In the case of Kakabadze and Others v. Georgia,
The European Court of Human Rights (Third Section), sitting as
a Chamber composed of:
Josep Casadevall, President,
Egbert Myjer,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 11 September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
1484/07) against Georgia lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by five Georgian nationals, Mr Irakli Kakabadze (“the first
applicant”), Mr Lasha Chkhartishvili (“the second applicant”), Mr Jaba
Jishkariani (“the third applicant”), Mr Zurab Rtveliashvili (“the fourth
applicant”) and Mr Davit Dalaksihvili (“the fifth applicant”) on 28
December 2006.
The applicants were represented by Ms Sopio
Japaridze and Ms Natia Katsitadze, members of the Georgian Young Lawyers’
Association (GYLA) in Tbilisi, as well as by Mr Philip Leach, of the
European Human Rights Advocacy Centre (EHRAC) in London. The Georgian
Government (“the Government”) were represented by their Agent, Mr Levan
Meskhoradze of the Ministry of Justice.
On 2 November 2009 the Court decided to give
notice to the respondent Government of the applicants’ complaints under
Articles 5 § 1, 6 §§ 1 and 3 (c), 10 and 11 of the
Convention and Article 2 of Protocol No. 7. It was also decided to rule on
the admissibility and merits of the application at the same time (Article 29 §
1).
The parties submitted observations on the
admissibility and merits of the communicated complaints (Rule 54A of
the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The first, second, third, fourth and fifth applicants
were born in 1969, 1980, 1985, 1967 and 1984 respectively and live in Tbilisi. They are members of the Equality Institute, a Georgian non-governmental
organisation established in February 2004 (“the NGO”). As part of its
activities aimed at monitoring of the penal and law-enforcement authorities and
promotion of the independence of the judiciary, the NGO held public press
conferences and street demonstrations denouncing various serious human-rights
abuses allegedly committed by the Ministry of the Interior and in Georgian prisons.
A. The incident of 29 June 2006
At around 2.20 p.m. on 29 June 2006 the
applicants began a demonstration outside the Tbilisi Court of Appeal to express
their support for Mr Shalva Ramishvili and Mr Davit Kokhreidze, owners of the 202 private
television channel, who were on trial that day. The case of Ramishvili and
Kokhreidze received considerable public attention at that time (for more
details see Ramishvili and Kokhreidze v. Georgia, no. 1704/06,
§§ 9-66, 27 January 2009).
As disclosed by the applicants’ written
statements drafted on 4 and 5 July 2006 as a reminder of the exact
circumstances surrounding the incident of 29 June 2006 (“the applicants’
written statements”), they entered the yard of the Tbilisi Court of Appeal
through the main gates; the security guards noticed that one of the applicants
was carrying a megaphone but did not object. The applicants stopped ten to
twenty metres from the court-house, and the first applicant, using the
megaphone, began uttering the following slogans:
“We should not have political prisoners in Georgia! ... We urge you to obey justice and not the private interests of a number of high
officials! ... Give me justice or give me death! ...”.
Furthermore, taking the view that the existing
situation concerning human rights in Georgia was similar to the terror
unleashed by the Soviet State in the late 1930s, the first applicant
disdainfully referred to the Minister of the Interior, Mr V.M., as “Lavrentiy
Beria’s bastard”. According to the written statements of the fourth and fifth
applicants, they also called for the immediate release of Mr Ramishvili
and Mr Kokhreidze, as unlawfully detained, and urged the Tbilisi Court of
Appeal “not to become an accomplice of the criminal activities of the [Minister
of the Interior]”.
According to the applicants, nothing was
displayed or addressed to the court which could be construed as contempt: this could
be confirmed by independent eyewitnesses to the incident, as well as by the
images filmed by a cameraman from the 202 television channel (see a description
of the video recording submitted by the applicants in paragraphs 23-27 below).
The first applicant’s speech had lasted some
three minutes when several uniformed court bailiffs approached the applicants
and, allegedly without prior warning or explanation, restrained them by force.
The applicants were then taken into the court-house and locked in the bailiffs’
duty room.
According to the applicants’ written statements,
no record of their arrest was drawn up on the spot. In any event, they were not
shown or asked to sign any such document. On the contrary, the bailiffs
reassured the applicants that they were not formally under arrest, that it was
a simple misunderstanding and that they would soon be released.
The case file, however, contained five separate
records, on the arrest of each applicant. Those records indicated the name of
the drafting bailiff as well as the name, date of birth, address and full
serial number of the identification card of each of the applicants. The
documents further stated that the applicants had been arrested at around 2.20
p.m. on the basis of section 76(3) § 1 (f) of the Courts of Common Jurisdiction
Act of 13 June 1997 (“the Courts Act”). In particular, the offenders had
“breached public order”, which took the form of “contempt of court, insults,
disregard of the bailiffs’ lawful orders to stop the wrongdoing, resistance to
the bailiffs, attempts to influence the court by actions and verbal
expressions, impeding the administration of justice, and so on”. All the
records contained an entry, made in the drafting bailiff’s handwriting
indicating that the applicants had “refused to sign this record or to receive a
copy thereof”. The President of the Tbilisi Court of Appeal and the police were
immediately informed of the offence and of the applicants’ arrest.
According to the applicants, these records of
their arrest were drafted and added to the file concerning their case ex
post factum.
Having been confined in the duty room of the
court-house in complete unawareness of the reasons for their detention for some
three hours, the applicants were transferred by the police to an Interior
Ministry remand centre; the case file contains an excerpt from the relevant
prison log showing that the fourth applicant entered the remand centre at 5.45 p.m.
The case file also contained explanatory memos from
three court bailiffs who had participated in the applicants’ arrest. Those
memos were half-page handwritten documents containing similar phrases, and were
addressed to the Chief of the Bailiff Service of the Tbilisi Court of Appeals. Thus,
according to those documents, the applicants, “standing near the public
entrance of the court at around 2.20 p.m.”, had started “demanding the release
of political prisoners” and “insulting the court by their expressions and
actions”. One of the bailiffs added in his memo that the applicants’ actions
had amounted to an encroachment upon the court’s independence and impartiality,
whilst another submitted that the wrongdoers had been trying to influence the
court. All three bailiffs stated that, prior to resorting to the measure of
arrest, they had requested the applicants to stop the disturbance.
When they were transferred to the remand centre
the applicants learnt that they had been detained on the basis of a decision of
29 June 2006 issued by the President of the Tbilisi Court of Appeal.
B. The decision of 29 June 2006
As disclosed by the decision of 29 June 2006, a
one-page document, the President of the Tbilisi Court of Appeal, Mrs E.T.,
sitting privately and without holding an oral hearing, decided, on the basis of
the bailiffs’ written submissions alone, to detain the applicants for thirty
days under Article 208 § 6(1) of the Code of Criminal Procedure (“the
CCP”). Thus, she took note of the bailiffs’ version of the incident of 29 June
2006 (see paragraph 15 above), namely that “[the applicants], who
were inside the court building, in its central entrance, were breaching public
order, obstructing the normal functioning of the court and seeking to influence
the court with respect to proceedings in a particular case”. Despite the
bailiffs’ request that they stop the disturbance, the applicants persisted with
their conduct, which took the form of “verbal expressions and actions”. The
President concluded that the applicants had “breached public order, shown
manifest and gross contempt towards the court and endangered the administration
of justice.”
