Introduction

Article 222 of the Criminal Code of Georgia establishes liability for the seizure or blockage of a television, radio, or telecommunications facility, or a facility of strategic or special importance. According to this provision, punishment applies if the act hinders or could hinder the normal operation of the facility.

The provision does not define what constitutes an object of strategic or special importance. It is noteworthy, that a list of strategic facilities had not been established for years. Without making any amendments to the Criminal Code, the government approved a Resolution defining the list of strategic and/or special importance objects in October of last year.[1] The adoption of this Resolution was directly linked to protests against the “Russian Law” that took place in front of the Georgian Parliament in the spring of 2024. The Resolution classified strategic objects as buildings of the Administration of the Government of Georgia and the President, high-voltage stations, railways, metro stations, and others. It is important to note that the Resolution of the Government, adopted in the fall of 2024, did not initially include highways. However, on January 31, 2025, the government amended the Resolution to add highways of international significance to the list of strategic objects. This amendment clearly illustrates the repressive intent of the state to criminalize participation in the gathering planned for February 2, which aimed to hold a manifestation for several hours near Tbilisi Mall.

This expectation was confirmed on February 4 when the Ministry of Internal Affairs published information on its website on the initiation of criminal prosecution against 8 individuals for attempting, as a group, to block an object of strategic or special importance. The statement from the Ministry of Internal Affairs misleads the public by referencing Government Resolution N 361 of October 23, 2024, as if its original version had already included the amendment made on January 31, 2025, which added highways of international importance to the list of strategic or special importance objects.

The post-factum criminalization of an announced assembly in this manner violates the principles of accessibility (see 1.2), foreseeability (see 1.4), and generality (see 1.3) of the law. Moreover, the government did not have the authority to establish a new criminal offense (see 1.1). These principles are particularly strictly assessed in the context of criminal law, as reflected in the principle of legality (nullum crimen sine lege), which states that no act can be considered a crime without a law in force before its commission. Beyond these formal criteria, criminalizing highway blockages undermines the essence of freedom of assembly, as it penalizes an action protected by the essence of the right, regardless of whether the obstruction resulted from a large number of assembly participants. At the very least, such criminalization imposes a disproportionate restriction on freedom of assembly and contradicts Article 21 of the Constitution of Georgia (see 2).

1. The Rule of Law and the Principle of Legality are Violated in the Context of Criminal Law

The rule of law and adherence to the principles of legality are prerequisites for the legitimacy of state power. The concept of the rule of law, without which modern legal states cannot function, carries, even within a narrow definition, the moral objective of preventing the arbitrary and biased use of power.[2] A systematic, deliberate, and dishonest violation of these principles undermines any trust or agreement between the state and society.

The European Court of Human Rights also emphasizes the goal of preventing the arbitrary use of power when assessing the quality of a law that restricts rights (see 1.4). According to the most minimalist theories of the rule of law, a law must meet the following requirements: it must be general, meaning it applies to an unspecified group of persons (impartial and not targeted ad hominem); it should be publicly accepted, oriented toward future action, foreseeable, free from contradictions, relatively stable (i.e., not subject to constant change), and enforceable; and its enforcement must not deviate significantly from a good-faith interpretation of the law.[3]

In the context of criminal law, the principle of the rule of law takes on a more specific and strict form in the principle of legality, which encompasses several guarantees. Namely, according to this principle, legal norms establishing liability must be enacted by the Parliament of Georgia based on law. In turn, the principle of legality goes beyond merely defining the competent authority - it also imposes qualitative requirements on legal norms establishing liability. Specifically, it prohibits the retroactive application of criminal liability, the use of vague (unforeseeable) norms, reliance on customary law, and the application of legal analogy. Unlike general rule of law standards, the principle of legality has an absolute nature. While exceptions exist where a new law may retroactively sanction past actions, the requirement that liability be based on a clear legal norm is an absolute safeguard. No deviations from this principle are permissible, even in a state of emergency.[4]

Like the rule of law, the principle of legality aims to restrain the state. Every legal norm, especially one that establishes criminal liability, must be sufficiently foreseeable and accessible, allowing a person of average mental capacity to regulate his/her actions in accordance with the law.

