Doc. 8296

12 January 1999

Georgia’s application for membership of the Council of Europe1

Opinion

Committee on Legal Affairs and Human Rights

Rapporteur: Mr Andras Kelemen, Hungary, Group of the European People's Party

Introduction

1.        The Committee on Legal Affairs and Human Rights, at its meeting on 23 June 1998, appointed me rapporteur on Georgia’s application for membership in place of Mr Németh, who is no longer a member of the Assembly.

2.        I was unable to take part in the Sub-Committee on Human Rights’ visit to Georgia on 9 and 10 July. However, I have consulted the report on the visit (AS/Jur/DH (1998) PV 6 rev.). I subsequently visited Georgia, Abkhazia and South Ossetia with the rapporteur for the Political Affairs Committee from 27 July to 4 August 1998.

3.        I have also consulted the report by the “distinguished lawyers” on the conformity of the legal order of Georgia with Council of Europe standards (AS/Bur/Georgia (1997) 1).

4.        I have been invited to produce an opinion on the draft report submitted by Mr Terry Davis, rapporteur for the Political Affairs Committee (Doc 8275). My brief as rapporteur for the Committee on Legal Affairs and Human Rights is above all to concentrate on the human rights situation in Georgia. However, I shall examine various points in Mr Davis’ report which are connected with this.

5.        The question is whether and to what extent Georgia is able and willing to fulfil the requirements of membership of the Council of Europe. Taking into account Article 3 of the Statute of the Council of Europe the starting points for an evaluation are:

- the acceptance of the rule of law

- the respect of human rights, and

- good collaboration with the Council of Europe on the basis of common principles.

General observations

6.        As regards the background to the founding of the state of Georgia, I can only endorse the outline given by the rapporteur for the Political Affairs Committee. I would add, however, that Georgia has been a member of the Commonwealth of Independent States (CIS) since 1993, following President Shevardnadze’s accession to power. Georgia’s membership of the CIS is a cause for concern among a particular faction of the opposition which advocates breaking off relations with the Russian Federation and regards participation in the CIS purely as a means whereby the Russian Federation may control the country. President Shevardnadze, however, considers that participation in the CIS is only worthwhile in so far as it helps CIS members to become democratic states.

7.        As far as relations with the Russian Federation are concerned, it should be pointed out that Russian troops are still stationed on Georgian territory but are scheduled to leave in the year 2000.

The problem of separatism in Georgia

8.        Since I had the chance to visit the three regions where the jurisdiction of the Georgian state was weakened or simply non-existent and since I had the opportunity to meet the "presidents" of Abkhazia, South Ossetia and Adjaria, I feel I can also give my personal impressions regarding the problem of separatism versus territorialism.

9.        Mr Ardzinba, the Abkhaz leader, stated that the accession of Georgia to the Council of Europe concerned Georgia, not the independent Abkhazia. Moreover, his firm opinion was that the admission of Georgia to the Council of Europe would be a step against Abkhazia. In general, he expressed a deep distrust of the role of the Council of Europe and in his opinion President Shervardnadze was "the one who ruined the Soviet Union". His distrust and resentment towards Georgia explain why it has not been possible to arrive at a peace agreement in the zone of separation between Avbkhazia and the rest of Georgia.

10.        The province seems to be on the way to economically strengthening and exploiting its geopolitical potential. President Abashidze has a good sense of diplomacy. He has managed to build a strong political party, the Revival Party of Georgia, and criticises heavily the central government. He is sensitive to the media and public opinion. He underlined that Adjaria was already a member of a European organisation, the Assembly of the European Regions. While supporting limited independence of the Autonomous Republic he stressed that Adjaria was part of Georgia, and he was in favour of the admission of the country to the Council of Europe.

11.        Mr Chibirov, President of the region, expressed the grievances of his people in the years of the Georgian-Ossetian conflict (1990-1993), but he acknowledged that the present Georgian government had accepted the responsibility for the conflict. The Ossetians were ready to cooperate peacefully with the Georgian government concerning Ossetian autonomy. According to the Russian Commander of the joint peace-keeping Central Commission forces, there had been no casualties in the last half-year.

12.        One of the main problems was the return of refugees and IDPs (internally displaced persons). Another was to revive the economy. Specifically, they suffered acutely from the lack of natural gas and electricity. President Chibirov welcomed the accession of Georgia to the Council of Europe.