The operative part of the decision of 29 June
2006 indicated that no appeal lay against it, that the applicants were to serve
their sentence in remand centre no. 2 of the Ministry of the Interior (see
paragraph 16 above) and that the Tbilisi police department was responsible
for its execution.
C. Subsequent developments
On 21 July 2006 the applicants, referring to the
suspension of the operation of Article 208 § 7 of the CCP by the
Constitutional Court’s decision of 20 July 2006 (see the Constitutional Court’s
judgment of 15 December 2006 at paragraphs 42-47 below) and arguing that
their detention was an administrative penalty, requested the Supreme Court of
Georgia to examine their complaint against the decision of 29 June 2006 under
Article 279 of the Code on Administrative Offences (“the CAO”). They
complained that the President of the Tbilisi Court of Appeal had committed a
manifest miscarriage of justice by punishing them under Article 208 of the CCP,
which provision clearly envisaged liability only for acts committed inside
court buildings; a video recording of the applicants’ demonstration was
submitted to show that it had taken place in the yard of the Tbilisi Court of
Appeal. Thus, the applicants argued that the above-mentioned provision could
not be considered a foreseeable and therefore legitimate basis for their
conviction and detention. They further complained that the President of the
Tbilisi Court of Appeal had violated the principles of a fair trial by delivering
her decision entirely on the basis of the one-sided account provided by the
bailiffs. The applicants also complained that the President had chosen the
severest sanction of those available under Article 208 of the CCP.
On 26 July 2006 a Supreme Court judge, Mr Z.M.,
examined, in absentia, the applicants’ complaint of 21 July 2006
and dismissed it. The date of that examination was not communicated to the
applicants in advance.
As disclosed by the decision of 26 July 2006,
Judge Z.M. first noted that the suspension of Article 208 § 7 of the CCP did
not automatically entitle the applicants to lodge an appeal against their
detention. However, acknowledging that their detention was, by its nature, an administrative
penalty, he ruled that the complaint of 21 July 2006 against the penalty could
be examined under Article 279 of the CAO. Judge Z.M. went on to criticise the
applicants for abusing their right to freedom of expression. He found it
established from the case materials that the applicants had truly exhibited
“manifest and gross contempt” towards the Tbilisi Court of Appeal by committing
those acts “inside the court building, namely in its central entrance hall”. In
any event, the aim of Article 208 § 6(1) of the CCP was, in the
opinion of Judge Z.M., to protect public order not only inside court-houses but
also outside them, in adjacent premises. The President of the Court of Appeal
had no other choice but to sanction the applicants under Article 208 § 6(1)
of the CCP, since what was at stake in the given situation was “not the judge’s
own interests but the authority of the court and the proper administration of
justice”. In reply to the complaint that the President of the Court of Appeal
had made her decision entirely on the basis of one-sided submissions, Judge
Z.M. stated that all the evidence - the records of the applicants’ arrest and
the explanatory notes - had been drafted and submitted by the bailiffs for
consideration by the President in accordance with a procedure envisaged by law.
Judge Z.M. also stated that the thirty days’ detention had been an appropriate
punishment, given the gravity of the acts committed.
The period of the applicants’ detention expired
and they were released on 28 July 2006.
D. The video recording of the incident of 29 June 2006
The recording showed excerpts from a television
programme prepared by the 202 channel concerning the incident of 29 June 2006.
The first scene briefly showed several uniformed
bailiffs restraining some of the applicants in the yard of the Tbilisi Court of
Appeal. The first applicant, holding a megaphone, was hustled by the bailiffs
towards the central entrance of the court-house. At the end of the scene, a man’s
hand was placed over the lens of the camera.
In a later episode of the programme, the
President of the Tbilisi Court of Appeal, Mrs E.T., was shown at a press
conference concerning the applicants’ arrest. She stated:
“... five individuals, ... who have shown such direct and gross
contempt towards the court and breached public order in the court... I will
impose upon them, by my ruling, a form of detention for thirty days, and this
will be another good example [of the fact] that respect towards courts and the
maintenance of public order in court will be protected very strictly.”
(“...xuT
monawiles am aqciis,...
romlebmac aseTi pirdapiri da uxeSi upativcemuloba gamoxates sasamarTlos mimarT
da daarRvies wesrigi sasamarTloSi ... me gamoviyeneb Cemi gankargulebiT ocdaaTdRiani
dapatimrebis formas maT mimarT da es iqneba kidev erTxel kargi magaliTi
imisaTvis, rom pativiscemis gamoxatva sasamarTlos mimarT da sasamarTloSi
wesrigis dacva iqneba Zalian mkacrad daculi.”)
The commentator of the programme noted that,
prior to taking office as President of the Tbilisi Court of Appeal, Mrs E.T.
had served as deputy to Mr V.M., the Minister of the Interior.
The remaining scenes in the broadcast showed
interviews with the applicants’ advocates and supporters, some of whom stated
that the applicants could not be held liable under Article 208 of the CCP, because
their actions had taken place outside the court building.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Act of 13 June 1997 on Courts of Common
Jurisdiction, as worded at the material time
Section 76(3) § 1 listed court bailiffs’ rights
and responsibilities:
Section 76(3)
“1. Bailiffs shall
(a) ensure the safety of judges, parties to proceedings and
witnesses;
(b) maintain order inside the court-house and hearing rooms;
(c) enforce the instructions of the President of the court
and of the hearing judge concerning the maintenance of order;
(d) protect the court-house;
(e) ensure that hearing rooms are well prepared for the
conduct of proceedings...;
(f) prevent offences from being committed inside the court-house,
identify offenders and, if necessary, arrest them for the purpose of handing
them over to the police, and draft a written record on such arrests...;
(g) exercise all other powers envisaged by law.”
Section 76(3) § 2 (a) gave bailiffs the right to
resort to physical force, to “special equipment” and even to firearms in the
exercise of their duties. Section 76(4) §§ 1 and 4 specified that the
above-mentioned right could be exercised only if other less severe measures of
constraint had been shown to be ineffective, and that bailiffs were obliged to
issue a verbal warning to the persons concerned prior to resorting to force.
B. The Code of Criminal Procedure (“the CCP”),
as worded at the material time
Article 208, on the basis of which the
applicants were sanctioned by the decision of 29 June 2006, read as follows:
Article 208:
“Liability for breach of public order in court”
“1. The President of the court shall ensure the maintenance of
public order in the court, whilst the presiding judge shall be responsible for
maintaining order during the hearing of cases...
2. A party to the proceedings, or any other person who has
either breached public order during a hearing, or disregarded the presiding
judge’s ruling or is in contempt of court, shall be fined and/or expelled from
the courtroom. If the person expelled from the courtroom continues to breach
such an order, the detention envisaged by this Article may be imposed upon him
or her....
6. If manifest and gross contempt of court has been shown, the
judge presiding over the hearing may issue a decision to detain the offender
for up to thirty days. Such a decision shall be enforced immediately....”
6(1). In the event of a breach of public order or contempt
committed inside the court building, the President of the court shall be
entitled to apply the measures envisaged by this Article against the offender.
7. So far as the current Article is concerned, the decisions of
the presiding judge and of the President of the court shall be delivered by
on-the-spot deliberations and without an oral hearing, and no appeal shall lie
against them.”
