Annual Report of the Public Defender

The document represents the Report of the Public Defender of Georgia for 2014 on the protection of human rights and freedoms in Georgia covering wide spectrum of civic, political, economic, social and cultural rights. Furthermore, it highlights positive and negative trends in human rights area for the reporting period, brings together key recommendations developed by the Public Defender towards various branches of government.

2014 was marked by several important events that can influence essential improvement of human rights standards. On June 27, 2014, the EU-Georgia Association Agreement was signed and later ratified. Deepening of political and economic cooperation with the European Union also implies harmonization of the Georgian legislative base with the EU legislation, including the area of protection of human rights.

On April 30, 2014, the Parliament of Georgia adopted the National Human Rights Strategy of Georgia (for years 2014-2020)elaboration of which was initiated by the Public Defender of Georgia back in 2012.

The Government approved the respective Action Plan of the Governmentfor 2015-2016. It should be noted that establishment of high standards of human rights in Georgia to a large degree depends on effective implementation of the above-mentioned Strategy and Action Plan.

The Law of Georgia on the Elimination of All Forms of Discriminationwas adopted on May 2, 2014, according to which the Public Defender of Georgia was assigned as an agency monitoring issues regarding elimination of discrimination and ensuring equality. Adoption of the above law is undoubtedly a step forward and will promote elimination of existing intolerance towards various minorities in the country, as well as establishment of tolerance culture and ensuring equality.

On October 27, 2014, the Georgian Government named the Public Defender’s Office of Georgia as a body responsible for monitoring popularization, protection and implementation of the UN Convention on the Rights of Persons with Disabilities. The Government Action Plan for 2014-2016 has also been adopted for ensuring equal opportunities for persons with disabilities.

The Public Defender welcomed the signing of the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention) of 2011 by the Government of Georgia.

Another issue to welcome was Georgia’s joining of the Council of Europe Convention on Protection of Children against Sexual Exploitation and Sexual Abuse in the area of elimination and prevention of sexual violence against children.

From the standpoint of the rights of children, very positive assessment can be given to a draft juvenile justice code elaborated by the Ministry of Justice of Georgia with participation of stakeholders and adoption of which is planned for 2015.

Last year, one of the main achievements in the sphere of human rights protection was liberalization of criminal justice policy consecutive implementation of which has already been reflected on proportionate and reasonable sentences, reduction of percentage indicator of application of pre-trial detention as a measure of punishment.

In 2014, local municipal authority elections were conducted in free and competitive environment. It was the first time in the recent history of Georgia that the second round was needed to elect mayors and district governors in both Tbilisi and various other regions of Georgia. This fact can be assessed as a positive development.

In 2014, the Parliament of Georgia, as it happened in 2013 as well, agreed to the significant part of the recommendations issued by the Public Defender and with the respective resolution assigned government bodies with conduction of concrete activities with this in view. Monitoring of fulfillment of the Public Defender’s recommendations has been conducted by the Human Rights and Civil Integration Committee of the Parliament of Georgia. Reports on fulfillment of the recommendations stipulated in the resolution were presented by relevant bodies before March 1, 2015;

The number of persons having applied to the Public Defender’s Office of Georgia was again high. In 2014, up to 7 thousand applications passed the threshold of allowance which represents significantly increased indicator and reflects increased expectations towards the PDO, greater public awareness and free environment in the country.

Despite the fact that, thanks to political will and implemented reforms focused on elimination of problems following dissemination of video material depicting torture and inhuman treatment in penitentiary establishments, cases of torture and inhumane treatment of inmates are no more among the list of main challenges. Nevertheless, thousands of inmate complaints on torture, inhuman and degrading treatment are still being investigated and apart from single cases, there have been no decisions made on these systemic violations.

Despite the fact that throughout last year, the institutional reform with regards to independence of court authority was under way, still numerous challenges remain with respect to increase of trust towards the court. On the course of the year, the Public Defender has repeatedly addressed the High Council of Justice with an initiative to launch disciplinary prosecution against judges whose allegedly grave violations of procedural norms were evident during case hearings. Unfortunately, when considering all proposals, the High Council of Justice limited its response to standard replies stating that no relevant infractions were noted on the part of the judges.

