Protests play an important part in the civil and political life of democratic societies. Georgia’s civil society has long been a good example of an engaged and informed citizenry, with the protests in June 2019 having largely secured a promise from the government that it would seek a change in Georgia’s election system from a mixed system to a fully proportional one.[1] The dropping of those proposed constitutional amendments in November 2019, however, triggered the biggest anti-government protest in years.[2] As suggested by the European Convention on Human Rights (ECHR), that Georgia has ratified, the right to peaceful assembly is a fundamental principle in a democratic society and, like the right to freedom of expression, is one of the foundations of such a society and cannot be interpreted restrictively.[3] Authorities’ attempts to shut down dissenting voices appear to be in violation of these rights. Disappointment expressed by the European Union (EU) on the failed constitutional reforms also hints to Georgia backtracking on some important reforms in the rule of law area.[4]
On November 17th, all 44 members of the parliament’s opposition parties supported the constitutional changes on introducing a proportional system for 2020. The three lawmakers from Georgia’s Dream party however voted against the amendment while 37 abstained, making the constitutional amendment fall short of the 113 votes required, three quarters of the 150 sitting lawmakers.[5]
This prompted waves of protests where in the events leading to the arrests of demonstrators, members of the opposition political parties vowed to block Parliament to ‘restore its legitimacy’ and use the lawful means available to them within Georgian legislation.[6] The protesters brought in sand bags and barricades and attempted to stop Members of Parliament (MPs) from entering Parliament.[7] In a bid to secure free passage to Parliament on November 18th, after a half an hour warning, the Interior Ministry’s riot police dispersed the protest rally. Many tried to resist and sat down in the street to block their movement. Following a brief confrontation, police used water cannons to remove protesters from the street and arrested 37 civil activists, including a political leader, on charges of petty hooliganism and disobedience to the police. [8]
Some protesters, who had been ill treated by police during their arrests, required medical interventions after being badly hurt.[9] The peaceful protesters gathered again on November 25th with an intent to stop the ruling MPs attending the Parliament session the next day. The riot police used water cannons again in the early hours of November 26th, in sub-zero conditions to clear the entrance from behind the parliament building and arrested 28 individuals and injuring others.[10] Before the dispersal protesters were stopped from bringing wood to use for heating and bags were searched profusely. On November 28th, however, the protesters who wanted to gather around Parliament faced iron gates that blocked the streets leading to Parliament and were met with a police cordon across the barriers.
Events of November
Georgian law expressly prohibits blocking administrative buildings, however, in retrospect the excessive number of anti-riot police deployed and the use of water cannons against passively resisting protesters were disproportionate and deemed unlawful by civil society.[11]The State under international law is responsible to protect peaceful protesters and ensure a safe and enabling environment for people to exercise their freedom of expression and right to peaceful assembly. The use of force must be minimum even when ‘roadblocks’ are used as a means of protest and which may warrant state intervention to disperse the protesters.[12] It is also stated that the State must resort to only the minimum use of force and only after less intrusive and discriminatory means of managing the situation have failed.[13] Generally, the States should be mindful that in some circumstances where a protest occurs in violation of applicable laws, use of force is not always justified and non-intervention might be the best approach.[14]
On November 18th, the riot police after little warning rolled in with water cannons amid the absence of any communication with the leaders of the protest, which is an essential part of the authorities’ positive obligations to ensure the peaceful conduct of an assembly, to prevent disorder and to secure the safety of all involved.[15] The Venice Commission’s Guidelines on Freedom of Peaceful Assembly that the European Court of Human Rights (ECtHR) refers to, recommends negotiation or mediated dialogue if a stand-off or other dispute arises during the course of an assembly as a way of avoiding the escalation of conflict.[16]
