At the plenary session of the Parliament of Georgia, the Chairman of the Human Rights and Civil Integration Committee, Eka Beselia, talked about the changes in the Code of Imprisonment. "We have introduced innovative norms. I would especially like to underline the right which will be granted to the Public Defender’s Office of Georgia’s Special Prevention Mechanism members from September 2016. For the first time, they will be allowed to take photos of prisoners who state that they have physical or traces of any kinds of injuries. In addition, Public Defender representatives will be allowed to take photos of rooms of common usage in the prisons which were previously shut for the public," said Ms Beselia.FactCheck
took interest in the accuracy of this statement.
On 1 May 2015, the Parliament of Georgia adopted the Code of Imprisonment. With this regulation, the Public Defender of Georgia and its Special Prevention Mechanism members were granted the right to take photos in penitentiary facilities from 1 September 2016. The Public Defender of the Czech Republic, Anna Šabatová, also commented upon this issue and assessed this as an important step towards the protection of the fundamental rights and liberties of prisoners. The Public Defender of the Czech Republic also expressed her concern that the right to produce photographic documentation, an important instrument for the protection of the rights of prisoners around the world, had not previously been regulated by the law.
Granting the Public Defender’s Office the right to take photos of prisoners and the accused in a penitentiary facility is indeed an unprecedented event in the Georgian reality. The Public Defender especially underlined (in his 2013 and 2014 reports to the Parliament of Georgia) the importance and necessity of this right and proposed that the Parliament grant the Special Prevention Mechanism members the right to take photos in penitentiary facilities in order to identify and end the cases of torture and inhuman treatment within. According to the Public Defender’s explanation, the effectiveness of the investigation greatly relies upon finding relevant evidence at the beginning of the process. In addition, the right to take photos in prisons is advisable in light of the fact that placing a prisoner in poor or otherwise difficult conditions can sometimes be regarded as inhuman or degrading treatment. According to the Public Defender’s belief, the ability to take photos will facilitate the monitoring process’s proper functioning as well as increasing the penitentiary system’s transparency and an overall public awareness.
The 2013 Public Defender’s report features the 2004 Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the so-called Istanbul Protocol. According to the report, it is necessary to document physical injuries of individuals who claim that they have been the victims of torture or inhuman treatment by means of a colour photo. In addition, the building (both from the outside as well as the inside) where the supposed torture was alleged to have taken place and all of the evidence found in this building must also be documented. It is important to take photos, even with an ordinary camera, as fast as possible as some traces of evidence or other proof has the chance to quickly dissipate or disappear. However, as soon as a professional camera is available, photos must be taken using this camera as well. The Protocol also determines other technical details which must be heeded whilst taking a photo. For example, the camera must have the option of automatically recording the date and time and so on (p. 53).FactCheck
attempted to find out whether or not the Public Defender’s Office used to give recommendations on granting the right to take photos before 2013. To this end, we looked into the Public Defender’s Office annual reports. In 2006, the Public Defender’s Office addressed the Ministry of Justice of Georgia with a recommendation to grant public commissions the right to take photos and make audio recordings, if necessary. In addition, information contained in a report from the second part of 2008 indicates that a bill was formulated to grant the Public Defender the functions of a National Prevention Mechanism which resulted in an agreement being reached with the Public Defender about all important issues concerning the usage of audio, photo, video or any other technical equipment in penitentiary facilities by National Prevention Mechanism members. The Ministry of Justice of Georgia refused to put this norm into the bill but did not provide a reason for this decision.FactCheck
also took interest in what the right to take photos includes, how it can be exercised and how effective it can be in preventing crime. Part 7 of Article 60 of the Code of Imprisonment says that: "The Public Defender of Georgia or any other person authorised by the Public Defender has a right to take photos of prisoners or the places of their residence, leisure facilities, medical facilities, cafeterias, common showers and toilets as well as meeting places situated in a penitentiary facility with the consent of the prisoners or the accused."
It should also be noted that a special rule, determining the exact authorities of the Public Defender and National Prevention Mechanism members, has not yet been adopted. According to Article 125 of the Code of Imprisonment, these special rules must be formulated by the Minister of Corrections of Georgia together with the Public Defender of Georgia no later than 1 August 2016.
The Public Defender of Georgia and National Prevention Mechanism members did not have the legal right to take photos of prisoners or their places of residence in penitentiary facilities until now. Despite the fact that granting such authorities was discussed in 2005 to 2008, these were not followed by any specific results. After 2013, the Public Defender of Georgia actively called upon the Parliament of Georgia to make changes in the legislation in this regard which, ultimately, produced results with the Parliament adopting the right to take photos in penitentiary facilities on 1 May 2015.
Exercising the right to take photos in a penitentiary facility is indeed an unprecedented event in Georgia. However, how compatible the practice of this right will be with international standards is so far unknown as the rules for determining the full authority of the Public Defender in this regard and its implementation have not yet been determined. The law obligates the Minister of Corrections of Georgia together with the Public Defender of Georgia to formulate these rules before 1 August 2016 which has postponed the actual enactment of the rules until 1 September 2016.FactCheck will return to this issue in the future as well. At this point, however, we concluded that Eka Beselia’s statement is TRUE.