Resume: The chair of the Georgian Dream does not specify what he means in terms of the number of administrative detentions or which periods he compares to each other.
If in the number of administrative detentions Bidzina Ivanishvili refers to the percentage share of those individuals who were sentenced to administrative detentions in the total number of individuals with administrative penalties in general, then we will see that the figure for 2018 decreased 2.8 times as compared to 2012. Of note is that in 2018 as compared to the previous year, the administrative detentions to administrative penalties ratio increased by 2.74 percentage points. If we compare the average figure (5.52%) under the Georgian Dream to the average figure (16.69%) of the same period of the United National Movement’s rule, we will see that the aforementioned ratio has indeed decreased precisely three-fold. However, presenting figures in this manner is not appropriate because it does not allow for the possibility to adequately see the picture.
Of note is that the Administrative Offences Code of Georgia envisions detention as a punishment for 23 types of offences. Therefore, whilst speaking about the number of administrative detentions, it would be more relevant to measure the share of administrative detentions in the number of penalties used for the aforementioned offences only. However, as clarified by the Supreme Court of Georgia, data are not processed in this manner.
Analysis
The Chair of the Georgian Dream, Bidzina Ivanishvili, on the TV broadcast, Pirispir, presented statistical data about the judiciary. Among other things, Mr Ivanishvili emphasised the reduction in the number of administrative detentions. As he stated (from 40:00): “The number of administrative detentions has decreased three-fold.”
In accordance with Article 32 of the Administrative Offences Code of Georgia, administrative detention is one of the forms of administrative penalty for administrative offences and it is used only in exceptional cases. An individual is sentenced to administrative detention by the judges of the respective district (city). The duration of the administrative detentions should not exceed 15 days. Of note is that prior to amendments made in August 2014, the maximum duration for administrative detention was 90 days.
The Administrative Offences Code of Georgia envisions administrative detention as a penalty for 23 types of administrative offences. These include: petty hooliganism (Article 166), non-compliance with a lawful order or a demand of a law enforcement officer or verbally and otherwise assaulting him (Article 173) and the illegal production, purchase, storage, transportation or transfer of a small quantity of narcotic drugs and/or the use of narcotic drugs without a doctor’s prescription (Article 45), etc.
In accordance with Bidzina Ivanishvili’s statement, the number of administrative detentions has decreased three-fold. It is true that he does not specify exactly what he means with this number but we believe that he is referring to the ratio (percentage) and not the absolute number (only the quantity of those individuals who were sentenced to administrative detention).
In order to ascertain the total number of individuals who were sentenced with administrative punishments for precisely those 23 administrative offences, FactCheck addressed the Supreme Court of Georgia. However, as we found out, the Supreme Court does not compile data in a form we requested.
In regard to the total penalties sentenced for committing administrative offences in general and the share of administrative detentions in those penalties, it can be said that the aforementioned ratio decreased in 2012-2017 and increased in 2018 by 2.74 percentage points as compared to the same period of the previous year.
Graph 1: Number of Individuals Sentenced to Administrative Penalties by First Instance Courts and Share of Individuals Sentenced with Administrative Detentions (%) in 2003-2018
Source: Supreme Court of Georgia
In 2018, the number of people sentenced to administrative detentions (the share of people with administrative detentions in the total number of individuals with administrative penalties) decreased 2.8 times as compared to 2012. In addition, if we compare the average figure (5.52%) under the Georgian Dream to the average figure (16.69%) of the same period of the United National Movement’s rule, we will see that the aforementioned ratio has indeed decreased by precisely three-fold.
However, flaunting the aforementioned figure only is not correct and deprives us the possibility to adequately see the picture. In particular, if we take a look at the figures for 2012 and 2013 on the graph, we will see that there is no significant difference between the numbers of individuals with administrative detentions. However, in the same periods, the number of individuals with general administrative penalties is considerably different (the number increased by 10,435 in 2013 as compared to 2012). It is possible that the growth in the latter figure is not in fact stipulated by the increased number of offences which envision detention as penalty. Furthermore, the number of such offences could have been drastically reduced, or vice-versa.
