Public Defender (Ombudsman) of Georgia
International accreditation status and SCA recommendations
The Georgian NHRI was reaccredited with A status in October 2018. The SCA encouraged the NHRI to continue to advocate for amendments for a more transparent and broader selection and appoint process of the Public Defender. It also raised the need for the NHRI to be provided with sufficient funding to carry out its multiple mandates effectively.
Impact of 2020 rule of law reporting
Follow-up by State authorities
The Public Defender of Georgia notes with concern that there has been no significant progress made by the authorities to address problematic issues reported in the 2020 ENNHRI rule of law report. Unfortunately, as provided below, important challenges remain in place in terms of efficiency of justice system and rule of law in general.
Impact on the Institution’s work
For the work of the Public Defender’s Office (PDO) of Georgia the issues addressed in the 2020 ENNHRI rule of law report have been a priority for years. Voicing the issues in the ENNHRI reports represents another important opportunity to bring them to the attention of regional and international actors working on advancing the rule of law and democracy across the region.
Follow-up initiatives by the Institution
The PDO has been following up the developments with regards to the issues addressed in the 2020 report by different types of activities that fall within its mandate. In particular, with regards to the issue addressed in the media pluralism section, namely the attempt to change the critical editorial policy of Adjara TV in June 2020, the Public Defender submitted an amicus curiae brief to the Batumi City Court regarding the rules of conduct in the internet/social networks approved by the Director of Adjara TV in April 2020, separate provisions of which allow for disproportionate restrictions on freedom of expression of persons employed by the Broadcaster. Later in August 2020, the Public Defender of Georgia completed the examination of cases of alleged violation of the rights of four more employees of Adjara TV and found that they had been dismissed or moved to another position in violation of the requirements of the Labour Code of Georgia and the internal labour regulations of Adjara TV. The Public Defender of Georgia recommended the Director of the Adjara Broadcaster to annul the orders on the dismissal and change of positions of the employees and to ensure the restoration of their labour rights. However, the PDO’s recommendation was not fulfilled by the Adjara Broadcaster. In addition, in October 2020, the Public Defender of Georgia addressed the Prosecutor General of Georgia with a proposal to launch an investigation into the alleged persecution of the employees of the Public Broadcaster Adjara Television and Radio.
It is also noteworthy that on September 30, 2020, the Parliament adopted new amendments to the procedure for selecting judges of the Supreme Court. The Public Defender submitted a written proposal to the Parliament on the amendments pointing out three main gaps in the draft law:
- 1) the introduction of an insufficient standard of reasoning;
- 2) maintenance of secret ballot;
- 3) the restriction of appeals against the decision of the High Council of Justice.
The last two remarks were not taken into consideration by the Parliament. On September 22, 2020, the Parliament of Georgia sent the draft law to the Venice Commission for its revision, however on September 30, it passed the law without waiting for the conclusion of the Venice Commission.
- Proposal on Launch of Investigation into Alleged Offence against Employees of Adjara TV – Available at: https://bit.ly/37zFekC
- Public Defender Founds Violation of Rights of Four More Former and Current Employees of Adjara TV – Available at: https://bit.ly/3kb71wG
Independence and effectiveness of the NHRI
In 2020, the Public Defender of Georgia published a special report in which she raised attention to the fact that the management model of semi-open establishments was based on informal hierarchy of prisoners, where the so-called “prison watchers” provide fictitious orders, aiming to silence prisoners and prevent them from talking about problems they are facing within the institutions.
The publication of this report was followed by public attacks on the Public Defender and illegal actions by the Minister of Justice and the Penitentiary Service. In particular, the Minister of Justice tried to discredit the Public Defender and the entire institution by circulating videos of a confidential meeting between authorised representatives of the Public Defender and prisoners in the cell at the sitting of the Parliamentary Human Rights and Civil Integration Committee. This incident was shortly followed by the illegal public disclosure of the details of the Public Defender’s meeting with inmates by the Special Penitentiary Service/Ministry of Justice. As a result of which, it has become not only difficult but also dangerous for the representatives of the Public Defender’s Office to carry out visits and monitoring at the penitentiary establishments. Recently, a group of prisoners managed by the administration of the establishments and the so-called “prison watchers” have been systematically targeting representatives of the Public Defender’s Office with verbal attacks, threats and aggressions. This has been hampering PDO’s communication with prisoners and monitoring of the prison area.
