From hremcmt@parliament.ge Wed Nov 20 13:40:42 1996
Date: Wed, 20 Nov 1996 12:31:07 +0400 (BSK)
From:Committee
for Human Rights and Ethnic Minorities of the Parliament of Georgia
<hremcmt@parliament.ge>
To: Giorgi Topouria <c676747@showme.missouri.edu>
Subject: The speach
Human Rights Problems and Achievements The Executive authority as always is ready to continue co-operation with the Parliament, Constitutional Court and Judicial Authority for the protection of fundamental human rights and freedoms provided by the constitution, which is the basis of the rule of law, civil society, socially oriented economy and human prosperity. From the speech of Edward Shevardnadze (President of Georgia) made on the meeting in celebration of the constitutional day 24 August, 1996
Human rights protection means a world order, where all conditions are created for a development and implementation of a human potential and intellect and each person is dignified. Their universal character is the foundation for a freedom, justice and peace as it is mentioned in the Universal Declaration of Human Rights.
Human rights teach us that we are similar and different at the same time. it eliminates any kind of discrimination and every man/woman is respected only on the basis that he/she is a human being. Even the inveterate (arrant) criminals have rights on compe tent, just and fair trial and relevant conditions in the places of detention. The human rights source is the International Law. Human rights most perfectly are formed by the International Bill of Human Rights. The human rights also are protected by many c ountries domestic legislation, numerous conventions and etc.
It should be mentioned that in the Bill of rights and freedoms are considered as equal, e.g. the freedom from torture means the right of any human being not to be subjected to torture. Conceptions on human rights were creating even in the ancient times (for example in the ancient Greek policies). They are reflected in a very different cultures and countries' legislation. In any case, only those people are close to the world order who manage to establish the civil society foundation in which the human rights are really protected. In such a formation not only a state plays the role of human rights' safeguard, but also the society. It is believed in a freedom of individual, rights are universal and as sovereign as a state itself and in a case of conflict of interests the final decision should be taken under the law by the Judicial Authority. In the field of the human rights protection, the countries of "Bourgeois democracy have succeeded most of all and they are considered as a fashion modellers in the sphere. They went through a long range of local and large- scaled wars, social and economical shocks till today's state of welfare. Although the examples of many of them may not be worth to be followed, we still can use the experience of these countries in the creation of our civil society. There was formed a social subject- "free producer"- an independent, initiative and interested in an effective state and social partnership. Best of all this subject acts in the countries with a strong middle class. Representatives of this class-owners (proprietors) of small and average businesses, are most of all interested in a stability and civil peace. Unfortunately, in our society the middle class has not formed yet. We are dealing with such an undesirable process as the polarization, when a mass of material welfare and political power is concentrated in the hands of minorities and the majority of population is living on the threshold of poverty and has not got a social or political protection. It is hard to speak about human rights protection in a situation like that, though the process of polarization has not gone so far away in Georgia and there is still a chance and time to stop this process by creating economical, political and legislative conditions necessary for the middle class formation.
As it is known, pre-conditions of civil society existence are: division of the state authorities ( in the Legislature, Executive and Judicial ) and the existence of a private and so called "third" sector. The last one implies non-governmental organizations the cells of the society's selforganization and self-government. The noted sector is called to be a source of initiatives, one of the safeguards of the human rights protection and to promote the social partnership. The ideal purpose for any society is to achieve a balance between these two sectors. In the West the middle class forms the private sector foundation, its' interests are always taken into consideration by the state sector and its' ideology sets up principal orientations for the "third sector". In our own modern history we can find many examples of these sectors' not relevances and its' consequences and impact on the human rights protection. The period of Stalinism made it clear how the human rights were violated "in behalf of the humanity", when a mere embryo of a private sector and an autonomy in society's life were cruelly eradicated. The private sector was prospering in the period of standstill, but it turned out in ugly forms and was managed by the shadow economy businessmen. The third sector was in the hands of clans and mobs, who were satisfying only their egoistic interests harmful to the state and human rights. There was a particular stage of Gamsakhurdia's rule which is a good example of how the human rights must not be protect ed. The human rights were forced into background by the exalted crowed which pressed down even the state institutions and became itself a toy in the hands of the mob.
