CASE OF CHKHARTISHVILI v. GEORGIA
CASE OF CHKHARTISHVILI v. GEORGIA
JUDGMENT
STRASBOURG
11 May 2023
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
CHKHARTISHVILI v. GEORGIA JUDGMENT
INTRODUCTION
1. The present case primarily concerns the applicant’s complaint that his
arrest at a demonstration and the imposition of a custodial sanction in respect
of administrative offences had amounted to an interference with his rights to
freedom of expression and freedom of assembly, in breach of Articles 10
and 11 of the Convention.
THE FACTS
2. The applicant was born in 1980 and lives in Tbilisi. He was represented
before the Court by Mr I. Chitashvili, a lawyer practising in Tbilisi.
3. The Government were represented by their Agent, Mr B. Dzamashvili,
of the Ministry of Justice.
4. The facts of the case, as submitted by the parties, may be summarised
as follows.
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17. During the hearing before the trial court the author of the
administrative-offence report stated, among other things, that the applicant
had a history of committing administrative offences and disobeying police
orders. It was noted in that context that on at least two previous occasions –
in 2008 and 2014 – the applicant had been ordered to pay administrative fines.
The officer in question requested, in view of that information, that the trial
court apply a stricter sanction as a deterrent for the future. The applicant’s
representative contested the officer’s submission as unsubstantiated, unclear
and irrelevant.
18. On the same day – 29 November 2019 – the Tbilisi City Court
acquitted the applicant of any offence under Article 166 of the CAO but found
him guilty of insulting the law-enforcement officers and disobeying their
lawful orders, in breach of Article 173 of the CAO (see paragraph 28 below).
The applicant was sentenced to eight days’ administrative detention. The
judgment was based on the following evidence: the administrative-offence
and arrest reports of 29 November 2019; internal reports of the police; a
document entitled “information regarding the accused” (reflecting the fact
that the applicant had been charged with administrative offences in the past);
the parties’ submissions; witness statements (including the officers’
explanation that beans had been thrown in their faces); and the video footage
relating to the applicant’s arrest.
19. The court articulated the view that statements of police officers would,
in principle, be sufficient to shift the burden of proof onto a person accused
of committing an administrative offence because of the expertise of the police
and the fact that they carried out their professional duties in line with the
domestic legislation. As to explanations given by persons alleged to have
breached administrative rules and regulations, it was noted that their
statements could not, unless supported by other evidence, be regarded as
constituting irrefutable evidence in respect of determining the circumstances
of a case given that the individuals in question were interested parties and that
information provided by them could be aimed at covering up an offence and
avoiding sanctions.
20. Relying on the evidence available in the case file, the court established
the following:
“The court notes that the case file material ... confirms that the person charged with
the administrative offence [showed] disobedience towards the lawful demands of the
police and insulted the police officers. This conduct falls within the scope of Article 173
of the [CAO]. No other evidence which could lead the court to conclude otherwise has
been presented in the present case. ...
After studying the case file material and the parties’ submissions, the court considers
that [the applicant] has not engaged in conduct proscribed under Article 166 of the
[CAO]. There is no evidence [before the court] which could incontrovertibly confirm
the commission of conduct contrary to Article 166 of the [CAO]; namely, the facts of
cursing at the site of a public gathering [and] of a breach of public order have not been
established. ...
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In the present case, on 29 November 2019 a demonstration was being held along the
site of the public library in Tbilisi, on Purtseladze Street. Police officers were ensuring
the peaceful conduct of the demonstration and the implementation of the
constitutionally guaranteed rights of citizens. They were enforcing security, protecting
the rights of the participants in the demonstration and ensuring citizens’ constitutionally
guaranteed right to freely move along Rustaveli Avenue and the adjacent streets, which
constituted sufficient grounds for the officers – who are obliged to ensure that breaches
of the law are [prevented] – to implement appropriate measures provided for by law.
