Coalition for Equality responds to amendments planned for the anti-discrimination law

fb_coverr (2)Coalition for Equality supports amendments planned for the Law on the Elimination of All Forms of Discrimination and other relevant legal acts, initiated by the Parliamentary Committee on Human Rights and Civil Integration on the basis of the Public Defender’s legislative proposal. We believe that these legislative amendments will significantly improve the effectiveness of anti-discrimination mechanisms. The coalition was actively involved in the preparation of legislative proposals developed by the Public Defender. Its opinions have been reflected in the proposed amendments.

The legislative initiative proposed to the Parliament strengthens legal mechanisms related to discrimination cases by:

  1. Broadening the mandate and competence of the Public Defender during litigation of discrimination cases against natural persons and legal entities of private law.

The amendments envision obligating natural persons and private entities to make available materials, documentation and information related to discrimination cases being investigated by the Public Defender. Upon refusal to make them available, the amendments set a new standard of proof, according to which, if the case materials establish a reasonable doubt of an act of discrimination, and if the circumstances described in the complaint/application legally justify the request, the complaint/application will be satisfied. Otherwise, the applicant will be denied the request.

In addition, the proposed amendments also obligate natural persons and private entities to consider the recommendations and general suggestions provided by the Law on the Elimination of All Forms of Discrimination and introduce the results to the Public Defender within 20 days.

  1. Increasing the statute of limitations for discrimination cases.

The proposed amendments envision extending the statute of limitations for discrimination cases from the current unreasonably short period of 3 months to up to 1 year.

The coalition hopes that the Parliament will support the proposed legislative changes and enact them in a timely manner. The European Commission has also made recommendations on improving the legislation in its third progress report on Georgia’s implementation of the action plan on visa liberalization.[1]

In addition, the government must not limit itself to the proposed amendments and should consider the further strengthening of anti-discrimination mechanisms. For this purpose, the coalition would like to restate the recommendations made in its report,[2] and emphasize the necessity to make the following changes:

  1. The mandate of the Public Defender must be broadened. The Public Defender must be authorized to appeal to court to impose sanctions, including fines, on private entities and administrative bodies committing discrimination. In cases of discrimination committed by private entities, the current legislation allows the Public Defender to only issue recommendations that are not backed up by any enforcement instruments. Analysis of the existing scarce practice also reveals that private entities often do not comply with the Public Defender’s recommendations. In the case of non-compliance by administrative bodies, the legislation authorizes the Public Defender to initiate an administrative court dispute. However, this process is long and includes the risk of overturning the decision already made by the Public Defender. These circumstances undermine the effectiveness of the Public Defender as a legal mechanism for combating discrimination and reduce its credibility and usefulness. It should be noted that during the Universal Periodic Review (UPR) the UN Member States have recommended Georgia strengthen the mandate of the Public Defender by granting it the authority to issue sanctions and fines.[3]
  2. The law must clearly define the basis for compensating moral damages in cases of discrimination, and consider an act of discrimination a per se precondition for such compensation. Compensation for moral damages is the most tangible mechanism for restoring the rights of discrimination victims. Therefore, the law must consider an act of discrimination as a per se precondition for compensation, and define the compensation amount based on the intensity of differentiation, the victim’s vulnerability, and the degree of legitimate interest.
  3. Ongoing administrative proceedings on a discrimination case must not be considered a basis for suspending the investigation of the case by the Public Defender. The executive government is itself often the cause of human rights violations. In such cases the possibility that the government will make a decision that restores the rights of a discrimination victim is low. Moreover, the decisions made by the Public Defender and administrative bodies have different capabilities of restoring a victim’s rights, and cannot be considered alternative mechanisms. The decisions made by administrative bodies also do not claim the final resolution of disputes guaranteed by the principle of legal determination (unlike decisions made by the court). Therefore, suspension of the investigation by the Public Defender on the above basis delays and unjustifiably complicates the process of exercising one’s rights.
  4. The law must recognize harassment as a common form of discrimination. The Law on the Elimination of All Forms of Discrimination does not list harassment, hostile work environment, and sexual harassment as forms of discrimination. The coalition identified harassment to be a common form of discrimination, especially in labor relations. Including harassment under the general definition of discrimination is impossible, since, according to established international standards, it does not require the existence of a comparator during identification of unequal treatment. Therefore, the inexistence of special regulations related to harassment leaves victims without effective guarantees of protection.
  5. Interested parties must be authorized to provide amicus curiae during court proceedings on private disputes related to cases of alleged discrimination. Considering the specificity of discrimination cases and the public interest of combating discrimination, the use of the Friend of the Court mechanism in private disputes cannot be regarded as a violation of the equality of sides and the adversarial principle. Introducing this instrument in private disputes would encourage the development of a human rights-based, progressive judicial practice, and increase public trust in the judicial system.
  6. The Law on the Elimination of All Forms of Discrimination must define the legal deadlines for the Public Defender to investigate cases of alleged discrimination. Defining this deadline will be especially important if the statute of limitations is extended to a period of 1 year, which will enable the Public Defender and the court to work on specific cases simultaneously and complementarily. Giving the Public Defender a period of 1 year to investigate discrimination cases will enable victims to more effectively defend their rights in court based on the investigation results and recommendations of the Public Defender, which would contribute significantly to combating discrimination.
  7. The statute of limitations on labor and administrative disputes must be extended. Despite a special statute of limitations set by the Civil Procedures Code for discrimination cases, a limitation period of 1 month is used for labor and administrative disputes. Considering the vulnerability of discrimination victims and the complexity of discrimination disputes, a limitation period of 1 month is unreasonably short for submitting a lawsuit.
  8. The Public Defender must be authorized to accept statements and investigate cases based on actio popularis. The Law on the Elimination of All Forms of Discrimination recognizes two bases for investigating discrimination cases: a discrimination victim’s complaint, and the Public Defender’s own initiative. The law does not specify the preconditions for launching an investigation on the Public Defender’s own initiative. For this reason, organizations working on issues of equality and other interested actors do not have the opportunity to initiate the investigation of cases of systemic discrimination without the victim’s consent. Considering the victims’ vulnerability, self-victimization, and conformity, the coalition believes that enabling interested actors to initiate the investigation of discrimination cases on the basis of actio popularis would contribute significantly to combating discrimination.

The coalition hopes that the government will accept its recommendations, which are based on the analysis of court proceedings on discrimination cases and the existing practice, and make adequate legislative changes.

 

 

 

[1] REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL, Third progress report on Georgia’s implementation of the action plan on visa liberalization. p. 9, see: http://eeas.europa.eu/delegations/georgia/documents/visa/20150508vlap_en.pdf

[2] Coalition for Equality, Enforcement of Anti-Discrimination Legislation, One-Year Monitoring Results, OSGF, 2015 year. See: http://www.osgf.ge/files/2015/Publication/EU-Geirgia%20Association%20/Report_210x270mm.pdf

[3] A/HRC/WG.6/23/L.12, working group on the universal periodic review Georgia, twenty-third session, Geneva, 2-13 November 2015