On 19th May snap elections are going to be held in several electoral districts. During the last few weeks political activities in Zugdidi electoral district reached the highest threshold of tension. We consider that all the parties involved in electoral processes must abstain from escalating the situation in all the possible ways. It is really important to give all the candidates the opportunity to carry out their electoral campaign in a peaceful environment and the voters as well mustn’t be precluded from the free expression of their will.

A few days ago United National Movement (UNM) Mayoral candidate and her accompanying persons were physically insulted. At this moment police have arrested one person. Moreover, three days ago a video recording in which Gia Danelia, a member of Zugdidi City Assembly, is supposed to be involved. The report recounts how Dandelia speaks about the instruction provided for pressure, bribery and abduction of voters. Yet it is unknown when the recording was made.

Except for the attacks against the candidate of the UNM and above-mentioned recording, during the last few days situation has escalated on several occasions in Zugdidi City Assembly and District Election Commission, where the clashes broke out between UNM supporters and police.

We are informed that on the Election Day the candidates and their political parties are going to mobilize several thousand activists in order to involve them in the electoral process, that’s why there is a risk of physical confrontation between the parties.

Hence, we call on all the political parties to abstain from aggression and confrontation by all means available, in order not to damage the electoral process. Moreover, we call on law enforcement authorities and investigatory bodies to use all legal tools in order to maintain public order and effectively investigate possible violations of law.

Transparency International Georgia (TIG)

Georgian Democracy Initiative (GDI)

Georgia’s Reforms Associates (GRASS)

Human Rights Education and Monitoring Center (EMC)

Institute for Democracy and Safe Development (IDSD)

International Society for Fair Elections and Democracy (ISFED)

Article 42 of the Constitution

Open Society Georgia Foundation (OSGF)

Partnership for Human Rights (PHR)

Institute for Development of Freedom of Information (IDFI)

Center ,,Empathy’’

Human Rights Center

 


This statement concerns the Studio Monitor’s investigative report and information circulated by different media outlets (https://bit.ly/2H3D9Ai), which reveal that the requirements of the Law of Georgia on Common Courts were violated in the process of selecting Zaza Kharebava, a non-judge member of the High Council of Justice, by the Parliament of Georgia. Under the law, a violation of this requirement is the basis for terminating the authority of a member of the Council.

This case attracted the Coalition’s interest. We studied documentation supporting Zaza Kharebava’s selection available on the Parliament’s website and came to the conclusion that he was confirmed in violation of the law. Correspondingly, we are calling on the Parliament to consider this issue and terminate Zaza Kharebava’s authority under Point 4, Article 212 of the Parliament Rules of Procedure.

Under Point 3, Article 219 of the Parliament Rules of Procedure, effective at the moment of Zaza Kharebava’s nomination (June 2, 2017), “a non-entrepreneurial (noncommercial) legal entity is eligible to nominate a candidate for the membership of the High Council of Justice, if for 2 years prior to the announcement of the competition this organization has been providing representation in court lawsuits.” A similar requirement is envisioned in Point 5, Article 47 of the Law of Georgia on Common Courts.

These norms clearly require a nongovernmental organization nominating candidates to be engaged in court representation, implying legal aid services for physical or legal persons (an authority to represent clients in court disputes). 

Zaza Kharebava was nominated by Nonentrepreneurial Noncommercial Legal Entity (NNLE), Charity Humanitarian Center Apkhazeti. The nominating organization submitted certain documentation to prove that court representation has been one of the spheres of its work for 2 years prior to the announcement of the competition. All of these documents refer to cases where NNLE Charity Humanitarian Center Apkhazeti was one of the parties, instead of representing someone else’s interests. At the moment of submission of documents, the organization nominating Zaza Kharebava did not meet the requirement established in the law. More specifically, no evidence was presented to confirm that one of the organization’s spheres of activities is court representation. Thus, this organization was not eligible to nominate a candidate for membership of the High Council of Justice, while confirmation of an unqualified organization’s candidate by the Parliament clearly violated the Parliament Rules of Procedure and the Law of Georgia on Common Courts.

