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THREATS OF LIMITING FREEDOM


OF EXPRESSION

Ana Tchiabrishvili He only earns his freedom and his life


Who takes them every day by storm1
DECEMBER 2018

It is safe to say that 2018 was a challenge to freedom of expression. Regres-


sive initiatives limiting freedom of expression became a trend, including in the
legislative body. Owing to severe public reaction and criticism, majority of these
initiatives could not be turned into law; regardless, growing number of such
initiatives in Parliament and individual court decisions against this background
that provide a controversial and dangerous interpretation of the existing legisla-
tion are alarming. The present document summarizes high-profile incidents and
facts that occurred in 2018. Together they are indicative of a trend of limiting
freedom of expression.

Limiting freedom of expression to protect religious feelings

On numerous occasions, the Patriarchy and groups associated with it have


expressed their desire to place statutory limitations on freedom of expression
in order to protect “religious feelings.” Several of such initiatives were endorsed
by the parliamentary legal committee with first hearing2,3. However, none of the
incentives initiated in Parliament to introduce punishment for offending reli-
gious feelings were successful. Even tough offending religious feelings has not
become punishable by law, in reality in 2018, a precedent of placing dispropor-
tionate limitations on freedom of expression was set by court in Georgia.

On March 20, 2018, the Patriarchy released a statement and expressed


concern over frequent instances of offending feelings of believers. “Company
AIISA” and the company director’s “immoral insolence” were specifically under-
lined. AIISA’s work was deemed as an open public challenge by the Patriarchy4.
The statement was followed by a protest rally in Kutaisi against AIISA prod-
ucts and in particular, placement of possibly an image of Queen Tamar on the
packaging5. Following the rally in Kutaisi, another rally was planned by students
of the Spiritual Seminary in Tbilisi. According to the rally organizers, they were
protesting against “placement of images of saints and religious holidays on
condoms, as well as placement of obscene jokes related to celebrations and
celebratory symbols of Christianity on condom packaging, mocking and insult-
ing national, cultural and historic values.” Overall goal of the rally was to protect
future generation.6

In about a month after the Patriarchy urged the authorities to “ensure ade-
quate protection of religious feelings in a timely manner”, on the basis of the
application of a political party Georgian Idea, Tbilisi City Hall prepared a report
of administrative offence against founder of AIISA, Ani Gachechiladze, under
art.159 of the Code of Administrative Offences of Georgia, for violating the rules
1 Johann Wolfgang von Goethe for commissioning, producing and disseminating advertisements7. On May 4,
2 http://www.tabula.ge/ge/story/104217-komitetma-religiu-
ri-grdznobebis-sheuracxkofis-dasjas-mxari-dauchira Tbilisi City Court’s board of administrative cases subsequently found that AIISA
3 https://goo.gl/Dox1En
4 https://goo.gl/KdEhpQ
products were unethical and they “violate universally recognized human and
5 https://goo.gl/RpCn4P moral norms, infringe upon religious symbols by using blasphemous words and
6 https://goo.gl/AA3Xu3
7 https://goo.gl/V99KE5 comparisons (images)...” Ani Gachechiladze was fined GEL 500 by the court,
she was ordered to remove products with certain designs from the market and
was prohibited from using them in the future. The decision provides definitions
of epiphany, Didgori Battle, King Tamar and “blessing hand” but it says noth-
ing about legal motivation as to why placing an image of Didgori Battle on a
condom package is unethical, why it contradicts universally recognized human
norms and more importantly, how can it counterweigh restriction of freedom of
expression.

Alongside radical groups, certain Georgian MPs were also pleased with the
court’s decision. Ironically, members of the legal affairs committee were espe-
cially delighted. For instance, Zakaria Kutsnashvili announced: “we have written
and unwritten tradition that we don’t say bad things about those who have
departed from this world8.” Gedi Popkhadze said that the court’s decision was
absolutely right. According to him, those who want to defend AIISA are mental-
ly underdeveloped9.

