Article 239¹ — Public Incitement to Violent Action
Article 239¹ of the Criminal Code of Georgia criminalizes public incitement to violent action where it aims at fomenting discord between groups distinguished by racial, religious, national, regional, ethnic, social, political, linguistic or other grounds. The act may be committed orally, in writing or by another means of expression — which is why charges often concern public speeches, publications and texts circulated on social media. At the same time, criminal law speaks of a crime only where the incitement creates a clear, direct and substantial danger of the commission of a violent action.
It is precisely this layered composition that forms the basis of the defence: not every harsh or offensive statement is a call to violence, and not every call creates a danger of the degree the law requires. Drawing that boundary is the defence lawyer’s central task.
The Elements of the Offence: What the Prosecution Must Prove
Under the ordinary meaning of the article, an act is criminal only where several features coincide. First, purposiveness: the incitement must be aimed at fomenting discord between groups of persons, the groups being defined by racial, religious, national, regional, ethnic, social, political, linguistic or other grounds. Second, publicity and form: the act is committed orally, in writing or by another means of expression, in a public format. Third, danger of a result: the incitement must create a clear, direct and substantial danger of a violent action being carried out.
The existence of each of these features must be proven by the prosecution. In the context of freedom of expression this is particularly important: an expressed opinion, criticism or heated rhetoric towards a group becomes a matter of criminal law only where it contains a call directed at violence and a genuinely substantial danger. Otherwise the case remains in the sphere of impermissible restriction of the expression of opinion, which is itself an argument for the defence.
Sanctions and the Liability of Legal Entities
The act provided for by the first part of the article is punishable by a fine or community service for a term of 200 to 400 hours, or by imprisonment for up to 3 years. Where the same act is followed by grave damage to a person’s health, the causing of death or another grave consequence, the sanction increases: imprisonment for 2 to 5 years.
A separate rule governs the liability of legal entities: for an act provided for by this article a legal entity is punishable by liquidation or deprivation of the right to carry on its activity, and by a fine. In such cases the lawyer’s work embraces not only the individual defence but also a strategy for preserving the organization’s activity — since the sanction directly threatens its existence.
Lines of Defence in Cases under This Article
In cases of this category the defence is directed primarily at calling the elements of the offence into question. To be examined are: whether the statement was at all an incitement to violent action, or was the expression of an opinion; whether it was public and aimed at fomenting discord between groups; and, most importantly, whether there existed a clear, direct and substantial danger of a violent action. The substantiality of the danger is a matter of objective assessment, and the failure to prove it weighs firmly against the charge.
The second line of defence is the element of purpose: the article requires the aim of fomenting discord, and if the statement served another purpose — political criticism, for example — that circumstance strengthens the defence position. The remaining questions — procedural deadlines, the assessment of evidence and the rules of examination — are settled by the general rules of criminal procedure legislation, which frame the lawyer’s work in any case.
Frequently Asked Questions
What is the difference between incitement and the expression of opinion?
Article 239¹ criminalizes only a public call to violent action aimed at fomenting discord between groups and creating a clear, direct and substantial danger of violence. Harsh criticism does not automatically satisfy this composition.
What sanctions are provided?
Under the first part — a fine, community service from 200 to 400 hours, or imprisonment for up to 3 years. Where a grave consequence follows — imprisonment from 2 to 5 years.
Can a legal entity be held liable?
Yes — for an act under this article a legal entity is punishable by liquidation or deprivation of the right to carry on activity, and by a fine.
What must the prosecution prove?
That the statement was a public incitement to violent action aimed at fomenting discord between groups, and that it created a clear, direct and substantial danger of violence. Failure to prove any of these elements shapes the defence.
Which group grounds are named in the article?
Racial, religious, national, regional, ethnic, social, political, linguistic or other grounds.
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