1.1. It is not Permissible for the Executive Government to Criminalize an Action

The executive government did not have the authority to declare the blocking of a highway a punishable act under the Government Resolution adopted on January 31, since the punishment for such an act and any clarification/expansion of the criminal offense must be based on a law passed by the Parliament. In other words, the Criminal Code itself must define the essence of the criminalized act and its constituent elements. Only additional details may be specified by a subsequent government act. It is important to note that, at present, the Criminal Code does not include any reference to the list of objects of strategic or special importance being established by a Government Resolution. This gap in the law has been acknowledged by the government itself, as the Georgian Parliament has initiated a package of legislative amendments to the Criminal Code. It has been proposed that a note be added to Article 222 to clarify the nature of the legal act that establishes the list of objects of strategic or special importance. In this case, however, the Government Resolution has made an action punishable under criminal law that was not criminalized by the Criminal Code beforehand. This assessment is derived from both domestic and international legal norms.

According to the fundamental principle of legality, as enshrined in Article 31(9) of the Constitution of Georgia, no act can be considered a crime unless a law is in force before its commission. The practice of the Constitutional Court also emphasizes that the criminalization of an act is solely within the power of the legislative body, a principle that directly stems from the constitutional framework of checks and balances. Granting the exclusive authority to establish liability to the Parliament is not a legal whim. It stems directly from the institutional characteristics that legislative bodies, generally elected through free and fair elections, possess. Generally, the Parliament is a pluralistic body in which various societal groups are represented. The discussion on draft laws in Parliament occurs through transparent, participatory procedures, with the opportunity for public debates/hearings of justifications. Therefore, granting the Parliament the exclusive authority to adopt norms establishing liability is linked to the main goal of the rule of law - reducing the risks of arbitrary use of power. Accordingly, it increases the legitimacy and reliability of the norm establishing liability, which is especially important in cases of such intense intervention in individual rights as criminal prosecution.[5]

For the purposes of Article 31 (9) of the Constitution of Georgia and the analogous provision of the European Convention on Human Rights regarding the principle of legality (Article 7), a legislator’s reference to another [subordinate] provision is not inherently inconsistent with the principle of legality. However, when employing such a “referencing” technique, the criminalization of an act must still meet the qualitative requirements of the law. The provision to which the criminal norm refers becomes part of the same norm, and reading them together must allow for a clear identification of the punishable act. Most importantly, to ensure the foreseeability of the law establishing liability, any reference to another provision must be explicit, while the provision being referenced may only specify certain elements of an already defined criminal offense. The referenced norm cannot expand the scope of criminalization, introduce a new punishable act, or independently define the elements constituting a crime.[6]

1.2. The Principle of Accessibility of the Law is Violated

Restricting a right through a criminal norm in a practically secret manner - without proper publication, as was the case here - also violates the requirement of legal accessibility. An act can only be criminalized based on a law that has been adequately accessible to the public for a reasonable period in advance. As noted, this standard is particularly strict concerning criminal norms. Even if some members of the public became aware of the state’s intention to criminalize the assembly scheduled for the next day through media reports on the government’s decision (despite its inadmissibility), this timeframe cannot be considered reasonable for ensuring that all participants of the assembly were aware of the change. The standard of accessibility is also applied in the case law of the European Court of Human Rights when assessing the quality standards for a law.[7]

1.3. The Principle of the General Nature of Law is Violated

The amendment to the Government Resolution, which added highways to the list of strategic objects, was not driven by the need to regulate an indefinite range of cases, as is required for a normative act. Instead, it was motivated by the intent to suppress a specific, already planned assembly. Criminalizing a particular assembly after its announcement - and doing so within such a short timeframe - violates a fundamental principle of the rule of law, which concerns the general nature of the law. Rather than addressing a broad legal issue, the amendment was aimed at preventing a single, specific event. This core principle of the rule of law exists to uphold equality before the law and prevent arbitrary decision - making, ensuring that legal norms are not weaponized against particular individuals, groups, or events. The European Court of Human Rights does not recognize such ad hominem norms - those targeting specific events, groups, or individuals - as meeting the qualitative requirements of the law.[8] The Venice Commission has also consistently emphasized the importance of this principle within the rule of law framework.[9]

1.4. The Principle of Foreseeability of Law is Violated

As noted earlier, the criminalization of blocking highways of international importance became possible through the amendment to the Government Resolution on 31 January 2025, significantly affecting the essence of Article 222 of the Criminal Code of Georgia.

Beyond the lack of executive government to criminalize actions by Resolution (see 1.1), this form of criminalization also raises serious concerns regarding foreseeability. The criminalization of action through the definition/expansion of strategic and/or special importance objects by Government Resolution is not foreseeable, as Article 222 of the Criminal Code does not explicitly refer to this legal act.

