Public Defender’s Statement on International Human Rights Day
The International Human Rights Day is marked on December 10. The United Nations General Assembly adopted the Universal Declaration of Human Rights on December 10, 1948, which laid the foundation for many important international human rights treaties. Given the importance of the Declaration, the international community marks the Human Rights Day on December 10.
Georgia's Public Defender shares the Declaration's main aspiration to create a world "in which human beings shall enjoy freedom of speech and belief and freedom from fear and hardship."
With the present statement, like in previous years, we would like to remind the Government and the public of the importance of the protection of human rights. It is precisely the situation of human rights and freedoms that conditions the well-being of every individual in the country. The human and his/her dignity should be the main driving force for any authorities. Decision-makers must be bound by the fundamental human rights and freedoms during exercising their powers.
In this statement we will briefly review the human rights situation in 2019. We will touch upon the major events and human rights violations that have been the subject of public interest throughout the year.
In 2019, the Public Defender of Georgia focused on monitoring and evaluating the selection of judges of the Supreme Court of Georgia by the High Council of Justice.
The monitoring of the selection of Supreme Court judicial candidates revealed many problems that had a significant impact on the fairness of the process and its compliance with high standards. This is discussed in detail in the Public Defender's special report, while here, as a conclusion, we would like to point out that the process ongoing in the High Council of Justice failed to convince an objective observer that the most competent and conscientious candidates were submitted to the Parliament of Georgia for the appointment to 20 vacant positions in the Supreme Court of Georgia for life. The selection process was carried out secretly and the cases of pre-agreement between the Council members were observed, which cast doubt on the fairness of the process. At the same time, the current legislative framework, according to which, the Council's decisions need not to be substantiated and cannot be appealed, failed to protect the rights of the candidates. In addition, in spite of the legislative requirements, the minimum academic degree of certain candidates submitted to the Parliament raised questions.
In light of the events developed in Georgia in 2019, we should particularly highlight the issues related to the right to assembly and freedom of expression. Throughout the year, we saw numerous assemblies, demonstrations, protests, counter demonstrations and pickets.
The motive of the rallies, including spontaneous rallies, often was to express political views, or to protest against certain issues, such as unsafe working environment, construction of hydro power plants, etc. In many cases, various violent and homophobic groups used the right to assembly to organize marches and rallies1 in order to restrict the rights of minorities, which sometimes included violent acts.
According to the Public Defender, the State failed to properly fulfill its positive and negative obligations to protect the right to assembly this year. The monitoring of the June 20-21 rally showed that contrary to the requirements of the law, no clear or understandable warning had been issued for the demonstrators about the expected use of special methods or no reasonable time was given to them to comply with the legal demand before the dispersal of the rally by force. This raised legitimate questions about the proportionality of the force used and even obvious cases of abuse of power by law enforcement agencies could be observed. Special attention should be paid to the fact that several journalists were injured, detained or prevented from carrying out their professional duties, which contradicts the national and international standards.
In addition to the above, it should be noted that the peaceful demonstrations of November 18 and 26 were also dispersed by force. Although in these cases, unlike the previous one, demonstrations were dispersed by using relatively light methods. However, the proportionality of the methods used were questionable.
The rally relating to the construction of a hydro power plant in the Pankisi Gorge was dispersed by force as well. In this case, there was insufficient communication with the population regarding the construction of the hydro power plant, and not all the resources were used to prevent the escalation of the situation and to resolve the challenges peacefully.
The State differently responded to the assemblies organized by aggressive, abusive and homophobic groups. The attempts of homophobic groups to disrupt the Tbilisi Pride March scheduled for 14 June 2019 and the premiere of And Then We Danced movie are worth noting. Despite a number of violent incidents, the authorities did not take necessary preventive measures or bring perpetrators to justice, and in some cases the response to violent acts were late and ineffective. It is worth noting that the authorities regarded these people as groups with different views, who were enjoying the right to expression, and not as offenders.
