Ketevan Tsikhelashvili, First Deputy State Minister for Reintegration, stated the following during the review of the proposed amendments to the Law on Occupied Territories of Georgia on 17 May 2013: “Modification of sanction is taking place. How were we benefiting from the existence of such severe sanction? We were arresting every foreign citizen or person without citizenship; the majority of them were completely uninformed. Diversion from prosecution has never been implemented towards them.”
The statement by Ketevan Tsikhelashvili came after a four-day review of legislative amendments. According to the Parliamentary Minority, while the Code of Criminal Procedure provides a mechanism for diversion, there is no necessity to replace criminal sanction with an administrative one. Giorgi Vashadze, Member of the United National Movement, stated at the plenary session held on 15 May: “If we think that somebody made a mistake and accidentally crossed the border, prosecutor discretion exists for that and we can use diversion from prosecution to prevent people from criminal liability."
According to Ketevan Tsikhelashvili, in accordance with the established practice, the mechanism of diversion [towards Article 332 of the Criminal Code] has never been used.FactCheck
wondered whether or not the statement by Ketevan Tsikhelashvili regarding the mechanism of diversion was true.
According to Article 168 under the Code of Criminal Procedure, diversion is the discretionary authority of the prosecutor which allows the prosecutor to terminate or refuse to start a criminal prosecution. In exchange for this, a person has to perform one or several of the following: he/she should transfer illegally obtained property to the state, compensate for damage caused by his/her actions, pay a minimum amount of GEL 500 to the state budget and perform 40 to 400 hours of community service.
Diversion from prosecution is a new mechanism for the Code of Criminal Procedure of Georgia since it came into force on 21 June 2011. In the case of illegally crossing borders of the occupied territories, if the prosecutor decides to use the mechanism of diversion, a person may either pay a minimum amount of GEL 500 to the state budget or perform 40 to 400 hours of community service. The diversion offer is made in written form and the terms are voluntary. Accordingly, the usage of the diversion mechanism under the Code of Criminal Procedure is possible towards those persons who violated the rule of entry into the occupied territories from prohibited directions. Despite this, according to the statement by Ketevan Tsikhelashvili, the prosecutor has never used discretionary authority in similar cases.In order to check this information, FactCheck
contacted the Legal Department of the Chief Prosecutor’s Office and requested public information. We wondered whether or not the diversion mechanism has been used regarding Article 322 under the Criminal Code of Georgia since its enforcement on 1 May 2013. According to the information provided by the Chief Prosecutor’s Office, the use of diversion by the prosecutor towards a foreign citizen or a person without Georgian citizenship in the case of illegal border crossing of occupied territories has not been recorded.
Despite the fact that the statement by Ketevan Tsikhelashvili regarding the failure to use the diversion mechanism is true, the context of the discussion about this issue was different. According to Giorgi Vashadze, MP from the Parliamentary Minority, diversion from criminal prosecution is possible without changing the law. The fact that there is no practice of use of the diversion mechanism regarding Article 322 does not imply that diversion is not an alternative mitigation of sentence. A problematic issue in the case of diversion is the fact that the mitigation depends on a prosecutor. If the administrative sanction is imposed, sentence will be automatically mitigated. Despite this, theoretically, even today there is a mechanism to avoid criminal responsibility in terms of the diversion mechanism.Conclusion
Based on the public information obtained from the Chief Prosecutor’s Office of Georgia, we can conclude that since the enforcement of diversion, this mechanism has never been used regarding Article 322 under the Criminal Code. Despite this, failure to use the mechanism in practice does not mean that the prosecutor’s discretionary authority does not exist. According to the Criminal Code, use of the diversion regarding Article 322 is possible. In this case, there is no criminal liability.Therefore, we rate the statement made by Ketevan Tsikhelashvili: “We were arresting every single foreign citizen or a person without any citizenship and who were completely uninformed persons. Diversion has never been used towards any of them,” MOSTLY TRUE.