2014 should be positively assessed in terms of ensuring variety of information and freedom of media environment. On the part of the authorities there were no attempt to interfere into editorial policies and the right of journalists to freedom of expression; majority of public actions carried out in 2014 proceeded without major incidents, though there were some exceptions when the State failed to ensure protection of constitutionally guaranteed right to freedom of peaceful assembly, due to inaction and/or insufficient response.

The new Law of Georgia on Internally Displaced Persons - Refugees from the Occupied Territories of Georgia entered into force which is more in line with international standards existing in the aforementioned spheres.

The Public Defender believes that work conducted by the interim government commission responding to needs for socio-economic rehabilitation of conflict-affected population in villages along the so-called “administrative border line” should be assessed as successful.

Despite the described positive changes, the Parliament of Georgia left in force temporary rules for witness interrogation, while, one of the key positive aspects of enacting the new Procedure Code was the possibility of questioning of witnesses only in court.

The Public Defender of Georgia deems unsatisfactory the steps taken by the Government following large-scale amnesty with regards to persons arrested “for political reasons or persecuted for political reasons through criminal procedure”. He states that restoration of justice cannot be confined to single act of amnesty, as the Public Defender of Georgia believes, that for full legal rehabilitation of such people, it is necessary to create an effective mechanism within reasonable timeframe, which will allow not only for the restoration of dignity and reputation, but also for obtaining equitable compensation for the illegally incurred damage from the part of the State. It should be hereby noted that the department for investigation of offences committed during proceedings was established in the Chief Prosecution Office one of the functions of which is to conduct investigation into alleged criminal facts during the case proceedings, including forced dispossession of assets and facts of other forceful actions and conduction of criminal prosecution. The Public Defender expresses hope that work of the department will prove effective.

Despite legitimate expectation of the public, to this day there has not been established a legal mechanism that will allow stakeholders to have access to opportunity for appealing and reviewing the sentences in force. Thus, the Public Defender of Georgia finds it expedient to create a mechanism within the shortest possible term for reviewing enforced court judgments, including property restitution and moral compensation for illegal prisoners, if such exist.

Throughout 2014, as in 2013, the PDO was addressed by many inmates or ex-inmates who consider themselves illegal prisoners. Apart from few cases, investigative bodies have not passed summarizing decisions or/and court hearings are still under way on well-known human rights violation cases. The delay in investigation of the so-called “tennis court case” was now topped by a new tragedy of killing of Iuri Vazagashvili. Effective and prompt investigative actions on the part of the instigative bodies are needed on the cases of killings of Erosi Kitsmarishvili and Beso Khardziani. All questions that emerge with regards to these cases should be answered by reliable and reasonable replies on the basis of investigation results.

Various former officials were arrested on various charges. Political opposition, several organizations and experts were asking questions on the practice of selective justice and as to why the investigation was so interested in former high officials’ cases. Special monitoring mission of the OSCE Office for Democratic Institutions and Human Rights was set up to monitor trials of former high officials. Along with the procedural violations the presented report also mentions various facts of infringement on the principle of the presumption of innocence. Assessments of the Public Defender with regards to revealed procedural violations were presented in the Parliamentary Reports for 2012 and 2013.

On the course of 2014, the issue of institutional independence of the investigation on the alleged cases of human rights from the part of law enforcers still remained an issue. The cases examined by the Public Defender during the year gives ground to state that there are gaps in both legislation, and its implementation in practice. For effective investigation of the cases of alleged violations of human rights by the representatives of law enforcement agencies, it is important to review the existing legislation and create an independent investigation mechanism ensuring impartial study of such cases. With this respect, we should especially mention that discussions on the issue of establishment of the independent investigation mechanism stipulated in the National Human Rights Strategy and the Action Plan have been launched.

In 2014, the Public Defender’s Office of Georgia was addressed by numerous individuals with respect to facts of alleged ill-treatment conducted on the part of representatives of law enforcement bodies. Monitoring revealed that tendency was in place pertaining to the use of excessive force during detention on the part of police officials. Such facts on the part of the policemen are more frequent in western Georgia. Unfortunately, work of the Prosecution Office of Georgia regarding investigation of the above offences and prosecution of perpetrators is ineffective.

