20 წელი ადამიანის უფლებებისთვის ბრძოლაში
Recent developments in the country have again shown that the currently enforced model of prosecution and investigative system does not meet the criteria of independence, impartiality and professionalism and needs systemic reform. Despite recommendations of numerous domestic and international organizations, the government has until this time failed to ensure the full depoliticization and strengthening of the independence of the prosecution. This is reflected in the levels of public trust towards this institution
The member organizations of the Coalition believe that the current rules for selecting the Chief Prosecutor and composition of the Prosecutorial Council have significant shortcomings and fail to ensure protection of the institution and the Chief Prosecutor’s selection process from undue political interests. Under the current system, the Prosecution is structurally dependent on the Ministry of Justice and the Minister of Justice. Therefore the Minister of Justice has a major role in selection of the Chief Prosecutor and also in directing the Prosecutorial Council.
Prime Minister Mamuka Bakhtadze decided to mostly present the acting Cabinet of Ministers to Parliament for confirmation and major personnel changes are planned for a later date. Among others, Thea Tsulukiani retains the post of Justice Minister. The Coalition believes that having Thea Tsulukiani direct the process of selecting the Chief Prosecutor once again will not be free from political influence. Since 2012, not a single Chief Prosecutorial candidate nominated by Thea Tsulukiani – Archil Kbilashvili, Otar Partskhaladze, Giorgi Badashvili, Irakli Shotadze –was politically neutral, casting doubt on the objectiveness and impartiality of the Chief Prosecutor. All of the above reinforce our belief that the Justice Minister’s heading of the process for selecting the Chief Prosecutor will once again fail to deliver on the public demand for having an independent, impartial and effective manager in the position of the Chief Prosecutor. Additionally, back in 2015, the Venice Commission noted the dominance of political elements in the acting model for selection of the Chief Prosecutor and called for the reduction of the Justice Minister’s role and the degree of political participation in this process.
Along with criticizing the current system, we must also consider that with the Constitutional amendments that will enter force at the moment the next President of Georgia is sworn in, the Prosecution will be established as an entity separate from the Cabinet, including the Ministry of Justice. The reformed Prosecutorial Council will be charged with ensuring the Prosecution’s independence. It is clear that from the moment of enactment of the new Constitution, political participation in the activities of the Prosecution and the Prosecutor General’s selection process will be considerably diminished.
If changes are not made in the current rules for the Chief Prosecutor’s selection now, by the moment of the new Constitution’s entry into force, we will already have a Chief Prosecutor in place for a six-year term, selected under substantially flawed rules.
The member organizations of the Coalition consider that selection of the new Chief Prosecutor using the current, deficient rules is wrong and will be detrimental to the process of transitioning to a substantially different prosecutorial system. Hence, the selection of the new Chief Prosecutor must be conducted using reformed rules in line with the new Constitutional standard.
The ongoing prosecutorial reform and selection of the new Prosecutor General will largely determine whether the Prosecution becomes an apolitical institution based on the principles of rule of law or, instead, the reforms fail to deliver real results and the prosecution remains as a political will-implementing agency that enjoys dismal public trust.
The member organizations of the Coalition call on the Government of Georgia to:
· stop the selection of the Chief Prosecutor using the current rules;
· implement fundamental reform in the rules for selecting the Chief Prosecutor, which will ensure that the process is in line with the concept of an independent Prosecution;
· distance the Minister of Justice from the process. She should not be a member or chair of the Prosecutorial Council and should not have the authority to nominate the Chief Prosecutorial candidates.
 Ministers of Economy and Sustainable Development, Finance, and Foreign Affairs left their posts.
The Coalition for an Independent and Transparent Judiciary is responding to the failure of administrative bodies to execute the court decision ordering to reinstate Ana Subeliani and Tamaz Akhobadze in their positions at work. This failure points to the administrative bodies’ disrespect of the right to fair trial.
It is well known that Subeliani and Ahobadze were dismissed from the LEPL Crime Prevention Center in January 2014. They claimed that Tea Tsulukiani was responsible for this illegal and unjustified decision, although their dismissal was officially justified by reorganizational needs. The dispute went on for almost four years at three court instances, but ended with a positive outcome for Subeliani and Akhobadze. The Center was ordered to reinstate the former employees in their positions and also compensate them for the loss of remuneration from the date of dismissal until the date of reinstatement.
