CRC/C/96/D/144/2021

GE.24-11203 (E) 100924 110924

Committee on the Rights of the Child

Views adopted by the Committee under the Optional

Protocol to the Convention on the Rights of the Child on a

communications procedure, concerning communication

No. 144/2021*, **, ***, ****

Communication submitted by:

Anna Arganashvili, Executive Director of

Partnership for Human Rights (not represented

by counsel)

Alleged victims:

M.L., L.Ko., V.K., L.Ku., Z.J., M.B, G.L., G.Ko.

and 49 other children residing at the

Ninotsminda Saint Nino orphanage

State party:

Georgia

Date of communication:

5 May 2021 (initial submission)

Date of adoption of Views:

24 May 2024

Subject matter:

State party’s failure to protect the rights of

children residing at a closed church-run

orphanage, including against physical and

psychological violence

Procedural issues:

Ius standi; victim status; exhaustion of domestic

remedies; substantiation of claims

Substantive issues:

Best interests of the child; non-discrimination;

right to be heard; freedom of expression;

freedom of association; freedom of religion;

arbitrary or unlawful interference with private

life; prevention of physical and mental violence;

prevention of torture and ill-treatment; rights of

children with disabilities

* Adopted by the Committee at its ninety-sixth session (6–24 May 2024).

** The following Committee members participated in the examination of the communication: Suzanne

Aho, Thuwayba Al Barwani, Aïssatou Alassane Sidiku, Hynd Ayoubi Idrissi, Mary Beloff, Rinchen

Chophel, Rosaria Correa, Bragi Gudbrandsson, Philip Jaffé, Otani Mikiko, Luis Ernesto Pedernera

Reyna, Ann Skelton, Velina Todorova, Benoit Van Keirsbilck and Ratou Zara.

*** Pursuant to rule 8 (1) (a) of the Committee’s rules of procedure under the Optional Protocol to the

Convention on the Rights of the Child on a communications procedure, Sopio Kiladze did not

participate in the consideration of the communication.

**** A joint opinion by Committee members Luis Ernesto Pedernera, Ann Skelton and Benoit Van

Keirsbilck (partially dissenting) is annexed to the present Views.

United Nations

CRC/C/96/D/144/2021

Convention on the

Rights of the Child

Distr.: General

12 September 2024

Original: English

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GE.24-11203

Articles of the Convention:

2, 3, 12, 14, 15, 16, 19, read in conjunction with

37 (a), 20, 23 and 25

Articles of the Optional Protocol:

5 (2) and 7 (e) and (f)

1.1

The author of the communication is Anna Arganashvili, a national of Georgia born in

1979. She submits the communication on behalf of the 57 children who were residing at the

Ninotsminda Saint Nino orphanage at the time of submission of the present communication.

The author claims that these children are victims of violations by the State party of articles 2,

3, 12, 14, 15 and 16, article 19, read in conjunction with article 37 (a), and articles 20 and 23

of the Convention. The author is not represented by counsel. The Optional Protocol entered

into force for the State party on 19 September 2016.

1.2

On 7 May 2021, pursuant to article 6 of the Optional Protocol, the working group on

communications, acting on behalf of the Committee, requested that the State party ensure

immediate access to the orphanage by the relevant monitoring institutions of the State party

in order to verify the conditions and treatment of the children. On 28 June 2021, the Office

of the Public Defender was granted access to, and visited, the orphanage.

1.3

On 7 September 2021, the State party requested that the Committee discontinue the

consideration of the present communication and consider the admissibility of the

communication separately from the merits. On 4 January 2022, the Committee rejected the

State party’s request.

Factual background

2.1

In 2015, the Office of the Public Defender published a report on children’s rights in

orphanages run by the Georgian Orthodox Church and the Muslim confession,1 in which it

identified several violations of the rights of children placed in the Ninotsminda Saint Nino

orphanage, including: frequent physical and psychological bullying among the children;

frequent physical and psychological abuse by caregivers through punishments such as

prostrations, denying meals, locking children in their rooms and forcing them to crawl in

front of other children; and a lack of psychiatric evaluation and assistance despite the high

prevalence of behavioural and emotional disorders at the orphanage. In 2016, the orphanage

was granted a care licence pursuant to the Law on Licensing of Educational Activities. In

2018,2 the Office of the Public Defender published a report on the child welfare system and

the effectiveness of alternative care, in which it further identified the following issues

regarding the orphanage: a lack of sport and other recreational activities; constant supervision

by the staff, not allowing the children any private space; and no possibility of leaving the

premises of the orphanage, which is enclosed by a high fence, without a caregiver.

2.2

M.L. was born on 27 September 2008 and was placed in the orphanage at the age of 3.

M.L. was frequently punished if she urinated in bed and forced to sit with her back to the

television, facing the other children, who were instructed to mock her and call her a

“bedwetter”. Caregivers would often call on older children to “discipline” M.L. and other

children by hitting them with sticks, combs or their hands. On one occasion, a caregiver hit

M.L. with a stick on the forehead and then cut her hair to hide the wound. When M.L. was

around 8 years of age, she was forced to kneel on the floor with a chair in her hands for half

an hour. At the age of 11, M.L. was prescribed psychotic medicines that made her feel sleepy

and drowsy all the time. On 3 June 2021, social workers informed the Agency for State Care

and Assistance for the Victims of Human Trafficking that M.L. and her brother, G.L., wanted

to leave the orphanage, and the Agency for State Care decided to transfer them to a small

group home. They were transferred there on 4 June 2021.

2.3

L.Ko. was born on 10 June 2003. In 2010, she was placed in Zestaponi orphanage

together with her brother, G.Ko., who has a disability. In 2011, they were transferred to the

Ninotsminda Saint Nino orphanage, where they lived for 10 years. Allegedly, during this

1 Office of the Public Defender of Georgia, “Children’s rights monitoring in boarding houses run by the

Georgian Orthodox Church and the Muslim confession”, 2015.

2 Office of the Public Defender of Georgia, “Monitoring of Child Care System – Effectiveness of

Alternative Care”, Tbilisi, 2019.

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time, they had insufficient food, no bed linen, no hygiene products and no access to warm

water or the Internet. Girls were not allowed to wear trousers or leave the building. When

they went outside, it was only ever for a short period of time or to go to school, and the

children were always accompanied by caregivers. According to L.Ko.’s statement, the

caregivers would punish her brother whenever he defecated in his clothes, leaving him in his

soiled clothes and without food for long periods. On 10 June 2021, she left the orphanage,

and her brother was transferred to Saguramo orphanage and subsequently taken to a

psychiatric hospital. L.Ko. stated that, because of the isolation she suffered while at the

orphanage, she is still learning how to be around other people and to communicate with them.

2.4

The author notes that the children at the orphanage had not been monitored by the

official authority since June 2020 and that, on 15 April 2021, the Office of the Public

Defender was denied access to the school to conduct a monitoring visit. On 17 April 2021,

the head of the orphanage publicly stated that he would not allow representatives from the

Office of the Public Defender to enter the school because of the Office’s official support for

the legalization of gay marriage. On 19 May 2021, the Office of the Public Defender was

again denied access to the orphanage.