13.        With regard to the situation in the autonomous territories (the Autonomous Republic of Abkhazia, the Autonomous Republic of Adjaria and the Autonomous Region of South Ossetia), I agree with the conclusions of the rapporteur for the Political Affairs Committee, who believes that Georgia wishes to settle its conflicts with these autonomous territories by peaceful means. President Shevardnadze has also produced a proposal for “asymmetrical federalism”, whereby Abkhazia and South Ossetia would enjoy a form of autonomy with their own local government and representation in parliament in a second chamber, yet to be created.

14.        With regard to local and regional authorities, the elections which were held on 15 November 1998 were observed by a delegation of the Congress of Local and Regional Authorities which made the following declaration after the elections:

15.        However, I agree with the reservations expressed by the rapporteur for the Political Affairs Committee concerning the applicable legislation in the matter, which provides for the appointment of mayors by the President. In fact only the mayors of the five biggest cities are appointed by the President, the others are elected, as are the governors. President Shevardnadze himself had expressed doubts about the elections because in his opinion political awareness is lacking. This is confirmed by the CPLRE.

16.        As far as the political situation is concerned, the President and Parliament were trying to function democratically. There is a presidential system along the lines of the American model, where the President of the Republic is also head of government and thus enjoys considerable powers. The Sub-Committee on Human Rights was informed that there were plans to change this system by introducing a French-style system, with the Prime Minister as head of government. According to the Speaker of Parliament, the opposition is not in favour of this change.

17.        The Constitution provides for a separation of powers; the President may not dissolve Parliament and Parliament may not remove the President from office. However an "impeachment" procedure is foreseen and four ministers have had to resign.

The judiciary

18.        The rapporteur for the Political Affairs Committee endorses the view of the distinguished lawyers that “impressive efforts have been made and continue to be made to turn Georgia into a state based on the rule of law”.

19.        I would subscribe to this opinion. Parliament is currently engaged in a wide-ranging reform of the judicial system, apparently spearheaded by the Justice Minister. This reform, which is being carried out with the assistance of the Council of Europe, concerns legal instruments, the functioning of the institutions and the qualifications of judges.

20.        Parliament adopted a new civil code in 1996 and a code of criminal procedure. A draft criminal code is before the Parliament. A law on courts was adopted in June 1997 and aims, inter alia, at recruiting competent judges with high moral standards. Judges are often accused of incompetence and, above all, corruption, which is widely cited as one of the causes of the country’s current plight. The fact that corruption is discussed openly appears to be regarded as a sign of democracy. Under the new law, candidates for posts as judges are asked to sit examinations designed to test their knowledge of new legislation that has come into force. After the first competitive examination, some thirty candidates were selected out of 140 or 230 (depending on the source). Other competitive examinations are scheduled. If the fight against corruption among judges is to be effective, judges need to be adequately paid. The Government and Parliament seem to be aware of this and willing to take the necessary measures.

Respect for human rights and fundamental freedoms

21.        The Constitution safeguards human rights. Georgia’s abolition of the death penalty and ratification of the United Nations Convention on the Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment are to be welcomed.

22.        During its visit, the Sub-Committee on Human Rights met various human rights NGOs. According to these organisations, the general human rights situation seems to pose no particular problems.

23.        In Abkhazia, members of the local parliament mentioned that three Abkhaz hostages were killed recently in Georgia. While I was there, the Human Rights Office of the OSCE Mission to Georgia made a short fact-finding trip and found that the accusation was basically true.

24.        Georgian officials stated that Abkhazians had been taken hostage by so-called Georgian "partisans" and it was they who killed them – the Abkhaz side alleged that Georgian officials were involved in the events which led to the death of the three Abkhazians.

25.        The bodies of the three Abkhazian hostages were delivered from the Georgian to the Abkhaz side under the auspices of the Georgian Commission on the Exchange of Hostages, which was in contact with the Georgian partisans, but the Commission did not get any details about the capture and death of the hostages. No post mortem examination (autopsy) was conducted on the bodies either by the Georgians or by the Abkhazians.

26.        It is therefore difficult for me not to suppose that there have been some cases of war crime – on both sides – recently in Georgia. For this reason, one can criticise the lack of due investigation and trial in this case by the Georgian authorities.

Conditions of detention

27.        The Sub-Committee on Human Rights received from Human Rights Watch a list of detainees to visit. Some of them were in the Isolator 1 prison, while others were on Interior Ministry premises known as Isolator 5.