The evidence presented in the present case, the parties’ explanations and the video
material all confirm the police officers’ instructions [მოწოდება] and the disobedience
[to such instructions] of the person charged with the administrative offence, as well as
the fact of his insulting the officers. Specifically, the representatives of the law-
enforcement authority called on the individual in breach of the law to leave the road
[and] that request was left unheeded. The court considers it established that the law-
enforcement authorities gave instructions to preserve order and that the instructions
were lawful and aimed at achieving the legitimate goal of safeguarding individuals and
public order. Accordingly, the person in breach of the law disobeyed multiple legitimate
orders. He should have anticipated the risks which could follow [such disobedience].
The court clarifies that calling the police officers ‘slaves’ amounts to behaviour which
insulted and degraded the honour and dignity of the police officers and constitutes a
sufficient basis for the [applicant’s] actions to fall within the scope of Article 173 of the
[CAO].
As concerns the explanation given by the representative of the person charged with
the administrative offence, namely that throwing beans into the air constituted a means
of expressing protest ..., the court points to ... the Freedom of Speech [Act] ... which
accepts and protects the freedoms of speech and expression as eternal and supreme
human values. ... At the same time, section 8 of the very same Act provides for grounds
for limiting [these freedoms] only if such limitations are provided for by law in a clear
and foreseeable manner and when the advantage achieved by a limitation exceeds the
damage inflicted by it.
In the case at hand, the evidence presented [to the court], the parties’ submissions and
the video material confirm that the individual charged with the administrative offence
called the police officers ‘slaves’ and threw beans at them, stating that it had been gruel
for slaves. The court notes that section 48(3) of the Police [Act] provides that insulting
the honour and dignity of police officers who are on duty will incur liability under
Georgian legislation, while Article 173 of the [CAO] expressly defines liability for
disobeying the lawful orders of the police officers ..., verbally insulting them and/or
carrying out insulting actions towards them... Accordingly, the court considers that
actions insulting the dignity of police officers – calling them ‘slaves’ and throwing
beans at them while noting that beans used to be gruel for slaves – cannot be considered
a form of protest.
The court additionally refers to section 111(1) of the Assemblies and Demonstrations
[Act], which authorises [the police] to clear the road ... in the event of the partial or full
blocking of a road ... by the participants in an assembly or a demonstration if the number
of the participants allows the holding of [those events without blocking the road]. ...
The court considers, from a combined analysis of the parties’ explanations, video
recordings and other evidence available in the case, that a need to block the road has
not been demonstrated in the present case. Accordingly, the individual charged with the
administrative offence did not have a right to occupy it and ... the police officers’
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repeated requests to have the road cleared to allow [cars] to circulate were lawful [but]
not complied with ...”
21. As regards the sanction of the eight-day custodial sentence imposed
on the applicant, the court cited Articles 33 and 35 of the CAO (see
paragraph 25 below) and reasoned that “in view of the applicant’s personality
and the degree [of seriousness] of his actions”, the imposition of a fine or a
verbal reprimand would not ensure the attainment of the objectives of
punishment.
22. On 1 December 2019 the applicant lodged an appeal against the
Tbilisi City Court’s decision. Among other things, he complained that the
trial court had relied exclusively on the police officers’ account and that any
doubt should have benefited him, according to the principles applicable in
criminal proceedings. He also stated that it remained unclear what lawful
orders he had disobeyed and noted that in circumstances where the trial court
had acquitted him of the charge under Article 166 of the CAO, his arrest and
conviction for the breach of Article 173 of the CAO had been devoid of
justification. The applicant submitted in this regard that it had been the police
who had blocked the road and that he physically could not have blocked it
and that he had not insulted the officers. The applicant also stated that he had
been unable to meet with his lawyer before the court hearing despite the
lawyer’s attempt to secure a meeting through the bailiff of the court (no
evidence appears to have been presented on that account). The applicant did
not complain about his removal from the courtroom.
23. On 2 December 2019, in a final decision (served on the applicant on
19 December 2019), the Tbilisi Court of Appeal rejected the applicant’s
appeal as inadmissible. The appellate court found that the parties to the
proceedings had been given the opportunity to argue their case and the trial
court had correctly assessed all the relevant evidence. It thus upheld the lower
court’s findings, stating that the applicant had not adduced any evidence or
referred to newly discovered circumstances surrounding his
administrative-offence case which would have warranted the re-examination
of his case on the merits.
