2011 The Public Defender of Georgia ANNUAL REPORT OF THE PUBLIC DefeNDER OF GeorgIA 1 The views of the publication do not necessarily represent those of the Council of Europe. The report was published with financial support of the Council of Europe project, “Denmark’s Georgia Programme 2010-2013, Promotion of Judicial Reform, Human and Minority Rights”. 2 www.ombudsman.ge ANNUAL REPORT OF THE PUBLIC DEFENDER OF GeorgIA THE SITUATION OF HUMAN RIGHTS AND FREEDOMS IN GEORGIA 2011 2011 THE PUBLIC DEFENDER OF GeorgIA ANNUAL REPORT OF THEwww.ombudsman.ge PUBLIC DefeNDER OF GeorgIA 3 OFFICE OF PUBLIC DEFENDER OF GEORGIA 6, Ramishvili str, 0179, Tbilisi, Georgia Tel: +995 32 2913814; +995 32 2913815 Fax: +995 32 2913841 E-mail: [email protected] 4 www.ombudsman.ge CONTENTS INtrodUCTION ..........................................................................................................................7 JUDICIAL SYSTEM AND HUMAN RIGHTS ........................................................................11 THE RIGHT TO A FAIR TRIAL ........................................................................................11 ENFORCEMENT OF COUrt JUDGMENTS ...............................................................37 PUBLIC DEFENDER AND CONSTITUTIONAL OVERSIGHT ...........................41 LAW ENFORCEMENT BODIES AND HUMAN RIGHTS .......................................46 CIVIL-POLITICAL RIGHTS ..................................................................................................51 FREEDOM OF ASSEMBLY AND MANIFESTATIONS ............................................51 FREEDOM OF EXPRESSION ...........................................................................................67 FREEDOM OF INFORMATION ......................................................................................75 FREEDOM OF RELIGION AND TOLERANCE ENVIroNMENT ......................81 2011 RIGHTS OF NATIONAL MINORITIES AND SUpport TO CIVIC INTEGRATION .........................................................................................................87 SOCIAL AND ECONOMIC RIGHTS ..................................................................................95 RIGHTS TO PropertY .....................................................................................................95 PropertY RIGHTS VIOLATIONS IN CRIMINAL ProCEEDINGS ..................101 THE RIGHTS OF TAXPAYERS ..........................................................................................109 RIGHTS TO ADEQUATE HOUSING .............................................................................116 RIGHTS TO SOCIAL SECURITY .....................................................................................119 RIGHT TO WORK IN PUBLIC SERVICE ......................................................................125 SOME ASPECTS RELATED TO THE IMPLEMENTATION OF THE RIGHT TO HEALTH ..........................................................................................130 RIGHTS OF INTERNALLY DISPLACED PERSONS IN GeorgIA .....................140 ANNUAL REPORT OF THE PUBLIC DefeNDER OF GeorgIA 5 THE RIGHTS OF REFUGEES AND ASYLUM SEEKERS .........................................159 HUMAN RIGHTS SITUATION OF POPULATIONS AFFECTED BY CONFLICT ................................................................................................164 THE RIGHTS OF ECO-MIGRANTS/PERSONS AFFECTED AND DISPLACED BY NATURAL DISASTERS ............................................................167 THE SITUATION PertAINING TO THE RIGHTS OF PERSONS – MESKHETIANS, FORCEFULLY Deported froM GeorgIA BY THE FORMER USSR IN THE 40-IES OF THE 20TH CENTURY .....................175 THE RIGHTS OF THE CHILD ..........................................................................................181 THE RIGHTS OF WOMEN ................................................................................................194 THE RIGHTS OF PERSONS WITH DISABILITIES ...................................................200 NATIONAL PREVENTIVE MECHANISM .....................................................................213 SITUATION IN THE PENITENTIARY ESTABLISHMENTS ..................................215 SITUATION IN THE TEMPORARY DETENTION ISOLATORS OF THE MINISTRY OF INTERNAL AFFAIR… ...........................................................282 ProteCTION OF HEALTHCARE IN THE PENITENTIARY SYSTEM OF GeorgIA ........................................................................................................292 6 www.ombudsman.ge Introduction This publication is the Report of the Public Defender of Georgia on the Situation of Human Rights and Freedoms in Georgia in 2011, submitted to the Parliament of Georgia in accordance with Article 22 (1) of the Organic Law on the Public Defender of