Freedom of Expression in the Face of Occupation

If there is any right that a person possesses from birth and will always possess, and which is one of the most fundamental rights, it is the freedom of expression. Within the framework of freedom of expression, the individual, as the primary subject of care in a state governed by the rule of law, has the right to speak, evaluate, and express their own thoughts without being persecuted for doing so—first and foremost by the executive branch of the government. Any totalitarian state is formed when individuals no longer speak critically, do not criticize one another, and most importantly, prefer any kind of government propaganda over criticism. When an individual, a free individual, submits to the Soviet precept "that the government cannot be criticized," totalitarianism begins. To ensure that this right is protected in the Georgian reality, we have several guarantees, including Article 17.1 of the Constitution of Georgia: "Freedom of thought and its expression is protected. Persecution of a person for thought and its expression is inadmissible." The Law of Georgia "On Freedom of Speech and Expression," and even the Civil Procedure Code approach the issue differently, because for the Supreme Court of Georgia, Article 391.4 of the Civil Procedure Code applies, according to which "in non-property disputes, a cassation appeal is admissible on disputes related to freedom of speech and expression";

Legislative guarantees are driven both by the establishment of the foundation of a young democracy and by the principle of restraining the state, because "he who speaks the most freely is of the greatest interest to those in power." There is no legal state that does not have issues related to journalistic activity, which implies that the current law we have is, in some cases, the subject of discussion and criticism, as everyone demands liability for so-called defamation. Moreover, if we look back at our legal past, we had an article in the Criminal Code that read: "Article 148. Defamation. Defamation by accusing someone of a crime," which was punishable by a fine, or socially useful labor for a term of one hundred to two hundred hours, or corrective labor for up to one year;

However, this article was removed from the Criminal Code by the Law of Georgia of June 24, 2004. Thus, in 2004, the Georgian legal space changed its approach. Besides paving the way for journalistic investigations, a purely American-style law on freedom of speech and expression was adopted on June 24, 2004. The Supreme Court of Georgia repeats like a legal mantra, and indeed should repeat, that "freedom of expression represents one of the most important foundations of a democratic society and one of the main conditions for its progress and the self-realization of each individual." This line is maintained by judges in all decisions, and I believe it is a universally acceptable formulation, because the realization of an individual is impossible without their right to speak, and a successful state stands on successful and realized individuals;

According to the Constitution of Georgia, "Georgia is an independent, unified, and indivisible state." It also states, "The territory of the state of Georgia is defined as of December 21, 1991." Furthermore, due to the 2008 Russia-Georgia war, the Georgian state had to adopt the "Law of Georgia on Occupied Territories" on October 23, 2008. The stated purpose of this law is: "The purpose of this Law is to determine the status of the territories occupied as a result of the military aggression of the Russian Federation and to establish a special legal regime for these territories." The law exhaustively defines the rules applying to the occupied territories, including the rules for entering them, the prohibition of carrying out economic activities there, the standard of human rights protection, and the occupier's responsibility in case of their violation. Besides this, there are a number of other norms that criminalize entering the occupied region from outside Georgian territory, etc. In short, on our legislative level as well as on the international level, we have a legal reality where the Russian empire of Mordor is recognized as an occupying country; at the same time, we are a member state of the Council of Europe, and freedom of speech and expression is guaranteed at our legislative level;

This is where the main question arises for me, a discussion of which I have rarely seen in either political or scientific circles. The question is as follows: under conditions of occupation, is the promotion of the occupier's line under the guise of freedom of speech and expression subject to restriction? In other words, does the law protect a person who justifies the occupation and/or blames the Georgian state for starting the 2008 war? Do they enjoy the same right as, for example, a person who criticizes the government? Deciding this issue has not been, is not, and will not be simple, because the right to speech and freedom of expression is more than an ordinary right. Through it, we, as social beings, manage to interact with one another, create social bonds, voice our thoughts, and realize ourselves. Consequently, for us, this right is not bodily nourishment, but spiritual/internal/belief-based nourishment; therefore, restricting this right is a risky and inquisitorial undertaking by the state. On the other hand, however, the question must be posed as follows: should the standard be the same in an occupied and a non-occupied country?;

As in most cases, the law does not like direct questions; it requires reasoning—reasoning that must be constructed by arguments resulting from the collision of legal goods. Although we agree that the necessity of restricting anything is a priori for the court to evaluate, the court, much like democracy, is a lengthy process that involves the evaluation of evidence, examination, inner conviction, subsequent execution of the decision, etc. Moreover, in this legal space, whether we like it or not, the "speed of justice" is lost. On the other hand, does any person have the right to appear on television and/or establish a television channel and "call the Russian empire of Mordor not an occupier, but a friend, and promote an ideology that paves the way for the continuation of the occupation"?

I mentioned above that the American legal understanding is, of course, acceptable for America, because the security of the United States, like that of Britain or Germany, is ensured. But what should happen, or what should be the case, in a country whose security is not ensured and which is occupied?

