In the nearest future, the Parliament of Georgia plans to pass the Law on Amendments to the Criminal Code of Georgia in the first reading. One of the main goals of the draft law, which was authored by the Ministry of Internal Affairs of Georgia and initiated by the Government of Georgia, is to criminalize public incitement to acts of violence. Article 239¹ of the proposed amendments declares the following as a punishable act: public incitement to acts of violence with the aim of causing a discord between certain groups based on their racial, religious, national, provincial, ethnic, social, political, linguistic and/or other characteristics, and imposes a sanction of imprisonment for up to two years. Despite the fact that the draft law has undergone certain changes since it was initiated – in particular, the draft law mentions clear, direct, and substantial risks – it still contains serious threats to freedom of expression and, considering the existing context, the declared motivation of the State with regard to criminalization of such acts is not convincing enough.

The state policy in relation to violent and hate crimes committed against vulnerable groups and minorities is demonstrably ineffective and, in some cases, repressive. The State demonstrates absolute passivity in terms of restoration of violated rights and prevention. Accordingly, the public has very low confidence that the introduction of the restriction of freedom of expression aims to protect discriminated groups. Despite the fact that Part 3¹ of Article 53 of the Criminal Code of Georgia regards a crime motivated by discrimination as an aggravating circumstance, the rate of application of this norm in practice is extremely low, and the State does not maintain relevant statistics, which is an instrument for combating hate crimes. The State has not conducted effective investigations and has not punished concrete individuals in connection with criminal cases of hate crimes, including the case of May 17, 2013. Moreover, the State’s openly demonstrated loyalty to the dominant religious group and to the dominant morals, as well as deviation from the principles of the secular state makes it hard to believe that, in this case, the State is interested in protecting discriminated groups. The said doubts are reinforced by the open support for the draft law on the part of those groups that support criminalization of insults to religious feelings.

In addition, it is important to point out the risks that are posed not only by the context of application of the norm but also by its concept and the vagueness of text of the norm. The terms used in the norm – ‘public incitement to acts of violence’ and ‘causing a discord’ between groups of individuals with concrete characteristics – leave a possibility to interpret them broadly and to use them arbitrarily, which makes it possible for the State to take punitive measures, considering that the norm only provides for deprivation of liberty as a form of punishment. The text of the norm does not regard vulnerable groups as objects of protection from hostile, discriminatory, and violent treatment, as provided for by international standards of regulation of combating racism and xenophobia; rather it provides for unclear regulation of creation of a discord between groups, which, in our view, reveals the intention of the authors of the draft law to impose an unjustified restriction on freedom of expression and critical opinion. Abuse and incorrect interpretation of the norm by respective bodies contains a risk of restriction of freedom of expression of media representatives, NGOs, religious and ethnic groups, and political opponents, which would have a negative effect on the development of democratic state and formation of open society, the more so that the proposed draft law provides for a sanction of liquidation of media outlets and other legal entities, which is a disproportionally strict punishment.

At the same time, considering that protection of freedom of expression is one of the major pillars of a democratic society, the State’s attempt to introduce legislative regulations that restrict freedom of expression should be taking place against the background of broad discussions and high involvement of interested persons.  

Due to the foregoing, we call upon the Parliament of Georgia to properly realize the significance of democratic and pluralist values, considering the existing context, and not to adopt the said norm, regardless of what changes are made to its content. In addition, we consider it necessary that the State pursue an effective policy with the aim of proper enforcement of already existing legislative norms, instead of developing new regulations, in particular, in terms of effective investigation of hate crimes and steadfast protection of the rights of vulnerable groups.

Georgian Young Lawyers’ Association (GYLA)

Identoba

Human Rights Education and Monitoring Center (EMC)

Tolerance and Diversity Institute (TDI)

Charter of Journalistic Ethics

International Society for Fair Elections and Democracy (ISFED)

Transparency International Georgia  

Georgian Democracy Initiative (GDI)

Article 42 of the Constitution

Institute for Development of Freedom of Information (IDFI)

Media Development Fund (MDF)