As far as the public is aware, the Prosecutor General’s Office of Georgia offered the Public Defender of Georgia to oversee the investigation of human rights violations of June 20-21. Representatives of the Public Defender have been studying the case materials since July 2, 2019. In the course of the investigation, the Public Defender addressed the Prosecutor's Office with 5 proposals to carry out various investigative actions.2 The Public Defender's proposals have only partially been implemented so far. The Public Defender's Office continues to monitor the investigation and will later provide the public with detailed information about the results.
As a result of the monitoring carried out by the members of the Special Preventive Group in 2019, the criminal subculture and vicious practice of informal governance were identified in the penitentiary institutions. Communication with persons deprived of their liberty and the staff of the institutions during monitoring showed the systemic nature of informal governance, which implies privileged position of specific prisoners and existence of informal ways of settling disputes. The problems of informal governance and privileged position of some prisoners and the need for solving the mentioned problems were pointed out by the Council of Europe's Committee for the Prevention of Torture (CPT) as well.
The Public Defender considers it important to once again respond to the pardoning of prisoners by the President of Georgia in 2019. The pardon power is closely linked to the procedural obligation to protect the right to life. According to the case law of the European Court of Human Rights, the right to life is violated when authorities show unreasonable tolerance towards persons convicted of murder, which results in their actual non-punishment. In 2019, the Public Defender's Office became aware of three cases, when persons convicted of murder were pardoned and they left prison without serving a substantial part of their sentences. Based on the case law of the European Court of Human Rights, the Public Defender considers that such use of the pardon power violated the procedural aspect of the right to life.
One of the priorities of the Public Defender's Office in 2019 was to work on the rights situation of conflict-affected persons.
Freedom of movement, closure of the so-called crossing point and the borderization process remain major problems in the occupied territories. The closure of the so-called crossing points creates serious problems for the local population in terms of movement, access to health services and education. The closure of the Akhalgori crossing point in September resulted in the loss of access to quality medical services, which led to the death of a severely ill patient. Restrictions on movement create a real threat of humanitarian catastrophe.
Information about beating and ill-treatment of prisoners in the Tskhinvali temporary detention facility is disturbing, indicating the grave human rights situation in the occupied territories.
The practice of illegal detentions on the occupation line puts the local population in dificult situation. The illegal detention of doctor Vazha Gaprindashvili is particularly alarming. It is critically important for the State, with all the resources at its disposal, including the involvement of international organizations, to ensure the release of the illegally detained doctor.
Another serious problem is that some IDPs still live in damaged buildings (which are at risk of being ruined). Although the IDPs living in such buildings have been prioritized in the process of resettlement, a number of them still remain in similar facilities throughout Georgia. Accordingly, it is necessary to provide safe housing for IDPs in the shortest possible time.
The Public Defender, in accordance with her mandate, particularly monitors the situation of the protection of equality in the country.
Importantly, after victims started to publicly talk about their personal stories and to use legal remedies several years ago, one of the most covert forms of violence against women – sexual harassment - was defined as one of the forms of discrimination and was banned at the legislative level on February 19, 2019. According to the amendments made on May 3, sexual harassment in public space was defined as an administrative offence. It should be noted that after the legislative regulation, the number of applications received by the Public Defender relating to sexual harassment has been increased. The practice shows that cases of sexual harassment most often occur in the workplace.
The violation of the right to work has been problematic this year too. Employers discriminated their employees both by dismissing them or harassing them in the workplace.
Preventing and detecting hate crimes remains a challenge. In 2019, the Public Defender of Georgia filed an amicus curiae brief with the Tbilisi Court of Appeal in connection with the criminal case of the murder of Vitali Saparov, in which she discussed the indicators of hate motive based on the standards established by international institutions, as well as the importance of identification of crime motives for correctly evaluating them.
