1. Introduction
1. Georgia joined the Council of Europe on 27 April
1999, following the adoption of a positive opinion on its membership
request by the Parliamentary Assembly in
Opinion 209 (1999). After the Rose
Revolution, which brought President Saakashvili and his United National
Movement (UNM) into power, the Assembly considered that the new
government should not be held accountable for the failure of the
previous authorities to fulfil Georgia’s obligations and commitments
in the time frame specified upon accession. In support of the new government
and in recognition of the task it faced, the Assembly adopted, in
Resolution 1415 (2005),
a series of revised deadlines for Georgia’s commitments to the Council
of Europe.
2. The previous report on the honouring of obligations and commitments
by Georgia was debated in the Assembly in January 2008, in the aftermath
of the political crisis that ensued after the declaration of a state
of emergency in November 2007. This report led to the adoption of
Resolution 1603 (2008).
The period after the adoption of this resolution has regrettably
been characterised by a continuing political confrontation, as well
as upheaval following the tragic war between Georgia and Russia
in August 2008.
3. The consequences of the war between Russia and Georgia have
been dealt with in a number of separate reports to the Assembly
and were covered in the Monitoring Committee under a separate mandate. The
Monitoring Committee, at its meeting on 27 January 2011, decided
that from then on the consequences of the war, as well as the implementation
of the demands of the Assembly in that respect, would be followed in
the ongoing monitoring procedures for Georgia and Russia. We fully
subscribe to the conclusions of the Assembly as expressed in
Resolutions 1633 (2008),
1647 (2009) and
1683 (2009) and
will not revisit their implementation in the context of this report.
It is clear that the tragic war and occupation of the Georgian regions of
South Ossetia and Abkhazia, and the subsequent recognition of their
independence by the Russian Federation, have had an important impact
on the political developments in Georgia. However, democratic reforms
and progress in fulfilling the country’s accession commitments and
obligations have continued unabated. To a certain extent, the democratic
reforms even got a new impetus as the Georgian authorities felt that
the August war was also a direct attack on the democratic nature
of Georgian society and therefore initiated an ambitious reform
programme called “the second wave of democratic reforms”.
4. In this report, we therefore wish to outline the developments,
both progress achieved and concerns remaining, with regard to Georgia’s
fulfilment of its obligations and commitments to the Council of
Europe. This report is also based on the findings from our fact-finding
visits to the country, which took place on 26 and 27 April 2008,
from 24 to 27 March 2009, from 21 to 24 March 2010 and from 12 to
16 July 2010.
In
our view, the delay in producing this report for the Assembly as
a result of the August 2008 war and its consequences has therefore
been kept to an absolute minimum.
2. Main
political developments
5. As mentioned above, our previous report was published
just after the extraordinary presidential elections on 5 January
2008. Those elections were called following the resignation of President
Saakashvili after the politically contentious declaration of a state
of emergency that followed a tense period of protests and political standoff
between the government and part of the opposition. With his resignation,
President Saakashvili aimed to allow the Georgian electorate to
make a verdict on his and his government’s actions in November 2007.
This presidential election was examined in detail in our previous
report. However, for the sake of completeness, we would like to
recall the conclusions of international observers. According to
their assessment, while the presidential election was in essence
in line with democratic standards, some shortcomings and violations encountered
during the election were serious challenges that remained to be
addressed, as they had tainted the overall election process. As
a result, the stand-off between the opposition and the ruling party,
with the resulting climate of distrust and polarisation, continued
unabated after the election.
6. At the same time as the presidential election, a consultative
referendum was held to determine the date for the parliamentary
elections in Georgia: either in the spring of 2008 – as demanded
by the opposition – or in autumn 2008 as foreseen in the constitution
as amended in 2007. In the referendum, 79% of the voters expressed
their preference for the organisation of parliamentary elections
in the spring of that year. As a result, parliamentary elections
were called for 21 May 2008.
7. In order to resolve the ongoing political crises after the
November 2007 events and the presidential election of January 2008,
a dialogue was started between the opposition and the ruling party
on the change of the electoral system for the parliamentary elections,
with a view to ensuring a more pluralist parliament. Originally,
the dialogue between authorities and the united opposition led to
an agreement to change the election system for the 50 majoritarian
seats
in parliament from a first-past-the-post
system to a system of regional proportional lists. However this
dialogue broke down and the opposition refused to end their boycott of
the parliament and vote for the necessary constitutional amendments
that would have implemented the agreement on the election system.
As a result, new amendments were introduced by the majority and
they not only maintained the first-past-the-post system for majoritarian
seats, but also increased the number of majoritarian seats from
50 to 75, while the number of proportional seats was reduced from
100 to 75 seats. These amendments were decried by the opposition
and led to allegations that these changes were driven by a desire
of the ruling party to maintain a constitutional majority in the
new parliament by changing the electoral system in its favour.
This further deteriorated the relationship
between the opposition and authorities, which continued to be characterised
by a deepening lack of trust and polarisation.
8. On 21 March 2008, a series of changes were introduced to the
Electoral Code. They reflected the above-mentioned constitutional
changes but also addressed several shortcomings noted and recommendations made
by international observers, including the Assembly, after the January
2008 presidential election. The changes introduced to the Election
Code included inter alia:
the abolition of the supplementary voters’ lists and voter registration
on election day; the lowering of the threshold from 7% to 5%, as
well as the simplification and clarification of the procedures with
regard to election-related complaints and appeals. Contrary to European Commission
for Democracy through Law (Venice Commission) recommendations, the
amendments abolished the possibility for individual candidatures
in the parliamentary elections and did not address the question
of the vastly unequal size of the single mandate constituencies,
which runs counter to the principle of equality of the vote.
9. International observers, including an ad hoc committee of
the Assembly, which observed the parliamentary elections on 21 May
2008, concluded that there had been an overall improvement in the
election process in comparison with the presidential election. However,
they also noted that, despite the efforts of the authorities to
comply with international standards, some outstanding problems and
shortcomings resulted in uneven and incomplete implementation of
those standards.
10. The parliamentary elections were overwhelmingly won by the
ruling United National Movement, which obtained a constitutional
majority of 119 out of 150 mandates in the new parliament. The joint
opposition won 17 seats, the Christian Democrats six seats, the
Labour Party six seats and the only two majoritarian seats that did
not go to the United National Movement were won by the Republican
Party.
11. Regrettably, while the holding of an early presidential election
in January 2008 and parliamentary elections in May 2008 was meant
to be a mechanism to reduce the political schism that had emerged
after the November 2007 events, these elections did not resolve
the polarised nature of the political climate in Georgia for most
of the reporting period. This was exemplified by the regrettable
decision of 14 opposition members not to take up their mandates
in the newly elected parliament.
12. It has to be emphasised that the authorities announced a number
of initiatives to strengthen the parliamentary opposition and to
re-start the dialogue that had broken off before the elections.
In particular, they adopted changes to the parliamentary rules of
procedure that allowed the lowering of the number of MPs to establish
a faction and proposed the setting up of a working group to revise
the Election Code for future elections.
13. However, the domestic political developments were soon overshadowed
by the escalating tensions and deteriorating security situation
in Georgia’s regions of Abkhazia and South Ossetia, culminating
in the tragic war between Russia and Georgia in August 2008. The
sequence of events has been succinctly outlined in
Doc. 11724 and falls
outside the scope of this report. Moreover, as mentioned before,
the consequences of the war between Georgia and Russia have been
the subject of a number of reports
and
Assembly resolutions.
14. While the war and its immediate consequences undeniably had
an enormous impact on national policies and reforms, it was a matter
of priority for the Georgian authorities, and a large part of its
political class, to ensure that these events should not scuttle
needed reforms or hinder democratic development in the country. On
the contrary, in the view of the Georgian authorities, the war had
also been a direct attack on the democratic nature of Georgian society.
In response, they therefore proposed an elaborate reform package,
the so-called “new wave of democratic reforms” with the aim of strengthening
the democratic process and institutions in Georgia.
15. The opposition in Georgia, in general, stood united behind
the government in its support for the actions undertaken in August
2008. However, at the same time, a large part of the opposition
strongly differed with the government over its handling of the situation
in the period leading up to the war, as well as its handling of
the consequences in its aftermath.
16. At the same time, the political landscape changed in the aftermath
of the parliamentary elections and the war with the establishment
of new opposition parties, mainly founded by former high-level officials
from the ruling party and authorities, such as the Democratic Movement-United
Georgia and the Alliance for Georgia. The Democratic Movement-United
Georgia was formed by former parliamentary Speaker, Ms Nino Burganadze,
who left the governing United National Movement on the eve of the
parliamentary elections over political differences with President
Saakashvili. The Alliance for Georgia was formed by the former Georgian Ambassador
to the United Nations and presidential envoy for the relations with
the separatist representatives in the Georgian regions of Abkhazia
and South Ossetia, Mr Irakli Alasania. He was joined by several
other administration officials who resigned from their positions
after the war in protest at, in their opinion, the closed style
of decision making by the administration, as well as the handling
of the relations with Abkhazia and South Ossetia in the period before
the war. Mr Alasania’s movement formed the Alliance for Georgia
jointly with the New Rights Party and the Republican Party.
17. It is undeniable that the war and its consequences galvanised
a large part of the opposition in their resolve to change the political
power in Tbilisi, although many of these opponents differed about
the exact manner in which to achieve this political change. Starting
on 9 April 2009, opposition parties organised a series of protest
rallies and demonstrations with the declared aim of forcing early
parliamentary elections and the resignation of President Saakashvili.
These protest actions, which lasted well into the summer of 2009, eventually
died out without achieving their declared goals.
18. Despite assurances of both authorities and participants that
the rallies would be peaceful and that the law and constitution
would be respected, they were held in a very tense atmosphere. Both
sides expressed concerns and fears that provocations would take
place and that the protests could escalate into violence. Regrettably,
a number of isolated incidents were recorded. Of serious concern
were the recurrent reports that protesters were attacked by unknown
assailants in the vicinity of the rally venues. In a letter to the
authorities, Human Rights Watch expressed its concern about the
“striking patterns” that were followed in all these attacks, as
well as the apparent lack of effective investigations into these
attacks and measures to guarantee the safety of the protesters.
