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- Year: 2012
- Country: Georgia
- Language: Russian
- Document Type: Other International Legal Instrument
- Topic: Assembly and Protest,Defending Civil Society
GE.12-13851 (R) 150612 150612
Совет по правам человека
Пункт 3 повестки дня
Поощрение и защита всех прав человека, гражданских,
политических, экономических, социальных
и культурных прав, включая право на развитие
Доклад Специального докладчика по вопросу
о правах на свободу мирных собраний и на свободу
ассоциации Маины Киаи
Миссия в Гр у з и ю * **
Специальный докладчик по вопросу о правах на свободу мирных собра-
ний и на свободу ассоциации посетила с официальным визитом Гр у з и ю с 6 по
13 февраля 2012 года. Мандатарий посетила Тбилиси, Кут а и с и и Батуми и про-
вела встречи с государственными должными лицами, представителями непра-
вительственных организаций, профсоюзами, официальными лицами политиче-
ских партий и представителями
международного сообщества, базирующимися в
Настоящий доклад был подготовлен на основе тщательной оценки поло-
жения в связи с осуществлением прав на свободу мирных собраний и на свобо-
ду ассоциации. Специальный докладчик должным образом приняла во внима-
ние документацию, кото ра я была представлена для подготовки доклада, а также
информацию, полученную в ход е подробных бесед с жертвами, активистами
высокопоставленными представителями правительства.
* Резюме настоящего доклада распространяется на всех официальных языках. Сам
доклад, содержащийся в приложении к резюме, распространяется только на том языке,
на котором он был представлен.
** Настоящий доклад был представлен с опозданием с целью отражения в нем самой
Организация Объединенных Наций A /HRC/20/27/Add.2
Генеральная Ассамблея Distr.: General
8 June 2012
За период со времени “революции роз” в Гр уз и и имел место важный пе-
риод реформ во многих областях общественной жизни. Вместе с тем Специаль-
ный докладчик считает, что эти ул уч ш е н и я не следует воспринимать как дан-
ность. Обстановка страха и запугивания членов оппозиционных политических
партий и представителей гражданского общества могут серьезно препятство-
вать осуществлению этих реформ. С учетом парламентских выборов в 2012 го-
ду и президентских выборов в 2013 году следует активизировать усилия с це-
лью обеспечения защиты права на свободу мирных собраний и на свободу ас-
[English only] Report of the Special Rapporteur on the rights to freedom of
peaceful assembly and of association on his mission to
Georgia (6 – 13 February 2012)
I. Introduction…………………………………………………………………………………….. 1–9 4
II. Historical and political background ……………………………………………………. 10–12 5
III. Domestic legal framework ………………………………………………………………… 13–15 5
IV. Internation legal standards ………………………………………………………………… 16–18 6
Right to freedom of association………………………………………………………….. 19–60 7
A. Uneven political playing field …………………………………………………….. 26–49 8
B. Undue obstacles for trade unions and their members ………………………. 50–60 13
VI. Right to freedom of peaceful assembly ……………………………………………….. 61–82 14
A. Restricting peaceful assemblies…………………………………………………… 67–74 15
B. The events of 26 May 2011 ………………………………………………………… 75–82 17
VII. Conclusions…………………………………………………………………………………….. 83–89 19
VIII. Recommendations ……………………………………………………………………………. 90–95 20
1. The Special Rapporteur on the rights to freedom of peaceful assembly and of
association, Maina Kiai, undertook an official mission to Georgia from 6 to 13 February
2012, at the invitation of the Government. The visit was carried out pursuant to his mandate
to assess compliance with international standards on the rights to freedom of peaceful
assembly and of association, and to paragraph 5 (f) of Human Rights Council resolution
15/21, in which the Council mandated the Special Rapporteur to report on violations,
wherever they occur, and to draw the attention of the Council and the United Nations High
Commissioner for Human Rights to situations of particularly serious concern.
2. Georgia has extended a standing invitation to all special procedures mandate
holders. In this context, the mission was planned following a joint urgent appeal addressed
to the Government of Georgia on 20 June 2011 regarding allegations of disproportionate
use of force by law enforcement authorities to disperse a demonstration held on 26 May
2011. The Special Rapporteur had been keen to visit other regions in Georgia; there was,
however, insufficient time to adequately prepare a visit to the breakaway regions of
Abkhazia and South Ossetia. The Special Rapporteur would like to visit them in the future,
in the framework of a follow-up visit.
3. The Special Rapporteur visited the cities of Tbilisi, Kutaisi and Batumi. In Tbilisi,
the Special Rapporteur met with the Minister and the Deputy Minister for Foreign Affairs;
the Deputy Chairperson of the Constitutional Court; the Deputy Minister for Corrections
and Legal Assistance; the Head of the Legal Department of the Municipality of Tbilisi; the
Minister and the Deputy Minister for Labour, Health and Social Affairs; the First Deputy
Chairperson, the Chairperson of International Relations Committee and the First Deputy
Chairperson of the Legal Affairs Committee of the Parliament of Georgia; the Head of the
International Relations Department of the Ministry of Defense; the Vice-President of the
Supreme Court and the Chairperson of the Chamber of Administrative Cases; the First
Deputy Chief Prosecutor and the Head of the International Law Department of the Ministry
of Justice; the First Deputy Minister of Internal Affairs; the Secretary and the Deputy
Secretary of the National Security Council; the Public Defender of Georgia; and the Deputy
Head of the Justice Department of the Office of the Public Defender. The Special
Rapporteur also met with representatives of the United Nations country team and of
diplomatic missions. In Kutaisi, he met with the Deputy Governor of Imereti and the Head
of Patrol Police of Imereti region. In Batumi, he met with the Chairperson of the
Government of the Autonomous Republic of Adjara and the Deputy Head of Patrol Police
4. In each city, the Special Rapporteur met with representatives of political parties,
non-governmental organizations and labour unions.
5. The Special Rapporteur thanks the Government and the Ministry of Foreign Affairs
for having facilitated the meetings with Government representatives.
6. A special note of appreciation is to be directed to the Public Defender and his
Office for the invaluable support offered during the mission.
7. The Special Rapporteur also expresses his appreciation to the United Nations
Resident Coordinator and, most notably, deep gratitude to the presence of the Office of the
High Commissioner (OHCHR) in Georgia for their excellent and invaluable support during
the preparation and conduct of the official visit.
8. The Special Rapporteur believes that the effective enjoyment of the rights to
freedom of peaceful assembly and of association is of particular importance in Georgia.
This is relevant considering the way that the current Government was formed. The Special
Rapporteur believes that his visit was also timely given the number of legislative
amendments adopted in late December 2011 that may have a direct impact on the
enjoyment of the rights to freedom of peaceful assembly and of association. In the view of
the Special Rapporteur, the country is at a critical point where it can take further steps to
improve on its record or take the country backwards in terms of human rights.
9. The Special Rapporteur took into due consideration the views of the authorities of
Georgia and the recent history of the country when drafting the present report.