Subsequent to the Constitutional Court judgments
of 15 December 2006 (see paragraphs 42-47 below), Article 208 of the CCP
was significantly revised on 29 December 2006. Thus, the newly added
paragraph 8 of that provision explicitly gave the court bailiffs the power to
arrest a person who had either “breached public order in the court, was in contempt,
or had obstructed the normal functioning of the court”. Bailiffs were obliged
to draw up a record of such arrests and to bring the offenders before the
President of the relevant court within twenty-four hours. The President had further
twenty-four hours to issue a decision on whether to punish the
offender. Paragraphs 10 and 11 of the amended Article 208 further
stated that proceedings concerning the imposition of detention on an offender
should always be adversarial, and conducted at an oral hearing at which the
offender would be given an opportunity to defend him or herself. Should the
President decide to detain the offender, the latter was entitled to lodge an
appeal against that decision with the higher court within the next forty-eight
hours.
C. The Code on Administrative Offences, as worded at
the material time
The Code was adopted on 15 December 1984, when Georgia was part of the Soviet Union. Subsequently, numerous amendments were introduced. At the
material time the relevant provisions of this Code read as follows:
Article 10: “The
notion of an administrative offence”
“An administrative offence is a wrongful action or omission,
committed either deliberately or by negligence, which contravenes the State or
public order, the rules on Governance, property or citizens’ rights and
freedoms, and which attracts administrative liability.
Administrative liability shall be imposed only in those cases
where the offences envisaged under the present Code do not call for criminal
liability in the light of the applicable legislation.”
Article 24 § 1 listed the forms of
administrative penalties, of which administrative detention was the severest.
Pursuant to Article 32 § 1, administrative detention could be
imposed by a district (city) court, only as an exception, for certain types of
administrative offences and for a period not exceeding thirty days.
Article 244 provided for measures of restraint
in administrative proceedings, such as administrative arrest, search of the
person or of objects, seizure of objects and of documents. Those measures,
including arrest, could be used “in order to prevent an administrative offence...,
to ensure a timely and proper examination of an administrative case, and to
enforce any decision or ruling delivered in such a case”.
Article 246 contained an inclusive list of those
authorities which were empowered to effectuate an administrative arrest. Court
bailiffs were not among them.
Pursuant to Article 247, administrative arrest must
not exceed three hours, unless specific statutes provided for longer terms
“in cases of exceptional need”.
Articles 252, 263 and 264 contained procedural
and substantive rules on the conduct of administrative proceedings, and were
similar to those normally applicable to criminal proceedings in court. In
particular, a person charged with an administrative offence to fundamental
procedural rights such as the right to examine the case materials, to submit
arguments and evidence and requests, to benefit from legal assistance during
the examination of the case, to plead in his or her native language or to be
assisted by an interpreter, and to appeal against procedural rulings. An
administrative case was always to be examined in the presence of the charged
person during an oral hearing; in absentia proceedings could take place
only if that person had been duly summoned but had failed to appear.
Pursuant to Articles 271 and 279, no appeal lay,
as a general rule, against a court decision convicting a person of an
administrative offence and imposing a penalty. However, a final decision could
be quashed by means of an extraordinary review. These provisions read as
follows:
Article
271 § 2: “The right to lodge an appeal...”
“2. The city (district) court’s
decision to impose an administrative penalty is final and not subject to an
appeal in administrative proceedings, except for those cases where a law holds
otherwise.”
Article 279: “Review
of a case...”
“The administrative judge’s (court’s) decision concerning an
administrative offence can be quashed or amended by the delivering judge
(court) at a prosecutor’s request and, whether or not such a request has been
lodged, by the President of the superior court...”
D. The Civil Code and the Code of Civil Procedure, as
worded at the material time
Article 413 of the Civil Code, explaining the
notion of non-pecuniary damage, read as follows:
Article 413 § 1: “Non-pecuniary
damage”
“1. Non-pecuniary damage, which amount should be reasonable and
equitable, can be claimed exclusively in the situations explicitly envisaged by
law.
2. An individual is entitled to request compensation for
non-pecuniary damage caused in respect of damage to his or her health.”
Article 1005 of the Civil Code specified that
State agencies were jointly liable for damage caused to a private party by
intentional or negligent actions on the part of their officials, including such
particular instances, the existence of which should first be established by a
court, as unlawful conviction for a criminal or administrative offence or
imposition of unlawful detention.
Subsequent to Article 423 § 1 (f) of the Code of
Civil Procedure, a final judgment (decision) in a civil case could be
reconsidered on the basis of newly discovered circumstances. Grounds for such
reconsideration were, amongst others, factual circumstances or evidence which,
had they been submitted to the domestic courts pending the original examination
of the case, would have led to a different outcome.
E. The Constitutional Court’s judgment of 15 December
2006 in the case of “Masurashvili and Mebonia v. the Parliament of Georgia”
The case originated in constitutional appeals by
two advocates who had been detained under Article 208 § 6 of the CCP for breach
of public order and contempt of court committed in courtrooms during the oral
hearing of criminal cases.
In a decision of 20 July 2006, the
Constitutional Court declared the constitutional appeals admissible for an
examination on the merits, and suspended the operation of Article 208 § 7
of the CCP pending the proceedings.
In a judgment of 15 December 2006, the Constitutional Court abrogated Article 208 § 7 of the CCP as unconstitutional.
In its reasoning, the Constitutional Court,
referring to the Court’s case-law, found that Article 6 § 1 of the
Convention applied under its “criminal head” to the proceedings under Article
208 of the CCP. It further reasoned that those proceedings, which entitled the
hearing judge to convict a person of a breach of public order/contempt of court
by on-the-spot deliberations, without holding an oral hearing,
negated the most fundamental safeguards of a fair trial, such as the right to
equality of arms and adversarial proceedings, the right to have adequate time
and facilities for the preparation of the defence, and so on.
The Constitutional Court stated that, by denying
a person convicted under Article 208 of the CCP the right to lodge an appeal,
paragraph 7 of that provision violated Article 42 § 1 of the Constitution
and Article 2 of Protocol No. 7. In support of the latter
finding, the Constitutional Court referred to the Court’s judgment in the case
of Gurepka v. Ukraine (no. 61406/00, §§ 59-62, 6 September
2005).
In its judgment, the Constitutional Court also
criticised the definition of the offence of contempt of court, as contained in
paragraph 6 of Article 208 of the CCP, as vague. Notably:
“the offence prescribed by the disputed provision is not
clearly formulated... and the interpretation may be ambiguous due to the lack
of specificity and vagueness of the provision.... Where the legislation
introduces a sanction such as detention, an offender must clearly understand
the nature of the offence for which he is subjected to detention and, on the other
hand, the judge applying the law should be able to do so correctly and
adequately. ...
[I]n the Constitutional Court’s view, achieving and maintaining
such important purposes as the protection of the authority of the courts
and the smooth functioning of the justice system should not be
carried out at the expense of the impairment of fundamental human
rights.”
THE LAW
I. ALLEGED VIOLATIONS OF ARTICLES 5 § 1, 6 §§ 1
AND 3 (c) AND ARTICLES 10 AND 11 OF THE CONVENTION
The applicants complained that their arrest,
conviction for breach of public order and contempt of court, and consequent
punishment by deprivation of liberty, as imposed by the President of the
Tbilisi Court of Appeal in her decision of 29 June 2006, was unlawful and
unfair, in breach of Articles 5 § 1 and 6 §§ 1 and 3 (c)
of the Convention.
The applicants further complained that their
arrest and detention had constituted an unlawful and unreasonable restriction
on their rights to freedom of expression and freedom of peaceful assembly,
contrary to Articles 10 and 11 of the Convention.
The relevant provisions of the Convention read,
in their relevant parts, as follows:
Article 5
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court; ...
