Recommendations on the Freedom of Expression Chapter of Human Rights Action Plan 2016-2017

News | Publications 15 March 2016

General Comments

Chapter 9 of the Human Rights Action Plan describes its objective as – “ensuring freedom of expression for Georgian citizens”. IDFI believes that the wording used in this chapter does not adequately reflect the steps that need to be taken by the government in order to improve the situation in terms of freedom of expression. For this reason, the wording – “ensuring freedom of expression” must be changed to – “improving the situation in terms of freedom of expression”. The latter wording of the objective ensures that its components are proactive in nature.

The chapter also lays out three specific tasks, two of which are ongoing activities already carried out by various state institutions. For example, objective 9.1 – “prevention of and acting upon cases of obstruction of journalists’ activities” is an obligation within the competence of the Ministry of Internal Affairs and the Chief Prosecutor’s Office, and is already being carried out by these institutions independently of the action plan. Therefore, IDFI believes that such objectives should be reformulated so that the focus is set on activities that are aimed at either improving the situation or introducing a new approach.

IDFI also recommends the action plan set more specific deadlines for its component activities. For example, the deadline of 2016-2017 used for various activities in the current version of the document must be changed to specify the month (for example, December 2016 or July 2017).

To add clarity to the action plan, its component activities must be matched with the specific structural unit/s of ministries or other institutions that are directly responsible for implementing the activity.

As indicated in the recommendations of the action plan development expert Sabrina Buchler, performance indicators for component activities must also be reviewed. The chapter on freedom of expression lists a total of 7 indicators. These indicators do not provide the ability to measure the success of specific activities or the general objective. IDFI believes that a separate indicator must be added for measuring the success of the main objective. This indicator can be general in nature – based on general indices, international ratings, etc, such as the Freedom of Press Index, Freedom House's Freedom of the Press rating, and the Global Right to Information Rating.

IDFI believes that the indicators for individual activities also need to be changed. This can be achieved by adding baseline data to the action plan. This data will include various measurements from the time of developing the action plan and serve as a basis of comparison later. Even though it would be impossible to get accurate data to measure all six activities included in the action plan, more specific indicators must still be added wherever possible.

Specific Recommendations

As already mentioned above, ongoing activities must not be included in the action plan. By ongoing activities we mean measures that are already being implemented by a state institution as part of its legal responsibilities. Based on the above, IDFI believes that activity 9.1.1 must be removed from the action plan, since investigative authorities are already obligated to quickly and effectively investigate cases of obstruction of journalists’ activities. Tackling this specific problem requires different and special mechanisms. Therefore, IDFI believes that activity 9.1.1 must be changed to the creation of a special working group composed of representatives of the Ministry of Internal Affairs, the prosecutor’s office, and civil society for the purpose of responding to cases of obstruction of journalists’ activities. This issue is particularly important due to the fact that 2016 and 2017 are election years, requiring additional attention being paid to the freedom of journalistic activity.

We believe that activities 9.1.2 and 9.1.3 must be removed from the action plan, since these activities are already being performed by state institutions. More specifically, “launching an investigation on media reported information”, and “qualifying cases of obstruction of journalists’ activities as crimes by the prosecutor’s office” are already among the obligations of state institutions, and are being/must be implemented independently of the action plan. IDFI believes that organizing trainings for law enforcement authorities would be more beneficial in this regard. Such trainings would help law enforcement representatives better understand what exactly constitutes an obstruction of journalists’ activities and what would be an appropriate response from their part.

IDFI also believes that the wording of activity 9.1.4 should be changed to – “keeping of records on the number of registered and solved crimes of obstruction of journalists’ activities, as well as proactive disclosure of these statistics on the website” (this should also be a responsibility of the Ministry of Internal Affairs and the Chief Prosecutor’s Office). The proactive disclosure of these data will increase transparency and contribute to having a better informed public.

Activity 9.3.1 reads – “development of legislative amendments and their initiation in the Parliament for the purpose of increasing access to public information”. We believe that this wording is too general. It must include specific actions, and indicate specific legislative acts where changes are needed. Therefore, activity 9.3.1 should be removed from the action plan and substituted with a number of more concrete actions. More specifically, the action plan must obligate the government to file a Freedom of Information Act to the Parliament (activity 9.3.1). This obligation is already reflected in the Anti-Corruption Strategy for 2015-2016 as well as in the Open Government Partnership Action Plan for 2014-2015. The initial version of the draft law on freedom of information has already been prepared, and is currently being developed further by the Ministry of Justice. In order to avoid further delays, the Human Rights Action Plan must include specific deadline for the initiation of the draft law in the Parliament, its adoption, and entry into force.

The August 2013 Government Order defines the rules for proactive disclosure of public information as well as a list of information to be made public. However, the order is binding only for agencies that are subordinate to the government. It is important to develop a common standard for proactive disclosure of information on a legislative level, which will be binding not only for ministries or their subordinate agencies, but for the Parliament, the judicial system, and local governments as well (activity 9.3.2).

The government must improve the existing mechanisms of monitoring the access to public information, and develop prompt and effective mechanisms of ensuring the right to public information. This can be achieved through the introduction of a sanctioning mechanism against public institutions that ignore freedom of information requests or refuse to disclose public information. More specifically, the government must set up a supervisory body (i.e. Freedom of Information Inspector) with a mandate to bypass lengthy procedures, such as court proceedings, when reviewing complaints and responding to them by sanctioning public institutions that violate the applicants' right to freedom of information (activity 9.3.3).

In September 2013, the public information portal launched a new service of electronic communication with public institutions. However, the number of these public institutions has remained limited. The Human Rights Action Plan must recommend all central authorities (ministries and their subordinate agencies) become part of this service by, for example, December 2016 (activity 9.3.4).
Problems also exist in the common courts system in terms of access to public information. The Law on Personal Data Protection and the decision of the Personal Data Protection Inspector limits access to court decisions, despite the fact that the Constitution sets the obligation of openness of judicial proceedings. IDFI believes that the solution to this problem should be included as one of the activities under objective 9.3 of the action plan. Specifically, a new chapter must to be added to the new Law on Freedom of Information that will directly regulate the publication of and access to judicial decisions. In addition, the wording of Article 6 of the Law on Personal Data Protection must be changed so as to allow the processing of data under special categories on the basis of significant public interest.

Finally, awareness about the obligations set by the new Law on Freedom of information must be raised in the public sector, both at the central and local levels. For this purpose, the Ministry of Justice must organize trainings for judges, and representatives of the executive and local governments (donor readiness to assist in this process would be appreciated) (activity 9.3.5).

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