Introduction

The signatory organizations, "Safari" union, Partnership for Human Rights (PHR), and Social Justice Center respond to the most severe instances of systematic violation of the rights of former Ninotsminda orphanage foster children. We are concerned that after a year of unveiling the severe violations within the orphanage, the investigation into incidents of institutionalized child abuse has not been resolved, and neither the reformation nor deinstitutionalization of religious boarding schools have begun.

Within the framework of the inquiry, the signatory organisations are defending the rights of eleven Ninotsminda Boarding House beneficiaries. Accordingly, we are basing our evaluation of the investigation procedure on the context of these cases.

Observations on the investigation cases in our proceedings suggest that the present investigation at the Georgian Ministry of Internal Affairs is formal and illusory and breaches even the most fundamental principles of objective and unbiased investigation. The case is not being conducted with the proper criminal qualification; several important investigative measures have been delayed. Orphans of the boarding school have not been recognized as victims, and as a result, they have not been given access to the criminal case files.

It is also problematic that after the Ninotsminda boarding house crisis, the state did not initiate a large-scale reform of deinstitutionalization of religious boarding schools. According to our sources, Ninotsminda boarding house and other religious boarding schools with a history of violence continue to house children.

1. Circumstances pertinent to the Ninotsminda boarding house

According to official sources, in April 2021, the St. Nino Orphanage for Children of the Javakheti Ninotsminda of the Georgian Patriarchy refused the entry to the representatives of the Public Defender of Georgia to observe and monitor its activities.

Concurrently with the disclosure of this information, the former students of the boarding house spoke freely to the media about incidences of violence perpetrated against them by the boarding house representatives during their time at the boarding house.

Over the years, according to former foster children, boarding school administrators have resorted to the harshest means of disciplinary measures toward foster children. In particular, they were prohibited from eating and sleeping, forced to do penances as punishment, forbidden to sit for hours, made to kneel on wheat and corn grains, forced to stand on one leg while holding a chair, and were struck with a ruler. In addition, the educators verbally assaulted them and forbade them from discussing the incidents with others.

The circumstances of the violence alleged by the former care receivers of the boarding house are also reflected in the reports of the Georgia Public Defender. According to the Public Defender, there have been systemic abuses of the children's rights at the Ninotsminda boarding school for years. Their treatment has been comparable to assault, torture, and cruel treatment. Specifically, child-rearing techniques included demeaning and traumatic practices, such as prohibiting sleep, depriving them of food, making them do different chores, such as massaging their feet and referring to them as "abandoned by their mothers", and so on. According to the Public Defender, the management of the Ninotsminda boarding home lacked an efficient process for safeguarding children from and reacting to acts of violence; furthermore, these violent breaches were not documented in writing as required by law.

The admission of the ombudsman into the facility was made feasible on May 7, 2021, in light of the opposition from the boarding home management, based on a judgement by the UN Human Rights Committee and subsequent non-enforcement of the committee's decision. As a result, Ivane Glonti, a senior judge of the Tbilisi City Court, ordered on June 5, 2021, that the state immediately remove the children from the boarding school owing to the possibility of violence against children and the damaging atmosphere. Partnership for Human Rights, a children's rights group, litigated these disputes, and it was because of their efforts that this verdict was reached.

The information provided in the ombudsman's reports was fully corroborated by our clients (see section 2.1 below).

2. Description of the investigation process

2.1. Delayed investigation initiation

At present time, the Samtskhe-Javakheti Police Department of the Ministry of Internal Affairs is investigating the circumstances surrounding the violence against the boarding school children.

According to the Public Defender, the investigative agency was addressed in 2016 and on February 9, 2021, about the facts of violence against children at the boarding school; nevertheless, the inquiry was only formally launched, and no legal consequences followed. According to the Public Defender's report, the State Care Agency also notified law enforcement authorities about the violent acts in the boarding home in 2016, 2019, and 2020. Nonetheless, the investigative authorities took no action in any of these instances.

It is noteworthy that there were cases of police personnel exerting pressure on minors in 2016. The police threatened the children not to disclose the violence at the Ninotsminda boarding school. In 2016, the Tbilisi Prosecutor's Office began investigating the matter. In addition, an inspection was performed at the General Inspectorate of the Ministry of Internal Affairs; however, the police uncovered neither the bases of criminal proceedings nor disciplinary infractions.