Given the fact that representatives of the Public Defender, during their visits to prisons, face real threats from “informal governors” supported by prison administrations, the Public Defender is considering the possibility of conducting preventive monitoring visits only under additional security measures, which would naturally impede the protection of prisoners’ rights effectively. Naturally, the Office will continue to hold individual meetings with prisoners.
This is the result of the influence of the so-called criminal subculture – the management model of semi-open establishments based on informal hierarchy of prisoners, where the so-called “prison watchers” provide fictitious order, aiming at silencing prisoners and preventing them from talking about their problems. Consequently the number of complaints received from semi-open penitentiary facilities decreases year by year.
The Public Defender’s Office encountered repeated obstacles in terms of monitoring the licensed boarding school of Ninotsminda, where minors are virtually isolated from the society and where previous monitoring exposed cases of punishment and violence against children. Representatives of the Public Defender paid multiple visits to the school however, despite the temporary measure taken by the UN Committee on the Rights of the Child, they were still not allowed to conduct monitoring.
- Public Defender’s Special Statement on Situation in Penitentiary Establishments. Available at: https://bit.ly/3p0M1cJ
- Public Defender Refused Again to Monitor Ninotsminda Children’s Boarding School – https://bit.ly/2SHFg5K
- Public Defender Welcomes the Call of the UN Committee on the Rights of the Child to the State to Ensure Inspection of the Situation of Children’s Rights at Ninotsminda Boarding School – https://bit.ly/3cValte
- Public Defender’s Statement on Ninotsminda Children’s Boarding School – https://bit.ly/3xDlrv6
Human rights defenders and civil society space
The monitoring carried out by the Public Defender revealed worrying trends of attacks on human rights defenders. As noted in ENNHRI 2020 Rule of Law report, the unacceptable practice of high officials’ statements aimed at discrediting representatives of organisations working on issues that are critical for democratic development, is of particular concern. Several of such episodes were registered over the past year, too.
The Public Defender considers that the measures taken at the national level to ensure the protection of human rights defenders remain insufficient. Unfortunately, law enforcement agencies do not take adequate precautionary measures to prevent attacks on organisations defending the rights of LGBT+ persons. The situation is complicated by the fact that the legislation does not define the concept of human rights defenders, which creates a number of problems in terms of fully identifying offences committed against them, maintaining the relevant statistics and, as a result, addressing the challenges identified in this field.
Initiatives taken by the Public Defender’s Office
On October 8, 2020, the Public Defender’s Office of Georgia organised an online meeting on the theme: “Human Rights Defenders and the Challenges Faced by Them”. Public Defender Nino Lomjaria, Deputy Prosecutor General, Deputy Minister of Internal Affairs, Chairman of the Board of the Tbilisi Human Rights House, as well as representatives of state agencies and non-governmental organisations, took part in the event.
First Deputy Public Defender presented a “Guide to Working on Issues relating to Human Rights Defenders”, which explains the concept of a human rights defender. In particular, the Public Defender of Georgia, in accordance with established international practices and standards, defines a human rights defender as any person, regardless of professional or other status, who acts independently or together with others, through peaceful means, to protect, realize and promote human rights at national or international level and recognizes the universality of human rights for everyone. The guide also outlines the efforts of the Public Defender’s Office to strengthen the protection of human rights defenders and the effectiveness of their activities.
During this reporting period PDO also issued a statement on International Human Rights Defender’s Day and disseminated infographics containing relevant provisions of the UN Declaration on Human Rights Defenders.
It is important to note that recently, with support of one of the active CSOs operating in the country, the PDO submitted amicus curiae brief to the Supreme Court of Georgia and provided the Court with comprehensive information and analysis on the challenges and general situation with regards to the human rights defenders in Georgia.
