Comments by the Government of the Republic of Georgia on
the concluding
observations of the Human Rights Committee
1. The Government of Georgia, having familiarized itself with
the observations of the Human Rights Committee contained in document CCPR/CO/74/GEO
of 28 March 2002, wishes to express its satisfaction with the largely upbeat
assessment of the progress Georgia has made in implementing the provisions of
the International Covenant on Civil and Political Rights. As requested in paragraph
22 of the Committee's concluding observations, the Government of Georgia is
hereby transmitting information about the issues raised by the Committee in
paragraphs 7, 8 and 9 within the deadline indicated.
2. At the same time, the Government of Georgia feels obliged to
put the Human Rights Committee right with regard to some points raised in its
observations, which inaccurately reflect the true state of affairs, and it also
wishes to submit certain new information regarding the Committee's observations
as a whole. In this respect, it should be noted that, during the consideration
of the report, the Georgian delegation provided explanations on a wide range
of subjects of interest to members of the Committee and submitted data to help
the Committee gain a clearer insight into the actual situation. It is therefore
puzzling to note that, in some instances, the Committee's recommendations take
absolutely no account of the supplementary information provided by the delegation
during the consideration of the report, thereby giving rise to a number of inaccuracies
as listed below.
Paragraph 5
3. In paragraph 5 of the concluding observations it is stated
that the Committee welcomes the creation of the "Rapid Reaction Group",
the function of which is to visit places of detention and investigate complaints.
4. Here it is once more necessary to note that the "Rapid
Reaction Group" is not an autonomous structure. It was established within
the office of the Ombudsman as part of a six month project that ran from December
2001 to June 2002, funded by the Office for Democratic Institutions and Human
Rights of the Organization for Security and Cooperation in Europe. The Ombudsman
and the donor organization are currently exploring the possibility of resuming
funding for this project.
5. According to the Ombudsman's report covering the first six months of 2002,
the activities of the "Rapid Reaction Group" have enabled the Ombudsman
to submit 54 recommendations to the Procurator-General and the Minister of Internal
Affairs on human rights violations that it has identified. As the report notes,
the Ombudsman's intervention facilitated the restoration of violated rights
in a number of cases.
6. In the light of the foregoing, we think that paragraph 5 of
the Committee's concluding observations should not mention the "Rapid Reaction
Group" in isolation, but in the context of the work of the Ombudsman.
7. Additional comments may be found below regarding the Ombudsman's
status and powers in connection with the views expressed by the Committee in
paragraph 15 of its concluding observations.
Paragraph 6
8. In paragraph 6 it is stated that "the Committee expresses
satisfaction at the creation of a Constitutional Court but it remains concerned
that current procedures impede access to the Court".
9. On 12 February 2002 the Constitutional Act amending the Georgian
Constitutional Court (Establishment) Act and the Proceedings Before the Constitutional
Court (Establishment) Act was adopted. This Act became law on 5 March 2002.
The amendments are designed to eradicate the existing shortcomings in the legislative
acts that regulate the work of the Constitutional Court. These legislative innovations
bear equally on procedural matters and questions relating to the Court's jurisdiction.
10. The most significant changes and innovations are as follows:
(a) Abolition of the legally sanctioned principle of "continuity",
whereby a member of the Court hearing a particular case was barred from hearing
others until the first case had been suspended or deferred. This procedure caused
problems for the timetabling of cases. Under the amendment, a member of the
Court hearing a particular case is allowed to hear other cases before the suspension
or deferral of the first case;
(b) Adoption of general and differentiated schedules for the hearing
of cases. Under this amendment, a plaintiff will be informed within 10 days
of bringing a case before the Court whether the Court intends to consider the
merits of the case. A time limit of six months has also been set for the Constitutional
Court to reach a decision in a constitutional action or application;
(c) Broadening of the competence of the Constitutional Court,
through the introduction of the official institution of judicial review. Pursuant
to this amendment, the Constitutional Court has acquired the right not only
to verify the constitutionality of a legislative act as regards its content,
but also to ascertain whether the constitutionally sanctioned procedure for
the adoption of the act has been observed;
(d) Broadening of the range of persons entitled to bring cases
before the Constitutional Court. Legal entities are also entitled to bring cases
before the Court on questions falling under chapter II of the Georgian Constitution
(on fundamental human rights and freedoms).
11. We believe that the amendments described above have significantly
broadened the Constitutional Court's powers, enhanced the effectiveness of its
work, facilitated access to the Court and strengthened guarantees for the full
protection of human rights.