At last, in April-May of 2021, after the instances of violence within Ninotsminda foster house became public, Samtskhe-Javakheti Police Department of the Ministry of Internal Affairs resumed the investigation amalgamating the compaints of 2016, 2019 and 2020 into one case. The investigation was launched under the violation of Article 126, subsection 11 (violence) of the Georgia Criminal Code.

In the investigation framework, police questioned a number of former foster children under the legal representation of signatory organizations, and they provided the investigators with specific information about the crimes perpetrated against them over the years. Particularly, children under the protection of the signatory organizations told the investigating authority that certain caretakers had used harsh forms of punishment against them over the years, such as forcing them to stand for hours, making them do repentance, forbidding them to sleep, eat, and blindfolding them with stockings to sleep during the day. According to one of the children, the other foster children hung him from the second floor of the boarding house by his feet on the instructions of a juvenile caregiver, causing him to lose consciousness and be hospitalized. In addition, the children were routinely subjected to verbal abuse and disparaging remarks. Noteworthy is the fact that in addition to interviewing our victims, a psychological evaluation was scheduled and performed to determine the harm caused and the psychological anguish endured.

2.2. Refusal to grant victim status and limiting access to case materials

Because the Georgian Prosecutor's Office has yet to recognise our beneficiaries as victims, organisations are unable to analyse the conducted / ongoing / planned investigative, procedural actions and their legal ramifications, notwithstanding the ongoing nature of the investigation. As a result, former care receivers and their attorneys have no access to criminal case materials and are still unaware of what kind of investigative/procedural actions the investigating body has taken over the years, with what legal consequences, and why the responsible parties have yet to be identified.

The Georgian Prosecutor's Office granted victim status to only one boarding house care recipient; however, even in this case, the agency refused to hand over the criminal case materials in its entirety; without the analyses of the criminal case materials, the effectiveness of the investigation cannot be determined.

The refusal to recognise foster children as victims, according to the Georgian Prosecutor's Office, is due to the fact that the results of the former care receivers' psychological examinations are not yet known, making it impossible to determine the extent of psychological damage and the harm caused to the children, which is the legal basis for being declared a victim.

The reference made by the prosecutor's office is unreasonable since the assumption of committing a crime and inflicting harm is sufficient for recognising a person as a victim, which is verified by the testimony of several minors in this instance. According to the provided interpretation of the legislation, the victim is denied access to the criminal case file until the accused has been directly convicted, which prohibits the victim from participating in the investigation and breaches national or international law.

The non-awarding of victim status to individuals under the protection of signatory organisations is especially problematic due to the excessive delay in the development of forensic results within the context of the investigation. Although the majority of examinations were conducted at the National Bureau of Examinations between June and July 2021, the examination conclusions have not yet been prepared in some cases. In one case, according to the investigative body, a report from an expert body (submitted to the investigation on March 29, 2022) states that an inpatient examination is required to answer some of the questions, requiring the beneficiary to be placed in a special facility. Unfortunately, in the absence of victim status, the beneficiary and their attornies are not authorised to see the expert report; thus, it is unknown why a stationary examination was thought necessary or why the expert was unable to prepare a report after having previously examined the beneficiary.

2.3. The problem of inadequate legal qualifications

In the present inquiry, the issue of criminal qualification for crimes committed against minors is troublesome. The case is being investigated under the classification of violence, even though the information provided by the children implies that a crime of degrading and inhuman treatment has been committed. Furthermore, even though signatory organisations have frequently requested that the Prosecutor's Office of Georgia amend the case's criminal classification, the Prosecutor's Office refused to comply with the request, and the investigation continues under the classification of violence. The irrelevant legal qualification given to the case raises the suspicion that, since the statute of limitations for criminal prosecution for the crime of violence has already expired, the state intends to make a summary decision within the said qualification and terminate the investigation on the grounds of expiration of the statute of limitations for a criminal prosecution, which exempts offenders from criminal liability.

