Georgian Young Lawyers’ Association,

Zaal Tkeshelashvili, Lela Gurashvili

and others v. Parliament of Georgia

N2/2/180-183

5 November, 2002

The Second Board of the Constitutional Court of Georgia composed of the following judges: Mr. Otar Benidze (President, Judge Rapporteur), Ms. Lamara Chorgolashvili, Messers Nikoloz Cherqezishvili, and Zaur Jinjolava and of the Secretary to the sitting - Lia Jalaghonia,

At an oral hearing, in which participated claimants: representatives of the Young Lawyers’ Association - Tinatin Khidasheli and Giorgi Chkheidze, as well as Lia Mukhashavria, Shorena Nazghaidze and Shota Grigalashvili – representatives of claimants Zaal Tkeshelashvili, Nino Tkeshelashvili, Maia Shariqadze, Nino Basishvili, Vera Basishvili and Lela Gurashvili,

has considered the case: Georgian Young Lawyers’ Association, Zaal Tkeshelashvili, Nino Tkeshelashvili, Maia Shariqadze, Nino Basishvili, Vera Basishvili and Lela Gurashvili v. the Parliament of Georgia.

The subject of the dispute is: a) Constitutional claim no. 180. Compliance of Article 3 paras. “a” and “b”, Article 5 para. 2, Article 6 para. 1, Article 8 para. 2 subparagraph “a”, Article 8 para. 5, Article 9 para. 1, Article 14 para. 1 of the Law of Georgia “On Assemblies and Manifestations” with Articles 19, 24 and 25 of the Constitution of Georgia. b) Constitutional claim no. 183. Compliance of Article 4 para. 1, Article 5 para. 2, Article 6 para. 1, Articles 7-11, Articles 13-14 of the Law of Georgia “On Assemblies and Manifestations” with Article 25 paras. 1-2 of the Constitution of Georgia.

The Second Board of the Constitutional Court joined registered constitutional claims nos. 180 and 183 under part 2 of the resolutive part of ruling no. 2/2/183 of 27 May 2002 with the view of considering them jointly.

The ground for lodging registered claim no. 180 with the Constitutional Court of Georgia is Articles 42, 45 and 89 of the Constitution of Georgia, Article 19 para. 1 subparagraph “e”, Article 39 para. 1 subparagraph “a” of the Organic Law of Georgia “On the Constitutional Court of Georgia”, Article 1 para. 2 and Article 16 of the Law of Georgia “On the Constitutional Legal Proceedings”.

The author of the constitutional claim considers that the articles above of the impugned act fail to comply with the provisions of articles 25, Article 19 para. 1 and Article 24 para. 1 of the Constitution of Georgia. In particular, Article 25 of the Constitution of Georgia recognising the freedom of assembly and manifestation, states that the aforementioned freedom may be exercised by everybody and may not be restricted by means of imposing an obligation to obtain a license. Such an extent of freedom is adequately reflected in Article 12 of the Law of Georgia “On Assemblies and Manifestations” prohibiting hindrance of “public expression of opinions by citizens”. The same approach is followed by Article 1 para. 1 of the aforementioned law.

In the opinion of the claimant, unconditional and steady protection of these rights is a most important guarantee for the existence of a democratic state structure, which is proved by the jurisprudence of the European Court of Human Rights. For example, the claimant invoked the judgment of 2001 on the case of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria - “restriction upon the freedom of assemblies and manifestations is equivalent to restriction upon speech and thought, as assembly and manifestation represent one of the means of expression of opinions.”

The Constitution and the law define the circle of those exercising the right, the object of regulation and the scopes of the restriction thereof. The freedom of assembly recognised in Article 25 para. 1 of the Constitution is applicable to everybody (irrespective of citizenship) and its scopes have been restricted by the Constitution in para. 2 in terms of the venue of an assembly or manifestation only.

The claimant requests to declare as unconstitutional Article 3 paras. “a” and “b” and the provision of Article 5 para. 2 “as well as the citizens of Georgia” of the Law of Georgia “On Assemblies and Manifestations”.

In the opinion of the claimant, the first paragraph has defined that everybody except for the representatives of the armed forces, police and security forces has the possibility to exercise the right in question. Legislator has never in any provisions indicated that only citizens of Georgia are in the position to exercise the right to assembly and manifestation or that a law may confine it to certain circle of individuals. The Constitution, in every specific situation, clearly differentiates between the instances and possibilities of applicability of the rights and freedoms to citizens and non-citizens.

The authors of the constitutional claim request for recognition as unconstitutional of Article 8 para. 5 of the impugned act in terms of Article 25 para. 2 of the Constitution of Georgia, under which “the necessity of a prior notification of the authorities may be established by law in the case, where a public assembly or manifestation is held on a public thoroughfare.” In their opinion, this is the only limitation clause in this regard provided for by the Constitution. Here the claimant refers to two terms of “prior notification” and “prior licence”. “Prior notification” implies an obligation of organisers of either an assembly or a manifestation to obtain a permission from the authorities to hold the assembly or the manifestation and in case of the failure to obtain such a permission to discontinue preparatory activities or apply to a court. Obtaining a license is a reciprocal process and implies an obligation on the part of the organisers to wait for the permission. The Constitution of Georgia does not provide for any obligation to obtain “prior licence”.