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so.”
Article
6
“1. In the determination of ...
any criminal charge against him, everyone is entitled to a fair ... hearing ...
by [a] ... tribunal ...
3. Everyone charged
with a criminal offence has the following minimum rights: ...
(c) to defend himself
in person or through legal assistance of his own choosing ...”
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 ... public safety, for ...
maintaining the authority and impartiality of the judiciary.”
Article 11
“1. Everyone has the
right to freedom of peaceful assembly ...
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
The Government took the view that the applicants
had failed to exhaust domestic remedies as required by Article 35 § 1 of the
Convention. Thus, the applicants could have requested compensation for
non-pecuniary damage for their allegedly unlawful detention under Articles 413
and 1005 of the Civil Code (see paragraphs 39-41 above). Alternatively, they
could have requested the quashing of their conviction of 29 June 2006 and the
reopening of the relevant proceedings under Article 423 § 1 (f) of the Code of
Civil Procedure, in view of newly discovered circumstances.
The applicants disagreed, claiming, by reference
to a number of arguments, that the above-mentioned legal provisions were not
relevant to their case.
As regards the remedy under Article 423 § 1 (f)
of the Code of Civil Procedure, the Court notes its extensive case-law to the
effect that an application for retrial or similar extraordinary remedies either
in civil, criminal or administrative matters cannot, as a general rule, be
taken into account for the purposes of applying Article 35 § 1 of the Convention (see,
among many others, The Foundation Mrevli
v. Georgia (dec.), no. 25491/04, 5 May 2009; Galstyan v. Armenia, no. 26986/03,
§§ 39-42, 15 November 2007; and Sakhnovskiy v. Russia [GC], no. 21272/03,
§§ 40-45, 2 November 2010).
As to the suggested possibility of suing the
State for damages for the applicants’ allegedly unlawful detention under the
Civil Code, the Court reiterates that where lawfulness of detention is
concerned, an action for damages is not a relevant remedy, because the right to
have the lawfulness of detention examined by a court and the right to obtain
compensation for any deprivation of liberty incompatible with Article 5 of the
Convention are two distinct rights (see, among
others, Włoch
v. Poland, no. 27785/95, § 90, ECHR 2000-XI, and Khadisov
and Tsechoyev v. Russia, no. 21519/02, § 151, 5 February
2009, with further references). Indeed, noting that the applicants’ various
complaints are based on their arrest and detention, which they had duly
contested before the competent domestic court as unlawful, the Court dismisses
the Government’s objection of non-exhaustion (compare also with Schwabe and
M.G. v. Germany, nos. 8080/08 and 8577/08, §§ 48-50
and 93, ECHR 2011 (extracts)).
The Court further notes that this part of the
application is not manifestly ill-founded within the meaning of Article 35
§ 3 (a) of the Convention. It further notes that it is not
inadmissible on any other grounds. It must therefore be declared admissible.
B. Merits
1. Lawfulness of the arrest and detention
(a) The Government’s arguments
The Government submitted that the applicants’
arrest and detention fell under the exception contained in Article 5 § 1 (c) of
the Convention. Notably, they were arrested on suspicion of a breach of public
order and contempt of court, which actions constituted “offences” within the
meaning of that particular provision. As to the domestic legal basis for the
applicants’ deprivation of liberty, the Government referred to section 76(3) §
1 (f) of the Courts Act and Article 208 § 6(1) of the CCP, which entitled a competent
judicial authority to punish offenders by the imposition of detention (see
paragraphs 28 and 30 above). Alternatively, the Government suggested that the
applicants’ arrest and detention could also be considered to fall under Article
5 § 1 (b) of the Convention.
Whilst acknowledging that the literal wording of
section 76(3) § 1 (f) of the Courts Act referred only to court
bailiffs’ power to arrest people inside court-houses, the Government argued
that the provision should be read in a more interpretative manner, by having
regard to the general aim that was sought to be achieved by the legal provision
in question. Thus, since the essence of section 76(3) of the Courts Act was to
enable bailiffs to protect the administration of justice, it was only natural
for the applicants, who were insulting the Tbilisi Court of Appeal in its yard,
to assume that bailiffs of that court could have exercised their relevant
duties not only within the court-house but also on its protected territory
outside.
The Government further submitted that the
initial period of the applicants’ arrest, pending examination of the incident
by the President of the Tbilisi Court of Appeal, represented administrative
arrest, a form of restraint measure in administrative proceedings, within the
meaning of Article 244 of the CAO (see paragraph 34 above). The Government then
assured the Court that that arrest had not exceeded the maximum permissible
limit of three hours, as provided for by Article 247 of the CAO (see paragraph 36
above). In support, the Government referred to the fact that three hours and twenty-five
minutes had passed between the applicants’ arrest and the placement of one of
them in the remand centre of the Ministry of the Interior, the latter event
necessarily occurring after the delivery of the decision of 29 June 2006 (see
paragraphs 14 and 18 above); within that time more than twenty-five minutes
would have been spent on transporting the applicants from the court-house to
the place they were subsequently held in custody.
(b) The applicants’ arguments
The applicants replied that their arrest was
unlawful because it was clear that section 76(3) § 1 (f) of the Courts Act did
not empower bailiffs to arrest people outside a court-house; these officers
could only “prevent offences from being committed inside a court-house”. The
applicants complained that the overly extensive interpretation given to this
provision by the domestic courts and the respondent Government arbitrarily expanded
the territorial application of the bailiffs’ powers of arrest, which did not
meet the requirement of foreseeability and was thus unlawful within the meaning
of Article 5 § 1 of the Convention.
The applicants further submitted that at the
material time it was not clear which legal norms should have regulated the length
of their arrest. They contested the applicability of Article 247 of the CAO,
which set the statutory limit for administrative arrest, arguing that, as was
clearly stated in its Article 10, the Code of Administrative Offences only applied
to offences envisaged by that particular Code (see paragraph 32 above), whilst
the applicants had been found guilty and punished under Article 208 of the Code
of Criminal Procedure. On the other hand, if the Code of Administrative Offences
were to be considered applicable to their situation, then a clear problem would
arise under its Article 246, which excluded court bailiffs from the inclusive
list of those State agents who were authorised by law to effect administrative
arrests (see paragraph 35 above).
As to the basis for their subsequent punishment
by the imposition of detention for thirty days under Article 208 § 6(1) of the
CCP, the applicants stated that the provision similarly lacked foreseeability
and precision. In support of that argument, they referred to the relevant
findings of the Constitutional Court of Georgia, as well as to the subsequent
amendment of that provision on 29 December 2006, which in the applicants’
opinion constituted a tacit acknowledgment by the Georgian authorities of the
defective nature of the initial version of the provision (see paragraphs 30 and
31 above). The applicants reiterated that they could not reasonably have foreseen
that acts of theirs outside the court building could ever have led to their detention
under Article 208 § 6(1) of the CCP.
