The Issue of Individualization in Justifying the Use of Imprisonment as a Measure of Restraint in Criminal Proceedings (in the Context of Georgia)

ანოტაცია

The European Court of Human͏ Rights has made it clear in many rulings that the rule under the European Convention on Human Rights is that jail, as a way to hold someone back, should only be used in rare situations when no less harsh choice can meet the goals of the criminal process. The law about criminal procedures in Georgia shows this idea and way. But, a look at court cases and official numbers reveals that jail is the most used way to hold someone back. This might point to an issue with how well judges explain using jail in criminal cases. The problem might be tied to gaps in the laws for criminal procedures or wrong understandings of the law by judges also to missing need for judges to clearly show why they decided on jail use.

It is important to highlight that the Constitution dedicates a separate article to the issues of detention and imprisonment. This underscores that the right to personal freedom is a constitutional right. “The Constitution protects individual freedom, which is guaranteed not only by substantive legal norms but also by procedural norms elevated to a constitutional level, emphasizing its special place within the system of fundamental rights”.^[1] In this context, Georgian courts do not infrequently use blanket justifications, which undoubtedly presents a problem.

Keywords: Imprisonment, detention, constitution, European Court, European Convention.

Introduction

Detention, which holds a special place in the Criminal Procedure Code (hereinafter CPC), represents a procedural coercive measure.^[2] Its proper selection is a crucial issue to ensure the protection of both society’s and the defendant’s rights and interests. Accordingly, the use of imprisonment has a “preventive-protective nature”.^[3] The issue of applying imprisonment as a detention measure is of critical importance, particularly when the court must decide whether to impose it. In such cases, it is essential that both the prosecutor, in their motion, and the judge, in their ruling, provide an individual justification for the unavoidable necessity of imprisonment in each specific case.

The justification for the use of imprisonment as a detention measure is a significant topic in both criminal law theory and judicial practice. Existing statistical data on the application of imprisonment further underscores the relevance of this issue. The focus of our research is to explore the importance of providing individual justification when imposing imprisonment. Furthermore, the study and analysis of both national and international practices concerning this matter are integral to our work.

The objective of this article is to review and synthesize scientific literature, national court practices, and decisions of the European Court of Human Rights (hereinafter: European Court) while seeking potential solutions to the underlying problem.

The research methodology employed includes theoretical analysis, drawing on data from scientific literature and the practical activities of Georgian and European courts. Relevant research methods used in this study are comparative-legal, logical, and statistical analysis.

1. Constitutional and European Standards for the Use of Detention as a Measure of Restraint

The relevance and importance of the issue discussed in this article as a significant problem in Georgia is highlighted by the statistical data for the years 2022-2023 published on the official website of the Supreme Court of Georgia.[4] In 2023, the form of detention requested by the prosecution in 6,494 cases was imprisonment, and in 4,479 of these cases, the court granted the request. This means that in nearly 70% of cases, the court applied the most severe detention measure. In 2022, out of the 6,864 requests for imprisonment submitted by the prosecution, the court approved 4,830, which accounts for over 70%.

The Constitution of Georgia (hereinafter referred to as the Constitution) guarantees the protection of individual freedom.[5] “This means that it protects the freedom of each individual from any unlawful or arbitrary interference by the state”.^[6] This guarantee of protection should apply when imprisonment is imposed on an individual. The mere existence of grounds for this measure should not, in itself, negate the individual’s right to freedom. “The inviolability of a person implies freedom from physical and psychological harm, that is, from both physical and mental injury”.[7] According to the Constitutional Court of Georgia, the purpose of applying a detention measure is not to prove the individual’s guilt; rather, it serves as “a means of preventing the obstruction of the proper administration of justice”.^[8] By restricting the right to freedom, an individual is deprived of the ability to exercise other rights. Therefore, any interference with this right must be subject to strict control, and the standards for such interference should be exceptionally high. The Constitution, in Article 13, refers to various legal forms of interference with the right to freedom. However, the constitutional and legal guarantees for the protection of these forms of interference differ.^[9]

