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Giorgi Tughushi: “Numerous Criminal Cases Raise Rather Serious Doubts”

11.01.2012

Bela Zakaidze, interpressnews

Interpressnews talked to Ombudsman of Georgia, Giorgi Tughushi, regarding the human rights state in Georgia last year.

- Mr. Giorgi, how would you assess the year 2011 in terms of human rights protection; can we talk about progress compared to previous years?

- There was progress in certain fields and regress in others. Some things did not change at all.

Certain legislative amendments were progressive. Intene positive steps have been taken regarding juvenile offenders. Several changes have been made for more progressive protection of ethnic and religious minorities.

The problems in the penitentiary system still persist, starting with the treatment of prisones ending with the health protection.

Ensuring the rights of IDPs is still problematic. The right to a fair trial is still difficult to ensure. We studied numerous cases where there were concrete violations. Onn approximately 15 occasions we addressed the High Council of Justice with the request to raise disciplinary charges against the judges.

Unlike the year of 2010, the year of 2011 was noted with human rights violations regarding the assemblies and manifestations. On January 3rd on the Veterans’ Action and during the May 26th protest rally complex human rights violations took place. This was not as strongly connected to the violation of the right of assembly and manifestation. It was more a violation by the police – excessive use of force and physical abuse of the detainees, was also a violation of range of rights which followed the detention of these people. Problems were noted in regards with the protection of children and women’s rights, and family violence. Numerous complaints have been submitted during this year that we studied. Numerous serious violations have been noted in children’s rights protection. There was  no progress in terms of protection of rights of people with disabilities which is a very sad fact.

- What was the situation of protection of the right to assembly and manifestation like? We can recall several facts, including the May 26th, Veterans’ Action on January 3rd, also in front of the Ministry of Penitentiary and Supreme Court which were assessed as human rights violations. Have you studied these facts and what is your assessment?

- As for the disruption of the Veterans’ Action on January 3rd, the request from the government’s side to stop the action was absolutely illegal. Other human rights violations were also noted after the Action was stopped – physical abuse of the action participants and detention of several of them and fining by administrative means. As for the May 26th, though the government had legal grounds to request thatthe action be stopped, the disruption and the period after the disruption were followed with serious human rights violations – use of excessive force. When the individuals who could not resist and were under total control, they were physically abused. The video scenes make this clear. Also, the individuals were physically abused after the detention. For instance, let’s recall Murman Dumbadze’s case. We first saw Dumbadze in Euronews and in other scenes where he has no injuries. Later we saw him in Telavi temporary detention cell with severe injuries.

There were approximately 12 facts when the individuals addressed the Public Defender with their complaints and noted that they were beaten after the detention when they they were taken off Rustaveli Avenue. Besides, numerous instances of physical assault of journalists were observed. Their devices were deprived. The tapes were withdrawn and the flash cards with photos were deleted. Approximately 18 such cases were filed to Public Defender and we requested a response from the Main Office of Prosecutor on each. You probably remember the statement of MIA regarding the sentencing of 14 policemen on May 26th where it was written that Ombudsman’s recommendation was fulfilled. I stated that yes, this can be a positive step but the taken measure is not sufficient because the crime elements were clearly present and these individuals should have been tried according to criminal law and not administrative law.

As for the other actions, Georgian legislation has been amended numerous times in the recent period. You know that one of the constitutional complaints regarded the legislation of assemblies and manifestations. There were numerous problematic articles.

The law has changed some but several problems which the Venice Commission noted, on and I did as well, remain. There are certain provisions which need to be developed for future liberalization of the law and it is essential to comply it with international standars.

Of course there are countries which might have stricter legislation than we do but it is not essential to follow their example where the restrictions might be considered to be disproportionate. We talked about this when we discussed the amendments to be made to the legislation with the Venice Commission, the Georgian government and NGOs. As for conducting actions, assemblies and manifestations in general – I will repeat once again – the mistakes that were made, and instances of human rights violations, show that our law enforcement bodies are still not fulfilling the law requirements and are violating the rights of action participants. Very often the judiciary relies only to the explanations of policemen. There were instances when the defense side did not have an opportunity to present its evidences.