Although the police started investigations into the attacks, these
investigations were at the time of writing – more than a year after
the events – not yet concluded and had not led to any charges being brought.
19. Differences of opinion among opposition parties on the continuation
of the protests, as well as over the possibilities for co-operation
with the authorities, split the extra-parliamentary opposition in
roughly two camps, which are often referred to as the “moderate”
and “radical” opposition. While this categorisation is a misnomer –
the “radical” opposition may have moderate views on certain issues
and vice versa – and can be open to subjective interpretation, for
clarity we will use the same differentiation in our report.
20. While categorically rejecting the possibility of organising
early parliamentary and presidential elections, the authorities
offered to implement a number of other proposals aimed at strengthening
the role of the opposition in the democratic process, as well as
the possibility for constitutional changes to increase the powers
of the parliament at the cost of those of the president.
21. An electoral working group (EWG) was initiated by the authorities
with the aim of reaching a broad agreement among the different political
forces on the electoral framework for the local elections, which
were later set for 30 May 2010. The EWG was moderated by the National
Democratic Institute (NDI) and worked on the basis of a code of
conduct elaborated by them. Initially, most of the extra-parliamentary
opposition did not participate in the work of the EWG, but at a
later stage the Georgia Traditionalist Party and the Alliance for Georgia
also joined the EWG.
22. After ten months of discussions, consensus was reached on
a number of issues, including the direct election of the mayor of
Tbilisi and the election system for the city councils, the election
of the chairperson of the Central Election Commission, the right
for the opposition to appoint the secretaries of the precinct election commissions
and the extension of the deadline for submitting election complaints
and appeals. These changes to the electoral legislation on which
consensus was reached in the EWG were introduced into parliament
by the ruling United National Movement
and subsequently adopted. No consensus
could be reached on the threshold for the election of the Mayor
of Tbilisi. In the end, a 30% threshold was adopted by the parliament.
23. On 30 March 2010, President Saakashvili called for local elections
to be held on 30 May 2010. The direct election of the mayor of Tbilisi
was considered to be a dry run for the next presidential elections
in 2013 and therefore of special importance. Despite the importance
of this election, the opposition could not agree on a single candidate
to challenge the incumbent candidate of the United National Movement.
24. The international election observation mission assessed the
local elections on 30 May positively, although it noted that significant
shortcomings still needed to be addressed. In particular, it noted
that the authorities had shown clear political will to improve the
election process and conduct elections in line with European standards.
The United National Movement won the majority of the city councils
in the country including in Tbilisi. In addition, the UNM candidate,
Mr Gigi Ugulava, won the mayoral race for Tbilisi. Equally important
were the relatively good results obtained by the opposition forces
which indicate that the public was willing to reward those parties
that chose to participate in the democratic process.
25. In order to overcome the schism between authorities and opposition
and in response to the persistent calls for institutional reforms
which were voiced by the opposition during the spring 2009 protest
actions, the authorities initiated a constitutional reform process.
This reform aimed at strengthening the powers of the parliament
at the cost of those of the President and, in general, to improve
the system of institutional checks and balances, as well as at strengthening
the independence of the judiciary. President Saakashvili, on 8 July 2009,
established the State Constitution Commission of Georgia to draft
the constitutional amendments.
26. The State Commission presented its draft for the amendments
to the constitution on 14 May 2010. This draft was presented to
the Venice Commission for opinion. After a series of consultations
with the Venice Commission, as well as with the Georgian public
and civil society, the amendments to the constitution were adopted
by the parliament on 15 October 2010. While most of the Venice Commission
recommendations were implemented, some remain to be addressed.
27. Following the adoption of the constitutional amendments, the
political attention is shifting to the forthcoming parliamentary
elections in 2012 and the presidential election of 2013. The parliamentary
elections have gained new importance given the increased powers
of the parliament after the constitutional changes. Also under the
new constitution the President continues to wield considerable power.
The upcoming presidential election is therefore widely seen as an
indicator of the political direction of the country.
3. Democratic institutions
3.1. Constitutional
reform
28. On 8 July 2009, the State Constitution Commission
of Georgia was established by presidential decree. The aim of the
commission was to draft a new constitution especially with a view
to, inter alia, strengthening the
role of the parliament, strengthening the independence of the judiciary.
and enhancing the system of checks over the powers of the president.
29. The State Constitutional Commission was composed of academics,
representatives of civil society and international experts, as well
as representatives of parties. Regrettably, most of the extra-parliamentary opposition
declined to participate in the work of the commission, which was
a missed opportunity. All parties that accepted to participate in
the commission were equally represented with one representative.
Mr Avtandil Demetrashvili, a former chairperson of the Constitutional
Court and one of the authors of the previous constitution, was appointed
chairperson of the commission on the nomination of the opposition
parties that participated in the commission. Close co-operation
was established with international partners, most notably the Venice
Commission. The authorities should be commended for their efforts
to create a drafting structure and working method that were specifically
aimed at avoiding the domination or politisation of the drafting process
by any single political force or interest.
30. The first draft of the constitutional amendments was completed
by the working group on 14 May 2010 and was sent to the Venice Commission
for opinion on 17 May 2010. This draft was discussed with the Venice Commission,
as well as other international experts, in Berlin from 15 to 17
July 2010. Subsequently, the State Constitutional Commission submitted
its final draft of the proposed constitutional amendments to the parliament
on 21 July 2010.
31. According to Georgian legal provisions, a public consultation
process, lasting at least one month, must be organised before the
amendments can be discussed in parliament. To this end, the parliament
established a commission to conduct this public debate consisting
of MPs (of both the ruling party and the opposition), civil society
representatives and academics. The commission was chaired by the
Speaker of the Georgian Parliament, Mr Davit Bakradze. This commission
organised a comprehensive consultation process including a series
of public debates – 27 in total – in all regions of Georgia. On
13 September 2010, the State Constitutional Commission adopted a
number of changes to its proposal in order to reflect the outcome
of the public debate.
32. On 24 September 2010, the amendments to the constitution were
passed in a first reading by the Georgian Parliament and on 1 October
in a second reading. The text adopted in the second reading was
sent to the Venice Commission for opinion on 2 October 2010. The
constitutional amendments were adopted by the parliament in a third
and final reading on 15 October 2010, a day after the Venice Commission
adopted its opinion in plenary.
33. While all statutory requirements, including those relating
to the public consultation process, were abided by, the speed with
which the constitutional amendments were adopted after they were
presented by the State Constitutional Commission, and the fact that
the consultation process took place over the summer holiday period,
gave the impression that the constitutional changes were rushed
through. Civil society organisations and opposition parties felt
that the public debate had not been sufficient both in depth and
scope. While we realise that the public debate on the constitutional
changes was not limited to the official public consultation period,
but was already in full swing when the State Constitutional Commission
was drafting the new constitution, we still regret the perception
of haste that was generated by the rapid adoption of the constitutional amendments
after they were presented by the commission. This is particularly
so as such haste seems to have been unnecessary given that many
of the key provisions of the new constitution will only come into
force when the next president is installed in office.
34. The new constitution significantly alters the balance of powers
between state institutions. It moves away from a strong presidential
system of government to a mixed system, where the power is in the
hands of the government which is solely accountable to the parliament.
The president’s role is now that of the guarantor of the unity and
national independence of the state and the functioning of the democratic
institutions, as well as that of a neutral arbiter between state
institutions.
35. The powers of the government have been substantially strengthened
at the expense of those of the president. The government, which
now fully exercises the domestic and foreign policy of the state,
is headed by a prime minister, who is nominated by the president
on the proposal of the political grouping that obtained the most
mandates in the elections. The candidate prime minister then composes
his government and presents it to the parliament for a vote of confidence.
36. The president no longer leads and defines the internal and
foreign policy of the state, which is now set by the government.
He no longer appoints or dismisses ministers and members of the
government and his consent is no longer required for the state budget
and most of his acts and decisions need to be countersigned by the
prime minister.
37. While the role and powers of the President of Georgia have
been reduced, the office remains – in line with a mixed parliamentary-presidential
system – a powerful and influential institution. The president maintains his
powers to declare war and a state of martial law and, as guarantor
of the independence and unity of the state, continues to be the
commander-in-chief of the armed forces. In addition, the president
maintains an important role in the foreign policy of the state as
the constitution accords him the powers to hold talks with foreign
states and to conclude international conventions and agreements.
Following recommendations of the Venice Commission, countersignature
for his decisions in this sphere by the prime minister is needed
in most, but not all, cases.
38. Besides introducing the above-mentioned mixed presidential-parliamentary
system, the new constitution also makes important changes and improvements, inter alia, in the fields of the
judiciary, property rights and local self-government.
39. The constitutional changes in the field of local self-government
will be outlined below in a separate chapter. In the field of the
judiciary, the new constitution introduces the principle of life
tenure for judges, which will greatly improve their independence.
In addition, the list of entities that can directly apply to the Constitutional
Court has been enlarged and includes, inter
alia, city councils (Sakrebulos) and the High Council of
Justice.
40. New constitutional provisions have also strengthened the powers
of individual political forces by reducing the number of MPs necessary
to initiate a parliamentary investigation committee and by simplifying the
procedures necessary for the impeachment of the president by the
parliament.
41. The Venice Commission assisted
the State Constitutional
Commission and authorities throughout the drafting process. The
Venice Commission’s assessment of the constitutional amendments
was requested, and was given in the form of two draft opinions
and
a partial opinion on the local self-government chapter.
Following
these opinions, a number of changes were made to the constitutional
amendments by the State Constitutional Commission. Most notably,
these changes included the abolition of the right of legislative initiative
of the president
– which was seen as a potential
source of institutional conflict – and the reintroduction of organic
laws.