As regards, the “necessity of a prior notification”, like in the case of obtaining a licence, the organisers are under an obligation to submit the respective information to a relevant state agency about the planned activity. However, unlike from obtaining a licence, under the prior notification, the authorities are not entitled to restrict or prohibit holding an assembly or a manifestation. Article 25 of the Constitution clearly defines the point.

The Georgian Young Lawyers’ Association also considers that Article 9 para. 1 of the impugned act restricts unconstitutionally the freedom recognised by Article 13 of the Constitution of Georgia, as the aforementioned provision of the Constitution does not refer to any right of the authorities to prohibit an assembly or a manifestation. Likewise, the Constitution nowhere defines the places where assembles and manifestations may or may not be held.

As for Article 6 para. 1 of the impugned act, in the opinion of the claimants, the Constitution does not entitle the authorities to delimit in advance the area of the exercise of the aforementioned freedom. The Constitution expressly stipulates that “the necessity of a prior notification of the authorities may be established by law in the case where a public assembly or manifestation is held on a public thoroughfare.”

In the claimant’s view, the obligation of submission of the information and introduction of various preconditions under Article 8 para. 2 subparagraph a) of the law and other subparagraphs of the same article, are inexpedient for the exercise of the constitutional rights. Moreover, certain information to be notified is superfluous altogether and it is impossible to furnish some kind of this information in advance. For instance, preliminary number of the participants, the full information about the persons in charge. An inadmissible factor is noteworthy that the failure to observe any parameters referred to in the information may serve as a ground for the discontinuation of the assembly or the manifestation.

The claimant also believes that the provisions of both Article 8 para. 2 (“the notification shall refer to a form and an objective of the assembly and the manifestation”) and Article 11 para. 1 (“an objective referred to therein”) fail to comply with Article 19 and Article 25 para. 2 of the Constitution of Georgia, as go beyond the limitation by the authorities and the objective of this limitation is not followed. The obligation of submission an information concerning a form and an objective of the assembly or manifestation is in breach not only of the freedom of assembly guaranteed by the Constitution, but also of the freedom of speech, in particular, this contradicts Article 19 and Article 24 para. 1.

Thus, the gist of the problem is that Article 25 of the Constitution does not require for the prior disclosure of the object and form of the assembly and accordingly, is in contradiction of the right to freedom of speech and the right to freely and publicly receive and impart information.

Apart from the above-mentioned, the Georgian Young Lawyers Association believes that Article 14 para. 1 of the impugned act is in breach of Article 15 of the Constitution and must be declared as unconstitutional due to the following reasons:

The authority to restrict constitutional rights and freedoms rests with a court. Under Article 25, para. 3, of the Constitution, discontinuation of a manifestation is possible only where it assumes an illegal character. This is an only case, where the authorities have the right to prohibit continuation of an assembly or a manifestation already begun. This is evident from the stipulation of Article 4 para. 2 and Article 13 para. 1 of the acting law, i.e. these are the articles elaborating Article 25 para. 3 of the Constitution.

Stemming from the above-mentioned, the claimant believes the authority given to a body of local government in accordance with the law “not to allow” holding a manifestation for some reason, to be groundless and unconstitutional as Article 25 does not provide for such a possibility.

The claimants adduce the case law of the European Court of Human Rights to substantiate their opinions. Stemming from the above-mentioned, the claimants request the declaration of the impugned acts as unconstitutional.

The ground for lodging constitutional claim no 183 with the Constitutional Court of Georgia is Article 89 para. 1 subparagraph “f” of the Constitution of Georgia, Article 19 para. 1 subparagraph “1”, Article 21, Article 39 para. 1 subparagraph “1” and para. 2 of the Organic Law of Georgia “On the Constitutional Court of Georgia”, Article 1, Article 10 para. 1 and Article 16 of the Law of Georgia “On the Constitutional Legal Proceedings”.

The Constitutional claim contains those pieces of evidence, which in the claimants’ view substantiate the reason of the application.

The authors of the claim believe that the impugned articles of the law violate their rights recognised by Article 25 paras. 1-2 of the Constitution of Georgia.

The claimants represent a religious group of the Evangelistic Church, whose as-sembly was broken up by the officers of the Gldani District Police on 28 May 1999.

Having invoked the law of Georgia “On Assemblies and Manifestations” the members of the religious group applied to the Gldani District Court with the view of protection of their infringed rights. They requested to establish whether the Police officers had violated the aforementioned law. The Court decision was appealed in both instances and the decision of all three instances justified the police actions. For that reason, the claimants believe that they have been deprived of the possibility to establish the fact of infringement upon their constitutional right.

Further, the claimants specify those articles, which violated their rights.

The introduction of a term of a prior notification restricts the possibility to react immediately on actual issues of the society and is therefore unconstitutional.

Likewise, provision of endangering public order, constitutional rights and freedoms of others is such a general explanation that leaves room for the manipulations on the part of authorities, which can be manifested in the refusal to accept notification in any case of allusion to danger and restrict constitutional right to assembly and manifestation.

The claimants believe Article 9 to be unconstitutional, as it prohibits holding manifestation on a certain territory. The request of Article 11 para. 2 is as well in breach of Article 25 paras. 1-2 of the Constitution. The impugned provision obliges those in charge of organisation and holding a manifestation and participants thereof to follow the commitments taken in terms of a prior notification.

