Public Defender’s Report on Situation of Human Rights and Freedoms in Georgia in 2015
This document is a report of the Public Defender about the situation of human rights and freedoms in the country in 2015 and highlights civil, political, economic, social and cultural rights. It also draws attention to the upsides and downsides in the human rights area during the reporting period and brings together the Public Defender’s important recommendations provided for the branches of the Government. The document was designed on the basis of paragraph 1 of article 22 of the Organic Law on the Public Defender and shall be submitted to the Parliament.
In 2015, Georgia was elected as a member of the UN Human Rights Council at the UN General Assembly plenary session. It is important Georgia not only to effectively perform its obligations under the United Nations, but also to get closer to international standards and to use the UN system for improving responseto human rights violations and the human rights situation in general. The Council membership is a new challenge for the country and means that Georgia should give advantage to the human rights issues both in its home and foreign policies.
In 2015, the Parliament of Georgia shared significant part of the Public Defender’s recommendations and adopted a resolution by which it commissioned relevant agencies to take certain measures. The Parliament’s Committee of Human Rights and Civil Integration carries out monitoring of the implementation of the Public Defender’s recommendations. Unfortunately, some very important recommendations were not implemented, which creates serious risks in terms of protection of human rights in the country.
The number of applications submitted to the Public Defender's Office was still high. In 2015, about 7 thousand applications were considered as eligible, which is a significantly high figure and refers to the increased expectations towards the Office, as well as to the raised public awareness on the violation of rights and existence of free environment in the country.
During the year, the Government of Georgia, within its obligations under international and national levels, continued to carry out reforms in the justice system and law enforcement agencies.
We welcome the reforms carried out in the prosecution system, which improves the independence of the Prosecutor's Office. However, there are still a number of challenges, which, unfortunately, were not taken into account during implementation of the reform, including the rules of staffing of the Prosecutorial Council and maximum de-politicization of the Prosecutor's Office.
The changes carried out in the field of state security, namely, separation of the State Security Service from the Ministry of Internal Affairs, was a positive step. However, it should be noted that in this regard a number of challenges still remain, including absence of a mechanism for civic monitoring of the safety system. It was a step forward that the essence of the so-called “ODR” institution (ODR is a Russian abbreviation that stands for ‘Acting Reserve Officer’, a person inculcated into an institution and acting on behalf of the secret police) was changed as a result of the amendments made in the field of state security. There is no more an indefinite circle of institutions, which can provide the State Security Service with information of unspecified type and volume. The law established the list of high-risk agencies and specifically defined categories of information which can be exchanged. However, despite this change, in March 2016, information about existence of the “ODR” institution was one again voiced at Ivane Javakhishvili Tbilisi State University. Therefore, it is necessary to thoroughly implement the legislative regulations in practice and to eradicate ugly practice of illegal collection of information from various public and private institutions beyond the statutory regulations. The Public Defender calls on the Parliament to create a temporary fact-finding commission to check the use of the “ODR” institution after the amendments took effect, including in the agencies where their function is prohibited by law.
In recent years one of the major achievements has been liberalization of criminal policy in the area of human rights, consistent implementation of which has already been reflected in reasonable and proportional punishments, as well as in reduction of percentage of the use of pre-trial detention. Other positive developments were the adoption of the Juvenile Justice Code and the amendments made to the Criminal Code regarding the rules of questioning of witnesses, which took effect in February 2016. However, in order witnesses to be questioned according to high standards of human rights, it will be necessary to improve the law in the future too.
In the reporting period, an important legislative package was developed within the third wave of the justice reform. The legislative package took into view one of the main recommendations of the Public Defender with regard to electronic distribution of cases in the court. It should be noted that despite the institutional reform carried out for the judiciary independence, a lot of challenges still remain to be overcome for increasing trust towards the court.
Particularly alarming was the non-transparent and formal process of appointment and promotion of judges ongoing in the High Council of Justice, which was not based on a fair and objective assessment of the candidates' professional activities. Like in previous years, the Public Defender repeatedly appealed to the High Council of Justice to initiate disciplinary proceedings against the judges, who had allegedly violated procedural norms during consideration of cases, but the appeals remained without an adequate response.
Although cases of torture and ill-treatment is no longer the major challenge, investigation of thousands of prisoners’ complaints on torture, inhuman and degrading treatment are still pending and except for single cases, no results have been achieved with regard to these systemic violations of human rights.