A line of prohibition generally produces the opposite result if the prohibition is not underpinned by a greater good that you are protecting with it. For example, justifying murder is impossible, and I do not think any sane person would enjoy talking about or justifying a situation where a person simply takes another person's life, expecting it to be acceptable to a healthy society. Therefore, legal goods are the most important things, so that we are guided not by ready-made answers but by reasoning, not by ready-made norms but by their substance before they become norms.

The state, as a legal phenomenon of individuals, is assigned several purposes. That is, similar individuals who associate themselves with one another wish to create a structure where certain rights of the individual are transferred into the hands of the state, while in return, the state has both positive and negative obligations—meaning the state must protect the individual's life and must not infringe upon this right itself. This social contract is multifaceted, and I will not dwell on it, but the primary purpose of the state is to ensure the security of these individuals. This means the state does everything to prevent occupation. And if occupation is present, what happens then? If security, as the main hallmark of the state, is threatened daily, if the occupier fights the legal construct of these individuals—sovereignty—in the name of freedom of speech and expression?

In a fight, as always, all means are acceptable, but the most important thing is that Russian propaganda, relying precisely on this law, spreads narratives in Georgia that "Georgia started the August war," "the war was started by the then-president and not the state" (this is an absolute absurdity, as the country is represented by the executive body, and thus they cannot be separated). Or that "the constitutional norm regarding Georgia's accession to the EU and NATO must be removed," "Georgia must accept the occupation and recognize the independence of the occupied regions," "Georgia's federal structure and the return of the occupied territories should be traded for Russian military bases," etc. There are very, very many of these messages, and they work on a certain segment, including the narrative that "the occupier draws the occupation line to protect Georgia," "co-religionists protect us through occupation," etc. These messages are ridiculous, yet they are still voiced, and this happens through social networks, media, televisions, etc. Meanwhile, a certain part of the country's population listens to this, and the executive and/or parliamentary branches are not working against it, even though both legislative and executive powers are in their hands;

The restriction of these rights is permissible only in accordance with the law, as necessary in a democratic society to ensure state or public security, or territorial integrity. The Constitution inherently and unconditionally resolved the potential conflict ... between the good protected [by paragraph 2 of Article 9] and any other valuable interest to be protected by the Constitution, the continuous obligation to protect which rests with the country's authorities, in favor of human dignity. Obviously, the authorities are not relieved of the constitutional obligation to protect important public interests, legitimate aims provided for by the Constitution (state security, territorial integrity, rights of others, administration of fair justice, etc.), but the protection of none of these goods can justify ... [the use of inhuman and degrading punishment] (Decision of the Constitutional Court of Georgia of October 24, 2015, No. 1/4/592 in the case "Citizen of Georgia Beka Tsikarishvili vs. the Parliament of Georgia", II-19);

On the one hand, despite the immense legal goods of de-occupation and territorial integrity, inhuman treatment cannot be subjected even to the person carrying out the aforementioned acts. On the other hand, "In accordance with paragraph 5 of Article 17 of the Constitution of Georgia, the restriction of the named rights is permissible and justified only in accordance with the law, as necessary in a democratic society to ensure state or public security or territorial integrity, to protect the rights of others, to prevent the disclosure of information recognized as confidential, or to ensure the independence and impartiality of the judiciary. Accordingly, it is clear that the Constitution of Georgia considers the restriction of the aforementioned aspects of freedom of expression permissible, in accordance with the principle of proportionality, only by observing the formal requirement of regulation by law and to ensure clearly and exhaustively defined legitimate aims" (see Decision of the Constitutional Court of Georgia of September 20, 2016, No. 1/5/675,681 in the case "LLC Broadcasting Company Rustavi 2" and "LLC TV Company Sakartvelo" vs. the Parliament of Georgia);

To put it more simply, in order to restrict the fight against sovereignty, it is necessary to: observe proportionality (i.e., you cannot impose the death penalty on a representative of the occupier or a promoter of the occupier's line for such behavior); observe the formal requirement of regulation only by law (there must be an exact law regulating this); and ensure clearly and exhaustively defined legitimate aims (what can the legitimate aim be? Of course, de-occupation, meaning the restoration of Georgia's territorial integrity);

There is no need to invent a new legal bicycle. A good example is Germany, where Holocaust denial is criminally punishable. No one would say that Germany is undemocratic, but freedom of expression was restricted by a greater good in a case precisely prescribed by law; moreover, the decision on this is made by a court, not an executive body. Accordingly, a Georgian model—a Georgian legal model for the purpose of de-occupation—must exist, because sovereignty is the most powerful desire of individuals to live in a legal state whose security is ensured. And ensuring security is a value so great that it must be protected by law, because if sovereignty is not protected, freedom of speech and expression cannot be protected. We need sovereignty in order for freedom of speech and expression to be protected, not vice versa;