Restriction of movements: an expedient measure or a politically motivated decision?

 

Lana Giorgidze 

Many European countries have imposed strict restrictions to prevent the spread of COVID 19. Along with the restrictions of various types curfews have been declared in some countries. Georgia was no exception, where the curfew was announced twice during 2020, followed by negative assessments from public organizations and political parties. 

“The most effective and real mechanism to fight the new coronavirus is social distancing. In order to ensure social distancing, it is necessary to impose restrictions and follow them strictly. At the initial stage, the Government of Georgia chose the path of recommendations and information campaigns. For almost a month since the coronavirus was detected (from February 26 to March 21), the Government has been running information campaigns. The epidemiological situation showed that the recommendations were insufficient and the need for more stringent/mandatory measures and the need for the declaration of a state of emergency came on the agenda. “On the basis of the Decree issued by the President of Georgia on March 21, 2020, a state of emergency was declared and certain rights and freedoms provided for in Chapter 2 of the Constitution of Georgia were restricted," reads the Report on the Measures taken by the Government of Georgia against COVID 19.

Blanket lockdown was announced in Georgia on March 21, 2020. A curfew has been imposed in the country and the Government has amended Ordinance №181 of 23 March 2020 approving the Measures to prevent the Spread of the New Coronavirus in Georgia providing for the sanctions and fines for persons violating the rules of quarantine.

Article 7: 1. During the curfew hours, citizens are not allowed to be in the streets or other public places, leave their apartments without a pass issued in a formal manner and without ID cards.  2. Violators of the rule provided for in paragraph 1 of this Article shall be detained by the police or patrol before the end of the curfew, and those who do not have IDs with them shall be detained before their identity is confirmed, but not for more than 3 days; Detainees may be searched in person, further, they may be searched for items.

Moreover, the violation of the state of emergency leads to an administrative liability: a fine of GEL 3,000 for natural persons and GEL 15,000 for legal entities. For the action provided for in this paragraph, a legal entity shall be punished by a fine, deprivation of the right to operate or liquidation along with a fine.

Repeated violation of the state of emergency is a criminal offense and is punishable by up to 3 years of imprisonment.

The Report published by the Government of Georgia reads that from March 21 to May 22, the Ministry of Internal Affairs (MIA) fined 8,716 individuals and 21 legal entities for violating the rules of the state of emergency. The amount of the fines is GEL 26,463,000 GEL. Out of this, 4,820 individuals were fined for curfew violations.

According to the decision of the Interagency Coordination Council, restrictions on movements were again imposed on November 9, though only in large cities: In Tbilisi, Kutaisi, Batumi, Rustavi, Zugdidi, Gori and Poti. Movement was restricted from 10:00 pm to 5:00 am on the whole territory of Georgia. For violating the restriction, a fine of GEL 2,000 was prescribed for natural persons and GEL 10,000 for legal entities. 

The imposition of restrictions on movements raised questions in the public, as it coincided with the period of rallies held by opposition parties. On the night of November 10, police fined activists, including homeless people.

Nino Lomjaria, the Public Defender of Georgia, reacted to the fact of fining the activists on the night of November 10th and according to her statement the public defender pays a special attention to the issue of public health and to the need for effective legislative and administrative measures to protect the right to life and health in the country; however, the Ombudsman further states that the Law of Georgia on Public Health allows for restricting the freedom of movement, and not the right to assembly and demonstration. Accordingly, as Lomjaria says, using the Government Decree for banning demonstrations and expressions would be unconstitutional.

Four public organizations: GDI, ISFED, HRC and TI responded to the restrictions imposed during the night hours. According to the NGOs, the imposition of a curfew by a Decree of the Government of Georgia shall be deemed unconstitutional, as the Government of Georgia does not have the legislative power to restrict the freedom of movement. "Moreover, this move is perceived as an attempt to quell the current wave of protests, and such a ban in itself is not an effective, necessary and proportionate means of achieving a legitimate goal," reads  the statement disseminated by the NGOs. 

The Chairman of the Parliament, Archil Talakvadze when  speaking  on the topic with journalists mentioned that "the constitutionality of various legislative acts is determined by the Constitutional Court" and not "by a few individuals screaming loud from streets".

Alex Merebashvili, lawyer within Human Rights Center (HRC) does not rule out that the restrictions were politically motivated.

