Eka Beselia, Member of the Parliamentary Majority, stated the following at the plenary session of the Georgian Parliament on 2 May 2014 while discussing the draft Law on the Elimination of All Forms of Discrimination: ”Public order and morals are the circumstances which may outweigh discrimination during evaluation, so that the action may be considered as justified by a state in order to ensure morality and public order. There are several cases of the European Court’s decision; for instance, the case of Handyside v. the United Kingdom, when the European Court stated that a state has the wide freedom of views to assess whether or not this or that action is necessary for ensuring moral standards. This definition was correctly reflected in the wording of Article 2.”

FactCheck

took interest in this statement and sough to verify its accuracy.

On 2 May 2014 the Georgian Parliament adopted the draft Law on the Elimination of All Forms of Discrimination initialled by the Government of Georgia at its third hearing. The Law is based upon and further expands the constitutional provision on the prohibition of discrimination (Article 14). It provides a legal definition of discrimination according to which every single incident of discrimination will be identified. The Law aims at ensuring the equal enjoyment of already protected rights and the elimination of discrimination upon the basis of age, race, skin colour, language, sex, health conditions, limited possibilities, sexual orientation, gender identity and so on (Article 1). The Law directly prohibits the discrimination in the public as well as private sectors.

In addition to the adoption of the draft Law on the Elimination of All Forms of Discrimination, certain amendments have been made to the normative acts, in particular:

1. Civil Code of Georgia- Amendments concerned the appeal to the court, the deadline for judicial review and other procedures (Articles 363¹-363⁶). As for the mechanisms for accountability, an applicant may discontinue a discriminatory behaviour or/and claim compensation for the damage.
2. Criminal Code of Georgia- Mechanisms for accountability were defined (Articles 142-142²):

• Individual-fine, corrective labour sentence, imprisonment
• Individual-fine, liquidation, deprivation of the right to work

1. The Law of Georgia on Gender Equality came into compliance with the terms of the Law on the Elimination of all Forms of Discrimination.
2. According to the Organic Law of Georgia on the Public Defender, the Public Defender of Georgia is responsible for supervising the issues of the elimination of discrimination and ensuring equality. This apparatus will study the facts of discrimination with its own initiative as well as if the application or complaint is filed and prepare recommendations and a special report.

As for the statement by Eka Beselia, we should review the second part of Article 2 of the Law on the Elimination of All Forms of Discrimination and the restrictive clause pertaining to rights: ”Direct discrimination is the kind of treatment or the creation of conditions which, due to some signs provided by the first Article of this Law, puts the person in an unfavourable condition as compared to another person in a similar condition while enjoying the legally defined rights or it puts persons living in inherently unequal conditions in equal conditions except in the case when this kind of treatment or the creation of conditions serve the statutory purpose of ensuring public order and morality, has an objective and sensible justification and is necessary in a democratic society while the means being used are comparable to achieving these objectives.”

As we see the notation of "except in the case" in the Article, this directly indicates exceptional cases when deviation from the Article is possible.

A notation about "ensuring public order and morality" was added to the second part of Article 2 of the draft law during the second hearing of the bill. At this time, let us discuss the definition of public order and morality.

The Code of Administrative Offences of Georgia defines the term public morality abusive action as follows: “Human dignity and public morality abusive actions in public places are reflected in the behaviour of disrespect towards the rules of conduct adopted in society and the creation of humiliating and offensive environments for the person (behaviour of a sexual nature, full or partial indecent exposure, satisfaction of physiological needs in public places) (Article 171).”

According to the wording of the aforementioned two Articles, an action will not be considered as direct discrimination when it restricts the freedom of an individual but ensures the protection of public order and moral norms.

As for the fact that a state has a wide freedom of views to assess how necessary this or that action is for ensuring moral standards, MP Eka Beselia recalls the European Court’s decision on the case of Handyside v. the United Kingdom.

The European Court of Human Rights

is a monitoring mechanism established by the Convention for the Protection of Human Rights and Fundamental Freedoms. The Court is only authorised to review the complaints filed against the state party to the Convention. Therefore, the Court’s judgment against a state is binding and the state which is not directly involved in the dispute and is a party to the Convention is obliged to take into account the standards established by the Court’s decision.

The case of Handyside v. the United Kingdom concerned the restriction of Article 10 of the Convention by the state upon the basis of ensuring morality. The Government of the United Kingdom relied upon the protection of morality in order to justify the ban of The Little Red Schoolbook.

The book contained information about sexual relations. The information given in the book might have influenced the formation of minors’ psyches and, moreover, it prompted the committing of a crime. The plaintiff was accused of possessing obscene materials, his books were confiscated and he was not allowed to disseminate the book upon the grounds that it opposed the norms of public morality.

The European Court of Human Rights did not accept the position of the plaintiff, Handyside, and concluded that the defendant state could restrict Article 10 upon the grounds of defending morality (Paragraph 48). In addition, the majority of judges rule that the state has discretionary authority and can solve the issue of protecting public morality according to the specific situation and territory. “By reason of their direct and continuous contact with the vital forces of their countries, state authorities are, in principle, in a better position than the international judge to give an opinion upon the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them” (Paragraph 48).

