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Address of Civil Society Organizations and Lawyers on Limitation of Freedom of Religion in Draft Amendments to the Constitution of Georgia

02.08.2017

 
To the President of Georgia,
To the Parliament of Georgia,
To the European Commission for Democracy through Law (Venice Commission)
To Special Rapporteur on freedom of religion or belief, United Nations Human Rights Office of the High Commissioner
To the Committee of Ministers of the Council of Europe
To European Commission against Racism and Intolerance (ECRI)

Address

Signatory organizations and lawyers would like to share our position regarding the draft amendments to the Constitution of Georgia, that concern freedom of religion and belief. We would like to draw your attention to the opinions presented in the following address and ask to act in accordance with your mandate.

A Draft Law on the Amendment to the Constitution of Georgia [1] passed its second hearing in the Parliament at a spring session in 2017. The amendments drafted within the scope of constitutional reform affected the provisions that concerned the freedom of religion. On 19 June 2017, the Venice Commission released its opinion on the draft constitutional amendments and urged the state to revise a number of provisions therein. The Commission commented on the content of the provision concerning the freedom of religion too. Before the second reading of the draft law, Georgian non-governmental organizations expressed their opinions and made remarks about the freedom of religion provisions.[2]
 
Broadening the restrictions on the manifestations of freedom of religion
The effective wording of the Constitution of Georgia allows restrictions of manifestations of the freedom of speech, thought, conscience, religion, and belief only if these manifestations violate the rights of others.

Before the second hearing of the constitutional changes in the parliament, the Venice Commission expressed its opinion concerning the existing restrictions. In the Commission’s view, these restrictions create the risk that, in order to achieve an adequate balance between the protection of the right and competitive interests, the scope of this right will be interpreted too narrowly or the restriction ground “violation of the rights of others” will be interpreted too broadly.

On the pretext of sharing the recommendation of Venice Commission, the parliament of Georgia, during the second hearing, formulated the provision in the following way:
“These rights may be subject to such restrictions as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of crime, protection of health, administration of justice or protection of the rights of others.”[3]
With such wording, the state, instead of narrowing the restrictions (as recommended by the Venice Commission), broadened them, even more so, to such an extent that went above and beyond the restrictions specified in Article 9 (Freedom of thought, conscience and religion) of the European Convention on Human Rights and Article 18 of the International Covenant on Civil and Political Rights.
For example, the grounds of limitation specified in Article 9 of ECHR do not include: national security; prevention of crime; administration of justice.
We would like to focus on the use of “national security” as a legitimate aim for restricting the freedom of religion.
According to the European Court of Human Rights (ECHR), it is unacceptable to restrict the freedom of religion on the ground of “national security.”[4] In the ECHR’s view, this approach is at the foundation of a democratic society.[5]
The European Convention on Human Rights views national security as a ground applicable for restricting only the right to a fair trial, right to respect for private and family life, freedom of assembly and association and freedom of movement. It rules out the application of this ground for the restriction of freedom of religion.
Limitations and derogations therefrom provided in the International Covenant on Civil and Political Rights are discussed in the so-called Siracusa Principles which deem it unacceptable to restrict freedom of religion on the ground of national security even in time of emergency (para. 29-32; para. 58).[6]

