ENFORCEMENT OF ANTI-DISCRIMINATION

LEGISLATION OF GEORGIA TO ENSURE EQUALITY

OF PERSONS WITH DISABILITIES

2018
ENFORCEMENT OF ANTI-DISCRIMINATION LEGISLATION
OF GEORGIA TO ENSURE EQUALITY OF PERSONS WITH
DISABILITIES

Partnership for Human Rights

Report
(June 2017 – July 2018)
Authors:
Ana Saldadze
Tamari Robakidze

Editing:
Nino Bekishvili

Translating:
Tamuna Nadiradze

Responsible for the report:

Ana Arganashvili

This report is published with the financial support of Open Society

Georgia Foundation. The opinion expressed by the authors in the report,
may not express the position of the foundation. Accordingly, the Founda-
tion is not responsible for the content of the material.
 Table of Contents

Introduction.. ............................................................................................ 5

Brief overview of discrimination cases...................................................... 6

●● Statistical Data........................................................................................... 6

●● Discriminating Entities................................................................................ 9

National mechanisms for protection against discrimination....................... 11

●● Public Defender of Georgia........................................................................ 11

●● The Court.................................................................................................... 12

●● Burden of Proof........................................................................................... 13

Direct discrimination................................................................................ 14

●● PHR vs Chiatura Municipal Assembly: Discriminatory r

estriction of the right to access a social program..................................... 14

●● PHR vs High Council of Justice and LEPL Levan Samkharauli

National Forensics Bureau: Discriminatory treatment during
appointing support to a person with disability............................................ 16

●● PHR vs Ministry of Education and Science: Discriminatory

practice of using the school resource rooms for election purposes........... 18

●● N.K. vs the Preschool education institution: Discriminatory

restriction of the right to early and preschool education............................ 19

●● D.Kh. vs Ministry of Internal Affairs: Discriminatory and

differential treatment on the part of law enforcement officials................... 20

Indirect discrimination.............................................................................. 21

●● M.M. and E.G. vs High Council of Justice: Discriminatory

restriction of the right to access justice...................................................... 21

●● D.K. vs the Notary: Discriminatory restriction of the right

to access notary services........................................................................... 22

●● S.Q. vs the Government of Georgia and the Ministry of Labour,

Healthcare and Social Affairs: Discriminatory restriction
of the right to access rehabilitation/habilitation programs.......................... 24

3
Multiple discrimination.. ............................................................................ 24

●● PHR vs State Fund for Protection and Assistance of (Statutory)

Victims of Human Trafficking: Discriminatory treatment during
service provision......................................................................................... 24

●● Denial of reasonable accommodation as a form of discrimination............ 25

●● N.M. vs the Ministry of Education and Science: Discriminatory

restriction of the right to access education................................................. 26

Conclusion. . ............................................................................................. 28

Recommendations................................................................................... 30

4
INTRODUCTION

Partnership for Human Rights (PHR) has been supporting effective enforcement
of Georgia’s anti-discrimination legislation for two years now. PHR prepared the first
report1 on combatting discrimination in Georgia last year, which generated significant
feedback in the communities of persons with disabilities in Georgia. It is one of the
positive impacts of the report that after familiarizing themselves with the activities and
successful cases litigated by PHR, persons with disabilities and their family members
grew more aware of existing legal challenges and mechanisms on how to cope with
them. They became more confident that their violated rights could be restored by
means of litigation.

Importantly, in their efforts to tackle discrimination in Georgia, the PHR lawyers set
important precedents during the very early stage of implementing the anti-discrimina-
tion legislation which, it can be argued, paved the way for the positive development
of discrimination case law. Members of the Coalition for Equality have significantly
contributed to the success of PHR: regular dialogue and experience-sharing between
the members of the Coalition has enabled PHR to achieve tangible results in the fight
against discrimination.

Considering the high number of referrals to PHR and the important cases handled
by the organization during the report period, we decided to build on the feedback
of the first report and inform the public again about each successful case followed
through by PHR; single out the areas of life where persons with disabilities are most
frequently discriminated against and offer recommendations that can reduce the
discriminating policies and practices in Georgia.

Despite PHR’s active efforts to protect persons with disabilities from discrimina-
tion, violation of their rights remains to be one of the biggest human rights challenges
in the country. PHR’s two-year experience is a proof to the daily struggle of persons
with disabilities to use public infrastructure or access state or private services on an
equal basis with others. Lack of organizations promoting the rights of persons with
disabilities constitutes another problem, which in its turn, increases the role and re-
sponsibility of PHR to fight their discrimination in Georgia.

The report is presented in an easily understandable language in order to increase

its value and usefulness for lawyers as well as persons with disabilities who do not
have legal education and whose rights violations are covered by the report.

1
“Enforcement of Anti-Discrimination Legislation of Georgia to Ensure Equality of Persons with Disabilities”,
PHR, June 2017, PHR

5
 The report methodology is based on the analysis of the actual cases litigated by
PHR during the report period using anti-discrimination legislation.

The report reviews cases handled by the common courts as well as those, which
the Public Defender of Georgia identified as discriminating or encouraging discrimina-
tion. Selection of the cases to be included in the report was based on the systematic
nature of the issues in question and the potential of the positive result to be shared
widely with the public.

Due to the volume of cases being litigated by PHR and it is also unknown as to
what rulings will be made by the courts or the Public Defender in a number of cases,
most of them were not included in the report; however, the publication covers certain
discrimination cases which are as yet unsolved but deserve mentioning because of
the frequency of their occurrence and the potential for setting a precedent.

Authors of the report are grateful to everyone who let PHR tell their stories of
unequal treatment. Production of this report would not be possible without the support
of Open Society Georgia Foundation who has been working on combating discrim-
ination, promoting equality and strengthening civil society against discrimination in
Georgia for many years now.