During the reporting period, effective investigation of alleged ill-treatment committed in police stations and penitentiary facilities remained a problem. The Public Defender welcomes the amendment made to the Imprisonment Code of Georgia in 2015, according to which, from September 1, 2016, the Public Defender/Special Preventive Group will be allowed to take photos in penitentiary institutions. The changes aimed at improving the internal inspection system and centralized management of the penitentiary system are also welcome. The Public Defender also hails the introduction of a system of convicts’ risk assessment and stresses that it is important to properly assess the existing risks and then periodically review them. In this process prisoners should be able to enjoy legal safeguards without any hindrance.
There are substantial gaps in appropriate documentation of prisoners’ injuries, their nature and origin, as well as in responding to such cases. The investigative body, in many cases, is unable to get recordings of the surveillance cameras, as they are not kept in a reasonable period of time. Despite the Public Defender’s recommendation, under which such recordings must be retained for a reasonable period, as per the order №35 of the Minister of Corrections and Legal Assistance of 19 May 2015, the recordings are kept for at least 24 hours. Therefore, it remains unclear how long the recordings are kept. Herein, it should be noted that, unfortunately, the Public Defender or the Special Preventive Group members are not given the opportunity to watch the recordings, which is extremely important for the implementation of the mandate of the National Preventive Mechanism. Given all this, the Public Defender thinks that there still exists high risk of ill-treatment in penitentiary facilities.
Despite the Public Defender's recommendation, as per the 6th part of article 54 of the Imprisonment Code, the prison administration still has the right to visually observe (though not listen to) the meetings between prisoners and the Public Defender/Special Preventive Group member by using technical means of remote monitoring and recording, which, according to the Public Defender, is contrary to the principle of confidentiality. In addition, the growing trend of using placement of prisoners in a solitary confinement cells as a disciplinary punishment and in general, varied use of disciplinary penalties, which puts into question the proportionality of the use of disciplinary penalties, remain problematic.
Prevention of violence among prisoners, implementation of effective measures against the impact of prison’s criminal subculture and observance of order remain significant challenges, which along with other factors, are conditioned by the lack of rehabilitation and re-socialization activities of prisoners. Infrastructure of closed institutions does not enable prisoners to be engaged in sports or other interesting activities that negatively affect their health and well-being. In such conditions, dissatisfaction of prisoners is growing, which in the end results in infliction of self-damages or use of other extreme forms of protest by prisoners due to lack of effective requests/complaints mechanism.
The Public Defender is concerned about the fact that convicts’ contact with the outside world is extremely limited, which is contrary to the principle of the presumption of innocence. It is important to implement appropriate legislative changes in order to better protect the rights of convicts.
During the reporting period, monitoring showed that prisoners are frequently transferred from penitentiary institutions located in eastern Georgia to the facilities in western Georgia and vice versa. In addition, it should be noted that in most cases, decisions on the transfer are based on a confidential letter of the prison director, which is not available for the Public Defender/Special Preventive Group member. As a result of such long-distance transportation, prisoners have problems in communication with their families and lawyers.
It should be noted that physical environment and sanitary condition in the facility N7 are still important problems. The Public Defender has issued a number of recommendations on closure of the establishment given the difficult situation there. The Public Defender’s recommendation remains the same in connection with the closure of the institution, though he considers that before the closure it is necessary to immediately take temporary measures to somehow alleviate prisoners' condition.
Compared to the previous year, prisoners’ death rate, including suicide cases, was decreased. This refers to the progress achieved in the prison health care; however, it is important to continue efforts to improve the health care system in the penitentiary system.
In 2015, compared to 2014, the number of Public Defender’s proposals sent to the Prosecutor's Office of Georgia about investigation of cases of ill-treatment committed by police officers was increased. The high risk of torture and other ill-treatment was also confirmed by the examination conducted by the Special Preventive Group at the Ministry of Internal Affairs.
The Public Defender considers that ill-treatment of detainees by police officers was critical in 2015. He is concerned about the fact that in most cases, the applicants' explanatory notes make it clear that police officers had been trained in advance to exert physical and psychological violence on prisoners in order to make them plead guilty, which is a sign of torture crime.
The nature and localization of injuries on some of the applicants’ bodies, as well as the fact that some of them were transferred to civil hospitals due to the received injuries, is especially worrying. It is especially noteworthy that, in some cases, detainees had to spend a night in a police department before being put in a temporary detention center. In the studied cases, the duration of presence of the detainees under the control of police officers, ranges from 5 to 23 hours. In addition, in some cases, the factual time indicated in the detention documents do not match the time named by the applicants in conversations with the Public Defender’s representatives.