II. Historical and political background
10. Independence was restored to Georgia in 1991. In 2003, massive protests (leading to
what became known as the “Rose Revolution”) over fraudulent parliamentary elections, –
were held throughout the country.
11. In 2004, Mikheil Saakashvili was elected President of Georgia, a position he still
held at the time of the official visit.
12. In 2010, the Parliament of Georgia adopted a set of constitutional reforms, which
will come into effect in 2013. With the reforms, Georgia is modifying its current
presidential system and moving towards a parliamentary system of government, , by
expanding the powers of the Prime Minister and reducing the powers and prerogatives of
the President. The President will act as “guarantor of Georgia’s unity and national
independence”, while the Prime Minister, as the head of the executive Government, will be
directly accountable to Parliament. While theoretically the current President, who is now
ineligible to run again for the presidency owing to term limits, may vie to be Prime Minister
as the head of the most popular party, these new provisions have been generally welcomed
by the European Commission for Democracy through Law (Venice Commission) of the
Council of Europe.
III. Domestic legal framework
13. Georgia has a civil law system based on the Constitution of Georgia, the supreme
law of the State. The Constitution contains legal safeguards for the protection of human
rights and fundamental freedoms. Article 6 of the Constitution clearly stipulates that
international treaties “shall take precedence over domestic normative acts” only if they do
not contradict the Constitution.
14. The Constitution recognizes the rights to freedom of peaceful assembly and of
association. More specifically, article 25 stipulates that “everyone, except members of the
armed forces and the Ministry of Internal Affairs, has the right to public assembly without
arms either indoors or outdoors without prior permission”. The article also stipulates that
this freedom may be subject to prior notification “in the case where a public assembly or
manifestation is held on a public thoroughfare”, and that “only the authorities shall have the
right to break up a public assembly or manifestation in case it assumes an illegal character.
In terms of the right to association, article 26 explicitly recognizes the right of everyone “to
form and to join public associations, including trade unions” and the right “to form a
political party or other political association and participate in its activity in accordance with
1 See the final opinion of the Venice Commission on the draft constitutional law on
amendments and changes to the constitution of Georgia (CDL-AD (2010)028), October
2010, pp. 7 and 16.
2 See www.parliament.ge/files/68_1944_951190_CONSTIT_27_12.06.pdf.
the Organic Law”. Article 26, paragraph 3, explicitly bans “the formation and activity of…
public and political associations aiming at overthrowing or forcibly changing the
constitutional structure of Georgia, infringing upon the independence and territorial
integrity of the country or propagandising war or violence, provoking national, local,
religious or social animosity”. In addition, the same article provides for the “suspension or
prohibition of the activity of public or political associations… only under a court decision,
in the cases determined by the Organic Law and in accordance with a procedure prescribed
by law”. Moreover, article 27 allows the imposition of restrictions on “the political activity
of citizens of a foreign country and stateless persons”. Article 33 recognizes the right to
strike and, in this regard, the “procedure of exercising this right shall be determined by law.
The law shall also establish the guarantees for the functioning of services of vital
importance”. Lastly, article 39 guarantees “other universally recognized rights, freedoms
and guarantees of an individual and a citizen, which are not referred to herein but stem
inherently from the principles of the Constitution”.
15. In terms of the main legislation, at the time of the visit, the rights to freedom of
peaceful assembly and of association were governed by the Law on Assembly and
Manifestations and the Law on Political Unions of Citizens, both amended in December
2011; the Constitutional Law on Amendments and Changes to the Constitution of Georgia;
the Civil Code of Georgia; the Organic Law on the Suspension of Activities and Prohibition
of Civil Society Organizations; the Law on Trade Unions; the Criminal Code; the Code on
Administrative Offences; the Election Code; and the Labour Code.
IV. International legal standards
16. In assessing the situation of the rights to freedom of peaceful assembly and of
association in Georgia, the Special Rapporteur was guided by several international legal
standards. The most relevant were the International Covenant on Civil and Political Rights,
and articles 21 and 22 in particular; and the International Covenant on Economic, Social
and Cultural Rights, especially with regard to article 8. Both covenants were ratified on 3
May 1994 without reservations.
17. The Vienna Declaration and Programme of Action reaffirmed that all human rights
are universal, indivisible, interrelated and interdependent.
3 Owing to the nature of his
mandate, the Special Rapporteur also paid attention to the following articles of the
International Covenant on Civil and Political Rights: article 7 (prohibition of torture or
cruel, inhuman or degrading treatment or punishment); article 9 (right to liberty and
security of person); article 14 (right to a fair trial); article 17 (right to privacy); article 19
(right to freedom of opinion and expression); and article 25 (right to take part in conduct of
public affairs, and right to vote in genuine periodic elections). In the view of the mandate
holder, these rights are complementary to the exercise of the rights to freedom of peaceful
assembly and of association insofar as they contribute to the effective enjoyment of these
18. The Special Rapporteur was also guided by other relevant international human rights
instruments, including those of the treaty bodies and specialized agencies. More
specifically, when drafting the present report, he observed International Labour
Organization (ILO) Conventions No. 87 concerning Freedom of Association and Protection
of the Right to Organize, ratified in 1999, and No. 98 concerning the Application of the
Principles of the Right to Organize and to Bargain Collectively, ratified in 1993; the
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society
to Promote and Protect Universally Recognized Human Rights and Fundamental
3 A/CONF.157/23 , para. 5.
Freedoms; 4 general comments Nos. 25, 27, 29, 31, 32 and 34 of the Human Rights
Committee; general comment No. 2 of the Committee against Torture; the Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials; and the Code of Conduct
for Law Enforcement Officials.
V. Right to freedom of association
19. The mandate of the Special Rapporteur, as stipulated by the Human Rights Council
in its resolution 15/21, defines the scope by which the mandate holder may consider issues
involving associations. Notably, in the preamble to resolution 15/21, the Council
recognized that the right to freedom of association was an essential component of
democracy, providing individuals with invaluable opportunities to, inter alia, express their
political opinions, engage in literary and artistic pursuits and other cultural, economic and
social activities, engage in religious observances or other beliefs, form and join trade unions
and cooperatives, and elect leaders to represent their interests and hold them accountable.
Accordingly, the mandate holder considers that political parties, trade unions and non-
governmental organizations are all covered within the same right, and are therefore
considered to be various forms of associations.
20. Moreover, in resolution 15/21, the Human Rights Council also recognized that
exercising the right to freedom of association free of restrictions, subject only to the
limitations permitted by international law, in particular international human rights law, was
indispensable to the full enjoyment of these rights, particularly where individuals may
espouse minority or dissenting religious or political beliefs. Article 8 of the International
Covenant on Economic, Social and Cultural Rights stipulates that no restrictions or
limitations may be put in place “other than those prescribed by law and which are necessary
in a democratic society in the interests of national security or public order or for the
protection of the rights and freedoms of others”. Similarly, article 22 of the International
Covenant on Civil and Political Rights recognizes the right to association, including the
right to form and join trade unions, and includes an additional restriction to protect “public
health or morals”.