Paragraph 7
12. In paragraph 7 it is stated that the Committee expresses its
concern at the still very large number of deaths in police stations and prisons,
including suicides and deaths from tuberculosis. The Committee also expressed
its concern about the large number of cases of tuberculosis reported in prisons.
13. The Government of Georgia believes that the Committee should
be updated on this issue.
14. According to official statistics, 39 prisoners died in penitentiaries
administered by the Georgian Ministry of Justice in 2002. Of these, 29 died
as a result of illness, while the other 10 died violent deaths (4 suicides,
5 homicides and 1 accident). The causes of death of the prisoners who died through
illness were as follows: nine cases of acute cardiovascular insufficiency; six
cases of pulmonary tuberculosis; six cases of acute myocardial infarction; two
cases of acute ischaemia; and one case each of cirrhosis of the liver, alimentary
dystrophy, brain inflammation, arteriosclerotic cardiosclerosis, acute impairment
of cerebral circulation and lung cancer.
15. As these figures show, the number of deaths in penitentiary
institutions rose slightly in 2002 compared with 2001, when 31 inmates died.
It should be recalled, however, that in 2000 a total of 52 prisoners died. The
number of deaths from tuberculosis has declined significantly, with 6 cases
in 2002 as against 13 in 2001 and 23 in 2000. Four prisoners committed suicide
in 2002. In 2001 there were no suicides, but there were six in 2000.
16. Normally, when a prisoner dies, the news is relayed to the
duty unit of the Corrections Department at the Ministry of Justice and the relevant
procurator's office, which undertakes the necessary procedural actions as prescribed
by law.
17. In 2002 the Medical Department of the Ministry of Justice
took a number of steps to improve the standard of medical treatment provided
at penitentiaries. Among other things, the Minister of Justice has ratified
interim provisions on prison hospitals, as a result of which medical units have
finally been made independent from the Corrections Department. Departmental
programmes have also been adopted to protect the health of persons at institutions
administered by the Corrections Department, as well as programmes to prevent
the spread of HIV/AIDS and sexually transmitted diseases in these institutions.
An arrangement has been worked out between the Ministry of Justice and the Ministry
of Labour, Health and Social Security on transferring responsibility for psychiatric
evaluations from prison hospitals to ordinary psychiatric clinics with effect
from January 2003.
18. In the light of the Committee's recommendations, some practical
measures should be noted:
19. As to efforts to prevent the spread of tuberculosis in prisons,
the Committee should know that, with the assistance of ICRC, a total of 6,142
prisoners were screened for pulmonary tuberculosis in penitentiary institutions
in 2002. Of these, 473 were found to be suffering from the disease, compared
with 586 in 2001. They were all included in the DOTS programme. In all, 353
prisoners were transferred to a special tuberculosis unit for treatment, while
the rest received treatment at the facility where they were serving their sentence.
20. Medical screening and consultations for sick inmates are carried
out regularly at penitentiaries by prison doctors, officers of the Medical Department
of the Ministry of Justice, and representatives of the Ministry of Labour, Health
and Social Security. Thus, in 2002, the Ministry of Justice organized 63 prison
visits for commissions from its Medical Department, with the participation of
teams of specialist physicians. A total of 2,060 prisoners were screened and
received appropriate treatment. In addition, with the assistance of the Georgian
national centre to prevent the spread of AIDS, 2,066 convicted and remand prisoners
(including those held in the tuberculosis unit and the young offenders' institution)
were screened in order to identify prisoners infected with HIV and those who
have AIDS. Sixteen persons were found to be infected with HIV and registered
accordingly. At the time of writing (January 2003), 11 prisoners with AIDS are
under constant observation by staff of the national centre to prevent the spread
of AIDS and prison doctors.
21. In January 2003 the total number of patients in prison hospitals
was 1,696. A total of 39,415 prisoners had received outpatient treatment.
22. In 2002 specialists from the Medical Department of the Ministry
of Justice devoted particular attention to matters of sanitation and hygiene
in the penitentiary system. Thus, inspections were carried out at seven penitentiary
institutions, four prisons, a hospital unit for remand and convicted prisoners
in Tbilisi and a special unit for tuberculosis patients. The inspections focused
on sanitation and hygiene at the establishment and the amenities provided to
inmates. A number of irregularities came to light in the course of the inspections,
and steps were outlined to remedy them.
23. Thus, disinfection and rat control measures were taken at
two colonies and one prison. Vehicles used to transport prisoners are regularly
disinfected.