2.5

On 19 April 2021, the author requested interim measures before the Tbilisi City Court

to ensure that the Office of the Public Defender was granted immediate and unhindered

access to the orphanage in order to carry out effective monitoring activities and examine the

living conditions and treatment of the children. The author alleged that physical and

psychological abuse against the children had been occurring and that there had been

systematic violations of the rights of children with disabilities, who were in an extremely

severe situation. The author specifically referred to violations documented in 2015 and 2018

by the Office of the Public Defender. The author stated that the children were unable to seek

protection through the relevant agencies, were isolated from society and were subject to

continuous surveillance. On 26 April 2021, the author’s request was denied on the grounds

that she had limited authority, as the special status of her non-governmental organization, as

granted by the Ministry of Justice, authorized her to act only on behalf of persons with

disabilities and she had not provided any evidence that any of the children in the facility had

disabilities. The Court further ruled that the violations of the children’s rights had not been

sufficiently substantiated. On 28 April 2021, the author appealed the decision before the

Tbilisi Appeals Court. According to the author, the proceedings before the Appeals Court

were expected to be delayed by several months as a result of the coronavirus disease

(COVID-19) pandemic, during which time the children would remain unprotected in the

absence of any monitoring mechanism.

2.6

On 30 April 2021, the author filed a request with the Agency for State Care to be

allowed to meet with the children residing at the orphanage and provide them with

independent legal assistance, but she received no response from the Agency.

2.7

On 17 May 2021, the Tbilisi Appeals Court dismissed the author’s appeal based on

procedural errors. On 3 June 2021, a criminal investigation was initiated into the alleged

coercion committed against one child at the orphanage. On 4 June 2021, the author lodged

another complaint with the Tbilisi City Court and again requested interim measures for the

transfer of all children at the orphanage, including children with disabilities, to other, State-

run facilities, arguing that no monitoring had been carried out since June 2020 and that the

children’s rights to life, health and protection from violence could be irreversibly violated.

On 5 June 2021, the Court partially upheld the petition, considering that there was a high

probability that the interests of the children might be harmed. It ordered the State authorities

to ensure that the children with disabilities were transferred from the orphanage to other care

facilities. The Court considered that the author was not authorized to lodge the petition on

behalf of the children with no disabilities.

2.8

On 11 June 2021, the author filed another complaint before the Tbilisi City Court

requesting that all children living in orphanages in the State party be deinstitutionalized and

that alternative care solutions be guaranteed, basing her complaint on the living conditions

documented in several institutions, in particular the Ninotsminda Saint Nino orphanage. On

14 June 2021, the Court admitted the complaint, which is still pending.

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2.9

On 28 June 2021, the Office of the Public Defender was granted access to, and visited,

the orphanage, conducting a comprehensive assessment and monitoring activities. By that

time, 27 children, including 7 children with disabilities, had been discharged from the

orphanage, 6 of whom had been reintegrated into their biological families and 21 placed in

alternative State care facilities (e.g. small family-type homes or foster care). In November

2021, the Office of the Public Defender published a report on the situation at the Ninotsminda

Saint Nino orphanage, in which it found: that the children’s individual needs, in particular

their psychosocial needs, were not properly assessed; that there was a lack of qualified staff;

that the children’s special educational needs were not met; that the children were not

socialized or integrated into the outside world, hampering the developmental skills needed

for independent living; that there was a lack of communication with the legal representatives

of children with special needs; that the children were not given adequate food for their

development; that degrading and traumatic forms of punishment were integrated into child-

rearing methods; and that alleged acts of violence were not adequately documented or

investigated. In terms of criminal cases, the Office of the Public Defender found that no

appropriate measures had been taken to protect the children and no investigative activities or

forensic examinations had been conducted for years. Testimonies from children who were

still residing at the orphanage indicated that they were unable to speak freely. On

22 November 2021, there were still 15 children residing at the orphanage, including at least

one child with disability status, granted in 2015.

Complaint

3.1

The author claims to have the authority to lodge the present communication on behalf

of the victims living in the Ninotsminda Saint Nino orphanage at the time of submission. She

argues that the non-governmental organization that she works for, Partnership for Human

Rights, holds the status of special plaintiff granted by the Ministry of Justice.

3.2

The author claims that all domestic remedies have been exhausted, as the Appeals

Court is not expected to hand down its decision for at least three months, during which time

the victims remain unprotected without monitoring by the Office of the Public Defender or

any other government authorities.

3.3

The author claims that the State party has violated article 2 of the Convention, as it

has not reacted in the same way to the claims of violations of the human rights of the children,

including children with disabilities, who are isolated in an institution as it would have reacted

to claims of violations of the human rights of adults isolated in institutions or places of

detention, resulting in age-based discrimination.

3.4

The author further claims that the State party has violated article 3 of the Convention,

as the victims’ situation has not been adequately monitored to ensure an appropriate standard

of care since at least 2015.

3.5

The author claims that the State party has violated article 12 of the Convention by not

ensuring that the views of the victims were heard, considered and given due weight.

3.6

The author contends that the State party has violated article 14 of the Convention for

failing to protect the victims from participation in religious rituals against their will.

3.7

The author claims that the State party has violated article 15 of the Convention by not

ensuring the victims their right to freely meet with their friends outside the institution or

without the constant supervision of their caregivers.

3.8

The author claims that the State party has violated article 16 of the Convention by not

protecting the rights of the children to have private communications with child rights

defenders, in particular the Office of the Public Defender.

3.9

The author claims that the State party has violated article 19, read in conjunction with

article 37 (a), of the Convention, by not protecting the victims against severe forms of

physical and psychological violence, punishment and bullying and by not ensuring that the

children have access to accountability mechanisms, including established procedures for

prevention, identification, referral, investigation, treatment and follow-up in religious

institutions.

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3.10

The author further claims that the State party has violated article 20 of the Convention

by not ensuring special protection to the victims as children temporarily or permanently

deprived of their biological families, and by not ensuring appropriate legal procedures and

safeguards.

3.11

The author claims that the State party has violated article 23 of the Convention by not

ensuring the provision of proper treatment and psychosocial rehabilitation and support for

the victims with disabilities.

3.12

The author requests the Committee to call upon the State party to ensure that the rights

of children, including children with disabilities, are protected in religious institutions, that

institutions meet all the standards required by domestic and international law and that a

deinstitutionalization plan is developed for all children living in large institutions.

State party’s observations on admissibility

4.1

In its observations of 7 September 2021, the State party claimed that the

communication was inadmissible under articles 5 (2) and 7 (e) of the Optional Protocol.

According to the State party, the author’s claim lacks victim status, as the communication

was lodged on behalf of 57 children without their or their parents’ express consent, and the

author has failed to present any evidence demonstrating that there was an attempt to obtain

their consent or a justification as to why it was not possible to obtain such consent. As a

special plaintiff, the author is entitled to represent only the interests of the children with

disabilities before domestic administrative bodies and not the interests of all children placed

in the orphanage. The State party further alleges that the status of special plaintiff was granted

only domestically and does not authorize the author to lodge a communication before the

Committee. The State party argues that the author lodged the communication in a personal

capacity and not as a representative of Partnership for Human Rights.

4.2

According to the State party, the substantive issues raised by the author have been

fully resolved at the domestic level. On 28 June 2021, the Office of the Public Defender was

granted access to, and visited, the orphanage and obtained access to all related criminal

investigations. By June 2021, 27 children, including 7 children with disabilities, had been

taken out of the orphanage. Of those 27 children, 6 were reintegrated into their families and

21 were placed in other, State-run care facilities. A further 11 children had been taken out of

the orphanage by the time of the State party’s observations, and only 15 children remain in

the facility, most of whom have never had any contact with their biological families. The

children still residing at the orphanage have been constantly monitored and provided with

multidisciplinary support by social workers. Following criminal investigations into the

alleged abuse and coercion, 19 caregivers were dismissed, 31 were suspended and only

7 remained employed at the orphanage.

4.3

The State party submits that, since December 2016, the authorities have carried out

several criminal investigations into the alleged physical abuse, rape and coercion committed

against the children at the orphanage and that those investigations are ongoing. The State

party further alleges that, during the investigation process, children were interviewed by the

authorities in the presence of their lawful representatives. These investigations involve

hundreds of procedural and investigative measures to collect the relevant evidence, and the

results of several forensic medical and psychological examinations are pending. According

to the State party, the author therefore failed to await completion of the ongoing

investigations in violation of the requirements established in article 7 (e) of the Optional

Protocol.