In its turn, Article 222 of the Criminal Code is also unforeseeable. It broadly refers to objects of strategic and special importance without providing any objective criteria for determining such significance. In its current form, the provision allows law enforcement agencies to impose criminal liability based on subjective assessments of an object’s importance. Moreover, Article 222 does not outline general characteristics that define strategic or special importance and criminalizes actions even when they do not actually disrupt the normal operation of such objects. According to the norm, an action is punishable even if it could have disrupted the normal operation of objects of strategic and special importance. These discretionary criteria grant an excessive margin of appreciation, fail to impose limitations, and clearly violate the principle of legality.

This reasoning is supported by both domestic and international legal standards. According to the Constitutional Court of Georgia, when there is a risk of restricting a right, the legislator/norm-setting body must adopt “precise, clear, unambiguous, and foreseeable legislative norms” that, under good faith interpretation, exclude interpretations inconsistent with the right.[10] The norm must be sufficiently specific not only in its content but also in terms of its subject matter, purpose, and scope of regulation.[11] The Court further established that the legislative body has an obligation to provide public authorities with clear guidelines to ensure that any decision made is foreseeable, necessary, correct, and justified […].[12] The foreseeability standard is particularly strict in the context of norms that establish liability. The Constitutional Court has emphasized that when defining criminal legislation, the legislative body must adopt provisions that minimize the possibility of courts reaching different legal conclusions through interpretation.[13] In accordance with the Court, the legislator’s exclusive authority to criminalize conduct must be exercised in a manner that prevents the judiciary from independently shaping the elements of a criminal offense through case law.[14] The foreseeability requirement in its form is intended to prevent arbitrary prosecution and conviction.[15] The European Court of Human Rights similarly emphasizes that the foreseeability of law is a safeguard against arbitrariness,[16] especially in cases where a legal norm may serve as the basis for criminal liability[17] and/or deprivation of liberty.[18]

A broad and arbitrary interpretation of Article 222 of the Criminal Code is particularly problematic as participants of an assembly have a legitimate expectation that their actions will be protected under the freedom of assembly guaranteed by the Constitution and legislation of Georgia, as the exercise of this freedom inherently carries the risk of disrupting traffic. On the contrary, a good faith interpretation of Article 222 suggests that an action is punishable even if it merely “impeded or could have impeded” the “normal operation” of the highway. However, in order to align Article 222 with Article 21 of the Constitution, it would be necessary to interpret it in a way that excludes its application to blockages arising from public and political protests. When assessing foreseeability in the context of criminalizing an act, the European Court of Human Rights also considers the essence of a parallel right recognized under domestic law, which may create a legitimate expectation for an individual that such a broad interpretation of criminal liability will not be applied due to the above-mentioned right.[19]

1.5. There is no Significant Public Interest in the Criminalization

Given the scale of the impact of criminalization on fundamental human rights, it should be used as a last resort and should serve important interests.[20] As the Constitutional Court defines, a crime is an action committed by a person that contradicts the fundamental values of society and the established public order, without the protection of which it is impossible for a pluralistic, democratic, and free society to exist.[21] According to the Court, “criminalization without a real and objective necessity to protect relevant public goods and legitimate goals [...] deprives the government of its constitutional basis […]”.[22] Any type of punishment is justified by the court only for the purpose of restoring justice, preventing new crimes, and achieving the resocialization of the offender.[23] There is no punishment without the establishment of a crime/offense, and it is logical that the imposition of criminal liability itself should ultimately serve the purposes of punishment. The European Court of Human Rights strictly examines cases of criminalization, and explains that it must be narrowly formulated and not leave room for broad interpretation.[24]

Contrary to this standard, in this case, not only are there no countervailing goals for criminalization, but an action is criminalized in relation to specific highways - blocking the road due to the large number of participants of the assembly, which represents the core/essence of the freedom of assembly.

2. The Criminalization of Blocking a Highway Contradicts the Standard of Freedom of Assembly

2.1. The Essence of Freedom of Assembly is Violated

As mentioned earlier, the ruling party intends to criminalize an action - blocking a highway due to the large number of assembly participants - which, in essence, represents the core of the freedom of assembly.

