Ombudsman

Interview with Giorgi Tugushi

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Accommodating recommendations contributes to the eradication of systemic problems

On 28 March, Public Defender of Georgia Giorgi Tugushi presented the Parliament with his report “On the Situation of Human Rights and Freedoms in Georgia in 2011.” The 645-page report describes general tendencies in the protection of human rights in Georgia and provides concrete cases of human rights violations. Tabula interviewed the Public Defender about those tendencies, existing problems and the state of human rights in various spheres.

- How would you evaluate the situation with human rights in Georgia? This time, the report is more voluminous. What does that speak to?

I do not want to tie the length of the report with the deterioration of any aspect of human rights. In 2011, we studied a number of new topics in terms of human rights protection. We dedicated almost half of the report to an analysis of the situation in the penitentiary system. That means that we studied that system thoroughly. We prioritized in 2011 certain components of some topics which were not studied in much detail in 2010 – for example, the right to health care, in general, and compulsory health care. A large part of the document was allocated to eco-migrants, a category missing in the 2010 report, as well as children’s rights.

Ombudsmen of many countries strive to publish, especially in recent times, as small a report as possible due to technological developments. Perhaps the time will also come in Georgia when Public Defender’s reports will be published in the form of abstracts. The demand of the Georgian society today is that a detailed analysis be presented on each and every issue.

- Do relevant agencies react to your report? How much do they take into account your recommendations?

In some areas the headway is obvious; in others, the situation remains the same or has even deteriorated. Several important steps were taken in 2011, for example, the Juvenile Diversion and Mediation Program. Positive changes were observed in minority rights protection, including in terms of improvement of the Civil Code enabling religious minorities to register as legal entities of public law. One should also single out the recent ruling of the Constitutional Court which allows individuals, in case of conscientious objection, to undertake an alternative service instead of reserve military service. Some novelties have been also seen in the penitentiary system, but still many problems remain unresolved and any tangible progress is difficult to observe in this system.

Some positive steps have been taken in the protection of children’s rights. Important laws entered into force to protect women and children from violence; however, problems were discovered in their implementation.

The picture in terms of courts remained unchanged. The year 2011 was the first year ever when Public Defender’s representatives directly monitored court processes. It is a pity that even newly renovated court buildings do not comply with standards facilitating access for handicapped people. The surveyed cases reveal that various courts still often violate standards of human rights.

We allocated quite some space in our report to internally displaced people. There are myriad problems of a social-economic nature, as well as in terms of their living conditions.

A positive development is that, in 2011, the attention on the part of the government toward the Public Defender’s report heightened and the degree of implementation of our recommendations improved too. A number of state agencies satisfied several very important recommendations of the Public defender.

- Which recommendations are you talking about, in particular?

Say, regarding the penitentiary system, our recommendations were taken into account in drawing up a health care strategy. Concrete recommendations were fulfilled by the Ministry of Internal Affairs – they dismissed a number of employees whom we criticized in our previous [2010 human rights] report for violations. Our advice was used as a ground for changes in the areas of child care, the fight against violence, reform of the judiciary. That, of course, has not put all the problems to right, but accommodating Public Defender’s recommendations contributes to the eradication of systemic problems.

- Almost half of the 2011 report is dedicated to human rights issues in the penitentiary system: The number of prisoners who die in prison is still high; access to health care remains a problem; cases of improper treatment are also discussed. You always pay much attention to such problems. What changes can be observed in this direction? How much are your recommendations considered?

Tackling the problem of maltreatment in the penitentiary system requires a corresponding will and desire. That is not a problem the solving of which requires expenditure and budget. It can be solved by strict control of employees and through eradication of the syndrome of impunity, which, first of all, must come from the head [of the penitentiary system]. Georgia has made an apparent breakthrough in the police system in terms of eradication of torture, and that was achieved as a result of proper reaction. Without that, no success can be realized in the penitentiary system as well.

- How much do they communicate with you?

Communication has improved in recent years, but that cannot solve all the problems. We may discuss problems but with no result. Improper treatment cannot be justified, either for heightening discipline or any other reason. We talk much about renovated infrastructure, improved catering, visiting rooms, newly opened facilities, positive approaches to juvenile delinquency, but improper treatment remains the problem which must be solved once and for all.

There is a systemic problem in terms of provision of health care. Tuberculosis is an especially grave problem. Efforts are being made to combat this disease, but much time has been lost and it will be difficult to achieve success within a year or two. In 2011, the number of prisoners who died of tuberculosis decreased by ten – but that is way far from that picture which the penitentiary system must achieve. Viral forms of hepatitis are also a serious problem. The number of patients who have died of that disease has increased. The actual number of prisoners suffering from that illness is much higher than shown in official data. An action plan for combating hepatitis has not been drawn up yet.

The number of patients dying in the system is still high. The report cites a number of facts establishing that patients who died had been gravely ill, which, as a rule, should have qualified those prisoners for deferment of their sentences. Yet, despite their acute conditions, they continued serving their sentences inside prisons.

- The 2011 report contains the names of representatives of the prison administration who were accused by prisoners of ill-treatment, cursing, manhandling, illegally punishing them and ordering them around. A similar problem was also discussed in the previous report. Then, as well, you named concrete people and criticized the Prosecutor’s Office for protracting investigation into such cases. Is there any improvement observed in that direction?

