PARTLY DISSENTING OPINION OF JUDGE WOJTYCZEK

1. The main difficulty of the present case lies in the exact establishment of facts. The Court usually considers that violations of the Convention have to be established “beyond reasonable doubt”. It is difficult to achieve this standard in the instant case. There are neither domestic court judgments nor other official documents which would give a more detailed picture of actually happened in Tbilisi on 17 May 2012. The respondent Government did not provide sufficient information about the events. The main source of information is the applicants ’ submissions. I note in this context that the Court is usually very circumspect in establishing the facts on the basis of applicants ’ submissions. In the present case, however, the majority has chosen to proceed on the basis of the applicants ’ allegations. Personally, I would have preferred a more cautious approach in this respect. In particular, given the lack of full clarity as to the facts, it was not possible to establish the applicants ’ feelings during the demonstration .

I note that the above-mentioned uncertainty about the facts of the case comes across in a certain hesitation on the majority ’ s part in the reasoning of the judgment. On one hand, the majority considers the bias motive of the counter-demonstrators to be clearly established (see paragraphs 68, 70 and 74 of the judgment). On the other hand, it describes elsewhere the bias motive only as “possible” and sees it as a question which required clarification by the domestic authorities in the course of an investigation (see paragraph 77).

2. I note that clashes between demonstrators endorsing opposing views on issues of public concern are quite common in Europe. In such a context, it is the duty of the State authorities to ensure freedom of assembly and speech, as well as the physical security of all persons who take part in legal demonstrations which are held simultaneously.

The applicants took part in a legal demonstration in Tbilisi. It appears from the evidence produced in the proceedings before the Court that Georgia failed to fulfil its obligations stemming from Article 11 of the Convention vis-à-vis the applicants.

When considering the State ’ s duties in respect of protecting freedom of assembly, the majority expresses the view that the State authorities were “under an obligation to use any means possible” (see paragraph 99). In my view, however, it would have been more correct to state that the authorities were under an obligation to use any means which might have been reasonably expected in the circumstances of the case .

3. The majority notes “some sporadic physical abuse” against the marchers. In my view, in the present case, the alleged violations of the applicants ’ rights did not reach the threshold of severity which makes Article 3 of the Convention applicable. I therefore voted against finding a violation of Article 3 taken in conjunction with Article 14 of the Convention. I have explained in more detail my position with regard to the interpretation of Article 3 in the dissenting opinion written with Judge Mahoney which is attached to the judgment in the case of Abdu v. Bulgaria ( no. 26827/08 , 11 March 2014) .

4. I note that very recently the same Section of the Court decided the case of Karaahmed v. Bulgaria (no. 30587/13), by a unanimous judgment of 24 February 2015. In that case, on the basis of the available evidence, much more serious physical attacks against Muslim worshippers were clearly established, as well as the fact that the attackers had been motivated by religious intolerance. The Court decided, however - in my view correctly - that the Article 3 threshold had not been met in that case and the complaint under Article 14 in conjunction with Article 3 was declared manifestly ill ‑ founded. It examined only the complaint brought under Article 9, and found a violation of this latter provision.

I do not perceive any consistency in the approach adopted by the Court in respect of the applicability of Article 3 in cases concerning alleged assaults on persons exercising freedoms protected by the Convention.

ANNEX

No.

First name/LAST NAME

Birth Date

NGO IDENTOBA

(“the first applicant”)

-------

Mr Levan ASATIANI

(“the second applicant”)

1/01/1989

Mr Levan BERIANIDZE

(“the third applicant”)

5/09/1990

Ms Tina BILIKHODZE

(“the fourth applicant”)

15/09/1959

Mr Beka BUCHASHVILI

(“the fifth applicant”)

13/05/1990

Mr Guram DEMETRASHVILI

(“the sixth applicant”)

3/10/1988

Ms Gvantsa DZERKORASHVILI

(“the seventh applicant”)

7/03/1990

Ms Elina GLAKHASHVILI

(“the eight applicant”)

4/11/1984

Ms Natia GVINIASHVILI

(“the ninth applicant”)

30/05/1986

Ms Magda KALANDADZE

(“the tenth applicant”)

6/02/1986

Mr Mikheil KHALIBEGASHVILI

(“the eleventh applicant”)

6/12/1991

Ms Tamta MELASHVILI

(“the twelfth applicant”)

4/07/1979

Ms Keti TSAGAREISHVILI

(“the thirteenth applicant”)

5/05/1979

Ms Mariam TSUTSKIRIDZE

(“the fourteenth applicant”)

25/08/1992

Mr Irakli VA T CHARADZE

(“the fifteenth applicant”)

7/03/1980