24. It should be noted that, owing to the decline in the overall
number of prisoners, expenditure on prison food has increased from 23 to 33
lari per prisoner (about US$ 15). This has made it possible to enrich the food
ration and bring its calorie content within the statutorily prescribed range,
namely 2,753-2,964 kilocalories.
Paragraph 8
25. In paragraph 8 of its concluding observations the Committee
expressed concern at the widespread and continuing subjection of prisoners to
torture and cruel, inhuman or degrading treatment or punishment by law enforcement
officials and prison officers.
26. The Committee accordingly addressed a list of recommendations
to the Government of Georgia aimed at eliminating human rights violations of
this nature.
27. The Government of Georgia understands the concerns expressed
by the Committee. At the same time, it does not completely agree with the conclusion
that there is "widespread subjection to torture" and other forms of
impermissible treatment of persons in custody. It is certainly true that cases
of this nature have occurred, but it would be an exaggeration to suggest that
they are extremely frequent.
28. In relation to this matter, we would refer back to the information
given in our answer to question 6 of the list of issues submitted by the Committee
in connection with its consideration of Georgia's second periodic report under
the Covenant. Specifically, presidential decree No. 42 of 18 February 2002 stipulates
that the Ministry of Internal Affairs, the Ministry of Justice and the Georgian
Procurator's Office are instructed to plan measures to give effect to the President's
initiative to transform Georgia into a "torture-free zone". These
measures have now been prepared and are in the process of being implemented.
29. Under the plan drawn up by the Georgian Procurator's Office:
30. In pursuance of its plan of action, the Georgian Ministry
of Internal Affairs is taking the following measures:
31. The Ministry of Justice has taken the following steps to implement
its plan of action:
32. On 17 May 2002, the President of Georgia issued decree No.
240 on measures to strengthen the protection of human rights in Georgia. The
promulgation of this decree is a direct consequence of the concluding observations
of the Human Rights Committee. With reference to this specific topic, we think
it important to draw the Committee's attention to the following instructions
set out in this instrument:
"1. Requests the Office of the Procurator of Georgia … and instructs
the Georgian Ministry of Internal Affairs:
"…
"(b) To institute criminal proceedings and conduct appropriate
investigations when bodily injury is found to have been inflicted on a person
whose liberty has been restricted;
"(c) To institute special monitoring at places of detention
and deprivation of liberty with a view to identifying and eradicating cases
of torture and degrading treatment and punishment, and prosecute persons found
to have performed such acts;
"…
"(e) To raise the standard of vocational training for procuratorial
officials, police and prison officers with a view to preventing torture and
other unlawful conduct; to organize special training for experts and medical
personnel with a view to identifying and documenting cases of torture;
"…
"3. The Georgian Ministry of Justice shall take the following
action:
"(a) Submit proposals regarding the compatibility of the
concept of 'torture' as defined in the Georgian Criminal Code with the provisions
of the Convention against Torture … and prepare a bill to make any necessary
changes to the Georgian Criminal Code …".
33. The Government of Georgia notes that a number of steps have
already been taken to implement the presidential directives described above.
34. The Ministry of Justice has prepared a bill to amend the Georgian
Criminal Code, which stipulates, among other things, that the concept of "torture"
under Georgian law should be brought into line with the provisions of the Convention
against Torture. This bill is currently at the discussion stage, a process in
which national non-governmental organizations are involved together with the
relevant official bodies. The bill will then be put before Parliament for ratification.
By November 2003, Georgia is scheduled to submit its third periodic report to
the relevant United Nations committee on the implementation at the national
level of the Convention against Torture. In that report we shall include a fuller
review of developments in this field.
35. The Georgian Procurator's Office has instituted a hotline
whereby anyone may contact a procurator at any time and report a violation of
his or her rights. The Procurator's Office pays special attention to cases involving
the unlawful physical assault of detainees and remand prisoners by police officers,
with a view to conducting a proper investigation and prosecuting the guilty
parties.
36. The Georgian Procurator's Office reports that, in the first
nine months of 2002, procuratorial bodies brought criminal proceedings in 54
cases involving the commission of various kinds of unlawful actions. Seventeen
of these cases involved official misconduct - overstepping or abuse of authority,
unlawful detention, or unacceptable treatment of detainees. Nine police officers
were placed in pre-trial detention as a preventive measure. In three cases the
investigation has already been completed and the relevant case files forwarded
to the courts.
