Case of Mzhavanadze and Rukhadze v. Georgia (Applications nos. 29760/21 and 33931/21)
A selection of key paragraphs can be found below the judgment.
55. The Court is mindful of the difficulties encountered by law‑enforcement authorities in the investigation and prosecution of offences arising in the context of mass demonstrations. It further takes note of the fact that in the present case the domestic courts did not accord primacy to the witness statements of the police officers.
56. At the same time, however, the Court cannot overlook the fact that the only item of direct evidence against the second applicant was a witness statement by a police officer who represented the accusing party, in circumstances where additional evidence such as video footage depicting the disputed events could, or should, have been captured by the officer’s body‑worn camera and produced in court. In particular, while it is understandable that police body-worn cameras cannot be recording continuously, it is clear that the purpose of such cameras is to record events whose circumstances may later be challenged on various grounds. The relevant officer’s explanation that, in practice, the circumstances leading to the applicants’ arrest would have warranted the activation of a body-worn camera and that, in principle, he would have activated his camera at the time (see paragraph 23 above), is consistent with what a reasonable person would expect in such circumstances. By contrast, the video recording concerning the second applicant only depicted the events following his arrest (see paragraph 25 in fine). No satisfactory explanation was advanced as to why only that period was recorded in circumstances where the period most relevant to the applicant’s case had been the time preceding the arrest, as also noted by the relevant officer (see paragraph 23 above). In such particular circumstances, and in the absence of any other evidence against the second applicant, the domestic courts’ finding that no evidence “contradicting” the officers’ account had been submitted (see paragraph 50 above) did effectively put the second applicant in a position of having to prove his innocence, within the framework of the police accusations in proceedings characterised as “criminal” within the meaning of Article 6 of the Convention (see paragraph 42 above; see also Makarashvili and Others, cited above, § 64). The Court therefore finds that the trial court’s approach to the police officer’s evidence undermined the overall fairness of the proceedings in respect of the second applicant. Furthermore, there is no indication in the Court of Appeal’s decision that it sufficiently reviewed the trial court’s approach.
57. In the light of the foregoing, the Court considers that there has been a violation of Article 6 § 1 of the Convention in respect of the second applicant, and no violation of the provision in question in respect of the first applicant.
71. Accepting that the first applicant did block the movement of the police car (see paragraph 52 above, in fine) and even assuming that the same conduct could also be attributed to the second applicant (contrast paragraphs 54-56 above), there is nothing in the case file to suggest that the applicants had intentionally structured the demonstration in such a way as to cause disruption to ordinary life or other activities to a degree exceeding that which was inevitable in the circumstances. In fact, the case file does not contain any indication that other than the police car in question, the applicants had obstructed the movement of any other vehicle.
72. Therefore, the Court does not consider that the impugned conduct for which the applicants were held responsible was of such a nature and degree as to remove their participation in the demonstration from the scope of protection of the right to freedom of peaceful assembly under Article 11 of the Convention (see, among other authorities, Kudrevičius and Others, cited above, § 98).
82. Within this context, the Court cannot overlook the fact that the first applicant’s attendance at the demonstration was motivated by his wish to express discontent with respect to matters of public interest (see paragraph 77 above). While the Court’s reasoning should not be taken as approval of the manner in which the first applicant behaved at the demonstration, and notwithstanding the fact that that applicant’s conduct may have justified the intervention by the authorities, the latter should have borne in mind that the custodial sanction in issue was being imposed in the context of the exercise of a fundamental freedom, thus calling for a particularly careful approach. The Court emphasises in this regard that his actions were not alleged to have been violent (compare paragraph 7 above) and did not result in any escalation of the circumstances on the ground (compare and contrast Osmani and Others v. the former Yugoslav Republic of Macedonia (dec.), no. 50841/99, ECHR 2001-X).
83. Moreover, the grounds cited in the trial court’s judgment for imposing the custodial sanction on the first applicant – his “personality” and the “seriousness” of the conduct attributed to him – were not sufficient, without further elaboration, to render proportionate the imposition of a sanction of three days’ administrative detention for non-violent, even if disruptive, conduct.