Summary
Georgia's Public Defender is independent both in law and in practice. The Public Defender reports to parliament and operates in a transparent manner. The Public Defender has adequate powers and generally applies these effectively in practice. At the same time, the Public Defender's Office has to rely on foreign donor aid to compensate for insufficient state funding, which can affect some aspects of the Public Defender's work.
The table below presents the indicator scores which summarize the assessment of the Public Defender's office in terms of its capacity, its internal governance and its role within the Georgian integrity system.The remainder of this section presents the qualitative assessment for each indicator.
Structure and Organisation
Under the Constitution, the Public Defender is elected by parliament on the basis of nominations from MPs. He is authorised to investigate violations of human rights and inform the relevant bodies/officials about the findings.The powers and responsibilities of the Public Defender are detailed in the Organic Law on the Public Defender.According to the Law, the Public Defender oversees the respect of human rights and freedoms by the central and local government bodies, public agencies and officials.The Public Defender's Office is established in order to facilitate the Public Defender's work.
Assessment
Score: 50
To what extent does the public defender have adequate resources to achieve its goals in practice?
The Public Defender's Office receives state funding without any delays and the quality of staff has improved in recent years. At the same time, the size of state funding is inadequate and the Office relies on foreign aid to properly fulfil its responsibilities.
State funding has remained relatively stable in recent years. The Office received GEL 1.9 million (USD 1.1 million) in 2009, GEL 2.2 million (USD 1.3 million) in 2010, and GEL 2.1 million (USD 1.2 million) in 2011.Given the sweeping budget cuts in 2011 across most government agencies, the 2011 allocation is a positive indication of the government's commitment to the institution. However, according to the Public Defender, while the money allocated in the State Budget is always transferred in a timely manner, the overall size of funding is not sufficient to cover the all operational expenses of the office. The Public Defender thus relies on foreign donor support for approximately 30 percent of the operational expenses. The Office recently used donor aid to move into a new building, to purchase office equipment and transport and to train its employees.
The Public Defender also told TI Georgia that the overall quality of human resources is good. He noted that the recent growth of salaries made it possible to attract qualified professionals, resulting in a notable improvement in the quality of reports produced by the office. However, the Public Defender suggested that the office could find it difficult to retain the current employees in the future unless the funding grows.
According to an expert interviewee, the current number of staff is not always adequate for handling the large number of cases submitted to the Public Defender. The expert noted that the state should increase the funding apportioned to the Public Defender's Office, given the complexity and importance of its tasks and responsibilities.
Score: 75
To what extent is the public defender independent by law?
The legal provisions designed to ensure the Public Defender's independence are mostly strong, although the law does not fully guarantee the Public Defender's financial independence.
The status of Georgia's public defender is anchored in the Constitution, which emphasises that obstruction of the Public Defender's work is a punishable offence. In addition, the Law on the Public Defender prohibits any kind of pressure on the Public Defender or interference with its work. Information regarding any kind of obstruction of the Public Defender's activities must be included in the Public Defender's annual report and discussed in parliament.
The Public Defender enjoys immunity under the law and cannot be arrested or charged with a crime without parliament's consent. The Public Defender must be provided with the necessary conditions for an unhindered discharge of its duties and the state must provide protection for the Public Defender's family if requested. Importantly, the Public Defender's work cannot be suspended or restricted during the state of emergency or the state of war.
The Public Defender is elected by parliament for a period of five years and may serve for no more than two consecutive terms. A candidate for the Public Defender's position can be nominated by the president, a parliamentary faction or a group of at least six MPs who are affiliated with any faction. The law's list of legitimate reasons for early dismissal of the Public Defender is short, specific and reasonable. Dismissal is only possible through a parliamentary decision (through a simple majority vote). In order to ensure the Public Defender's impartiality, the law prohibits the Public Defender from engaging in commercial or political activities and from holding another public office.