4.4

The State party also argues that the author has failed to exhaust domestic remedies.3

On 19 April 2021, the author filed a request for an interim measure before the Tbilisi City

Court, which was rejected on 26 April 2021. On 28 April 2021, the author lodged an appeal

3 Human Rights Committee, R.T. v. France (CCPR/C/35/D/262/1987); and G.J. v. Lithuania

(CCPR/C/110/D/1894/2009); European Court of Human Rights, Mifsud v. France, Application

No. 57220/00, Decision, 11 September 2002, para. 15; İçyer v. Turkey, Application No. 18888/02,

Decision, 12 January 2006, paras. 69–72; and Kudła v. Poland, Application No. 30210/96, Judgment,

26 October 2000, para. 152.

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before the Tbilisi Appeals Court and, on 5 May 2021, without waiting for the Appeals Court

to examine the request, submitted the present communication, claiming that the Appeals

Court would take at least three months to examine the request, without giving the State party

any chance to prove the effectiveness of the domestic judicial system. The State party states

that, on 5 June 2021, the City Court partially upheld the author’s request and issued the

interim measure ordering the transfer of children with disabilities. Therefore, the State party

argues that, by not waiting for the Appeals Court to examine the case and render a decision,

the author failed to comply with the exhaustion requirement under article 7 (e) of the Optional

Protocol.

Author’s comments on the State party’s observations on admissibility

5.1

In her comments of 15 October 2021, the author noted that, as Executive Director of

Partnership for Human Rights, she was entitled to submit applications before national and

international proceedings. Concerning the State party’s argument that the communication did

not contain the views of the children or their parents, the author argues that, at the time the

communication was submitted, neither the author nor the Office of the Public Defender nor

any other relevant actor was allowed to meet with the children and obtain their views.

5.2

The author claims to have applied to the relevant institutions of the State party

multiple times to set up meetings with the victims. On 30 April 2021, the author applied to

the Agency for State Care. On 18 May 2021, she applied to both the Agency’s central and

regional offices requesting permission and assistance to meet individually with every child

to provide legal aid. On 8 September 2021, the author again applied to the Agency, requesting

meetings with both the children who remained at the orphanage and those who had already

left, in order to provide legal aid. No response was received. The author further alleges that

the parents of the children did not have the capacity to make decisions concerning their lives,

since the children were under State guardianship.4

5.3

The author reiterates that the Agency for State Care refused to file a complaint against

the orphanage, that the Tbilisi City Court had declared that the children’s rights had not been

violated and that the Appeals Court had not yet rendered a judgment. The author maintains

that all those means were ineffective in protecting the children’s rights and that the request

for interim measures to the Committee was their last resort.

5.4

Concerning the State party’s argument that all the substantive issues had been resolved,

the author alleges that, while the Office of the Public Defender was granted access to the

school, such access was a prerogative set by law and previously denied by the orphanage,

and yet no investigation has been initiated in that regard. On 28 June 2021, representatives

from the Office of the Public Defender visited the orphanage and issued a series of

recommendations.5 They stated that the children still residing at the orphanage needed the

continuous involvement of specialists and that the Agency for State Care had failed to meet

the children’s psychological and psychiatric needs. During a subsequent visit on

13 September 2021, the Office of the Public Defender raised further concerns about the lack

of documentation, investigation and referral of cases of abuse.

5.5

The author argues that the issuance of an interim measure by the City Court confirms

that there was a real risk of violence against all the children, not only those with disabilities.

Furthermore, 15 children remain institutionalized, those who were transferred were not

properly assessed, and several cases of special educational needs still need to be properly

evaluated. According to the author, the measures taken by the State party were insufficient.

5.6

The author also argues that the criminal investigations have not been effective. The

author states that criminal complaints were filed after the children had left the orphanage, as

the children did not feel safe while they were at the orphanage. The social workers – some of

whom were among the alleged abusers – also represented the children’s interests, creating a

conflict of interest. Although the State party is required to provide independent legal aid,6 the

4 Article 1205 of the Civil Code of Georgia.

5 Office of the Public Defender of Georgia, “Special Report on the Rights of Children in NNLE

Javakheti Ninotsminda St. Nino Boarding School”, 2021.

6 Articles 3, 10 and 15 of the Juvenile Justice Code of Georgia.

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author was denied the possibility of providing such aid, and the children were interviewed

without the presence of a lawyer. The author further argues that there have been numerous

shortcomings in the investigation process, such as delays in initiating the investigation and

in issuing the results of forensic examinations and ineffective and protracted communication,

and several recommendations of the Office of the Public Defender have not yet been

implemented.

5.7

Concerning the exhaustion of domestic remedies, the author argues that the

communication was submitted after an unreasonably prolonged period in which legal

remedies had been applied with no effective relief. The domestic courts initially denied the

interim measure requested by the author in April 2021, and the application submitted to the

Tbilisi City Court on 14 June 2021 remains pending. The author states that undue judicial

delays are a systematic problem in the State party, providing examples of several cases in

which the courts have not rendered any decision. In addition, the Appeals Court did not

render its decision until 15 October 2021, with a delay of six months. Waiting for that

decision before submitting the communication would have meant six more months without

the Office of the Public Defender having access to 57 children who were at risk of violence,

ill-treatment, torture, isolation and other violations of their rights.

State party’s additional observations on admissibility and the merits

6.1

In its observations of 5 May 2022, the State party argued that the author had not

contested that the communication had been lodged without the consent of the victims or their

parents and did not reflect the children’s views. According to the State party, the Agency for

State Care was ready to involve the author had the children expressed their wish to meet with

her. In addition, 25 of the children discharged from the orphanage remain under State care.

Since their discharge from the orphanage, the author has been free to contact the children or

their families, but has failed to do so.

6.2

The State party reiterates that the substantive issues have been fully resolved and adds

that the only child with disabilities who remains at the orphanage has two siblings who

refused to be discharged. The State party adds that several measures have been taken to

deinstitutionalize the children’s care.

6.3

The State party reiterates that not all available domestic remedies have been exhausted,

since the subject matter of the communication is still pending at the domestic level. The State

party recalls that, on 14 June 2021, the Tbilisi City Court admitted the author’s complaint

requesting the deinstitutionalization of all orphanages in the State party.

6.4

The State party further argues that the author’s communication is inadmissible under

article 7 (f), as manifestly ill-founded, as it is based on mere statements and an interpretation

of the factual circumstances, mostly based on the reports of the Office of the Public Defender

and not supported by further evidence.

6.5

Concerning the merits, the State party argues that the orphanage was granted a licence

in accordance with domestic law, and the Agency for State Care had subsequently carried

out constant monitoring, taking all measures necessary to ensure the protection of the rights

of the victims. The State party asserts that every decision was made with the involvement of

multidisciplinary teams and in consideration of the children’s best interests, ensuring their

right to be heard. It argues that the decision to transfer the children was made with due

consideration of their opinions. The Office of the Public Defender enjoys unrestricted access

to the orphanage, and the children have not expressed the desire to meet and/or communicate

with any child rights organization.

6.6

The State party further submits that the social workers reported the alleged violence

against the children to the law enforcement authorities and that, in some cases, the victims

themselves had requested compensation for the non-pecuniary damages resulting from the

alleged discriminatory treatment and damage to their health. The criminal investigations into

the alleged violence against the children were ongoing, and the investigation met the

requirements of effectiveness, promptness, independence and impartiality.

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6.7

In line with the decision of the Tbilisi City Court of 5 June 2021, seven children with

disabilities had been assessed and their specific needs identified: three had been transferred

to small family-type homes and four had been placed in foster care.

