February 11, 2021 decision of the First Panel of the Constitutional Court of Georgia and its motivation is extremely alarming, it significantly deviates from the legal reasoning, constitutional standards and the country’s reality in general. We believe that the decision contains significant risks of arbitrary and unilateral decisions of the executive branch of government.
On February 11, 2021, the Constitutional Court issued a ruling declaring that restrictions of basic human rights (freedom of assembly, freedom of movement, property rights) during a pandemic by a government decree and a ministerial order were constitutional. With this decision, the parliament could factually remove its authority in the most critical situation of the country and refuse to perform its legislative function.
We believe that the Constitutional Court ignored existing constitutional standards and based its decision on the factual circumstances inapplicable to the reality, for example:
- The Court argues that imposed restrictions do not have any long-term effect on the country’s social, economic, cultural, legal or political development. The fallacy of this argument can be easily seen at the onset of the pandemic and the introduction of restrictions when compared to the concurrent economic downfall of Georgia, recovery from which could possibly take years.
- The Court also highlights that the impugned norms are not repressive in nature (“aimed at punishing or depriving persons of their liberty”), which lowers the risk of arbitrariness. It is illogical to point out the non-repressive nature of the appealed norms, when the violation of accepted restrictions result in a fine of 2000 GEL, and in case of recurrence, criminal liability.
- At the same time, the Court considers the intensity of the imposed restrictions (for example, restrictions of the forms of movement, the number of persons allowed to attend different type of gatherings or the number of persons allowed in the car, etc.) to be so insignificant that it does not render them important enough to be discussed in public. As established regulations have in fact defined the society’s way of life and as it has had a significant impact on our daily lives, noted reasoning is particularly troubling.
It is noteworthy that the appointment of some of the authors of the decision of the Constitutional Court has raised significant questions in public. The appointment procedures of April and June 2020 of Vasil Roinishvili and Khvicha Kikilashvili, judges of the common courts by the plenum of the Supreme Court of Georgia was expedited during the state of emergency/restrictions and was assessed as a flawed and an opaque process.
It is noteworthy that the decision of the Constitutional Court is accompanied by the dissenting opinion of a member of the Constitutional Court, Judge Giorgi Kverenchkhiladze, who considered the norms establishing the delegation of powers to be unconstitutional.
We believe that the decision irreversibly damages the reputation of the most cardinal institution, the Constitutional Court of Georgia, and threatens the principle of separation of powers, which negatively affects the human rights situation in Georgia.
Georgian Democracy Initiative (GDI)
Transparency International Georgia (TI Georgia)
Open Society Georgia Foundation (OSGF)
Institute for Democracy and Safety Development (IDSD)
Tolerance and Diversity Institute (TDI)
Human Rights Education and Monitoring Center (EMC)