Information Meetings on Issues of Persons with Disabilities
In June-August 2022, representatives of the Public Defender of Georgia held 28 informational meetings in 22 municipalities, the purpose of which was to raise public awareness of the rights of persons with disabilities.
The meetings were attended by persons with disabilities, parents of children with disabilities and representatives of their organizations, as well as members of the councils working on the rights of persons with disabilities; officials of local self-government bodies, persons employed in the territorial services of state care and social service agencies, providers of services under the state programme of social rehabilitation and child care, employees of kindergartens, preschool institutions and educational resource centers, doctors of primary health care institutions - outpatient clinics (308 persons in total).
Employees of the Department of the Rights of Persons with Disabilities and regional divisions of the Public Defender’s Office introduced the mandate of the Public Defender and the challenges identified within the scope of their activities to the participants in the meetings. They also discussed issues stipulated by the UN Convention on the Rights of Persons with Disabilities and national legislation, including problems related to the realization of accessibility and inclusive education, identification of violence, implementation of programmes operating at the central/local level, peculiarities of the functioning of councils of persons with disabilities at the local level, importance of the involvement of persons with disabilities in the decision-making process and existing guarantees in this regard.
With the support of the European Union Delegation to Georgia and the United Nations Development Programme (UNDP), meetings were held in Kvareli, Akhmeta, Sagarejo, Kutaisi, Tskaltubo, Khoni, Lanchkhuti, Ozurgeti, Chokhatauri, Keda, Khulo, Shuakhevi, Batumi, Tetritskaro, Tsalka, Ambrolauri, Oni, Akhaltsikhe, Adigeni, Borjomi, Kazbegi and Gardabani municipalities.
Public Defender Appeals to Constitutional Court against Temporary Exceptional Construction Rules in Batumi
The Public Defender of Georgia has applied to the Constitutional Court and demanded to suspend the temporary exceptional rule approved for constructions planned in Batumi and to declare it unconstitutional. The mentioned temporary regulation allows construction companies to conduct the construction process without observing safety norms, basic construction requirements, as well as strength, sustainability, fire safety and evacuation rules.
On June 23, 2022, in the last week of the spring session, the Parliament made changes to the Spatial Planning, Architecture and Construction Code of Georgia in an accelerated manner. The changes make it possible for a wide range of constructions planned in Batumi not to follow the construction obligations that ensure the safety of buildings and structures, safe environment for health and accessibility for persons with disabilities.
The disputed regulation, until the approval of the general development plan for Batumi in 2027, in violation of the building safety norms and functional zone requirements, allows to exceed the maximum construction intensity coefficient (k-2) and maximum height of buildings by any volume, as well as to disregard all other regulations established by legislation, except for the regulations relating to the protection of cultural heritage.
Particularly alarming is the possibility of implementing construction projects without observing the strength, stability, fire safety and evacuation norms of buildings, which poses a great risk to people's lives and health and violates the positive obligation of the State under Article 10 of the Constitution to take appropriate measures to protect the right to life.
The disputed norms also suspend the requirement of ensuring accessibility for persons with disabilities. Thus, the State violates the obligation under paragraph 4 of Article 11 of the Constitution to provide an accessible environment for persons with disabilities for full, equal and independent participation in public life.
The disputed rule allows the implementation of the kind of construction projects in Batumi, which can have a serious negative impact on healthy living environment, bring irreparable consequences for correct urban planning and maintenance of recreational and public spaces.
It is necessary to plan and implement measures in Batumi in order to alleviate, and not on the contrary, aggravate the difficult situation of spatial arrangement, created as a result of active, chaotic and spontaneous constructions over the years, something indicated by the Public Defender for many years. The implementation of massive constructions without the general urban planning and the requirements established by the Code may cause irreparable damage to the realization of the right to environmental protection.
In order to prevent the expected irreparable damage, we also request with the constitutional lawsuit to suspend the operation of the disputed norms until the final decision is made by the court.
USAID and Public Defender’s Office Sign Intergovernmental Agreement
On June 28, 2022, a Government-to-Government Agreement was signed between the United States Agency for International Development (USAID) and the Public Defender’s Office.
The aim of the new partnership is to promote human rights in Georgia and to strengthen the activities of the Public Defender's Office, especially in the regions.
In his opening remarks, Peter Wiebler, Mission Director of USAID/Georgia, briefly reviewed the Government-to-Government Agreement, cooperation and importance of Georgia's democratic development.
The Ambassador of the United States of America spoke about progress in the direction of the protection of human rights in Georgia and underlined the activities of the Public Defender’s Office, great efforts that the staff of the Office make every day to establish equality and tolerance in the country; She also thanked representatives of the Office for their professionalism and dedication and said that the direct grant provided for by the USAID project was a sign of great confidence and support to the Public Defender's Office.
Public Defender Nino Lomjaria thanked the US Government and the American people for the vital assistance they have been providing to independent Georgia in areas of economic development, implementation of democratic reforms, strengthening of state institutions and development of the private sector for decades.
