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On 15 June 2018, the judge of the Tbilisi Court of Appeal, Levan Murusidze, by his sole decision, without any oral hearing, considered and did not satisfy the appeal of “Aiisa” and left in force the decision of the first instance court. We believe that the decisions of city court and court of appeal are the dangerous precedents of infringement on the freedom of speech and expression. The courts fully neglected the standards set by the Constitution of Georgia and limited the freedom of speech and expression by the notions such as public moral, ethics, religious feelings of believers and etc. Finally, the fine of 500 Laris was imposed on “Aiisa” and the company was prohibited from disseminating the images and inscriptions, which were considered to be unethical and was ordered to withdraw them from the Georgian market space. The court’s decision will not be appealed in the Supreme Court.
We believe that the consideration of the court of appeal on limiting the freedom of expression due to the public moral and ethics is especially dangerous for the freedom of speech and expression. According to the Court’s interpretation, it assesses the ethical aspect of the issue via the views prevailing in the society at the time of case consideration. The court directly rules out: “the Court is obliged to be guided by the existing views and protect moral and ethical attitudes as well as religious belief of persons having such views from the unjustified attack”. It shows that the court was guided not by the rule of law and constitutional standards but by the will and opinion of the majority in public.
Unfortunately, the Court of Appeal failed to read out from the European Court of Human Rights (ECtHR) case law cited by itself, that the democratic society is tolerant not only to the prevailing views and opinions, but also to those views, which could be unacceptable to the majority of the society. In the case of Sekmadienis, the ECtHR guided by the Constitution of Lithuania, interpreted that no view or ideology (for example, of any specific religious group) could be declared as mandatory and be imposed on an individual and that the state shall not have the right to establish the mandatory system on views and opinions.
It should be noted that by the wrong interpretation of the ECtHR case law, the general courts neglected the standards set by the Georgian Constitution. The Court of Appeal tries to convince us that the ECtHR case law obliges it to protect the public moral and the persons’ relgious feelings. Although, the court says nothing about the fact that the Ceorgian Constitution sets higher standards in terms of limiting the freedom of expression. The Georgian Constitution does not allow limiting the freedom of speech and expression due to the public moral and other’s relogious feeings.
The Court of Appeals has put rather dangerous interpretations in its judgment on the protection of freedom of religion, guaranteed by Article 9 of the ECHR. Relying selectively on ECtHR case law, the Court stated that “the protection of religious feelings” is protected under the freedom of religion. Contrary, the contemporary European standards suggest that blasphemy should not be deemed a criminal offence[1] and religious groups must tolerate critical public statements and debates about their activities, teachings and beliefs.[2]
In spite of the fact that the norms of the Georgian Law on “Advertising” are clearly unconstitutional, none of the court instances granted a motion of the appellee requesting the suspension of court proceedings and applying to the Constitutional Court.
Taking into consideration the above-mentioned, we believe that the decision of the Tbilisi Court of Appeals as well as the decision of the first instance court contains substantial threat for the free, democratic state and society and contradicts Georgian Constitution and the European Convention on Human Rights and Fundamental Freedoms. Moreover, the limitation of the freedom of expression due to the mentioned reason is a dangerous precedent of censorship.
The GDI continues the legal assistance of “Aiisa” and its owner in Georgian constitutional court and in European Court of Human Rights.
[1] Recommendation of the Council of Europe Parliamentary Assembly on blasphemy, religious insults and hate speech against persons on grounds of their regligion, Rec 1805 (2007): http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=17569&lang=en, para 4;
[2] Ibid, para. 5.
