THE CASE of RUSTAVI 2 MENT VERSUS the Ate Enforcement of Judgments Envis- CONSTITUTIONAL Aged by the Code of Civil Procedure

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NOVEMBER, 2015 MONTHLY NEWSLETTER

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THE GOVERN- THE CASE OF RUSTAVI 2 MENT VERSUS THE ate enforcement of judgments envis- CONSTITUTIONAL aged by the Code of Civil Procedure. COURT This was caused by a complaint of the The judgments of the Constitu- tional Court on the complaints respondents in the aforementioned regarding the Rustavi 2 TV sta- dispute who expressed doubt that tion came under severe criticism the plaintiffs were demanding imme- from representatives the execu- diate enforcement of the judgment. tive and legislative branches of government. [page.2] >> Despite the aforementioned, on No- vember 5, 2015, Judge T. Urtmelidze GEORGIA IS SCRU- issued a ruling that granted the mo- TINIZED AT THE On November 3, 2015, Judge T. Urt- tion of plaintiffs K. Khalvashi and Pan- UNIVERSAL PERI- melidze partially granted the com- orama Ltd. on securing the enforce- ODIC REVIEW SHUTTERSTOCK plaint of plaintiffs K. Khalvashi and ment of the judgment, suspending On November 10, 2015, more than Panorama Ltd. against the Rustavi TV the powers of persons authorized to 70 states reviewed the state of human rights in Georgia. station and its partners, as a result of manage and represent the company [page.4] >> which the contracts on the acquisi- and appointing Davit Dvali (former tion of stake in Rustavi 2, which had shareholder of the company who ATTACK ON THE been concluded at various times, is also interested in the outcome of DIRECTOR OF were invalidated. In addition, the the case) and Revaz Sakevarishvili STUDIO CAMPUS judgment provides for the abolition (former representative of high-level On November 15, 2015, the of registration of the partners of management of a competitor chan- director of Studio Campus, M. Broadcasting Company Rustavi 2 Ltd. nel) as temporary managers. Khundadze, suffered an at- tacked. in the Public Registry and practically [page.6] >> awards Kibar Khalvashi 100% of the The ruling was followed by severe stake in Rustavi 2. criticism by the general public. In the view of non-governmental organiza- DRAFT LAW ON It should be noted that on November tions, the ruling contradicts the leg- EARLY MARRIAGE 2, 2015, a day before the Tbilisi City islation of civil procedure; it fails to IS PASSED ON THE FIRST READING Court passed the judgment, the Con- substantiate the necessity of applying The draft law introduces chang- stitutional Court of Georgia suspend- measures for securing enforcement; es in Article 1108 of the Civil ed the general mechanism of immedi- the circumstances TO BE CONTINUED >> Code of Georgia. [page.9] >> 2 NOVEMBER, 2015

<< BEGINNING mentioned in the substantiation of the ruling The ruling was also echoed by the High Council of Justice, can be considered as interference with the editorial poli- although, unlike other assessments, the object of its criti- cy of an independent TV station; the issuance of the ruling cism was the “moral pressure” on the judge rather than the practically prevented the enforcement of the judgment of ruling itself. the Constitutional Court of November 2, 2015; the impartiality of the persons appointed as temporary managers On November 10, 2015, the Georgian National Communi- is under doubt; and, also, the right of representatives of cations Commission released a statement regarding the Rustavi 2 to apply to a court has been restricted. developments surrounding Rustavi 2 which said that the broadcasting network of Rustavi 2 had not changed; the In the opinion of Janos Herman, EU Ambassador to Geor- public institutions had not interfered with the broadcast- gia, the aforementioned ruling is a serious step backward er’s editorial policy; and its editorial independence was for Georgia. guaranteed. However, in the view of the GNCC, the situation regarding the persons authorized to represent the And the US Ambassador to Georgia, Ian Kelly, has not- company (the authority of the former management has ed that “It will really be strange if the leading opposition been suspended, while the persons appointed by the rul- channel changes its editorial policy”. ing fail to exercise representative authority) “poses a real danger of interruption or, worse, termination of the broad- The case of Rustavi 2 was also echoed by the EU that called caster’s relations with third persons, which, in its turn, may on Georgia’s political actors to ensure free and pluralist cause the termination of functioning of the broadcaster media environment and political pluralism as a precondi- and its failure to fulfill obligations imposed on it by law.” tion for holding democratic elections and to refrain from any step or statement that is going to increase tension On November 12, 2015, the Civil Panel of the Tbilisi City Court and polarization. partially overturned the November 5, 2015 ruling as regards the appointment of Davit Dvali as a temporary manager, but On November 27, 2015, the European Commissioner, Jo- left it in force in relation to Revaz Sakevarishvili. In addition, hannes Hahn, talked about media freedom and imper- before the entry of the November 5 ruling into legal force, missibility of political persecution after meeting with the the Court restored the authority of the persons authorized Prime Minister in Tbilisi. to represent and manage the company, i.e. the former management. And on November 30, 2015, the Tbilisi City Court And according to the statement of Robert Herman, Vice overturned the ruling by Judge Urtmelidze on the appoint- President of International Programs of Freedom House, ment of temporary management in Rustavi 2 in its entirety. “The appointment of new management at Rustavi 2 ig- At the same time, the panel of judges partially modified the nores orders by the Constitutional Court and undermines August 5 judgment on seizing the assets of Rustavi 2 and democracy in Georgia.” allowed the company to rent out its equipment.