- Public Defender’s Statement on International Human Rights Defender’s Day – https://bit.ly/3unj52r
- Online Meeting on Human Rights Defenders and Challenges Faced by Them. Available at: https://bit.ly/304CGGR
- Public Defender’s Statement in connection with International Human Rights Day. Available at: https://bit.ly/3k5mDBR
Checks and balances
Several claims were submitted before the Constitutional Court of Georgia from NGOs and citizens related to the pandemic. The court rejected to examine one of the claims on its merits concerning the ban on freedom of movement during curfew, since the argued norm was no longer in force. In another constitutional claim the claimants argued that the Parliament of Georgia violated the legal principles of delegation by delegating power to the government on the basis of the disputed norms, which fail to meet the formal legality. Based on the delegated authority, the executive power is given the opportunity to impose quarantine-like restrictions on persons in Georgia through de facto quarantine measures. However, the court did not uphold this claim and deemed the delegation was in conformity with the constitution. In the same claim the Constitutional Court partly upheld the motions set by the claimants in regard with the content of the restriction of labour rights and declared the relevant normative content of the Law on Public Health unconstitutional, while it rejected the claims regarding the other disputed norms, including the free movement of persons.
It should be also noted that during the state of emergency declared due to the global pandemic, normative restrictions were imposed on access to public information, namely that the issuance of public information was suspended. The Public Defender noted with concern that no special rule was developed for proactive publication of public information by public institutions, which could have somewhat balanced the restrictive measures.
Another major challenge in 2020 was to hold parliamentary elections in a fair and equal environment. The Public Defender of Georgia considers that violent incidents, as well as the use of administrative resources, control of the will of voters, pressure and attacks on observers and media representatives on the election day, and the processes of counting the votes and summarizing the results were problematic during the 31 October elections. Unfortunately, most of the complaints filed by stakeholders to the election administrations and courts relating to substantial irregularities and imbalances in the summary protocols have not been considered or granted, which deepened public distrust and protest.
The shortcomings identified during the October elections created a political crisis in the country. The situation was further aggravated by the severe epidemiological situation and the economic crisis created by the pandemic. Consequently, it is important to conduct negotiations with all election entities and agree on a political solution in order to carry out important reforms and strengthen independent and democratic institutions.
NHRI’s role in checks and balances
On May 21, 2020, the Public Defender of Georgia submitted opinions to the Parliament of Georgia relating to the draft amendments to the Law of Georgia on Public Health and the Criminal Procedure Code of Georgia in the context of COVID-19 pandemic. Having observed that while introducing certain restrictions for the protection of human life and health during the pandemic, certain constitutional standards were not reflected in the draft amendments in question, the Public Defender submitted recommendations to the Parliament of Georgia relating to the criteria and standards that should have been considered in order to make sure that the restrictions were constitutional and legitimate. In a written opinion, the Public Defender also emphasized the importance of judicial control. The PDO further noted that it is important that the procedure of decision-making relating to isolation and quarantine measures be clear, that the remedies of placed persons be strengthened and that an effective appeal mechanism be introduced. At the same time, the Public Defender highlighted that given that the draft amendments granted special powers to the Government, it was important for the legislator to provide appropriate guarantees for the administration of effective justice in case of interference with human rights by the executive government (by introducing shortened hearing terms). It is noteworthy that the Parliament of Georgia has taken into account some of the opinions of the Public Defender relating to the amendments to the Law on Public Health. The PDO is actively engaged in the Committee of Ministers’ supervision of the execution of European Court of Human Rights (ECtHR) judgments by means of Rule 9.2 communications. In 2020, the PDO submitted 4 communications in the following cases: Merabishvili v. Georgia; Tsintsabadze group v. Georgia; N.TS. and others v. Georgia and Amiridze v. Georgia.
The PDO has not encountered any obstacles in terms of participation in legislative and policy processes, litigation and/or interventions before courts, cooperation with regional actors, etc.
- Public Defender’s Statement in connection with International Human Rights Day. Available at: https://bit.ly/3k5mDBR
- Public Defender’s Opinions relating to Draft Law on Public Health. Available at: https://bit.ly/3azd0s1
- Public Defender Responds to Draft Amendments Pending Second Reading. Available at: https://bit.ly/3u7eyB8
Functioning of the justice system
As in previous years, in 2020 the Public Defender’s Office identified a number of systemic or individual violations of human rights, which proves that there are still a number of problems in the administration of justice and in terms of respecting the right to a fair trial.