Point 1, sub-point “K” of Article 48 of the Law on Common Courts establishes that one of the grounds for terminating a HCOJ member’s authority is “selection or appointment of this candidate by an ineligible body or in violation of the rules established in this law.”

In view of these circumstances, the process of selection for Zaza Kharebava violated Point 5, Article 47 of the Law of Georgia on Common Courts, as well as Point 3, Article 219 of the Parliament Rules of Procedure (effective at the moment of his nomination). Thus we are addressing you to consider this case and terminate the office of Zaza Kharebava, a non-judge member of the Council, based on Point 4, Article 212 of the Rules of Procedure.

On May 10, 2019, under the decision of the High Council of Justice the process to select the candidates to be nominated to the Parliament of Georgia for the position of Judge of the Supreme Court of Georgia has begun.

A competent citizen of Georgia of 30 years of age who has a higher legal education with at least a master’s or equal academic degree/higher education diploma, at least five years of working experience in the specialty, has the command of the official language, may be appointed (elected) as a judge (Organic Law of the Common Courts, Article 34).

Although there is a fair share of nihilism in the society and professional circles regarding the candidate selection process of the Supreme Court judge position in the High Council of Justice as well as in the parliament; However, it is important to highlight the role and importance of the Supreme Court of Georgia in Georgian justice;

The judges of the Supreme Court should be selected by high participation of candidates, through a transparent process, so that this process will not remain in the hands of the parties concerned.
Considering this circumstance, the main purpose and activity of which is the establishment of human rights and fair principles is the day when  the current process should not be held without active participation of the professional circles.

On the contrary, in order to improve the position of the Supreme Court judges to be elected to the standard and to minimize the potential of misuse of this process of to the legislation, it is necessary to consider as many conscientious and qualified candidates for to fill the vacancy as possible.

Therefore, we call on to all practitioners operating in Georgia, lawyer, attorneys, prosecutors, academic representatives, who meet the criteria established by the law of the Supreme Court of Georgia to participate in the election of Supreme Court judge contest.

Article 42 of the Constitution, under the law of Georgia will monitor the selection process, in the High Council of Justice, as well as in Parliament.

The European Court of Human Rights created a precedent of issuing an advisory opinion

The European Court of Human Rights created a precedent of issuing an advisory opinion

The European Court of Human Rights used its the authority to issue an advisory opinion for the first time throughout its practice under Article 16 of the Convention for the Protection of Human Rights and Fundamental Freedoms requested by the French Court of Cassation . [1]

The advisory opinion is important both in terms of content and as an instrument by which the European Court of Human Rights created the first precedent of its enhanced authority.

In case of childbearing through surrogacy, when the child is born via surrogate mother abroad:

• Human Rights and Fundamental Freedoms of the European Convention Article 8 of protection of privacy rights, the state will have to take into account the possibility that the relationship between the child and the non-biological mother may be recognized as a legal relationship between parent and child, when the birth certificate issued abroad recognizes the non-biological mother as "legal parent."

• Such a possibility does not necessarily mean the obligation to register in the State and in the Register of Civil Acts. The alternative path may also be a child adoption mechanism by the non-biological mother, if the internal legislation ensures quick and efficient implementation of the procedure, in accordance with the best interest of the child. [2]

According to the advisory opinion, the European Court of Human Rights has enlarged and specified the scope of the right protected by Article 8, taking into consideration the new reality created by the possibility of childbirth through surrogacy. The Eurasian Court's explanations clearly demonstrate the living nature of the mechanism of social life, and therefore the fundamental role of courts in the transformation process.

The second fundamental aspect is related to the conceptual conclusion as an instrument. Under Article 16 of the Convention, which was adopted on October 2, 2013 and entered into force on 1 August 2018, the European Court of Human Rights was granted the right to issue the advisory opinions on the basis of the application of the national courts. Article 1 of the Protocol is as follows:

 “Highest courts and tribunals of a High Contracting Party, as specified in accordance with Article 10, may request the Court to give advisory opinions on questions of principle relating to the interpretation or application of the rights and freedoms defined in the Convention or the protocols thereto.” [4]