The above-mentioned Article of the Constitution is also violated by Article 14 and Article 5 para. 2 of the law, as Article 14 entitles a body of local government to restrict constitutional right in each case of any doubt. Article 5 para. 2 practically deprives minors of the possibility to assemble with the view of discussing the issues actual for them.

Article 14 para. 1 of the law is unconstitutional as obliges maintenance of the requirements of law while organisation and holding an assembly or a manifestation, as well as while public manifestation of opinions by particular individuals.

While consideration of the merits of the case, the party applied to the Court with a petition to invite Mr. Tedo Ninidze as a specialist. Although the aforementioned petition has been upheld by the Court, the specialist failed to appear before it.

A representative of the Young Lawyers’ Association Tinatin Khidasheli has specified their right to apply to the Court and submitted that the Young Lawyers’ Association has lodged an application as a legal corporate entity believing its vocation to protect the interests of its members. Likewise, stemming form the actual social activity of the Association there is a potential danger that its rights and freedoms recognised by Chapter Two of the Constitution of Georgia may be violated.

Concerning the prohibitions enumerated in Article 9 para. 1 of the impugned law, Tinatin Khidasheli has submitted that the Constitution does not prohibit holding assembly in the places provided for by the law, as the right to assembly and manifestation is absolute and may not be restricted by law.

Shota Grigalashvili - the representative of the claimants – Z. Tkeshelashvili, N. Tkeshelashvili and others has again elaborated the above-mentioned factual circumstances and the gist of the request.

According to Lia Mukhashavria, the conditions of Article 8 amount to more than a mere notification. It is impossible to define in advance the number of those who decide to attend an assembly. The State has the possibility to establish an approximate number of the participants by virtue of investigation and the Police.

Tinatin Khidasheli has submitted that they are contesting Article 8 altogether.

Concerning incompatibility of Article 4 para. 1 of the impugned act with Article 25 of the Constitution, in the opinion of Lia Mukhashavria, the aforementioned provision fails to comply not only with Article 25 of the Constitution but goes beyond the scope of its regulation and overlaps with Article 24 guaranteeing the right of everybody to the freedom of speech.

Concerning the issue whether the rights of others would be violated without those prohibitions enumerated in Article 7, Shota Grigalashvili submits that Article 25 of the Constitution has vested him with this right. Likewise, the claimants consider that stipulation of the terms of 5 days is not necessary and is unreasonable.

The respondent has not accepted the reasons of the requests contained in the claim and submitted that if apparent evidence duly established is given to the police on the part of a body of local self-government, the former is entitled to apply to a court and prohibit this activity. Neither the responsibility of those persons is excluded to whom the arms belong. The court may be guided by established evidence. In addition, the person who must take a decision of holding an assembly or a manifestation must be the person in charge who issues an administrative act. The information that is not corroborated by the evidence may nor lead to a break up of an assembly.

The claimants have not extended the scopes of the claim, the subject of the dispute remained unchanged.

A representative of the claimants Shorena Nazghaidze has additionally formulated argumentation of the claimants pertaining to the impugned articles of the law concerned in her concluding speech delivered before the Court.

She has concluded that the impugned articles of the law of Georgia “On Assemblies and Manifestations” have enabled the police officers to disrupt a peaceful religious assembly of Evangelistic Christians and at a later stage the judiciary legalised the aforementioned unconstitutional actions thereby the constitutional right to assembly without arms either indoors or outdoors without prior permission being infringed upon again. Accordingly, the impugned articles of the law must be recognised as unconstitutional, which is an absolute precondition for securing the rights recognised by Article 25 of the Constitution of Georgia.

A representative of the respondent Shorena Jankhoteli has formulated the rebutting considerations in her concluding speech, according to which there is no ground for upholding the constitutional claim. She has submitted that if an impugned law at any extent precludes from exercising the constitutional rights to assemblies and manifestations by citizens, the Parliament of Georgia is ready to enforce the judgement of the Constitutional Court and take appropriate legislative initiatives if need be. As a result of the consideration of the merits, having analysed the constitutional claim and the documents submitted by the parties, on the basis of explanations of the representatives of the parties given before the Court, with the view of adopting a decision the second board of the Constitutional Court of Georgia has revealed the following circumstances:

1. The claimant (Georgian Young Lawyers’ Association) requests to declare as unconstitutional Article 3 paras. a-b of the law of Georgia “On Assemblies and Manifestations” in terms of Article 25 para. 1 of the Constitution of Georgia. The impugned provisions read as follows:

“a) an assembly shall be a gathering of a group of citizens either indoors or outdoors, a meeting in public places, for the purpose of expressing of a solidarity or a protest;

b) manifestation shall be a citizens’ demonstration, a mass public procession in streets for expressing a solidarity or a protest, or a procession with slogans, mottoes and other descriptive means. “

The claimant considers that the constitutional provision in question interprets the circle of those exercising the right to assembly. “Everyone except members of the armed forces, of the police and of the security office has the right to public assembly without arms either indoors or outdoors without prior permission.” In their opinion, the Constitution, namely Articles 22, 26, 28, 29, 34, 41 and other Articles differentiate between the instances and the possibilities of the exercise of the rights and freedoms by the citizens and non-citizens.

