On October 23, 2020, the International Society for Fair Elections and Democracy (ISFED), the Georgian Democracy Initiative (GDI) and the Human Rights Center (HRC) organized the presentation of the study on “Democracy and Human Rights during pandemic and the state of emergency”. A group of the researchers invited by the GDI and the ISFED has studied the legal basis and the International standards as well as the measures undertaken by the Government of Georgia in the fight against the novel coronavirus (COVID-19). The HRC has provided legal aid to persons who have suffered due to the measures undertaken by the Georgian Government. The project has been implemented with the financial support of the Open Society Georgia Foundation.
The aim of the research was on the one hand the critical analysis of the legislative basis and preparation of relevant recommendations in terms of the existing deficiencies and, on the other hand, the assessment of the constitutionality of the regulations imposed by the Government of Georgia in relation to the pandemic during the year 2020. Taking into consideration the above-mentioned, the study consists of two main parts:
Part I presents the existing deficiencies in the Georgian legislation in terms of fight against pandemic and declaration of the state of emergency. The following legislative acts have been studied: The Constitution of Georgia, the Laws of Georgia on “State Of Emergency”, on “Public Safety” and on “Public Health”. With regard to the revealed deficiencies, recommendations have been drafted in order to reach efficiency in the fight against the pandemic as well as to avoid imposition of arbitrary limitations on the implementation of human rights and the threat to the democratic processes.
Part II analyses the constitutionality of the declaration of the state of emergency and the other measures undertaken by the Government of Georgia. In this regard, the influence of the restrictive measures imposed by the Georgian Government before, during and after the declaration of the state of emergency on the human rights and their constitutionality has been examined. The present study assesses the constitutionality of the adopted legal acts in terms of the formal (the presence of the legal basis for their adoption, the delegation of power and etc.) and material constitutionality (to what extent the imposed restrictions complied with the principle of proportionality and whether the measures undertaken were relevant, necessary and proportional for the achievement of the legitimate aim (protection of public health)) as well as in terms of compliance with the constitutional principles (principle of legal certainty, separation of powers, leg3al security and etc.). It should also be noted that the aim of the paper was not to evaluate the impact of the measures imposed during the pandemics/state of emergency on the certain (vulnerable) groups and to study the enjoyment of their constitutional rights.
The normative acts assessed by this study include the Decree of the President of Georgia issued on March 21, 2020; Ordinance #164 of the Government of Georgia issued on January 28, 2020; Resolution #181 issued on March 23, 2020 and Resolution #322 issued on May 23, 2020 and other subordinate normative acts adopted on their basis as well as individually. The study analyses the restricting measures introduced from January 28, 2020, until September 30, 2020.
The study includes examination of different constitutional models of declaration and management of state of emergency, their impact on human rights as well as the legal acts of several countries regarding the prevention of infectious diseases.
The main findings – Part I (analysis of the legal basis)
The study revealed a number of the deficiencies in the Georgian Constitution and several laws which, on the one hand, do not provide the effective mechanism in fight against pandemic and, on the other hand, allow the possibility of imposing disproportionate restrictions on the implementation of human rights.
Hereby, we present the most substantial deficiencies:
- The Constitution does not clearly stipulate that the state of emergency shall be declared only in case of real threat to the statehood and/or to the constitutional order;
- The Prime Minister plays the main role in the declaration of the state of emergency, the determination of its length and issuance of the decree. Thus, participation of the Parliament and the President has only formal character;
- The Decree restricting the fundamental rights enters into force immediately after its issuance and, before parliamentary approval. Thus, the restrictions enter into force without the prior involvement of the legislative body;
- The declaration of state emergency during pandemic makes it possible to suspend constitutional norms guaranteeing fundamental rights;
- · The constitution does not contain a specific norm concerning the delegation of powers (including the power to restrict fundamental rights), to the executive authority. This enables the transfer of fundamental decision-making power into the hands of the executive;
- The declaration of the state of emergency might impede the organization of elections and a referendum, as well as the revision of the constitution even when the state of emergency is declared only in a small territory of the country and when there is no necessity for the suspension of these processes;
- Most of the emergency measures (restrictions on the movement, curfew, control of the mass-media, prohibition of strikes and etc.) stipulated by the Law “on the State of Emergency” violate the constitutional rights of the citizens mainly due to lack of proportionality and legal certainty;
- The Law “on State of Emergency” allows to introduce measures that unconstitutionally suspend the powers of the local self-governing bodies;
- The Law on “Public Safety” does not provide special regulations necessary for the efficient management of emergency situations related to epidemic;
- The declaration of state of emergency related to epidemics has not been fully regulated and the role of the Parliament has been ignored;
- The Georgian Law on “the Public Health” includes a number of measures (isolation, quarantine, prohibition of activities, obligation to name the contacts of the infected, inspecting baggage, goods and postal parcels and etc.), that violate the requirements of formal and material constitutionality and thus infringe the fundamental rights;
- The accountability of the government during the state of emergency/emergency situation and the efficient control by the Parliament is ignored;
- · There is no prompt and efficient judicial control to protect rights and remedy violations during the state of emergency/emergency situations.
