Public Defender Presents Annual Report in Parliament
On October 7, 2022, at the plenary sitting of the Parliament of Georgia, Public Defender Nino Lomjaria presented 2021 Report on the Situation of Human Rights and Freedoms in Georgia.
"This is my fifth and last report in the Parliament of Georgia. Thus, this will be a kind of summarizing report of the past 5 years, describing the situation in which the Public Defender had to implement her constitutional mandate. First, let me say that today is the 7th of October, 2022 is coming to an end, and the Parliament is only now considering the situation of human rights in 2021, which I think is a little late given the severity of the issues described in the report.
The almost 400-page report is based on up to 5,000 applications and 11,100 phone notifications received by the Office, as well as the results of hundreds of monitoring visits made by the Office to prisons, psychiatric facilities, military units and other institutions over the past year.
The main thing I want to say today is that the situation of human rights did not improve significantly in 2021. Moreover, a significant deterioration was observed in a number of directions. I think this was caused by the fact that, unfortunately, the parliamentary oversight over the executive power is not strong enough. Despite the fact that the rate of endorsing the Public Defender's recommendations in the parliamentary resolution is high, which is welcome and we have always mentioned it, the status of fulfilling the tasks issued by the Parliament to the relevant agencies is still very low. The state agencies fulfilled only 16.1% of the tasks issued by the resolution of the Parliament in 2021; 18% were partially implemented and 63.1% were not implemented.
Moreover, a number of decisions made by the Parliament in 2021 interfered with the independence of state institutions supervising/responsible for the protection of human rights in the country.
On December 30, 2021, the Parliament of Georgia adopted a package of legislative changes and canceled the State Inspector's Service within 4 days, in an accelerated manner, without informing stakeholders and the State Inspector herself. The Public Defender considers that the purpose of the changes made in relation to the Inspector's Service was to interfere with the activities of an independent body and to influence it.
Other legislative changes were also adopted at the end of December, which worsened the degree of independence of judges and therefore deteriorated the state of the justice system and the right to a fair trial in Georgia.
Last year, the Government refused to implement a fundamental reform in the judicial system and continued the process of fully staffing the Supreme Court of Georgia despite the calls of the Public Defender, OSCE/ODIHR, the European Union and other international partners. Due to unfulfilled obligations in the area of justice, in September 2021, the European Union did not transfer additional macro-financial assistance of 75 million euros to Georgia. However, more important is the fact that because of the failure to implement reforms, the aspiration of the Georgian people towards European integration was seriously damaged, since the reform of the justice system is one of the crucial requirements and issues in the process of EU integration. And indeed, as we saw later, in the spring of 2022, one of the reasons for the refusal to grant candidate status to Georgia was precisely the unimplemented judicial reform.
During last year, the Public Defender had constantly been the target of an organized disinformation campaign, political attacks and threats from the leaders and representatives of the ruling party, media outlets and persons affiliated with the ruling party. In addition, like 2020, at the beginning of 2021, representatives of the Office became targets of organized verbal attacks and threats on the premises of various penitentiary institutions. We saw the archived video footage of the penitentiary institutions showing one of the days of the attack, which made it clear that the illegal actions carried out by a small group of prisoners were directly or indirectly organized by the prison administration. An investigation is ongoing in the Prosecutor's Office in connection with the mentioned case, however, the guilt of specific persons involved in the crime has not been identified yet. The situation changed after the ad hoc visit paid by the EuropeanCommittee for the Prevention of Torture in 2021 and representatives of the Office have not been attacked since then.
One of the main determinants of the criminal law policy in the country is the Prosecutor's Office of Georgia. Establishing a politically neutral prosecution system remains one of the challenges. According to the Public Defender's estimate, political elements and important flaws were identified in the investigations of a number of cases carried out by the Prosecutor's Office or conducted under its procedural supervision, which does not meet the criteria of an effective investigation. For example, according to the Public Defender's estimate, considering the obvious political tone of the investigation and the serious legal flaws identified at the beginning and during the investigation, it can be said that the so-called cartographers' case conducted by the Prosecutor's Office has a political or other illegal motive. In addition, we consider that the proceedings against politicians - Badri Japaridze and Mamuka Khazaradze, who were charged with "money laundering", were legally unjustified. No effective procedural supervision was carried out over the investigation conducted by the Ministry of Internal Affairs of Georgia into the alleged violence against children in Ninotsminda boarding school either.