BRIEF OVERVIEW OF DISCRIMINATION CASES

For statistical purposes the chapter below describes the cases handled by PHR
during the report period. It also analyses certain sectors/institutions who are defen-
dants in presumed discrimination claims.

Statistical Data

The lawyers of PHR analyzed 17 new discrimination claims in the report period
while at the same time continuing litigation of 11 cases covered in the first report – 28
cases in total. The organization applied to the Public Defender of Georgia to identify
discriminating treatment in 12 of these cases and to the common courts in 5 cases.
Out of the complaints lodged by PHR during the previous report period, 6 cases are
currently being reviewed by the court and 5 cases by the Public Defender. Notably,
the Public Defender’s Office was the most frequently used mechanism by PHR for
the current report period.

6
 Cases Casesin
from last total - 28
year - 11

Cases of the
current report
period - 17

Application of anti-discrimination
mechanisms

11 cases reviewed by the count

11
17 cases reviewed by the Public
Defender
17
28 cases in total

PHR is the claimant in 14 of the cases being reviewed by the Public Defender and
the remaining 3 claims have been made by the affected individuals.

7
 REFERRALS TO THE PUBLIC DEFENDER

Private individual
18%

PHR
82%

Private individual

In terms of perceived grounds for discrimination, it is disability in 20 of the cases;

age in 2 cases; ethnicity in 2 cases; gender in 1 case; pregnancy in 1 case and marital
status in 2 cases.

4% 7%
4% 20 On the basis of disability
2 On the basis of age
7%
2 On the basis of ethnic identity
7% 1 On the basis of gender
71%
1 On the basis of pregnancy
2 On the basis of marital status

Signs of Discrimination

The Public Defender identified discriminatory treatment in 4 cases handled during

the report period and offered recommendations to the defendant body. It prepared
general suggestions on 2 cases and stood as amicus curiae (Friend of the Court) in
one case at Tbilisi City Court. Notably, the Public Defender has discontinued none of

8
the submitted claims. In 3 cases out of the 6 claims reviewed in the previous report
the court has not found discrimination. PHR has appealed one of these cases in the
Court of Appeals and is awaiting the formal submission of the court ruling in another
case in order to appeal it too.

Results of Public Defender's determination of certain cases as

discriminatory

14%
Recommendations in 4 cases

General suggestions on 2
29% 57% cases

Standing as Amicus Curiae in

1 case

Notably, PHR reached positive results in one case without recommendations of

the Public Defender of Georgia2. In another case, which dealt with the usage of dis-
criminatory language by patrol police officers, the Public Defender, based on PHR’s
claim, addressed the General Inspection of the Ministry of Internal Affairs regarding
possible violations on the part of the policemen. As a result, the Ministry issued a
notice to one of the policemen as a disciplinary action and a recommendation card
for another.

Discriminating Entities

According to the Law of Georgia on the Elimination of All Forms of Discrimina-

tion , discrimination is prohibited in both public and private law entities. Out of the 28
3

cases presented in the report, discrimination was presumably exercised by private

legal entities in 6 cases; private individuals in 2 cases and public bodies in 20 cases.

2
https://phrgeorgia.wordpress.com/2017/07/11/phr-666666/
3
Article 3 of the Law of Georgia on the Elimination of All Forms of Discrimination

9
 Discrimination presumably exercised by

6 cases Private law entities - 6 cases

2 cases Private individuals - 2 cases

20 cases
Public law entities - 20 cases

Notably, the defendant private law entities in some of these cases included com-
panies such as Liberty Bank and Georgian Airways.

Notary services turned out to be some of the most discriminatory services in

Georgia with stereotype approaches toward persons with disabilities being one of the
serious issues among the notaries. For example, a notary refused to provide service to
two persons with psycho-social needs because “the persons appearing had apparent
visual, physical and psychic disorders, demonstrated involuntary movements, could
not control their face muscles and were inadequate”4. Notably, PHR has also submit-
ted another claim to the common courts to identify discriminatory actions in another
notary service. Tackling discrimination in notary services is particularly important as
notaries are public officials according to the Georgian Law on Notary5.

Protection from discrimination is also weak in the preschool education sector. LLC
Wonderland Preschool expelled a child because s/he was hyperactive and parents
of other children were regularly complaining about it. Instances of discriminatory
treatment were identified at another preschool institution, namely Kindergarten #170
in Tbilisi.

Based on PHR experience, the highest number of claims/complaints go to the

Ministry of Labour, Healthcare and Social Affairs (MoLHSA); State Fund for Protec-
tion and Assistance of (Statutory) Victims of Human Trafficking (ATIPFUND) and the
Ministry of Education and Science (MoES). PHR has submitted 3 claims against each
of these institutions to the Public Defender of Georgia. 2 cases were filed against
each: LEPL Social Service Agency; Government of Georgia; High Council of Justice;
4
This particular case is currently being reviewed by Tbilisi City Court.
5
Paragraph 1, Article 3 of the Georgian Law on Notary.

10
Tbilisi City Municipal Assembly and patrol police inspectors of the Ministry of Internal
Affairs. Instances of discrimination were also identified at LEPL Levan Samkharauli
National Forensics Bureau and Tbilisi City Court.

It has to be emphasized once again that some of the cases presented in this
publication has not been solved yet and the discussed supposition of discriminatory
treatment is based on the factual and legal analysis and evaluation of the cases by
PHR.

NATIONAL MECHANISMS FOR PROTECTION AGAINST DISCRIMINATION.

The chapter below briefly describes the rights protection mechanisms which can
be used when the right to equality has been violated. The Law of Georgia on the
Elimination of All Forms of Discrimination designates the Public Defender of Georgia
as the body responsible for overseeing the elimination of discrimination and imple-
mentation of equality in the country. The law also entitles individuals who believe that
they have been discriminated against to lodge a complaint in courts.