24. Section 9(3) of the Act provides as follows: “the blocking of entrances
to buildings ... during an assembly or a demonstration shall be prohibited.”
Section 11(2)(e) provides that it is “prohibited ... to deliberately obstruct
traffic”. Section 111 provides that in the event of participants in a
demonstration partially or completely blocking a road used by cars, the police
have the right to decide to clear the road and/or restore the movement of
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vehicles if blocking the road “is not made necessary by the number of
participants in an assembly or a demonstration.”
THE LAW
29. Relying on Article 6 §§ 1 and 3 (b) and (c) of the Convention, the
applicant complained that his right to a fair trial had been breached on account
of his removal from the courtroom and the resulting inability to defend
himself in person and because he had been unable to consult a lawyer of his
choice either before or during the trial. He also complained that the trial court
had primarily relied on the police officers’ statements. Article 6 of the
Convention, in so far as relevant, provides as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled
to a fair ... hearing ...
3. Everyone charged with a criminal offence has the following minimum rights:
...
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(b) to have adequate time and facilities for the preparation of his defence; ...
(c) to defend himself in person or through legal assistance of his own choosing ...”
30. The Government did not raise an objection regarding the exhaustion
of domestic remedies. They submitted that, in so far as the applicant’s contact
with the defence lawyer was concerned, the applicant had failed to present
any evidence that such contact had been attempted or that the police had
refused to allow the lawyer’s access to the applicant, in breach of the domestic
legislation. As for the applicant’s removal from the courtroom, the
Government stated that it had been his own unruly and disrespectful
behaviour towards the judge, in the face of multiple warnings by the latter,
that had been the reason behind his removal for contempt of court. Any
restriction related to his absence from the proceedings had therefore been
attributable to the applicant himself. The Government also stated that the
domestic courts had based their findings on multiple items of evidence,
including the video material depicting the incident, giving sufficient reasons
for the applicant’s conviction.
31. The applicant reiterated his complaints (see paragraph 29 above).
32. The relevant general principles have been summarised in the cases of
Idalov v. Russia ([GC], no. 5826/03, § 176, 22 May 2012), Huseynli
and Others v. Azerbaijan (nos. 67360/11 and 2 others, §§ 110-12 and 125-27,
11 February 2016) and Makarashvili and Others v. Georgia (nos. 23158/20
and 2 others, § 57, 1 September 2022).
33. Turning to the circumstances of the present case, the Court observes
that the applicant did not submit, even in response to the Government’s
objection to that effect, any proof other than the account of the lawyer
representing him at domestic level indicating that she had attempted to visit
and consult with the applicant and that the authorities had hindered her access.
Nor does such evidence appears to have been made available at domestic
level. Specifically, while the applicant’s lawyer noted at domestic level that
she had been unable to meet the applicant prior to the trial as she had been
unaware of his place of detention until the moment the police had brought the
applicant before the court, that hearing was adjourned for more than three
hours and she was free to visit the applicant in detention. However, once the
trial resumed, the lawyer continued to maintain that she had been unable to
meet with the applicant, without providing a plausible explanation or
submitting any proof of an unsuccessful attempt to meet with him (see
paragraphs 14-15 above). Nor did she lodge a complaint in that respect,
despite the trial judge’s direction (see paragraph 14 above). In such
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charges against him was dropped apparently for lack of evidence, despite the
police officers’ statements. As regards the applicant’s conviction, there was
evidence other than the police officers’ accounts in the case file, including
video-recordings of the applicant’s arrest. The Court does not, therefore, find
that the trial court’s reasoning as regards its approach to evidence in practice
shifted the burden of proof onto the applicant (ibid., § 63). By contrast, as
concerns the related but distinct question as to whether the reasons adduced
by the domestic courts in support of the applicant’s conviction were in line
with Convention standards in the context of justifying an interference with
his rights under Articles 10 and 11 of the Convention, the matter – which was
not in any event formulated as a separate complaint under Article 6 of the
Convention – will more appropriately be dealt with in the context of the
applicant’s complaints under Articles 10 and 11 (see paragraphs 39-62
below).
