The Practice of Disproportionate and Unsubstantiated Arrests of Activists - საერთაშორისო გამჭვირვალობა - საქართველო

The Practice of Disproportionate and Unsubstantiated Arrests of Activists

09 March, 2022

Against the background of solidarity demonstrations for Ukraine, in recent days the authorities have resumed arresting civil activists, continuing the practice of using administrative arrest against them in a selective, disproportionate and unsubstantiated manner. The foregoing points to the authorities’ willingness to make the public refrain from expressing protest and solidarity and exercising the rights to freedom of assembly and manifestation by means of making arbitrary arrests.                        

In our opinion, at the time of these and previous arrests, the law enforcement bodies and courts permanently violated the activists’ rights and were engaged in selective application of the legislation and arbitrary arrests of activists. As a result, the situation in terms of freedom of expression, as well as freedom of assembly, has been deteriorating in Georgia. It should also be noted that, according to amendments made to the Code of Administrative Offences in 2021, the amount of the fine and the duration of the minimum term of administrative detention was increased in articles often applied against activists, which has a chilling effect. 

Below we describe the main tendencies encountered by civil activists at different times from arrest to delivery of fina1 decision:  

Violations at the time of demonstrations:

  • Administrative arrests are mainly made under the provisions of the article on disorderly conduct or disobedience to the police, with the grounds for arrest and relevant evidence often missing. In most cases, activists are arrested arbitrarily or on the instruction of the head of the police force.   
  • The police use excessive force when arresting activists. Activists often sustain physical injuries when being arrested. There was also a case when an individual who had already been arrested was inflicted a physical injury in a patrol police car.  

Violations after arrests: 

  • Arrestees are not informed of their rights. In most cases, they are not informed of the grounds for the arrest and of the right to have a defense counsel and are not allowed to notify the fact of their arrest and their whereabouts to a person named by them in a timely manner.
  • The defense counsels are not given an opportunity to get involved in the case and to meet with the arrestees in a timely manner. After the arrest is made, it is difficult to ascertain the whereabouts of the arrestee. A part of the activists are not immediately transferred to the relevant police station and they have to wait in the car, or the activists who were arrested together are taken to different police stations, which makes it difficult and longer to ascertain their whereabouts. The defense counsels who go to the police station to meet the arrestees are artificially made to wait.
  • The protocols of arrest are formulaic and uninformative. As a rule, a protocol of arrest is filled out in a police station. The majority of them only contain general instructions on disorderly conduct or disobedience to the police. The individual who makes the arrest and the one who fills out the protocol of the arrest is often different persons.   
  • The police use the maximum term of detention without any substantiation. Despite the fact that an arrested person must be brought before the court at the first opportunity, but not later than within 24 hours (with the aim of obtaining evidence, this term may be prolonged by 24 hours), the police often use the maximum term without a legitimate aim or any substantiation.

Violations in the judicial process: 

  • The Code of Administrative Offences used by the courts is flawed. It does not provide for the minimum standards of a fair trial established by the European Court of Human Rights. The adversarial nature of proceedings and equality of the parties are not ensured, the burden of proof is not distributed correctly, and the presumption of innocence is neglected.
  • The court does not assess the lawfulness of the arrest. Despite the fact that the court is entitled to verify the grounds and lawfulness of arrest, it refuses to consider this issue even if a relevant request has been submitted.   
  • The evidence examined in the court is not sufficient for imposing an administrative penalty on the arrestee. As a rule, oral explanations of police officers are submitted as evidence. The court seldom examines TV news items and recordings of police officers’ shoulder-held cameras at the time of consideration of the case.
  • In most cases, the court decision is unsubstantiated and formulaic. The decision is mainly based on police officers’ testimonies, without a critical assessment of inaccuracies and inconsistencies in their narrative.

We call on the authorities not to go beyond the constitutional limits, stop the unsubstantiated, disproportionate and arbitrary restriction of the freedom of expression of civil activists, and give them an opportunity to make full use of the rights and freedoms guaranteed by the Constitution of Georgia.