THE GOVERNMENT VERSUS THE CONSTITUTIONAL COURT The judgments of the Constitutional Court on the complaints regarding the Rustavi 2 TV station came under severe criticism from representatives the ex- ecutive and legislative branches of government. The judgment of the Con- SHUTTERSTOCK stitutional Court about the suspension of disputed norms on immediate enforcement of judgments of common courts was echoed by Manana Kobakhid- ze, Vice-Speaker of the Parliament. In her view, the Court passed the judgment very silently and covertly, without even listening to the arguments of the Par- liament and enquiring about the arguments of the respondent. The Speaker

of the Parliament of Georgia, Davit Usupashvili, also considers TO BE CONTINUED >> 3 NOVEMBER, 2015

<< BEGINNING it impermissible to pass judgments “covertly”. law and the practice of the Constitutional Court which por- tray the Constitutional Court as a participant in the political The Constitutional Court released a statement in response process and which are going to mislead the public.” to the aforementioned criticism, noting that “The Consti- tutional Court reviews each case within a term that is ob- Manana Kobakhidze severely criticized the Constitutional jectively necessary for deciding on a concrete issue”. In this Court even after the Court had suspended the disputed connection, the statement of the Court gives several exam- norm in connection with the appointment of temporary ples from the Court’s practice and indicates that the Consti- management. In connection with the aforementioned, tutional Court reviews cases within as short term as possible Ms. Kobakhidze stated that “the Court’s decision is cus- when delayed review/decision on the case will no longer tomized to the subjective interests of Rustavi 2, not to the bring results. In addition, according to the Court, decisions practice that the Court has had so far”. In her opinion, the on admitting a case for substantive consideration are usu- Constitutional Court passes questionable and unlawful ally taken without a verbal hearing, and verbal hearings are judgments. And according to Zviad Kvachantiradze, lead- only held in exceptional cases (when necessary), which was er of the parliamentary majority, members of the majori- not necessary in this case; therefore, the Court acted in full ty have remarks about the judgment and the judgment is compliance with the law. below all criticism.

In response to this, Manana Kobakhidze said that the The panel of the Constitutional Court was also accused of statement of the Court contained factual inaccuracies bias by Thea Tsulukiani, Minister of Justice, because, in her and that the Court was trying to justify its action by false opinion, “it is composed of former political leaders of the facts and inaccurate information. National Movement, former political officials”. The Minister of Justice also stressed that she was going to take important It should be emphasized that the Parliament of Georgia steps in the area of reforming the Constitutional Court.” filed a motion to challenge the judges of the Constitution- al Court. The motion lays out the main arguments that the The Court once again responded to criticism, noting that Vice-Speaker voiced through the media. The Parliament of the statements contained factually false information and Georgia believes that there are circumstances that question politically motivated criticism. the impartiality of members of the Constitutional Court, Konstantine Vardzelashvili and Maia Kopaleishvili. One of Non-governmental organizations responded to the se- the grounds for doubt is the judges’ long-term friendly rela- vere criticism towards the Constitutional Court by a state- tionship with Mr. Nika Gvaramia, Director-General of Rustavi ment supporting the Court. In their opinion, the state- 2 Broadcasting Company Ltd. The Parliament questions the ments of the representatives of the ruling coalition “are impartiality and objectivity of the November 2 judgment of saturated with superficial political assessments that have the Court on the suspension of the disputed norms. nothing in common with a substantiated legal critique of judicial acts. In certain cases, such statements may even The First Panel of the Constitutional Court unanimously re- amount to attempted pressure on the judiciary, which is fused to grant the Parliament’s motion and called on every- especially dangerous in relation to the cases currently be- one to “refrain from making incorrect statements about the ing heard or due to be heard by the Court.”

THE REPORT OF THE UN SPECIAL RAPPOR- TEUR ON TORTURE REGARDING GEORGIA On November 6, 2015, the Office of the United Nations elections and mentions the efforts of the authorities to High Commissioner for Human Rights (OHCHR) released combat torture and ill-treatment. The report says that the report of Juan Mendez, UN Special Rapporteur on Tor- physical violence and punishment and verbal insult of ture, which assesses his visit to Georgia on March 12-19, prisoners by employees of penitentiary institutions barely 2015. The Special Rapporteur indicates the drastic chang- take place anymore, though much remains to be done in es that were implemented after the 2012 parliamentary this regard and it is necessary to investigate TO BE CONTINUED >> 4 NOVEMBER, 2015

<< BEGINNING each such case immediately, effectively and trans- parently and to punish the relevant persons. In addition, cases of use of excessive force by police officers remain an important challenge.