2.4. The ombudsman's assessment of the ineffectiveness of the ongoing investigation

Noteworthy is the fact that the Public Defender's report also reveals the ineffectiveness of the ongoing investigation. In July and August of 2021, Public Defender representatives were acquainted with the criminal case materials. According to the report of the Public Defender, no substantial investigative/procedural actions have been taken, or they have been adopted belatedly in the investigation process. In particular, the Public Defender asserts that the children's best interests are not considered throughout the investigation. In some instances, the juvenile was pressured and intimidated by the investigator for them to provide false testimony/retract their previous statements (the inquiry in relation to the actions of the investigator is underway). In several cases, despite the necessity, the juvenile's procedural representative did not attend the investigative action, and the boarding house staff member was present instead during the questioning, which precluded obtaining impartial testimony from the minor. Despite reporting the fact of violence, the investigation was launched only two months after the initial report. Additionally, despite information about criminal acts being reported since 2016, they did not conduct a search investigation in the boarding house or interview relevant individuals. Finally, they did not schedule forensic or psychological examinations despite the need. In addition, according to the Public Defender, the criminal qualification is erroneous, as it is evident that cruel and humiliating treatment of children has been committed, which, in essence, exceeds the definition of a violent crime. The Public Defender provided the Georgia Prosecutor General with a recommendation on the breaches uncovered during the inquiry.

3. Legal assessment

According to the Criminal Procedure Code of Georgia, the investigation is exhaustive, comprehensive, and objective, which means that all necessary investigative/procedural actions related to the case are carried out within a reasonable time frame by an agency with no personal interest in the investigation's outcome. Furthermore, in accordance with Article 3 of the European Convention on Human Rights and the European Court of Human Rights standards, the state is obligated to identify and effectively investigate perpetrators of ill-treatment.

Unfortunately, in this instance, the current investigation is mostly unsuccessful due to the prolongation of important investigative/procedural steps. Despite increased public interest since 2016 and greater public attention and pressure from 2021, no final decision has been reached. The investigating body refuses to revise the criminal qualification and makes no effort to instil trust in the investigation system within the former boarding school children.

These conditions and the evidently formal nature of the investigation suggest that the state has no intention of achieving a legal resolution this time around, nor of identifying those guilty for the criminal conduct or protecting the children's best interests.

4. The deinstitutionalization process is still on hold

Even after the Ninotsminda boarding school scandal, the state has not initiated revising the deinstitutionalization of large-scale religious institutions under religious denominations, which is an urgent and necessary measure to safeguard children's rights. Sadly, there are still children at the Ninotsminda boarding school and other boarding schools (such as the Feria boarding school) that have been reported for brutality against children and collective punishment. Moreover, another example of state indifference is the lack of social, health, psychiatric, and other rehabilitation and protection services for children and adults who have been victims of systemic violence.

According to a number of UN agencies, the state should provide orphans with alternative community-based care and assistance. The United Nations General Assembly acknowledges the significance of driving theory and individual approaches in the process of child-raising, considers small family-type institutions as an alternative to large foster care institutions and urges states to initiate the process of deinstitutionalizing large institutions and mobilizing the necessary resources and programmes for children. In this process, according to the United Nations, countries should make every effort to assist the return of children to their families and the preservation of family ties.

Demands

In light of the above, the signatory organisations call on:

Ministry of Internal Affairs of Georgia:

• Immediate implementation of all required investigative and procedural measures within the context of the current case investigation;
• Ensure the prompt identification of criminal offenders and conclusion of the investigation in a timely manner.

To the Prosecutor's Office of Georgia

• To ensure the change of criminal qualification within the scope of the present investigation and to launch an investigation under Article 144 subsection 3 of the Georgian Criminal Code, which establishes liability for degrading and inhuman treatment;
• Ensure that victims of crime are recognised as such immediately and provide them with case materials.

Ministry of IDPs from the Occupied Territories of Georgia, Labor, Health and Social Affairs

• Provide former boarding house care receivers with a special programme that will facilitate their resocialization and reintegration;
• Offer psychological therapy programmes to all former boarding schoolchildren;
• Provide cost waivers to former boarding school children within vocational and higher education institutions.
• Former boarding house beneficiaries who have not been reunited with their biological families should be registered in the unified database of socially vulnerable persons differently and in a simplified form.
• Provide alternative care to students presently enrolled at Ninotsminda and other residential schools.
• Submit the public plan for the deinstitutionalization of large-scale educational institutions under the auspices of religious denominations and engage the civil sector in drafting a new plan.

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