As part of Georgian legislation, the recognition of the European Convention on Human Rights has made it legally binding at the national level.^[10] The term “freedom” is interpreted similarly for the Convention as it is in Article 13 of the Constitution. The concept of “inviolability of the person” can be equated with the obligation to prohibit the arbitrary deprivation of liberty.^[11]

In the case of Nikolaishvili v. Georgia, the European Court clearly outlined the elements of personal inviolability:

1. a) “Freedom” and “personal inviolability” form a unified basic right, in which personal inviolability relates to the circumstances of deprivation of liberty; b) “Personal inviolability” essentially means the adherence to legal and state principles during the deprivation of liberty; c) As a result, deprivation of liberty must be carried out based on pre-determined, verifiable rules and in good faith.^[12]

The European evidentiary standard for the application of detention measures does not significantly differ from the standard established in Georgian legislation. When applying detention measures, there must be reasonable doubt throughout their application that the individual has committed a crime. According to the European Convention on Human Rights (hereinafter: the Convention), reasonable doubt does not imply the same standard of proof required for convictions.

As explained by the European Court, the existence of a well-founded suspicion that the detained individual has committed a crime is a necessary condition for the initial lawfulness of the deprivation of liberty. However, there must also be other “relevant” and “sufficient” circumstances that justify the individual’s continued detention.^[13] The Convention explicitly states that the use of imprisonment by the court should occur only when no other measure can achieve the objectives of detention. “Under Article 5.3, the national judiciary is obliged to consider alternative measures to ensure the defendant’s appearance at trial”.^[14]

CPC provides for alternative measures to imprisonment: bail, an agreement on non-leaving and appropriate conduct, personal surety, supervision by military command over the behavior of a serviceman, and imprisonment. In addition to the detention measure, supplementary measures may also be applied to the defendant.[15]

2. The Objectives and Grounds for the Use of Imprisonment as a Measure of Restraint

CPC establishes the same objectives and grounds for imprisonment as those generally defined for measures of restraint. The objectives of measures of restraint are ensuring the defendant’s appearance in court, preventing further criminal conduct by the defendant, and securing the enforcement of the judgment.[16] The legislator leaves it to the court to determine the extent of the threat presented. If the threat is of a high degree, imprisonment may be applied; otherwise, it is mandatory to impose a less severe measure.

The European Court has repeatedly stated that the use of each objective “in abstracto” for justifying a measure of restraint is inadmissible and must be based on specific factual grounds. The court has clarified that such grounds cannot be “general and abstract”. CPC outlines three specific grounds for measures of restraint: a well-founded suspicion that the defendant will flee or fail to appear in court will destroy important information related to the case, or will commit a new crime.[17] The use of any particular type of measure of restraint requires the existence of at least one of the procedural grounds listed above.

2.1. The Risk of the Defendant Committing a New Crime as a Ground for Imprisonment

Any decision in which the court cites the existence of a threat without any supporting evidence and uses imprisonment solely on this basis is inconsistent with the Constitution, the CPC, and international standards. “The prosecuting body must prove the actual existence of a specific, objectively identifiable threat”. According to the European Court, there must be specific facts indicating the risk of committing a new crime. Although these circumstances are important, each of them, taken individually, remains an insufficient basis for a well-founded suspicion that the individual may commit a new crime.^[18] The argument that a violent crime is an “infallible indicator” of the likelihood of committing a new offense does not align with the approach of the European Court, according to which reference to the nature of the alleged offense is abstract and does not justify the threat of committing a new crime or interfering with justice as grounds for imprisonment.[19]

The national court, to some extent, considers that, on the one hand, the defendant and, on the other hand, the victim and other individuals, such as family members and partners, represent opposing parties. Due to this, the court may determine that if the defendant remains at liberty, they may continue engaging in criminal activity.[20]