Public Defender of Georgia

Public Defender of Georgia has the obligation to supervise elimination of dis-

crimination and establishment of equality in Georgia according to the national an-
ti-discrimination legislation6. It can act on its own initiative or based on the individual
application in order to identify discrimination; issue corresponding recommendations
or a general suggestion and stand as amicus curiae in common courts.

The Public Defender reviews applications and claims of the legal entities, an in-
dividual or a group of individuals who believe to have suffered discrimination7. Thus
one of the premises for the Public Defender to initiate an investigation is the written
application of the victim of discrimination.

The Public Defender of Georgia provides opportunities for civil society organi-
zations to submit information regarding discriminatory actions or policies. PHR uses
this instrument actively as evidenced by the high number of applications submitted
by PHR to the Public Defender.

6
Paragraph 1, Article 6 of the Law of Georgia on the Elimination of All Forms of Discrimination.
7
Sub-section “a”, Paragraph 1, Article 6 of the Law of Georgia on the Elimination of All Forms of Discrimination.

11
 After receiving a claim, the Public Defender starts investigating the issue. In order
to carry out a comprehensive analysis, the Public Defender sends a copy of the claim
with all of the supplementary documentation to the discriminating entity/individual and
allows them 10 days to present their position8. The law enables the Public Defender
to order an oral hearing, where necessary9. Where the instance of discrimination
has been identified and the impact of discrimination has not yet been addressed, the
Public Defender issues recommendations10 in order to restore equality.

In frames of the powers granted to the Public Defender by the Organic Law of
Georgia on Public Defender11, it can act as amicus curiae in common courts and the
Constitutional Court of Georgia. In view of the fact that discrimination cases are rel-
atively new in Georgia and judges at common courts may not be sufficiently familiar
with the specific nature of the discrimination argument, Public Defender acting as
amicus curiae can be evaluated as an important mechanism for strengthening the
common courts. Moreover, this mechanism provides significant help to the victim of
discrimination in their efforts to tackle discrimination.

Finally, it should also be emphasized that the anti-discrimination legislation pro-

vides another important mandate for the Public Defender12: if the public entity fails to
implement the recommendations, the Public Defender is entitled to demand fulfillment
of the recommendation through court.

The Court

Aside from the Public Defender, the anti-discrimination legislation13 directs the
court to fight against discrimination. Matters of discrimination are also addressed in the
Civil Procedure Code of Georgia which includes a separate chapter about reviewing
and assessing cases of discrimination.

According to the legislation14, any person who considers themselves to be a victim

of discrimination, is entitled to file a complaint in the court against the individual/entity
who has allegedly discriminated them and demand discontinuation of discrimination

8
Paragraph 4, Article 8 of the Law of Georgia on the Elimination of All Forms of Discrimination.
9
Paragraph 3, Article 8 of the Law of Georgia on the Elimination of All Forms of Discrimination.
10
Article 9 of the Law of Georgia on the Elimination of All Forms of Discrimination.
11
Sub-section “e”, Article 21, Organic Law of Georgia on the Public Defender of Georgia.
12
Sub-section “g”, Paragraph 2, Article 6 of the Law of Georgia on the Elimination of All Forms of Discrimination
13
Article 10 of the Law of Georgia on the Elimination of All Forms of Discrimination.
14
Article 3632 , Civil Procedure Code of Georgia.

12
and/or elimination of the outcome of discrimination as well as moral and/or material
compensation. Notably, application to the Public Defender is not a pre-requisite for
lodging a complaint in the court.

A discrimination claim must be taken to court in 3 months’ time15. The period of

the time allowed to file a claim in the court is counted from the moment discrimina-
tion became known to the victim or when s/he had the opportunity to learn that s/he
was discriminated against. It has to be emphasized here that the permitted time for
lodging a discrimination claim in court is mostly insufficient for the victim to prepare
adequately for the start of the hearings. The Public Defender’s recommendations may
be the only verification of certain discrimination claims and due to the high volume
of communication that the Public Defender’s Office has to deal with everyday, it is
next to impossible to obtain proof of discrimination in 3 months’ time. Consequently,
in the absence of proof of discrimination, the victim has to abandon efforts for seek-
ing justice through litigation. Therefore, the Parliament of Georgia should extend the
period allowed to take the discrimination claim to the court.

Burden of Proof

Law of Georgia on the Elimination of All Forms of Discrimination16 and Civil Pro-
cedure Code of Georgia17 explicitly defines as to which parties are obliged to produce
evidence in discrimination claims. Importantly, both legal acts propose the identical
standard for burden of proof. The party, which considers themselves to be a victim of
discrimination must submit to the court/Public Defender the factual data and evidence
which provide grounds for supposed discrimination after which the burden of proof
shifts on to the party against which the discrimination claim is made and they must
prove that the discrimination has not taken place.

Based on the cases presented in the report, it is evident that during the review
and evaluation the Public Defender uses the standard for burden of proof set forth by
the legislation. In the case PHR vs Chiatura Municipal Assembly the Public Defender
applied not only the standard for burden of proof but also clarified the supposition
for the discriminatory action. In its recommendation18 the Public Defender argues:

“According to Article 8 of the Law of Georgia on the Elimination of All Forms of

15
Section 2, Article 3632 , Civil Procedure Code of Georgia.
16
Paragraph 2, Article 8 of the Law of Georgia on the Elimination of All Forms of Discrimination.
17
Article 3633 , Civil Procedure Code of Georgia.
18
http://ombudsman.ge/uploads/other/4/4762.pdf

13
Discrimination after the Public Defender assumes that the discrimination has taken
place, the burden to prove otherwise is shifted to the defendant. The supposition of
discrimination means that the factual data produced by the claimant provides reason
to consider that they have been discriminated against on the basis of certain prohib-
ited grounds. Transfer of proof of burden to the defendant denotes that the defendant
must submit a legitimate reason to the Public Defender which provides objective and
reasonable justification for differential treatment.”

