Georgian politicians should fully respect the independent mandate of the Public Defender
Strasbourg, 23 November 2021 - "Public attacks by members of the Georgian Parliament against the Public Defender of Georgia, in connection with her and her Office’s work related to the imprisonment of the former President of Georgia, Mikheil Saakashvili, and his hunger strike, are unacceptable", said today Council of Europe Commissioner for Human Rights, Dunja Mijatović.
"I commend the Public Defender and her Office for their efforts to uphold the highest possible standards of protection of the human rights of all individuals over whom the Georgian authorities exercise jurisdiction.
This issue was high on my agenda during the meeting I had yesterday in Strasbourg with the Chairman of the Georgian Dream Party, Irakli Kobakhidze, and the Chair of the Committee on European Integration in the Georgian Parliament, Ms Maka Botchorishvili.
Under the Venice Principles, member states are obliged to effectively protect their Ombudsman institutions from any threats or action aiming at or resulting in any hurdles to their effective functioning. I call on the Georgian authorities to ensure that the Public Defender, her office and associated experts can operate in a climate that is conducive to them carrying out their mandate independently, effectively and safely, in line with the Recommendation (2021)1 of the Committee of Ministers of the Council of Europe on the development and strengthening of effective, pluralist and independent national human rights institutions.
It is crucially important first and foremost for all citizens of Georgia but also for Georgia’s international partners, including the Council of Europe, to be able to count on the expertise of an Ombudsman institution which is able to discharge its works independently and effectively, in full compliance with international standards, including the Paris Principles and the Venice Principles. I look forward to discussing this and other human rights issues during my forthcoming visit to Georgia in February next year."
Public Defender Expresses Support for Amnesty Bills
The Parliament of Georgia is considering an amnesty draft law submitted by Mikheil Sarjveladze. An alternative amnesty draft law will also be submitted to the Parliament by the Lelo Party. The Public Defender of Georgia welcomes these initiatives and hopes that the Parliament will consider and adopt the amnesty law in a short period of time, which will be in line with the basic principles of criminal justice and the positive obligations of the State towards victims and will apply to a lot of prisoners, who have been in the penitentiary system during the Covid pandemic.
As soon as the pandemic started, the Public Defender actively called on the State to use all available mechanisms to reduce the prison population. Although the rate of application of a number of mitigation measures increased in 2020 (e.g. the statistics on the mitigation of the unserved part of a sentence), the rate of releasing prisoners on parole decreased. The Public Defender hopes that the Parliament of Georgia will take into account the severity of additional restrictions of the rights of prisoners in the context of the pandemic and will compensate their situation with amnesty as much as possible.
The Public Defender of Georgia
Shalva Papuashvili elected Parliament Speaker
Georgian Parliament has elected Shalva Papuashvili, Chairman at Parliamentary Committee for Education and Science, as the new Speaker of Parliament on Wednesday, replacing Kakha Kuchava. Eighty-eight MPs backed his candidacy, while one MP voted against.
In his address, Papuashvili thanked the parliamentary majority for nominating for the post of Parliament Chairman. He said: “This is the greatest honor and responsibility before the public and our political team. Correspondingly, I will do my best to serve our country and people with dignity.”
“This year has been one of the most difficult years for our country since independence. The public simultaneously faced occupation, pandemic, economic challenges, and forced polarization. Despite these difficult challenges, under our team’s leadership: We kept the peace without retreating; we overcame several serious waves of the pandemic; we restored the country’s economy to pre-pandemic levels; we created a solid foundation for the political stability of the country by conducting the local self-government elections appropriately.
Our doctors, our policemen, our soldiers, and our teachers were the allies of the Georgian people and authorities in dealing with all these challenges. Many thanks to them and to all the people who stood by the state during this difficult time,” Papuashvili underscored.
He pledged to “stand guard over parliamentary sovereignty as the Parliament is the institution in which the power of the people – the source of governmental authority – is expressed to the greatest extent.”
“I exercise the will of the majority of the people of Georgia. However, as chairman of Parliament, I will be the guarantor of the involvement and participation of the opposition elected by the people. Moreover, despite the existing confrontation, we have a good experience of cooperating with the opposition in this Parliament, which is related to a successful electoral reform. Against this backdrop, the boycott of parliamentary activities by a part of the opposition is particularly disappointing, especially given that the Parliament of Georgia has taken a central place in Georgian politics as a result of the reform of the Constitution and the Rules of Procedure of the Parliament carried out by our team.
