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Freedom of Religion during the State of Emergency

April 16, 2020
COVID-19 has already become a global challenge. It has challenged all aspects of our lives – economics, politics and everyday life of the people. 

For the prevention of the spread of the virus it is necessary to take special measures. The measures are unprecedented in scope. 

Democratic societies, considering the experience and precaution, did not forget the need of special measures in critical situations and if in the ancient Rome people used to elect a dictator, in the modern democracy, during the state of emergency, all powers are concentrated in the hands of the executive government to simplify the response to the crisis. 

Freedom of religion and the state of emergency in Georgia

The state of emergency is a special situation, when the governments are equipped with the authority to carry out special measures, which they cannot apply in ordinary situations. The state of emergency is usually announced during the natural disasters, pandemics/epidemic, civil disturbances or armed conflicts. The procedures are different in different countries but as a rule, the state of emergency obliges every individual to change his/her conduct and normal lifestyle and obey the requirements of the special regime, which may restrict their constitutional rights and freedoms. 

Despite that, the state of emergency does not mean usurpation of the authority by the government that is balanced under the Constitution of Georgia and international conventions ratified by the State of Georgia. 

In accordance to the Article 4 of the International Covenant on Civil and Political Rights, which was adopted by the United Nations in 1966,  in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, color, sex, language, religion or social origin. The same Article 4 lists the rights, which shall not be restricted in the time of state of emergency. The Article 18 of the Covenant is on the list, and part I of it states:  “Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

Although freedom of religions cannot be restricted due to the state of emergency, the Article 18 of the UN Covenant determines an exception and pre-conditions when the freedom of religion (external) shall be restricted. Namely, Article 18 Part 3 of the Covenant states: “Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.”

The Constitution of Georgia also regulates the state of emergency in the similar way. Article 71 of the Constitution refers to the state of emergency and martial law. Part 4 of the Article lists the rights, which may be restricted during the state of emergency and/or martial law. Like the Covenant, neither Article 71 of the Constitution includes the freedom of belief, religion and conscience on its list, which is guaranteed under the Article 16 of the Constitution. 

Consequently, the March 21, 2020 Decree N1 of the President of Georgia “On Measures to be implemented in connection with the Declaration of a State of Emergency throughout the whole territory of Georgia” cannot restrict the freedom of religion. Neither the March 30 amendments to the Decree may restrict the freedom of religion. Even more, restriction of the freedom of religion based on the Decree will be unconstitutional. 

What does the curfew change for the churchgoers? 

Curfew does not restrict freedom of religion but everybody - believers and atheists – shall obey the regulations. Therefore, restriction of movement from 9 pm to 6 am refers to everyone regardless his/her belief. 

Restriction of the movement from 9 pm until 6 am, naturally, indirectly restricts freedom of religion and belief but it will not be an interference in this right. In this particular case, we observe only the effect of the restricted right, which affects the right to fair trial but does not restrict the right to fair trial. According to the case law of the Constitutional Court of Georgia, “it is essential to have boundaries between the restriction of the right and effect of the restricted right. Restriction of any right guaranteed under the Chapter II of the Constitution of Georgia, often, affects other constitutional rights. However, it does not mean interference or/and restriction of this right. The Constitutional Court shall assess the disputed norm in relevance with the constitutional right, whose restriction is purpose of this norm and not in relevance with the right whose restriction may have only side effect.”

Gathering of the people in the places of worship, unlike other spaces, is protected under the freedom of religion, not the right to assembly and manifestation. Therefore, restrictions, which aim social distancing inside the churches, cannot become the subject of restrictions under this regulation. Consequently, if all of us is obliged to respect the ban of gathering of more than three people in public and keep 2-meter distance under the emergency laws, in the churches and other spaces of worship, it is up to the good will of believers whether or not to consider them. At the same time, if a believer comes to the church before 9 pm and remains there until 6 am, the restrictions under the curfew will not be applied against them. The clergies of big churches have planned dusk-to-down Easter Vigil accordingly.  

The solution offered by the Constitution of Georgia

In the Constitution of Georgia, like in the international conventions, the freedom of religion, belief and conscience includes two significant components: the first is an internal dimension of this right (forum internum) that means internal freedom that is manifested in the inner world, heart and mind of each individual; relatively, it is beyond the jurisdiction of the state and must not be restricted by the state; secondly, this right has an external dimension (forum externum). It is the field of external freedom and includes freedom to manifest one’s belief and religion. It is the freedom of an individual, individually or in community, publicly or in privacy, manifest his/her religion or belief with faith, teaching, preaching, and rituals. Gathering, praying and participation in other rituals fall under this right. Unlike internal freedom of the religion, its external dimension, in accordance to the Constitution of Georgia, as well as other international acts, may become subject of restrictions in special circumstances. 