2.2. The Risk of the Defendant Fleeing as a Ground for Imprisonment

One of the grounds for the application of a measure of restraint is a well-founded suspicion that the defendant will flee or fail to appear in court. To determine the risk of flight, it is important to consider all the circumstances of the specific case and the nature of the expected punishment. Furthermore, it must be assessed whether “the severity of the punishment could create a desire to flee, as well as the existence of objective circumstances that could lead to the defendant’s such desire being realized”.^[21]

We will examine the circumstances that pose a risk of flight within the context of both national and European law, including the following:^[22]

1. In justifying the risk of the defendant’s failure to appear in court, the personal characteristics of the defendant must be taken into account.^[23] Proper attention must be given to the defendant’s voluntary appearance before law enforcement authorities, as well as to all other factual circumstances and past experiences that either support or exclude the reality of such a risk;


2. As a rule, the common courts of Georgia align with the European Court’s practice, which holds that the severity of the charge and the harshness of the punishment are relevant but insufficient factors, and taken alone, they do not justify the application of imprisonment. In one case, the court explained that the fact that the expected punishment is severe and that the defendant is charged with committing serious or particularly serious crimes does not, on its own, constitute a valid justification for the risk of flight;^[24]


3. In the case, Sopin v. Russia (Sopin v. Russia, [2013], ECtHR, no. 57319/10), the European Court assessed the factors that the applicant held a passport, had relatives living permanently outside Russia, frequently traveled, and had significant financial resources, as examples of the existence of a real risk of flight;


4. The European Court considers a person’s connections to the state where they are detained and their international contacts as important factors. Additionally, the absence of employment and family cannot be assessed as a threat of committing a new crime;[25]


5. The European Court places significant emphasis on the defendant’s characteristics, including their criminal record. It also focuses on the defendant’s character and moral standing. The risk of flight should be assessed in light of all circumstances that connect the individual to the country conducting the criminal prosecution.[26]                                                                         
   
   2.3. The Risk of Destruction of Evidence as a Ground for Imprisonment

One of the grounds for applying a measure of restraint is a well-founded suspicion that the defendant will destroy evidence crucial to the case. The risk of the defendant destroying evidence and/or obstructing the collection of evidence cannot be considered relevant at every stage of the proceedings. The specific factual circumstances of the case must be taken into account.^[27] It is important for the prosecution to substantiate, based on specific data, the defendant’s ability to influence the quality of the administration of justice. National courts often generally refer to the fact that a number of investigative actions still need to be carried out in the case, such as questioning witnesses and others. Justifying imprisonment based on the necessity of conducting investigative actions is not acceptable according to European Court practice. In the case Miminoshvili v. Russia (Miminoshvili v. Russia, [2011], ECtHR no. 20197/03 §86), the European Court clarified that imprisonment to ensure investigative actions is inadmissible, as conducting investigative actions typically does not require the defendant’s immediate detention.^[28]

If a person is accused of committing a crime related to the destruction of evidence, document forgery, falsification of materials, and other similar actions, there is a high likelihood of evidence destruction or an attempt to destroy evidence. For example, cases of fraud and document forgery may involve such risks.^[29]

The European Court did not find a violation in the case Kolevi v. Bulgaria (28.07.2005). The applicant committed fraud, which involved the creation of false identity documents and other paperwork, which he presented to the bank, thereby withdrawing a large sum of money.

The risk of evidence destruction or obstruction of evidence collection may exist if the defendant has certain connections with the participants in the proceedings. As the European Court explains, the defendant’s professional status is relevant to justifying the risk of influencing witnesses. However, at the same time, the court questions the relevance of this argument when the defendant has been dismissed from their position.[30] In cases involving allegations of official misconduct, when deciding on the imposition of measures of restraint, the prosecution should consider that the destruction of evidence could potentially be prevented by removing the defendant from their position. The court believes that, in such instances, it is important to assess the progress of the investigation and court proceedings, the defendant’s character, their behavior before and after arrest, as well as specific actions that may indicate an intent to destroy or falsify evidence or influence witnesses.

