Letter to the Special Rapporteur on the rights to freedom of peaceful assembly and of association

• Wednesday, 11 December 2019
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To: Mr. Clement Nyaletsossi Voule,

Special Rapporteur on the rights to freedom of peaceful assembly and of association

On behalf of the Coalition for an Independent and Transparent Judiciary,[1] we would like to inform you once again about the legislation on administrative offences that is currently in force in Georgia and continues to restrict freedom of peaceful assembly and expression. The first time the Coalition appealed to you regarding the situation in Georgia was in May 2018,[2] but during 2019 the violation of human rights became so large-scale and critical that we decided to provide you with further information. Hereby we note that the letter concerns only the practice of restricting the right to peaceful assembly using the Administrative Offences Code and does not review the general situation in the country in terms of the protection of the right to peaceful assembly.

1. The main challenges posed by the Georgian legislation on administrative offences

The Criminal Code and the Administrative Offences Code are two separate pieces of legislation in Georgia. The latter imposes administrative penalties and includes sentencing procedures for relatively minor misconduct. Positive changes in the criminal justice sector have no effect on the most common offences, which by their nature fall within the scope of the criminal law.

The current Administrative Offences Code of Georgia is a Soviet inheritance dating back to 1984. The Code fails to meet the requirements of a fair trial and is frequently used to unjustifiably restrict the right to peaceful assembly and expression.

The Administrative Offences Code envisages heavy penalties including administrative imprisonment which by its nature require the application of procedural safeguards afforded to criminal offenses. However, the Code provides for fewer procedural guarantees than an accused in a criminal offence might have; the Code ignores the presumption of innocence and does not oblige the judge to follow the standard of evidence beyond a reasonable doubt. The tight timeframes for hearing cases and applying sanctions fail to ensure effective representation (court hearings may last 10-15 minutes). Accordingly, the Code of Administrative Offences, in the present form, violates fundamental human rights and jeopardizes Georgia's international commitments.[3]

1. The practice of violating freedom of assembly and expression using the legislation on administrative offences

The Administrative Offences Code is actively utilized by police against the right to assemblies and manifestations in Georgia. The participants of peaceful assemblies are mainly detained based on Articles 166 (petty hooliganism), 173 (non-compliance with a demand of a law enforcement officer), and 150 (defacing the appearance of a self-governing unit) of the Administrative Offences Code. The cases of violation of the right to assembly and expression under the above articles have been documented for years in the reports of both local and international organizations, as well as in those of the Public Defender.[4]

1. Administrative detention and administrative imprisonment

The Code of Administrative Offences allows for administrative detention and administrative imprisonment. Administrative detention is a provisional measure, while administrative imprisonment is the strictest penalty for committing an administrative violation. Under the current Code of Administrative Offences, both administrative detention and administrative imprisonment pose a threat to the freedom and security of individuals and the protection of the right to a fair trial.

The Administrative Offences Code envisages 12 hours as the maximum period of administrative detention, although if an individual is detained outside working hours he/she may remain in a detention facility for up to 48 hours. Another significant shortcoming is that judges examining cases of an administrative violation are not required to check the lawfulness of the detention; besides, as a rule, the police do not indicate the specific grounds of the detention in the detention protocol, which makes it difficult to examine the lawfulness of the detention. In some cases, the maximum term of detention is applied without providing a proper substantiation. The police also use detention in cases where the law does not prescribe detention. Yet another significant procedural violation is that detainees are not informed of their right to appeal the detention or the timeframes.

As for administrative imprisonment, the current maximum period for administrative imprisonment is 15 days. At every stage of administrative imprisonment proceedings, the fundamental rights of individuals are violated and they are left without adequate legal safeguards. We believe that administrative imprisonment is a sanction characteristic of criminal justice. Accordingly, administrative offenses may not be punished by sanctions that require intensive interference with an individual's freedom.[5]

1. The events of 20-21 June

On 20 June 2019, a session of the Inter-Parliamentary Assembly of Orthodoxy was held in the Parliament of Georgia. Sergei Gavrilov, a member of Russian Duma, sat in the chair reserved for the Chair of the Georgian Parliament and delivered a speech in the Russian language. The appearance of the Russian MP in the parliament building sparked massive protests. A part of protesters soon spontaneously gathered in front of the parliament building. The protest demonstration entitled "It's a Shame" took on a relatively organized form in front of the parliament building in Rustaveli Avenue. Later, the Ministry of Internal Affairs of Georgia decided to disperse the demonstration.

For several hours, the police, in parallel to using various active means (tear gas, rubber bullets, and water cannons), arrested participants of the protest rally as well as persons who accidentally happened to be in the epicenter of the events under the Administrative Offences Code. It has been confirmed that one journalist was detained as well. According to the official data, the police arrested 342 individuals. The MIA prepared standard protocols of detention which did not include any individual circumstances and in some cases, the place and time of detention were incorrectly indicated, which overall, affected an objective and thorough examination of the case. Moreover, law enforcement officers did not inform detainees of the grounds of their arrest and their rights.[6]

The court hearings of the detainees were held in a formulaic and blanket manner. Instead of investigating and assessing individual circumstances, judges opted for the prompt hearing of the cases. The main evidence was administrative detention and violation protocols, which were usually drawn up by the same person. Both types of protocols contained identical information on alleged violations. In a number of cases, police officers present at the trial were not the actual persons arresting the detainees for administrative violations, yet the judges accepted their statements as credible. Although violation protocols did not contain a precise description of the actions conducted by the individuals, the court nevertheless considered the offence to be committed and did not provide any reasoning which acts were deemed as offence. The practice of applying sanctions was also unsubstantiated. The most severe penalty - administrative imprisonment - was imposed against 121 persons in a way that they were not able to exercise their right to a fair trial.[7]

1. The protest rally of 18 November

On 18 November 2019, 37 people were detained under the administrative code during the manifestation in Tbilisi. Up to the present, not all of them have been tried. However, on 19-20 November, Tbilisi City Court completed the hearings concerning 12 persons, 10 of whom were sentenced to administrative imprisonment. According to NGOs, the judge hearing the cases of the detainees was biased and restricted the rights of the arrestees.[8] The Public Defender of Georgia responded to the cases of the persons detained on 18 November. The Ombudsmen once again highlighted the necessity to reform the Administrative Offences Code of Georgia noting that the detainees' cases did not include unbiased and credible evidence and that the defense counsel was not provided with sufficient time and means to enjoy the right to legal remedy.[9] The administrative detentions continued during the protest manifestations of the following days.

Summary

The Coalition for an Independent and Transparent Judiciary believes that merely a fragmented revision of the Administrative Offences Code of Georgia cannot ensure its fundamental transformation to completely eliminate the gaps in the legislation. It is obvious that the government is not quick to implement the reform and with the current edition of the Administrative Offences Code retains a strong mechanism for unjustified intervention into the right to peaceful assembly and expression.

For this reason, we request that you use the mechanisms provided for by your mandate and examine and evaluate the practice of restricting the freedom of peaceful assembly and expression in Georgia by means of the legislation on administrative offences. We believe this will significantly contribute to reforming the legislation on administrative offences. We stand ready to provide you with additional information in case of interest.

Tags: Freedom of expression

Related information:

• Thursday, 04 March 2021 The Coalition for an Independent and Transparent Judiciary Reacts to Illegal and Unjustified Court of Appeals Decision Against Transparency International Georgia
• Friday, 28 April 2017The Coalition Responds to the Initiative Limiting Freedom of Expression to Protect the Court’s Reputation