On October 23, 2015, after a two-year-long review of the case, the Tbilisi City Court acquitted a clergyman, Father Iotam (Irakli Basilaia), and several other persons (Beka Salukvadze, Tariel Davrishiani and Giorgi Basiashvili) who were accused of dispersal of the May 17, 2013 rally. The aforementioned persons had been charged under Article 161 of the Criminal Code which imposes criminal liability for "illegal interference, under violence, threat of violence or by using one’s official position, into exercising the right to hold an assembly or manifestation and participate therein”.
Considering the scale and nature of the violence manifested on May 17, 2013 – when participants of a violent counter-demonstration organized by clergymen of the Orthodox Church came into an open confrontation with the constitutional order based on the ideas of human freedom and equality – the aforementioned decision of the Court encourages a syndrome of impunity and contributes to further strengthening of the existing homophobic, intolerant attitude and violence in society.
According to the statemen treleased by the Tbilisi City Court, the Court deemed that "the case lacks the totality of direct and unquestionable evidence which, together with the standard of beyond reasonable doubt, is sufficient for finding the persons guilty. At the court session, the witnesses for the prosecution failed to confirm that the defendants had committed the crime they were charged with.”
It should be noted that one more clergyman – Father Antimoz (Tamaz Bichinashvili) –had been chargedunder the same article, although the criminal prosecution against him was discontinued at a pre-trial session. The Court deemed the existing evidence – the video that shows Father Antimoz chasing and swearing at peaceful participants of the May 17 rally – to be insufficient. In addition, of May 21, 2013, the Tbilisi City Court had imposed minimum penalties – an administrative fine of GEL 100 for each – on four participants of the dispersal for disorderly conduct (Article 166 of the Code of Administrative Offences) and non-compliance with a lawful order or demand of a law-enforcement officer (Article 173 of the Code of Administrative Offences).
Despite the fact that the Court has not yet released the full version of the substantiated decision, we believe that this case reveals the ineffective policy of the authorities, which should be explained by the lenient attitude of the authorities to the dominant religious group and to the events of May 17. It should be noted that the practice of investigation and judicial examination of the case of May 17, 2013 once again shows the grave situation in the country in terms of attitude to hate crimes, including as follows:
1) There is a problem of incorrect qualification of crimes, as the motive of hate is not properly identified and taken into consideration when imposing legal liability. Despite the requirements of the applicable Criminal Code which regards hate crimes as crimes committed under aggravating circumstances, law enforcement bodies and courts do not apply the applicable norm; moreover, in most cases, they qualify such actions as administrative offences (e.g. disorderly conduct);
2) Considering the scale of the crimes committed at the time of and in connection with the May 17, 2013 counter-demonstration, the investigation has failed to identify a sufficient number of offenders and prosecute them criminally;
3) The State is failing to ensure an effective and meaningful investigation into the case, which should presumably be explained by leniency towards clergymen. This doubt is also supported by the fact that despite numerous eye-witnesses and disseminated videos, it seems that the Prosecutor’s Office has failed to present evidence with the quality which would be enough for passing a condemning verdict;
4) The Court does not properly assess and take into consideration the presented evidence – the videos clearly show that the persons who have been acquitted by the Court were distinguished by aggressive behavior at the assembly, were making threats, and were purposely trying to disperse the peaceful manifestation.
It is noteworthy that on May 12, 2015, the European Court of Human Rights in its judgment on the case of Identoba and Others v. Georgia found a violation of Articles 3 (prohibition of torture), 11 (freedom of assembly and association), and 14 (prohibition of discrimination) of the Convention and noted that the State had failed to stop the interference with the anti-homophobic march of May 17, 2012. The Court assessed the physical and verbal assault, threats and violence against the applicants, and ineffective investigation of the aforementioned facts by the State as a violation of Article 3 in conjunction with Article 14 of the Convention. The Court deemed that the applicants must have experienced such a level of fear and insecurity that the ill-treatment against them attained a minimum level of inadmissible severity under Article 3. It should be mentioned that the dispersal of the rally of 2013 was of an even larger scale and more violent, while the State turned out to be demonstrably ineffective in preventing violence on the part of participants of the counter-demonstration and, in so doing, failed to fulfill its positive obligations for ensuring the freedom of assembly and safety of participants of the rally. It should be emphasized that the dispersal of the rally of May 17, 2013, and the State’s ineffective response to it have been severely criticized by a number of international and local organizations.
Thus, with rather a high level of homophobia in the society, it is important that the authorities take all necessary steps to eliminate this problem, one of the most important methods for which is effective struggle against hate crimes and adequate punishment of the offenders. Therefore, we, the undersigned organizations, call upon the Prosecutor’s Office to apply the mechanism of appeal and use all relevant legal mechanisms to ensure that the accusation is substantiated with a high standard, as well as to ensure criminal prosecution of the persons who committed offences during or in connection with the demonstration of May 17, 2013.
Georgian Democracy Initiative (GDI)
Media Development Foundation (MDF)
Human Rights Education and Monitoring Center (EMC)
Tolerance and Diversity Institute (TDI)
US Department of State,http://www.state.gov/documents/organization/220492.pdf;
Assessment and recommendations by Thomas Hammarberg,http://eeas.europa.eu/delegations/georgia/documents/virtual_library/cooperation_sectors/georgia_in_transition-hammarberg.pdf; etc.