Are People Arrested Based on Anti-Discrimination Law?

14 September, 2020

On September 5, Facebook page Alt-Info published a video by Emre Kuchuk known as Alpha Dominant, where he talks about Georgia’s anti-discrimination law, saying that following the adoption of this law, Georgian citizens are frequently arrested on charges of violence, while attitude towards foreign nationals and other ethnic and religious groups is more tolerant and their punishment is frequently mitigated. In the video, the author focuses on several cases. 

Alt-Info again focused on the same topic in a Facebook video posted on September 8, where Shota Martinenko and Zura Makharadze promoted an opinion that the law applies only to “Georgian Christians,” while representatives of some minorities remain untouchable. 

Emre Kuchuk: “Following Georgia’s adoption of the anti-discrimination law, when Chinese investors broke the heads of Georgian workers, those Chinese were simply fined and released, but when an Arab snatched a cross from a Georgian’s neck and the latter slapped him in the face, the Georgian was arrested. When the Kists threw stones at police officers and burnt their cars, police showed tolerance and nobody was punished. When [civic activist Ana] Subeliani was hit on her brainless head with a cellphone while she was dancing on the April 9 memorial as a result of which she sustained slight injuries, a person who threw iPhone because Subeliani offended religious feelings of Georgians was sentenced to 1.5 years in jail. There are a lot of such facts.

The information spread by Alt-Info as if people are arrested based on the anti-discrimination law is disinformation, because the law envisages only civil rather than criminal liability. As for selective use of the law, such assessment is a half-truth. However, the facts cited by Alt-Info are irrelevant to this assessment, because not all cases are hate-motivated, while one case has not been confirmed.

  • Are the above mentioned cases related to the anti-discrimination law?

The Parliament of Georgia adopted the anti-discrimination law, officially known as Law of Georgia on the Elimination of All Forms of Discrimination, in 2014. The law did not create new legal and material rights but rather its goal was to ensure equal rights of every person under the legislation of Georgia. The law further defines the term ‘discrimination,’ making it possible to identify specific instances of discrimination and to react to them. The law offers other mechanisms that do not focus on punishing the offender but strive to conciliate the parties and restore the breached rights of victims. 

A person is punished by a fine, corrective labor or imprisonment for violating the equality on various grounds not under the anti-discrimination law, but under the criminal code of Georgia, where aggravating circumstances were defined in 2012. In 2017, article 531 of the same code determined the term of imprisonment whenever such circumstances exist. 

Pursuant to Article 531 of the Criminal Code of Georgia, the commission of the crime on the grounds of discrimination or intolerance constitutes an aggravating circumstance. According to the 2019 report released by Tolerance and Diversity Institute (TDI), both in the course of investigation and afterwards, and at a sentencing stage by a court, the statistical data on application of this clause is extremely low. Based on the information provided by the Prosecutor’s Office, during 2014-2018 Article 531 was applied in 15 cases involving national, ethnic and/or racial intolerance as a motive.

Specific cases

Criminal cases were initiated in connection with all incidents mentioned in Alt-Info’s video; however, aggravated circumstances applied only to the Subeliani case. The incident took place during the rally held by homophobic groups. Based on the obtained evidence, the Interior Ministry qualified the case as a crime committed on the grounds of appearance and sexual orientation, sentencing the assailant to 1 year and 6 months in jail. 

As for other cases, the Interior Ministry arrested three Chinese citizens in connection with the incident that took place in the village of Zvare in 2016. The investigation was launched into the fact of causing intentional less grave bodily injury under article 118 of the criminal code of Georgia. According to Georgian Railway Workers New Trade Union, employees of the Chinese company believed that locals were stealing the firewood belonging to China Railway 23rd Bureau Group Co. So, the case has nothing to do with discrimination. Further, two persons were detained in connection with the incident that took place in Samtredia in 2019, where, as Emre Kuchuk claims, a cross was snatched from a Georgian’s neck. Investigation was launched under Article 126 of the Criminal Code of Georgia, involving violence. The case did not specify the motives of confrontation or other details that would have led to the aggravation of indictment based on specific grounds of discrimination. 

One more case discussed in the video covers the developments in Pankisi Gorge, where locals expressed protest against the construction of a hydro power plant and clashed with the riot police. The Interior Ministry launched investigation into the incident under articles 353 and 187 of the Criminal Code of Georgia, involving assault on police officer and damage by setting fire. However, the information about the results of investigation and whether anybody was held accountable is unknown so far. The case does not involve any discriminatory grounds or aggravating circumstances either. 

To apply the circumstances envisaged by part 1 of article 531 of the criminal code as aggravating circumstances, a victim’s discrimination on specific grounds listed in this particular article should be a motive of the crime. The fact that a Georgian citizen or a foreign national belonging to ethnic or religious minority is involved in committing a crime, or the fact that the victim belongs to another ethnic group or religion is not enough for enforcing the anti-discrimination provision. To do it, discrimination should be the motive of a crime. No such grounds were revealed in the above mentioned incidents, expect for the assault against Ana Subeliani. It is also worth noting that the anti-discrimination law referred to in Alt-Info’s video does not envisage criminal liability. Thus, any claims that the anti-discrimination law applies to criminals who represent ethnic, religious or other minorities, or are foreign nationals, and that punishment is mitigated on ethnic, religious or racial grounds are absolutely irrelevant. 

In addition, according to the reports released by Tolerance and Diversity Institute, in some instances, justice is selective in respect of minorities. 

Crimes committed on the grounds of religion and racial intolerance

The crimes motivated by religious intolerance and their investigation, including the State’s response to the cases of violation of the rights of Muslims and Jehovah’s Witnesses are discussed in the 2010-2019 report released by Tolerance and Diversity Institute (TDI) in 2020. According to the report, from 2012 to 2016, eight large-scale violations of Muslims’ rights living in different geographic areas of Georgia were identified. In seven cases, no charges were filed. The report also notes that crimes against Jehovah’s Witnesses often include physical violence, interference with religious rituals and so on. In many cases, investigations are never launched, or are prolonged for unreasonable time. In three of the cases concerning the rights of Jehovah’s Witnesses, the European Court of Human Rights (ECtHR) found a violation of the rights of claimants, while another case ended in settlement as the Georgian state recognized the violation of rights. 

As for racial intolerance and xenophobia, TDI described the facts of violence and response measures in its 2019 report. According to the Prosecutor’s Office of Georgia, in 2014-2018, criminal prosecution was launched against 18 persons on charges of racial discrimination.