On March 30, this year the U.S. Department of State published 2020 Country Reports on Human Rights Practices. The reports are developed based on the information received from U.S. embassies and international missions and include the reviews of human rights practices in countries all over the world, among them Georgia.
2020 Country Report on Human Rights Practices in Georgia includes various topics, which constitute the main directions of IDFI’s work. Namely in the preamble of the report, it is highlighted that during 2020 some of the main areas of concern in Georgia were linked with the independence of the judiciary, political bias of prosecution and law enforcement and the right to assembly and manifestation. Among the other topics, the report also refers to the problems in the direction of freedom of speech and expression and fighting against high-level corruption.
An important part of the report is devoted to the review of the acute problems and shortcomings related to the functioning of the third branch of government. The United States Department of State emphasizes the problems related to judicial independence and impartiality and points out that judges were vulnerable to political pressure from within and outside the judiciary system. The report also mentions the existence of a "clan" in the judiciary, which has a particularly negative impact on the independence of the judiciary.
The report cites the statement of the Coalition for an Independent and Transparent Judiciary dated 23rd of June stating that the establishment of an independent judiciary in Georgia on the almost 30th anniversary of Georgia's declaration of independence still remains a challenge. The document also reflects the coalition's critically statement of October 30, 2020, on the appointment of the Extraordinary Judicial Conference of Judges and the election of two members of the High Council of Justice, including the Council Secretary, a day before the parliamentary elections.
The report also focuses on the critical report prepared by the Organization for Security and Cooperation in Europe’s (OSCE) Office of Democratic Institutions and Human Rights (ODIHR) related to the legislative amendments adopted in 2019 regulating the selection of Supreme Court judges and the High Council’s Supreme Court judge selection process.
It should be noted that IDFI, both individually and within the framework ofthe coalition, was actively stressing the shortcomings of these legislative amendments and reported that they did not ensure the selection of independent, impartial and bona fide candidates. The report of the U.S. Department of State also includes the assessment of the coalition relating to lifetime appointments of Supreme Court Judges, according to which 14 judges appointed in 2019 were described as “loyal to the clan.”
The Department of State did not leave beyond attention the constitutional appeal of the Public Defender challenging the provisions of the Organic Law of Georgia on Common Courts regarding the selection of the candidacy of a Supreme Court Justice for the nomination to the Parliament by the High Council of Justice. It should be noted that IDFI publicly supported this appeal and filed an Amicus Curiae Brief to the Constitutional Court, according to which the lack of relevant guarantees for the appointment of the competent and honest Supreme Court Justices created the risk of violation of the right to a fair trial.
The Department of state also talks about the shortcoming related to the procedures for electing the Court Chairpersons and the case allocation system. We read in the document that despite the substantiated request of the non-governmental sector, the package of amendments adopted by the Parliament within the framework of the "fourth wave" of legislative reform in 2019 left the High Council of Justice the authority to elect court Chairpersons. At their sole discretion, court chairpersons assigned judges to narrowly specialized chambers without any clear rules or pre-established criteria. NGOs reported one of the levers court chairs used to influence the outcomes of cases was creating narrowly specialized chambers in larger courts to manipulate the randomized case assignment process. At their sole discretion, without predefined rules and criteria, a court chairperson could at any time reshuffle the composition of narrowly specialized chambers and change the specialization of a judge. Chairpersons were not legally required to substantiate such a decision.
According to the report, court hearings were held in reduced numbers last year, worsening the problem of the excessive caseload of common courts of Georgia that has been a significant challenge for many years.
It should be noted that the report of the State Department also focuses on the decision made by the Constitutional Court on June 7, 2019, based on the constitutional appeal of IDFI and MDF concerning the accessibility of court decisions. Despite numerous recommendations and statements provided by IDFI, no changes have been made to the legislation yet.
The document also mentions the opacity of the process of appointing two controversial judges to the Constitutional Court of Georgia by the Plenum of the Supreme Court. It is noteworthy that the U.S. Department of State relies on the statements of the coalition, which was calling on the Plenum to refrain from appointing judges of the Constitutional Court until the end of the state of emergency. However, they took advantage of the lack of public attention and appointed preferred candidates.
The report focuses on the problems with the independence of the judiciary, along with investigations and prosecutions widely considered to be politically motivated. According to the U.S. Department of state, in certain politically sensitive cases investigated by the Prosecutor General’s Office, impunity remained to be a problem. Herewith, the report indicates that the government did not enforce the domestic violence laws effectively and investigative authorities lacked training on effective procedures on case handling and evidence collection. According to the report, prosecutors applied overly burdensome evidence requirements for bringing charges against perpetrators of sexual violence.
IDFI also pointed out the challenges facing the Prosecution Service of Georgia (PSG). It is noteworthy that according to a survey conducted by the organization, almost a third of the country's population states that the Prosecutor’s Office of Georgia is mainly not free or not free at all from political influence. IDFI has been actively speaking about the challenges facing the prosecution service in criminal proceedings of crimes committed with discriminatory motive (hate crime, domestic offence, domestic violence and violence against women) and based on their analysis, the organization has been offering recommendations to the government to address the identified shortcomings.
The PSG system has been facing challenges over the years, which were discussed numerous times in various formats on international and local levels. In recent years, the prosecutorial system has undergone numerous changes in Georgia. The 2018 reform, within which the Prosecutor’s Office of Georgia was separated from the Ministry of Justice and became a fully independent agency, was of particular importance to Georgia. However, independence remains a challenge for the PSG, which has to demonstrate that it is an institutionally independent, transparent and impartial body.
