Practical implementation of International standards for the protection of human rights in Georgia
by Besarion Bokhashvili, John Smith Fellow, 2004, and Deputy to the General Representative of Georgia to the European Court of Human Rights
Adoption of Human Rights Law
The protection of human rights is a basic cornerstone of democracy in every state. In recognition of this, international society has elaborated numerous instruments on fundamental rights and freedoms. These instruments have been interpreted and developed by supranational supervisory bodies.
Georgia, having chosen the democratic path, has signed and ratified various international and regional treaties on protection of human rights. The most recognised fundamental rights and freedoms were enshrined in the second chapter of new Georgian Constitution, adopted on 24 August 1995. At the same time international treaties, ratified by the Parliament of Georgia, became incorporated as part of Georgian Law. Moreover, pursuant to Article 6 of the Constitution and Article 19 of the 'Law on Normative Acts', international treaties, though ranking after the Constitution and Constitutional Agreement, takes precedence over other Law in Georgia.
Failure to understand its full content
Thus Georgian legislation formally preserves fundamental rights and freedoms; but we are still failing to implement these rights and freedoms effectively, or to adopt the rulings and case-law of international supervisory bodies (UN Committee on human rights, European Court of Human Rights). This is because the majority of national judges, lawyers and representatives of law enforcement agencies fail to apply international standards for the protection of human rights in the course of exercising of their own functions. Georgia does not have a common-law system; and case-law is not considered as a source of law: no legal provision obliges us to rely on the case-law and rulings of international and regional supervisory bodies. Accordingly, some Georgian Judges and lawyers neglect this source of law and assume that they may ignore it. In truth, too many judges and lawyers fail to realise that the case-law (the "jurisprudence")of the international courts and tribunals, and guidance given by recognised international bodies are the source of interpretation of the provisions contained in the international instruments on human rights. They do not appreciate that the case law actually defines the scope and content of the rights and freedoms reflected in the international instruments that Georgia has ratified, clarifies the methods of implementation, and defines the scope of the State's discretion, in the light of present realities, to regulate those rights which are not absolute.
Some progress
It is, of course, true that the relevant practice governing implementation in Georgia of the provisions of the International and regional instruments, especially ECHR and related case law of Strasbourg institutions, is constantly developing. Most active in this process are the Supreme Court of Georgia and Tbilisi Regional Court. The Supreme Court of Georgia has several times relied on the ECHR and case law of the European Court. In the case of Aliev which concerned extradition, the Supreme Court, relying on Article 13 of the ECHR (Right to an Effective Remedy), decided that, despite the deficiencies in Georgian Criminal Procedural Legislation, the applicants had to have an effective remedy before a judicial authority; the Supreme court remitted the case to the respective court (Krtsanisi-Mtatsminda District Court). The Supreme Court also referred to Article 5 of the ECHR (Right to Freedom and Liberty) and relevant case-law in the well-known Assanidze case. However, difficulties and problems are still encountered in other Regional and District Courts in Georgia.
Economic, social and cultural rights
As regards Economic, Social and Cultural rights, the situation in this regard is not flattering. My country is still struggling on its way towards creating a system that will protect social, economic and cultural rights on the same level as civil and political rights. Since independence, most attention in Georgia has been directed to development of Civil and Political Rights, largely neglected in time of Soviet Regime, to the neglect of social, economic and cultural Rights. For example, our Labour Code and Law on Social Protection were adopted some 30 years ago during the Soviet regime, and of course they do not reflect present realities. In an advanced democratic country the aim must be to respect on the same level all Human Rights, notwithstanding their character:
"civil and political rights and economic social rights are interdependent and form an indivisible set of principles upon which the European democracies must be founded" (European Social Charter)
How to move forward
How are these problems to be tackled? The answer must be to increase awareness, to foster knowledge and understanding of the new legal climate. Active in this field have been Non-Governmental Organisations as well as Government Agencies. Many projects, seminars and conferences have been carried out by NGOs, including the Georgian Young Lawyers' Association, the Training Centre for judges, for the purpose of increasing awareness of international treaties on human rights and guidance from international institutions.
Advances now being made
Since the events of November 2003, closer co-operation for the purpose of increasing human rights awareness and appreciation of international human rights standards can be observed between NGOs and state agencies, chiefly the Ministry of Justice, the Ministry of Internal Affairs, the General Prosecutor's office and the Supreme Court of Georgia. It is very significant that a sound knowledge in human rights and relevant case-law is now required for practicing judges and lawyers. This innovation was introduced in new examination tests for judges, prosecutors and lawyers. Recognising that the systematic protection of human rights was gravely neglected in Soviet times, and that it is new in the Georgian Legal System, we have to devote more attention to its development. In the light of the existing realities its importance for building a truly democratic state in the post-Soviet era cannot be over emphasised...