Evident example is the Khorava street teen-age murder case of December 1, 2017. This problem is raised in the conclusion of the Interim Fact-Finding Commission on Murder of Two Youngsters at Khorava Street on December 1, 2017 http://www.parliament.ge/ge/ajax/downloadFile/101632/%E1%83%93%E1%83%90%E1%83%A1%E1%83%99%E1%83%95%E1%83%9C%E1%83%90
The Grand Chamber of the European Court of Human Rights (ECHR) ruled on January 31 over the inter-state case “Georgia v. Russia” (1) that the Russian Federation has to pay 10 million Euros in compensation for nonpecuniary damages related to mass deportation of 1500 ethnic Georgians from Russia in the period from October 2006 to January 2007.
According to the ECHR judgement:
- this amount shall be distributed by the applicant Government to the individual victims, by paying EUR 2,000 to the Georgian nationals who were victims only of a violation of Article 4 of Protocol No. 4 (prohibition of collective expulsion)
- compensation for nonpecuniary damage EUR 10,000 to EUR 15,000 to those of them who were also victims of a violation of Article 5 § 1 (right to liberty and security) and Article 3 of the Convention (inhuman and degrading treatment for detention conditions), taking into account the length of their respective periods of detention.
Under the ECHR decision Georgia shall establish an effective mechanism for such distribution of respective amounts to individual victims under the supervision of the Committee of Ministers of the Council of Europe.
The case originated in an application (no. ) against the Russian Federation lodged with the Court by Georgia on 26 March 2007.
In a judgment of 3 July 2014, the Court held that in the period from October 2006 to January 2007 a coordinated policy of arresting, detaining and expelling Georgian nationals had been put in place in the Russian Federation which amounted to an administrative practice for the purposes of Convention case-law. Such actions of Russian Federation had been a violation of Article 5 of the Convention (right to liberty and security, non-existence of legal remedy), Article 3 (inhuman and degrading treatment for detention conditions), Article 13 of the Convention (right to effective remedy), Article 4 of Protocol No. 4 (expulsion of Georgian citizens in that period was an administrative practice).
“Article 42 of the Constitution” represents the rights of 7 victims
expelled by the Russian Federation in the period from October 2006
to January 2007. Under the decision of December 20, 2016, the
European Court has consolidated these complaints in one group
“Berdzenishvili and others v. Russia” (no. 14594/07, 14597/07,
15221/07, 16369/07 and 16706/07) and established violation of relevant articles of the Convention, however it has left open the issue of compensation until settlement of an inter-state dispute. The issue of distributing compensation to these persons will be decided after today’s ruling.
Another case, where the interests of the victims were protected by the organization – “Shioshvili and others v. Russia” (no. 19356/07), the European Court of Human Rights has satisfied the application and imposed payment of EUR 30 000 to Russian Federation for compensation of nonpecuniary damage. The compensation has already been paid to the victims.
On January 29, Organization “Article 42 of the Constitution” has held a conference on the topic “Promotion of employment of persons with disabilities” at hotel “Iota”, Tbilisi.
At the conference the organization presented report prepared within the project “Employment problems of persons with disabilities” and also recommendations, elaborated during the project implementation. Discussion was held at the end of the conference.
Organization “Article 42 of the Constitution” started implementation of the project “Promotion of employment of persons with disabilities” since October 1, 2018, by financial support of the EBERT fund.
According to Member of the Parliament Eka Beselia, illegal recording containing her personal and family secrets is being circulated in social networks. According to Beselia, this deliberate and sponsored smear campaign was launched against her through media and social networks shortly after her resignation from the post of the Legal Affairs Committee. She had resigned the post in order to suspend the process of the appointment of Supreme Court judges.
There have been numerous instances of circulation of illegal recording for the purpose of blackmail in the past few years. The targets of such blackmail were nearly all politicians or publicly active individuals, especially those well-known for openly criticizing the government. It is fairly obvious that the circulation of the illegal recordings served not only to suppress specific individuals, but to send a message that anyone critical of the government could be a potential target. Notably, this type of blackmail has largely been used against politically active women and is thus a warning to all women that they could be targeted next.
It is very alarming that the timing of the circulation of illegal recordings coincides with the critical statements by Eka Beselia in relation to the processes in the judiciary. It is of deep concern if certain individuals used the illegal recordings as means to stall reforms in the judiciary and protect the interests of the clan of judges that wield significant power within the judiciary.
The production and dissemination of illegal recordings is a crime punishable by the Criminal Code of Georgia. In spite of public protest, none of the instances of circulation of illegal recordings were investigated and no perpetrators have been brought to justice. The sense of impunity encourages and leads to repeat offenses, which constitutes a gross violation of human rights and hinders the democratic development of the country.
Notably, the “This Affects You Too” campaign has been working since 2014 to change the legislation and practice of secret surveillance, as well as protecting the constitutional right to private life. Unfortunately, the ruling coalition that came to power as a result of the 2012 parliamentary elections has not carried out any systematic changes in this regard. In spite of the promises made, the Operative-Technical Agency of Georgia still has unlimited access to data of network operators and all communications between private citizens.
Based on the sense of impunity amongst those who circulate illegal recordings and the lack of a legislative framework, we can assume that the Government has no will to protect its citizens’ right to inviolability of private life.
We call upon the Government of Georgia to timely and effectively investigate this case, to exhibit political will and bring an end the instances of illegal recording blackmail, as well as carry out the necessary legislative changes related to the regulation of secret surveillance.
