Dimitri Lortkipanidze’s Manipulation on the Possibility of the Government Banning the March for Dignity
On 3 June 2021 on air on the Alt-info far-right platform, the Director of the Primakov Georgian-Russian Public Centre, Dimitri Lortkipanidze, speaking about the March for Dignity scheduled for 5 July 2021, stated that Article 17 of the Constitution of Georgia, as well as the Law of Georgia on the Freedom of Speech and Expression and the Law of Georgia on Assemblies and Manifestations, allow the government to restrict the right of minorities to gather and to cancel the March for Dignity planned for 5 July. As stated by Mr Lortkipanidze: “When there is an obvious danger of some open, especially ideologue-based resistance and this resistance may potentially result in casualties, the law such as the Constitution allows such a type of restriction. This is Section 5 of Article 17 of the Constitution as well as laws on assembly and manifestation as well as freedom of speech and expression which say that the rights of manifestation as well as freedom of speech and expression may be restricted on the grounds of the public’s democratic aims if such a necessity arises.” Mr Lortkipanidze made similar statements during a broadcast on Georgian Times radio and his statement was also published on the website of Patrioti-TV.ge.
Article 17 of the Constitution of Georgia protects the rights to freedom of opinion and expression whilst Article 21 safeguards the freedom of assembly. These rights are not absolute rights and they may be restricted under specific circumstances. According to Section 5 of Article 17 of the Constitution, the restriction of these rights may be allowed insofar as is necessary in a democratic society for ensuring national security, public safety or territorial integrity, for the protection of the rights of others, for the prevention of the disclosure of information recognised as confidential or for ensuring the independence and impartiality of the judiciary. In addition, according to Section 3 of Article 17, authorities may terminate an assembly only if it assumes an unlawful character.
Apart from the Constitution, the Law of Georgia on Freedom of Speech and Expression and the Law of Georgia on Assemblies and Manifestations also govern the rights of assembly and expression. According to Article 8 of the Law of Georgia on Freedom of Speech and Expression, any restriction of rights may be established only if it is prescribed by a clear and comprehensive as well as narrowly tailored law and the benefit protected by the restriction exceeds the damage caused by the restriction. At the same time, a law restricting rights should be: critically needed for the existence of a democratic society and directly intended to attain a legitimate aim. Furthermore, the restrictive norm should be non-discriminatory and proportionally restrictive vis-à-vis the legitimate aim. The Law of Georgia on Assemblies and Manifestations also shares the same approach. In addition, Article 2 of this law specified that the restriction of the right to assembly should be aimed at attaining benefits protected by Article 17 of the Constitution of Georgia.
To obtain further clarification on this issue, FactCheck reached out to Mari Kapanadze, Director of the Civic and Political Rights Programme at the Georgian Democratic Initiative. As clarified by Ms Kapanadze: “Freedom of expression is indeed not an absolute right and it may be restricted. However, the Constitution of Georgia and the Law on Freedom of Speech and Expression as well as the practice of the Constitutional Court are unequivocal when can this right be restricted. It is important to emphasise that in contrast to the European Convention of Human Rights, our Constitution does not envision a restriction of expression on the grounds of public moral. In addition, we have no clause whatsoever that the restriction of expression is allowed in order to protect the religious sentiments of others. The fact that a group of people gets irritated by other people exercising their right of expression and this contradicts their values is not sufficient ground to restrict the freedom of expression neither by our Constitution nor in European countries and, moreover, in the USA.”
The European Court of Human Rights regularly reiterates that: “Freedom of expression is applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” The Constitutional Court of Georgia states: “Generally, speech should be a subject of justice under extreme circumstances only when it is objectively unavoidable. The right to freedom of expression should not be protected by the force of law only because we disagree with it, fear, hate or believe that it contradicts public morals or traditions.”
The standard of the freedom of expression, currently employed in Georgia, is close to the American standards and offers strong guarantees for safeguarding this freedom. Both the Law of Georgia on Freedom of Speech and Expression and the Constitution of Georgia explicitly allow the possibility for holding the Pride event. Moreover, banning it would have contradicted modern human rights standards. The principle of the legal state and democracy (which is guaranteed by our Constitution) unequivocally says that the state is restricted by human rights which oblige it to protect minorities, even when protecting them contradicts the will of the majority.
Despite the aforementioned, Dimitri Lortkipanidze misleads the public through a manipulative interpretation of the Constitution and other laws. With this statement, he seeks to justify the discriminatory attitude on the part of violent and homophobic groups vis-à-vis sexual minorities by wrongly interpreting the Constitution of Georgia.
The restriction of the rights to assembly and expression is allowed when such a restriction is necessary for the existence of a democratic society. In this case, among the declared goals of the March for Dignity were raising public awareness, fighting against homophobia, stigma and discrimination and ensuring an equal environment for the representatives of sexual minorities. One of the major characteristics of a democratic society is to protect the rights of different minorities. This means that the state is obliged to ensure that minorities have an opportunity to exercise their constitutional rights. The negative attitude which wider masses of the public have vis-à-vis minorities should not be a ground to restrict the rights of these very minorities.
As mentioned earlier, the benefit protected by restricting the rights to assembly and expression should be higher as compared to the damage brought about by such a restriction. Of note is that in this case, there is no such benefit critically needed for the existence of a democratic society which would justify the restriction of the rights of specific groups of people. The main arguments of the adversaries of the March for Dignity are based on subjective perceptions, irrational fears and the inadmissibility of people of a different orientation. This cannot be considered as a benefit of such an importance which would provide a ground for restricting the rights of other people. Therefore, in case of the holding of the March for Dignity, there is not a single pre-condition to restrict the freedom of expression and assembly.
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