Public Defender’s Statement in connection with International Human Rights Day
On December 10 - International Human Rights Day, the Public Defender of Georgia is summarizing the human rights situation in Georgia with this statement.
In 2020, the main challenge in Georgia, as well as around the world, was to deal with Covid-19 and its consequences. Due to the rapidly growing number of patients, it is becoming increasingly difficult to provide adequate medical care to the population. The media spreads information periodically about cases where family members indicate delayed hospitalization and treatment, causing the death of patients. Such facts raise questions in the public about the effectiveness of the measures taken by the State in the fight against the epidemic. Accordingly, the Public Defender of Georgia calls on the Ministry of Health to provide information to the public about the results of the examination of such cases and the measures taken.
Another major challenge in 2020 was to hold parliamentary elections in a fair and equal environment. The Public Defender of Georgia considers that violent incidents, as well as the use of administrative resources, control of the will of voters, pressure and attacks on observers and media representatives on the election day, and the processes of counting the votes and summarizing the results were problematic during the 31 October elections. Unfortunately, most of the complaints filed by stakeholders to the election administrations and courts relating to substantial irregularities and imbalances in the summary protocols have not been considered or granted, which deepened public distrust and protest.
The shortcomings identified during the October elections created a political crisis in the country. The situation was further aggravated by the severe epidemiological situation and the economic crisis created by the pandemic. Consequently, it is important to conduct negotiations with all election entities and agree on a political solution in order to carry out important reforms and strengthen independent and democratic institutions.
Like last year, 2020 was noteworthy in terms of the protection of freedom of assembly. Dozens of assemblies-demonstrations of different scales were held during the year.
The Public Defender critically assessed the dispersal of people gathered in front of the Central Election Commission with water cannons on November 8. It is important to note that the above was not preceded by a warning of demonstrators, which is a direct violation of the law. The force used was not necessary or proportionate.
Journalists were among the people injured during the rally in front of the Central Election Commission. They said law enforcement officers fired water cannon at them intentionally, from a close distance, even though their professional status and activities were identifiable.
Unfortunately, the exercise of the right to freedom of assembly was affected by the restrictions imposed by the Government of Georgia on freedom of movement. Despite the call of the Public Defender, the persons exercising their right to freedom of assembly were subjected to sanctions on the basis of the above-mentioned regulation. Accordingly, we negatively assess the cases of fining citizens during an assembly in front of the Parliament of Georgia after 22:00, on the night of November 9.
Like last year, there were numerous cases in 2020 when representatives of the Ministry of Internal Affairs prevented protesters from bringing firewood for heating. The superficial and blanket interpretation of legislation by the Ministry of Internal Affairs has been a problem in recent years, referring to the need for proper substantiation in each individual case.
The investigation of the events developed in front of the Parliament on the night of June 20-21 last year is pending. Unfortunately, apart from certain focuses on the offences of rank-and-file police officers, the Prosecutor’s Office has not been able to objectively or fully assess the responsibility of high law enforcement officials. Only 3 police officers were charged with violence against citizens, whereas the number of protesters charged with violence was 17. It should be underlined that the Public Defender addressed the Prosecutor General's Office with a proposal to launch criminal proceedings against a specific official, which has not been responded yet.
In terms of assessing media freedom, the events developed in the Adjara Public Broadcaster were particularly interesting. Based on the examination of the cases of the dismissed journalists, the Public Defender found that not only the labour rights of the employees were violated, but they were also persecuted for their different opinion, in particular for openly criticizing the management decisions, which is prohibited by the Criminal Code. On October 21, 2020, the Public Defender of Georgia addressed the Prosecutor General of Georgia with a proposal to launch an investigation into alleged persecution. However, unfortunately, our recommendation has not been endorsed.
During the state of emergency, when normative restrictions were imposed on access to public information, namely issuance of public information was suspended, no special rule was developed for proactive publication of public information by public institutions, which may have somewhat balanced the restrictive measures. The Public Defender also particularly disapproves of the fact that the freedom of information act has not been submitted to the Parliament yet (although this obligation has been provided for in the Open Government Partnership Action Plans of Georgia since 2015) and there are no effective mechanisms for ensuring access to information or monitoring freedom of information.
The selection of the Supreme Court judges has been a topical issue this year too. The Public Defender negatively assesses the legislative amendments adopted by the Parliament in September 2020 relating to the selection of judicial candidates of the Supreme Court of Georgia, which leaves in force the rule of secret decision-making on the selection of judges by the High Council of Justice.