Coalition for and Independent and Transparent Judiciary submitted recommendations regarding criteria and procedures for the selection of the Supreme Court justices to the Speaker of the Parliament of Georgia, Chair of the Fourth Wave Judicial Reform Working Group.
The Coalition believes that impartiality and transparency of the process of appointment of justices for the highest instance court can be ensured only in case of resignation of those judge and non-judge members of the High Council of Justice who supported submission of the list of the Supreme Court nominees to the Parliament of Georgia on December 24, 2018. The Coalition believes that the Supreme Court judicial candidates can only be selected by the renewed composition of the Council and the process shall resume after relevant legislative amendments are made.
As far as the Working Group led by the Parliament Speaker and the process of work on legislative amendments are concerned, the Coalition thinks that the current composition of the Working Group does not ensure fair representation of professional and interest groups. The majority of the Group are the members of the High Council of Justice and those judges who were directly interested in hastened consideration and approval of the list. If the current composition of the Group is maintained, a discussion of substantive changes becomes impossible and contributes to only superficial improvement of the process. Thus, the Coalition refuses to take part in the Working Group and calls on the Parliament to significantly revise the existing format and composition of the Group.
The Coalition’s recommendations concerning selection of the Supreme Court justices are based on three major principles:
The process of selection of the Supreme Court shall include the following major elements:
The recommendations submitted by the Coalition are supplemented by the judicial candidates’ evaluation criteria and the list of documents and information to be submitted by the persons who want to partake in the competition.
Under the recently amended Constitution the High Council of Justice is responsible for nominating the Chief Justice and Supreme Court judges. So far a procedure and additional qualification requirements for nominating candidates for the positions of the Chief Justice and Supreme Court judges have not been established in the organic law. Despite this fact at the December 24, 2018 meeting the High Council of Justice presented the list of the Supreme Court judicial candidates based on a completely non-transparent procedure and in violation of the legislative requirements. The list was sent to the Parliament for approval. It includes the judges notorious for making unjust decisions in high-profile cases and raising questions due to the lack of independence and impartiality.
We believe that in view of the Supreme Court’s importance and role, its judges have to meet higher standards compared to the first and second instance judges. The Supreme Court has to include professionals, who are not only knowledgeable and experienced, but also highly reputable in professional circles and larger society. The judges, who are not trusted in the society and are not distinguished for an honest and impartial attitude to work, will not be able to ensure justice and will keep the judiciary in the state of the least trusted institution for decades thereby hampering the country’s democratic development.
The ruling party has to adequately comprehend the critical state of the judicial system and recognize its responsibility for the negative outcomes of lifetime appointment of candidates nominated for the Supreme Court.
The Coalition is calling on the Parliament of Georgia to start working on the amendments to the Organic law on the Common Courts aimed at establishing additional qualification requirements corresponding to the high status of a Supreme Court judges and defining the rules for nominating the Supreme Court judicial candidates.
The Parliament of Georgia has to refrain from considering the candidates already nominated by the High Council of Justice prior to the adoption of the above mentioned amendments. The selection process has to be renewed only after the relevant legislative changes are made. The legislative body has to evaluate compliance of the candidates nominated under these rules to the requirements established in the Constitution and the legislation.
The Coalition for Independent and Transparent Judiciary is concerned by the nomination of candidates for the Supreme Court Justice position by the High Council of Justice (HCOJ) on December 24. The nomination was made without observing any procedure and majority of the candidates nominated are associated with unlawful and unjust justice for the society. It is clear that confirmation of the nominated candidates by the Parliament will bring about further strengthening of clan governance of the judiciary and will make independence of judiciary an impossible feat for the decades to come.
The changes to the Constitution of Georgia, which entered into effect upon the swearing in of the newly elected President, aimed at depoliticizing the appointment of the Supreme Court justices and making this process professional and merit-based. This spirit of the Constitution has not been reflected in the Organic Law on Common Courts of Georgia and to this time there are no clear procedures or criteria by which the High Council of Justice is to nominate candidates. Under these circumstances the High Council of Justice did not wait for legislative amendments and submitted to the Parliament a list of candidates that was drawn up by several judges behind closed doors.
The nomination of the candidates by the HCOJ did not observe the Constitutional objectives and even the minimal procedural standards. Specifically:
· The Constitution of Georgia stipulates that judges are selected based on two criteria – competence and integrity. This Constitutional provision requires legislative amendments that would set the rules for checking the qualifications of the Supreme Court judicial candidates against these criteria. The HCOJ nominated the candidates, rather than wait for adoption of such amendments. As a result, among the candidates nominated there are judges, who’s compatibility with these two criteria have not been assessed even formally;
· The Constitution states that the Organic Law sets the rules for judicial appointment and dismissal. Despite this, the HCOJ nominated the candidates before the detailed procedure for nominating Supreme Court judicial candidates was prescribed by law;
· The HCOJ selected the candidates capriciously from a limited group of persons. All of the nominated candidates are acting judges. It is unclear what was the criteria for selecting these judges and/or why other interested persons were precluded from equal participation in a fair, open and transparent competition;
· The ten candidates were nominated upon consultation with only a part of the HCOJ members. Not all members of the HCOJ were informed regarding the identity of the candidates to be voted on. The biographies of the candidates were not discussed at a HCOJ session and there was no substantiation as to why these ten judges were distinguished from the remaining 300 judges currently acting in the judiciary. This shows serious risks of corruption and nepotism;
· The one page letter of the HCOJ to the Parliament does not contain any substantiation regarding the nominated candidates.