Clearly, civil society was alarmed by this decision. Notably, Judge Lasha Tavart-
kiladze cited ECtHR case law to substantiate his position, including Handyside
v United Kingdom. According to him, states enjoy broad margin of apprecia-
tion to impose such restrictions, however the court deliberately avoided citing
ECtHR phrases that have become a standard, as reinforced in this particular
case: freedom of expression entails not only “information” or “ideas” that are
favorably received or regarded as inoffensive or as a matter of indifference,
but also to those that offend, shock or disturb the State or any sector of the
population. Such are the demands of that pluralism, tolerance and broadmin-
dedness without which there is no “democratic society”. Exceptions to the
right to freedom of expression should be strictly defined and the necessity of
interference should be convincingly established.10

Intention of the Patriarchy to impose restrictions on expression of opinion unac-


ceptable to them was voiced yet again following a statement made by Arche-
vani Program host. In particular, during a report about dangers of censorship,
when presenting Lia Ukleba’s painting “Virgin Suicide” Giorgi Gabunia said:
“since it is a toy gun, she [Virgin Mary] cannot commit suicide, she’ll live and
even give birth to Jesus later on, so don’t worry about it.” The clergy became
furious with him because of what he said.

Bishop of Ruis-Urbnisi Eparchy Iob cursed him during a sermon11: “I curse him
and damn him, he will no longer repent, he’s the servant of the evil himself.
This television [Rustavi 2] should be abolished.” The following day Patriarchy
issued a statement in response to the program and urged the clergy to cut
any ties with Rustavi 2, not to give them any interviews or participate in their
programs12. The Patriarchy also urged the government to make effective and
quick steps to create legal and other mechanisms to protect public and pursue
appropriate policy to prevent development of uncontrollable processes.

There is a high public interest in the Patriarchy because it is one of the most
influential organizations actively involved in various political processes; it ex-
presses opinions about draft laws and policies of the State and is funded from
the State budget. Its statements may affect not only attitudes of the members
of its parish and formation of their opinion but also on decisions made by the
government, due to populist or other motives.

These processes are especially dangerous in light of the fact that the chair of
8 https://goo.gl/Cvu73B the parliamentary human rights committee supports punishment for offending
9 https://goo.gl/exMdif
10 https://goo.gl/Htqtcs, para.49 religious feelings and her committee endorses such legislative initiative13. Un-
11 https://goo.gl/ad5WAi
12 https://goo.gl/ymuL75
fortunately, Sophio Kiladze’s statement didn’t come as a surprise. For instance,
13 https://goo.gl/Dox1En in June 2017, about the case of “Birja Mafia” she stated: “what is there to like
THREATS OF LIMITING FREEDOM OF EXPRESSION

about a video that insults and discredits the law enforcement structures.”14
Further, due to homophobic attitudes of Sophio Kiladze, up to thirty NGOs
demand her resignation.15

Censorship of creative process or back to the future?

In May 2018, head of the parliamentary legal affairs committee Eka Beselia
and MP Levan Gogichaishvili prepared a bill that amends art.9 of the Law
of Georgia on Culture. According to the existing version, “interference in the
creative process, censorship of creative activity, seizure of a creative work and
prohibition of its distribution shall be prohibited, except if it infringes upon the
rights and legal interest of another person, stirs up national, ethnic, religious or
racial discord, preaches war and violence, or propagates pornography.”16 This
regulation has been effective in Georgia since 1997 and it is essentially non-en-
forceable. According to the bill prepared by Beselia and Gogichaishvili, the
following sentence would have been inserted in the existing regulation: “prohibi-
tion of distribution of a creative work is allowed only under court decision.”