3. The Importance of Providing the Court with Information Regarding the Defendant’s Circumstances

Under the current version of the CPC of Georgia, the court is required to establish the defendant’s identity at the first appearance hearing. However, there is no strict obligation in the law for the court to determine the individual circumstances of the defendant at this stage.[31] The legislator should explicitly require the judge to determine the defendant’s personal and individual circumstances during the proceedings. While the legislator acknowledges that the judge must take into account the defendant’s personal data when deciding on the type of restrictive measure to apply, as practice and statistics show, this provision alone is insufficient.

The legislator does not obligate the court to provide a specific justification for the threats when applying imprisonment, which contradicts the approaches of the European Court of Human Rights. We believe that the obligation to individually justify the high degree of threat should be stipulated at the legislative level. Moreover, the court should individually explain why less severe measures of restraint cannot achieve the procedural objectives.[32]

The current version of the Code stipulates that when deciding on the application of a measure of restraint and its specific type, the “judge takes into account” the defendant’s personality, occupation, age, health, compensation for property damage, etc.[33]

This provision does not establish the judge’s obligation to consider these circumstances, which leads to the misinterpretation of the article in practice. We believe that the law should directly obligate the judge to take individual circumstances into account when deciding on imprisonment.

The European Court explains that the court must prioritize the consideration of alternative measures of restraint. However, under Georgian legislation, this obligation is not explicitly imposed on the court. This issue is particularly important, and if the criminal procedural law does not impose a direct obligation on the judge, the quasi-judicial practice will continue.

4. The Significance of the Defendant’s Exercise of the Right to Defense in the Individualized Justification of Imprisonment

In Georgia’s criminal procedural legislation, the principle of adversariality is upheld, meaning that only the parties involved in the case have the right to collect evidence. The court cannot collect evidence or conduct investigations. A defendant in pre-trial detention is physically unable to conduct a thorough investigation into their case. We believe that if the court decides to impose detention, the involvement of a defense attorney should become mandatory. Only if the detained defendant has a lawyer will they be able to exercise their right to defense effectively.

5. The Significance of the Prosecutor Submitting Information about the Defendant’s Circumstances to the Court

According to the CPC, when presenting a motion for the application of a measure of restraint, the prosecutor is obligated to justify the appropriateness of the requested measure and to demonstrate the impracticality of using other, less severe measures of restraint.[34] This statement does not specify individual justification, which is often interpreted by prosecutors and judges as sufficient to provide a general rationale. This leads to formulaic court decisions regarding the imposition of imprisonment. We believe that both prosecutors and courts should approach the issue of individuality with greater consideration.

In discussing this issue, we would highlight the principle of objectivity, under which the prosecution is obligated to assess the defendant’s actions honestly and objectively.[35] The activities of the prosecution should be based on the highest standards of legal ethics.[36]

Since the legislation does not obligate the prosecution to present individual circumstances of the defendant to the court, prosecutors typically do not focus on such circumstances. If the defendant does not speak about their circumstances, the court is often left in a complete informational vacuum in most cases.

6. The Issue of Appealing the Court’s Ruling on the Imposition of Imprisonment in Legislation and Practice

The criminal procedural legislation provides for a one-time opportunity to appeal the first-instance court’s ruling on imprisonment to the appellate court’s investigative chamber.[37] However, it is important to note that the law establishes a precondition for the admissibility of such an appeal, which in practice effectively means that there is no existing case law on the matter of changing imprisonment. It is crucial that the defense is allowed to genuinely challenge the decision on the imposition of imprisonment. For this to be possible, the appellate court should accept the case for review without any admissibility criteria.[38] The current provision effectively hinders the actual functioning of the appeal mechanism, as the admissibility criterion explicitly requires the presence of “new circumstances” in the case. This requirement is practically impossible to meet, as in most cases, the defense will not be able to gather information about new circumstances within 24 hours.

According to the Criminal Procedure Code, an appeal against a detention order must specify which requirements were violated during the issuance of the contested decision and how the provisions of the contested decision were incorrect. The term “material importance” set by the legislator in the article essentially determines the fate of the case and the current practice in Georgia. We believe that the parties should have the ability to challenge a detention order in any case.

