Governments are obligated to respect basic human rights standards governing the use of force in police operations, including in the dispersal of legal or illegal demonstrations. As noted above, these universal standards are embodied in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials.262 The Basic Principles provide the following:
With respect to the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.264
The European Code of Police Ethics states that police shall use force only when strictly necessary and only to the extent required to obtain a legitimate objective and that police must always verify the lawfulness of their intended actions.265
As this report shows, Georgian law enforcement officials did not observe these rules when seeking to disperse the crowds gathered on Rustaveli Avenue, at Rike, and outside of the Imedi television station on November 7. Although law enforcement officials did use some non-violent means of crowd dispersal, including water cannons and sound devices, law enforcement officials did not exhaust non-violent means before resorting to the use of force. Furthermore, much of the force used against demonstrators, as documented in this report, was not a proportionate or necessary response to the objective of dispersing a predominately peaceful crowd. This use of force included physical assaults with truncheons and wooden sticks as well as punches and kicks on unarmed demonstrators, many or most of whom were attempting to disperse, as well as shooting rubber bullets at close range into the backs of demonstrators, many of whom were also attempting to disperse. The use of force in this manner strongly suggests that law enforcement personnel were seeking not only to disperse demonstrators, but also possibly to punish them for their participation in the rallies, or deter them from any further opposition.
Article 3 of the European Convention on Human Rights (ECHR) to which Georgia has been a party since 1999, prohibits torture or inhuman or degrading treatment or punishment. The European Court of Human Rights has found on several occasions that where individuals have sustained injuries as a result of the use of force by law enforcement officers to disperse demonstrators, the burden rests on the Government to demonstrate with convincing arguments that the use of force was not excessive.266 Human Rights Watch believes that many of the beatings of demonstrators by law enforcement personnel that took place on November 7 (as well as beatings that took place in Batumi on November 8) violate the prohibition against inhuman and degrading treatment. Article 3 also places a positive obligation on governments to effectively investigate all allegations of ill-treatment by law enforcement personnel and hold those responsible accountable.
A recent viewpoint issued by the Council of Europes commissioner for human rights, on impunity for police violence, states that illegal behaviour by policemen is particularly serious as the very role of the police in a democratic society is to defend the population against crime, including violent crime. When the law enforcement forces themselves break the law, the whole system of justice is derailed. Citing European Court of Human Rights case law, the commissioner noted also that [t]he use of force is justified only in a situation of absolute necessity and should be practiced with the maximum restraint. The police action against demonstrators in Tbilisi recently fell short of these standards.267
The fact that violence against demonstrators was widespread and the methods used quite consistent strongly suggests that the force was condoned or at least tolerated by senior officers responsible for commanding the operations. These individuals, in addition to individual officers engaged in assault and other crimes, should be investigated and held accountable. In accordance with the Basic Principles on the Use of Force and Firearms, governments and law enforcement agencies shall ensure that superior officers are held responsible if they know, or should have known, that law enforcement officials under their command are resorting, or have resorted, to the unlawful use of force and firearms, and they did not take all measures in their power to prevent, suppress or report such use.268
The dispersal of peaceful demonstrations by use of excessive force is also a violation of freedom of assembly guaranteed both by article 25 of the Georgian constitution and under international law. Article 11 of the European Convention on Human Rights guarantees the right to freedom of assembly and sets out circumstances in which this right may be limited. As with several other rights under the ECHR, freedom of assembly is only subject to restrictions prescribed by law and necessary in a democratic society. Restrictions may be justified by the interests of national security or public safety, the prevention of disorder or crime, the protection of health or morals, among other interests.
