Case Summary and Outcome

The Constitutional Court of Georgia struck down a provision requiring prior notification for spontaneous assemblies on traffic roadways. The claim was brought by the Public Defender of Georgia who argued that the prior notification requirement for spontaneous assemblies violated freedom of assembly. The Constitutional Court of Georgia concurred, confirming that requiring prior notification for spontaneous assemblies effectively bans such assemblies on traffic roadways, thereby undermining the freedom of assembly. Simultaneously, the Court emphasized that the Government retains the authority to demand notifications for spontaneous protests as soon as they can be reasonably anticipated.

Facts

On July 26, 2021, the Public Defender lodged a claim at the Constitutional Court of Georgia requesting the Court to declare unconstitutional Article 8(1) of the Law of Georgia on Assemblies and Demonstrations. Under Article 39(1) of the Organic Law on the Constitutional Court of Georgia, the Public Defender of Georgia is entitled to lodge a claim at the Constitutional Court if he/she believes that any normative act or its specific provision infringes upon human rights and freedoms as guaranteed by the Constitution of Georgia.

Article 8(1) states that if an assembly or demonstration is to be held on the traffic roadway or obstructs traffic, “The notice of organizing and holding an assembly or demonstration shall be submitted to an executive body of a local self-government not later than five days before it is held”.

The Constitutional Court of Georgia has previously upheld the constitutionality of the disputed provision twice, in judgment No. 2/2/180-183 in 2002 and in Recording Notice No. 4/482,483,487,502 in 2010.

Article 21(1) of the Constitution of Georgia states that “Everyone, except those enlisted in the Defence Forces or bodies responsible for state and public security, shall have the right to assemble publicly and unarmed, without prior permission.” Article 21(2) of the Constitution stipulates that “The law may establish the necessity of prior notification of authorities if an assembly is held on a public thoroughfare”.

The First Collegium of the Constitutional Court referred the case to the Plenum (a 9-justice bench) of the Court, considering the possibility of overturning the precedent.

Decision Overview

On December 14, 2023, the Plenum of the Constitutional Court of Georgia delivered the judgment of the Constitutional Court. The main issue before the Constitutional Court was whether the 5-day prior notification requirement for spontaneous assembly on traffic roadways violated the freedom of assembly guaranteed in Article 21 (1) of the Constitution of Georgia.

The Public Defender argued that the disputed provision violated freedom of assembly on the grounds that it mandated prior notification for spontaneous assemblies. It emphasized that assemblies are sometimes spontaneous and often lack organizers, making compliance with prior notification requirement practically impossible. The Public Defender maintained that spontaneous assemblies should not necessitate prior notifications.

The Parliament of Georgia argued that the disputed provision did not apply to spontaneous assemblies, although admitting that the law itself was not clear about it. A representative from the Ministry of Internal Affairs concurred, adding that there had been no instances of sanctioning participants of spontaneous assemblies for violating the prior notification rule. The Parliament submitted that breaching the notification rule would not lead to sanctions, as it is merely an informative notice for authorities to ensure the peaceful nature of assemblies.

The Court emphasized the historical significance of freedom of assembly in Georgian society, acknowledging its crucial role in shaping public opinion. [para. 7]. The Court stressed that the Constitution of Georgia protects both planned or organized and spontaneous assemblies equally since in certain circumstances promptness is required and any delay of the assembly might render the protest ineffective. [para. 9]

The Constitutional Court confirmed that the disputed provision required 5-day prior notification for all assemblies on traffic roadways or those obstructing traffic, including spontaneous ones, and that a violation of the rules on holding the assemblies leads to liabilities. [para. 12] Despite the Parliament of Georgia and the Ministry of Internal Affairs’ assurances that the prior notification requirement does not apply to spontaneous assemblies and has never been enforced as such, the Court noted that this did not guarantee future exemption. Thus, the Court concluded that the disputed provision interferes with freedom of assembly guaranteed in Article 21(1) of the Constitution of Georgia. [paras. 15-17]

The Constitutional Court stated that freedom of assembly is not absolute and may be subject to proportionate restrictions for legitimate aims as outlined in the Constitution. The Court observed that prior notification for assemblies on traffic roadways does serve legitimate aims, such as protecting the rights (e.g. right to movement) and safety of others, including protesters: prior notifications allow relevant authorities to have adequate time to devise alternative traffic routes and ensure the availability of medical and police personnel in emergencies, among other preparations for assemblies. [paras. 24, 28-29] In assessing whether there were any less restrictive means to achieve the same legitimate aims, the Court dismissed the suggestion of notification after the fact as not as effective as prior notifications in ensuring peaceful assembly. [paras. 30-31]

In the proportionality analysis, the Court emphasized the crucial role of spontaneous assemblies in a democratic society, noting that social and political dynamics often prompt people to react swiftly and publicly express their protests without delay. In choosing the location for such protests participants often opt for central city streets, which can lead to traffic obstructions. In such cases, the disputed provision, requiring a five-day prior notification, is impractical for spontaneous protests due to their very nature. On the other hand, the Court noted assembling in areas that do not obstruct traffic or postponing the protest for five days would significantly diminish the effectiveness of these assemblies. [paras. 34-35]

Therefore the Court concluded the disputed provision failed the proportionality test as it heavily favors non-participants of the assemblies while substantially overlooking the rights of the participants. [para. 44]

Accordingly, the Constitutional Court held that the disputed provision violated Article 21(1) of Georgia’s Constitution. The Court highlighted that the State reserves the right to require notifications for spontaneous protests from the moment they can be reasonably expected.