Recommendations

For the court to take the defendant’s circumstances into account as fully as possible when deciding on the application of measures of restraint, we believe that legislative amendments to the Criminal Procedure Code are necessary. Specifically:

1. It is recommended that Article 197, paragraph 1 of the Criminal Procedure Code be amended to include the following point “a”: “[The judge] will examine the defendant’s activities, health, family and property status, compensation for any property damage, and other individual circumstances”;


2. It is recommended that the word “considers” in Article 198, paragraph 5 of the Criminal Procedure Code be replaced with the phrase “is obliged to consider”. Accordingly, paragraph 5 should be amended as follows: “When deciding on the application of a measure of restraint and its specific form, the court is obliged to consider the defendant’s personality, activities, age, health, family and property status, compensation for property damage, any prior violations of previous measures of restraint, and other individual circumstances”;


3. It is important that Article 199 of the Criminal Procedure Code be supplemented with a new paragraph 2.1 as follows: “The court is obliged to prioritize the consideration of non-custodial measures of restraint and, where necessary, the use of additional measures alongside them”;


4. Concerning mandatory defense, it is recommended that the amendment be reflected in Article 45 of the Criminal Procedure Code, with the current subparagraph “m” being replaced by subparagraph “l”, and subparagraph “l” being amended as follows: “If a ruling has been made on the use of detention or detention-secured bail”;


5. It is recommended that paragraph 3 of Article 198 of the Criminal Procedure Code be amended as follows: “When presenting a motion for the application of a measure of restraint, the prosecutor is obliged to individually justify the appropriateness of the requested measure and the inadmissibility of using a less severe measure of restraint”;


6. It is recommended that Article 198 of the Criminal Procedure Code be supplemented with a new paragraph 3.1 as follows: “In the case of a request for detention as a measure of restraint, the prosecutor is obliged to present a report to the court regarding the individual circumstances of the defendant”;


7. It is recommended that Article 206 of the Criminal Procedure Code be supplemented with a new paragraph 8.1 as follows: “The party is entitled to file a motion with the magistrate judge at the location of the investigation for the change or cancellation of the detention measure when detention is applied as a measure of restraint”;


8. The possibility to appeal a detention order should be available to the party in all cases. Therefore, Article 207 of the Criminal Procedure Code should be amended to include the following new paragraph 4, first subparagraph: “The judge of the appellate court’s investigative panel shall consider the appeal regarding the application, modification, or cancellation of detention individually, within no more than 72 hours from its submission. The judge shall consider the appeal in a hearing, in accordance with the procedures established by this Code”.

Conclusion

This article addresses the challenges associated with the individual justification of detention as a measure of restraint within Georgian judicial practice. It further examines the relevant case law of the European Court of Human Rights, highlighting the criteria it deems fair when determining the use of detention. The article underscores the necessity for each detention decision to be based on a real, individualized assessment of the circumstances. The use of detention as a measure of restraint cannot be justified by abstract threats alone. If the inevitability of detention is not individually substantiated, the court must resort to other, less severe measures of restraint.

The recommendations put forward in this article aim to facilitate legislative amendments that would strengthen the fairness and transparency of judicial practices. We believe these proposed changes will contribute to the development of a more just and democratic legal system in Georgia and support the country’s European future.

Bibliography

Scientific Literature:

1. Authors’ Group. (2012). Criminal Procedure of Georgia, Private Part, Tbilisi;


2. Authors’ Group. (2015). G. Giorgadze (ed.). Commentary on the Criminal Procedure Code of Georgia, Tbilisi;


3. Commentary on the Constitution of Georgia. Part Two. (2013). Under Paata Turava's editorship, Publisher: “Petiti” LLC, Tbilisi;


4. Tughushi, T., Burjanadze, G., Mshvenieradze, G., Gotsiridze, G., Menabde, V. (2013). Human Rights and the Practice of the Constitutional Court of Georgia, Tbilisi;


