Problematics of Realization of Adversarial Principle and the Principle of Equality of Arms at the Stage of the Investigation

Abstract

Criminal Procedure Code of Georgia tries to share the Anglo-Saxon law system model, which is based on “pure” equality of arms and adversarial principle; this can be said according to the requirements of the 9^th article of the Criminal Procedure Code of Georgia regarding that at the beginning of criminal prosecution, the criminal process is being executed based on equality of arms and adversariality of the parties. The party is entitled to apply for a petition according to the rule established by Procedural Legislation, obtain via court, request, submit, and examine all the relevant evidence.

Theoretical study of equality of arms and adversariality model stipulated by Georgian criminal procedural law, regarding that at the criminal prosecution stage, equally as the prosecution (investigator, public prosecutor) – defense (the accused, lawyer) is also granted with opportunity, collect the beneficial evidence by conducting the investigative actions and for refusing the guilty (offense) the accused charged with.

Work has analyzed the problematics of the principle of equality of arms and the adversarial principle stipulated by Georgian procedural legislation, their procedural regulations, and those negative sides that hinder their complete and fair realization in investigative practice. Attention is drawn to the necessity of legislative changes in the investigator’s authority, in particular, the investigator should not represent the prosecution (party of charge), but he/she should be an independent procedural subject, being obliged to obtain both – incriminating and exculpatory evidence of prosecution (party of charge) with the same diligence, that will encourage the fair realization of equality of arms and adversarial into criminal procedural proceedings.

Keywords: equality of arms and adversariality, investigator, criminal prosecution, investigation.

Introduction

According to applicable procedural legislation, criminal prosecution bears only public character and the public prosecutor exercises it, it is only under his / her discretionary authority to commence or/and terminate the criminal prosecution, whilst he guides with public interests and #181 order of the Minister of Justice “About assertion of the general part of criminal policy guidance principles” (dated as of 8^th of October, 2010), during of which he takes into consideration as how much priority has the criminal prosecution per particular crime for the state – fewer resources of the country should be spent on crimes with minor significance. Coming out of this, a public prosecutor should analyze the gravity and nature of crime and find out how corresponds the commencement of public prosecution for a particular crime to the public interest. Even though lots of gaps are observed in the mentioned order by the minister of justice, it contradicts the applicable criminal procedure code of Georgia and other legislative acts – it remains in force, unfortunately.[1]

1. Regulations Characterizing Equality of Arms and Adversariality

Adversarial proceedings become effective since the criminal prosecution’s commencement; from this stage: a) parties are entitled to apply the court for the petition under the rule established by law regarding obtaining or/and request of evidence; b) obtain the evidence independently - by themselves; c) actively participate in the examination of their or opposite party’s evidence; the accused becomes an individual collecting the counter-arguments of guilt, who process the ways of evidence collection by himself/herself. Evidence obtained by the accused possesses an equal power as one – obtained by the prosecution (party of charge).

A defense party is not needed whilst applying the investigator and public prosecutor for the performance of investigative actions or the acquisition of any type of document or other materials, for this purpose, they are entitled to directly apply to the court, thus being in comparatively equal conditions with prosecution (party of charge) in this regard. Especially should be mentioned the regulation of examination of the witness at the investigation stage, whilst both - the prosecution (party of charge) and the defense party are authorized to apply to the magistrate judge for a petition regarding the examination of the person (to be examined) as a witness.

The accused and his / her lawyer (under the bounds established by the Criminal Procedure Code and according to the determined rule) are entitled to introduce to the evidence of prosecution (party of charge) and receive copies of evidence and criminal case materials. Besides, the prosecution is entitled to be aware of evidence of the defense party. Actually, during the court hearing the parties are well acquainted with the evidence, upon which their position stands and they are granted with full opportunity to prepare in a qualified manner and decently resist the opposite party.

Entitling the defense party to an independent investigation does not imply at all that it is charged with the burden of proof to refuse the guilt. Coming out of adversariality form, an objective person may have an impression that the defense should prove its innocence, and that’s why the legislator has granted it such rights related to the collection of evidence, but it is not so. The accused is charged with the burden of proof of guilt and the defense party has no legal obligation to self-justification – notwithstanding the equality of the parties, the burden of proof regarding the admissibility of the prosecution’s evidence and inadmissibility of the defense’s evidence is laid on the accuser. Process of equality of arms and adversariality is intended for parties to be involved in the legal dispute,” – mentions Stefan Trechsel.