Human Rights Watch recognizes governments rights to conduct police operations to effect crowd control or to disperse demonstrations that genuinely pose a threat to public order. Human Rights Watch notes that whether all the demonstrations on November 7 were legal at all stages under Georgian law remains in dispute. However Human Rights Watch also notes that while a demonstration may be unlawful according to domestic law, such an unlawful situation does not justify a violation of the freedom of assembly by resort to unjustified use of force to disperse a crowd.269 In any event, the decision to use force to disperse a demonstration must be in strict proportion to the danger to public order posed by the demonstration. The European Court of Human Rights has noted that where demonstrators do not engage in acts of violence it is important for the public authorities to show a degree of tolerance towards peaceful unauthorized gatherings in order to uphold the guarantee of freedom of assembly.270
Human Rights Watch has concluded that, in addition to the manner in which the crowds were dispersed raising violations of the prohibition on inhuman and degrading treatment and punishment, the decision to disperse demonstrators on the steps of Parliament at 8:00 a.m., and the decision to disperse the Imedi supporters and Imedi staff following the raid on Imedi studios, were incompatible with respect for freedom of assembly under international law.271 With respect to the demonstrations on Rustaveli Avenue and at Rike, it has not been possible for Human Rights Watch to establish independently whether the governments decision to disperse these demonstrations complied with its obligations under international law to respect the right to peaceful assembly, although it is clear that the manner in which they were dispersed was unlawful.
Dispersals at 8:00 a.m. on Rustaveli Avenue and outside of the Imedi studios
According to Georgian law, peaceful assemblies do not require any prior permission, except in cases when the public gathering risks disrupting the movement of people and vehicles, when prior notice must be given to the local government five days before the gathering.272 Opposition leaders notified the Tbilisi Municipality of their intention to demonstrate on November 2 and the likelihood that traffic on Rustaveli Avenue would be disrupted.
Although the number of demonstrators quickly diminished after November 2, police blocked the section of Rustaveli Avenue in front of Parliament to traffic until the early morning of November 7, when they decided to clean the streets and open the road. At this time there were no demonstrators on Rustaveli Avenue, but only 70-100 individuals who had spent the night on the steps of Parliament, whom the police attacked and forcibly dispersed, as described above. The government claims variously that the opposition planned to set up tents in front of Parliament or had already set up a tent, perhaps referring to the rain tarp several demonstrators were using during the night.273 There is nothing in Georgian law preventing the construction of tents as part of a manifestation or assembly.
Given that, by the morning of November 7 or earlier, the number of protestors had diminished such that they would not be forced to occupy any part of Rustaveli Avenue, the authorities decision to open the road to traffic, which police themselves had blocked for five previous days, was justified. However, it is not apparent that the decision to disperse the several dozen peaceful protestors on the steps of Parliament on the morning of November 7 had a basis in Georgian law. In particular, as stated above, there was no justification for the use of force to disperse them, particularly the violent force documented above.
The government claims that the demonstrators gathered outside of the Imedi television station in the evening following the raid on the Imedi studios posed a danger to public order because they might march on government buildings, but supplies no evidence of any individual or collective intent to do so.274 Although there were some Imedi supporters outside of the Imedi studio gates and expressing anger through shouting or pulling on the gates, the overwhelming majority of people outside of the Imedi studios were peaceful, including a large number of Imedi staff who had just been forced to leave the studios and had gathered just outside the gates. Thus, again it is not apparent that there was a basis in Georgian law for the dispersal of the protestors outside of the Imedi television studios.
Dispersals on Rustaveli Avenue and Rike
Human Rights Watch was not able to determine whether the governments decision to disperse the demonstrators on Rustaveli Avenue and at Rike was a legitimate interference with the demonstrators freedom of assembly, yet a few important issues deserve discussion. As described above, as crowds began to gather at the steps of Parliament later in the morning, police prevented demonstrators from entering Rustaveli Avenue so as to allow for the flow of traffic. Under Georgian law, protestors enjoy no right to intentionally block traffic, and so efforts to contain protestors on the steps and sidewalk in front of Parliament can be reasonably justified.275 Several government officials, however, had made statements on national television that morning stating that if the available space on the steps and sidewalk in front of Parliament would be insufficient then demonstrators could enter the road.276
Although protestors had the right to occupy the street, because they could no longer fit on the sidewalk, the General Prosecutors Office states that clashes with police that occurred as people were entering the street changed the character of the demonstration from peaceful to violent and therefore rendered it illegal. The government also claims that opposition leaders were inciting protestors to violence. On this basis the government made the decision to call in the riot police to disperse the crowd.277 Evidence available to Human Rights Watch suggests that while there were incidents of clashes between demonstrators and police, and of stone-throwing by demonstrators, the majority of demonstrators were not engaged in violence and the demonstration itself was peaceful, as described above. Human Rights Watch is not in a position to assess whether these clashes fundamentally changed the character of the demonstration.