The Public Defender is concerned about the fact that investigations were launched under article 333 of the Criminal Code of Georgia on the basis of his 11 proposals submitted to the Chief Prosecutor, whereas the circumstances indicated in the proposals contained signs of torture and inhuman or degrading treatment.
However, it should be noted that the situation somewhat improved in terms of categorization of crimes committed in the prison system during the reporting period. Following the Public Defender’s appeals, a number of crimes committed in the penitentiary facilities were categorized under special article 1443 of the Criminal Code of Georgia (inhuman or degrading treatment).
Particular concern was caused by the beating of lawyer G.M. by police officers in the 5th division of Vake-Saburtalo police department of Tbilisi on November 8, 2015. Despite the fact that charges were filed against the chief of the division, the Public Defender considers that other involved police officers should also have been identified and punished, which can be assesses as a drawback of the investigation.
One of the most alarming cases of 2015 was the prominent case against G.O. who was charged with false reporting. The law enforcement officers allege that the prisoner provided false information to the Public Defender, on the basis of which an investigation was launched into alleged ill-treatment of the inmate in the penitentiary facility. Later, the investigation was terminated and charges were filed against the prisoner himself with regard to false reporting for personal interests.
Information provided to the Public Defender on torture or ill-treatment cannot be used against a person/prisoner or serve as grounds for launching criminal proceedings against him. This is conditioned by international conventional commitments and obligations on absolute prohibition of torture, as well as by foundations of the implementation of the mandate of the National Preventive Mechanism. In addition, the given case, due to the real risk of criminal liability, creates the likelihood that all inmates will refrain from submitting complaints, which can become an unconditional impeding factor in the fight against ill-treatment.
Unfortunately, performance of the Prosecutor’s Office of Georgia remains ineffective in terms of the investigation of crimes of torture, inhuman and degrading treatment, and punishment of perpetrators. Institutional independence of the investigation of similar crimes remained a problem in 2015, which once again, strongly emphasizes the need for creation of an independent investigative mechanism in the shortest possible time for investigation of cases of torture, inhuman and degrading treatment in penitentiary institutions.
The Public Defender describes the steps taken after the large-scale amnesty by the Government in connection with "political prisoners and politically persecuted persons" as unsatisfactory. The process of restoration of justice cannot be limited to a single act of amnesty, since for full legal rehabilitation of this category of persons it is important not only to restore the dignity and reputation, but also to compensate for the loss inflicted by the state.
It should also be noted that on 13 February, 2015, an investigative department was set up in the Prosecutor's Office which will investigate crimes committed during legal proceedings, including forced concession of property and other facts of coercion.
Despite the legitimate expectations of the society, the state has not created any legal mechanism that would enable all the stakeholders to revise the enacted decisions, including restitution of property and moral compensation for unlawful convictions.
Despite the repeated appeals, results of the criminal investigation of the high-profile cases indicated in the Public Defender’s 2013-2014 parliamentary reports are still unknown. Unfortunately, information about the process and progress of the investigation is not available to the victims' families, the stakeholders or the public. We believe that the actions of the law enforcement agencies should be transparent and effective in this regard.
Results of the official investigation into the events developed near the village of Lapankuri, Lopota Gorge, are still unknown. The investigation is pending regarding the events of August 28, 2012, in the Lopota Gorge. Information about the process and progress of the investigation is not available to the victims' families, the stakeholders or the public. Accordingly, the investigation must be regarded as ineffective. Three years have passed since those developments and the Public Defender once again calls on the Parliament to set up a temporary investigative commission to examine the mentioned events.
An important event of 2015 was the decision of the International Criminal Court Prosecutor which addressed the Court’s Judges and requested authorization to initiate an investigation into the alleged war crimes and crimes against humanity in relation to the August 2008 armed conflict in Georgia. The International Criminal Court satisfied the appeal in 2015.
Many former high officials were arrested on various charges. Misuse of pre-trial detention measure against them created signs of selective justice. In this context the progressive and important decision of the Constitutional Court in the case of "Georgian Citizen Giorgi Ugulava v. Parliament of Georgia" deserves attention.
Pre-trial detention was ordered for three persons, participating in a rally in front of the Parliament building in the city of Kutaisi, for abusing Georgian Dream MP Davit Lordkipanidze, whereas the measure of detention was not used in several other cases when members of the United National Movement party were oppressed. The court used only administrative fines against the offenders in the mentioned cases. The abovementioned raises signs of selective justice. It is welcome that the decision on pre-trial detention was later changed.