In
addition, the requirement that most presidential acts need to be countersigned
by the prime minister was introduced.
42. In its final opinion
on
the constitutional amendments as adopted by the Georgian Parliament
in a second reading, the Venice Commission welcomed the proposed
constitutional changes as important improvements and an important
step from a presidential system to a mixed system, where the government
is accountable to the parliament.
43. We warmly welcome the constitutional changes which have led
to a stronger role and increased powers of the parliament. While
the mixed presidential-parliamentary system implemented by the new
constitution is, as such, in line with European standards, we note
that this system is vulnerable to inter- institutional tension and
conflict in the event that the president and parliament do not share
the same political priorities and direction. It would be of concern
if systemic tension were to develop. We raised this concern on different occasions
with our Georgian interlocutors, who recognised this vulnerability
and stressed that they were ready to take corrective action in the
– in their view unlikely – event that systemic tensions would develop.
44. The possibility of systemic tensions was also raised in the
opinion of the Venice Commission, which therefore recommended further
strengthening the role and powers of the parliament. The Venice
Commission, inter alia, questioned
the need for the president to have the powers to negotiate treaties,
and noted that the role of the parliament in budgetary matters is,
in its opinion, too limited. These recommendations were not addressed
in the constitutional amendments that were adopted by the Georgian
Parliament.
45. A key concern of the Venice Commission relates to the procedure
for a motion of no confidence in the government, which is overly
complex and, in the view of the Venice Commission “gives too much
power to the President and diminishes not only the power of the
parliament, but also the political responsibility of the Prime Minister
that should be the cornerstone of the new system”.
We do share these concerns of the Venice Commission
and recommend that they be addressed by the Georgian Parliament.
46. A main tenet of the draft for the new constitution was the
strengthening of the powers of the parliament and prime minister
at the cost of those of the president. There have been speculation
and allegations that these changes in the balance of powers were
motivated by a possibility that President Saakashvili, who is prohibited from
running for the presidency for a third consecutive term in 2013,
is considering returning as prime minister after the next presidential
election. In that context, we would like to concur with the Venice
Commission that dismissing the constitutional reform as a mere attempt
to circumvent limitations on holding power is belied by the depth
and the scope of the constitutional reform.
3.2. Electoral reform
47. A key component of the “second wave of democratic
reforms” package is electoral reform. An electoral working group
(EWG) was established with the task to reform the electoral framework
and legislation. In order to ensure the independence of this group,
it was convened and moderated by the National Democratic Institute (NDI)
on the basis of a code of conduct developed by NDI. In this Code
of Conduct, all participating parties committed themselves to constructive
co-operation, consensus-based decisions and no prior pre-conditions
for the discussions. In addition, the ruling United National Movement,
which has a constitutional majority in parliament, publicly committed
itself to supporting any consensus agreement reached by the working
group, which guaranteed its adoption in parliament.
48. Besides the ruling party and parliamentary opposition, the
EWG was initially only joined from the side of the extra-parliamentary
opposition by the party “Industry Will Save Georgia”. Also at a
later stage, the Georgia Traditionalist Party and the Alliance for
Georgia joined the work of the EWG. Regrettably, the other extra-parliamentary
opposition parties continued to decline to participate in its work.
49. With the local elections being announced for 30 May 2010,
the EWG agreed to focus on electoral reform relevant for the conduct
of these local elections. After ten months of discussions, consensus
was reached on a number of issues, including the direct election
of the mayor of Tbilisi and the election of the Tbilisi city council on
the basis of a mixed proportional-majoritarian system. In the new
system, 25 seats are allocated on the basis of proportional elections
with a 4% threshold, and another 25 seats are elected in single
mandate constituencies. The authorities originally announced that
the mayor would also be elected in other major cities via direct
elections. However, this initiative was not pursued in the negotiations.
50. In addition to the election system for the city councils (Sakrebulos) and the direct election
of the Tbilisi mayor, the EWG also reached consensus on, inter alia, the election of the
chairperson of the Central Election Commission, the right for the
opposition to appoint the secretaries of the Precinct Election Commissions
and the extension of the deadline for submitting election complaints
and appeals. No consensus could be reached on the issue of the threshold
for the election of the mayor of Tbilisi, with the Alliance for
Georgia insisting on a 50%, later reduced to 45%, threshold, while
the ruling United National Movement was unwilling to accept any threshold
higher than 30%. In the absence of a formal agreement on the reform
package, all issues on which consensus had been reached, as well
as the 30% threshold were introduced in the parliament by the United National
Movement and subsequently adopted. However, due to the late adoption
of these amendments (28 December 2009), the Venice Commission was
not in a position to adopt an opinion on these amendments in time
for it to be taken into account before the local elections.
51. The work of the EWG was suspended after the local elections
were formally called for. Given the positive results of the work
in, and of, the EWG, as well as taking into account the need for
further electoral reform, on several occasions we have called upon
all political forces to reconvene the EWG as soon as possible after
the local elections. The convening of the EWG at an early stage
is important to ensure that the electoral reform can be finalised
well before the upcoming parliamentary and presidential elections
in 2012 and 2013, respectively, and not at the last moment just
before the elections. Last-minute changes to the Election Code have
regrettably been the rule in Georgia and this has given rise each
time to a certain amount of tension in the electoral process itself.
52. On 4 October 2010, eight opposition parties published a joint
proposal for electoral reform and called for negotiations with the
ruling party on the items contained in their proposal. The opposition
parties had all, except one, participated in the local elections
and included the main parliamentary opposition party: the Christian Democratic
Movement.
In their proposal,
they call for a mixed election system where half of the seats are allocated
via a proportional party-list based system. The other half of the
mandates should, according to this proposal, be allocated on the
basis of a multi constituency (regional) proportional system. In
addition, the proposal foresees a central election commission (CEC)
that is reduced in size and composed on a parity basis of representatives
of qualifying parties and calls for the introduction of a biometric
voting system to reduce the possibility for electoral fraud and
manipulation.
53. We strongly welcome that, in line with our recommendations,
on 10 November 2010, the ruling party and the eight opposition parties
came to an agreement on the establishment of an electoral working
group to draft a proposal for the electoral reform. This working
group consists of qualifying
parties
that have agreed to participate in its work. International (non
governmental) organisations are involved as observers in the work
of this group as are local NGOs, on the basis of a formula agreed
between the ruling and opposition parties in the working group.
Moreover, it was agreed that all decisions would be made on the
basis of consensus. We are particularly satisfied with the fact
that, on the initiative of the authorities, the Venice Commission
will be consulted on an ongoing basis regarding the issues discussed
in the EWG.
54. The presidential and parliamentary elections of 2008 as well
as the local elections in 2010 clearly showed that shortcomings
are still present in the election legislation. In addition, due
to the many cycles of amendments to the Election Code, a significant
number of contradictory or ambiguous provisions have been included
in the electoral legislation. It is therefore strongly recommended
that a completely new Election Code, based on the positive experience
of previous elections and the work of the EWG, be drafted and adopted.
An important aspect that this code needs to address is the election
system itself. As outlined above, negotiations on the election system
broke down in the run up to the 2008 parliamentary elections, and
the current system is strongly criticised by the opposition for
being favourable to the ruling United National Movement.
55. On 4 June 2010, the Venice Commission adopted a joint opinion
with
the OSCE/ODIHR on the Georgian Election Code as amended in March
2010. In its opinion, the Venice Commission concluded that the Georgian
Election Code, as amended, is generally conducive to democratic
elections and allows for elections to be conducted in a transparent
and open manner. Moreover, recent amendments addressed a number
of shortcomings that were noted during previous elections. This
is an improvement. However, at the same time, serious concerns remain
regarding a number of provisions that run counter to European norms
and standards, including electoral norms articulated in the European
Convention on Human Rights.
56. According to constitutional provisions, 75 of the 150 members
of the Georgian Parliament are elected in single mandate constituencies.
The election law does not contain any requirements with regard to
the size of these constituencies. Currently these election constituencies
coincide with the historical districts in Georgia which are vastly
different in size, ranging from 4 000 to 140 000 voters per constituency,
which undermines the important principle of the equality of the
vote. According to Council of Europe standards, the maximum deviation
allowed from an equal distribution of voters per single mandate
constituency should seldom exceed 10% and never 15%. This situation
could be remedied by either creating single mandate constituencies
that are largely equal in size or by introducing multi-mandate constituencies.
As a matter of principle, it is important that any electoral boundaries
are created in an impartial and transparent manner.
57. The current election legislation does not allow independent
candidacies, even in the majoritarian races, which seems to defy
the logic behind the majoritarian system. This restriction of the
passive right to vote runs counter to European standards. In addition,
residency requirements for public office are considered to be excessive
by the Venice Commission and OSCE/ODIHR, while the blanket restriction
on the right to vote
of prisoners
runs counter to the case law of the European Court of Human Rights.
58. The Venice Commission notes that it appears from the Election
Code that, under some circumstances, a party or election bloc can
cancel the registration of a candidate after he or she has been
elected.
On several occasions, the Assembly
has reiterated that the principle of an imperative mandate runs
counter to European norms and standards. These provisions should
therefore be brought into line with European standards.
59. The Venice Commission opinion highlights the progress made
with regard to ensuring a balanced and impartial election administration.
This should be welcomed. However, the law still allows parties to
recall their nominees on the election commissions up to fifteen
days before the vote. This could undermine the independence, stability
and impartiality of the election administration and we therefore
recommend that it be changed.
60. The sanctions for violations of campaign finance regulations
include the possibility of cancelling the election results of the
violating party, which seems disproportional and could easily be
misused. In general, regulations regarding the cancellation of the
election results in precincts and districts should be modified to ensure
clarity and consistency and should allow for the possibility of
appealing such decisions to a competent court.
61. A broad agreement between all political forces on an election
system that is seen as impartial and fair by all electoral contestants
will be the key to creating a more inclusive and constructive political
climate. This is an important task for the Electoral Working Group.