Today our society is forced to work not on the harmonization of relationships between the sectors, but on their recovery. In the state-building, the owner's class and independent public structures establishment process, we should not forget that all these are made for a human who has the inviolable rights and freedoms.
The determinative factor in the cause of the civil society building in Georgia is the implementation of large-scaled actions for the creation of stable and effective law basis for the protection of the human rights and freedoms. One of the basic document is the constitution and particularly its' second chapter which contains the list of the universally acknowledged rights and freedoms. Also, it is worth to mention "The Constitutional Law on Georgian Citizenship", in which the achievements of the progressive international legal thought (legislation) is reflected. At the same time the new emforcements have been implemented and the principally new law-protecting institutions: The Constitutional Court and The Public defender have formed as a result of it.
According to the article 39 of the "Law about The Georgian Constitutional Court" any person who considers that a legal act limits his rights and freedoms may bring an action. It is very hard to over-estimate this novation. As a famous German lawyer H. Shtainberg says: it is very important, when "in the process of a constitutional reform the system of constitutional justice is establishing for the first time in a state's history, particularly if a former judicial practice of the state did not deserve any trust" (confidence).
It is also hard to over-estimate importance of the Public Defender Institution. Nevertheless of a positive role of its' activity the Committee on Human Rights and Inter- national Relationships, established in 1992 was a part of the Executive and because o f it not sufficiently effective. Under the law, the Public Defender (or ombudsman-as it is called in the West) is a high ranking official elected by the Parliament. He is not dependent on any state authority or political party and has a reputation of an objective mediator in a case of dispute between a citizen and state. The Public Defender does not belong to the Executive and his actions are limited only by recommendations. He has the right to request materials from any state authority concerning the protection of the rights and freedoms of citizens. Now in the agenda we have a discussion of the "Law about the freedom of religion and religious unions".
We are working very intensively on the Draft of The Civil Code, which is already discussing by the Parliament. Also, there is going to be a judicial reform. The very important factor in the civil society and human rights systems formation is the circumstance that our country joined many human rights protecting conventions. So, Georgia acknowledged that the principal standards of the international law has the advantage over the domestic legislation and became bound by the law to make its' legislation correspondent with the international law. The most important international documents signed by our country are: The International Covenant on economic, Social and Cultural Rights; The international Covenant on Civil and Political Rights and The Optional Protocol to The International Bill of Human Rights. The covenants acknowledge and particularly determine the rights given by the Universal Declaration of Human Rights. While the provisions of The Covenant on Civil and Political Rights must be immediately implemented, the requirements of the second covenant may be carried out gradually. But the both covenants provide that the specifics of every state-party must be considered. The importance of the international covenants is that taking into consideration the historical experience and answering modern requirements and the trends of the social progress they set forth the universal standards of the human rights and freedoms. The first state-parties, which signed the Covenant on Civil and Political Rights established The International Human Rights Committee, which has the right to observe how the states protect the human rights. Participation of our country in these covenants means that Georgia has become the plenipotentiary member of the International community.
But still there are many problems and they must be solved in complex. The first task is to establish civil peace in the country. It is connected with the problems of state- territorial system .(arrangement). Many things, like how the authority will be able to provide the political status of Abkhazians and Osetians, also how the citizen's rights in these regions will be guaranteed depend on the situation solving process in Abkhazia and Osetia. The economical and social situation of our country calls in question the state's ability to fulfill the obligations taken by the International Covenant on Economic, Social and Cultural Rights. Any initiative implemented in this field must be considered a priority. (There must be considered a priority of any initiative implemented in this sphere). The law- making process is not able to follow the life, reforms made in the economical, social and cultural spheres are not registered (legalized) by the Legislature, and it is not examined how their contents correspond the provisions of the covenant. Special attention should be paid to the socially not protected strata (section) of the population: pensioners, children, large family and etc. All the more that our country joined the International Conventions on the Rights of t he Child and the Elimination of All Forms of Discrimination against Women. Taking into account nowadays' situation the new state budget of 1997, which has a very strong socia l orientation, is being discussed. As the International legal documents, joined b y Georgia, provide in the law protecting system court procedures ought to have the advantage. Unfortunately citizens are not active enough in the protection of their rights in legal form. This is mainly explained by the lack of legal-consciousness and the fall of the judicial system authority. Except this, belief in the command of human rights is forming with great difficulties in the conscious of the law-using authority's employees. In addition to this there are still working the old soviet age institutions. Such a system makes justice vulnerable for political and other time-servers, especially on the places. The situation must be improved by the new constitution and judicial reform.
