The Social Justice Center reacts to the recent legislative changes outlined in the Defense Code adopted a few months ago and believes that the new draft law, undergoing expedited consideration, exacerbates the legal situation for conscripts who object to military service on grounds of freedom of belief, religion, and conscience.[1]  

• Assessment of the upcoming legislative changes proposed in the Defense Code.

On November 15, the Parliament of Georgia initiated an expedited review of a package of amendments to the Defense Code and other legislative acts. One of the contentious issues in the proposed draft laws pertains to the process of appealing conscripts' refusals of national military service, as well as non-military alternative labor service.

In the current version of the Defense Code, Clause 12 of Article 67 [2] grants conscripted individuals the right to appeal the decision to be drafted into military service within 15 calendar days after receiving official notification. Simultaneously, Article 11 of the Law of Georgia, "On Conscription into Non-Military, Alternative Labor Service,"[3] provides the right to appeal to the court within the same timeframe for individuals denied military service with the option to replace it with alternative labor service. Both provisions stipulate that the decision is subject to enforcement in accordance with the general procedural rules established by the Code of Administrative Procedure, meaning the decision is suspended pending a court proceeding.

If the proposed legislative changes are adopted, appealing such decisions in court will not halt their immediate effect, and the individual will undergo military service concurrently with the court proceedings.[4] To address this, amendments are being proposed to the Administrative Procedure Code, introducing a new chapter[5], VII,²⁷ to govern administrative proceedings related to national military service and non-military alternative labor service.

While the draft law establishes specific and brief deadlines for court case consideration, the prevailing trend of court case delays, even when legally mandated deadlines exist, poses a challenge that this mechanism may not effectively address.

In the explanatory note, the proponents of the amendments highlight the protracted nature of general administrative court proceedings, asserting that this prolonged process allows "fictitious religious organizations" to exploit the system dishonestly, aiding individuals in avoiding conscription.[6] Legislative initiatives should be rooted in a balanced evaluation of legal benefits and adherence to legal principles. Consequently, such changes require a robust legal justification. The government's presented definition appears superficial, suggesting that political considerations may take precedence over a commitment to human rights. Unfortunately, this approach is likely to significantly worsen the legal situation for hundreds of conscripts.

The right to appeal in court is a constitutionally guaranteed right under Article 31 of the Constitution of Georgia. Initiating an appeal without a temporary suspension of the conscription decision may only be a formal procedure and may not effectively enable the practical realization of this right. The realization of this right should involve a combination of procedural norms and measures, extending beyond the mere act of filing a lawsuit. In this context, the Constitutional Court of Georgia has emphasized in one of its cases that for the judicial right to be meaningful, it must be practically enforceable.[7] 

The right to effective legal protection is also assured by Article 13 of the European Convention on Human Rights. Concerning this right, the European Court clarifies that, within the national legal system, there should be effective means of legal protection aimed at rectifying alleged rights violations and not merely existing in theory.[8]  

The implementation of the proposed legislative change is poised to considerably undermine the legal standing and daily lives of conscripts. It represents another setback in the effort to ensure the inviolability of personal life and freedom of religion in Georgia.

• The overall adverse effect of the new Defense Code on the state of freedom of religion and privacy.

The upcoming legislative changes planned for later this year should be viewed in conjunction with other recent regulations embedded in the new Defense Code. These existing regulations have already significantly undermined the legal standing of clergy and members associated with non-dominant religious organizations in the country.

• Alleged discriminatory treatment of non-dominant religious organizations

As publicly known, on September 21, 2023, the Parliament of Georgia ratified the new Defense Code, resulting in amendments to the laws governing non-military alternative labor service and personal data protection.

Before these amendments, only citizens obligated to fulfill military duty under Georgian legislation and who declined military service on grounds of freedom of conscience, religion, or belief were subject to non-military alternative labor service.[9] With the implementation of the new defense code, individuals, including clergymen, who refuse military service based on freedom of faith, confession, and conscience, will now also be called up.[10] Furthermore, as per the amended legislation, they will no longer have the option to defer conscription due to priestly service or enrollment at a theological institute.[11]  The Law on Military Obligation and Military Service, until its invalidation, had stipulated that a conscript could postpone service if enrolled in a theological institute or serving as a priest.[12] However, the new Defense Code no longer considers these reasons as valid grounds for conscription deferment.

It is notable that, in lieu of military service, the clergy of the Orthodox Church is entirely exempted from the obligation to defer or undergo alternative labor service. This approach finds justification in the 2002 constitutional agreement signed between the state and the Orthodox Church. Article 4 of this agreement stipulates that clergy members of the Orthodox Church are relieved from the obligation to fulfill military, including alternative labor, service.[13] However, it is clear that, the recent provisions of the Defense Code blatantly violate the principle of equality and significantly worsen the legal standing of clergy representing other religious organizations.

The enforcement of the Defense Code establishes disparate treatment between, on one hand, the clergy of the Orthodox Church, who enjoy complete and exclusive exemption from military obligations, and, on the other hand, the clergy of all other denominations, who are mandated to undergo alternative labor service in exchange for military service. According to the Constitutional Court's established practice, if a form of differentiation between individuals or entities becomes a classic indicator of discrimination as outlined in the Constitution, the state is obligated to justify such differentiation through a "strict scrutiny test." This involves substantiating the compelling necessity that serves as the legitimate purpose for the said differentiation, without which achieving the specified goal would be impossible.