The Court held that the employees were dismissed because of the certain officials’ biased opinions unrelated to their performance and competences; the reorganization was a superficial excuse, because the positions that existed prior to the organization were not abolished. Furthermore, new positions were introduced and the agency’s budget was expanded.
Despite the fact that the court decision was final, the LEPL Crime Prevention Center refused to execute it. The explanation of the refusal was that it had a new employee working in Akhobadze’s position since 2017, and Subeliani’s position had been abolished. Notably, the Center did not present any evidence confirming these facts during court proceedings, despite the other party’s and the court’s request. Hence, it was predictable that the execution of the court decision would encounter obstacles.
Later (in four months after an application was submitted to the National Bureau of Enforcement), the employee working in Akhobadze’s position at the Center applied to the Tbilisi Court of Appeals with a request to annul the court decision, and the Court upheld this request. Subeliani received an enforcement letter with a note that it was impossible to reinstate her because her position was abolished. Notably, the court decision required the Center to compensate Subeliani for the lost remuneration. This part of the decision also was not executed. We believe that the Bureau’s decision in this regard unequivocally contradicts the law, because no justification is provided for the failure to compensate Subeliani.
Due to the fact that the Center did not submit information about the abolishment of Subeliani’s position at any of the trial stages, one may assume that the Crime Prevention Center uses various mechanisms to delay the process of enforcement, demonstrating that citizens cannot effectively restore their rights by taking their cases to the court. This approach is detrimental to the effective defense of rights of public servants and public trust towards the courts.
This case exemplifies the problem of institutional subordination of the LEPL National Enforcement Bureau to the Ministry of Justice. Both the National Enforcement Bureau and the Crime Prevention Center are institutionally connected to the Ministry of Justice. The Minister of Justice appoints and dismisses the Heads of both agencies. The institutional connection of the National Enforcement Bureau to the Ministry of Justice creates a risk that the enforcement of decisions that are unacceptable to the Minister of Justice may be artificially protracted or left unexecuted.
We are calling on:
It is important to revisit the existing mechanism for the enforcement of court decisions and reshape it in a way that avoids the potential influence of other agencies over the process of enforcement. Also, institutional independence of the Enforcement Agency has to be ensured.
 Tbilisi Court of Appeals Decision on N3b/4403-16, March 9, 2017; the Supreme Court Decision on N as 0 682-636-2017, September 15, 2017.
The undersigned organizations respond to and express our concern over the unprecedentedly extensive special police operations conducted simultaneously in several nigh-clubs in Tbilisi on the night of May 12 and subsequent arbitrary arrests of participants of spontaneous gatherings in the streets of Tbilisi, as well as acts of interference with the freedom of assembly and degrading treatment.
It has been reported that on 10 May 2018, the Ministry of Internal Affairs obtained a court warrant for searching premises of several nightclubs in Tbilisi. It then conducted search operations using massive police force late at night on May 12, when hundreds of people were gathered in the nightclubs. We have learned that as the special operations began and the police started getting people out of the nightclubs, some were subjected to degrading treatment while nightclub owners and administration were not allowed to attend the entire search process.
A group of young people that had been forced out of the club and others disgruntled with the large-scale special operations staged a spontaneous rally outside Bassiani nightclub. Despite their large numbers, participants of the rally were not allowed to stand on a carriageway. Instead, the police was using cordons and aggressive behavior to limit protesters to sidewalks with clearly insufficient capacity. Eventually, after engaging in episodic and aggressive actions, using disproportionate force against some individuals and arresting several assembly leaders, the police managed to isolate groups of assembly participants, disband them into the streets and clear the territory of the assembly with a massive cordon. It should be noted that overall the assembly progressed peacefully and within the limits of the law, and in most cases it was the police who created arbitrary incidents of arrest and escalation.
As the assembly outside Bassiani nightclub was factually disbanded, participants of the spontaneous rally relocated themselves to the territory outside the parliamentary building where the police attempted to create the environment of fear and vulnerability by demonstrating their force. In some cases, several individuals were placed under arbitrary arrest.
Possible leaders of the spontaneous assembly were also detained as the rallies progressed, which in consideration of general approach used by the police during the assembly was indicative of the interest to counter the protest and weaken the self-organization.
We have learned that following the special operations late last night about 40 individuals have been placed under administrative detention. Some of them sustained physical injuries in the process of detention. In the beginning it was difficult for us to determine whereabouts of the detainees and ensure that attorneys communicated with them in a timely manner. Those placed in pre-trial detention isolators have not been subjected to any type of violence or illegality.