The report also includes a detailed review of high-level corruption cases and cites the announcements of the civil society, calling on the government to establish an independent anti-corruption agency. While referring to various sources the report emphasizes that Georgia failed to implement effective anti-corruption measures, which would have ensured independent investigation of high-level corruption cases.
For years IDFI has been talking about the problems linked with the independence of the agencies fighting against corruption. Independence is one of the most important factors necessary for effectively fighting against corruption and ensuring public trust towards the institutions. It is necessary to reform the anti-corruption system since it cannot effectively respond to cases of high-level corruption. This raises questions in society and negatively affects the trust towards public institutions. Taking into consideration the shortcomings of the existing anti-corruption system and recognizing the challenges of high-level corruption, IDFI has long advocated for the importance of creating an independent anti-corruption agency equipped with a high degree of independence, relevant authority and public trust to investigate high-profile corruption cases and answer all the lingering questions.
IDFI has been advocating for including the obligation for creating an anti-corruption agency in the Anti-Corruption Strategy and Action Plan of Georgia 2019-2020, however, the government refused to consider the recommendation. The same is one of the mainrecommendations of IDFI for the Anti-Corruption Strategy 2021-2022.
Right to Assembly and Manifestation
The report describes the 2020 amendments to the legislation limiting freedoms of movement, assembly and manifestation aimed at limiting the spread of COVID-19. In this regards, the report refers to the concerns of the civil society, stressing that the limitation in certain cases was used by the government to abuse its powers and use disproportional force against those participating in peaceful manifestations.
During 2020 IDFI has been discussing the accelerated manner in which the Parliament of Georgia considered the amendments to the Law on Public Health, stressing that the amendments included an unjustifiably wide definition of “quarantine measures” and envisaged the concentration of excessive power within the executive branch. In regards to the curfew, IDFI has been emphasizing that applying the restriction on manifestations, created the risk of further aggravating the already tense political situation. IDFI finds that the new measures constitute a disproportional interference in the right to movement, which contradicts the Law of Georgia on Public Health. Thus, IDFI has referred the case to the Tbilisi City Cout.
The report refers to the critical assessment of the media and civil society organization regarding the amendments of July 17th to the Law of Georgia on Electronic Communications. The amendments granted the Georgian National Communications Commission (GNCC) the power to appoint special ad-hoc managers/administrators to the companies providing electronic communication services. The aim of the amendments was to ensure the execution of the decisions made by GNCC. The Parliaments adopted the amendments regardless of strong criticism from media and civil society organizations, highlighting that the real aim of the changes was restricting freedom of expressions of media. The report also discusses the online platform of GNCC – Media Critic, established in 2019. Media Critic constitutes additional leverage in the hands of GNCC to limit free media.
Since the initiation of the amendments to the laws on broadcasting and electronic communications IDFI has been actively monitoring the process and was calling on Parliament to turn down the amendments limiting freedom of media. In its study published on the 24th of March IDFI urged the Parliament to review the adopted amendments to the Law on Electronic Communications and ensure a participatory and transparent process of reviewing the law. In its study, IDFI also called on GNCC to refrain from using the leverage of appointing special managers/administrators, until the Parliament would review the recent amendments.
In 2020 IDFI also studied the activities of the Media Critic Platform and concluded that most of its criticism was directed at the media labelled as “oppositional” by the platform’s experts. IDFI also stressed the lack of transparency in the work of Media Critic and called on GNCC to guarantee the full accountability of its platforms and prevent doubts about the GNCC encouraging media polarization or its impartiality towards media outlets.
The report includes detailed information on the conditions at penitentiary institutions in Georgia. Among the other concerns, the report refers to the cases of lack of access to hygiene, water and fresh air when inmates had to stay in composed spaces in close contact with others inmates for 23 hours during a day.
The problem was particularly worrying after the widespread of COVID-19. Back in May 2020, IDFI was referring to the recommendations of the World Health Organization (WHO) Europe Office, United Nations Office on Drugs and Crime (UNODC), European Committee for the Prevention of Torture (CPT) and the Commissioner for Human Rights, according to which reducing the prison population was one of the key necessary measures for preventing widespread of COVID-19 in prisons and other places of detention. Based on the abovementioned IDFI has been calling on the government, to develop an anti-crisis plan for preventing the widespread of COVID-19 in penitentiary institutions, one of the main directions of which could be the decrease of the inmate population. IDFI was stressing that this would have served the interests of inmates as well as the wider public of avoiding the overload of hospitals.
IDFI is pleased that the Report of the U.S. Department of State reflects the objective, critical opinions of the Georgian civil society, international organizations and the Office of the Public Defender regarding the state of human rights in the country. At the same time, it is particularly concerning that regardless of multiple reforms Georgia still faces severe problems in such directions as the independence of the judiciary, procurement and law-enforcement, freedom of press and media, fighting against corruption and others.
IDFI hopes that the Government of Georgia will not oversee the criticism reflected in the report of the U.S. Department of State, will internalize the severity of existing challenges and will take effective steps towards improving the state of human rights and the rule of law in Georgia.
This material has been financed by the Swedish International Development Cooperation Agency, Sida. Responsibility for the content rests entirely with the creator. Sida does not necessarily share the expressed views and interpretations.
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