Public Defenders Office comments on arbitrary detention of “7 November” movement members

Based on Article 12 of the Organic Law of Georgia on Public Defender, the Public Defender started an independent investigation into the case related to the termination of peaceful assembly of the citizens Dachi Tsaguria, Djaba Djishkariani and Irakli Kordzaia in front of the Parliament building on 23 November of 2009 and their arbitrary detention.

With a view to investigating this case, the Public Defender’s Office is studying the compliance of provisions of the Law of Georgia on Assembly and Manifestations with the Constitution of Georgia and international agreements. Upon completion of analysis, the Public Defender will address the Parliament of Georgia with relevant suggestions or the Constitutional Court of Georgia if the constitutionality of law provisions proves to be questionable, within the competence granted to him/her under the organic law. 

On the other hand, the Public Defender is studying to what extent the right to a fair trial was observed in case of the detainees when the question of their guiltiness of the administrative offense and liability was reviewed.

By present moment, concrete facts has been studied and a legal assessment made whether there was an infringement of their right to assembly and manifestations guaranteed by the Constitution.

As a result of investigation, the Public Defender considers that the right of citizens Dachi Tsaguria, Djaba Djishkariani and Irakli Kordzaia to assembly and manifestations guaranteed by the Constitution was violated. 

It should be mentioned that according to the Organic Law of Georgia on Public Defender, when a fact of violation is established only the Public Defender is authorized to address the relevant authority with recommendations or suggestions (his/her deputy or other employees of Public Defender Office are not vested with this authority). Therefore, upon return to Georgia the Public Defender will address the relevant authorities for their reaction as prescribed by the law.

Pursuant to Article 25(1) of the Constitution of Georgia: Every individual except members of the armed forces, police and the security services has the right to hold a public assembly without arms either indoors or open air without prior permission.

Article 25 (2) of the Constitution vests the legislator with authority to determine by law the need for prior notification of the authorities when a public assembly or manifestation is convened on a public thoroughfare. The need for such notification is provided in Article 5(1) of the Law of Georgia on Assembly and Manifestations, according to which if an assembly or manifestation is convened on a public thoroughfare, for it to be organized and convened it is obligatory to submit a relevant notification to relevant local government, i.e. according to the venue where an action is planned.

Article 7 of the same law provides for an exception from the notification requirement, though. In particular, “notification is not obligatory for regular citizens who would like to express their opinion by means of posters, slogans, banners, and other visible tools, but they are not allowed to use building entrances and stairs, block the thoroughfare or restrict traffic and citizens movement for this purpose”.

In this regard, the decision #2/2/180-183 of 2002 of the Constitutional court (the Young Lawyers Association of Georgia and Zaal Tkeshelashvili, Nino Tkeshelashvili, Maya Sharikadze, Nino Basishvili, Vera Basishvili and Lela Gurashvili v. the Parliament of Georgia) states that “the legislator provided the citizens with an opportunity to convene an assembly without prior notification under Article 7, though determined places that need prior notification as per Article 25 (2) of the Constitution”.

Based on this clarification, it is apparent that Article 7 supports freedom of assembly without prior notification, but the following requirements should be met:

1) Building entrances shall not be used;
2) Building stairs shall not be used;
3) Thoroughfare shall not be blocked;
4) Traffic and citizens movement shall not be restricted

As per Article 25 (3) of the Constitution, the authorities are authorized to halt a public assembly or manifestation only in case if it becomes unlawful in nature. Generally, the fundamental principles provided in Article 13 of the Law of Georgia on Assembly and Manifestations can be considered as unlawful in nature. In particular, in case of massive violations of the requirements of Article 4(2) and 11 of this Law as well as Article 11¹, an assembly or manifestation shall be terminated immediately at the request of an authorized local government official.

Though Article 13, based on its content, refers to cases when assembly or manifestations are convened after prior notification is submitted. Like assemblies and manifestations that require prior notification, during assembly under Article 7 massive violations of the requirements of Article 4(2) and Article 11 of this law as well as violations of Article 11¹ will be deemed unlawful. In addition, the violation of the above 4 requirements will be also deemed unlawful in nature for the purposes of Article 7, in particular if during gathering building entrances and stairs would be used, thoroughfare blocked or traffic and citizens movement restricted.

The decisions drafted by the administrative body of Tbilisi Civil Court in relation to Dachi Tsaguria, Djaba Djishkariani and Irakli Kordzaia state that in accordance with the Protocol on administrative offence on 23 November of 2009 Dachi Tsaguria, Djaba Djishkariani and Irakli Kordzaia were in Tbilisi, on Rustaveli avenue, at a distance of 25-30m from the entrance of the Parliament building, in breach of the requirements of the Law of Georgia on Assembly and Association. They failed to produce a relevant permission to the patrol-inspectors, and their action restricted free movement of passers-by. According to the Protocol, they assaulted the inspectors, both physically and verbally when the later were trying to prevent this offense.

An administrative fine was imposed on Dachi Tsaguria, Djaba Djishkariani and Irakli Kordzaia under the Article 173 (non-obedience to the lawful order or request of law enforcement officials or military servicemen) and 174 (regarding violation of the rule for planning and convening an assembly or manifestation) of the Code of Georgia on Administrative Offences.

As it was mentioned above, Article 7 of the Law of Georgia on Assembly and Manifestations states that no prior notification is obligatory for regular citizens who would like to express their opinion by means of posters, slogans, banners, and other visible tools, but they are not allowed to use building entrances and stairs, block thoroughfare or restrict traffic and citizens movement for this purpose.

Consequently, Dachi Tsaguria, Irakli Kordzaia and Djaba Djishkariani had an absolute right to express their opinion publicly and no liability regarding the submission of prior notification to the local government adhered to them. The argument that they failed to produce a proper permission to the patrol-inspectors lacks legal ground. Moreover, the current law does not acknowledge the issuance of permission for convening actions or manifestations. By decision 2/2/180-183 of 2002 the Constitutional court rendered unconstitutional the institute of “non-accepting notifications”, motivating this decision by the fact that it practically made action participants dependent on local government authorities’ permission.

The decision on administrative fine in relation to Djaba Djishkariani states that pursuant to the Law of Georgia on Assembly and Manifestations even after non-acceptance of his notification by Tbilisi municipality, Djaba Djishkariani still had a right to express his opinion publicly by means of posters, though he should have avoided using the roadway that restricted citizens movement, and later the Parliament building stairs.

Article 7 specifies that participants of public gathering and manifestations should not block thoroughfare and restrict citizens’ movement.

The existing video-tape shows clearly that the three participants neither blocked the roadway, nor restricted citizens’ movement. When detained they were sitting on the stair next to the pavement, therefore, there was no hindrance to passers-by.

As for the Parliament building stairs, the video-tape shows it clearly that all the three participants were sitting on the stairs connecting the sidewalk for passers-by with the square in front of the Parliament, and not on the Parliament building stairs. The fact confirmed by court decisions as well, as two of them established that the action participants were within a 25-30m radius of the Parliament entrance. Consequently, it is impossible for action participants to have breached the requirement of Article 7 that states that action participants are not allowed to use building stairs.

The argument that the action participants assaulted the patrol-inspectors physically and verbally is not confirmed by the circulated video-material. The video-tape shows it clearly that all the three participants obeyed the patrol-inspectors request without any resistance and got into the patrol police cars.