The Court notes that under Article 1 para. 1 of the Law of Georgia “On Assemblies and Manifestations”, “the law governs the constitutional right to public assembly without arms either indoors or outdoors without prior permission.”

The legislator has applied the term of “a citizen” in the impugned provision. E.g. manifestation shall be a citizens’ demonstration…”, or “an assembly shall be a gathering of a group of citizens either indoors or outdoors”. Clearly, the term “individuals” has a wider meaning than the term of “a citizen”.

The Court considers that the term “citizen” by its content has the same implication in relation with the impugned Articles as the term “individuals”. In addition, stemming from the Constitution of Georgia (Article 25), both the citizens of Georgia and stateless persons have the right to assembly. Likewise, Article 89 para. 1 subparagraph f) reads that the Constitutional Court is entitled “to consider on the basis of a constitutional claim of a citizen constitutionality of normative acts in terms of the issues of Chapter Two of the Constitution”. The aforementioned reference to “a citizen” has found the following elaboration in Article 39 of the Organic Law of Georgia “On the Constitutional Court of Georgia”. It reads as follows: “1. The following shall have the right to lodge a constitutional claim on constitutionality of a normative act or a particular provisions thereof:

a) Citizens of Georgia, other individuals residing in Georgia and legal entities of Georgia, if they believe that their rights and freedoms recognised by Chapter Two of the Constitution of Georgia are infringed or may be directly infringed upon.”

That means that the term of “a citizen” has assumed an additional, extended implication in the above-mentioned provision and foreign citizens and stateless persons has been included within its meaning that is an accepted manoeuvre in legislation.

Notwithstanding the above-mentioned, GYLA is not in the position to contest the provision in question in the light of ratione personae . Under Article 39 para. 1 subparagraph a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, a legal entity is only authorised to apply to the Constitutional Court, where its constitutional rights and freedoms as of a legal entity in terms of the Chapter Two of the Constitution is violated or may directly be violated which does not mean that GYLA is also authorised to apply to the Court to defend the rights of others as well.

A legal entity . It is authorised to defend the rights of its members. However, stemming from the requests of the aforementioned norm of the Organic Law of Georgia “On the Constitutional Court of Georgia”, GYLA may not defend the constitutional rights of other independent subjects, even of its members. It is also worth mentioning, that the violation of a member of a legal entity does not mean the violation of the rights of the latter. Naturally, it does not exclude the right of the members to defend their rights themselves, given, as mentioned above, foreign citizens and stateless persons, like citizens of Georgia are entitled to apply to the Constitutional Court. Accordingly, foreigners and stateless persons being the members of GYLA may apply to the Constitutional Court if they believe that under Article 3 paras. a-b of the impugned law they are deprived of the right to assembly and manifestation.

Stemming from the above-mentioned, the Constitutional Court considers that it is not authorised to pronounce itself upon the constitutionality of Article 3 para. a-b of the Law of Georgia “On Assemblies and Manifestations” in the light of ratione personae.

2. Claimants: Z. Tkeshelashvili, N. Tkeshelashvili, M. Shariqadze and others apply for the declaration of unconstitutionality of Article 4 of the Law of Georgia “On Assemblies and Manifestations”. They failed to substantiate their demand and submit argumentation indicating to unconstitutionality of the aforementioned Article.

The first paragraph of the impugned Article reads as follows: “it shall be obligatory to follow the requirements of the present law while organising and holding an assembly or a manifestation as well as while public expression of opinions by particular citizens.” This requirement is natural as it necessarily punctuates each law. Law ought to be followed by everybody and not according to the appreciation of certain individuals. In case of doubt concerning unconstitutionality of any of its provisions, citizens are entitled to apply to the Constitutional Court.

The Constitutional Court holds that the allegation concerning unconstitutionality of Article 4 para. 1 is groundless.

3. The claimants consider that Article 5 para. 2 of the Law of Georgia “On Assemblies and Manifestations” contradicts Article 25 para. 1 of the Constitution of Georgia, as it deprives those under age of 18 of the possibility to exercise their constitutional right and assemble to discuss those issues actual to them which are commonly not in the adults’ interest. As regards stateless persons, in the claimants’ opinion, Article 27 of the Constitution of Georgia authorises the restriction of the right to political activity only, which may not be extended to the restriction of the right to assembly and manifestation, moreover, there is no such a provision in Article 25 of the Constitution.

Regarding the clause of Article 5 para. 2 providing that “those under the age of 18 the persons in charge…”, the Court considers that they represent the individuals of restricted legal capacity and a range of restrictions apply to them under the Constitution and civil and criminal legislation. the Article above also provides that stateless persons may not be persons in charge of organisation or holding an assembly or a manifestation.

Under Article 47 of the Constitution of Georgia, “foreign citizens and stateless persons residing in Georgia shall have the rights and obligations equal to the rights and obligations of citizens of Georgia with exceptions envisaged by the Constitution and law.”

Under Article 27 of the Constitution of Georgia, “the state shall be entitled to impose restriction on the political activity of citizens of a foreign country and stateless persons.”

Article 16 of the European Convention on Human Rights, which authorises imposition of restrictions on the political activity of aliens by the Contracting Parties, accepts such restrictions with regard to Article 10 (freedom of expression), Article 11 (freedom of assembly and association) and Article 14 (prohibition of discrimination).

