Amendments to the Law of Georgia on Assemblies and Manifestations – passed on first reading at an ad hoc session of the Parliament of Georgia on 21 June – are being staunchly defended by the ruling party and just as resolutely criticized by the political opposition.
The amendments were put forward by the ruling party following consultations with the Parliamentary opposition and nongovernmental organizations. Consensus on certain issues will need to be reached before the second reading of the draft amendments.
Legislative changes are necessary to bring the Law on Assemblies and Manifestations in compliance with the 18 April 2011 ruling of the Constitutional Court which struck down some provisions as unconstitutional. Specifically, the Constitutional Court found that the Law’s prohibition against holding rallies within a twenty-meter radius of administrative buildings violated freedom of speech, assembly and manifestation guaranteed by the Constitution of Georgia. In so ruling, the Court partly upheld a challenge to the Law which had been brought by the Public Defender of Georgia, Georgian Young Lawyers Association, two political opposition parties and several individual citizens.
The new draft amendments still impose some restrictions on public assemblies and manifestations. This time, however, the ban extends only to entrances of courts, prosecutor’s office, police stations, penitentiary institutions, railway stations, airports and seaports. No blocking of entrances, thoroughfares and railways is allowed. As regards general administrative institutions, each institution will be entitled to proscribe the distance from the respective building within which a rally will be allowed, provided that distance does not exceed a twenty-meter radius. Rallies are also prohibited within a hundred-meter radius from entrances to military facilities.
MP Chiora Taktakishvili, First Deputy Chairman of the Parliamentary Committee for Legal Issues, told Tabula that the new draft law accommodates those arguments which the Constitutional Court used as the basis for its ruling. “The Constitutional Court explained that restriction is acceptable at certain types of institutions with a higher threat – for example, police, court or penitentiary facilities. It would be incorrect, however, to impose such unconditional and overall restrictions at some institutions,” she explained. Accordingly, the new draft law separates restrictions on manifestations by types of public organizations. Unconditional restrictions “in respect to political institutions” have been lifted.
According to Taktakishvili, this provision was submitted to and positively assessed by the Venice Commission last year. The Commission especially welcomed the lifting of unconditional restrictions of manifestations at political institutions.
Taktakishvili says the amendments introduce a new norm – proportionality – which is established by the case law of the European Court of Human Rights. “This means that any restrictive measure in any particular case must be proportionate and designed for protecting certain good. A leadership of an organization must weigh well what minimal restriction must be imposed to ensure a normal functioning of an institution.”
The draft amendments thus provide that state bodies may now consider the individual facts of the case and apply a proportionality test if, for example, a thoroughfare is blocked by an insufficient number of people.
Tbilisi City Council Member Tina Khidasheli of the Republican Party complains that adoption of the draft amendments would enable the government “to disallow any type of rally or manifestation in those territories of the capital or any other city which are home to public buildings.” By the proposed wording, “no one will ever be able to identify when a dispersal of rally is legitimate and when it is illegitimate,” Khidasheli contends.
The Georgian Young Lawyers’ Association (GYLA) also is opposed to the draft amendments on the grounds that they contain “vague provisions” and pose a “potential threat of human rights violations.” According to GYLA, any provision banning manifestations within a twenty-meter radius of certain buildings conflicts directly with the Constitutional Court ruling. GYLA maintains that “in regulating, the emphasis must be placed on preventing the blocking of entrances and not on establishing some formal radius.”
GYLA also criticizes as “vague and containing potential threat” a proposed new article to the Law on Assemblies and Manifestations aimed at striking a balance between the rights of participants in a rally on the one hand and citizens living or working in the location of a rally on the other. The new article reads: “Relevant authorities shall achieve a fair balance between the freedom of assembly and the rights of those citizens who live, work, are engaged in trade, or run business in those locations where the assembly takes place.”
Chiora Taktakishvili explains that this new article is taken from the Guidelines on Freedom of Peaceful Assembly adopted by the Venice Commission in June 2010. To that end, relevant authorities may impose restrictions on time and venue and offer alternative venues for rallies. Similar restrictions on assemblies in public forums are also recognized in the United States. The general rule established by the U.S. Supreme Court is that “time, place or manner” regulations may be imposed if they are “content-neutral,” “narrowly tailored to serve a significant governmental interest,” and “leave open alternative channels for communication of the information.”
The new amendments to the Law of Georgia on Assemblies and Manifestations also provide that rally organizers who breach the Law must be given a fifteen-minute grace period after receiving notification that they are in violation of the Law. GYLA deems as unacceptable the norm establishing a fifteen-minute period for eliminating violations. However, as Chiora Taktakishvili clarifies, the fifteen-minute period is given not for eliminating violations, but for “taking initial steps to fulfill requirements of the Law. Consequently, a rally will not be dispersed if law enforcement officers see that organizer(s) of the rally are taking relevant measures.”
The new draft law, compared to the previous one, implies a significant liberalization of legislation on manifestations by abrogating the unconditional prohibition of rallies at administrative buildings. Moreover, compared to the previous law, the draft amendments provide that calls for toppling the government will constitute a ground for interrupting the rally only if such demands pose an “imminent threat” to the security of the state.
Protesters are prohibited in any case from carrying dangerous weapons and objects that threaten public safety. Under the previous law, responsibility for wrongdoing by participants in a rally rested in every case with the organizer of the rally. Under the new law, the organizer will be punished only if he/she fails to take “all reasonable measures” to prevent wrongdoing.