37. The Georgian Ministry of Internal Affairs reports that in
2002 a total of 287 case files involving internal investigations of unauthorized
actions and human rights violations committed by police officers were sent to
the Procurator's Office. This figure is approximately 25 per cent higher than
the comparable indicator for 2001. In addition to criminal proceedings instituted
in these cases (as described above), 92 police officers were dismissed from
the force (including 12 senior officers at various levels). Seventy-four officers
were relieved of their duties (including 33 senior officers at various levels).
In all, 382 officers were disciplined (177 received reprimands and 198 severe
reprimands). All these figures are significantly higher than the corresponding
figures for 2001.
38. The Georgian Ministry of Justice reports that, in the period
from January to December 2002, criminal proceedings were brought against eight
prison officers. Of these, four were prosecuted for dereliction of official
duty (article 342, paragraph 1, of the Criminal Code); two for exceeding their
authority (art. 333, para. 1); and two for abuse of authority (art. 332, para.
1). In addition, over the same period, disciplinary measures were taken against
another 390 officers. Of these, 160 were relieved of their duties for conduct
unbecoming and 84 were summarily dismissed. The rest were subject to disciplinary
sanctions of varying degrees of severity.
39. At the same time, according to the Ministry of Justice, the
human rights protection unit of the Corrections Department received no complaints
of ill-treatment at the hands of prison officers from remand or convicted prisoners
in 2002. It should be noted that the Enforcement of Penalties Act and the Ombudsman
Act make it possible to submit such communications without impediment.
40. It is the view of the Government of Georgia that the information
cited above fully demonstrates that efforts to tackle the human rights violations
mentioned in paragraph 8 of the Committee's concluding observations are ongoing
and of an increasingly energetic nature.
41. Pursuant to the Committee's recommendation that "all
statements obtained by force from detained persons should be investigated and
may never be used as evidence", we must stress that article 42, paragraph
7, of the Georgian Constitution stipulates that evidence obtained illegally
has no legal force.
42. The provisions of the general constitutional requirement cited
above have also been incorporated into the Code of Criminal Procedure. Specifically,
article 7 of the Code states that "evidence obtained illegally has no legal
force". Article 10 on the presumption of innocence fully reflects this
universally recognized principle, the first time it has been provided for as
such in Georgian procedural law. Judicial supervision has been introduced for
any procedural actions undertaken by persons conducting initial inquiries, investigators
or procurators which involve limitation of the constitutional rights and liberties
of citizens; suspects, accused persons and other parties to proceedings are
entitled to appeal to a court if their complaint or application is dismissed
by a person conducting an initial inquiry, an investigator or a procurator (art.
15).
43. The Code of Criminal Procedure further states that the confessions
of accused persons, if not supported by other evidence, are insufficient to
conclude that they actually committed the offences. No testimony may be obtained
under duress. The use of physical or mental compulsion to obtain testimony is
prohibited, as is blackmail; testimony obtained in this way shall not be admitted
(arts. 19 and 119). Any evidence obtained in breach of the statutorily defined
procedure, and specifically through the use of violence, threats, blackmail
or harassment, is deemed inadmissible and shall be excluded from the criminal
case. Prosecution evidence that has been ruled invalid may, however, be admitted
at the application of the defence (art. 111).
44. The adversarial nature of trial proceedings and the equality
of the parties ensure that evidence and confessions obtained by unlawful means
are detected, that they are recognized as such and are excluded from consideration
(article 475 of the Code of Criminal Procedure).
45. The Government of Georgia considers that the aforementioned
procedural safeguards are sufficient and has always taken great pains to ensure
that they are unswervingly applied in practice.
46. Pursuant to the Committee's recommendation "to provide
training in human rights, particularly on the prohibition of torture, to police
and prison officers", the Committee might be interested to hear about the
following practical steps which have already been taken in this regard.
47. Specifically, in the second half of 2002, representatives
of the Ministry of Internal Affairs took part in a series of training exercises.
These included:
Paragraph 9
48. In paragraph 9 of its concluding observations, the Committee
expressed its concern at the length of the period (up to 72 hours) that persons
can be kept in police detention before they are informed of the charges against
them. The Committee is also concerned at the fact that, until the trial takes
place, the accused cannot make a complaint before a judge regarding abuse or
ill treatment during the period of pre-trial detention.
49. The Government of Georgia has the following statement to make
on this matter: the claim that detainees are not informed of the charges against
them for 72 hours is untrue. Article 73 of the Georgian Code of Criminal Procedure
stipulates that detainees must be handed a copy of the decision to institute
criminal proceedings against them no later than 12 hours after their arrest.
This decision must indicate the offence which they are suspected of having committed.
