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Statement by GDI, ISFED, HRC and TI regarding an introduction of the curfew order

09.11.2020

 
GDI, ISFED, HRC and TI, responding to the measures taken by the Government of Georgia aimed at restricting freedom of movement, consider that imposition of the curfew order by the resolution of Government of Georgia is unconstitutional, as Government of Georgia does not have legislative authority to restrict freedom of movement. Moreover, this step is perceived as an attempt to suppress current wave of protests, and as such cannot be considered as an effective, necessary and proportionate measure for achieving legitimate objective.

According to the ordinance of the government, cuirtailment of freedom of movement is in place from 9th of November, 22.00 - 5.00 following morning, in the big cities of Tbilisi, Batumi, Kutaisi, Rustavi, Zugdidi, Gori and Poti. Accordingly, being at public places during noted times or relocation both by vehicle or by foot is prohibited. In addition, mentioned restriction is extended to include pre-election campaign (political agitation).

Above-mentioned restriction, in its essence, is a curfew, during which an intense restriction of freedom of movement is in place.

Legal basis for the restriction in question is Article 453of the Law of Georgia on Public Health, which was adopted by the Parliament of Georgia in an expedited manner on May 22nd in order to restrict  number of human rights even after Georgian government were to lift the state of emergency. GDI has issued a statement on May 20th stating that delegating constitutional rights to the government as a whole, without having the law specify preconditions and the scope of restrictions, is contrary to the requirements of the Constitution and the standards established by Constitutional Court. [1] Despite numerous attempts from the side of the non-governmental sector to have the Partliament of Georgia rectify problems posed by the passage of this article, ruling party has not shown political will to do so.

Imposition of curfew by the Georgian government on November 9th is yet another evidence that shows, that Article 453of the Georgian Law on Public Health is unconstitutional and allows executive branch to abuse its will and power. Contrary to constitutional requirements and international standards, Georgian government, has in fact replaced the legislature and, without any public discussion, has introduced a new, high-intensity restriction, in violation of the principle of separation of powers.

It should be emphasized that due to its intensity, imposition of  curfew, usually takes place during the state of emergency and is accompanied by strictly prescribed standards and prerequisites.This is due to the fact that by its nature, curfew not only restricts freedom of movement, but also has a negative effect on a number of other constitutional rights, including the inviolability of liberty. In this regard, second paragraph of Article 7 of the Law of Georgia on the State of Emergency should be taken into account, according to it  persons that have violated curfew will be detained by the police until it is over, "those who do not have documents with them shall be detained until their identity is determined but the detention period shall not exceed 3 days. Detained persons and their belongings may be searched. " Although this law does not apply in the absense of the state of emergency, it is likely that by using general norms of Georgian law, law enforcement officers will restrict right to liberty of those that will violate an aforementioned ban. Noted restriction from the side of the law enforcement officers will in turn be unconstitutional.

GDI, ISFED and HRC have negatively assessed curfew imposed during the state of emergency in spring.[2]. Although today epidemic has deteriorated, following act is not an effective, necessary and proportionate measure of public health protection.

Moreover, in the light of current national events, this is perceived as an attempt of the government to disrupt democratic processes and to fight the wave of protests that have been unfolding, rather than the spread of COVID-19. This is especially noteworthy due to the fact that curfew has been extended to pre-election campaign (political agitation), when activities carried out within the pre-election campaign are an exception to restrictions imposed by the Government of Georgia.

We once again call on the Georgian authorities to stop using unconstitutional measures and manipulating epidemic created by COVID-19 in order to achieve narrow political interests.
 
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