Public Defender’s Statement on Detention of Three Persons for Sticking Posters

On October 16, 2015, Tabula TV Director Tamar Chergoleishvili and Director General Lexo Machavariani as well as student Salome Khvadagiani were detained for sticking posters to a construction fence in front of the Opera building on Rustaveli Avenue; protocols on administrative violations were drawn up against them. The posters showed cartoons of Bidzina Ivanishvili and Gazprom. I believe that the mentioned actions of the police unjustifiably restricted the freedom of expression.

In the released video, one of the law enforcers says that sticking of posters to a fence represents an administrative offense. According to the lawyer, protocols on administrative violations were drawn up against the three detainees under the first part of article 150 of the Code of Administrative Offenses, which labels distortion of the facade of a building of a self-governing body, in particular, "making various inscriptions, paintings and symbols on building facades, windows, fences, pillars, plants, as well as sticking of posters, slogans and banners to the places which are not intended for this purpose”, as an administrative violation.

It should be noted that in the given case the posters were stuck to a construction fence (and not to a fence) and to an outdoor lighting pole, which are not included in the abovementioned list. As for the "places that are not intended for this purpose," by taking into account the broad interpretation of the provision and the fact that local authorities may never provide similar places, the freedom of expression can be restricted to an unnecessary extent, which is unacceptable.

The first paragraph of article 24 of the Constitution of Georgia states that "Everyone has the right to freely receive and impart information as well as to express and impart opinion orally, in a written form or otherwise." This right may be limited by law only if it is necessary to achieve a certain legitimate objective. At the same time, the law must be sufficiently clear and predictable in order to enable citizens to foresee expected legal consequences. I think that sticking of caricatures of Ivanishvili and Gazprom to the construction fence and the outdoor lighting pole was protected by the freedom of expression and its restriction cannot be justified.

It is also noteworthy that police arrested the aforementioned three persons before drawing up a protocol. I believe that the police officers did not have the right to arrest the persons under "A" subparagraph of article 246 of the Administrative Code of Georgia. The cited provision names specific offenses, which, together with other circumstances, can grant police officers the authority to arrest. However, the provision does not mention distortion of the facade of a building of a self-governing body. In addition, police officers should not have applied the measure of detention due to the fact that the first part of article 150 provides for a 50-GEL fine and not for an administrative detention; at the same time, it was possible to draw up a protocol on administrative violations on the ground.

It should be noted that under article 150 of the Code of Administrative Offenses, protocols on administrative violations can be drawn up not only by authorized employees of the Ministry of Internal Affairs but also by authorized employees of the Tbilisi City Hall’s Supervision Service, which are not generally authorized to arrest. This once again proves the inappropriate nature of the use of detention measure in the given case.

The law enforcement authorities should realize that arrest of a person, even with observance of administrative procedures, represents an extremely restrictive measure and it should be used only under exceptional circumstances strictly defined by law and in case of existence of serious motives.

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