On May 29th, 2015 the Report of the Public Defender of Georgia on the Situation of Protection of Human Rights and Freedoms in Georgia was published. The report covers the cases of human rights breaches, inter alia the case of the Ministry of Economy and Sustainable Development violating the rights of IDFI as well as the case of illegal detainment of Giorgi Kldiashvili – the Director of IDFI. Precisely, in regards with the case of Giorgi Kldiashvili the Public Defender unambiguously highlights, that the director of IDFI was detained illegally, hence his freedom of movement guaranteed by the Constitution of Georgia was violated. As regards the issue of the Ministry of Economy and Sustainable Development Public Defender ascertained that the right to freely access information was violated by the entity. Bellow both cases will be discussed in detail.

- Illegal Detainment of Giorgi Kldiashvili

On December 12th, 2014 Giorgi Kldiashvili the Director of IDFI was arrested by the Central Criminal Police Department of the Ministry of Internal Affairs (MIA) of Georgia when he was transporting home his registered collection firearm after it was repaired at official arms shop. He was arrested on charges of illicit carrying of firearms, despite of the fact that the firearm was dismantled, and placed in the trunk without bullets. According to art.236 of the Criminal Code of Georgia the crime is punishable by an imprisonment from three to five years. Giorgi Kldiashvili was arrested and taken to the detention centre i.e. “Moduli” building for two days.

It should be noted that the law-enforcing agencies have justified arrest of Giorgi Kldiashvili by an assumption that he would avoid prosecution, regardless of the fact that Giorgi Kldiashvili voluntarily participated in the investigative process, presented himself in the “Moduli” building and accepted to be interrogated as the witness of the case.

During the period when the case of Giorgi Kldiashvili was pending the Public Defender called on the Prosecutor’s Office to terminate criminal prosecution against the Director of IDFI, as his acts were punishable by the Administrative Offences Code of Georgia and could not be qualified as criminal act. Regardless of the recommendation of the Public Defender the Prosecutor’s Office refused to terminate criminal prosecution and the case was heard by the court. On the hearing when the issue of imposing securing measures was discussed the court ruled that Giorgi Kldiashvili was detained illegally, dwelling from the fact that there was no well grounded suspicion of him avoiding prosecution. Hence the court denied that motion of the Prosecutor’s Office requesting to impose the securing measure in the form of detainment. During the main hearing on the case the court ruled that number of case materials presented by the prosecutor’s office were obtained illegally. In addition the court emphasized that the case materials accepted by the court were not sufficient to prove that Giorgi Kldiashvili committed a criminal act. Hence based on the decision of the court criminal prosecution against Giorgi Kldiashvili was terminated. It should be highlighted here, that unfortunately the Prosecutor’s Office refused to share the position of the court, and appealed the case to the Appellate Court of Tbilisi. The application of the Prosecution was denied by the Appellate Court as well.

In his report the Public Defender of Georgia one more time emphasizes that representatives of law enforcement agencies violated the right and freedoms of Giorgi Kldiashvili, highlights that the Director of IDFI was detained illegally and his actions were incorrectly qualified as publishable by the Criminal rather than Administrative Offences Code of Georgia.

Giorgi Kldiashvili has referred to responsible entities with the claim of compensating non-property (moral) damages, dwelling from the fact of violating his rights and freedoms. The case of compensating non-property damages as well as the issue of imposing disciplinary measures against the representatives of the law enforcement agencies is pending as of today.

- The Case of the Ministry of Economy and Sustainable Development violating the Right of IDFI to Freely Access Open Public Information

On January 24th, 2014 IDFI referred to the Ministry of Economy and Sustainable Development with the request of providing the Institute with open public information on the issues such as bonuses and salary supplements of high public officials, costs of business trips abroad, higher education diplomas of the Minister and Deputy Minister, copies of email correspondence conducted via official e-mail account of the Minister etc. The information requested was disclosed only partially hence IDFI filed an administrative appeal against the decision. The decision on the appeal was not taken by the Ministry even after the lapse of the maximum period of time enshrined by the legislation of Georgia. It should also be noted, that the entity refused to provide Public Defender with complete information. After ascertaining the facts of the case, Public Defender concluded that the Ministry failed to fulfill its obligation dwelling from access to information legislation, as a result of which the rights of IDFI were violated.

It should be noted that regardless of the recommendation of the Public Defender the Ministry of Economy still refused to guarantee that the rights and freedoms of IDFI were duly protected and did not disclose requested public information. Moreover, the Ministry refuses to publicize information on different administrative costs of 2014 by ignoring the FOI request sent to the Ministry in March 2015. The said one more time highlights that unfortunately the Public Defender does not posses effective and timely leverages to ensure that the right to freely Access public information is well protected in the country. The said one more time highlights the need of introducing the institute of Freedom to Information Commissioner. The decision of the Commissioner will be binding upon public institutions and be adopted within a short period of time, thus setting higher standards of effectiveness. The establishment of the Office of Freedom to Information Commissioner is foreseen by the draft law on Freedom to Information, which was prepared by the experts in the field and the representatives of the Ministry of Justice, with active involvement and participation of IDFI. We hope that the Government of Georgia will in the nearest future ensure that the draft law is presented to the Parliament of Georgia for further consideration. The adoption of Law on Freedom to Information will no doubt serve as high standard of protecting the right to freely access open public information in the country.