Equality of arms and adversariality are also guaranteed by that – 5 days before the pre-trial hearing parties are obliged to deliver to the court and each other complete information holding by that moment, which they are going to submit in the court as evidence (83^rd article of Criminal Procedure Code). Besides, procedural legislation assumes the possibility to introduce the defense party to information obtained by the prosecution (party of charge) at any stage of the process, which by itself obliges the defense party (on demand) to supply the prosecution (party of charge) with that information, which it intends to submit in court as evidence; moreover – if the party violates the established rule regarding information exchange and won’t deliver the opposite party information in the complete form held by that moment – this circumstance will cause the court to recognize this material as an inadmissible evidence. There is an exception from the mentioned rule, which may be counted as the supremacy of prosecution (party of charge) – whilst the prosecution (party of charge) is entitled not to assign the defense party with information acquired as a result of operative and investigational activities, but this applies only before the pre-trial hearing. There also existed exclusive rights, which were used by the defense party; in particular, not submitting one extremely important evidence to the prosecution (party of charge) that didn’t cause the recognition of that evidence as inadmissible during the hearing of a case on the merits. In such a case, the defense party was charged with a fine and liability to reimburse the procedural expenses, which was unjustified, as it was unfair to grant the right and then a fine for its application. Indeed, this gap was further fixed, but this regulation (84^th article of Criminal Procedure Code) was recognized as invalid by the legislator on the 1^st of September, 2010.

Sign characterizing adversarial model is that evidence is only information and the subject, document, material, or other object consisting of this information submitted in the court, based on which the parties confirm or refuse the facts in the court, legally examine them, fulfill duties, protect their rights and lawful interests (23^rd part of 3^rd article of Criminal Procedure Code). Thus, only the evidence, those submitted during the court proceedings and examined by direct involvement of the parties may be considered as the basis of judgment.

Adoption of the standard of proof constitutes a positive legislation novation for the achievement of adversarial proceedings. The realization of the standard of proof depends on the information, evidence obtained by parties, and the positions supported by arguments. Evaluation of all four standards is performed on the adversariality basis via evidence submitted by parties; besides, only the court is entitled to evaluate the evidence obtained and submitted by parties and recognize them as inadmissible. Thus, only the submission of evidences is not essential for the resolution of the case, the role of the court is significant herein, which ultimately adopts the resolution regarding the admissibility and relatedness of the evidence.

Indeed, discussion of the problematics of equality of arms and adversariality during the court hearing is not a subject of our research, but it can be said with certainty that realization of the mentioned principle is more observed during the hearing of a case on the merits in court, whilst the judge is impartial and indifferent observer towards all having the place during the dispute discussion. He/she is obliged to fulfill only one thing – observe that prosecution and defense parties have equal opportunities for submission, examination of evidence, and grounding their positions,[2] and when the examination of evidence and discussion of the parties are over when the accused appear with his/her final word, the court should determine whether which party submitted more cogent and authentic evidence, as a result of which the judgment should be established – acquit the accused or find him / her guilty for crime and impose the measure of punishment.

2. Circumstances Hindering the Realization of Equality of Arms and adversariality of the Parties

As fairly is referred to in legal literature – equality of arms and adversarial of the parties in criminal proceedings is held only whilst the parties (prosecution, defense) are in equal condition. Equality implies legal and actual equality. Legal equality according to applicable legislation is formal, and actual equality is problematic on that state ground (economic hardship existing in the country is implied), on which a pure adversariality form of proceedings emerged.[3]

Realization of the principle of equality of arms and adversarial principle at the investigation stage is more hindered by incorrect and it can be said the unfair interpretation of public prosecutor’s and especially investigator’s status. Both of these subjects are considered as the prosecution (party of charge). The public prosecutor not only implements the criminal prosecution but he/she is the procedural head of the investigation. At the criminal prosecution’s commencement, his / her activity is directed to collect the evidence proving the crime, whilst an investigator and operative and investigative services as well are considered next to him/her.

Thus, as we can see, two sides stand against each other at the criminal proceeding’s commencement stage; the first side is represented by the public prosecutor and an investigator (under the duties of which is clearance of crime, investigation, implementation of criminal prosecution), which are equipped with modern criminalistic scientific-technical means for crime solution and investigation, they are entitled to apply the court with the petition, applying coercive measures (summon, arrest, imprisonment, etc.) with procedural nature towards some particular subjects and the second side is presented by accused and the lawyer, which often have no money and are unable to fund even investigation.