The identity of the candidates is important to note. Of the ten, seven are notable for occupying, in past or currently, key positions in the justice system and have influence on all major decisions regarding the management of the judicial branch. The names of Mikheil Chinchaladze, Giorgi Mikautadze, Dimitri Gvritishvili, Tamar Alania, Merab Gabinashvili, Giorgi Tkavadze, and Paata Silagadze have for years been associated with clan governance and corporatism in the justice system. Among them the nomination of the two acting members of the HCOJ, Giorgi Mikautadze and Dimitri Gvritishvili further illustrates that members of the HCOJ abuse this high office for own private interests.
Additionally, among the nominated candidates are the judges who’s certain past decisions have been fiercely criticized by various organizations, including the Ombudsman’s reports. Nomination of these candidates was conducted without studying and addressing a single problem related to the nominated candidates’ biographies.
The only lever to alleviate the existing situation in the judiciary and avert further strengthening and solidification of clan governance rests with the Parliament and the ruling majority. On December 26, after the protests of various public groups and negative reaction from certain members of the ruling Georgian Dream, the Speaker of Parliament made a statement that the Parliament will not make a decision on appointment of Supreme Court Justices in the current session and will return to hearing the issue at the beginning of the spring session.
We command the fact that the ruling government has changed its mind on speedily hearing the issue, however, this is not enough. It is of principle importance, that the Parliament refuse to discuss the existing list of candidates for the Supreme Court appointments.
Based on all of above, the Coalition calls on the Parliament of Georgia to:
· decline the list of the candidates nominated for the Supreme Court appointment;
· immediately start working on legislative amendments which will bring the rules and criteria for selecting the Supreme Court justices in line with the Constitution and international standards;
· start the selection process only after adopting the legislative amendments and nominate the candidates anew, following the rules set.
The Coalition also calls on the Speaker of Parliament, Irakli Kobakhidze and the Chair of the Parliamentary Legal Affairs Committee, Eka Beselia, to meet with the Coalition member organizations and other interested groups without delay, and discuss the Coalition’s proposals regarding the selection and appointment of the Supreme Court justices and set a specific plan of action on this issue.
“Article 42 of the Constitution” responds to initiation of draft law by the Parliament members on suspending enactment of law of Georgia on State Inspector Service. The initiated draft law envisages suspending terms of implementation of measures related to full enactment of law, as well as terms of entry into force of investigative powers granted by law to the State Inspector Service for 6 months (till July 1, 2019);
Establishment of State Inspector Service and its timely introduction is a significant reform, which shall facilitate fight against improper treatment, and impartial and effective investigation of crimes committed by public servants and/or their equal persons against human rights and freedoms.
Timely implementation of this reform is essential for effective enforcement of number of decisions made by the European Court of Human Rights against Georgia on improper treatment, creation of impartial investigation standard and establishment of credibility towards such investigation.
The explanatory note to the draft law indicates that the government of Georgia cannot attain all the measures for handing over all material-technical and financial resources to State Inspector Service and the Prosecutor’s Office of Georgia till January 1, 2019, as it was initially envisaged by the law.
Considering the fact that the law of Georgia on “State Inspector Service” was adopted as early as July, 2018, the preparatory period up to 6 months should have been sufficient to ensure fulfillment of all measures determined by the transitional provisions of the law.
Suspending the enactment of law for more 6 months by the abovementioned reasoning and accelerated discussion of the draft law may contain signs of creating artificial barriers to enacting the law, negatively impacting achievement of important goals, timely and effective implementation of which is part of international obligations undertaken by Georgia.
On December 14, The Constitutional Court of Georgia made decision on the case “Citizens of Georgia – Jimsher Tskhadadze and Mamuka Chanturia vs The Parliament of Georgia”; The lawyer of the organization “Article 42 of the Constitution” - Archil Chopikashvili was protecting the rights of the claimant at the Constitutional Court.
According to the dispute norm, age limit for serving as a bailiff is 50 years. As per claimants’ position, quality of performing bailiff’s duties is connected with specific skills and does not depend on person’s age. Appropriately, the dispute norm under which persons exceeding 50 years of age are restricted to work as bailiffs is discriminative and violates the right to occupy and serve at relevant position in public service.
The Constitutional Court has clarified that in certain circumstances envisaged by law, bailiffs are authorized to use physical force, special means and firearm; accordingly, complete fulfillment of bailiff’s duties is significantly related to person’s physical training and health conditions. Though, evidence examined on this case did not prove that achieving the age of 50 by itself meant the loss of skills required for performing bailiff’s duties. According to the Court, it was also possible to assess the person’s physical conditions in every certain case and determine whether he/she satisfied requirements for performing bailiff’s duties. Consequently, mentioned circumstances excluded the need of releasing bailiffs based on their age. The Court has also determined, that the dispute norm is discriminative, unfairly treating substantially equal persons under and over 50 years of age.
Based on all the above, the Constitutional Court found that the dispute norm violated the right to equality before the law on the one hand, and right to occupy and serve at relevant position in public service on the other.
The new version of the Constitution went into effect at the moment the newly elected President was sworn in. According to it, Supreme Court justices are no longer nominated by the President but rather by the High Council of Justice (HCOJ), and they are appointed for life by the Parliament. The Chairperson of the Supreme Court is selected for a 10-year term by the same procedure.
Notably, at this moment the legislation does not provide a transparent procedure for selecting and nominating the candidates for Supreme Court justice and Chairperson positions. Neither are there clear criteria against which the candidates are to be evaluated.