In the context of ineffective investigation and criminal prosecution, we must mention the case of Temur Abazov, the former mayor of Marneuli, who was accused of inhuman treatment, as well as the investigation of the beating of Lasha Tordia, where as a result of the actions of the Prosecutor's Office, defendants were acquitted.
We identified the violation of various components of the right to a fair trial in the case of Nika Gvaramia.
I have to mention once again that, unfortunately, the official inquiry into the Khorava Street case is still pending in the Prosecutor's Office, and we think that the investigation into the murder of Temirlan Machalikashvili was not thorough or effective either. We have addressed the Prosecutor's Office with a recommendation to renew the investigation. Many of our proposals regarding the proper investigation of the events of June 20, 2019 remain unimplemented.
5 July 2021 is one of the saddest days in the recent history of the country, when the State responsible for the protection of human rights and safety literally failed to function... Now I want to read the statements of the organizers of the July 5 violence, which they made on television on June 19, 21 and 23 (I'm sorry to have to repeat them from this tribune, but I think it's important for you to hear them). The organizers of the July violent protests openly called on the viewers to send SMS messages to the mobile phone number indicated for registration in the organizational groups; they also warned them to be prepared for detention as they would commit violence. In particular, the organizers of the rally stated: "I do not dissociate myself from violence, on the contrary, I support it, and I urge you to take to streets and be violent", "Whoever dissociates himself from violence is not a human", "Those who intend to dissociate themselves from violence are not with us", "Not 2013, we must arrange twice as worse as 2013"; The TV presenters hinted that violence against journalists was acceptable on July 5 - "Isn't it permissible to kick such journalists?"; "Isn't it right to drag them on the asphalt?"; etc.
There are also publicly available video recordings that show that on July 5 these people gave instructions to citizens - "You should not refuse violence, you are obliged to use violence for the homeland, for the country, for sanctity". None of the authors of these statements has been charged for inciting violence.
I know that here are many lawyers in the Parliament, I want to ask you questions - Don’t you think that we have at least the standard of reasonable suspicion or filing charges against these persons for organizing the July 5 violence? After publicly pre-announced and repeated threats, why was not the appropriate number of law enforcement officers mobilized on the spot? How were these people allowed to commit violence?
It is true that certain individuals were held responsible for violence, for participation, but no one has been charged for organizing the violence.
Although violence was pre-announced and organized, and it should have been well known to the law enforcement agencies and security services, the authorities not only failed to prevent violence against journalists, LGBT+ community, their activists and citizens in general, which threatened their health and lives and put them in real danger, but moreover, the discriminatory statements made by high officials incited the said violence.
As a result of empowering and encouraging groups carrying anti-democratic, anti-state ideology and covering up their criminal activities, the democratic space has been restricted in the country.
In particular, the space of freedom of expression is decreasing in the country. Journalists, civil activists and human rights defenders have to work in a dangerous and hostile environment. In 2021, the number of cases of physical attacks against representatives of the critical media increased, including during the pre-election period. A cynical and dismissive attitude towards journalists, especially representatives of the critical media, their obstruction to attend the events organized by the state agencies and statements aimed at discrediting them have become a common practice.
As in previous years, law enforcement officials often used disproportionate force when managing and dispersing rallies, actively resorting to administrative detention of demonstrators, which in many cases did not meet the requirements of necessity and took the form of unjustified interference with freedom of assembly. The Administrative Offences Code, which was adopted in 1984 and is incompatible with the current constitutional order, was used for unjustified interference with rights. The use of this vicious practice raises reasonable suspicions that the reason for the failure to reform the Code, which has been announced several times, is the use of mechanisms inconsistent with human rights standards against demonstrators, which makes it easier for the law enforcement agencies, as well as the courts, to bypass the relevant human rights standards and make decisions that violate the rights of demonstrators.