All participants in the EWG should engage in these negotiations
without any preconditions and without excluding any possible solution
beforehand. It is important to note that the election system is
affected by constitutional provisions. Although the constitutional
reform process has been finalised, the authorities have repeatedly
assured us that this would not be an obstacle for further constitutional
changes to accommodate any election system the electoral working
group agrees upon.
3.3. Political parties
62. As already mentioned, the ruling United National
Movement has a constitutional majority of 119 out of 150 mandates
in the current parliament. The opposition in Georgia is divided
and fragmented and has not been able to present itself to the voters
as a viable alternative to govern the country. At the same time,
also as a result of its overwhelming majority, the ruling majority
has dictated the political agenda and at times ostracised other
political forces and opinions. This has helped fuel the tense and
polarised political climate. In several previous monitoring reports
to the Assembly, we have therefore stressed the importance of improving
the role, and strengthening the capacity, of the political opposition
as a mechanism to improve political stability and assist democratic
consolidation.
63. It should be noted that this issue, and its importance, have
been recognised by the authorities. In the context of the second
wave of democratic reforms that were announced after the August
2008 war with Russia, a comprehensive package of democratic reforms
was introduced with a view to, inter
alia, strengthening the role of the opposition in the
work of the parliament as well as in state oversight institutions
– including those that oversee the defence and national security
sectors.
64. In order to strengthen the role of the opposition in the work
of the parliament, the opposition has been granted the right to
nominate up to three vice-chairpersons of the parliament, as well
as the right to nominate a vice-chairperson on each parliamentary
committee. Also the procedures to set up a parliamentary faction have
been simplified and the number of MPs to form a faction has been
reduced from 10 to six. In addition, a member of the parliamentary
minority has been elected to the High Council of Justice, which
manages the judiciary, and the number of MPs from the parliamentary
minority has been increased on the Trust Group, which supervises
information in the defence area. A new Law on the Chamber of Control
was adopted which guarantees the independence of the country’s main
auditing body and strengthens the public oversight over budgetary
expenses of the state. In addition, an Anti-Crisis Council was formed
to oversee the post-war reconstruction and the distribution of aid
to the IDPs, as well as to elaborate proposals for further democratic reforms.
This Council is composed of representatives of the government, as
well as members of the parliamentary majority and opposition.
65. The reforms not only sought to strengthen the role of the
parliamentary opposition, but also to strengthen and empower the
extra-parliamentary opposition. Of importance were the amendments
to the organic law of political unions of citizens that, inter alia, restored the budgetary
funding for parties that had refused to take their seats in the
parliament after the May 2008 elections and allowed for the provision
of budgetary funding to six opposition parties in addition to the
nine parties that already received state funding. In addition, the amendments
created a fund to finance a wide range of capacity-building activities
of parties, think tanks and NGOs that are affiliated with political
parties.
66. These reforms, as well as the electoral reform for the local
elections mentioned above, have, at the moment of writing, resulted
in the strengthening of the so-called moderate opposition and have
in general improved the political climate in the country. In our
view, the work of the cross-party group preparing the electoral
reform in the run up to the parliamentary elections, especially
with regard to the election system to be agreed upon, is going to
be crucial for the consolidation and further normalisation of the
democratic political environment in the country.
3.4. Media pluralism
67. Georgia’s media landscape continues to be an example
for the region, but regrettably it has also witnessed some negative
developments. While Georgia’s media legislation is still one of
the most liberal, the overall media environment, especially with
regard to media pluralism, has deteriorated in recent months.
68. In a report published in November 2009, Transparency International
criticised the lack of transparency of ownership and control over
the electronic media and noted that the national regulatory body
is not perceived as independent and needs to be further depoliticised.
In addition, Transparency International expressed its concern with
regard to the independence of the public broadcaster which, in its
opinion, operates more like a state than a public broadcaster. Likewise,
in its 2009 report, the Committee to Protect Journalists expressed its
concern over increased government control of the television broadcasters,
including manipulation and politicisation of television news and
obstruction of opposition-aligned broadcasters. In its annual Press Freedom
index, published on 20 October 2010, Georgia had fallen from the
81st to the 99th place in the ranking of 178 countries. Similarly,
Freedom House lists Georgia as “partly free” in its 2010 report.
69. However, several positive developments have taken place since
our last report. Election observers during the local elections in
2010 noted an improvement in the media environment during the elections,
which was confirmed by the findings in other reports. In that respect,
the balanced coverage of the elections by the public broadcaster
was highlighted
and
welcomed.
70. A special parliamentary state channel has been established
which aims to provide non-stop information on the work of the parliament
and the views of the different political forces on the issues that
are on the agenda. The editorial policy has been developed in consultation
with the opposition, under the aegis of National Democratic Institute,
to ensure that the provision of information is unbiased and equitable
for all political forces. In addition, a number of legislative initiatives
have been taken to increase the participation of opposition parties in
media oversight and regulatory bodies.
71. In the course of the protest actions in April 2009, four members
of the board of trustees of the public broadcaster resigned over
what they considered to be biased coverage of the political events
at that time by the public broadcaster in favour of the authorities.
Following that, the authorities offered, in the framework of the
announced democratic reforms, to allocate half the seats on the
board of trustees of the public broadcaster to the opposition. Subsequently,
on 23 September 2009, the parliament adopted a decision that increased
the number of members of the board of trustees of the public broadcaster
from nine to 15, with the intention that seven of these places would
be filled by persons nominated by the opposition and one by civil
society. In their original proposal, the authorities had also indicated
that they favoured increasing the powers of the board of trustees,
but
no such proposals were tabled in parliament.
72. A group of independent experts on the media and media legislation
has developed a legislative package with the aim of improving the
media environment in the country. The legislative package, which
has reportedly gathered considerable support among experts, addresses
such diverse and important issues as: media ownership, access to
public information, licensing issues, conflict of interest and guidelines
for advertising. The package was presented on 27 October 2010 to
the Public Defender of Georgia, who praised its contents.
73. A persistent problem in Georgia’s media environment is the
lack of transparency of media ownership. On 26 October 2010, the
Chairperson of the Parliament, Mr Davit Bakradze, while stressing
that the current media legislation was in line with international
standards, announced a draft law to make media ownership fully transparent.
Subsequently, on 12 November 2010, the United National Movement
tabled a draft law that would restrict media ownership by offshore
companies to 10% of the shares in any given media outlet that has
a Georgian broadcasting license. After extensive consultations in
the relevant parliamentary committees and in response to recommendations
of the civil society, it was decided to completely abolish the possibilities
for offshore ownership of media outlets that have a Georgian broadcaster’s
license. This new law is a welcome and important improvement in
the media environment. However, it does not address all issues and
concerns that have been brought up in relation to the media environment
in recent times, such as those mentioned in the proposal of the
group of independent media experts. In this respect, the authorities,
in the very near future, should address the issues raised by the
expert group, especially – but not only – as far as the right of
access to information is concerned.
74. While increasing the transparency of ownership and editorial
control of the media is indeed essential in a democratic society,
legislation to this effect can only offer a partial solution, especially
in an increasingly global media market with a plethora of offshore
media holdings. Equally important for the pluralism of the media environment
is the possibility for new groupings to enter the media market relatively
easily. There are a number of initiatives for new broadcasters,
which have reportedly sufficient economic backing. However, no new frequencies
have been made available by the authorities for quite some time.
We would therefore recommend that the authorities organise, as soon
as possible, a fully transparent tender for broadcasting frequencies
with a view to diversifying the media landscape and increasing its
pluralism.
3.5. Local self-government
75. Georgia ratified the European Charter on Local Self-Government
on 8 December 2004, and it came into force on 1 April 2005. Since
then, the authorities have undertaken a number of initiatives with
a view to bringing national legislation into line with the provisions
of the Charter. In this context, a decentralisation strategy was developed
with the assistance of the Council of Europe, as well as United
Nations Development Programme (UNDP) and the European Union. However,
to date, this strategy has not been officially adopted, although government
policies seem to be guided by its provisions. We have been informed
by the authorities that they intend to formally adopt the strategy
in the very near future.
76. The constitutional changes adopted on 15 October 2010 included
a special chapter on local self-government. This chapter was significantly
strengthened with the help of the Venice Commission and Council of
Europe experts. It provides for,
inter
alia, the independence and autonomy of local self-government,
the distinction between own and delegated powers and the possibility
for representatives of local self-government to apply directly to
the constitutional court, which are all welcome developments. Some
areas would, however, need further expansion and clarification,
as outlined in the opinion of the Venice Commission.
77. The reform of the organic law on local self-government has
been pursued with a view to bringing it into line with the Charter.
This reform is taking place in close co-operation with the Council
of Europe. While an overall improvement over the pervious law, a
number of concerns still remain to be addressed, particularly with regard
to,
inter alia, the organisation
of executive power and state supervision over local authorities.
Part of the problem with regard to the executive power is related
to the fact that the
Gamgebeli and
Gamgeoba continue to hold executive
authority despite the fact that they are not elected and therefore
are not accountable to the citizens of the community. Moreover,
the appointment procedures of these persons are ambiguous and potentially
run counter to the provisions of the Charter. In addition, the fact
that the executive power is shared between three people – the
Gamgebeli, the
Gamgeoba as well as Chair of the
Sakrebulo – undermines the transparency
and accountability of the system. These issues run counter to the
provisions of the Charter and it is important that they are addressed
in the near future.
78. At the moment, only the mayor of Tbilisi is directly elected.
Mayors in other municipalities are indirectly elected by the city
councils. Originally, the authorities had also proposed that the
mayors of other large self-governing cities would be directly elected,
but no follow-up was given to this proposal. In view of the positive experience
of the direct election of the mayor of Tbilisi, it is recommended
that the authorities consider the direct election of mayors for
all municipalities and particularly for the large self-governing
cities, as also recommended by the National Association of Local
Authorities in Georgia.