DIRECT DISCRIMINATION

According to the Law of Georgia on the Elimination of All Forms of Discrimina-

tion , direct discrimination is the kind of treatment or creating the conditions when
19

someone is treated less favorably than others in a comparable situation or when

persons in inherently unequal conditions are treated equally during the enjoyment of
the rights provided for by the legislation of Georgia, unless such treatment or creating
such conditions serves the statutory purpose of maintaining public order and morals,
has an objective and reasonable justification, and is necessary in a democratic so-
ciety, and the means of achieving that purpose are appropriate.

PHR handled more than one direct discrimination case during the report period,
including direct discrimination of persons with disabilities. The courts as well as the
anti-discrimination mechanism under the Public Defender have heard the cases. The
chapter below reviews successful court rulings, which, we argue, contribute greatly
to the realization of equal rights in Georgia due to their significance and potential for
setting the precedent. In addition, each evaluation produced by the Public Defender
points to the discriminatory policies implemented by the Government toward such
vulnerable groups as persons with disabilities.

PHR vs Chiatura Municipal Assembly: Discriminatory restriction of

the right to access a social program.

On April 5, 2017 the Registered Union of Persons with Disabilities of Sachkhere

informed PHR about possible disability-based discriminatory treatment in the social
assistance program of Chiatura Municipal Assembly.

19
Paragraph 2, Article 2 of the Law of Georgia on the Elimination of All Forms of Discrimination

14
 According to the March 15, 2017 Decree #7 of the Chiatura Municipal Assembly
regarding the approval and provision of social assistance, social allowance was allo-
cated from the municipal budget only for visually impaired individuals with profound
disability registered and residing on the territory of Chiatura municipality in order to
pay for utilities. Therefore, those individuals with profound disability who were reg-
istered in Chiatura municipality and were not visually impaired were restricted from
benefitting from the social assistance program.

PHR informed the Public Defender on April 24, 2017 about this regulation and
requested preparation of a recommendation to the Chiatura Municipal Assembly in
order to confirm the instance of discrimination and ensure equal access to the social
assistance program for all persons with profound disabilities in Chiatura Municipality.

In response, the Chiatura Municipal Assembly informed the Public Defender that
visually impaired individuals were given preference because they constituted almost
the third of the population with profound disabilities who were registered in Chiatura
municipality.

The Public Defender shared PHR’s view and issued a recommendation20 to the
Chiatura Municipal Assembly on September 25, 2017.

In the recommendation, the Public Defender questioned the arguable decree,

which violated the right to dignity guaranteed by Article 17 of the Constitution of
Georgia: the dignity and respect of an individual is closely linked with the existence of
adequate standard of living. The Public Defender also made reference to Paragraph
2 of Article 28 of the United Nations Convention on the Rights of Persons with Dis-
abilities (CRPD), which grants persons with disabilities the right to social protection.

The Public Defender strictly emphasized in its recommendation that the lack of
financial resources did not justify the differential treatment and prioritization of certain
vulnerable groups in a comparable situation.

The Public Defender’s recommendation postulates:

“It has to be noted that the mistakes made during including and/or excluding
certain vulnerable groups in social programs on top of the difficulties faced by the
public in understanding the beneficiary selection methodology may generate tension
and conflict within the community, especially when these vulnerable groups may be
facing essentially similar social conditions. Beneficiaries must be selected in a care-
ful manner and the impact on those beneficiaries left beyond the program must be

20
September 25, 2017 Public Defender’s Recommendation on identifying direct discrimination based on disability:
http://ombudsman.ge/uploads/other/4/4762.pdf

15
adequately evaluated. For this purpose, it is important that the beneficiary selection
methodology is objective, transparent and does not cause segregation or stigmati-
zation of certain vulnerable groups/parts of these groups.”

PHR vs High Council of Justice and LEPL Levan Samkharauli National

Forensics Bureau: Discriminatory treatment during appointing support
to a person with disability.

PHR provided legal representation to the beneficiaries of Sighnaghi Therapy

Union of Socially Vulnerable People – Community Qedeli in the matters of obtaining
the status of support recipient and appointing a supported decision-maker.

G.G. is a beneficiary at the Community Qedeli who was deprived of legal capacity
before. Notably, G.G. was an active member of the community who was fully inte-
grated in the society and worked at a local cafe. The Sighnaghi District Court was
reviewing the appointing of a supported decision-maker for G.G.

Based on June 17, 2016 ruling #56 of Sighnaghi District Court, G.G. underwent
a psycho-social examination at LEPL Levan Samkharauli National Forensics Bureau
according to which he was identified as needing support in certain areas of life. PHR
did not agree with the examination results arguing that the experts did not apply
individual approach in the assessment and ignored high functional abilities of G.G.

Despite PHR’s efforts it was not possible to conduct an alternative assessment of

G.G.; 20 professionals refused to carry out the assessment, including 10 psychiatrists.

PHR believes that the lack of opportunity to undergo an alternative psycho-so-

cial examination contribute to the discriminatory policies of the Government against
persons with disabilities. In order to tackle this discrimination, PHR addressed the
Public Defender of Georgia who on June 21, 2017 issued a general suggestion to the
High Council of Justice under the Ministry of Justice and LEPL Levan Samkharauli
National Forensics Bureau21, in which it argued that the existing practice in appointing
support encouraged discrimination.

The Public Defender pointed out that identical, template approach to evaluating
the needs of all persons with disabilities was unreasonable. Disregard of the individ-
ual needs of persons with disabilities during review by the court and the Forensics

21
June 21, 2017 General Suggestion on tackling discrimination, Public Defender of Georgia: http://ombudsman.
ge/uploads/other/4/4616.pdf

16
Bureau impedes all efforts to view persons with disabilities as full members of the
society, encourages discrimination and stigma and prevents them to fully enjoy their
fundamental rights.