The Special Rapporteur emphasizes that the regime of pre-trial detention has been made stricter unlawfully. He assesses semi-open, closed and particularly high-security penitentiary institutions and, also, singles out flaws that exist there. In addition, the report deals with the issue of impo- sition of additional sanctions, new penalties, on inmates in penitentiary institutions and placement in solitary confine- ment, emphasizing the cases where prisoners were charged with false reporting in connection with ill-treatment towards them, which they had reported to the Public Defender. In the opinion of the Special Rapporteur, this will have a freezing GEORGIA effect on future complaints regarding ill-treatment. In Mr. SHUTTERSTOCK Mendez’s opinion, it is also necessary to improve medical IS SCRUTI- services. NIZED AT The report emphasizes both the positive reforms imple- THE UNIVER- mented in the penitentiary system (and other areas) under the new government and the revealed flaws (e.g. failure of SAL PERIOD- the Georgian side to submit data on the effectiveness of the special suicide program to the Special Rapporteur, as well as IC REVIEW On November 10, 2015, more than 70 the problematic practice of the police to take persons from states reviewed the state of human the street to police stations without their consent in order to “talk” to them). rights in Georgia. They acknowledged progress in certain areas, though they The Special Rapporteur welcomes the action plan of the In- also emphasized problems in such ar- teragency Council that aims to decrease the cases of torture eas as gender equality, violence against and ill-treatment, as well as the legislative changes adopted women, and torture in detention facil- in connection with plea-bargaining, although he also notes ities. Speakers before the Universal Pe- that, according to the information at his disposal, plea-bar- riodic Review also included representa- gain agreements are still common and one can also observe tives of the Georgian government who the practice of forced plea-bargain agreements. talked about the progress achieved during the past years. Although the rep- It should be noted that the Special Rapporteur puts a par- resentatives of the Georgian delegation ticular emphasis on the Department for Investigation into stated that the systemic problem of tor- Crimes Committed in the Course of Legal Proceedings, which ture and ill-treatment no longer exists in was created within the Prosecutor’s Office, and notes that it Georgia, a number of leading countries cannot supplant an independent investigative mechanism. gave Georgia further recommendations At the same time, it is unclear whether the Department will investigate only past cases of torture and ill-treatment or cur- in this area. The meeting participants rent cases as well. He also emphasizes that the Department also discussed issues of women’s rights, does not include forensic medical experts. In contrast with domestic violence, and freedom of the this, Mr. Mendez welcomes the legislative initiative on the media. The recommendations the states creation of an independent investigative mechanism which gave to Georgia will be published in enjoys broad support from international organizations and February. the civil society. 5 NOVEMBER, 2015 BY-ELEC- CASES OF USE OF TIONS IN EXCESSIVE FORCE MARTVI- BY POLICE On November 22, 2015, the P.S. TV program on Rustavi 2 aired a re- LI AND port in which citizens talk about physical violence and exceeding SAGAREJO of authority by the police. On October 31, 2015, by-elections were In particular, according to the program, police officers in the Kob- held in the Martvili and Sagarejo districts. It uleti Police Division physically abused Besik Makharadze to make had become necessary to hold by-elections him confess to robberies committed in Kobuleti and the village in Martvili after the death of the district’s of Gvara. After spending 72 hours in the police division, Besik majoritarian MP, while Tina Khidasheli, who Makharadze returned home with abrasions on his body, concus- had been elected the majoritarian MP of sion, and injured neck vertebrae. Sagarejo, became a member of the Cabinet. The holding of the by-elections came under It should be noted that several days before the detention of Besik criticism by a part of the society, because, Makharadze, Merab Takidze, 21, was taken directly from the Sarpi according to them, it contradicts the May customs checkpoint to the police station in connection with the 28, 2015 judgment of the Constitutional same robbery committed in Gvara. The latter has named two per- Court on the case of Ucha Nanuashvili and sons who threatened him with various types of physical violence. Mikheil Sharashidze v. Parliament of Geor- The police demanded that he confess to the crime and, in return, gia in which the Court found the model of offered release after concluding a plea-bargain agreement. majoritarian system existing in the country unconstitutional. A constitutional com- And on October 30, the Ministry of Internal Affairs released astate - plaint was also filed in the Constitutional ment saying that both robberies had been solved successfully and Court with the demand of finding by-elec- quickly. Besik Makharadze and Merab Takidze were put on trial for tions unconstitutional, though the Court resistance to police officers and released after a bail of GEL 3,000 refused to admit the case for substantive was imposed on them. consideration due to a formal flaw. The case of Giorgi Mdinaradze The by-elections were monitored by sever- On November 8, 2015, lawyer Giorgi Mdinaradze was abused al NGOs. The Georgian Young Lawyers As- physically in police station no. 5 of the Vake-Saburtalo District. Gi- sociation identified 19 violations and filed orgi Mdinaradze is a public (treasury-funded) lawyer who arrived a total of 17 complaints in district electoral at the police station to defend the interests of an underage person commissions, while the International Soci- at about 2:15 AM on November 8. Before the interrogation start- ety for Fair Elections and Democracy filed ed, Mr. Mdinaradze told the investigator that the minor was using 12 complaints. According to the NGOs, the right to silence. The lawyer argues that it was this fact that several problematic issues were identified caused the physical assault which involved the chief of the police during these elections. These included station, Lasha Kvirkvaia, together with several police officers. pre-election boycott by opposition parties; flaws in legislative regulations, including On the same night, Mr. Mdinaradze was detained under Article those related to the so-called special pre- 173 of the Code of Administrative Offenses which envisages pun- cincts; passive and ineffective reaction of ishment for non-compliance with a lawful order or demand of a law enforcement bodies; low voter turnout; police officer. low qualification of members of electoral commissions; etc. Currently, the Parliament The Prosecutor’s Office of Tbilisi has launched aninvestigation is deliberating on the model of the 2016 into the battery of the lawyer under Article 333 (exceeding official parliamentary elections. powers) of the Criminal Code of Georgia. In parallel, TO BE CONTINUED >> 6 NOVEMBER, 2015

