Social Justice Center responds to the statement of Anri Okhanashvili, the chairman of the Legal Affairs Committee of the Parliament of Georgia, in which he announced legislative amendments on the criminalization of desecration of religious buildings and objects.

The need for legislative amendments by the authorities was explained by what happened in Sameba. In particular, on January 9, the media published footage showing civil activists smearing paint in the Trinity Cathedral on the icon depicting Saint Matrona and Joseph Stalin. The activists' protest was caused by depicting Stalin on the icon, which, despite strong public criticism, did not become the subject of a timely and appropriate response from the Patriarchate. The Ministry of Internal Affairs has investigated the mentioned fact based on Article 166 of the Code of Administrative Offenses, which refers to minor hooliganism and provides up to 15 days of administrative imprisonment. Anri Okhanashvili noted that even though the incident in Sameba is considered an administrative offense according to the acting Georgian legislation, proportional responsibility for such actions is not prescribed.

A detailed and nuanced discussion of the draft law will be possible after its text is made public. However, from the initial and general assessment, the Social Justice Centre believes that the new legislation may contradict the international standards established by the freedom of expression, and the attempt to regulate such a subjective field (offense) violates the constitutional principles of foreseeability and the rule of law.

According to the case of the European Court, freedom of expression is a basic necessity and ground for a democratic society. Its scope of protection spreads not only to those ideas and expressions that are acceptable to the majority and contain popular or neutral opinions but also such expressions and opinions that are shocking, disturbing, or insulting for the state or any part of society since pluralism, tolerance and freedom of ideas are unconditional prerequisites for a democratic society. [1]

At the same time, the court defines that restricting freedom of expression may be reasonable if interfering with the right leads to eliminating religious hatred. However, the applied restriction and the legitimate purpose must be justified only by protecting religion and belief. In addition, by taking into consideration that the court calls unreasonable the expectation of both religious minorities and people following dominant religions that, no one will criticize their beliefs and views. Court highlights that the believers are obliged to accept and tolerate critics and rejection expressed towards their belief.[2]

The UN High Commissioner for Human Rights has pointed out that national legislation to punish insults of religion is often counterproductive, as all dialogue, debate, or criticism related to religion, much of which may be constructive, healthy, and necessary, may be censored. The Commissioner recommends that states with laws on the offense of religion should repeal them because such laws distort the enjoyment of freedom of religion or belief and healthy dialogue and debate about religion.[3]

The Venice Commission also considered the extent to which criminal law is adequate and/or effective in balancing the freedom of expression and respect for religion. It concluded that criminal sanctions are only justified if the act contains incitement to hatred (except when it can be qualified as a violation of public order).[4]

Some European countries do indeed have legislation on religious blasphemy. Still, it should be considered that there is an opinion that the said legislation, due to its vague and unpredictable character, contradicts the guiding principles of the freedom of religion of the European Union.[5] In addition, when discussing the legislation of European countries, the increasing tendency to annul laws on religious blasphemy in recent years should also be considered.[6] Public campaigns conducted by civil society organizations to annul the legislation prohibiting insulting religion in EU member states also indicate the same trend.

It is important that, in our case, the authorities are not debating the criminalization of insulting religious feelings, which is explicitly criticized by international human rights law. However, the criminalization of insulting "religious buildings" and "things" also carries high risks of arbitrary interference with freedom of expression and should be critically considered by the state. More specifically:

1. The acting legislation in Georgia already properly regulates the relationship between freedom of religion on the one hand and freedom of expression on the other hand and protects both rights to a high standard. According to the Criminal Code, committing a crime based on religious intolerance is aggravating circumstance for all relevant crimes (Article 53¹). The Criminal Law Code also properly protects private property objects and prescribes punishment for damage or destruction of others' property; the Code declares cultural heritage muniments as the objects of protection. Accordingly, there is no need for additional legislative regulation of the issue, especially criminalization, and on the contrary, it may become a dangerous tool for limiting freedom of expression. In addition, it is important to include the motive of hatred as an aggravating circumstance in the Code of Administrative Offenses, which civil organizations have been demanding for several years now, and this would be a more adequate and fair evaluation mechanism for offenses committed on the grounds of intolerance.
2. Attempting to regulate the issues creates more ambiguity and poses high risks of interfering with freedoms. For example, it is vague: 1. What time of objects, symbols, and items can be considered under the legislation as such, even when several religious symbols are secularized and profane; 2. what the law mean by abuse and how it measures subjective perception; 3. Which religious items will fall within the scope of the law when a large part of religious organizations do not have their religious buildings protected under such status and legislation does not give them such an opportunity? 4. Whether such an expression is considered an exceptional case for art and literature. Amidst such questions, there are risks that the law will not meet the requirement of foreseeability, which is relevant when defining particularly severe criminal offenses and punishments, and its purpose is to protect human freedom and dignity from the state’s arbitrariness.

In light of the above, the Social Justice Centre considers that:  

• Criminalization of offense of religious buildings and objects contains a high risk of arbitrariness. It may conflict with freedom of expression due to these concepts' subjective, vague, and unforeseeable nature. So, the state must refrain from initiating such legislation, which may deteriorate the status of freedom of expression in the country, particularly with repressive mechanisms.
• Furthermore, applying forceable criminal mechanisms to build long-lasting public peace is useless, and the state should work on sustainable resolution of discursive conflicts within the society, rethink the systemic roots of such conflicts, and support pluralism and critical discussions. In this case, the state should work to study the repressive Soviet past and to support the academic and cultural resources and infrastructure needed to create memory. Patriarchate and academic institutions should support the study of the persecution, harassment, and damage of the church in the Soviet period, the representations and cultural influences of that period, and critical discussions and agreements on these issues in the parishes. Unfortunately, the state did not highlight the necessity and importance of such work in any statement.

Social Justice Centre will provide a detailed and comprehensive analysis of this issue once the draft law will be available.

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