The Article 16 Paragraph 2 of the Constitution of Georgia states that this right may be restricted “only in accordance with law for ensuring public safety, or for protecting health or the rights of others, insofar as is necessary in a democratic society.” In this regard, for the protection of public health and safety, in this particular case for the prevention of epidemics, the government did not need to announce the state of emergency to restrict the believers to go to the churches. To do that, the legislative and executive authorities of Georgia shall act in accordance to the Article 16 of the Constitution of Georgia to implement the requirements of the Article 5 of the Law of Georgia on Public Health Care. Authorized institution, for the concrete timeframe, shall issue a bylaw, and in case of necessity, the Parliament of Georgia shall introduce amendments and additions to the Law on Public Health Care; violation of the abovementioned temporary measures shall be sanctioned. All steps of the government shall be transparent and shall accurately and timely inform the society.  

Attitude of the Orthodox Church of Georgia

The Patriarchate of the Orthodox Church of Georgia has firm position that the churches will not close. The churches shall not be closed under the restrictions of the Article 16 of the Constitution of Georgia either. In the church, like in all other places of worship, clergies must not be banned to conduct religious services. However, the issue is about the restriction of gathering of believers. Temporarily, for the protection of health, the believers shall be restricted to go to the churches in accordance to the Article 16 Paragraph 3 of the Constitution. Unfortunately, the Government of Georgia, because of particularly high rating of the church in the country and for the prevention of possible incidents, avoids to take similar measures. This problem is particularly urgent during the biggest Christian holidays like Easter or others, when internal spread of the infection has already started. The middle age of the church parishioners and the clergies is also important to mention, which increases the risk of getting infected. On April 1, 2020, the Patriarch of Georgia addressed the flock and called on them to respect the social distance inside the churches and in the yards. He addressed the clergies and people participating in the religious services. As for the people under particular risk, they were recommended to stay home. The address of the Patriarch also referred to those people, “who are particularly cautious about the virus” – and advised them to stay home and in case of desire, the clergies will visit them at home.   

Nevertheless, unfortunately, the COVID-19 infection already convinced the entire world that similar preventive measures are not enough to reduce the spread of the infection. Particularly, when the Church did not change the rules of gathering people during religious services and Eucharist. On April 12, on the Palm Sunday, the churches were overcrowded but the government did not react to the violation of the rules, except one case, when police fined as socially indigent man, who was selling flowers in front of the church in Telavi. Post-factum, the Prime Minister of Georgia made general assessment and “confessed” that on the Palm Sunday, the state institutions, in particular the MIA, “should have acted more effectively.” It is alarming that on the Day of Annunciation, clergyman infected with COVID-19 conducted the religious service and had direct contact with the parishioners. The Government, even after similar facts and increased risks, failed to reach agreement with the Georgian Patriarchate to address the believers not to attend the Easter Vigil. According to the Government’s Spokesperson, the parishioners will keep the two-meter distance, while in smaller, less spacious churches only clergies will remain inside the church premises and parishioners outside the churches.  Besides that, people will come to churches before the curfew starts at 9 pm and will stay in until 6 am. Based on the experience from the Palm Sunday, it is another problem how the state will administer this agreement. 

Who will be responsible?

In these circumstances, unless the state takes necessary measures and the situation will develop in the bad scenario (probability of what is increasing considering the nature of the holidays), naturally the Government will be held responsible, who has failed to demonstrate enough courage and strength to defend the health and safety of the people with non-popular decisions. It is clear that the church will also have moral responsibility – namely the Patriarchate of Georgia as well as decision-maker clergymen. Most probably, political parties and civil groups will impose responsibilities on the church and it will be absolutely fair judgment. On the other hand, taking adequate measures by the GoG, which may not be popular act (considering the high rating of the Orthodox Church in the country), may become the decisive point in the fight against the virus for the protection of the lives of many people. 

In the context of current alarming situation, Human Rights Center calls on:

The Government of Georgia: 
  • Under the Constitution of Georgia and in due respect of high standards of human rights, to take all necessary measures to protect the public healthcare and health and lives of people;
  • To strictly administer the regulations under the state of emergency and curfew.

The Patriarchate of Georgia:
  • Considering the epidemiologic situation in the country, to fulfill the suggestions and recommendations of the National Center for Disease Control and the Government of Georgia; 
  • To share the social responsibility in front of the parishioners and the entire society and considering its high reputation, to take all possible measures to convince the parishioners to follow all regulations established by the State for the prevention of the spread of the COVID-19.
  • Within its competence, for the fight against pandemic, to take effective measures to minimize the need of special means and mitigate the risks of conflict inside the society in the time of particularly complicated situation during the state of emergency.

To the parishioners:
  • To acknowledge the real threats coming from the COVID-19, which may create problems not only their health and lives, but also of their family members and people around;
  • To obey the special regulations established by the epidemiologists and government and to follow the rules necessary for the prevention of the spread of the virus. 

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