Georgia [1]

Last edited: November 2005

 

Summary and Analysis

 

Georgia ratified the Convention on the Rights of the Child in June 1994 by a parliamentary decision. Article 6 of the Constitution of Georgia states that an international treaty ratified by Georgia shall take precedence over domestic normative acts unless it contradicts the Constitution of Georgia.[2]  Thus, all Georgian citizens, including children, could invoke the provisions of the Convention before a court, although a region-by-region inquiry showed that no case had ever been brought before a court under the Convention on the Rights of the Child or any other international instrument.[3]

 

The protection of the rights and interests of minor children in Georgia is incumbent upon their parents, who are their children's legal representatives in relations with third parties, including the courts. The parents' representation of a minor and their guardianship of an adolescent may only be guided by the interests of the child.

According to the state’s report to the Committee on the Rights of the Child, the criterion which determines the legal effects of a child's expression of his/her views is age, as well as the relative ability to formulate and express those views. Although a minor does not normally have the right to engage in legal procedures independently, his/her views can be heard in the course of procedures required by law.[4]

 

Most articles of the Civil Code do not specify when or how the minor has the opportunity to express his opinions in court. The articles that do relate to this issue state the age of 10 as the minimum age of a child to be allowed to express an opinion in court. For example, while deciding the question about an adoption of a child, the court must take into account the opinion of the child if he/she is over 10 years. The same will apply when the court discusses restoration of parental rights.

 

According to the concluding observations of the Committee on the Rights of the Child, the Civil Code was amended in June 2003 providing children of 14 years or older with legal standing in court proceedings.[5] We were unable to receive a copy of this amendment and therefore can not estimate its influence on the legal status of children in Georgia.

 

It seems that the child’s right to express his opinion in protective proceedings is guaranteed only in the most severe procedures and not in more common procedures such as removel of the child from his parents on grounds of abuse or neglect. In cases where a child resides with his parents but they are failing to fulfil their obligations with regard to his/her upbringing, the guardianship and tutorship agency may apply to the court for the child to be removed from the parents and placed under guardianship or tutorship. In appointing a guardian or tutor, the wishes of the ward are taken into consideration wherever possible, but there is no legal obligation to hear the child’s opinion.

 

Generally speaking, the agencies of guardianship and tutorship are the local educational authorities and, in cases specified by law, the public health and social security authorities. Therefore, it seems that the agencies are not representatives of the child.

 

In addition there are commissions established according to the Under-Age Persons' Affairs Commissions Act.[6] It is not clear if these commissions are representatives of children or rather the administrative body who decides on issues related to them.

 

In 2001, The Child Rights Center was established within the Public Defender’s Office to monitor the implementation of the Convention and to promote children’s rights in Georgia. According to a report made in 2004, the present legal system in Georgia is not conducive for children to express and defend their interests and rights.[7]

 

Sources of Law (In Order of Authority)

 

Original text

 

Constitution [8]

International Law [9]

Statutes

The Civil Code of Georgia

Original text unavailable

 

Civil Procedure Code

Original text unavailable

Translation

Constitution

The Constitution of GEORGIA, Adopted on 24 August 1995[10]

 

Article 19

 

1. Everyone has the right to freedom of speech, thought, conscience, religion and belief.

 …

 

Article 24

1. Everyone has the right to freely receive and impart information, to express and impart his/her opinion orally, in writing or by in any other means. …

 

Article 36

2. The state shall promote the prosperity of the family.

3. The rights of the mother and the child shall be protected by law.”

 

International Law

 

The UN Convention on the Rights of the Child[11]

Article 12

1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.

Statutes

 

The Civil Code of Georgia[12]

 

Article 12. Legal Capacity [Capacity to Act]

 

1.      The ability of a natural person to acquire and exercise his civil rights and duties in full by his will and action (legal capacity) shall arise upon the attainment of the age of majority.

2.      A person of the age of majority – an adult – is one who has attained the age of eighteen years.

3.      A person who has entered into marriage before attainment of the age of eighteen years shall be deemed to have legal capacity.

4.      A minor under the age of seven years (an infant) shall be deemed to be a person without legal capacity [a legally incapable person].

 

Article 14.  Limited Legal Capacity

1.      A minor from the age of seven to eighteen years is a person with limited legal capacity.

 

Article 15. Consent by Statutory Representative in Case of Limited Legal Capacity

 

A valid declaration of intent by a person with limited legal capacity is subject to the consent of his statutory representative, except when the person of limited legal capacity would acquire a benefit from the transaction.

 

Article 1198. Duties of Parents with Respect to Children

1.      Parents shall be entitled and obligated to rear their children, to take care of their physical, intellectual, spiritual and social development, and to raise them as decent members of society, taking into account the best interests of the children.

2.      Parents shall be bound to protect the rights and interests of their minor children.

3.      Parents shall be the statutory representatives of their children and shall act for the protection of the children’s rights and interests in relations with third persons, and inter alia in court, without any special authorization to do so.