<< BEGINNING the General Inspection of the Ministry of Internal Af- fairs is also conducting an inquiry. ATTACK ON The alleged physical assault on the lawyer was also followed by THE DIREC- response of non-governmental organizations that demanded a transparent and effective investigation and adequate punish- TOR OF STU- ment of the offenders. DIO CAMPUS On November 15, 2015, the director of Stu- On November 10 of the same year, media outlets disseminated dio Campus, M. Khundadze, suffered an at- information that Lasha Kvirkvaia, chief of police station no. 5 of tacked. The incident took place at a public the MIA’s Vake-Saburtalo Division, had been dismissed from his lecture organized by Studio Campus, in an position until the completion of the investigation into the bat- apartment on Milorava Street. As the lecture tery of lawyer Giorgi Mdinaradze. And on November 13, the said was attended by a large number of listeners, person was detained as a defendant accused of violence against the organizers used loudspeakers and the Mr. Mdinaradze, although non-governmental organizations still voice was also heard on the adjacent area. demand that all the persons who took part in the battery be As Mr. Khundadze himself has said, presum- identified and properly punished. On December 29, the Tbilisi ably, they were thought of as “sectarians” and City Court replaced detention with bail as a measure of restraint “Satanists” due to the content of the lecture. and released Lasha Kvirkvaia from the courtroom. Nietzsche’s well-known expression “God is dead”, which was voiced at the time of the The case of O.R. lecture, was followed by particular discon- According to defendant O.R., who is held in the Tbilisi and Mtskhe- tent. Specifically, after a part of those pres- ta-Mtianeti temporary detention facility of the MIA, on October ent at the event tried to disrupt the lecture, 13, 2015, police officers put him in a car after detention and -as the head of the center, Mikheil Khundadze, saulted him physically and verbally. According to a representa- demanded strictly that they leave the place. tive of the Public Defender, the detainee, in fact, bore injuries. In The verbal argument soon grew into physical connection with this fact, the Public Defender has applied to the violence. The young people who had left the Chief Prosecutor with a proposal to launch an investigation. lecture brought a person who stabbed Mr. Khundadze in the chest after assaulting him The case of Ladi Elikashvili verbally near the entrance of the building. Ladi Elikashvili, 19, a resident of the village of Dzirkoki, Gurjaani According to the MIA, the defendant was District, has accused the chief of the Gurjaani Police Division Gi- detained red-handed after the incident on orgi Kratsashvili, his deputies, and several officers of beating him. Milorava Street. The investigation is under According to the victim, on October 29, 2015, he was unlawfully way under Article 19-108 of the Criminal detained in the yard of the police station after which police offi- Code, which envisages punishment for pre- cers abused him physically. Ladi Elikashvili states that the physical meditated murder attempt, while aggravat- assault lasted for about 15-20 minutes. It should be noted that Mr. ing circumstances are yet to be identified. Elikashvili links the incident to his brother-in-law, Guram Natsvlish- vili, who moved to work in the Signagi police due to a disagree- The aforementioned incident was followed ment with Giorgi Kratsashvili, chief of the Gurjaani Police Division. by a statement of non-governmental organizations comprising the “No to Phobia!” At the court hearing held on November 5, the persons accused civil platform and other NGOs. According to by Mr. Elikashvili – deputy chiefs of the police, Giorgi Darejanash- them, the act should be given an appropri- vili and Shota Mosulishvili, and detective/investigator Gocha ate legal assessment and the motive of reli- Aptsiauri – were interrogated as witnesses. gious-ideological hate that is clearly visible in the case should be taken into account. The According to the statement of the Ministry of Internal Affairs, the NGOs note that the explanations of the vic- investigation is being conducted by the Prosecutor’s Office and tim and eye-witnesses to the said incident if a crime or an infraction is confirmed, all the persons, especially presumably indicate signs of a hate crime. the police chief, will be punished adequately. 7 NOVEMBER, 2015 A CASE OF RACISM IN SCHOOL On November 22, 2015, Rustavi 2 aired a news report in which a mother and her daughter, Rusudan Amirejibi and Mimi Chineke, accuse teachers of Tbilisi’s public school no. 130 of racial discrimina- tion. Rusudan Amirejibi is going to file a complaint in court, saying that her daughter was discriminat- ed against in the school due to the color of her skin. In parallel, the activity of public school no. 130 is being studied by the Monitoring Service of the Min- istry of Education. The Minister of Education, Tamar SHUTTERSTOCK Sanikidze, has stated that if the fact is confirmed, the concrete teachers will be held accountable. GUNMEN OPEN FIRE AT THE OF- FICE OF JEHO- OFFICIAL VAH’S WITNESS- MISCONDUCT ES TWICE DUR- The Anti-Corruption Agency of the State Security ING A WEEK Service detained R. Putkaradze, Deputy Head of the On November 23, 2015, at about 11 PM, un- Municipal Administration of the Shuakhevi Munici- known persons opened fire at the building of pality, on the charges of taking a bribe. According to the Royal Hall of Jehovah’s Witnesses in the the investigation, he unlawfully transferred a state- Vazisubani settlement in Tbilisi. No one was owned land parcel (with an area of 2 hectares) to a hurt as a result of the shooting, but the walls citizen and received USD 10,000 from him as a bribe. of the building were damaged and the glass An employee of Penitentiary Institution No. 15, panes were broken. According to M. Tsimintia, G. Nozadze, was also detained on the charges of the lawyer of Jehovah’s Witnesses, up to 20 bul- taking a bribe. According to the investigation, Mr. lets were found on the scene of the incident. Nozadze had promised a citizen that he would It should be noted that the scene of the inci- take a SIM card for a mobile phone into Penitentia- dent is located 300 meters from a police sta- ry Institution No. 15 to later deliver it to a prisoner, tion, though the police only started to study in return for which he demanded and got a bribe the incident on November 24, after members of GEL 7,000. of the organization had applied to the police. The MIA launched an investigation under Ar- The Investigation Service of the Ministry of Fi- ticle 187 (damage or destruction of property) nance detained a customs officer of the Vale cus- of the Criminal Code of Georgia. The building toms checkpoint and his three accomplices on the was targeted by gunmen again in the evening charges of taking a bribe. According to the investi- of November 30. It should be taken into ac- gation, they had demanded a bribe of USD 5,400 for count that the number of attacks on Jehovah’s allowing a citizen to bring 3 kilograms of gold from Witnesses that were motivated by hate has in- Turkey into Georgia without a customs clearance creased considerably in the past two years. and taken a part of the demanded sum in advance. 8 NOVEMBER, 2015

