26 August 2005, 00:34
Georgia and the European Neighbourhood Policy
June 15, 2005
- Potential for Reform
- Areas of Concern
The European Union can and should use the European Neighbourhood Policy to improve Georgia's human rights record.
Since the Rose Revolution, the Georgian government has seemed ready to reform its laws, policies, and practices affecting human rights to bring them into line with European standards. Although the government is displaying the political will for such reforms, past experience suggests that the process will not be easy. Bi-lateral and multilateral assistance to Georgia will be essential for ensuring the success of this reform. The European Union's Neighbourhood Policy Action Plan for Georgia could be a useful mechanism for promotion of reforms, if used effectively.
The European Union's decision to use benchmarks in the Action Plan is a welcome step. It should allow relations between Georgia and the European Union to become more focused, setting clear expectations and goals in exchange for future benefits, if those goals are achieved. In order to make this process effective, the benchmarks should be detailed and concrete with a clear timetable for implementation.
Georgia has made some progress in improving its legislation to comply with international human rights standards. However, because this has not always corresponded with improvements in practice, well-intended safeguards have failed to end abuses because the safeguards have not been implemented. The benchmarks should therefore focus not only on changes in Georgia's legislative framework that are achievable in the short run but also on implementation and changes in practice, which require longer-term monitoring.
In order to ensure consistency with international human rights standards when carrying out reforms through changes in legislation or the creation of other legal documents, we propose that the Action Plan include the requirement that all such draft documents be reviewed by the Venice Commission of the Council of Europe or other independent body of experts.
Effective monitoring of the Action Plan's implementation will encourage compliance and allow for timely E.U. intervention and assistance when needed. Accordingly, we suggest that the Cooperation Council set up a body charged with monitoring of the benchmarks. This body could make regular trips to the country to consult with government, civil society, and other interested parties, speak publicly in the Georgian media about progress, and make recommendations about how to improve progress towards the benchmarks. It could also work closely with other international organizations and the diplomatic community.
Broader consultation with Georgian civil society about the European Neighbourhood Policy process, the benchmarks, and results of monitoring will set a model for transparency and public dialogue that the E.U. expects of its members and hopes for its neighbours. Additionally, E.U. coordination with other international interlocutors, including the Council of Europe, the Organization for Security and Cooperation in Europe (OSCE), and other bilateral donors, including the United States, would ensure that the benchmarks in the Action Plan are consistent with and complimentary to other current or planned programs.
Below we summarize long standing human rights problems, offer recent examples, and suggest benchmarks for the Georgia Action Plan in six areas: torture and ill-treatment, independence of judges, media freedom, freedom of assembly, refugees, and freedom of religion. The information presented is based on an April 2005 research mission to Tbilisi, during which Human Rights Watch interviewed representatives of nongovernmental organizations (NGOs), international organizations, and religious groups; government officials; journalists; lawyers; victims of human rights abuses; and members of the diplomatic community. The benchmarks are concrete and achievable, and if implemented, would show a real improvement in the human rights environment in Georgia.
Georgia has a long record of tolerating torture by law enforcement agents. Police most frequently torture detainees in custody after arrest, with the aim of extracting a confession. Judges ignore torture allegations and fail to exclude evidence obtained by means of torture. Vigorous and impartial investigations of torture allegations are rare. Most investigations are cursory, terminated or suspended, and do not lead to a prosecution.
The Saakashvili government has taken some steps to address torture, such as creating an autonomous monitoring council for police lock-ups and instituting automatic investigations when bodily injuries are found on a prisoner. It has adopted many amendments to the criminal procedure code, though no one systematically examined the amendments to determine the impact they will have on detainees' rights. (There is reason to be cautious-in 2000 Georgia adopted a new criminal procedure code that improved detainees' rights in several areas, but then subsequently adopted amendments backtracking on these rights.) With assistance from international experts, a working group set up by the Ministry of Justice has been preparing a draft for a new criminal procedure code. However, the government has been giving mixed signals about whether it will pursue the adoption of a new code.
Thus far, these efforts, while welcome, have proven inadequate to stem abuse. Moreover, in 2004, some of the government's law enforcement policies, particularly its approach to fighting corruption and organized crime, appeared to have triggered new allegations of due process violations, torture, and ill-treatment.