79. While members of the opposition were elected in a significant
number of city councils across the country during the last elections,
their structures are often considered weak and not well organised
at the local level, especially in the smaller municipalities. This
hinders their ability to play a strong role at the local level and
in local self-governance. The strengthening of the structures of
the opposition parties at the local level is a priority in that
respect. In this context, the 2009 Freedom House report notes that,
as a result of the domination of the city councils by the ruling
party, the central government maintains tight control and supervision
over city councils, which undermines the very logic of self-governance.
80. The fiscal basis of local authorities is weak and needs to
be strengthened. While some taxes, such as property taxes, are levied
directly and collected by the municipalities, the cost of collection
of these taxes is often higher than their revenue. As a result,
practically all city councils receive additional funding from the central
budget, which limits their independence. In this respect, the Venice
Commission opinion on the constitutional amendments recommends that
the transfer of relevant financial resources should not only be compulsory
in the case of delegation of competences, but also in the case of
transfer of competences.
In addition, regulations
on local budgets and equalisation formula in the Budget Code and
the local taxes chapter in the Tax Code need to be revised. Co-operation
on these issues has been established between the Georgian authorities
and the Directorate for Democratic Institutions of the Council of
Europe.
81. The authorities have expressed their interest in developing
strong regions, especially in view of the still rather weak municipalities
in the country. There is currently no constitutional arrangement
for regions in Georgia. However, the authorities have nevertheless
started to draft a regional development strategy. A number of organisations
and bodies, including from the Council of Europe, have expressed
some concern about the possible regionalisation of Georgia, in the
light of the still very weak financial and human resources at the
regional and local level. It is feared that the development of strong
regions could undermine the development of local self-governance
at the municipality level. While supporting the principle of regionalisation in
the country, care should be taken by the authorities to ensure that
the regionalisation process is not implemented at the cost of the
development of strong and effective self-government at the local
municipality level.
82. A Regional development Strategy for 2010-2017 was adopted
by the Ministry of Regional Development in June 2010 and a corresponding
action plan was to be adopted at the end of 2010 or at the beginning
2011. Regrettably, despite the close co-operation with the Council
of Europe in the field of local self-government, no consultations
took place on these important strategy documents.
83. The priority given to the economic and social-economic development
of the regions is also evident in the decision of the Georgian Parliament
to split its seat between Tbilisi and Kutaisi, Georgia’s second
largest city, which is situated in western Georgia. According to
this decision, parliamentary sittings will take place in Kutaisi, while
committee meetings will continue to take place in Tbilisi. This
partial relocation of the parliament is foreseen to enter into force
with the convocation of the new parliament after the 2012 parliamentary
elections.
4. Rule of law
4.1. Independence of
the judiciary
84. The strengthening of the independence of the judiciary
has been a long-standing priority of the Georgian authorities and
measures and reforms to this effect have continued unabated in the
reporting period.
85. In 2007 and 2008, a series of constitutional amendments were
passed with the aim of strengthening the independence of the judiciary.
The High Council of Justice, which is responsible, inter alia, for appointment of judges
and disciplinary measures against them, ceased to be an advisory
body of the president and became an independent body composed in
its majority of judges. The president and minister of justice are
no longer members of the High Council of Justice, which is now chaired
by the chairperson of the Supreme Court. The High Council is composed
of the chairperson of the Supreme Court, eight members elected by
the Conference of Judges, two appointed by the president and three
appointed by the parliament. In addition, the chairperson of the
Legal Affairs Committee of the parliament is an ex officio member of the council.
Following constitutional amendments in the framework of the second
wave of democratic reforms, one of the three appointees by the parliament
should come from a faction in parliament that belongs to the opposition.
Thus, in line with European standards, the majority of the members
of the High Council of Justice are judges elected by their peers.
86. In a further effort to strengthen the independence of judges,
the principle of life tenure of judges was introduced by the 2010
constitutional amendments. However, these provisions also introduce
a probationary period of “not more than three years”.
In its opinion on the
recent constitutional amendments, the Venice Commission underlined
that, according to the European Charter on the Statute of Judges,
any trial period – if unavoidable – should be short and the criteria
for not confirming an appointment after a probationary period should
be clearly defined in the law. In addition, the decision to confirm,
or not, an appointment should be taken by an independent authority.
We would therefore suggest that this probationary period is removed,
as recommended by the Venice Commission, or altered in order for
it to be fully in line with European norms.
87. While the appointment of judges is the prerogative of the
High Council of Justice, all judges of the Supreme Court continue
to be appointed by the parliament upon the proposal of the president.
Transferring the right to nominate the judges for the Supreme Court
to the High Council of Justice would better guarantee their independence.
88. The new Criminal Procedure Code, which entered into force
on 1 October 2010, also contains important provisions to strengthen
the independence of the judiciary. The new code introduces the adversarial
principle in the justice system, as well as jury trials for certain
categories of cases. As a result of these and other provisions,
the role of the judge in the court proceedings has changed into
an impartial arbiter between prosecution and defence. These changes
will help to further isolate the judiciary from undue influence
by third parties.
89. In February 2010, amendments were adopted that outlaw ex parte communication with judges concerning
a case and introduce severe sanctions for any infringements. In
addition, the Criminal Code was amended to criminalise interference
in the work of the judiciary by state officials.
90. However, despite all these important reforms and legislative
changes and the many efforts of the authorities to improve the public
perception in this respect, this perception remains that the independence
of the judiciary is limited and that they are open to pressure of
the executive. The public perception of a judiciary that is impartial
and independent is crucial for both public trust in, and the functioning
of, a state of rule of law. In addition, the pressure on the judiciary
and limitations on the independence of the judiciary continue to
be of concern, as is emphasised in the latest report
of the Public Defender of Georgia
and the 2009 Human Rights Report of the US State Department. Further
reforms continue to be necessary in this respect.
4.2. Criminal Procedure
Code
91. In its
Resolution
1603 (2008) on the honouring of obligations and commitments
by Georgia, the Assembly called on the authorities to “adopt the
new comprehensive code of criminal procedure elaborated in co-operation
with the Council of Europe”.
This Criminal Procedure Code
(CPC) was adopted by the parliament in the autumn of 2009 and came
into force on 1 October 2010. It was developed in close co-operation
with the Council of Europe and adopted after an elaborate consultation
process, including with the civil society in Georgia.
92. A key principle of the new code is the introduction of an
adversarial court system where the judge functions as an impartial
arbiter between the prosecution and defence. Moreover, the right
under the previous code of a judge to question witnesses, and thereby
to direct the investigation, has been abolished under the new code.
As a result, the judges no longer have any role in the prosecution,
or defence, in cases before the court, which helps to isolate the
judiciary from undue influence by third parties.
93. As an innovation, the new code introduces jury trials, initially
for serious murder cases. It is hoped that the introduction of the
jury system will further enhance the independence of the judiciary.
94. Several provisions in the new code aim to strengthen the right
to a fair trial and due process. The CPC protects against self-incrimination
and excludes the possibility that a defendant is convicted solely
on the basis of his or her confession. In addition, the new code
grants equal rights to both prosecution and defence in collecting
and presenting evidence before the courts. In addition, strict deadlines
and time frames have been set in the code for court proceedings.
95. In their overall positive assessment of the final draft of
the Criminal Procedure Code, experts of the Directorate General
of Human Rights and Legal Affairs of the Council of Europe raised
some questions with regard to the system of plea bargaining that
is part of the Code, as well as the role of the victim in the criminal proceedings
and the sometimes rather short deadlines foreseen in the law. In
addition, it was highlighted that, especially in an adversarial
system, the role of a defence lawyer is crucial and therefore a
comprehensive system of free legal aid for those in need is essential.
We encourage the authorities to continue, and where necessary strengthen,
their efforts and initiatives in this respect.
4.3. Reform of the prosecution
service
96. In October 2008, the parliament adopted the Law of
Georgia on the Prosecution Service. In addition, in March 2009,
a series of constitutional amendments were adopted that changed
the status of the prosecution service in the institutional framework
of the Georgian state.
97. In 2010, a Public Council was established that participates
in the selection of prosecutors and oversees the application of
ethical standards by the prosecution service. In addition, a pilot
programme for victim assistance centres was started this year and
the Community Prosecution initiative was expanded to cover 15 regions.
98. As a result of these, as well as previous reforms, the prosecution
service generally has been reduced and its efficiency improved.
Prosecutors are generally well paid, and positions in the service
are well sought after by lawyers. As a result, corruption in the
prosecution services, which used to be problematic in the past, has
almost disappeared.
99. The prosecution service remains a powerful institution, but
its general oversight powers about which we expressed concerns in
our previous report,
no
longer exist, which we warmly welcome.
100. The constitutional changes in 2009 transferred the responsibility
for the prosecution service from an independent prosecutor general
to the Minister of Justice, who, at the same time, also has the
role of prosecutor general. Such arrangement is in principle in
line with European norms and standards, if there are sufficient
safeguards to ensure the impartiality and transparency of the prosecution
service and its independence from political interests.
101. In its opinion
on
the 2009 constitutional changes that affected the prosecution service,
the Venice Commission noted that the law on prosecution grants considerable
powers to the minister of justice over the prosecution service.
This could be at variance with the above-mentioned principle. While
the overall management of the prosecution service is in the hands
of the chief prosecutor, the minister has the power to appoint or
dismiss individual prosecutors, to approve the principles of criminal
law policy, as well as to issue normative legal acts and to abolish
illegal orders, instructions and directives by the prosecutors.
102. In its opinion, the Venice Commission recommended that further
provisions be adopted with the aim of explicitly codifying that
the minister should not have the power to act in individual cases,
as is already the case in practise. Moreover, the Venice Commission
expressed its concern that the absence of clear legal criteria for the
dismissal of the chief prosecutor, deputy chief prosecutors, prosecutors
of the autonomous republics and the district prosecutors could undermine
their independence. In addition, the Venice Commission opinion recommends
that the possibility for all prosecutors to appeal against a decision
to dismiss them before a court should be explicitly provided for
by law. We were informed by the Georgian authorities that this possibility
is already provided for by the Code on Administrative Procedure
of Georgia.