THE MINISTRY OF THE FATE OF DISPUTED INTERNAL AFFAIRS BUILDING IN MOKHE IS RELEASES CRIME STATISTICS FOR YET TO BE DECIDED OCTOBER AND Residents of the village of Mokhe have applied to the Prime Minister, Pres- ident and Public Defender of Georgia regarding the lack of a house of wor- JANUARY-OCTO- ship. The letter concerns the building in Mokhe (remnants of a mosque) BER PERIOD which became an object of dispute after, on October 22, 2014, on the de- In October 2015, 3,486 crimes cision of the local self-government body of Adigeni, a large-scale police were registered by all the inves- force started to remove the remnants, because it was planned to convert tigative agencies of Georgia, of the building into a cultural center by the company that had won the ten- which 1,565 crimes were solved. der. The Muslim population of the village protested against this fact. To The case-solving index amounts settle the dispute, on December 2, 2014, a special commission was set up to 44.89%. In comparison with the that was supposed to decide the fate of the building. According to the results of the same period of last residents of Mokhe, no decision has been taken regarding the disputed year, the number of crimes has in- building, the building is still without a roof and is being destroyed, and creased by +0.72% (25 crimes). It they still have to pray in a private house. It should be noted that, accord- should be noted that, in compar- ing to news reports, members of the commission have not yet carried out ison with 2014, the number of cas- any activities to determine the origin of the building. es of domestic violence in Janu- ary-October 2015 has increased by +88% (an increase by 406 cases). REPORT ON THE ACTIVITY OF THE DEPART- MENT FOR INVESTIGATION OF CRIMES COM- MITTED IN THE COURSE OF LEGAL PROCEED- NGOS APPEAL TO INGS OF THE CHIEF PROSECUTOR’S OFFICE THE PARLIAMENT The Department for Investigation of The investigation continues in re- OF GEORGIA RE- Crimes Committed in the Course of lation to persons who gave orders GARDING APPROVAL Legal Proceedings of the Chief Prose- (including the highest political offi- OF CANDIDATE FOR cutor’s Office has completed investi- cial). According to the Prosecutor’s THE POSITION OF gation of five cases of forcible confisca- Office, the results of the investi- tion of property from citizens. During gation will be made known to the CHIEF PROSECUTOR three months of work, the Department public as soon as the investigative Non-governmental organizations received up to 1,000 complaints/ap- actions are completed. have already given a negative as- plications, investigated 118 criminal sessment to the concept of reform cases, and exposed 5 public officials. It should be noted that, according of the prosecution system and to These include a former high-ranking to a decree of the Government of the legislative changes prepared official of the Department of Constitu- Georgia, on the basis of the final in this regard. According to their tional Security, K. Archaia; a senior offi- decision of the Prosecutor’s Office, statement, the process of practical cial of the Prosecutor’s Office; a pros- the Ministry of Economy and Sus- implementation of the aforemen- ecutor of a district prosecutor’s office; tainable Development of Georgia tioned changes was also accompa- and a deputy chief of a district division has been directed to transfer the nied by considerable flaws, in par- of the MIA. property on the state balance sheet ticular, the process of election of – which the damaged parties were members of the Prosecutors’ Coun- The Prosecutor’s Office used its dis- forced to give up, donate, or leave cil by the Prosecutors’ Conference cretion in relation to two of them as a result of unlawful acts of var- and the selection of candidates for and didn’t launch criminal prosecu- ious public officials – to the dam- the position of the Chief Prosecu- tion due to their particularly close aged parties to compensate for the tor by the Prosecutors’ Council was cooperation with the investigation. corresponding damage. not open and trans- TO BE CONTINUED >> 9 NOVEMBER, 2015

