Public Discussion ''Facing the Past: State Policy to Address the Systemic Human Rights Violations''

On December 19, 2016 the public discussion on State Policy to Address the Systemic Human Rights Violations was held, which was organized by the Legal Issues Committee of the Parliament of Georgia and Business and Economic Center (BEC).

The event aimed at reviewing the state policy implemented by the Georgian Government in previous 4 years to address the past injustices and systemic human rights violations, reported over the years (2004-2012), discussing the international experience relevant to Georgia, assessing the past practice of human rights violations, discussing recommendations on preventive measures, determining further response policy priorities and long-term objectives with active involvement of interest groups.

The event was attended by approximately 55 representatives of governmental and non-governmental organizations, the private sector, the diplomatic corps, international organizations, the areas of law, academic circles, media, victims groups and the Patriarchate of Georgia including: Jos Douma, Ambassador of the Kingdom of the Netherlands to Georgia; Christian Urse, Head of the Council of Europe Office in Georgia; Besarion Bokhashvili, representative of the Office of the United Nations High Commissioner for Human Rights (OHCHR); Vakhtang Tordia, Member of the High Council of Justice; Professor Gia Meparishvili, former Judge of the Constitutional Court; Giorgi Chkheidze, Chief of Party, Promoting Rule of Law in Georgia Program (PROLoG) implemented by the USAID East-West Management Institute (EWMI), Vakhushti Menabde, Associate Professor at Ilia State University; Sophie Verdzeuli, Institutional Support Project Director, Human Rights Education and Monitoring Center (EMC); Nana Kakabadze, Head of the NGO Former Political Prisoners for Human Right; Vakhtang Maisaia, former political prisoner; representatives of the United Nations Development Program, Open Society Georgia Foundation, Georgian Young Lawyers' Association, Association of Law Firms of Georgia and the Bar Association.

The audience was greeted by Eka Beselia, Chairperson of the Legal Issues Committee, Tiffany Sadler, Deputy British Ambassador to Georgia and Archil Bakuradze, Chairman of BEC.

The event was attended by the following members of the Parliament of Georgia: Roman Kakulia, Chairman of the Sector Economy and Economic Policy Committee, Vano Zardiashvili, First Deputy Chairman of the Legal Issues Committee, Endzela Machavariani, Deputy Chairman of the Environmental Protection and Natural Resources Committee, Levean Gogichaishvili, member of the Legal Issues Committee, Nino Tsilosani and Giorgi Khatidze, members of the Foreign Relations Committee.

Eka Beselia, Chairperson of the Legal Issues Committee reviewed the activities related to responding to past systemic violations of human rights (2004-2012) implemented by the Parliament of Georgia of the 8th Convocation, who was the Chair of the Human Rights and Civil Integration Committee of the Parliament of Georgia of the 8th Convocation.

Natia Katsiashvili, Executive Director of BEC presented the BEC research "Facing the Past: Learning from Shared Experiences" to the attendees. The research analyzes the experience of the countries similar to Georgia with the past and challenges, which was conducted by Jenny Munro, British researcher under supervision of Dr Brian Brivati, Professor of Human Rights and Life Writing with the financial support of the British Embassy.

The second half of the event was devoted to the discussion moderated by Archil Bakuradze, Chairman of the BEC and special reports made by Ucha Nanuashvili, Public Defender of Georgia, Ana Dolidze, Parliamentary Secretary of the President of Georgia and Irakli Nadareishvili, Head of the Department to Investigate Offenses Committed in the Course of Legal Proceedings, the Prosecutor’s Office of Georgia.

Eka Beselia emphasized the following legislative amendments and activities implemented over the past 4 years: adoption of the Law on Amnesty; development of the mechanism for reviewing cases of 215 political prisoners and politically persecuted persons; annulment of crime multiplication rule; severing penalty for torture; recommendations developed in cooperation with the OHCHR and the Resolution of the Parliament of Georgia on the legal evaluation, not allowing the repeating and full prevention of torture and inhuman treatment in 2004-2012. However, she stated that despite the important steps made by the legislature, the process was not over. The government response policy for past human rights violations is quite complex, involves many subsequent processes and it is essential to understand well the possible consequences of further steps.