The United Nations (UN) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials calls on the authorities to ‘‘exercise restraint and act in proportion to the seriousness of the offence and the legitimate objective to be achieved.’’[17] These principles are echoed in the national legislation regulating assemblies and demonstrations where among other requirements, the benefit protected by the restriction should exceed the damage caused by the restriction and should be necessary in a democratic society.[18] The notion of ‘necessary’ in a democratic society among others implies that the interference must be proportionate to the legitimate aim pursued. On November 26th authorities maintained that after seeing the blocked passages to Parliament they had to use the means provided by the law.[19] In reality the benefit does not seem to outweigh the measures or appear proportionate, whereas 28 people were arrested on administrative charges and four sustained injuries.[20] Among those arrested was a member of a political party, who in the words of his defence lawyer, his only fault was that he had ‘‘thrown beans in the air’’ during the rally. He was sentenced to eight days of administrative detention.[21]
On both occasions the authorities showed no attempt to use less intrusive ways to deescalate the tension and conduct a dialogue with the protesters. It is also followed that subjecting the demonstrators to high-pressure water cannons requires specific justification.[22] The UN Principles further scrutinises the use of water cannons, not allowing the use of targeted jet water at an individual or group of individuals at short range with a view to avoid injury or blindness.[23] The water cannon can only be used when there is a ‘serious significant likelihood of loss of life’ or when property is being destroyed.[24] It should not be used in cold weather to avoid cold water shock.[25] In the absence of these conditions the use of water cannons does not appear legitimate especially considering that more people got injured then it was officially declared.[26] During these events, one protester suffered a broken hand after being forced down by a jet of water, another received an eye injury whilst a third got hypothermia. In response to the criticism that the cold water cannons should not be used in cold weather conditions, the Minister of Interior maintained that they will warm the water next time before using it against demonstrators.[27]
The ECHR requires States to show a certain ‘degree of tolerance’ towards peaceful gatherings, even unlawful ones.[28] The State is also called to use its powers to protect its institutions and citizens from associations that might jeopardise them rather sparingly.[29] It is further claimed that the exceptions to the right of freedom of association has to be construed strictly and only convincing and compelling reasons can justify restrictions on that freedom.[30] Surprisingly, even the occupation of public buildings is generally regarded as peaceful conduct, despite its unlawfulness and the disruptions it may cause.[31] The authorities should not have dispersed the rally unless law enforcement officials had taken all reasonable measures to facilitate and protect the assembly from harm[32] and unless there was an imminent threat of violence.[33] Amidst the absence of previous violent clashes and the lack of imminent threat as protesters had no special equipment, breaking up the protest in such a manner does not have a compelling reason.[34]
Finally, erecting iron gates later on November 28th to safeguard the normal functioning of the Parliament does not seem to be within the powers set-out in the Georgian law on policing.[35] The blocking of the street with iron barricades is not ‘proportionate to the expected threat’ and cannot be used against peaceful demonstrators unless there is a particular risk of a crime or disorder.[36] The Civil society further maintained that the general public were not duly informed on these restrictive measures either.[37]
The trial of 37 people charged under administrative offences on November 18th attempted to normalise the restriction on freedom of expression through its conflation with resisting the police and hooliganism under the punitive Code of Administrative Offences.[38] The trial has been largely marred by procedural violations, at the time of writing this, 14 people have been tried and the cases of 23 are still under deliberation.