On September 13, the unprecedented leak of files of surveillance and wiretapping of citizens - civil sector, journalists, politicians, clergy and diplomats - was alarming. The leaked files contain an unprecedented amount of materials of private life, allegedly obtained through illegal wiretapping and surveillance. In addition, the files allegedly contain cases of sexual abuse of minors, alleged failure to report the crime and abuse of authority by law enforcement officials.
Alleged illegal and large-scale surveillance-wiretapping creates the risks of total control in the country. The reports spread during the 2021 pre-election period raised reasonable suspicion that illegally obtained personal life materials were used for the purpose of exerting illegal influence ahead of elections. It should be noted that no effective institutional supervision or control of illegal wiretapping is carried out in Georgia. In this regard, the Constitutional Court completed the consideration of a case more than 4 years ago, but it has not yet delivered a judgment.
The deteriorated standard of protection of political rights could be noticed in the exercise of the right to vote as well. One of the main challenges in 2021 was to conduct the local self-government elections in a fair and equal environment.
The local self-government elections of October 2, 2021 were preceded by a lengthy political crisis, and the pre-election period and voting days (I and II rounds) passed in a tense environment. During this period, 69 cases of illegal, discriminatory dismissal of employees were reported, as well as cases of political pressure and illegal processing of personal data against persons employed in kindergartens/public schools. According to the information available to the Public Defender’s Office, 59 opposition candidates were allegedly pressured and intimidated, as a result of which, with a few exceptions, they withdrew their candidacies. The Public Defender shares the assessments of local and international monitoring organizations that the cases of alleged pressure and intimidation of voters, the intimidating environment must have affected the expression of free will by a part of the voters.
Penitentiary system: Unfortunately, a significant influence of criminal subculture can be observed in the penitentiary system, especially in semi-open institutions, where about half of the total number of prisoners are placed. The criminal subculture leads to inter-prisoner violence. Last year there were cases of serious bodily injuries and attempted killings as a result of inter-prisoner violence, resulting in one death. Prisoners, who are victims of violence, often do not talk about the real causes of their injuries with the administration or medical personnel in order to avoid the expected revenge. This was confirmed by the special mission of the EuropeanCommittee for the Prevention of Tortureas well. The so-called criminal subculture in Georgian prisons has strong roots from the Soviet period, so combating this problem requires a systemic approach, changes in the prison infrastructure, retraining of prison staff and an increase in their number.
I want to talk about the biggest problem of prisoners – parole mechanism. The local councils, which make the relevant decisions, often make different decisions in cases of identical circumstances, and the motivational part of the decisions is of formal nature, lacking proper justification. No one knows why some prisoners are released, whereas in cases with identical circumstances, negative decisions are made against other prisoners. Several years of observation of this process clearly shows that decision-making is not based on logic or requirements of the law. Prisoners do not have a clear signal that their impeccable behavior will ensure their early release, something necessary for resocialization, which must be the aim of punishment.
I would like to remind you that the election monitoring organizations published a study, which described a scheme and provided electronic documents containing communication, the content of which was related to the mobilization of electoral votes from the families or friends of prisoners for the 2018 elections in exchange for their early release or exemption from probation. The Public Defender considers that the mentioned issue is very important and requires an objective and effective investigation, since the Public Defender has also received information about similar schemes from prisoners; we have checked the history of some of the prisoners indicated in the mentioned documents and found that some of the them had indeed been released from prison.
In 2021, the Public Defender’s Office received 36 applications/complaints, where applicants, along with threats and verbal abuse by the employees of the penitentiary institution, indicated alleged cases of physical violence in some cases.
Prisoners also talk about delayed medical services. Last year, we studied a case where the surgical treatment of a prisoner, which was to be conducted in an expedited manner (2-5 days), was delayed by about 7 months, resulting in the death of the female prisoner. It is necessary to conduct an investigation and establish whether the improper and delayed treatment of the prisoner during the period of serving her sentence had an effect on her death and what was the reason of the faulty treatment.
