed time, it is possible to use coercive measures against him,[45] which, in turn, means additional time resources. After the interrogating of A and B before the magistrate judge, the magistrate ensures that the testimony given by the witnesses in court is transmitted to the party initiating the interrogation, both in written and electronic form.[46] In practice, this procedure often takes several days, for the following reasons: 1. The testimony of a witness in court is recorded electronically, in particular, an audio recording of the process is made. After that, the secretary of the court session, based on the audio recording, provides a printed version of the interrogation protocol. If the testimony of a witness is extensive or several witnesses are interrogated, then this process accordingly requires more time resources; 2. After the interrogation protocol is drawn up by the court, the witness(es) is given the opportunity to familiarize themselves with the testimony given by them, which implies their additional attendance at the court (it should be borne in mind that even in this case the deadlines can be extended and there is no lever of coercion), by personally reviewing protocol and making comments and statements on it, if any; 3. After the witness has familiarized himself with the protocol, the court sends the printed and electronic versions of the said protocol to the investigative body, which in turn provides for a 5-day procedural period.[47] As we can see, in such hypothetical cases, which happens quite often in practice, the time for obtaining the information necessary by the investigation may take several days or even weeks. At such a time, irreparable damage is possible not only to the investigation but also to the legitimate interests of the state and society, since after the identification of the person X, who committed the crime, it is possible to find out that he managed to escape and/or leave the country. As a result, the process of justice will be damaged, and it will be difficult to restore justice in the case, and to use coercive measures against the person who committed the crime and to enforce the punishment.

In addition to the above, the problematic nature of the current law discussed by us is incompatible with the criminalistic approaches established for questioning a person. Forensic tactics is based on the achievements of such sciences as logic, psychology and others, and assists the investigation process to effectively conduct various investigative activities, including interrogation, which involves the timely acquisition of correct and objective evidence in the case.[48] The investigator, from a criminalistic point of view, is obliged to use during the investigation such a tactic, that will contribute to obtaining objective and complete information about the case and the process of establishing the objective truth about the case in a timely manner.[49] One of the general tactical methods of interrogation in criminalistics is the creation of normal conditions for the questioning, which means conducting the questioning in isolation, without the presence of strangers, etc.[50] Despite the fact that the law does not necessarily determine the place of questioning, depending on the situation and interests of the investigation, as well as the person to be questioned, the said investigative action can be performed at any place (investigative body, place of residence, office, etc.) where it is technically possible to draw up a written questioning protocol.[51] Particular attention is paid to the choice of the place of interrogation, since external conditions play a special role in determining the emotional background of the person to be questioned, establishing proper communication and balancing psychological contact. Besides, a sincere dialogue between the investigator and the questioned person is a prerequisite for the non-interference of other persons in the interrogation process.[52] It is desirable that the witnesses do not meet each other until the end of the interrogation so that they do not reconcile their positions or influence each other.[53] Fulfillment of these requirements of forensic tactics is practically impossible in the case of the hypothetical example we have considered, which reduces the likelihood of obtaining information important for the investigation.

During the period of work on the scientific work, statistical information was requested from the Tbilisi City Court on petitions for interrogation as a witness during the investigation, and the decisions made on them, to which, unfortunately, we did not receive a response.[54] Oral interviews with practicing lawyers working on this issue show that these types of petitions are not rare in practice, which is confirmed to some extent by the public statistics produced by the Tbilisi City Court.[55]

Conclusion

The problematic issue we are discussing is applicable Procedural Law poses serious challenges to the process of investigation and justice in general. Unreasonable and inappropriate legal regulations, in many cases, can lead to a delay in the investigation, which will ultimately harm the legitimate interests of the state and society. On the one hand, we consider the growing need for a timely investigation to be unjustified, and on the other hand, the introduction of harmful bureaucratic rules into the criminal procedure legislation. The problems we have identified require timely legislative intervention. We believe that a person who has a significant obligation on a case, based on his civic duty, should not have the right to make such a choice that would prejudice the conduct of a full, timely and objective investigation of the case and would complicate the process of restoring justice.

Bibliography

1. Gakhokidze J., Gabisonia I., Mamniashvili M., Moniava P., Investigative Law. 1^st book, Tb., 2018;


2. Gogshelidze R., Paliashvili A., Criminalistics, Tb., 2009;


3. Eriashvili N., Psychological Features of Preliminary Investigation, Tb., 2010;


4. Trenkel E., Psychology of Witness Testimony, Tb. 2009;


5. Laliashvili T., Criminal Legal Process of Georgia. General part, Tb., 2015;


6. Mzhavanadze Z., Criminal Law Process, Tb., 1999;


7. Paliashvili A., and others, Criminalistics, vol. #2, Tb., 1995;


8. Papiashvili L, and others, Criminal Procedural Law of Georgia. Private part, Tb., 2017;


9. Trechsel S., Sarah J. Summers, Human Rights in Criminal Proceedings, Tb., 2009.

Legislative Acts

1. Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.11.1950;


2. Recommendation of the Committee of Ministers of the Council of Europe, 14.03.1981, #R(81)74;


3. Recommendation of the Committee of Ministers of the Council of Europe, 17.09.1987, #R(87)18;


4. Constitution of Georgia, 1995;


5. Criminal Procedure Code of Georgia, 2009;


6. Criminal Code of Georgia, 1999;


7. Criminal Procedure Code of Georgia, Tb., 1998;


8. Law of Georgia on Operative and Investigative Activities, 1999;


9. Law of Georgia on Special Investigation Service, 2018.

Electronic Resources

1. Explanatory card on the draft law of Georgia On Amendments to the Criminal Procedure Code of Georgia, 11.12.2015, link: <https://info.parliament.ge/file/1/BillReviewContent/106183> [Last accessed: 19.07. 23].