(c) The Court’s assessment
i. General principles
The Court reiterates that any deprivation of
liberty must, in addition to falling within one of the exceptions set out in
sub-paragraphs (a)-(f) of Article 5 § 1 of the
Convention (see Assanidze v. Georgia [GC], no. 71503/01, § 170,
ECHR 2004-II), be “lawful”. Where the “lawfulness” of detention is in
issue, the Convention refers essentially to national law and lays down the
obligation to conform to the substantive and procedural rules of national law
(see Saadi v. the United Kingdom
[GC], no. 13229/03, § 67, 29 January 2008). This primarily requires
any arrest or detention to have a legal basis in domestic law but also relates
to the quality of the law, requiring it to be compatible with the rule of law,
a concept inherent in all the Articles of the Convention (see Stafford
v. the United Kingdom [GC], no. 46295/99, § 63, ECHR 2002-IV,
and Kafkaris v. Cyprus [GC], no. 21906/04, § 116, ECHR 2008). “Quality
of law” in this sense implies that where a national law authorises deprivation
of liberty it must be sufficiently accessible, precise and foreseeable in its
application, in order to avoid all risk of arbitrariness (see, for instance, Nasrulloyev
v. Russia, no. 656/06, § 71, 11 October
2007, and Mooren v. Germany [GC],
no. 11364/03, § 76, 9 July 2009). The standard of “lawfulness” set by
the Convention thus requires that all law be sufficiently precise to allow
the person - if need be, with appropriate advice - to foresee, to a degree that
is reasonable in the circumstances, the consequences which a given action may
entail (see Baranowski v. Poland, no. 28358/95, § 52, ECHR 2000-III).
Compliance with national law is not, however,
sufficient. Article 5 § 1 of the Convention requires in addition
that any deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness (see Bozano v. France, 18 December 1986,
§ 54, Series A no. 111). It is a fundamental principle that no
detention which is arbitrary can be compatible with Article 5 § 1. The notion
of “arbitrariness” in Article 5 § 1 extends beyond lack of conformity
with national law, so that a deprivation of liberty may be lawful in terms of
domestic law but still arbitrary and thus contrary to the Convention (see Saadi, cited above, § 67). While the
Court has not previously formulated a global definition as to what types of
conduct on the part of the authorities might constitute “arbitrariness” for the
purposes of Article 5 § 1, key principles have been developed on a case-by-case
basis. Furthermore, detention will be “arbitrary” where, despite complying with
the letter of national law, there has been an element of bad faith on the part
of the authorities (see Giorgi Nikolaishvili v. Georgia,
no. 37048/04, § 53, 13 January 2009; Bozano,
cited above, § 59; and Saadi, cited
above, § 69) or where the domestic authorities have neglected to attempt to
apply the relevant legislation correctly (see Benham
v. the United Kingdom, 10 June 1996, § 47, Reports of Judgments and Decisions
1996-III, and
Liu v. Russia, no.
42086/05, § 82, 6 December 2007).
ii. Application of these principles to the
circumstances of the case
At the outset, the Court notes that it does not
need to answer the question of whether there could have been reasons for the
Georgian authorities to take measures against the perceived disturbance of the
public order or the need to enable the Tbilisi Court of Appeal to continue its
work without being disturbed by the noise made by the applicants demonstrating
outside the courthouse. What is at stake in the present case is the lawfulness
of the applicants’ deprivation of liberty. The Court further observes that it
is not in dispute between the parties that the applicants’ arrest and being
locked up in the duty room of the Tbilisi Court of Appeal by the bailiffs, as
well as their subsequent punishment by detention, as imposed by the President
of the Tbilisi Court of Appeal, represented a continuous situation of deprivation
of liberty within the meaning of Article 5 § 1 of the Convention.
It can be assessed as falling into two periods - before and after the applicants
were brought before the judge who sanctioned their detention in her decision of
29 June 2006.
As regards the first period of the applicants’
deprivation of liberty, the Court is ready to accept that since they were
arrested on the basis of a suspicion that they had committed the offences of
breach of public order and contempt of court, that period could fall within the
exception authorised by 5 § 1 (c) of the Convention (compare, for instance,
with Makhmudov v. Russia, no. 35082/04, § 80 and 81, 26 July 2007,
and Schwabe and M.G., cited above, § 70). However, exercising its power
to refer to the quality of the domestic law for the purposes of ascertaining
the “lawfulness” of a questioned period of detention (see paragraph 62 above),
the Court observes that the circumstances surrounding the applicants’ arrest
and being locked for some three hours in the duty room of the Tbilisi Court of
Appeal can hardly be held compatible with the relevant domestic provisions.
Thus, if the Court is to accept the Government’s
argument that the applicants were taken into custody on the basis of the Code
of Administrative Offences, and that their detention at that time fell within
the statutory limit of three hours permitted for such administrative arrest (see
paragraph 36 above), a clear problem would arise with respect to the powers of arrest
of court bailiffs as such. The Court notes that bailiffs were not amongst the
exhaustive list of those State agents who were empowered to conduct administrative
arrests under that Code (see paragraph 35 above).
On the other hand, as could be seen from the
verbatim records of the applicants’ arrest (see paragraph 12 above), their
arrest was linked to section 76(3) § 1 of the Courts Act, notably to
its sub-paragraph (f), which entitled bailiffs to arrest individuals
suspected of committing the offences of breach of public order and contempt of
court. However, that domestic provision, which stated that bailiffs could conduct
arrests “for the purpose of handing [offenders] to the police”, did not provide
for any statutory time-limit during which an arrested individual could be kept
in custody pending his or her appearance before a judicial officer.
Consequently, it remains largely unexplained on the basis of which domestic
legal provision, the court bailiffs took the liberty of locking the applicants up
in the duty room of the Tbilisi Court of Appeal for at least three hours. Indeed,
the Court notes that it was only subsequent to the applicants’ arrest on 29
June 2006 that the Georgian legislator finally fixed, on 29 December 2006, a
maximum permissible period for the duration of an arrest of an individual suspected
of having committed the relevant offences (see paragraph 31 above).
Another matter for the Court’s concern is that it
cannot be discerned with a sufficient degree of certainty either from section 76(3)
§ 1 (f) of the Courts Act, which served as the basis for the
applicant’s arrest, or from Article 208 § 6(1) of the CCP, which became the
basis for the subsequent finding of the applicants’ guilt, whether it was
legally possible to arrest individuals outside court-houses. The wording of
these provisions limited the territorial scope of both the court bailiffs’ powers
of arrest and the offences of breach of public order and contempt to the
interior of court buildings. That being so, the Court has certain doubts that
the applicants could have foreseen at the relevant time and to a degree that
was reasonable in the circumstances that their street picket in front of the
Tbilisi Court of Appeal could entail their arrest and detention under the
above-mentioned domestic provisions. It reiterates in this respect that
national law must be of sufficient quality and, in particular, must be
foreseeable in its application, in order to avoid all risks of arbitrariness
(see M. v. Germany, no. 19359/04,
§ 104, ECHR 2009).
As regards the second period of the applicants’
deprivation of liberty, their detention for thirty days, given that the
President of the Tbilisi Court of Appeal imposed that measure in her decision
of 29 June 2006 as a punishment for the offences of breach of public order and
contempt of court under Article 208 § 6(1) of the CCP, the Court considers that
that period can fall under the exception provided for under Article 5 § 1 (a)
of the Convention (see, for instance, Schwabe and M.G., cited above, § 74 and
83, and M. v. Germany, also cited above, § 87). However, the President
never discussed the major legal issue of whether the bailiffs had had the power
to arrest the applicants outside the court building and whether the applicants’
behaviour out of doors could legitimately attract liability under the relevant
domestic provisions. Her findings were based solely on the explanatory notes
provided by the court bailiffs and, similarly to those notes, the findings lacked
any detailed explanation and were strikingly succinct, and resulted in the
endorsement in her decision of the obviously untrue statement that the
applicants had committed the acts “inside the court building, in its central
entrance” (see paragraphs 12, 15 and 17 above). It is thus evident that the
judge was negligent in reviewing both the factual and the legal basis for the
applicants’ detention (compare with Hakobyan and Others v. Armenia, no.