As to the 72-hour period mentioned in the Committee's observations, reference
should be made to paragraph 161 of the periodic report, which states that, under
article 18 of the Constitution, "detainees or persons whose liberty has
otherwise been restricted must be brought before an appropriate court within
a maximum of 48 hours. If the court does not decide within the next 24 hours
that the person should be remanded in custody or otherwise restrained, he or
she must be released without delay (para. 3). Persons suspected of having committed
a crime may not be held in short-term detention for more than 72 hours".
50. Moreover, we should like to quote more extensively from the
report (paras. 164 and 165): "The bringing of a detainee to a police post
or before the competent person in a body conducting an initial inquiry shall
be followed immediately by the making of a formal record of the detention and
its witnessing, by the appending of their signatures, by the record-writer,
the detainer and the detainee. The lawfulness of, and justification for, a detention
must be verified within 12 hours of the detainee's being thus brought in, and
the competent official of the organ making the initial inquiry shall then issue
a reasoned order for the opening of criminal proceedings and the charging and
remand in custody of the suspect or for the dropping of the matter and the detainee's
release. The procurator must be immediately informed of the content of the order.
If the order is for the opening of proceedings and the remand in custody of
suspects, their rights must be explained to them in writing. Persons detained
on suspicion must be formally questioned within 24 hours of being brought in
… . No one may be held in short term detention for more than 48 hours without
being charged. If no decision is issued within the next 24 hours to remand persons
in custody or to subject them to some other preventive measure, they must be
released without delay."
51. On 29 January 2003, the Georgian Constitutional Court examined
and allowed in part the constitutional action brought by the Ombudsman and several
non-governmental organizations to have a number of the above-mentioned provisions
of the Code of Criminal Procedure declared unconstitutional. Specifically, these
were the norms regulating detention and the exercise of the detainee's right
to a defence. The most important decisions of the Court in relation to the issue
under discussion are reproduced below.
52. The Constitutional Court put considerable weight on the definition
of the precise moment of arrest, noting: "A person is deemed to have been
detained from the moment when, in cases and on grounds stipulated by law, a
person specially empowered to carry out an arrest restricts that person's constitutionally
guaranteed rights."
53. The Court ruled unconstitutional and struck down the following
grounds for detention that previously existed under procedural law:
Need to present a person to the police;
54. The Court also indicated that only persons officially recognized
as suspects may be detained.
55. In its decision, the Constitutional Court emphasized: "Immediately
upon being detained, persons must have their rights explained to them and be
given the opportunity to exercise the following rights:
56. With reference to the last-mentioned provision, the Court
thought it necessary to explain that "detained suspects may request the
assistance of counsel not only prior to their (initial) interrogation, but as
soon as they are arrested, in order to safeguard their legitimate interests
and provide them with competent legal assistance".
57. The Committee should also be aware of a number of changes
incorporated into Georgian law as a result of the Constitutional Court's ruling.
Thus, the Court noted: "The statutory defined limit on the duration of
unsupervised meetings between (detainees) and their counsel (namely one hour
a day) is unconstitutional … because the duration of the meeting should
vary with the complexity of the criminal case. Moreover, this restriction should
not be used for the deliberate obstruction of either of the parties to the proceedings
who enjoy equal rights." Finally, the Court ruled that a body administering
a case must postpone an investigative action or a court hearing if counsel is
unable to attend for good reasons.
58. At the same time, it should be noted that, in practice, violations
of the constitutionally and statutorily defined 72-hour period of short-term
detention do occur. Accordingly, the General Inspectorate of the Ministry of
Internal Affairs is taking a number of practical steps, for example scheduled
and unannounced checks of duty units and police lock-ups. In 2002 there were
65 checks of this kind, as a result of which disciplinary sanctions were taken
against those guilty of the offences listed above; 26 officers were relieved
of their duties. According to statistics supplied by the Corrections Department
of the Ministry of Justice, in 2001 a total of 238 remand prisoners were transferred
to prisons in breach of the statutory deadlines; in the first 10 months of 2002
this trend slackened off, with 136 prisoners in this category.
59. Unfortunately, since the consideration of the periodic report,
no amendments have been made to existing legislation relating to the right of
accused persons to make complaints to judges regarding ill-treatment during
the pre-trial investigation. Article 416, paragraph 4, of the Code of Criminal
Procedure states that no petitions or complaints may be submitted directly to
the court until the case has been remitted for trial.