The Supreme Court is the highest instance of justice over the whole territory of Georgia. Its decisions are final and are not subject to appeal by parties. The Supreme Court plays a huge role in establishing and developing court practices and the interpretation of legal norms. Given the important role of the Supreme Court in the justice system, Supreme Court justices must enjoy high public trust. A justice must be an independent, impartial, veracious and honorable professional who enjoys a good reputation with the public and professional circles.
Since the Constitution of Georgia clearly states that additional qualification requirements for common court judges are determined by Organic Law, it is important to implement appropriate amendments to the Organic Law on the Common Courts before starting the selection process for candidates for the Supreme Court. These amendments should establish additional selection criteria and the procedure for nominating the candidates by the High Council of Justice.
In addition, given the important role of the Supreme Court, we believe that the Organic Law should provide for the same vote requirement for nominating a Supreme Court justice candidate that is required for judges appointed to the first and second instance courts – no less than 2/3 support of the full composition of the High Council of Justice.
To guarantee the selection of the judges of the Supreme Court of Georgia complies with international standards and to ensure public trust in the selected candidates, the interviews with judicial candidates at the High Council of Justice must be open and their biographies must be available for the public.
The Coalition positively assesses Article 205 of the newly adopted Rules of Procedure of the Parliament of Georgia, which obligates the relevant committee to create a working group to assess candidates for the positions of Supreme Court justice and Chairperson in accordance with the requirements provided in the Constitution of Georgia and/or other laws.
We believe that the working group should be made up of those legal professionals and representatives of civil society who uphold principles of democracy and human rights in their work. The working group should be given reasonable time for this process. The candidate hearings in the committee must be public and stakeholders must be allowed to pose questions. This type of process will ensure the maximal engagement of civil society, thereby raising public trust in the process.
The Coalition believes that Supreme Court judges should not be elected before the Organic Law establishes detailed rules for the selection and nomination of candidates by the High Council of Justice.
- We call on the Parliament of Georgia to immediately start working on the amendments to the Organic Law of Georgia on Common Courts.
- We call on the High Council of Justice to refrain from nominating candidates before the relevant legislative amendments are adopted.
The undersigned organizations call to the Government of Georgia to use international legal mechanisms to eliminate gross violations of human rights in villages neighboring the occupation line and territories of the occupied Abkhazia and Tskhinvali region and lodge an interstate complaint with the ECHR against Russia’s common practice of deprivation of life and restriction of freedom on these territories.
The facts of illegal deprivation of freedom in the vicinity of the occupation line at the territories of Abkhazia, as well as South Ossetia has become an established practice for years already. Hundreds of Georgian citizens, including women and children, become victims of such crime. In most cases the kidnapped are set free in exchange for certain amount, but there had been facts of leaving them in captivity for years. The detention conditions are usually tough and inhuman, many of the victims talk about physical and verbal abuse. During the last few years the Russian occupation regime has taken lives of three Georgian citizens. The body of Davit Basharuli, who disappeared in 2014 in the occupied Tskhinvali region, was found after several months. The citizen of Georgia – Giga Otkhozoria was killed in May 2016 in village Khurcha. Archil Tatunashvili, apprehended on February 22, 2018 in Tskhinvali region, allegedly died as a result of physical violence on February 23. Two other persons, detained together with Archil Tatunashvili, were released by De-facto government, however they are not still allowed to return to the Georgian controlled territories. Since August 2017, neither Tamar Mearakishvili is given the right to leave occupied Akhalgori region, against whom Tskhinvali de-facto government initiated a criminal investigation for her articles published in media and civil activism. The above cases are further aggravated by the fact that nobody is yet punished for the murder of Davit Basharuli and Giga Otkhozoria. Developments taking place since February 23, concerning hand over of Archil Tatunashvili’s body and its examination, makes it clear that neither this investigation will be implemented effectively and objectively by the Russian Federation. As for the government of Georgia, considering objective circumstances, it is unable to conduct effective investigation and/or has no effective mechanism for executing the conviction for not having an effective control over the territories of Abkhazia and South Ossetia.
Following the practice of the European Court of Human Rights, responsibility for violation of human rights is borne by the government executing effective control on the given territory. Jurisprudence of the European Court also considers positive responsibilities of de jure jurisdiction, to execute all reasonable, including diplomatic and legal activities at the conflict territory, for protection of violated rights. Accordingly, its important for Georgia to use every diplomatic channel for spreading information and elimination of gross violation of human rights at the territories occupied by the Russian Federation.
In addition, under article 33 of the European Convention on Human Rights, “Any High Contracting Party may refer to the Court any alleged breach of the provisions of the Convention and the Protocols thereto by another High Contracting Party.”
In the years of occupation, the extent of human rights violation at the occupied territories of Abkhazia and South Ossetia and in the vicinity of the occupation line thereof, and negligence expressed by the Russian federation, creates grounds of applying to such a dispute.
In the absence of independent and neutral international monitoring missions on the occupied territories, they became spaces for arbitrariness of the Russian Federation and its controlled de-facto political regimes, requiring effective legal response from Georgia.
In the view of the foregoing and in light of facts of unlawful detentions, deprivations of life at Russian controlled territories of Abkhazia and South Ossetia and the adjacent regions and ineffective response thereto, has massive character and represents an established administrative practice of the Russian Federation, the signatory organizations assume that, together with increasing political and diplomatic pressure, Georgian government has to apply to international legal mechanisms.