In its general suggestion the Public Defender also addressed the legal capacity
and emphasized that:

“Agency is more than the capacity to make specific decisions. The opportunity to
have control over one’s life, which may be taken away from persons with disabilities
by the court based on the assessment of the Forensics Bureau, can have negative
impact on the self-esteem of the individual in question. In addition, they may disap-
pear from the public as full members of the society, which encourages stereotypes,
objectification and other forms of exclusion. All of these, in their turn, prepare ground
for the oppression and neglect of persons with disabilities.”

The Public Defender also touched upon the necessity to apply individual approach
in the assessment and explained the negative effects of its absence from the process:

“It is necessary for the individual approach to be evidenced in the psycho-social

examination report of the Forensics Bureau as well as the court rulings. The court
must demonstrate that the ruling takes into account the psycho-social needs and the
interests of the individual or else it may lead to the full substitution of the will of the
person instead of support provision, which means that there will be a significant and
unjustified interference in his/her autonomy. On the one hand it violates the standard
set forth by the Constitution of Georgia and on the other hand, the obligations under-
taken by Georgia by joining the CRPD and European Convention on Human Rights.”

Finally, the Public Defender also strongly accentuates the importance of the idea
of legal capacity reform in Georgia:

“The essence of support provision is to increase self-confidence and the skill-set

of the support recipient so that they need less support in the future, if they desire.
Therefore, correct implementation of the supported decision-making systems is im-
mensely important for improving the human rights situation and equality for persons
with disabilities and increasing their inclusion in the society.”

17
PHR vs Ministry of Education and Science: Discriminatory practice of
using the school resource rooms for election purposes

During the 2016 Parliamentary election period it became known that some of the
polling stations were organized in resource rooms of several public schools in Tbilisi
which are used for students with special educational needs. This decision impeded
the provision of quality inclusive education for students for a long period of time.

In order to confirm the information and determine the scale of the issue, PHR
requested information from the Ministry of Education and Science (MoES) and the
Central Election Commission (CEC) about the polling stations being set up in resource
rooms at public schools.

It turned out that the problem of using resource rooms as polling stations occurred
in many schools and had a systematic nature. Namely, in 2016, polling stations
were set up in 9 public schools across the country. Moreover, according to the Vake
District Election Commission, the precinct election commissions had been using the
resource rooms for one month during which students with special educational needs
were deprived of the opportunity to use the resource rooms.

PHR informed the Public Defender of Georgia regarding this practice and request-
ed investigation of the discriminatory nature of the issue. On June 20, 2017 the Public
Defender issued a recommendation for the MoES and demanded removal of polling
stations from the resource rooms of the public schools. The Public Defender’s recom-
mendation comprehensively elaborated on the meaning of quality inclusive education
and the importance of unimpeded availability of resource rooms for its provision.

The Public Defender’s recommendation stated the following:

“The resource rooms are built to support those students who face certain diffi-
culties in the learning process. For education purposes of persons with disabilities
they provide the space for planning, developing and providing individual (personal)
and differentiated educational strategies, which are essential for students with dis-
abilities. Individual approach implies support provision, reasonable accommodation
and early intervention so that each and every student is able to realize their potential.
The teaching process must pay due attention to the capacities and aspirations of the
students and not only the content. One of the building blocks of this approach is the
resource room limited access to which violates the students’ right to receive full and
quality education in the learning environment.

In view of this notion the Public Defender concluded that the MoES had failed

18
to effectively address the above-described violations during October 8, 2016 Parlia-
mentary elections which may encourage the wrong practice of using resource rooms
for the purposes of precinct election commissions in the future.

N.K. vs the Preschool education institution: Discriminatory restriction of

the right to early and preschool education.

N.K. was enrolled in the class of 2 years-old children at LLC Wonderland Pre-
school. N.K. was expelled from the institution in January 2018 on the grounds that
s/he was aggressive, hyperactive and unable to perform in a group. The expulsion
document also included information about complaints of parents of other children
regarding the behavior of N.K.

As explained by LLC Wonderland Preschool, N.K. demonstrated aggressive

behavior during group activities such as hitting another child in the head, tossing a
chair, scratching, biting, tugging at other children’s hair and knocking them down. The
frequency of such behavior amounted to 3-4 instances in 10 minutes.

Before expulsion, in November 2017 the director of the kindergarten and the
psychologist met N.K.’s parents and, based on the advice of the psychologist, of-
fered them to remove the child from the kindergarten for one or two months. Later,
they changed their mind and advised the parents to reduce N.K’s attendance at the
preschool from full time to part time. The parents did not agree with this suggestion
as they believed that N.K. could easily continue full time attendance.

N.K.’s parents asked PHR to file a discrimination claim against the Wonderland
Preschool at Tbilisi City Court and demand moral compensation from the institution.
Additionally, the case was also investigated by the Public Defender.

The Public Defender of Georgia issued a recommendation on April 16, 201822 in

which it found that N.K. had been subject to direct discrimination by LLC Wonderland
Preschool on the grounds of behavior.

According to the recommendation of the Public Defender:

“The preschool institution has not taken adequate and necessary actions to tackle
the problem it describes. Instead, the administration of the institution has singlehand-
edly decided to expel the child, which cannot be considered as a justifiable decision.
22
Recommendation of the Public Defender of Georgia on finding direct discrimination on the grounds of
behavior, http://ombudsman.ge/uploads/other/5/5192.pdf

19
The defendant has failed to provide legitimate arguments to refute the supposition of
the discriminatory action which is based on the information submitted by the claimant.”

The Public Defender found that the defendant had not acted in the best interests
of the child. Expelling the child from the institution cannot be evaluated as the child’s
best interest; just the contrary, the expulsion may traumatize the child. Additionally,
“expelling a child from a preschool institution due to hyperactivity is an alarming
practice, as children whose behavior management may require more resources than
that of other children, may be construed as an additional burden for the kindergarten
and may lead to the high risk of discriminatory single-handed decisions on the part
of the preschool administration.

