Thursday 11 October 2012

Democratic Lawmaking and the Rule Law in the Republic of Abkhazia



OSCE Office for Democratic Institutions and Human Rights
 Human Dimension Implementation Meeting 2012


I kindly thank you for offering such an opportunity to speak at this  honorable  and important meeting today and would like to turn your attention to  some aspects regarding  the  main topic of this session  connected to human rights promotion and respect.
There are various barriers on the path to democracy building in Abkhazia. A real protection of human rights is possible only with the development of truly democratic institutions, modernization of legislation, provision of judicial protection of the rights and fundamental freedoms.
A continuing isolation of Abkhazia from the West,  consequences of the Abkhaz - Georgian war in 1992-93,  severe economic sanctions  imposed by the entire international community Abkhazia faced  after the war, partial international recognition  made a negative effect on the development  of democracy in the Abkhaz society. The fragile process of democratic transformation, compromised by the difficult post-war realities, did not receive a support it needed from the outside world. The absence of a full international recognition of Abkhazia put obstacles to the implementation of international law standards in the human rights field and did not allow cooperating as a partner with foreign countries and their state structures and international organizations which leads to lagging in the development of democratic institutions. All this adversely effects reformations implemented in the judicial system.
    
The situation with judiciary is not ideal; it is not independent as it is expected by the society. We fully understand that a judicial independence is essential to the rule of law and is a fundamental guarantee of a fair trial. Judges are charged with the ultimate decision over life, freedoms, rights, duties and property of citizens (as it is written in UN basic principles, echoed in Beijing declaration; and Articles 5 and 6 of the European Convention on Human Rights). Their independence is in the interests of the rule of law and of those seeking and expecting justice.  There is room for concern that the work of the judiciary institutions is not highly effective due to insufficient resources working in a very complex and often turbulent political, social and economic situation. The real problem of the lack of independence partly derives from the Soviet time, and also from the violation of the principle of irremovability of judges which exists in the legislations of many European states. Since October 1999 national referendum introduced an amendment to article 71 of the Constitution. According to the amendment judges have been appointed by a Parliament for a term of five years based on President’s nominations. This occurred mainly because of low legal culture of people and the majority  of the population voted for decreasing of  independence of judges. This speaks about the importance of raising legal awareness in order to avoid such things. The judicial society and independent Abkhaz experts as well as the representatives of civil society perceived negatively this infringement   regarding this principle and strictly criticized it. There is a threat that an uncertain tenure of judges may encourage corruption and bribery. These factors unfortunately undermine the independence of  judiciary and are among matters of concern of Abkhaz civil society.
 A considerable impact into the reform of a judicial system was made by the adoption of a new procedural legislation, since 1 of June 2008 a new Criminal Procedural Code  came into force and since 1 November 2008 a new Civil Procedural Code of the Republic of Abkhazia. New procedural legislation gives a new interpretation of the tasks of criminal and civil legislation in the centre of which  are human rights.          
There is no Constitutional Court in Abkhazia yet. The Parliament has not adopted the law on the Constitutional Court. The creation of such a body is necessary for a constitutional lawfulness in the Republic of Abkhazia. A legal state  can not exist without such a  body, which provides balance and restrictions of  authorities in the constitutional frames, protection of constitutional rights and freedoms of  citizens, interpretation of constitutional laws and the estimation of the  constitutionality of the legislation of the  Republic of Abkhazia. The Supreme Court investigates all cases regarding the compliance to the Constitution of any of President’s decisions, as well as the Parliament’s and other state bodies including local self-government.  But the Supreme Court functioning as a Constitutional, must have the right to interpret the Constitution, while currently this function is performed by the Parliament. 

One of the democratic achievements is to be considered in the creation of the position of a Commissioner for Human Rights in 2008 though not fully independent as the position is under the President.   It is a completely new kind of state institution throughout post-Soviet countries, not only in Abkhazia, and  has no historical, political or cultural roots. It was modeled on existing institutions in Western Europe. The main function of the Commissioner for Human Rights  is to defend and promote human rights  and freedoms  as well as to promote government activity in protecting human rights. The legal framework of the Commissioner for human rights is to be in line with international standards as given in the project of the Law on the Commissioner for Human Rights  presented to  the Abkhaz Parliament. The adoption of this law will be a serious stride on the way towards achieving a true and just situation in the human rights field.
Today the office of the Human Rights Commissioner in Abkhazia accepts and investigates complaints of human rights violations or abuses of authority by any public authority in Abkhazia.  Citizens may submit complaints against actions or omissions by public authorities to the Commissioner for human rights, who shall assess them without the power to take decisions and shall send the competent bodies such recommendations as may be necessary in order to prevent or make good any injustices.
Civil organizations in Abkhazia play a vital role in defending basic and democratic values and are a considerable and visible force in the society actively supporting the creation of independent national human rights structures.  For instance, certain NGOs involved in the drafting of legislation; civic oversight over fundamental freedoms, human rights, and civil society policy; and civil society participation in the debates over the changes to the Constitution. Prominent and widely known NGO have public consultations which provides legal advice free of payment and are accessible for the most vulnerable groups and dedicated to the realization of equal access to justice for all. A very useful analytical report was produced in 2008 by the Abkhaz NGO the Centre for Humanitarian Programmes. The report gives a characteristics   of the state of a judicial system of the Republic of Abkhazia, based on a thorough monitoring of courts and revealed problems in the legislation and practical activities of legal bodies which influences on the administration of justice and provided recommendations to raise effectiveness  of  a legal  protection of  human rights and freedoms in the Republic of Abkhazia.
Eventually I’d like to bring to your attention that just a few days ago the Council of Judges of Abkhazia adopted a statement to  make reformations  in the judicial system.

Asida Lomiya

“Veresk” Charity Foundation for Disabled and Amputees, Abkhazia
 http://www.osce.org/odihr/94576





0 comments:

Post a Comment