Therefore, the signatory organizations call for the government of Georgia to use the legal mechanism envisaged by the European Convention of Human Rights – interstate complaint – concerning facts of gross violation of human rights at the occupied territories.
In addition to this, the government of Georgia to apply the article 39 of the European Convention and request provisional measures against Russia for guaranteeing safety of Levan Kutashvili and Ioseb Pavliashvili, detained on February 22, 2018, also Tamar Mearakishvili and for immediately providing them with the right to return to territories controlled by the Georgian central government.
The signatory organizations once again express their deep concern at the death of Archil Tatunashvili and offer condolence to his family.
Article 42 of the Constitution
Human Rights Education and Monitoring Center (EMC)
Human Rights Centre (HRIDC)
Institute for Democracy and Safe Development (IDSD)
Rehabilitation Initiative for Vulnerable Groups
Tbilisi Human Rights House
Democracy Research Institute (DRI)
Georgian Young Lawyers Association (GYLA)
Non-governmental organizations respond to the arrest of Zaza Saralidze and believe that his actions were provoked by persistent and gross violations of human rights by the Ministry of Internal Affairs of Georgia.
The Ministry of Internal Affairs of Georgia has numerous times violated the Constitution of Georgia and the Law on Assemblies and Demonstrations during multiple days of Zaza Saralidze’s, Malkhaz Machalikashvili’s and their supporters’ peaceful protest outside the Parliament building, by not allowing them to erect a tent and/or other construction in the area. The violation of law by the representatives of the Ministry of Internal Affairs of Georgia resulted in escalation of violence today.
Non-governmental organizations, as well as the Public Defender of Georgia, made obvious statements on violent actions by the representatives of the Ministry of Internal Affairs of Georgia, representing breach of the Constitution of Georgia, active legislation and unjustified interference in the right to peaceful assembly. However, as reported by media, the incident in front of the Parliament was followed by interference of police in arrangement of rain-protective construction, leading to violent actions from Zaza Saralidze’s side.
In light of ignoring recommendations issued by the temporary investigative commission of the Parliament of Georgia concerning violations committed by the investigative agencies with respect to Khorava Street crime and the representatives of the Ministry of Internal Affairs intentionally preventing victims’ peaceful protest, it is obvious that the government has no will to establish the truth and restore justice.
According to the media reports, Zaza Saralidze was charged under article 3531 of the Criminal Code of Georgia (assault on police officers or other representatives of the authorities or on a public institution) and his accompanying two persons - under article 173 of the Code of Administrative Offences of Georgia (Non-compliance with the lawful order or demand of a law-enforcement officer, military servant, officer of a Special State Protection Service or enforcement police officer or verbal abuse of and/or any other abusive act against such person while such person is in the line of duty). Also, by media reports, Zaza Saralidze was transferred to Ingorokva clinic due to deterioration of his health condition.
In spite of footage spread by the media, showing Zaza Saralidze physically assaulting the police officer, the circumstances which led to this violence should be taken into account, directly linked to illegal, arbitrary and anti-human rights policy of the MIA against assembly participants.
For several weeks, during day and night, protesters had to stay outdoors especially in bad weather conditions, causing feeling of stress, disgrace and vulnerability. Another interruption by the police officer in erecting a tent on a rainy day was clear demonstration of unlawful and anti-human action against Zaza Saralidze.
Both actions envisaged under the abovementioned Articles require law enforcement officers to carry out their official duties and necessity of their legitimate demand,while interruption in erecting a tent or other construction within the right to peaceful assembly cannot be deemed as a legitimate demand. Thus, there is no essential element of this crime. It’s also important to give legal assessment to the Police actions in the process of violence generation.
Following the today’s developments in front of the Parliament building , we call upon:
The Chief Prosecutor’s office to:
- Immediately start an investigation in connection with the restriction of the right to peaceful assembly and to bring criminal charges against the individuals who directly participated in the unlawful restriction of the said right using official position.
- Analyze illegal and anti-human rights content of the State policy, becoming the basis of Zaza Saralidze’s unlawful action and together with proper use of the criminal code of Georgia, apply humane and lawful approaches in the process of initiated investigation.
The Ministry of Internal Affairs to:
- Immediately stop unlawful and arbitrary practice of interfering with the right to peaceful assembly and use of tents/other constructions and make public statement thereon.
- Taking into account the pre-election period, to understand the risks of escalating the processes and take every measure for creating peaceful, fair and safe environment. It is important that such environment first of all was guaranteed for fathers, organizing the protest, who became victims of political instrumentalization and ignorance from governmental representatives.
Article 42 of the Constitution
Tolerance and Diversity Institute (TDI)
Institute for Democracy and Safe Development (IDSD)
Transparency International Georgia (TI)
Human Rights Centre (HRIDC)
Democracy Research Institute (DRI)
Union “Shelter” (“Sapari”)
Rehabilitation Initiative for Vulnerable Groups
Georgia’s Reforms Associates (GRASS)
Media Development Foundation (MDF)
International Society fof Fair Elections and Democracy (ISFED)
Human Rights Education and Monitoring Center (EMC)
Georgian Young Lawyers Association (GYLA)
The Georgian Centre for Phychosocial and Medical Rehabilitation of Torture Victims (GCRT)
Human Rights House (HRHT)
Partnership for Human Rights (PHR)
We would like to respond to the with the right to peaceful assembly by the police, which took place at a protest rally organized by Zaza Saralidze and Malkhaz Machalikashvili in front of the Parliament in Tbilisi on September 26, 2018. As confirmed by news reports, the protesters were planning to put up a tent on the pavement, which would not have caused interruption/blocking of the functioning of the Parliament building. Police officers dismantled the construction of the tent and didn’t allow the protesters to continue the protest in this form. There were also reports that the police had used physical force against the protesters, confiscated the tent, and conducted a search of a car. On the same day, , the police prevented civil activist Nata Peradze and a person accompanying her from joining the ongoing protest rally and forcibly confiscated a bag which contained a tent. They were only allowed to enter the area of the rally after the police had confiscated the tent.