34320/04, § 123, 10 April 2012), and
exercised her authority in manifest opposition to the elementary procedural
guarantees against arbitrariness provided for by the Convention (compare with Menesheva
v. Russia, no. 59261/00, § 92, ECHR 2006-III).
In the light of the foregoing the Court
concludes that the applicants’ arrest for some three hours could not be
considered to have been based on sufficiently clear and foreseeable domestic
provisions, whilst the subsequent imposition of detention for thirty days was made
in an arbitrary manner, without the requisite exercise of good faith on behalf
of the domestic authorities.
Accordingly, there has been a violation of
Article 5 § 1 of the Convention.
2. Right to a fair trial
(a) The parties’ arguments
Acknowledging the applicability of Article 6 § 1
of the Convention under its criminal head to the proceedings in question, the
Government submitted that the principles of equality of arms and adversarial
proceedings could not be considered to have been infringed by the absence of an
oral hearing before the President of the Tbilisi Court of Appeal, in so far as
that fact damaged the interests of both the applicants and the bailiffs equally.
The Government further contended that the applicants could still have attempted
to submit written comments in reply to the bailiffs’ written submissions before
the President had taken the relevant decision. The Government also submitted
that the decision of 29 June 2006 of the President of the Tbilisi Court of
Appeal contained relevant and sufficient reasons for the finding of the
applicants’ guilt under Article 208 § 6(1) of the CCP, which were then fully
endorsed by the Supreme Court of Georgia.
The applicants replied that they had had no
opportunity to communicate their views on the bailiffs’ explanatory notes,
which subsequently became the sole basis for their punishment by the President
of the Tbilisi Court, either orally or at least in writing. They denounced the
fact that the President did not attempt of her own motion to check or question
the accuracy of the information provided by the bailiffs. The applicants
emphasised that they had not even been notified in advance that the President
was going to issue a decision on the spot, of which fact they had learnt ex
post factum in the remand centre, and had thus been unable to submit
arguments in their defence. They also stated that the decision of 29 June
2006 of the President of the Tbilisi Court of Appeal was far too generally
worded and did not contain any reference to specific acts, nor did it provide
any detailed reasoning.
The parties also exchanged arguments on the
applicants’ complaints under Article 6 § 3 (c) of the Convention concerning
their inability to defend themselves in person or through legal representation
during the examination of their case.
(b) The Court’s assessment
At the outset the Court confirms that, given the
nature of the penalty imposed upon the applicants - deprivation of liberty -
the proceedings in question certainly attracted the applicability of the
criminal limb of Article 6 § 1 of the Convention, an issue not disputed
by the Government (see, among many other authorities, Menesheva, cited
above, § 94-98).
Having due regard to the similar findings of the
Constitutional Court of Georgia, the Court considers that the manner in which
the President of the Tbilisi Court of Appeal heard the applicants’ case under
Article 208 § 7 of the CCP - a cursory procedure conducted in
private, on the basis of the court bailiffs’ written submissions only and
without giving the applicants a chance to be heard - constituted a complete
negation of the most elementary procedural requirements of a fair trial, such
the right to adversarial proceedings and equality of arms, the right to have
adequate time and facilities for the preparation of a defence, the right to
benefit from qualified legal assistance, and so on.
The Court considers that the findings given in
the President’s decision of 29 June 2006 were a mere unquestioning
recapitulation of the description of the charges as presented by the bailiffs,
and do not appear to have been reached as the result of an objective and
thorough judicial examination of the particular circumstances of the incident
(see Menesheva, cited above, § 99; Ziliberberg v. Moldova, no.
61821/00, §§ 40-42, 1 February 2005; and Hakobyan and Others,
cited above, § 98). It is also a
matter of concern to the Court that, having regard to the terms employed by the
President of the Tbilisi Court of Appeal during the press conference concerning
the applicants’ arrest, she clearly prejudged the assessment of the facts and
expressed the opinion that the applicants were guilty before they had been
proved guilty according to law (compare Böhmer
v. Germany, no. 37568/97, §§ 54 and 56, 3 October
2002, and Nešťák v. Slovakia,
no. 65559/01, §§ 88 and 89, 27 February 2007).
The above considerations are sufficient for the
Court to conclude that there has been a violation of Article 6 § 1 taken
together with Article 6 § 3 (c) of the Convention in the present
case.
3. The rights to freedom of expression and freedom of
peaceful assembly
(a) The parties’ arguments
Acknowledging that there had been an interference
with the applicants’ rights under Articles 10 § 1 and 11 § 1 of the Convention,
the Government argued that it had been justified within the meaning of the
second paragraphs of these provisions. Notably, the interference had been based
on section 76(3) § 1 (f) of the Courts Act and Article 208 § 6(1) of the CCP,
which provisions fully satisfied the relevant requirements of accessibility,
foreseeability and precision (see also paragraph 57 above). Furthermore, the
interference had served the aim of maintaining the authority of the judiciary.
The Government observed in that connection that in 2006 a reform of the
judicial system had been ongoing in the country, during which period there was a
particularly pressing need to protect the judiciary from unfounded attacks.
Referring to the insulting slogans uttered by
the applicants during the demonstration in the yard of the Tbilisi Court of
Appeal, the Government considered that those expressions, especially those
referring to the Minister of the Interior as “a bastard” and urging the court
not to obey and not to become an accomplice to the latter’s “criminal
activities” (see paragraph 8 above), exceeded the limits of normal
criticism and reflected the applicants’ intention to debase publicly the
authority of the Tbilisi Court of Appeal. As to the proportionality
requirement, the Government submitted that the sentence imposed upon the
applicants - thirty days in prison - had been an adequate punishment, given the
gravity of the applicants’ actions, especially assessed against the fact that
the applicants had allegedly refused to obey the bailiffs’ initial lawful orders
to stop their contemptuous behaviour. In that respect, the Government also informed
the Court that the events of 29 June 2006 were not the first instance of
such wrongful conduct by some the applicants, and that the first, third and
fourth applicants already had an administrative record of breaches of public
order committed during similar street demonstrations.
The applicants replied that, first, the interference
with the demonstration had not been “prescribed by law” since the bailiffs did
not have the power under either section 76(3) § 1 (f) of the Courts Act or
Article 208 § 6(1) of the CCP, the two legal provisions relied on by the
national authorities as the basis for the interference, which was to prevent
offences occurring outside court-houses. As a result, the applicants could not
have known to what extent they could exercise their rights to freedom of
expression and freedom of assembly without being deprived of their liberty. The
applicants further complained that, in her decision of 29 June 2006 the
President of the Tbilisi Court of Appeal had not given relevant and sufficient
reasons justifying the interference.
The applicants submitted that their utterances
during the demonstration of 29 June 2006 mainly represented a form of political
criticism of the Minister of the Interior, and had the overall objective of
encouraging the Tbilisi Court of Appeal to hold a fair trial in the well-known
criminal case of Mr Shalva Ramishvili. The only insulting word, they conceded,
was “bastard”, but that was clearly aimed at the Minister and not at a member
of the judiciary. The applicants also stated in that regard that they
represented an official human rights NGO whose objectives included the
promotion of the independence of the judiciary and condemnation of abuses
committed by the Ministry of the Interior. Therefore, they had had the right to
contribute to public debate on a case which had attracted considerable public
attention at the material time, and only the most compelling reasons could have
justified the restriction on their political utterance, which was on a matter of
public interest. The applicants also commented that that the imposition of
detention for thirty days was a disproportionate punishment.