The Public Defender has the power to determine the structure and the operational rules of his/her staff.As a further independence safeguard, the budget allocations for the salaries of the Public Defender's Office cannot be reduced (compared to the preceding year's allocations) unless thePublic Defender consents to the reduction.However, the Public Defender described the latter provision as inadequate in an interview with TI Georgia, noting that it should apply to the entire budget, rather than just the salary fund.
Independence (practice)
Score: 75
To what extent is the public defender independent in practice?
The Public Defender's Office generally operates without undue interference and influence from the authorities.
According to an expert interviewee, the current Public Defender has been independent in his activities and has worked in a professional and non-partisan manner. The expert could not recall any instances of political interference with the Public Defender's activities and noted that the ruling National Movement party's dominance in parliament (which appoints the Public Defender) has had no bearing on his work so far.
None of Georgia's previous Public Defenders were removed from the position before the end of their term, although none of them were reappointed either. There have been no instances of a Public Defender engaging in the kind of activities that are restricted by the law and that could undermine his/her independence.
On the negative side, individuals are not always able to file complaints with the Public Defender without fear of retaliation. The expert interviewee noted, for example, that inmates of Georgian prisons often refrain from discussing alleged cases of mistreatment with the Public Defender's representatives out of fear of recrimination. She noted, however, that the blame for this lies with the prison authorities, not the Public Defender.
Score: 75
To what extent are there provisions in place to ensure that the public can obtain relevant information on the activities and decision-making processes of the public defender?
Information regarding the Public Defender's activities is open under the law, although there are no provisions that would require the Office to release different types of information proactively in between the annual reports.
Information regarding the Public Defender's activities (including the findings and recommendations of investigations) is public and must be included in the Public Defender's annual report to parliament, which the legislature is required to publish in its official newspaper.The report must include a list of state bodies and officials that have violated human rights and ignored the Public Defender's recommendations.In addition, the Public Defender must notify complainants about the results of the inquiries carried out in response to their appeals.
The Public Defender is required to file a detailed asset declaration in the same manner as other high-level officials do. The declaration is a public document.
On the negative side, there is no legal obligation for the Public Defender to proactively publicize these types of information more frequently. The law authorises (but does not require) the Public Defender to inform the public about the results the conducted inquiries through the media.Also, there are no legal provisions regarding the involvement of the public in the Public Defender's activities (for example, through public consultations or the establishment of public councils and advisory committees).
Transparency (practice)
Score: 75
To what extent is there transparency in the activities and decision-making processes of the public defender in practice?
The Public Defender's Office generally operates in a transparent manner and the relevant information is available to interested individuals and organizations, although its record in responding to Freedom of Information requests and its ability to communicate via annual reports could be improved.
Detailed information regarding the activities of the Public Defender's Office (including the violations recorded and the recommendations made by the Office) is provided in the Public Defender's annual report to parliament. The report is a public document and can be accessed through the Public Defender's official website.The report is informative but does not present statistics concerning the Public Defender's activities in a coherent manner.
The Public Defender's website contains an up-to-date news section (detailing the Office's ongoing activities), as well as the Public Defender's multiple public statements and special reports. The Public Defender's asset declaration is available online through a dedicated website where the asset declarations of all public officials are posted.
According to an expert interviewee from a human rights NGO, the Public Defender always provides requested information in a timely manner and the organization has never encountered transparency-related problems in its dealings with the Office.At the same time, the Public Defender's Office only responded positively to two of the four requests for public information submitted as part of the NIS field tests. In the two cases where no information was provided, lists of cases forwarded by the Public Defender's Office to the Prosecutor's Office and of the recommendations sent by the Public Defender's Office to various government bodies had been requested. The Public Defender's Office cited the lack of relevant databases as the reason for the refusal, noting that it could only provide information about specific cases.
The Public Defender told TI Georgia that the Office collaborates actively with a number of NGOs and has signed memorandums of cooperation with several organizations. He noted that the Office implements joint projects with some NGOs based in the capital and also tries to identify organizations are active in different parts of the country, in order to build partnerships with them.TI Georgia's expert interviewee confirmed this, noting that her NGO has been specifically asked by the Public Defender to collaborate with his Office on appeals submitted to the Constitutional Court.