Alex Merebashvili, Lawyer of HRC: "Given the epidemiological situation, it could be right to impose restrictions at some point, but the amount of the fine in the first stage and also today is inadequate and disproportionate, especially since there is little mobility at nights and there is no great risk of spreading the virus. With regard to the restrictions imposed from November 9 up to the present day, I do not think it was necessary at all, as it is already forbidden to operate restaurants, clubs and facilities where people could go out for entertainment at nights. With this in mind, it is unacceptable to impose a restriction on movements. The disproportionality of the measure is striking: a fine of GEL 20 is envisaged for moving in a closed public space during the day time without a mask posing a greater risk of spreading the virus than a person who drives at night his own car. I do not exclude that the restrictions on movements were imposed for political reasons. The pandemic has been used for political purposes since the spring, as evidenced by the procedure for paying allowances already adopted before the elections. Further, the opposition is announcing boycotts and some protest demonstrations are scheduled from the spring, and these restrictions are clearly based on political motives."

According to the Chairman of GDI, Eduard Marikashvili, the introduction of the curfew is an unconstitutional and a very severe restriction, and at the same time this is a violation, which is equivalent to a house arrest. Moreover, the question arises whether the authorities try to use the curfew in an arbitrary manner in order to unjustifiably restrict human rights.

Eduard Marikashvili, Chairman of GDI: "The State has a certain margin of appreciation when introducing the sanctions, so the State has to consider the economic situation and also the effects of the sanctions to prevent violations. However, since the restrictions are introduced in times of the pandemic and all this was accompanied by a complete closure of the economy, the sanctions would make a heavy burden on individuals' finances; further, on the background that a number of restrictions are unconstitutional, in this case we may talk about the unjustified amounts of the sanctions and the imposition of a heavy burden on citizens. Our organization has appealed to the Constitutional Court to repeal the norms violating human rights; most of the norms we have argued against have already been reviewed by the Court and the hearings showed that these restrictions are unconstitutional; nevertheless, we have to wait for the judgment by the Constitutional Court. "I believe the Constitutional Court should give priority to hearing these cases, as these cases are current and the restrictions violate human rights to the largest scale." 

According to HRC lawyer Alex Merebashvili, there have been cases where police provided incorrect information to fined citizens: "The fined persons were told that they could appeal the fine within 30 days, while according to the Code of Administrative Offenses, the appeal period is 10 calendar days; if the fine is not appealed within 10 days, it would enter into legal force. Some of the police officers also provide misleading information to the citizens that allegedly the Government is planning to pardon the imposed fines; on the one hand, they hand fine receipts to the fined persons and on the other hand, they soothe them not to lodge a complaint. "They are deliberately misleading the citizens."

According to Merebashvili, if the deadline for an appeal expires, in this case the citizen must pay a fine within 30 days: "There are some technical gaps as many citizens applied to us because they could not technically manage to pay the fine. We appealed to MIA and we are still waiting for their answer as to what is the technical defect and why the citizens are not able to pay the fines. If the fined person fails to pay the fine, the proceedings of compulsory enforcement shall begin, so if any assets are held on his/her name, the assets shall be seized; if he/she fails to pay within the offered period, the assets shall be sold at an auction. If a citizen believes that the law enforcement officer acts beyond his/her legal power, the citizen may apply to the General Inspectorate (126), or, of course, he/she can apply to HRC. The rate of application is not high yet as the citizens are hoping that the fines would be pardoned; they are not properly informed. HRC Shida Kartli office has appealed against 6 fines and we have not received a response so far."

Most of the fined individuals do not want to be identified. They are also afraid to talk about the details of the case, as they believe this would create problems at the appeal stage. One of them was fined in Batumi, he applied to HRC for help.

"In January, I was driving my own car in Batumi, which is not registered in my name, I had a pass and I was delivering an order. They stopped me at least 50 times during a month, they were just not in the mood that day and wanted to check the car pass, I explained to them that the car did not need a pass because I had a personal pass. I checked this information with another patrol crew before I started delivering orders. They handed me a citation and said goodbye. I appealed the citation the next day and I am still waiting for the answer,” said the fined citizen.

The HRC lawyer believes that the actions of the police officers lack any reason and, moreover, there is no provision in the law requiring a vehicle pass, because the subject who spreads the virus is considered to be a person and not a vehicle.