Therefore, when we are unaware of the number of those individuals who were given an administrative penalty for exactly those offences which envision detention in the total number of people with administrative penalties, it is hard to make conclusions and the use of the aforementioned figure becomes inappropriate.
Of note is that since 2012, the absolute figure of administrative detentions has also been experiencing a sharp decline. The average figure for 2013-2018 decreased 3.5 times as compared to the average figure for 2007-2012. However, in turn, it is interesting to know what the decrease in the number of administrative detentions could indicate.
As clarified by the European Court of Human Rights, an administrative offence for which an individual committed might receive a detention sentence and this should be considered as a “criminal offence” as given in Article 6 (the right to a fair trial) of the European Convention of Human Rights notwithstanding the fact of how short the duration of the possible detention will be. Therefore, in the cases of the aforementioned offences, it is mandatory that a suspected individual enjoys legal guarantees as envisioned by the Criminal Code of Georgia as well as the presumption of innocence and the right to a fair trial.
The Public Defender of Georgia has noted multiple times that the Administrative Offences Code of Georgia contains systemic deficiencies, cannot fully regulate the procedural issues of the proceedings of administrative offences, fails to fully ensure an individual with the elements of the right to a fair trial and requires immediate amendments or the elaboration of a new code.
Therefore, despite the fact that in certain cases as envisioned by the Administrative Offences Code of Georgia an individual might be sentenced with a sanction bearing a criminal nature (administrative detention), less guarantees for a fair trial are available for a suspect who committed an administrative offence as compared to an individual who is suspected of committing a criminal offence.
Given the acuteness of the problem, the recommendation vis-à-vis the abolition of administrative detention as one of the forms of administrative penalties can be found as early as in the 2012 Human Rights Watch report. In addition, the 2013 document of the Judicial Independence and Legal Empowerment Project (JILEP) offered alternative ways for solving the problem. In accordance with the JILEP report, the three alternatives to eradicate the unconstitutional usage of legislation on administrative offences are as follows (p. 8):
- The Administrative Offences Code has to be amended and as a result, all requirements needed for a fair trial will be introduced.
- Administrative detention, as one of the forms of penalty, has to abolished and a fine should become the only penalty envisioned for the offences in the Administrative Offences Code.
- All offences from the Administrative Offences Code which are of a criminal nature have to be moved to the Criminal Code of Georgia. As a result, the guarantees for a fair trial as envisioned by the Criminal Procedure Code of Georgia will be applied to them as well. Of note is that in accordance with the suggestion of the reform’s authors, it would be more appropriate to add another chapter to the Criminal Code which would encompass less serious crimes – the so-called misdemeanours – and committing and being proven guilty for these misdemeanours will not result in an individual having a criminal record.
As clarified by the Public Defender of Georgia, a systemic revision and elaboration of a new draft of the Administrative Offences Code was envisioned as early as in 2014-2015 in accordance with the Government of Georgia’s Human Rights Protection plan. The government commission, in charge of supporting reform of Georgia’s administrative offences system, was established. Later, a draft administrative code of the Administrative Offences Code of Georgia was elaborated although the draft has not yet been submitted to the Parliament of Georgia. Of note is that in accordance with the Government of Georgia’s Human Rights Protection plan (2018-2020), a new Code for 2018-2019 was announced with this date set as its initiation (p. 132).
Taking all of the aforementioned into account, it is true that the sentencing of administrative detentions (number) has a trend of decrease (of note is that 2018 is an exception). However, the decrease alone is not a solution. As long as systemic amendments are not enacted in the Administrative Offences Code and administrative detentions do not have the same standard as envisioned by the Criminal Procedure Code of Georgia, there will be some serious questions about the constitutionality of each case of sentencing administrative detention without due procedural guarantees.