38. In the light of the foregoing, the Court concludes that the proceedings
against the applicant were conducted in compliance with the requirements
under Article 6 §§ 1 and 3 (b) and (c) of the Convention. The Court finds the
applicant’s related complaints manifestly ill-founded.
This part of the application must therefore be rejected in accordance with
Article 35 §§ 3 (a) and 4 of the Convention.
39. The applicant argued that his arrest at a demonstration and the
imposition of a custodial sanction in respect of administrative offences had
amounted to an interference with his rights to freedom of expression and
freedom of assembly, in breach of Articles 10 and 11 of the Convention. The
relevant provisions, in so far as relevant, read as follows:
Article 10
“1. Everyone has the right to freedom of expression. This right shall include freedom
to hold opinions and to receive and impart information and ideas without interference
by public authority and regardless of frontiers ...
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, in the interests of national security,
territorial integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights of others,
for preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.”
Article 11
“1. Everyone has the right to freedom of peaceful assembly and to freedom of
association with others ...
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2. No restrictions shall be placed on the exercise of these rights other than such as are
prescribed by law and are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the protection of
health or morals or for the protection of the rights and freedoms of others ...”
A. Admissibility
40. The Government submitted that the applicant had failed to institute
civil proceedings against the police.
41. The applicant stated that the remedy in question had been redundant.
42. As regards the exhaustion of domestic remedies, the Court observes
that the applicant did, in the course of the administrative-offence proceedings
against him, raise a complaint – in substance – regarding his right to freedom
of expression. The trial court expressly addressed the matter and the appellate
court endorsed the lower court’s findings (see paragraphs 17 and 23 above).
The applicant was not therefore required to institute separate civil
proceedings following the rejection of his arguments in the
administrative-offence proceedings against him (see Makarashvili
and Others, cited above, § 70). The Government’s objection in this regard
should therefore be rejected.
43. The Court additionally notes that this complaint is not manifestly
ill‑founded or inadmissible on any other grounds listed in Article 35 of the
Convention. It must therefore be declared admissible.
B. Merits
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45. The applicant stated that his complaints should be examined under
Article 11 of the Convention, taking into account Article 10, considering the
two provisions to be complementary where the expression of political protest
was concerned. He noted that he had been arrested “after he staged his
political performance”, which had consisted in throwing beans “into the air”.
The applicant submitted that his performative and verbal protest had not been
directed at particular police officers but had been concerned with any police
officer who acted unlawfully – a form of expression protected under the right
to freedom of speech. He also contested the domestic courts’ findings that he
had blocked the road during the protest and that the officers’ request to clear
it had been lawful. The applicant stated that the interference with his rights
protected under the Convention had not been prescribed by law, had not
pursued a legitimate aim and had not been necessary in a democratic society.
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complained of in the light of the case as a whole and determine, after having
established that it pursued a “legitimate aim”, whether it answered a “pressing
social need” and, in particular, whether it was proportionate to that aim and
whether the reasons adduced by the national authorities to justify it were
“relevant and sufficient”. In so doing, the Court has to satisfy itself that the
national authorities applied standards which were in conformity with the
principles embodied in Article 11 and, moreover, that they based their
decisions on an acceptable assessment of the relevant facts (see Kudrevičius
and Others, cited above, § 143, and Körtvélyessy v. Hungary, no. 7871/10,
§ 26, 5 April 2016).
50. The proportionality principle demands that a balance be struck
between the requirements of the purposes listed in paragraph 2 on the one
hand, and those of the free expression of opinions by word, gesture or even
silence by persons assembled on the streets or in other public places, on the
other (see Kudrevičius and Others, cited above, § 144).
51. The nature and severity of the penalties imposed are also factors to be
taken into account when assessing the proportionality of an interference in
relation to the aim pursued. Where the sanctions imposed on the
demonstrators are criminal in nature, they require particular justification. A
peaceful demonstration should not, in principle, be rendered subject to the
threat of a criminal sanction, and notably to deprivation of liberty. Thus, the
Court must examine with particular scrutiny the cases where sanctions
imposed by the national authorities for non-violent conduct involve a prison
sentence (see Kudrevičius and Others, cited above, § 146, and Chernega
and Others v. Ukraine, no. 74768/10, § 221, 18 June 2019).