Article 16 of the Convention provides, that “nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.” I.e. Article 16 of the European Convention provides for the restrictions in addition to the second paragraphs of articles 10 and 11 of the Convention with regard to aliens.

The Article 16 restriction is quite natural to legislation of European democratic states. Although the International Covenant of 1996 on Civil and Political Rights does not contain a provision analogous to that of article 16 of the ECHR, Austria, France and the Federal Republic of Germany made a reservation on the restriction of political activity of aliens.

Furthermore, the Court observes that under Article 39 para. 1 subparagraph a) of the Organic Law of Georgia “On the Constitutional Court of Georgia”, “the following shall have the right to lodge a constitutional claim on constitutionality of a normative act or a particular provisions thereof: a) Citizens of Georgia, other individuals residing in Georgia and legal entities of Georgia, if they believe that their rights and freedoms recognised by Chapter Two of the Constitution of Georgia are infringed or may be directly infringed upon.” Thus, the aforementioned Article excludes application to the Constitutional Court on the basis of abstract control. The authors of the constitutional claim may not have the status of aliens or stateless persons in order to allege the violation or the possibility of the violation of this right. The Constitutional Court has adopted ruling No. 2/13/197 on 26 July 2002.

Stemming from the jurisprudence of the Court of Strasbourg, not only individuals, but also either trade unions or NGOs are not in the position to apply to the European Court simply because they wish to challenge an action of the State as a matter of principle.

Thus, in the light of the above-mentioned and on the basis of Article 18 para. b) of the Law of Georgia “On the Constitutional Legal Proceedings, the Constitutional Court of Georgia is not entitled to pronounce itself on the constitutionality of Article 5 para. 1 of the Law of Georgia “On Assemblies and Manifestations” due to the ratione personae.

4. The claimants request for annulment of Article 6 para. 1 of the impugned law, alleging that it contradicts Article 25 para. 2 of the Constitution of Georgia. The claimant (GYLA), in particular, submits that in the constitutional claim that the Constitution of Georgia does not vest the state authorities with the right to determine beforehand the venue of the exercise of the right in question. In their view, the body of local government is not authorised to determine in advance the time and venue of an assembly without prior notification.

The Constitutional Court does not uphold the request above, given the aforementioned paragraph does not prohibit holding an assembly and a manifestation in other places, moreover, article 6 para. 3 of the Law of Georgia “On Assemblies and Manifestations” obliges the body of local government to determine in advance the time and venue of an assembly without prior notification, thereby facilitating the exercise of this right, as the interested persons have the information in advance whether the assembly or the manifestation necessitates prior notification.

Even in the cases, where in the light of the actuality of the issue at stake, it is obligatory to hold an assembly promptly, the law offers two alternatives: either notification, or in case of its impossibility to hold an assembly in a place already determined by the authorities without any notification. Furthermore, it is natural, that the prior determination of the place by the authorities also implies that the respective bodies have taken all the necessary measures for unhindered exercise of the right to assembly on the place concerned, where in interests of both the individuals assembling and other persons will be protected.

As regards the stand of the claimants that the impugned norm may entail implementation of a negative practice of the authorities to sanction the assemblies only in the places determined by them and nowhere else, the Court considers that a misunderstanding and a wrong application of a norm does not mean its being unconstitutional

Stemming from the above-mentioned, the Constitutional Court of Georgia finds that Article 6 para. 1 of the Law of Georgia “On Assemblies and Manifestations” does not contradict Article 25 para. 2 of the Constitution of Georgia.

5. In the claim registered under number 183 the claimants apply for the annulment of Article 7 of the Law of Georgia “On Assemblies and Manifestations”, given in their opinion the following norm is in breach of Article 25 of the Constitution of Georgia: “notification is not necessary for certain citizens wishing to express their opinions by slogans, but they are not allowed to use to that end the entrances and stares, to block the thoroughfare or hinder the movement of transport and people.”

The Court considers that the Article above elaborates the idea of Article 25 of the Constitution: “the necessity of a prior notification of the authorities may be established by law in the case where a public assembly or manifestation is held on a public thoroughfare.”

The Constitutional Court holds that an assembly in a form of sitting blokcade, is a intentional hindrance to the movement of transport and people in the above-mentioned places in order to attract by force attention of the society to political objectives, which considerably intrudes with the third persons and must be deemed to be unlawful actions,

The State having undertaken the obligations to secure equally the rights of those individuals or group of individuals to express their opinion in a form acceptable to them, is obliged at the same time to protect the rights of others, public order, the interests recognised by the Constitution and international acts.

The legislator has bestowed the persons enumerated in Article 7 the possibility of gathering without prior notification although defined the places, where holding an assembly necessitates a prior notification under Article 25 para. 2 of the Constitution.

Stemming form the above-mentioned, the Constitutional Court finds that Article 7 f the impugned law does not contradict Article 25 of the Constitution.

6. the further request of the claimants is to declare as unconstitutional Article 8 of the Law of Georgia “On Assemblies and manifestations”, given, in their opinion, it contradicts Article 25 para. 2 of the Constitution of Georgia.

The claimants submit that the term of 5 days provided for by para. 1 of the impugned law, is too long, which leaves the room for influencing organisers of an assembly and is a stumbling block for holding an assembly or a manifestation.