Taking into account the above-mentions shortcomings, we recommend to substantially revise the existing legislation and to consider the best international practices, which are in conformity with the Georgian Constitution.
We would like to underline the importance of the following issues:
- Restricting the fundamental rights during pandemic while ensuring adherence to general standards. It is especially important that the restriction is provided by law and complies with the principles of proportionality, predictability and equality;
- Law must contain a clear definition of subject, content, aim and scope of fundamental rights restrictions. Only secondary, formal issues and other issues necessary for the implementation of the restrictions may be delegated to the executive;
- Types, content and conditions for application of specific restrictions of human rights must be formulated.
- Suspension of constitutional norms by decrees issued during the state of emergency should not be allowed.
- The standard regulating the proposal to issue a decree/to declare state of emergency or emergency situation must be determined as well as the standard regulating the reasoning and substantiation of the proposal.
- The Parliament, with the participation of the President and the Prime Minister, should be able to hold discussions in order to consider substantial and material issues pertaining to the approval of the Decree on the state of emergency.
- The Parliament should be granted the power to partially approve or abolish the state of emergency/ the Decree on the state of emergency.
- The maximum term for the validity as well as for the extension of duration of the state of emergency should be determined;
- The government should immediately inform the Parliament about the declaration of state of emergency;
- The Parliament should be given the power to partially or fully abolish the state of emergency;
- The Prime Minister should be obliged to present the special periodic reports to the Parliament during the state of emergency.
- Procedural time limits and expedited proceedings should be set for the judicial review of legality and constitutionality of human rights restrictions imposed during the state of emergency/emergency situation.
- Measures undertaken in fight against pandemic should be divided into three regimes: normal situation, emergency situation, state of emergency.
The main findings – Part II (Constitutionality of the measures imposed by the Government of Georgia)
The measures undertaken before the declaration of the state of emergency were mostly in conformity with the principle of proportionality and the restricting measures were proportionate as well. However, the measures were problematic in terms of formal constitutionality. This means that the Georgian Government did not have legislative authority to adopt subordinate normative acts restricting the constitutional rights (the orders imposed restrictions on the freedom of movement, right to education and etc). Moreover, despite their normative content, the Government of Georgia issued some of the legal acts as orders (individual acts). At the same time, the restriction of the right to fair trial, namely the violation of the principle of publicity presented a serious problem. Moreover, this restriction threatened the enjoyment of the right to fair trial by the parties as the distant court hearings had technical deficiencies, including the difficulties in ensuring confidential communication between the defendant and the lawyer during the court hearing. Isolation and quarantine rules are also worthy of special attention. The legislative regulation of isolation and quarantine and its implementation was a serious issue that caused highly intensive and unconstitutional restriction of the right to inviolability of freedom. Finally, it should also be mentioned that the measures undertaken during this period that limited the functioning of the private companies were mostly of recommendatory nature and in this regard no legally binding document was adopted.
While declaring the state of emergency, the Government of Georgia failed to justify the existence of the condition of declaring the state of emergency, namely the existence of a situation, which could pose a threat to the statehood or the constitutional order. The Government also failed to justify that the declaration of the state of emergency was extremely necessary. The extension of the state of emergency for one month was even more problematic in this regard. The discussions arranged around this issue in various consultative bodies prior to the declaration of the state of emergency deserve positive assessment, as opposed to scarce discussions in the Parliament of Georgia. The fact that the Prime Minister failed to attend the parliamentary sessions deserves negative assessment as well. The Declaration of the country-wide state of emergency lacked a proper justification which was especially necessary considering the fact that by the time of the declaration the epidemiological situation was worrisome only in several regions of Georgia.
Most of the measures undertaken during the state of emergency had the problem of unconstitutionality. One should underline the issue of granting the executive government broad discretion (also the issue of sub-delegation), which on the one hand, created the problem of unpredictability and threatened the principle of legal certainty and, on the other hand, increased the risks of arbitrariness and abuse of power. Moreover, broad delegation of powers violated the principle of the separation of powers as the executive branch of the Georgian Government was granted the authority to impose rules different from the existing legislation and, thus, to replace the legislative body (for example, this issue concerns the right to liberty , right to have access to the public and personal information kept in the public institutions, the right to timely and fair proceedings by the administrative bodies, the right to education and etc.).
In terms of right to liberty the isolation and quarantine rules were problematic because individuals subject to them lacked procedural guarantees and the possibility of obtaining judicial control, which directly contradicts the requirements stipulated by Article 13 of the Constitution of Georgia. This study also pays attention to practical problems concerning the placement of persons in quarantine zones and the blanket approach of ignoring the interests of the certain groups, such as the children and the persons with disabilities.
