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Resolution 1801 (2011)
The honouring of obligations and commitments by Georgia
1. The Parliamentary Assembly welcomes
the significant efforts made by the Georgian authorities in honouring
their obligations and remaining commitments to the Council of Europe.
Considerable progress has been made since the last monitoring report
adopted in 2008, despite the significant impact and the consequences
of the war with Russia in August 2008.
2. With regard to the political environment in Georgia, the Assembly
welcomes the initiatives taken by the authorities to overcome the
polarisation and confrontational atmosphere that has regrettably
dominated the political landscape, and to strengthen the position
and role of the opposition. The Assembly reaffirms its belief that
the existence of a vibrant, pluralist and involved opposition is
essential for the political stability and democratic consolidation
of the country.
3. The Assembly considers that the local elections held on 30
May 2010 were an important step for the creation of a more diverse
and constructive political environment in the country. Furthermore,
the upcoming presidential and parliamentary elections will be the
litmus test for the consolidation of a mature, more inclusive and
robust democratic system in Georgia. In relation to the electoral
process, the Assembly:
3.1. welcomes
the re-establishment of the Electoral Working Group aimed at reaching
a wide consensus on the electoral reforms necessary for the upcoming
parliamentary and presidential elections and calls upon all political
parties that have not done so to join this working group and to
participate in it in good faith;
3.2. considers that the Electoral Working Group should not
only focus on the administration of the elections but also agree
on an election system that can muster the full trust of all electoral
stakeholders;
3.3. strongly recommends the adoption of an entirely new electoral
code that addresses the shortcomings noted by, inter alia, the European Commission
for Democracy through Law (Venice Commission) and the Assembly,
in particular with regard to the equality of the vote, the delimitation
of electoral districts and the abolition of the prohibition of individual
candidacies;
3.4. urges all parties to ensure that the electoral system
is agreed upon, and a new electoral code adopted well before the
upcoming parliamentary elections are announced;
3.5. welcomes the willingness expressed by the authorities
and the ruling party to amend the constitution, if necessary, so
as to implement the amendments agreed to by the Electoral Working Group.
4. The Assembly welcomes the adoption of constitutional amendments
on 15 October 2010, which, inter alia, better
guarantee the independence of the judiciary, substantially strengthen
the role and powers of the parliament and provide for a better and
more comprehensive system of checks and balances between the different
branches of power. However, the Assembly considers that a number
of provisions should still be further clarified or improved to avoid
any possible systemic tensions. It therefore urges the Georgian
authorities to implement the recommendations of the Venice Commission.
In particular, the Assembly recommends that:
4.1. the procedure for adopting a motion of no confidence in
the government be revised in line with Venice Commission recommendations,
with a view to strengthening the powers of the parliament in this procedure;
4.2. the role of the president in negotiating international
treaties be clarified, so as to avoid possible tensions between
the government and the president;
4.3. the role of the parliament in budgetary matters be strengthened.
5. The Assembly considers that the media environment in Georgia
is still an example for the region, but points out that further
efforts remain necessary to improve its transparency and pluralism.
In this respect, the Assembly:
5.1. welcomes
the draft law on transparency of media ownership, passed in a first
reading on 7 December 2010, and expects that this proposed law will
now be adopted without further delay;
5.2. considers that the possibility for new groups to enter
the media market is essential for media pluralism and therefore
recommends that the competent authorities make additional broadcasting frequencies
available for public tender;
5.3. calls on the authorities to evaluate, with a view to improving
its implementation, the legal framework for access to public information;
5.4. welcomes the establishment of a special political television
channel under the Georgian Public Broadcaster (GPB) and the increase
in members nominated by the opposition on the board of trustees of
the public broadcaster.
6. With respect to the strengthening of local self-government,
the Assembly:
6.1. welcomes the
recent constitutional amendments regarding local self-government
and urges the authorities to implement fully the recommendations
of the Venice Commission, in particular those relating to the organisation
of executive power and state supervision over local authorities;
6.2. takes note of the decentralisation strategy developed
with the assistance of the Council of Europe, the United Nations
Development Programme (UNDP) and the European Commission, and expects
that this strategy will now be formally adopted by the government;
6.3. recommends that the fiscal basis of local authorities
be improved to strengthen their overall independence;
6.4. supports the principle of regionalisation, which is a
stated objective of the authorities, but considers that such a regionalisation
process should not be implemented at the cost of the development of
strong and effective self-government at the municipal level.
7. In the light of the positive experience of the direct election
of the Tbilisi mayor, the Assembly recommends that the authorities
study the possibility of introducing direct elections for the mayors
of all municipalities or at least of the other large self-governing
cities.
