Nullum crimen, nulla poena sine lege
"There exists no crime and no punishment without a pre-existing penal law appertaining" is a basic principle of the rule of law in Western democracies.
Georgian legislation defines what qualifies as a crime – an illegal action that constitutes an offense as specified in the Criminal Code of Georgia.
In other words, to be considered as a crime:
a) An action must be illegal, i.e. in breach of the law;
b) The illegality of the action must be specified in the Criminal Code;
c) The illegal action must be perpetrated with intent or through negligence.
A crime can be perpetrated individually or jointly with others; consequently, the law determines a circle of perpetrators:
1. Perpetrator – a person who directly committed a crime;
2. Organizer – a person who staged a crime or supervised its perpetration, as well as the one who established or supervised an organized criminal group;
3. Instigator – a person who persuaded another person to commit a premeditated crime;
4. Accomplice – a person who helped the perpetration of a crime.
Crime and punishment are considered to be individual in nature and a person cannot be held liable for an action committed by another. Before the Christian era, Chinese Emperor Qin Shi Huang issued a law introducing the so-called punishment of nine kinship extermination for the crime of treason, this involved the execution of not only the guilty party, but also of nine categories of his/her extended family.
The Gestapo of Nazi Germany practiced a similar attitude, punishing not only those "culprits," who gave shelter to Jews, but also their relatives and even their neighbors too. The Soviet Union's NKVD was also notorious for bringing "enemies of the people" to justice alongside their family members.
Such unjust procedures as described above were banned under the Fourth Geneva Convention in 1949, according to which "No protected person may be punished for an offence he or she has not personally committed. Collective penalties.... are prohibited."
Making associations about systemic crime brings to mind those regimes which, a priori, ignored fundamental human rights. Among such regimes were, for example, the system of apartheid in South Africa, with its official political line being the racial segregation and oppression of the majority black inhabitants of the country; the regime of Nazi Germany institutionalized the extermination of Jews in gas chambers; or the Soviet Union, dubbed the "Evil Empire," where the annihilation of class enemies (the bourgeoisie, clergy, nobility) was all legal.
Countries that protect international standards of human rights must now be regarded as the norm. In these countries deviations from these standards are punishable under the law. Georgia is one such country: it has ratified the Declaration on Human Rights and its relevant conventions, and is a signatory of the Rome Statute of the International Criminal Court; the Criminal Code of Georgia recognizes each and every action against fundamental and universal human rights as punishable offences.
Our system is normal. Those people within the system that violate the provisions of the Criminal Code can thus be considered criminals.
Anyone aged 14 and over can be convicted as a criminal – be they a taxi driver, a hairdresser, a teacher, a banker, an inspector, a priest, a leading specialist, an advisor, a departmental head, a deputy minister, the prime minister or the president.
To impose criminal liability on a person, a court must be provided with irrefutable cumulative evidence that proves, beyond reasonable doubt, that the person has committed a crime.
There also exists the notion of political liability – if a person holding political office fails to successfully perform his/her job (which does not mean that he/she has committed a crime), such a person can be forced to resign, be dismissed and replaced by someone else, or not be put up for reelection.
How Does the West Respond to Crime?
This year, London saw the launch of the trial of police officers accused of having performed illegal electronic surveillance on British citizens – politicians, actors, athletes as well as the victims of high-profile criminal cases – all with the intention of selling the information acquired to a tabloid newspaper. A complex investigation into this matter ended in the arrest of up to 90 Scotland Yard employees, including some officers of its elite subdivisions.
According to the investigation, illegal eavesdropping, surveillance and phone-hacking were regular occurrences over many years. Based on the evidence collected, the prosecutor's office filed charges against specific individuals (including mid- and high-level officials and journalists) and sent their cases to be heard in court.
The head of the Metropolitan Police stepped down, even though no evidence was found proving his own guilt.
The Abu Ghraib, Michigan and Mississippi Prison Scandals
The torture of inmates in Abu Ghraib, the US military's specialized detention facility for prisoners of war and suspected terrorists in Iraq, took place over quite a long period of time. Employees of the US Department of Defense were involved in these acts. The investigation into these appalling crimes was initiated only after information about it had become publicly known. Out of the US top brass only the Defense Secretary tendered his resignation though the president did not accept it. The heads of neither the CIA nor the State Department assumed any political responsibility for the events. The investigation exposed individual perpetrators of the crimes and preventive measures were undertaken to avoid a repetition of such events in future.
Employees of Michigan prison regularly raped female inmates over the course of many years. Unfortunately, at various times the prosecutor's office disregarded signals coming out of the prison about these crimes. In this case the state eventually punished the separate perpetrators of the crimes and paid substantial compensation to the victims.
According to the Fourth Geneva Convention of 1949, "No protected person may be punished for an offence he or she has not personally committed. Collective penalties.... are prohibited."
The torture of inmates was also regular practice in Mississippi prison. For years prison employees raped and inhumanely treated young inmates. This case was also eventually responded to according to the rule of law and criminal liability was imposed on the perpetrators.
What I am trying to say by citing the above examples is that it has proven difficult to prevent the torture of inmates even in a country such as the United States; a democracy with strong media, an independent court system and a vigilant civil society. There are several reasons behind this: the rights of prisoners are of a lesser priority for society; the state tries to reduce budget expenditure on penitentiary issues; the qualifications of prison personnel is low; and the closed nature of the penal system and slack public monitoring further aggravate the problem. All this increases the probability of an abuse of official powers and risks bringing about dire consequences.
Torture and breaching the privacy of citizens are grave and dangerous crimes and each and every such instance of these need to be met with an adequate response. The perpetrators of the crimes must be exposed. If the investigation reveals evidence on the involvement of high officials in such crimes, everyone must be charged, regardless of the position held.
Perpetrators must be punished to the fullest extent of the law to prevent a repetition of such crimes in the future. Effective mechanisms for ensuring a higher degree of transparency and public monitoring must also be established.
In Georgia, however, instead of all that we have received a distorted picture – the gravest crimes committed by specific persons in Gldani prison over a definite period of time were treated without an adequate response. The key torturer, Vladimer Bedukadze, remains at freedom, without having even been convicted of a crime. Unjustifiably lenient punishments were also applied to other persons convicted of torture.
Time and again, upon the emergence of each mini-crisis between the ruling party and the opposition, we are informed about the existence of thousands of files featuring either torture or surreptitiously filmed private lives of citizens, some, according to the Interior Ministry, were found in barrels and others in various caches. However, it is still unknown who produced those files; how many of them were produced illegally, as a result of unsanctioned activities; or what evidence exists about the complicity of members of the former government in these crimes.
Against this backdrop, we hear never-ending speculation that those crimes were committed by the "system" and accusations get directed towards the political opposition. Without any evidence or legal arguments, politicians of various caliber and so-called human rights defenders demand that the "regime," i.e. the United National Movement and senior officials of the previous government, be brought to justice.
All this has nothing to do with the rule of law. A crime must be reported, specific culprits identified, evidence collected and then handed over to the courts.