Published on 17 October 2022
FIFTH SECTION
Application no. 29760/21
Giorgi MZHAVANADZE against Georgia
and 2 other applications
(see list appended)
communicated on 29 September 2022
SUBJECT MATTER OF THE CASES
The applications concern the arrest of the applicants (see the Appendix) for their alleged refusal to comply with the orders of police (all three applicants) and for breaching public order (the first and the second applicants) while participating in a manifestation near the Parliament building in Tbilisi on 9 November 2020. The applicants were convicted of disobeying legal orders of law enforcement officers (an administrative offence under Article 173 of the Code of Administrative Offences). The courts’ findings were based on the administrative-offence reports and the relevant police officers’ accounts. The first applicant was sentenced to three days’ administrative imprisonment, the second applicant – to a fine in the amount of 1500 Georgian lari, and the third applicant ‑‑ to a fine in the amount of 1000 Georgian lari. The applicants appealed, arguing, inter alia, that the courts had failed to assess the lawfulness of the police officers’ demands and the necessity and proportionality of the interference with their rights. The Tbilisi Court of Appeal, sitting as a court of second and final instance, endorsed the lower courts’ findings.
QUESTIONS TO THE PARTIES
COMMON QUESTIONS
1. Did the applicants have a fair hearing, in accordance with Article 6 § 1 of the Convention? In particular,
(a) 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 from the proceedings (see, among other authorities, Karelin v. Russia, no. 926/08, 20 September 2016)?
(b) 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, 20 September 2018)?
2. Do the circumstances of the current cases, notably the applicants’ arrest and escorting to the police station and subsequent prosecution under the Code of Administrative Offences disclose an “interference” under Article 10 § 1 and/or Article 11 § 1 of the Convention? If so, was the interference “prescribed by law” and “necessary in a democratic society” within the meaning of Article 10 § 2 and/or 11 § 2 of the Convention (see, among other authorities, Navalnyy and Yashin v. Russia, no. 76204/11, 4 December 2014; Frumkin v. Russia, no. 74568/12, 5 January 2016; and Novikova and Others v. Russia, nos. 25501/07 and 4 others, 26 April 2016)? In this connection,
(a) What legitimate aim(s) did the interference pursue?
(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?
(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 expression and/or peaceful assembly, and respond to the applicants’ argument regarding the potential chilling effect of the relevant sanctions upon the exercise of the right concerned?
CASE-SPECIFIC QUESTIONS
Application no. 29760/21
Was it compatible with Article 2 of Protocol No. 7 that the custodial sentence had been fully served before the appeal hearing could take place (see Shvydka v. Ukraine, no. 17888/12, 30 October 2014, and Tsvetkova and Others v. Russia, nos. 54381/08 and 5 others, §§ 181-91, 10 April 2018)?
Application no. 46852/21
1. Was there a violation of the applicant’s rights under Article 5 of the Convention on account of his arrest and subsequent detention until the completion of the administrative proceedings? In particular, was his deprivation of liberty lawful and justified as required by that Article (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, 15 November 2018, and Navalnyy and Yashin v. Russia, no. 76204/1, 4 December 2014)?
2. Was the applicant able to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him, as required by Article 6 § 3 (d) of the Convention?
APPENDIX
List of applications
No.
Application no.
Case name
Lodged on
Applicant
Year of Birth
Place of Residence
Nationality
Represented by
1.
29760/21
Mzhavanadze v. Georgia
20/05/2021
Giorgi MZHAVANADZE
1993
Tbilisi
Georgian
Eduard MARIKASHVILI
2.
33931/21
Rukhadze v. Georgia
18/06/2021
Nodar RUKHADZE
1996
Tbilisi
Georgian
Eduard MARIKASHVILI
3.
46852/21
Matchavariani v. Georgia
15/09/2021
Alexi MATCHAVARIANI
1977
Tbilisi
Georgian
Ivane CHITASHVILI