We, the signatories to this statement, express our dissatisfaction and criticism about the draft Law on Elimination of All Forms of Discrimination submitted by the Government to the Parliament of Georgia. We believe that the current version of the draft law is essentially a step backwards from the model and standards of struggle against discrimination included in the previous versionwhich the Ministry of Justice had developed through active cooperation with civil society and which had been evaluated positively by international organizations. Effective repressive and preventive mechanisms for elimination of discrimination which envisaged imposition of fines on offenders and instruments of control of mandatory measures to be taken with the aim of eliminating discrimination have been removed from the current draft law initiated by the Government. In addition, the competences and procedural safeguards of the Public Defender in the process of examining facts of discrimination and taking follow-up measures are weak and ineffective.
We cannot agree with the Government’s argument that, at this stage, the state institutions and the society are not ready for the introduction of repressive and effective mechanisms, because the instruments of struggle against discrimination also include educational and preventive measures, and imposition of fines can only be used as last legal resort in this process.
The second and third points of Article 5 of the draft law are especially questionable, as they impose unjustified restrictions on the prohibition of misuse of the provisions of the law and abuse of right and offer us to interpret the law from the point of view of dominant groups, which is legally unsubstantiated and invalid, though they show the spirit and values of the draft law. In this respect, we find it especially irrelevant that the draft law says that no provision of the law can be construed to contradict the constitutional agreement between the State of Georgia and the Apostolic Autocephalous Orthodox Church of Georgia, because the Constitution itself recognizes the primacy of universal principles and norms of international law over the constitutional agreement in the area of human rights and fundamental freedoms. The scope of the constitutional agreement does not transcend the relationship between its immediate signatories. Should this agreement be used for unequal treatment of other persons, this will amount to discrimination.
Considering the aforementioned circumstances, we believe that adoption of the current version of the draft, which only broadens the Public Defender’s competences to an insignificant extent, will not substantially change the existing legislative reality and will not become an effective mechanism in the struggle against discrimination. Accordingly, we call on the authorities to make sure that its attempts and efforts to achieve equality in the country are reflected in effective legislative and institutional safeguards. With this purpose, we ask the Parliament and the Government to ensure a public and fair discussion of the draft law and to show their readiness to make corresponding changes and amendments to the document. Among other things, we request to carry out the following:
- creation of an independent specialized task force on the issues of struggle against discrimination under the mandate of the Public Defender, which, among other things, will also have a repressive authority and adequate guarantees of independence. In this respect, it is important that the task force is made up of experienced experts working in the area of human rights who are known for their liberal values and solidarity;
- taking the obligation to contribute to the institutional empowerment of the Public Defender’s Office by the State, which implies allocation of additional budgetary and human resources;
- removal of the second and third points of Article 5 of the draft law which deal with abuse of right;
- introduction of effective guarantees of examination of facts of discrimination with the aim of studying them adequately, which, among other things, implies imposing the burden of proof on the respondent. The defendant should be responsible to prove that discrimination didn’t take place and also be legally bound to present information and documentation at the Public Defender’s request;
- granting the Public Defender competences to represent victims of discrimination in court;
- for the purposes of eliminating discrimination and facilitating negotiation, increase effectiveness of monitoring mechanism.
We believe that the draft law cannot be an effective mechanism of struggle against discrimination unless it is possible to fine a person responsible for discrimination. The signatory organizations to the present statement consider the existence of a fine mechanism as an absolute necessity without which the adoption of the aforementioned law will be devoid of real meaning.
The present statement is open for signatures (to sign the statement, please contact firstname.lastname@example.org). At this stage, the following organizations have signed the statement:
Georgian Young Lawyers’ Association (GYLA)
Human Rights Education and Monitoring Center (EMC)
Georgian Democracy Initiative (GDI)
Open Society – Georgia foundation
Transparency International – Georgia (TI – Georgia)
Tolerance and Diversity Institute (TDI)
Article 42 of the Constitution
Media Development Foundation (MDF)
International Society for Fair Elections and Democracy (ISFED)
Women’s Initiatives Supporting Group (WISG)
Women’s Fund in Georgia (WFG)
Georgian Center for Psychosocial and Medical Rehabilitation of Torture Victims (GCRT)
Youth Center for Independent Living
NGO “Let’s Be Friends”
Analytical Center for Interethnic Cooperation and Consultations
Kurdish National Democratic Institute
Georgia’s Reforms Associates (GRASS)
Civil Development Agency (CiDA)
Partnership for Human Rights (PHR)
The Evangelical Baptist Church
Union of Georgian Muslims
Diocese of the Armenian Apostolic Orthodox Holy Church in Georgia
Seventh-day Adventist Church
Citizen Journalist Club
“Accessible Environment for Everyone”