INTERNATIONAL-LEGAL STANDARDS FOR APPLICATION OF PROCEDURAL COERCIVE MEASURES RESTRICTING FREEDOM
Abstract
In the situation when the united European legislative sphere and legal systems are coming together, problems concerning the introduction of directly applicable European standards into the Georgian procedural legislation have become highly significant, as have the compatibility of the national court and investigative practices with Strasbourg case law. Articles 6 and 7 of the Georgian Constitution not only recognize the principle of the direct applicability of international standards in Georgia, but they also require the state authorities to ensure the appropriate guarantees for the realisation of the individual’s right to freedom.
One of the most important institutions in criminal proceedings for assessing how human rights are protected is legislative regulation and the application in practice of preventive measures restricting individual liberty. Not only for the reasons that, providing effective mechanisms for ensuring the personal liberty and security of an individual, the protection of other rights is a mere illusion.Any deprivation of liberty may also affect a person’s enjoyment of other rights, such as the right to association, movement, and assembly.It can also directly hinder the realisation of other rights guaranteed by the Convention – from the right to inviolability of a family life and privacy to the right of free expression.However, the arrest of an individual may simultaneously violate the principles of presumption of innocence and adversarial proceedings, and complicates the carrying out of the appropriate defence for the individual either by a defence counsel or personally by himself.
Article 5 of the Georgian Criminal Procedure Code (hereinafter, the CPC of Georgia) acknowledges the presumption of innocence. The CPC of Georgia is based on fundamental principles and norms of human rights and international law, and introduces standards and criteria under international law regarding the restriction of liberty and notions such as reasonable assumption, the reasonableness of a term for the restriction of liberty and the promptness of a trial.
However, it is one thing to take into consideration the guarantees of personal liberty set out in national legislation and quite another to carry out a prompt and effective defence through national judiciary in cases when any of the state agencies restrict the freedom of an individual. This is a crucial reason why the present research paper aims to expose theoretical and practical problems and challenges related to the realisation of European standards in criminal proceedings. The findings will likely provide grounds for specific recommendations and suggestions for introducing additional guarantees for the rights of the participants of the proceedings. Also, they will likely encourage the participants to be more active in the criminal proceedings.