Author’s comments on the State party’s additional observations on admissibility and

the merits

7.1

In her comments of 22 August 2022, the author alleged that she had experienced

extensive harassment, aggression and assault from extremist far-right groups and claimed

that the State party had not reacted accordingly.

7.2

The author reiterates that it was impossible to obtain the children’s consent and that

there was no other opportunity to serve justice. She adds that the children who were

discharged have not received adequate psychological rehabilitation upon their

deinstitutionalization and are at risk of secondary trauma. The author obtained the express

consent of M.L. and L.Ko., who had left the orphanage in June 2021 and who were

interviewed in the context of the criminal investigations without the presence of a lawyer.

7.3

According to the Georgian Centre for Psychosocial and Medical Rehabilitation of

Torture Victims, M.L.’s current condition and symptoms are consistent with having endured

traumatic experiences. On 23 March 2022, the author asked the Javakheti District Prosecutor

for information on the status of the investigation, as M.L. had been questioned on 5 June

2021 without the presence of a lawyer. The prosecutor informed the author that M.L. had not

been granted victim status in the investigation and that the author had therefore not been

provided with access to the relevant investigative material. On 1 June 2022, the author

requested the prosecutor to grant victim status to, and to interview, M.L. in accordance with

the Investigative Interview Protocol of the United States National Institute of Child Health

and Human Development. On 28 June 2022, the prosecutor rejected the author’s request and,

on 2 July 2022, again denied M.L. victim status arguing that, according to the conclusions of

the Levan Samkharauli National Forensic Bureau of 7 April 2022, M.L.’s current condition

could not be assessed as being a state of psychological suffering. On 7 July 2022, the author

appealed this decision, and, on 8 July 2022, the superior prosecutor rejected the appeal. On

18 July 2022, the author filed an appeal against the superior prosecutor’s decision before the

Akhaltsikhe District Court. On 1 August 2022, the District Court rejected the appeal, arguing

that the witness statements had been somewhat contradictory and that there was no

convincing and sufficient information that would indicate that a criminal act had been

committed against M.L. by a specific person or persons.

7.4

Concerning the status of the criminal investigations, the author claims that the State

party did not conduct an ex officio criminal investigation into the circumstances described

by the Office of the Public Defender in its reports from 2015 and 2018, failing to fulfil its

positive obligation to protect the rights of the children living in the orphanage. The author

claims that lawyers for the children have been unable to analyse the ongoing investigation

and procedures, as they do not have access to the criminal case materials. Reportedly, the

Prosecutor’s Office has granted victim status to only one child, because the results of the

other children’s psychological examinations have not yet been released, making it impossible

to determine the extent of the psychological damage and harm caused to the children, which

is the legal basis for being declared a victim. The author alleges that the assumption of

committing a crime and inflicting harm should suffice to recognize a person as a victim.7 In

addition, since the prosecutor is investigating allegations of violence and not torture or

degrading and inhuman treatment, the statute of limitations for such crimes has expired.

According to the author, while the State party argues that the civil remedies have been

effective, such remedies are not a substitute for criminal remedies.

7.5

The author argues that, if most of the children were ready for reintegration and/or

deinstitutionalization, the State should have acted promptly and that the current process of

7 Joint statement by the non-governmental organizations Partnership for Human Rights, Sapari and

Social Justice Center, 1 June 2022. Available at https://socialjustice.org.ge/en/products/ninotsmindis-

pansionshi-bavshvta-sistemuri-dzaladobis-faktebze-datsqebuli-gamodzieba-ashkarad-araefektiania.

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deinstitutionalization has been overly simplified, with the children removed and placed in

different settings without proper consideration of their needs.

7.6

The author also argues that the children continue to be denied access to health care.

Moreover, during the visit by the Office of the Public Defender in September 2021, one child

with a physical disability was still living in the orphanage and, in November 2021, during

another visit, it was revealed that yet another child, who had been granted disability status in

2015, remained in the facility, in violation of the Tbilisi Court ruling.

7.7

With respect to the exhaustion of domestic remedies, the author reiterates that the

Tbilisi City Court prevented the Office of the Public Defender from carrying out its

constitutional mandate to monitor care institutions and that domestic remedies were not

explicitly available, effective or sufficient at the time the communication was submitted. The

author further claims that, more than a year after the initial submission to the Committee, no

judicial action has been taken, and most of the children have not been granted victim status.

7.8

With regard to the merits, the author submits that L.Ko. was not allowed to wear

trousers as a form of gender-based discrimination and that both L.Ko. and M.L. were

prevented from expressing themselves and were discriminated against. In these testimonies,

the children also indicated that they had to obey the rules set by caregivers and never

participated in decision-making processes. The victims experienced brutal forms of

punishment while trying to protect each other,8 were prohibited from communicating with

the outside world and were afraid to communicate privately with their parents or any other

external audience or to report violence.

State party’s additional observations

8.1

On 9 December 2022, the State party noted that the author’s alleged claims of

harassment, aggression and assault by extremist far-right groups fell outside the scope of the

present communication. According to the State party, the author failed to demonstrate that

Partnership for Human Rights was the target of the alleged campaigns or suffered any damage

in that regard. Furthermore, the author failed to demonstrate that she had applied to the

relevant authorities concerning such allegations or that they did not respond.

8.2

The State party further argues that M.L. and L.Ko. left the orphanage on 3 June and

9 August 2021, respectively, meaning that the author had the possibility of contacting them

before submitting the communication.

8.3

According to the State party, the children who remain at the orphanage expressed their

preference to stay there; they go to school by themselves and are involved in various activities.

8.4

The State party reiterates its position on the availability and effectiveness of domestic

civil remedies and submits that, while they are not a substitute for criminal investigations,

those remedies largely cover the issues that constitute the basis for the present

communication and that any delay in the criminal investigations has been caused by the fact

that social workers and the investigative authorities learned of the incidents several years

after they had occurred as well as by restrictions linked to the COVID-19 pandemic.

8.5

Concerning the individual cases raised by the author, the State party submits that, on

3 June 2021, M.L. was placed in alternative State care and receives psychological and

psychiatric support, that the relevant investigations are being conducted and that, in its

decision not to grant victim status, the Court stated that the evidence collected thus far did

not satisfy the threshold for reasoned suspicion that damage had been inflicted on the

individual as a result of unlawful conduct. Furthermore, according to the medical

examination report, no signs of mechanical injuries had been identified and no suffering

could be identified based on the psychological examination. On 9 August 2021, L.Ko. was

placed in a small family-type house with her brother G.Ko.; they both attend school and

receive support.

8 Ibid.

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Author’s comments on the State party’s additional observations

9.1

On 3 January 2023, the author noted that, since 2021, the Agency for State Care had

intentionally denied the children access to legal aid or delayed such access. The author claims

that the Agency has continuously stated that it would have allowed access if the children had

expressed such a desire. The author argues, however, that she could not verify that, since she

was not allowed to meet with the children. In addition, the author has been unable to obtain

official information on the whereabouts of the children who have left the orphanage.

9.2

On 1 November 2022, the author applied to the non-governmental organization, SOS

Children’s Village, which provides alternative care to some of the children with disabilities

transferred from the orphanage. On 9 November 2022, the non-governmental organization

reported that four9 of the children had expressed their verbal consent to meet with the author,

but that the Agency for State Care had to grant permission before such a meeting could take

place. After several exchanges, on 16 December 2022, the Agency replied that they would

discuss the issue, without granting permission.

Issues and proceedings before the Committee

Consideration of admissibility

10.1

Before considering any claim contained in a communication, the Committee must

decide, in accordance with rule 20 of its rules of procedure under the Optional Protocol,

whether the claim is admissible under the Optional Protocol.