I would like to single out the case of Mikheil Saakashvili. - A number of statements were made, which aggravated the hunger strike of the prisoner; It is worth noting that in 2021 or during the previous few years, none of the prisoners of Penitentiary Establishment No. 12, except Mikheil Saakashvili, has been transferred to Penitentiary Establishment No. 18. Despite the numerous recommendations, Saakashvili's psychotherapeutic and physical rehabilitation, unfortunately, remained an unsolved problem; The Public Defender considers that the release of the insulting footage of prisoner Mikheil Saakashvili, depicting his placement in Establishment No. 18, violated his right to honor and dignity. The Special Investigation Service is still investigating the alleged ill-treatment of Mikheil Saakashvili.
As for the persons placed in psychiatric institutions, we have a very serious situation in this regard. The situation of patients in psychiatric institutions is often equated with inhuman, degrading treatment. Patients, who do not require active treatment, cannot leave the institution and often spend a long time, even their whole life in large institutions due to the scarcity of community services and the fact that they have nowhere to go, which is not in line with a modern, human rights-based approach. Patients mention that the staff of the psychiatric institutions shout at them, talk aggressively and threaten them with physical restraint or isolation. Patients also talk about beating. The unavailability of somatic healthcare services or limited access to them significantly worsens the health condition of patients placed in psychiatric institutions, which in some cases becomes the cause of their death.
Systemic violations of children's rights, years of humiliating, inhuman and torture-like treatment of minors, signs of alleged sexual abuse of children were identified in Ninotsminda boarding school last year. The Public Defender has been pointing out for years that the monitoring in Ninotsminda boarding school was significantly hampered, which jeopardized the protection of the rights situation of the minors living in the boarding school and increased the already high risk of institutional violence in the boarding schools. However, unfortunately, the State did not take effective steps to protect the rights of children placed in the boarding schools, despite the fact that investigative agencies and social services, as it turned out, had information and complaints about alleged abuse of children. Important and substantial flaws were revealed in the investigation of alleged crimes committed against children in Ninotsminda boarding school. Despite the fact that in some cases the investigations of criminal cases started in 2016, they are still pending and no one has been held responsible so far. It is welcome that as a result of the 2021 recommendation of the Public Defender and the monitoring carried out by the Office, the deinstitutionalization process has started in the Assisted Living Facility of St. Matthias the Apostle Foundation in the village of Peria.
Like previous years, the number of gender-motivated killings of women, femicide, is not decreasing. In 2021, 22 cases of femicide and 31 cases of attempted femicide were reported. A number of cases have occurred this year as well. The mentioned problem requires a systemic approach from the State. It is important that the Parliament has recently set up a thematic working group on the mentioned issues.
The number of children receiving subsistence assistance increased in the period from January to December 2021. In particular, the number of children receiving subsistence assistance in 2021 amounted to 235,252, while in 2020 the respective number was 186,131. Child poverty remains a significant challenge and children's life and development are at risk due to the extreme scarcity and ineffectiveness of family empowerment and child care services and programmes. You have probably all seen the child placed at the Borjomi hospital due to hunger and poor living conditions, which describes what I am talking about much better than I do.
It was welcome during the reporting period that the Parliament of Georgia ratified the Optional Protocol to the UN Convention on the Rights of Persons with Disabilities. The creation of an inter-agency coordination committee by the Government of Georgia for the implementation of the Convention on the Rights of Persons with Disabilities should also be evaluated positively.
Unfortunately, it is still an unsolved issue to move to a fair system of granting disability status, which focuses on psychological and social needs of the person in addition to the medical factors. The amount of the social package determined by the current model, in addition to not being adjusted to the individual needs of persons with disabilities, cannot even minimally ensure the satisfaction of their basic needs.