5. Korkelia, K., Kurdadze, I. (2004). International Human Rights Law according to the European Convention on Human Rights, Tbilisi;


6. Lichi, F., Levis-Antoni, S., Străisteanu, D., et. al. (2009). The Right to Liberty and Security under the European Convention on Human Rights (Article 5), Tbilisi;


7. Mchedlidze, N. (2017). Standards of Applying the European Convention on Human Rights by Georgian Common Courts, Tbilisi;


8. Georgian Young Lawyers’ Association (GYLA). (2012). Deficiencies and Recommendations in Criminal Justice, Tbilisi;


9. Papashvili, L. (2010). Legal Grounds for the Use of Detention and Imprisonment in Criminal Procedure, Collection of Articles, Tbilisi.

Normative Material:

1. Georgian Criminal Procedure Code, 09/10/2009 (as of December 1, 2024);


2. Constitution of Georgia, 24/08/1995 (as of December 1, 2024);


3. European Convention on Human Rights, 4 November 1950;


4. Law of Georgia on Legal Aid, 19/06/2007 (as of December 1, 2024).

National Court Decisions:

1. Decision of the Constitutional Court of Georgia, April 6, 2009, No. 2/1/415, II-1;


2. Official Record of the Constitutional Court of Georgia, June 26, 2015, No. 646, II-40;


3. Ruling of the Tbilisi City Court, May 5, 2014, regarding the first appearance of the accused and the application of preventive measures, Case No. 10a/3042-14;


4. Ruling of the Tbilisi City Court, July 22, 2013, on the change of preventive measure, Case No. 1/953-13, p. 2;


5. Ruling of the Tbilisi Court of Appeal, December 28, 2017, on the inadmissibility of the appeal, Case No. N1გ/1483-17;


6. Ruling of the Tbilisi Court of Appeal, April 6, 2017, Case No. N1გ/465;


7. Ruling of the Tbilisi City Court, January 12, 2024, regarding the application of preventive measures (Case No. N10a/110);


8. Ruling of the Tbilisi City Court, March 6, 2024, regarding the application of preventive measures (Case No. N10a/1388);


9. Ruling of the Tbilisi City Court, February 22, 2024, regarding the application of preventive measures (Case No. N10a/973);


10. Ruling of the Tbilisi City Court, February 27, 2024, regarding the application of preventive measures (Case No. N10a/1101-24);


11. Ruling of the Tbilisi City Court, February 20, 2024, regarding the application of preventive measures (Case No. N10a/910);


12. Ruling of the Tbilisi City Court, October 18, 2024, regarding the application of preventive measures (Case No. N10a/6165).

European Court of Human Rights decisions:

1. Yevgeniy Gusev v. Russia (2013), ECtHR, no. 28020/05, §87;


2. Aleksandr Makarov v. Russia (2009), ECtHR, no. 15217/07, §129;


3. Aleksandr Makarov v. Russia (2009), ECtHR, no. 15217/07, §134;


4. Bykov v. Russia (2009), ECtHR, no. 4378/02, §64;


5. Lakatoš and Others v. Serbia (2014), ECtHR, no. 3363/08 §97;


6. B. v. Hungary (2013), ECtHR, no. 33292/09 § 23-26;


7. NikolaiSvili v. Georgia (2009), ECtHR, no. 37048/04 §52-53;


8. Mikhalchuk v. Russia (2015), ECtHR, no. 33803/04, §53-59;


9. Ahmet Ozkan and other v. Turkey (2004), ECtHR, no. 21689/93, §397-398;


10. Belchev v. Bulgaria (2004), ECtHR, no. 39270/98 §82;


11. Kostadinov v. Bulgaria (2008), ECtHR, no. 55712/00 §78-80;


12. Becciev v. Republic of Moldova (2005), ECtHR no. 9190/03, §58;


13. v. Switzerland (1993), ECtHR, no. 14379/88 §33.