21. Restrictions on fundamental rights must be applied in a manner that do not diminish
nor annul the effect of the right itself. This view has been expressed by the Human Rights
Committee on several occasions, in that “the relation between right and restriction, between
norm and exception, must not be reversed. The laws authorizing the application of
restrictions should use precise criteria and may not confer unfettered discretion on those
charged with their execution”.
22. With regard to the situation in Georgia, the Special Rapporteur recognizes the
improvements that have taken place in the area of freedom of association since the Rose
Revolution. These reforms have certainly enriched the space in which associations can be
formed and operate.
23. The Special Rapporteur was particularly encouraged by the adoption, in July 2011,
of amendments to the Civil Code allowing religious minority associations to register as
legal entities of public law. With the entry into force of the new law, the situation of
religious minorities in Georgia has improved considerably. Moreover, the current procedure
for the registration of associations, including non-governmental organizations, meets
4 General Assembly resolution 53/144.
5 General Assembly resolution 34/169, annex.
6 See Human Rights Committee general comments Nos. 27 (CCPR/C/21/Rev.1/Add.9), para.
13, and 34 (CCPR/C/GC/34), para. 21. In paragraph 6 of its general comment No. 31
(CCPR/C/21/Rev.1/Add. 3), the Committee also makes reference to this point.
international standards, as it is generally prompt, expeditious, easily accessible and
24. In spite of such good reforms, however, there are concerns about the enabling
environment for associations. The Special Rapporteur is concerned that the recent adoption
of legislative amendments to the Law on Political Unions of Citizens, together with the
application of the existing Labour Code and Election Code, unduly restrict the free exercise
of the right to association.
25. With regard to freedom of association, the Special Rapporteur has identified two
broad areas of concern: an uneven political playing field, and undue obstacles for trade
unions and their members.
A. Uneven political playing field
26. In late December 2011, the Parliament of Georgia passed amendments to the
Organic Law on Political Unions of Citizens that could have far-reaching consequences for
the functioning of political parties in opposition and civil society organizations. The
mandate holder notes that these amendments are at times drafted in ambiguous language,
and are fuelling an overall climate of distrust, while violating international human rights
law. The Special Rapporteur was pleased to point out, however, that following his visit and
preliminary findings on this matter, he was informed by the Government that amendments
to the law were adopted in May 2012, after due consultations with civil society.
27. International law imposes obligations on States to respect the right of every
individual to associate freely, irrespective of political preferences. Article 22 of the
International Covenant on Civil and Political Rights to which Georgia is a State party,
allows people to associate without undue restrictions. Moreover, article 25 of the Covenant
guarantees the right of all citizens to (a) take part in the conduct of public affairs, directly or
through freely chosen representatives; and (b) to vote and to be elected at genuine periodic
elections guaranteeing the free expression of the will of the electors.
28. Essentially, the above-mentioned treaty-based provisions are intended to permit fair
political competition in societies, enabling citizens not only to openly express their political
views, but also to give them a fair chance to change their leaders as they deem appropriate.
To that extent, a level playing field in politics is necessary for the enjoyment of the right of
29. The above view had already been interpreted by the Human Rights Committeein
1996. In its general comment No. 25 on the right to participate in public affairs, voting
rights and the right of equal access to public service, the Committee considered that the
right to freedom of association, including the right to form and join organizations and
associations concerned with political and public affairs, was an essential adjunct to the
rights protected by article 25 of the International Covenant on Civil and Political Rights.
According to the Committee, political parties and membership in parties played a
significant role in the conduct of public affairs and the election process; States should
therefore ensure that, in their internal management, political parties respect the applicable
provisions of article 25 in order to enable citizens to exercise their rights thereunder.
30. While the Special Rapporteur acknowledges very positively the simple registration
process for associations currently in place, he is seriously concerned about a number of
provisions in the adopted amendments and additions to the Law on Political Unions. These
7 See A/59/401, para. 81 and A/64/226, para. 110.
8 CCPR/C/21/Rev.1/Add.7, para. 26.
provisions relate to the extension of the restrictions on political parties to legal and physical
persons, to the scope and responsibilities attributed to the Chamber of Control, and its
overall impact on the country’s elections. The mandate holder notes that these amendments
were adopted in late December 2011.
1. Arbitrary restrictions
31. When drafting the present report, the Special Rapporteur was informed that new
amendments to the Law on Political Unions had been adopted in May 2012. In particular,
according to this information, funding restrictions prescribed for political parties “apply to a
person, who has declared electoral goals and uses related financial and material resources to
achieve this goal”, and “restrictions to the persons apply only to activities that are related to
the use of finances or any other material or non-material resources for political or electoral
9 The mandate holder recognizes that there have been changes since the previous
version of the law, adopted in December 2011. 10 Owing to reporting requirements,
however, the Special Rapporteur has not been able to verify or consult the said amendments
with other relevant stakeholders.
32. According to the legislation amended in December 2011, funding restrictions
prescribed for political parties also apply to (a) legal persons who are connected, directly or
indirectly, to a political party or are otherwise under the control of a political party or have
declared political aims and objectives; (b) legal persons who, by means of representatives
or through the assistance of other persons, encourage voters to support or abstain from
supporting any political power; and (c) persons who have declared political aims and
objectives, those connected to them, as well as persons in business relations with them, who
have political and electoral aims or conduct activities that affect the expression of the
citizens of Georgia in elections, plebiscites and referendums, these activities being
conducted with the aim of avoiding obligations prescribed by the law. Moreover, the same
applies if a “legal person is connected, directly or indirectly, to a political party if its
expenditures are related, directly or indirectly, to the activity and goals of a political
33. Paragraphs 1 and 2 of article 26
1 of the law, as amended in December 2011, extends
the restrictions on political party funding to any individual or organization in Georgia.
More concretely, these restrictions disproportionately apply to any organization in Georgia
with “connections” to parties either directly or indirectly; that may have made political
declarations with specific goals and objectives; have encouraged or discouraged voting in
elections; or have spent funds on issues that may be seen as related to a political party,
either directly or indirectly. Moreover, restrictions also concern any individual in Georgia
with political convictions, including people “connected to them” and in “business relations
with them”, aiming at putting them into practice, or conduct activities that can influence the
will of voters at any given time, including activities that may aim at challenging these
34. The Special Rapporteur is concerned with the fact that article 26
1 may seriously
deter non-governmental organizations and civil society in general from freely conducting
human rights activities on the ground. In the view of the mandate holder, the work of some
of these organizations is political by definition and constitutes a crucial component of a free
9 May 2012 amendments to the Organic Law of Georgia on Political Unions of Citizens, art.
26 1, paras. 1 and 5 (unofficial English translation submitted by the Government of Georgia).
10 2011 amendments and additions to the Organic Law of Georgia on Political Union of
Citizens, published in the Herald of the Parliament of Georgia (1997, #45), (unofficial
English translation submitted by the Government of Georgia).