The use of appropriate preventive measures by employers in order to properly ensure safety at work remains a problem. In the reporting period, 34 (men) died and 253 (37 women and 216 men) were injured in the workplace. A significant proportion of deaths and injuries in 2021, as in 2020, was still reported in the areas of mining and quarrying, as well as residential/non-residential construction. It should also be noted that although the number of deaths at work was still high in 2021, it decreased by 13% compared to 2020, by 24% compared to 2019, and by 42% compared to 2018.
Unfortunately, as in previous years, we still do not have a comprehensive legal definition of a homeless person or framework legislation. To date, there is no unified database of homeless persons in the country, or even local databases in some of the municipalities. Each municipality has a different standard and approach to homeless people. The rule developed by Tbilisi Municipality for the registration of homeless persons and provision of accommodation services should be positively noted, which is an exception, unlike other municipalities.
In 2021, compared to 2020, much fewer displaced families were resettled from the dangerous facilities. To date, no special rules have been developed for the resettlement of IDPs living in dangerous buildings. The State does not inspect the sustainability of buildings on its own initiative, and the inspection is carried out only on the basis of the written request of the IDPs.
It should be noted that the free meals programme is being implemented in almost all municipalities, which is an important service for realizing the right to adequate food. However, no amount or caloric value of food is stipulated, and the sanitary-hygienic situation in a number of municipalities is deplorable. The small amount of money allocated for soup kitchens is especially striking in Tbilisi Municipality, where the amount allocated per beneficiary is GEL 1.30, which is less than the daily amount allocated per beneficiary in the regions (for example, GEL 2.47 in Borjomi, GEL 2.50 in Kutaisi, GEL 2.05 in Akhaltsikhe, GEL 2.20 in Samtredia, GEL 2.65 in Telavi).
With regard to the right to health care, attention is focused on the problems related to oncology patients. In particular, despite the Government's efforts to provide medical services and medicines for oncology patients, it is unfortunate that the side effects management and psychological services, as well as diagnostic services, remain outside the programmes. In addition, the infrastructural and sanitary-hygienic conditions in the primary health care services are deplorable, and the low salaries of people employed in the primary health care system is concerning. In 2021, the management of the Covid-19 pandemic was also problematic, which posed a real threat to the protection of the right to life and health. Decisions to introduce and lift regulations were largely made in disregard of scientific evidence and international best practices. The goal of the national plan for the COVID-19 vaccination was to vaccinate 60% of the population over 18 years by the end of 2021. However, as a result of ineffective information campaign, delayed financial, incentive or other type of measures, as of January 2022, this figure did not exceed 47%. In this context, it should be positively noted that the penitentiary system has an exemplary high vaccination rate, both among prisoners and staff.
Unfortunately, the cases of illegal detention and ill-treatment of citizens are still frequent in the occupied territories. The process of illegal borderization also continues. From September 4, 2019, the de facto authorities have completely closed the so-called checkpoint in the direction of occupied Akhalgori, as a result of which there is acute situation and humanitarian crisis in this area. The most important challenge remains to be access to education in the native language. As a result, the number of students is decreasing in both regions every year. In order to continue studying in the Georgian language, parents have to leave their permanent residence and take their children to schools located on the Tbilisi-controlled territory.
Cases of proselytism/religious indoctrination in schools and their proactive detection remain problematic. Religious minorities are dealing with the issue of returning religious buildings confiscated during the Soviet period to their historical owners. National minorities still encounter problems in terms of access to quality education, employment and involvement in political-social life.
For the purpose of eliminating the rights violations indicated in this report, the Public Defender’s Office issued 67 recommendations/proposals to the state agencies. During 2021, the Office prepared 20 special thematic reports, 17 constitutional lawsuits, 13 amicus curiae briefs and 4 communications for the Committee of Ministers of the Council of Europe. In addition, during the reporting period, the Public Defender applied to the European Court of Human Rights with a request to be involved in 3 cases as a third party. In order to identify and monitor rights violations and challenges, the Public Defender’s Office conducted hundreds of visits and information meetings in various institutions, which is reviewed in detail in the report.”