A draft law on Changes to the Georgian Code of Administrative Offences that concerns adding article 1691 to the code has been submitted to the Parliament of Georgia. The given article will declare interference with the freedom of belief and religion as administrative offence.

It should be highlighted that apart from illegal interference into religious service and/or other religious rite and inflicting damage to religious buildings or sacred objects the draft law prohibits a very wide range of activities associated with religion:

• display of hatred and/or other degrading treatment of sacred objects, religious organizations, clergymen or worshipers that is directed towards insulting religious sentiments of worshippers;
• Public display of religious animosity and hatred and/or publically calling upon such actions;

The Public Defender of Georgia regards that this type of provision contradicts freedom of expression both through context and formulation. It also contradicts the principle of predictability of law, which is an essential component of a rule-of-law based state and as a result of all of these, especially threatens democratic development, as it jeopardizes the opportunity for large scale public debates.

According to the suggested formulation the only criteria for determining interference with freedom of expression is “insulting religious sentiments of worshippers”, which completely takes away the opportunity for objective evaluation and places the freedom of expression of one individual entirely under another individual’s - worshipper’s control. This, in other words is equal to granting a privilege to the worshipper.

In addition, relevant state bodies, when enforcing the law, should evaluate what can be regarded as “insulting to religious sentiments of worshippers”. As a result this will allow a wide opportunity for arrogation to these state bodies.

Moreover, “insulting sentiments” cannot be used as grounds for restricting a fundamental human right. The Constitutional Court of Georgia has declared that “position, values and ideas... cannot serve as ground for restriction of freedom of expression. The state is obliged to protect objectively identifiable interests but not subjective feelings.”(November 10, 2009 judgment of the Constitutional Court of Georgia, 1/3/421,422 for the case Citizens of Georgia Giorgi Kipiani and Avtandil Ungiadze v. the Parliament of Georgia, II.p.7)

Human rights protection organization Article 19 declared in regards to amendments to Criminal Code of Russian Federation Aimed at Countering Insult of Religious Beliefs and Feelings of Citizens that: “the draft law fails the test of legality, as it introduces overly broad and vague legal terms, such as “insult of religious beliefs and feelings,” “denigration of a religious service,” and “religious literature.” The vagueness and subjective nature of these terms could lead to arbitrary interpretation and abuse by law enforcement agencies” (Russia: Pussy Riot Inspired Blasphemy Law Threat to Free Expression, 01/7/2013). The same conclusion can apply to the draft provision in question, as it contains identical, vague categories, when according to common practice a provision restricting freedom of expression should be “clear and foreseeable, narrowly tailored” in order to be considered constitutional. (Citizens of Georgia Giorgi Kipiani and Avtandil Ungiadze v. the Parliament of Georgia, 1/3/421,422 November 10, 2009 II.p.7)

Moreover, the provision includes a broader notion “public display of religious animosity and hatred and/or publically calling upon such actions”. Both European Court of Human Rights and Constitutional Court of Georgia are strictly following the practice that prohibition of harmless proclamation, that is a part of debate on issues with high public interest, violates freedom of expression.

In a case against Turkey, that concerned prosecution of an individual for public display of hatred on religious grounds the European Court of Human Right remarked that: “expressions that seek to spread, incite or justify hatred based on intolerance, including religious intolerance, do not enjoy the protection afforded by Article 10 of the Convention. However, the Court considers that the mere fact of defending sharia, without calling for violence to establish it, cannot be regarded as “hate speech”. (Gündüz v. Turkey, application # 35071/97, 04.12.2003, paras.51)

The same approach is shared by the Constitutional Court of Georgia: “It is important that a law, as well as the practice of its application make a distinction between statements that on one hand may include language of violence, but at the same time is harmless and presents part of political, social and scientific discussion and on the other hand of proclamations authors of which realize the probable outcome of the proclamation and aim for that outcome. (Citizens of Georgia Zviad Dzidziguri and Kakha Kukava, Young Lawyers Association of Georgia, citizens of Georgia Dachi Tsaguria and Jaba Jishkariani, Public Defender of Georgia v. the Parliament of Georgia 2/482,483,487, 502, April 18, 2011 para.II.93).

Open and unobstructed public discussion on topics of high social interest presents a value critically important for the democracy and implementation of self-governance by the citizens. When the Freedom of Expression is limited in the name of protecting the right of others, it is important to identify the importance of a specific expression for the discourse of the society. In a society where religious organizations are especially powerful and influential, it is of outmost importance that individuals have the right to express their own thoughts (even unacceptable) towards these organizations, their representatives and followers. This is the only way for non-believers to have an opportunity for self-realization in private and public life. The proposed form limits an expression of atheistic attitudes in the society, despite the fact that atheism enjoys same protection as any religious belief and atheists’ attitude towards religious matters in the eyes of law should have the same weight as views of believers. The provision in question clearly disregards this standard.

Instead of encouraging pluralism and respect for different attitudes in society, proposed provision may inflate antagonism between individuals representing different religious groups and different beliefs.

Considering the fact that the public good gained by adoption of this norm is highly questionable, whereas damage to freedom of expression and democracy is clear, the provision in question presents a disproportionate limitation of the freedom of expression and contradicts with the Constitution of Georgia, as well as other freedoms guaranteed by the European Convention of Human Rights and other international legal acts. Therefore, due to the threats listed above, the Public Defender of Georgia urges the Parliament of Georgia to decline adoption of a draft law with this formulation and content.