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Recommendation on Discrimination on Grounds of Association Membership

On May 13, 2016, the Public Defender of Georgia addressed the Government of Georgia to draft amendments to the law on higher education in order to bring the law in compliance with the principle of equality and to provide every student with the right to participate in the management of a higher educational institution regardless of their association membership.

In response to the protests launched by the students of Tbilisi Ivane Javakhishvili State University on April 20, 2016, the Public Defender started proceedings on his own initiative in order to study the violation of the equality rights in the law on higher education.

According to the norms of the mentioned law, only members of student self-government are members of the department board, and therefore, only members of the student self-government are involved in the management of the educational institution and implementation of important functions, while students who are members of other associations within the University or are not members of any association at all are deprived of this possibility.

The given record in the law contradicts the negative aspect of the right of association, as far as the necessary condition for participation in the management of the department or the university is that the student must be a member of a self-government, which is an indirect coercive mechanism and limits the negative aspect of the student's freedom of association. As a result of the violation of the negative aspect of the freedom of association, students who do not join the self-government are in a disadvantageous situation in comparison with the member students.

The Public Defender takes into view the fact that students who are not members of a self- government, are not deprived of the opportunity to become the department board members and take part in the management of the university, however, the analysis of the law cannot reveal an apparent legitimate purpose that would justify participation of only students of certain association in the management process. The aim of the norm, which forces students to join an association against his/her free choice in order to be able to enjoy a number of fundamental rights, is vague.

The Public Defender considers that the students’ right to be elected to the representative body of the department and participate in the management of the university is unjustifiably linked with the fact whether they are members of a certain association or not, as far as this represents a barrier for students to enjoy their rights and does not have any practical purpose. Such kind of approach without reasonable justification puts non-member students of the self-government in unequal conditions, which constitutes direct discrimination on grounds of associationmembership.

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