- As for the freedom of expression and journalistic activity, how well were these rights protected? In the case of photoreporters, facts of hindering activity of journalist on May 26th. Have you studied these materials and what is your solution like?

- We thoroughly studied the occurances on May 26th. We met all journalists who were hurt and whose rights were violated after the rally disruption. We revealed numerous serious human rights violations. I have heard several arguments that the journalists were not wearing any special clothing which could distinguish them from others. But there were journalists who wore special vests as well but still they were seriously injured. The equipment of many journalists were damaged. Several noted that they were deprived of tapes and their flashdrives with photos were deleted.

However, May 26th is not the only fact. We had several cases when the pressure was exercised against local journalists. We addressed The Office of the Prosecutor and requested to start an investigation on each such case. I do not remember a year during my work as an Ombudsman where such facts did not take place, especially in the regional media. As for the case of phorographs, I cannot tell you whether their detention hindered their professional activity. But we studied a certain part of their case. I personally met them in the prison. We could not study their criminal case considering the fact that they did not express the desire to us. As I remember their case ended with a plea-bargain agreement and the conditional sentence was imposed. I cannot tell you about the details of the criminal case since it is classified under the griffit as, “secret.” Unfortunately the Ombudsman has a restriction on accessing secret material. This has become a problem numerous times in my practice.

I called on the government to make the part of the case public due to high public interest. The public, including the Ombudsman, has many questions about it.

- As for the detentions related to political parties, during the year, along with the activation of political groups, the tendency of their detentions is observed which is assessed to be a political detention by part of the public. Have you studied such cases?
 
- First of all, I would like to note that during 2011 not many people have addressed the Ombudsman on such cases. There are several such cases. We met the detainees. The majority of them did not with Ombudsman to react on their cases. Many hoped that they would leave the detention place by plea-bargain agreement.

Based on my past experience I can tell you that many criminal cases leave serious doubts. You probably remember when I talked about political motivation towards several individuals. In particular I would like to underline the year 2009 when we studied numerous cases in this regard and then they were reflected in the report of the Ombudsman. As for the use of administrative detentions, for example before May 26th and after the period of May 26th, there were many such cases and some cases raised serious suspicions. I met the people detained by criminal means after May 26th. They stated that their rights were not violated. I cannot tell you whether they made this statement willfully but they absolutely had an opportunity to allow the Ombudsman study these cases. Their lawyers did not wish to let us to do it. It will be very hard for me to provide you with details. However, I think numerous facts of detentions raise sufficient doubt. This is why we wished to study these cases.

-We spoke about human rights violations. The ultimate wish of those people is to have a fair and independent court in the country. In your previous report you spoke about ungrounded judgments. What was the situation in this field in 2011?

-The judiciary system is the most important element. It is impossible to restitute rights without a court. I would like to repeat that we detected some ungrounded judgments in 2011, a trend that began in 2010. The material technical base of the courts was significantly improved, communication procedures were simplified, and we can easily obtain various documents from the judiciary system, the service in the courts was improved, the number of pre-trial detention was reduced and despite all that, the right to fair trial is the ultimate priority for the Public Defender including the problems which we observe in the system. Some more measures shall be taken in order to improve the independence level of the court and to make it irreversible. Much more shall be done in the country in this direction. As for criminal cases, there are many questions there and the Ombudsman will continue working in this direction. We mostly studied criminal cases. I petitioned to the Supreme Council of Justice concerning 15 cases and requested to start disciplinary prosecution against judges. It demonstrates that the Public Defender had concluded that the judges had breached the law when discussing criminal cases. The Supreme Council of Justice made an inadequate respond; they started investigation on most cases but soon dropped it.

-I would like to ask about property rights. Previous Public Defenders often spoke about breached property rights; but the topic is not so urgent now. Has the situation improved in this field?

-My predecessor was in the office when property rights were often and publicly breached. Very often people complained about their property rights being breached. However, I would like to stress that we have requested materials about the so-called land expropriation in Gonio and we are studying the case very thoroughly because it was a large-scale operation of the government as a result of the state receiving the land. We intend to evaluate how fair and compliant with the law the activities of the state were in this particular case. As for individual cases of breached property rights, we have received only a few complaints and we investigated them. Some of them were about the activities of the Property Commission; I remember one or two cases which were about deprived properties. However, I would like to say that not too many complaints about property rights were filed to our office in 2011.