Perhaps most disappointing is the government's failure to seriously address the problem of impunity of law enforcement officials for their role in torture. Impediments to accountability appear to remain institutionalized, with law enforcement bodies systematically finding ways to avoid pursuing criminal responsibility for acts of torture and ill-treatment. In 2004, Human Rights Watch documented cases in which law enforcement officials allegedly threatened detainees not to make complaints of abuse and in which investigations were suspended because the perpetrators of the torture could not be identified, despite the authorities' duty to keep records of which officials are with a detainee at any given time. In addition, Human Rights Watch documented cases in which Georgia's newly created plea bargaining system unwittingly facilitated impunity by enabling law enforcement officers who had committed torture, or their colleagues, to negotiate away the right of criminal detainees to seek redress in exchange for promises of light penalties for these detainees. (For more details on this, please refer to Human Rights Watch briefing paper, "Georgia: Uncertain Torture Reform," April 11, 2005.)
A lack of basic resources in Georgia's prisons lead to conditions that amount, at times, to inhuman and degrading treatment of detainees. Prisoners are subjected to overcrowding and are deprived of basic hygiene, nutrition and other humanitarian needs. Conditions in pre-trial facilities are particularly poor. The government has developed a program to build new prisons with improved physical conditions. This will provide only limited relief for overcrowding, which is driven by Georgian courts' overwhelming use of pre-trial custody and custodial penalties. This, combined with the rise in the number of arrests since the Rose Revolution, has worsened overcrowding in prison facilities. According to nongovernmental organizations in Georgia, prisoners have to sleep in shifts, and a cell intended for ten can hold between forty and sixty detainees. Corruption is endemic, with prisoners having to pay bribes for privileges and sometimes even for basic rights.
- Accede to the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment as soon as possible.
- Request publication of the report on the visit to Georgia in 2003 and 2004 by the European Committee for the Prevention of Torture and implement its recommendations; implement the recommendations of the United Nations Special Rapporteur on Torture, once his report is delivered to the Georgian authorities.
- Amend the criminal procedure code to ensure that persons who make plea bargains in Georgia do not compromise their ability to bring claims of torture and other mistreatment and pursue redress. Set up a mechanism to monitor the implementation of the plea bargaining system to ensure that it is not abused in practice.
- Ensure that the criminal procedure code is in full compliance with Georgia's obligations as a member of the Council of Europe and under the International Covenant on Civil and Political Rights.
- Adopt and implement the draft strategy for reform of the criminal justice system that was prepared with the advice of the experts from the European Union Rule of Law Mission to Georgia.
- Set up a system of legal aid that ensures free legal counsel is available to any detainee who cannot afford a lawyer, and that such lawyers are free from government influence.
- Reform the procuracy to ensure that prosecutorial and judicial tasks are performed by separate bodies that are fully independent of each other.
- Strengthen the system of alternatives to imprisonment. Take measures to:
- amend legislation to make pre-trial detention not the general rule, and ensure that alternatives to pre-trial detention are used effectively;
- amend legislation to create a viable system of community service as an alternative to imprisonment that is overseen and financed through an appropriate probation body.
- Once a strengthened system of alternatives to imprisonment is in place, train judges in the use of these alternatives in accordance with international standards.
Among the constitutional amendments hurriedly adopted in 2004 was one empowering the president to appoint and dismiss judges, thus expanding presidential authority over a judiciary that already suffered from a lack of independence. NGOs, lawyers, and independent experts told Human Rights Watch that during 2004 the president exercised this control in several ways that illustrate the vulnerability of the judiciary to further incursions on its independence. For example, an August 2004 presidential decree enacted changes to the court structure that would have substantially reduced the number of judges. According to the Georgian Young Lawyers Association, the government did not set out any criteria for deciding which judges would be retrenched, which led to fears among judges of imminent dismissal. Two further decrees have postponed this proposed court restructuring.
Corruption was widespread in the judiciary prior to the Rose Revolution, and the government's campaign against corruption in the judiciary is a welcome and necessary step for the creation of a fair justice system. But this campaign seems to lack a set of clear criteria for reviewing judges' performance, leading judges to fear dismissal for issuing decisions that displease the government.
- Ensure that the procedure for appointing judges does not depend exclusively on the executive branch of government and includes formal selection criteria.
