The Problem of Separation of Torture (1441 of the Criminal Code) and Coercion to Give an Explanation, Testimony or Conclusion (335 of the Criminal Code) in Theory and Georgian Practice

Abstract

In the modern world, an increasing attention is paid to creating appropriate conditions for the protection and realization of basic human rights, freedoms, and legal interests. It is worth noting that Georgia took a progressive step in this regard and undertook the obligation to harmonize its legislation with the relevant international norms, which subsequently allowed us to understand the separate scientific provisions of the national criminology in a new way, to change the priorities of the modern criminal law policy, and to adapt all of this to the challenges that Georgia is facing today in criminal law. It is no coincidence that the rights and freedoms of human beings and citizens are in the first place in the list of values protected by the criminal law of Georgia. As for the norms determining the criminal responsibility for a crime committed against a person, they are presented in the private part of the Code.
The criminal law of Georgia has undergone some changes and by June 23, 2005, the article on torture (1441) was added to the Criminal Code that was under the regulation of Article 126 of the old version of the Criminal Code. In spite of the fact that the mentioned novation, on the one hand, contributed to the process of harmonization with international norms, on the other hand, it gave rise to certain types of problems, which in practice were mainly manifested in the issue of qualification of criminal actions.
After introducing the mentioned novation, the main question arose in the doctrine and practice - how to evaluate the action of an official who used torture or threat of it for giving a testimony.
Considering the relevance and acuteness of the problem, the main purpose of the present paper is to discuss the basic problem related to the institutions of torture and official crime (Article 335 of the Civil Code). For attaining this goal, first of all, a systematic study of the mentioned topic will be proposed.
In addition, the main part of the paper will be devoted to the analysis of an important issue such as the relationship between these two norms and their application in doctrine and Georgian judicial practice. For better analysis, specific examples from Georgian judicial practice and the judgments developed by the court will be provided. Analyzing all of this will reveal the legal consequence resulting from these “gaps” in the law.
At the end of the paper, we will talk about specific recommendations that would prevent “misunderstandings” in practice in case of future legislative regulation and would contribute to the establishment of sound judicial practice