The case is currently under review at Tbilisi City Court.

D.Kh. vs Ministry of Internal Affairs: Discriminatory and differential

treatment on the part of law enforcement officials.

This case was presented in detail in PHR’s previous report as an ongoing process.
Unfortunately, the case is still being tried in the court. Despite PHR’s effort to speed
up the process, including addressing the Chairperson of the Tbilisi City Court Civil
Cases Panel, we are still unable to inform the public as to how the court judges the
actions of the police officers.

Below is a brief overview of the case as a reminder for the readers of the report.

D.Kh. is a wheelchair user who fell victim to the discriminatory, humiliating and
degrading treatment by patrol police officers. During a drive on a highway they did
not let D.Kh. get out of the car, use the wheelchair and see to his toilet needs due
to which D.Kh. was forced to do it in the car.

20
INDIRECT DISCRIMINATION

The Law of Georgia on the Elimination of All Forms of Discrimination23 defines

indirect discrimination as a situation where a provision, criterion or practice, neutral in
form but discriminatory in substance, puts individuals at a disadvantage as compared
to others in a comparable situation, or equally treats persons who are faced with
inherently unequal conditions, unless such situation serves the statutory purpose of
maintaining public order and morals, has an objective and reasonable justification
and is necessary in a democratic society, and the means of achieving that purpose
are appropriate.

During the report period PHR applied to the Public Defender of Georgia as well
as the courts with indirect discrimination cases but none of them are completed as
yet, therefore, the chapter below reviews cases, which are still under review in the
court or the Public Defender of Georgia.

M.M. and E.G. vs High Council of Justice: Discriminatory restriction

of the right to access justice.

M.M. and E.G. who are both visually impaired had decided to lodge a complaint
in the court about the restriction of their independent access to services in the bank
sector. They were planning to file the lawsuit on their own and protect their own rights,
however, they were faced with numerous obstacles during the preparation stage
when they could not access official court forms to file the claim. They could not fill
out the electronic forms even with the special text-to-speech software for the visually
impaired – the software could not recognize/read the documents.

December 8 2009 Decree #1//456 of the High Council of Justice of Georgia ap-
proves forms and templates for claims, appeals and responses in civil and adminis-
trative cases. In case of a dispute the claimant must use these forms in order to lodge
their complaint, however, none of these forms are accessible for blind individuals,
which makes it impossible for them to use these forms.

Moreover, one of the claimants is a lawyer who, because of these arguable reg-
ulations, is deprived of the opportunity to grow professionally. In such circumstances
s/he will never be able to become a partitioning lawyer and pursue a career of an
attorney at law which is possible only for lawyers without visual impairments.

23 Paragraph 3, Article 2 of the Law of Georgia on the Elimination of All Forms of Discrimination

21
 In order to achieve a voluntary settlement of the issue, PHR addressed the High
Council of Justice on March 9, 2017 and demanded elimination of the discriminatory
treatment. The High Council of Justice ignored the PHR request as after which on
May 1, 2017 the organization lodged a complaint in Tbilisi City Court.

PHR claimed that because of inaccessibility of the complaint forms, visually im-
paired individuals were discriminated against in their efforts to access justice and
exercise their right to independent living and participation in public life. Access to
justice and the right to independent living are universal rights which must be equally
accessible for each and every individual regardless of their circumstances. Moreover,
one of the claimants was discriminated against in terms of access to opportunities
for professional growth. The severity of the issue is also emphasized by the fact that
persons with disabilities are continuously discriminated against by the existing State
policies and the aforementioned arguable regulation creates more artificial barriers
for them to restore their rights through litigation.

Tbilisi City Court rejected the claim on June 29, 2017. By the time of preparing the
report PHR had not officially received the court ruling, therefore, it is yet unknown as
to what arguments and justifications were used by the court to reject the claim. PHR
will appeal the court decision as soon as it receives the official document.

D.K. vs the Notary: Discriminatory restriction of the right to access

notary services.

D.K. is a person with disability who lives under the State care at a community
organization. Importantly, D.K. has never been deprived of their legal capacity. As
D.K. needed support to benefit from the social assistance program, s/he decided to
delegate a staff person of the community organization to handle the issues of his/her
state pension and communication with the bank on his/her behalf.

D.K. contacted a notary bureau on May 19, 2017 in order to obtain a power of
attorney for the community organization staff member. S/he was accompanied to
the bureau by support persons who explained to the notary that D.K. was a person
with disability and did not have literacy skills. Hearing that D.K. had a disability, the
notary decided to evaluate his/her legal capacity by asking him/her some questions.

After the interrogation the notary refused to provide the service doubting D.K.’s
legal capacity because of his/her inaccurate answers to some of the questions. It
has to be noted that D.K. was not questioned in an easily understandable language

22
that would be sensitive to his individual needs. Moreover, the questions asked by the
notary mostly dealt with his/her birth details and the notary was not concerned with
questions that would confirm the validity of D.K.’s will. With PHR support D.K. filed
a complaint in court against the notary.

Access to notary services anywhere in the country is the right guaranteed by the
Georgian legislation, including to persons with disabilities. Evaluation of the legal
capacity of an individual must take place in compliance with the legislation and it
cannot be determined based on subjective perceptions and the established, recurrent
practice.

PHR believes that it is the case of indirect discrimination on the grounds of dis-
ability as the notary disregarded the individual needs of D.K. and asked questions
in a way that did not take into account the intellectual characteristics of the client.
The notary asked typical questions which s/he would have asked anyone without
intellectual difficulties. The case demonstrates the prevalent practice and approach
among the notaries of dealing with persons with disabilities, which ignores the need
to provide and receive information in an accessible way and establish genuine com-
munication between the client and the service provider.

It has to be emphasized that persons with psycho-social needs who have not been
granted by the court the status of a support recipient, are still capable of entering into
a contract and are entitled to the right to express their will so that they can become
a party to private law agreements, on an equal basis with others and in compliance
with the legislation.