Georgia. The Report covers a wide range of rights and freedoms, and provides an overview of civil and political, as well as economic, social and cultural rights, as exercised in Georgia. It highlights general tendencies in the context of human rights, and concrete facts of violations that were found to occur in the period under review. In the reporting period the Public Defender’s Office looked at the practice of certain governmental bodies to analyse it from the perspective of human rights and freedoms, explored the violations that occurred, and followed on them accordingly. Results of the regular monitoring conducted by the Public Defender exercising the National Preventive Mechanism (NPM) functions, analysis of the cases and submissions demonstrate that adequate protection of the rights of persons within the penitentiary system continues to be a major challenge. In 2011, the Public Defender looked into, and followed on, the concrete facts of ill-treatment of persons in custody, as well as other breaches within the system, related mostly to inadequate protection of the prisoners’ right to health, and other fundamental rights. The year under review showed also a high rate of death in custody, which remained practically unchanged since 2010. Analysis of the relevant 2011 cases suggests high incidence of tuberculosis within the penitentiary system, which is a leading cause of death among prisoners. At the same time, commendably, the Ministry of Corrections and Legal Assistance of Georgia implemented some of the important recommendations made by the Public Defender. Part of the proposals and observations made by the National Preventive Mechanism (NPM) were taken on board in the process of elaborating the Penitentiary Healthcare Reform Strategy and the relevant Action Plan. We are hopeful that the changes implemented in the system will be instrumental in ensuring better practical implementation of the rights of persons deprived of their liberty. Participation in the process of constitutional justice is an important part of the work of the Public Defender of Georgia. The Public Defender actively exercises his right to address the Constitutional Court in case he considers that a normative act, or its particular norms, violate the human rights and freedoms laid down in Chapter 2 of the Constitution. In the reporting period the Constitutional Court adjudicated over three constitutional complaints lodged by the Public Defender, of which two were satisfied and one dismissed. The Report offers a short overview of the judgments made by the Constitutional Court of Georgia. An important focus of the Report is the right to a fair trial. Analysis of complaints and applications referred to the Public Defender’s Office, and the monitoring conducted by members of PDO make clear that the exercise of judicial ANNUAL REPORT OF THE PUBLIC DefeNDER OF GeorgIA 7 Introduction power is not free of problems either. The most controversial again is the criminal justice. It is not infrequent that procedural actions taken in the course of proceedings, as well as penalties applied offend the right to property laid down in, and protected by the Constitution of Georgia. This problem was extensively explored in the previous report of the Public Defender; regrettably, no effective action has been taken either by the legislature or the judiciary to address this problem. Another persistent problem is the one related to safeguarding the rights of the parties involved in proceedings on administrative offences. The problems found in respect of adjudication on administrative offences stem largely from the obsolete character of the Code of Administrative Offences. Certain deficiencies were found in terms of publicity of proceedings and physical access to courts. In 2011, the number of submissions to the Public Defender’s Office concerning enforcement of judicial decisions was fairly high. Many of the violations occurring in this area seem to result from defects of the law that must be corrected as a matter of urgency. Violations of human rights by members of law-enforcement bodies represent a recurrent theme in parliamentary reports of the Public Defender of Georgia The reporting period of 2011, too, saw numerous instances of abuse by law-enforcement officers, mostly in the form of degrading treatment and disproportionate use of force. Many of the violations examined by the Public Defender resulted from excessive use of force by police during the break-up of the protest rallies. Besides, the Report describes documented cases of disproportionate use of force and excess of authority during arrest. Unfortunately, the same abusive practices continued even after detained persons were placed in police custody. The reporting period coincided in time with the events