Demonstrator was detained for 8 days for throwing beans at police officers at a demonstration! Violation of the freedoms of expression and assembly
JUDGMENT
Chkhartishvili v. Georgia 11.05.2023 (app. no. 31349/20)
SUMMARY
The case concerned the applicant’s arrest in 2019 at a demonstration for disobeying police orders to
move off the road and throwing beans at the police, shouting that beans used to be “gruel for
slaves”. The demonstration in Tbilisi was part of a series of protests about Parliament’s failure to
approve electoral reform. Mr Chkhartishvili was brought before a judge and found guilty of insulting
and disobeying lawful police orders. He was sentenced to eight days’ administrative detention.
The Court found that Mr Chkhartishvili had been given a custodial sentence mainly because of the
way he had expressed his views, rather than for disobeying police orders to move off the road. It did
not consider that the grounds cited in the trial court’s judgment were sufficient in themselves to
render the sanction proportionate. In particular, it did not appear that the conditions provided for by
law for counting the applicant’s previous administrative-offence convictions as an aggravating factor
had been met. The Court held that, in the absence of appropriate reasoning, a custodial sanction for
the applicant’s non-violent even if disruptive conduct had not been justified.
PRINCIPAL FACTS
The applicant, Lasha Chkhartishvili, is a Georgian national who was born in 1980 and lives in Tbilissi
(Georgia). He is a civil-society activist and member of the Georgian Labour Party.
On the morning of 29 November 2019, Mr Chkhartishvili took part in a demonstration in front of the
public library in Tbilisi, where the Minister of Justice was scheduled to give a speech. The
demonstration, attended by a couple of hundred protesters, was one in a series of protests about
Parliament’s failure to approve electoral reform. The video coverage of the event shows the police
telling them not to block the road or the entrance to the building. At some point, Mr Chkhartishvili
can be seen throwing beans at the police and shouting that beans used to be “gruel for slaves”. He
was arrested immediately and escorted to the Tbilisi police station for having allegedly committed
offences under two articles of the Code of Administrative Offences. According to the administrativeoffence report, the applicant had blocked the road, breached public order, insulted the police and
disobeyed their orders.
He was brought before a judge that afternoon. After criticising and interrupting the judge loudly
several times, Mr Chkhartishvili was fined 300 Georgian laris (GEL) for contempt of court. After a
further warning, he was removed from the court and the case was heard in his absence.
Mr Chkhartishvili’s defence lawyer requested that the trial be adjourned, stating that she had not
been able to meet with him prior to the trial and that she needed time to familiarise herself with the
case file and to collect evidence. The judge granted the request and adjourned the hearing for three hours and ten minutes. Once the hearing resumed, he rejected the defence lawyer’s further requests for Mr Chkhartishvili to be questioned as a witness, for the trial to be postponed again, and for Mr Chkhartishvili to be released from detention.
During the hearing the officer who wrote the administrative-offence report stated, among other
things, that on at least two previous occasions – in 2008 and 2014 – Mr Chkhartishvili had received
administrative fines. The officer requested that the trial court apply a stricter sanction as a deterrent
for the future. Mr Chkhartishvili’s representative contested the officer’s submission as
unsubstantiated and irrelevant.
That same afternoon, the Tbilisi City Court found Mr Chkhartishvili guilty of insulting and disobeying
police orders. He was sentenced to eight days’ administrative detention. The court clarified that
calling the police officers ‘slaves’ was insulting and degrading and incurred liability under Georgian
legislation. It held that such actions could not be considered as a form of protest.
A subsequent appeal lodged by Mr Chkhartishvili who complained that the trial court had relied
exclusively on the police officers’ account, that it was not clear which lawful orders he had
disobeyed and that his arrest and conviction were not justified was rejected as inadmissible.
THE DECISION OF THE COURT…
Article 6
The Court did not find it established that the authorities had hindered contact between
Mr Chkhartishvili and his representative. It observed that although the hearing had been adjourned
for more than three hours, his lawyer had continued to maintain that she had been unable to see
him. However, she had provided no plausible explanation or proof and had not lodged a complaint.