Paragraph 10
60. In paragraph 10 of its concluding observations, the Committee
expressed concern that a person may be detained and imprisoned or prevented
from leaving his or her residence because of non-fulfilment of contractual obligations.
61. It should be noted that the Bankruptcy Proceedings Act, reviewed
in the periodic report, was amended in April 2001. Specifically, the provisions
regarding the application to insolvent debtors of measures such as arrest and
custody or detention for the purposes of securing a written power of attorney
have been taken off the books.
62. At the same time, the same law contains a provision stating
that insolvent debtors may be arrested and brought before a court in order to
"present such information which they are under an obligation to provide
pursuant to this Act" (art. 14, para. 1 (a)).
63. Thus, a number of changes have already been made to the law
(although not enough) in order to bring it into line with the Covenant.
Paragraph 12
64. In paragraph 12 of its concluding observations the Committee
expressed its concern at the existence of factors which have an adverse effect
on the independence of the judiciary, such as delays in the payment of salaries
and the lack of adequate security for judges.
65. Additionally, the Committee recommended that the State should
ensure that documented complaints of judicial corruption are investigated by
an independent agency and that, where necessary, the appropriate disciplinary
or penal measures are taken.
66. According to information supplied by the Georgian Council
of Justice, in 2002 actual budget appropriations for the ordinary courts totalled
more than 97 per cent of the projected amount for ring-fenced items and 79 per
cent for other items. In 2002 the backlog in judges' salaries was cleared. Judges
are now paid on time.
67. As for guaranteeing the security of judges, the Committee
should be aware that district courts are guarded by the police when the court
is in session, although this is not a permanent arrangement. Tbilisi and Kutaisi
district courts contract out their court security, and the Georgian Supreme
Court has a special guard service. The institution of court officers has been
established; their remit includes keeping order during trials.
68. Also with reference to the security of trial proceedings,
it should be noted that threats of any kind are dealt with immediately. The
following may serve as an example. The trial at a Tbilisi district court in
late January 2003 of three Chechens detained in August 2002 for illegally crossing
the State border was interrupted when a telephone caller warned that a bomb
had been planted in the courthouse. The building was immediately evacuated.
Officers of the Georgian Ministry of State Security - engineers and a sniffer
dog team - arrived at the scene within minutes. Fortunately, the warning turned
out to be a hoax and no explosive device was found in the building.
69. In 2002 there were no recorded instances of attacks or criminal
assaults on judges. Unfortunately, there has been one such incident this year,
when a judge from Kutaisi district court was manhandled. He was hospitalized
as a result of his injuries. A criminal case has been opened in connection with
this incident and a preliminary investigation is now under way.
70. The following points should be noted with regard to the problem of judicial
corruption. Article 87 of the Constitution stipulates that the consent of the
Chief Justice of Georgia is needed to prosecute a judge for a criminal offence
(including corruption), and that the matter must be referred to the Chief Justice
by the appropriate official. According to the Georgian Council of Justice, there
were no such cases in 2002. Disciplinary prosecutions of judges, which may be
brought against district or city court judges, are handled by the Council of
Justice. Such cases might involve less serious offences not entailing criminal
liability, for example a judge's abuse of his position to secure material or
other gain prohibited by law. In 2002 two judges were disciplined for precisely
this kind of corruption.
71. The Committee might also like to know that, at the end of
2002, on the initiative of the American Association of Jurists, the organizations
Central European and Eurasian Law Initiative and the Association of Georgian
Judges inaugurated a series of training courses for the judiciary focusing on
questions of judicial ethics. A total of 85 Georgian judges have undergone the
initial phase of training. The training sessions, which will be attended by
all Georgian judges, are led by American experts. We believe that this initiative
and other similar projects will help to ensure that the Georgian judiciary functions
more effectively.
Paragraph 15
72. In paragraph 15 of its concluding observations the Committee
expressed its concern about instances of trafficking of women and called upon
the State party to take measures to prevent and combat this practice.
73. Pursuant to this recommendation, the Government of Georgia
thinks the Committee should know that on 17 January 2003 the President signed
decree No. 15 ratifying the plan of action to combat trafficking in the period
2003-2005. A close study of the text of the decree will enable the Committee
to judge the extent to which the measures envisaged under the plan of action
conform to its recommendations.
74. Some of the instructions set out in this decree are already
being implemented. Thus, at the end of January 2003, a special anti-trafficking
department was established in the Georgian Ministry of Internal Affairs.
75. The Government of Georgia wishes to assure the Committee that
it is fully aware of the danger of the transnational crime of trafficking. It
stands ready to combat this phenomenon by every means at its disposal - obviously,
acting within the law - and intends to inform the Committee of progress in this
regard when it submits its third periodic report under the Covenant.