In 2014, the central penitentiary hospital was renovated and opened, which improved the med­ical services to certain extent. Moreover, Penitentiary Establishment N16 was also renovated. Implementation of the programmes of treatment of Hepatitis C and suicide prevention are under way. Despite positive changes in the penitentiary system the Public Defender of Georgia found circumstances of death of several prisoners when the state failed to ensure effective protection of life and personal inviolability of persons under its oversight, alarming. The public still remains unaware of circumstances related to death of Partsenadze and several other prisoners, as well as results of the investigation. The number of prisoners that passed away in establishments constitutes 28, and 7 out of them committed suicide.

In 2014, the number of applications pertaining to ill-treatment has increased and due to this fact, 28 proposals were sent to Chief Prosecution Office requesting launch of investigation. Another problem is qualification of alleged offences committed by law enforcers. The issue of protection of possible victims of ill-treatment is also very acute. Appropriate documenting of nature and origin of damages to bodies of prisoners and offering relevant responses is very important. Another problem is prompt conduction of medical forensic examination, acquiring of surveillance camera recordings and collection of other evidence. Respectively, it is important for the National Preventive Mechanism to have the right to make photo and video recordings in closed institutions and have access to video materials. The issue that should be stressed is the question of independence and impartiality of investigation into facts of ill-treatment of prisoners on the part of staff of the penitentiary establishment. In the number of establishments, adequate conditions remain a challenge. With this respect especially grave is the situation in the establishment N7 and it needs to be closed.

The results of the investigation of the number of high-profile cases in 2013-2014 are also unknown to the Public Defender of Georgia, including the cases of allegedly unlawful detention of the employees of the City Hall and Council of Tbilisi, alleged unlawful activities against Ivane Merabishvili and beating of the Member of the Parliament, Nugzar Tsiklauri. The alleged violation of legal requirements also raises legitimate questions in respect with the so-called “Tractors case”, which calls for undertaking of thorough investigation. Though there is no progress evident with regards to the case. In the view of the Public Defender, legitimate questions remain with respect to the impartiality of the Prosecution Office, as the body of criminal prosecution. The closed nature of the structure, which was once again revealed in the so-called “Cables case” further strengthens the suspicions. According to the assessment of the Public Defender, classification of the whole case as confidential by the Prosecution Office was not necessary which at the initial stage of the investigation hindered the free access of the defense party to the case materials. The Prosecution Office took into account the recommendation of the Public Defender and removed the classified information status off the significant part of the case materials.

This year saw no progress of the on-going official investigation of the events that occurred in the River Lopota Gorge, close to the village of Lapankuri. The investigation of events that took place near Lapankuri village on August 28, 2012, is ongoing. Information on the process and progress of the investigation are not accessible for affected families, interested parties and wider public.

Achieving gender equality remains a challenge in the country. Scale of violence against women and domestic violence is alarming. A special problem is femicide that is further aggravated by the fact that in several cases a victim had applied to law enforcement agencies requesting appropriate responses prior to an incident. Political and economic activity of women is low. It should be noted that indicators are high with respect to access of women to healthcare, as well as that of early marriage.

A challenge remains pertaining to homophobic attitudes towards LGBT persons and prompt and effective investigation of hate crimes.

The situation remains alarming with respect to protection of rights of children. The conducted monitoring revealed extreme poverty and inadequate quality of life of juveniles, problems related to the state health care services and accessibility of quality health care; high rate of mortality and poverty among children; tolerant attitude of the public towards violence against children, especially difficult situation of children in mountainous regions should become an area of special focus for the government. Another problem is low level of education, insufficient qualification of teachers, and inadequate establishment of inclusive education and low-quality adaptability of physical environment for students with disabilities. Problems exist in small group homes with respect to ill-treatment towards children, inadequate realization of the right to education and protection of children against violence. The issue of separation of juvenile offenders from adult convicts remains an acute problem.

