The abstract of the judgment (The judgment is available only in Georgian). Abstracts published by the Constitutional Court of Georgia summarise the facts of the case and key legal considerations of the judgment.

Abstract

On 4 July 2019, the Constitutional Court of Georgia delivered its judgment on the case of “Besik Katamadze, Davit Mzhavanadze and Ilia Malazonia v. The Parliament of Georgia” (constitutional complaint №1271).

Under the constitutional complaint №1271, the claimant argued that the provision of the Code of Administrative Offences imposing penalty for making various types of inscriptions, drawings or symbols on building facades, shop windows, fences, columns, trees or other plantings without authorization - also putting up placards, slogans, banners at places not allocated for this purpose, or leaving fences and buildings unpainted - was unconstitutional.

The complainant argued that the disputed provision unjustifiably restricted the freedom of expression and prohibited putting up placards, slogans, banners spontaneously for a short period of time on one hand with the permission or by the owner on an object in private property and on the other hand – by a member of a self-governing unit in the space allocated to him/her for work. Considering the aforesaid, the claimant argued that in the context of a spontaneous protest, the disputed provision disproportionally limited the freedom of expression.

The respondent disagreed with the position of the claimant and noted that persons did not have an unconditional and unlimited right to use public spaces. Appearance of the city consists of objects both under public and private ownership, and defacing the façade of private property could have had an important impact on the appearance of the city, which excluded the possibility of the application of special rules to it. The respondent argued that such risks equally existed in cases of spontaneous expression as well, given that spontaneous and temporary measures could have generated a threat of high intensity to the appearance of the public space. In addition, the disputed provision was only applicable to one form of expression, and did not apply to alternative forms of communication.

The Constitutional Court stated that a façade of a building is a public space which can be used for the purposes of expressing one’s opinion. At the same time, freedom of expression as guaranteed under the Constitution of Georgia, consists of non-verbal communication as well, including communicating expression or information in a written form, through technological means or spreading visual images, and that from this point of view, expressing one’s opinion through placards, slogans, banners is one of the most important and widespread forms of communication.

The Constitutional Court of Georgia had previously noted that the prohibition of placing placates, slogans and banners on objects under private property with the consent of the owner or by the owner was serving a legitimate aim of protecting the appearance of a municipality. The Court explained that preserving appearance of the municipality is of an important value. Ignoring this virtue might threaten the private space of others, and result in decreasing of the value of residential/touristic zones, as well as diminish the quality of living of persons who use this specific space. At the same time, in the context of expressing one’s opinion on pressing issues, timeliness and imminence is of utmost importance, and sometimes, expressing an opinion in an extreme way is the only or the most important manner of gaining attention of the government and/or the society.

The Constitutional Court noted that in case of the normal use of placates, slogans and banners, in general, they do not leave a long-lasting and permanent trace on the façade of the building and do not need a solid construction. Taking into account the aforesaid, in cases of spontaneous protest, appearance of buildings and that of the municipality changes only for a short period of time, for the duration of a spontaneous protest and it goes back to its initial state after the protest. Hence, the Constitutional Court considered that such an intensive limitation of the freedom of expression in a democratic society could not be justified by the interest to protect buildings and constructions from a short-term, temporary change of their appearance. Therefore, the Constitutional Court deemed unconstitutional the content of the disputed provision, which prohibited temporary placement of banners, slogans and placates on objects by the owner or with the consent of the owner, in the context of a spontaneous protest.

With respect to placing placates, slogans and banners on buildings of self-governing units, the Court noted that the restriction of freedom of expression was related to the specific object and specificity of the local assembly as the organ of local government should have been taken into account. The Court reasoned that members of the local assembly, being representatives of the people, are not only subjects of the freedom of expression, but rather the standard of the protection of their expression are very high. In addition, their protest might relate to extremely critical social issues of political, local or countrywide significance.

Notwithstanding the aforementioned, the Court noted that unlike the use of a private building by its owner, members of the assembly did not have the consent of respective municipal authorities to place objects on the façade of the building of the assembly. Giving up a space for work-related purposes could not have been assessed as consent to place any objects on the façade of the property. Municipality had a special interest that its authorized organs be utilizing public resources with a proper purpose, and not give other persons the opportunity to use these resources arbitrarily. Thus, the interest to protect the freedom of expression of the member of the local assembly could not override a special interest of the local self-governing unit for its property not to be used without the permission. Given the aforesaid, the Constitutional Court concluded that the limitation envisaged by the disputed provision in this regard did not contradict the freedom of expression as guaranteed under Article 17 of the Constitution.