10.2

The Committee takes note of the fact that the present communication was submitted

on behalf of a group of 57 children who were residing at the Ninotsminda Saint Nino

orphanage under State custody and in isolation at the time of submission, with the author

alleging several violations of the children’s rights under the Convention while they were at

the orphanage. Although not all of the children’s names have been provided by the author,

the Committee considers that, in the light of the circumstances of the case, the victims are a

group of individuals who are identifiable to the State party and who have victim status for

the purposes of article 5 (1) of the Optional Protocol.

10.3

The Committee takes note of the State party’s argument that the communication is

inadmissible under article 5 (2) of the Optional Protocol, as it was lodged without the victims’

express consent and the author has failed to present any evidence that she attempted to obtain

such consent or that of the parents, or to justify why that was not possible, in particular since

most of the children were discharged and transferred to family-type homes or reintegrated

into their biological families following the Committee’s interim measure request. The

Committee also takes note of the State party’s argument that, as a special plaintiff at the

domestic level, the author has the right to represent only the children with disabilities residing

at the orphanage and that she submitted the communication in a personal capacity and not as

a representative of Partnership for Human Rights.

10.4

The Committee observes that the State party’s arguments relate to an alleged lack of

locus standi or legitimacy on the part of the author to represent the victims before the

Committee. Regarding the author’s alleged inability to represent the children without

disabilities given her special plaintiff status at the domestic level, the Committee considers

that article 5 (2) of the Optional Protocol does not impose any specific formal requirement in

terms of who can file an individual communication before the Committee on behalf of alleged

victims. The Committee therefore considers that the author’s domestic status does not

constitute an obstacle to act on the children’s behalf before the Committee.

10.5

Regarding the victims’ alleged lack of consent, the Committee recalls that, under

article 5 (2) of the Optional Protocol, when communications are submitted on behalf of

individuals or groups of individuals, they must be submitted with the victims’ consent, unless

the author can justify acting on their behalf without such consent. In the present case, the

Committee takes note of the author’s undisputed statement that, at the time of submitting the

present communication, she had repeatedly requested to meet the victims, that her requests

9 V.K., L.Ku., Z.J. and M.B.

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GE.24-11203

11

had all been denied by the Agency for State Care as the children’s guardian and that there

had been no other possibility to obtain the children’s consent, as all access to the orphanage

had been suspended. While the State party has noted that the children did not express an

interest in obtaining legal aid from the author, the Committee considers that this is not a

justification for denying them the opportunity of meeting with the author to understand the

importance of legal aid, form their opinion and eventually give their informed consent. The

Committee also notes that the author subsequently provided a power of attorney for M.L. and

L.Ko. and, on several occasions, but to no avail, requested access to the children who

remained at the orphanage and to the four children residing at SOS Children’s Village who

had verbally expressed their interest in being legally represented by the author. The

Committee further notes that the author, in her capacity as Executive Director of a human

rights organization in the State party, had filed several complaints on behalf of the victims at

the domestic level, one of which had been admitted, and that she had also requested interim

measures, which were partially granted. In the light of the above, the Committee considers

that the author has adequately justified that she had a legitimate interest in acting on behalf

of the victims and that she could not reasonably obtain access to the 15 victims who remained

at the orphanage on 22 November 2021 and to V.K., L.Ku., Z.J. and M.B, placed in the SOS

Children’s village, all of whom currently remain under State guardianship and access to

whom has been denied to the author. The Committee therefore concludes that the author has

justified, for the purposes of article 5 (2) of the Optional Protocol, that she is acting on behalf

of M.L., L.Ko., V.K., L.Ku., Z.J., M.B. and the 15 children still residing at the orphanage in

November 2021 without their consent.

10.6

The Committee considers, however, that the author has failed to justify that she

attempted to contact the other 36 victims who were transferred from the orphanage in 2021

to seek their consent to be represented before the Committee or that such contact was not

possible. Therefore, the Committee considers that the communication regarding these

36 children is inadmissible under article 5 (2) of the Optional Protocol.

10.7

The Committee takes note of the State party’s argument that the author has failed to

exhaust domestic remedies, given that, on 5 June 2021, the Tbilisi City Court partially upheld

the author’s request and issued the interim measure ordering the transfer of the children with

disabilities to other care facilities and, on 14 June 2021, the Tbilisi City Court admitted the

author’s second complaint requesting that all functioning orphanages in the State party be

deinstitutionalized and that alternative care solutions be guaranteed for the children residing

therein, with a decision on that complaint pending. However, the Committee also takes note

of the author’s argument that these remedies were unreasonably prolonged and ineffective.

In the light of the context and the fact that the courts have still not taken a final decision on

the author’s complaints after almost three years, without any reasonable justification, the

Committee considers that the domestic judicial proceedings were unreasonably prolonged.

10.8

Regarding the State party’s argument that the author has failed to exhaust domestic

remedies because she failed to await the outcome of the pending investigations into the

alleged physical abuse, rape and coercion committed against the children at the orphanage,

the Committee takes note of the author’s uncontested statement that all but one of the children

have been denied victim status in these proceedings and, as a result, they have not been given

access to criminal case files, thus impeding their access to justice,10 and that some of these

proceedings have become statute barred. Therefore, the Committee considers that these

proceedings were ineffective.

10.9

In the light of the above, the Committee considers that there is no obstacle to the

admissibility of the communication under article 7 (e) of the Optional Protocol.

10.10 The Committee considers that the author has failed to substantiate her allegations

under articles 2, 14, 15 and 16 of the Convention concerning alleged age-based

discrimination against the children when compared with adults placed in closed institutions,

their freedom of religion, their right to peaceful assembly and interference with their privacy,

respectively.

10 A.B.A. et al. v. Spain (CRC/C/91/D/114/2020, CRC/C/91/D/116/2020, CRC/C/91/D/117/2020 and

CRC/C/91/D/118/2020), para. 9.2.

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GE.24-11203

10.11 The Committee considers, however, that the author has sufficiently substantiated, for

the purposes of admissibility, her claims that the rights under articles 3, 12, 19, 20, 23 and

37 (a) of the Convention of the 21 victims for whom the communication is deemed

admissible have been violated in relation to the State party’s alleged failure to protect them

against violence and provide accountability for such treatment. The Committee also

considers that the author’s allegations concerning the lack of adequate monitoring of the

treatment of those victims while at the orphanage raises, in substance, issues under article 25

of the Convention. The Committee declares this part of the communication admissible and

proceeds with its examination of the merits.

Consideration of the merits

11.1

The Committee has considered the present communication in the light of all the

information made available to it by the parties, in accordance with article 10 (1) of the

Optional Protocol.

11.2

The Committee takes note of the author’s allegations that the State party failed to

protect the 21 victims for whom the communication is deemed admissible against violence,

abuse and ill-treatment at the orphanage, to monitor the situation of the children residing

therein and to investigate such alleged violations and ensure accountability.