28.        The Sub-Committee visited the only prison for women in Georgia. At the time of the visit, 187 women were held there, about a third of whom had been convicted of drug-related activities; they were housed in 66-bed dormitories. Sanitary conditions were extremely poor and the women were totally inactive.

29.        During its visit to Ortachala prison, the Sub-Committee was able to meet some of the detainees mentioned by Human Rights Watch. The cells were overpopulated and sanitary conditions were poor. Most of the detainees interviewed had no complaints about their detention conditions, but said that they had suffered ill-treatment during detention on remand.

30.        The Sub-Committee was able to meet one of the prisoners who, according to Human Rights Watch, had had to have a leg amputated following ill-treatment during detention on remand. He claimed that he had in fact been injured during an act of terrorism and had not received the necessary medical care in hospital. It should, however, be noted that during this interview, the prison doctors, who had been asked to leave, stayed by the door and came into the room several times on various pretexts.

31.        One of the most prominent cases is that of prisoner Petre Gelbachiani who was visited at the detention centre on 10 July 1998 by Mr Kevin McNamara. This visit was not impeded by the authorities, but immediately afterwards Mr Gelbachiani was attacked by a fellow-prisoner and was wounded many times on the face and neck – apparently by a razor.

32.        It is rumoured that the cause of the quarrel was a political issue between two prisoners. Yet the authorities apparently forced Mr Gelbachiani to state that it was a suicide attempt. The Georgian government must certainly disclose the truth on this matter, especially since Mr Gelbachiani is an opponent of the regime.

33.        Detention conditions in prisons are unacceptable, although, as President Shevardnadze pointed out, they reflect the general economic situation.

34.        A very worrying problem pointed out by the Red Cross is the emergence of cases of tuberculosis that are resistant to treatment. The Red Cross is authorised to visit any detention centre, including those on Interior Ministry premises.

35.        Two members of the Sub-Committee, Ms Gelderblom-Lankhout and Mr McNamara, visited these premises (Isolator 5). They were able to interview a former Finance Minister. Detention conditions there were no worse than in prisons, but the detainees’ main cause for complaint was the difficulty for them to see members of their family.

36.        The Sub-Committee also received a list of “political prisoners”, containing about 100 names. Some of the detainees interviewed by the Sub-Committee had been named by NGOs as political prisoners. It is difficult to tell whether these people are actually being held because of their political opinions. They are supporters of former President Gamsakhurdia and are accused of taking part in acts of terrorism or banditry.

37.        The following recommendations should be made with regard to detention conditions:

-        reduce the prison population. President Shevardnadze has already pardoned 2 500 prisoners (Christmas 1997).

-       the Justice Minister has announced that he is considering decriminalising a number of offences. It is true that under the former criminal code, unemployment was considered an offence.

-       the length of sentences should be reduced and provision should be made for alternatives to imprisonment.

-       prison staff should be given human rights training.

38.        I join with the rapporteur for the Political Affairs Committee in hoping that responsibility for prisons is transferred from the Interior Ministry to the Justice Ministry as soon as possible.

Minority rights

39.        The Sub-Committee met representatives of most minorities in Georgia. It is worth mentioning that the Russians were not represented on the grounds that they did not see themselves as a minority.

40.        In the Constitution of Georgia it is stated that citizens of Georgia "have the right to develop their culture freely without any discrimination and interference. They may use their language in private and public life" (Article 38.1) It is regrettable that until now only a draft bill exists on national minorities and further progress appears to be slow, even non-existent. The fact that in Georgia even adopted laws are rarely properly implemented, demonstrates a certain unwillingness. Indirectly, this reluctance seems also to be confirmed by minority representatives. One can read in the eminent lawyers' report that "there was a need to protect also rights of ethnic majorities" (As/Bur/Georgia (1997) 1, § 262, p. 48). This is underlined in the report of the Political Affairs Committee: "The representatives of the Azeri, Armenian and Yazid minorities did not see any need for a special law on minorities. They wished to see greater support for the teaching of the Georgian language to minorities".

41.        Reading these statements, one can suppose that these people do not have the courage to insist on the rights of their nationals. The reason lies in the recent history of Georgia, with clashes and forced emigration on the basis of ethnicity.