With respect to the events at Rike, the government claims that certain opposition leaders made explicit statements inciting violence, calling for the forceful storm of Parliament and other government buildings posing a clear and imminent danger to public order.278 Human Rights Watch could not confirm through any video and witness testimony that an explicit call to storm parliament was made by opposition leaders on Rike. As described above, at least one opposition leader made strong announcements condemning the existing government, but announcements were being made by a single megaphone to thousands of protestors dispersed across a wide area. Most in the crowd, with the exception of those standing very close to the opposition leaders themselves, could not hear anything being said. Some witnesses stated that the opposition leaders had no particular plan. Most demonstrators at Rike appeared to have no intention to disperse and to be intent on participating in a demonstration. Human Rights Watch could not confirm the General Prosecutors Offices allegation of a clear and imminent danger posed by the crowd in these circumstances, nor could we ultimately confirm the intent of the protestors and opposition leaders.
The closure of Imedi television and the suspension of its broadcasting license was a violation of freedom of expression guaranteed both by article 24 of the Georgian constitution and under international law. Article 10 of the European Convention on Human Rights guarantees the right to freedom of expression. Restrictions on freedom of expression are the same as those permitted on freedom of assembly, that is they must be prescribed by law, necessary in a democratic society, and justified by reference to a legitimate aim such as the interests of national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals. Human Rights Watch believes that the closure of Imedi television does not fall within the scope of these restrictions.
The legal basis for the decision to raid and close Imedi has been seriously called into question, and there is evidence to suggest that the legal basis was established after-the-fact and backdated. The Tbilisi District Court issued a decision purportedly on November 7, 2007, ordering the physical property of Imedi television to be seized and the owner denied the right to continue use of the property and the broadcasting license. The court decision claims that Imedi was being used by its founder and partial owner, Badri Patarkatsishvili, as a tool to overthrow the state government by rebellion.279 Although Imedis general director, Bidzina Baratashvili, was in the Imedi studios at the time of the raid on November 7, law enforcement officials did not serve him with the court order, claiming that they could not find him. Baratashvili was served only on November 13, because the government claims it could not find him for six days, although Bidzina Baratashvili maintains that he was in Tbilisi and frequently in public meetings with foreign diplomats and journalists during that period. 280 Prior to November 13 no government official spoke of the court order to close Imedi. No one from Imedi was informed of or present for the Tbilisi District Court hearing issuing the order on November 7. The Georgian National Communications Commission officially suspended Imedis broadcasting license for three months purportedly on November 8, 2007, responding to the court order, although only on November 16 did it confirm having done so, having previously denied it.281
With respect to the need to close Imedi for interests foreseen by article 10 of the European Convention on Human Rights, the General Prosecutors Office maintains that Imedi broadcasts posed an imminent and irrevocable threat to public safety because Imedi started broadcasting alerts that the police were about to storm the main Orthodox Cathedral in Tbilisi. In a country with an overwhelming majority of Orthodox Christians this was in effect calling hundreds of thousands of citizens to the street, to defend their Church.282 The broadcast in question occurred at 8:30 p.m. during the Kronika news program. The journalist stands in front of the Sameba Cathedral and states,
A thorough investigation would be necessary to determine whether this broadcast indeed meets the threshold of incitement and a threat to public safety.