The situation of safety at work remains worrisome. In the first half of the year, 71 were injured and 25 died while performing their duties. Despite the decreasing trend compared to last year, it is important for the State to take active measures to address this problem as quickly as possible. It should also be welcomed that the Labour Safety Act will apply to all sectors from September 1, 2019. In addition, labour inspectors were allowed to freely access any workplace that is subject to inspection. At this stage, labour inspectors do not have the authority to supervise the protection of other requirements of the labour law or to respond to the violations. The Health Care Committee of the Parliament of Georgia prepared draft amendments, which are now being discussed with social partners and other stakeholders in a working format. It is important to timely process this bill, by taking into account all the risks involved, in order to ensure protection of the employees' rights as effectively as possible and at the same time, to prevent the problem of practical fulfilment of the requirements offered by the amendments.
In terms of health care, it should be noted that the quality of health care services and high prices of medicines, as well as the challenges relating to geographical accessibility and arrangement of outpatient facilities in the regions, remain problematic. High morbidity of cancer and high number of cancer deaths remain among major challenges. There is no unified state programme for oncological diseases. The State does not fund the management of side effects or supportive psychology.
The monitoring of more than 70 outpatient clinics by the representatives of the Public Defender in 17 municipalities in Georgia revealed problems relating to infrastructure and human resources.
In terms of realization of the right to live in a healthy environment, the country faces serious challenges relating to ecology, maintenance of green spaces and lack of uniform standard for determining or evaluating the indicator of green area per capita. The lack of mechanisms to eliminate environmental damage remains a problem. Atmospheric air pollution is still an urgent issue, an important pollutant source of which is construction. The lack of strict legislative regulation in the regions in this direction, unlike Tbilisi, remains problematic.
Construction of hydro power plants have been problematic in Georgia for many years; the decisions on the construction of hydro power plants fail to answer the legitimate questions of the public or the demands of the legislature, which is often followed by public protests.
Necessary measures need to be taken by the State for the protection of the rights of national minorities and their civil integration. Participation of national minorities in decision-making, effective implementation of the right to education, information about the available programmes and services, as well as involvement of national minorities in the local governance, remain problematic.
Improving the process of education and teaching of the state language for national minorities is critically important; other problems include retraining of teachers, raising their qualifications and quality of education, which, inter alia, are affected by non-certified textbooks.
Like previous years, rehabilitation and preservation of the cultural heritage of national minorities remains a problem; no substantial steps have been taken by the State in this direction.
In terms of freedom of religion, it should be noted that the problems of restitution of historical property, challenges in the field of education, construction-related barriers for religious associations, and ineffective response to the crimes based on religious intolerance have not been addressed for years. Religious minorities have been demanding restitution of historical religious property confiscated in the Soviet period in vain for years. No effective steps have been taken in this direction.
The rights situation of persons with disabilities has not substantively changed in Georgia in 2019. The legislation has not yet been harmonized with the UN Convention on the Rights of Persons with Disabilities. The state agency responsible for co-ordinating the process has not been determined. The Optional Protocol to the Convention has not been ratified, which prevents persons with disabilities from filing complaints about violations with the relevant UN committee.
Full participation of persons with disabilities in the public life remains a problem; steps taken by the State to ensure the inclusion of persons with disabilities in public and political life are insufficient; despite the increasing demand, the employment of persons with disabilities remains low. It is unfortunate that persons with disabilities continue to have problems in terms of having unhindered access to public spaces, including due to the problem of accessibility, and the steps taken in this direction are insufficient. Introduction of a quality and inclusive education system remains a problem.
The measures taken by the State to meet the needs of persons with mental health problems are also insufficient and cannot address the challenges. It is critically important to begin the process of deinstitutionalization. The situation of women placed in psychiatric institutions is particularly worth noting, since in addition to common problems, they face a virtually insurmountable impediment in terms of getting quality sexual and reproductive health services.
Children remain a particularly vulnerable category and the measures taken by the State fail to safeguard their best interests.
The Public Defender of Georgia welcomes the adoption of the Code on the Rights of the Child, but it is important that, with the involvement of relevant agencies, the Code become the kind of document that would regulate all aspects of protection of child’s rights at the national level.
There has been critical need for a system of rehabilitation and protection of child victims of violence for years. The involvement of social workers and psychologists with appropriate authority is important to ensure the above. However, no concept of rehabilitation of children who have been victims of sexual abuse or relevant service has been developed yet.