The Court considers that in every particular case, stemming from the subject, scales and actuality of an assembly, a more real term may be needed to secure holding the gathering. In addition, it is not also excluded that in case of determining a shorter term, the assembly may be held in fact, but the state may fail to provide the guarantees for the effective exercise of the right. Inn the opinion of the Court, therefore, 5 days constitute an optimal term, moreover, even longer terms are provided for in other countries, e.g. it is a 10 days term in Russia.

Paragraphs 2 and 3 of the law provide for the obligation of submitting an information about the form and objective, of an assembly, its, venue and the directions of the procession, the times of commencement and termination of the gathering, date, an approximate number of participants etc. the claimants do not see so many preconditions for the exercise of the constitutional right to be expedient. They also consider the information for instance about an approximate number of the participants to be inane. The fact that breach of any of the parameters indicated in a notification may become a reason for discontinuation of the assembly or the manifestation – is unacceptable as well.

In the opinion of the claimants, the obligation of submission of the information concerning for or object of the assembly and the manifestation is in breach of not only the freedom of assembly as guaranteed by the Constitution, but also the freedom of speech, namely, the requirements of the first paragraph of Articles 19 and 24 of the Constitution.

The Court observes that the freedom of speech is long ago an inherent and a major functioning element of a democratic society. If the freedom of assembly is understood as the freedom of expression, the same may be true concerning the latter as well. The aforementioned articles of the Law of Georgia “On Assemblies and Manifestations” mainly meet the constitutional requirements, provided their interpretation and application with due respect to the fundamental understanding of the freedom of assembly.

The freedom of assembly, albeit its importance, is not guaranteed without any restrictions. The impugned articles of the law guarantees the freedom provided that public safety and order, constitutional rights and freedoms of others are secured, and in the meantime subjects the freedom in question to legislative restrictions. Article 25 of the Constitution thereby takes into account the condition, that for the exercise of the freedom of assembly due to the connection with the surroundings there is a need of adoption of organisational an legal regulations in order to create effective preconditions for the exercise of the right on the one hand and to protect the rights of others on the other. The legislator is entitled to allow the restrictions of the right to assembly only with the view of protecting legal interests of the same value and with the due respect to the principle of proportionality. The necessity to interfere in the field of the freedom of assembly may derive from that that while exercising the right a demonstrator infringes upon the interests of others.

Even while such an interference, the state bodies are obliged to confine their actions to the protection of the legal interests being of the same value. The introduction of the prior notification is necessitated by taking appropriate measures. It means that the data pertaining to the notification must convey the necessary information to the state bodies to make a picture of the measures to be taken on the one hand to regulate the procession and other issues and on the other to protect the interests of the third persons and of the society and how to agree these two measures to each other.

The Constitutional Court observes that the obligation of the notification is not applied (save the exceptions) and its violation does not lead in practice to the prohibition or disruption of an assembly.

Stemming from the above-mentioned, the Constitutional Court finds that diversion from any of the conditions enumerated in Article 8 para 5 of the impugned law, allows a body of local government to reject the notification, although such a restriction is not provided for by Article 25 of the Constitution of Georgia. Article 8 refers to the particular instances, where prior notification is necessary and the by virtue of providing the licence clause restricts the constitutional right to freedom of assembly.

The formulation itself “rejection of notification” equals the institution of a notification with the license system. Notification, in general terms, implies informing the authorities about holding an assembly solely to that end that the authorities should secure the exercise of the right, thus being a one-sided action, by no means implying an obligation to expect respond from the authorities. Naturally, where the legislator allows the authorities to reject notification, it is supposed that the authorities practically refuse the particular persons the possibility to exercise the right to assembly or manifestation.

The system of the rejection of notification is in itself contradictory to the Constitution. Clearly it is not essential what is the ground of the rejection, given the authorities are not in any way vested with such an entitlement under the Constitution.

The legislator does not elaborate the effects of the rejection of notification. It derives from the contents of the respective paragraph of Article 6 that the failure to comply with the grounds of the said provision may become a reason for the prohibition of an assembly or a manifestation.

As regards paragraphs 7 and 8 of the impugned law, the Court is not authorised to pronounce itself on these matters as no argumentation concerning their unconstitutionality was adduced before it.

Stemming from the above-mentioned, the Constitutional Court finds that Article 8 para. 5 of the Law of Georgia “Assemblies and Manifestations” is in breach of Article 25 of the Constitution.

7. The Claimants contest Article 9 para. 1 under which “it shall be prohibited to hold an assembly or a manifestation” in the premises of the Parliament of Georgia, the President of Georgia, the Constitutional Court of Georgia and the Supreme Court of Georgia, the Courts, Prosecutor’s office, the Police, the organs of Penitentiary, Military units and establishments, railway stations, airports, hospitals, diplomatic establishments and in the vicinity of 20 metres, as well as in the premises of governmental organisations, the bodies of local governments, the companies, organisations and establishments having a special regime of labour security or armed security. The entire blockade of the entrance of these premises shall be impermissible”.

In terms of the above-mentioned the Court observes that a competent state body is allowed to condition holding an assembly with some circumstances. If evident circumstances due to an assembly or a manifestation are eminently threatening public safety or order. Public safety includes such interests as are life, health, liberty, dignity, property as well as inviolability of law-enforcement bodies and state bodies. When the aforementioned are at risk of infringement upon, an assembly is normally regarded to be affecting public safety. The public order itself represents the totality of unwritten laws, accomplishment of which, according to the dominating social and ethical opinions, is considered to b a precondition of co-existence of human beings on a defined territory.

