Public Defender’s Letter to European Council President Charles Michel

Published in Politics
Thursday, 23 June 2022 10:53

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 MichelPresident 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!

Yours sincerely,

Nino Lomjaria

The Public Defender (Ombudsman) of Georgia

Public Defender’s Statement on Nika Gvaramia Case

Published in Society
Tuesday, 17 May 2022 11:11

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.

Report on Impact of Covid 19 on Health and Other Rights of Prisoners and Staff of Penitentiary System

Published in Society
Friday, 13 May 2022 16:51

On May 11, 2022, the Public Defender of Georgia and Prevention for Progress, a non-governmental organization, presented a joint report “Impact of Covid 19 on the Health and Other Rights of Prisoners and Staff of the Penitentiary System." The study assesses the impact of special measures taken by the Special Penitentiary Service from March 2020 through 2021 on the rights situation of prisoners.

According to the study, the measures taken to stop the spread of the virus had a positive impact on the prevention of Covid 19. The above was also contributed by the allocation of quarantine spaces and isolation of suspicious patients. The importance of mass and regular PCR and rapid antigen testing of the staff and inmates played a key role in the early detection of the disease. According to the interviews with the medical personnel and prisoners, the vaccination process was proceeding at a good pace in the penitentiaries. In addition, compared to a similar study conducted in 2017, the percentage of respondents, who think that food quantity is inadequate, decreased in 2021.

The results of the study show that restrictions were overused during the pandemic period and no appropriate efforts were made to find possible alternative solutions. No appropriate steps were taken by the state institution to reduce the number of prisoners. During the evaluation process, special attention was paid to the medical issues. The study showed that the number of medical personnel decreased, which led to delays in the provision of medical care. Due to delays and reductions in outpatient services, the number of transfers of prisoners to civil sector hospitals increased, as well as the number of cases of emergency transfers to medical facilities. The reduction in the provision of outpatient psychiatric care also had a negative impact on the mental health of inmates, increasing the need for treatment in psychiatric facilities.

The pandemic and the measures taken negatively affected prisoners' contact with the outside world. The study made it clear that the free phone minutes added as compensation during the period of restrictions were not sufficient to counterbalance the restrictions. Prisoners were restricted from contacting lawyers, psychologists and social workers, and they were unable to receive the relevant services. The number of rehabilitation programmes also significantly reduced. The study also showed that the living and working conditions of the employees, who were not allowed to leave the facilities, were difficult.

Public attitudes toward LGBTQI people in Georgia are changing, yet the protection and realization of their rights remain a challenge

Published in Society
Friday, 06 May 2022 16:24

The United Nations and the Government of Sweden unveil research on human rights, legal protection and public attitudes toward the LGBTQI community in Georgia

TBILISI. 6 May 2022 – The LGBTQI people remain one of the least protected and most marginalized social groups in Georgia. They face discrimination and violence, while the protection and realization of their rights remain a challenge. Yet, recent research reveals that negative public attitudes toward the LGBTQI community have been decreasing in the last five years.

A series of studies were conducted by Georgia’s Public Defender’s Office and the non-governmental organization ‘Women’s Initiatives Support Group’ (WISG) with assistance from the Government of Sweden and the United Nations through its three agencies – UN Women, the United Nations Development Programme (UNDP) and the United Nations Population Fund (UNFPA).

The research reviews international standards in protecting LGBTQI rights and Georgia’s commitments in this area. It analyses the legal environment and widespread practices and examines public attitudes toward LGBTQI people in Georgia. The research also includes recommendations for specific state agencies.

The research findings point out positive changes in public attitudes in the last five years. Since 2016, the number of respondents who think that the LGBTQI community is interested in propaganda, and not in achieving equality, has decreased by 20.6 percent (55.9 percent in 2021 compared to almost 78 percent in 2016). The number of people with an extremely negative attitude toward the LGBTQI community and its human rights defenders dropped by around 20 percent and now hovers around 56 percent.

However, the research also captures the negative perception of the LGBTQI community in Georgia’s society. 48.2 percent of the respondents believe that LGBTQI people are fighting for privileges. 39.5 percent are convinced that the rights of the LGBTQI community are fully protected. At the same time, 38.6 percent note inadequate state response to the acts of violence and discrimination faced by the LGBTQI people.

The research was conducted under the UN Joint Programme for Gender Equality, a Sweden-funded initiative implemented by UN Women, UNDP and UNFPA. Its reports are available on the UNDP website

Public Defender Meets with Council of Europe Commissioner for Human Rights in Strasbourg

Published in Society
Wednesday, 26 January 2022 13:15

On 25 January 2022, during her official visit to Strasbourg, Nino Lomjaria, Public Defender of Georgia, met with Dunja Mijatović, Council of Europe Commissioner for Human Rights.

The Public Defender briefed the Human Rights Commissioner on the human rights situation in Georgia. Media environment, situation of equality and the need for monitoring human rights in the occupied territories were also topics of discussion.

Nino Lomjaria stressed the importance of the Commissioner’s support to human rights defenders and media representatives, who have been particularly pressured and attacked in recent years.

Talks also focused on the abolition of the State Inspector’s institution. The Public Defender informed the Council of Europe Commissioner of the constitutional complaint filed by her to request the declaration of the legislative changes adopted by the Parliament of Georgia on December 30, 2021 as unconstitutional.

Public Defender of Georgia

Public Defender Expresses Support for Amnesty Bills

Published in Society
Friday, 21 January 2022 15:12

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

 

Public Defender Responds to Threatening Statements Made by Georgian Dream Chairman

Published in Society
Monday, 13 December 2021 12:12

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

Published in Society
Friday, 10 December 2021 17:23

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,[1] 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.[2] 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[3] 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.


[1] 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]

[2] Statements of the Public Defender of Georgia are available on the website: <https://bit.ly/3CDI58Z>, <https://bit.ly/3AAGtMN>, <https://bit.ly/3lLqiWG>, , <https://bit.ly/2W3IlOX> [23.09.2021].

[3] 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].

 

Georgian politicians should fully respect the independent mandate of the Public Defender

Published in Politics
Wednesday, 24 November 2021 13:31

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."

Source: https://bit.ly/3xeG7ud

Public Defender Demands Mikheil Saakashvili’s Involvement in His Trial

Published in Justice
Wednesday, 17 November 2021 11:10

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.[1]

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.[2]

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.[3] 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.[4] 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.[5]

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.


[1] 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

[2] 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.

[3] 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.

[4] Riepan v. Austria, 35115/97, paragraphs 28-29; Krestovsky v. Russia, 14040/03, paragraph. 29.

[5] Krestovsky, 29-30; Luchaninova v. Ukraine, 16347/02, 56-57.

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