Demonstrations held in 2015 passed without any complications, but there were a few exceptions, where the state failed to ensure the constitutionally guaranteed right to peaceful demonstration, and/or the freedom of assembly was unduly restricted.
Diverse media environment was ensured during the year. However, at the end of the year, problems arose with regard to maintenance of healthy media environment and unjustified interference with the freedom of expression by court during the judicial dispute over Rustavi 2 TV. In addition, during the reporting period a number of issues related to access to public information remained a challenge.
Violation of the right to privacy was of large-scale problem in 2015. There were cases of the release and public display of videos showing torture, inhuman and degrading treatment, as well as the release of audio recordings of personal telephone conversations. The syndrome of impunity and ineffective investigation of similar crimes stimulated new crimes, culminating in the release of secret recording of private life in March 2016. The Public Defender calls on the Prosecutor’s Office to promptly and effectively investigate the crimes and to bring to justice all the persons who created, obtained and released the recordings. The Public Defender hopes that the Parliament will make relevant amendments to the Criminal Code in a reasonably short period of time, which will significantly tighten sanctions for the violation of privacy.
Although the Parliament approved a legislative package on covert investigative actions, as per which new regulations were introduced for covert listening and personal data protection, which is a step forward, there remains a norm in the law on "Electronic Communications" that gives the state agencies the right to copy identifiable data and to continuously get the contents of the communications in a real time.
Absence of minimum standards of labour safety and an alarming number of casualties in the workplace are other issues of concern. Unfortunately, no effective steps were taken at the state level to create a labor inspection mechanism that would be responsible for monitoring the protection of labour rights, something demanded by the Public Defender in his several recommendations in recent years. The program developed by the Ministry of Labour, Health and Social Affairs cannot respond to the existing challenges.
Achieving gender equality remains a problem in the country. In particular, women's political and economic activities are low. Scales of violence against women and domestic violence are alarming. Femicide represents a particular problem. In addition, high rate of early marriage deserves special attention. Unfortunately, despite the repeated promises made by high-ranking officials, the Council of Europe Convention of 2011 “on preventing and combating violence against women and domestic violence” (Istanbul Convention) was not ratified by the Government.
Homophobic attitudes towards LGBT persons, as well as timely and effective investigation of hate crimes, remain a challenge. The Public Defender of Georgia welcomes celebration of the International Day Against Homophobia and Transphobia on May 17, 2015, in peaceful environment. However, it should be noted that none of the persons involved in the violent crimes committed on 17 May 2013 has been held responsible.
Fight against discrimination is one of the most significant challenges in Georgia. Adoption of the Law on Elimination of all Forms of Discrimination was a step forward. However, it should be noted that the gaps of the law poses a real obstacle for the Public Defender to effectively carry out his function of eliminating discrimination and ensuring equality, while it prevents victims of discrimination to effectively restore their violated rights. The Public Defender addressed the Parliament with a legislative proposal to eradicate gaps in this area. Despite the fact that the proposal was initiated by the Parliament, unfortunately, the process is delayed and no amendments have been made to the law so far.
During the reporting period, one of the most important events was the satisfaction of the constitutional claim of the citizens of Georgia, Ucha Nanuashvili and Mikheil Sharashidze, by the Constitutional Court, as a result of which the Court declared the norms of the Election Code on the definition of 73 single-mandate electoral districts as unconstitutional.
Parliamentary by-elections were held in Martvili and Sagarejo majoritarian districts. Public discussion was caused by the opening of a polling station in the military part as an exception in Sagarejo. By the Public Defender’s assessment, the existing legislative regulations should be changed in this direction.
The situation is still alarming and worrying in terms of protection of children's rights. During the reporting period, high rates of child mortality and poverty, inadequate life of juveniles, unavailability of public health services, tolerance of the society towards violence against children, are still problematic. The state should care about particularly difficult situation of children in the mountainous regions. In addition, acute problems are observed in children’s group homes and boarding schools under religious organizations. Separate placement of juvenile prisoners from adult prisoners is still urgent.
The full enjoyment of freedom of religion is a problem. In particular, getting a permit for building religious buildings, ownership of disputed religious buildings, observance of religious neutrality at public schools and implementation of the requirements of the law on general education, as well as effective investigation of the alleged religious crimes, were still problematic. Serious question marks remained with regard to effective implementation of the principle of secularism.
The level of participation and involvement of national minorities in the decision-making process was low. Teaching of mother and state languages at schools, as well as low awareness of population of minority-populated regions about ongoing events, were also problematic.