- Adopt the Venice Commission's suggestions in its opinion on draft constitutional amendments relating to the reform of the judiciary in Georgia, particularly on the issue of judicial appointments.
- Ask the Venice Commission to provide an opinion on the text of the government's "Concept of the Judiciary" and ensure that its suggestions are included in the strategy for the reform of the criminal justice system.
- Review the disciplinary procedures for judges in accordance with international standards.
Since the Rose Revolution, the government has improved legislative protections for freedom of expression, such as the decriminalization of libel. At the same time the media has become more pro-government and less critical than during the Shevardnadze era. Newspapers remain relatively free of government pressure, however, major television channels are biased in favor of the government in their news and current affairs coverage. Journalists, NGOs, and representatives of international organizations told Human Rights Watch that the government uses its influence with the owners of the major private television channels to control the content of their programs. These owners are either relatives of government officials or keep close ties with the government to secure their business interests. They directly control media content, giving little editorial independence to staff and sometimes censor programs that are critical of the government. In a recent example, on April 3, the owner of Imedi television, Badri Patarkatasishvili, ordered the suspension from broadcast of a story on corruption within the financial police on the weekly television program Droeba (Time). The next day, Patarkatasishvili explained why he suspended the program, saying that "if I want to tell something to the government, I can tell it personally and directly."
The government has reportedly used financial pressure to control the media, giving a reprieve from tax debts to those outlets it perceives as pro-government and dispatching tax inspectors to those that it perceives as overly critical. In addition, NGOs and representatives of international organizations told Human Rights Watch that the presidential administration sometimes directly contacts chief editors, telling them how to cover certain issues. Journalists, however, are reluctant to speak publicly about interference or pressures to influence the content of their work. There are reportedly few protections against unfair dismissal, and journalists are rarely willing to risk their positions by speaking publicly.
- In cooperation with the OSCE Representative on Freedom of the Media, create an independent commission to investigate government interference in the media and to develop recommendations to support an independent media environment.
- Introduce a regulatory framework to guarantee legal recourse for journalists facing retaliation for speaking publicly about government pressure in the form of demotion, and dismissal.
Although freedom of assembly is generally respected, incidents of police use of excessive force to break up protests have caused concern since the Rose Revolution. For example, in January 2004, police used batons to beat the participants of an unauthorized peaceful protest that blocked the road in Terjola district, in Imereti region. President Saakashvili later made statements justifying the police response. On July 1, police in Tbilisi used excessive force to break up a peaceful public protest of public transport workers, their families, and others who were demanding compensation for housing. At least two participants were hospitalized for their injuries from the police beating.
- Develop regulations for law enforcement officers on how to deal with public demonstrations without the use of excessive force, in accordance with international standards.
- High-level government figures should make public statements renouncing the use of excessive force by law enforcement officials and stating that officials who use excessive force towards public demonstrators will be brought to account. Bring to account any officials who use excessive force.
Although Georgia has ratified the 1951 Convention relating to the Status of Refugees, and has a basic refugee determination procedure, its laws and practice in refugee determination and protection do not comply with international standards. For example, the law does not include the 1951 Convention definition of a refugee, pre-screening mechanisms lead to the denial of registration of asylum claims, there are insufficient protections against refoulement, and there is no protection for those whose asylum claims have been rejected against return to a country where the applicant may face a risk of torture.
Chechen refugees, the largest refugee group in Georgia, are subjected to police harassment and threats of refoulement. In August 2004, following pressure from Moscow about the presence of "terrorists" in the Pankisi Valley, masked Georgian security forces raided the homes occupied by refugees and Kists (ethnic Chechens from Georgia). Up to twelve men were detained and accused of illegally entering Georgia. All were released within several days without charge. In February 2004, shortly after two Chechen asylum seekers were released from custody in Tbilisi, they went missing and later appeared in Russian custody. Human rights groups in Georgia suspect that Georgian authorities aided the Russian security forces' detention of these men, in breach of Georgian law and international standards prohibiting return in cases where there is a risk of torture. In March 2005, two Kists, who were Russian citizens, reportedly went to the Ministry of Refugees and Housing in Tbilisi, seeking asylum, and officers from the Ministry of Interior arrested them and took them to the border with Azerbaijan. The Azerbaijani authorities reportedly refused them entry unless they agreed to return to Russia. They spent several weeks in the neutral zone between the Georgian and Azerbaijani borders, before returning to Georgia. An NGO and an international organization told Human Rights Watch that they had received unconfirmed reports that Georgian border guards along the Russian border refuse entry to Chechen asylum seekers, thereby pushing them back into Russian territory.
