The Public Defender echoes the draft amendments planned to be made to the Law of Georgia on Assemblies and Demonstrations in the Parliament of Georgia and believes that they represent an intense interference with freedom of expression/assembly, which restricts the expression of opinion by using temporary constructions (for example, a tent). Such intense restriction of freedom of expression in a democratic society can be justified only by the need to protect an important, weighty interest, which cannot be seen in the draft law presented.

The essence of the draft law

The draft amendments prohibit participants in the assembly or demonstration from erecting temporary constructions on 5 possible grounds. In particular, participants in assemblies and demonstrations are prohibited from putting up a temporary construction if: 1) it poses a threat to the participants in the assembly or demonstration or other persons, 2) it hampers normal functioning of an enterprise, institution or organization, 3) the assembly or demonstration is not substantially impeded without such a construction, 4) such a construction is not related to holding an assembly or demonstration, 5) it hampers the police from maintaining public order and security.

The Public Defender believes that none of these grounds is sufficient to impose the restrictions proposed by the draft amendments. In particular,

1. "It poses a danger to the participants in the assembly or demonstration or other persons"

Participants in the assembly or demonstration are prohibited by the draft law to put up a temporary construction if it poses a danger to the participants in the assembly or demonstration or other persons.

According to the definitions of the Constitutional Court of Georgia, there are elements of the rule of law, which may not be directly provided for by any of the norms of the Constitution, but should be given no less importance, as it may be impossible to realize the principle of the rule of law without them. Such an element of the rule of law is the so-called principle of foreseeability, although the term "principle of definiteness" would be more appropriate to properly describe the principle. The content of the norm is necessary to be precise and unambiguous. The norm must be sufficiently defined, not only in terms of content, but also in terms of the subject, purpose and scope of the regulation, so that the addressee can correctly perceive the law and conduct his behavior in accordance with it, foreseeing the consequences of his behavior.[1]

The existence of grounds provided for by law or existence of even a legitimate purpose is not enough for the legitimacy of interference with the rights of assembly or expression enshrined in the Constitution of Georgia. Additionally, it is needed that the use of restrictive measures be necessary in a democratic society.[2] In addition, according to the practice of the Constitutional Court of Georgia, the restrictive norm becomes unconstitutional when it represents a disproportionately, unreasonably strict and/or useless means of achieving the goal.[3]

The principle of proportionality requires that the measure provided by the restrictive norm be a useful means of achieving the legitimate public goal.[4]

The draft amendments do not provide arguments as to why and how the placement of temporary constructions (including tents) during a demonstration may pose a threat to the participants in the assembly/demonstration and/or third parties. In addition, it is not clear why the prohibitions already established by the current legislation are not sufficient to protect participants in assemblies/demonstrations and/or third parties from danger. The draft law aims to protect participants in assemblies/demonstrations/third parties from "danger", however, it is not specified what such "danger" can be related to, whereas the existing regulation already prohibits participants in assemblies/demonstrations from possessing an object or substance that is used or can be used to harm the life and health of the participants in the assembly or demonstration or other persons.

The Law of Georgia on Assemblies and Demonstrations prohibits the possession of certain items. In particular, according to the current regulation, the participants in the assembly/demonstration are prohibited from: a) having firearms, explosive, flammable, radioactive substances or cold weapons; b) having an object or substance that is used or can be used to harm the life and health of the participants in the assembly or demonstration or other persons; c) having tear-inducing, nerve-paralytic and/or poisonous substance; d) having alcoholic beverages; e) intentionally creating obstacles to traffic.

The draft law does not show why the prohibitions already established by the legislation are not sufficient to protect participants in assemblies/demonstrations or third parties from danger. In addition, the content of the norm allows for a broad interpretation. Thus, the current norms already provide for the possibility of ensuring appropriate response in the event of such a threat and there is no need to establish additional prohibitions.

2. "It hampers the normal functioning of an enterprise, institution or organization"

According to the draft amendments, the participants in the assembly or demonstration are forbidden from putting up a temporary construction, if it hampers the normal functioning of an enterprise, institution or organization.

According to the Law of Georgia on Assemblies and Demonstrations, it is forbidden to block entrances to buildings, highways or railways during assemblies and demonstrations. The law makes an additional reservation that an administrative body, in the vicinity of which the assembly or demonstration is being held, has the right to impose restrictions on holding the assembly or demonstration away from the building, but no more than twenty meters, in order to avoid the blocking of the building and disruption of the operation of the institution. The law establishes a special regulation relating to assemblies-demonstrations in the vicinity of the court.

