Public Defender of Georgia Requests to Investigate Dispersal of Protest Demonstration

In Accordance to the Article 21-“c’ of the Law on Public Defender of Georgia, Georgian Ombudsman recommended to Mamuka Gvaramia, Chief Prosecutor, to start investigation on the dispersal of the protest demonstration in front of the building of Parliament of Georgia on February 27, 2009.  He also recommended to launch prosecution against Giorgi Grigalashvili, director of the Patrol Police Department within the Ministry of Internal Affairs and Giorgi Gegechkori, head of Main Department of Tbilisi Patrol Police.

***

On February 27 Dachi Tsaguria appealed to the Public Defender of Georgia. According to the provided documents on February 20 Dachi Tsaguria and Akaki Daraselia had warned Tbilisi Mayor about the planned protest demonstration at 2:00 pm on February 27. All the demands of the Article 8 of the Georgian Law on “Assemblage and Manifesting” were preserved in the application. Nevertheless, on February 24 Tbilisi City Hall replied to the applicants that the warning did not comply with the demands of the law; more precisely, the warning did not contain the information about the purpose of the demonstration.

The demonstrators requested impartial investigation of the murder of soldier Roin Shavadze, who was tortured and then killed in Batumi on August 16, 2008. So, the demonstration had purpose. Besides that, holding of a protest demonstration already means that it has some purpose.

The application illustrates that as soon as demonstrators tried to move to the Rustaveli Avenue from the pavement, patrol policemen, under the orders of Giorgi Grigalashvili and Giorgi Gegechkori, dispersed the peaceful and legal protest demonstration by using excessive force against demonstrators. Although the demonstrators showed the patrol police their appeal to the Tbilisi City Hall, the law enforcers assaulted them physically and verbally. Consequently, the demonstrators had their constitutional right on assemblage restricted. Besides that, authoritative official from the local government did not appeal to the demonstrators to stop the demonstration that is envisaged in the Law on Assemblage and Manifesting of Georgia.

Public Defender of Georgia thinks that law enforcers breached the demands of the Article 25 of the Constitution of Georgia and Law on Assemblage and Manifesting. They illegally restricted the rights of the demonstrators that are guaranteed by the Constitution of Georgia. So, we face the crime envisaged under the Article 161 of the Criminal Code of Georgia, that is restriction of the assemblage and manifesting.

***

In accordance to the Article 11 of the European Convention of Human Rights (freedom of peaceful assembly and freedom of association with others), “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”

“No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State. “

According to the Article 25 of the Constitution of Georgia, “Everyone, except members of the armed forces and Ministry of Internal Affairs, has the right to public assembly without arms either indoors or outdoors without prior permission.”
According to the Article I, Part III of the Law of Georgia on Assemblage and Manifesting “This Law establishes the obligation to notify the authorities in advance if the assembly or manifestation will be held in public thoroughfare.” The only norm that makes the prohibition of the manifestation permissible is envisaged in the Article 14 of the same law. More precisely, “A local governance body is empowered not to allow holding an assemblage or manifestation if there is evident information checked by police that the assemblage or manifestation directly threatens the constitutional order and life and health of citizens. A decision on refusing to allow holding an assemblage or manifestation is taken by an authorized representative.”

European Court of Human Rights drew its attention to the importance of the peaceful gathering of people in democratic society. “Right to peaceful assembling is one of the basics of the democratic society. It envisages private meetings and meetings in public places.”

Court estimated violation of the right envisaged in the Article 11 while discussing the case on Shamut Arabulut VS Turkey and stated that government could not substantiate the necessity of the restriction of the manifestation for the sake of national security. The court defined that “without preliminary warning the demonstration was illegal. Besides that, illegality of the demonstration cannot justify the violation of the right to assembling. The regulation in this field should not be used as secret restrictions during the enjoyment of the right. The state failed to prove that the demonstration threatened public order or safety. In the absence of violence the government is obliged to be tolerant to the demonstration.

On February 28, 2009 newspaper “Resonance” published article “Demonstration in front of the Building of Parliament Finished with Conflict”. Giorgi Gegechkori, head of Tbilisi Patrol Department, was asked by the journalist “why did you disperse the demonstrators?” and he answered: “Nobody disperses demonstrators. It was not sanctioned gathering. Blocking the street and traffic is not envisaged in the law. They did not have right to do it.”

Public Defender thinks that new tendency of establishing completely anti-constitutional standard is getting obvious-it means the introduction of permission institute. It must be pointed out that according to the November 5, 2002 decision of the Constitutional Court of Georgia Article 8, Part V of the Law of Georgia on Assemblage and Manifesting was removed (it envisaged the possibility of declining the warning about planned demonstration by the local authority); the court considered that the article contradicted the Article 25 of the Constitution of Georgia.
 

Source: Office of Public Defender of Georgia