In addition, during the reporting period there were specific facts of violation of certain rights, cases of protracted justice, serious delays in sending complaints to higher instances, shortcomings in the review process of administrative violations, etc.
Cases were identified pointing to several problems including the impartiality of the court, disregard for the principles of equality of arms and adversarial proceedings, lack of objective evidence, etc.
With the aim to eliminate systemic shortcomings the Public Defender’s Office responded to the indicated facts within its mandate, appealed to the courts and provided amicus curiae briefs both to the Common and the Constitutional Courts, also issued recommendations in its special reports.
In 2020, the PDO in collaboration with the NGO Initiative for the Rehabilitation of Vulnerable Groups published a special report on the protection of procedural rights of juvenile defendants, witnesses and victims in criminal justice. Monitoring of hearings revealed a number of important problematic issues.
Unfortunately, the legal framework for the appointment of judges to the Supreme Court in Georgia remains problematic, as it fails to guarantee the selection of qualified judges and, on the other hand, conflicts with human rights, including the right to hold the public office. On July 30, 2020, the Constitutional Court of Georgia rejected the constitutional claims of the Public Defender of Georgia, which concerned the rule on the selection of Supreme Court judicial candidates by the High Council of Justice for the submission to the Parliament of Georgia. The PDO considers it extremely alarming that the Constitutional Court did not consider the claims constitutional and did not repeal the norm that allows incompetent and dishonest judges to be nominated as judicial candidates of the Supreme Court to the Parliament of Georgia against the constitutional requirements. In November 2020, the Public Defender of Georgia requested the OSCE Office for Democratic Institutions and Human Rights (ODIHR) to monitor the selection of candidates for 10 judicial vacancies in the Supreme Court of Georgia. Given the importance of the issue, the OSCE/ODIHR expressed its readiness to monitor the selection of judges and to assess the process in accordance with international standards. In addition, the Public Defender of Georgia submitted a third-party intervention before the Grand Chamber of the ECtHR in the case Gudmundur Andri Ástrádsson v. Iceland. The case concerns the applicant’s allegation that the new Icelandic Court of Appeal which upheld his conviction was not established by law, having regard to irregularities in the appointment of one of the judges sitting on the bench. It should be noted that the Court shared the position of the Public Defender of Georgia and stated that the case is important not only for the parties, but also for all member states of the Council of Europe. In addition, in 2020, four amicus curiae briefs were submitted by the Department of Criminal Justice of the PDO. Three of them were sent to Common Courts of Georgia. The amicus curiae brief was submitted to the Constitutional Court of Georgia on the lawsuit of Nikanor Melia v. Parliament of Georgia.
Media pluralism and freedom of expression
During the reporting year, the Public Defender actively monitored media freedom in the country and the assessments made by authoritative international organisations in this regard. Media environment in the country remains pluralistic, though quite polarized. The country’s position in the Press Freedom Index was also maintained unchanged, according to which Georgia ranks 60th among 180 countries. During 2020, Reporters Without Borders repeatedly raised attention to the deteriorating environment for journalists and episodes affecting freedom and independence of media in Georgia, including the dismissal of journalists from the public broadcaster Adjara TV, as well as allegations of attacks to media during the election campaign. The NGO also highlighted the gradual increase in the powers of the National Communications Commission to oversight and censorship, and negatively assessed Mediacritic.ge, a platform launched in December 2019. Human Rights Watch also focused on attempts to restrict media freedom in the wake of developments during the reporting period. The Public Defender’s Office became aware of a number of possible criminal acts against journalists and media outlets, including illegal interference and assault on members of the media, threats, robberies, and violations of the secrecy of telephone conversations. During the reporting year, information was spread about the threats made by the government against Avtandil Tsereteli, the father of the founder of TV Pirveli, a TV company critical towards the government, and the demand to change the editorial policy of the broadcaster. The claim is still under investigation, although the specific persons in the case does not have status of victim or accused. Moreover, the incidents involving obstructing journalists’ professional activities covering current events from the demonstration venues, their arrest and inflicting injuries to them also remain problematic. A persisting challenge is also the absence of proper data on alleged offences committed against journalists because of their professional activity; this makes it difficult to obtain comprehensive information about such facts and to assess the quality of response to them.