It should be noted that this is not the first time the police have prevented protesters from holding an assembly in the peaceful form of their choosing. A similar incident took place appropriate response by the relevant agencies. , though it is still unknown whether or not the interference with the right to peaceful assembly was followed by an
Prevention of protesters from putting up a tent in the area of assembly on the part of the police constitutes an attempt to control the form of peaceful assembly, which grossly violates the essence of the right to peaceful assembly guaranteed by the Constitution of Georgia and by the Law of Georgia on Assemblies and Demonstrations. The Ministry of Internal Affairs is obliged not to interfere with the holding of an assembly in the form that is peaceful and that has been chosen by the protesters. The right to choose the form, time, and place of a protest rally is part of the right to assembly on a par with its content, and a tent may be a vital attribute for continuing a protest rally.
According to the Guidelines of the OSCE/ODIHR, putting up a tent and other temporary constructions is regarded as part of the realm protected by the right to peaceful assembly. An act that prohibited putting up tents, caravans, and other constructions in ‘controlled areas’ was deemed to contradict the right to peaceful assembly protected by Article 11 of the European Convention on Human Rights in one of the judgments against the United Kingdom, because putting up a tent, as the form and means of protest, has assumed a symbolic significance that is inseparable from the protest message.
The pavement is a public space to which everyone is entitled equal access; accordingly, the State is obliged to contribute to holding of peaceful assemblies at places suitable for protest organizers.
In a judgment adopted in 2011, the Constitutional Court of Georgia emphasized that ‘the possibility of equal and meaningful exercise [of the right to assembly and demonstration] determines the quality of openness and democracy of a society.’ The Court only deemed it possible to prohibit protesters from putting up temporary constructions in the context of blocking the carriageway, in relation to the legitimate goal of protecting other people’s rights. According to the Court, ‘participants of an assembly should be able to determine themselves the form which best expresses the goal of the assembly.’ (‘The right to assembly and demonstration includes the right to choose the place, time, form, and content of an assembly.’) In addition, the Constitution of Georgia only considers it admissible to restrict this right if the assembly assumes an unlawful character. It should be emphasized that the legislation in force in Georgia does not provide for the prohibition of putting up temporary constructions if they don’t interfere with the traffic. Thus, the actions of the law enforcement officers were not only unlawful but also unconstitutional.
The actions of the police also contradict the practice established by national courts. A judgment adopted by the Tbilisi City Court in 2016 established that putting up a tent without a prior permission falls within the right to peaceful assembly. The Court explainedthat ‘the right to assembly and demonstration includes the right to choose the place, time, form, and content of the assembly, which implies the possibility of putting up temporary constructions.’
It should be noted that ‘unlawful interference with the exercise of the right to hold or participate in an assembly and demonstrations using violence, threat of violence or official position’ is a crime and entails criminal liability.
The explanation of the Minister of Internal Affairs that the said restriction served to avoid provocations, uphold law and order, and ensure the safety is groundless and makes us think that the actions of the police were motivated by the interest of targeted interfering with the expression of protest rather than upholding the public order.
We, the signatory organizations, call upon:
- The Ministry of Internal Affairs – to stop interfering with the right to peaceful assembly and to allow protesters to put up a tent for the duration of the rally;
- The Chief Prosecutor’s Office – to launch an investigation in connection with the restriction of the right to peaceful assembly and to bring criminal charges against the individuals who directly participated in the unlawful restriction of the said right using official position.
Georgian Young Lawyers’ Association (GYLA)
Human Rights Education and Monitoring Center (EMC)
Georgian Democracy Initiative (GDI)
Partnership for Human Rights (PHR)
Human Rights Center
Transparency International Georgia (TI Georgia)
Institute for Democracy and Safe Development (IDSD)
Women’s Initiatives Supporting Group (WISG)
Tolerance and Diversity Institute (TDI)
International Society for Fair Elections and Democracy (ISFED)
Article 42 of the Constitution
Institute for Development of Freedom of Information (IDFI)
Open Society Georgia Foundation (OSGF)
 Guidelines on Freedom of Peaceful Assembly, second edition, §18, Warsaw/Strasbourg 2010, ;
 Tabernacle v Secretary of State for Defense , EWCA Civ 23 (05 February 2009);
 Guidelines on Freedom of Peaceful Assembly, §18;
 Judgment No. 2/482,483,487,502 of the Constitutional Court of Georgia of 18 April 2011 in the case of Political union of citizens Movement for United Georgia, political union of citizens Conservative Party of Georgia, citizens Zviad Dzidziguri and Kakha Kukava, Georgian Young Lawyers’ Association, citizens Dachi Tsaguria and Jaba Jishkariani, Public Defender of Georgia v Parliament of Georgia, § 25;
 Ibid, § 37;
 Ibid, § 34;
 Judgment of the Administrative Panel of the Tbilisi City Court of August 31, 2016, in case No. 3/6463–16.
Non-governmental organizations respond and condemn the xenophobic statement of Salome Zurabishvili, a presidential candidate supported by Georgian Dream.