Law enforcement agencies of Georgia work very efficiently in certain directions. For example, investigation into a criminal case is conducted within a short time-span, and the fight against crime has brought concrete results. When it comes to violations of human rights by representatives of law enforcement agencies, we encounter a very negative attitude from investigative bodies. To some extent, impunity is encouraged – such persons are rarely held to account.

In 2011, forensic examination of several incidents of maltreatment was timely conducted, which had not been the case in 2010. On the other hand, however, there are frequent cases when investigative bodies do not investigate the facts in due time. For example, after the break-up of the protest rally on 26 May 2011, several police officers were punished according to the administrative rule, which I welcomed as a step forward. However, that [administrative punishment] was not an adequate measure because, in my view, signs of a criminal crime [against the police officers] were apparent. I hope that my recommendations to the Chief Prosecutor’s Office will be adequately considered and duly addressed.

- The report emphasizes the right to fair justice. You single out criminal justice as the most problematic sphere. What is the main problem there?

The picture is much better in terms of civil cases. Administrative proceedings also show improvement – except when it comes to sentencing for administrative imprisonment. Problems we observed in criminal justice were the following: frequent instances when the court did not take into account the retroactive effect of law and did not apply mitigating circumstances to a criminal case; instances of violating the right to a defense when the court granted prosecutors’ motions which did not comply with the law. We also saw concrete facts when the court infringed on the rights of a person and violated the principle of equality of parties by not substantiating its interim and final rulings.

- You also discuss infringement on private property in your report, quoting several concrete cases….

Private property is one of the priorities of the report. We think that, in cases quoted in the report, the right to private property was infringed by investigative and judicial bodies, as well as by local municipalities. When legislation does not restrict that possibility of infringement of property rights by investigative bodies, it results in human rights violations – for example, when an investigative body seizes an object for a long period of time and a citizen no longer has use of it. That is, though indirect, a breach of property rights. This problem is not of a systemic nature any longer such as it used to be in 2006-2008, but separate facts can still be seen and if not responded to, such facts will happen more frequently.

- Several months ago, in your earlier interview with Tabula, you said that you did not encounter such problems in accessing prisons as you did in accessing children’s homes. You also talked then about the importance of deinstitutionalization and related problems. How is this process proceeding?

By the end of April, a report on that issue will be also published. We have succeeded in removing obstacles in monitoring that process. Attention should be paid to those children’s homes which do not fall under any state control – I mean several children’s homes operating under the care of the Georgian Patriarchate. The law does not directly allow the Public Defender to monitor such institutions. We spoke to children who earlier had lived in those homes. They talked about serious violations and, therefore, we will study the memorandum signed between the Health Care Ministry and Patriarchate.

Facts of maltreatment were revealed in private family-type homes as well. Many of our recommendations were fulfilled in that regard, but many problems were discovered in the process of reintegration. Children were returned to such homes which could not ensure decent conditions for their development. Children’s rights to health care, education, wholesome diet are often violated. I would like to urge the newly appointed Minister of Health Care to pay attention to reforms that are designed to create a foundation for a decent child-care system.

Despite numerous shortcomings, the process of deinstitutionalization must go on. No child in Georgia should remain in Soviet-type children’s homes in which it is difficult to create for them the family environment necessary for the children’s development.

- According to the report, wrongdoing caused by religious intolerance has sharply decreased. What was the reason for that?

The reason is fulfillment of the Public Defender’s recommendations. Punishment of several people for crimes committed on the grounds of religious intolerance eventually led to the situation where such wrongdoing has been sharply decreasing since 2010. Up to forty cases are still uninvestigated. Nevertheless, a decline has been observed since 2010. In 2011, there were only several facts of which I took note. That indicates that the situation has improved in this regard.

- This report, like the previous one, does not contain information about sexual minorities. Why so?

The Public Defender reacts to concrete facts of wrongdoing. In 2010-2011, representatives of sexual minorities did not approach the Public Defender’s Office. We all agree that the environment in which these people live is very hostile to them. Media often publish homophobic articles and the Public Defender never leaves them unnoticed. If members of sexual minorities provide more information about concrete cases of violation, we will be able to discuss that issue in a report.

- The Criminal Code of Georgia will be amended to qualify racial, language, national or ethnic intolerance as an aggravating circumstance for any crime envisaged in the Criminal Code. How necessary is such an amendment?

I think such an amendment is even belated. The European Commission provided such a recommendation to Georgia several years ago. As far as I am aware, that list of aggravating circumstances includes intolerance toward sexual orientation as well. The Office of the Public Defender has contributed much to ensure that that draft amendment is in the form presented.

- On 14 March, several students of the Tbilisi State University accused student government representatives of manhandling and bullying them. The Ministry of Internal Affairs, taking into account their age, limited itself to issuing a “warning” to participants in the incident. Did students who were harmed approach you? Have you been approached before with such complaints?

No, they did not approach us, but we started inquiring into that case at our initiative. They – let’s put it this way – kept the information we needed “confidential.” We tried to contact them, but that did not bring about any tangible result. I find it difficult to evaluate how adequate the law enforcement agency’s behavior was, but would say that age is irrelevant here. If a crime was committed, police should have taken appropriate measures. I need much more information to evaluate what sort of conflict took place.

 

This article first appeared in Tabula Georgian Issue # 95, published 9 April 2012.

 

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