NGOs appeal to government regarding the draft law on Elimination of All Forms of Discrimination - საერთაშორისო გამჭვირვალობა - საქართველო

NGOs appeal to government regarding the draft law on Elimination of All Forms of Discrimination

02 May, 2014

We, the signatory organizations to this appeal, recognize the importance of adoption of the anti-discrimination legislation aimed at embedding high standards of human rights and democracy in Georgia. We appreciate the Georgian Government's efforts in this respect. At the same time, we would like to note that the adoption of the anti-discrimination draft law is something that is outlined in the Visa Liberalization Action Plan and constitutes a requirement set by the EU for abolishing short-term visas for Georgian citizens. However, we think it essential that the law incorporate a number of amendments in order to make it more efficient and ensure equal and effective enjoyment of the rights granted by the Georgian legislation to individual citizens regardless of their race, skin color, language, sex, age, nationality, origin, birth, place of residence, property or social status, religion or opinion, national, ethnic or social origin, profession, marital status, health status, disability, sexual orientation, gender identity and expression, political or other opinion or other status.

The presence of legal mechanisms in the form of fines imposed through court decisions on the public institutions and private individuals exercising discrimination is of particular importance. Without them it will be impossible to successfully counter discrimination and bring essential changes to the existing unequal atmosphere in which discriminated groups find themselves. The need to enact the above changes in the law has also been highlighted by the Public Defender and the Human Rights and Civil Integration Committee of the Georgian Parliament.

Incorporating effective mechanisms to combat discrimination is a joint requirement put forward by major institutions and actors engaged in human rights protection, including religious associations and community organizations. Subsequently, disregard of the above by the government and parliament will undermine the public trust in the government's readiness to fight against discrimination.

We consider the main arguments of the government representatives regarding the purposelessness of applying financial sanctions unfounded, as:

  • Despite the availability of institutions to protect equality, and even though their competences conform with different European models, the international standard of human rights, nevertheless, requires the presence of effective domestic remedies. This will enable the victims of discrimination to actually restore their infringed rights. Legal remedies should conjointly include repressive and preventive measures as well as restitution (civic) mechanisms. Under the current legislative reality, the major repressive mechanism in fighting discrimination is the Criminal Code. However, since infringement of a right on the grounds of discrimination often does not amount to sufficient intensity of violence or deprivation of the right, not all possible forms of discrimination constitute a crime. As a result, the majority of the instances of discrimination remain unaddressed by legal sanctions. Due to the lack of appropriate legal mechanisms, it is important to consider the possibility, under the Criminal Code, to adequately react on discrimination cases with low sanctions in order to eliminate their occurrence;
  • Reparation of damages/compensation within the civil code cannot be considered an alternative to fining since the nature and purpose of these two mechanisms differ. Compensation enables individuals to restore their infringed rights, whereas imposing a fine pursues preventive purposes against offenders and other persons. Taking account of the existing legal regulations and court practices, the possibility to receive a compensation would render it all the more improbable to counter the mechanism of fining, because reparation for moral damages under the current civil code is clearly not an efficient mechanism of legal protection; 
  • Having courts impose fines on persons exercising discrimination, which will be carried out based on the infringement notice drawn by the Public Defender, will not pose any danger to the legitimacy of the public defender and will not contravene the constitutional nature of the latter, because: 

1. The penalty of fine is applies by the Public Defender as an extreme measure of response, after the possibility to apply mediation and recommendation resources within a reasonable time has been exhausted. Under these circumstances, persons exercising discrimination will have an opportunity to properly comprehend the legal requirement concerning the ban on discrimination and carry out individual and general measures aimed at its elimination, during which the public defender will have a supporting role;

2. The current Administrative Code already allows the Public Defender, in the event of the non-fulfillment of the Public Defender’s legal requirements, to appeal to court against the infringement;

3. Persons responsible for alleged discriminations will have the opportunity to defend their rights and interests in court at a fair trial;

  • Effectively planned public communications policy with regard to the implementation of the law, its requirements, and the scale in addition to fining imposed by the Public Defender as an extreme measure will insure against the problem stemming from the lack of knowledge in non-discrimination requirements and standards on the part of public officials as well as private individuals.

Considering the above, the undersigned organizations once again call upon the Georgian Government and Parliament to heed to the requests voiced by the Public defender, Civil Society and religious organizations for setting up appropriate mechanisms to counter discrimination and prove the readiness to build an equal and unanimous atmosphere in the country. 

Conclusions drawn up individually by the signatory organizations concerning other shortcomings of the draft law will be submitted to the Government and Parliament additionally.