Score: 75
To what extent are there provisions in place to ensure that the public defender has to report and be answerable for its actions?
The legal provisions regarding the Public Defender's accountability are strong. One gap, however, is that the regulations only require the Public Defender to produce reports on its activities on an annual basis.
The Public Defender is accountable to parliament and is required to submit annual reports to the legislature, describing the general situation in the country in terms of the protection of human rights. The report must also list the government bodies and officials that have violated human rights and have ignored the Public Defender's recommendations. The Public Defender must provide its general opinion, findings and recommendations regarding the situation in the field of human rights. The annual report is a public document and responsibility for releasing it lies with parliament.
According to TI Georgia's expert interviewee, annual reporting may not be adequate and it would be better to require the Public Defender to report more frequently if the resources of the Office permitted this.
However, beyond this annual reporting, accountability provisions are limited. As noted in the section on transparency, the law authorises (but does not require) the Public Defender to inform the media about the results of investigations.
The activities of the Public Defender and the Public Defender's Office are subject to judicial review in the same manner as those of other public bodies and officials. Since the Public Defender's office is part of the public service, the general accountability mechanisms discussed in the chapter on Public Administration (including whistle-blowing provisions), which are quite robust, also apply to the employees of the Public Defender's Office.
Accountability (practice)
Score: 75
To what extent does the ombudsman have to report and be answerable for its actions in practice?
The Public Defender reports to the legislature annually as required by law, although the quality of reporting could be improved.
The Public Defender submits annual reports to parliament as required by the law and the reports provide a detailed account of the Office's activities throughout the year. The reports are discussed at parliamentary sessions and are also posted to the Public Defender's website.As mentioned in the transparency section, the report is informative but does not present statistics concerning the Public Defender's activities in a coherent manner.
Judicial review mechanisms (such as lawsuits) have not been applied to the Public Defender's activities in recent years, nor have there been any cases of whistle-blowing in the office. It is therefore impossible to assess the effectiveness of the relevant legal provisions in practice at this point.
Score: 75
To what extent are there provisions in place to ensure the integrity of the public defender?
While there is no dedicated code of conduct for the Public Defender and the employees of the Public Defender's Office, the various integrity rules provided in different laws are adequate.
As noted in the section on independence, the Public Defender is prohibited from joining political parties and engaging in political activitiesand is required to file annual asset declarations along with other high-level state officials.The Public Defender has a legal obligation to follow the general conflict of interest rules for public officials (including restrictions on gifts) discussed in the chapters on the Public Administration, the Executive Branch and the Legislature. The Rules of Conduct for public servants discussed in the Public Administration chapter apply to the employees of the Public Defender's Office.
The law requires the Public Defender to refrain from disclosing confidential information received from alleged victims of torture and inhumane or degrading treatment unless they specifically consent to its release.However, there seems to be no similar requirement for other types of complaints - a gap in the legislation.
Integrity Mechanisms (practice)
Score: not able to score
To what extent is the integrity of the ombudsman ensured in practice?
According to the Public Defender, the Office has a human resources section and a dedicated officer in charge of conducting performance reviews, assessing compliance with the relevant rules and organizing trainings. No cases of gross misconduct have been recorded in recent years but several employees received a warning for the violation of the Office's internal rules.
TI Georgia was unable to independently verify this information and has therefore decided not to score this indicator.
Score: 50
To what extent is the ombudsman active and effective in dealing with complaints from the public?
The legal framework contains robust provisions regarding the Public Defender's investigatory powers and the Public Defender has generally been effective in this respect. At the same time, some government agencies have failed to assist the Public Defender's inquiries as required by the law.
The Public Defender has broad legal powers in terms of investigation of alleged violations of human rights. Under the law, the Public Defender is responsible for uncovering violations of human rights and freedoms and also serves as the National Preventive Mechanism of the UN Convention Against Torture. The Public Defender independently monitors the situation in the country in terms of the protection of human rights and can launch inquiries into alleged violations both proactively and in response to complaints. The Public Defender is required to consider complaints and appeals of individuals, legal entities and political and religious groups concerning the actions of government bodies and officials. The appeals sent to the Public Defender by individuals held in prisons and other detention facilities are confidential and cannot be opened or censored prior to their delivery to the Public Defender. The Public Defender is required to notify any complainant about the results of the inquiry.
