Opinion

Why Is Social Sensitivity Required for Judges

by | Mar 31, 2012

Vakhushti Menabde is human rights lawyer.

About a month ago Tbilisi Appellate Court delivered a judgment in a case involving a person with a disability, who was represented in court by Georgian Young Lawyers’ Association. The respondents were the legal entity of public law Social Service Agency at the Ministry of Labor, Health and Social Affairs of Georgia and the Social Rehabilitation Center for Persons with Disabilities Ltd. Having already lost the dispute in the court of first instance, the plaintiff was trying to prove the rightfulness of his claim in the Appellate Court, writes Vakhushti Menabde, human rights lawyer.

Under the Law on State Pension, pecuniary benefit for the status of a person with disability is awarded only to individuals that suffer from an obvious and significant form of disability, whereas the law does not provide for pensions for persons with moderate disabilities. Various statuses of disabilities and how they are determined are provided in the order of the Minister of Social Affairs.

The plaintiff underwent medical and social examination in 2009 and subsequently received the status of a person with significant disabilities. Specifically, it was determined that he suffered from III-IV degree coxarthrosis of hip joint flexion, with a significant movement disorder. He had undergone a surgery on one leg for placement of endoprosthesis. The surgery significantly improved his medical condition. For certain reasons he was unable to undergo the same surgery on the other leg, which would have improved his condition even more. As a result, the plaintiff had endoprosthesis in one leg and coxarthrosis on another.

Therefore, subsequent to the medical examination he received a status of a person with moderate disability, as opposed to a status of a person with a significant disability.

According to the Minister’s order, a person who suffers from coxarthrosis on both legs is entitled to pecuniary benefit. The same applies to persons with prosthesis in both legs. When any of the two conditions affect only one leg, the degree of disability is reduced and pecuniary benefit is no longer provided. However, the order says nothing about individuals with endoprosthesis in one leg and coxarthrosis on another.

The plaintiff’s position was that the court’s decision should not be based on word-by-word interpretation of the norm; instead, the court should be guided by the spirit of law, focusing on the actual medical condition of the plaintiff. The plaintiff was demanding meaningful analysis of facts that would have demonstrated that his disability was more grave than that of persons with prosthesis on both legs. Therefore, he thought that it was only fair for him to be entitled to pecuniary benefit.

The court did not uphold the plaintiff’s position.

The legal philosophy behind determining the status of a person with disabilities in Georgia is derived from a medical paradigm, evaluating the gravity of the medical condition of the individual concerned, as opposed to his/he opportunity to integrate in the social environment. This is a very old approach that has long been abandoned by developed societies. This model is rather flawed as it fails to give an actual evaluation of a person’s condition since it is considered that the degree of social engagement may frequently differ among individuals suffering from the same medical condition. Another huge shortcoming of the model is that it provides for a “norm” where individuals should fit in; otherwise, medicine turns to correction as a means to resolve the problem.

However, the issue in this case is that the state fails to thoroughly implement the existing medical problem and provides with persons suffering from relatively mild illnesses with more social support than to persons suffering from more serious medical conditions. Although this is obvious, neither the Agency which changed the status of the individual, nor courts who agreed with the Agency can see it. But the truth is that the case provides for an easy opportunity to return pecuniary benefit to the individual by means of teleological interpretation of the applicable act.

When Parliament founds a legal institute, it sets a general policy. Norms adopted by Parliament are quite abstract. Therefore, Parliament is unable to envisage all problems in a detailed and scrupulous manner. Executive orders adopted on the basis of such laws serve the purpose of further specifying them and/or developing a mechanism for its enforcement. Although lawmakers are required to be more precise, considering normative nature of such acts, they may contain generalizations to a certain extent. The judiciary, as the third branch of government, should act in the most precise manner. It should tailor abstract norms to individual cases and fill voids left by the norms according to its inner belief. Therefore, the court needs more empathy to understand the essence of the problem in the first place, examine it and make a socially adequate decision. The Georgian judiciary lacks such a practice.

Currently the case has been submitted to the Supreme Court, which is the last chance for the Georgian judiciary to deliver justice in the case concerned.

 



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