The Right to Assembly and Manifestations: The Differing Positions of the Constitutional Court and the Parliamentary Majority
On June 13, 2011 ruling party MPs Pavle Kublashvili, Akaki Minashvili, Chiora Taktakishvili and Koka Anjaparidze initiated amendment to the law on assembly and manifestations . According to the explanatory note, the purpose of the amendments is to implement the recent decision of the Constitutional Court and to take into consideration the Guidelines on Freedom of Peaceful Assembly prepared by the Venice Commission. However, this aim is only partially fulfilled.
Certain provisions of the bill, such as cooperation between the government and organizers of an assembly and the updated formulation of art. 9.1, are definitely positive steps. At the same time, however, certain amendments proposed contradict the Supreme Court’s decision, put forward unjustified limitations on the right to assembly and contradict the norms of international human rights law.
Constitutional Court’s ruling and the bill
The Court defined that the need for restricting assemblies and manifestations within 20-meter radius of specific government buildings should be determined on case by case basis, taking into consideration the specific circumstances and importance of government buildings in question.
According to the draft an administrative body may define the venue of manifestations within 20-meter radius from the entrance of the government building, if the manifestation hampers the body’s functioning. This norm does not conflict the Constitutional Court ruling. The problem however is that what constitutes hampering the body’s functioning is not defined. Hence, even a minor impediment due to a manifestation may be construed as a threat to functionality of a state body.
Furthermore, the proposed amendments would again re-introduce limitations of the right to assembly deemed unconstitutional by the Court. Assembly would be prohibited in the 20 meter radius of the following buildings, even if the protests do not hinder the work of the agencies: Prosecutor’s office, police, prisons and colonies, law enforcement agencies, railway stations, airports and ports.
The bill prohibits manifestations within 100-meter radius of military units and objects, rather than the 20 meter radius (provision ruled unconstitutional). Besides the fact that the definition of the military object is not provided this law, we consider the restriction overly harsh. The aim of manifestations is to insure that the message of the protesters is delivered to the addressee. This may be restricted by setting a 100 meter radius rule.
Innovations of the bill
According to the bill, respective government bodies have the obligation to safeguard the balance of the freedom of assembly and the rights of those individuals, whose activities may be disturbed due to manifestations. We believe that regulating this legally does not have much added value. It is obvious, that manifestations may disturb the activities of persons where a manifestation is held, but this alone should not make the assembly unlawful.
The bill expands the list of items banned at manifestations and forbids possession of items that may pose threat to a person’s health. Related to this are the amendments to the Criminal Code of Georgia initiated in Parliament on June 13, 2011 are of interest. According to these amendments criminal responsibility will be established for the creation, leadership of and participation in an illegal group. And a group is illegal if its participants are armed with equipment which may be used to harm or destroy a person or an object. However, in practice most anything may be construed as an equipment of this character. The cumulative effect of these two bills is that the state is given broad discretion to declare any assembly unlawful and to hold its participants criminally responsible.
According to the bill, in a situation when the manifestation has stepped beyond the boundaries of law, the organizer of the manifestation is obliged to call on the protesters to cease the respective violation and to take reasonable actions to fulfill this obligation within 15 minutes. We think that the 15 minute period is unreasonably short and unrealistic for fulfilling the requirements.
Transparency International Georgia believes that:
- The decision whether the cost of partial limiting the rights of workers outweighs the benefit of limiting the right to free expression must be made on case by case basis;
- The definition of items banned at manifestations is unreasonably board and it is important to set reasonable boundaries to it;
- The definition of illegal groups is unreasonably broad and leaves an impression that its aim is holding protesters criminally responsible for taking part in a manifestation;
- The proposed 15 minute period is unreasonably short to call on the protestors as well as to cease the violation of the law.
TI Georgia recommends the Parliament to honor the Constitutional Court’s ruling and bear in mind that it is the Constitutional Court’s function and prerogative to interpret the Constitution. Every law in Georgia must be in line with the Constitutional requirements, otherwise they are simply illegal.