Communicated on 19 October 2020
Published on 9 November 2020
FIFTH SECTION
Application no. 23158/20
Giorgi MAQARASHVILI against Georgia
and 2 other applications
(see list appended)
SUBJECT MATTER OF THE CASE
The applications concern the applicants’ (see the Appendix) arrest on 18 November 2019 at a demonstration near the Parliament building in Tbilisi protesting against the Parliament’s failure to adopt amendments to the electoral legislation, and the imposition of an administrative detention for disobeying police orders at that demonstration. As it appears from the applicants’ submissions, 36 other individuals were arrested that day.
The applicants were found guilty of disobedience to the lawful orders of the police on the grounds that they had blocked the traffic and the entrance to the Parliament building. The court’s findings were based on the administrative-offence reports and the relevant police officers’ accounts. Administrative sanctions of twelve, four, and seven days’ detention were applied in respect of the applicants, respectively. The applicants appealed arguing that the court had unfairly shifted the burden of proof upon them, and that it had failed to assess the lawfulness of the police officers’ demands, the necessity and proportionality of the interference with their rights, and the deleterious impact of the respective sanctions, in the context of their right to freedom of peaceful assembly. The Tbilisi Court of Appeal, sitting as a court of second and final instance, endorsed the lower court’s findings.
The applicants complain that the institution of the administrative-offence proceedings and the imposition of an administrative sanction of detention, as well as the domestic courts’ failure to respond to their arguments concerning the alleged unlawful and disproportionate interference in the exercise of their right to freedom of peaceful assembly was in breach of Article 11 of the Convention.
Relying on Article 6 of the Convention the applicants also complain that the administrative-offence proceedings had not complied with the principles of the adversarial trial and the equality of arms on account of the lack of a prosecuting party, that their conviction had lacked adequate reasoning and had rested solely on the police officers’ account, without the applicants having been granted an opportunity to provide their version of the events, and that they had been unable to effectively participate in the proceedings on account of not having been granted adequate time and facilities to prepare their defence.
QUESTIONS TO THE PARTIES
1. Has there been an interference with the applicants’ right to freedom of peaceful assembly, within the meaning of Article 11 § 1 of the Convention on account of the applicants’ arrest, pre-trial detention and respective administrative sentences?
If so, was the interference “prescribed by law”, and did it pursue a legitimate aim, within the meaning of Article 11 § 2 of the Convention? Was it necessary in a democratic society (see, among other authorities, Frumkin v. Russia, no. 74568/12, §§ 93-99, 5 January 2016)? In particular,
(a)What legitimate aim(s) did the police officers pursue by arresting the applicants?
(b)Did the domestic courts examining the administrative-offence cases against the applicants assess whether the latter (i) had received orders from the police, (ii) whether such orders had been lawful, and (iii) if the applicants had in fact disobeyed them?
(c)Assuming that the applicants had disobeyed lawful orders, did the authorities’ response respect the fair balance between the means employed and the aims sought to be achieved? Was there a “pressing social need” to arrest the applicants, escort them to the police station, and sentence them to prison terms?
(d)Did the domestic courts apply the criteria set out in the Court’s case‑law regarding the necessity of an interference with the right to freedom of peaceful assembly, and respond to the applicants’ argument regarding the potential chilling effect of the relevant sanctions upon the exercise of the right concerned?
2. Has there been a violation of the objective impartiality requirement under Article 6 § 1 of the Convention in the present applications because of the absence of a prosecuting party (see, among other authorities, Karelin v. Russia, no. 926/08, §§ 64-65 and 69-84, 20 September 2016)?
3. Did the applicants have a fair hearing, in accordance with Article 6 §§ 1 and 3 (b) and (d) of the Convention? As regards each applicant’s trial:
(a)Has the principle of equality of arms been respected, in particular as regards the admission and the assessment of evidence by the courts (see, among other authorities, Mushegh Saghatelyan v. Armenia, no. 23086/08, § 207, 20 September 2018)?
(b)Were the applicants able to participate in the proceedings effectively, as required by Article 6 § 3 (b) of the Convention, with regard to the allegation that they were not given adequate time and facilities to prepare their defence (see, among other authorities, Mikhaylova v. Ukraine, no. 10644/08, § 69, 6 March 2018)?
(c)Were the applicants able to examine witnesses against them and to obtain the attendance of witnesses on their behalf under the same conditions as witnesses against them, as required by Article 6 § 3 (d) of the Convention?
APPENDIX
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1
23158/20
Maqarashvili v. Georgia
24/05/2020
Giorgi MAQARASHVILI
1985
Tbilisi
Georgian
Eduard MARIKASHVILI
2
31365/20
Katcharava
v. Georgia
15/06/2020
Irakli KATCHARAVA
1978
Kutaisi
Georgian
Eduard MARIKASHVILI
3
32525/20
Berdzenishvili v. Georgia
15/06/2020
Zurab BERDZENISHVILI
1991
Tbilisi
Georgian
Eduard MARIKASHVILI
Full & Egal Universal Law Academy