A similar approach is applied in Article 18 of the International Covenant on Civil and Political Rights too. According to General Comment No. 22 of the Office of the United Nations High Commissioner for Human Rights (OHCHR), the right to freedom of thought, conscience and religion shall not be restricted on grounds not specified in Paragraph 3 of Article 18. This right shall not be restricted on those grounds either which are allowed as restrictions to other rights protected in the Covenant. Such grounds, for example, are “national security” and “prevention of crime.” Nor may restrictions be imposed for discriminatory purposes or applied in a discriminatory manner.[7]
It is important to underline that a possibility to apply restrictions established in the Convention concerns the manifestation of religion. Nevertheless, judging by the explanations of members of parliamentary majority, the motivation behind the restrictions in Paragraph 3 of Article 16 of the draft constitution smacks of a desire to interfere with the Forum Internum.[8] Besides, unlike current edition of the Constitution, in Article 16 of the proposed amendments, the word “manifestation” disappeared, which was setting strict limits for restriction (According to the current version of the Constitution, “it is inadmissible to interfere with the rights listed in the article, if their manifestationdoes not violate the rights of others.”)
Paragraph 3 of Article 16 (concerning the restriction of the right) of the draft Constitution of Georgia does not conform with the approach applied by the Constitutional Court of Georgia to the freedom of religion. According to the Constitutional Court of Georgia, a ground of restriction of the freedom of religion (“protection of rights of others”) is an additional protection guarantee for a person since a possibility to restrict the right is limited in the constitution to the necessity to protect rights of others.[9] Moreover, it concerns only forum externum whereas forum internum is absolute and may not be subjected to limitations of any kind. The Constitutional Court notes that the freedom of religion belongs to that category of rights which shall not be restricted for the attainment of national security, safety or other public aims.[10]
At the end of the day, the effective restriction on the freedom of religion (“protection of rights of others”) establishes a higher standard of protection of the right as compared to the proposed wording. Broadened restrictions on the freedom of religion and the use of those public interests as a ground which overstep the principles of the European Convention on Human Rights and the International Covenant on Civil and Political Rights and standards established by the Constitutional Court of Georgia, create a high risk of disproportionate interference in the freedom of religion, belief and conscience protected in the constitution.
Moreover, the broadening of restriction grounds, which are specified in the draft constitution, raises serious concerns because illegal restriction of religious freedom and inadequate and ineffective response to such facts from the state are, unfortunately, commonplace in Georgia.
The new wording is oriented on creating a broad range of grounds allowing disproportionate interference with and restriction of the freedom of religion that may build a basis for political legitimization of discrimination against religious associations. Such an expectation rests on statements[11] made by the Chairman of Defense and Security Committee of Parliament and the Speaker of Parliament. One should also recall recent attitudes of executive authorities towards the restriction of religious freedom. For example, a draft strategy for the development of state policy on religion,[12] drawn up by the government in 2015, identifies religious/ethnic minority groups living in coastal regions as a threat.
All in all, the only conclusion which can be drawn out from the draft law is that lawmakers want to weaken the foundation of ensuring the freedom of belief and religious diversity. Authors of the draft law did not provide explanations which would highlight the aim of mentioned amendments. All this may put a court in a difficult situation, which will come to face a problem of interpreting the content of this provision[13].
 
