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Tbilisi, 13 February 2012
I would like thank the Government of the Republic of Georgia for inviting me to undertake a visit to the country, and for the cooperation that has been extended to me and to the members of my delegation before and during the conduct of the mission. I am most grateful to all interlocutors I have met, which include a large variety of senior government officials, the Public Defender and his Office, representatives of non-governmental organizations, labour unions, political parties, research institutes, activists and human rights defenders in Tbilisi, Kutaisi and Batumi.
I am especially honoured as this is my first country visit since I was appointed UN Special Rapporteur in May 2011, and I am grateful to the Government of Georgia for its warmth and graciousness in inviting me.
I was appointed right in the midst of the Arab Spring. The resolution that establishes my mandate asks me to “report on violations, wherever they occur, of the rights to freedom of peaceful assembly and of association, as well as discrimination, threats or use of violence, harassment, persecution, intimidation or reprisals directed at persons exercising these rights, and to draw the attention of the Council and the High Commissioner to situations of particularly serious concern”.
The overarching purpose of my mission is to contribute to the efforts to help Georgia in its path towards democratization and greater protection of human rights. Georgia has come a long way since 2003, when the citizens of this country decided to engage in a massive peaceful assembly, popularly known as the “Rose Revolution,” that ultimately led to the formation of a new government. This must be recognized, and applauded.
Specifically, I would like to commend the efforts that led to increased security and safety for all people in Georgia, the drastic reduction in violent crime and reduction in petty corruption especially within the police. These achievements must not be taken for granted.
Similarly, the recent legislation related to the status of religious organizations is commendable, and while more steps in this direction are encouraged, it is certainly a good step forward in protecting the rights to religious association.
I must emphasize, however, that there are a number of worrying signs that indicate that the generally positive trajectory in Georgia could be derailed, and the focus on modernization could lead to a widespread climate of fear, intimidation and arbitrary restrictions of fundamental freedoms. Given the way the current government was formed – and in light of the elections planned for this and the coming year – there is an expectation to especially respect the rights of peaceful assembly and association.
Georgia has done well, but it is at a critical point where it can take further steps to improve on its record or take the country backwards in terms of human rights. The only way Georgia can continue its path to prosperity, wealth and security is by respecting human rights and fundamental freedoms. The recent legislative acts, as well as State actions, appear to threaten this path.
Unequal political playing field
In late December 2011, a significant number of legislative amendments were adopted that appear to affect the rights to association and to peaceful assembly. I have observed that these amendments, which at times use ambiguous language, are fuelling an overall climate of distrust, and appear to largely violate international human rights law.
International law imposes obligations on States to respect the right of every individual to associate freely, irrespective of political preferences. Article 22 of the International Covenant on Civil and Political Rights to which Georgia is a party, allows people to associate without undue restrictions, including for political purposes.
This is intended to permit fair political competition in societies, enabling citizens to not only openly express their political views, but also give them a fair chance to change their leaders as they deem appropriate. To that extent, a level playing field in politics is necessary for the enjoyment of the right of association.
The Organic Law on Political Unions of Citizens, as amended, applies restrictions on every person in this country – and those “in business relations with them” – for the mere reason of holding political opinions. This violates the right to association, and is potentially threatening to watchdog NGOs and civil society organizations whose work could be deemed political. Indeed, I am aware of at least two instances where NGOs have been requested to provide their books for scrutiny under this law, in circumstances that are less than transparent. This is causing unnecessary fear to NGOs that their right of association, and their ability to operate freely, making their own decisions on political issues, could be compromised.
While paragraph 3 of article 26 prima of this law stipulates that these restrictions cannot be used against freedom of expression and civil engagement that is not sufficient as a safeguard against potential abuse. NGOs and any legal entity and person must have the right to support any candidate, or political persuasion of their choice.
It would appear that these recent amendments have been motivated by a desire to control the political activities of a specific individual, rather than for objective and sustainable reasons. History teaches us that laws crafted for such subjective purposes often have the effect of violating human rights and are often unsustainable within changing circumstances of life.
I have taken note of the Government’s explanation for this provision, of avoiding the covert channelling of funds into political parties. However, I am particularly disturbed by the fact that the law gives extraordinary discretional authority to the Chamber of Control to decide, in its own state of mind and without substantiating its decisions, and without clear criteria or possibility to appeal the decision, whether a legal or physical person “is related” to a political party. I must firmly state that any monitoring authority on campaign finances needs to be transparent, impartial and independent–and seen to be so–in its constitutive authority and in fact.
I wish to also highlight that there have been long standing concerns—by regional bodies and the UN–about the inability to distinguish between the ruling party and the State, which is especially relevant in light of the upcoming parliamentary and presidential elections. I reiterate that while the Government has chosen to adopt rules to limit the financing of political campaigns, these rules should not be detrimental to the enjoyment of freedom of association. As they stand today, they create an uneven political playing field and thus violate the right to freedom of association.
This also applies to access to State resources, which are clearly benefiting one party at the expense of others. As long as there is no line between the State and the ruling party, this will continue to be a problem and lead to tension and divisions.
