The GDI responds to the law adopted by the Parliament of Georgia on 2 September 2020, according to which, starting from 1 January 2021, the border police will place restrictions for the Georgian citizens on leaving the Georgian territory with the aim to enter the Schengen Zone if they do not comply with the criteria indicated in the law. The GDI considers that the adopted law is unconstitutional and fails to comply with the international standards.
According to the changes, Article 10(2) of the Georgian Law “On Rules for Georgian Citizens Exiting and Entering Georgia”, a Georgian citizen might be refused to cross the state border in case if she/he is travelling to Schengen Zone and there is the existence of one of the circumstances stipulated by the law. For example, if he/she does not present the certain documents such as hotel booking, return ticket, insurance and etc.
The adopted law places restrictions on the freedom of movement guaranteed by Article 14 of the Constitution of Georgia and includes the possibility of freely exit the Georgian territory. Despite the fact that this right is not absolute, it is still necessary that any restriction complies with the constitutional criteria – it should be legitimate and proportionate. The adopted law is problematic in terms of both.
According to Article 14 (2) of the Constitution of Georgia, these rights may only be restricted “in accordance with the law, for ensuring national security or public safety, protecting health or administering justice…”. Thus, for the justification of restrictions, they might be allowed in order one of the aims indicated in the Constitution – protection of national of public safety, protection of health or ensuring the administration of justice.
It should be noted that according to the explanatory note to the law, “the aim of the draft law if the creation of additional prevention mechanism in order to reduce the flow of those Georgian citizens to the EU/Schengen Zone, who abuse the possibility of visa-free travel”.
Therefore, according to the state position, the imposed restrictions are the prevention for avoiding the possible problems in terms of visa-free regime and the violation of the Schengen Zone immigration policy by Georgian citizens. It is very controversial to consider such an aim as legitimate and to associate it to Article 14 of the Constitution, which, unlike other rights, includes very narrow list of legitimate aims and clearly defines each of them.
The law does not either comply with the requirements of the principle of proportionality, in particular, it is not necessary, the least restrictive and proportionate. The given act is a rather intensive form of interference in the right, does not provide for the individual approach and insults human dignity as far as places Georgian citizens in a position of means of achieving the goal. The state states that because of possible violation of Schengen Zone rules by certain citizens, all Georgian citizens should be put under restriction and therefore be affected. Presenting individuals as objects and sanctioning them with the aim of general prevention (in this case by placing restrictions on leaving the Georgian territory) has already been found by the Constitutional Court as unconstitutional (see case “Georgian citizen Beka Natsvlishvili against the Parliament of Georgia”.
The issue of delegation is also an important problem in the adopted law. Article 10 (3) stipulates that the Minister of Internal Affairs will define certain rules and procedures for the Georgian citizens who cross the Georgian border with the aim of travelling to the Schengen zone. According to the case law of the Constitutional Court of Georgia, it is unacceptable that the Parliament of Georgia delegates placing restrictions on the fundamental constitutional rights to the executive government (see case “Georgian citizen Alexandre Mdzinarashvili against the Georgian National Communications Commission”). The hereby mentioned significantly increases the risk of arbitrariness and abuse of power by the executive authorities.
One should take into consideration also the current situation in Georgia. In the country which has been still governed by immature democratic institutions the risks of persecution and discrimination on political or other grounds against the persons is very high and such legislative leverage becomes a very dangerous weapon and increases the cases of illegitimate interference into the rights.
Along with the Georgian Constitution, it is important to take into consideration the international standards, which also regulate the right to leave the country. In particular, according to Article 2(2) of Protocol No.4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), “Everyone shall be free to leave any country, including his own”[1]. In reference to this right ant taking into consideration the adopted law, it is interesting to recall the caselaw of the European Court of Human rights, in particular the judgment in the “Case of Stamoese v. Bulgaria”. In this case, the Head of the Border Police Service of the Bulgarian Ministry of Internal Affairs imposed a two-years travel ban on the applicant because of violating the USA migration rules[2]; therefore, the applicant appealed to the European Court of Human Rights. This case is relevant because of controversial context of a ban. In particular, the decision on a travel ban was taken against the background of pressure and concern by the EU countries because of illegal migration from Bulgaria to the EU and the aim was to discourage and prevent breaches of the immigration laws of other states, and thus reduce the likelihood of those states refusing other Bulgarian national’s entry to their territory, or toughening or refusing to relax their visa regime in respect to Bulgarian nationals[3]. Despite the mentioned aim and the relevant context, the European Convention on Human Rights found the violation of Article 2 of Protocol No.4 to the Convention[4]. According to the judgment of the European Court of Human Rights, the above-mentioned context, including the pressure from the EU, could not be considered as enough argument for the justification of the disputed act[5]. Similarly, in the given case, it is insufficient to refer in the explanatory not to the draft law to the concern expressed by the EU states[6] in order to justify the changes made by the Parliament of Georgia. According to the International standards, restrictions on the leaving the country shall be provided by law, must be necessary in a democratic society for the protection of these purposes and proportionate[7].
Furthermore, according to the statement of the UN Human Rights Committee, the law itself has to establish the conditions under which the rights may be limited and may not confer unfettered discretion on those charged with the execution[8]. From this point of requirement, the changes made to the law are problematic as far as they fully confer the discretion of defining the rules and procedures on crossing the Georgian border for the Georgian citizens travelling to the Schengen Zone/EU to the Minister of Internal Affairs[9]. It should also be noted that the UN Human Rights Committee is very strict and skeptical about the legal and bureaucratic barriers affecting the full enjoyment of the rights of the individuals to leave a country[10]. Among those barriers, there are the requirement for a return ticket, Invitation from the resident of a destination country and the certificate from an employer about the financial status. The changes to the law include exactly such requirement for the travelers to the Schengen Zone/EU.
Taking into consideration the above-mentioned, the GDI states that the discussed changes place unproportionate restrictions on the right of freedom of movement for the Georgian citizens. The GDI continues working on this issue and will use all the legal mechanisms in order to protect the constitutional rights of the Georgian citizens, including the possibility of appealing the adopted law in the Constitutional Court of Georgia.
[1] Article 2(2) of Protocol No.4 to the European Convention on the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights).
[2] Judgment of 27 November 2012 of the European Court of Human Rights to the “Case of Stamoese v. Bulgaria”, §10.
[3] Ibid, §§ 32, 36
[4] Ibid, §37
[5] Ibid, §36
[6] Explanatory note to the draft-law on changes to the Georgian Law “On Rules for Georgian citizens exiting and entering Georgia”: https://info.parliament.ge/file/1/BillReviewContent/181649
[7] CCPR General Comment No.27: Article 12 (Freedom of Movement) adopted at the Sixty-seventh session of the Human Rights Committee on 2 November 1999, CCPR/C/21/Rev.1/Add. §§ 11, 14.
[8] Ibid, §§12, 13
[9] Final edited version to the law on changes to the Georgian Law “On Rules for Georgian citizens exiting and entering Georgia”, see https://info.parliament.ge/file/1/BillReviewContent/262115
[10] CCPR General Comment No.27: Article 12 (Freedom of Movement) adopted at the Sixty-seventh session of the Human Rights Committee on 2 November 1999, CCPR/C/21/Rev.1/Add. §17.