With the new democratic standards, the multi-party Parliament has robust levers to oversee the executive branch of government. The role of the parliamentary opposition has increased in an unprecedented manner. All this creates special conditions for businesslike parliamentary discussion. Integration into NATO and the European Union is our main foreign policy priority. As you are aware, our political team has an ambitious goal to apply for EU membership in 2024. Precisely for this reason, over the next three years, we are facing an agenda laden with legislative reforms, which should play a pivotal role in our country’s legislative and institutional rapprochement with the European Union and bring the country’s democratic development to a new level.
Our national objective is to unite the country and bring back our Abkhazian and Ossetian sisters and brothers. And this Parliament will be complete only when the elected representatives from Abkhazia and the Tskhinvali Region will sit in this hall together with us. This is the goal that must unite each and every one of us. We have a distinguished country with dignified people, a unique history, a rich culture, and a church that stands guard over spirituality. This country and these people deserve unity, prosperity, progress, and development. And that is precisely why it is our special duty to dedicate our thoughts and deeds to this goal. This will be my main objective as the chairman of Parliament,” he underscored.
Public Defender Responds to Threatening Statements Made by Georgian Dream Chairman
The Public Defender of Georgia would like to respond to the statement made by Irakli Kobakhidze, Chairman of the Georgian Dream political movement of citizens, in which he speaks about the possible responsibility of the Public Defender and doctors invited by her. This rhetoric goes beyond the legal framework, represents an attempt to attack and intimidate an independent constitutional body and its experts, and contradicts national and international human rights obligations.
The Organic Law on the Public Defender of Georgia gives the Public Defender the authority to invite experts and specialists to perform expert activities. This very authority was used by the Public Defender of Georgia on November 16, 2021 and a multidisciplinary group of experts was set up to evaluate Mikheil Saakashvili's medical services. Since then, the Chairman of the Georgian Dream political movement has been referring to "possible future responsibility" of the Public Defender and the experts invited by her without any legal arguments, for some abstract reasons. The above represents an attempt to put pressure on representatives/experts of the Public Defender of Georgia due to expression of their professional views, which is contrary to both the Constitution of Georgia and international principles.
We call on the United Nations, Council of Europe, OSCE/ODIHR, diplomatic missions accredited in Georgia and ombuds/NHRI associations to study the above issue and assess it within their mandates. Contrary to the Paris Principles (https://bit.ly/3HzC8NK), the Recommendation of the Committee of Ministers on national human rights institutions (https://bit.ly/3DuL1G1) and the Venice Principles (https://bit.ly/30ve39L), the Public Defender of Georgia encounters obstacles in the implementation of her mandate, while experts may refuse to cooperate with the Public Defender in the future.
Once again, we would like to thank the qualified and conscientious medical professionals who managed to make an assessment in a short time. We also call on the relevant professional associations to support these persons.
Public Defender’s Statement on International Human Rights Day
Every year, on December 9, the Public Defender of Georgia traditionally joins the celebration of the International Human Rights Day.
On December 9, 2021, the Tbilisi Human Rights House held an event on the occasion of the International Human Rights Day, where Public Defender Nino Lomjaria once again emphasized the special role of human rights defenders in promoting human rights and the rule of law in a democratic society.
The Public Defender spoke about the challenges facing human rights defenders, reviewed the Human Rights Manual developed by the Public Defender’s Office, which aims to refine the definition of a human rights defender and to outline the obligations of the State to protect and promote the activities of human rights defenders.
"Our monitoring has revealed a number of unfortunate trends of attacks on human rights defenders. Among them, statements made by high officials aimed at discrediting NGOs working on issues of crucial importance for democratic development still need to be emphasized. We have criticized a number of similar cases in the past, and we reiterate that, by international standards, officials are obliged to refrain from being engaged in negative campaigns against human rights defenders and their activities, to publicly acknowledge the need to protect them and to emphasize the importance of their activities even when critical towards the authorities", - said Nino Lomjaria.
The Public Defender called the physical attacks by the violent groups on human rights defenders and the offices of Tbilisi Pride and Shame Movement on July 5, the day of the March of Dignity, which could not be prevented by the law enforcers, especially alarming. She spoke about the criminal acts committed against media representatives and the need for their timely and effective investigation. The scale of the problem was made even clearer by the events of July 5, during which more than 40 representatives of the media were injured. Reports of alleged criminal acts against media representatives were also spread during both rounds of the self-government elections.
According to the Public Defender, the cynical attitude of politicians towards journalists, especially representatives of critical media, and the discrediting campaign against the background of the existing hostile environment, further exacerbate violence against them.
At the end of her speech, the Public Defender addressed the Prosecutor's Office and the Ministry of Internal Affairs of Georgia with a recommendation to ensure the timely investigation of crimes committed against representatives of the media, to identify those responsible and to take measures against them in accordance with law, as well as to inform the public about the ongoing investigation.
