Report on the protection of human rights and freedoms in Georgia of the Public Defender of Georgia for 2013

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This document is the Report of the Public Defender of Georgia for 2013 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,  the timeliness and degree of fulfilment of which to a great extent will define the establishment of high standards in human rights protection in Georgia.

This document has been developed in accordance with the Organic Law of Georgia on Public Defender, Article 22 and is submitted to the Parliament of Georgia.

The year 2013 was less dramatic compared to turbulent 2012 resulting in peaceful change of power following October Parliamentary Elections.  Compared to extremely charged-up pre-election period ahead of Parliamentary Elections, Presidential Elections proceeded in the atmosphere of peace and non-violence. Although the public witnessed a year-long painful cohabitation of the two main political powers, this tension did not translate into fundamental changes in overall human rights protection – if we do not take into account an alarming trend in post-Parliamentary Election period, when civil servants were massively dismissed from local-self-governance bodies. International observers positively assessed Presidential elections of 27 October, which concluded complex cohabitation and peaceful transfer of power.

Mr. Thomas Hammarberg in his capacity of EU Special Adviser on Constitutional and Legal Reform and Human Rights in Georgia took active part in the discussions on the status of human rights protection in Georgia and prepared a special report. In addition, a National Human Rights Strategy was also developed, and the work is ongoing to finalise the Action Plan, the work is under way on anti-discrimination draft law as well.

The number of persons having appealed to the Office of the Public Defender of Georgia (PDO) reached over 11 thousand in 2013, double the number compared to previous years, which reflects increased expectations towards PDO, greater awareness among population on the infringed rights, and free environment in the country.

Despite dissemination of video materials in September 2012 depicting torture and inhumane treatment in penitentiary facilities, with the entire public attention focused on the protection of inmates’ rights, thanks to political will and implemented reforms, cases of torture and inhumane treatment of inmates are no more among the list of main challenges. Nevertheless, thousands of inmate complaints on torture, inhumane and degrading treatment are still being investigated and apart from single cases, there have been no decisions made on these systemic violations.

Investigation is still in progress on the incident of 28 August, 2012 which took place in Lopota Gorge. With the investigation ongoing the information on its progress cannot be accessed neither by the victims’ families, nor interested parties or wider public.

One of the significant achievements of the year in the field of human rights can be considered liberalisation of the Criminal Law, which used to be subject of the Public Defender’s numerous recommendations for number of years. Though, on the other hand, incidents of active demonstration of intolerance by various groups have intensified, which, in some cases, have been left without adequate response.

As a result of legislative changes implemented in 2013, strict Criminal Law, so called “zero tolerance” policy was replaced by more liberal approaches, which from the angle of human rights should be assessed positively. The Public Defender of Georgia welcomes restoration of punishment absorption principle in the Criminal Law on the cases of multiple offences for avoiding disproportionally increased and strict punishments.

In compliance with the amendments to the Law of Georgia on Common Courts implemented in 2013, the ban was lifted from video, photo and audio recordings in court rooms. Public Defender believes that these changes, in the long run, can significantly increase public trust to judiciary.

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 considered that detention of Town Hall and Skarebulo staff by the Investigation Department of the Ministry of Finance was a violation of Law, requiring further investigation. Legitimate questions remain regarding possible violations of requirements of Law in so called “tractors’ case”, which requires comprehensive investigation.

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”. The Public Defender of Georgia welcomed the amnesty implemented on 28 December 2012, however, stated 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.

There have been over 20 thousand cases filed to the Prosecutor’s Office requesting investigation of violations committed in the past. Many former high officials, including the former Prime Minister Ivane Merabishvii, were arrested on various charges. Political opposition, several organisations 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.  OSCE Democratic Institute and Human Rights Special monitoring mission was set up to study the case of former high officials. The Public Defender of Georgia presented the assessment of identified violations in his 2012 Parliamentary Report, as well as partially covered in this report. PDO continues monitoring of courts and the public will be duly informed.

In 2013, the Public Defender of Georgia was appealed by many inmates or ex-inmates who consider themselves illegal prisoners. Since the Criminal Procedure Code spells out in detail the basis for appealing and reviewing the sentences in force, 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.  

In 2013 PDO was addressed by numerous persons on the alleged cases of ill treatment and abuse of authority by the representatives of law enforcement bodies.

During 2013 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. One of such issues is competencies and authorities of the Georgian Ministry of Internal Affairs, General Inspections of the Chief Prosecutor of Georgia, and Investigation Department of the Georgian Ministry of Penitentiary and Corrections.

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. In addition, authority of the Public Defender should be strengthened in terms of the possibility to record violations in the closed-type facilities.

The Public Defender welcomes the fact that in 2013 the trend of using imprisonment as preferred method of preventive measure has sharply diminished. Nevertheless, the Public Defender of Georgia still believes that court judgments on preventive measures in most cases are not sufficiently substantiated, especially, when the applied method is imprisonment.

The Public Defender of Georgia welcomes the fact that in 2013 it was the first time when the Ministry of Internal Affairs of Georgia admitted illegal tapping of the citizens and the widely representative commission destructed up to 110 files of secret video and audio recordings. Despite this positive trend, we believe that such one-time action cannot ensure protection of personal space of the person, without creating solid legislative guarantees.

As a result of widespread amnesty and liberalization of criminal law, the number of persons in penitentiary facilities has reduced notably, which has eliminate the issue of prison overload and improved inmate conditions. During 2013 there has been no case of torture recorded in penitentiary facilities, and number of inmate deaths has markedly reduced. Nevertheless, by the end of the year appeals regarding ill-treatment have started in increase.

