On 4 March 2026, along with other amendments introduced into the Criminal Code, the Parliament of Georgia added a new provision to the Code – Article 316¹ – “Extremism against the Constitutional Order of Georgia”.

The purpose of the present review is to provide a legal assessment of the new article from the perspective of the principles and legislation of Georgian criminal law, as well as through comparative analysis with analogous or similar norms of other countries.

I. A new article was adopted in the Criminal Code in the following wording:

“Article 316¹. Extremism against the constitutional order of Georgia

Systematic public calling, by a citizen of Georgia or a stateless person having status in Georgia, for mass violation of the legislation of Georgia, for mass disobedience to the bodies of the Government of Georgia, for the creation of alternative bodies to the bodies of the Government of Georgia, arbitrary, public and systematic presentation by the same person of another person or oneself as a representative of the Government of Georgia, or another public and systematic action committed by the same person, if any of the said actions provided for by this article is directed toward establishing a perception of the illegitimacy of the constitutional order or constitutional bodies of Georgia and damages the interests of Georgia or creates a real threat of damaging the interests of Georgia,-

shall be punished by a fine, community service from four hundred to six hundred hours, or deprivation of liberty for a term of up to three years.

Note: For an act provided for by this article, a legal entity shall be punished by a fine or by liquidation and a fine.”.

I will divide the acts declared punishable under the above indicated article(„Extremism Article“) into 3 categories:

1. First group:

Systematic and public calls directed toward

(a) mass violation of the legislation of Georgia,

(b) mass disobedience to the bodies of the Government of Georgia,

(c) the creation of alternative bodies to the bodies of the Government of Georgia,

2. Second group:

 Arbitrarily, publicly and systematically presenting oneself as a representative of the Government of Georgia

as well as presenting another person as a representative of the Government of Georgia arbitrarily, publicly and systematically.

3. Third group:

Another public and systematic action.[1]

The third group of acts is not identified by any feature at all.

According to the legislative norm, all three categories of the above-mentioned acts are punishable if they are directed toward establishing several perceptions. These are:

(a) the perception of illegitimacy of the constitutional order;

(b) the perception of illegitimacy of constitutional bodies;

Discussion about which legal category do “illegitimacy of the constitutional order” or “illegitimacy of a constitutional body” belong, is set out below.

Apparently, it seems that a special outcome is required for qualification an act under the disposition of the new article: an act, directed toward establishing a perception, must damage the interests of Georgia. According to a literal interpretation of the disposition itself, proof of damage is not required either. The second part of the same sentence provides the basis for drawing this conclusion, as it indicates that, for an act to be punishable, it is sufficient for a public act just to create a threat of damage to the interest of Georgia. Accordingly, the aforementioned article constitutes a type of tort, the completion of which does not rely on the outcome.

It should be noted that “damaging the interests of Georgia or creating a real threat of damage” has been added to the Criminal Code for the first time, as a circumstance establishing the wrongfulness of an act.

Who determines what is the interest of Georgia? In democratic systems, state interest is the subject of constant debate and is not a static entity. Under this article, the investigator/prosecutor becomes the one who determines the “state interest”.

Dogmatically, it is unclear how the unidentified “public action” provided for by the Extremism Article, differs from “public political activity” prohibited by other articles introduced by the same amendments (for example, Article 355³ of the Criminal Code, “Public Political Activity of an Entrepreneurial Entity”).

I can only assume that if public activity creates a perception of illegitimacy of any constitutional body for any third person, the act will be qualified under the Extremism Article and not, for instance, under Articles 355³ (political activity of an entrepreneurial legal entity) and 319¹ (violation of the Law on Grants) of the Criminal Code, or under both articles at the same time.

It should be noted that, under the indicated article(Extremism Article), the standard of proof has in fact been abolished; it is not required to prove anything based on any objective criteria. Presumably, someone’s conclusion regarding the establishment of a perception shall be deemed sufficient, which is discussed in more detail in Chapters V-VIII.

II. The corpus delicti of the crime of “extremism”

(a) The objective elements of the new article/crime (all three types of acts) are expressed in publicly expressing an opinion, which presumably may be carried out in various forms. For example, delivering a lecture, participating in a discussion, making a comment or assessment, a public address, criticism of any body, branch or representative of the government, both directly and through its dissemination in media and social space, including, presumably, in personal social media platforms, as well.

