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Public Defender Regards Limiting the Right to Leave Country for Georgian Citizens Unjustifiable

02.10.2013

 
On September 19, 2013, members of the Parliament have initiated draft amendments to the Law on Leaving and Entering Georgia by the Citizens of Georgia. 
  
According to the draft amendment, subparagraph “d” will be added to Article 10 of the law mentioned above, which sets limitations on temporarily leaving the country for citizens of Georgia. The addition will state that a citizen of Georgia can be denied to be issued a passport or to have the existing passport expiration date prolonged, as well as to cross the border to temporarily leave the country due to “securing national security or public safety”. Currently the wording of Article 10 is the following: “a citizen of Georgia can be denied to be issued a passport or to have the existing passport expiration date prolonged, as well as to cross the border to temporarily leave the country: a) If he/she is wanted by law enforcement agencies; b) If he/she presents fraudulent or invalid documents. 
  
The explanatory note of the draft amendment states that the amendment is aimed to resolve the legislative shortcoming and to complement the restriction already prescribed by the Constitution of Georgia. In addition, according to the explanatory note, in order to secure national security or public safety, an individual’s right to leave country may be limited due to his/her cooperation with terrorist organizations or for other similar reasons, however he/she will not be provided the real reasons for the denial. 

Even though protection of national security and public safety, along with fight against terrorism are one the of the main functions of the government, Public Defender regards that the current wording of the draft is so general, that while implementing the law relevant governmental bodies will have immeasurably wide discretion and possibilities for varied interpretation of the law, which violates the principle of predictability of law. 

According to General Comment 27 of the United Nations Human Rights Committee, which clarifies the freedom of movement protected by the Article 12 of the International Covenant on Civil and Political Rights, “The law itself has to establish the conditions under which the rights may be limited.” The Committee further explains that “The permissible limitations which may be imposed on the rights protected under article 12 must not nullify the principle of liberty of movement”. The limitation must not replace the right. In addition, “The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution”. 

Therefore, we cannot share the view expressed in the explanatory note, that the initiated amendment will resolve the legislative shortcoming and simply restate the limitation provided in the Constitution. 

First of all, the Constitution of Georgia as well as 2nd Additional Protocol of European Convention on Human Rights and the Article 12 of the International Covenant on Civil and Political Rights only set frame/principles of certain limitations, and implementation of the principles in the law must be precise and predictable. 

Article 22 of the Constitution of Georgia protects the right of Georgian citizens to free movement, including the right to leave the country. And according to sub-paragraph 3 of this article: “These rights may be restricted only in accordance with law, in the interests of securing national security or public safety, protection of health, prevention of crime or administration of justice that is necessary for maintaining a democratic society.”

Straight/non-clarified copying of a constitutional norm cannot be regarded as a legislative implementation of constitutional requirement. The Constitution allows restriction to leave the country only in cases prescribed by the law, to reach the goals stated in the same article of the Constitution. Based on the General Comment 27 of the United Nations Human Rights Committee it is clear that in order to interfere with the right to free movement, it is not enough for the limitation to serve one of the listed purposes, it is also necessary for the limitation to be essential. In addition, the limitation should be proportional of the purpose and at the same time should have the least impact on the right to free movement. Therefore, it is apparent that the constitution of Georgia sets only the general standard and the specific cases should be prescribe by law, in a way that will be clear and predictable for general citizens of Georgia, as well as for state officials and will not result in loss of the essence of the right to free movement. 

Additionally, it is important that the terms and procedure for appeal against such limitations are defined by the law in a clear and detailed way. The United Nations Human Rights Committee clarifies that the principle of proportionality should be protected not only by the law that sets out this type of limitations, but also by every administrative and judicial entity that use this law.   

Therefore, Public Defender calls upon the initiators of the daft law in question and members of the Parliament of Georgia to take into account all of the factors listed above and to adopt such changes to the law, that will not result in violation of the right to free movement guaranteed by the Constitution of Georgia and international human rights legislation. 
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