103. The Law on the Prosecution Service gives the power to the
minister of justice to conduct the actual prosecution of, inter alia, the President of Georgia,
members of parliament, judges, members of the government, the public
defender, prosecutors and high-ranking military officers. These
powers are problematic and of concern as the minister could potentially
obstruct or initiate prosecutions based on political motivations. We
would strongly recommend that these powers of the minister of justice
be abolished through amendments to the Law on the Prosecution Service.
4.4. Administration
of justice
104. Despite the many positive reforms in the justice
area, the issue of the administration of justice has increasingly
become a point of concern and of public debate. Many interlocutors
we met during our visits, including the Public Defender of Georgia,
have expressed concern with regard to this question. Problems in this
respect have, at times, led to the uneven application of justice
which undermines the principle of a fair trial as guaranteed by
Article 6 of the European Convention on Human Rights. The main difficulties
noted are, inter alia, the
lack of, or inadequate, reasoning given in court decisions, obstacles
to the right of defence, the use of standardised templates for decisions
by the courts, as well as court decisions based on meagre or contradictory
evidence.
105. The problems in the administration of justice are compounded
by the fact that the justice system is still biased in favour of
the prosecution, which challenges the principle of the presumption
of innocence until proven guilty. In response to allegations that
persons have been prosecuted on non-existent or fabricated evidence, the
National Democratic Institute has started a trial monitoring project
for those cases where people have been charged for possession of
illegal weapon or drugs, as these charges were highlighted as problematic
by several human rights organisations. While this trial monitoring
project is still ongoing, preliminary results show that there is
a significant number of cases where persons are convicted only on
the basis of police testimony, without corroborating evidence. In
a number of cases, the prosecution was reportedly not able to produce
the weapon or drugs that were at the basis of the charges. We would
like to note that the Assembly, on other occasions, has expressed
its view that convictions based solely on police evidence without
corroborating evidence are unacceptable, in line with the case law
of the European Court of Human Rights.
106. The fact that the justice system in Georgia is still very
much “prosecution driven” is also clear from the statistics given
to us by the Chair of the Supreme Court. These statistics show that
the conviction rate in Georgia is 98%, 75% of which are based on
plea-bargain agreements. The very high percentage of plea bargain
agreements is, in our view, also an indication that public trust
in the fairness of the justice system is still low. At the same
time, Georgian law allows individuals to appeal their conviction
and sentencing, even in cases where this has been based on a plea-bargain
agreement, and a number of provisions with a view to safeguarding
against the possible misuse of the plea-bargain procedure have been
adopted in the new Criminal Procedure Code.
107. We urge the Georgian authorities to address the problems with
the administration of justice indicated by several national and
international bodies and organisations, including by the Georgian
Public Defender. The problems outlined here negatively affect the
right to a fair trial and public trust in the fairness and independence of
the justice system. This in turn could undermine the considerable
progress made by the authorities in the field of judicial reform
and the strengthening of the independence of the judiciary.
4.5. Fight against corruption
108. Since the Rose Revolution, the fight against corruption
is considered to be a Georgian success story and low-level corruption
has been practically eradicated. At the same time, we note that
allegations of high-level corruption continue to persist and many
NGOs still consider political corruption to be a problem in Georgia. Further
efforts to counter this are therefore needed.
109. We welcome that, in January 2009, the Anti-Corruption Council,
which includes civil society groups, was established under the Ministry
of Justice and given the task of updating and further developing
the government’s anti-corruption strategy. While this strategy is
generally very good, some interlocutors noted that more efforts
need to be deployed to inform the public of this strategy and to
enforce its provisions in practice.
110. The latest compliance report for Georgia of the Group of States
against Corruption (GRECO) was adopted in May 2009. In this compliance
report, GRECO welcomes the adoption of several legislative initiatives to
address previous GRECO recommendations. In the same report, GRECO
also notes that the Georgian authorities “now face the challenging
task of ensuring that existing legislation is vigorously implemented
in practice”.
111. It should be noted that the shortcomings mentioned do not
necessarily imply that a climate of impunity for high-level corruption
exists in Georgia. On a number of occasions, the prosecutor general
has initiated investigations into allegations of corruption, including
by high-ranking officials, and a number of high-level political
figures have been convicted. At the same time, several interlocutors
indicated to us that, in their view, these investigations are not
always initiated or conducted in a consistent manner when high-level
corruption is alleged.
112. On 26 October 2010, Transparency International released its
2010 Corruption Perception index. In this index, which has a scale
from 0 (highly corrupt) to 10 (no corruption) Georgia ranked 68th
with a score of 3.8. According to Transparency International, a
number of issues remain to be addressed in this respect, such as the
need for further judicial reform, better protection of property
rights, lack of transparency in public spending, high-level corruption
as well as a low level of civil society involvement in the execution
of public policy.
113. In a welcome development, the parliament adopted, on 27 March
2009, a series of amendments to the Law on Conflict of Interest
and Corruption in Public Service. These amendments, which were developed
in close co-operation with the Council of Europe, clearly regulate
the question of gifts received by civil servants of all levels and
offer protection for whistleblowers. In addition, a new Law on the
Chamber of Control was adopted in December 2008 which gives the
chamber the right to financially audit local authorities and state enterprises.
114. Further amendments to the Law on Public Service have been
developed which will introduce a code of conduct for civil service
based on the model code as adopted by the Committee of Ministers
of the Council of Europe. The Georgian authorities have informed
us that these amendments were passed on 12 June 2009. Moreover,
as already mentioned in the chapter on media pluralism, we would
like to recommend that the Georgian authorities now adopt a proper
law on access to public information. Such a law can be an important tool
in the fight against corruption.
4.6. Execution of court
decisions
115. In its 7th report on the Implementation of judgments
of the European Court of Human Rights,
the Parliamentary
Assembly’s Committee on Legal Affairs and Human Rights notes that
the main problems in Georgia in this context are the lack of new
investigations into ill-treatment by the police and inadequate medical treatment
in prisons.
116. In relation to the lack of new investigations into ill-treatment
by the police, it is underlined that investigations should not only
commence, but also be effective as required by the Court. In that
respect, investigations are often found to have failed to seek independent
medical expertise, interview all parties and there is a lack of
expediency in opening a case. In this context, we welcome that the
New Criminal Procedure Code allows the re-opening of cases based
on decisions of the European Court of Human Rights.
117. With regard to inadequate medical treatment in prisons, the
report of the Committee on Legal Affairs and Human Rights notes
that action has been undertaken by the Georgian authorities but
that this issue remains under scrutiny by the Committee of Ministers
until a permanent solution has been found.
5. Human rights
5.1. Prison conditions
and police reforms
118. The Georgian authorities have adopted an elaborate
Prison Reform Strategy and Action plan to address the conditions
in penitentiary institutions. However, the overcrowding of, and
living conditions in, prisons continue to be a point of concern,
despite the many efforts of the Georgian authorities in that respect.
A new “mega-prison” has been built and will be opened shortly. This
new, very large prison complex has been developed with the assistance
of the international community and adheres to European standards
for prisons. However, as a result of the continuous growth of the
prison population, many old prisons remain in use, the living and
sanitary conditions of which are of concern as they are far below
European standards. The European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment (CPT) reported that
the conditions in old facilities are considered to be inhumane and
life-threatening. A new comprehensive strategy to liberalise the
prison system and parole conditions is therefore planned by the
authorities to address this problem.
119. While considerable progress has been made in this respect,
problems still remain with regard to the ill-treatment of persons
in prisons, as well as at the time of their arrest. The previous
public defender reported that victims are at times afraid to speak
up and file official complaints out of fear of retribution. Addressing
this issue should be a priority for the Georgian authorities, to
underscore that no climate of impunity for ill-treatment in detention
centres and prisons will be tolerated.
120. In order to underscore the resolve of the authorities to fight
crime, very strict, and in our view somewhat excessive mandatory
sentences are prescribed in the law, even for minor crimes. In addition,
sentences are served consecutively and not concurrently, as is the
case in many other European countries. As a result, Georgia has
proportionally one of the largest prison populations in the Council
of Europe area, which continues to grow by an average of 200 persons
per month. This growth is hindering the efforts of the government
to bring the conditions in all prisons up to European standards.
The authorities have tried to address the growing prison population
with parole measures and pardons, but the work of the State Parole
Commission has been criticised, including by the Public Defender
of Georgia, as chaotic and ad hoc. In October 2010 a new Code of Imprisonment
entered into force that established a new system of parole boards
that were drafted taking into account Council of Europe norms. In
our view, it would be important for the Georgian legislator to revisit
the mandatory sentencing guidelines, consider alternative sentencing
as a means to reduce the growth in prison population and develop
improved guidelines for early release, especially for minor crimes.
121. Considerable progress has been made with the reform of the
police, transforming it from a strict instrument of force into a
societal service organisation. A key aspect of these reforms has
been to make the police forces more accountable and transparent,
going as far as the construction of completely transparent police
stations. As a result, corruption in the police force has been almost
completely eradicated.
122. A point of concern with regard to the law-enforcement services
are the protracted and ineffective investigations, some of which
have been going on for more than ten years without producing any
results. This may be partly explained by a remnant of the Soviet
mentality whereby the police do not want to close unsuccessful cases
in order to maintain a statistically high success rate of investigations.
However, these protracted investigations feed allegations and concerns
about uneven investigations and lack of willingness of the police
to investigate politically sensitive cases. In that respect, it
should be noted that neither the attacks on protesters during the
November 2007 demonstrations, nor those during the demonstrations
of April 2009, have been concluded or led to any charges being brought.
These protracted investigations should be addressed as a matter
of priority by the authorities.