It should be noted that, in order for a “public act” provided for by this article to be considered as a crime, it is not required for the public act to contain a threat of violence, to establish hatred towards various vulnerable groups, to be discriminatory on any ground (sex, race, nationality, religion), or to incite ethnic enmity. It should be noted that articles prohibiting these acts already existed in the Criminal Code, for example: Article 142 “Violation of the Equal Rights of Humans”, Article 142¹ “Violation of Racial Discrimination”, “Provocation of a Crime”, and others.

The crime covered by the Extremism Article, as I indicated, constitutes a ‘formal crime’ (it is completed as soon as it is committed) and becomes punishable as soon as a public act (expression) – one of the acts from the above-listed 3 categories, is commited.

For the completion of this crime, the legislator does not require the occurrence of any negative result/outcome. In order for an act to be considered a crime, even the creation of a perception is not required; rather, for the crime to be completed, it is sufficient to prove that the public statement was directed toward establishing any of the perceptions indicated above (in Chapter I), regardless of whether it created such a perception for anyone or not.

For qualification under the Extremism Article, it is not of interest what number of society, was the act (aim of which is to create a perception) addressed towards. Technically, there may even be 1 listener, if that person is the addressee of the expression.

Therefore, the construction of the Extremism Article appears to be the most formal set of elements; it constitutes a completed crime from the earliest stage, immediately upon expression, regardless of any negative result/outcome. Article 317 of the Criminal Code (which is also a ‘formal crime’), “Calling for the violent change of the constitutional order of Georgia or for the overthrow of state power”, requires, in order to prove the elements of the act, satisfaction of the test of an imminent threat of violence, which is a higher standard of proof than the one established by the legislator under Article 316¹ through the criminalization of entirely non-violent and merely critical expression.

The legislator equated the exercise of freedom of expression by citizens and legal entities (business representatives) with the crime of calling for violent overthrow, committed against the state. The new Extremism Article is placed in the same chapter of the Code, although even stricter punishment is established and the list of liable persons (subjects of crime) is expanded; In addition, liability for a legal entity is added, which is not the case under Article 317.

For example: if a responsible person of any legal entity (business) calls for the violent overthrow of the government, or calls for arming for this purpose, criminal liability will be imposed only on this natural person. However, if the same subject publicly says that, for example, „the judiciary does not serve the purpose of justice“, or „the government does not express the will of the people“, or „there is no trust toward the government“, or „the government or any of its officials, bodies or branches is unjust and corrupt“, both this natural person and the legal person itself will be criminally liable. This is absurd, legally and practically speaking.

It is unclear why the legislator considered that any critical expression by people (representatives of legal entities/persons), even systematic and repeated, is an act bearing the highest danger from the criminal-law perspective and must be punished not only by the imprisonment of that person but also by the liquidation of this legal entity.

The legislator has not explained what legitimate aim is served by this disproportionate restriction of the fundamental right to freedom of expression and what pressing need of a democratic society did the legislator rely upon.

According to the Law on Freedom of Speech and Expression („Law on Expression”) (Article 4), expression of opinion/calling entails leally esyablished liability only when a person commits an intentional act that creates a clear, direct and substantial danger of the occurrence of an unlawful result”. The Extremism Article does not indicate a clear, direct and substantial danger of the occurrence of an unlawful result affecting any legally protected interest.

(b) The subjective elements of the crime of “extremism” are unclear – intent, motive, purpose.

According to the first part of the construction of the norm, we may assume that the act must be committed only with a direct intent, since otherwise the person voicing the statement or call should not be imputed of having an intent to establish a perception. However, the last sentence of the norm (“is directed toward establishing a perception and creates a real threat of damaging the interests of Georgia”) allows such an interpretation that the act declared punishable is a type of tort, the completion of which does not rely on the outcome. It allows such an interpretation tha regardless of the form of intent and the occurrence of a result, the elements of the crime shall still be present.

Under the disposition of the norm, it is unclear whether a) the intent to create a perception shall be imputed to the subject of the crime, or b) whether the legislator implies to the punishability of the act under the principle of objective imputation. This means that the subject shall always be imputed with the purpose of creating a perception, if such perception was or may be created for a third person.

III. Where is the boundary between freedom of expression, political rights and a criminal act

Under the democratic standard of freedom of expression, even the most shocking and offensive thoughts and ideas are protected. Political debate, criticism and, among other things, the right to consider the government illegitimate are protected by an even higher standard.