11 Ibid., art. 26 1.
and democratic society. In addition, there is a high risk of targeting ordinary individuals for
simply having expressed political opinions in public or in private. If found to be in violation
of these ambiguous provisions, any individual, business company or legal entity could be
subject to restrictions on property, funds and finance that would otherwise be applied to
35. Indeed, the legislation provides for restrictions on any individual or association or
business company in Georgia for political reasons, which may involve, inter alia, limits to
property ownership; a ban on accepting international financial and material contributions
from physical and legal persons and non-profit legal persons, except for training purposes
or other public arrangements; contributions, except explicitly permitted otherwise, from
public institutions with a State share of more than 10 per cent; anonymous donations; a ban
on receiveing credits or loans from any natural or legal person, except for election
campaigns if specifically registered for such a purpose; a limit to the annual overall amount
of spending and expenses of up to 0.2 per cent of GDP for the previous year; the same total
amount of GDP for parties united in a block; a maximum of 10 per cent of such a share of
GDP for expert/consultation services; gifts for holiday celebrations of a maximum of 5,000
lari a year; a maximum of 60,000 lari in donations a year per person; or an annual amount
of 1,200 lari in membership fees a year per person.
36. Paragraph 3 of article 26
1 contains an apparent safeguard provision to protect the
right to freedom of opinion and expression and the right to participate in the conduct of
public affairs by stipulating that “the restrictions listed in the present article may not be
used against the freedom of expression and civic engagement”. This may appear to suggest
that the effective application of paragraph 3 would seem sufficient to annul the negative
effect of the provisions in the two preceding paragraphs. The mere declaration of political
and electoral aims, goals or objectives should not, however, be deemed sufficient proof of
illicit party financing. Moreover, the law does not clarify what electoral “goals” or
“objectives” imply in practice, which could certainly lead to abusive interpretations. In this
context, the fear of being subjected to such restrictions may act as a deterrent for
individuals, non-governmental organizations, trade unions, private companies and other
legal entities, and facilitate self-censorship. As a consequence, it may act in violation of the
right to freedom of opinion and expression, the right to participate in the conduct of public
affairs, and the rights to freedom of peaceful assembly and of association.
37. During his visit, the Special Rapporteur was informed that most amendments to the
Law on Political Unions were motivated to prevent Bidzina Ivanishvili, the wealthiest
individual in Georgia, from financing associations or otherwise taking part in the conduct
of public affairs in Georgia through means other than by a political party. This would
suggest that the recent amendments were motivated by a desire to control the political
activities of a specific individual rather than for objective and sustainable reasons.
38. Limiting political party financing is a legitimate endeavour. The Special Rapporteur
shares the view of the Human Rights Committee that “reasonable limitations on campaign
expenditure may be justified where this is necessary to ensure that the free choice of voters
is not undermined or the democratic process distorted by the disproportionate expenditure
on behalf of any candidate or party”.
12 However, in the case of the amendments to the Law
on Political Unions, the extent to which the law could affect anyone in Georgia appears to
be unreasonably large. International law entitles non-governmental organizations and any
legal entity and every individual to support any candidate or political persuasion of their
choice without hindrance, subject to campaign finance laws. It is recalled that laws crafted
for such subjective purposes often have the effect of violating human rights and are often
unsustainable within changing circumstances of life.
12 CCPR/C/21/Rev.1/Add.7, para. 19.
39. The mandate holder takes note of the 2011 joint opinion of the Venice Commission
and the Office for Democratic Institutions and Human Rights of the Organization for
Security and Cooperation in Europe in terms of limiting and restricting the property and
funding of political parties to avoid “big business” and illicit donations from “purchasing…
13 However, he is cognizant of the fact that a significant number of
amendments were introduced at a later stage by the Georgian legislature following the
adoption of the joint opinion.
2. Chamber of Control
40. Article 34 of the new Law on Political Unions expands the prerogatives of the
Chamber of Control to “monitor the legality and transparency of political party funding”. In
addition, a new unit to monitor party finances was established in early January 2012. Grave
concern is expressed that with the new legislation, the Chamber of Control, a de facto organ
of the Executive, may, among other things, conduct audits of financial activities, request
information on finances, including on the origins of transferred or received property, or
ensure transparency of funding for any citizen or legal person in Georgia. This would give
the Chamber of Control extraordinary discretional authority to inspect the state of financial
accounts of any person or organization. Such authority can be exercised, without clear
criteria and for its own reasons, without explanation. The Special Rapporteur is of the view
that any monitoring authority of campaign finances should be transparent, impartial and
independent – and beseen to be so – in its constitutive authority and in fact.
41. During the conduct of the visit, there were instances where non-governmental
organizations had been requested to submit financial declarations for scrutiny under the
above-mentioned law, in circumstances that were not transparent. Other allegations were
received from private individuals, including activists, human rights defenders and members
of trade unions, on similar grounds. Moreover, the Special Rapporteur was informed that
the Chamber of Control had used standardized questions to interrogate individuals,
allegedly requesting information on their political activity, whether they had distributed
documents from the “Georgian Dream”, whether they had been collecting signatures for
Mr. Ivanishvili’s citizenship, and whether a financial contribution had been received for
that purpose (see paragraph 48 below).
42. Due consideration was taken of the arguments made by senior Government officials
that no organization would be held accountable unless decisions had been based on
evidence and there were “reasonable grounds” to believe that active support was being
given to a political party. Government officials argued that the Chamber of Control was
under considerable scrutiny and that monitoring would not target opinions, but rather
activities potentially covering up illicit financing. The Chamber of Control was also
presented as an independent institution without executive, legislative or judicial powers that
does not interfere with business activities, freedom of expression, private property or civil
society. Similarly, more transparency and greater role of courts against Chamber decisions
were also envisaged.
43. In practice, however, if the Chamber of Control has a suspicion of an illicit activity,
whether well- or ill-founded, ambiguous provisions in the Law on Political Unions can
13 Joint opinion of the Venice Commission and Office for Democratic Institutions and Human
Rights of the Organization for Security and Cooperation in Europe on the draft law on
amendments and additions to the Organic Law of Georgia on Political Unions of Citizens,
opinion No. 652/2011, CDL-AD(2011)044, 16-17 December 2011, pp. 5-6.
14 See “Secretary of the Venice Commission answers questions on the law on political unions
of citizens”, Council of Europe Office in Georgia, press release, 31 January 2012. Available
empower it to interfere with business relations, compromise freedom of opinion or
expression, violate the right to property and privacy, and hamper the work of civil society.
At the time of the visit, there was no mechanism in place that could mitigate potential abuse
by the Chamber of Control. In theory, human rights violations may be subject to a judicial
remedy. However, while physical and legal persons may pursue such legal remedies, the
perceived lack of independence of the judiciary in court proceedings could lead activists
and human rights defenders to self-censor.
44. The Special Rapporteur was, however, informed that guidelines for the
implementation of the law were being drafted by the Chamber of Control.
15 While genuine
consultations with civil society are most encouraged, it is still incumbent on the
Government to seriously consider reviewing the above-mentioned legal provisions.
45. While drafting the present report, the Special Rapporteur was informed that a high-
profile hearing with civil society on political party financing had been held in Parliament.