Each High Contracting Party to the Convention shall, at the time of signature or when depositing its instrument of ratification, acceptance or approval, indicate the courts or tribunals that it designates as highest courts. [5] The requesting court or tribunal may seek an advisory opinion only in the context of a case pending before it. The requesting court or tribunal shall give reasons for its request and shall provide the relevant legal and factual background of the pending case. [6]

If the Grand Chamber issues a consultation conclusion, it should be substantiated, however, the conclusion does not have a mandatory nature and does not involve the decision of the national courts to decide on the case conclusion. [7]

The 16th protocol of the convention was ratified by Georgia in 2015. [8]

The courts with the right to request an advisory conclusion were named: the Supreme Court of Georgia and the Constitutional Court of Georgia. [9]

The relevant amendments were made in the Organic Law of Georgia on the Procedural Legislation and the Constitutional Court of Georgia. The courts, seeking an advisory opinion apply to the European Court of Human Rights on their own initiative. The right of a Party to request the use of this mechanism is not envisaged by the applicable legislation, court informs the parties about applying to the European Court of Human Rights and for its advisory conclusion.

According to the preamble of Protocol No.16: “Considering that the extension of the Court’s competence to give advisory opinions will further enhance the interaction between the Court and national authorities and thereby reinforce implementation of the Convention, in accordance with the principle of subsidiarity;” [10]

This mechanism can be considered as a preventive instrument designed to reduce the appeal to the European Court of Human Rights at the earliest stage of the proceedings, through the involvement of a recommendatory nature by the European Court.

The negative side of the mechanism is the expansion of the powers of the European Court of Human Rights and its actual interference in the process of domestic proceedings, but the weakness of this argument is in the non-binding opinion. [11]

The effective functioning of the mechanism depends largely on the readiness of states (highest courts) to use this mechanism and to avoid further violations of the Convention.

 


[1] ADVISORY OPINION concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother Requested by the French Court of Cassation

[2] Ibid.

[3] Protocol No. 16 to the Convention on the Protection of Human Rights and Fundamental Freedoms

[4] Protocol No.16 of the Convention for the Protection of Human Rights and Fundamental Freedoms

[5] Ibid. Article 10

[6] Ibid. Article 1

[7] Ibid. Article 4

[8] Resolution of the Parliament of Georgia on Ratification of the Protocol No.16 of the Convention on Human Rights and Fundamental Freedoms

[9] Georgia - Reservations and Declarations for Treaty No.214 - Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms

[10] Preamble, Protocol No.16 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

[11] Protocol No. 16 of the European Convention on Human Rights 13/07/2015, the need for elaboration of the protocol, the official goals and procedures.


The Coalition for an Independent and Transparent Judiciary reacts to the legislative changes on the selection of Supreme Court justices by presenting a concluding opinion on the content and process of adoption of the amendments.

The anticipated significant increase in the number of Supreme Court justices raises the importance of the process of their selection. Decisions on the composition of the Supreme Court may have a critical impact on the Georgian justice system for several decades in the current context of public mistrust, systemic crisis and the presence of a group of influential judges. The Coalition has been raising these issues in the process of development of legislative amendments.

The ruling party did not demonstrate a strong will to create a legislative framework that would establish practical and effective barriers for the group of influential judges. Throughout the process of developing legislative changes, the Parliament did not express readiness to consider deserved, rational and justified criticisms or suggestions made by local stakeholders. The draft amendments developed by the Parliamentary majority were revised only after receiving highly critical assessments from international organizations.

Despite certain changes made to the initial draft, the Coalition finds amendments to the Law on Common Courts of Georgiaconcerning nomination and selection of Supreme Court justices, unsatisfactory. We believe that the adopted law allows the influential group of judges in the High Council of Justice (HCOJ) to adopt convenient decisions regarding nominations. In light of the Council’s shaken reputation and the level of mistrust in the processes that took place in December, the adopted amendments may not convince qualified individuals outside the court system that if they decide to apply, the selection process will be fair and objective.