Under the disposition of the Extremism Article, the boundary between crime and freedom of expression is erased; peaceful expression of opinion is declared a crime, the provisions of the Law on Expression, regarding the grounds and procedure for restricting freedom of expression, are disregarded.

The new article prohibits every kind of expression, irrespective of the legislative requirements established to regulate the content of expression. It should be noted that the legislative requirements established to regulate the content of expression are exhaustively listed by the Law on Expression. It is inadmissible to impose any kind of liability for any expression made within these limits.

The Extremism Article disregards these limits and covers any critical expression, which is a right guaranteed by the same law for both natural persons and legal entities.

(a) The only criterion that separates expression of opinion from its criminalization is the “systematic nature” of expression, which does not relate to content and which means that non-violent, legitimate expression becomes a crime if it is systematic. Accordingly, you may freely express a non-violent opinion until it is considered to be “systematic”.

Under the Extremism Article, systematic public expression directed toward creating a perception is punishable. Systematic nature is required for all three categories of acts described above.

The Criminal Code uses this adjective, “systematic nature”, only in a few cases, although there is no legislative definition of it. In scientific literature, the opinion has been expressed that under for an act to be considered of “systematic nature”, an act must be carried out at least 3 times, although this is not a statutory or dogmatic definition.

In the case of the crime of “extremism”, the “systematic nature” of the act/expression creates the basic elements of the crime – it establishes the wrongfulness of the public act/expression, which the legislator has called “extremism”. The wrongfulness of the act is created by its systematic nature, which is not normatively determined.

Accordingly, the wrongfulness of the act is determined not by the criminal-law norm, but by the person applying it. For example, how much a person should be allowed to speak will in the future be determined by a specific investigator/prosecutor and court.

(b) As a criterion for the acts of the first group defined by the disposition of Extremism Article, the word “mass” is used in connection with violations and disobedience.

In such a formulation of the disposition of the crime, the definition of “mass nature” is also problematic. To how many people must this call be addressed in order to be considered of mass nature? A call to 10 people or to 10,000 people? Is an address to an indefinite audience a “mass call”? A call for what number of violations will be considered a call for mass violation?

At the same time, it is important that the disposition of the article does not imply a call to commit a crime. From this perspective as well, it is unclear what “violation of legislation” means for the purposes of this article.

Basing criminal liability on an indication of the mass addressees of an address contradicts the principle of legal certainty.

(c) “Disobedience” as a form of civil protest is recognized by the laws of democratic countries.

Civil disobedience (e.g. peaceful rallies, including even blocking a road) is a form of democratic protest. Its criminalization without a clear boundary, practically abolishes freedom of expression and freedom of assembly.

In this regard, the following cases of the European Court of Human Rights are interesting and relevant: “Castells v. Spain” and “Perinçek v. Switzerland”. Under the standard of the European Court, in order for a call to be considered a crime, it must contain a direct call to violence or a threat of armed confrontation (“Incitement of Violence” Test).

If the call concerns only “disobedience” (for example, non-payment of taxes or peaceful rallies), a criminal sanction is deemed as a violation of freedom of expression.

(d) Alternative bodies – in democratic systems, citizens have the right to create public councils, alternative self-government groups or “shadow cabinets”.

In European law, there is a practice of a “shadow cabinet of ministers” (Shadow Cabinet) or “alternative municipalities”. This is considered a part of democracy. If citizens say: “we do not recognize this city’s assembly and we are creating our people’s council”, the European Court will view this as an extreme form of protest which, at the same time, is not a crime under criminal law and is not punishable under criminal law until this “council” begins, for example, to apply police functions or use weapons.

As a rule, the Strasbourg Court considers norms that punish abstract “disobedience” to be incompatible with the provisions of the Convention if this disobedience is not violent or does not contain an imminent threat to public order.

Accordingly, the boundary between expression, freedom of assembly, civil and political rights, and the public acts presumed under the Extremism Article is, under the disposition of the same article, completely unclear and contradicts the principles of a “clear and foreseeable” and “narrowly targeted law”.

IV. Proving “Illegitimacy” Is a Paradox

(a) The Extremism Article criminalizes expression if it causes a perception of “illegitimacy of the constitutional order and constitutional bodies”.

Therefore, before moving to a legal-psychological analysis of “perceptions”, we must determine what “illegitimacy” means for the purposes of this article or for the purposes of any other norm.