An agreement was reached on a package of amendments that should, inter alia, specify
which legal persons fall under such restrictions, reduce fines imposed by the State audit
agency, establish rules of procedure for the Chamber of Control, apply no restrictions to
non-election campaigning associations that support the capacity-building of political
parties, and mandate an additional role for courts. According to the Government,
amendments to the Law on Political Unions were adopted in May 2012. The mandate
holder encourages the Government to continue with these efforts to ensure even greater
protection of fundamental freedoms.
3. Genuine competitive elections
46. A significant number of allegations were received regarding unequal access to State
resources for election campaigning. In 2008, the OSCE Election Observation Mission in
Georgia concluded that, while the campaign for the extraordinary presidential election was
overshadowed by widespread allegations of intimidation of and pressure on, inter alia,
public-sector employees and opposition activists, “the distinction between State activities
and the campaign of the ruling United National Movement … was blurred”.
47. According to the information received, the ability to distinguish between the ruling
political party and the State has deteriorated. The Special Rapporteur was informed that
technical restrictions had been applied to ensure better access to public resources during
election campaigning, including an obligation for entry and mid-level public sector
employees to use their own private arrangements to campaign for elections. He appreciates
the implicit recognition by the Government that such measures only partially address the
problem of lack of equal access to resources. In the light of the parliamentary and
presidential elections, to be held in October 2012 and in 2013 respectively, greater effort in
this regard is essential to guarantee genuine competitive elections in accordance with
48. In addition, a significant number of allegations were received regarding acts of
harassment and intimidation, as well as of illicit surveillance, of persons believed to be
opposition members or supporters, or those who try to challenge the Government. Since
similar allegations were also registered during the electoral period of 2008, the authorities
are urged to increase efforts to respond to such cases and to take appropriate remedial
15 Following the visit, the Government also informed the Special Rapporteur that, in March
2012, consultations with non-governmental organizations were organized on the drafting of
the guidelines and that the final document was expected to be finalized in June 2012.
16 OSCE Election Observation Mission final report, Warsaw, 4 March 2008, p. 1.
49. The Special Rapporteur believes that restrictions on campaign finance should not
contradict the principle of genuinely free, fair and competitive elections, and that a greater
effort to separate the activities of the State and the ruling party is necessary to guarantee a
level playing field.
B. Undue obstacles for trade unions and their members
50. When establishing the mandate of the Special Rapporteur in its resolution 15/21, the
Human Rights Council specified that the mandate holder should undertake his or her
activities such that the mandate would not include those matters of specific competence of
ILO and its specialized supervisory mechanisms and procedures with respect to employers’
and workers’ rights to freedom of association, with a view to avoiding any duplication.
51. The mandate holder is cautious of the fact that matters relating to workers’ activities
and trade unions fall into the specific area of work of ILO, and he could therefore duplicate
existing efforts.He is, however, mindful that avoiding duplication should not mean
disregarding the matter altogether. To the extent that the rights to freedom of peaceful
assembly and of association provide “individuals with invaluable opportunities to…. form
and join trade unions and cooperatives”,
17 the Special Rapporteur aims to contribute to and
promote the work of ILO in this regard and, where possible, to complement it.
52. The Special Rapporteur recognizes the important contribution of ILO with regard to
labour matters in Georgia. In particular, he has taken into consideration the
recommendations made to the Government of Georgia in 2010 by the ILO Committee of
Experts on the Application of Conventions and Recommendations,
18 in particular with
those concerning the implementation of Conventions Nos. 87 and 98 and the need to
consider revising the Labour Code.
53. International human rights law places significant importance on labour unions. In
particular, article 8 of the International Covenant on Economic, Social and Cultural Rights
recognizes the right of everyone “to form trade unions and join the trade union of his
choice, subject only to the rules of the organization concerned, for the promotion and
protection of his economic and social interests”, and “the right of trade unions to function
54. The Special Rapporteur also notes with interest the establishment of the Tripartite
Social Partnership Commission by decree in November 2009 and a tripartite working group
to assess whether the national labour legislation is in line with the findings of the ILO
Committee of Experts.
20 He notes that a national tripartite structure has been established
with a mandate to address the concerns of social partners in Georgia. 21
1. Right of unions and their members to function freely
55. The Special Rapporteur considers that labour unions operate in a difficult political
environment. He identified an apparent inconsistency between the right to join and form
17 Human Rights Council resolution 15/21, preamble.
18 Report of the Committee of Experts on the Application of Conventions and
Recommendations, Report III (Part 1A), General Report and observations concerning
particular countries, International Labour Conference, 99th Session, 2010, pp. 143-147.
19 Ibid., pp. 144 and 146.
20 Ibid., p. 144.
21 International Labour Conference, 99th session, Record of Proceedings, Geneva 2010, p. 16
trade unions and the right to strike, as enshrined under article 26 and 33 of the Constitution
and the current labour legislation, in particular the Labour Code.
56. A significant number of allegations were received regarding collective dismissals of
public and private sector employees for supporting opposition parties. The mandate holder
acknowledges that numerous allegations of anti-union dismissals were examined by the
ILO Committee on Freedom of Association.
22 In this connection, during the visit a
correlation seemed to emerge with regard to the allegations of collective dismissals and the
existing restrictions on physical and legal persons concerning the financing of political
57. Indeed, recent allegations of anti-union dismissals in the education sector were
received apparently connected to the support of some teachers for the “Georgian Dream”
political alliance. The Special Rapporteur is also concerned by the allegations of
harassment and intimidation of workers belonging to or who have expressed sympathy or
desire to join labour unions.
2. Right to form and join unions for the defence of economic and social interests
58. Current labour laws provide for relatively easy dismissal of workers. The Labour
Code stipulates in article 5(8) that “the employer is not required to substantiate his/her
decision for not recruiting an applicant”. Moreover, articles 37 (d) and 38 (3) stipulate,
respectively, that a labour contract may be terminated for a “derangement”, and that such
termination may be “at the initiative of the employer” as long as “the employee… [is] given
at least one month of pay, unless otherwise envisaged by the contract”.
59. The Special Rapporteur considers that the above-mentioned flexibility in the legal
regime can inhibit the freedom to form, organize and operate trade unions, as employers,
whether private or public, have almost unfettered discretion and could easily find excuses
to fire workers who try to form and operate trade unions, which they may not want. In this
regard, the Special Rapporteur echoes the recommendations of the Committee of Experts
with regard to the Labour Code in the hope that “the necessary measures to revise sections
5 (8), 37(d) and 38 (3) of the Labour Code will soon be taken so as to ensure that the
Labour Code provides for an adequate protection against anti-union discrimination”.
60. The mandate holder views the current situation as a matter of serious concern, in
particular with regard to the support of union members for the political parties that they
might wish to endorse. Trade unions have the right to make political choices for candidates
and parties that can further their interests without running the risk of falling under the
restrictions of the recent amendments against “relations with political parties”. The
effective protection of individuals against unlawful termination of labour contracts in
Georgia requires measures other than justjudicial remedies.
