On 15 July, at an extra plenary session of the Parliament, Davit Darchiashvili talked about the death of Erosi Kitsmarishvili and stated: “According to the Criminal Code, it is possible to commence proceedings based upon a fact, not a suicide. “FactCheck
took interest in this statement and verified its accuracy.
The Main Prosecutor’s Office of Georgia made a statement about the case of the death of Erosi Kitsmarishvili according to which: “On 15 July 2014, the Main Prosecutor’s Office received a message that the body of a deceased male was found in Tbilisi, on Ilia Chavchavadze Avenue #37, in the underground car park of building D. Upon the basis of the given message, the investigation started according to Article 115 of the Criminal Law of Georgia (incitement to suicide) and further based upon the factual circumstances existing at the initial stage. Arriving at the crime scene, the body of Erosi Kitsmarishvili was found in his own car with a wound around the head area probably inflicted by a gun. The gun was also found, registered in his name on the same day, 15 July 2014. The shot was probably made from the same gun.” According to the Main Prosecutor’s Office, given the importance of the case, a joint investigation group was formed comprised of employees of the Prosecutor’s Office and the Ministry of Internal Affairs. Intensive investigation is under way.From the statement, it is clear that according to the received information (which in this case was based upon a fact; namely, the death of a particular person) the Prosecutor’s Office started an investigation based upon a particular article of the aforementioned Criminal Law on incitement to suicide. Davit Darchiashvili criticized this and stated that the investigation should have started based upon the fact itself and not according to any particular article. FactCheck
looked into the possibility of starting an investigation in this way.
First of all, the term “commence the proceedings” is not a functioning term of the Criminal Law and “investigation” is used in its stead. The criminal proceeding is started with the investigation which must be based upon the information about the crime received by the investigator or a prosecutor, revealed during another criminal proceeding or published in the mass media. Given such information (no matter the source) the investigator or a prosecutor are obliged to start an investigation (Criminal Law of Georgia, Articles 100 and 101). One technical matter should also be taken into account – according to Georgian regulations, the investigation process is recorded electronically and the very first action required is to register the so called Form Number 1. The investigation process formally starts with the registration of this document which is given its individual number (which also becomes the individual number of the case). Form Number 1 cannot be registered unless it is based upon a certain article of the law. If, initially, the perpetrator of the crime is unknown, an investigation is carried out to find evidence and, consequently, the perpetrator. If, however, the identity of the perpetrator is known from the very start, the process of criminal prosecution is started and evidence is gathered for the court.
The investigator is authorised to carry out the investigation of the criminal case in his/her sphere of competence (Article 37 of the Criminal Code of Georgia). In the case of crime, he/she is authorised to unilaterally decide to take investigative (procedural) actions (exemptions include the investigative [procedural] actions which need to be agreed with the prosecutor or the need of a court warrant; for example, searching, gathering of evidence, etc.). The investigator is authorised to check any possible version and gather evidence to determine the factual circumstances of the crime.
At the initial stage, the existing factual circumstances are estimated. Since the investigation starts upon the basis of an assumption of crime (unlawful action or a charge), the investigator assesses which crime can be assumed to have taken place based upon the existing factual circumstances. To commence the investigation upon the basis of a fact presupposes commencing the investigation of a crime as well. Accordingly, the investigation of the death of Erosi Kitsmarishvili was started based upon a specific article of the Criminal Procedural Code (Article 115) and the use of this specific article was based upon the factual circumstances found by the investigator at the crime scene.
It was possible to start the investigation of the case based upon Article 115 (incitement to suicide) or Article 108 (premeditated murder). After assessing the situation at the crime scene, the investigator decided to start an investigation based upon Article 115. Supposedly, the investigator decided that given the factual circumstances present at the crime scene it was more appropriate to start an investigation based upon Article 115 of the Criminal Procedural Code. However, he could also have started an investigation based upon Article 108 of the Code.
Thus, it is impossible to start an investigation if the supposed crime is not determined which means that it must be started based upon a certain article of the Criminal Code with the crime and the article forming the basis of the investigation to be determined by the investigator according to the factual circumstances.
Given the information about a crime, the investigator or a prosecutor are obliged to start an investigation. Given the signs of the crime, the investigator unilaterally determines what kind of a crime has taken place based upon the factual circumstances and starts the investigation according to a respective article of the law. The disposition of the article must be given as an assumption at the initial stage of the investigation. To start the investigation of the death of Erosi Kitsmarishvili meant to first determine an article of the law upon which the investigation would be based. In this case the investigator had two alternatives: Article 115 of the Criminal Procedural Code (incitement to suicide) or Article 108 of the same code (premeditated murder). It was the investigator’s authority to decide which article of the Code was applicable in this case given the factual circumstances at the crime scene. Hence, the investigation could not have started based upon a fact alone since commencing an investigation upon the basis of a fact presupposes commencing the investigation of a crime and determining the respective article of the law as well. According to current Georgian regulations, the electronic investigation procedure cannot be started without first defining the crime. Form Number 1 cannot be registered if a specific article of the law is not given. Using this mechanism is obligatory according to current regulations.Hence, we conclude that Davit Darchiashvili’s statement: “According to the Criminal Code, it is possible to commence proceedings based upon a fact, not a suicide,” is FALSE.