Nevertheless, the Court noted that the existence of the state’s discretionary authority does not give the contracting states an unlimited power of appreciation. The Court is responsible for ensuring the observance of those states' engagements (Article 19) and is empowered to give the final ruling upon whether or not a "restriction" or ‘penalty’ is reconcilable with the freedom of expression. Thus, the European Court of Human Rights overrules the freedom of the country’s internal evaluation (Paragraph 49). As we see, the Court noted that the national government can give an exact definition of public morality, which constitutes one of the legitimate goals of restricting the right, however, the European Court of Human Rights has the right to assess the compliance of limitation at the national level during the case hearing. In addition to Georgian legislation and the decision of the EuropeanCourt, FactCheck

reviewed the practices of some EU Member States. We have especially outlined the legislative frameworks of Germany, the Netherlands and the United Kingdom and studied the existence of similar notations in anti-discrimination legislation. Separate documents regulate issues related to anti-discrimination in these three countries.

Germany

The purpose of the General Act on Equal Treatment in Germany is to “prevent or stop discrimination upon the grounds of race or ethnic origin, gender, religion or belief, disability, age or sexual orientation.” (Paragraph 1). The Act allows permissible differences of treatment: “Differences of treatment upon the grounds of religion, disability, age, sexual orientation or sex shall not be deemed to be a violation of the prohibition of discrimination if they are based upon objective grounds (Paragraph 20). Such differences of treatment may include, among others, where the difference of treatment serves the avoidance of threats, the prevention of damage or another purpose of comparable nature, satisfied the requirement of protection of privacy or personal safety, grants special advantages and there is no interest in enforcing equal treatment (Paragraph 20 (1)).

Netherlands

The Equal Treatment Act provides protection against discrimination in the Netherlands. The Act ensures the equal treatment of persons irrespective of their religion, belief, political opinion, race, sex, nationality, heterosexual or homosexual orientation or civil status (Chapter 1). The aforementioned allows general exceptions: “The prohibition on discrimination contained in this Act shall not apply to indirect discrimination if the discrimination is objectively justified by a legitimate aim and the means used to achieve that aim are appropriate and necessary.” (Paragraph 2). Therefore, different treatment will not occur if the restriction is justified upon objective and sensible grounds and serves the law. A similar notation can be found in the Law of Georgia on the Elimination of All Forms of Discrimination.” (Article 2(2)).

United Kingdom The Equality Act

of the United Kingdom was implemented in accordance with EU directives. The document ensures the elimination of discrimination and includes the following protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation (Article 4). As for restricting the protected characteristics, we find it in several of the articles. According to the Act, direct or indirect discrimination does not occur when it is possible to verify that the action should be proportional to the legitimate purposes of limiting.

The anti-discrimination acts of these aforementioned countries do not directly contain the clause on public order and morality. FactCheck

studied the comments of these aforementioned acts as well as domestic judicial practice. According to them, the clause in the law which states that a lawful and legitimate purpose should exist for limitations implies that the limiting should serve the ensuring of public safety, public order, the protection of public health and moral norms. Therefore, legitimate public purpose also includes acting according to order and moral norms.

As for the clause in the Law of Georgia on the Elimination of All Forms of Discrimination, the initial version of the Law provided the following notation: “…except in the case when this type of treatment serves a legitimate purpose and is necessary in a democratic society.” Apparently, a direct notation about public order and morality was not included in the initial version. This term appeared in the text of the Law after certain compromises. Therefore, if we consider the practices of the aforementioned states and the definitions of this term, even if ‘public order and morality’ were not included in the document, ‘legitimate reason’ would still cover the possibility of limiting based upon this ground.

Conclusion

The Georgian Parliament adopted the Law on the Elimination of All Forms of Discrimination in 2014. The Law prohibits discrimination based upon any grounds and provides mechanisms for the prevention of discrimination.

A remark by Members of the Parliament was considered in Article 2 and the clause ‘defending public order and morality’ was added in the initial version. This term is defined in Article 171 of the Code of Administrative Offences of Georgia. Article 2 of the anti-discrimination law permits the limitation if it is justified by public needs (public order and ensuring moral norms) and has objective and sensible justification. Therefore, according to the Law, public order and morality are those circumstances which can outweigh discrimination acts.

As for the case of Handyside v. the United Kingdom,

the European Court of Human Rights, in order to ensure societal dignity and morality, indicated that interference in the freedom of persons enjoying the right is allowed if this opposes public order and moral norms. It also allows states to enjoy ‘the framework of free assessment’ in order to determine whether or not it is necessary to limit the concrete right of an individual in a democratic society upon the grounds of public morality. However, a court also retains the possibility to supervise the decision taken by the state.

The anti-discrimination acts of Germany, the Netherlands and the United Kingdom also include provisions limiting the right but not directly through the clause about ‘morality and morals.’ Nevertheless, the documents about equal treatment imply that the legitimate purpose and objective basis means to act according to public order and moral norms. Taking this into consideration, if this term were not directly written into the Georgian law, the legitimate purpose would still cover these grounds.

FactCheck concludes that the statement by Eka Beselia, ”Public order and morals are the circumstances which may outweigh discrimination during evaluation, so that the action may be considered as justified by a state in order to ensure morality and public order. There are several cases of the European Court’s decision; for instance, the case of Handyside v. the United Kingdom, when the European Court stated that a state has the wide freedom of views to assess whether or not this or that action is necessary for ensuring moral standards. This definition was correctly reflected in the wording of Article 2,” is HALF TRUE.