Paragraph 16
76. In paragraph 16 of its concluding observations the Committee
expressed concern that the Ombudsman's functions were not clearly defined and
her power to implement recommendations was limited.
77. The Government of Georgia cannot agree with the Committee's
opinion, for the reasons set out below.
78. The Georgian Ombudsman is a constitutional institution. First
of all, this arrangement provides a solid foundation for the Ombudsman's activities
and, second, it guarantees the office holder's independence.
79. The Ombudsman Act of May 1996 defines the Ombudsman's functions
as follows:
1. The Georgian Ombudsman sees to it that human rights and freedoms
are observed in Georgian territory, identifies violations and contributes to
the restoration of violated rights. The Ombudsman watches over the work of official
bodies, local government, officials and legal entities, issues recommendations
and makes proposals (art. 3);
2. In exercising his or her powers, the Ombudsman acts independently
and is subordinate to the Constitution and the law alone. Any pressure on the
Ombudsman or interference in his or her work is prohibited and punishable by
law (art. 4);
3. The Georgian Ombudsman shall of his or her own authority verify
the situation with regard to observance of human rights and freedoms and violations
thereof, and examine applications and complaints received from Georgian citizens,
foreigners present in Georgia and stateless persons, non-governmental organizations
… (arts. 12 and 13);
4. In carrying out checks the Ombudsman is entitled:
80. The Government of Georgia believes that the provisions cited
above outline the Ombudsman's functions with sufficient clarity and transparency,
and exclude all ambiguity and unwarranted restrictions.
81. Regarding the implementation of the Ombudsman's recommendations,
it should be noted that in Georgia, as in other countries, the Ombudsman does
not have the power to issue directives. This is a well-known and typical feature
of this quasi-judicial institution throughout the world, keeping in mind the
generally acknowledged fact that the central instrument for protecting human
rights and issuing binding decisions is an independent, fair and impartial court,
in relation to which the Ombudsman performs a merely ancillary role. Nevertheless,
the Ombudsman Act confers upon the Ombudsman fairly wide-ranging powers to implement
his or her recommendations. Thus, the Ombudsman is entitled:
82. In addition, articles 22-25 of the Act oblige the relevant
structures and officials to react to the Ombudsman's recommendations in an appropriate
and timely fashion, and provide for sanctions to be taken against those who
create obstacles or avoid carrying out the legitimate requirements of the Ombudsman.
83. The Act requires the Ombudsman to report to Parliament twice
a year on the human rights situation in Georgia. Discussion of the most recent
reports has prompted the President to issue a decree and an order, instructing
the relevant bodies of the executive branch to take steps to resolve the issues
raised by the Ombudsman. We believe that these presidential regulatory acts
have done much to enhance the Ombudsman's authority and give effect to many
of the Ombudsman's most important recommendations.
84. At the time of writing, budgetary underfunding remains the
most serious difficulty facing the Ombudsman. We note with regret that the accomplishments
of the Ombudsman's office are heavily dependent on assistance from foreign donors
(as was the case with the "Rapid Reaction Group" referred to above).
Paragraph 18
85. In paragraph 18 of its concluding observations the Committee
expressed concern at the discrimination suffered by conscientious objectors
owing to the fact that non-military alternative service lasts for 36 months
compared with 18 months for military service. The Committee also regretted the
lack of information on the existing rules regarding the admissibility of applications
to avoid military service on grounds of conscientious objection.
86. The Government of Georgia is pleased to note that, in line
with the Committee's recommendation, the Non-Military Alternative Service Act
was amended in May 2002 to bring the length of alternative service into line
with that of normal military service (from 18 months for soldiers to 24 months
for reserve officers).
87. In compliance with the Committee's wishes, some additional
information is supplied below regarding the procedures for performing non-military
alternative service.
88. The State Commission for Non-Military Alternative Service,
the establishment of which was referred to in the reply to question 17 of the
list of issues to be taken up in connection with the consideration of the second
periodic report of Georgia under the International Covenant on Civil and Political
Rights, set to work during the spring and autumn military call-ups in 2002.
89. According to figures from the Department for Non-Military
Alternative Service at the Ministry of Labour, Health and Social Security, approximately
140 persons have made known their wish to perform non-military alternative service,
most of whom are Jehovah's Witnesses. During the spring call-up, 29 applications
to perform alternative service were granted, and another 47 in the autumn (76
overall). In two cases, conscientious objectors invoked the provisions of the
Compulsory Military Service (Payment for Deferral) Act and, having paid the
fee specified in the Act, deferred their military service for one year. Subsequently,
by paying this fee, these persons (or any other young people liable to national
military service) may obtain additional deferrals or avoid military service
altogether.