The term “illegitimate” (Illegitimate) is a rather complex category in law and politics. This term carries both legal and broad social-political and evaluative weight. There is no single formula that would give us an exact definition or test of “illegitimacy”.

The term “illegitimate” is used mostly in legal theory and mainly in constitutional and administrative law, and in human rights law, considering that there is no normative definition of this concept and there is no universal understanding of “legitimacy”.

In legal theory and practice, “illegitimate”, as a rule, means an act, decision or condition that:

1. contradicts (not only law but) the essence and principles of law and is legally unjustified.
2. does not enjoy public recognition or trust.

Constitutional and human rights law acknowledges the “legitimate aim”, which the restrictions of human rights must serve in order for such a restriction to be considered as justified. The Constitution of Georgia uses this term “legitimate aim” in the context of fundamental human rights (Article 34), where it indicates that a restriction of human rights must serve a “legitimate aim”.

(b) Legitimate aim – as a filter for administrative bodies and not for citizens.

A “legitimate aim” is a filter that the court uses to assess whether the state has the right to interfere with human rights when these rights are being restricted.

A “legitimate aim” is also a kind of filter for administrative bodies when making decisions (for example, revocation of a license or a fine). Their decisions must serve a legitimate public interest. If a body makes a decision based on personal interest, this is an “abuse of discretionary authority” — accordingly, the aim becomes illegitimate and the act must be annulled.

A “legitimate aim/interest” is used in labor law: for example, an employer may impose certain restrictions (e.g. dress code or confidentiality) if it has a legitimate business interest. If the restriction serves only to harass the employee, it is illegitimate.

Competition law: certain agreements on the market may be prohibited if their purpose is not consumer welfare (a legitimate aim), but the purpose is only to destroy a competitor.

In criminal law, a legitimate aim justifies zero liability under circumstances of self-defence or extreme necessity. A person’s act (e.g. damaging another’s property) may be formally unlawful, but legitimate, if its purpose was to save an entity of higher value (e.g. life).

Accordingly, taking into account all of the above examples, legitimate aim is the filter, through which norms restricting and prohibiting human rights pass. This is a filter for the state and its bodies. This is not a filter for the expression of different opinions by people.

(c) There is no normative definition of the legitimacy of the “constitutional order” or “constitutional bodies”.

We can discuss ‘illegitimacy’ only if we know what the legitimacy of “constitutional bodies” or the “constitutional order” mean – from a normative-legal perspective and not from a political-legal or moral-value perspective.

Neither the Constitution of Georgia, nor any other law defines what the legitimacy of the “constitutional order” or “constitutional bodies” is, nor do they even use such concepts.

Criminal legislation also does not know what the “constitutional order” is. The interpretation of this concept cannot be the subject and task of criminal law.

Nor does any other legislative act define this concept. These categories/concepts are the subject of legal theory and not the sphere of criminal-law regulation.

(d) “Unlawful” vs “Illegitimate”

The concept of “unlawful” is understandable in criminal law; it means that an act directly violates a written norm, a rule of conduct, specifically criminal law.

In criminal-law terms, the concept “illegitimate” is unclear, since it is impossible to determine what contradiction is implied by illegitimate behavior or by a perception of illegitimacy.

The use of the term “illegitimate” is a person’s subjective assessment – it may formally not violate the law either, but in the assessment of the same person, it may be unjust, unfair or contrary to the values of democracy.

Legitimacy: this is a substantive and not a formal-legal category. It may, for example, imply the justice, ethics and public recognition of an act or government. For example, legitimacy may answer the question – whether the state has the moral right to require a citizen to engage in the relevant conduct.

“Illegitimacy” does not constitute any dogmatic, normative category and, accordingly, ascertaining it in a criminal-law procedure is a legal paradox.

In reality, the prohibition of establishing a perception of illegitimacy is a purely ideological tool that will allow the state to declare any fundamental, valuable, political and public opposition as a crime.

V. “Establishing a Perception” – Psychologization in Law

The concept of “establishing a perception”, by its essence, is also not a legal but a communicative, psychological and sociological category. Its inclusion in the Criminal Code also gives rise to a fundamental problem, because criminal law requires objective facts, acts and results; criminal law, as a rule, condemns an act that causes harm, which is expressed in a material/physical result. Perception is extremely subjective; it is immaterial, it relies on a person’s thought and attitude.