- Amend refugee legislation in accordance with the comments by the United Nations High Commissioner for Refugees (UNHCR) Representation in Georgia to the proposed changes to the Law of Georgia on Refugees, December 2004.
- Create instructions under the law for the relevant implementing bodies with the cooperation of UNHCR.
- Once a new legislative framework is in place, provide training to border guards and other officials on upholding international refugee law standards in the course of their work.
The Georgian Orthodox Church is the dominant religion and enjoys a special legal and social status in Georgia. Members of non-traditional religions, such as Baptists, Jehovah's Witnesses, and Evangalists, are subjected to discrimination and intolerance. From the late 1990s until 2003, violent attacks by organized groups of Orthodox Christian vigilantes against non-traditional Christian groups were common (Human Rights Watch documented these extensively), but the attacks subsided prior to the Rose Revolution and have not begun again. In 2004, the leader of many attacks, Vasili Mkalavishvili, was convicted and sentenced to six years in prison. The government has not brought to justice the perpetrators of scores of other attacks.
Members of non-traditional religions told Human Rights Watch about incidents of discrimination against their children in state schools, usually during religion classes, which focus on teaching about the Georgian Orthodox Church. The Ministry of Education plans to replace such lessons with classes on the history of religion, which would cover a range of religious traditions, as well as to prohibit the use of state schools for religious indoctrination. While this would be a welcome move, NGOs and leaders of non-traditional religions told Human Rights Watch that they fear that in practice teachers will continue to teach Georgian Orthodox Christianity in the history of religion classes, since the influence of Georgian Orthodox clergy on the schools is very strong. Many schools have Georgian Orthodox symbols and prayer rooms, and children are said to be pressured to participate in prayer.
The legislative situation covering registration of religious groups, excluding the Georgian Orthodox Church, which has its own individual agreement with the government, is currently in flux. In the past, some religious groups have been able to register as NGOs and others have not been registered. Local authorities have harassed those without registration, and those with NGO registration have had other difficulties, such as legalizing property ownership in the names of their religious confessions. In April 2005, parliament began consideration of amendments to current legislation on associations, which would allow religious confessions to register as religious groups and regulate their ownership of property. At this time, it is important to ensure that any new registration framework complies with Council of Europe and international standards on religious freedom.
- Bring to justice the perpetrators of attacks against members of non-traditional religions.
- Foster tolerance for freedom of thought, conscience, and religion through public statements and other methods, emphasizing that the special status of the Georgian Orthodox Church should not mean infringements on the rights of others.
- Enact legislation regulating the registration of religious organizations that complies with the Council of Europe and international human rights standards on freedom of conscience.
- Develop a longer-term strategy to encourage religious tolerance in the country, including a public education campaign, and clear instructions against discrimination to local government authorities.
- Develop a system of monitoring schools to ensure that any instruction on religion at schools respects freedom of thought, conscience, and belief and includes a plurality of religious and other ideas.
 In 2004, the European Union (E.U.) announced that Armenia, Azerbaijan, and Georgia would be eligible for the European Neighbourhood Policy (ENP). Under this policy, the E.U. laid out a process for increasing ties with the south Caucasus countries. Firstly, it prepared country reports with a brief description of the political, economic social and institutional situation in the countries, including a section on human rights and fundamental freedoms. The Commission approved the country reports for Armenia, Azerbaijan, and Georgia in April 2005, and confirmed that the ENP could go to the next stage of negotiating action plans with each of the countries. The action plans include benchmarks in each of the areas covered by the country report. If the benchmarks are fulfilled, over a three-year period, then the E.U. will proceed to enter into negotiations with the countries for closer economic, social, and cultural ties.
 For example, article 111 of the Criminal Procedure Code provides that evidence is inadmissible if it is obtained through the use of force, threats, or other unlawful means. However, in practice judges regularly admit evidence that has been obtained through the use of coercion.