<< BEGINNING parent, which raised questions about the ongoing THE MINISTER OF JUS- process. It should be noted that due to the existing flawed legal regulation, the MPs outside the parliamentary majority and a TICE PRESENTS A NEW number of NGOs waived their right to nominate candidates for PROCEDURE OF IN- the position of the Chief Prosecutor. TERROGATION OF WIT- At the same time, the stages of nomination and interviewing NESSES TO THE GOV- of the candidates by the Minister of Justice were not open and ERNMENT transparent, as was indicated in previous statements. In the On November 19, 2015, the Minister of Justice, opinion of the NGOs, holding the meeting behind closed doors Thea Tsulukiani, presented a package of legisla- contradicts the principle of openness of meetings of collegial tive changes at the government meeting. The agencies and the declared goal of the reform itself. changes include new procedures and standards of interrogation of witnesses. The said standards The NGOs call on members of the Parliament of Georgia to take imply voluntary questioning of witnesses, and into account the flaws in the process of nomination and selection they introduce new standards of interrogation of candidates when they discuss the candidates for the position before a judge for cases when such need arises. of the Chief Prosecutor of Georgia and to plan and ensure the im- According to the Minister of Justice, the capa- plementation of a meaningful reform of the prosecution system. bilities of law enforcement officers to combat As a reminder, considering the new regulations that were men- crime will not be weakened, which is even more tioned above, on November 27, 2015, the Parliament of Georgia important against the background of current approved Irakli Shotadze as the Chief Prosecutor with 82 votes. challenges; at the same time, however, they will be obligated to comply with a higher standard of protection of human rights, which implies turn- ing a witness into a partner and participant in DRAFT LAW ON EARLY MAR- solving a crime. RIAGE IS PASSED ON THE FIRST READING The package of legislative changes has already The draft law introduc- been submitted to the Parliament of Georgia. es changes in Article The Georgian Democracy Initiative sent its own 1108 of the Civil Code observations regarding the said initiative to the of Georgia. According Ministry of Justice of Georgia. The organization to the current wording, considers it unacceptable that the provisions on the marriage of a mi- the procedure of interrogation of witnesses that nor who has reached were contained in the Code of Criminal Procedure the age of 16 is permitted with a prior written consent adopted in 1998 are still in force, because they put of his/her parents or custodian. And if the parents or the

SHUTTERSTOCK the parties to criminal proceedings in unequal custodian withhold consent, or if it is impossible to obtain position. The Georgian Democracy Initiative also consent, a court may grant a permission to marry based gives a negative assessment to the draft law sub- on the application of the persons to be married, provid- mitted by the Ministry of Justice of Georgia which ed there are valid reasons for it. still makes it possible to force a witness to show According to the proposed changes, the marriage of a up before a magistrate judge while an investiga- minor who has reached the age of 16 is only permitted tion is under way if the witness refuses to be ques- with the consent of a court; at the same time, the grounds tioned and a party believes that he/she possesses for consent are determined by law. These grounds are important information about the case. The orga- pregnancy and childbirth. The changes aim at preventing nization offers the Ministry to discuss the possibil- undesirable and forced marriages of minors aged 16 to ity of gradual transition to the procedure that was 18, which often takes place on the basis of the consent of adopted in 2009. parents. In the future, it is planned to prohibit marriage till the age of 18 altogether. The initiative of the Ministry of Justice was also assessed negatively by other NGOs. 10 NOVEMBER, 2015

