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According to the statement of the Parliamentary Majority MP, Eka Beselia: "The Public Defender presented a highly critical report to the Parliament of Georgia; however, he did not mention a single fact of torture in prisons. Such a situation was first recorded in 2013."

FactCheck

took interest in the accuracy of the aforementioned statement.

According to the 2013 Report of the Public Defender of Georgia, many positive changes were implemented in the penitentiary system during the period detailed in the report as a result of which occurrences of torture and violent, inhuman or degrading treatment have ceased being systematic problems. Furthermore, not even a single incident of torture was recorded during the reporting period and only two examples of inappropriate treatment were discovered.

We addressed the Public Defender’s administration in order to specify what was meant by the Public Defender in terms of torture. Specifically, it is important to determine if this refers only to cases confirmed by investigation or any type of statement or complaint. As the Public Defender’s administration’s response revealed, not only were there no cases of torture confirmed by investigation in 2013, there were also no complaints or statements about incidents of torture recorded.

As for the situation in penitentiary facilities in 2014, despite the fact that the Public Defender’s report indicates that the practice of torture and inappropriate treatment does not have a systematic character in the penitentiary system and no cases have been qualified as torture by the Public Defender, unlike in 2013, the report does note categorically that no cases of torture were recorded in the system.

Of further note is that compared to 2013, the number of complaints about inappropriate treatment towards prisoners increased in 2014. In addition, in 2014, due to the functioning of the National Prevention Mechanism, it became clear that protecting victims of inappropriate behaviour from repeated pressure or threats is a serious problem. In the reporting period for 2014, there were cases when prisoners informed representatives of the Public Defender of inappropriate behaviour from Penitentiary Department employees but these accusations were denied by the law enforcement structure representatives.

According to Eka Beselia’s statement, 2013 was the first year when cases of torture did not feature in the Public Defender’s reform. In order to verify this, FactCheck

studied the Public Defender’s reports to the Parliament of Georgia from 2004 to 2014.

Our study found the Public Defender talked about cases of torture, inhuman or degrading behaviour in each of his reports. In addition, the reports indicated the existence of factual circumstances of torture and called upon the Prosecutor’s Office to start an investigation. However, there is not a single case when an incidence of torture was confirmed by an investigation within the reporting period.

When discussing specific cases in the reports of 2013 and 2014, the Public Defender commented upon inappropriate behaviour in general. According to the 2014 report, the term inappropriate behaviour envisages Articles 1441 (torture), 1443 (inhuman and degrading behaviour), 332 (abuse of official authority) and 333 (exceeding official authority) of the Criminal Code of Georgia. Hence, the 2013 and 2014 reports (especially 2014) do not make it clear whether or not the cases of inappropriate behaviour in the reporting period include torture as well. It should also be noted that according to the 2015 Report

of the European Committee for the Prevention of Torture (CPT), which describes the situation in the Georgian penitentiary facilities in 2014, there is no mention of incidences of torture.

According to the explanation of the European Court of Human Rights (case of Ireland v. UK),

the difference between torture and other forms of inhuman treatment is in the intensity and severity of pain inflicted on a person. In addition, during torture there must be some kind of aim (obtaining information, punishing or making the victim afraid). The violence and intensity of the pain inflicted during inhuman treatment can be measured by factors such as:  length of time, physical and mental consequences and the victim’s gender, age and health conditions as well as the nature of the methods used. Hence, it is very hard to differentiate between the cases of torture and other inhuman behaviour which is the reason why all cases must be studied separately.

FactCheck

looked at the cases considered as inappropriate behaviour in the 2013 and 2014 reports of the Public Defender of Georgia of which we shall focus upon only a few.

In April 2013, a prisoner was transferred from Penitentiary Facility N6 to N7 and put in cell N7 against his will. He was physically abused numerous times and stated that he would "die there." According to the prisoner, the facility’s director threatened him personally that he would “ruin his life.” Because of this, within a situation of insecurity, the prisoner inflicted injuries to himself several times, including to his throat. He was even ready to commit suicide. The Public Defender assessed this as inappropriate treatment whilst the Prosecutor’s Office commenced proceeding based upon Article 333 (exceeding official authority) of the Criminal Code of Georgia.

