Discrimination as a Grave Circumstance of a Crime: Amendments in the Criminal Code of Georgia

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მომხსენებლები: ს. ბენაშვილი, ზ. ხალილოვი, გ. გოცირიძე და მოდერატორი ნ. ბექიშვილი

In the past, offenders received a five-year prison sentence for property damage or destruction. Following the amendments to the Criminal Code, if it is determined that hatred towards the victim due to his/her ethnic, religious or other type of minority status motivated the crime, the offender will receive a heavier sentence than in the case of a motive such as revenge on the property owner.

On 27 March 2012, the Georgian Parliament adopted amendments to the Criminal Code by the third hearing, according to which intolerance as a motive was considered as an aggravating circumstance for every crime. The article was defined as follows: “Racial, color, language, gender, sexual orientation, gender identity, age, religion, political and other views, disability, citizenship, national, ethnic and social origin, property and other status, place of residence or other biased motives will be considered as aggravated circumstances”. Previous articles in the Criminal Code had also fought discrimination to some extent. But the lawyers state that the main problem was their implementation, qualifying the crime by this article and not their absence and recalling the “dead articles” of the Criminal Code, which have been used for years. Nowadays, when they speak about hatred as an aggravating circumstance and the amendments to the Criminal Code, the main threat that can occur is incorrect or incomplete use of aggravating circumstances in practice.

Public debates were held on 4 April at the Heinrich Boell Foundation within the frame of the EU funded project “Addressing Hate Speech in Georgia: A Litmus Test for Human Rights and Social Tolerance”. The topic of the discussion was: “Discrimination as a Grave Circumstance of a Crime: Amendments in the Criminal Code of Georgia.” The speakers included: Mr. Giorgi Gotsiridze, a lawyer from the Georgian Young Lawyers Association, Ms. Sophio Benashvili, Deputy Head of Justice Department of the Public Defender’s Office of Georgia, and Mr. Zaur Khalilov, Executive Director of the Civil Integration Fund.

Speakers discussed the causes of the above-mentioned amendments to the Criminal Code and what benefit they could bring. One of the bases for adoption of the draft law was a general policy recommendation of the European Commission against Racism and Intolerance (ECRI). They indicated that it would be expedient for the Georgian state to make the racial intolerance motive an aggrevating circumstance for a crime.

“The initial draft did not cover such important issues as intolerance towards sexual orientation, gender identity and other biased motives. The current formulation fills these gaps and ensures maximum protection of all vulnerable groups,” says Ms. Sophio Benashvili.

Mr. Giorgi Gotsiridze described the history of the draft law: “One of the concerns raised towards Georgia in the European Commission against Racism and Intolerance’s 2010 report was that despite a number of the ECRI’s recommendations, the Georgian government did not consider a hate crime as a crime aggrevating circumstance. Therefore, they provided one more recommendation, appealing to criminalization of hate speech. In response, the Georgian Parliament developed a draft law. The initial version of the draft law included ‘racial, language, religious, national or ethnic biased motives’ as causes of hate crimes. The authors indicated the ECRI recommendations as the reason for including only these identity markers, as their mandate only includes combating xenophobia and anti-Semitism.

Inclusion of sexual orientation and gender identity in the draft law is a response to the 2010 recommendation of the EC Ministers’ Committee. The recommendation obliges all its member states, when determining sanctions, to ensure that such motives as sexual orientation and gender identity are taken into consideration as an aggravating circumstance. But even consideration of only gender identity and sexual orientation did not change the picture, as a whole range of other groups still remained unprotected by these amendments. When drafting a law the Georgian Young Lawyers Association took Article 14 of the Constitution as a criterion, which envisages a number of signs: race, color, social origin, political views. Citizenship has been added to the list at the initiative of the Public Defender. The draft was adopted by all three hearings and has been sent to the President of Georgia for his signature.

“What will such amendments bring to the Georgian Criminal Code?” asks Mr. Zaur Khalilov, Executive Director of the Civil Integration Fund, when, unfortunately, both civil society and various religious groups failed to pass this exam against the recent increased aggression towards ethnic and religious minorities. “To me, it is more important that the civil sector failed the exam than the fact that the Criminal Code was amended, as the problem could not only be solved legally,” says Mr. Khalilov.    

Speakers also raised a number of important questions. As sentences are strict enough already in Georgia, in the circumstances when police, the Prosecutor’s Office, and the court are to be trained, how adequate was the adoption of this law? To what extent was there a need for these amendments apart from this being one of the ECRI’s recommendations? Will the law have an adverse reaction; i.e. will it motivate victims to claim the crime was committed against him/her as a representative of a minority even in the case when the offender was not aware of his/her belonging to any of these groups? Or will the law be interpreted wrongly, causing a new wave of hatred? “There are issues towards which only a strict government policy can provide a solution to avoid such a significant violation of rights as discrimination. The society should observe that the State will never tolerate intolerance,” argues Ms. Benashvili.