PERSONS CONVICTED FOR CONSUMING MAR- IJUANA LEAVE PENITEN- TIARIES According to the Ministry of Corrections and Probation, persons convicted for consuming marijuana were released after common courts had re-examined their cases, considering new circumstances that are related to the judgment of the Constitutional Court that declared detention of a person for consuming marijuana, i.e. application of a custodial penalty SHUTTERSTOCK against such a person, unconstitutional. THE ZUGDIDI COURT On September 29, 2015, the Legal Issues Committee of the SENTENCES A PERSON Parliament unanimously supported the abolition of applica- INDICTED FOR VIO- tion of imprisonment as a penalty for consuming marijuana. LENCE AGAINST HIS In the opinion of the Committee members, consumption of WIFE TO SEVEN YEARS marijuana should remain a criminal offense, though depri- vation of liberty should be replaced with a lighter sanction. OF IMPRISONMENT The Legal Issues Committee supported the principle that this The Zugdidi court found D. Zhorzhorliani crime should no longer be punishable by imprisonment, and guilty of committing crimes punishable by 1 the Criminal Code should only envisage a fine or socially use- Articles 126 (domestic violence) and 138 ful labor for such act. (violent act of sexual nature) of the Crimi- nal Code and sentenced him to seven years of imprisonment. The case concerns physical violence against his spouse because she did not turn out to be a virgin. THE TBILISI CITY COURT UPHOLDS THE DECISION OF THE PERSONAL DATA PROTECTION INSPECTOR DETENTION OF ON FINING CREDITON AND MEMBERS OF CREDITINFO GEORGIA FREE ZONE The case concerns processing and transmission of data with- On November 21, 2015, a member of Free Zone, out relevant legal grounds in violation of Article 43 of the Law G. Rukhaia, who was demanding the release of of Georgia on Personal Data Protection, due to which the In- Nika Narsia, Kakha Gabunia, and Mirian Deisadze spector imposed a fine in the amount of GEL 500 on each of – members of Free Zone detained on October the aforementioned organizations. The Tbilisi City Court left 3, 2015 – was detained for posting a banner. the said decision in force and held that microfinance organi- According to the Ministry of Internal Affairs, G. zation CreditOn had exceeded its authority and violated the Rukhaia was detained under Article 150 of the law while verifying data on a citizen, since it did not have the Code of Administrative Offenses which envisag- citizen’s consent for verifying the data. The law was also vio- es punishment for defacing the appearance of lated when, despite the citizen’s request, he/she was not pro- a self-governing unit. As a reminder, the three vided with information about him/her in written form. The members of Free Zone were detained because of Law on Personal Data Protection was also violated by Cred- a physical assault on MP Davit Lortkipanidze at a itInfo Georgia when it transmitted data on a citizen to the protest in support of Rustavi 2 that was held near microfinance organization without relevant legal grounds. the Parliament building on October 3, 2015. 11 NOVEMBER, 2015 COURT JUDGMENTS JUDGMENT OF THE EUROPEAN COURT OF HUMAN RIGHTS – VAKHTANG MENABDE V. GEORGIA The case concerns the protests with the demand of resig- By a unanimous declaration submitted to the ECHR, nation of the President that were held in Georgia in April- the Government of Georgia acknowledged the vio- June 2009 and which were monitored by Georgia’s Public lation of the procedural part of Article 3 and Parts Defender’s Office 24 hours a day. On June 15, 2009, at the 1 and 2 of Article 5 of the Convention. In addition, time of one of such protests, police officers physically the Government took the obligation to conduct an abused a representative of the Public Defender, Vakhtang effective investigation into the fact of inflicting in- Menabde, who was observing the protest as part of the juries to Vakhtang Menabde that had taken place on said monitoring. The police officers placed him in a tem- June 15, 2009, and to pay compensation to the vic- porary detention isolator of the Main Police Division, al- tim. The ECHR evaluated the said declaration and, though after they had learned of his status, they released according to the ruling released on November 5, him in 15 minutes. On the basis of several applications of 2015, removed this case from the list of cases to be the Public Defender and Mr. Menabde, the Chief Prosecu- examined. It should be emphasized that if the State tor’s Office of Georgia launched an investigation, though defaults on the obligations it has taken, the case will it is still ongoing, with the applicant yet to be granted the again be included in the list of cases to be examined status of a victim and the offenders yet to be identified. by the ECHR.

JUDGMENTS OF THE CONSTITUTIONAL COURT

NODAR MUMLAURI V. PARLIAMENT OF GEORGIA In this case, the Court was supposed to assess the con- in a similar situation in which the said persons are regard- stitutionality of Subparagraphs C and D, Paragraph 1, Ar- ed as objects rather than subjects of law and constitute a ticle 9 of the Law of Georgia – Liberty Charter in relation means for achieving concrete goals”. to Article 14 and the first paragraphs of Articles 17 and 29 of the Constitution of Georgia. According to the dis- In addition, the Court indicated that the disputed norms puted norms, members of the central committees of the constitute a proportional restriction of the right to hold a former USSR and the SSR of Georgia, secretaries of district public office and do not contradict the requirements of and city committees, and members of bureaus of central Article 29 of the Constitution of Georgia. In the opinion committees of the Youth Leninist-Communist Union were of the Court, the restriction envisaged by the disputed prohibited from taking positions in various public institu- norms is also legitimate in relation to Article 14 of the tions for the rest of their lives. Constitution.

The Court found the aforementioned norms unconstitu- It should be noted that two judges, Zaza Tavadze and tional and noted that such treatment is not in compliance Tamaz Tsabutashvili, wrote a dissenting opinion on the with the right to dignity guaranteed by the Constitution, said case. In their opinion, the disputed norms are also un- because “by introducing the disputed norms, the legisla- constitutional in relation to Paragraph 1 of Article 29 and tor established a legal regime for the plaintiff and persons Article 14 of the Constitution. 12 NOVEMBER, 2015

PUBLIC DEFENDER OF GEORGIA V. GOVERNMENT OF GEORGIA The object of dispute in this case was the constitutionali- Despite the fact that, using the rational differentiation ty of Article 103 of Ordinance No. 145 of the Government test, the Court established that the disputed norm sets of Georgia on Social Aid of July 28, 2006, in relation to a high intensity of differentiation, based on the anal- Article 14 of the Constitution of Georgia. The disputed ysis of the legal nature of reintegration and foster care, norm determines the amounts of reintegration allow- it deemed that in this case the differentiated treatment ance for healthy children and children with disabilities. of essentially equal persons has a rational basis and that the disputed norm meets the constitutional standard of The plaintiff stated that the reintegration allowance was interference with a right protected by Article 14 of the less than the amount of compensation for foster care. In Constitution of Georgia. Compensation for foster care the plaintiff’s opinion, in the cases of both reintegration serves to compensate for the activities carried out by and foster care, children, as well as biological parents and the receiving family to ensure that a child lives in a fam- foster mother/foster father, constitute essentially equal ily environment, together with compensating expenses persons; accordingly, the disputed norm puts essentially of child care; and the aforementioned contributes to the equal persons in different situations, which is not in com- achievement of such legitimate goal as the creation of pliance with the child’s best interests, and, for this reason, a family environment for a child using the institution of it should be found unconstitutional. foster care. Thus, the Court did not grant the complaint.