The draft law does not substantiate why it is necessary to introduce the above-mentioned restriction and/or what legitimate purpose of the above-mentioned changes is. In addition, the wording of the article allows for a broad interpretation and is not predictable. In particular, blocking the entrances to buildings of "institutions", "enterprises" and/or "organizations" is prohibited by the law currently in force. In addition, the law establishes a mechanism for the protection of the interests of the administrative bodies on the one hand, and of the persons participating in the assembly/demonstration on the other hand, which means that while continuing the "unhindered operation" of the body is an important legitimate objective, it cannot restrict the essence of the right to assembly/demonstration. That is why, according to the law, restrictions may be imposed for holding an assembly or demonstration away from the building, but not more than twenty meters. In addition, as mentioned above, naturally, any gathering in a public place can cause certain disruption of the usual rhythm of life, however, this cannot justify interference with the right. Therefore, when there is a peaceful assembly, the State should show some degree of tolerance towards it.[5]

3. “The assembly or demonstration is not substantially impeded without such a construction”

The mentioned reservation contradicts the right to assembly and expression enshrined in the Constitution of Georgia. According to the draft amendments, the participants in the assembly or demonstration are prohibited from: putting up a temporary construction, if the assembly or demonstration is not significantly impeded without putting up such a construction. It should be noted that freedom of expression implies the possibility of choice. A person should be able to choose the most acceptable form of expression from a wide range of options.[6] Accordingly, the form should be chosen by the participant in the assembly and it is not inadmissible for the State to define for the participants what items, objects, constructions, painting, inscription or sculpture can be related to the protest and/or solidarity expressed by them.

4. “Such a construction is not related to holding an assembly or demonstration”

According to the draft amendments, the participants in the assembly or demonstration are prohibited from: putting up a temporary construction, if it is not related to the holding of the assembly or demonstration. The Public Defender considers that, if there is a need to introduce such additional regulations, which are not related to the assembly or demonstration, the mentioned changes should be included in the relevant legislation and not in the Law of Georgia on Assemblies and Demonstration, as the purpose of this law is to determine the manner of exercising the constitutionally recognized right to assembly, while the regulation of issues that are not related to the holding of assemblies or demonstrations does not fall under its scope.

5. “It hampers the police from maintaining public order and security”

According to the draft law, participants in the assembly or demonstration are prohibited from putting up a temporary construction if such a construction: hampers the protection of public order and security by the police.

It should be noted that, according to Article 173 of the Administrative Offences Code, disobedience to the legal order or request [...] of an employee of the law enforcement agency during the performance of official duties constitutes an offence.

Accordingly, if specific persons, in specific cases, prevent the "police from protecting public order and security", by their actions, resistance, use or erection of temporary constructions, the national legislation (Law on Police; Administrative Offences Code of Georgia) provides for the levers to take the relevant action in response to the mentioned individual behavior. Thus, based on the fact that the latter ground provided for in the draft law is already regulated by the legislation in force today, there is no need for its additional regulation.

The Public Defender of Georgia calls on the Parliament of Georgia to take the above assessments into account and protect the constitutional standard of the right to assembly-demonstration.

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[1] Judgment No. 2/3/406,408 of the Constitutional Court of Georgia of October 30, 2008 in the case of The Public Defender of Georgia and the Georgian Young Lawyers Association v. the Parliament of Georgia, II, 36

[2] Law of Georgia on Assemblies and Demonstrations, Article 2, part 3; Constitution of Georgia, Article 17, paragraph 5.

[3] Judgment No. 1/2/503,513 of the Constitutional Court of Georgia of April 11, 2013 in the case of Georgian citizens Levan Izoria and Davit-Mikheili Shubladze v. the Parliament of Georgia, II, 40

[4] Judgment No. 2/3/663 of the Constitutional Court of Georgia of May 11, 2018 in the case of Georgian citizen Tamar Tandashvili v. the Government of Georgia, II, 29

[5] Judgement of the European Court of Human Rights of December 5, 2006 in the case of Oya Ataman v. Turkey, paragraphs. 39-42.

[6] Judgement No. 1/5/1271 of the Constitutional Court of Georgia of July 4, 2019 in the case of Besik Katamadze, Davit Mzhavanadze and Ilia Malazonia v. the Parliament of Georgia, II, 34