As previously noted in the follow-up initiatives by the Institution, the PDO submitted an amicus curiae brief before the Batumi City Court, regarding the case of restriction of freedom of the expression of journalists of the Adjara TV. Adjara Public Broadcaster’s Rules of Conduct on the Internet/Social Networks for the Employee of the Public Broadcaster’s Adjara TV and Radio, from the basis for disproportionate restrictions on the freedom of expression of the Broadcaster’s employees. The Public Defender noted in the amicus curiae brief that it is of an utmost importance to fully assess the legitimacy of the interference, taking into account the principles established by the case law of the Constitutional Court of Georgia and the ECtHR.
The Public Defender of Georgia also addressed Irene Khan, newly elected UN Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, and the OSCE Representative on Freedom of the Media, in relation to the events affecting Adjara TV. The Public Defender of Georgia provided information about the violations revealed as a result of the examination of the events developed in the Adjara TV, which threatens media pluralism in the country and negatively affects freedom of expression. The Public Defender presumes that the ongoing events in the Adjara Public Broadcaster are aimed at changing the editorial policy of the TV station.
- Reporters Without Borders on Georgia – Pluralist but not yet independent. Available at: https://bit.ly/3k5184g
- Several Journalists Sacked Due to Political Pressure on Public Channel Adjara TV. Available at: https://bit.ly/2OjSIKd
- Human Rights Watch World Report 2021 – Georgia. Available at: https://bit.ly/3jD2dQA
- Public Defender Addresses UN Special Rapporteur and OSCE Representative regarding Recent Developments in Adjara TV. Available at: https://bit.ly/2M5aPD7
Impact of measures taken in response to COVID-19 on the national rule of law environment
Most significant impacts of measures taken in response to the COVID-19 outbreak on the rule of law and human rights protection
It is important that a person who disagrees with a decision to apply a quarantine measure towards him or her be able to appeal that decision and obtain a legal review in a timely manner. The Public Defender considers that a decision on the legality and / or proportionality of the quarantine measure restricting liberty of a person should be made within 72 hours after receiving the complaint / claim. Unfortunately, the Public Defender’s proposal in this regard was not taken into consideration by the Parliament. In order for individuals to be able to effectively exercise their right to appeal while in quarantine, it is important to remotely ensure their participation in court hearings during administrative proceedings. Monitoring conducted by the National Preventive Mechanism revealed that quarantined persons do not have information about the right to appeal and the existing procedures. During the state of emergency in the country and after its lifting, detailed criteria on self-isolation were not established at the normative level (as clarification: self-isolation implies staying at home and completely avoid external contact, while quarantine is a mandatory placement of people in special quarantine spaces). However, if the criteria were met it could lead a person to self-isolation. As a result, the possibility of self-isolation was problematic in practice, despite meeting the appropriate conditions. As an example of a good practice set in place by state authorities, it should be noted that from June 2, 2020, the relevant resolution of the Government of Georgia defined additional criteria that a person must meet in order to be transferred to self-isolation. It should also be positively assessed that the Ministry of Internal Affairs of Georgia has taken into account the recommendation of the Public Defender and has developed a short guide for the employees of the Ministry who have relations with the persons transferred / placed in the quarantine space. At the same time, it should be noted that the Ministry did not take into account the PDO’s recommendation regarding the mandatory use of cameras during the enforcement of quarantine measures.
On May 22, 2020, the Parliament of Georgia adopted the amendments to the Law of Georgia on Public Health in an accelerated manner. As a result of the adopted amendments, the Government of Georgia was granted with the right to impose new regulations and restrict fundamental human rights without declaring a state of emergency.
Public Defender notes that the purpose of use of certain restrictions related to the pandemic were not foreseeable. The public has not been informed as to why a specific restriction was required for a specific period of time and what would be the expected result of their introduction.
As noted above the issue of introduction and removal of restrictions was regulated by a government’s sub-legal act, hence it allowed the government to make changes easily and frequently. It has been particularly problematic that there was a reasonable suspicion that certain restrictions might be based on political expediency and be used as grounds for restricting e.g., the right to peaceful assembly.
