Communicated on 14 September 2016
FOURTH SECTION
Application no. 5631/16
Natalia PERADZE and others
against Georgia
lodged on 12 January 2016
STATEMENT OF FACTS
1. A list of the applicants is set out in the appendix. They are all Georgian nationals, live in Tbilisi and are represented before the Court by Ms T. Abazadze, Ms T. Dekanosidze, Ms K. Shubashvili and Ms N. Jomarjidze, lawyers practising in Tbilisi.
2. The facts of the case, as submitted by the applicants, may be summarised as follows.
A. The circumstances of the case
1. Background
3. In 2014 the Georgian Co-Investment Fund (“the GSF”), a private equity fund established in 2013 for the purpose of attracting large private investments into Georgia, revealed a plan to build a complex of four luxury hotels and several business centres on a hill overlooking the historical part of Tbilisi. According to the project, various districts in the Old town were supposed to become connected with the complex through funicular railways and elevators, assuring a car-free zone in the historical part of the capital. The construction project was presented to the public under the name of Panorama Tbilisi (“the Panorama project”).
4. One of the largest contributors to the GCF was the former Prime Minister of Georgia, Mr B.I., who had been publicly advocating in favour of the construction. According to the applicants, the Panorama project had therefore become deemed by the public to be closely associated with this person.
5. After the Panorama project was announced, opponents to it, which included representatives from various societal and professional groups, such as environmental activists, urbanists, architects and geologists, started expressing concerns that the construction works could cause an irreparable damage to the uniqueness of the Old Tbilisi’s landscape.
2. The incident of 19 July 2015
6. On 19 July 2015 a few hundreds of people, including the applicants, gathered in front of the Tbilisi City Council to express their protest against a construction permit issued by the municipal authority on 16 July 2015 for the commencement of the Panorama project. The picketing started at around 5:00 p.m. and was peaceful. The majority of the protesters held banners with slogans such as “No to Panorama!”, “Sololaki Mountain is the main identity of Tbilisi!”, “We will not stop!”.
7. The second applicant (Mr Makarashvili), whilst standing peacefully among other protesters, was holding a banner with an inscription identifying the Panorama project with a human penis, using the lewdest synonym available in the colloquial Georgian language for the latter: “Not the Panorama but a cock” (“პანორამა არა (*)ლე”). He was not chanting this particular or any other slogans. Police officers, who were also present at the site of the demonstration to ensure the public order, tolerated the applicant’s banner for a half an hour or so. At around 5:30 p.m., however, the police grabbed the second applicant’s banner, forced him into a patrol car and drove away in direction of the Tbilisi police headquarters.
8. The second applicant’s arrest was followed by a spontaneous act of solidarity. Notably, the other six applicants (Ms Peradze, Ms Malashevski‑Jakeli, Mr Chachanidze, Mr Kareli, Ms Mamulashvili and Mr Mgaloblishvili) impulsively wrote the same slogan – “Nor the Panorama but a cock” – on pieces of paper, and started demonstratively holding these unprompted banners, without making any vociferations, in front of the police. They were allowed to protest in this manner for some additional thirty minutes. At around 6:00 p.m., the police forcibly placed the above-mentioned six applicants, as well as three other randomly apprehended protesters (Mr Kaladze, Ms Nanobashvili and Mr Giorgadze), into patrol police cars and transferred them to the Tbilisi police headquarters.
9. All applicants were accused, inside of the police headquarters, of having committed minor breach of public order, an administrative offence prosecuted under Article 166 of the Code of Administrative Offences. The offences consisted, according to the accusatory statements of the arresting police officers, of the applicants’ holding banners with the lewd inscription and chanting the same slogan loudly in public. Some of the applicants were additionally charged under the same provision with an offence of disobedience to the lawful orders of the police to stop the lewd chanting in the public.
3. The court proceedings
10. By a decision of 23 July 2015, the Tbilisi City Court, after having examined the case at an adversarial hearing, acquitted the three randomly arrested protesters (Mr Kaladze, Ms Nanobashvili and Mr Giorgadze) of all charges but found all of the applicants guilty of the administrative offence of minor breach of public order only on account of their act of silent holding the banners with the above-mentioned lewd slogan. On the other hand, the court stated that the available case materials did not confirm either the fact of any of the applicants having vociferated insults in public, or that they had received but disobeyed the police officers’ orders.
11. With respect to the episode concerning the banners, the court emphasised that the slogan contained a slang term which was a sheer obscenity, void of any political, cultural, educational or scientific value. Such vulgarity could not contribute towards the public debate in a civilised manner. The use of the term had been deemed as a gratuitous and particularly pejorative insult in the public, and by arresting the applicants the police had merely protected the public morals. Having assessed the circumstances of the case, the Tbilisi City Court ruled that a fine in the amount of 100 Georgian Laris (approximately 40 Euros) would be a sufficient penalty for each of the applicants.
12. The applicants’ appeals against the decision of 23 July 2015 were rejected as inadmissible by the Tbilisi Court of Appeals’ final rulings of 7 and 11 September 2015. The appellate instance fully upheld the reasons given by the lower court.
B. Relevant domestic law and practice
13. Article 166 of the Code of Administrative Offences read as follows:
Minor breach of public order
“Minor breach of public order – that is swearing or cursing in public settings, uttering insulting remarks at people or any other similar act which causes public disturbance or private nuisance shall be sanctioned by a fine of 100 Georgian Laris. In the event the fine is to be considered, in the light of the particular circumstances of a given case, as an insufficient penalty, the imposition of administrative detention for up to fifteen days shall be contemplated instead.”
COMPLAINTS
14. The applicants complain that the administrative law sanctions they received for having protested against the Panorama projected amounted to a breach of their rights under Articles 10 and 11 of the Convention.
QUESTION TO THE PARTIES
In view of the administrative sanctioning of the applicants (Ms Peradze, Mr Makarashvili, Ms Malashevski-Jakeli, Mr Chachanidze, Mr Kareli, Ms Mamulashvili and Mr Mgaloblishvili) by the decision of 23 July 2015 on account of their holding the banners with the disputed slogan during the demonstration of 19 July 2015, has there been a violation of these applicants’ rights to freedom of expression and/or freedom of peaceful assembly, contrary to Articles 10 and 11 of the Convention?
Appendix
No
First name LAST NAME
Born in
Administrative penalty
Ms Natalia PERADZE
1968
YES (fine of 100 GEL)
Mr Giorgi MAKARASHVILI
1985
YES (fine of 100 GEL)
Ms Elene MALASHEVSKI-JAKELI
1993
YES (fine of 100 GEL)
Mr Konstantine CHACHANIDZE
1980
YES (fine of 100 GEL)
Mr Vakhtang KARELI
1990
YES (fine of 100 GEL)
Ms Ana MAMULASHVILI
1992
YES (fine of 100 GEL)
Mr Irakli MGALOBLISHVILI
1988
YES (fine of 100 GEL)
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