On October 2, during the pre-election meeting with local ethnic Armenian citizens in Ninotsminda (Samtskhe-Javakheti region), Zurabishvili stated: “Till now, citizenship was granted only by the decision of a president. One of the presidents [Mikheil Saakashvili], whose representative is my opponent, granted citizenship to a lot of Turkish people, but did not give a citizenship to you”.
It should be noted, that state officials, also election candidates and leaders of various political parties often use hate speech and disseminate intentional xenophobic statements, however, the statement of the ruling party- supported the presidential candidate, proves to be extremely alarming, undermining state interests.
The statement also contains the signs of illegal canvassing. According to the Electoral Code of Georgia, the candidates have the right to present a program for their further activity, however the election program shall not contain propaganda for war or violence, appeal for change or overthrow of the existing state and social order by violence, for violation of the territorial integrity of Georgia, for national strife and enmity, or for religious or ethnic confrontation.
We consider, that the above-mentioned statement of the presidential candidate incites hatred, contradicts the principles of liberal democracy and equality, invokes the historic conflict in the modern Georgian political reality and employs all of it against political opponents.
To be noted, this is not the first xenophobic and racist statement disseminated by Salome Zurabishvili. On January 31, 2013, Zurabishvili posted on her Facebook page: “Chinese people never die. Several members of a family use one ID card or passport, who can see any difference? You may think that ten persons have entered [the country], but in reality, 100 persons have crossed the border.” According to her another statement: “Shardeni and Agmashenebeli streets should not be turned into the streets of hookahs.”
We consider that in order to ensure healthy pre-election environment, campaigns should be based on the protection of human rights, equality, and principle of integrity.
The signatories condemn the statement of the Presidential Candidate and consider, that it violates the legislation.
We also call on:
Salome Zurabishvili, all political parties and election candidates to comply with the law and to refrain from making xenophobic, racist and discriminatory statements.
The Election Administration of Georgia
study factual circumstances given in the statement and to take
relevant measures in accordance with Georgian
Today we join you in celebration of international justice day and the 20th anniversary of the Rome Statute of the ICC. At the same time, we commemorate 10 years since the 2008 conflict in Georgia.
Throughout the last decade, many victims have passed away, thousands of displaced people are living in dire conditions, and civilians are living in fear. Families of the lost ones and the remaining victims are losing hope that they will ever get justice.
Looking at the future of the Rome Statute system, on this symbolic occasion, we would like to provide 10 key recommendations to the new ICC leadership and to the Trust Fund for Victims, to make the ongoing process meaningful for the affected communities.
The ICC has opened an investigation on the situation in Georgia in January 2016 bringing a new glimmer of hope. There is however a desperate need for detailed and balanced information amongst the victims and affected communities as well as in media and general public. There are numerous unanswered questions and misunderstandings regarding the investigation and what the Court can do.
The ICC Office of the Prosecutor (OTP) has recently been blamed for leading a one-sided investigation against former Georgian state officials. Numerous misleading and fake reports about the investigation are massively spread amongst the society. This happens largely because of the informational vacuum on the ground. While we are attempting to fill the space, we cannot replace the court in its outreach functions. Especially when accusations and attacks against civil society fighting for victims’ rights and justice also happen simultaneously.
While we have welcomed the opening of the ICC field office in Georgia, we regret that its capacity to deliver outreach and act as the ICC visible voice in Georgia is limited due to a lack of investment from the Court and back-up from the States Parties, including financial.
Now is the time when public opinion needs to understand what the ICC can do in Georgia and we believe the court’s active engagement in public outreach and information activities is crucial to bring in the much-needed clarity and build strong support. However, without sufficient human and financial resources, we fear that the field office, as it is envisaged in the 2019 budget proposal, and the Court’s activities in Georgia are doomed to fail ensuring the Court is understood and ensuring the people stand with the victims.
1. Develop a court-wide strategy on its engagement in Georgia, to ensure all organs have a vision of how to overcome existing challenges and ensure effective implementation of the court’s mandate to deliver justice to the victims.
2. Establish advisory groups composed of local experts from civil society, legal and diplomatic communities, academia, to support the court with expertise on crucial matters in its activities in Georgia and the region.
3. Provide information to the public, civil society and relevant actors on the progress of the investigation on a regular basis
4. Publicly respond to direct allegations and accusations of partiality and bias, to ensure public trust and support
5. Provide sufficient human and financial resources for the field office in Georgia, including by recruiting qualified local staff who speak local languages to interact with the communities and follow the daily developments on the ground
6. Ensure full implementation of victims’ rights to access justice and redress, including participation in the proceedings and adequate representation
7. Appoint a dedicated staff member from the Victims Participation and Representation Section (VPRS) to the Field Office to interact with victims on the ground;
8. Ensure local lawyers and jurists have opportunities to be on the ICC List of Counsels, including by organising trainings, and information sessions in local languages.
9. Implement a fully-fledged outreach strategy in Georgia, and establish regular and specific communication tools and dedicated activities with civil society and with the media; Respond to misinformation and fake news about the ICC and Court’s role in Georgia and relay information about local and regional developments to the HQ
10. Urgently follow up to the 2017 visit to Georgia, appoint a dedicated staff and launch programmes under its assistance mandate in Georgia to respond to the harms of victims and their families
Article 42 of Constitution
Georgian Young Lawyers Association
Human Rights Center
Georgian Center for Psychosocial and Medical Rehabilitation of Torture Victims
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.