8. The Assembly welcomes the unabated efforts by the authorities
to strengthen the independence of the judiciary, which is evident
from the many reforms that have continued to be implemented in recent
years. At the same time, it is concerned by the reported low level
of public trust in the impartiality and independence of the judiciary
and recommends that the authorities continue their efforts to further
increase the level of public trust. It therefore considers that
ongoing efforts to strengthen the independence of the judiciary
should be vigorously pursued. In this regard, the Assembly:
8.1. welcomes the constitutional
changes that have strengthened the independence of the High Council
of Justice and abolished the role of the president in the nomination
of all but the Supreme Court judges. In order to better guarantee
the independence of the Supreme Court, the Assembly recommends that
the prerogative of their nomination also be transferred from the
president to the High Council of Justice;
8.2. welcomes the introduction of life tenure for judges by
the 2010 constitutional amendments, but suggests that the authorities
consider removing or shortening the probationary period for judges
in line with European norms.
9. The Assembly welcomes the entry into force of the new Code
of Criminal Procedure, which has been a long-standing recommendation
of the Assembly. It notes with satisfaction that this new code will, inter alia, significantly strengthen
the independence of the judiciary. Given the introduction of an
adversarial justice system, the Assembly strongly recommends that
an adequately funded and comprehensive system of free legal aid
for those in financial need be established on the basis of the existing
initiatives.
10. The Assembly also welcomes the entry into force of the Law
on the Prosecution Service. It is, however, concerned about the
considerable powers given therein to the Minister of Justice, including
the power to personally conduct the prosecution of high-level officials,
such as the president and members of the government. The Assembly
therefore recommends that:
10.1. detailed
and clear criteria for the dismissal of all prosecutors should be
set out in the law;
10.2. the powers given to the Minister of Justice to personally
conduct the 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
be abolished;
10.3. the powers of the Minister of Justice over the prosecution
service explicitly prohibit him from giving instructions or otherwise
influencing the prosecution of individual cases.
11. The Assembly expresses its concern about the problems of the
administration of justice that could endanger the principles of
equal application of the law and the right to a fair trial, as enshrined
in Article 6 of the European Convention on Human Rights (ETS No.
5). The Assembly calls upon the Georgian authorities to address
these problems which, if left unaddressed, could undermine the considerable
progress made by the authorities in the field of judicial reform
and the strengthening of the independence of the judiciary.
12. The Assembly also notes the questions raised about the increasing
frequency of plea bargaining. It recommends that the Georgian authorities
address the concerns expressed in this regard, as they affect public trust
in the fairness of the justice system.
13. The Assembly reiterates its satisfaction with the ongoing
efforts and clear political will to fight corruption in Georgia.
It notes that these efforts have produced significant results, in
particular relating to low-level corruption. The Assembly calls
on the authorities to pursue their efforts unabated and to ensure
that existing legislation to fight corruption is implemented fully
and consistently. In relation to the fight against corruption, the Assembly:
13.1. notes the persistent allegations
that high-level corruption has not been fully eradicated and calls upon
the authorities to investigate all of these allegations consistently
and credibly;
13.2. welcomes the investigations into alleged corruption of
a number of high-level officials, which demonstrate the political
will to counter any sense of impunity for high-level corruption
in Georgia;
13.3. welcomes the adoption of the amendments to the Law on
Conflict of Interest and Corruption in Public Service that were
drawn up with the assistance of the Council of Europe, as well as
the adoption of the Law on the Chamber of Control;
13.4. recommends that the Georgian authorities evaluate, with
a view to improving its implementation, the legal framework for
the access to public information, as this could be an invaluable
tool in the fight against corruption.
14. The Assembly expresses its satisfaction with the considerable
reforms that have been implemented with regard to the police force.
As a result of these reforms, corruption in the police force and
ill-treatment of detainees have almost been eradicated. Excessive
use of force by law-enforcement officials during demonstrations
and protests continues to be a point of concern, especially as complaints
over the excessive use of force do not seem to be effectively and
systematically investigated and convictions pursued. This should be
addressed by the authorities as it could contribute to a sense of
impunity among law-enforcement officials.
15. Protracted and ineffective investigations by the police forces,
especially of politically sensitive cases, are also a point of concern
for the Assembly. It regrets that, despite its repeated calls for
credible investigations, no culprits have been found for the attacks
on protesters during the 2007 and 2009 demonstrations. The Assembly
stresses that the case law of the European Court of Human Rights
clearly requires that investigations should not only be initiated,
but also be effective in order to be considered credible. The Assembly
calls upon the Georgian authorities to address this issue urgently.
