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Public Defender of Georgia Echoes Revised Text of Constitution Drafted by State Constitutional Commission

22.04.2017

 
The Public Defender of Georgia is echoing the revised text of the constitution of Georgia, drafted by the working groups of the State Constitutional Commission. The Public Defender praises the fact that the Constitution will provide for the provisions aimed at ensuring internet freedom and gender equality, which was the recommendation of the Public Defender. However, he regrets that he Commission did not take into account several important recommendations of the Public Defender.

In particular, the draft document does not provide for: creation of state supervisory body for ensuring effective implementation of labour rights; creation of an independent investigative mechanism for ensuring effective investigation and prevention of torture and inhuman treatment committed by the law enforcement agencies. The document does not consider appropriateness of the expansion of the authority of the Constitutional Court, which implies implementation of constitutional control in terms of examination of constitutionality of individual legal acts and the decisions of common courts. It should be noted that, according to the initiative, in exceptional cases, it is allowed to appeal against the decisions of common courts at the Constitutional Court within one year after the expiration of the deadline for appealing. This exception is a kind of response to the public demand for restoration of justice. A number of statements have been made by representatives of the authorities on the necessity for the creation of a mechanism for eliminating deficiencies in the judicial process and accordingly, there is still an expectation in the society that a similar mechanism will be provided.

As for the constitutional change with regard to the inadmissibility of the election of one and the same person as Public Defender, Ucha Nanuashvili notes that there is no such restriction in the majority of the European countries, while in the countries, which have similar restriction, Public Defender is elected for more than 5 years. The Public Defender doubts the appropriateness of the restriction given that there has not been any precedent of electing one and the same person as Public Defender for 20 years of functioning of the Public Defender's Office of Georgia. No reasonable argument has been provided to prove the necessity of imposing the mentioned restriction by the Constitution.

The proposed draft document offers a technical change, according to which, Public Defender should be replaced by Ombudsman. The Public Defender considers that it is not advisable to make such a change, especially given that there is a tendency in a number of countries to replace Ombudsman with a more neutral term. In addition, introduction of a foreign term is not an expression of respect for the state language. Furthermore, the change had not been agreed with the Public Defender and the need for the change, which will cause financial costs and other problems for the Public Defender's Office, is unclear.

The Public Defender raised the issue of budgetary guarantees of the institution at the Commission, according to which, reduction of finances allocated for the Public Defender in the state budget in relation to the previous year's budget resources would be possible only after receiving preliminary consent from the Public Defender. Unfortunately, this change has not been reflected in the draft document.

And finally, the forced work regime of the Commission should be negatively assessed, as it does not allow of full participation in the process. The Public Defender considers that the revision of the constitution should take place so that all stakeholders have adequate time and opportunities to present their opinions. In addition, the rule of decision-making is vague either. According to the current agreement, decisions should be made on the basis of consensus, though the document drafted by the Commission includes some provisions, in relation to which, no consensus had been achieved between the working groups.

The Public Defender calls on the State Constitutional Commission and the Parliament of Georgia to take into account the opinions of the Public Defender and to reflect them in the draft revised text of the constitution.
 
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