Pretrial detention has multiple negative effects both on the detainee and on society as a whole. The European Convention on Human Rights establishes limits for the use of pretrial detention and rules applying to the treatment of pretrial detainees.
The high number of pretrial detainees in Europe is an indication that the permissible grounds for pretrial detention, notably to prevent a suspect from absconding or interfering with witnesses and/or other evidence, are – in a number of instances – interpreted too widely or invoked pro forma in order to justify pretrial detention for other, abusive purposes. These abusive grounds for pretrial detention aim to put pressure on detainees in order to coerce them into confessing to a crime or testifying against a third person; to discredit or otherwise neutralise political competitors or to promote other political objectives; to put pressure on detainees in order to compel them to sell their businesses or to extort bribes from them, and to intimidate civil society and silence critical voices.
The Committee on Legal Affairs and Human Rights, noting a certain number of root causes for the abusive use of pretrial detention, calls on States Parties to the European Convention on Human Rights to implement specific measures aimed at reducing pretrial detention and stamping out its abuse.
“Considering the need to ensure that the use of remand in custody is always exceptional and is always justified;
Bearing in mind the human rights and fundamental freedoms of all persons deprived of their liberty and the particular need to ensure that not only are persons remanded in custody able to prepare their defence and to maintain their family relationships but they are also not held in conditions incompatible with their legal status, which is based on the presumption of innocence; …
Recommends that governments of member States disseminate and be guided in their legislation and practice by the principles set out in the appendix to this recommendation.”
I do not agree with the words in brackets in paragraph 7.2 of the draft resolution. Reference to a single political party is not relevant in this case because pretrial detention is used not because they are affiliated to some political party but because we are bound by Article 5 of the European Convention on Human Rights. Pretrial detention should be used only as an absolutely necessary last measure in the specific criminal cases on most of which there are final court judgments already. In some cases involving the UNM members no pretrial detention measure was used (for example in the case of Mr Chiaberashvili). Moreover, in most of the criminal cases the court used pretrial detention measure only after a person did not appear before the investigation body or absconded from justice.
I also cannot agree with paragraph 11.4 of the draft resolution because the rapporteur does not mention any single fact in the explanatory memorandum to prove the statement. I would agree with the formulation if it referred to the period before the change of government in October 2012.
Paragraph 11.5 states that the Prosecution somehow manipulates pretrial detention periods. This is absolutely wrong because only the courts take decisions on restraint measures in Georgia. According to the statistics, the level of independence of courts in Georgia has significantly increased since 2012 where use of pretrial detentions has shrunk by 34%.
Sub-paragraph 12.2.2 should be corrected because such a demand goes beyond the authority of the Parliamentary Assembly of the Council of Europe and belongs to the exceptional competence of national courts and the European Court of Human Rights. As the meaning of sub-paragraph 12.2.1 is really vague and general, I would rather suggest merging these two sub-paragraphs with the following wording: “the Assembly urges the States to consult Article 5 of the European Convention on Human Rights and abide by the standards of the Convention when using pretrial detention.”