Another problem that remains is access to psychiatric help shelters and institutions issuing documentation necessary to receive medications, development of community-oriented services based on natural, psychological and social needs, system of inclusive education, identification of facts of violence towards persons with disabilities, employment of persons with disabilities, accessibility of physical environment.

The year was problematic with respect to full realization of the right to freedom of religion, receipt of permits for construction of religious buildings, the right to property of disputed religious buildings, implementation of requirements of the law on religious discrimination in public school space and general education. Another problematic issue is effective investigation into alleged crimes committed on religious grounds.

The indicator of participation and inclusion of ethnic minorities in the decision-making process is low. The problem constitutes again the issue of studying mother tongues in the framework of the school education and the level of awareness of current developments in the country in areas compactly populated by ethnic minorities.

Despite the fact that the Parliament of Georgia approved the legislative package on confidential investigative actions that established new regulations for protection of personal data and illegal tapping which can undoubtedly be assessed as a positive step, a norm still remains in the Law of Georgia on Electronic Communications that allows state bodies to have unhindered ability to copy identification data and receive communication content in real time, that violates the right of personal inviolability safeguarded in the Constitution of Georgia. The conducted legislative changes are problematic also because despite high level of trust toward the institute of inspector of personal data protection the body represents both the party in the process of illegal tapping and the body overseeing monitoring of the process.

In 2014, following the local municipal authority elections, mass dismissal of pubic servants employed in local self-governing bodies took place in several self-governing agencies. Absence of minimal standards of labour health and safety and the alarming figure of those injured and deceased on workplaces is still apparent. Unfortunately, effective steps have not been taken on the state level to establish labour inspection – an agency responsible for monitoring labour rights. The State Program on Monitoring of Labor Conditions that was established in the Ministry of Labour, Health and Social Affairs cannot be considered as the mechanism of inspection of labour conditions and improvement of labour health and safety.

The problem of absence of database of homeless people persisted this year too. Due to this it is unknown how many people are in need of accommodation in Geor­gia. Shortage of financial resources in both central and local budgets assigned for targeted assistance of homeless persons remains one of the main problems. Extremely alarming situation with regards to realization of the right to adequate housing is in Khelvachauri, in the “cardboard settlement” close to Batumi.

Following personal visits of the Public Defender to mountainous regions of Georgia problems that concern the population became clearly apparent. Especially grave is their socio-economic situation, including access to health care and living environment/conditions. The Government of Georgia is to elaborate the general state strategy and action plan in the shortest period for improvement of human rights situation in mountainous regions. Working on preparation and adoption of the Mountainous Law in the prompt manner is necessary.

Another challenge that remains is employment of conflict-affected population, their access to healthcare, conduction of agricultural activities and migration. Problems are still acute with respect to security and movement of the population living on the territory adja­cent to the demarcation line with Abkhazia and South Ossetia. Unfortunately, neither the situation with regards to the detained has changed.

Another serious challenge facing us is accommodating refuges and their living in precarious health conditions.

The issue of so-called overlapping of land plots is still acute pertaining to the right to property; other pressing issues include the right to life and living in safe and healthy environment; level of awareness with regards to adequate, prompt and effective information, as well as the level of involvement of stakeholders in the initial stage of the decision-making process with respect to environmental protection. An issue that poses a particular problem is planned construction of Hudonhes hydro power station, as well as the effect of mining activities on the territory near Sakdrisi on the natural environment and health of the population.

Last year, many cases were recorded when persons were restricted their right to freedom of movement. These persons included both foreign citizens wishing to enter Georgia and Georgian citizens crossing the state border. With regards to the above cases the Public Defender, despite his repeated requests, could not acquire information from relevant bodies on factual and legal grounds for refusing entry or departure.

Compared to previous years, conditions of tens of thousands of families affected by natural disasters remain alarming. The state is not implementing programmes to ensure adaptation of eco-migrants to the place of re-settlement in the region.

The report reviews legal rights of refugees and persons seeking asylum and foreign citizens in Georgia, as well as legal rights of repatriates - victims of 1944 repressions.

A separate chapter is dedicated to the issue of legal right of the elderly. Last year serious challenges were noted with respect to this issue.

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