Restriction of freedom of religion and belief through the role of the Orthodox Church
Article 8 of the Draft Constitution, unlike the current provision, considers freedom of belief and special role of the Orthodox Church as proportional/equal.[14]
The provision of the current edition recognizes separately: a. full freedom of religion; b. special role of the Orthodox Church in the history and its independence from the State. However, following the Constitutional amendments, the structure of this norm is amended. According to the draft Constitution: “together with freedom of religion and belief, the State recognizes the special role of the Apostolic Autocephalous Orthodox Church of Georgia [...]”
 New provision of the Draft Constitution can be read differently and create grounds for the assumption that the State restricted freedom of religion and belief through recognizing the role of the Orthodox Church. Such formulation of the provision is a step towards deterioration of human rights standard.
Negative expectations are reinforced by the statements of representatives of the ruling party, including the position of the Prime Minister of Georgia that repudiates the role of secularism in Georgia.[15]
 It is significant that the freedom of religion has been one of the most problematic issues throughout the history of independent Georgia. The State does not respond adequately to crimes committed on religious grounds; the principle of secularity stipulated by law is often violated at public schools[16]; the State does not express its readiness to resolve problems related to the property of religious minority organizations; religious communities are often deprived of the possibility to enjoy their rights granted by the Georgian legislation and to build places of worship[17]; Religious minority organizations, compared to the dominant religious organization, Georgian Orthodox Church, are treated unequally in terms of taxation and property rights, that stem from the particular provisions of Georgian legislation etc.
Based on the aforementioned, we consider:
New formulation on restriction of freedom of religion provided in the paragraph 2, Article 16 of the Draft Constitution should be assessed negatively. The State has broadened the scope of restriction of freedom of religion instead of narrowing it; this provision of the Draft Constitution creates the risks of interference with freedom of religion on broader grounds towards all religious organizations, including dominant religious group – the Georgian Orthodox church;
Article 8 of the Draft Constitution, according to which freedom of belief and special role of the Orthodox Church are considered as equal values, should be assessed negatively. Such approach creates the grounds for the assumption that the State restricted freedom of belief and religion through recognizing the role of the Orthodox Church, thus deteriorating the human rights standard.
Therefore, we appeal to:
The Parliament of Georgia,
To observe adequate balance between two interests, to consider only protection of the rights of others guaranteed with the Constitution and international norms as the grounds for restriction of freedom of belief, conscience and religion, not to create threats of restriction of freedom of religion disproportionately with newly developed legitimate aims that cannot conform to the test of necessity and will interfere with sphere protected by paragraph 1 of the Article 19 of the Constitution (part 1 of the Article 16 of the Draft Constitution).
 Furthermore, do not amend Article 9 of the Constitution of Georgia (Article 8 of the Draft Constitution) in a way that does not allow for foreseeability of the provision and can be read as weakening the standard of protection of freedom of religion.  
The President of Georgia,
We urge you to use your veto power regarding the part of constitutional amendments that deteriorate the standards of protection of freedom of religion.
The European Commission for Democracy through Law (Venice Commission)
We urge you to assess paragraph 3 of the Article 16 of the Draft Constitution, as it goes beyond the essence of recommendation 876/2017 of the Venice Commission, the standards set by European Convention of Human Rights and other international acts and by the ECHR case-law.   
Special Rapporteur on freedom of religion or belief, United Nations Human Rights Office of the High Commissioner
We ask you to study and assess the presented amendments on freedom of religion provided for within the frameworks of the current constitutional amendments and the related risks;  
Committee of Ministers of the Council of Europe,
We urge you to assess formulations regarding freedom of religion developed within the process of constitutional amendments that the signatory organizations consider as threats.
European Commission Against Racism and Intolerance (ECRI)
We ask you to consider the presented amendments on freedom of religion provided for within the frameworks of the current constitutional amendments and the related risks.
 
Signatories:

  • Tolerance and Diversity Institute (TDI)
  • Georgian Young Lawyers Association (GYLA)
  • United Nations Association of Georgia (UNAG)
  • Human Rights Centre
  • Georgia’s Reforms Associates (GRASS)
  • Georgian Democracy Initiative (GDI)
  • Media Development Foundation (MDF)
  • Equality Movement 
  • Identoba
  • Partnership for Human Rights (PHR)
  • Judicial Empowerment and Legal Education Center at Ilia State University
  • Center for Constitutional Studies of School of Law at Ilia State University
  • Tbilisi Free University National Institute for Human Rights
  •  Konstantine Kublashvili, Professor at Ilia State University, head of Judicial Empowerment and Legal Education Center at Ilia State University
  • David Zedelashvili, Constitutional law expert
  • Giorgi Meladze, Lawyer, Professor at Ilia State University
  • Levan Ramishvili, Professor of School of Law at Ilia State University
  • Tamar Gurchiani, Associate Professor of School of Law at Ilia State University 
  • Giorgi Burjanadze, Constitutional law expert
  • Giorgi Chitidze, Lawyer
  • Dimitri Gegenava, Associate Professor at Sulkhan-Saba Orbeliani Teaching University, Director of Davit Batonishvili Institute of Law
  • Mikheil Sharashidze, Lawyer



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