It is particularly noteworthy that the September amendments were negatively assessed by the Venice Commission as well. The organization issued recommendations to remedy the shortcomings. It should be noted that the OSCE/ODIHR observation mission will again monitor the ongoing selection of the Supreme Court judges at the invitation of the Public Defender.
The epidemic affected the administration of justice as well. In particular, the decree issued by the President of Georgia on March 21, inter alia, provided for the possibility of remotely holding the hearings of cases that fall under the criminal procedure legislation, which was motivated by the protection of the life and health of those involved in the criminal proceedings. It is noteworthy that remote hearings have become a significant challenge in the context of the right to a fair trial. There was no opportunity for confidential communication with a lawyer for the vast majority of defendants, while during the questioning of witnesses, in some cases, the court failed to verify the credibility of the witness. Translation-related deficiencies were also evident during several hearings.
2020 was full of high-profile criminal cases.
In this regard, the case of premeditated murder of Giorgi Shakarashvili should be underlined. The Public Defender's Office examined materials of the case during investigation, as an exception. The examination revealed that the investigative activities carried out by the Mtskheta-Mtianeti Police Department at the initial stage of the investigation were not thorough. In addition, witnesses were not asked detailed questions about all issues, and the information obtained from them was not properly confirmed or verified (e.g. through identification or experiment). Some of these shortcomings were later remedied by the investigation. There were also alleged violations that require an official examination by the General Inspectorate. On August 20, 2020, the Public Defender addressed the Minister of Internal Affairs of Georgia and the Prosecutor General of Georgia with a proposal and called on the investigative agencies to conduct a specific investigative activity and official inquiry into the case. The Public Defender's Office continues to monitor the court hearings relating to the Giorgi Shakarashvili case.
The Public Defender's Office, as an exception, also examined the guilty verdict delivered against Mariana Choloyan, former investigator in the Luka Siradze case. Examination of the case materials revealed alleged influence on witnesses by one of the employees of the Ministry of Internal Affairs of Georgia. It was also found that not all circumstances important for the case were properly examined during the investigation and therefore there is still need for carrying out further investigative activities. In addition, alleged false testimony by one of the important witnesses was identified. Based on the above, the Public Defender addressed the Prosecutor General of Georgia with a proposal to launch an investigation into alleged influence on witnesses, as well as to examine the conflicting information in the testimonies of one of the witnesses, and the motive, purpose and circumstances of changing the testimony. In addition, in order to identify other persons responsible (besides Mariana Choloyan), it is necessary to carry out identification procedure with the participation of a specific witness.
On January 25, 2020, the Prosecutor's Office terminated the criminal case of Temirlan Machalikashvili's death. The Public Defender believes that the terminated investigation should definitely be resumed, as a number of issues remain unestablished, which requires further investigation in accordance with the international standard of effective investigation. The Public Defender addressed the Prosecutor's Office with a proposal to resume the investigation. However, unfortunately, the Prosecutor's Office did not endorse the proposal.
The Public Defender’s Office is actively and thoroughly examining the so-called cartographers’ case. The employees of the Office are examining the case materials provided by the defense; meetings were held with representatives of the Prosecutor General’s Office. The subject of our examination is to establish whether the activities carried out by the accused can be considered a criminal action (taking into account the facts that they submitted the case to the commission, decision was made collectively and other agencies were involved in the process). Evidence is still being gathered and our final assessment will be known after the full examination of the case materials. One of the directions of our work in this case is also the assessment of the case according to the legal standard established by Article 18 of the European Convention on Human Rights (alleged political purposes in the administration of justice).
As for the rights situation of persons detained or deprived of their liberty who are under the effective control of the State, the persons detained in 2020 continued to report the excessive use of force during detention and physical and psychological violence after detention. Similar cases are especially common during administrative detentions. In addition, timely access to a lawyer and provision of information to detainees about their rights remain problematic. The absence of legal obligation to use body cameras, as well as the fact that the spaces of police buildings where detainees/citizens may be present are not covered by surveillance system, is also a problem.
The Public Defender positively assesses the active communication between the State Inspector's Office and the Public Defender's Office in 2020 and the practice of providing detailed information on the investigative activities carried out.
Another important challenge is the criminal subculture and informal governance in penitentiary establishments, which, in addition to the violence and oppression of prisoners, also threatens the effective functioning of the National Preventive Mechanism. In particular, there were cases in 2020 when the so-called privileged prisoners verbally abused representatives of the Public Defender or obstructed their activities. These incidents are of particular concern, as it is clear that the obstruction of the Public Defender’s activities in penitentiary establishments has become a systemic problem that requires timely and effective response by the governmental agencies.