According to the explanatory note of the Defense Code, it was indicated that the legitimate objectives of the new arrangement were: 1. To efficiently train more individuals in military professions within a brief timeframe; 2. To foster a positive attitude among conscripts toward national military service; 3. To diminish the number of individuals seeking to evade conscription for national military service.[14] The potential differentiation of religious organizations by the new code is not inherently linked to achieving these legitimate goals, as the approach will not necessarily reduce the number of conscripts aiming to avoid national military service. This is particularly evident since clerics representing all other denominations will undergo alternative service rather than military service. Moreover, the number of clerics from non-dominant religious organizations is significantly low, making it inconsequential in impacting the country's military resources. It is apparent that the state could have addressed potential individual cases of rights abuse through alternative means instead of adopting a blanket approach, which has once again created and deepened the asymmetry of rights among religious organizations.

Moreover, invoking the constitutional agreement to justify distinct conditions for the clergy of the Orthodox Church is unwarranted. The Constitutional Court has repeatedly clarified in its decisions that "the constitutional norms governing the relationship between the state and the Church, including the recognition of the special role of the Church, do not imply placing the Orthodox Church in a privileged position. This interpretation does not align with the purpose and intent of Article 9 of the Constitution."[15]

Hence, it is evident that the modifications introduced by the Defense Code flagrantly violate the constitutional principle of equality and exacerbate the state of religious equality in the country.

• The risk of indiscriminate processing of sensitive personal data pertaining to an individual's confession and priesthood.

Furthermore, it is cause for concern that the new Defense Code grants the state the authority to collect a special category of data related to an individual's religious beliefs. Specifically, Article 97 of the recently enacted Defense Code stipulates: "In order to record the mobilization reserve, information about the person's religion and priestly service shall be entered into the electronic system of the mobilization reserve."[16] There is no disputing that data pertaining to a person's religious beliefs falls under the category of sensitive information.[17] Previously, Article 6 of the Law on Personal Data Protection prohibited the processing of data concerning an individual's confession. However, with the amended legislation, Article 6, Part 4 of the Law on Personal Data Protection now includes subsection allowing for the processing of data of a special category, including an individual's confession and priesthood. This is permissible when the data are processed for the purpose of organizing military registration, non-military and alternative labor service reserve registration, national military service of conscripts, reserve military service, and non-military alternative labor service.[18]

The rationale for the necessity to collect special categories of personal data is outlined in the explanatory note of the draft law. It asserts that the inclusion of these provisions is aimed at aligning the Law "On Personal Data Protection" with the Defense Code of Georgia and ensuring legislative harmonisation.[19]

The impermissibility of state processing of sensitive personal data is linked to the European Union Regulation on Data Protection, specifically the General Data Protection Regulation (GDPR). Article 9 of the GDPR explicitly prohibits the collection and processing of personal data concerning religious beliefs for the purpose of identifying a natural person, except in the following circumstances:

• The data subject provides explicit consent for the processing of such data.
• Data collection and processing are necessary for the purposes of employment and social protection of the data subject.
• Processing is crucial to protect the vital interests of the data subject or another person, particularly when the data subject cannot provide consent.
• Data about a person's religious beliefs is collected or processed by a religious organization, with the condition that the organization will not disclose the data subject's personal information without their consent.
• The data subject voluntarily discloses data related to their religious beliefs.
• Data processing is necessary for the litigation process.
• Data processing is essential for public interest, safeguarding fundamental rights.
• Data collection and processing are crucial for the interests of the data subject or public health;[20]

The European Court of Human Rights assesses the handling of personal data concerning an individual's religious beliefs through a similar lens. The Court emphasizes that the freedom of religion encompasses the right to safeguard information regarding a person's religious affiliation. The case law affirms that state entities are prohibited from encroaching upon the right to religious freedom. Additionally, compelling the disclosure of details about an individual's faith is considered a discriminatory practice.[21]

Hence, it is evident that, under Article 97 of the new Defense Code, the state can indiscriminately gather sensitive personal data about an individual's beliefs. This contravenes established international norms and standards as the declatred  justification for processing such data  "legislation harmonization" is deemed insufficient. Consequently, the delegation of excessive and unchecked discretionary powers to the state, coupled with access to information about an individual's confession, significantly curtails the freedoms of personal life, religion, and belief. It is apparent that this regulation poses significant risks for the control of religious organizations, presenting a formidable challenge in the relationship between non-dominant religious entities and the state.

The Social Justice Center asserts that the amendments made to the compulsory military service for conscripts are discriminatory, constituting an unwarranted intrusion into the right to private life. The recent set of changes exacerbates the existing legal gap and denies individuals the opportunity for effective realization of their right to effective legal protection.

In light of the above, the Social Justice Center urges the Parliament of Georgia to reconsider the necessity of adopting the Defense Code and the package of legislative amendments introduced on November 15. Furthermore, it calls for the elimination of discriminatory provisions in the law and the records of the proposed bill, which grossly infringe upon the constitutional rights and freedoms of individuals and religious organizations.

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