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Energy Independence or the Run to the Bottom?!

April 29, 2021
Giorgi Tkebuchava
Whether we like it or not, Georgia is an integral part of the so called third world. In parallel with the sharp economic crisis created in the post- Soviet reality, the years of 2000 were predetermined by deregulations and attracting investments at all costs. This tendency is sustained up to the date. The idea of Namakhvani hydro station, which emerged  during the Soviet Union, was always pending, laying on the shelves because of many factors. However, during Coronavirus crisis, the Ministry of Economy of Georgia assumed that this was the best period for the implementation of the construction works. 
The project of Namakhvani Hydro Station envisages the construction of massive cascades between villages Tvishi and Zhoneti along the gorge of the River Rioni. The idea originated in the Soviet Georgia, but because of the large scale of the project, the underlying risks and other objective reasons, the project could not see the light for a very long time.  The project was activated in the 2000's during the government of National Movement. Before the Parliamentary Elections of 2012 and before coming into the power, the leaders of Georgian Dream expressly opposed the idea of construction of large hydro power stations, but finally, the first steps towards the construction of this massive project were taken exactly during the government of  GD. 
The economic benefit of large hydro power stations, on the one hand, and the negative impact on the environment caused by the construction, on the other hand, is one of the sharpest issues of debates  over the years in Georgia. The economists and the political establishment consider that the maximum utilization  of the hydro resources existing in the country must be carried out, that will promote the development of  local economy as well as an increase in energy independence of the country. Moreover, the environmentalists refer to the necessity of sustainable economy and to the harm caused to the environment by the adverse impact of the large hydro power stations.
Existing differences in opinions concerning the construction of hydro power stations in Georgia has a long history. The harsh debate  within the society begins from Soviet Georgia.  Actually, the protest stemming from the part of the public against the large hydro power stations never ceased. Recently, the reactivation of the problem was caused by the rapid decision of the government of Georgia to build Namakhvani hydro power station, without a proper assessment of the risks and without transparency of the process. Such decisions result in the rightful protest on the part of the population, while the government resorted to  repressive policies using police forces against the public. Finally, the government is disproportionally and mostly illegally interfering with the freedom of assembly and expression. 
For instance, on November 14, 2020, during the midday, the participants of the protest demonstration blocked for several hours the roadway in village Zhoneti connecting Kutaisi with the Lechkhumi region. The protest demonstration was dispersed by law enforcement officers using physical force with a method of  pushing the participants of the demonstration.  The road was blocked only for several hours by the protesters and their actions have not exceeded the boundaries of peaceful assembly. The State has dispersed the participants of the peaceful demonstration without any warning and attempt to negotiate. The aim of dispersing the demonstration was to restore the traffic on the roadway connecting Kutaisi with Lechkhumi region. However, the roadway is not an overloaded transport junction. Moreover, there was no need for prompt restoration of the traffic on the roadway. Considering the fact that the most of the participants of the demonstration were enchained with each other, many of them fell down and allegedly were injured when they were dragged away by the police officers. 
According to the international standards of human rights, there existed no basis for dispersing the peaceful demonstration in village Zhoneti held on November 14, 2020. Disperse of the peaceful demonstration has to be carried out on the basis of a balance between the public and private interests. The issue which interest will prevail in the specific case has to be decided according to individual circumstances and not by applying a blanket approach. Blanket approach is when the State has the power to disperse any kind of demonstration at any place without assessment of individual circumstances, without contrasting the public and private interests and giving due consideration as to which interest is prevailing in the specific case. Dispersing the peaceful demonstration in the village Zhoneti on November 14, was the classic example of a blanket restriction of peaceful assembly. It is disproportional to restrict the right of assembly in such a form, defining the use of police forces against the participants of the demonstration a priori illegitimate. 
In general, according to the international standards of human rights, while assessing the proportionality  of the measures to disperse a demonstration because of blocking roads, the attention must be paid to the fact whether the participants of the demonstration might have other opportunities of expressing their protest in the public space. In the present case the demonstration was held in the village of Zhoneti of Tskaltubo region by local inhabitants with participation of the population of adjacent villages. Such groups usually lack public spaces where they could express their protest regarding the issues of acute social importance in a way that such protest reach the wider public and could be perceived by the public. Besides the roadway lead through the village of Zhoneti and adjacent villages, in fact there is no public space, where protest assembly of individuals could attract attention of the society. The idea of the gathering was  to deliver a protest message to the wider public and attract the attention of the public and not only express the protest on the local level within the narrow group.
At the beginning of February, 2020, the police removed the protest camp of the protesters, as a result of which the locals had to continue ongoing  protest in the open air. These measures indicate to the interference with the freedom of expression of the local inhabitants. 
On February 8, 2021, the organizers of the protest demonstration erected a protest camp  near the River Rioni in the village of Namokhvani. At the beginning the police opposed the erection of the protest camp, but finally they gave up the resistance.  The organizers of the demonstration and some of the protesters carried on the  protest exactly in these tents. However, on April 12, 2021, the tents were again removed by police forces and the territory was 
plowed using special machinery. 