Unfortunately, the Public Defender's activities have been obstructed during 2020 by the authorities as well. In particular, there were repeated cases when the Minister of Justice and the Special Penitentiary Service illegally released videos and information about the meetings held between prisoners and the Public Defender or her representatives.
It is noteworthy that the State Inspector identified the release of the video footage as a violation and fined the Ministry of Justice and the Special Penitentiary Service. In addition, the court identified non-porvision of information to the Public Defender by representatives of the Penitentiary Service, including the Director General of the Service, as a violation.
The special conditions introduced in the penitentiary establishments for the management of the epidemic have had a significant impact on the rights situation of prisoners. The scarce rehabilitation activities of the establishments have been suspended. Prisoners' contact with the outside world has been restricted as much as possible, in particular, defendants and convicts have been denied the right to use long and short visits or receive parcels provided for in the Impisonment Code.
The caution of the Special Penitentiary Service relating to the epidemic, as a result of which no cases of coronavirus infection have been reported in the penitentiary establishments, is welcome. The commitment of the employees who have to work in the establishments under extraordinary conditions should be emphasized. Their workload has significantly increased, which requires adequate compensation. At the same time, it should be noted that from an epidemiological point of view, large penitentiary establishments create a risky situation due to the high number of prisoners and overcrowding, which has been an unresolved problem for years.
One of the priority issues of the work of the Public Defender's Office in 2020 was the rights situation of the conflict-affected population. As in previous years, freedom of movement, closure of the so-called checkpoints and the borderization process remain major problems in the occupied territories, which create serious problems for locals in terms of movement, access to health services and education. One of the most problematic issues remains the detention of citizens and illegal restriction of their liberty near the occupation line. The Public Defender is particularly alarmed by the 9-year illegal imprisonment of Georgian citizen Irakli Bebua in occupied Abkhazia for exercising his right to freedom of expression, as well as the wounding, kidnapping and illegal deprivation of liberty of Georgian citizen Zaza Gakheladze by the occupation forces.
In terms of the rights situation of IDPs, as in previous years, the situation of internally displaced families living in buildings dangerous for life or health remains a challenge. In order to accelerate the process of resettlement of IDPs from similar facilities, it is necessary for the State to allocate additional resources. It is also problematic that no rules have been developed for the resettlement of IDPs from similar facilities yet. At the same time, the quantitative statistics on similar dangerous buildings, where IDPs continue to live in, need to be specified across the country.
The stereotypical views and prejudices of the society, cases of hate crimes and discrimination in the workplace remain major challenges in terms of protection of the right to equality.
Since May 2020, there have been systematic attacks on members of the LGBT+ community by radical groups. Inter alia, there have been cases of damaging the Tbilisi Pride office with paints, throwing eggs, stealing a flag, verbally abusing and threatening individuals. The law enforcement agency failed to adequately ensure the prevention of violence. It is important that each violation be followed by an adequate response and effective investigation.
Sexual harassment of women remains a challenge. Cases of sexual harassment were identified both in the workplace and during the provision of medical services. At the same time, the frequent sexist statements by politicians and public figures need to be assessed as a negative trend.
The situation of women whose source of income was informal economic activity has worsened during the pandemic. In addition, women’s unpaid family care burden has increased due to the closure of kindergartens and schools, as well as overcrowded medical services.
The situation of victims of domestic violence, who have been left face-to-face with abusers, has been especially aggravated, which increases the risks of domestic violence and, at the same time, reduces the possibility of detecting the cases of domestic violence. Awareness of the state services relating to violence against women and domestic violence is still low.
During the first 9 months of 2020 (January-September), 19 women were murdered in Georgia; 12 of the cases contained signs of domestic crime and 7 cases had other motives. In addition, there were 23 attempted murders of women, 14 of which contained signs of domestic crime.
The full realization of sexual and reproductive health-related rights remains a challenge in Georgia. The above is conditioned by the low level of public awareness on the one hand and the lack of appropriate measures taken by the State on the other hand. The practices of early marriage and engagement remain one of the most important challenges.
The participation of national minorities in the decision-making process, effective exercise of their right to education, availability of information on relevant programmes and services and involvement in local self-governance are still problematic.
It is noteworthy that ethnic minorities have been particularly vulnerable to the novel coronavirus. The main problem was the provision of information related to Covid-19 in a form accessible to them.
With regard to freedom of religion, the restitution of property confiscated during the Soviet time, creation of an equal environment in the education system, especially in schools, and elimination of violence and intolerant stereotypes remain unresolved. It should be noted that the Georgian Government's regulations relating to the novel coronavirus were in some cases discriminatory against non-dominant religious associations.