Shorena Loladze, Head of the Legal Aid Center of Georgian Young Lawyers Association (GYLA) says that many people applied to GYLA due to the curfew violations: "The Patrol Police Department, which is considered to be the first to hear the complaints, never grants complaints, that is why people have to go to the court. There was a case when a citizen had a pass, he was driving without a mask at night and did not pose a threat to anyone but nevertheless was fined. He appealed the fine. There was also a case when a citizen entered a store near his house in Bakuriani to buy water, for which he was fined. He was upset because the police did not fine other people who were also in the store during the curfew; regardless of whether they had a pass, they used the pass for personal purposes. Actually, the fined persons do not have much arguments in terms of not having violated the law, but they state that they were out because of an urgent need. Each case must be assessed by examining the individual circumstances. We consult each fined person, however we only take the case that is promising. "Finally, there are some legislative gaps and we believe that the Government was not authorized to impose such restrictions." 

Extensive isolations that became an acceptable pattern to impede infections and slow the spread of the virus through states of emergency or other mechanisms, unequivocally restrict the freedom of movement of people, which is directly proportional to the restriction of other rights and freedoms, reads HRC Report on COVID 19 Pandemic and Human Rights.

According to the Report, the attempt of the authorities to use the created situation for their own narrow party interests is especially disturbing.

"Given the economic situation in Georgia, the severe social consequences were not unexpected as the situation was further aggravated by the measures taken to combat Coronavirus. The crisis has once again highlighted the acute problems in the labor law of Georgia, making very easy for employers to lay off employees or force them to take unpaid leaves. For 2 months, the State took no actions to help the persons left unemployed bringing many on the edge of starvation. "The social allowances provided for by the Anti-Crisis Plan developed by the Government, the disbursement of which has not yet been completed, do not fully meet the existing challenges," reads the Report of HRC. 

According to the Report of HRC, the closure of food kitchens due to the pandemic in municipalities had a significant impact on those in need who relied on these services: "Indeed, due to the crisis, the service has been modified and the access to food has been maintained for the beneficiaries, but the coverage area of the services is quite small, it varies according to the municipalities and does not meet the existing challenges. Due to the vulnerability of the elderly under the conditions of the state of emergency, the strictest measures in terms of mobility as applied towards them significantly restricted the rights of the elderly. During the quarantine, the State undertook to provide them with food and medicine. However, in all cases the uninterrupted delivery of the service was not possible. Further, restricting traffic by cars had a significant impact on rural population, who had to walk miles to reach the stores and other facilities, which was particularly difficult for senior citizens.”

The blanket lockdown had a manifold impact on persons with disabilities, internally displaced persons, women, children, ethnic minority groups, the homeless and other vulnerable groups. The Georgian Young Lawyers Association (GYLA) also plans to report on the impact of the restrictions on the human rights situation. 

Merab Kartvelishvili, Human Rights Program Director within GYLA says the social situation of members of the LGBT community has worsened amid widespread restrictions, while the Anti-Crisis Plan of the Government does not meet their needs: "In general, the Anti-Crisis Plan did not cover vulnerable groups. The assistance was intended for people with severe disabilities. However, beyond the persons with severe disabilities, there are also people with moderate disabilities living in the country and they were not affected by the allowances. The closure of schools has had a negative impact on children, especially children with disabilities, who have been denied access to day care centers which facilitated their integration into society. Some remote day care centers were available, which is not enough for them. Ethnic minorities were also miscommunicated and misplanned by the State, first Marneuli and Bolnisi were closed, people were in an information vacuum, they were also deprived of the opportunity to work, to cultivate the soil, and then the State allowed them several hours, needed mostly for the road and the allocation of the time was not accurate.  The interests of IDPs were also not taken into account. Further, the restrictions created a big problem for the people living in Akhalgori, there was a humanitarian crisis. The State met the pandemic unprepared and then tried to correct some shortcomings. It was the duty of the representative body i.e.  the Parliament and not the Government, to impose such restrictions, and the Parliament completely delegated these rights and duties to the Government, and such a delegation is unconstitutional. "

Despite calls and statements from NGOs, law enforcement officers continue to fine the population under the rights granted to the police. With an aim to fight against Covid 19, from November 2020 up to the date, MIA has identified 47,168 cases of violation of the current regulations.

The article has been prepared by Human Rights Centre (HRC) within the frameworks of the project “Right to Peaceful Assembly and other Civic Rights during Covid 19 pandemic in Georgia”. The project is supported by the European Center for Not-for-Profit Law Stichting (ECNL) under the INSPIRES program. It is made possible by the International Center for Not-for-Profit Law (ICNL) and financed by USAID.