This critical assessment of the draft law by reputable international organizations (Venice Commission and OSCE ODIHR) largely coincides with the Coalition’s position. The Embassy of the United States, the EU Delegation and the Council of Europe Office in Georgia submitted a joint position paper regarding these amendments. The authors of the draft law considered only part of these suggestions. However, several key recommendations were omitted:

  • Candidate nomination based on an open ballot and justified decisions. Decisions reached through secret ballot exclude the possibility of justified decisions and contain risks of power abuse by members of the HCOJ. The first round of the secret vote is particularly troublesome, because at this stage the candidates are selected based on completed application forms and supporting documentation only.
  • Avoiding conflicts of interest. The Chair of the HCOJ or an Interim Chair, in cases, when he/she is an applicant, still can:
  • facilitate HCOJ meetings and manage the process;
  • have access to data on competitors, including information related to their health conditions.
  • Adequate involvement of non-judge members in decision-making concerning nomination of candidates. Candidates are nominated by 2/3 of the full composition of the HCOJ. Considering the number of judge members, the votes of only two non-judge members are sufficient for the nomination of candidates. This is not enough for adequate engagement of non-judge members in the decision-making process.
  • Engagement of civil society in the work of the Legal Committee Working Group. The Legal Committee creates a working group to establish compliance of nominees with the requirements for the office of a Supreme Court justice set in law. The composition of this working group is not defined at the statutory level. The Coalition believes that representatives of civil society should be included in the working group.

 

The selection of candidates equipped with qualifications, experience, and personal qualities corresponding to the high status of Supreme Court justices requires the following:

  • The High Council of Justice shall carry out the selection competition based on the principles of objectivity, transparency, and openness;
  • All members of the Parliament, despite their political affiliation, should reflect about their responsibility in developing an independent, transparent, and accountable justice system, and support only qualified candidates;
  • At the beginning of the process, the Parliamentary majority should make a statement that Supreme Court justices will be appointed based on a political consensus;

The current Parliament should not fill in more than 50% of vacancies in the Supreme Court.


Since 2004, Georgian judiciary could overcome systemic corruption, however, found itself under strict control of executive power. A small group of persons, the clan, with high administrative positions ensured the obedience of judges towards the political party in power and ensuring execution of the demands of the executive.

The new government, which came to power in 2012 tried to dissolve the defective system of governance in the judiciary but could not do it and finally entered into cooperation with the clan. As the result of this cooperation, the clan obtained additional leverages. From 2017, the clan was provided with the opportunity to appoint Supreme Court Justices for life.

See the article of Chair of Article 42 of the Constitution - Kakha Tsikarishvili, which describes clan-based governance in the judiciary since 2007.

Clan based governance in Georgian Judiciary since 2007



The Human Rights House Tbilisi and its member organizations echo the ongoing criminal proceedings into the murder case of the human rights defender Vitali Safarov and call on the Government of Georgia to ensure comprehensive and effective investigation. It is particularly alarming that the murder was committed based on hate motives by the members of the ultranationalist, neo-Nazi group. 

On September 30, 2018, human rights defender Vitali Safarov, 25, was killed in Tbilisi. As witness statements demonstrate, the conflict started in a café in the downtown Tbilisi and then continued in the street – the reason of the violence against Vitali Safarov from the side of the members of the neo-Nazi/ultranationalist groups was his human rights activism, ethnicity and liberalism and the fact that he was not speaking Georgian with his foreign guests of the café. According to the expert statement, Vitali Safarov had 9 wounds, 4 of them were incompatible with life. Currently, two persons are defendants – they are the members of the so-called neo-Nazi group.

 

Vitali Safarov worked for the Center for Participation and Development (CPD); he was also the team member of the project Tbilisi Shelter City. He was actively engaged in organizing youth camps and different projects on tolerance and against racism, xenophobia and discrimination. It is alarming that the human rights defender became a victim of the representatives of the group, which instill racism and xenophobia in the society.

 

In the past years, violent actions and demonstrations of various ultra-nationalist and neo-Nazi/fascist groups have become one of the acute challenges for the State of Georgia. They are aggressive and intolerant towards liberal people. Recently, many hate-motivated incidents happened against migrants or other groups on racial and ethnic grounds[1]. The murder of Vitali Safarov is particularly noteworthy as it refers to the hate-motivated murder of an individual based on racial intolerance. At the same time, the interviews with the witnesses of Vitali Safarov’s murder reveal that during the past two years “Emergency and Operative Response Centre – 112“and criminal police had received multiple calls about the violent acts committed by the defendants. The witnesses noted that police never reacted to their phone calls. It once again demonstrated the threat of increasing number of hate-motivated crimes in the Georgian society and the state institutions are obliged to ensure the elaboration of effective preventive measures to combat them.