11.3

The Committee must first determine whether, by allegedly failing to protect against

violence and abuse the 21 victims for whom the communication is deemed admissible, the

State party breached its obligations under the Convention. The Committee recalls that

article 37 (a) of the Convention requires States parties to ensure that no child should be

subjected to torture or other cruel, inhuman or degrading treatment or punishment. This is

complemented and extended by article 19, which requires States parties to take all appropriate

legislative, administrative, social and educational measures to protect children from all forms

of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment

or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or

any other person who has the care of a child.11 Under article 20, children deprived of their

family environment are entitled to special State protection and assistance. The Committee

notes that article 19 is phrased in both substantive and procedural terms. Concerning the

substantive element, the Committee takes note of the author’s allegations relating to physical

and psychological violence and corporal punishment against those 21 victims, as documented

in the reports of the Office of the Public Defender and by the children’s testimonies, including

beatings, food restrictions, forcing children to stay in wet beds or wet clothes, covering their

eyes with clothing, spilling cold water on them in the winter, forcing them to stay in certain

positions without moving and to carry heavy objects and leaving them naked on the tiled

floor. Testimonies also refer to children being medicated to keep them calm and being abused

by caregivers, who would threaten the children with more punishment if they reported the

incidents. The Committee observes that these types of incidents have occurred systematically

since at least 2015. It was also revealed in the reports of the Office of the Public Defender of

2015 and 2018 that the children had experienced bullying, that children with psychosocial

issues or challenging behaviour had been subjected to violence as a form of discipline and

that children with disabilities and certain children with psychiatric conditions had received

improper medical care. The Committee recalls that the State’s positive obligation of

protection assumes particular importance in the context of a public service with a duty to

protect the health and well-being of children, especially where those children are particularly

vulnerable and are under the exclusive control of the authorities.12 The Committee further

recalls that it has defined “corporal” or “physical” punishment as any punishment in which

physical force is used and is intended to cause some degree of pain or discomfort, however

light. In the view of the Committee, corporal punishment is invariably degrading. In addition,

there are other non-physical forms of punishment that are also cruel and degrading and thus

incompatible with the Convention, including, for example, punishment that belittles,

11 General comment No. 8 (2006) on the right of the child to protection from corporal punishment and

other cruel or degrading forms of punishment, para. 18.

12 European Court of Human Rights, Nencheva and Others v. Bulgaria, Application No. 48609/06,

Judgment, 18 June 2013, paras. 106–116 and 119–20; and X. and Others v. Bulgaria, Application

No. 22457/16, Judgment, 2 February 2021, para. 180.

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GE.24-11203

13

humiliates, denigrates, scapegoats, threatens, scares or ridicules a child.13 The Committee

further recalls that the burden of proof cannot rest solely on the author of the communication,

especially considering that the author and the State party do not always have equal access to

evidence and that frequently the State party alone has access to the relevant information.14

11.4

Where, despite prohibition and positive education and training programmes, cases of

corporal punishment come to light outside the family home – in schools, other institutions

and forms of alternative care, for example – prosecution may be a reasonable response.

Children and their representatives in all such placements must have immediate and

confidential access to child-sensitive advice, advocacy and complaint procedures and,

ultimately, to the courts, with necessary legal and other assistance. In institutions, there

should be a requirement to report and to review any violent incidents.15

11.5

The Committee observes that the State party has not contested the treatment alleged

by the author but rather noted that the victims were under constant monitoring, that most of

them had been deinstitutionalized by 2021 and that every decision affecting the children was

made with the involvement of multidisciplinary teams and in consideration of the children’s

best interests. However, the Committee takes note of the author’s uncontested allegations

that monitoring visits were suspended from 20 June 2020 to the end of April 2021. It takes

further note of her allegations, as confirmed by the testimonies of former residents of the

orphanage and in the reports of the Office of the Public Defender since 2015, that children

were transferred to other alternative care facilities without properly considering their needs

and/or views, that access to lawyers was not granted and that the monitoring visits of the

Office of the Public Defender resumed in 2021 but without the children being given a safe

space to communicate with the monitoring teams. The Committee further observes that

access to lawyers and other legal representatives continues to be restricted for children under

State care.

11.6

The Committee notes that there were at least eight children with disabilities residing

at the orphanage, two of whom reportedly still reside therein. The Committee also notes that,

after the communication was submitted, seven children were assessed, with particular needs

identified, three were transferred to small family-type homes and four were placed in foster

care. The Committee notes that children with disabilities who were transferred to SOS

Children’s Village expressed their verbal consent to meet with the author. The Committee

has often expressed its concern at the high number of children with disabilities placed in

institutions. The quality of care provided, whether educational, medical or rehabilitative, is

often much inferior to the standards necessary for the care of children with disabilities

because of a lack either of identified standards or of implementation and monitoring of these

standards. Institutions also represent a specific setting in which children with disabilities are

more vulnerable to mental, physical, sexual and other forms of abuse and to neglect and

negligent treatment.16 Moreover, the Committee recalls that, during consideration of the State

party’s fourth periodic report, 17 the Committee urged the State party to accelerate the

deinstitutionalization process, ensure sufficient alternative family- and community-based

care options for children deprived of a family environment, in particular for children with

disabilities, and reinforce reintegration services. The Committee observes that children with

disabilities were subjected to physical and psychological abuse and further observes the

numerous reports of the Office of the Public Defender documenting the lack of access to

special educational and psychological support for children with disabilities. The Committee

further notes that children with disabilities have not been granted access to independent

lawyers despite their expression of interest and that the State party did not provide

information about how such children are being heard or how they are indeed participating in

the protection measure process or the criminal investigations. The welfare of children with

disabilities should involve a clear statutory dimension so that incumbent public authorities

13 General comment No. 8 (2006), para. 11; N.B. v Georgia (CRC/C/90/D/84/2019), para. 7.2; and

CRC/C/GEO/CO/4, para. 21.

14 See, for example, D.D. v. Spain (CRC/C/80/D/4/2016), para. 13.3.

15 General comment No. 8 (2006), para. 43.

16 General comment No. 9 (2006), para. 47.

17 CRC/C/GEO/CO/4,, para. 30.

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GE.24-11203

are fully aware of their obligations and are thus able to ensure adequate, disability-sensitive

care.18

11.7

In the light of the above, the Committee concludes that the State party failed to protect

the rights of the 21 victims for whom the communication is deemed admissible, who were

deprived of their family environment and some of whom had disabilities, in violation of their

rights under article 19 (1), read in conjunction with article 37 (a), and articles 20 and 23 of

the Convention.

11.8

As to the procedural element contained in article 19 (2) of the Convention, the

Committee takes note of the author’s argument regarding the alleged lack of an effective

criminal investigation into the author’s claims of corporal punishment. The Committee

recalls that the investigation of instances of violence, whether reported by a child, a

representative or an external party, must be undertaken by qualified professionals who have

received role-specific and comprehensive training and requires a child rights-based and child-

sensitive approach. Rigorous but child-sensitive investigation procedures help to ensure that

violence is correctly identified and to provide evidence for administrative, civil, child-

protection and criminal proceedings. The Committee notes that investigations into such

instances of child maltreatment should be effective, in the sense that they should be capable

of leading to a determination as to whether the alleged victim suffered corporal punishment

at the institution and to the identification of those responsible. The Committee recalls that

this is not an obligation of result, but of means. The authorities must take the reasonable steps

available to them to secure evidence concerning the incidents. Furthermore, the

investigations should also be conducted with promptness and reasonable expedition.19

11.9

In the present case, the Committee observes that, in the criminal proceedings, only

one child has been granted victim status and the others are considered witnesses and their

testimonies were taken without the presence of a lawyer, and that these children and their

lawyers have not had access to the relevant investigative materials. The Committee also notes

that most alleged offences have become statute barred. The Committee observes that, since

2015, very few investigations have been initiated and those that have are ongoing. Although

one child has been recognized as a victim, forensic examinations of that child did not

recognize the harm suffered during childhood, and specialized protocols to conduct

psychological assessments have not been considered. The Committee recalls that children

who are victims of, or witnesses to, a crime must be given an opportunity to fully exercise

their right to freely express their view in accordance with the Guidelines on Justice in Matters

involving Child Victims and Witnesses of Crime.20 In particular, this means that every effort

must be made to ensure that children who are victims or witnesses are consulted on the

relevant matters with regard to involvement in the case under scrutiny, and able to express

freely, and in their own manner, views and concerns regarding their involvement in the

judicial process.21

11.10 The Committee observes that, in the present case, the children did not have legal aid

during the questioning by the police or during the forensic examinations and that the forensic

examinations were conducted without using the Investigative Interview Protocol of the

United States National Institute of Child Health and Human Development . The Committee

also notes that, according to the information provided by the State party, only one child has

been granted victim status, as the results of the other children’s psychological examinations

have not been released, making it impossible to determine the extent of the psychological

damage and harm caused to them. The Committee notes that, at least in the case of M.L., the

District Court established that, in the criminal case materials, there was not sufficient,

convincing information that would indicate that a criminal act had been committed against

M.L. by a specific person or persons or that met the threshold for reasonable presumption

under the Criminal Code. The Committee further observes that none of the other children nor

their lawyers have been granted access to the relevant investigative materials and that most

18 CRPD/C/GBR/CO/1, paras. 20 (d) and 21 (d).

19 N.B. v. Georgia, para. 7.6; and European Court of Human Rights, V.K. v. Russia, Application

No. 68059/13, Judgment, 7 March 2017, paras. 168–184.

