For over a year Georgia has been trying to deal with a pandemic caused by the spread of the novel coronavirus. The effects of this endeavor have left no domain of social relations untouched. The spread of the pandemic most severely affected basic human rights, as it was their restriction that became the main tool in the fight against the pandemic.
This fight against the pandemic can be divided into three stages in Georgia: before the state of emergency, during the state of emergency, and under the de facto state of emergency. The latter ‘launched’ on May 23, 2020, and it is related to the transfer of extraordinarily large powers by the Parliament to the Executive.
Constitutional democracy and the rule of law in Georgia face many challenges. Trust towards the independent constitutional institutions and the judiciary is significantly low. An issue to be considered is the refusal by the opposition parties to enter Parliament. These factors lead to the questioning of the existence of effective political or legal control over the extraordinarily increased powers of the executive.
Almost a year has passed since entering into the de facto state of emergency. Numerous constitutional rights were restricted during this period. Many substantive and procedural problems were identified both in terms of setting restrictions and enforcing them. Every part of it has negatively affected the quality of human rights protection and the rule of law in Georgia. This report focuses on the main problems identified in this regard.
Despite radical changes in the epidemiological situation in Georgia, the curfew has been in place for over half a year. A number of circumstances point to the conclusion that the Government is not using the curfew as a measure of last resort.
According to GOOGLE reports, over the past 4 months, the share of time spen at home in the Georgian population has increased only by 2%. [compared to the data prior to the pandemic. No study conducted in Georgia that would evaluate the effectiveness of the curfew when other restrictions were lifted or eased is currently publicly available.
The largest number of violations (31% of the total) were detected in Tbilisi. This is followed by Kvemo Kartli, which had 9% of the violations.
Including the data for February 2021, 93 403 fines were issued for violations of the rule for wearing a mask. It is highly likely that a majority of these fines is unlawful.
Approximately 92% of the offenses detected by health services took place in three cities. Tbilisi (69%) Batumi (14%) Kutaisi (9%)
About 30% of the administrative offenses detected by the Labour Conditions Inspection Department fall within the first two months, June and July 2020.
In August, only two economic entities across Georgia were fined.
A. Regarding the Parliament of Georgia
- The Parliament of Georgia has fully delegated the authority to restrict basic human rights during the pandemic to the Executive branch.
- In a pandemic, the role of parliament in restricting basic human rights is effectively exhausted by merely delegating powers to the Executive.
- On December 29, the Parliament supported the extension of the delegated authority to the executive by 6 months. The decision was reached in the first reading.
- The effectiveness of parliamentary oversight has been weakened due to the boycott by the opposition parties in entering the Parliament.
- In the aftermath of the October 31, 2020, parliamentary elections, oversight over the executive in terms of pandemic management has been ineffective.
- Only 3 questions were sent to the Executive by the Members of the 10th convocation of Parliament with regards to human rights. The Executive has not responded to any of them. The time limit to respond set by the Rules of Procedure of the Parliament is already exhausted for 2 of the questions.
B. Regarding the Executive Branch
- All major decisions on pandemic management issues in Georgia, including the restriction of basic human rights, are initiated by the Interagency Council, which is the deliberative body of the government. All members of the Executive are simultaneously members of the Council as well. The Interagency Council has no rules of the procedures. The government only determined its composition.
- The meetings of the Interagency Council are closed. The Georgian government has not yet responded to our written request to be allowed to attend these meetings.
- The Operational Headquarters is established on the premises of the National Security Council and is accountable to the Interagency Council. One of the functions of the Operational Headquarters is to issue permits/passes (granting the freedom of movement during the curfew).
- In the process of issuing permits/passes, several legal problems pose risks of unequal treatment, circumvention of the formal order, and violation of several fundamental rights.
- The impression remains that the executive cannot cope with the organizational burden caused by the prolonged curfew.
- The risks of issuing permits/passes are exacerbated by the complete opacity of the process. E.g., the body that coordinates permits/passes does not process information on how many people across the country enjoy having the so-called Multi-pass.
- There is no research publicly available conducted within Georgia that would assess the extent of the positive effects of the current curfew regime and the degree of its effectiveness in terms of pandemic retention [It is unknown whether such a document exists].
- According to Google, despite the curfew, the number of people staying at their places of residence has increased by only 2 percent in the last 4 months [compared to the pre-pandemic indicator].
- The impression remains that the state does not use the curfew as an extremely necessary measure narrowly tailored to the exigencies. The duration of the curfew calls into question the proportionality of this instrument.
Judicial and Civil Oversight
- The proper exercise of civil oversight is substantially impeded by the restriction of access to information. Public institutions usually do not proactively publish many important pandemic-related data.
- The vast majority of responses to public information requests provided by public institutions were issued in violation of the deadlines prescribed by law. Moreover, the data provided often proved to be incomplete.
- It is clear that both the common courts and the Constitutional Court do not respond promptly to current systemic legal problems related to the pandemic.
Regarding the enforcement of Covid regulations
- Signs of punitive and exemplary punishment or intimidation of persons exercising freedom of expression [manifestation/protest] were identified.
- Quantitative reasoning decisions made by the Executive pose an increased threat of religious discrimination.
- All fines imposed for violating the rules of wearing a mask outdoors until February 18, 2021, are highly likely to be illegal. As of February 2021, 93,642 fines have been imposed for violating the rules of wearing masks.
- As of February 2021, the Ministry of Internal Affairs has detected 8,737 cases of violating the rules of the state of emergency, and 10431 cases of violation of the rules of isolation and quarantine. In addition, the “Ministry of Health” has detected 181 cases of violation of Covid regulations by economic entities.
- Enforcement of regulations on economic entities was particularly weakened in August 2020. Only 2 violations were detected by the “Ministry of Health” throughout Georgia during this period. 90% of the violations revealed by the “Ministry of Health” fall in three main cities (Tbilisi, Batumi, Kutaisi).
- 38% of the violations of isolation and quarantine rules identified by the MIA is from Tbilisi. Adjara and Kvemo Kartli share second place with 11%, while Kakheti is in the third place with 9%.
- According to the number of violations detected jointly by the Ministry of Internal Affairs and the “Ministry of Health”, Tbilisi ranks first, with 31% of violations, followed by Guria with 5%.
- In total, the Ministry of Internal Affairs of Georgia and the Labour Conditions Inspection Department imposed fines amounting to over 50,000,000 GEL during the pandemic.
- Due to a lack of relevant data provided by public institutions, there are some unresolved questions regarding the process of detecting violations of Covid-19-related regulations, as well as the enforcement of detected violations.
The involvement of the Parliament in restricting basic human rights during the pandemic must be increased. The Parliament should utilize all of the oversight instruments assigned to it by the Constitution and the Rules of Procedure. The issues regarding the curfew should be the subject of parliamentary debate.
The legal vertical of pandemic management needs to be refined. Transparency and the involvement of the Interagency Council should be increased. The procedures for the activities and decision-making of the Interagency Council should be clearly defined.
The Government, the National Security Council (Operational Headquarters), and the Ministry of Internal Affairs should ensure proactive access to open data and information related to pandemic management and enforcement.
The state should pay special attention to the protection of equality in the process of introduction and enforcement of Covid related regulations.
Common and Constitutional Courts should give priority to cases that have challenged the constitutionality/legality of existing restrictions on pandemic management.
The common courts should ensure that decisions on pandemic cases are published and/or otherwise accessible.
This publication has been produced with the assistance of the European Union. Its contents are the sole responsibility of the Institute for Development of Freedom of Information (IDFI) and do not necessarily reflect the views of the European Union.
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