200 6 The Public Defender of Georgia Report of the Public Defender of Georgia 1 Human Rights in Georgia Report of the Public Defender of Georgia 2006Second half of TBILISI 2007 THE REPORT WAS PUBLISHED WITH THE FINANCIAL SUPPORT OF GOVERNMENT OF NORWAY AND UNITED NATIONS DEVELOPMENT PROGRAM (UNDP) Contents 1. INTRODUCTION 9 2. THE RIGHT TO A FAIR TRIAL 11 3. THE PROSECUTORS OFFICE 24 4. THE MINISTRY OF INTERNAL AFFAIRS 41 5. FISCAL POLICE 55 6. HUMAN RIGHTS IN ARMED FORCES 57 7. ALTERNATIVE LABOUR SERVICE 60 8. ALTERNATIVE LABOUR SERVICE IN THE RESERVE 64 9. HUMAN RIGHTS IN THE PENITENTIARY SYSTEM 65 10. DEATH RATE WITHIN THE PENITENTIARY SYSTEM AND CAUSATIVE FACTORS 82 11. ENFORCEMENT OF COURT JUDGEMENTS 87 12. ENFORCEMENT OF JUDGEMENTS OF THE EUROPEAN COURT OF HUMAN RIGHTS 94 13. INFRINGEMENT OF THE RIGHT OF OWNERSHIP 97 14. PROTECTION OF THE ELDERLY, AND PENSIONS 118 15. REPORT ON THE VIOLATIONS OF HUMAN RIGHTS IN THE CONFLICT ZONES 130 16. INCIDENTS OF HUMAN RIGHTS VIOLATIONS IN ABKHAZIA 132 17. INSTANCES OF HUMAN RIGHTS VIOLATION IN TSKHINVALI REGION 142 18. SOCIO-ECONOMIC CONDITIONS OF THE INTERNALLY DISPLACED 148 19. THE PROTECTION OF RIGHTS OF REFUGEES 167 20. REPATRIATION ISSUES RELATED TO THE EXILE OF THE POPULATION FROM THE SOUTH OF GEORGIA BY THE SOVIET REGIME IN THE 1940S 173 21. DISCRIMINATION OF ETHNIC GEORGIANS BY THE RUSSIAN AUTHORITIES 177 22. ASSISTANCE BY THE GEORGIAN AUTHORITIES TO THE DEPORTED PERSONS FROM THE RUSSIAN FEDERATION 183 23. GEORGIAN CITIZEN PRISONERS AT THE DETENTION FACILITIES ABROAD 190 24. FREEDOM OF ASSEMBLY AND MANIFESTATION 191 25. FREEDOM OF SPEECH AND EXPRESSION 199 26. PUBLIC INFORMATION 212 27. FREEDOM OF RELIGION AND TOLERANT ENVIRONMENT 221 28. CONDITION OF NATIONAL MINORITIES 230 29. CONDITION OF ROMA IN GEORGIA 235 30. CHILDRENS RIGHTS 239 31. AMENDMENT VIOLATING THE PRINCIPLE OF INDIVIDUALIZATION OF THE CRIMINAL LIABILITY 262 32. GENDER EQUALITY 265 33. FAMILY VIOLENCE 269 6 34. WOMENS PENITENTIARY INSTITUTION 273 35. PROBLEM OF TRAFFICKING IN GEORGIA 275 36. THE RIGHTS OF THE PEOPLE WITH DISABILITIES 285 37. GENERAL SITUATION WITH HUMAN RIGHTS AT PSYCHIATRIC INSTITUTIONS 296 38. DELINQUENCIES AT THE TIME OF MEDICAL SERVICES 301 39. CONSUMERS RIGHTS 314 200 6 Report of the Public Defender of Georgia 7 8 The report on the human rights situation shall be submitted to Par- liament by the Public Defender twice every year, as provided for by Article 22 of the Law on the Public Defender of Georgia. This Report contains an analysis of the human rights situation in Georgia for the second half of 2006, pro- vides recommendations on mea- 1 sures to be taken with a view to INTRODUCTION remedying the situation, and de- scribes the violations found over the reporting period. The reporting period showed a stitutions and military units, par- marked increase in the number of ticularly, at so-called hauptwakhts, applications referred to the Public or guard-rooms. In December Defenders Office. The total number 2006, PDO made the monitoring of applications in 2006 was 3467, findings public, and stressed that which is an increase of 1213 compa- conditions of detention at four, out red to 2005, and of 2187 compared of six hauptwakhts present in Ge- to 2004. Notably, the number of orgia, were equivalent to torture and applications referred to PDO in the inhuman treatment, after which second half of 2006 was greater representatives of the Public De- compared to the earlier half of 2006. fender have been denied access to This points to increased visibility of haupwakhts to carry out monitor- PDO and enhanced trust by the ing. PDO has repeatedly addressed public, which is corroborated by nu- the Minister of Defence, as well as merous survey findings. the Prime Minister and the Chair- man of Parliament. Monitoring of Analysis of applications received human rights in the army is part by PDO in the second half of 2006 of civil-military control, and no shows that the highest proportion obstacles on its way can be accept- of applications addressed issues able, the more so in a country seek- 200 related to criminal cases, while com- ing NATO membership. Concur- plaints concerning breaches of so- rently with armed forces in line cial and economic rights decreased with NATO standards, member- in number, though insignificantly. ship of the alliance implies build- ing effective mechanism of civil Importantly, there was an increase control over the military. in the number of cases that PDO started to consider proactively, not Overall, in 2006 PDO representa- as a result of an application, but on tives made 865 visits to police sta- its own initiative. tions and preliminary detention facilities across the country (207 At the same time, PDO continues visits in the first half of 2006 and 549 6 intensive monitoring of custody visits in the second half of 2007), cells in police, of penal institutions, seeing 1454 persons in custody (321 psychiatric hospitals, childcare in- and 1133 persons, accordingly). Report of the Public Defender of Georgia 