VI. Right to freedom of peaceful assembly
61. The rights to freedom of peaceful assembly and of association are closely
interrelated and mutually reinforcing, given than, in order to organize a peaceful assembly,
some form of organization, either de facto or de jure, is often required. For this reason, the
22 Cases of the ILO Committee on Freedom of Association (2001 – 2011), LibSynd database.
23 Labour Code of Georgia, available from
(unofficial English translation).
24 See report of the Committee of Experts on the Application of Conventions and
Recommendations (see footnote 18), p. 146.
specific international human rights standards that apply in the case of freedom of
association – as well as to other basic freedoms (like those referred to in paragraphs 19 to
21 above) also affect peaceful assemblies.
62. In this regard, it is important to reiterate that restrictions to the above freedoms
should not be derailed by undue obstacles to the enjoyment of essential rights.
paragraph 4 of its resolution 15/21, the Human Rights Council recalled that, in accordance
with the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights, the exercise of the rights to freedom of
peaceful assembly and of association may be subject to certain restrictions. The Special
Rapporteur frames its application with the understanding that their free and unhindered
enjoyment is an essential component for democracy, especially “where individuals may
espouse minority or dissenting religious or political beliefs”.
63. Even though a notification period of five days is required by law in the event that an
assembly blocks transport movement or is held on a road, the mandate holder takes note
that peaceful assemblies are normally conducted in Georgia without prior authorization.
Given the way the current Government was formed, and in view of the elections scheduled
for 2012 and 2013, there is an expectation that the rights of peaceful assembly and of
association will be respected.
64. In late December 2011, as part of the package of reforms, amendments to the Law
on Assembly and Manifestations were passed by Parliament, ending an extended period of
negotiations launched in 2009. The Special Rapporteur notes, however, that, in spite of
some improvements, certainproblematic provisions remaining in the law restrict freedom of
65. The Special Rapporteur validated claims made by representatives of civil society
that restrictions on peaceful assemblies had been applied – or attempts had been made to
apply them – in law and in practice to prevent citizens from expressing their views through
66. At the end of his official visit, the mandate holder assessed the situation in terms of
the enjoyment of the right to peaceful assembly. His assessment was based on two broad
areas: a policy pattern that selectively restricts some peaceful assemblies, and the events of
26 May 2011.
A. Restricting peaceful assemblies
67. There is a consensus among the Government, civil society, academia and the
international presence in Georgia with regard to the manner in which assemblies are
perceived. In November 2007, mass demonstrations were held in front of Parliament. It was
the first time that massive rallies had been held since 2003, when mass peaceful assemblies
led to the ousting of then President Eduard Shevardnadze.
68. While it is not the intention of the Special Rapporteur to establish the facts
surrounding the events prior to and after November 2007, it remains evident that a
restrictive pattern emerged with regard to some peaceful protests that appear to have a real
potential to challenge the authorities. The mandate holder recognizes the country’s fragile
transition to democracy and the security risks that inherently exist in this process. However,
the constant blaming of an “external hostile power” do not validate the fact that citizens
25 See Human Rights Committee general comments Nos. 27, 34 and 31.
26 Human Rights Council resolution 15/21, preamble.
may have specific and particular grievances that they wish to express in this form, which is
often a measure of frustration.
69. The policy pattern of restricting peaceful assemblies was enshrined in 2009 at the
legislative level by means of significant amendments to the Law on Assembly. The changes
to the law seriously limited the exercise of the right to freedom of peaceful assembly.
However, in a spirit of cooperation, the Government of Georgia engaged in a number of
revisions to the 2009 version of the law with the Venice Commission.
70. The predisposition to improve the legislation in accordance with international
standards must be recognized. In particular, in March 2010 the Government of Georgia,
based on preliminary comments by two members of the Venice Commission,
some of the 2009 amendments to the law, which were then subject to an interim opinion by
the Venice Commission the same month.
29 Meanwhile, in September 2010, a complaint was
lodged to the Constitutional Court on some provisions within the law. In April 2011, the
Court found unconstitutional several provisions within the 2009 Law on Assembly and the
Code on Administrative Offences.
30 In July 2011, the Government of Georgia reviewed the
amendments to the Law on Assembly based on the opinions of the Venice Commission and
the Constitutional Court ruling. Thereafter, the Government requested a new opinion by the
Venice Commission, which was made public in October 2011.
71. The mandate holder would like to join the Venice Commission in welcoming the
positive changes introduced in the July 2011 version,
31 introducing, for instance, the
principles of proportionality, legality and democratic society in the law; for adding the
principle of “clear, direct and present danger” for violence before prohibiting assemblies;
for repealing some blanket restrictions on peaceful assemblies; and for the new protection
safeguards for journalists. In any event, the Special Rapporteur was informed that the
December 2011 version of the law coincided with the later version sent to the Venice
Commission in July 2011.He would therefore like to reiterate the concerns already
expressed by the Venice Commission and the Public Defender of Georgia with regard to
some of the provisions of the law.
72. Most notably, article 2.1 of the Law on Assembly (July 2011) prohibits employees
of the armed forces, armed law enforcement bodies, paramilitary and special facilities from
27 See for instance the report of the Public Defender of Georgia on the situation of human
rights and freedoms in Georgia, Freedom of Assembly and Manifestations, 2009, second
half, p. 136-142. Available from
28 See comments on the Law on Assembly and Manifestations by Venice Commission
members Bogdan Aurescu (CDL(2009)153)
Finola Flanagan (CDL(2009)152) (www.venice.coe.int/docs/2009/CDL(2009)152-e.pdf).
29 See the interim opion of the Venice Commission on the Draft Amendments to the Law on
Assembly and Manifestions (CDL-AD(2010)009), 12-13 March 2010. Available from
30 Annual report of the Public Defender of Georgia on the situation of human rights and
freedoms in Georgia, Freedom of Assembly and Manifestations, 2011, p. 3 (advance
31 See the final opinion of the Venice Commission on the amendments to the Law on
Assembly and Manifestations of Georgia (CDL-AD(2011)029), 14-15 October 2011,
available from www.venice.coe.int/docs/2011/CDL-AD(2011)029-e.pdf; and its opinion No.
547 / 2009 on the Law on Amendments and Supplements to the Law on Assembly and
Manifestations of Georgia, 1 July 2011, available from www.venice.coe.int/docs/2011/CDL-
32 See final opinion of the Venice Commission (see footnote 31) and the annual report of the
Public Defender, 2011 (see footnote 30).
exercising the right to peaceful assembly without distinguishing whether the assembly is
connected to their official responsibilities and without separating periods of non-official
duty. Article 5.3 restricts “citizens of other countries” and those below 18 years of age from
organizing peaceful assemblies. The Special Rapporteur is concerned that this provision
does not contemplate the right of migrants and minors with regard to peaceful assembly.