During the inquiries, the Public Defender is entitled to unhindered access to all government and public institutions, including prisons and military units and it can require any official to provide a written explanation regarding the matter in question. All government/public bodies and officials must provide the Public Defender with requested documents and materials immediately or within a maximum of 10 days.If suspicions of a crime arise, the Public Defender can request that the law enforcement bodies launch criminal proceedings. Otherwise, the Public Defender can recommend that the agencies in question apply disciplinary sanctions against the violators. In special cases, the Public Defender can recommend the establishment of an ad hoc investigatory commission in parliament to handle the alleged violation of human rights. However, in recent years, parliament has ignored the Ombudsman's recommendation to set up such commissions over alleged human rights violations committed by executive branch bodies/officials.The Public Defender can also address the president if the means at its disposal are inadequate for dealing with the case in question.
According to an expert interviewee, the procedure for filing complaints with the Public Defender is simple both in law and in practice and individuals rarely face problems in this respect.In addition to the central office located in the capital, the Public Defender has six regional centres that help facilitate public outreach.
The Public Defender has conducted proactive investigations on multiple occasions. The most recent high-profile examples of such activity include the Public Defender's inquiries into the police dispersal of a protest in central Tbilisi and the eviction of internally displaced persons from disputed buildings. The Public Defender's findings regarding these cases were posted on the website and, in the former case, a police officer was dismissed following the Public Defender's recommendation.In addition, according to TI Georgia's expert interviewee, the Public Defender's Office, acting in its capacity as the National Preventive Mechanism of the UN Convention Against Torture, has identified violations in prisons, submitted relevant recommendations and highlighted these cases in its reports.In the last six months of 2009 alone, the Public Defender's representatives carried out a total of 146 visits to prisons.
In 2009 the Public Defender appealed to the Constitutional Court on five occasions, challenging the compliance of different legal acts with the Constitution.
At the same time, according to the Public Defender, while the general experience of the Office's interaction with different government institutions has been positive, there are still cases when government agencies do not submit the information requested by the Office in a timely manner. Government agencies do not always provide comprehensive and substantiated answers to the Public Defender's proposals and recommendations concerning recorded violations.In his last report to parliament, the Public Defender criticised the Ministry of Internal Affairs, the Chief of the Prosecutor's Office and the Ministry of Refugees and Accommodation for their failure to assist the Public Defender's investigations on a number of occasions.According to the expert interviewee, the effectiveness of the Public Defender's investigations is undermined by the unwillingness of some government bodies to act upon his recommendations.
Score: 50
To what extent is the ombudsman active and effective in raising awareness within government and the public about standards of ethical behaviour?
The Public Defender has sufficient legal powers to promote good practice but these powers are not always exercised effectively because of a lack of resources.
Under the law, the Public Defender's jurisdiction extends to all government bodies and officials (both central and local) and public institutions operating on Georgian territory.The Public Defender has a number of legal powers and obligations concerning promotion of good practice. For example, the Public Defender can submit recommendations and proposals regarding the legislation in the field of human rights to parliament. As noted in the previous section, the Public Defender can submit proposals to state bodies regarding disciplinary or administrative action against persons who have violated human rights and freedoms.States bodies and officials that receive recommendations or proposals from the Public Defender are required to discuss them and notify the Public Defender about the results of the discussion within 20 days.The Public Defender's legal responsibilities include educational activities in the field of human rights and freedoms.
In practice, the Public Defender promotes good practice primarily through recommendations. Its annual report includes a list of proposals to resolve the existing problems and improvement practice in the performance of different government agencies.In between the annual reports, the Public Defender communicates with different government institutions regularly and provides them advice and information. However, according to the Public Defender, the plans for broader campaigns, such as training for public officials, have been undermined by the lack of resources.
Footnotes
