The Public Defender of Georgia is responding to the draft amendments to the Law of Georgia on Assemblies and Demonstrationsprepared by the Members of the Parliament of Georgia and the accompanying changes. According to the explanatory note of the draft law, the amendments are aimed at harmonizing the legislation with the new edition of the Constitution. The Public Defender of Georgia welcomes this process, but considers that the proposed amendments absolutely prohibit the right to peaceful assembly of a wide range of people, which worsens the constitutional standard of the protection of the right and contradicts the universally recognized international principles of human rights.

Paragraph 1 of Article 21 of the new edition of the Constitution of Georgia states that everyone, except for servants of defense forces or the bodies responsible for defending state or public security, have the right to public and unarmed assembly without preliminary permission. The draft amendments to the Law of Georgia on Assemblies and Demonstrations clarifies the term “servants of defense forces or the bodies responsible for defending state or public security" and offers an extensive list of such bodies.[1] The amendments expand the circle of persons who shall be subjected to the absolute prohibition of the right to peaceful assembly.

According to paragraph 2 of Article 2 of the applicable edition of the Law of Georgia on Assemblies and Demonstrations, the right to assemblies and demonstrations shall not apply to the employees of the armed forces, armed law-enforcement bodies, special and paramilitary forces.[2] The absolute prohibition of the right to peaceful assembly of these persons has repeatedly become the subject of acute criticism of the Public Defender of Georgia and the Council of Europe’s Venice Commission (European Commission for Democracy through Law). In particular, the Venice Commission negatively responded to this issue in its opinion 2011, which evaluated the planned amendments to the Law on Assemblies and Demonstrations. The Venice Commission clarifies that although paragraph 2 of Article 11 of the European Convention for the Protection of Human Rights and Fundamental Freedoms stipulates that the article shall not prevent the imposition of lawful restrictions on the exercise of the right to assembly by members of the armed forces, of the police or of the administration of the state, the restriction should be imposed in each specific case for achieving a legitimate aim, observing the principle of proportionality. Furthermore, the joint guidelines of the Venice Commission and the OSCE Office for Democratic Institutions (ODIHR) stipulates that the legislation shall restrict the freedom of assembly of police or military personnel only if the reasons for the assembly are directly related to their official duties and only to the extent that is absolutely necessary bearing in mind their professional duties. At the same time, the restriction shall be imposed only when participation in the assembly would jeopardize the political neutrality of the police or military personnel when serving all groups of the community.

The prohibition of discrimination is one of the guidelines of the OSCE/ODIHR and the Venice Commission. According to this principle, absolute prohibition shall not apply to the right to peaceful assembly of police and military personnel. Pursuant to the guidelines, everybody shall be able to equally enjoy the freedom of peaceful assembly.

The proposed legislative package not only does not take into view the abovementioned standard, but it offers an extensive list of state agencies, employees of which shall be subjected to the restrictions on the right to peaceful assembly. Among them are employees of the Emergency Management Service, the Environment Supervision Department of the Ministry of Environment and Agriculture of Georgia and the Special Penitentiary Service of the Ministry of Corrections of Georgia. The absolute prohibition of these persons’ right to peaceful assembly is questionable in the situation when their direct responsibility for defending state and public security is not clearly established.

At the same time, the separation of civilian personnel and employees responsible for defending public and state security has been a fundamental problem in a number of bodies for years. Due to the above, the circle of people subjected to the blanket prohibition of the right to assembly is unjustifiably wide. Consequently, it is important to make similar separation in the process of harmonization of the legislation with the new edition of the Constitution, which would correct the current gaps and establish a high standard of the protection of the right.

The Public Defender of Georgia calls on the Parliament to take into consideration her opinions and expresses readiness to take active part in the subsequent legislative discussion of the amendments.