73. Moreover, article 8 of the Law on Assembly requires the organizer to notify the
assembly “at least five days prior to a scheduled date of the event”, therefore restricting the
possibility for holding spontaneous assemblies. The Special Rapporteur welcomes,
however, the fact that the Government has lifted the ban on assemblies within a 20-metre
perimeter from the entrance of some buildings, such as the Parliament, the presidential
administration buildings and courts. He considers, however, that article 9 of the law
maintains an excessive restriction and a blanket ban on any assembly within 20 metres of
the entrance to some other buildings (such as the Prosecutor’s Office, temporary detention
facilities or all police stations); prohibits blocking railways, highways or entrances of
buildings without clarifying what constitutes such an “entrance”; and entitles administrative
bodies and courts to impose “restrictions” within the 20-metre perimeter without clarifying
74. Of further concern, despite theimprovements, which must be recognized, is article
11.2 (e), which prohibits participants from “deliberately hindering the transport
movement”, and article 11
1, which bans the blocking of transport movement “unless
necessary owing to the large number of people”. The Special Rapporteur considers this
restriction still excessive, considering that peaceful assemblies continuously block traffic as
part of the protest and that this should only be restricted if such a blockage is prolonged
unreasonably. In this regard, article 11
2 contains a restriction on any peaceful assembly that
affects the normal functioning of those who “live, work, shop, trade and carry on business”
as “these persons shall not be interrupted in carrying out their activities”. The Special
Rapporteur appreciates that reasonable alternatives can be offered and that such “normal
functioning” can be interrupted if it is “for a short period of time”; however, further
clarification on what actually constitutes a “short period of time” is clearly required. Lastly,
the mandate holder appreciates that the previous obligation to end assemblies
“immediately” in the event of “mass violation” has been substituted, in article 13, by a rule
whereby organizers have 15 minutes to appeal for the break-up of the assembly. In fact, a
longer period should be contemplated to expect “a reasonable effort” from the organizer to
disperse assemblies, especially in view of preventing law enforcement officials from
resorting to the use of force.
B. The events of 26 May 2011
75. The Special Rapporteur held extensive discussions on the events of 26 May 2011
with representatives of the Government, civil society and the international community. He
regrets to report that there were stark differences in the narratives of what actually
happened on that night.
76. The events were the subject of a joint urgent appeal sent by the Working Group on
Enforced or Involuntary Disappearances, the Special Rapporteur on freedom of opinion and
expression, the Special Rapporteur on the independence of judges and lawyers and the
33 See OSCE/Venice Commission Guidelines on Freedom of Peaceful Assembly, second
edition, para. 168. Available from www.venice.coe.int/docs/2010/CDL-AD(2010)020-e.pdf.
Special Rapporteur on the rights to freedom of peaceful assembly and of association. 34 A
response from the Government was received on 7 July 2011.
77. In the aftermath of a peaceful demonstration, held at Rustaveli Avenue on 25 May
2011, to demand the resignation of the President, another protest was held in front of
Parliament. It is alleged that some protesters called for the disruption of the Independence
Day celebrations that were expected to take place the following day, on 26 May 2011. After
midnight, events quickly deteriorated into a serious episode of violence, leading to the
death of four people, including one police officer. A significant number of protesters and
police officers were injured, and approximately 160 people were detained.
78. The Special Rapporteur does not intend to establish the facts regarding these events.
He understands that the Ministry of Internal Affairs considers that violence was sporadic,
and also notes the assessment of several senior Government officials that the police
response was by and large proportionate to the threat perceived. He also notes the
justification of the Ministry, in particular that police barricades were being removed; there
was a general failure in police communications; disproportionate force was due to a lack of
proper training; and that the early movement of police units to the north from Freedom
Square interspersed the assembly to other areas. Other accounts suggest, however, that the
reaction of the Government was intentionally disproportional. Indeed, while the Minstry of
Internal Affairs attributed this to a lack of training, there are credible allegations that there
were repeated beatings after the protest was dispersed and that protesters were chased by
the police and thoroughly beaten up. It was in fact alleged that the police tactics employed
to disperse the assembly on the night of 26 May were similar to those employed in
November 2007,when protesters were also enclosed inside a perimeter and their exit
obstructed. This has raised the suspicion of many stakeholders that the intention was not so
much to disperse protesters as to punish and spread fear.
79. The Special Rapporteur takes note of the efforts made by the Minstry of Internal
Affairs to take remedial action and correct its mistakes in managing assemblies, in
particular its treatment of protesters and journalists. He acknowledges that, according to the
Ministry, the number of punishments for police misconduct increased considerably between
2009 and 2011, and that an inquiry was launched inside the Ministry on police misconduct
following the events of 26 May, resulting in disciplinary measures. Furthermore, he
welcomes the Ministry’s previous engagement with the OSCE Strategic Police Matters Unit
on police-related assistance and advice. In this connection, the Special Rapporteur warmly
welcomes the predisposition of the Ministry to seriously consider implementing the
OSCE/Venice Commission Guidelines on Freedom of Peaceful Assembly.
80. Another issue of serious concern connected to events of 26 May 2011 is the
deliberate recourse to administrative detention of up to 90 days for protesters and activists,
without adequate procedural safeguards. The Special Rapporteur fully aligns himself with
the concerns raised by the Working Group on Arbitrary Detention after its official visit to
35 He is alarmed by the frequency of the use of this form of detention for
dealing with protesters. With regard to the protests of 26 May 2011, the mandate holder
was informed that this form of detention was used for most, if not all, cases of detention.
He was also informed about ongoing plans to extend the period of police custody from 12
to 24 hours in the revised Code of Administrative Offences, which indicates that the
authorities may intend to make the legislation even more restrictive. In this regard, the
mandate holder received credible allegations pointing to a serious lack of judicial
guarantees. He confirmed that police testimonies are given more weight than any other
testimony, that judges have a tendency to disregard clear evidence presented on behalf of
34 A/HRC/19/44, p. 19.
35 A/HRC/19/57/Add. 2, paras. 63-68.
the defendant, including photographs and video footage, and that courts frequently rely
solely on police testimonies for sentencing. Under these conditions, the same police
detaining a protester or an activist are the ones whose testimony is given preference before
a court proceeding. This suggests that there is a generalized presumption of guilt against
activists and protesters, as opposed to the general presumption of innocence recognized
under international human rights law.
81. Considering the increasing number of allegations of acts of violence and ill-
treatment by law enforcement officials against protesters, these measures deter activists on
the ground willing to express dissent through peaceful assembly. Indeed, the mandate
holder considers that such measures against protesters appear to violate article 2.1 of the
Convention against Torture and other Cruel, Inhuman or Degrading Treatment or
Punishment, according to which each State party is to take effective legislative,
administrative, judicial or other measures to prevent acts of torture in any territory under its
jurisdiction. In its general comment No. 2, the Committee against Torture declared that
“States parties are obligated to eliminate any legal or other obstacles that impede the
eradication of torture and ill-treatment, and to take positive effective measures to ensure
that such conduct and any recurrences thereof are effectively prevented”.
36 In addition,
these measures also appear to contravene article 9.1 of the International Covenant on Civil
and Political Rights insofar as “no one shall be subjected to arbitrary arrest and detention”,
and the right to a fair trial, as enshrined in article 14 of the same Covenant.