Tiffany Sadler stressed the significance of the public discussion and emphasized the importance of the rule of law, judicial reform and freedom of the media as well as protection of fundamental human rights, political and economic freedoms for sustainable development of Georgia. The Deputy Ambassador agreed with the research idea - '"learning from shared experiences'' and shared all the main recommendations contained in the report according to which: (a) transitional justice is a process, not a single event; (b) support across the political divide is crucial to the success of this process; (c) judgment needn't mean punishment; (d) there is no way but the Georgian way.

Archil Bakuradze talked about the need for more dialogue and BEC's role in the process of response policy making and the aim of the current event. He put topical questions about dealing with the past, political assessment, institutional reforms and the victims' needs, among them: ''How do we perceive the outcome of successful policy? What do we want to achieve? Does the conducted assessment analyze systemic failure and its causes (justice, political system and the constitution)? Are there any preconditions for public acknowledgment of guilt and apology on the side of the United National Movement? Is there any forgiveness resources among the victims and broader society? What type of reform could meet public expectations and avoid institutional failure in the future? How adequate and sufficient are remedy mechanisms? ''

Natia Katsiashvili reviewed the examples of five countries - the Czech Republic, the German Democratic Republic, Ghana, Spain and Northern Ireland and summarized the noteworthy research findings:

> the need for comprehensive and effective response policy due to the fact that "the analysis of cases of Spain, Ghana, the Czech Republic and Northern Ireland suggested that insufficient, ineffective and/or selective policy will create the necessity for solving unresolved problems in the future and/or pose additional challenges for the country; ''

> the necessity of analysis of the past and shared truth;

> the need for reflecting on the past, public debate and public recognition;

> the need for independent, impartial mechanisms for establishment of truth and investigation;

> the possibility of alternative mechanisms for establishing truth and imposing responsibility on offenders in case the investigation and the court are ineffective;

> the need for reforming public institutions, which mainly contribute to violation of human rights;

> the importance of proper communication and consultations with wide audience;

> practice of declaring response policy by laws;

> protection of the process from politicization , ''in order to ensure that the process does not become a part of the problem but the way of solving the problem; ''

> the need for strong political will to implement the response policy.

Ana Dolidze emphasized her own scientific interest in the issue and noted that in Georgia before 2012 the question was repeatedly raised how to deal with the outcomes of repressions and systemic crimes committed at different times (at the stage of establishing the Bolshevik regime or in 1991-1992). She reminded the audience of her initiative on the establishment of the Truth and Reconciliation Commission proposed together with Tom de Waal, senior fellow with Carnegie Europe, specializing in the Caucasus region in October 2012 and placed emphasis on the 1984 report – ‘’Never Again’’ (‘’Nunca Más’’) issued by the Argentina's National Commission and its large-scale nature from the experience of systemic assessment of crimes and establishing truth. Ana Dolidze stated that in Georgia such large-scale process and assessment of systemic crime or criminal system with respect to human rights violations had never conducted including the ones occurred in 2004-2012; however, she also stressed the importance of legal assessment of facts of torture and inhuman treatment in 2004-2012 conducted by the Parliament of Georgia of the 8th Convocation.

Irakli Nadareishvili gave a brief overview of the results of the activities implemented by the Department to Investigate Offenses Committed in the Course of Legal Proceedings, including statistical data such as: information about open cases, unmasked public officials, persons recognized as victims and the property restituted to them, as well as the demonstrative examples of systemic crime and governmental structures involved in criminal schemes. He said: "As a result of analysis of carried out investigations of facts of forcible taking of property, nature of revealed crime, methods and practice established among law enforcement agencies we come to a conclusion that before October 1, 2012 the nature of forcibly taking of citizens' property was massive, systematic and organized, law-breaking law enforcement agencies had modus operandi (M.O.), who acted under supervision and control of their supervisors and senior officials. ''

To improve the efficiency of the response process, Irakli Nadareishvili presented proposals to establish an interagency working group for development of mechanisms for restitution and compensation for the damage and initiation of package of legislative amendments, which would create additional legal mechanisms to ensure the restitution process.

