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