The Government Continues to Review Discriminatory Military Legislation
The draft bill of the Defence Code, which was passed by the legislative body at the first reading on April 4 of this year and in the second reading on July 12, is currently being discussed in parliament. The government's legislative initiatives include several problematic issues that violate the constitutional principles of freedom of religion and belief, equality, privacy, and fair trial. At the same time, the government is introducing new terms, thus creating a dangerous and alarming classification of religious organizations.
1. Discrimination on the grounds of religion
One of the novelties introduced by the draft military code and the amendment to the law on Non-Military Alternative Labour Service, which is based upon it, is that clergymen will no longer have the right to postpone military service (or to be exempt from it). Instead of compulsory military service, they will be able to undergo alternative, non-military labor service. However, this obligation will apply to the clergy of all religious associations, except for clergy of the Orthodox Church, who are exempt from all military duties based on the Constitutional Agreement.
TDI's previous assessment provides more detailed information on discrimination under the Defence Code.
2. Compulsion to disclose information about one’s religious belief
Article 96 of the draft law Defence Code of Georgia contains an utterly problematic provision. According to subsection "J" of paragraph 5 of this article, in order to register the reserve forces, information about the person’s religious affiliation will be entered into the electronic system of the mobilization reserve forces.
It should be noted that this regulation applies not only to those persons who have a conscientious objection to military service but also to all persons who are enrolled in the mobilization reserve forces, that is, all male citizens between the ages of 18 and 60.
Coercing/compelling a person to reveal his/her religion is a violation of the fundamental right to freedom of religion. This is supported by the principles established by the European Court of Human Rights (for example, in the cases of Sinan Işık v. Turkey, 2010 (§ 37) and Mockutė v. Lithuania, 2018 (§ 117)), where the Court emphasized the importance of the right to protection of data relating to religious beliefs, which constitutes one of the most vital elements making up the identity of believers and their conception of life, as protected by Article 9 of the European Convention.
Like Article 9 of the European Convention on Human Rights, the freedom of belief, religion and conscience protected by Article 16 of the Constitution of Georgia includes not only the freedom of a person’s religion but also the right of not disclosing it if there are no essential grounds for such a disclosure.
According to the Personal Data Protection law, information about a person’s religious beliefs is a special category of personal data, and its collection is permitted only in strictly defined cases. However, the collection of this data during the registration of the mobilization reserve forces, as envisaged by the draft of the Defence Code, can by no means serve any legitimate purpose.
We believe that Article 96 of the draft Defence Code aims at the unjustifiable collection of citizens' private data. Furthermore, it violates the right to freedom of religion and belief and contradicts international and constitutional human rights standards.
3. Violation of the right to a fair trial
In connection with the adoption of the Code, the Parliament has also prepared a draft law concerned with making changes to the Administrative Procedure Code of Georgia. In particular, the amendment involves the addition of a new chapter to the procedural code, which will regulate the courts’ consideration of cases related to conscription for national military service, and of cases related to refusals to undertake non-military, alternative labor service. The Parliament will consider this initiative in an accelerated manner.
According to the procedure proposed by the draft, if decisions on cases involving a refusal by an individual to comply with conscription to national military service and/or a refusal to undertake non-military, alternative labor service are appealed in court, the conscription will be suspended until the decision is made by the district (city) court, i.e., for the duration of about a month. And if the court of first instance considers that a person should undergo military service, this decision is subject to immediate execution.
This adjustment of the issue is problematic in terms of protecting the right to a fair trial and contradicts the logic of procedural law. Specifically, according to the proposed regulation, the decision of the court of first instance will be subject to immediate enforcement before it enters into legal force (i.e., before the decision of the superior court), which contravenes one of the main components of the right to a fair trial and a fundamental institution of procedural law, namely, the provision of at least one opportunity for the court to revise an earlier court decision.
In particular, the possibility of appealing to the appeal and cassation bodies provided by the proposals completely misses the point since the immediate execution of the decision of the court of first instance will lead to the conscription of a person to military service, which, taking into account the deadlines for considering the case in the appeals and cassation institutions, may mean that, even if the case is won, the person has most likely by then completed military service. Furthermore, a person who has already embarked on mandatory military service will find it much more difficult to prepare for and participate in the consideration of his case in the appeal or cassation courts.
One of the legitimate public goals of the draft law is to prevent the courts from becoming overloaded. However, this cannot be achieved by the proposed regulations. The legality of decisions made on conscription and on refusals to enlist in the service through alternative, non-military labor can still be contested in the courts of all three instances, which means that the same number of cases can be filed in court on these issues as would have been filed without the enforcement of these new regulations.
4. Terminology posing a threat to freedom of religion and belief
In addition to the above, the justifications given in the explanatory notes of the drafts of the Defence Code and the Administrative Procedure Code reveal the government’s alarming approach towards religious communities. In particular, the explanatory notes state that this new legislation will “remove the existing legal loophole and eliminate the possibility of dishonest and fictitious ‘religious organizations’, as a means to avoid conscription for military service (using the so-called “Priest Certificates”).
A serious problem with this reasoning is that it would give the state the power to determine which religious organizations are fictitious and which are genuine. Such a determination is not and cannot be within the competence of the state. This kind of practice is usually applied by authoritarian states that try to control religious associations (especially religious minorities) and persecute them. The adoption of these measures by the state, and the proposed confrontation with “fictitious and dishonest” religious associations, present an alarming perspective for all non-dominant religious associations in Georgia. This would surely threaten their autonomy and the freedom of religion of all their members.
It is true that this controversial terminology (fictitious and dishonest) is not directly included in the texts of the laws but is given only in the explanatory notes of the proposed bills. But the use of this terminology at all in a legal and legislative context and in legal argumentation, especially as a means to justify the adoption of the law, is particularly alarming. The explanatory note of the law is not a law itself, however, according to the Constitutional Court, it can be used to clarify the will of the legislator in the interpretation of the law (see, for example, the decision of the Constitutional Court of December 26, 2007, N1/3/407, in the case Georgian Young Lawyers' Association and Ekaterine Lomtatidze v. the Parliament of Georgia.) At the same time, if the proposed legislation is adopted, the common courts will also begin to judge exactly which of the religious associations are ‘genuine’ and ‘bona fide’ and which are not.
The Tolerance and Diversity Institute has been actively calling for the elimination of discrimination in the draft law since its inception. TDI continues to urge the authorities not to allow the bills to be passed in their current form, as this would lead to gross violations of fundamental rights to equality, freedom of religion and belief, privacy, and a fair trial. At the same time, we call on the authorities to stop classifying religious organizations based on various vague and discriminatory terms.