Inconsistent sanctions for illegal border crossing - საერთაშორისო გამჭვირვალობა - საქართველო

Inconsistent sanctions for illegal border crossing

28 February, 2013

On 7 February, the Office of the State Minister of Georgia for Reintegration submitted a legislative initiative to Parliament. The package of legislative amendments aims to liberalize the laws concerning illegal border crossings of the occupied territories. We appreciate the steps taken towards the liberalization of the laws on border violations; however, it would be far more logical and appropriate, if the changes applied to the laws on illegal entry not only within the occupied territories, but also the entire country.

The draft law concerns changes in the Law on Occupied Territories, the Criminal Code and the Code on Administrative Offences. According to the existing Law on Occupied Territories, illegal entry of foreign citizens and stateless persons into Abkhazia and so-called South Ossetia is punishable by fine or two to four years of imprisonment.

Under the proposed changes, however, the above offence committed for the first time shall not entail criminal responsibility and shall result in an administrative fine in the amount of 400 GEL; criminal responsibility shall be imposed if the person commits the same offense again, but, even in that case, the sanction is still a fine. The new initiative provides for up to one year imprisonment for the above offence only in the case, if it is committed under aggravating circumstances (multiple violations, using violence or threat of violence, etc.), while, under the current legislation, the punishment incurred for such offences is up to five years in prison.

The above package of amendments is obviously designed to radically liberalize the existing sanctions, which we welcome. Nevertheless, as noted, we believe that such changes should not be restricted only to illegal border crossing in the occupied territories, but should also extend to illegal movement over any segment of the border throughout the entire country. If the law is adopted in its present state, we will witness a situation under which a fine of 400 GEL will be imposed for illegal border crossing in the occupied territories, while illegal crossing of other sections of the state border will result in three to five years in prison, which is clearly inconsistent. Besides creating unequal conditions for offenders, this regulation may increase the number of illegal border crossings from the occupied territories. A potential offender would, naturally, choose to cross the Georgian border passing through occupied territories, since the sanction is just a fine, whereas he faces prison for crossing other sections of the border. Subsequently, it is both necessary and appropriate to harmonize and to a certain extent liberalize the laws on illegal border crossing in the occupied as well as ordinary territories of the country.

As regards to the liberalization of the crime in question, the need for this initiative is voiced in the Council of Europe’s recommendations to a number of countries. The same position has often been stated during the negotiations between the EU and Georgia. We share the opinion that a five-year imprisonment is an unjustifiably severe punishment for such an offence. Even countries such as the USA, Greece, Italy, Russia, and Germany, to which illegal immigrants and illegal crossing of state borders pose far greater problems, have more liberal laws regulating these issues. For example, punishment for illegal border crossing provides for: a fine or up to six months imprisonment in the United States[1]; a maximum of six months administrative imprisonment and/or fine in Greece[2]; up to one year imprisonment and/or fine in Italy[3]; up to two years in prison or a fine in Russia[4]; and up to one year imprisonment or a fine in Germany[5].

The existence of uncontrolled territories has served as the argument brought in support for the need of tougher sanctions against the above offense in Georgia, and strict regulations were meant to act as a preventive measure. This argument will lose its validity if the above package of amendments is approved, while the punishment prescribed by the present Criminal Code will remain totally inappropriate and inconsistent.

Due to the above reasons, we advise the government to apply a comprehensive approach to this issue and effect complete harmonization of regulations on illegal border crossing. At the same time, it is essential that the Ministry of Internal Affairs be actively involved in the processes, in order to ensure that all possible risks are assessed and pertinent changes are made to the legislation.

Author: Gigi Chikhladze