Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
In 2012, in its fourth periodic report to the Human Rights Committee, Georgia stated:
10. Georgia adopted the [L]aw on International Cooperation in Criminal Matters in 2010, which entered into force together with the new Criminal Procedure Code of Georgia on October 1, of the same year. The new Law covers international cooperation, including extradition. Accordingly, extradition procedures are generally carried out on the basis of bilateral or multilateral treaties binding for Georgia. However, in case of non-existence of [an] extradition treaty with a relevant state, the Ministry of Justice of Georgia is authorized to conclude an ad hoc agreement with the appropriate foreign authorities and thereby carry out extradition procedures (Article 2). Article 29 §1 of the Law on International Cooperation in Criminal Matters excludes extradition if the competent authorities of Georgia have substantial grounds to believe that the extradition of a person is requested for the purpose of prosecuting or punishing that person on account of his race, nationality, ethnic origin, religious belief, political opinion or other similar reasons. Therefore, in case of the circumstances referred to above, the competent Georgian authorities find extradition inadmissible.
11. In addition, the Parliament of Georgia adopted the Law on Refugees and Humanitarian Status in December 2011, which fully envisions the principle of non-refoulement. … Article 21 §3 [of that Law] states that it is inadmissible to expel or extradite from Georgia a person holding a refugee or humanitarian status to the country where there is a reasonable ground to believe that the person will be the victim of torture or other cruel, inhuman or degrading treatment. …
113. The Law of Georgia on International Cooperation in Criminal Matters represents an internal legislative act regulating issues concerning extradition. This law entered into force in October 2010 and is in full compliance with Georgia’s international agreements and international standards. According to the above-mentioned Law, the extradition of a person shall be granted with respect to those offences which are punishable under the laws of Georgia and the foreign State by deprivation of liberty for a period of at least one year or by a more severe penalty. Where a conviction has occurred, the punishment awarded must be for a period of at least four months (Article 18.1).
114. The Law of Georgia on International Cooperation in Criminal Matters sets out important safeguards with respect to extradition. Namely, extradition is not allowed if the offence for which extradition is requested is punishable by death penalty, if there exists reasonable suspicion that the extradition of the person is requested for the purpose of [making] him/her liable for or punishing him/her on the ground of his/her race, nationality, ethnic origin, religious or political views or due to other similar circumstances, if there exists reasonable suspicion that a person will be subjected to torture, cruel, inhuman, degrading treatment or punishment, if a crime in relation to which an extradition is requested is regarded as a political offence by Georgia, if the requesting State rendered the judgment in absentia
of that person and if a person was not properly informed about court hearings or if an accused person was not provided with proper time for p[repar]ation and the minimum rights of defence.
Georgia’s Constitution (1995) provides: “The extradition of a citizen of Georgia to another State is prohibited, except in cases provided for by international agreements. A decision on extradition may be appealed in court.”
Georgia’s Law on Cooperation with the International Criminal Court (2003) states:
Article 31. Basic principle of cooperation.
1. Georgia shall cooperate with the International [Criminal] Court pursuant to Article 32 of this Law if it derives from the Court’s request and materials accompanying it that the act is within the jurisdiction of the Court.
Article 32. Forms of cooperation.
In accordance with this Chapter, cooperation with the International Court may include any procedural measure under the [1998 ICC] Statute and Georgian legislation that facilitates the investigation and prosecution of crimes within the jurisdiction of the International Court as well as the seizure of the proceeds of crime. Such measures may include:
(a) The identification and whereabouts of persons;
(b) The taking of evidence, including witness testimony under oath, and the production and service of evidence necessary to the Court, including expert opinions and reports;
(c) The questioning of any person being investigated or prosecuted;
(d) The service of documents, including judgments;
(e) The temporary transfer of arrested persons;
(f) The identification of location of places or objects;
(g) Searches, seizures, and confiscations;
(h) The provision of records and documents, including judicial (courtroom) records and documents;
(i) The protection of victims and witnesses and the preservation of evidence;
(j) The identification or seizure of proceeds, property and assets of material value and instrumentalities of crimes for the purpose of forfeiture;
(k) The facilitation of voluntary appearances before the Court by persons, witnesses and experts;
(l) The execution of exhumations, the examination of places and objects, including the uncovering and examination of graves;
(m) Any other type of assistance which is not prohibited by the legislation of Georgia and which will facilitate the investigation and prosecution of crimes within the jurisdiction of the International Court.
The Law also states:
Article 5. Consultation with the International Court.
The Responsible Agency [Agency for Cooperation with the ICC within the Ministry of Justice] shall have the authority to consult with the International Court on matters related to the request as prescribed by the [1998 ICC] Statute. Consultation with the International Court shall be obligatory if the execution of the request:
a) contradicts fundamental legal principles of the State [of Georgia], as indicated in Article 93(3) of the Statute;
b) affects interests of national security;
c) jeopardizes the on-going investigation or prosecution of another criminal case;
d) violates domestic or diplomatic immunity.
Article 9. Form of a request from the International Court and conditions of its reception.
5. If the Responsible Agency considers that a request of the International Court is not acceptable or refuses to execute the request, it shall immediately inform the International Court that it considers the request unacceptable or that it refuses to execute the request, providing reasoning for either decision. Before a final refusal to execute the request, the Responsible Agency shall consult with the International Court.
Article 12. Protection of national security.
3. The Responsible Agency, on the motion of the National Security Council of Georgia, may refuse to execute the request of the International Court for cooperation if the cooperation sought may threaten national security.
Georgia’s Code of Criminal Procedure (1998), as amended in 2003, states:
Article 247 …
3. The questions of cooperation of Georgia with the ICC are regulated by the [1998 ICC Statute] and the [Law on Cooperation with the ICC (2003)] …
Article 252. Submitting Materials on Offences Committed on the Territory of Georgia by Foreign National or Stateless Persons.
If a foreign national or a stateless person who has committed an offence on the territory of Georgia has left the territory of Georgia, all the investigation material [gathered] in the initiated case shall be delivered to the Prosecutor-General of Georgia and/or to the national State agency responsible for matters concerning cooperation with the ICC in accordance with the legislation, who shall forward them … to the ICC for further criminal prosecution, or shall … [submit] a request for surrender of the accused to Georgian authorities.
The Code also states: “For the purpose of international cooperation in legal matters … ‘[s]urrender’ means the handing over of a person by a State to the International Criminal Court, pursuant to its [1998 ICC] Statute.”
Chapter III -Extradition
Article 32 - Competing requests