 See, for example, Human Rights Watch/Helsinki, "Torture and Due Process Violations in Georgia: An Analysis of Criminal Case No. 7493810," A Human Rights Watch Report, vol. 6, no. 11(D), August 1, 1994. Concluding observations of the Committee against Torture: Georgia, November 21, 1996, A/52/44, paras. 111-121. Mr. Nigel S. Rodley, Report of the Special Rapporteur on Torture, December 24, 1997, Commission on Human Rights, fifty-fourth session, E/CN.4/1998/38. Georgia: Continuing Allegations of Torture and Ill-Treatment, Amnesty International, February 2000, EUR 56/01/00. Human Rights Watch, "Backtracking on Reform: Amendments Undermine Access to Justice," A Human Rights Watch Report, vol. 12, no. 11 (D), October 1, 2000.
 See, Human Rights Watch, "Georgia: Uncertain Torture Reform," Human Rights Watch Briefing Paper, April 12, 2005.
 Human Rights Watch interview with Levan Ramishvili, Liberty Institute, Tbilisi, April 9, 2005, with Ana Dolidze, Georgian Young Lawyers Association, Tbilisi, April 8, 2005, and members of the diplomatic community, Tbilisi, April, 2005. Council of Europe, "Compliance with commitments and obligations: the situation in Georgia," Bi-annual report prepared by the Directorate of Strategic Planning (DSP), (July 2004-February 2005), March 14, 2005, SG/Inf(2005)6 final.
 Human Rights Watch, "Backtracking on Reform: Amendments Undermine Access to Justice," A Human Rights Watch Report, vol. 12, no. 11 (D), October 1, 2000.
 Human Rights Watch interview with Ana Dolidze, Georgian Young Lawyers Association, Tbilisi, April 8, 2005, and with members of the diplomatic community, Tbilisi, April 2005.
 Human Rights Watch, "Georgia: Uncertain Torture Reform," Human Rights Watch Briefing Paper, April 12, 2005.
 Human Rights Watch interviews with Maura Harrington, Penal Reform International, Tbilisi, April 8, 2005, with Ana Dolidze, Georgian Young Lawyers Association, Tbilisi, April 8, 2005, with Nana Kakabadze, Former Political Prisoners for Human Rights, Tbilisi, April 7, 2005, with Ucha Nanuashvili, Human Rights Information and Documentation Center, Tbilisi, April 8, 2005. Public and oral statement of Iris Muth, Organization for Security and Cooperation in Europe at the Round Table on the Implementation of the National Action Plan against Torture 2003-2005, Tbilisi, April 12, 2005.
 Since 2004, the government of Georgia has been preparing a strategy for reform of the criminal justice system with the assistance of an European Union Rule of Law Mission. The Rule of Law Mission has provided a team of experts to advise government authorities on the reforms over a one year period in Georgia from July 2004 to July 2005. The draft strategy was completed in April 2005 when the government gave a commitment to adopt and implement it. Since then, the government, with the assistance of the E.U. Rule of Law Mission, has been making further improvements to the document, which is expected to be officially approved by President Mikheil Saakashvili in July 2005.
 Human Rights Watch, "Agenda for reform: Human Rights Priorities After the Georgian Revolution," Human Rights Watch Briefing Paper, February 24, 2004.
 Human Rights Watch interview with Ana Dolidze, Georgian Young Lawyers Association, Tbilisi, April 8, 2005.
 European Commission for Democracy Through Law (Venice Commission), Opinion on Draft Constitutional Amendments Relating to the Reform of the Judiciary in Georgia, Adopted by the Venice Commission at its 62nd Plenary Session (Venice, 11-12 March 2005), on the basis of comments by Mr. Jose M. Cardoso Da Costa (Member, Portugal), Mr. James Hamilton (Substitute Member, Ireland), Opinion 328/2004, CDL-AD(2005)005, Strasbourg, 14 March 2005.
 As a part of the preparation for the strategy for criminal justice system reform, the government prepared a paper on judicial reform in early 2005 called the "Concept of the Judiciary."
 On July 15, 2004, the president signed a new Law on Freedom of Speech and Expression that decriminalized libel. Representative on Freedom of the Media, OSCE, "Successes and Continued Concerns Over Libel," Feature, [on-line], http://www.osce.org/fom/item_2_204.html (retrieved on May 26, 2005). Human Rights Watch interview with Levan Ramishvili, Liberty Institute, Tbilisi, April 9, 2005.