Despite positive changes, the Public Defender of Georgia found alarming circumstances related to the death of several inmates, when the State failed to ensure effective protection of the health and personal safety of the persons under its oversight. Moreover, other issues have surfaced, among them, ensuring healthcare protection and effective forms for medical examination of persons in penitentiary facilities.

The majority of public actions carried out in 2013 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, among them raiding of an street action to mark an International Day against Homophobia and Transphobia by the participants of the parallel action on 17thMay, 2013.

2013 should be positively assessed in terms of ensuring variety of information and freedom of media environment. In the reporting period there have been no cases of pressurising media, if we do not take into account several cases of disrupting journalist’s activities, and developments around the Public Broadcaster.

2013 was problematic in terms of ensuring religious freedoms and tolerance, which manifested itself in several cases against Muslim population of Georgia. In May and June of 2013, orthodox Christian population of Samtatskharo protested against opening of mosque in the village, and through threats, verbal abuse and in some cases even by force did not allow Muslim congregation to gather and carry out traditional Friday prayer. In the village of Chela, Adigeni dismantling of minaret resulted in physical confrontation between law enforcers and local Muslims, with the local population being injured, eleven Muslims arrested and criminal case initiated against several of them. Within 3 months from the incident, though, on 27th of November, minaret was fully restored.

In terms of civic integration and protection of minority rights, full participation of ethnic minorities in political, cultural and public life still remains problematic.

In the past year there were numerous cases recorded when persons were restricted the right to free movement, both in the cases of foreign nationals entering the county, as well as citizens of Georgia crossing the State border. The Public Defender of Georgia was unable to obtain information on factual and legal grounds for refusing entry into the country or leaving it, despite filing numerous requests to respective institutions.

Last year there were several cases of unjustified release of civil servants from their duties during reorganisation of State intuitions on the basis of the reduced number of positions, which clearly entails the violation of the civil servants’ right to work.  The Public Defender of Georgia sees the implemented amendments to the Labour Code of Georgia as a step forward in the protection of right to work, which has brought Georgian Labour Code close to international standards and created more effective opportunities for the implementation of the right to work, nevertheless, it is necessary to further continue the process of stage-by-stage modification of the Labour legislation in the country.

There is no coherent national policy on labour, health and working environment developed at the national level in the country, and respectively, there is no monitoring mechanism to assess to the degree of safety at work place, which calls for immediate action from the part of the Government, through creation of respective legislation and mechanisms within the shortest timeframe.

In 2013 the number of appeals to the PDO concerning lack of shelter or living conditions has increased. The examination of the appeals revealed that the problem is of systemic character. There are no advanced guarantees for the protection of the rights of homeless persons. One of the key issues is lack of financial resources allocated by the local or central budget for targeted assistance to homeless persons.

In 2013, like in previous years, there was a high rate of appeals to the PDO regarding the State allowance allocation for the socially vulnerable families.

The President announced the year 2013 as the year of persons with disabilities (PWDs), while the Parliament of Georgia ratified the UN Convention on Person with Disabilities of 2006.  

Despite positive trends of 2013 in terms of protecting PWD rights, there are many issues requiring immediate resolution. For the great majority of PWDs, especially those living in provinces, the key problem is the lack of access to information on the existing social, medical and other types of programmes.

Positively should be assessed expansion of IDP definition at legislative level for the protection of IDP rights. Namely, according to the new Law of Georgia on Internally Displaced Persons - Refugees from the Occupied Territories of Georgia, the definition of the IDP status has changed and apart from occupation, one of the criteria for granting IDP status to a person is massive violation of human rights. This change is especially significant for the population of the villages along the so called ‘administrative border line’ who were not entitled to IDP status based on the previous legislation in force.

In 2013 the process of distribution of flats to IDPs was launched in Tbilisi and various regions of Georgia. Despite some progress, the issue of grave living conditions for the majority of IDPs still remains unresolved in various parts of Georgia. It is essential that distribution of the living space is carried out transparently, under the monitoring of the Public Defender of Georgia and non-governmental organisations.

As in previous years, condition of 35 204 families affected by natural disasters is alarming. The State is not implementing programmes to ensure adaptation of eco-migrants to the place of re-settlement; there are no State programme for creating adequate social conditions for relocated families. The Public Defender of Georgia welcomes the initiative of the Ministry of Internally Displaced Persons from the Occupied Territories, Accommodation and Refugees of Georgia to set up a Commission for the development of a respective law. High rate of child mortality and poverty levels, high degree of public tolerance to child abuse, especially grave conditions of children in high mountainous regions of Georgia must become the area of special focus for the Government.  

The key challenge to gender equality remains low participation of women in the country’s political life. Women representation in the Parliament of Georgia is 11%, cabinet of ministers 21%, while in local self-governance – 10%.

Homophobic attitude to LGBT community also remains a challenge. In 2013 crimes committed on the bases of hatred were on the rise, as well as other cases against LGBT community and organisations protecting their rights.

Especially alarming to the Public Defender of Georgia were the events of 17th May and its subsequent developments, namely, violence against LGBT representative and human rights activists, which continues to find different forms of expression.

In the reporting period one of the key areas of Public Defender’s work was the right to living in healthy environment. The PDO currently examines lawfulness of the planned construction of the cascade of Khudoni HPP in the village of Khaishi, Mestia and Shuakhevi HPP in Ajara, as well as alleged violations of the rights of the local population.

The report also reviews human rights of refugees and asylum seekers, as well as repatriates -victims of 1944 repressions. 

A separate chapter is dedicated to human rights of the elderly in Georgia. Considerable challenges have been identified during past year in this regard, among them, death of 5 elderly persons within the interval of two days in one of the shelters. In the current year, the Public Defender will intensify his work to identify the problems and alleged violations of rights in this field. 

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