A measure of restraint is a temporary procedural mechanism applied to an accused person to ensure their proper conduct during the investigation and court proceedings.
A measure of restraint is not a punishment, and its application does not mean that the person has been found guilty. The court makes its decision based on an assessment of the specific circumstances of the case and the evidence presented by the parties.
Avtandil Giorgadze defends accused persons during the initial hearing on a measure of restraint, when requesting its modification or revocation, and when appealing the court’s decision in cases provided by law.
Types of Measures of Restraint
The criminal procedure legislation of Georgia provides for several types of measures of restraint:
- pretrial detention;
- bail;
- personal surety;
- an agreement not to leave and to maintain proper conduct;
- supervision by military command over the conduct of a service member.
The court must select a measure that will be sufficient in the specific case to ensure the accused person’s proper conduct.
On What Grounds Is a Measure of Restraint Applied?
When applying a measure of restraint, the court assesses whether there are reasonable grounds to believe that the accused person will:
- abscond or avoid appearing in court;
- obstruct the collection of evidence;
- exert influence on a witness or another participant in the proceedings;
- destroy or falsify evidence;
- commit a new criminal offense;
- obstruct the enforcement of the court’s judgment.
The risks must be based on specific circumstances. The severity of the charges alone should not automatically serve as grounds for applying pretrial detention.
Pretrial Detention as a Measure of Restraint
Pretrial detention is the most severe type of measure of restraint and should be applied only when a less restrictive measure cannot ensure the achievement of the objectives established by law.
When requesting pretrial detention, the prosecution must substantiate both the necessity of applying a measure of restraint and the reasons why bail or another less restrictive measure would be insufficient.
The purpose of the defense is to present facts and evidence to the court that reduce the risks identified by the prosecution and demonstrate that applying pretrial detention is unnecessary.
Bail
Bail is applied to ensure the accused person’s proper conduct. When determining the amount of bail, the court must consider the circumstances of the case, the accused person’s personal circumstances, financial position, and the relevant risks.
The defense may request:
- the application of bail instead of pretrial detention;
- the determination of a lower amount than that requested by the prosecution;
- consideration of the accused person’s financial position;
- the application of appropriate additional obligations together with bail.
The amount of bail should not be so burdensome that compliance becomes practically impossible for the accused person.
Additional Obligations
Together with a measure of restraint, the court may impose additional obligations on the accused person, including:
- appearing before the relevant authority at specified times;
- providing notice of a change of residence;
- refraining from contact with specific persons;
- refraining from entering or remaining in certain places;
- surrendering a passport or another document;
- submitting to electronic monitoring in cases provided by law.
Additional obligations must be specific, substantiated, and appropriate to the circumstances of the case.
What Does the Lawyer’s Assistance Include?
During a hearing concerning a measure of restraint, the lawyer:
- examines the prosecution’s motion and the evidence presented;
- assesses whether the suspicion against the accused person is sufficiently substantiated;
- evaluates the risks of absconding, interference with evidence, and commission of a new criminal offense;
- collects materials concerning the accused person’s character and social ties;
- presents information regarding the accused person’s residence, family, employment or other activities, and health;
- substantiates the possibility of applying a less restrictive measure;
- requests the application of bail or another measure instead of pretrial detention;
- requests the modification or revocation of the measure where necessary;
- appeals the court’s decision in cases provided by law.
What Circumstances May Be Important to the Defense?
The following circumstances may be important to the court:
- the accused person’s permanent place of residence;
- family circumstances and dependents;
- employment or other activities;
- health;
- past compliance with the law;
- cooperation with the investigation;
- willingness to appear in court;
- strong social ties in Georgia;
- other circumstances that reduce a specific risk.
It is advisable to support each circumstance with an appropriate document or other evidence.
Modification or Revocation of a Measure of Restraint
A measure of restraint may be modified or revoked if the circumstances of the case have changed, the relevant risks have decreased, new evidence has emerged, or there is no longer a need to apply a severe measure.
The lawyer assesses whether legal grounds exist for submitting a new motion and prepares the materials necessary to substantiate it.