(b) The Court’s assessment
i. The scope of the applicants’ complaints
The Court notes that the applicants’ complaints
under Articles 10 and 11 of the Convention are based on the allegation
that their arrest and detention was a measure to prevent them from demonstrating
outside the Tbilisi Court of Appeal on 29 June 2006. In such circumstances,
Article 11 is to be regarded as a lex specialis
and it is unnecessary to take the complaint under Article 10 into consideration
separately. On the other hand, notwithstanding its autonomous role and
particular sphere of application, Article 11 must, in the present case, also be
considered in the light of principles developed under Article 10 (see, for
instance, Ezelin v. France, 26 April 1991, §§ 35 and 37, Series A
no. 202).
ii. Violation of Article 11 of the Convention
The Court reiterates that the right to freedom
of assembly covers both private meetings and meetings on public thoroughfares, as
well as static meetings and public processions (see Djavit An v. Turkey,
no. 20652/92, § 56, ECHR 2003-III). The term “restrictions” in
paragraph 2 of Article 11 must be interpreted as including both measures
taken before or during the public assembly, and those, such as punitive
measures, taken afterwards (see Ezelin, cited above, § 39, and Galstyan,
cited above, § 101).
The Court observes that, in the instant case,
the applicants held a demonstration in front of the Tbilisi Court of Appeal.
Several minutes later they were arrested and subsequently punished by being
placed in detention for breach of public order and contempt of court. Their prosecution,
as conceded by the Government, amounted to an interference with the exercise of
the freedom of peaceful assembly. It must therefore be determined whether the
interference complained of was “prescribed by law”, prompted by one or more of
the legitimate aims set out in Article 11 § 2 of the Convention,
and “necessary in a democratic society”.
As regards the requirement of “lawfulness”, the
Court reiterates that both section 76(3) §
1 (f) of the Courts Act and Article 208 § 6(1) of the CCP, which legal
provisions served as the basis for the applicant’s arrest and their punishment
by detention, expressly and concomitantly stated that actions allegedly
constituting a breach of public order and contempt of court could be prevented
by court bailiffs and punished by the President of the relevant court if
committed inside court-houses (see also paragraph 67 above). As regards
the definition of the particular offence of contempt of court, the Court
further attaches importance to a finding of the Constitutional Court of Georgia,
which characterised it as vague (see paragraph 47 above). That being so, the
Court, similarly to its finding under Article 5 § 1 of the Convention, has very
serious doubts that the applicants could reasonably have foreseen that their
demonstration outside the building of the Tbilisi Court of Appeal, in its yard,
could ever have attracted liability under the above-mentioned wording of the
domestic provisions (compare, mutatis mutandis, with Altuğ
Taner Akçam v. Turkey, no. 27520/07, §§ 92-95, 25 October 2011, and also Amann v.
Switzerland [GC], no. 27798/95, §§ 78-80, ECHR 2000-II).
However, having regard to a more conspicuous problem arising with respect to
the necessity of the interference, the Court does not deem it appropriate to
limit its finding under Article 11 of the Convention to the lawfulness of the
interference only (compare with Dink v. Turkey, nos. 2668/07, 6102/08,
30079/08, 7072/09 and 7124/09, § 116, 14 September 2010, and Hyde Park and
Others v. Moldova (nos. 5 and 6), nos. 6991/08 and 15084/08, § 48, 14 September 2010).
The Court can accept the Government’s argument
that the interference in question pursued a legitimate aim: the
prevention of disorder and the protection of the authority of the judiciary. What is at stake as regards the protection of the authority of
the judiciary is the confidence which the courts in a democratic society must
inspire in the public at large (see, mutatis
mutandis, among other authorities, Fey
v. Austria, 24 February 1993, § 30, Series A no. 255-A). The Court considers that its assessment
must likewise relate to the question whether such a measure was necessary in a
democratic society. Concurring with the Constitutional Court of Georgia (see
paragraph 47 above), the Court reiterates in this regard that the right of
peaceful assembly is, like the right to freedom of expression, one of the
foundations of any democratic society. Consequently, only truly convincing and
most compelling reasons can justify an interference with this right (see Djavit
An, cited above, § 56, and Ouranio Toxo and Others v. Greece,
no. 74989/01, § 36, ECHR 2005-X (extracts)).
88. Notably, the Court observes that the demonstration,
in which just five persons participated, was dispersed a few minutes after it
had started; during that extremely short period of time the applicants were
able to voice only a very few slogans. Those facts already call into question
the Government’s assertion about the level of disruption of public order
(compare with Sergey Kuznetsov v. Russia, no. 10877/04, § 44, 23 October
2008). Nor does the content of those slogans amount, in the eyes of the Court, to
contempt of court or to an otherwise wrongful act. Thus, the majority of those
slogans represented critical value judgments, in which the applicants, resorting
to a certain degree of political exaggeration and harsh words, referred to a
matter of public concern in Georgia - the independence of the judiciary; the
applicants addressed the Tbilisi Court of Appeal without being violent or
rejecting democratic principles in their speech. The Court reiterates in this
respect that the judiciary, as with all other public institutions, cannot be
immune from criticism, however shocking and unacceptable certain views or words
may appear (see Sergey Kuznetsov, cited above, § 45, and Skałka
v. Poland, no. 43425/98, § 34, 27 May 2003).
The Court considers that the only offensive
phrase voiced by one of the applicants during their short picket was the
referral to the Minister of the Interior as “Lavrentiy Beria’s bastard”.
However, the Court cannot understand how that expression could constitute
contempt of court, as it was not addressed to a member of the judiciary
(contrast with Skałka, cited above, § 36). In any event, in a democratic
society, greater tolerance should be shown to those expressing opinions which
are critical of important public figures, even if those opinions are expressed,
as in the instant case, inarticulately, intemperately or in a provocative
manner (see Hyde Park and Others (nos. 5 and 6), cited above § 43, and
Nilsen and Johnsen v. Norway [GC], no. 23118/93, §§ 52 and 53,
ECHR 1999-VIII).
Furthermore, it is a matter of particular
concern for the Court that in her decision of 29 June 2006 the President of the
Tbilisi Court of Appeal, rather than fulfilling her duty to establish
convincing grounds justifying the dispersal of the demonstration and the
punishment of the applicants by the imposition of detention, mostly paraphrased
the general and abstract terms of the qualification of offences of breach of
public order and contempt of court under the domestic law. She did not explain,
by reference to the particular circumstances of the incident, how exactly the
administration of justice was being obstructed and which specific phrases uttered
by the applicants were considered to be severe enough to constitute contempt of
court; the only matter she relied on in her decision - the statement that the
applicants had held their demonstration “inside the court building, in its
central entrance” - was untrue and thus unacceptable for the purpose of
justification under the second paragraph of Article 11 (see, among other authorities,
Christian Democratic People’s Party v. Moldova, no. 28793/02, § 70,
ECHR 2006-II). Consequently, restriction on the applicant’s right to
peaceful assembly cannot be said to have been based on relevant and sufficient
reasons (compare with Sergey Kuznetsov, cited above, §§ 40 and 45;
and The Sunday Times v. the United Kingdom (no. 1), 26 April 1979,
§§ 63 and 64, Series A no. 30).