"Today we especially need such support, as the Government, the State and public institutions, each of us, must work tirelessly in these 6 months to get the status of an EU candidate country. These 6 months are a crucial period for our future.
Until the end of my term of office, we, the entire Office, will be working to use this trust and support to monitor and support protection of human rights, democracy and human rights reforms in the country. However, I would also like to point out that the achievement of results under this agreement depends not only on our efforts. I think the willingness of other state agencies is also necessary and a lot depends on coordination and joint efforts in such a historic period," said the Public Defender.
Giorgi Burjanadze, Deputy Public Defender, reviewed the details of the agreement between USAID and the Public Defender’s Office. According to the agreement, with the support of USAID, the Public Defender’s Office will work: 1) to strengthen internal capacities to conduct more effective monitoring of the protection of human rights in Georgia; 2) to strengthen internal management processes and institutional capacities; and 3) to improve strategic communication with the audience.
"The project will help us make our Office more efficient in tackling the challenges we face. Protection of human rights is a constant process that needs constant upgrading," said Giorgi Burjanadze.
Public Defender (Ombudsman) of Georgia
Findings and Recommendations of CPT Report on Ad Hoc Monitoring Carried out in Georgian Penitentiary Establishments
On July 11, 2022, the Public Defender of Georgia organized a public discussion of the findings and recommendations of the report on the ad hoc monitoring carried out by the European Committee for the Prevention of Torture (CPT) in the penitentiary establishments of Georgia.
The ad hoc visit was conditioned by specific circumstances, including and primarily by the report published by the Public Defender in 2020, which referred to informal governance in the penitentiary system and frequent cases of inter-prisoner violence.
In her opening remarks, the Public Defender of Georgia spoke about the importance of the recommendations of the European Committee for the Prevention of Torture and thanked the organization for its activities in Georgia. She also noted that the findings of the Committee's report were actually identical to the problems indicated in the Public Defender's reports. The findings include the prison criminal subculture reflected in the annual reports of the Public Defender, shortage of staff and their low qualifications, lack of rehabilitation services and the need to establish a fair and transparent parole mechanism.
The Public Defender emphasized that violence against prisoners by prison staff no longer has a systematic character in Georgia. However, unfortunately, the repressive methods of the management of prisoners by prison staff has been replaced by the repressive management of prisoners by a small group of prisoners privileged by the prison administrations (the so-called prison watchers).
According to Shalva Papuashvili, Speaker of the Parliament of Georgia, the reports and recommendations of the European Committee for the Prevention of Torture and the Public Defender of Georgia will help the penitentiary system improve its work; He expressed satisfaction with the fact that violence in prisons no longer has a systemic character and spoke about the supervision of the reforms in the penitentiary system by the Parliament.
Deputy Minister of Justice Tornike Cheishvili emphasized the challenges in the penitentiary system and the readiness to solve them; He reviewed the planned legislative changes and spoke about the importance of focusing on the recommendations of the European Committee for the Prevention of Torture and the Public Defender of Georgia.
The monitoring report was presented by Borys Wodz, head of the CPT division responsible for visits. According to him, it is difficult to control large prisons, especially given that more than a thousand prisoners are controlled by 20-30 employees in some of the institutions. He noted that Georgian prisons do not ensure reasonable differentiation of inmates based on their criminal record and the possibility of correction (recidivists and first-time offenders are placed together).
He also spoke about improper living conditions, saying that some prisoners repair their cells, buy furniture and equipment, but other cells are in a very bad condition. Nor is the quantitative distribution equal - different numbers of prisoners live in cells of the same size.
Borys Wodz emphasized the lack of opportunities for engagement in activities. The vast majority of prisoners have nothing to do nor the opportunity to get an education that would have helped them avoid criminal subculture. The inadequate level of treatment of persons with mental health problems is also clearly visible.
Deputy Public Defender Giorgi Burjanadze reviewed the activities of the National Preventive Mechanism of Georgia and noted that the main task of the Office was to find ways to solve problems. He spoke about the necessary changes, including the common issues referred to both by the European Committee for the Prevention of Torture and the Public Defender of Georgia, such as dividing the penitentiary system into relatively small institutions and creating a balanced infrastructure, reducing the number of prisoners, shortage of staff, their working conditions, operational capabilities and accountability.
He singled out the issue of rehabilitation, noting that prisoners do not see the importance of engaging in activities, since the most important thing for them - parole mechanism is flawed and constant unjustified decisions cause their just dissatisfaction. The Public Defender thinks that improving the parole mechanism and focusing more on individual characteristics when making decisions would be a simple and quick method of encouraging prisoners to engage in rehabilitation activities. At the same time, this change would also reduce the influence of criminal subculture.
Public Defender’s Letter to European Council President Charles Michel
On June 22, 2022, the Public Defender of Georgia sent an official letter to the President of the European Council, Charles Michel, requesting the President and the Heads of the EU Member States to consider the aspirations of the Georgian people towards the European family, their fight and efforts in this process, and to grant Georgia a candidate status, in order to prevent that Georgia is separated from the common space it has shared with Ukraine and Moldova and misses this important opportunity.