9 INTRODUCTION The monitoring revealed 701 facts of breach in proceedings, with 261 persons in custody showing signs of physical injuries (178 persons in the first half, and 83 in the second half of 2006), and 32 persons (23 and 9, accordingly), i.e. 12% of persons with injuries reporting physical pressure by police. Notably, in the later half of the reporting period the number of persons expressing grievances about police behaviour decreased, which is indicative of downward tendency in the use of excessive force a welcome fact in its own right. However, despite this positive dynamics, there is a persistent problem of inadequate response to the facts of abuse by law- enforcers, such as gross violations of human rights, violence, torture, falsification of evidence, as well as bring- ing perpetrators to account, the theme covered extensively in the Report. Over the reporting period PDO prepared a number of constitutional complaints, as well as legislative propos- als, aiming to establish a legal environment conducive to protection of human rights. In the period of reporting PDO provided for translating the UN Convention on Persons with Disabilities, adopted on 13 December 2006 and open for signature from 30 March 2007. It is important for Georgia to ratify this convention in a timely fashion, as it is instrumental in eliminating discrimination of persons with disabili- ties and providing equal opportunities for them. Equal rights for everyone, as well as equality of opportunity for every member of society should become one of the guiding priorities for our state. One of the new dimensions of this Report, differently from previous ones, is information on facts of abuse and discrimination perpetrated against Georgian citizens and Russian citizens of Georgian ethnicity in Russia. PDO also sought information on the number of Georgian citizens serving sentences in penitentiary establish- ments outside Georgia. Unfortunately, most of consulates failed to provide the information in a timely man- ner; however PDO is hopeful that the requisite information will be made available before the next report, which will give us broader scope for analysis. One of very important problems, definitely on rise over the reporting period, is seizure of private property and its destruction. Lawlessness and gross abuse of human rights are persistent in conflict zones. PDO is seeking involvement in the quadripartite monitoring format in place both in Tskhinvali Region and in Abkhazia - in order to get first- hand information on the ground and revisit all facts related to human rights. Regrettably, so far there has been no reaction to our proposal by the State Minister for Conflict Resolution neither positive nor negative. 10 The problems in the judiciary de- scribed in the report covering the earlier half of 2006, were largely found persistent in the later half, too. There still were reasons to question 2 the independence of judges. Inde- pendent performance by judges of THE RIGHT TO A FAIR TRIAL their functions only within law and without any interference is guaran- teed by the Constitutions, though is not always found in practice. The pressure on judges is one of the themes in the US State Depart- ments report on human rights practices, which mentions, inter alia, that: Ex parte discussions between lawyers and judges, and parties and Bangalore Principles on Behaviour judges were not infrequent, lead- of Judges; the Declaration of UN ing to establishing the Soviet type High Commissioner of Human justice by phone. It is reported Rights on Independence and Impar- that legal professionals including tiality of Judges and Lawyers, etc.). prosecutors, as well as parties to the proceedings employ these prac- Analysis of applications presented tices to exert pressure on judges in to the Public Defenders Office sug- order to secure desirable judge- gests that prosecutors influence on ments. the judiciary continues to be signifi- cant. This can be seen in assignment Independence of the judiciary, as of often inadequate penalties for well as the right of every person to crimes of varying seriousness. The have his/her case examined by an impression is that not infrequently impartial tribunal is guaranteed judges satisfy motions and appeals both by the Georgian law (Articles by prosecution without going into 200 82, 84 and 85 of the Georgian Con- details of the case, thus breaching stitution; Articles 6, 7 and 8 of the grossly the rights of persons on the Organic Law on General Courts; trial. Articles 8 and 9 of the Criminal Procedure Code), as well as univer- Apart from breaching Georgias sal and regional international in- obligations under international struments (Article 10 of the Univer- treaties and agreements and the sal Declaration of Human Rights; principle of independence of the Article 14.1 of the International judiciary, it is not infrequent that Covenant on Civil and Political the Georgian judiciary also puts at Rights; Article 6 of the European risk the life and security of persons.