Besides, only the prosecution’s exclusive right is to conduct a covert investigative action, monitor the bank accounts, conduct the investigative activities with urgent necessity, and implement operative and investigative activities. The prosecution (party of charge) indeed represents the state and it should have more procedural triggers, but yet all these extremely negatively reflect on the equality of the parties.

equality of arms and adversariality proceedings are hindered most by that investigator is considered as the prosecution (party of charge), even though according to the legislation he/she is not entitled to independently resolve any of the topics, which may be considered as the part of criminal prosecution. He/she is not implementing the prosecution, nor adopts the resolution about the accusation – he/she does not apply the court regarding the application of preventive measures or coercive measures, does not commence or implement the criminal prosecution, he/she is not entitled to decide the performance of investigative activities – investigator presents the party of charge and he/she is obliged to collect only the incriminating evidence about accusation, but he/she is obliged to conduct the investigation completely and objectively in all aspects (2^nd part of 37^th article of Criminal Procedure Code).

A different belief is stated in the legal literature, for example: N. Mezvrishvili considers that 37^th article of the Criminal Procedure Code charges the investigator to conduct the investigation completely and objectively in all aspects, which somehow implies that the investigator should obtain incriminating evidence and exculpatory evidence as well.[4]

We can not share the researcher’s mentioned opinion due to a simple reason the word “objectivity” firstly implies the investigator’s duty, to examine the evidence incriminating the accusation and exculpatory evidence and circumstances aggravating and mitigating the responsibility with the same diligence.

Objectivity is a just and moral requirement. It includes the impartiality of the investigator and excludes the subjectivism and biased approach (tendentiousness) by his / her side. Impartiality also implies that the investigator should not be interested in case outcome,[5] but according to applicable procedural code, the investigator is considered as the prosecution (party of charge) and accordingly, there’s no point in discussing his “objectivity”, as he/she must obtain only evidence incriminating the accusation. During the existence of such conditions, it seems impossible for the investigator to be the prosecution (party of charge) and even objective, and not be interested in case results at a time, moreover – even legislator has doubts about the investigator’s “objectivity”, whilst introduces the legal norm and is forced to charge the unauthorized official (head of investigative authority) to entrust the performance of investigative activities (search, seizure, etc.) by defense party satisfied by court ruling not to that investigator, which owns the current criminal case in the proceeding (or has doubts about its objectiveness), but choose another investigator; here rises a legit question: what kind of guarantee exists that other investigator would show up his / her “objectiveness”, as he/she also presents the prosecution still?

A paradox situation occurs during the existence of such conditions, whilst two different investigators perform the investigative activities on the same case: one who has the current case in the proceedings and the second – who should perform the investigative activities required by the defense party, but actually, both of them represent the prosecution (party of charge).

For these purposes, we consider it expedient to strictly separate the functions of prosecution and investigation; the function of prosecution should be removed from the investigator. He/she should not represent the prosecution (party of charge), but would be an independent, impartial official, who will be charged to conduct a complete and objective investigation in all aspects, he/she should examine the evidence incriminating the accusation and exculpatory evidence and circumstances aggravating and mitigating the responsibility with the same diligence.[6]

Our insight in this regard is expressed by D. Benidze, who considers that it is better to release the investigator from the prosecution function and charge him/her only to perform the impartial, complete, and object investigation of the case: “investigator – says an author – can not be considered as the prosecution (party of charge). Because of this, term “investigator” should be removed from 6^th part of 3^rd article of the Code”.[7]

Professor L. Mskhiladze completely agrees to concept regarding the investigator’s removal from the prosecution and she considers that by implementing such changes in procedural legislation, principle of equality of arms and adversarial principle in the legal proceedings will be processed in a better manner.[8]

1. Mdinaradze also has doubts about the “objectivity” of the investigative activities by other investigators required by defense party, which firstly represents the prosecution (party of charge) and constitutes the officer of the same agency as well; thus, he quite fairly considers illogical even proving that he/she (the investigator) will act against the own panel, so he supposes that any investigative activity required by defense party restricting the human rights guaranteed by constitution (search, seizure, etc.) should be performed directly by defense party (lawyer, accused).[9] This view by itself is not bad for ensuring the adversarial principle, as coming out of applicable procedural legislation, the realization of the principle of equality of arms and adversarial principle between the parties will be performed in a better manner, but still it will be best if the investigative activities will be held not by defense party but state official, investigator, as the state should be the only steady guarantor for lawfully performing these investigative activities, but provided it does not represent the prosecution (party of charge), but impartial and neutral character during the criminal legal proceedings.

It is impossible not to mention some particular negative aspects of the principle of equality of arms and adversarial principle, the realization of which will be extremely negatively expressed at the investigation stage, in particular: law does not oblige the prosecution (party of charge) to assign the exculpatory evidence already obtained. According to the 83^rd article of the Criminal Procedure Code, the prosecution (party of charge) is obliged (on demand) to assign the defense party all the exculpatory evidence holding by that time. If we interpret the law, it will be obvious that in case of the absence of the relevant claim (requirement) by the defense party, the law does not oblige the prosecution (party of charge) to assign the defense party with exculpatory evidence, that should be considered as the gap of Code.