In response to Mr Chkhartishvili’s complaint that his removal from the courtroom had prevented
him from being able to participate effectively in the proceedings, the Court held that it was a normal
duty of the trial panel to maintain order in the courtroom, and the rules applied equally to everyone.
It acknowledged that Mr Chkhartishvili’s behaviour had amounted to flagrant disrespect of
elementary standards of proper conduct and noted that the judge had warned him that he would be made to leave the room if he did not stop interrupting. With his saying that he did not care, he could be considered to have waived his right to be present. Moreover, his representative had remained in the courtroom and had made submissions on his behalf.
Lastly, as regards his complaint that the national courts had relied only on the statements of the
police officers, the Court did not consider that the burden of proof had been shifted to the applicant,
as one of the charges against him had been dropped for lack of evidence, despite the police officers’
statements. There were also video-recordings of the event in the case file.
The Court concluded that the proceedings against the applicant had been conducted in compliance
with the requirements under Article 6 §§ 1 and 3 (b) and (c) of the Convention. It found the
applicant’s related complaints ill-founded and rejected this part of the application.
Article 11 read in the light of Article 10
The Court examined the complaints regarding Mr Chkhartishvili’s arrest and custodial sentence
under Article 11 alone, considered in the light of Article 10.
The interference with Mr Chkhartishvili’s right to freedom of peaceful assembly had been based on
Article 173 of the Code of Administrative Offences, with the legitimate aim of preventing disorder
and protecting rights of others. It was necessary to determine whether the interference, considered
in the light of the right to freedom of expression, was proportionate and answered a “pressing social
need”, taking into account the nature and severity of the penalties imposed.
The Court noted that the demonstration of 29 November 2019 had been part of a series of protests
against Parliament’s failure to approve electoral reform as previously planned. That matter was of
public interest and contributed to the ongoing debate in society. Very strong reasons were therefore
needed to justify the restriction on Mr Chkhartishvili’s expression of his opinions during the
demonstration.
On the one hand, the Court noted that public servants acting in an official capacity are subject to
wider limits of acceptable criticism than ordinary citizens and a certain degree of immoderation may
fall within those limits. On the other hand, the Court could not overlook the fact that
Mr Chkhartishvili had thrown dried beans at the police in public while the officers had been doing
their job. Nevertheless, the Court took note of the fact that the applicant had not been violent, and
the beans had not injured anyone or led to an escalation of violence. Indeed, the demonstration
itself had been peaceful, with a large number taking part. By saying what he had said when throwing
the beans, Mr Chkhartishvili – a politician – could have been conveying the opinion that the police
officers supported the ruling party which had been at the source of the failed reform. The Court
recalled that Article 10 protects not only the substance of the ideas and information expressed, but
also the form in which they are conveyed. Accordingly, even if the applicant’s conduct might have
justified an intervention by the authorities, they must have known that the custodial sanction was
being applied in the context of the exercise of a fundamental freedom, thus calling for a particularly
careful approach.
The Court considered that Mr Chkhartishvili had been given an eight-day administrative detention
mainly because of the way he had expressed his views, rather than for not moving off the road.
However, the domestic courts’ reasoning regarding their decision to impose the custodial sanction
did not address the broader context behind the applicant’s conduct. Additionally, the Court did not
consider that the grounds cited in the trial court’s judgment were sufficient in themselves to render
the sanction proportionate. Namely, it did not appear that the conditions provided for in the law for
counting his previous administrative-offence convictions had been met, as they had happened well
in the past. In the absence of appropriate reasoning, and in a context of exercising rights to freedom
of expression and assembly, a custodial sanction for the applicant’s non-violent even if disruptive
conduct was not justified. The Court concluded that there had therefore been a violation of Article 11 of the Convention read in the light of Article 10.
Article 5
As Mr Chkhartishvili’s pre-trial detention had ended on 29 November 2019, the Court found that this
part of the application had been lodged outside the sixth-month time-limit and rejected it as
inadmissible.
Just satisfaction (Article 41)
The Court held that Georgia was to pay the applicant 1,200 euros (EUR) in respect of non-pecuniary
damage
