Public Defender of Georgia Echoes Report “Public Defender as Equality Mechanism”
On July 28, 2017, the Human Rights and Monitoring Center - EMC presented a report titled as “Public Defender as Equality Mechanism. Analysis of Legislation and Practice". The report includes recommendations concerning both the legislative shortcomings and the Public Defender's practice.
It should be noted that the legislative proposal submitted to the Parliament of Georgia by the Public Defender in 2015 reflects the procedural and legal changes reviewed in the EMC report - in particular, the Public Defender, among other things, was demanding imposition of the obligation on physical and legal persons of private law to provide requested information in the course of the study of a case, cancelation of administrative legal proceedings as the basis for suspension of case proceedings and increase of the 3-month term for appealing to the court with regard to the case of discrimination to a 1-year term. In addition, in the 2016 special report on the situation of equality, the Public Defender of Georgia pointed out that it was necessary the law to explicitly define forms of discrimination, such as refusal to provide reasonable accommodation and harassment/sexual harassment. In addition, the report highlights significant recommendations that directly concern strengthening of individual approaches in the Public Defender's practice. The Public Defender fully shares the need to use them in practice and notes that case proceedings are carried out in the Public Defender’s Office exactly in accordance with the mentioned principles. In particular, according to the established practice, the Public Defender examines only those cases of discrimination that are accepted by the court, which in fact, implies that the court is the only alternative means of restoring equality. At the same time, considering the difficulty of obtaining evidence by applicants in the cases of discrimination, the Public Defender does not make a decision on the admissibility of the application only on the basis of the submitted applications and helps applicants, including through oral communication, to identify the comparable entity or other significant circumstances. In addition, the Public Defender uses the low standard of the burden of proof, which implies that he thoroughly examines the facts and evidences related to the case himself. In addition, if the respondent does not provide information necessary for studying a case properly, the Public Defender establishes the case of discrimination/promotion of discrimination in case of existence of relevant facts and evidences. At the same time, in case of a necessity, in order to study a case properly, the Public Defender applies situational testing mechanism. It is noteworthy that while considering the case of discrimination, the Public Defender fills the gap in the national anti-discrimination legislation based on international legal sources, as a result of which, legal uncertainty of any form of discrimination cannot serve as the basis for leaving it beyond judgment. For example, the Public Defender has submitted amicus curiae briefs in connection with the cases that concerned the following forms of discrimination: sexual harassment and refusal to provide reasonable accommodation.
The Public Defender essentially shares the recommendations outlined in the report and notes that presentation of similar documents by the NGOs is of utmost importance for improving the anti-discrimination legislation and the effectiveness of the institutions working on the protection of the right to equality.