Under Article 21 of the International Covenant of 16 December 1966 on Civil and Political Rights (in force with respect of Georgia since 3 August 1994).

The Court is satisfied that Article 9 provides those very places where holding an assembly will prevent for a normal discharge of the functions by those establishments, which damage the above-mentioned interests.

The Court cannot agree with the claimants that all possible restriction of the right at stake should have been provided and elaborates by the Constitution. According to this assumption, everything not provided for by the Constitution should be regarded as unconstitutional.

In the opinion of the Court, the fact that the Constitution is the supreme law of the country must not be necessary to be explained to the claimants. The Constitution is the totality of fundamental principals and is inconceivable to regulate every issue in details by it. Accordingly, neither Article 25 of the Constitution would have exhausted the conditions of the exercise of the right to assembly and manifestation. It has provided for the basic provision elaboration of which was competed by the Law of Georgia “On Assemblies and Manifestations”.

Stemming from the above-mentioned, the Court finds that Article 9 of the Law of Georgia “On Assemblies and Manifestations” does not contradict Article 25 of the Constitution of Georgia.

8. In registered claim no. 183 the claimants apply for repeal of Article 10-11 of the Law of Georgia “On Assemblies and Manifestations” due to the incompatibility with Article 25 of the Constitution.

As regards unconstitutionality of Article 10, the judicial board cannot uphold this request, as this Article does not contain any restriction of the exercise of the right in question. The Court is satisfied that the body of local government is authorised to recommend the organisers of the assembly or a manifestation concerning expediency of changing the place and time of its holding. Given the character of the recommendation, it does not oblige the participants of the assembly.

Under Article 11 para 1, “an assembly and a manifestation shall be held at the time and place as referred to in the notification, according to the objectives and the directions of the procession indicated in the notification.

Para. 2 provides for the obligation of the persons in charge, to follow the requirements of legislation of Georgia and the commitments taken under the notification.

The third paragraph refers to those means, that must not applied in the course of the action (arms, explosive substances etc.), which is also provided for by the Constitution.

The requirement of para 4 clearly expresses the idea of Article 25 para. 3 of the Constitution. The aforementioned Article does not contain any provisions contrary to the Constitution and thus does not give any grounds for its recognition as unconstitutional.

9. Claimants Z. Tkeshelashvili, N. Tkeshelashvili, M. Shariqadze and others request for the recognition of Article 13 of the Law of Georgia “On Assemblies and Manifestations” as unconstitutional, given, in their opinion it contradicts Article 25 of the Constitution of Georgia. Under para. 1 of the impugned Article “ in case of mass violation of Article 4 para. 2 and Article 11 of this law, the assembly or the manifestation shall be discontinued upon the request of an authorised representative of the body of local government”.

Article 4 para 2 prohibits the appeals at assemblies and manifestation aiming at overthrowing or forcibly changing the constitutional structure of Georgia, infringing upon the independence and territorial integrity of the country or propagandising war or violence, provoking national, local, religious or social animosity, shall be impermissible. The said paragraph does not proscribe the freedom of speech. The proscription only concerns the above-mentioned appeals, having illegal character. Such kind of appeals are punishable under the criminal legislation as well (Article 317 of the Criminal Code of Georgia).

As regards article 13 para. 2, sit obliges the persons in charge to discontinue an assembly or a manifestation if it assumes an illegal character. The person in charge is under an obligation to observer the norms of security established for the security of holding an assembly or a manifestation. The Court is satisfied with regard to Article 13 para. 3 that introduction of 3 days term is more effective and facilitates to decide the issue of legality if an assembly or a manifestation in possibly shortest period.

Stemming from the above-mentioned, the contents of Article 13 do not provide the ground for its recognition as unconstitutional.

10. The claimants raise the issue of unconstitutionality of Article 14 para. 1 of the Law of Georgia “On Assemblies and Manifestations” in terms of Article 25 of the Constitution. The said paragraph reads as follows: “the body of local government is entitled to hold an assembly or a manifestation if there are evident data verified by the police, according to which holding of an assembly or a manifestation will endanger immediately the constitutional structure, life and health of citizens. The decision thereof is taken by an authorised representative.”

The claimant (Georgian Young Lawyers’ Association”) observes that the said provision contradicts Article 25 of the Constitution of Georgia, given the Court is vested with the authorisation to restrict the constitutional rights and freedoms.

Article 25 para. 3 of the Constitution of Georgia provides discontinuation of an assembly or a manifestation by the authorities only in case it assumes an illegal character and discontinuation is only possible after commencement of an action. In the first place, it should be established that it has assumed an illegal character and then it is possible to apply the means of discontinuation.

The claimants regard as unconstitutional the possibility introduced by the law concerning the refusal of the authorities to allow holding an assembly or a manifestation on any grounds, the restriction of human rights being based on presumptions of the authorities. E.g. a judgment of the European Court of Human Rights on the case of Stankov and the United Macedonian Organisation Ilinden v. Bulgaria, is invoked, where the Court has held that: each particular case must be adequately evaluated by means of raising the issue of concrete perpetrators and not by means of prohibition of holdings assemblies and manifestations.