Evidence strongly suggests that well before this particular broadcast the government wanted to close Imedi and force it to stop broadcasting. The government itself claims that a court order was issued on November 7 requiring the property to be seized and attempted to deliver this court order to Imedi General Director Baratashvili just before the raid on Imedi. Given that the raid occurred at 8:46 p.m., only 15 minutes after the broadcast in question, it is hard to understand how the prosecutors office would have had time to approach a judge for a hearing and obtain the order in such a short period. Furthermore, the fact that the raid involved hundreds of heavily-armed law enforcement personnel and took place only several minutes following the broadcast in question suggests that these personnel had already been mobilized in preparation for a special operation on the Imedi studios.
The governments claim that the closure of Imedi was necessary in a democratic society on the basis of an urgent threat to security posed by a single broadcast is clearly questionable and deserves further scrutiny. The response, in any case, was clearly excessive to the objective of securing the premises. The use of hundreds of heavily armed special forces troops to raid and close Imedi television, initiated without warning, and targeting hundreds of unarmed journalists, editors, cameramen and support staff, was clearly disproportionate to the threat posed by unarmed journalists and other Imedi staff members and an act of intimidation unjustified by the actions of Imedi television or any of its staff, leadership, or ownership. Subsequently suspending Imedis broadcasting license was also excessive and an unambiguous stifling of freedom of expression, particularly given that the demonstrations had already ceased, the political situation appeared to be stabilizing, and the country prepared for presidential elections in less than two months.
262 Basic Principles on the Use of Force and Firearms.
263 Ibid., principles 4 and 5.
264 Ibid., principle 13.
265 Council of Europe Committee of Ministers, Recommendation Rec (2001) 10 of the Committee of Ministers to member states on the European Code of Police Ethics (Adopted on September 19, 2001 at the 765th meeting of Ministers Deputies), paras. 37-38.
267 Thomas Hammarberg, There must be no impunity for police violence, Viewpoint of the Council of Europe Commissioner for Human Rights, December 3, 2007, http://www.coe.int/t/commissioner/Viewpoints/Default_en.asp (accessed December 3, 2007).
268 Basic Principles on the Use of Force and Firearms, principle 24.
269 European Court of Human Rights, Cisse v. France, (application no. 51346/99), judgment April 9, 2002, available at www.echr.coe.int, para 50.
270 European Court of Human Rights, Oya Ataman v Turkey, (application no. 74552/01), judgment December 5, 2006, available at www.echr.coe.int, para 42.
272 Constitution of Georgia, art. 25, and Law of Georgia on Assembly and Manifestation, art. 1, para 3.
273 Shortly after the dispersal of the demonstrators on the steps of Parliament, Tbilisi Mayor Gigi Ugulava announced that Tbilisi will never become a town of tents. Police Break up Rally; Opposition Vows to Keep Protesting, Civil Georgia, November 7, 2007, http://www.civil.ge/eng/article.php?id=16211 (accessed December 5, 2007).
274 Human Rights Watch interview with Shota Khizanishvili, November 29, 2007.
275 Law of Georgia on Assembly and Manifestation, art. 11, para 3.
276 Rustavi 2 broadcast, November 7, 2007.
277 General Prosecutors Office of Georgia, December 1, 2007, response to questions submitted by Human Rights Watch.
279 On file with Human Rights Watch.
280 Imedi Will Have to Answer for Everyone, RIANovosti, November 16, 2007, http://en.rian.ru/analysis/20071116/88440955.html (accessed November 29, 2007). See also PACE Monitors Meet Shut Down TV Executives, Civil Georgia, November 10, 2007, http://www.civil.ge/eng/article.php?id=16284 (accessed November 29, 2007).
281 Imedi TV License Suspended for Three Months, Civil Georgia, November 17, 2007, http://www.civil.ge/eng/article.php?id=16356 (accessed December 3, 2007).
282 General Prosecutors Office of Georgia, December 1, 2007, response to questions submitted by Human Rights Watch.
283 Imedi television, Kronika [excerpt], November 7, 2007, as appears in Georgian Public Broadcaster, From November to November- part 7. Translation by Giorgi Gogia.