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Head: Sopo Verdzeuli

Writter: Guram Imnadze; Giorgi Kekenadze

Number Of Pages: 78

Publication Year: 2015

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Policy_of_Invisible_Power.pdf

Policy of Invisible Power - Analysis of the Law Enforcement System” is a research prepared by the “Human Rights Education and Monitoring Center (EMC)” regarding the law enforcement system and its institutional issues. The target law enforcement offices of the research were Ministry of Internal Affairs, Prosecutor’s Office and Ministry of Corrections and Legal Assistance.

According to the research, the major challenge that Ministry of Internal Affairs currently faces is the high risk of political influence over the system. This is due to wide impact of political powers of officials over the certain agencies of the system, as well as, due to negligence of principles of functional autonomy. Other grounds for the threat of politicization of the system are the principles of strict centralization and explicitly hierarchical structure, which limits the autonomy of individual employees. The risks of using the law enforcement structures for political purposes have increased, given the closed nature of the system. Such settings also eliminate the chances of control of the lawfulness operation of the system.

Another important issue is unbalanced and excessive power concentrated in the Ministry of Internal affairs, which encompasses law enforcement, investigative and security functions. Moreover, nontransparent governance principles and overlap of functions between different departments, significantly hinders the control the activities of the police. Increasing preventive authorities of the police lays grounds for improper use of powers and for limiting the individual freedom.

Investigative System is unable to carry out comprehensive, independent and unbiased investigation. This is partly due to insufficient evidence to determine the extent of the investigator's role and procedural supervision by prosecutor. On the other hand, regulation of investigation jurisdiction through the bylaws does not prevent the conflicts of interest in the process of investigation of certain cases. There are several controversial paragraphs in the legislation concerning the initiation of investigation, which may create the threats of arbitrariness of structures.

Responsibility system within the law enforcement structures is ineffective. General inspection, which is the internal supervision mechanisms, does not have relevant level of independence. The heads of departments have unjustifiable strong influence over the disciplinary process. The disciplinary process itself is vague and nontransparent. There is no effective mechanism for reconsidering the disciplinary decisions. The syndrome of impunity is further reinforcement by inexistence of independent mechanisms for investigating the crimes committed by the representatives of law enforcement system.

The accountability model of Ministry of Internal Affairs and Prosecutors Office towards the executive or legislative government is week and ineffective. There is a need for more active utilization of parliamentary control.

As part of the institutional reform of the law enforcement system, it is important to carry out the following actions:

  1. Institutional base for the political neutrality of the system – In order to secure the Prosecutors office from political influence, it is important to elaborate rather democratic and open procedure for assigning the Prosecutor general. The prosecutor general should be selected by special selection council, based on professional background. Candidate should be selected by qualified majority in the parliament. It is also significant to limit the influence of prosecutor general over the certain cases and individual prosecutors.System decentralization is also important for the Ministry of Internal Affairs. Functional autonomy of individual departments should be reinforced. The Minister of internal affairs, as a political public official, should not be eligible to affect carrying out specific police actions. The police departments (Patrol police, criminal police) should be distanced from the political leadership of the system. The head of police department should be selected based on professional background and through unbiased procedure;
  2. De-concentration of excessive police power – In order to reduce the level of concentration of power in MIA, security services should be formed as a separate entity. Moreover, cooperation of security services with other law enforcement structures should be regulated by law. The guarantees should be ensured regarding the accountability and transparency issues in respect to the newly established security services. The functions of remaining departments in MIA should be re-defined, in order to avoid the duplication of competencies between the departments.Such departments that actually carry out the police actions (Patrol departments, criminal police department) should be separated from the central management of the ministry.
  3. Security service – The functions of security services should be limited to analytical work. Their work should include operational preventive activities. However, it should not be authorized to carry out investigative and/or police functions. They should not have a right to use guns or other special equipment, except in limited number of special cases (for example, such cases might be: defense of a high official, or participation in anti-terroristic operation). The interaction of representatives of security services with individual citizens should be brought down to the minimum;
  4. Preventive police system– Police preventive functions should be harmonized with the criminal procedural code and it should not be carried out in response to a certain criminal act (for investigation). Preventive functions should have a general purpose, and should not be too intensive. For this purpose, it is also important to implement substantial reform of the operative activities and to redefine them;
  5. Investigative system– Law should define investigative jurisdiction rules. The powers of prosecutor general to forward the case to another department, disregarding the investigative jurisdiction, should be eliminated. The role of investigator and investigation supervision should be reconsidered;
  6. Responsibility system – It is significant to increase the level of independence of general inspections. For this reason, they should be distanced from the political leadership of the system and the method of staff recruitment should be reconsidered. It is crucial that the decisions made by general inspections are given a binding force. Special attention should be also given to improve disciplinary proceedings, to ensure the rights of employees of the system during the disciplinary proceedings. The disciplinary proceeding and decision-making departments should be separated from each other; effective mechanism must be in place to file a complaint against decision made concerning the disciplinary issue.For the sake of reforming the field of criminal responsibility, it is necessary to create an independent investigative body that will be independent and will not be part of the existing investigative and prosecution structure. Independent body should be equipped by all the relevant advantages, in order to carry out investigation/criminal prosecution in response to the possible crime committed by the employees (high official among them) of the law enforcement system;
  7. Enforce accountability – In order to ensure the openness of law enforcement system and carry out public control over it, it is necessary to create the system of strong parliamentary control, also the accountability procedures should be precisely and clearly defined, as well as, accountability subjects, periodicity of accountability and other information that should be released by relevant departments. In order to strengthen the parliamentary control, special committee should be formed, with consistent rights. Apart from parliamentary accountability, the law should clearly specify what are the accountability requirements between the law enforcement structures and the government. The accountability mechanisms should not be used by political groups to influence certain criminal cases;

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Policy_of_Invisible_Power.pdf