Ucha Naniashvili also drew his attention to the importance of the ongoing discussion and to show the urgency of the issue he named 11 000 complaints on human rights violations occurred in 2004-2012, which were filed by citizens with the Public Defender's Office in 2013. The Public Defender emphasized the importance of the number of steps taken by the Government, such as amnesty for political prisoners; formation of the Special Department at Chief Prosecutor's Office; recognition of the vicious practice of secret surveillance and violation of right to respect private life over years; legal assessment of practice of torture; however, he focused on response policy flaws and provided an example that almost no one had been brought to justice in relation to 26 000 illegally obtained records and none of the judges had been brought to justice in relation with thousands of facts of human rights violations committed by courts. Accordingly, the Public Defender considered that the response policy was insufficient and noted that ''systematic problems require systemic solution'' and in order to ensure that ''changes made in the country in recent years are not fragile but systematic the current institutional framework and structures should be changed.''

Besides the need for establishment of truth, formation of civil control mechanism for law enforcement agencies, compensation for the victims and systemic institutional reforms, the Public Defender emphasized several important initiatives he had displayed in recent years:

> develop independent investigative mechanism responsible for the investigation of excessive use of force and ill-treatment perpetrated by law enforcement agencies;

> increase power of the Constitutional Court and expend the constitutional control, among them ensuring examination of constitutionality of enacted convictions;

> develop mechanism to study miscarriages of justice.

The discussion participants expressed their opinions and asked questions about the following issues: need and opportunities to study and evaluate the system; legislative provision for restitution process and forms of compensation for damage; lack of resources of the Special Department of the Prosecutor's Office, slow pace of the investigation process and difficulties ''survivors'' had to overcome to seek the truth and ''restore justice'' in case of such judicial system when courts were lawbreakers. In addition, a number of participants noted that the measures taken were insufficient and criminal prosecution of high-ranking officials and a number of important activities implemented by the Government did not trigger public sense of justice. It was also noted that the role of Parliament is essential in terms of formation of response policy and establishment of justice.

At the end of the discussion some noteworthy results were outlined:

Levan Gogichaishvili emphasized the importance of broad public involvement and sharing responsibilities among different institutions in the process of implementation of large-scale study and reaching consensus and endorsed the proposal on conducting internal studies by government institutions, including the Administration of President, Public Defender and Prosecutor's Office, presented by Archil Kaikatsishvili, Head of Young Barristers. Moreover, he reaffirmed support of the Human Rights and Civil Integration Committee for the disputable issue and readiness of the committee to develop further directions of establishment of truth and response policy: ''Let's agree and develop a big consensus document. Special commissions or investigation team can be set up in the Parliament, It’s a fact that there is requirement; however, we should agree on the form.'' - Said Gogichaishvili.

Ucha Nanuashvili stated: "Public expectations for ‘restoration of justice’ and revision of verdicts are absolutely legitimate. In this regard the Special Department of the Prosecutor's Office implements important activities; however, the volume of work is too large and the burden should not be placed only on this department whose resources are quite limited. The court may play a certain role in this process, although it will not be enough. There is the need for additional mechanisms in the society. We have talked about truth commissions. We can analyze the existing models, agree on certain model of truth commission tailored to Georgian reality and work in this direction in order to take specific steps to ensure execution of justice in the country.

Eka Beselia talked about the need for the continuation of the discussion using various platforms and formats; moreover, in response to the initiative on legislative amendments required to improve the restitution process she announced the relevant working meeting and encouraged the audience to submit specific legislative initiatives. The Committee Chair said: ''It requires a lot of energy, time and resources to bring something to an end. Many high-profile cases have been opened, many cases are being opened or heard... The process should be continued until we are able to restore violated human rights of one more victim."

Archil Bakuradze stated: ''It is noteworthy that the government response process has already started, but it is obvious that the society has higher expectations. Trial and punishment of officials are not enough, due to the fact that punishment does not mean judgment and analysis; however, answers to political problems lie in the politics itself, but in good politics. In this regard the Parliament has great potential and if the process needs to be developed, it should be focused on the Parliament. Our organization will continue to facilitate public discussion on this topic; however, the continuation of the process also depends on the activism of victims – ‘survivor’ groups, professional groups and NGOs. The main thing is that the legislator has a will to continue work in this direction in the future, which is essential to strengthen the country's economy, develop justice and establish Rule of Law.''

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The Research Report: ''Facing the Past: Learning from Shared Experiences''

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