Lastly, the Court is struck by the fact that,
given the absence of any violent behaviour by the applicants during the
authorised picket, they were nevertheless subjected to the most severe penalty
applicable to the offences in question, namely thirty days of deprivation of
liberty (compare, for instance, Galstyan, cited above, § 116, in which
the Court found that the sanction of deprivation of liberty for three days for
participating in an authorised and peaceful street demonstration impaired the
very essence of the right to freedom of peaceful assembly). The
unreasonableness of the drastic penalty in the present case is further
magnified when assessed against the above-mentioned absence of sufficient and
relevant reasons in the underlying decision of 29 June 2006.
Having regard to the above considerations, the
Court concludes that the Georgian authorities failed to act with due tolerance and
good faith as regards the applicants’ right to freedom of assembly, did not
adduce sufficient and relevant reasons justifying the interference, and imposed
a sanction which was disproportionate in the circumstances.
It follows that there has been a violation of
Article 11 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL No.
7
The applicants further complained that that they
had no right of appeal against their conviction of 29 June 2006, in breach of
Article 2 of Protocol No. 7. This provision reads as follows:
Article
2 of Protocol No. 7
“1. Everyone
convicted of a criminal offence by a tribunal shall have the right to have his
conviction or sentence reviewed by a higher tribunal. The exercise of this
right, including the grounds on which it may be exercised, shall be governed by
law.
2. This right may be subject to exceptions in regard
to offences of a minor character, as prescribed by law, or in cases in which
the person concerned was tried in the first instance by the highest tribunal or
was convicted following an appeal against acquittal.”
The Government submitted that there had been no
violation of the provision in question, as a judge of the Supreme Court had duly
examined, under Article 279 of the CAO, the applicants’ appeal of 21 July 2006
against their conviction of 29 June 2006.
The applicants disagreed, arguing that the
examination of their appeal under Article 279 of the CAO had not been effective,
as it had depended on the discretion of the domestic authorities.
The Court observes that the situation in the
present case is identical to those examined by the Court in two similar landmark
cases on the matter - Gurepka v. Ukraine (no. 61406/00, §§ 59-61, 6
September 2005) and Galstyan (cited above, §§ 124-127). Notably, in the
instant case as well, irrespective of the fact that the applicants’ appeal had
actually been examined by a judge of the Supreme Court under Article 249 of the
CAO, the extraordinary review procedure contained in that domestic provision, which
depended on the domestic authorities’ discretionary power and lacked a clearly
defined procedure or time-limits, represented an ineffective remedy for the
purposes of Article 2 of Protocol No. 7 (compare with Galstyan, cited above,
§ 126, and Gurepka, also cited above, §§ 60-61). Furthermore, the
offences of which the applicants were convicted by the decision of 29 June 2006
cannot, given the severity of the consequent punishment, be considered “minor”,
and thus fall under the relevant exception contained in second paragraph of
this provision (ibid.).
There has thus been a violation of Article 2 of
Protocol No. 7.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly, relying on Article 5 §§ 2, 3, 4 and 5 of
the Convention, cited independently and in conjunction with Article 13 of the
Convention, the applicants complained about various specific instances of
procedural unfairness of the domestic proceedings, including inability to lodge
an appeal against their conviction of 29 June 2006.
However, having regard to its findings under
Articles 5 § 1 and 6 § 1 of the Convention and Article
2 of Protocol No. 7 which are lex specialis with respect to the
major legal issues examined in the present case (compare with Hakobyan and
Others, cited above, § 125-127 and 136; Galstyan, cited above, § 53;
Gurepka, cited above, § 51; and Menesheva, cited above, §§ 105-107),
the Court considers that this part of the application, which is a reiteration
of the already examined issues, must be rejected as manifestly ill-founded,
pursuant to Article 35 §§ 3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of
the Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicants claimed 20,000 euros (EUR) each
in respect of non-pecuniary damage.
The Government considered the applicants’
claims to be unfounded and excessive.
The Court has no doubt that the applicants
suffered distress and frustration on account of the violation of their various
rights (see paragraphs 71, 78, 93 and 98 above). Ruling on an equitable
basis, the Court awards each of the applicants EUR 6,000 in respect of
non-pecuniary damage, plus any tax that may be chargeable on that amount.
B. Costs and expenses
The applicants claimed EUR 3,970 and 1,330
United Kingdom pounds sterling (GBP, EUR 1,667) on account of their
representation before the Court by, respectively, the two Georgian lawyers and
the British lawyer (see paragraph 2 above). The two amounts were broken down
into the number of hours spent and the lawyers’ hourly rates - seventy-nine
hours and forty minutes at the rate of EUR 50 for the two Georgian lawyers and twenty-two
hours at the rate of GBP 100 in 2006 and GBP 150 in 2010 for the British
lawyer. That itemisation also indicated the dates and the exact types of legal
services rendered.
The applicants further claimed, on the basis of
the relevant receipts, 1,361.20 Georgian laris (GEL, EUR 657) for postal and
translation expenses. They also claimed EUR 592 and GBP 160 (EUR 200) for
certain other expenses allegedly incurred by their Georgian and British
representatives when working on the application; no financial documents were
submitted in support of the latter claim.
The Government briefly commented that the applicants’
claims were mostly unsubstantiated and excessive.
The Court observes that the Georgian and
British lawyers from GYLA and EHRAC actually rendered the necessary legal
assistance to the applicants. It also observes in this connection that in a
number of Georgian cases it has found that the teamwork of the lawyers from
these two NGOs in proceedings before the Court could not be left uncompensated
and that similar evidence of the lawyers’ work - a detailed and credible
itemisation of the hours spent - was acceptable proof of the expenses incurred
by the applicants’ representatives (see Klaus
and Yuri Kiladze v. Georgia, no. 7975/06, §§ 91-94,
2 February 2010, and Tsintsabadze v. Georgia, no. 35403/06, § 105, 15 February 2011). Thus, the
Court considers it appropriate to award the applicants EUR 3,970 and GBP 1,330 (EUR 1,667)
on account of their representation by, respectively, the two Georgian lawyers
and the British lawyer.
As regards the administrative expenses, the
Court, in the light of its well-established case-law on the matter (see,
for instance, Ghavtadze
v. Georgia, no. 23204/07, §§ 118 and 120, 3
March 2009), and having due regard to the documentary evidence submitted,
considers that the applicants should be awarded GEL 1,361.20 (EUR 657)
for postal and translation expenses.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaints under Articles 5
§ 1, 6 §§ 1 and 3 (c), 10 and 11 of the
Convention and Article 2 of Protocol No. 7 admissible and the remainder of the
application inadmissible;
2. Holds that there has been a violation of Article
5 § 1 of the Convention;
3. Holds that there has been a violation of
Article 6 § 1 taken together with Article 6 § 3 (c) of the Convention;
4. Holds that there has been a violation of
Article 11 of the Convention;
5. Holds that there has been a violation of
Article 2 of Protocol No. 7;
6. Holds that there is no need to examine separately
the complaint under Article 10 of the Convention;
7. Holds unanimously
(a) that the respondent State is to pay the applicants,
within three months of the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the national currency of the respondent State at
the rate applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros) to each
applicant, plus any tax that may be chargeable, in respect of non-pecuniary
damage;
(ii) EUR 5,957 (five thousand nine hundred and
fifty-seven euros) to the applicants jointly plus any tax that may be
chargeable to them, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
8. Dismisses the remainder of the applicants’
claim for just satisfaction.
Done in English, and notified in writing on 2 October 2012,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago
Quesada Josep
Casadevall
Registrar President
