Amicus Curiae Brief Submitted to Court of Appeal regarding Alleged Discrimination on Religious Grounds
On May 19, 2016, the Public Defender of Georgia submitted an amicus curiae (friend of the court) brief to the Court of Appeal of Tbilisi with regard to an alleged discrimination on religious grounds in the pre-contractual relations.
The Public Defender was addressed by citizen T.M., who claimed that he became a victim of a discriminatory treatment on religious grounds by the contest commission during selection of an employee for the position of a representative of the administrative unit of Mokhe, Adigeni municipality.
In this regard, T.M. filed a suit with the Akhaltsikhe District Court, though the Court did not establish the fact of discrimination. According to the Court’s ruling, assessment/selection of candidates is a discretionary authority of the contest commission. The Court also noted that the plaintiff had failed to prove the privilege of his appointment to the vacant position. T.M. appealed against the mentioned decision in the Court of Appeal of Tbilisi.
The Public Defender used his legal right and submitted an amicus curiae brief to the Court of Appeal, where he focused on the issue of distribution of the burden of proof between the parties in the discrimination-related cases and on the importance of protection of the right to equality during application of the discretionary power by an administrative authority.
The Public Defender also indicates in the amicus curiae brief that the contest commission had the discretion to assess candidates, though it does not exempt it from the obligation to justify its decision. Otherwise, the most important function of the court, as a human rights protection mechanism, loses its sense, and the contest commission’s decisions remain beyond the control of the court.
The Public Defender also noted that the appellant should give rise to the presumption that his employment right was restricted on religious grounds. For its part, the defendant must prove that its decision was based not on religious discriminatory motive but solely on objective criteria. It is important the Court to assess the factual circumstances indicated by the appellant concerning the refusal of his employment and also to discuss the compliance of the commission’s decision with the right to equality.