-How do corresponding institutions pursue your recommendations and which state institutions would you like to single out in this view?

-This year we will publish a complete analysis and rate of complaints about concrete state institutions, as well as number of recommendations we have devised; some of which were approved and some of which were declined or are still in the process of being discussed. However, the general rate has increased. In my first days in the office, my colleagues told me the rate was 7-10 percent and today more than 30 percent of our recommendations have been approved and it is not a bad achievement.

I think the rate shall reach 50%. None of the Ombudsmen in the world have 100% rates. In my previous report period we released 308 recommendations. I would like to underline that the healthcare institutions, including the state care agency, have envisaged our recommendations. The Prosecutor’s Office and the MIA have also followed our recommendations but not completely. We still have problems with the Ministry of IDPs from Occupied Territories, Refugees and Accommodation, and Ministry of Defense.

Unlike last year, the Ministry of Refugees with Koba Subeliani as the minister is replying to our recommendations. My public critic was inadequately responded to; we received incomplete replies to our several petitions.

We have observed the following trend in several state institutions – when they do not have a reply to the ombudsman’s petitions or recommendations, or when they know they cannot execute our request, they prefer to keep silence or try to cause as little confrontation against the ombudsman’s recommendation as possible. 

 As for the penitentiary system, it was the first occasion when they responded to our petitions – one of them was about a dead prisoner and the second was about a physical assault on a prisoner in a jail hospital. The penitentiary department replied and promised they would investigate it though a big part of their letter was a description of the crime convicted of and that was less important because we were requesting an investigation of ill-treatment of the inmates.

The Ministry of Correction and Legal Aid also responded to my interim report where they listed their achievements throughout the report period but did not observe the content of our report.

I would like to underline that in accordance with the Constitution and Georgian Law the Public Defender is required to study the human rights situation in the country. It is not my responsibility to visit every institution and observe how many walls were painted, how many chairs were purchased and then write it in the report. First of all, it is my priority to identify the human rights violations and recommend the government how to improve the situation and restorebreached rights. However, when something is done well, we also mention it in our report.

-In your last report, it was the first case wherein a public defender mentioned the general situation in penitentiary settings and punishment of prisoners for having applied to the Strasbourg Court. Besides that, unlike previous years, you spoke about high mortality among prisoners. So, you would like to say that situation in custodies has worsened?

-I am still working on the case where the prisoner claims that he was physically abused. Another reason was his lodged application at the European Court. It is difficult to claim anything without evidence. However, similar complaints from prisoners are filed more often than before; they claim that the prison personnel behave negatively toward the prisoners who have lodged applications to the European Court of Human Rights. It is described in our interim report in detail, though similar facts will be noted in our annual report. As for mortality in penitentiary settings, this year, data was the highest of the last five years. 77 prisoners died during first six months in 2011. When the mortality rate increases, it shows the system has serious problems in the realization of the right to healthcare.

Nevertheless, the number of prisoners this year was almost the same as in 2010.

-You highlighted the problems in the pretrial detention settings in your last report. You wrote that the rights of pretrial prisoners are not protected; what concrete rights were breached there?

-In fact, there are no pretrial detention settings in Georgia, which could meet international standards, which are necessary for protecting the rights of detainees under administrative law. When the national law envisaged punishment of up to 90-day administrative imprisonment, the country should have corresponding infrastructure in order to ensure the rights of the administrative prisoners. I sent two recommendations, petitioned to the Minister of Interior – if the country decided to use administrative imprisonment as a punishment, then they should construct two settings in the regions where the rights of the detainees will be protected. Today, they speak about intended amendments to the minister’s decree which does not regulate the rights of people who spend more than 72 hours in detention settings.

The amendment of the laws and decrees is unlikely to improve the general situation. It might improve only one component while it is urgently important to eradicate infrastructural problems everywhere. Most international institutions, which monitor the detention settings, do not differentiate between prisoners convicted under administrative or criminal laws; so I mentioned the equivalency of the rights. Those convicted under administrative law shall have access to everyday physical activity, one shower per week, shall have rendezvous, receive parcels and all other rights guaranteed for other prisoners. 

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