52. As regards the relevant principles under Article 10 of the Convention,
the Court has consistently held that freedom of expression constitutes one of
the essential foundations of a democratic society and one of the basic
conditions for its progress and for each individual’s self-fulfilment. Subject
to paragraph 2 of Article 10, it is applicable not only to “information” or
“ideas” that are favourably received or regarded as inoffensive or as a matter
of indifference, but also to those that offend, shock or disturb. Such are the
demands of pluralism, tolerance and broadmindedness without which there is
no “democratic society”. As enshrined in Article 10, freedom of expression
is subject to exceptions which must, however, be construed strictly, and the
need for any restrictions must be established convincingly (see Von Hannover
v. Germany (no. 2) [GC], nos. 40660/08 and 60641/08, § 101, ECHR 2012;
Couderc and Hachette Filipacchi Associés v. France [GC], no. 40454/07,
§ 88, ECHR 2015 (extracts); and Satakunnan Markkinapörssi Oy
and Satamedia Oy v. Finland [GC], no. 931/13, § 124, 27 June 2017).
53. The limits of acceptable criticism in respect of public officials
exercising their powers may admittedly in some circumstances be wider than
in relation to private individuals. However, it cannot be said that officials
knowingly lay themselves open to close scrutiny of their every word and deed
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them. Additionally, the conduct in question did not result in any escalation of
the circumstances on the ground (compare and contrast Osmani and Others
v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99,
ECHR 2001-X). Furthermore, the demonstration itself was peaceful, with a
great number of people participating. With his contested conduct the
applicant – a politician – was seemingly conveying his opinion that the police
officers had supported the ruling party which had been at the source of the
failed reform (see paragraphs 55 and 57 above). While the Court’s reasoning
should not be taken as an approval of the manner in which the applicant
expressed his views, it must be recalled that Article 10 protects not only the
substance of the ideas and information expressed, but also the form in which
they are conveyed (see Gül and Others, cited above, § 41).
60. Accordingly, even if the applicant’s conduct could justify an
intervention by the authorities (see paragraph 57 above), they must have
borne in mind that the custodial sanction in the present case was being applied
in the context of the exercise of a fundamental freedom, thus calling for a
particularly careful approach. By contrast, none of the elements identified
above were addressed as part of the domestic courts’ reasoning regarding
their decision to impose the custodial sanction. Additionally, the Court does
not consider that the grounds cited in the trial court’s judgment – the
applicant’s “personality” and the “seriousness” of the conduct attributed to
him – were sufficient, without further elaboration, to render a sanction of
eight days’ administrative detention proportionate. Specifically, while the
reference to the applicant’s “personality” may have concerned his history of
administrative-offence convictions and the related argument made before the
trial court (see paragraph 17 above), it does not appear that the conditions
provided for by law for treating such considerations as an aggravating factor
had been met as the applicable legal provisions did not allow taking into
account previous administrative sanctions older than one year (see
paragraph 26 above). Accordingly, this element alone was not, without
appropriate reasoning, sufficient to justify the imposition of a custodial
sanction for the applicant’s non-violent, even if disruptive, conduct. As
regards the “seriousness” of the applicant’s conduct, this appears to refer to
the necessity of punishment in general rather than the proportionality of the
chosen measure and cannot therefore be considered sufficient to justify the
imposition of a custodial term, however short, in the context of the applicant’s
exercise of his rights to freedom of expression and assembly.
61. Having regard to the foregoing, the Court concludes that the domestic
courts failed to adduce sufficient reasons to justify the proportionality of the
interference in the present case.
62. There has therefore been a violation of Article 11 of the Convention
read in the light of Article 10.
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2. Holds that there has been a violation of Article 11 of the Convention read
in the light of Article 10;
3. Holds
(a) that the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200 (one thousand two
hundred euros), in respect of non-pecuniary damage, to be converted
into the currency of the respondent State at the rate applicable at the
date of settlement;
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(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a
rate equal to the marginal lending rate of the European Central Bank
during the default period, plus three percentage points;
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