Exclusion of the victim from the composition of prosecution (party of defense), made adversariality more formal and it negatively influenced the adversariality process, as his / her role in the criminal procedural proceedings was weakened; this can be said coming out of fact, that his / her status merely encompasses the status of a witness.

At the plea bargain’s conclusion, the defense party is not in equal condition as the prosecution, as an agreement between them depends on the public prosecutor’s will and there exist no legislative mechanisms to control the public prosecutor’s discretionary rights.

Conclusion

Such type of regulation of the investigator’s status (we have discussed above) would undoubtedly encourage a better and real implementation of the principle of equality of arms and adversarial principle in criminal procedural proceedings. Coming out of the investigator’s authority and by its means, both parties would have been granted the opportunity to receive and realize the evidence beneficial for them.

Our opinion regarding this comes out of the dictation of that imperative norm (from “d” subparagraph of the 7^th article of the Constitution of Georgia), by which criminal police and investigation belong only to special management of higher state bodies of Georgia.

Exclusion of the victim from the composition of prosecution (party of defense), made adversariality more formal and it negatively influenced the adversariality process, as his / her role in the criminal procedural proceedings was weakened; probably it would be better if the legislator would care to increase the rights of the victim.

Thus, as we were assured, legal equality of the parties does not imply their actual equality, but we still suppose that legislator should stipulate such type of regulation into criminal procedural legislation, that will put actual inequality of the parties at its minimum, that positively reflect on adversariality as well.

Bibliography

1. Akubardia, I. (2014). Equality of arms of the parties and the role of the judge in adversarial proceedings. In M. Lekveishvili (Ed.), 85^th-anniversary compilation. Publishing House “World of Lawyers”;


2. Benidze, D. (2014). Transformation of adversarial principle into the Criminal Procedure Code of Georgia. Compilation of scientific works. https://www.nplg.gov.ge;


3. Commentary on the Criminal Procedure Code of Georgia. (2015). Edited by G. Giorgadze. Tbilisi;


4. Gakhokidze, J., Mamniashvili, M. (2015). Investigator in criminal proceedings. In J. Gakhokidze, M. Mamniashvili, & I. Gabisonia (Eds.), Criminal proceedings of Georgia: General part. Publishing House “World of Lawyers”;


5. Gakhokidze, J., Gabisonia, I., Mamniashvili, M., & Moniava, P. (2018). Investigative law, Book I. Publishing House “World of Lawyers”;


6. Mdinaradze, M. (2015). Some particular issues caused by legislative changes during the render justice. Law and the World, Special issue, Conference materials, 1(2);


7. Mskhiladze, L. (2015). Adversariality in criminal proceedings (Doctoral dissertation). Georgian Technical University;


8. Sanders, A. (1994). From suspect to trial, Oxford handbook of criminology;


9. Trechsel, S. (2010). Human rights in criminal proceedings. Tbilisi;


10. Criminal Procedure Code of Georgia <https://matsne.gov.ge/ka/document/view/90034?publication=163>.

Footnotes

[1] Gakhokidze, J., Gabisonia, I., Mamniashvili, M., & Moniava, P. (2018). Investigative law, Book I, Publishing House “World of Lawyers”, pp. 213-229.

[2] Sanders, A. (1994). From suspect to trial, Oxford handbook of criminology. p. 131.

[3] Mskhiladze, L. (2015). Adversariality in criminal proceedings (Doctoral dissertation). Georgian Technical University.  p. 86.

[4] Commentary on the Criminal Procedure Code of Georgia. (2015). Edited by G. Giorgadze. Tbilisi, pp. 171-172.

[5] Akubardia, I. (2014). Equality of arms of the parties and the role of the judge in adversarial proceedings. In M. Lekveishvili (Ed.), 85th anniversary compilation. Publishing House “World of Lawyers”. p. 136.

[6] Gakhokidze, J., & Mamniashvili, M. (2015). Investigator in criminal proceedings. In J. Gakhokidze, M. Mamniashvili, & I. Gabisonia (Eds.), Criminal proceedings of Georgia: General part. Publishing House “World of Lawyers”. pp. 139-140.

[7] Benidze, D. (2014). Transformation of adversarial principle into the Criminal Procedure Code of Georgia. Compilation of scientific works.

[8] Mskhiladze, L. (2015). Adversariality in criminal proceedings (Doctoral dissertation). Georgian Technical University. pp. 92-97.

[9] Mdinaradze, M. (2015). Some particular issues caused by legislative changes during the render justice. Law and the World, Special issue, 1(2), pp. 94-96.