During the pandemic, the remote administration of criminal justice and electronic court hearings became the subject of Public Defender’s particular attention. From May 18 to June 22, the Public Defender’s representatives attended 279 remote hearings in 21 district and city courts and as a result published the special report. Monitoring, in which special methodologies and questionnaires were used, revealed a number of substantial problems. In particular technical problems relating to sight and hearing hindered the normal course of the hearings and in some cases led to postponement. The PDO also noted in the report that remote hearings have become a significant challenge in terms of realizing the right to a fair trial since for the vast majority of defendants it was not possible to have confidential communication with the lawyer. In addition, during questioning, the court often failed to verify the credibility of witnesses. It was even problematic to see or hear witnesses due to technical deficiencies. There were possible facts of influence on witnesses and insufficient safeguards also were in place in order to prevent influence on witnesses. During remote hearings, it was impossible to examine material evidence. The video-recordings examined during several trials were not at all perceptible to the trial participants. The quality of translation was also poor in some cases. The report includes recommendations to the Parliament of Georgia on the need for special regulation of the rules of questioning of witnesses during remote hearings. The High Council of Justice has also been recommended to ensure technically the confidential communication between the lawyer and the accused during remote hearings. The recommendations are addressed to the Minister of Justice of Georgia as well, highlighting the need to improve the technical infrastructure of penitentiary establishments in order to facilitate defendants’ connection to remote hearings. In addition, the PDO published various statements/opinions in the context of pandemic (please see in the references). It should be also noted that the Public Defender’s Office of Georgia continues to provide Stateless Persons, Asylum Seekers and Persons with International Protection status with legal counseling services.
- Public Defender Publishes Monitoring Report on Remote Hearings of Criminal Cases. Available at: https://bit.ly/3dunmv8
- Statement on Issues relating to Violence against Women and Domestic Violence. Available at: https://bit.ly/3kv5ema
- Statement on Measures to be Taken to Provide Certain Medical Services and Shelter for Homeless Persons. Available at: https://bit.ly/2ZYIMsi
- Opinion on Situation at Checkpoints. Available at: https://bit.ly/2PjZekS
- Statement to Authorities relating to Protection of Right to Life. Available at: https://bit.ly/37RSIrS
- Frequently asked questions on fines for violating the isolation and/or quarantine rules during the state of emergency. Available at: https://bit.ly/3dUZt00
- Statement on Anti-Crisis Economic Plan and Needs of Persons with Disabilities. Available at: https://bit.ly/3r7nx3A
Most important challenges due to COVID-19 for the NHRI’s functioning
Despite the pandemic, the Special Prevention Group, throughout the year, in compliance with all security measures, actively continued emergency monitoring of closed facilities. In 2020, 141 visits were conducted to 109 detention facilities. The purpose of the visits was to assess the measures taken to prevent the spread of the new coronavirus (COVID-19) in places of restriction and deprivation of liberty and the impact of these measures on the rights of persons present there, their necessity and proportionality. The Public Defender also examined the human rights situation in quarantine facilities. Research and monitoring have revealed shortcomings at both the legislative and practical levels.
Prior to the monitoring visits, the Special Prevention Group adapted the working methodology to the existing challenges. The rules for conducting a safe monitoring visit in a pandemic were defined and members were instructed accordingly. Individual protection devices were purchased, and members were explained the rules for their use.
- Public Defender’s Report on Monitoring Carried out in Penitentiary Establishment No. 3. Available at: https://bit.ly/3avutl4
- Monitoring Report on Center for Mental Health and Prevention of Addiction. Available at: https://bit.ly/3pCeea9
- Monitoring of Places of Restriction of Freedom relating to Quarantine Measures against Novel Coronavirus (COVID-19). Available at: https://bit.ly/2NFW222
- Public Defender’s Report on Ad Hoc Monitoring at Establishment No 17. Available at: https://bit.ly/3azwJYE
- Public Defender’s Report on Ad Hoc Monitoring at Temporary Accommodation Center. Available at: https://bit.ly/3kltp6o NGOs Publish Special Report on Penitentiary Establishment No. 8. Available at: https://bit.ly/3dLRphV