სამართალი და მსოფლიო (Aug 2021)
Conscientious Objection (Georgian Approach – Case of “id Cards”)
Abstract
The article concerns the legal issues of the “Conscientious objection”, primarily that of substantiation of the question –whether an individual’s act, motivated by religious or non-religious beliefs and denying to observe certain legal requirements, will gain legal protection; The Author represents all related issues, factors, and circumstances, that should be taken into account and the corresponding scheme of the analysis and substantiation, with several important crossroads. By the Author, it is too important to find a good, proper direction on each stage and continue until the following crossroad. The Author shows, what these crossroads are in practice, and issues that should be discussed and analyzed at each stage. Through this prism, the Georgian legal approach is analyzed in the article, namely, the decision of the Georgian Constitutional Court of June 4, 2020, so-called “a case of ID cards” – Nana Sepiashvili and Ia Rekhviashvili v. Parliament of Georgia and Minister of Justice of Georgia. The case concerns the applicant’s denial to receive and use a new ID card, containing an electronic chip. For the applicants, the electronic chip represents the effective means for massive control over the people. They share the widespread orthodox Christians’ opinion, that chip represents the sign of the Beast, despite the fact, that the Holy Synod of Georgian Orthodox Church disclaimed such an opinion. There is shown in the article, what issues and questions have been considered and examined by the Constitutional Court, in which way and succession; By Author, The Court took a very delicate approach and was able to find a very proper way of substantiation despite the multiplicity of the pro et contra arguments, different factors, and controversial issues. The author concludes, that the Georgian approach is in line with the European and American case-law, but, at the same time, it develops a new principle and methodology, that facilitates the proper adjudication of the “conscientious objection” cases and reaching a fair balance between the individual rights and public interests. To the Author, the Georgian Constitutional Court has further developed already existing approaches, particularly, in the direction of the positive obligation of a State. The Court differentiated the positive obligation of a State in the process of elaborating the new legislation and positive obligation which may arise after the legislation became operative. The first one implies an obligation to predict the risk of appearance of a conscientious objection towards new legislation, possible negative side effects in case of disobedience, inter alia, the burden, that can be imposed over an individual’s religious rights, and, finally, to make relevant exemptions from new regulations, if reasonable and necessary. But the second one implies a positive obligation of a State to respond adequately to the de facto situation and administer all necessary measures to eliminate the damage and other negative effects that an individual suffers as a result of disobedience based on his/her belief. In the abovementioned case, the Court saw the State’s positive obligation to respond to the de facto situation notwithstanding the fact, that it did not find the challenged law unconstitutional.
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