The wording of the disposition of the Extremism Article — “directed towards… establishing a perception of illegitimacy” — declares punishable expression, the voicing of an opinion, which is also directed towards forming an opinion, impression or attitude.

If a politician says that the elections were falsified, one may say that by this, he generally establishes a “perception of illegitimacy”, which is natural for opposition in any political and public process.

Causal link: How should we prove that people believed in the illegitimacy of some body precisely because of the calls/statements of one specific natural person and not because of the coincidence, existence and analysis of other objective circumstances, as well (e.g. corruption, evidence of falsified elections, economic crisis, and others)?

How should we prove the extent, to which someone’s expression/call had the power to “establish a perception”. It should be noted that the power of any word depends not only on the speaker, but also on the readiness and disposition of the listener to believe such narrative.

If media coverage of this opinion additionally assisted the dissemination of the opinion, to whom will this perception be imputed to – to the media or to the person voicing the specific opinion?

“Establishing a perception” is a cognitive and social phenomenon. Its measurement by purely procedural, legal methods (witness testimony, expertise) is impossible and unserious, because it is:

• immaterial;
• subjective;
• multifactorial (thousands of reasons determine perception).

There are no procedural mechanisms in criminal proceedings that, to the ‘beyond reasonable doubt’ standard, would substantiate and prove the establishment of a perception. Allowing a person’s conviction on the basis of purely subjective and scientifically unsubstantiated perceptions is the destruction of the principles of a state governed by the rule of law.

And finally, this is psychologization in law. Law works with objective facts, whereas perception is a subjective process occurring in the human psyche. Accordingly, the law punishes not an act causing harm, but “making an impression”, which is a legal paradox.

The new, Extremism Article practically says: “Criticism of the government is prohibited if it convinces the voter that the government deserves criticism, or more simply, that it is bad and must be changed”.

VI. Subject of the Crime

The legislator defined the list of subjects for this crime more broadly than in Article 317 of the Criminal Code (calling for the violent overthrow of the government).

The subject of the crime of “extremism” is: (a) a citizen of Georgia and a person having relevant status (residency, etc.), as well as (b) a legal entity.

We should expect that an entrepreneurial entity, as well as a non-commercial legal entity fall under “legal entity”.

For the liability of a legal entity, (as indicated in the Extremism Article), the opinion, directed towards establishing a perception, must be expressed by a person authorized for the management and representation of the legal entity, a partner, a shareholder, or a member of a supervisory, controlling or auditing body.

The liability of a legal entity is followed by its liquidation and/or a fine, the minimum amount of which is 100,000 GEL. A natural person is punished by deprivation of liberty for up to 3 years.

Politicians are not exempted from liability:

The article does not provide exceptions for those who directly participate in politics and are members of a political party. Accordingly, members of political parties in opposition bear criminal liability under the Extremism Article for criticism of the government and for creating negative perceptions.

VII. Analogous cases of Russian Law

The new Article 316¹ of the Criminal Code – “Extremism against the Constitutional Order of Georgia”, by its concept, is very close to Articles 280 (public calls for extremist activity) and 282 (incitement of hatred) of the Criminal Code of Russia and to the practice of their application.

In the Russian Federation, the relevant article of the Criminal Code uses the Law “on the Prohibition of Extremist Activities” for identifying extremist activities, which does not include the exact terminological counterpart of “establishing perceptions of illegitimacy”, proposed by Extremism Article in Criminal Code of Georgia.

Despite the above, criticism of representatives of the government and insult of a “social group” in the Russian Federation still fall within the definition of “extremism”, which is regulated by the above indicated separate law. Russian judicial practice considers the police, officials or the government to be a “social group”. As a result, criticism of the government is assessed as “incitement of hatred toward a social group (officials)” and is easily qualified as extremism.

In the judicial practice of the Russian Federation, criticism of the government in the international arena is also often interpreted as “damaging the interests of Russia”.

The term “damages the interests of Georgia” used in the new norm introduced into our Criminal Code creates the expectation of exactly the same interpretation. It is entirely possible that, in practice, we shall receive the use of this term with the same interpretation – criticism of the government in the international arena will be deemed an act damaging the interests of Georgia, which is directed towards establishing a perception of its illegitimacy.