As the threat of hate-motivated crimes has significantly increased recently, the effective litigation of those cases is still a key challenge. Regardless positive legislative amendments, in particular – the implementation of the Article 531 in the Criminal Code of Georgia – definition of the aggravating circumstance for the crime committed on discriminatory grounds or intolerance, in practice, it is still a problem for the representatives of the investigative bodies and prosecutor’s office to define the real motive of the crimes in such cases.

 

It can be proved by the low statistics of the use of the norm at the stage of investigation and also in the later stage, when the court examines the case[2]. Consequently, this norm is not properly implemented in practice that indicates the lack of qualification of investigative officers and of the state’s will to fulfill its international obligations. Among them, the State’s obligation to “undertake all appropriate means” and to “implement the policy for the elimination of all forms of racial discrimination.”[3]

 

It is worth to mention that the Prosecutor’s office determined the hate motive in the murder case of Vitali Safarov only after the Human Rights Center, the organization which defends interests of Vitali Safarov’s family, recommended several times that the investigation changes the qualification of the criminal case and determines the hate motive in it together with the group murder. We positively assess that the Georgian Prosecutor’s office fulfilled the recommendations, namely, the investigation added aggravating circumstances to the charge: intentional murder due to racial, religious, national or ethnic intolerance and changed the qualification of the crime into group murder.

The under-signatory organizations believe that effective litigation into Vitali Safarov’s murder case is particularly important because it refers to the murder committed with the hate motive. Similar crimes create threat and scare those groups or individuals who share the human rights values, are tolerant, have liberal approaches and raise voice in the defense of others’ rights and against discrimination. 

Considering the abovementioned, the Human Rights House Tbilisi and its member organizations call on the Government of Georgia: 

  • To ensure effective and comprehensive criminal proceedings into Vitali Safarov’s murder case;
  • To study the activities of the neo-Nazi and similar radical groups in Georgia, to take adequate measures and preventive mechanisms to eradicate violent actions and threats of violence from the side of various radical groups;
  • To promptly react to hate-motivated crimes and ensure effective proceedings into the case;
  • To ensure improvement of legislative regulations with regard to hate-motivated crimes and their respective implementation, among them to train the representatives of law enforcement bodies and judges.

 

Human Rights House Tbilisi on behalf of member organizations:

  • Human Rights Center
  • Article 42 of the Constitution
  • Media Institute
  • Sapari
  • Georgian Center for the Psycho-Social and Medical Rehabilitation of Torture Victims

[1] https://osgf.ge/files/2017/Publications/Diskriminacia_ENG_WEB.pdf

[2]See report „RACIAL INTOLERANCE AND XENOPHOBIA RIGHTS OF FOREIGN NATIONALS IN GEORGIA”, p. 24.

Link:http://tdi.ge/sites/default/files/tdi_angarishi_rasobrivi_diskriminacia_ucxoelebis_uplebebi.pdf?fbclid=IwAR0npusJH7WQozNHLeCdC14m3C7jRnTeuFNA6fJU14n0eNv35kBNM8LC13I

[3] International Convention on the Elimination of All Forms of Racial Discrimination, Article 2(1).


Article 42 calls upon Parliament of Georgia to fully acknowledge and reflect in the draft legislative package the Venice Commission opinion concerning the appointment of Supreme Court Judges.

At the same time, it should be noted that the problem existing in the judiciary is much larger than the issue of election of Supreme Court judges. This is also clearly visible in Opinion of the Venice Commission. The clan based governance existing in Georgian judiciary and the low trust towards courts endangers the legal security and the development of the country in the long run. Thus, we call upon Parliament of Georgia to adopt a resolution evaluating clan based governance existing in Georgian judiciary and its negative consequences and take all necessary legislative measures to overcome this problem


Organization “Article 42 of the Constitution” responds to death of two construction workers on March 31, at #31 Chavchavadze Ave. and the peaceful protest rally held by the activists and assumes, that the Government failed to realize fundamental rights of the gathered people.

