the opinion was published in DFWatch.net

by SARAH DELYS

The Ministry of Justice of Georgia has been working on a draft anti-discrimination law since early 2013. In December last year it was passed on to the government for review and this government-proposed bill was sent to the Parliament for approval on March 28.

Several NGOs, experts, and religious and ethnic minority groups were consulted during the drafting process of the “Law on Elimination of All Forms of Discrimination”, as well as the OSCE and the UN.

The draft defines discrimination and, in the following articles, prohibits the act of discrimination based on “race, colour, language, national, ethnic or social belonging, sex, sexual orientation or gender identity, pregnancy or maternity, marital or health status, disability, age, nationality, origin, place of birth, place of residence, internal displacement, material or social status, religion or belief, political or any other ground”.

However, it was the introduction of the independent institution of an Inspector for Equality Protection which was most welcomed by Georgia’s civil society and the OSCE. The Inspector would monitor and control the elimination of discrimination and ensure its quality.

Moreover, the Inspector was granted the authority to adopt legally binding decisions such as imposing a fine or the obligation to carry out certain activities on both public and private actors in order to eliminate discrimination in the future.

 Amendments

Unfortunately the Government of Georgia does not share this enthusiasm about an independent body with the jurisdiction to fine a discriminating act.

The new version does no longer anticipate the establishment of an independent implementing mechanism or the possibility to issue financial penalties. Instead, the Public Defender’s Office will be responsible for the promotion of anti-discrimination measures.

Moreover, the implementation of the legislation is not accompanied by an increase of state budget expenses. Even though the OSCE recommendation[1] clearly stated it is important to allocate sufficient funding to the Inspector to properly carry out its broad mandate and expanding the Ombudsman’s authorization with anti-discrimination measures will obviously result in extra costs.

The removal of financial penalties from the draft law is another reason for concern as imposing monetary sanctions on offenders makes for a valuable and effective prevention tool.

 Public discussion

Civil society questions the changes made by the Government of Georgia to the document prepared by the Ministry of Justice. It was actively involved in the initial drafting, but afterwards there was very little communication between the government and NGOs.

A coalition of 35 NGOs, associations and religious organizations issued a joint statement [2] which sums up the current public debate: Should the responsibility of monitoring the implementation of the anti-discrimination law lie with a separate independent body or with the Public Defender’s Office? And if so, should the Public Defender be able to carry out repressive actions?

In their statement the signatories ask the government to create an independent specialized anti-discrimination task force under the mandate of the Public Defender with the authority to fine actors in both the public and private sphere.

The Public Defender’s office also reissued some of its recommendations [3] which were not taken into account by the government.

One of them relates to the fact that the Ombudsman is only allowed to apply to court if the alleged discriminatory act has been committed by an administrative body. In order to effectively eliminate discrimination, this scope should be extended to alleged violations by private persons as well.

 The Ombudsman as a (quasi-)judicial power?

Ombudsmen often comment that they lack the power to make legally binding decisions. The response to this from within governments is that, when granted such power, the institution would become another type of court and that it is more important to strengthen the existing structure of the Public Defender’s Office rather than establishing a new institute.

However, this reflexive control where actors use negotiation in an attempt to change certain behavior is considered to be more cooperative and proactive than repressive control. The Ombudsman generally uses this control to influence public administration to adopt its recommendations.

In Lithuania, for example, the Equal Opportunities Ombudsman functions as a quasi-judicial body which can sanction discrimination by issuing an administrative sanction such as a fine.

However, in practice the Ombudsperson usually issues recommendations and warnings which are not binding and cannot be challenged in court. Nevertheless, in most cases these recommendations are followed.

In this case the Ombudsperson can be seen as a mediator since one of its main objectives is the peaceful resolution of discrimination.

This could be a partial solution in Georgia’s case if the Public Defender’s Office would be able to transfer a case to court based on the argument that either the State or the public sector failed to fulfill the legal requirements of the Public Defender.

The Public Defender has already published a statement in which he says he will, if necessary, write a protocol in those administrative offences where his legal requirements were not fulfilled. After which it would be up to the court to decide whether this particular case constituted an administrative offence or not.

 A step backward

What was first a strong law, both from a material and institutional viewpoint, has now been reduced to a much weaker variant.

The current version lacks the effective preventive and repressive mechanisms which were cited in the initial draft of the Ministry of Justice.

Tamar Chugoshvili, assistant to the Prime Minister of Georgia on Human Rights and Gender Equality Issues, told a Netgazeti journalist [4] that both the state bodies and society are not ready at this state to introduce these mechanisms.

But the procedural guarantees and competences given to the Public Defender in this draft to examine acts of discrimination and to take the necessary follow-up measures are weak and ineffective.

Given all the above mentioned changes it is hard to believe that the anti-discrimination law will bring about any significant changes or be an effective tool in the fight against discrimination. Nevertheless, Georgian civil society and the Public Defender’s Office are waiting for the government to reply to their recommendations.

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