 Human Rights Watch interview with Eka Kvesitadze, Open Society Georgia Foundation, Tbilisi, April 11, 2005, with Levan Ramishvili, Liberty Institute, Tbilisi, April 9, 2005, with Ana Dolidze, Georgian Young Lawyers Association, Tbilisi, April 8, with Nana Kakabadze, Former Political Prisoners for Human Rights, Tbilisi, April 7, 2005, and with members of the diplomatic community, Tbilisi, April 2005.
 "Chief of Financial Police Accused of Illegal Deals," Civil Georgia, April 4, 2005, [online], http://www.civil.ge/eng/ (retrieved on May 26, 2005).
 For example, in June 2004, Rustavi 2, a pro-government television station, filed for bankruptcy due to its inability to pay approximately U.S. $5 million, including substantial back taxes. However, with the support of the government, the station was able to restructure the debt, and was given fifteen to twenty years to pay it back. On the other hand, an independent television, Kavkasia, an English-language newspaper, the Georgian Times, both claim that the government has put them under financial pressure. See Radio Free Europe/Radio Liberty, "Analysis: The Inequality of Georgian Journalists," Feature by Liz Fuller, January 3, 2005, [on-line], http://www.rferl.org/featuresarticleprint/2005/01/98a96196-83aa-448f-8060-039f01a8c052.html (retrieved on May 26, 2005).
 Human Rights Watch interview with Eka Kvesitadze, Open Society Georgia Foundation, Tbilisi, April 11, 2005, and representatives of international organizations who did not want to be identified, Tbilisi, April, 2005.
 Human Rights Watch, "Agenda for reform: Human Rights Priorities After the Georgian Revolution," Human Rights Watch Briefing Paper, February 24, 2004, and Amnesty International, "Europe and Central Asia: Summary of Amnesty International's Concerns in the Region, January to June 2004," EUR 01/005/2004, September 1, 2004.
 "Police Crackdowns the Rally Beside the City Hall Tbilisi," Georgian Press Digest, Caucasus Press, July 1, 2004. Council of Europe, "Compliance with commitments and obligations: the situation in Georgia," Bi-annual report prepared by the Directorate of Strategic Planning (DSP), (July 2004-February 2005), March 14, 2005, SG/Inf(2005)6 final.
 In 2005, the Georgian parliament adopted amendments to the Law of Georgia on Refugees. However, the amendments did not address the concerns outlined above. United Nations High Commission for Refugees, "Comments by the UNHCR Representation in Georgia to proposed changes to the Law of Georgia on Refugees," December 2004, and Human Rights Watch interview with members of the international community, Tbilisi, April 2005.
 Human Rights Watch, World Report 2005, Events of 2004, pp. 382-287.
 Human Rights Watch interview with Ucha Nanuashvili, Tbilisi, April 8, 2005, and with members of the international community, Tbilisi, April 2005.
 These include the addition of appropriate safeguards to the pre-screening of asylum applications, enhanced protections against refoulement for persons seeking refugee status and recognized refugees, and the granting of protection to persons who are not recognized as refugees but who are at risk of torture if returned to their country of origin.
 Human Rights Watch, "Memorandum to the U.S. Government on Religious Violence in the Republic of Georgia," Human Rights Watch Memorandum, August 29, 2001, and Human Rights Watch, "Agenda for reform: Human Rights Priorities After the Georgian Revolution," Human Rights Watch Briefing Paper, February 24, 2004.
 Human Rights Watch, "Georgia: Ex-Priest Jailed for Attacks Against Religious Minorities," Human Rights Watch Press Release, January 31, 2005.
 Human Rights Watch interview s with members of the Baptist community, Tbilisi, April 8, 2005, and with members of the Jehovah's Witness community, Tbilisi, April 11, 2005.
 Human Rights Watch interview with Levan Ramishvili, Liberty Institute, Tbilisi, April 9, 2005, and with members of the Baptist community, Tbilisi, April 8, 2005.
 Human Rights Watch interview with Levan Ramishvili, Liberty Institute, Tbilisi, April 9, 2005, with members of the Baptist community, Tbilisi, April 8, 2005, and with members of the Jehovah's Witness community, Tbilisi, April 11, 2005.