2. European Court of Human Rights, O’Holloran and Francis v. United Kingdom, 2007, p. 16, link: <https://catalog.supremecourt.ge/blog/foto/286.pdf> [Last accessed: 19.07.2023].

Footnotes

[1] Recommendation of the Committee of Ministers of the Council of Europe, 14.03.1981, #R(81)74.

[2] Recommendation of the Committee of Ministers of the Council of Europe, 17.09.1987, #R(87)18.

[3] Mzhavanadze Z., Criminal Law Process, Tb., 1999, p. 82.

[4] Criminal Procedure Code of Georgia, Tb., 1998, art. 305, pts 1 and 3.

[5] Explanatory card on the draft law of Georgia On Amendments to the Criminal Procedure Code of Georgia, 11.12.2015, link: <https://info.parliament.ge/file/1/BillReviewContent/106183> [Last accessed: 19.07. 23].

[6] Ibid.

[7] Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.11.1950, art. 6, pt 1.

[8] European Court of Human Rights, O’Holloran and Francis v. United Kingdom, 2007, p. 16, link: <https://catalog.supremecourt.ge/blog/foto/286.pdf>  [Last accessed: 19.07.2023].

[9] Criminal Procedure Code of Georgia, 1998, art. 72, pt 3 and art. 94, pt 4; Criminal Procedure Code of Georgia, 2009, art. 38, pts 2 and 4, art. 49, pt 1, sub-s “d”.

[10] Papiashvili L. and others, Criminal Procedural Law of Georgia. Private part, Tb., 2017, pp. 400-401.

[11] Eriashvili N., Psychological Features of Preliminary Investigation, Tb., 2010, p. 35.

^[12] Gakhokidze J., Gabisonia I., Mamniashvili M., Moniava P., Investigative Law. 1^st book, Tb., 2018, p. 287.

[13] Law of Georgia on Operative and Investigative Activities, 1999, art. 1, pt 2, sub-s “a”.

[14] Criminal Procedure Code of Georgia, 2009, art. 113, pt 7.

[15] Ibid., art. 332, pt 1.

[16] Ibid., pt 3.

[17] Ibid., pt 4.

[18] Ibid., art. 114.

[19] Ibid., art. 114, pt 1.

[20] Papiashvili L., and others, Criminal Procedural Law of Georgia. Private part, Tb., 2017, p. 407.

[21] Ibid., p. 412.

[22] Criminal Procedure Code of Georgia, 2009, art. 114, pts 2 and 2¹.

[23] Trenkel E., Psychology of Witness Testimony, Tb. 2009, pp. 16-18.

[24] Ibid., art. 59, pt 1, sub-s “f’’.

[25] Criminal Code of Georgia, 1999, art. 335.

[26] Law of Georgia on Special Investigation Service, 2018, art. 19, pt 1, sub-s “a”.

[27] Constitution of Georgia, 1995, art. 42, pt 3.

[28] Laliashvili T., Criminal Legal Process of Georgia. General part, Tb., 2015, pp. 301-304.

[29] Criminal Procedure Code of Georgia, 2009, art. 114, pt 9.

[30] Trechsel S., Sarah J. Summers, Human Rights in Criminal Proceedings, Tb., 2009, p. 242.

[31] Criminal Procedure Code of Georgia, 2009, art. 113, pt 1.

[32] Ibid.

[33] Ibid., art. 114, pt 4.

[34] Ibid.

[35] Ibid., pt 5.

[36] Ibid., pt 6.

[37] Ibid., art. 3, pt 17.

[38] Ibid., pt 18.

[39] Ibid., art. 114, pt 6

[40] Ibid., pt 7.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Ibid., art. 149, pts 2 - 3.

[46] Ibid., art. 114, pt 13.

[47] Ibid., art. 195.

[48] Gogshelidze R., Paliashvili A., Criminalistics, Tb., 2009, p. 13.

[49] Paliashvili A., and others, Criminalistics, vol. #2, Tb., 1995, p. 84.

[50] Ibid., p. 98.

[51] Papiashvili L, and others, Criminal Procedural Law of Georgia. Private part, Tb., 2017, p. 402.

[52] Eriashvili N., Psychological Features of Preliminary Investigation, vol. 2010, p. 40.

[53] Paliashvili A., and others, Criminalistics, vol. #2, Tb., 1995, p. 104.

[54] According to letter #1-0499/27567 of Tbilisi City Court dated July 13, 2023, statistical processing of the requested information is not carried out, that’s why we were refused.

[55] Statistical data of Tbilisi City Court for 2021, link: <https://tcc.court.ge/ka/Statistics>,  the statistics include the report of petitions submitted to the court for conducting investigative actions, where “other types of petitions” are considered as a separate item, the number of which is 1640 in 1 year. Since the court does not keep statistics on petitions for interrogation of witnesses separately, their number is included in other types of petitions.