Judgement on the case of “Besik Katamadze, David Mzhavanadze and Ilia Malazonia vs. the Parliament of Georgia
On 4 July 2019, the first board of the Constitutional Court of Georgia partially upheld the constitutional complaint N1271 (“Besik Katamadze, David Mzhavanadze and Ilia Malazonia vs. the Parliament of Georgia) and declared unconstitutional the provision of the Administrative Offences Code of Georgia that prohibited the temporary placement of a banner, slogan or poster by an owner or with the owner’s permission on their property as a means of spontaneous protest
The complainants disputed the constitutionality of the provision of the Code on Administrative Offences of Georgia, which makes defacing the appearance of local self-governing bodies punishable. More specifically, they considered the prohibition of placement of a banner, slogan or poster spontaneously or for a short period of time unconstitutional, when such an act is committed, on the one hand, by an owner or with the owner’s permission on their property, and alternatively, by a member of the City Council on the facade of his/her working space. According to the complainant’s argumentation, the disputed norms excluded the possibility of expression in the form of a spontaneous protest and disproportionately restricted the freedom of expression guaranteed by the Constitution of Georgia.
The respondent argued that individuals do not have unconditional and unlimited right to use public spaces, and that the disputed law restricted only a sole form of expression, which did not include other alternative types of communication. The respondent also stated that even a spontaneous and short-time placement of a banner, slogan or poster may deface the appearance of self-governing bodies.
The Constitutional Court indicated that the placement of a banner, slogan or poster by an owner or with the owner’s permission on their property was restricted on account of securing the appearance of a municipality, which the Court acknowledged as a valuable interest. The Constitutional Court further emphasised that the facade of various buildings is a space used as a means of expression, for which time is of the essence, and any delay of protest in relation to current and topical events may diminish its effectiveness so as to vitiate the very expression.
The Constitutional Court noted that in normal use of banners, slogans and posters they usually do not leave long and indelible traces on the facade of buildings. Consequently, the Constitutional Court ruled that in a democratic society such an intensive restriction of freedom of expression cannot outweigh temporary change of the appearance of various buildings. Accordingly, the meaning of the disputed law that restricted the temporary placement of a banner, slogan or poster by an owner or with the owner’s permission on their property as a means of spontaneous protest was found unconstitutional by the Constitutional Court.
In respect of the placement of banners, slogans and posters on the facade of a city council’s building, the Constitutional Court noted that the restriction of the freedom of expression related to a specific object. Unlike a private owner, the members of the city council are not to be presumed to have the consent from the Municipal Bodies for the placement of any object on the facade of the city council’s building. The municipality has a special interest to ensure the use of public resources as intended and to not allow arbitrary use of their property. Therefore, the interest of protection of the freedom of expression of a city council’s member does not outweigh the wider interest of self-governing bodies to protect their property from unjustified exploitation. Consequently, the Constitutional Court found that the said restriction established by the disputed act did not contradict the Constitution of Georgia.