Published on 10 May 2021

FIFTH SECTION

Application no. 31349/20 Lasha CHKHARTISHVILI against Georgia lodged on 19 June 2020 communicated on 22 April 2021

SUBJECT MATTER OF THE CASE

The application concerns the arrest of the applicant for his alleged refusal to comply with the orders of police and for breaching public order while participating in a manifestation on 29 November 2019. On the same date the Tbilisi City Court convicted him of disobeying legal orders of law enforcement officers (an administrative offence under Article 173 of the Code of Administrative Offences) and sentenced him to eight days ’ administrative imprisonment. According to the case file, the applicant was not allowed to see his defence counsel before the hearing. Moreover, he was expelled from the courtroom for alleged contempt of court. The applicant ’ s appeal was rejected as inadmissible by the Tbilisi Court of Appeal, with the court concluding that the applicant had failed to substantiate his arguments.

The applicant complains under Article 5, Article 10 and Article 11 of the Convention alleging that his arrest was unlawful, and that the institution of the administrative-offence proceedings and the imposition of an administrative sanction of detention amounted to an interference with his freedom of expression and freedom of assembly. He also claims that his right to a fair trial, under Article 6 of the Convention, was breached on account of his being prevented from defending himself in person in combination with the fact that he was also prevented from consulting his defence counsel either prior to or throughout the hearing, and also in view of the court ’ s reliance on police evidence in disregard of the video recording of the incident at stake.

QUESTIONS TO THE PARTIES

1. Was there a violation of the applicant ’ s rights under Article 5 of the Convention on account of his arrest and escorting to the police station? In particular, was his deprivation of liberty necessary and lawful within the meaning of that Article (see Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, §§ 71-72, 15 November 2018, and Navalnyy and Yashin v. Russia , no. 76204/11, §§ 91-98, 4 December 2014)?

2. Did the applicant have a fair hearing, in accordance with Article 6 §§ 1 and 3 (b) and (c) of the Convention? In particular,

a) Was the trial fair, given that the applicant ’ s conviction was based mainly on police evidence? Did the domestic courts examine the video recording of the incident (see, among other authorities, Mushegh Saghatelyan v. Armenia , no. 23086/08, § 207, 20 September 2018)?

b) Was the applicant able to participate in the proceedings effectively, as required by Article 6 § 3 (b) of the Convention, with regard to his allegation that he was prevented from consulting his defence counsel prior to the hearing (see Campbell and Fell v. the United Kingdom , 28 June 1984, § 99, Series A no. 80)?

c) Was the applicant able to defend himself in person or through legal assistance, as required by Article 6 § 3 (c) of the Convention? Given that the applicant was expelled from the courtroom, what were the arrangements for his consultations with the counsel?

3. Do the circumstances of the current case, notably the applicant ’ s 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? Was the interference “prescribed by law” and “necessary in a democratic society” (see Novikova and Others v. Russia , nos. 25501/07 and 4 others, §§ 222-25, 26 April 2016)? In this connection,

a) What legitimate aim(s) did the police officers pursue by arresting the applicant?

b) Did the domestic courts examining the administrative-offences case against the applicant assess whether the latter ( i ) had received orders from the police, (ii) whether such orders had been lawful, and (iii) if the applicant had in fact disobeyed them?

c) Assuming that the applicant had disobeyed lawful orders, did the authorities ’ response respect the fair balance between the means employed and the aims sought to be achieved? Was there a “pressing social need” to arrest the applicant, escort him to the police station, and sentence him to a prison term?

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 peaceful assembly, and respond to the applicant ’ s argument regarding the potential chilling effect of the relevant sanctions upon the exercise of the right concerned?