The Public Defender of Georgia addressed the Parliament of Georgia with a proposal with regards to the draft law of Georgia “On introduction of changes into the Criminal Code of Georgia”.

According to the initiated draft law, the code is supplemented with the article 239¹which declares “a call aimed at instigation of confrontation” as a criminally punishable act.

It should be noted that in recent years the state has not conducted effective investigation into and has not punished concrete persons for hate-based criminal cases. The Public Defender considers it to be extremely important to carry out timely, effective and accountable investigation into hate-based crimes and other instances motivated by hate. The above has been the subject of numerous recommendations of the Public Defender over the years. The Public Defender believes that if the state chooses to restrict freedom of expression through state regulations it is necessary to consider dangers associated with this action. Such regulation in our reality, when minorities and their supporting activists become victims of verbal attacks, should not turn into a big danger of setting unlawful restriction of freedom of expression for these minorities and their supporters again.

Given all the above, the Public Defender believes that formulation of the norm in the proposed draft poses a real danger. The presented edition of the norm does not comply with standards of freedom of speech and expression defined by the Georgian legislation, as well as international standards and practice.

Namely, the text of the norm (“rivalry and instigation of confrontation”) is quite general and does not meet requirements of foresee ability of the law that creates a danger of its different interpretation and incorrect application in practice. The norm does not take into account those objective and real criteria that can become means to measure the mentioned goal. Namely, by the presented formulation of the norm, it is not obligatory there to be a clear, direct and essential danger of occurrence of criminal result at the time of the call. Accordingly, the proposed edition of the norm criminalizes a simple call aimed at instigation of rivalry.

The call can only be included in the sphere of criminal responsibility if it creates a clear, direct and essential danger of establishment of criminal result. In itself, a call that does not contain such danger, however unacceptable it may be for some groups or the entire society, belongs to the sphere protected by the freedom of speech.

Additionally, the norm regulates such calls aimed at instigation of the rivalry that intends instigation of rivalry or confrontation between “groups of persons”. In the opinion of the Public Defender, the presented definition does not correspond to international standards and international practice of human rights. Therefore, the formulation of the article should include and reflect words “against/towards” instead of the word “between”. This is a precondition of establishment of high standards of human rights protection and it decreases possibility of broad scale of interpretation of the article and risks for its incorrect supplication.

Another issue that is stressed by the Public Defender is the list of possible target groups of unlawful actions stipulated in the article 239¹of the draft law. The mentioned list does not include sexual orientation and gender identity, despite the fact that indeed these very groups have been victims of mass violence in recent period.

The Public Defender believes that formulation of the article, namely, the list of possible target groups of unlawful actions stipulated in the article 239¹should be supplemented with sexual orientation and gender identity that the said groups would grant the above-mentioned groups more stable guarantees of protection of their rights and freedoms than it is envisaged by the proposed edition of the norm.

Accordingly, the Public Defender of Georgia addresses the Parliament of Georgia with the proposal to rectify shortcomings of the draft law for its bringing into compliance with human rights protection international standards and expresses his willingness to take an active part in the work process.