42.        To illustrate this, I can refer the Mesketian issue. The so-called Mesketian Turk people or Mesks are in reality Moslem Georgians like the Adjars. But they were deported to Siberia and Central Asia by Stalin. "They claim the right to return to their original homes. This right has been officially recognised by President Sheverdnadze in a decree, but the return has been halted by bureaucracy and resistance from certain municipalities." (report of the Political Affairs Committee). Since, as stated in the report of the eminent lawyers, the President of the Republic has the authority to use the means of a centralised power, the question arises: how can red tape halt a decree of the President? The answer would appear to be in a statement by Guram Mamulia, Head of the Repatriation Service of Georgia. He stated that the Law on Recognising the Georgian Citizens as Political Victims and the Social Protection of the Repressed does not acknowledge the Meskhetians deported from Georgia in 1944 as being victims of political reprisals. They are deprived of refugee status and at present face a real threat of deportation, being considered as illegal migrants. (In: Short Notes on the State of Deported Mesketians in Georgia, submitted to the Council of Europe rapporteur mission, Tbilisi, 31 July 1998)

Conclusions

43.        Fundamental democratic reforms are under way in Georgia. The visitor has to acknowledge that real efforts are being made to institute a democracy based on the rule of law. There are good examples of it:

- the organised parliamentary work;

- the separation of powers;

- the supremacy of the Constitution guaranteed by the Constitutional Court;

- elections at local and regional level;

- the functioning of various NGOs;

- the abolition of the death penalty;

- the reform of the judiciary system;

- the ongoing examination of the judges;

- the transfer of the responsibility for prisons from the Minister of the Interior to the Minister of Justice;

- the setting up of the Council of Judges;

- the appointment of an Ombudsman.

I was particularly impressed by the high level of commitment to human rights shown by several young persons I met in the Office of Ombudsman and in the Council of Judges.

44.        Georgia has taken definitive steps to free itself from the mentality which is a part of the legacy of communism. It may be true that the country is not yet too close to its democratic goals. But the man on the street, as well as the younger generation of the civil servants, are in favour of opening up towards the West. Likewise, the leaders of the State - the President, the Foreign Minister, the leader of the Majority in the Parliament – all know very well that Georgia has a vested interest in gaining systematic European support if it wants to preserve its independence and its capacity to be an emerging democracy. That is why the experts of the Council of Europe saw "a strong determination paired with a preparedness to a certain humility" (eminent lawyers' report, § 134), ie there is keen interest in assistance from foreign experts. And what is more, the general impression is that the government accepts democratic means in solving political problems.

45.        I would like to add to this estimate, that the clear and close aim to join the Council of Europe has a pulling power towards democracy both within Georgia and in the larger Caucasian region. If we are in favour of this process, we have to keep in mind that we need to instigate and control the Georgian officials as they advance in this direction.

46.        I therefore recommend Georgia's admission to the Council of Europe, under the conditions enumerated under point 10 of the draft opinion of the Political Affairs Committee (Doc 8275), to be fulfilled within fixed deadlines.

47.        As regards human rights, and in particular detention conditions, I would suggest that the following additional undertakings be requested:

-       reduce overcrowding in prisons, for example by looking into the possibility of reducing the length of sentences and pardoning detainees who have committed minor offences;

-       make provision for alternatives to imprisonment as a punishment for certain offences;

-       provide human rights training for prison staff and the police, with the Council of Europe’s assistance;

-       respect the maximum length of detention on remand.

Proposed amendments

48.        I therefore propose the following amendments to the draft opinion presented by the Political Affairs Committee:

- Paragraph 10.iii

After point c., add the following new point d.:

- Paragraph 10.iv

After point a. add the following new point b.:

After point a. add the following new point c.:

Replace point d. by the following new text:

- Paragraph 10.v

Add the following new point c.:

49.        Provided these additional requests are made, I support the recommendation that the Committee of Ministers invite Georgia to become a member of the Council of Europe. I would add that my support is all the more wholehearted as everyone to whom the Sub-Committee on Human Rights spoke supported Council of Europe membership, and as Georgians undeniably see themselves as Europeans and aspire to return to the European fold. This desire is felt not only by the Government, but also by the opposition. Certain opposition members feared that accession might be regarded as recognition that the country was a democracy. I would emphasise that accession is merely the starting point of the process of complying with Council of Europe standards, and that the Council’s assistance will speed up this process.

Reporting committee: Political Affairs Committee (Doc. 8275)

Committee for opinion: Committee on Legal Affairs and Human Rights

Reference to committee: Doc 7646 and Reference No. 2107 of 27 September 1996

Opinion approved by the committee on 8 January 1999

Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge

1 See Doc 8275.