Civil society organizations and groups working on protection of human rights in Georgia are extremely concerned about the violence and threats committed on homophobic motives against four activists of the organization Equality Movement in Tbilisi. We call on law enforcement agencies to investigate the case in a timely and effective manner in order to address difficult situation with just and human rights-based approach and to restore activities of the Equality Movement.
On the evening of September 28, 2018, an informational meeting was being held in the office of the CSO "Equality Movement" in Tbilisi, which was attended approximately by 30 people. People participating in the meeting were smoking in the backyard of the office of the organization. There is another house in the yard where the neighboring family resides. At around 22:00-22:30 the woman living in the neighboring house addressed guests with yelling and aggressive attitude. Her irritation was caused by the sound of the organization's guests. She threatened the guests in front of the office for several minutes using the following phrases: "We will force you to move out", "You will see what will happen to you soon." Due to this incident, by the decision of “Equality Movement,” the event ended and the organization's staff asked the guests to leave the office. The vast majority of guests left the organization within 20 minutes. At about 23:00, only few employees and guests were left in the office of the organization. Four of them - M.K., S.J., A.B., and M.K., were in front of the office in the street where they were waiting for a taxi. Another four people - V.K., R.K.TS., T.E., and A.U., - went to the back door of the organization to lock it and then walk through the backyard out towards the street. When the four activists were in the yard, a man from a neighboring house approached them. He was verbally insulting them and once he approached, he engaged in physical violence. The attacker was trying to choke one of the activists for a few seconds. In this process, the attacker was cursing, using phrases such as "I will kill you, chickens", "Who gave you the rights" and so on. Suddenly the attacker ran into his house to bring an unidentified item. This situation was witnessed by M. K., who was on the other side of the gate and assisted V.K, R.K, T.E, A.U to open the gate of the backyard while the attacker was in his house. M.K. recorded the video depicting this situation. Soon, the attacker went out of the house towards his car to take something out, while continuing threatening the activists. He was referring to the thing he was planning to take out of the car in the context of the purpose of killing the activists. His family and neighbors tried to stop him. The members and activists of the community suspected that the attacker intended to take out and use a firearm from the car. Due to the fear, the activists hid behind cars.
It is noteworthy that the Ministry of Internal Affairs released a statement on September 29, the day after the incident, which evaluated the incident as a two-sided confrontation. The assessment of the violent incident by the MIA as two-sided confrontation, where the aggressor and the victims are seen as equal sides, misses the accurate evaluation of the legal and social aspects of the nature of such violence and creates room for the suspicion of the bias of the law enforcement authorities. Within the first days of the investigation, without proper examination and study, this statement substantially reduces trust in the ongoing investigation.
The trust towards police and investigation is also negatively affected by the insensitive behavior by the police and emergency doctors who were called on the scene. As witnesses recalled, the patrol officers talked aggressively to the victims, while the doctors were reluctant to report the injuries inflicted on the victims. Also, one of the employees of the "Equality Movement" was cursed by the same neighbors in front of the police. Moreover, the neighbours said that they would not let “faggots” in the precinct. The police did not react to these incidents. This approach is a manifestation of institutionalized homophobic practices by the police, where the police reiterate and discourage discriminatory attitudes revealed by the abuser by ignoring the interests of victims or by negative rhetoric.
The qualification of criminal activity is also problematic. The investigation is under the Article 126 of the Criminal Code of Georgia, which indicates violence. It is noteworthy that in addition to the act of violence, the composition of Article 151 of the Criminal Code of Georgia (the threat of life-threatening) can also be seen in the case. The circumstances of the case show that the threat from G.P.’s side caused a genuine fear among the victims and witnesses, but this aspect seems to be ignored by the investigation. In addition, the factual circumstances in the case, in particular, the content of humiliating and offensive appeals from G.P., specifically indicate a homophobic motivation under Article 53 of the Criminal Code, which constitutes an aggravating circumstance of criminal action. Identification of the motive at this stage has a critical importance for complete and proper investigation.
Until now, the aggressor has not been detained by the police. Equality Movement’s office is closed due to the risks of violence and potential escalation of the situation.
Human rights organizations positively assess the reforms launched within the Ministry of Internal Affairs and the Prosecutor's Office, but it is clear that the police system is still not ready to adequately respond to the hate-motivated crimes and its work is still fragmented and oriented on individual incidents. The statement made by the MIA on September 29 also emphasizes the problem of understanding of such crimes in the law enforcement institutions. Considering the social nature and specific context of discriminatory crimes, the law enforcement agencies’ and, more broadly, the government's preventive policies remain weak and unsystematic, which significantly complicates the possibility of preventing such violence.
Obviously, the existing ineffective policy and the problem of homophobic practices and culture in the law enforcement system strengthens the homo/bi/transphobic prejudices existing in the society, creating an environment of impunity and the exclusion of discriminated groups from political and social space.
Considering the above-mentioned assessments, we, the signatory organizations, call on
The Prosecutor's Office of Georgia and the Ministry of Internal Affairs to ensure:
The timely, independent and effective investigation on the attack on "Equality Movement" and its activists by individual persons, including granting victims the status of victims timely, use of appropriate qualifications of the criminal case, as well as revealing homophobic hate motive and reflecting it in the documents. In addition, taking into account the high public interest in the case, to inform the public about the progress and results of the investigation.
In addition, we call on law enforcement agencies to ensure timely and adequate use of preventive measures to enable the NGO "Equity Movement" to be able to carry out its activities in a safe environment.
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.