Statement on Recognition of Insult of Religious Feelings as Administrative Offense

The Parliament of Georgia is considering MP Ioseb Jachvliani’s legislative initiative on making amendments to the Administrative Offenses Code of Georgia, which envisages addition of new article 1661. The article declares insult of person's religious feelings as an administrative offense and imposes a fine for it.

It is important to emphasize that the bill prohibits:

• Public expression of hatred towards religious objects, religious organizations, clergymen and believers and/or publication of the material aimed at insulting believers’ feelings.

• Desecration of religious buildings and other religious sanctities, making any inscription or inflicting any damage to them.

It should be noted that on February 2 the Parliament’s Committee of Human Rights and Civil Integration discussed the mentioned bill and offered the initiator to change the wording of the article due to its general content and vagueness. However, the Committee supported the principle of considering the insult of person's religious feelings as an administrative offense.

The Public Defender considers that the legislative initiative, both in its content and form, is clearly incompliance with freedom of expression as well as to the requirement of predictability of law and, ultimately, poses danger to democratic development.

According to the proposed formulation, the only criterion for restricting freedom of expression is "insult of believers’ religious feelings", which lacks the opportunity for objective evaluation and fully subordinates one person’s expression to other person’s (believer) control, which virtually grants believers a privilege. In addition, relevant state agencies, when enforcing the law on the basis of the mentioned provision, have to evaluate what can be regarded as "insult of religious feelings", which grants them wide opportunities for arbitrariness.

In addition, "insult of feelings" cannot be used as a basis for limiting fundamental rights. The Constitutional Court of Georgia stated that "disapproval of views, values ​​and ideas cannot serve as grounds for restricting freedom of expression. The state is obliged to protect objectively identifiable interests, but not subjective feelings”. (Citizens of Georgia - Giorgi Kipiani and Avtandil Ungiadze v. the Parliament of Georgia, 1/3 / 421,422, 10 November, 2009, para. II.7).

With regard to the international standards and practices, it should be noted that pursuant to the Council of Europe Parliamentary Assembly resolution, "any democratic society should allow open debates on matters related to religion and religious beliefs." The Parliamentary Assembly calls on member states to revise national laws on religious abuse. As per the resolution, “in a democratic society religious groups, as well as other groups, should tolerate critical public statements and debates on their activities, teaching and faith, if such criticism does not equal intentional and gratuitous abuse or hate speech and does not encourage violation of peace, violence and discrimination of followers of specific religions. Public debate, dialogue and improved communication skills of religious groups and the media must be used for reducing sensitivity when it exceeds reasonable limits”. It should also be noted that in accordance with the amendments made in 2015, the Criminal Code recognizes public calls for violent behavior aimed at fueling disagreement among racial, religious, national, regional, ethnic, social, political, linguistic and/or other groups, through oral, written or other means of expression, as a punishable offense, if it creates obvious, direct and substantial threats of violent acts. Accordingly, there is no basis for approving the proposed initiative.

In Russia, human rights organization "Article 19", with regard to the amendment made to the Criminal Code concerning the prohibition of abuse of religious beliefs and feelings, said: "The law does not meet the requirement of “legality”, as it contains overly broad and vague legal terms, such as "insult of religious beliefs and feelings", "humiliation of religious worship" and “religious literature". Vagueness and subjective nature of these terms may lead to arbitrary interpretation and abuse by law enforcement authorities. "(Russia: Pussy Riot Inspired Blasphemy Law Threat to Free Expression, 01/7/2013). The same conclusion can be extended to the proposed provision, which contains identical, vague categories, while as per the international standard, the norm limiting freedom of expression must be "clear and predictable and narrowly tailored" in order to be considered as constitutional. (Citizens of Georgia - Giorgi Kipiani and Avtandil Ungiadze v. the Parliament of Georgia, 1/3 / 421,422, 10 November, 2009, para. II.7)

Open and unhindered public discussion on topical issues is of decisive importance for democracy and real opportunities for citizens' self-governance. When freedom of expression is limited in the name of protecting other rights, it is important to take into account the importance of a particular expression for the public discourse. In a society where religious organizations are particularly powerful and influential, it is very important individuals to have the right to express opinions, including unacceptable ones, towards these organizations, their representatives and followers. This is the only opportunity for non-believers to have opportunity for self-realization in the private and public sectors.

Instead of encouraging pluralism and respect for different views in the society, the proposed bill may escalate disagreement among religious groups and persons of various beliefs.

It should be noted that similar initiative is not new for Georgia’s legislative body. The Georgian civil society negatively responded to the initiation of the bill on Amendments to the Administrative Offenses Code in 2013, which recognized hindrance to person’s belief as a violation of the law. The initiative was criticized by the Public Defender’s Office and the Public Defender’s Council of Religious. As a result, the Parliament did not consider the initiative.

Given that the goodness of the proposed norm is very doubtful, while the damage inflicted to the freedom of expression and democracy is obvious, the provision represents disproportionate restriction on freedom of expression and runs counter to the Constitution of Georgia, the European Convention on Human Rights and other international human rights acts. Accordingly, due to the abovementioned threats, the Public Defender addresses the Parliament to reject the bill in the given form and content.

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