Chkhartishvili v. Georgia (Application no. 31349/20)

A selection of key paragraphs can be found below the judgement.

55.  At the outset, and as regards the general context of the demonstration of 29 November 2019, the Court notes that it was part of a series of protests against Parliament’s failure to approve electoral reform as previously planned (see paragraph 6 above; see also Makarashvili and Others, cited above, §§ 5‑6). By participating in the demonstration in question the applicant wished to express his disapproval of what he considered to be the authorities’ failure to enhance the country’s democratic process. This was a matter of public interest and contributed to the ongoing debate in society. Accordingly, very strong reasons would be required to justify the restriction on the applicant’s expression of his opinions during the demonstration (compare Bumbeș v. Romania, no. 18079/15, § 92, 3 May 2022). 

59.  In this connection, the Court reiterates that the Contracting States’ discretion in punishing illegal conduct relating to expression or association, although wide, is not unlimited, and it must examine with particular scrutiny cases where sanctions imposed by the national authorities for non-violent conduct involve a prison sentence (see Taranenko v. Russia, no. 19554/05, § 87, 15 May 2014). This is because the imposition of a sanction, however lenient, on a person expressing his or her opinion can have an undesirable chilling effect on public speech (see, mutatis mutandis, Makarashvili and Others, cited above, § 103, with further references; see also Bumbeș, cited above § 101). Within this context, the Court cannot overlook the fact that the primary reason for the applicant’s attendance at the demonstration was to protest against Parliament’s failure to adopt important legislative reforms. His actions were neither violent nor did they cause any injuries to the police officers and could hardly be aimed at causing physical harm to them. Additionally, the conduct in question 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). Furthermore, the demonstration itself was peaceful, with a great number of people participating. With his contested conduct the applicant – a politician – was seemingly conveying his opinion that the police officers had supported the ruling party which had been at the source of the failed reform (see paragraphs 55 and 57 above). While the Court’s reasoning should not be taken as an approval of the manner in which the applicant expressed his views, it must be recalled that Article 10 protects not only the substance of the ideas and information expressed, but also the form in which they are conveyed (see Gül and Others, cited above, § 41). 

60.  Accordingly, even if the applicant’s conduct could justify an intervention by the authorities (see paragraph 57 above), they must have borne in mind that the custodial sanction in the present case was being applied in the context of the exercise of a fundamental freedom, thus calling for a particularly careful approach. By contrast, none of the elements identified above were addressed as part of the domestic courts’ reasoning regarding their decision to impose the custodial sanction. Additionally, the Court does not consider that the grounds cited in the trial court’s judgment – the applicant’s “personality” and the “seriousness” of the conduct attributed to him – were sufficient, without further elaboration, to render a sanction of eight days’ administrative detention proportionate. Specifically, while the reference to the applicant’s “personality” may have concerned his history of administrative-offence convictions and the related argument made before the trial court (see paragraph 17 above), it does not appear that the conditions provided for by law for treating such considerations as an aggravating factor had been met as the applicable legal provisions did not allow taking into account previous administrative sanctions older than one year (see paragraph 26 above). Accordingly, this element alone was not, without appropriate reasoning, sufficient to justify the imposition of a custodial sanction for the applicant’s non-violent, even if disruptive, conduct. As regards the “seriousness” of the applicant’s conduct, this appears to refer to the necessity of punishment in general rather than the proportionality of the chosen measure and cannot therefore be considered sufficient to justify the imposition of a custodial term, however short, in the context of the applicant’s exercise of his rights to freedom of expression and assembly. 

62.  There has therefore been a violation of Article 11 of the Convention read in the light of Article 10.