Right to Form Trade Unions
Labour unions operate in a very difficult labour environment. I am concerned about allegations of dismissals of public and private sector employees in Georgia for apparently supporting opposition parties. This seems to mostly affect teachers whose employment is on contract and not protected as public servants. I am also concerned by the allegations of harassment and intimidation against workers who belong to or have expressed sympathy or desire to join labour unions, as events around a strike of workers of the Hercules metal plant in Kutaisi appear to suggest. Even as the Government is making major efforts to attract investment, this must be done whilst protecting human rights.
Georgian labour laws provide for easy dismissal of workers, with no requirement to provide reasons, as long as the minimum monthly compensation is paid. This legal regime can inhibit the freedom to form, organize and operate trade unions, as employers – private and public – have almost unfettered discretion, and can find easy excuses to fire workers who try to form and operate trade unions which they may not want.
This is a matter of grave concern and I urge the Government to find an appropriate balance between encouraging investments and protecting the rights of the people of Georgia to form trade unions that could seek to better the lives of Georgian people. Further, trade unions have the right to make political choices for candidates and parties that can further their interests, without running the risk of falling under the restrictions of the recent amendments against “relations with political parties.”
Restricting peaceful assemblies
I would like to turn now to the enjoyment of the right to freedom of peaceful assembly in Georgia. I am cognisant of the fact that peaceful assemblies in Georgia can be held without requiring prior permission. And I am also aware there are numerous peaceful assemblies held in Georgia and I even witnessed one during this mission.
Yet there remain some problematic provisions in the law that restrict freedom of assembly. We must remember that the Rose Revolution did not respect the requirement to have at least 20 metres from the entrance of public buildings to assemble; it obstructed the normal functioning of enterprises, institutions and organizations; and it blocked highways and transport movement. Whereas it can be argued that such situations are of an extraordinary nature and public order must be observed, minimum standards facilitating the free enjoyment of this right should also apply. I am concerned that these restrictions may have been put in place to prevent citizens from expressing their views through peaceful protest. While recognizing the challenges to Georgia’s security, consistent attributions of blame to an external hostile power do not validate the fact that indeed citizens may have their specific and particular grievances that they want to express in this form, which is often a measure of frustration.
Moreover, I am also concerned by the fact that the 15 minutes warning rule for forcibly dispersing assemblies falls reasonably short of international standards. Such a short limited period of time can invite unnecessary violence from law enforcement officials.
26 May 2011 Events
I have heard various testimonies from protesters, NGO representatives as well as from representatives from the Ministry of Internal Affairs regarding the events of 26 May 2011. There are stark differences in the narratives of what actually happened on this night, which is of particular significance with respect to freedom of assembly. This is a problem.
A new, independent and transparent investigation must be undertaken with the participation of all stakeholders – which include opposition leaders, civil society representatives, the Government and representatives from the International Community to ensure that all views and perspectives are taken into account, and that there is accountability for the clear excessive use of force that occurred. In absence of that, the perception of impunity and dissatisfaction towards the Government will prevail.
A senior government official indicated that the events of 26 May last year constituted the “greatest threat to the life of our nation”. I note the efforts made by the Ministry of Internal Affairs to take remedial action and correct its mistakes in managing assemblies, in particular its treatment of protesters and journalists. However, all elements suggest that the reaction of the Government was clearly disproportional. In fact, there are credible allegations that there were beatings after the protest was dispersed and that protesters were chased by the police and beaten up thoroughly. This raises the suspicion that the intention was not so much to disperse protesters as it was to punish and spread fear.
Another issue of great concern, with regard to peaceful assembly in Georgia, is the deliberate use of administrative detentions and sentences of up to 90 days without adequate procedural safeguards. This in turn must be paired by on-going plans to extend the period of police custody from 12 hours to 24 hours in the Code of Administrative Offenses. I am alarmed by the frequency of consistently resorting to this form of detention, especially for dealing with protesters. These are petty offenses and authorities could give suspects bond to appear rather than hold them in conditions that amount to cruel, inhuman and treatment.
Moreover, I am dismayed at the allegations pointing to a serious lack of judicial guarantees and on the sole reliance of police testimonies for sentencing. Indeed, I am alarmed, after speaking with judicial authorities, that there is no apparent presumption of innocence, with significant weight put on the testimony of the police.
Considering the overwhelming cases of allegations of acts of violence and ill-treatment by law enforcement officials against protesters, these measures can trigger a chilling effect on any activist on the ground willing to express dissent through a peaceful assembly.
As I conclude, I must make clear that I came to Georgia to contribute to the process of democratization, and in particular, to the further respect of the important rights to freedom of peaceful assembly and of association. Of crucial importance, I believe that the Government of Georgia needs to have a more extensive and structured dialogue even with the most critical segments of civil society, in order to iron out and address issues in a civil, proactive and systematic way.
I have been largely impressed by the calibre of people I have met, working in and out of Government, and I fully believe that if tapped fully and comprehensively, if these forces can pull together in an atmosphere of critical objectivity, where the interests of ordinary Georgians are at the front and centre, then the future of Georgia will be bright.
These are just my preliminary findings and my full report to the UN Human Rights Council will be ready in June this year.
I thank you for your attention.
For more on Kiai’s official visit to Georgia, please see here.