See the letter of the Public Defender of Georgia to Charles Michel, President of the European Council
Your Excellency, I hereby extend the assurances of my highest consideration personally to you, as well as the President of the European Commission, and the Heads of State/Government of the 27 EU Member States. The EU has always been a firm supporter of Georgia in its European aspirations and the results of this support have been felt by many of us for decades. Let me express our utmost gratitude for this assistance. I remain convinced that the EU-Georgian cooperation will keep strengthening, while the progress that comes with the European integration will benefit the citizens of both the EU and Georgia who share the common values and are united in forging more humane, peaceful, and prosperous future.
I am addressing you today as the Public Defender (Ombudsman) of Georgia, which is an independent constitutional body that supervises the protection of human rights and freedoms by public authorities in Georgia. The Ombudsman has over the decades been acting resolutely within its constitutional mandate and enjoys a wide support and trust from the members of the public as well as the international community at large.
During such critical times I feel obliged to address you ahead of the upcoming European Council meeting on 23 and 24 June 2022, which is expected to make a final decision about the membership applications from Ukraine, the Republic of Moldova and Georgia. As you are aware, on 17th of June 2022, the European Commission issued Opinions on Georgia’s, the Republic of Moldova’s and Ukraine’s application for the EU membership in which the Commission recommended granting European Perspective to all three states. Furthermore, while for Ukraine and the Republic of Moldova the Commission recommended granting a candidate status, with respect to Georgia the Commission has put forward a clear set of conditions to be met before the candidate status is granted. This risks separation of Georgia from the rest of the Associated Trio, even though it has been seen for many years as a frontrunner among the three and shares with them the threats coming from the Russian Federation.
This is an existential matter and moment for the whole nation, who have already made their conscious choice of European and Euro-Atlantic integration, embodied in the Constitution of Georgia. In Georgia the European integration is not only a foreign policy option, but a moral and cultural choice shared by a wider political spectrum and supported by the absolute majority of Georgians. Unprecedented number of demonstrators marching in Tbilisi on the 20th of June is a recent confirmation of this. The civil society led rally was held for the sole purpose of expressing unwavering support for Georgia’s EU integration, regardless of the political affiliation. Europe is a historic choice and aspiration of the Georgian people, for which all generations have made sacrifices. The idea of European perspective consolidates society and reduces polarization
Consequently, in the face of the most acute domestic and foreign policy challenges, it is crucial for us now that Georgia, together with Ukraine and the Republic of Moldova, is granted the EU candidate status with the precise conditions to be met within strict timelines. The European Commission has already outlined the most challenging issues to be addressed immediately by Georgia and let me confirm that the issues set out in the Opinion have been voiced by the civil society and majority of Georgians, as well as the Ombudsman for many years already.
It is for the reasons outlined above that I appeal to you today to consider granting the EU candidate status to Georgia. I firmly believe that the European integration is the only driving force for a progress in Georgia and the recommendations of the European Commission will act as a road map in this process. Let me assure you that the Public Defender will oversee this process and the Georgian people, civil society, and the media will be there to safeguard the fulfillment of these conditions.
Please accept, You Excellency, the assurances of my highest consideration!
The Public Defender (Ombudsman) of Georgia
Public Defender’s Statement on Nika Gvaramia Case
On May 11, 2022, the final hearing was held in connection with the case of Nika Gvaramia, former Director General of Rustavi 2 Broadcasting TV Company Ltd. We would like to remind the public that on November 4, 2019, the Public Defender filed an amicus curiae brief with Tbilisi City Court relating to one of the episodes of the mentioned case. The document is based on key issues identified as a result of studying the case materials and reviews correlation between corporate-legal and criminal liabilities.
In the amicus curiae brief, the Public Defender indicates that the decision made by the manager of the enterprise (changing the terms of the contract, determining the amount of income), which was agreed with the owner of the enterprise, is considered a crime in the given case. According to the indictment, the director could have brought more income to the company but he did not do so, which is a crime.
The amicus curiae brief reviews the practices of the courts of the USA, UK, continental European countries and Georgia, according to which, such an entrepreneurial decision may not lead even to corporate liability, not to mention criminal liability. The decision made by the director might be to make less profit, but it might serve the best interests of the corporation and aim to insure against short-term or long-term risks.
In this case, corporate-legal liability should be ruled out, as the decision made by the director was not: (1) an action that was not agreed with partners (use of dominant position), (2) aimed at personal enrichment through fraud, and (3) risk analysis reasonably indicates that the move was in the best interests of the corporation. Moreover, criminal liability should also be ruled out, as the director has not committed a criminal action in order to make a profit. Clearly, changing the terms of the contract for the basic needs of the corporation does not constitute a crime.
Thus, the managerial decision made during the management of the enterprise cannot be evaluated without taking into account the specifics of the legal status of the director. The Public Defender hopes that this document will help the court fairly assess the case circumstances and make the right decision, taking into account the international experience and practice regarding the elements of director's responsibilities.