On July 19, 2015, the Tbilisi City Court announced its decision in the case of 10 individuals detained during a rally with the slogan ‘No to Panorama’, which had been held in front of the building of the Tbilisi City Council. The interests of the detainees were represented by the Georgian Young Lawyers’ Association. The police officers had drawn up offense reports against eight detainees on the basis of Article 166 (disorderly conduct) of the Code of Administrative Offenses, while the offense report against two detainees had been drawn up on the basis of both Article 166 (disorderly conduct) and Article 173 (non-compliance with a lawful demand of a police officer). The Court decided to discontinue the proceedings against three individuals due to absence of an offense, while it assessed the actions of seven individuals as disorderly conduct and imposed a fine of GEL 100 on them. The Court assessed the inscription used at the time of the rally, which compared the Panorama project with the male sexual organ, as disorderly conduct.

We are concerned about the fact that the Court failed to adequately assess the police officers’ unjustified interference with the detainees’ freedom of assembly and expression. Thus, the Court assessed what the Constitution of Georgia and the Law of Georgia on Freedom of Speech and Expression regard as freedom of speech as an administrative offense. This decision significantly deteriorated the standard of protection of freedom of expression, which is guaranteed by the Constitution and Georgia’s international commitments, and which had also been established by the case-law of Georgia’s common courts.  

We would also like to note that although the concrete word used by the protesters may really be unacceptable for the public or for its certain segment, freedom of expression protects not only pieces of information that are met with indifference or in a neutral manner, but also those which the public or its certain segment may consider as insulting, worrying, or even shocking. Such are the requirements of pluralism, tolerance, and diversity of opinions in a democratic society (judgment of the European Court of Human Rights in the case of Lingens v Austria).

In a democratic society the State may not have the right to do a cleansing of opinions and words (phrases) expressed in the public space with the aim of ensuring that only those opinions are voiced that are tasteful and acceptable for the public, because they may be vulgar for one person and constitute an ordinary expression for another. Establishing the essential difference between the two is a matter of each individual's personal taste and style rather than an area of competence of the State and its officials (see, for example, a judgment of the U.S. Supreme Court in the case of Cohen v California [1]).

In addition, it is extremely important to give a correct assessment to the context in which the disputed word (phrase) was used. In accordance with Subparagraph B of Article 9 of the Law on Freedom of Speech and Expression, the State has the right to regulate obscenity, although Subparagraph F of Article 1 of the same law defines obscenity as a statement which does not have any political, cultural, educational, or scientific value and which grossly violates the universally recognized norms of ethics. In the given case, the said expression took place as part of a peaceful protest rally against the State’s action (when, in spite of the high public interest and an appeal of thousands of Tbilisi residents, public agencies issued a construction permit covertly and without the involvement of interested persons) and against the construction of the Panorama project in the proposed place, which leaves a number of questions unanswered [2] with regard to retention of the city’s image (including in the areas of environment, culture, and transport). Therefore, the disputed expression was used in connection with an issue of high public interest and aimed to direct the public’s attention to the aforementioned severe problems, which cannot be considered as obscenity and legitimate grounds for punishing citizens.

The analysis of the judgment shows that the Court completely failed to assess the political value of the expression in question and examined it in a fragmentary manner, without discussing the content and context of the protest of the participants of the assembly. In addition, in the judgment the Court failed to deliberate on a concrete person whose honor and dignity might have been infringed on by such expression. Considering the factual circumstances related to the case, such a person didn’t exist, because the protest was directed against a concrete project rather than against a concrete individual. Accordingly, there is no legitimate interest in restricting obscenity, which constitutes prevention of a possible violent act among individuals, in the case in question.  

Imposing content-related restrictions on freedom of expression and the State’s assuming the role of an evaluator of moral issues contradict the idea of pluralist and free public space and pose a threat of dominance of a concrete ideological or ethical discourse with the use of repressive state apparatus. Such an approach may have a chilling effect on other groups that will exercise freedom of expression in the future.

We believe that such a precedent not only poses a threat to freedom of assembly and expression but also brings the State’s adherence to democratic values under question.

We call upon all the three branches of the government and each of their representatives to fulfill the obligations imposed by the Constitution and not only respect the constitutionally guaranteed rights and freedoms but also do their best within their competence to contribute to practical realization of the said rights and to protecting them from undue interference.    

Georgian Young Lawyers’ Association                               

Identoba

Civil Development Agency (CiDA)

Partnership for Human Rights

Green Alternative

Transparency International Georgia

Human Rights Education and Monitoring Center

Article 42 of the Constitution

Institute for Development of Freedom of Information

Human Rights Center