Workers’ death at the place of employment has been beyond the attention of the state for years;

The lives and health of people at hazardous work is unprotected and risky, and the number of dead and injured workers is alarming.[1]

Effective investigation of death cases and health damage in place of employment still remains a problem, together with granting appropriate qualification to these cases and impunity of those responsible.[2] The State’s labor policy leaves socially vulnerable people even more unprotected, for whom physical work is the only source of income.

Yesterday's manifestation, held to criticize the state's labor policy, where police had to ensure the peaceful conduct of the protest, ended by detention of 6 persons.

Activists, who tried to express their solidarity to the dead by blocking Chavchavadze Avenue, were arrested using disproportionate force for violation of public order and disobedience to the lawful demand of the police.



[1] According to the Report of the Public Defender’s Office of Georgia, 59 people have died at the workplace and 199 received occupational injuries in 2018. The report is available at: http://www.ombudsman.ge/res/docs/2019033019563052300.pdf?fbclid=IwAR1VRwsh2AXgdoGLwlnQaPBpXxzX399LL1MrCZDYCqei-l1XuLO1OlgrKhU

[2] The city and district courts have only discussed 35 cases regarding occupational accidents and made decision of imprisonment as a real punishment only in 2 cases. Source: Parliamentary Report of the Public Defender, 2018.

 


In today’s judgement, as of March 26, in the collective application of individual cases “Berdzenishvili and others v. Georgia” European Court of Human Rights held Russian Federation to pay compensation to the citizens of Georgia.

The case concerns violation of the European Convention of Human Rights against Georgian citizens subjected to an administrative practice of arrest, detention and expulsion in the period from October 2006 to January 2007.

NGO “Article 42 of the Constitution” represented the rights of 7 victims expelled by the Russian Federation. Under the decision of December 20, 2016, the European Court has consolidated these applications into one group “Berdzenishvili and others v. Russia” (no. 14594/07, 14597/07, 14976/07, 14978/07,15221/07, 16369/07 and 16706/07) and established violation of several relevant articles of the Convention, however it has left open the issue of compensation until settlement of an inter-state dispute.

Under the ruling of Grand Chamber of the European Court of Human Rights (ECHR) of January, 2019 over the inter-state case “Georgia v. Russia” Russian Federation has to pay 10 million Euros in compensation for nonpecuniary damages related to mass deportation of Georgians from Russia (see the organization’s announcement here).  

After making a decision on compensation for an inter-state dispute, the European Court also discussed and made a judgement on just satisfaction of the applicants on individual cases.

The amount of compensation was determined by the individual cases according to the nature and severity of the violation, however, the European Court shared the principle of determining the amount of compensation set by the Grand Chamber in an inter-state dispute:

·      Applicants, who had suffered a violation of their rights under Article 4 of Protocol No. 4 alone (prohibition of collective expulsion of foreign citizens), should receive EUR 2,000 each. (2 applicants represented by the Organization).

·     Applicants, who had suffered a violation of rights under paragraph 1, Article 5 (right to liberty and security / right to have lawfulness of detention decided speedily by a court) and Article 3 of the Convention (prohibition of inhuman and degrading treatment) will be awarded EUR 10 000 to EUR 15 000 according to the period of their detention. (5 applicants represented by the Organization).

Under to the same decision, the European Court did not establish a violation of the principle of prohibition of collective expulsion of foreigners against applicants who left the Russian Federation by their own will and there was no official decision of the Russian court or other state authority on their expulsion.

 Also, the Court did not find a violation of procedural guarantees related to expulsion of foreigners (Article 1 of Protocol No. 7) against applicants who were illegally residing at the territory of Russian Federation.

The decision of the European Court shall come into force in three months, if the parties do not require the case to be transferred to the Grand Chamber. Russian Federation will have to pay the above compensations within three months from the date when the decision enters into force.

In turn, the Committee of Ministers of the Council of Europe monitors fulfillment of this obligation by the Russian Federation.



The resaerch was prepared by Aticle 42 ot the constitution, which was sapported by Fridrich Ebert's fond. 

Labor of persons with disabilities from employer's standpoint