Georgia joined the Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment. Adherence of our country to the universally acknowledged standards (norms) is proved by the Article 7 of the Constitution. But the presidential decree (edict) on the prevention of torture and other cruel, inhuman or degrading treatment or punishment in the places of detention and execution, has not lost its' actuality (urgency). Very often cases are returned for the additional investigation, be cause of the mistakes done in the process of the preliminary investigation. Also there are such drawbacks as the unjustifiable extention of imprisonment terms and not proved choice of the preventing (isolation) measures. Very often the law-protecting organs are too hard- working and give warrants for the actions, which do not require the isolation from society. By the way the legislation does not implies compensations for unjustly detained persons, though such provision is provided by the Constitution (Article 18, p.#7). The question of compensation procedure will be decided with the reforms planned to be implemented in the judicial system.
There is still a difficult situation in the penitentiary system where the prisoners do not have elementary condition, which is reflected in the indications of mortality and illnesses.
As it was mentioned previously there is still a difficult situation in the private sector development, which should become the social basis for the reforms. Although the first important steps have already been made-adopted the Law About Ownership and Agricultural (farming) Land. Still there are some causes of the sector's slow development: high taxation, legislation is far away from the perfection, not a good economical situation, corruption and etc. However it is worth to mention the new democratic slog an "let's build a middle class country". This motto should be not only the social relationships' legal and social-normative foundation but also the ideology foundation's changing criteria.
For this next steps are necessary:
- The private sector must be formed as a really active subject of the reforms.
- Establishment of a specifically relieving taxation system.
- To make easier and cheaper the process of small and average business registration.
- Establishment of the information providing system for small businesses.
- Creation of the legal basis law about state support for the small and average businesses
and credit companies; elaboration of the law about the small and average business investor
institutions and etc.
- establishment of an independent, legal, arbitral and auditorial service, which will be able
to protect the small business from the arbitrary of various agencies.
The "third section is developing in Georgia, but it is premature to talk about streamlined system in this field. It is in the state of so called "Brown's action" and the difficulties are coming not from the minority of these organizations but on the contrary from their numerous amount. Here we are dealing with the pluralism which has not yet defined its' quantity in the time and space. It will happen only when the balance of interests established on the property relationships will be formed, when on the background of this or that social movement will be standing a particular social group with its' economical, political and other statuses. So, the private sector development must determine the measures of pluralism. The law-protecting organs have the same problems as "the third section"- they are separated and their relationships with the state are less successful then with the international funds and are characterized by the mutual distrust. The law about the social unions of citizens is in force and wholly up to the internationally acknowledged standards. Nowadays good legislative background should come into accordance with the concrete practice of "the third sector" and particularly in the field of law-protecting organs.
To say least the human rights protection system must not be brought only to the list of model laws. The whole legislation, social conscious with its' relevant institutions and the most important of them the law must be penetrated with this spirit. Its' command is a condition for civil society existence in which the highest values are the human rights. Shortly but very polysemanticly it sets forth the slogan of Vienna Conference: "Human Rights: know them, demand them, defend them." Similar problems will have to solve the first Georgian Ombudsman who will be elected by the Georgian Parliament in the nearest future. His activity must become a safeguard for "the third" and private sector and the existence of effective statehood.
As a result of it must be formed a social subject who will know his/her rights and be able to protect them.
The Chairman of the Parliamentary Konstantin Kokoev
Committee on Human Rights and
Ethnical Minorities
This is the Speech which will be Pronounced on The East and Central
European Ombudsmen's forum in Budapest, 21-23 November 1996.
Tanslated by the senior
specialist of the Committee
Gimzer Zedelashvili.
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