4.      Parental rights may not be exercised to the prejudice of the interests of the children.

 

Article 1205. Deprivation of Parental Rights

 

1.      As an extraordinary measure, the deprivation of parental rights may be effected only by a court proceeding.

2.      The parents (or one of the parents) may be deprived of their parental rights if it is found that they (or one of them) systematically evades performance of the duty of rearing the children or abuses the parental rights – mistreating the children with cruelty, having a negative influence on them by immoral behavior, as well as if the parents are chronic alcoholics or drug addicts.

3.      If both parents are deprived of their parental rights, then the child shall be placed in the custody of a guardianship and curatorship agency.

4.      Deprivation of parental rights shall not release the parents from the duty of maintenance of the child.

 

Article 1209. Restoration of Parental Rights

 

1.      Parental rights may be restored only in a court proceeding [initiated upon] the application of the child, one of the parents or a guardianship and curatorship agency.

2.      Parental rights may be restored only if it is found that the behavior and living conditions of the parent have changed, and he or she is able to rear the child, and also if the restoration of parental rights is in the interests of the child.

3.      If the child is ten years of age or older, the court shall take into account the child’s preference as well.

4.      Restoration of parental rights with respect to a child adopted by another person shall not be allowed.

 

Article 1279. Establishment of Guardianship and Curatorship

 

Guardianship and curatorship may be established in a case when the child does not live with his parents, and the parents evade the duty of rearing the child. If the child lives with parents who fail to perform the duty to rear him, then a guardianship and curatorship agency may petition a court to remove the child from such parents and place him in the custody of a guardian or a curator.

 

Article 1282. Procedure of Appointment of a Guardian or a Curator

 

1.      A guardian or a curator shall be appointed not later than one month from the moment at which a guardianship and curatorship agency becomes aware of the necessity to establish the guardianship or curatorship.

2.      A guardian or a curator shall be selected taking into account his personal characteristics, his ability to perform the duty to be laid on him, reciprocal relations existing between him and the prospective ward and, whenever possible, the preference of the prospective ward as well.

 

Article 1290. Representational Authority of a Guardian and a Curator

 

A guardian and a curator shall represent the ward’s rights and interests in relations with third persons, including in court, without any special authorization for it.

 

Civil Procedure Code[13]

 

Article 32

 

The rights and interests of adolescents between 14 and 18 are protected by the children's parents and guardians in court, but simultaneously, the court is obliged to involve adolescents in such activities. As for minors under the age of 15 years and people who are considered as disabled people because of mental illness or weak-mindedness, their rights and interests in court are protected by parents or guardians.

 

Local Contact Information

 

Charlie Kaften - Acting Field Office Director

Save the Children Federation – Georgia Field Office SCF
Address: 8 Baratashvili St., 4th floor, Tbilisi 38005, Georgia
Tel: (+995 32) 99 54 54, 99 65 48, 93 11 08
Fax: (+995 32) 99 89 43
E-mail: scgeorgia@save.org.ge, charlie@save.org.ge
Web-site: www.assistancegeorgia.org.ge

 

Additional Links

www.parliament.ge – The Parliament of Georgia

www.iris.ge/en/index.html - Center for Institutional Reform and the Informal Sector www.eurasianet.org – Euroasia net

www.ombudsman.ge – The Ombudsman of Georgia

www.cis-legal-reform.org - Law Reform in Transition States

http://www.government.gov.ge/eng/  - The Government of Georgia

http://www.child.ge/mainenglish.shtml - Legislation in Georgian

 



Endnotes

1 This page is also available as a .pdf Document, and Word Document.

[2] The Constitution of Georgia, Article 6.

[3] Summary Record of the 620th Meeting (2000), U.N. Doc. CRC/C/SR.620, available at http://www.unhchr.ch/tbs/doc.nsf, and also here, and also as .pdf Document, and also as Word Document.

[4] Initial Report (1997), U.N. Doc. CRC/C/41/Add.4, available at here, and also as .pdf Document, and also as Word Document.

[5] Concluding Observations on Georgia (2003), U.N. Doc. CRC/C/15/Add.222, available at here, and also as .pdf Document, and also as Word Document.

[6] Initial Report (1997), supra note 3.

[7] Child Rights Center Update (2004), available at http://www.barneombudet.no/data/f/0/07/24/6_22301_0/Georgia.pdf.

[8] The Constitution of Georgia, available at here, and also as .pdf Document, and also as Word Document.

[9] The Convention on the Rights of the Child (Georain text), available at http://www.unicef.org/magic/media/documents/CRC_georgian_language_version.pdf.

[10] The Constitution of Georgia (English text), official translation, available at http://www.parliament.ge/index.php?lang_id=ENG&sec_id=68, and also here, and also as .pdf Document, and also as Word Document.

[11] G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989), available at http://www.ohchr.org/english/law/crc.htm.

[12] The Civil Code of Georgia, unofficial translation from the University of Maryland, updated through May 31, 2001, available at http://www.iris.ge/en/resources.html, and also here, and also as .pdf Document, and also as Word Document.

[13] Initial Report (1997), supra note 3.