90. Persons performing non-military alternative service were found
work in a psychiatric hospital in the capital, Tbilisi, and in the sanitation
services. According to recent figures, there are approximately 100 jobs for
persons in this category in Tbilisi alone.
Paragraph 19
91. In paragraph 19 of its concluding observations, the Committee
expressed concern with respect to obstacles facing minorities in the enjoyment
of their cultural, religious or political rights. The Committee called upon
the State party to ensure that all members of minorities enjoy effective protection
from discrimination and the opportunity to use their own language and culture.
92. The Government of Georgia wishes to register the fact that
it does not fully share the Committee's concern about the situation of minorities
in Georgia.
93. The Government is clearly aware of the problems that must
be faced in combating manifestations of religious intolerance, to which the
Committee has quite rightly made reference (paragraph 17 of the concluding observations).
The Government is concerned by the inadequate representation of minorities at
the decision-making level in the legislative and executive branches of government.
94. At the same time, the assertion that minorities encounter
obstacles to the use of their language and culture, or that they suffer discrimination,
is untrue. Neither the Constitution and the laws, nor the de facto situation
in the country, lend any real substance to claims such as those made by the
Committee.
95. In our view, it would be more accurate to emphasize the heightened
degree of civil integration in Georgia and the adoption of positive measures
designed to achieve genuine equality between all sectors of the Georgian population.
Accordingly, we wish to draw the Committee's attention to presidential decree
No. 68 of 4 March 2003 ratifying the plan of action to strengthen the protection
of the rights and freedoms of all sectors of the Georgian population in the
period from 2003 to 2005. The Government of Georgia considers that the range
of measures provided for in the decree will encourage Georgia's minorities to
exercise their rights more effectively.
96. The Georgian Parliament's Committee for Civil Integration
is currently putting the finishing touches to an outline plan for the integration
of ethnic minorities in Georgia, which will serve as a basis for the development
and consolidation of integration processes in the multi ethnic Georgian society.
When this task is complete, the outline plan is scheduled to be approved by
the Georgian Parliament.
97. In its third periodic report under the Covenant, the Government
will furnish the Committee with detailed information about subsequent measures
at the domestic level to protect and promote more effectively the rights of
persons belonging to ethnic, religious or linguistic minorities.
Paragraph 20
98. In paragraph 20 of its concluding observations, the Committee
expressed its concern at the harassment of members of non-governmental organizations
in Georgia and called upon the State party to ensure that these organizations
can freely perform their democratic functions.
99. The Government of Georgia shares the concern expressed by
the Committee, but does not think it entirely correct to state that human rights
non-governmental organizations are unable to perform their activities safely.
On the contrary, the right of association is on the whole accorded widespread
respect in Georgia and is seen as a cornerstone of the functioning of civil
society.
100. Unfortunately, there have been isolated incidents that have
formed the basis for the Committee's comments on this issue. But in such cases
the Government always takes whatever measures are prescribed by law. For example,
in one incident in July 2002, certain members of the well-known Georgian human
rights organization Freedom Institute were criminally assaulted. Almost immediately
afterwards, the President issued a special order instructing the Ministry of
Internal Affairs and the Procurator's Office to take whatever steps were necessary
to identify and punish the criminals responsible. The President also instructed
the said departments to keep the public properly informed of progress in their
work. The investigation of this case yielded results: one of the assailants
was rapidly identified and arrested. His accomplices are still being sought.
101. In conclusion, the Government of Georgia wishes to inform
the Human Rights Committee that its concluding observations have been translated
into Georgian and published in the official gazette Sakartvelos respublika (Republic
of Georgia). The Committee's observations
have been discussed at a meeting of the Georgian National Security Council,
a consultative body reporting to the President. Following this discussion, the
aforementioned decree No. 240 on measures to strengthen the protection of human
rights in Georgia was issued by the head of State. The Government of Georgia
is thus complying in a timely manner with the Committee's request made in paragraph
22 of the concluding observations.
102. Pursuant to article 40, paragraph 5, of the Covenant and
rule 71, paragraph 2, of the rules of procedure of the Human Rights Committee,
the Government of Georgia requests that these comments be included in the Committee's
report for submission to the Economic and Social Council and the Third Committee
of the General Assembly.