First and foremost, it should be noted that the current version of the Code represents one of the major challenges within Georgia’s legal system. Despite years of discussions and various reform initiatives, the outdated provisions originating from the Soviet era have not yet been revised, and a modern Code that meets contemporary standards has still not been adopted.
The Georgian Bar Association emphasizes that a fundamental reform of the Code is essential to ensure the reflection of internationally recognized human rights protection standards, the strengthening of the principles of the rule of law, and the full guarantee of legal foreseeability, proportionality, and transparency.
Regrettably, instead of a comprehensive reform of administrative offence legislation, we have witnessed a further deterioration of the already flawed regulations contained in the current Code.
According to the existing version of Article 244 of the Code of Administrative Offences of Georgia (CAOG), administrative detention is a measure applicable to a person considered to have committed a specific administrative offence. It serves legitimate purposes such as the prevention of administrative offences, the timely and proper examination of cases, and the enforcement of decisions issued in administrative offence proceedings. It is also noteworthy that the law allows for administrative detention only in extreme cases, when other measures of influence have been exhausted.
However, under the amendment adopted by the Parliament in three readings, the first paragraph of Article 244 now allows for the administrative detention of a person not for the above-mentioned legitimate purposes, but for the prevention of a possible future offence — in other words, to prevent the person from potentially committing an administrative offence in the future.
We believe that the practical application of this amendment to Article 244 will be based solely on a law enforcement officer’s suspicion or assumption that a person might commit an offence in the future. Justifying administrative detention on the grounds of “preventing a potential reoffence” is incompatible with the principles of the rule of law.
The current version of the Code provides for the imposition of liability only for an offence actually committed.
Furthermore, Article 245 defines the procedure for administrative detention, stipulating that the detaining officer must immediately and clearly explain to the detainee the specific administrative offence committed and the grounds for detention. In contrast, the proposed amendment would allow for the detention of a person — and the application of legal measures against them — for an act that they have not committed.
Consequently, such detention would no longer constitute a temporary measure against a person deemed to have committed a specific offence but would instead amount to an administrative penalty for an offence that the person has not in fact committed. This contradicts both the principles of the rule of law and fundamental legal logic, and the existence of such a norm is incompatible with the interests of delivering quality justice in a democratic society.
Additionally, according to international human rights standards, any restriction of rights must ensure a fair balance between the restricted and protected interests. This also requires that the relevant legislation contain clear criteria, be sufficiently precise, and be formulated in a way that prevents unjustified interference by decision-makers or authorities. Granting such broad discretion to law enforcement bodies creates a high risk of unjustified and abusive exercise of power, thereby endangering constitutionally guaranteed fundamental rights, including personal liberty, freedom of movement, and the inviolability of private life.
Considering that the legislative process was conducted in an expedited manner and that no justification was provided as to the legitimate aim of these amendments or their potential negative impact on human rights, the Georgian Bar Association calls on the Parliament of Georgia to review the above-mentioned amendments within the relevant legislative framework. The Association further urges the Parliament to ensure the active involvement of the legal profession and legal practitioners in the consideration of such initiatives, in order to properly assess the practical challenges that may arise during implementation and to fully safeguard the highest standards of human rights protection.