20 Economic and Social Council resolution 2005/20, paras. 8, 19 and 20.

21 General comment No. 12 (2009) on the right of the child to be heard, paras. 62–63.

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GE.24-11203

15

alleged crimes in the joint criminal investigation are time barred. The Committee recalls that,

in all proceedings involving children who are victims of violence, the celerity principle must

be applied, while respecting the rule of law, and that criminal law procedures must be strictly

applied in order to abolish the widespread practice of de jure or de facto impunity, in

particular of State actors. The Committee also recalls that rigorous but child-sensitive

investigation procedures are needed to ensure that violence is correctly identified and to help

to provide evidence for administrative, civil, child-protection and criminal proceedings.22

The Committee notes that the State party has not provided enough information about such a

rigorous investigation approach and that, on the contrary, the investigative authorities have

not given due weight to the children’s testimonies and have not taken into account the context

of systematic violence documented by the Office of the Public Defender. The Committee

notes that, almost 10 years after the first complaint was lodged with the prosecutor, the

investigations are still ongoing, without any significant developments.

11.11 In the light of the foregoing, the Committee concludes that the national authorities

have not shown due diligence in investigating the numerous allegations of violence, abuse

and ill-treatment promptly and effectively, in violation of the State party’s obligations under

articles 3 (1) and 3 (2) and article 19, read in conjunction with article 37 (a), of the Convention.

11.12 The Committee observes that the State party has provided general information about

the subsequent transfer of the children and the ongoing criminal investigations but that it has

failed to provide detailed information to explain how the best interests of the 21 victims for

whom the communication is deemed admissible were a primary consideration during the

placement and/or transfer to alternative care and the investigation process23 and how their

right to be heard has been ensured. The Committee also notes that the State party did not

specify the type of special needs assessment conducted for the children with disabilities,

where the children were taken or the type of support being provided to each child. The

Committee takes note of the author’s allegations that children at the orphanage were not

allowed to freely meet with the Office of the Public Defender, lawyers, non-governmental

organizations or even family members, which directly affected their ability to freely express

their views or submit complaints about any possible violation of their rights. The Committee

observes that the victims did not have access to any type of complaint mechanism and that

the few children who submitted a criminal complaint did so after they had left the institution.

Moreover, children who expressed an interest in meeting with a lawyer have not been given

the possibility to meet with one. Furthermore, the Committee considers that the State party

has not provided sufficient evidence about how the children have been heard during the

criminal proceedings. The Committee therefore considers that the State party did not provide

information on how the children were informed about their right to ask for legal aid, the

relevance of such aid and its consequences within the criminal proceedings, in order to make

an informed decision on whether they wanted such aid, or about their role as witnesses and

how this could affect them.

11.13 The Committee recalls that article 12 (2) of the Convention specifies that opportunities

to be heard have to be provided, in particular, in any judicial and administrative proceedings

affecting a child, such as decisions about his or her education, health, environment, living

conditions or protection, and that a child cannot be heard effectively where the environment

is intimidating, hostile, insensitive or inappropriate for his or her age. The Committee also

recalls that the purpose of article 3 of the Convention is to ensure that, in all actions

undertaken concerning children by a public or private welfare institution, courts,

administrative authorities or legislative bodies, the best interests of the children concerned

are a primary consideration. States parties are consequently under an obligation to consider

not only the individual situation of each child when identifying their best interests, but also

the interests of children as a group. Moreover, States parties must examine the actions of

private and public institutions, authorities and legislative bodies. Mechanisms must be

introduced to ensure that children in all forms of alternative care, including institutions, are

able to express their views and that those views are given due weight in matters of their

22 General comment No. 13 (2011) on the right of the child to freedom from all forms of violence,

paras. 51 and 54.

23 A.E. v. Spain (CRC/C/87/D/115/2020), para. 12.9; and general comment No. 14 on the right of the

child to have his or her best interests taken as a primary consideration, para. 30.

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placement, the regulations of care in foster families or homes and their daily lives.24 The

Committee further recalls that children with disabilities are not often heard in separation and

placement processes. It is essential that children with disabilities are heard in all procedures

affecting them and that their views are respected in accordance with their evolving capacities.

Moreover, children with disabilities should be provided with whatever mode of

communication they need to help them to express their views.25

11.14 In the light of the foregoing, the Committee concludes that the State party has failed

to ensure the rights of the 21 victims for whom the communication is deemed admissible to

be heard and to express their views with regard to their placement in institutions, alternative

care or foster care, as well in the context of criminal proceedings, in violation of the State

party’s obligations under articles 3, 12 and 23 of the Convention.

11.15 The Committee takes note of the author’s uncontested allegations that monitoring

visits were suspended from June 2020 to the end of April 2021 and that the Office of the

Public Defender was denied access to the orphanage at least twice in 2021, preventing it from

adequately monitoring the victims’ human rights situation and ensuring appropriate care

standards. It further notes that, after visits resumed, confidential meetings between the

children and the monitoring authorities were not allowed. The Committee also takes note of

the author’s allegations that the children were transferred from the orphanage to other, State-

run care facilities without proper assessment of their needs and that the State party did not

provide detailed information in this regard. The Committee recalls that all decisions on care,

treatment, placement and other measures concerning a child must be reviewed periodically

in terms of his or her perception of time, and his or her evolving capacities and development,26

and that competent authorities should be able to, independently and effectively, monitor,

promote and protect children’s rights27 to ensure placement and care standards. In the light

of the above, the Committee concludes that the State party failed to ensure a periodic review

of the treatment provided to the 21 victims for whom the communication is deemed

admissible as children in State care, in violation of articles 3 (3) and 25 of the Convention.

12.

The Committee, acting under article 10 (5) of the Optional Protocol, is of the view

that the facts before it disclose violations by the State party of articles 3, 12, 20, 23 and 25

and article 19, read in conjunction with article 37 (a), of the Convention.

13.

The State party is under an obligation to provide effective reparation to the victims,

including by: providing adequate, comprehensive and timely compensation and rehabilitation

for the violations suffered; issuing a public apology to the victims; reassessing the situation

of those still under State care in line with the Convention; and conducting an effective,

independent and prompt investigation of all criminal cases and prosecuting those found

responsible. Reparation measures should be determined in coordination with the victims to

ensure that their views and opinions are taken into consideration. The State party is also under

an obligation to take all steps necessary to prevent similar violations from occurring in any

private or public institution, in particular by: ensuring the regular independent monitoring of

such centres in the State party; guaranteeing that the entity responsible for the independent

monitoring of such centres in the State party can effectively exercise its mandate, with the

possibility of visiting such places at any time and conducting confidential interviews with the

children; ensuring that there is an effective child-centred complaint system in all kinds of

care institutions that is confidential, accessible, gender-sensitive and child-friendly;

guaranteeing access to legal aid and appropriate legal representation for all children who need

support in exercising their rights or who have to appear in court; and ensuring that

investigations into every allegation of a violation of the rights of a child are conducted with

due diligence and that such a procedure is followed each time a child is the victim of a crime

or offence.