Selective and unlawful arrests
The Government should not have the power to ban a demonstration because of the ‘wrong message’ it sends against the government, especially when the main target of criticism is the very same authority which has the power to authorise or deny the public gathering.[39] Defence lawyers suggest that police have selectively targeted activists whereas some in their interviews given to the media said that they have been ill-treated during the arrest.[40] As suggested, police arbitrarily arrested those expressing criticism of the government and state officials, which does not make sufficient grounds to make an arrest. In light of many procedural violations, it was revealed that the police did not discharge their responsibilities duly. Arrest protocols were not drawn up on the spot as required. Police completed it with a significant delay and without interrogating the accused.[41] Many have not seen their arrest protocols whilst those who did do not agree with what it said.[42]
Marred due process and a Telephone Justice
The Code of Administrative Offences mandates a tight timeframe within which the case had to be deliberated. The distribution of the cases has somehow put one judge in charge of all 37 cases, which significantly curtails the procedural rights of the accused. A defence lawyer for the accused argues that the police had to set the activists free after filling out the detention protocols.[43] Nevertheless, they were kept handcuffed well beyond the prescribed time limit. The judge went well over time too, keeping them in detention over the 12 hour time limit prescribed by law.[44] To respond to the growing criticism on the flawed timeframes, Tbilisi City Court later made a formal announcement referring to the Constitutional guarantees on the inviolability of the judge and that the cases had been automatically distributed in line with the national law.[45] The process also undermined the right of the defence lawyers left with inadequate time to prepare for the defence, some given only two minutes. As suggested by the statement issued by the Georgian Young Lawyers’ Association present at the hearing, the judge often stepped out during to allegedly receive instructions.[46]
Flawed Evidence and Lack of reasoning
The evidence submitted by the police include arrest protocols, offence protocols and in rare cases video footage. In the case of the video footage, however, almost all police officers had difficulties identifying the arrested and could not recall the details leading to the arrest. This further questioned the validity of the requests the police had in relation to the accused and with the grounds they had made arrests. Contrary to the law, none of the police body cameras were working, whilst on one occasion a police officer confessed that he did not have time to examine the evidence that he had submitted.[47] Nonetheless, the judge gave weight to the evidence against the accused and did not require the police to justify interference with the accused right to freedom of assembly. Nor did he question the reliability and quality of the evidence.
The accused were cleared of hooliganism charges, but ten were charged with police disobedience and sentenced to between three and 13 days administrative detention, three received warnings and one was fined.[48] There was no reasoning behind how the length of the sentence was calculated. It appears that the sentences were high for those who were especially active during the court proceedings and during the organisation of the protest rally in general.[49] The absence or lack of reasoning on how sanctions were determined are largely incompatible with the principle of non-arbitrariness when it comes to human rights standards. The ECtHR emphasised the need for courts to take seriously suggestions that real evidence introduced by police may have been planted[50] or fabricated[51]. Moreover, in cases where the only witness is the police who had a major role in the contested events, it is indispensable for the court to check their incriminating statements.[52] In the absence of these safeguards the hearings conducted appear to be in violation of the right to a fair trial.[53]
The Repressive Law
The commentators agree that the present Code of Administrative Offences is often used as an instrument for repression, with every government in power using it to punish dissenting voices rather than scrap it. The Code lacks judicial safeguards otherwise guaranteed by the national laws, as well as constitutional and international standards. The Code, which was adopted by the Resolution of the Supreme Soviet of the Georgian SSR in 1984, has seen some changes since its adoption. It does not entail a criminal record but allows sentencing of an individual for a maximum of 15 days without offering robust guarantees for a fair trial, or a standard beyond that of reasonable doubt otherwise required in the Criminal justice. It circumvents guarantees such as access to legal representation, adequate time and facilities to prepare a defence, the right to examine witnesses and introduce evidence. Eight provisions from the Code, including the provisions on hooliganism and police disobedience, were sent for appeal to the Constitutional Court of Georgia a year ago and have been pending before the court since.[54] The cases on excessive use of force perpetrated by police on November 19th have been picked up by the independent investigative mechanism that is tasked to take up cases of ill treatment and torture perpetrated by public agents. The mechanism that started functioning on November 1st of this year does not have prosecutorial functions and can only investigate the cases. It has nevertheless been a welcome initiative and will serve as a litmus test for the authorities in investigating the offences without bias.
Conclusion
The ECHR, the Venice Commission and the UN Special Rapporteur on the rights to freedom of peaceful assembly and of association have repeatedly stressed that there is a presumption in favour of holding peaceful assemblies; where an assembly should be presumed lawful and deemed as not constituting a threat to public order, until the Government put forward compelling evidence that rebuts that presumption. The authorities have not yet produced compelling evidence in this case. Moreover the use of repressive laws against activists and opposing political party leaders aimed to punish criticism against the Government, and to have a discouraging effect for others to participate in protest rallies and from engaging actively in opposition parties, has chilling effects. Furthermore, the effects of these sanctions are further amplified by inadequate administrative code procedures. On a political level, the backtracking on promised constitutional change is largely seen as fear by the ruling party of losing power. The authorities’ response to that fear seems to be the flagrant ignorance of the rule of law and the safeguards on freedom of expression and the right to peaceful assembly as they attempt to flatten the increased mistrust and heightened tensions between the ruling party, opposition and civil society.