Foreign Literature:

1. CCPR/C/GC/35, General Comment No. 35 – Article 9 (Liberty and Security of Person), 28.10.2014, I-3, I-5, I-6;


2. UN Guidelines for Prosecutors, 1990;


3. European Guidelines on Prosecutorial Ethics, 2018;


4. Guide on Article 5 of the European Convention on Human Rights, Updated on 30 April 2018, pg. 36, § 203.

Electronic Sources:

Statistical data posted on the website of the Supreme Court of Georgia (last accessed on December 1, 2024). <https://www.supremecourt.ge/uploads/files/1/statistics/sisxli2023.pdf>.

Footnotes

[1] Decision of the Constitutional Court of Georgia of April 6, 2009, No. 2/1/415, II-1.

[2] Authors’ Group. (2012). Criminal Procedure of Georgia, Private Part, Tbilisi, p. 215.

[3] Authors’ Group. (2015). G. Giorgadze (ed.). Commentary on the Criminal Procedure Code of Georgia, Tbilisi, p. 558.

[4] Statistical data posted on the website of the Supreme Court of Georgia (last accessed on December 1, 2024). <https://www.supremecourt.ge/uploads/files/1/statistics/sisxli2023.pdf>.

[5] Article 13 of the Constitution of Georgia, Article 18 of the old version of the Constitution.

[6] Commentary on the Constitution of Georgia. Part Two. (2013). Under Paata Turava's editorship, Publisher: “Petiti” LLC, Tbilisi, p. 130.

[7] CCPR/C/GC/35, General Comment No35 – Article 9 (Liberty and Security of Person), 28.10.2014, I-3, I-5, I-6.

[8] Organizational Record No. 646 of the Constitutional Court of Georgia, June 26, 2015, II-40.

[9] Tugushi, T., Burjanadze, G., Mshvenieradze, G., Gotsiridze, G., Menabde, V. (2013). Human Rights and the Practice of the Constitutional Court of Georgia, Tbilisi, pp. 106, 109-110.

[10] Korkelia, K., Kurdadze, I. (2004). International Human Rights Law According to the European Convention on Human Rights, Tbilisi, p. 42.

[11] Lichi, F., Levis-Antony, S., Straisteanu, D., et. al. (2009). The Right to Liberty and Security According to the European Convention on Human Rights (Article 5), Tbilisi, p. 13.

[12] Commentary on the Constitution of Georgia. Part Two. (2013).  Under Paata Turava's editorship, Publisher “Petiti” LLC, Tbilisi, p. 132; see also: Nikolaishvili v. Georgia (2009). ECtHR, no. 37048/04 §52-53.

[13] See: Stögmüller v. Austria, ECtHR, application no. 1602/62, Para. 4. November 10, 1969; Sulaoja v. Estonia, ECtHR, application no. 55939/00, Para. 64, February 15, 2005.

[14] McKhedlidze, N., Standards of the Use of the European Convention on Human Rights by the Common Courts of Georgia, Tbilisi, 2017, p. 50. In relation to this, the court discusses the case Puncelt v. Czech Republic (2000), ECtHR, no. 31315/96.

[15] Criminal Procedure Code of Georgia - Articles 199-205, 199 Part 2.

[16] Ibid. Article 198, Part 1.

[17] Ibid. Article 198, Part 2; a relevant case on this matter is: Boicenco v. Moldova (2006), ECtHR, §§142-143.

[18] Georgian Young Lawyers’ Association (GYLA). (2012). Deficiencies and Recommendations in Criminal Justice, Tbilisi, p. 50; a relevant case on this matter is: Aleksandr Makarov v. Russia (2009), ECtHR, no. 15217/07, §134.

[19] Relevant European Court decisions on this matter include: Bykov v. Russia (2009), ECtHR, no. 4378/02, §64; Lakatoš and Others v. Serbia (2014), ECtHR, no. 3363/08 §97; A. B. v. Hungary (2013), ECtHR, no. 33292/09 §§23-26.