123. Excessive use of force and torture by law-enforcement personnel,
which used to be a systemic problem several years ago, has disappeared,
although isolated cases regrettably still occur. Excessive use of
force by the police during large protest events remains a problem,
which was illustrated during the spring 2009 protest actions. While
the prosecutor general has started a number of investigations into
excessive use of force by members of the law-enforcement agencies,
several NGOs, including such reputable ones as Human Rights Watch,
allege that, in a number of cases, investigations have not been
conducted systematically or convictions have not been pursued. This
should be addressed in order to ensure that this does not lead to
a climate of impunity among law-enforcement officials.
5.2. Freedom of assembly
124. In response to the prolonged, and often tense, protest
rallies and road blockades organised by the opposition in the spring
and early summer of 2009, the Georgian Parliament adopted, in July
2009, a set of amendments to the Law on Assembly and Manifestations.
These amendments foresaw, inter alia,
a blanket prohibition of demonstrations within 20 metres of the
entrances of a considerable number of public buildings; the prohibition
to block traffic; the prohibition to call for the forced change
of the constitutional order or territorial integrity of the country;
as well as the automatic termination of assemblies by the law-enforcement
agencies in the event of the law being violated in the course of
the demonstration.
125. On 14 August 2010, the Venice Commission was asked to assess
these amendments. In its interim opinion,
the
Venice Commission found that a number of the new provisions could
be excessive and at variance with the European Convention on Human
Rights and the case law of the Court. Based on the recommendations
of the Venice Commission, the Georgian authorities prepared further
amendments to the law. On 1 March 2010, these amendments were presented
to the Venice Commission, which adopted its opinion
on
13 March 2010. We welcome this constructive co-operation between
the authorities and the Venice Commission in addressing the shortcomings
encountered in the amendments.
126. The original amendments established a blanket prohibition
on manifestations within 20 metres of the entrances of a large number
of public buildings as well as a prohibition to block traffic in
the course of a demonstration. The Venice Commission found this
blanket prohibition excessive and potentially disproportionate,
as no criteria similar to those mentioned in Article 11, paragraph
2, of the European Convention on Human Rights, were given in the
law on the basis of which the right to freedom of assembly could
be restricted by the authorities. The March 2010 amendments generally
address this concern of the Venice Commission, although they do
not fully lift the blanket restriction for all public buildings.
However, in a welcome development,
the prohibition for demonstrations to block traffic was removed
from the law.
127. The July 2009 amendments prohibited manifestations that called
for “subversion or forced change of the constitutional order of
Georgia, infringement of the independence or territorial integrity
of the country”
or appeals “which constitute propaganda
of war and violence and trigger a national, ethnical, religious
or social confrontation”. The Venice Commission noted that, in line
with European standards, such calls can only be a legitimate reason
to prohibit a manifestation if the calls are for a violent overthrow
of the constitutional order and if such action is imminent. We welcome
that language to that extent was subsequently added to the law in the
March 2010 amendments.
128. The 2009 amendments to the law on manifestations provided
for the immediate termination of a demonstration in the event of
the law being violated during a demonstration. The recently amended
law now provides for a period – albeit very short – for the organisers
to stop the violations of the law before the manifestation is terminated.
However, these provisions still leave too little scope for discretion
on deciding when a demonstration should be terminated. Whilst being
a step forward in comparison to the original amendments, these provisions
could still excessively restrict the freedom of assembly. We encourage
the authorities to continue their constructive co-operation with
the Venice Commission in addressing this and other remaining issues
mentioned in the opinion.
5.3. National minorities
129. Georgia is a multi-ethnic state with more than 16%
of its population
belonging to ethnic minorities.
The largest ethnic minority groups are the Armenians, Azeris, Russians,
Abkhaz and Ossetians. As result of being the most multi-ethnic country
in the Caucasus, minority relations and the implementation of a
coherent policy addressing minority issues are important priorities
for the current authorities.
130. Relations with national minorities and their integration in
Georgian society have been a priority for the current administration.
Despite the many welcome initiatives by the authorities to address
the integration of national minorities in Georgian society, there
are still a number of outstanding issues. These include,
inter alia:
- further improving the participation of national minorities
in public life;
- further improving the system of language education for
national minorities including the teaching of minority languages
and Georgian as a second language;
- strengthening measures against religious intolerance and
providing for a proper legal status for minority religions.
131. The issue of national minorities is sensitive, especially
in the light of the 2008 war with Russia. However, while minority
issues have been affected, and progress overshadowed, by the war,
the authorities have continued to implement wide-ranging measures
to improve the situation of national minorities in Georgia.
132. According to the European Commission against Racism and Intolerance
(ECRI), racism against national minorities exists in Georgia, which
underscores the need for ongoing efforts in this respect. The report
also notes allegations that the August 2008 conflict in South Ossetia
and Abkhazia has led to some racist discourse, exacerbated by propaganda
language, against Russians, South Ossetians and Abkhazians. There
is a general lack of knowledge among minorities about the existing
provisions in law against racist discourse and acts. This may partly
explain a general lack of confidence in the judicial system by persons
belonging to national minorities.
133. There are approximately 1 500 Roma living in Georgia, who
are reported to suffer from marginalisation, discrimination and
poverty. Some do not possess identification documents, which limits
their access to health care and other services provided by the state.
The government has attempted to address some of the discrimination
against the Roma by providing training to the police force, but
further steps are necessary to prevent the Roma population from
becoming more marginalised.
134. Georgia ratified the Framework Convention for the Protection
of National Minorities on 22 December 2005. The Advisory Committee,
which monitors the implementation of the Charter in the signatory
states, adopted its first opinion on 19 March 2009.
Since
that time, there have been a number of positive developments, such
as the adoption, in April 2009, of the National Concept for Tolerance
and Integration, which provides a framework for policies on national
minorities. In addition, an inter-agency commission on minority
issues (headed by the Ministry for Reintegration) has been established
to provide support in the co-ordination of policies on national
minorities. The commission is responsible for implementing the National Concept
for Tolerance and Integration.
135. As part of its accession commitments to the Council of Europe,
Georgia agreed to sign the European Charter for Regional or Minority
Languages within one year of joining. More than ten years after
its accession, Georgia has yet to fulfil this commitment. According
to the authorities, this is due to the extremely sensitive nature
of this issue and the fear that a debate on minority languages could
lead to inter-ethnic tensions and instability. However, we believe
that there are many outstanding issues in Georgia, which the Charter
could help to resolve if it were signed, including improving integration
of the Armenians, Azeris and other national minorities into the
public sphere. We therefore call on the authorities to fulfil this
accession commitment without further delay.
136. When acceding to the Council of Europe, Georgia committed
itself to adopt a comprehensive law on national minorities. This
commitment is still outstanding. For their part, the Georgian authorities
have indicated that they would prefer to address minority issues
in the different relevant laws that concern issues that are of importance
for the status and protection of minorities instead of adopting
a single specific law on national minorities. The reasons for this
are similar to those given regarding their reluctance to sign the
European Charter for Regional or Minority Languages. At the same
time, the Georgian authorities are committed to ensuring that the
provisions in the relevant laws are in line with European standards
and, foremost, the Charter.
137. We have consulted with the secretariat of the Advisory Committee
of the Framework Convention on this issue. According to the secretariat,
the Advisory Committee generally takes the view that the basis for
an assessment of countries’ fulfilment of the Charter’s provisions
should be the combined legal framework. The question whether this
framework is contained in one or several specific laws is of no
importance. In this situation, in our view, Georgia could therefore
be seen as having fulfilled its accession commitment to establish a
law on minorities, even if the provisions are contained in several
specialised laws. However, this can only be the case if the Advisory
Committee, in its next report foreseen for 2012, considers that
the legal framework for the protection of national minorities is
adequate and in line with European standards, including the Framework Convention.
In the meanwhile, we would urge the Georgian authorities to continue
to address the issues raised in the last Advisory Committee report.
138. The issue of religious tolerance and the situation and status
of other faiths in Georgia is an important subject and still a point
of concern. The Georgian Orthodox Church is the main religion in
Georgia. The Church is protected as both a church and a public entity.
Other religious denominations and groups can only register as non-governmental
organisations and non-profit-making private-law associations. Therefore,
they are not able to enjoy the same conditions in respect of the
exercise of their religious activities. The absence of a proper legal
status has resulted in a number of problems, including in regard
to property rights, and is unsatisfactory. We call on the Georgian
authorities to adopt a specific law on religion that would give
proper legal status and protection to faiths other than the Georgian
Orthodox Church.
139. There are a number of outstanding issues regarding the return
of historic religious properties confiscated during the Soviet era.
The church buildings claimed by the Georgian Orthodox Church have
generally been returned or are in the process of being returned.
However, the return process is being delayed for other religious
denominations. The issue is not limited to the Armenian churches,
whose situation has been more extensively reported on, since other
religious denominations, including the Roman Catholic Church, the Evangelical
Lutheran Church and the Jewish Community have complained of similar
problems.
140. Jehovah’s Witnesses have been able to register as Jehovah’s
Witnesses
since
December 2008 and do not face any legal problems in importing literature
or carrying out their activities. However, prejudice still exists
in society and acts of violence, including vandalism of their places
of worship, still occur. These deplorable acts do not seem to be
diligently investigated and prosecuted by police and the prosecution
service. In addition, Jehovah’s Witnesses report difficulties in
renting space for their places of worship, especially in Tbilisi,
as well as the fact that the construction of places of worship is
hindered.
141. While the authorities strive to ensure an adequate legal framework
for lesbian, gay, bisexual and transgendered (LGBT) people, and
discrimination, including in the working place, on the basis of
sexual orientation is prohibited, same-sex households do not yet
have the same level of legal protection as opposite sex households.
At the same time, LGBT people continue to face prejudice and intolerance
in the context of Georgia’s generally conservative society. Of concern
is the openly homophobic discourse, without any political or legal
backlash, of some political and civil society actors, such as for
instance by the People’s Orthodox Movement that was founded just
before the May municipal elections. In a welcome signal that hate
speech is not acceptable, the Council on Media Ethics ruled that
a journalist had violated the Charter on Journalism when he failed
to adequately respond to homophobic remarks by the leader of the
People’s Orthodox Movement during a talk show debate. Regrettably,
the police are reportedly reluctant to intervene against hate speech
and other acts against LGBT people. Reportedly, when they do intervene,
criminal cases are hardly ever brought against the perpetrators.