VIII. “Creating a Perception” – An Implant of Russian Practice in Georgian Law

On 25 March 2022, amendments were introduced into the Criminal Code of the Russian Federation, which brought the activity of any state body of Russia under the protection of the articles on “discreditation” and “fakes”, and one may say that, through the articles on “fakes” and “discreditation” introduced from 2022 (Criminal Code of the Russian Federation Articles 207.3 and 280.3), Russia practically legalized “a control of perception”. Although, in the Russian legislation, “a control of perception” is disguised by the word “discreditation”, which is also an ideological weapon of subjective perception.

In Russian law, “discreditation” is an instrument by which the state establishes:

1. what is a “positive” perception: (the official position of the state).
2. what is a “criminal, prohibited” perception: (any other alternative view).

Accordingly, in Russian reality, the word “discreditation” is only a legal cover for controlling public opinion and perception. Unfortunately, in our case, such cover is “illegitimacy of the constitutional order”.

(a) The “know-how” of Russian investigative/judicial practice, which is expected to become established in Georgian practice.

In cases of persecution of people with different opinions, the investigative bodies of the Russian Federation, as a rule, resort to a so-called “forensic-linguistic expertise”, and in the questions sent to experts you will often see such wording:

“Does the given text contain information that is aimed at forming a negative attitude toward government bodies or at questioning their legitimacy?”

In the expert conclusion you will see the following reasoning/conclusion:

“The epithets used in the text (for example, “corrupt”, “aggressor”, “illegitimate”) create the image of the government as an “enemy”. Also, “the author uses “psychological manipulation” in order to form a distrust toward state institutions in the reader. This creates a threat to public stability”. In the final part of the forensic-linguistic expert conclusion it is written – “Conclusion: “incitement of enmity”, “informational influence”.”[2]

On the basis of such expert conclusions, by which negative dispositions are established, the Prosecutor’s Office of the Russian Federation usually charges various active and opposition-minded citizens under different articles of the Criminal Code:

• Article 207.3 (fakes about the army): In case if the negative disposition concerns war or the army.
  Qualification takes place with the motive of “political hatred” (which aggravates the sentence).
• Article 280.3 (discreditation of the army): In case if the expert says that the text “diminishes” the authority of the government or the army.
• Article 282 (incitement of hatred): The government or law-enforcement officers are considered a “social group” and criticism of them falls under this article.
• Article 284.2 (call for sanctions): In case if the negative disposition is directed towards foreign countries imposing sanctions on Russia.

Noteworthy examples from the practice of the Russian Federation:

(a) The case of Alexei Navalny, whose organization was deemed by the Russian court as an “extremist organization”.

In Navalny’s case, experts established that the videos of Navalny’s Anti-Corruption Foundation (FBK) aimed at “calling the legitimacy of the government into question” and “inciting social enmity toward officials”.

(b) The well-known case against “bloggers”, where a post written on a social network, “the police do not protect us”, was assessed by the expertise and subsequently by the court as “discreditation of law-enforcement bodies”, because it forms a negative perception.

Accordingly, for the control of opinion and expression and for deeming them as crimes, in the repressive practice of Russian law-enforcement bodies, there are well-established “procedural” instruments, using which political criticism is turned into “extremism”.

IX. The Standard of Democratic Countries

The “establishment of a perception of illegitimacy” of the constitutional order of the state, as a form of extremism, is not known to the legislation of democratic countries. Referring to peaceful, non-violent expression as “extremism” is uncommon in the law of democratic, European countries. Most of them use the concept of a “crime directed against the democratic order”, not the general term “extremism”.

(1) The standard of the European Court of Human Rights, ECHR

The main “shield” against the type of repressive article that punishes the “establishment of a perception” is the fundamental decision of the European Court, rendered back in 1992, in the case of Castells v. Spain, in which it explains that “the limits of permissible criticism towards the government are wider than towards a private person. In a democratic system, it is a natural phenomenon that the actions of the government be subjected to strict and scrupulous assessment by the public.” Referring to the government as “illegitimate” is protected by freedom of expression if it does not contain a direct threat of violence.

The ECtHR has established the principle of “imminent danger” (Proximity and Magnitude).

• Case of Perinçek v. Switzerland (2015): the Court explained that, in order for a speech to be punished, there must exist an “imminent danger” (Actual Risk) that this speech will cause violence or disorder. A peaceful call for disobedience (e.g. tax boycott, rallies) is protected by freedom of expression.
• Case of Savva Terentyev v. Russia (2018): This case concerned vulgar criticism towards a constitutional body of the government – a law-enforcement structure (“dogs loyal to the regime”) due to their dispersal of opposition demonstrations during the pre-election campaign. The Court established that “forming a negative attitude toward the government or any of its structures (which in our case may be assessed as “establishing a perception of illegitimacy”) cannot be a basis for criminal prosecution”.