The situation of child poverty has not changed over the years, indicating the ineffectiveness of existing programmes. The number of children who remain outside the education system for a variety of reasons, including those living and working on the streets, or those who got married or were engaged in labour at an early age, is still high.
The practice of early engagement and marriage remains one of the most important challenges. Both prevention and management of specific cases represent a problem. The number of those who became parents as minors is still high. For the prevention of early marriage/engagement, it is important to raise awareness of the associated risks, including through integrating complex sexual education and gender issues into the education system.
The steps taken by the State for protecting the rights of homeless people are still insufficient. It is important to provide minimum guarantees to address the issue of adequate housing. In addition, the most vulnerable category of homeless people - those without roof - are not eligible for the programme intended for socially vulnerable people and thus cannot enjoy social assistance or other benefits.
Despite the growing percentage of older people in the population and the challenges they face, the State has not adopted a new national action plan.
The poverty of older people, as well as the high interest rate of loans for pensioners, is particularly problematic, with over half of pensioners spending a large portion of their monthly pension on paying off the loans.
The following problems were detected as a result of monitoring the specialized institutions for older people: lack of staff, placement of beneficiaries with mental health problems and lack of access to psychiatric services for them, etc.
In relation to gender equality and women's rights, women's participation in decision-making, unequal economic participation, challenges relating to reproductive health and rights remain problematic.
Despite certain progress in responding to and preventing the cases of violence against women and domestic violence, the coordinated efforts of state agencies, identification of gender motives of crimes and insensitive attitude of some representatives of the law enforcement agencies remain problematic. Effective involvement of social workers in the study of cases of domestic violence remains a problem.
It remains problematic to detect and respond appropriately to the cases of sexual abuse, as well as to provide services to the victims. Providing housing and financial support for the victims after they leave the shelter is also a challenge.
Finally, we would like to emphasize the rights situation of the military. We visited almost every military unit this year and interviewed numerous military personnel to assess their rights situation. Numerous reports and recommendations were prepared in this regard (concerning military infrastructure, socio-economic issues and working conditions) and we hope that they will be implemented by the Ministry of Defense in the near future. Important recommendations were made to improve the socio-economic rights of veterans and we hope that the executive government will timely fulfill the instruction of the Parliament of Georgia and will increase veterans’ income tax benefits from 2020.
Based on the above, it can be concluded that the State faces many important challenges in terms of protection of human rights and freedoms. The Public Defender expresses her full willingness to cooperate with state agencies in addressing the challenges identified in this statement. The Public Defender also stresses the importance of implementing the recommendations set out in the Parliamentary Report 2018 and hopes that 2020 will be more positive and result-oriented in terms of protection of human rights.
1In this regard, the protests held against the event scheduled by the organizers of Tbilisi Pride on June 14, the Pride March and the anti-discrimination law on July 8 and the premiere of And Then We Danced movie are worth noting.
2To conduct various investigative actions for obtaining evidence relating to alleged offences (action or inaction) committed by high and mid-level law enforcers: namely, to question the Minister of Internal Affairs and his deputies, as well as employees of the State Security Service, Ministry of Finance, Special State Protection Service,to seize documents relating to the use of special methods, to additionally question in detail the persons responsible for instructing gunners relating to the use of non-lethal weapons, to seize handheld transceivers of all law enforcers and to appoint relevant examinations, to seize the cell phones of responsible persons and gunners. The investigation has so far only partially implemented the Public Defender's proposals. Namely, one of the Deputies of the Minister of Internal Affairs was questioned; most of the relevant persons were questioned regarding instructions on the use of weapons; the Head and employees of the Special State Protection Service, as well as employees of the State Security Service and the Ministry of Finance were questioned. The then Minister of Internal Affairs and his deputies (two deputies directly involved in the process) were not additionally and thoroughly questioned, no examinations of handheld transceivers were performed, no recordings of handheld transceivers of low-level employees were seized, no cell phones were seized.