Determination of the validity of a person’s will, when this person understands the
legal outcomes of the decision and is able to communicate his/her will to others in an
understandable way, is not linked with the status of legal capacity, otherwise it would
be discriminating against persons with psycho-social needs and would constitute a
major breach of the CRPD and the national legal capacity reform.

Thus, the status of a support recipient granted to an individual with psycho-social

needs in frames of Georgia’s legal capacity reform and in compliance with the CRPD
provisions means that this individual is recognized as capable of entering legal con-
tracts and this capacity, in its turn, covers the right to express one’s will to initiate,
alter or terminate deals. Therefore, the will expressed by individuals with psycho-so-
cial needs to enter civil and legal contacts is as legitimate as their full legal capacity
status determined by the legislation of Georgia.

The aforementioned case is currently reviewed by Tbilisi City Court.

23
S.Q. vs the Government of Georgia and the Ministry of Labour,
Healthcare and Social Affairs: Discriminatory restriction of the right
to access rehabilitation/habilitation programs.

This claim as well as the D.Kh. case was reported in detail in PHR’s publication
last year as an ongoing process. As the case is still under review by Tbilisi City Court,
PHR is unable to comment on its discriminatory aspects.

Below is a brief overview of the case as a reminder for the readers of the report.

S.Q. is a child with disability. In the absence of rehabilitation/habilitation services

in Georgia that would be tailored to the child’s needs, s/he is excluded from the so-
ciety. S/he is unable to receive social services granted by the national legislation,
which violates the child’s right to healthcare, education, development and participation
in the community. Moreover, the severity of the situation is increased by the risk of
self-harm, suicidal tendencies and forced institutionalization.

MULTIPLE DISCRIMINATION
The Law of Georgia on the Elimination of All Forms of Discrimination24 defines
multiple discrimination as discrimination on the basis of more than one ground. In or-
der to determine whether multiple discrimination has taken place, a person has to be
discriminated against on the basis of two or more protected grounds simultaneously.
If a person experiences two or more protected grounds but discrimination takes place
on the basis of one ground, it is not considered as multiple discrimination.

PHR handled one case of multiple discrimination during the report period. The
case is described below in detail in connection with protected grounds in order to
clearly understand the essence and nuances of multiple discrimination,

PHR vs State Fund for Protection and Assistance of (Statutory) Victims

of Human Trafficking: Discriminatory treatment during service
provision.

The PHR representatives visited Dusheti residential institution for persons with
disabilities in November 2017 in order to talk to the residents and offer legal support

24
Paragraph 4, Article 2 of the Law of Georgia on the Elimination of All Forms of Discrimination

24
and advice. One of the male residents in a wheelchair informed PHR that he was
receiving assistance by female staff persons to deal with his personal hygiene, which
created unpleasant conditions and discomfort for him, therefore, he requested PHR’s
assistance to remedy the situation.

PHR contacted the Public Defender on January 15, 2017, requested to look
into the possible discrimination by the State Fund for Protection and Assistance of
(Statutory) Victims of Human Trafficking (ATIPFUND) and issue a recommendation
for them to eliminate the practice.

According to PHR, by identical treatment of male and female residents of the

Dusheti institution, the ATIPFUND placed male residents in an unequal situation as
compared to female residents who are assisted by the same sex staff.

There are two protected grounds in this case: 1) disability as the case was
reported by a wheelchair user who was unable to deal with his personal hygiene
independently and needed assistance; he would not require assistance if he had not
been a person with disability in a wheelchair; 2) age/gender which determined the
necessity to appoint the same sex assistance staff for the resident. If the wheelchair
user had been female, she would receive support from female staff, which would
exclude the possibility of discriminatory treatment.

Consequently, the two protected grounds such as disability and sex cumulative-
ly created conditions for the discriminatory treatment, which can be considered as
multiple discrimination.

The case is still under review by the Public Defender of Georgia.

Denial of reasonable accommodation as a form of discrimination

Analysis of the issues of reasonable accommodation should not lose sight of the
CRPD, which identifies denial of reasonable accommodation as a form of discrimi-
nation25. The CRPD goes on to clarify the concept of reasonable accommodation in
the following way:

“Reasonable accommodation” means necessary and appropriate modification

and adjustments not imposing a disproportionate or undue burden, where needed in
a particular case, to ensure to persons with disabilities the enjoyment or exercise on
an equal basis with others of all human rights and fundamental freedoms26.

25
Article 2, UN Convention on the Rights of Persons with Disabilities
26
Article 2, UN Convention on the Rights of Persons with Disabilities

25
 Such definition of reasonable accommodation aims at creating equal opportunities
for persons with disabilities by means of modifying the environment and all types of
services so that persons with disabilities are able to access spaces and services as
dictated by their individual needs.

The CRPD was enacted in Georgia on April 12, 2014, however, the legislation
of Georgia does not yet recognize the concept of reasonable accommodation which
create obstacles for persons with disabilities to seek justice in cases which may con-
tain this specific form of discrimination.

Despite the fact that the national legislation does not recognize denial of reason-
able accommodation as a form of discrimination and each time the claimants have to
debate their claims in terms of direct and indirect discrimination, PHR was resolute
to file the claim in the court regardless and demand from the court to identify denial
of reasonable accommodation as an independent form of discrimination.

The case is currently under review by the court and it is yet unknown how the
court will evaluate it.

N.M. vs the Ministry of Education and Science: Discriminatory

restriction of the right to access education

N.M. is a 14-year old with disability who has been enrolled in one of Telavi’s pub-
lic schools since 2009. Due to refurbishment works, the school moved to a different
building for the academic year of 2017-2018, which was located on a long distance
from N.M.’s place of residence, therefore, N.M. was unable to reach the school with-
out transportation.