82. The events of 26 May 2011 require a new, independent and transparent
investigation. To be credible, it should involve all stakeholders, – including opposition
leaders, civil society representatives, the Government and representatives from the
international presence – to ensure that all views and perspectives are taken into account and
that there is accountability for the clear excessive use of force. In absence of that, the
perception of impunity and dissatisfaction towards the Government will prevail.
83. The Special Rapporteur views very positively the ambitious and action-oriented
reform programme implemented since the Rose Revolution. The programme quickly
resulted in improvements in many aspects of public life, in particularly by
significantly improving personal security of the population and reducing the crime
rate. The Special Rapporteur encourages the Government to continue along this path
and to intensify its efforts to ensure effective promotion and protection of the rights to
freedom of peaceful assembly and of association.
84. In this context, the Special Rapporteur is deeply concerned that the Law on
Political Unions of Citizens could be used as an excuse to target persons in Georgia for
political reasons through the Chamber of Control. Given that article 26
1, as amended
in December 2011, violates basic rights and freedoms guaranteed in international
human rights instruments, urgent measures are required to prevent such violations
from occurring. The Special Rapporteur commends the fact that, subsequent to his
visit, new amendments were adopted in May 2012 to modify some of the said
provisions. Owing to reporting requirements, however, the mandate holder has not
been able to verify nor consult on the amendments with other relevant stakeholders.
85. The Special Rapporteur is very concerned at the lack of a conducive
environment in Georgia allowing political parties to operate as equals. Stark
differences with regard to resource allocation were observed in law and in practice,
36 CAT/C/GC/2, para. 4.
leading the mandate holder to conclude that the right to freedom of association for
political parties is being consistently violated. Unless remedial action is taken, citizens
in Georgia will not be able to effectively elect leaders to represent their interests and
to hold them accountable.
86. Under international law, trade unions and their members have a right to
support any political party of their choice. The significant number of allegations
received of collective dismissals for having supported political parties requires urgent
attention by the Government and ILO.
87. The Special Rapporteur is encouraged by the Government’s predisposition to
cooperate with the Council of Euroe with regard to the Law on Assembly and
Manifestations. Nonetheless, serious shortcomings continue to exist after the Venice
Commission published its final opinion on the matter. Action is therefore needed to
ensure that the right to freedom of peaceful assembly is adequately respected and that
any restrictions are exceptional and within what is permissible under international
88. Serious disagreements regarding the events of 26 May 2011 between protesters
and the police reveal an urgent need to establish the facts. After extensive interviews
and consideration of significant documentation on the matter, the Special Rapporteur
is of the view that the Government may have had the intention to use force against
opposition leaders and protesters.
89. The Special Rapporteur is concerned that the above-mentioned issues could
favour a climate of fear and of intimidation of activists, human rights defenders and
members of trade unions and opposition political parties. Moreover, laws specifically
aiming to control the activities of one specific person have resulted in a climate of
uncertainty and cannot be justified for every Georgian citizen.
90. With regard to the right to freedom of association, the Special Rapporteur
recommends that the Government of Georgia:
(a) Seriously consider repealing paragraphs 1 and 2 of article 26
1 of the Law
on Political Unions of Citizens of December 2011. Physical and legal persons should be
granted the right to participate in the conduct of public affairs, as well as the right to
freedom of opinion and expression without undue restrictions. The Government
should also ensure that alternative measures are sought and applied to prevent illicit
political party financing;
(b) Seriously consider reviewing the prerogatives of the Chamber of
Control, in particular of the new unit responsible for monitoring financing related to
political parties, in particular, with regard to the need to substantiate its decisions and
the obligation to obtain a judicial instruction before taking any action in the event of
reasonable doubt when an illicit activity is suspected, and to ensure that it is
transparent, independent and accountable, and seen to be so in law and fact;
(c) Ensure that civil society is systematically consulted before any legislative
initiative is adopted. Civil society participation could, for instance, be institutionalized
rather than made available on an ad hoc basis;
(d) Increase efforts to ensure that all political parties, including opposition
parties, have genuine, equitable and adequate access to State resources for election
campaigning. It is especially crucial that the line between the ruling party and the
State be clearly defined in order to create a level playing field;
(e) Increase efforts to implement the recommendations of the Venice
Commission and OSCE of December 2011 on the draft Election Code;
(f) Increase efforts to ensure full implementation of the recommendations
laid out in the reports of the ILO Committee of Experts on the Application of
Conventions and Recommendations;
(g) In the above connection, seriously consider signing and ratifying the
Additional Protocol to the European Social Charter of the Council of Europe
Providing for a System of Collective Complaints.
91. With regard to peaceful assembly, the Special Rapporteur recommends that
the Government of Georgia:
(a) Seriously consider amending those provisions in the Law on Assembly
and Manifestations that unduly violate the right to freedom of peaceful assembly, in
particular, the above-mentioned provisions in articles 2, 5, 8, 9, 11, 11
1, 11 2 and 13;
(b) Ensure full implementation of the recommendations made by the Public
Defender and the Venice Commission on the Law on Assembly and Manifestations;
(c) In national legislation, increase efforts to ensure a general presumption
in favour of holding assemblies; the OSCE/Venice Commission Guidelines on
Freedom of Peaceful Assembly may serve as a useful tool in such efforts;
(d) Continue efforts to avoid the use of force to disperse lawful and peaceful
assemblies; in the case of peaceful but unlawful assemblies, ensure that force is only
employed as a last resort; and that alternative measures are consistently sought to
disperse assemblies, in compliance with the Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials and the Code of Conduct for Law
(e) Seriously consider establishing an independent commission to
thoroughly investigate the events of 26 May 2011, in an inclusive, transparent and
participatory manner, and with the involvement of all stakeholders, including
opposition political parties, non-governmental organizations, trade unions, activists,
human rights defenders and members of civil society;
(f) Ensure full implementation of the recommendations made by the
Working Group on Arbitrary Detention in its report,
37 in particular those contained
in paragraph 98, subparagraphs (b) to (e) and (h) to (q);
(g) In accordance with the recommendation made by the Working Group on
Arbitrary Detention and contained in paragraph 98 (l) of the above-mentioned
37 ensure the principle of equality of arms, right to defence and the
presumption of innocence of all citizens, including protesters, and discontinue the
practice of relying primarily on the testimony of the police when adjudicating cases;
(h) Ensure full implementation of article 2.1 of the Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
92. The Special Rapporteur recommends that civil society actively engage in the
monitoring of assemblies, cases where activists and protesters are brought before
courts, and cases where persons are brought before the Chamber of Control.
37 A/HRC/19/57/Add. 2.
93. The Special Rapporteur recommends that the resources available for the
OHCHR presence in the South Caucasus be increased to allow it to conduct activities
related to the rights to freedom of peaceful assembly and of association.
94. The Special Rapporteur recommends that the representatives of the
international presence in Georgia continue to support the work of civil society
95. Lastly, the Special Rapporteur recommends that the Public Defender and his
office continue its important and remarkable efforts in the promotion and protection
of the rights to freedom of peaceful assembly and of association.