Photo by George Melashvili. No modifications to photo. Creative commons licence, https://creativecommons.org/licenses/by-sa/4.0/deed.en
[1] BBC News, Georgiaprotests: Thousands storm parliament over Russian MP’s speech, June 2019, https://www.bbc.co.uk/news/world-europe-48710042
[2] Civil.ge, Two Rallies Demand Snap Elections in Tbilisi; Parliament Blocked by Protesters, November 2019, https://civil.ge/archives/327189
[3] Djavit An v. Turkey, § 56; Kudrevičius and Others v. Lithuania § 91.
[4] EU Neighbours, EU reacts to on-going events in Georgia, November 2019, https://www.euneighbours.eu/en/east/stay-informed/news/eu-reacts-going-events-georgia
[5] Civil.ge, Ex-U.S. Amb: There’s Concern in U.S. about Georgian Democracy, November 2019, https://civil.ge/archives/328588
[6] Ibid. 2
[7] Civil.ge, Georgian Opposition, Activists Keep Blocking Parliament Entrances, November 2019, https://civil.ge/archives/327415
[8] Civil.ge, Riot Police Remove Barricades from Parliament Area, November 2019, https://civil.ge/archives/327545
[9] Radio Free Liberty, Activist detained near parliament found fractured bones, November 2019, https://www.radiotavisupleba.ge/a/30288154.html
[10] Ibid. 7
[11] Amnesty International Public Statement, Georgia: Authorities Must Guarantee Freedom of Peaceful Assembly, Amnesty International, November 2019, https://www.amnesty.org/download/Documents/EUR5614802019ENGLISH.pdf
[12] OHCHR, Lebanon: UN Experts decry incidents of excessive force in Lebanon. November 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25354&LangID=E
[13] Ibid.
[14] Article 19, The Right to Protest: Principles on the protection of human rights in protests, 2016, https://www.article19.org/data/files/medialibrary/38581/Right_to_protest_principles_final.pdf
[15] Frumkin v. Russia, § 128-129.
[16] Ibid. referring to guideline 5.4, cited in Frumkin v. Russia § 80. See also Venice Commission and the OSCE/ODIHR Guidelines, July 2019, https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2019)017-e
[17] Facing Finance, UN Basic Principles on the Use of Force and Firearms by Law Enforcement officials, http://www.facing-finance.org/en/database/norms-and-standards/un-basic-principles-on-the-use-of-force-and-firearms-by-law-enforcement-officials/. Adopted by the eight UN Congress on the Prevention of Crime and Treatment of offenders. 27 August- 7 September 1990.
[18] Article 2 (3). The Law of Georgia on Assemblies and Demonstrations. The restriction of the rights recognised and protected by this Law shall: a) be addressed to achieve the benefits protected by Article 24(4) of the Constitution of Georgia; b) be considered under the law; c) be necessary for a democratic society; d) be non-discriminatory; e) be proportionally restrictive; f) be such that the benefit protected by the restriction exceeds the damage caused by the restriction, https://matsne.gov.ge/ka/document/download/31678/10/en/pdf
[19] The statement of the Ministry of Interior (MIA) of Georgia, November 2019, https://police.ge/ge/shinagan-saqmeta-saministros-gantskhadeba/13145
[20] Democracy Research Institute (DRI), Authorities Again Use Disproportionate Force During Dispersal of Peaceful Rally., November 2019, http://www.democracyresearch.org/eng/109; See also an announcement by MIA on 26 November 2019.supra 20.
[21] Formula News, Lasha Chkartishvili was sentenced to administrative detention, November 2019, https://formulanews.ge/new/index.php?m=41&news_id=16073&fbclid=IwAR1JD3Cm791cIqhcFZpJYatIdvwirw2RYll_uAtt4R19qgpOFpU_2pRfXCY#
[22] Eğitim ve Bilim Emekçileri Sendikası v. Turkey, § 108.