Notably, the Constitution prohibits interference in creative process and censor-


ship of creative work. Seizure and prohibition of distribution of a creative work
is impermissible unless it violates legal rights of another person.17 As soon as
the president elected in the 2018 presidential elections takes an oath, consti-
tutional amendments will come into force, based on which interference with
creative process, censorship in the field of creative work is impermissible, while
prohibition of distribution is allowed only under court decision, if distribution of
the work violates rights of others.18

Clearly, none of the two versions of the Constitution allows limitation of creative
freedom based on grounds provided in art.9 of the Law of Georgia on Culture.
Violation of rights of others is a constitutional standard, a very high standard
and it should not be interpreted in a way that Judge Lasha Tavartkiladze would
have interpreted. The bill aimed to lower the Constitutional standard, instead of
harmonizing the existing Georgian legislation with amendments to the Consti-
tution of Georgia, as stated in the explanatory note. Instead of undermining the
constitutional standard, it would have been logical for the legislative body to
abolish art.9 of the Law of Georgia on Culture.

On May 29, it became known that the law of Georgia on Culture would no
longer be amended. Official motives of the decision are unknown, however it is
safe to believe that public criticism stopped the legislative initiative. Without ac-
tive public resistance, including by cultural public figures, Parliament may have
adopted amendments inspired by the spirit of censorship based on the motive
of harmonizing legislation with the Constitution.

Conditional freedom of expression

Another baseless restriction of freedom of expression by court is related to the


14 https://goo.gl/2PUiLz right to strike. Tbilisi metro workers were planning to go on a strike on May 3
15 https://goo.gl/iY3k1b
16 https://goo.gl/gGUddf but on this very day, Tbilisi City Court delayed their planned strike until June
17 Paragraphs 2 and 3 of art.23
18 Paragraphs 2 and 3 of art.20
2 based on the motion of Tbilisi Transport Company (TTC). On May 18, the
Court considered TTC request on use of interim measure and ruled that metro
workers must strike outside working hours only. The court didn’t address the
interest of metro workers and their right to strike, it didn’t examine whether the
City Hall had an alternative plan in case of a strike, etc. The court simply stated:
“shutdown of metro will lead to collapse of the already burdened road infra-
structure.”19

Around the same time, on May 10, several MPs including chair of the human
rights committee Sophio Kiladze initiated amendments to the Law of Georgia
on Assemblies and Manifestations. The bill was adopted in September and it
will come into force as soon as the president elected in the 2018 presidential
election takes an oath. Up until now, everyone except employees of the armed
forces, armed law enforcement bodies, paramilitary and special institutions had
the right to participate in assemblies and manifestations without prior permis-
sion. The amendments extend the list, so that the prohibition also applies to
employees of defense forces or bodies that are responsible for protecting state
or public security. It may seem that the terms used in the two different formula-
tions are the same, however as a result of the amendments, the prohibition will
be extended to employees of the prosecution service, MIA, investigative service
of the Ministry of Finance, General Inspection of the Ministry of Justice, defense
forces, State Security Service, intelligence, Special State Protection Service,
special penitentiary service as well as the investigative department of the Min-
istry of Corrections, Emergency Response Center, the department of environ-
mental oversight of the Ministry of Environment and Agriculture of Georgia.

As a result, right to participate in manifestations will be restricted for a very


important part of civil servants. According to the explanatory note of the bill,
the amendments aim to harmonize the law with the new Constitution, while
according to the text of the new Constitution everyone has the right to partici-
pate in manifestations, except for members of the defense forces or the bodies
responsible for protecting state or public security. “This leads to the question of
whether the absolute prohibition of the right to a peaceful assembly is justified
for this particular group of individuals, while their immediate responsibility to
protect state or public security is not clearly established.”20 This change under-
mines the Constitutional standard instead of harmonizing with it.

Conclusion

The foregoing cases illustrate how the authorities try to limit freedom of ex-
pression in certain cases, by imposing preliminary control, in order to avoid
problems and disgruntlement that has accumulated in public overtime over
policies pursued by the government. In addition, the ongoing processes can be
viewed as a courtesy to the church, the most influential institution in Georgia,
and a clear concession made to its parish by limiting freedom of expression
on religious issues. However, the fact that mobilized public resistance can still
influence decision-making by the government leaves hope.

19 https://goo.gl/gWCXU2
20 https://goo.gl/jbU6HX

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