[20] Mchedlidze, N. (2017). Standards of Application of the European Convention on Human Rights by the Common Courts of Georgia, Tbilisi, p. 69; a relevant case on this matter is: Tbilisi City Court’s ruling of May 5, 2014, on the first presentation of the defendant in court and the application of preventive measures, case no. 10a/3042-14.

[21] Georgian Young Lawyers’ Association (GYLA). (2012). Deficiencies and Recommendations in Criminal Justice, Tbilisi, p. 49.

[22] A relevant case on this matter are: Yagci and Sargin v. Turkey (1995), ECtHR, no.16419/90, 16426/90 and Letellier v. France (1991), ECtHR, no. 12369/86. Papashvili, L. (2010). Legal Grounds for the Use of Detention and Imprisonment in Criminal Procedure, Collection of Articles. Tbilisi, pp. 176-177.

[23] Georgian Young Lawyers’ Association (GYLA). (2012). Deficiencies and Recommendations in Criminal Justice, Tbilisi, pp. 48-49.

[24] Mikhalchuk v. Russia (2015), ECtHR, no. 33803/04, §§53-59; Ahmet Ozkan and Others v. Turkey (2004), ECtHR, no. 21689/93, §§397-398; Belchev v. Bulgaria (2004), ECtHR, no. 39270/98, §82; Kostadinov v. Bulgaria (2008), ECtHR, no. 55712/00, §§78-80; Tbilisi City Court Decision of 22 July 2013 on the Change of the Measure of Restraint, Case no. 1/953-13, p. 2.

[25] Guide on Article 5 of the European Convention on Human Rights. Updated on 30 April (2018), p. 36, §203, Regarding this issue, it is interesting to consider the reasoning of the European Court of Human Rights in the case of W. v. Switzerland (1993) ECtHR, no. 14379/88.

[26] Mchedlidze, N. (2017). Standards for the Application of the European Convention on Human Rights by Georgian Common Courts, Tbilisi, p. 58; see also, e.g.: Becciev v. Republic of Moldova (2005), ECtHR no. 9190/03, §58; W. v. Switzerland (1993), ECtHR, no. 14379/88 §33.

[27] A relevant case on this matter is: Letellier v. France, 26 June 1991; Yagci and Sargin v. Turkey, 8 June 1995. Papashvili, L. (2010). Legal Basis for the Use of Arrest and Detention in Criminal Proceedings, Collection of Articles, Tbilisi, p. 176.

[28] Mchedlidze, N. (2017). Standards of Application of the European Convention on Human Rights by the Common Courts of Georgia, Tbilisi, p. 83.

[29] In the case W. v. Switzerland, January 26, 1993.

[30] A relevant decision in this context is also the European Court’s ruling in the case Contrada v. Italy, Case no. 92/1997/876/1088, August 24, 1998, where no violation of Article 5(3) was found.

[31] Criminal Procedure Code of Georgia - Article 197.

[32] See: Rulings of the Tbilisi City Court, January 12, 2024, regarding the application of preventive measures (r.a.p.m.), Case no. N10a/110; March 6, 2024 (r.a.p.m.), Case no. N10a/1388; February 22, 2024 (r.a.p.m.), Case No. N10a/973; February 27, 2024, (r.a.p.m.), Case No. N10a/1101-24; February 20, 2024 (r.a.p.m.), Case No. N10a/910; October 18, 2024, (r.a.p.m), Case No. N10a/6165.

[33] Criminal Procedure Code of Georgia - Article 198, Part 5.

[34] Criminal Procedure Code of Georgia - Article 198, Part 3.

[35] This requirement is emphasized in the UN principles, UN Guidelines for Prosecutors (1990), p. 34.

[36] European Guidelines on Prosecutorial Ethics (2018).

[37] Criminal Procedure Code of Georgia - Article 206, Part 8.

[38] Decision of the Tbilisi Court of Appeal of December 28, 2017, regarding the inadmissibility of the appeal, case No. N1g/1483-17; Decision of the Tbilisi Court of Appeal of April 6, 2017, in case No. N1g/465.