The right of freedom of peaceful assembly is protected by the numerous international instruments of human rights, among them under: Article 20 of UDHR, Article 21 of ICCPR,  Article 11 of ECHR, Article 15 of ACHR and  Article 7 of FCNM. This right was confirmed also by the UN Declaration of Human Rights paying special attention to its importance on the national level as well as on the international level for the development and protection of human rights and fundamental freedoms. The right to freedom of peaceful assembly is also protected by the Constitution of Georgia and Georgian Law on Assemblies and  Manifestations.  Accordingly, the actions of law enforcement officers not to allow erecting the protest camp at the place of assembly by the participants of the demonstration, is an attempt to control the form of peaceful assembly, that harshly violates the essence of the right of assembly and the commitments of the State under the Constitution and International Agreements. Unfortunately, interference with the freedom of peaceful assembly and dispersing the demonstration by use of police forces is a systematic problem in Georgia.
According to the Constitutional Court of Georgia, "the possibility to exercise the right to assemblies and demonstrations in full and in equal terms determines the degree of openness and democracy of the society." The possibility of banning the placement of non-permanent facilities by the participants of the assembly or demonstration was considered by the Constitutional Court only in the context of blocking the traffic way in relation to the legitimate aim of protecting the rights of others. ,,[...] The Constitution of Georgia considers the restriction of this right to be permissible only if it has become unlawful. It should be emphasized that the current legislation of Georgia does not provide for the prohibition of non-permanent facilities, including the installment of tents, provided that it does not obstruct the traffic way “ [see: Political Union of Citizens Movement for United Georgia, Political Union of Citizens  Conservative Party of Georgia, Citizens of Georgia - Zviad Dzidziguri and Kakha Kukava, Georgian Young Lawyers Association, Citizens Dachi Tsaguria and Jaba Jishkariani, Public Defender of Georgia v. the Parliament of Georgia. 2011 ].
According to OSCE / ODIHR guidelines, the erection of protest camps and other non-permanent constructions falls within the scope protected by the right of peaceful assembly. 
In the case of Oya Ataman v Turkey the European Court on Human Rights held: "where demonstrators do not engage in acts of violence it is important for the public authorities to show a certain degree of tolerance towards peaceful gatherings if the freedom of assembly guaranteed by Article 11 of the Convention is not to be deprived of all substance.”  [ Oya Ataman v. Turkey (application no. 74552/01), 5.12.2006, §41 and 42, ECHR ]. 
Further, the issuance of positive environmental decision with regard to the hydro power station by the Ministries of  Environment and Agriculture caused the protest among the public in February, 2020. The civil organizations and the expert groups from the beginning referred to the groundlessness of the project both in terms of the geological and ecological issues as well as economic and social issues. The silence of the government was met by the self-organized wave of protests among different groups of the society; Kutaisi has become the center of the protest. On the background of existing economic, social and political crisis, where the United Opposition could not, despite many attempts, mobilize huge number of people for demonstrations in the Capital City, now the government could not ignore self-organization and the number of demonstration participants in Kutaisi.
As a result of the pressure from the society, to answer the existing questions regarding the project, the government published the agreement executed between the State and the investor regarding the construction of Namakhvani hydro power station. Nevertheless, the document that was made public  could not provide not only an exhaustive answer to the questions of the society, but raised even more questions, including in terms of financial and economic aspects of the project. 
The specific issue is the opinion of the experts of various  fields concerning geological and seismic threats, that can become the cause of a wide-scale disaster in the case of implementation of the project. The risks raise even more concerns  when there is an example of unsuccessful operation of the hydro power station: The leading investor of Namakhvani HPP is Norwegian Clean Energy Group that constructed the tunnel of Shuakhevi HPP. The tunnel was demolished at several locations within two months after commissioning. Not taking into consideration the local geological peculiarities was named as a cause of this failure. 
According to the assessments of the ecologists the projects that are planned “at all costs/at the expense of everything” contradict the sustainable development of the country. Although the government officials constantly appeal to energy independence and energy security, the country still has no clear and long-term strategy for energy development. In such circumstances, it is obviously impossible to have in depth discussions based on individual projects, thus leaving the terms of “energy independence” and “energy security” as vague premises. The same is confirmed by the World Bank report according to which the specific individual projects frequently contradict with the most profitable development strategy for the power electrical system. The report of the World Bank, mentions as examples for this the Georgian projects including Namakhvani Cascade, Nenskra and Koromkheti HPP. According to the report, in the case of construction of Namakhvani HPP the tariff for electric power would increase inexpediently and the State budget would be short of GEL 1.2 billion.
The article is prepared by Human Rights Center within the project “The Situation regarding the Right to Peaceful Assembly and other Civil Rights during Covid-19 Pandemic in Georgia”. The project is supported by the European Center for Non-for-Profit Law (ECNL) under the Inspires Program, which is made possible through the International Center for Non-for-profit Law (ICNL) with the financial support of USAID.