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Public Defender Says Bill Abolishing State Inspector’s Service Unconstitutional

Public Defender Nino Lomjaria today stated the Georgian Dream-tabled bill to dissolve the State Inspector’s Service “contradicts the Constitution of Georgia and human rights, and aims to interfere with the activities of an independent institution.”

The Public Defender stressed that the key shortcoming of the bill is that the State Inspector, her deputies and employees of the Service will be dismissed if the new legislation is adopted.

She highlighted that this violates the positive obligations of prohibition of ill-treatment and protection of the right to privacy based on the European Convention on Human Rights and the Georgian Constitution, and contradicts Article 25 of the latter, involving the right to hold public office.

Citing the case-law of the Georgian Constitutional Court, the Public Defender argued early termination of the term of office of an independent body is possible only in exceptional cases, if it is necessary and the single effective means of achieving a relevant legitimate aim.

In this case, such an aim would be to either improve the management of the Service or if legislative norms related to the agency are so flawed they cannot guarantee the body’s independence from the executive or legislative branches, according to the statement. But the Public Defender said these circumstances are absent.

According to the Public Defender, the proposed procedure for the dismissal of the State Inspector’s Service staff also puts them “in a clearly unequal position with other public officials, and is discriminatory in its content.”

The ombudsperson stressed the bill does not offer any novelties, just that two new bodies will be created instead of the State Inspector’s Office and the “investigative jurisdiction will only slightly be increased.”

Lomjaria highlighted that additionally, the Prosecutor’s Office will no longer be covered by the investigative mandate of the proposed new body to probe abuse of power by law enforcement.

Calling the hastened discussion of the bill “especially alarming,” the Public Defender highlighted that expedited proceeding means that the law could be adopted in just a week.

Abolishing an independent institution that works “properly and effectively,” without prior consultations with key stakeholders, Lomjaria said, makes it “clear that the purpose of the legislative change is to influence the functioning of an independent body.”

The ombudsperson has called on lawmakers to refrain from endorsing the bill as well as called on diplomatic missions and international organizations to be fully involved in the process, to avoid adopting a law that would “worsen the protection of human rights in Georgia.”

Lomajaria has also urged President Salome Zurabishvili to use her constitutional powers if the bill is adopted, and return the bill to the Parliament with motivated remarks or apply to the Constitutional Court.

The proposal, heavily criticized by the opposition, civil society, Public Defender, and State Inspector Londa Toloraia herself, comes as the Service has remained critical over the GD government’s handling of jailed ex-President Mikheil Saakashvili.

The Inspector is probing possible inhuman treatment of jailed ex-President Mikheil Saakashvili during his forced transfer in November from the Rustavi prison to the Gldani penitentiary clinic. It also found that the Justice Ministry and the Special Penitentiary Service violated Georgia’s data protection legislation by airing several controversial footages of Saakashvili.

Toloraia argued the initiative is intended to punish the agency for its independence and decisions against state bodies, while CSOs said the development “extremely problematic and represents legislative arbitrariness.”

U.S. Ambassador Kelly Degnan and the United Nations Office of the High Commissioner for Human Rights (OHCHR) also raised concerns over the development.

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