The Public Defender is responding to the legislative package submitted to the Parliament of Georgia, which provides for the amendments to the Law of Georgia on Culture and the Civil Procedure Code of Georgia, and is describing it as incompatible with the Constitution of Georgia. According to the Public Defender, the legislative package restricts freedom of creativity. It should be emphasized that recent developments, in particular the initiatives aimed at criminalizing insult of religious feelings and the case of Aiisa, indicate that there is a tendency of restricting freedom of expression in the country, which is extremely unfortunate.

The abovementioned draft law basically repeats the out-of-date edition of the existing, so-called “dead norm” of the law, which is incompatible with freedom of expression. It should be noted that, at present, no agency is entitled to restrict freedom of creativity based on the abovementioned norm, while the main novelty of the draft law is formulation of the restriction as a new law and reference to the enforcement mechanism, which makes it applicable in practice.

The Constitution of Georgia[1] explicitly declares that "interference in creative process, censorship in the field of creative activity shall be impermissible" without any exception. Interference is permissible only in dissemination of a creative work if it violates the legal rights of another person.[2] The new edition of the Constitution established a higher standard of restriction of the right and indicated the opportunity of restricting the right only through a court decision.

The draft law envisages the possibility of interference in the creative process and censorship of creative activities, which contradicts the absolute ban established by the Constitution. As for dissemination of a creative work, the Constitution establishes only one basis for the restriction (rights of others), although the draft law goes far than this and offers an extensive list[3], which is also incompatible with constitutional standards.

It is noteworthy that the scope of the proposed norm (freedom and independence of creative activity) is quite broad[4] and it applies to all cultural valuables created by any means and in any historic epoch, which highlights the scope of the effect of the draft law.

The Public Defender calls on the Parliament of Georgia not to adopt the draft law in the given form and considers that it is necessary to make the following amendments to it in order to ensure its compliance with the Constitution:

1. Interference in the creative process and censorship of creative activity should be removed from the norm as it contradicts the Constitution;
2. The grounds for the prohibition of the dissemination of a creative work should not exceed the “rights of others” indicated in the Constitution;
3. The law should include an exhaustive list of the grounds implied in the “rights of others" in order to ensure compliance with the standards of freedom of speech and freedom of expression defined by law.[5] This implies restriction of freedom of creativity only by a clear and transparent[6], narrowly tailored[7] law and only if the benefit of the restriction exceeds the damage caused by it;
4. The law adopted by the Parliament should be directly directed to the implementation of the legitimate aim, critically significant for the existence of a democratic society, non-discriminatory and proportionately restrictive;[8]
5. In addition, the Law on Culture should directly reflect a test of restriction of the right, the examples of which are the Law on Assembly and Demonstrations[9] and the Law on Freedom of Speech and Expression.[10]

The Public Defender hopes that the Parliament will reflect the changes proposed by her in the draft law and will create solid opportunities for the involvement of the civil sector in the abovementioned process.