In terms of inappropriate treatment, the 2014 report’s information turned out to be much worse than that of 2013. On 12 November 2014, representatives of the Public Defender’s Office visited Penitentiary Facility N8 where they overheard screams and fighting. At the scene, they discovered the facility’s deputy directors, head of the Legal Regime Section officers and controllers on duty. Blood stains were seen in the corridor and the shower room. The facility’s employees appeared confused and were aggressive towards the representatives of the Public Defender’s Office. After categorical demands and serious resistance, they were able to access the showers where they found two prisoners in wet clothes lying on the floor with their hands and legs bound and tied together with a chain. Both of the men had signs of physical abuse, multiple injuries and open wounds. The representatives demanded a report of the injuries. Their account makes it clear that the facility’s administration pressured the doctors who were compiling the report not to list all of the injuries. According to the administration’s statement, the prisoners were inebriated (under the influence of an alcoholic drink, Braga) and sustained their injuries from falling. They also said that the prisoners were locked in the showers so that they would not dirty their cells.

Despite several public demands of the Public Defender to commence proceeding using a more specific Article (Article 1443

of the Criminal Code of Georgia, inhuman or degrading treatment), the investigation started based upon Point 3 of Article 333 of the Criminal Code of Georgia (exceeding official authority). In addition, the authority of the officials in question was not terminated during the investigation and the prisoners were not transferred to another penitentiary facility. The Report of the European Committee for the Prevention of Torture puts special focus upon this fact.

In terms of results, another case revealed in the 2014 reporting period is also quite important. On 22 January 2014, representatives of the Public Defender’s Office met prisoners in isolation in Penitentiary Facility N6 and inspected their living conditions. After a conversation and inspection, it was revealed that they were located on the ground floor which was actually half underground. The walls of the cell were newly painted and damp. The cell had a single window, 70x70 centimetres in size, with bars installed in three rows. In addition, a wall had been erected in front of the cell which meant that almost no sunlight entered the cell. The door to the cell’s toilet did not completely close (only by half). The toilet did not have a water tank and ventilation was not working (it had never been turned on according to the prisoners). The prisoners had a lack of fresh air which is why the window (which had a broken pane) was open all the time and which made the temperature in the cell quite low. According to the prisoners, they had not been able to take a walk outside the cell since they were put in the facility (28 November 2013). All of the aforementioned negatively affected their psychological condition which manifested itself in problems with sleep, anxiety and being easily irritated. Some of them had self-inflicted injuries which they explained from having been put in poor conditions. The administration stated security as a reason for their placement.

According to the Public Defender’s reports, the problem of investigating incidences of inappropriate treatment of prisoners has been in place since 2004. In his 2013 report, the Public Defender of Georgia pointed out clearly that by its nature, Article 3 of the European Convention on Human Rights not only obligates a country to refrain from torture, inhuman and degrading treatment but also to effectively investigate such cases. The investigation of inappropriate treatment must aim at revealing and punishing those responsible as otherwise the legal prohibition of inappropriate treatment, despite its fundamental nature, would be ineffective.

The European Committee for the Prevention of Torture also talks about this problem. According to its report, the fact that the supposed crimes committed by employees of the penitentiary facilities are investigated by the Penitentiary Department itself is a serious problem and makes these investigations ineffective. In addition, the qualification of crimes during the investigation is another problem. Specifically, proceedings concerning the exceeding of official authority are commenced from the outset and facts of inhuman or degrading treatment are neglected per se. The opinion of the Public Defender that the Prosecutor’s Office, quite subjectively, qualifies only those crimes committed before autumn 2012 as torture, inhuman or degrading treatment should also be pointed out. Similar cases after autumn 2012 are qualified by means of Article 333 of the Criminal Code of Georgia.

Conclusion Unlike the reports from 2004 to 2012, the Public Defender does not focus upon cases of torture in penitentiary facilities in his 2013 and 2014 reports. However, it should be noted that the 2013 and 2014 reports (especially 2014) tend to qualify all of the cases as inappropriate treatment which includes torture as well. Hence, it is not clear which individual cases belong to which crime categories.