Another problem was the absence of database of homeless persons, which is why the number of people in need of shelter is still unknown. One of the major problems still is the lack of financial resources allocated from local and central budgets for assisting homeless persons. Situation in terms of realization of the right to adequate housing is still alarming in Khelvachauri’s so-called cardboard settlement near the city of Batumi, Adjara region. Socio-economic conditions of the residents of mountainous regions, including access to health care and living environment/conditions, are alarming. Adoption of the law on mountainous regions should be regarded as a positive development. However, the Government should work out a unified national strategy and an action plan to improve the human rights situation in the mountainous areas as soon as possible.
Employment, access to health care, agricultural activities and migration of conflict-affected population, as well as issues related to the safety and movement of the population living alongside the dividing line of Abkhazia and South Ossetia are still problematic. Particularly alarming was the restrictions imposed on the right to get education in a native language in Gali district, which continues to this day, and the Government should take all possible measures to change this situation.
Despite the positive steps taken for solving the problem of accommodation of IDPs, there is still a serious challenge in terms of resettlement of IDPs and provision of safe environment for them.
In the reporting period, one of the most pressing issues was realization of the right to live in a healthy environment. Provision of timely information to population and engagement of stakeholders in the important projects and decision-making that might have significant impact on the right to live in a healthy environment were low. Among such decisions were the construction of "Acharisktskali", “Khudoni” and other hydropower plants, as well as the impact of the extraction of fossil in the vicinity of the Sakdrisi-Kachagiani site on natural environment and human health. Examination of the legality of the abolition of the cultural heritage status of the Sakdrisi-Kachagiani site showed that the Minister of Culture and Monument Protection of Georgia and the Director of the National Agency for Cultural Heritage of Georgia violated the legislation during making a decision on the issue, which opened the way for the activities of the private companies and today this monument of cultural heritage is destroyed due to private business interests.
Construction permit for the "Panorama Tbilisi" project, regardless of its size and influence on the capital’s environment, was issued as per simplified administrative rules and no report was prepared on environmental impact assessment either. Accordingly, there was actually no public involvement in the decision-making related to that issue, which was described by the Public Defender as unjustified and represented violation of international requirements.
Despite some progress, reflected in providing houses for a few dozen migrant families, the situation of tens of thousands of families affected by natural disasters is critical, like in previous years. The Government suspended the process of adoption of the law on eco-migrants. The state does not carry out programs on adaption of eco-migrants for their new accommodations and regions. Nothing is done for the prevention of human rights violations during natural disasters. All these problems emerged during the June 13-14 disaster, 2015, which left 21 people killed and many more homeless. However, the public support in the relief efforts was exemplary.
The issue of return of Meskhetians, which had been expelled from South Georgia, is still widely discussed. Granting Georgian citizenship to the expelled persons and promotion of their social integration are especially important.
Implementation of the United Nations Convention on the Rights of Persons with Disabilities of December 13, 2006, as well as of the Optional Protocol to the Convention, remains a challenge. Some of the most important challenges faced by the state are social protection of persons with disabilities, realization of the right to adequate housing, employment, availability of physical environment, infrastructure, transport and information.
In the reporting period, a number of problems were revealed with regard to the realization of the rights of older persons. Most of the elderly people do not have access to adequate housing, social services and protection mechanisms, because of which they are under the risk of poverty, isolation and homelessness. In addition, mechanisms for identification, protection and prevention of older persons that became victims of violence do not exist. The state still does not have an effective policy and strategy for ensuring protection of the rights and social welfare of older persons.
A number of problems were reported in terms of rights situation of recruits and military personnel, as well of as military and war veterans. Significant deficiencies were observed in the examination of recruits by doctors, which in some cases resulted in staining the honor and dignity of the recruits. Faulty examination of mental health of recruits deserves special attention. Herein, it should be noted that mandatory military servants are mainly used for security services and in fact no military or physical trainings are held for them. Accordingly, it is necessary to improve the system of compulsory military service.
6 soldiers died in the reporting period. 2 of them were said to have committed suicide due to social conditions.
There were several cases when the citizens of Georgia had problems in crossing the Georgian state border and when their freedom of movement, guaranteed by the Constitution, was violated. Naturally, such a practice is unacceptable and should be ruled out in all cases.
The main challenge in terms of the rights situation of asylum seekers, refugees and persons with humanitarian status, is still justification of the refusal to grant a refugee or humanitarian status to an asylum seeker on grounds of the state security, which violates the principle of efficient proceedings. It is important the administrative body's response to explain justification of the refusal by indicating factual circumstances in a way that it does not cause damage to the state security.