This year, the Parliament of Georgia adopted the Law of Georgia on the Rights of Persons with Disabilities, which is an important step towards harmonization of domestic legislation with international standards, but the law needs further refinement. To date, no state agency responsible for coordinating the implementation of the UN Convention on the Rights of Persons with Disabilities has been identified. In addition, the Optional Protocol to the Convention has not been ratified, which prevents persons with disabilities from applying to the relevant UN Committee in connection with violations of their rights.
Families had problems with meeting the needs of persons with disabilities at home during lockdown. The suspension of rehabilitation programmes for persons with disabilities, including the majority of children with disabilities, who were involved in the state programme for social rehabilitation and childcare, not only hindered their development and rehabilitation, but also created the real danger of losing the results achieved.
According to the anti-crisis economic plan, only persons with severe disabilities and children with disabilities will be able to enjoy social benefits, while those with significant and moderate disabilities, as well as part of children with Down syndrome and autism, who have no disability status due to the faulty assessment model, have been left without assistance.
The inclusive education is also faulty. Remote education in formats accessible to students with disabilities and special educational needs, as well as access to communication techologies and the Internet, has been identified as a challenge.
Sanitary-hygienic conditions and overcrowding of mental health institutions, as well as the lack of possiblity to maintain distance or equip staff with personal protective equipment, increases the risk of spreading the infection.
The monitoring team received numerous reports of physical and psychological violence against patients by staff, as well as conflicts between patients at Tbilisi Mental Health Center.
In 2020, amid the epidemic, older people have been in need of special care, as they are highly vulnerable to the novel coronavirus worldwide. Despite the measures taken by the Government of Georgia in the fight against Covid-19, namely introduction of mandatory testing of beneficiaries and staff in care homes for older people, the cases of the virus have been detected in these institutions, indicating the need for additional prevention, control and monitoring measures.
Single, socially vulnerable and care dependent older people need special attention. The current crisis has made it even clearer that older people need home care programme and access to palliative care, which is currently limited. Therefore, it is necessary for the State to take steps to expand the geographical area of the programmes and to ensure universal access to them.
The Code on the Rights of the Child took effect on September 1, 2020, establishing a system of support and protection of children’s fundamental rights and freedoms.
Unfortunately, child poverty and inadequate living standards have remained unresolved issues for years. The child social protection system fails to protect minors from extreme poverty, which often threatens the lives and health of children. In this regard, the tragedy that occurred in Baghdati Municipality on February 3, 2020, which claimed the lives of 4 minors, is particularly noteworthy.
In the wake of the Covid-19 pandemic, special attention should be paid to children under state care, living and working on the street, as often their basic needs are not met. It is necessary for the State to take additional support measures to ensure access to education for every child, which is especially problematic during the remote learning process, due to the lack of access to the Internet and computer equipment for children living in poverty and mountainous regions.
The emergency measures introduced in the country as a result of the spread of Covid-19 created serious problems in terms of the protection of the rights of the homeless. Unfortunately, the country has no unified database on the homeless, while some municipalities have no local databases either. No targeted programmes are implemented to help the homeless in 19 municipalities of the country. In the absence of accurate statistics, it is essential to timely identify homeless people living on the streets and provide shelter to them. The homeless, who are unable to care for themselves after shelters refused to accept them, are particularly vulnerable, as they are at a life-threatening risk, especially in winter.
2020 was also important in terms of the regulation of labour legislation. The establishment of a labour inspectorate equipped with full mandate, which will be empowered to oversee compliance with labour legislation from 1 January 2021, needs to be underlined.
Despite the above positive changes, the pandemic has worsened the rights situation of employees in the country. Compulsory unpaid leave for an indefinite time or termination of contracts in violation of the requirements of legislation have been of systemic nature in 2020.
The lack of preventive measures to protect the rights of eco-migrants remained a problem. Most local governments do not take measures to prevent eco-migration and respond to the problem only after the damage occurs. In October, a tragedy took place in Khelvachauri, in the village of Kveda Jocho, where 5 people were killed by landslide. This fact once again showed the need for the State to take adequate preventive measures in this direction.
Finally, the novel coronavirus has negatively affected foreign nationals in Georgia, especially asylum seekers, who have found themselves behind certain components of the anti-crisis social programmes.
The results of the work of the Public Defender's Office show that the State faces a number of important challenges and needs in terms of the protection of human rights and freedoms. The Public Defender expresses her full readiness to cooperate with state agencies in order to work together to resolve the challenges referred to in this statement.