Clearly, the undersigned organizations realize the importance of combating illicit drug trade and respective obligations of the state. The process should start by identifying influential criminal networks and taking strict measures against them. At the same time, it is important to make substantial changes in the drug policy of the government to allow it to focus on care and social rehabilitation instead of inhumane and punitive measures. Unfortunately, the reform announced in this regard has been suspended by the ruling political group and limited to the area of police repression and crime.
Managing assemblies in abidance by the human rights standards is a serious challenge for the Interior Ministry, however police operations conducted in the streets of Tbilisi on May 12 was a clear and recently unparalleled demonstration of aggression by the government’s repressive machinery. The police conducted “micro special operations” to arrest peaceful citizens outside the nightclubs and the parliamentary building, mostly targeting political/civil rights activists.
Later the Interior Ministry reported that within the investigative measures 8 individuals had been arrested on criminal charges. However, later we found out that these arrests were not made within the special operations but rather, earlier in a different situation and outside of nightclub premises. Under these circumstances, the need to conduct special operations with such form and extent and the validity of the special operations are called into question. Validity of the search warrant is also questionable since it carried high risks associated with general non-individualized search and restriction of rights of a wide group of individuals.
In light of the foregoing, the undersigned organizations urge the state to:
· immediately hold those officials of the Ministry of Internal Affairs legally and politically accountable who planned and implemented the special operations that focused on demonstration of force and were conducted in clear and gross disregard of human rights;
· the Office of the General Prosecutor of Georgia should start immediate investigation into possible illegal arrests of assembly participants, possible excessive use of force and interference with the right to a peaceful assembly by the police;
· court should handle the cases of arrested assembly participants in strict abidance by the right to a fair trial and the standards of freedom of assembly;
· the government should adequately realize grave social consequences of the harsh policy towards people who use drugs and ensure that the policy focuses on social care instead of repressive and punitive approach. It should also ensure that human rights are respected in the fight against illicit drug trade.
The undersigned organizations stand ready to provide legal assistance to victims of human rights violations. We also urge individual citizens to share with us any information about incidents of human rights abuse, as it will help us evaluate and respond to the situation effectively.
Human Rights Education and Monitoring Center (EMC)
Article 42 of the Constitution
Transparency International – Georgia (TI)
International Society for Free Elections and Democracy (ISFED)
Human Rights House
Open Society – Georgia Foundation (OSGF)
Georgian Democratic Initiative
Georgian Young Lawyers’ Association (GYLA)
The Coalition for an Independent and Transparent Judiciary is concerned by the April 30 decision of the High Council of Justice that established narrow specializations for judges at Tbilisi Appeals Court and gave the unilateral power over appointing judges to these specializations to the Chair of the Court, Mikheil Chinchaladze. Despite the fact that the legislation does not specifically give such authority to Court Chairs, since 2006 the Tbilisi City Court has had the flawed practice of the Chairs appointing judges to specializations. This creates significant risks because of the Chairs’ influence on the case allocation process.
The Third Wave of Judicial Reforms introduced new rules for case allocation, which went into effect throughout the country on December 31, 2017. Establishing the new system for case allocation is one of the most significant reforms of recent years, and should be a response to numerous challenges to judicial impartiality and independence. The rules for case allocation must first of all exclude all outside intervention into this process.
In the new model of case allocation, the Court Chairs’ power to appoint judges into specializations is troubling. The case allocation program randomly selects which specialized judge gets assigned a specific case, but which judge is specialized in a legal area is decided by the Court Chairs. The problem is further exacerbated by the fact that the Chairs can change the judges’ specialization without the need for any justification, in a short period of time. This creates a significant risk of the Court Chairs’ influence on case allocation.
The narrow specialization of judges is particularly problematic at the Appeals Court level, where as a rule the cases are heard by a collegium of three judges. With the current rules, the electronic case assignment system only choses one judge: the speaker judge in the panel of three judges. Hence, there is a great risk that by simply shuffling judges’ narrow specialization without any substantiation one could influence the formation of the panel of three judges.
The Coalition has repeatedly criticized the role of Court Chairs, who are appointed by opaque rules and are a privileged group viewed as superiors to judges and as controlling them. Given this, the Coalition considers further expansion of the Court Chairs authority a negative development, and believes that if narrow specializations are created the legislation must give the power of specializing judges to the High Council of Justice, rather than the Court Chairs.