This standard is set by the Law “on Assemblies and Demonstrations”,[25] as well as the practice of the Constitutional Court of Georgia.[26] According to the Constitutional Court, “the right to assembly/demonstration shall be given priority if its realization is impossible without restricting the rights of others and when blocking the road is an objective necessity”.[27] Moreover, the Court considers a requirement to terminate an assembly to be a disproportionate restriction even if, given the small number of participants of the assembly, blocking the road is not necessary. According to the Court, a violation of such a rule of assembly should be the basis for bringing it into line with the law, and not for its immediate termination.[28]

The blanket criminalization of any highway blockade is also considered unacceptable by international and regional standards concerning freedom of assembly. According to General Comment No. 37 on freedom of assembly, an assembly falls within the scope of protection under Article 21 of the Covenant on Civil and Political Rights even if it deliberately disrupts traffic.[29] Any restriction on the freedom of assembly requires detailed justification from the state and is permissible only if the harm caused by the disruption is disproportionate.[30] In contrast, according to the General Comment, only violent assemblies where participants use physical force that may result in injury to health, death, or significant damage to private property are not protected.[31]

This definition of freedom of assembly aligns with the European Court’s stance. For the Court, any form of assembly is protected under freedom of assembly, provided it is non-violent. Non-violent assemblies can include actions like deliberately blocking a road, even if it disrupts the normal flow of life. The Court distinguishes between disruptions caused by the large number of participants, which are seen as an integral part of the right to assembly and disruptions caused by artificial or self-inflicted means. Unlike the latter, the former is defined as an integral part and the core of freedom of assembly and is thus subject to a stricter assessment test when considering its restriction. For example, when assessing the proportionality of a fine for blocking a road with motor vehicles, the Court emphasized that there was a complete blockage of traffic, not a mere disruption. Taking into account the requirement of tolerance, the police officers correctly took action only after allowing the blockade to persist for several hours.[32] The (non-custodial) sentence was considered proportionate in the case where participants of the assembly blocked three highways simultaneously for two days.[33] In contrast, the Court considered the prior ban on the assembly to be disproportionate, arguing that the government and court decisions only concerned the anticipated traffic disruption, which, in essence, is an integral part of the exercise of the freedom of assembly. The Court took into account the size of the highway and concluded that the planned assembly (of approx. 200 people) could have been held without significant disruption to traffic, and any other conclusion could only have been speculative.[34]

The Court does not exclude the occupation of public institutions from the right to peaceful assembly.[35] Moreover, in its judgment against Georgia, the Court extended the scope of freedom of assembly to include the deliberate obstruction of the Parliament, when the protest was aimed at the refusal of the legislative body to carry out electoral legislation reform. Although the Court found no violation with respect to two out of the three applicants, this conclusion was reached only after assessing the proportionality of the measures taken, as the actions aimed at obstructing the legislative process were deemed to fall within the scope of freedom of assembly.[36]

As for criminal liability, especially those provisions that prescribe deprivation of liberty as a form of punishment, the European Court generally considers them to be a disproportionate restriction on freedom of assembly or, at the very least, subjects such cases to particularly strict scrutiny.[37] Regarding the restriction of freedom of assembly through criminal norms, it is crucial to consider the “chilling effect” of such radical, criminal measures. Imprisonment has a significantly chilling effect on the exercise of this right and influences the ability of others to freely exercise their right to assembly. As the Court explains, the chilling effect exists even when the prosecution has been discontinued or the court has not ultimately found the person criminally liable.[38] In a case against Georgia, the European Court of Human Rights emphasized this “chilling effect” and ruled that the 8-day administrative detention of a participant of a peaceful assembly - imposed for disobeying a police order to clear the road - was disproportionate.[39] It is precisely due to this chilling effect that the European Court of Human Rights opposes the criminalization of other forms of non-violent expression, no matter how shocking or provocative they are (e.g., the surprise performance of the punk band “Pussy Riot” in a cathedral).[40]

It is noteworthy that there are no longer isolated instances of misconduct but rather a deliberate and systemic regression in both the rule of law and the protection of human rights. The so-called “chilling effect” of laws adopted in parallel with the stabilizing of autocracy is not an outcome of protecting the public interest but rather a deliberate state policy. This policy can have a large-scale impact on people’s willingness to resist autocratic tendencies, participate in protests, report on current events, and so on.

Summary

We witness the instrumentalization of the law against protest every day.

The process of stripping the law of its binding function and turning it into a tool of repression is best exemplified by the post factum criminalization of protest announced on February 2, by Government Resolution. This action blatantly disregards nearly all aspects of the principles of the rule of law and legality. With this step, the state’s repressive apparatus has made its intentions clear: it is prepared to impose the most severe criminal liability measures to suppress citizens’ non-violent protests, which are protected by the freedom of assembly - without even resorting to formally established and foreseeable norms, which are examined by the legislative body. Beyond the formal requirements, the broad and preemptive ban on blocking specific highways - and even more so, imposing criminal punishment - undermines the very core of freedom of assembly.

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