The school designated a vehicle for student transportation, which was inaccessi-
ble and therefore, could not be used by N.M. Mother of N.M. who is also his/her legal
representative demanded accessible transportation for her child in order for N.M.
to exercise his/her right to education without delay. She also addressed the MoES
with the same request on November 1, 2017. Nonetheless neither the MoES nor the
school took any action to satisfy the mother’s request.

Not wanting to leave the child beyond the education system, the mother had to
request inclusion of her child in the home-schooling program as a temporary solu-
tion despite the fact that N.M. did not meet the eligibility criteria for home-schooling
defined by the national legislation.

PHR filed a complaint in Telavi City Court demanding investigation into the dis-

26
criminatory action of the school and the MoES. PHR argued that the right to education
is protected by numerous national and international legal acts. The right to education
means acquirement of academic knowledge as well as social inclusion. States must
take all possible actions to ensure that socially isolated and disabled children are
included in the society. Therefore, the practice of home-schooling must be applied
only in circumstances covered by the law and must not be used as an alternative to
school when the school and the MoES fails to provide accessible infrastructure for
students.

PHR believes that this is the case of denial of reasonable accommodation. Accord-
ing to the General Comment of the CRPD Committee, when a person is faced with
specific needs and the accessibility standard is not sufficient to satisfy these needs,
reasonable accommodation must be applied. The States are directly responsible to
implement this provision unless it imposes unnecessary burden and difficulties on
the institution in question.

Despite the fact that access to the school had been ensured through allocating
a means of transportation for the students, this service was inaccessible for N.M.
due to his/her disability. The school should have offered a wheelchair accessible
transportation service to N.M. in order to meet his/her specific needs. Reasonable
accommodation was denied. Therefore, N.M. found himself/herself in an unequal
position as compared to other students. Importantly, offering a wheelchair accessible
vehicle would not impose any additional costs on the school.

The case is under review by Telavi District Court.

27
Conclusion

The cases described in the report serve as a vindication of the unfavorable human
rights situation faced by persons with disabilities in Georgia. Frequent occurrences
of discrimination point to the necessity on the part of the Government of Georgia to
take effective steps to tackle discrimination in the country.

Delays in hearings inflicted by the courts significantly hinder the process of pro-
tecting the rights of persons with disabilities. Delayed justice may cause victims of
discrimination to abandon the efforts of seeking justice through the application of
anti-discrimination mechanisms. It is important for the judiciary system to carry out
measures to address this problem, including by increasing the number of judges. It
is unallowable to delay hearings with the excuse of the volume of cases reviewed by
courts, especially when the hearings deal with vulnerable groups who are discrimi-
nated against on a daily basis.

One of the challenges faced by Georgia is the ineffective implementation of

the legal capacity (supported decision-making) reform. Disregard of the individual
needs by the court and National Forensics Bureau during psycho-social assessment
impedes the process of replacing medical approaches with social model of under-
standing disability on the one hand and generates risks of maintaining the practice
of completely substituting the will of a person with psycho-social needs rather than
offering them support in decision-making on the other hand, which constitutes signif-
icant and unacceptable interference in the person’s autonomy.

It is also problematic that Georgia has not yet aligned its national legislation with
the provisions of the CRPD. Georgia’s legislation does not yet recognize denial of
reasonable accommodation as a form of discrimination, which leads to persons with
disabilities being frequently and systematically discriminated against in their efforts
to access education and other services. Consequently, they are experiencing more
segregation and exclusion from the mainstream society.

It is important that different Government institutions have effective coordination to

prevent discriminatory policies and practices across the country. The Public Defend-
er’s recommendations and court rulings should have impact on nationwide polices,
including those of local governments. Confirmed discriminatory actions in various
nationwide and/or municipal service provision must be taken into account, prevented
and eliminated by other state bodies and municipalities as well, otherwise it will be
impossible for the impact of the achievements to proliferate across the country in a
quick and effective manner.

It has to be noted that the Equality Department of the Public Defender of Georgia

28
has been performing effectively. Based on PHR’s experience during the report period,
it can be argued that the Public Defender is one of the most reliable partners in the
fight for equal rights of persons with disabilities. The Public Defender has strongly
criticized the discriminatory policies in more than one recommendation/general sug-
gestion and has provided explanations and insights into specific rights as well as the
significance for persons with disabilities to exercise these rights. The effective per-
formance of the anti-discrimination mechanism under the Public Defender provides
positive grounds for eliminating discrimination and ensuring equality in Georgia.

29
Recommendations

The following changes and actions are necessary to be implemented in order

to eliminate discrimination against persons with disabilities in Georgia and provide
equal opportunities for them:

●● Amend the Law of Georgia on the Elimination of All Forms of Discrimination to

extend the 3 months’ period allowed for taking a discrimination claim to the court;

●● Amend the Law of Georgia on the Elimination of All Forms of Discrimination to

define denial of reasonable accommodation as a form of discrimination on the
basis of disability and obligate entities to apply reasonable accommodation where
necessary;

●● Local governments should guide with the notion of equality when developing
eligibility criteria for the target groups of municipal social programs;

●● High Council of Justice should increase the number of judges in the courts of the
first and second instances in order to avoid delays of hearings due to the high
volume of cases already in the court system;

●● General courts and the National Forensics Bureau should apply individual ap-
proaches during assessment of the psycho-social needs of the person;

●● High Council of Justice should take effective actions to ensure unimpeded access
to justice by persons with disabilities;

●● Preschool education institutions should guide with the notion of equality and pro-
tection of the best interests of the child in education service delivery;

●● The State should carry out all necessary measures in order to apply the concept
of reasonable accommodation to ensure accessibility of the school infrastructure
based on the individual needs of the student;

●● The executive and judiciary branches of the Government should raise awareness
of their respective personnel about the rights of persons with disabilities and the
relevant human rights obligations undertaken by the country;

●● It is important to take action to remove the stereotypes and stigma toward persons
with disabilities that prevail in Georgia’s society.

30