16. The Assembly welcomes the efforts by, and political will of,
the Georgian authorities to address the problem of overcrowding
and inadequate living conditions in Georgian prisons. It considers
that the continuous growth of the prison population, resulting in
overcrowded facilities, is largely due to the very strict, sometimes even
disproportionate, mandatory sentencing guidelines, even for minor
crimes, and the provisions that dictate that sentences be served
consecutively and not concurrently. The Assembly therefore:
16.1. welcomes the development by
the Georgian authorities of a comprehensive strategy for the liberalisation
of the prison system, prioritising such areas as crime prevention
and expanding the use of various non-custodial measures, including
diversion, mediation and mentoring programmes for juvenile offenders,
community service, expanded parole conditions and reform of the
probation system for adults;
16.2. recommends that the authorities review the mandatory sentencing
guidelines, consider alternative sentencing and develop clear and
improved guidelines for early release;
16.3. calls upon the authorities to continue their efforts to
combat ill-treatment in prisons and to ensure the safety from retribution
of prisoners who file complaints against prison guards.
17. Georgia is the most multi-ethnic country in the Caucasus.
The Assembly therefore welcomes the continuous efforts by the Georgian
authorities to improve the integration of the different minorities
in Georgian society. The Assembly calls upon the authorities to:
17.1. step up their efforts to improve
the participation of national minorities in public life;
17.2. improve the system of language education for national
minorities, including the teaching of minority languages and Georgian
as a second language;
17.3. take further steps to combat the marginalisation of the
Roma population;
17.4. step up their efforts to fight any forms of intolerance
and hate speech based on ethnicity, faith, gender or sexual orientation.
18. The Assembly welcomes the adoption of the National Concept
for Tolerance and Civic Integration, as well as the establishment
of an inter-agency commission on minority issues, to facilitate
the implementation of the Framework Convention for the Protection
of National Minorities (ETS No. 157). One of the outstanding accession
commitments of Georgia is the adoption of a comprehensive law on
national minorities. The Assembly would be prepared to consider
this accession commitment as fulfilled if a comprehensive legal framework
for the protection of national minorities, contained in a number
of specialised laws, was in place, and, according to the opinion
of the Advisory Committee on the Framework Convention, adequate
and fully in line with European standards.
19. Religious freedom and tolerance are fundamental principles
to further social cohesion and the consolidation of a democratic
society. The Assembly is therefore concerned by the lack of a proper
legal status of, and legal protection for, denominations and faiths
other than the Georgian Orthodox Church. The Assembly therefore
calls on the Georgian authorities to:
19.1. adopt a specific law on religion that would offer proper
and equal legal status and protection to all faiths and denominations
in the country;
19.2. resolve the outstanding issues regarding the return to
their respective denominations of historic religious properties
confiscated during the Soviet era.
20. The Assembly regrets that Georgia, ten years after joining
the Council of Europe, has not yet honoured its accession commitment
of signing the European Charter for Regional and Minority Languages
(ETS No. 148). It calls upon the Georgian authorities to sign and
ratify the charter without further delay.
21. The Assembly welcomes the clear political will of the Georgian
authorities to resolve the issue of the repatriation of the Meskhetian
population in line with its accession commitment to the Council
of Europe. Taking note of the fact that the deadline for application
under the Law on Repatriation expired on 1 January 2010, the Assembly
recommends that the Georgian authorities:
21.1. conduct a proper evaluation of the results of the current
repatriation application process, as soon as all applications have
been either accepted or rejected;
21.2. show maximum flexibility with regard to formalities to
ensure that no application is rejected on technical grounds only;
21.3. develop, without further delay, a comprehensive and efficient
mechanism for repatriation and re-integration.
22. The Assembly reiterates its condemnation of the continuing
human rights violations as a result of the 2008 war, including the
grave violations of the principle of freedom of movement and right
to return of internally displaced persons (IDPs) as a result of
the occupation of the two breakaway regions of Georgia and the previous
conflict. In line with Resolution
1683 (2009) “The war between Georgia and Russia: one
year after”, the Assembly calls on the Georgian authorities to initiate
a credible investigation into all cases of alleged violation of
international humanitarian and human rights law by persons under
its jurisdiction or control during the 2008 war with Russia and
to allow unrestricted access of international organisations to the
two breakaway regions.
23. The Assembly expresses its concern about the manner in which
IDPs were recently evicted from their residences in Tbilisi and
calls upon the Georgian authorities to ensure that any evictions
fully comply with international standards.
24. Pending further progress on the above-mentioned issues, the
Assembly resolves to continue its monitoring procedure in respect
of Georgia and reaffirms its readiness to assist the country in
honouring its obligations and commitments to the Council of Europe.