It is also mentioned in the claim that there is in place special legislation to combat crimes and protect the order. Responsibility for each crime is individual and legislation provide for a special punishment. In the opinion of the claimants, this has nothing to do with the Law of Georgia “On Assemblies and Manifestations” and the depravation of the Article 25 rights, moreover, the said Article of the constitution does not allow to prohibit an assembly.

The Court cannot agree with the claimants that the right assembly and manifestation can be regarded as absolute, i.e. unrestricted.

At some extent, this right to assembly and manifestation is restricted in each paragraph of Article 25 of the Constitution of Georgia itself. Likewise, Article 19 para. 3 of the law invoked by the claimants, reads that ”it shall be impermissible to restrict the freedoms defined in the present Article unless their exercise infringes upon the right of others”. The paragraph refers to the instances, where an absolute exercise of the right is impossible.

The above-mentioned ground is analogous to Article 7 of the Constitution of Georgia, where along with the protection and recognition of universally proclaimed human rights and freedoms it is stated that “While exercising authority, the people and the state shall be bound by these rights and freedoms as directly acting law. Let alone Article 44 para 2 reading that “the exercise of the rights and freedoms of an individual shall not infringe upon the rights and freedoms of others.”

The above-mentioned is a clear example of that that rights recognised and given to individuals cannot be absolute and without any restrictions. In such legal relations, where the state is restricted by virtue of human rights and freedoms while discharge of authority, accordingly, these rights and freedoms cannot be exercised by individuals absolutely, without any restrictions and unconditionally.

The Constitutional Court notes that Article 25 of the Constitution is called upon to protect only peaceful assemblies and manifestation (as repeatedly reiterated). In every particular case, there must be a prognosis of threat with on the part of the authorities apparent indicators based on the factual circumstances and other details. Considering the significance of the freedom of assembly, doubts as to the reasons for disruption of a gathering. A state authority, especially while exercising preventive prohibition, should not apply too lenient criteria of assessment of the threat, moreover, in case of a wrong assessment there still remains the possibility of its disruption. The Constitution has defined the system of notification, which according to the commentaries on the International Covenant of Civil and Political Rights, contains in itself prohibition the acceptance of prohibition in the instances defined by law. The grounds of prohibition are compatible with the grounds for the restrictions provided for by the ICCPR and the ECHR.

The aforementioned acts do provide for the grounds on which the right is subjected to restriction. The criteria to be applied in particular instances is difficult to be determined by the Constitution and the latter might have unlikely provided for it.

Unlike the freedom of expression, the freedom of assembly is restricted by narrower scopes of its protection. The assembly, which is not peaceful, cannot be protected by the Constitution and may be subjected to prohibition, disruption or other sanctions.

The enumerated scopes are principally observed in Article 14 of the Law. Moreover, it should be noted, that the interference in the aforementioned rights must be necessary not only for reaching a particular objective, but in a democratic society as well. Therefore, prohibition of an assembly or disruption by force is an extreme means after other stricter facilities have been turned out futile.

Having been guided by Article 89 para. 1 subparagraph f) of the Constitution of Georgia, Article 19 para. 1 subparagraph e) Article 21 para. 2, Article 39, Article 43 para. 8 of the Organic Law “On the Constitutional Court of Georgia” and Articles 32 and 33 of the Law “On the Constitutional Legal Proceedings”,

The Constitutional Court of Georgia

rules:

1. To uphold the application of the claimants to declare as unconstitutional Article 8 para. 5 as well as the provision “the decision there of shall be taken by a competent representative” of Article 14 para. 1 of the Law of Georgia “On Assemblies and Manifestations”.

2. Not to uphold a) the claim contained in constitutional claim #180 to declare as unconstitutional the following provisions of the Law of Georgia “On Assemblies and Manifestations”: Article 3 paras. “a” and “b”, Article 5 para. 2, Article 6 para. 1, Article 8 para. 2 subparagraph “a”, Article 8 para. 5, Article 9 para. 1, Article 14 para. 1, except for the provision declared as unconstitutional referred to above. b) the claim contained in constitutional claim #183 to declare as unconstitutional the following provisions of the Law of Georgia “On Assemblies and Manifestations”: Article 4 para. 1, Article 5 para. 2, Article 6 para. 1, Article 7, Article 7 paras. 1-4, 6-8, Article 9-11, Article 13 and Article 14 para. 1, except for the provision declared as unconstitutional referred to above. and para. 2 in terms of Articles 19, 24 and 25 of the Constitution of Georgia.

3. The judgment of the Constitutional Court shall come into force from the moment of its public delivery at the hearing of the Constitutional Court.

4. The judgment is final and not subject to appeal or amendment.

5. Copies of this judgment shall be sent to the parties, the President of Georgia, the Parliament of Georgia, and the Supreme Court of Georgia.

6. The parliament shall be requested to ensure moving the relevant amendments to the Law of Georgia “On Assemblies and Manifestations” taking into account the circumstances referred to in paragraph 1 of the resolutive part and in motivational part of the present judgment.

7. The Decision shall be promulgated in the official gazette within 7 days.

Members of the Board:

O. Benidze, N. Cherkezishvili,

L. Chorgolashvili, Z. Jinjolava.