24 General comment No. 12 (2009), paras. 32, 34, 70, 72 and 97.

25 General comment No. 9 (2006) on the rights of children with disabilities, paras. 32 and 48.

26 General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a

primary consideration, para. 93.

27 General comment No. 2 (2002) on the role of independent national human rights institutions in the

promotion and protection of the rights of the child, para. 7.

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14.

In accordance with article 11 of the Optional Protocol, the Committee wishes to

receive from the State party, as soon as possible and within 180 days, information about the

measures it has taken to give effect to the Committee’s Views. The State party is requested

to include information about any such measures in its reports to the Committee under

article 44 of the Convention. The State party is also requested to publish the present Views

and to disseminate them widely in the official and the regional language of the State party.

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GE.24-11203

Annex

[English only]

Joint opinion of Committee members Luis Ernesto

Pedernera, Ann Skelton and Benoit Van Keirsbilck

(partially dissenting)

1.

While we agree with the conclusion reached by the Committee in this case, we dissent

from the majority decision that the communication is inadmissible under article 5 (2) of the

Optional Protocol regarding the other 36 victims who were also residing at the Ninotsminda

Saint Nino orphanage at the time of the submission of the present communication. In addition,

we believe that the Committee should have gone further concerning the State party’s

obligations and the modalities for providing effective reparations to the victims.

A

On admissibility

2.

The author of the communication acted on behalf of the 57 children residing at the

orphanage on 5 May 2021. The Committee considered that the author had failed to justify

why she was acting without the consent of the other 36 victims who were transferred from

the orphanage in 2021 (see para. 10.6). The Committee therefore considered the

communication to be inadmissible regarding those 36 victims. The Committee decided that

the author adequately justified that she was acting on behalf of, but without the consent of,

the 15 children still residing at the orphanage on 22 November 2021, the 4 children (V.K.,

L.Ku., Z.J. and M.B) placed in the SOS Children’s Village, and M.L. and L.Ko., who gave

their express consent to the author (see paras. 7.2 and 10.5).

3.

However, in our view, the Committee should have considered the communication

admissible regarding all 57 children who were residing at the orphanage at the time of the

submission of the communication.

4.

Article 5 (2) of the Optional Protocol establishes that, when a communication is

submitted on behalf of a group of individuals, this should be with their consent unless the

author can justify acting on their behalf without such consent. Rule 13 (3) of the rules of

procedure under the Optional Protocol indicates that communications may be submitted on

behalf of alleged victims without such express consent, provided that the author can justify

his or her action and the Committee deems it to be in the best interests of the children

concerned.

5.

While we value the importance of children’s consent and of seeking their agreement

to act on their behalf as far as possible throughout the procedure, we believe that this

obligation must be assessed on a reasonable basis, having regard to the circumstances of the

case. Similar to the Committee’s decision in S.N. et al. v. Finland,1 we believe that, in the

particular circumstances of the present case, the author had limited communication with the

victims, depriving the author of a realistic possibility of obtaining their consent. The

Committee took note of the author’s repeated claim that it was impossible to obtain the

children’s consent and that there was no other opportunity to serve justice (see para. 7.2).

The author argued that, by the time the communication was submitted, neither the author nor

the Office of the Public Defender nor any other relevant actor was allowed to meet with the

children and obtain their views (see para. 5.1). In addition, the State party affirmed that,

between June 2021 and May 2022, 32 beneficiaries had been discharged from the orphanage,

25 of whom remain under State care (see para. 6.1). In September 2021, the author asked the

Agency for State Care for a meeting with the children who remained in the orphanage and

the ones who had already left, but no response was received (see para. 5.2). We therefore

1 S.N. et al. v. Finland (CRC/C/91/D/100/2019), para. 10.3.

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GE.24-11203

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believe that the author adequately justified acting on behalf of all 57 victims and we would

have found the present communication admissible regarding all of them.

B.

On the merits

6.

In our view, all 57 children who were residing at the orphanage at the time of the

submission of the communication were victims of violations by the State party.

7.

The Committee took note of the author’s allegations that the State party failed to

protect the victims against violence, abuse and ill-treatment at the orphanage and to

investigate such alleged violations and ensure accountability (see para. 11.2). The Committee

also took note of the author’s argument, under article 19 (2) of the Convention, regarding the

alleged lack of an effective criminal investigation into the author’s claims of corporal

punishment (see para. 11.8).

8.

The Committee noted that rigorous but child-sensitive investigation procedures

helped to ensure that violence was correctly identified. The Committee also observed that

investigations into instances of child maltreatment should be effective, in the sense that they

should be capable of leading to a determination as to whether the child concerned suffered

corporal punishment at the institution and to the identification of those responsible (see

para. 11.8).

9.

In this regard, the Committee observed that, during the criminal proceedings, only one

child had been granted victim status and the others were considered witnesses. Since 2015,

very few investigations have been initiated and all of them are ongoing (see para. 11.9). The

Committee noted that only one child had been granted victim status, as the results of the other

children’s psychological examinations had not yet been released, making it impossible to

determine the extent of the psychological damage and harm caused to them (see para. 11.10).

10.

The Committee therefore concluded that the State party’s national authorities had not

shown due diligence in investigating the numerous allegations of violence, abuse and ill-

treatment promptly and effectively (see para. 11.11). The analysis of the case led the

Committee to conclude that the State party was under the obligation to provide effective

reparation to the victims, including adequate, comprehensive and timely compensation and

rehabilitation. The State party is also under the obligation to conduct, with due diligence,

investigations into every allegation of a violation of the rights of a child (see para. 13).

11.

We fully support the Committee’s conclusion. Nevertheless, we believe that the

Committee should have provided a more precise determination of the steps that the State

party should take to ensure effective reparation to the victims.

12.

The Committee has already established that States parties’ special obligations

regarding violence against children include due diligence, the obligation to prevent violence

and violations of human rights, the obligation to investigate and to punish those responsible

and the obligation to provide access to redress for human rights violations. It has also

ascertained that effective remedies include compensation to victims and access to redress

mechanisms.2

13.

Children’s right to reparation is also recalled in the Guidelines on Justice in Matters

involving Child Victims and Witnesses of Crime,3 in which the necessity for children who

are victims of violations to receive reparation to achieve full redress, reintegration and

recovery is also noted. In the Guidelines, it is also stated that procedures for obtaining and

enforcing reparation should be readily accessible and child-sensitive and that:

Reparation may include restitution from the offender ordered in the criminal court,

aid from victim compensation programmes administered by the State and damages

ordered to be paid in civil proceedings. Where possible, costs of social and educational

reintegration, medical treatment, mental health care and legal services should be

2 General comment No. 13 (2011), paras. 5 and 56.

3 Economic and Social Council Resolution 2005/20, paras. 35–37.

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GE.24-11203

addressed. Procedures should be instituted to ensure enforcement of reparation orders

and payment of reparation before fines.

14.

In the light of the above, and in view of the State party’s lack of action to date, it is

our view that the remedy should include more specificity to ensure effective reparation to the

victims. We would have requested the State party to set up a procedural mechanism to

develop an effective reparation road map in order to proactively identify the victims of

violations of children’s rights, conduct individual assessments of each victim, establish the

quantum of damages, which may differ with respect to each child, define the corresponding

reparation and ensure the payment of financial compensation to the victims, including

measures to ensure that they have independent control of the funds if paid out during

childhood or that the funds are held securely for children until they reach adulthood, where

needed.