[23] The United Nations Human Rights Guidance on Less Lethal Weapons in Law Enforcement, https://www.ohchr.org/Documents/HRBodies/CCPR/LLW_Guidance.pdf
[24] Ibid.
[25] Ibid.
[26] Radio Free Liberty, Protester says that his hand was broken during a protest rally, November 2019,
[27] 1TV.ge, Vakhtang Gomelauri – They criticise us for using cold water in cold weather, we will now try to warm the water before using it, December 2019, https://1tv.ge/news/vakhtang-gomelauri-gvlandzghaven-rogor-sheidzleba-siciveshi-wylis-gamoyenebao-akhla-vcdilobt-gavatbot-wyali-da-tbili-wyali-gamoviyenot/?fbclid=IwAR1PMVn34SRgdah5mQW-HsVAP3dyYmyzLVehgv7zbPnXgN4UTM1nMA1Dd9g
[28] Navalnyy and Yashin v. Russia, § 63.
[29] Magyar Keresztény Mennonita Egyház v Hungary, § 79.
[30] Ibid.
[31] Cisse v. France, §§ 39-40.
[32] Including, for example, quieting hostile onlookers who threaten violence.
[33] The Guidelines on Freedom of Peaceful Assembly adopted by the Venice Commission and the OSCE/ODIHR used in Furumkin v Russia §166.
[34] Primov v Russia, § 144-148.
[35] Democracy Research Institute, Democracy Research Institute Responds to the Blockage of Parliament Area by the Ministry of Internal Affairs, November 2019, http://www.democracyresearch.org/eng/115
[36] Ibid.
[37] Ibid.
[38] Administrative Code of Offences in Georgia, http://www.parliament.am/library/varchakaniravaxaxtum19/vrastan.pdf
[39] Navalnyy v. Russia, § 134.
[40] Email correspondence with defence lawyer and the Deputy Director of the Georgian Young Lawyers’ Association, Nona kurdovanidze. See also Radio Free Liberty, Activists versus the Soviet Code, November 2019, https://www.radiotavisupleba.ge/a/30285194.html?fbclid=IwAR0sKimGMfgqyDKgB5vzjZDDELdf6LXRQSpvk5RygLzd6NTW3XAzrrHxfiE
[41] Ibid.
[42] Ibid.
[43] Ibid.
[44] Ibid.
[45] Georgian Young Lawyers’ Association, Trial conducted with serious violations, November 2019, https://gyla.ge/ge/post/dakavebuli-demonstrantebis-sasamartlo-procesebi-mdzime-darghvevebis-fonze-chatarda?fbclid=IwAR34pLLL_fKUKWLOZGMhOSPCCVnNIFUxFq7CQnH8dWtiPqLwo69dL4nOZ_g#sthash.q0AoSPak.4iTU4vnX.dpbs
[46] Ibid.
[47] Radio Free Liberty, Activists versus the Soviet Code, supra 38.
[48] Correspondence with Nona Kurdovanidze, December 2019.
[49] Defence Lawyer, Giorgi Mshvenieradze, at Radio Free Liberty, supra 38.
[50] Sakit Zahidov v. Azerbaijan, §52.
[51] Sand Gradinar v. Moldova, § 111.
[52] Kasparov and Others, § 64.
[53] Navalnyy v Russia § 74.
[54] Interview with Nona Kurdovanidze. See also: The Public Defender even filed an amicus curiae brief with the Constitutional Court of Georgia in June 2019 regarding the constitutional lawsuit “Citizen of Georgia Zurab Japaridze v. Parliament of Georgia”. In the amicus curiae brief, the Public Defender referred to Articles 166 (petty hooliganism) and 173 (Disobedience to the Legal Orders or Instructions of Law Enforcement or Military Officers) of the Administrative Offences on Misdemeanour and indicated that the judicial practice in that direction could not meet the constitutional standards, Public Defenders’ Office Georgia, November 2019.