She also called on political officials to follow internationally recognized democratic standards and to refrain from being engaged in campaigns aimed at discrediting human rights defenders, including journalists, in order to facilitate their work as much as possible.
 Parliamentary Report of the Public Defender of Georgia 2019, p. 251, available at: <https://bit.ly/3CJscy1> [09.12.2021]; See also the statement of the Public Defender of Georgia of October 24, 2018 on the International obligations of the Government to support the activities of human rights defenders, available at: <https://bit.ly/3kBAySa> [09.12.2021]
 Information is available on the website: <https://bit.ly/3yajvM8>, <https://bit.ly/3EwXSHX>, <https://bit.ly/3lCyQzZ>, <https://netgazeti.ge/news / 555767 />, <https://bit.ly/3oy0qQw> [09.12.2021].
Public Defender Demands Mikheil Saakashvili’s Involvement in His Trial
Restricting the 3rd President of Georgia, Mikheil Saakashvili, from participating in his own trial grossly violates the right to a fair trial enshrined in the Constitution of Georgia and the European Convention.
Mikheil Saakashvili has not been allowed to appear before court three times since his arrest. In all three cases, the Special Penitentiary Service refused to bring Mikheil Saakashvili to court and the court endorsed the refusal without critical deliberation.
The Penitentiary Service named (1) the refusal of a substantial part of treatment by Mikheil Saakashvili and (2) the investigation being carried out by the State Security Service as reasons for refusing to bring the defendant to court.
First of all, it is noteworthy that an abstract reference to the fact that the transfer of the prisoner due to his hunger strike would be a risk to his health cannot be considered as a substantiated argument. This will virtually deprive all prisoners that are on hunger strike of the opportunity to participate in their own judicial proceedings and exercise their right to a fair trial. Moreover, legislation reviews the protocol of action in a similar case and requires that, in case of health risks, the accused be accompanied by a medical worker during transfer.
As for the refusal to transfer Mikheil Saakashvili to court for the so-called security reasons, it is noteworthy that the procedural law does not provide for such an opportunity. The subordinate normative act explicitly and unequivocally states that an accused/convicted person shall be escorted to court at the request of the relevant authorized person of common courts, which does not require additional decision-making.
In addition, legislation does not recognize the possibility for the Penitentiary Service to refuse to transfer an accused person to court due to a pending investigation into any case. It should be noted that the maximum statute of limitations for the investigation carried out by the State Security Service is ten years. This allows the Penitentiary Service to illegally, arbitrarily and permanently refer to the investigation ongoing in the State Security Service, which would be a de facto annulment of the defendant’s right of defence.
In addition, the European Court of Human Rights considers that security issues must be clearly defined and meet the criteria of necessity. Judges should consider all possible alternatives to ensure safety and security and give preferencetoa less strict measureover a stricter one when it can achieve the same purpose. Guarantees of a fair trial and public hearing are considered violated when the domestic court fails to explain why the state security system would not be able to deal with the security risks.
Thus, the Public Defender believes that at this moment there is no proper argument on the basis of which Mikheil Saakashvili should be restricted from appearing before court in person. The position presented by the Special Penitentiary Service cannot outweigh the right to a fair trial guaranteed by the Constitution of Georgia and the European Convention on Human Rights, which among other guarantees includes the right of the accused to personally and directly participate in oral, public hearings, with full observance of the principles of equality of arms, adversarial process and examination of evidence.
The Public Defender calls on the Special Penitentiary Service to properly and conscientiously perform its rights and duties and ensure that Mikheil Saakashvili is brought before court, by providing appropriate guarantees for his health and safety. The Public Defender also calls on the court to give the accused the opportunity to state his position, participate in the examination of evidence and protect his rights within the framework of all three ongoing cases.
 Order No. 149 of the Minister of Corrections of Georgia on the Approval of the Rules for Escorting/Transferring Defendants/Convicts, 19.10.2015, Annex No. 1, Article 37
 Order No. 149 of the Minister of Corrections of Georgia on the Approval of the Rules for Escorting/Transferring Defendants/Convicts, 19.10.2015, Annex No. 1, Article 4, suparagraph 4.
 Part 1 of Article 315, part 3 of Article 12, subparagraph "c" of part 1 of Article 71 of the Criminal Code of Georgia and Article 103 of the Criminal Procedure Code of Georgia.
 Riepan v. Austria, 35115/97, paragraphs 28-29; Krestovsky v. Russia, 14040/03, paragraph. 29.
 Krestovsky, 29-30; Luchaninova v. Ukraine, 16347/02, 56-57.