(2) The standard of the Venice Commission

As early as 2012, the Venice Commission discussed the law of the Russian Federation “on combating extremism” and in its fundamental opinion (CDL-AD(2012)016), it formulated a so-called “gold standard”:

• Necessity of Violence: the definition of extremism must be limited only to those acts that include violence or direct incitement/calling to violence.

“Establishing a perception of illegitimacy” or a “call for disobedience” (if it is not violent) is a form of political expression.

“In order for expression to be classified as “extremist”, it must be connected with violence. Peaceful advocacy of constitutional changes, even if it radically changes the state order, is protected by freedom of expression.” (Paragraph 36).

According to the Commission, in a democratic society, the state is obliged to defend its legitimacy through political debate and not through criminal-law repression.

a) Subjectivity vs Objectivity

The Venice Commission emphasizes that a criminal-law norm cannot be based on subjective “perceptions”. The law must punish a specific act and not the impression that this act left on society.

The Commission explains that:

Perception is subjective: the state cannot control what perception a person will form when hearing criticism.

In addition to the above, the meaning of the existence of the opposition is precisely to form among the people the perception that the acting government is ineffective or that its actions are illegitimate (for example, because of a violation of the Constitution).

b) The right to criticize the government

The opinion indicates that speaking about the “illegitimacy” of government bodies is an integral part of political debate.

• If a person says that “this parliament is illegitimate because the elections were falsified”, this is a political assessment.
• The Commission emphasizes that calling the legitimacy of the government into question by political opponents is a legitimate instrument of political process, and labeling it as “extremism” contradicts Article 10 of the European Convention on Human Rights.

(c) The Venice Commission has repeatedly explained (especially in its opinion on the Russian law) that:

The definition of “extremism” must be very narrow and must necessarily contain an element of violence. If a law punishes “extremism” without violence (for example, only because of non-acknowledgement of the government, as is provided under Article 316 of the Criminal Code of Georgia), this is a violation of human rights.

In democratic countries, crimes close to “extremism” necessarily imply violence or a fundamental denial of human rights (Nazism/Racism).

By the amendments initiated in Georgia, extremism in the Criminal Code means criticism of the government, disobedience to it and calling its legitimacy into question.

X. Contradiction with Criminal-Law Principles

The Extremism Article contradicts the fundamental principles of criminal law.

1. Ultima Ratio — “last resort” – the most important principle of criminal law.

Ultima ratio is the most humane principle of criminal law, and its essence lies in the fact that the state must resort to criminal-law repression only when all other means have been exhausted.

2. Criminal law has an auxiliary (subsidiary) nature

The state has various mechanisms of control over citizens and legal entities: civil fines, administrative sanctions, disciplinary liability. According to the principle of “ultima ratio”, if the resolution of a specific social problem is possible, for example, only by compensation for damage (civil law), then invoking/using criminal law is impermissible.

3. Protection of legal good (Rechtsgut)

Criminal law must protect only the most important legal good/value: life, health, statehood, property.

The principle of a legal state – definite character of the norm (Legal Certainty)

The most important principle of criminal law is that the law must be clear, predictable and precise (Nullum crimen sine lege).

By criminalizing the acts listed in the Extremism Article – acts that in reality are protected by freedom of expression (acts that supposedly damage vague “legitimacy”), the legislator disregarded all of the above-mentioned legal principles and used criminal-law regulation as an “instrument” for controlling public opinion, which is impermissible in democratic legal systems.

If a person says: “this government is illegitimate”, according to all democratic standards, he/she enjoys the protected right to freedom of expression.

The adoption and enactment of the Extremism Article in Georgia means transferring the country’s legal system to the model that the European Court of Human Rights declared incompatible with democracy, as early as 1992.

[1]It should be noted that, by the same amendments, the concept of “public political activity” was introduced into the Code, which is discussed in our other study. See at the following link: https://blb.ge/amendments-to-the-criminal-code-of-georgia-expulsion-of-citizens-and-organizations-from-political-discourse/

[2]In our case, it will presumably be: Conclusion on “perception of illegitimacy of the constitutional order”.