In terms of freedom of movement, the imposition of curfew, the prohibition of the movement by mechanical transport, restrictions on freedom of movement for the elderly persons above 70, prohibition of transportation of more than three persons by a car were unconstitutional (though the latter restriction limits the right to property more rather than the freedom of movement). Each of these measures failed to comply with the requirements of the proportionality principle, in particular, they were not a useful and/or the necessary mean for achieving the legitimate aim (public health protection). The constitution was also violated by introducing liability for not carrying the ID card. Finally, no constitutional problems have been found in terms of the suspension of flights and movement of public transport during the state of emergency.
In terms of inviolability of personal and family life, the prisoners’ right to visits was suspended. In this regard, no constitutional problems have been found if one does not pay attention to several shortcomings revealed in practice.
In terms of the right to have access to the public and personal information kept in the public bodies, the study has revealed that the undertaken measure (suspension of the defined deadlines for the provision of the requested information) was not necessary and the government could have used a less restrictive measure by allowing individuals interested in obtaining information to receive this information by distant means within the timeframes set by the law.
With regards to the right to timely and fair administrative proceedingsthe formal requirements of the constitution have been violated by unconstitutional sub-delegation. Namely, the Georgian Government sub-delegated the power to regulate administrative proceedings to several ministries despite the fact that neither the Decree nor legislation had given it the authority to do so.Furthermore, some measures were more restrictive than necessary for the achievement of the legitimate aim. Moreover, the study has found instances of abuse of power. For example, the Minister of Justice has, by her order determining the rules applicable to provision of the notary services, introduced a prohibition on certification of the agreement on extracorporeal fertilization by public or private notarial deed if one of the parents was a citizen of a foreign country. This restriction was discriminatory and intentional.
The restrictions imposed on the freedom of assembly were of blanket nature. Taking into consideration the importance of freedom of assembly and manifestations in a democratic society, much more persuasive arguments were needed to justify interference in this right. Contrary to the case law of the constitutional court, the Government of Georgia placed the social and individual gatherings into the scope of the freedom of assembly, although neither the provisions of the decree nor the existing legislation was sufficient for restricting these rights and, thus, the restriction was unconstitutional. The problem of blanket approach is also relevant in this regard.
The restrictions imposed on freedom of entrepreneurship and the right to property were too strict and thus substantially damaged the Georgian economy. The measures undertaken failed to comply with the constitutional principles of legal certainty, legal trust as they changed via amendments very rapidly and frequently and, thus, were unpredictable. Restriction on the freedom of entrepreneurship also violated the principle of proportionality. In particular, the restrictions were not a necessary and the least restrictive measure. Besides the restrictions imposed on the right to entrepreneurship, some of the entrepreneurs also suffered from the measures limiting the right to property as they were unable to use their property according to its inherent, normal functions. At the same time. this restriction was also disproportionate.
With regards to the right to education, there was no legal ground for restricting this right by suspending the educational process and allowing only distant learning. Therefore, this restriction was formally unconstitutional. Moreover, switching to distance learning regime in fact deprived many young people of the possibility to receive the education as they did not have access to modern technologies and the internet.
The violation of the principle of publicity and of the right to fair trial has continued during the state of emergency as well as the technical problems preventing the ordinary course of hearings.
The liability for violation of the introduced rules was imposed based on formally unconstitutional norms asPresident did not possess the constitutional authority to determine the scope of liability by the decree. Moreover, the sanctions introduced for violation of the rules were of blanket (and of disproportionate) nature and ignored the gradation of the gravity of offences. The procedural guarantees of the individuals were not sufficiently ensured due to the shortcomings of the administrative procedural code.
With regard to religious gatherings, the state did not fulfill the positive obligation of the protection of citizens from the transmissible diseases imposed by the right to life and did not introduce sufficient measures stipulated by law.
Substantial decrease in the number and the scope of restrictions after the termination of the state of emergency should be regarded as a positive step. For example, the number of measures concerning the freedom of assembly and freedom of movement has substantially decreased. At the same time, the number of the allowed economic activities has increased and the study has found no violation of the right to have access to the public/personal information.
In spite of the above-mentioned, the problems pertaining to the isolation and quarantine rules and their management have remained and a new discriminatory approach has emerged towards the Georgian citizens, who are still subject to unconditional quarantine regime unlike the citizens of some of the foreign countries. One should also mention the unconstitutional restrictions on the right to freely leave the territory of Georgia whereas at the same time, Turkey had its land border open. This situation created serious problems to persons employed in Turkey.
We hope that the Government of Georgia will take into consideration the findings and recommendations presented in this study and will bring the Georgian legislation and the relevant practice in conformity with the Georgian Constitution and, also, will consider the best international practices.