LEVAN GVATUA V. PARLIAMENT OF GEORGIA On November 25, 2015, the Constitutional Court of Geor- envisaged by the law due to medical or other reasons. gia admitted a constitutional complaint of citizen of The main goal of such restriction is to avoid the threat of Georgia Levan Gvatua against the Parliament of Georgia trade in human organs. for substantive consideration and, at the same time, suspended the normative content of the disputed norm. The plaintiff requires transplantation of the liver, which is the only means of retaining his life, although it has been The case concerns the constitutionality of Paragraph B, impossible to find a donor from the circle of persons Article 18 of the Law of Georgia on Transplantation of Hu- determined by the law, and his life is in danger because man Organs in relation to Article 15 of the Constitution of the imposed restriction, due to which he demanded of Georgia. According to the disputed norm, live dona- suspension of the norm. The Court granted the plaintiff’s tion is only permitted from a genetic relative, a spouse motion and suspended the normative content of the dis- or a spouse’s relatives. The law prohibits organ trans- puted norm which excludes persons with emotional links plantation from any other person even in cases when it to a patient from the circle of live donors who are allowed is impossible to find a donor from the circle of persons to donate the liver.

BROADCASTING COMPANY RUSTAVI 2 LTD. AND TELEVISION COMPANY SAKARTVELO LTD. V. PAR- LIAMENT OF GEORGIA On November 2, 2015, the Constitutional Court of Geor- 1, Article 268 of the Code of Civil Procedure of Georgia gia admitted a constitutional complaint of Broadcasting in relation to Paragraph 1, Article 21 of the Constitution Company Rustavi 2 Ltd. and Television Company Sakart- of Georgia, as well as the constitutionality of the second velo Ltd. for substantive consideration. The complaint sentence of Article 269 of the Code of Civil Procedure of concerns the constitutionality of Subparagraph G, Part Georgia in relation to Paragraphs 1 and 3 TO BE CONTINUED >> 13 NOVEMBER, 2015

<< BEGINNING of Article 42 of the Constitution of Georgia. The disputed norms concern the issue of immediate enforcement of court judg- “FROM DIGNI- ments. TY TO RIGHTS” Considering several important factors, the Court deemed that the – TRAININGS disputed norm could cause irreparable damage to the plaintiff and suspended Subparagraph G, Part 1, Article 268 of the Code of Civil FOR CIVIC Procedure until the delivery of the judgment. EDUCATION TEACHERS In November 2015, the Georgian Democracy Initiative held several TELEVISION COMPANY trainings in the framework of the SAKARTVELO LTD. V. project “Advancing tolerance, reli- gious freedom and human rights PARLIAMENT OF GEORGIA in Georgia”, which is implement- On November 13, 2015, the Constitutional Court of Georgia admit- ed with the funding of the Human ted the constitutional complaint of Television Company Sakartvelo Rights Fund of the Ministry of For- Ltd. against the Parliament of Georgia for substantive consideration. eign Affairs of the Kingdom of the At the same time, the Court suspended the normative content of the Netherlands. The trainings aimed at first sentence of Part 3, Article 198 of the Code of Civil Procedure of raising the consciousness of teach- Georgia and of Article 271 of the same Code which envisages grant- ers of civic education by teach- ing the authority to direct, manage, and represent a legal person ing them the principles of human – print or electronic outlet of mass communication – to temporary rights, prohibition of discrimina- management as a measure of securing a court judgment. tion, and equality.

The trainings were held in the fol- In the opinion of the Court, the disputed norms do not clearly deter- lowing territorial units: mine the limits of authority of temporary management. In addition, the legislation does not contain effective legal safeguards ensuring November 6 – Rustavi; adequate and proportional compensation if the temporary manage- November 10 – Telavi; ments causes damage to a company. It should also be noted that, November 12 – Zugdidi; due to the specific nature of the TV station’s activity, it will be impos- November 16 – Gori. sible to provide an adequate compensation for the alienation of the property. Judging by the aforementioned, the Court deemed that The teachers who took part in the “entrusting the management of the broadcasting company to tem- trainings were awarded certificates porary management may cause a change in the value of Broadcast- and video lessons on the topics of ing Company Rustavi 2 Ltd. and, accordingly, in this case, a change, a “Equality and tolerance” and “From decrease of the value of the stake owned by the plaintiff (Television dignity to rights” which had been Company Sakartvelo Ltd.), which may cause irreparable damage that produced by the Georgian Democ- will be impossible to compensate through civil proceedings against racy Initiative. the temporary management”.

THIS PROJECT IS FINANCIALLY SUPPORTED BY THE HUMAN RIGHTS FUND OF THE NETHERLANDS’ MINISTRY OF FOREIGN AFFAIRS

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