5.4. Repatriation of
the Meskhetian population
142. When acceding to the Council of Europe, Georgia committed
itself to repatriating the Meskhetian population before the end
of 2011. In 2007, Georgia belatedly adopted a Law on the repatriation
of persons forcefully expelled from Georgia by the former Soviet
Union in the 1940s. The law initiated the process of repatriation
by setting out the terms under which Meskhetians could apply for
repatriation.
143. A series of co-ordination meetings were held with representatives
of international organisations concerned with the repatriation process
(European Union, OSCE, OSCE High Commissioner on National Minorities,
United Nations High Commissioner for Refugees, International Organization
for Migration, European Centre for Minority Issues and the Council
of Europe) in order to respond to concerns that were raised regarding
the manner in which the repatriation process was managed. The most
recent meeting took place in March 2010 in Tbilisi. This meeting
resulted in the Georgian authorities making a number of commitments
to address some of the pressing concerns that were raised.
144. Originally, applications for repatriation were to be submitted
by 1 January 2009, which gave people very little time to fill in
forms and gather documentation, especially as forms were not distributed
until quite late in 2008. The deadline was postponed twice until
a final deadline for submitting papers was set at 1 January 2010. Applicants
whose documentation contained errors have been granted a further
extension of four months to rectify them. The authorities have publicly
ruled out any further extension of the deadline for applications
after these dates.
145. According to figures provided by the Georgian authorities,
the number of applications received by the deadline was 5 806, the
majority of which had come from Azerbaijan. In total, 64 applications
have been received from persons in the Russian Federation. The figure
is much lower than was anticipated by Meskhetian organisations.
However, Meskhetian organisations claim that approximately 2 000
applications have been sent in Russian. This could cause a problem
because, according to the law, all applications had to be submitted
in Georgian or English. However, following amendments to the law,
all supporting documents can be provided in any language in which
they are available. Georgian authorities report that no applications
have been refused on the basis of the language in which they were
submitted.
146. The first decisions on repatriation are expected at the end
of 2011. The authorities are considering giving responses sooner
but will not commit to this. There are some questions with regard
to the actual resettlement process for those who successfully apply.
The law currently makes no provision for a strategy of preparation and
support for the reintegration process or for any financial commitment
by the state. The Georgian authorities have indicated that they
will devise this strategy once they know how many people are likely
to be repatriated, but a concrete plan is not expected to be produced
until 2011.
147. The Meskhetian population was originally expelled from the
Samstskhe region, which is now predominantly inhabited by ethnic
Armenians. There is a great deal of hostility amongst this community
towards the idea of repatriation and this problem must be addressed.
The government has discussed initiating an awareness campaign, possibly
with support from the international community, directed at both
the future returnees and the Georgian population, to avoid possible
misunderstandings and tensions.
148. There were fears that those deciding to return to Georgia
could become stateless. In response, the Georgian Government adopted,
in March 2010, a Decree on Granting Citizenship of Georgia through Simplified
Procedure to Individuals Enjoying Repatriate Status, which excludes
the possibility of any individual with repatriate status being left
without citizenship.
149. Meskhetian organisations reported to us that the number of
applications received by the Georgian authorities represents only
a small percentage of the number of Meskhetians that wish to return
to Georgia. In their view, the reasons for the low number of applications
are the result of, inter alia,
unfamiliarity with the application process and administrative requirements
which were difficult to comply with. In addition, these organisations
informed us that Meskhetians who attempt to immigrate to Georgia
outside the repatriation procedure are facing more barriers than
non-Meskhetian immigrants from the same countries.
150. The willingness of the Georgian authorities to resolve the
Meskhetian issue in line with its commitments to the Council of
Europe should be welcomed. In this respect, we would like to encourage
the Georgian authorities to develop a repatriation and reintegration
strategy without further delay. Moreover, we encourage the authorities
to show maximum flexibility with regard to formalities and paperwork
to avoid any application being refused on technical grounds only.
In addition, we would like to suggest that the Georgian authorities conduct
a proper evaluation once the application process has been finalised,
in order to assess whether it has been successful in contacting
all Meskhetian and other deported persons that would be eligible
for repatriation and wishing to apply.
5.5. Public defender
151. The role and work of the institution of the public
defender – ombudsperson – have become increasingly important and
visible in Georgia. The mandate of the previous Public Defender,
Sozar Subari, who occasionally had tense relations with the authorities,
ended in September 2009. He was replaced by George Tugushi, who is
a member of the European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment (CPT).
152. On 16 July 2009, the parliament adopted amendments to the
Law on the Public Defender, to reflect this institution’s designation
as National Preventive Mechanism under the United Nations Optional
Protocol to the Convention against Torture and other Cruel, Inhuman
or Degrading Treatment or Punishment. These changes to the Law on
the Public Defender increased the rights and the responsibilities
of this institution to monitor the conditions in prisons and other
detention facilities.
5.6. Alleged politically
motivated detentions
153. Allegations are increasingly made, mainly by opposition
parties, as well as some NGOs, that opposition figures and civil
society representatives critical of the government, as well as their
families, are targeted by politically motivated criminal investigations
and that political pressure and motivations have influenced the charges
brought and the sentences passed. They therefore claim that political
exist prisonersde factoin Georgia.
154. While we cannot comment on the merits of the individual allegations
and consider that a judgment about such alleged human rights violations
is foremost a prerogative of the European Court of Human Rights,
we note that allegations of the existence of political prisoners
are increasingly used as a political strategy by political parties
in several countries.
155. On the other hand, we have already highlighted our concerns
regarding the problems with regard to the administration of justice
in Georgia, which, in our opinion, are related. The borderline between
uneven justice and selective justice is vague. The problems in the
administration of justice could easily give credence, especially
in the current charged political environment, to the allegations
that political motivations can influence the application of justice
in Georgia. We therefore call on the authorities to address problems
in the administration of justice that give rise to such allegations
and, at the same time, to investigate fully, and remedy where necessary,
any alleged miscarriage of justice.
5.7. Human rights issues
in relation to the consequences of the war in 2008
156. The consequences of the war are formally part of
a separate mandate, and for that reason are beyond the scope of
this report. However, it would be impossible for this report not
to pay attention to human rights concerns as a consequence of the
war and the occupation, and subsequent recognition of independence,
of the breakaway regions of South Ossetia and Abkhazia.
157. As mentioned in several Assembly reports and resolutions on
the war between Russia and Georgia, and also stated in the report
of the Independent International Fact-Finding Mission on the Conflict
in Georgia, violations of international human rights and humanitarian
law were committed by both sides during the war. In addition, violations,
including ethnic cleansing, continued in areas under Russian de
facto control in the weeks after the war. Under international law,
it is the legal responsibility of each state to investigate and
prosecute violations of human rights and international humanitarian
law that are allegedly committed by persons under its jurisdiction.
The investigation initiated by the Georgian Prosecutor’s Office
into violations committed by all sides during and after the conflict
seems to have been stalled on the grounds that the investigation
services lack access to the former conflict region. We deeply regret
this lack of investigation and we find it hard to accept that human
rights violations of such severity go unpunished.
158. The right of freedom of movement is violated on a large scale
since the occupation of both breakaway regions. The crossing by
civilians from both sides of the administrative boundary line has
become nearly impossible in most places and has become increasingly
more difficult in the Akhalgori region,
since
Russian Federal Security Service (FSB) border guards have taken
over the control of the administrative boundary line in the breakaway
regions.
159. The right of return of internally displaced persons (IDPs)
from the 2008 conflict, as well as from the earlier conflicts in
the 1990s, continues to be violated. In his latest report on “Human
rights issues following the August 2008 armed conflict in Georgia”,
the
Commissioner for Human Rights, Mr Thomas Hammarberg, expressed his
deep regret that the South Ossetian de facto authorities, despite
earlier promises, clearly do not permit the return of ethnic Georgian
IDPs to their place of residence in the areas under their de facto
control. Similarly, as mentioned in
Doc. 12012, the
de facto Abkhaz authorities have
indicated that they would allow a return of IDPs to the Gali district,
but that returns beyond that area would not be permitted.
160. In total, approximately 22 000 IDPs as a result of the 2008
conflict cannot return to their place of residence. In addition,
there are about 230 000 IDPs from the previous conflicts in the
early 1990’s. The Georgian authorities have made great efforts in
recent years to alleviate the plight of these IDPs and to improve their
overall living conditions, especially as far as accommodation is
concerned. This will necessarily imply the relocation of a number
of IDPs, especially those currently accommodated in collective centres.
However, the manner in which this relocation is carried out is a
matter of concern. Between 26 July and 16 August 2010, more than
5 000 IDPs were evicted from their temporary places of residence
in a manner which, according to international organisations as well
as the Georgian Public Defender, was at variance with international standards
and Georgian law. Only after repeated interventions by these actors
were the evictions halted in the end of August 2010. We call on
the Georgian authorities to ensure that any relocation of IDPs takes
place in full compliance with international standards and Georgian
law and that the recommendations made by the UNHCR and the Georgian
Public Defender are fully taken into account in that respect.
6. Conclusions
161. Despite the consequences of the August 2008 war with
Russia, and the political standoff that has plagued the political
environment during much of the reporting period, the Georgian authorities
have made great efforts, and achieved considerable progress, in
honouring their obligations and commitments to the Council of Europe.
162. Georgia still has to implement some of its formal accession
commitments. In addition, concerns remain with regard to the independence
of the judiciary and the effective and fair administration of justice.
Despite considerable progress in the field of strengthening of democratic
institutions, further democratic reforms to resolve the charged
political climate are still necessary, and the robustness of the
democratic system will need to be confirmed in the upcoming parliamentary
and presidential elections. We therefore recommend that the Assembly
continue the monitoring procedure in respect of Georgia.