CASE OF KAKABADZE AND OTHERS v. GEORGIA
Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-c - Defence through legal assistance;Article 6 - Right to a fair trial);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - National law;Minor offences;Criminal offence);Non-pecuniary damage - award
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
5. The first, second, third, fourth and fifth applicants were born in 1969, 1980, 1985, 1967 and 1984 respectively and live in Tbilisi. They are members of the Equality Institute, a Georgian non-governmental organisation established in February 2004 (“the NGO”). As part of its activities aimed at monitoring of the penal and law-enforcement authorities and promotion of the independence of the judiciary, the NGO held public press conferences and street demonstrations denouncing various serious human-rights abuses allegedly committed by the Ministry of the Interior and in Georgian prisons. 6. At around 2.20 p.m. on 29 June 2006 the applicants began a demonstration outside the Tbilisi Court of Appeal to express their support for Mr Shalva Ramishvili and Mr Davit Kokhreidze, owners of the 202 private television channel, who were on trial that day. The case of Ramishvili and Kokhreidze received considerable public attention at that time (for more details see Ramishvili and Kokhreidze v. Georgia, no. 1704/06, §§ 966, 27 January 2009). 7. As disclosed by the applicants’ written statements drafted on 4 and 5 July 2006 as a reminder of the exact circumstances surrounding the incident of 29 June 2006 (“the applicants’ written statements”), they entered the yard of the Tbilisi Court of Appeal through the main gates; the security guards noticed that one of the applicants was carrying a megaphone but did not object. The applicants stopped ten to twenty metres from the courthouse, and the first applicant, using the megaphone, began uttering the following slogans: “We should not have political prisoners in Georgia! ... We urge you to obey justice and not the private interests of a number of high officials! ... Give me justice or give me death! ...”. 8. Furthermore, taking the view that the existing situation concerning human rights in Georgia was similar to the terror unleashed by the Soviet State in the late 1930s, the first applicant disdainfully referred to the Minister of the Interior, Mr V.M., as “Lavrentiy Beria’s bastard”. According to the written statements of the fourth and fifth applicants, they also called for the immediate release of Mr Ramishvili and Mr Kokhreidze, as unlawfully detained, and urged the Tbilisi Court of Appeal “not to become an accomplice of the criminal activities of the [Minister of the Interior]”. 9. According to the applicants, nothing was displayed or addressed to the court which could be construed as contempt: this could be confirmed by independent eyewitnesses to the incident, as well as by the images filmed by a cameraman from the 202 television channel (see a description of the video recording submitted by the applicants in paragraphs 23-27 below). 10. The first applicant’s speech had lasted some three minutes when several uniformed court bailiffs approached the applicants and, allegedly without prior warning or explanation, restrained them by force. The applicants were then taken into the court-house and locked in the bailiffs’ duty room. 11. According to the applicants’ written statements, no record of their arrest was drawn up on the spot. In any event, they were not shown or asked to sign any such document. On the contrary, the bailiffs reassured the applicants that they were not formally under arrest, that it was a simple misunderstanding and that they would soon be released. 12. The case file, however, contained five separate records, on the arrest of each applicant. Those records indicated the name of the drafting bailiff as well as the name, date of birth, address and full serial number of the identification card of each of the applicants. The documents further stated that the applicants had been arrested at around 2.20 p.m. on the basis of section 76(3) § 1 (f) of the Courts of Common Jurisdiction Act of 13 June 1997 (“the Courts Act”). In particular, the offenders had “breached public order”, which took the form of “contempt of court, insults, disregard of the bailiffs’ lawful orders to stop the wrongdoing, resistance to the bailiffs, attempts to influence the court by actions and verbal expressions, impeding the administration of justice, and so on”. All the records contained an entry, made in the drafting bailiff’s handwriting indicating that the applicants had “refused to sign this record or to receive a copy thereof”. The President of the Tbilisi Court of Appeal and the police were immediately informed of the offence and of the applicants’ arrest. 13. According to the applicants, these records of their arrest were drafted and added to the file concerning their case ex post factum. 14. Having been confined in the duty room of the court-house in complete unawareness of the reasons for their detention for some three hours, the applicants were transferred by the police to an Interior Ministry remand centre; the case file contains an excerpt from the relevant prison log showing that the fourth applicant entered the remand centre at 5.45 p.m. 15. The case file also contained explanatory memos from three court bailiffs who had participated in the applicants’ arrest. Those memos were half-page handwritten documents containing similar phrases, and were addressed to the Chief of the Bailiff Service of the Tbilisi Court of Appeals. Thus, according to those documents, the applicants, “standing near the public entrance of the court at around 2.20 p.m.”, had started “demanding the release of political prisoners” and “insulting the court by their expressions and actions”. One of the bailiffs added in his memo that the applicants’ actions had amounted to an encroachment upon the court’s independence and impartiality, whilst another submitted that the wrongdoers had been trying to influence the court. All three bailiffs stated that, prior to resorting to the measure of arrest, they had requested the applicants to stop the disturbance. 16. When they were transferred to the remand centre the applicants learnt that they had been detained on the basis of a decision of 29 June 2006 issued by the President of the Tbilisi Court of Appeal. 17. As disclosed by the decision of 29 June 2006, a one-page document, the President of the Tbilisi Court of Appeal, Mrs E.T., sitting privately and without holding an oral hearing, decided, on the basis of the bailiffs’ written submissions alone, to detain the applicants for thirty days under Article 208 § 6(1) of the Code of Criminal Procedure (“the CCP”). Thus, she took note of the bailiffs’ version of the incident of 29 June 2006 (see paragraph 15 above), namely that “[the applicants], who were inside the court building, in its central entrance, were breaching public order, obstructing the normal functioning of the court and seeking to influence the court with respect to proceedings in a particular case”. Despite the bailiffs’ request that they stop the disturbance, the applicants persisted with their conduct, which took the form of “verbal expressions and actions”. The President concluded that the applicants had “breached public order, shown manifest and gross contempt towards the court and endangered the administration of justice.” 18. The operative part of the decision of 29 June 2006 indicated that no appeal lay against it, that the applicants were to serve their sentence in remand centre no. 2 of the Ministry of the Interior (see paragraph 16 above) and that the Tbilisi police department was responsible for its execution. 19. On 21 July 2006 the applicants, referring to the suspension of the operation of Article 208 § 7 of the CCP by the Constitutional Court’s decision of 20 July 2006 (see the Constitutional Court’s judgment of 15 December 2006 at paragraphs 42-47 below) and arguing that their detention was an administrative penalty, requested the Supreme Court of Georgia to examine their complaint against the decision of 29 June 2006 under Article 279 of the Code on Administrative Offences (“the CAO”). They complained that the President of the Tbilisi Court of Appeal had committed a manifest miscarriage of justice by punishing them under Article 208 of the CCP, which provision clearly envisaged liability only for acts committed inside court buildings; a video recording of the applicants’ demonstration was submitted to show that it had taken place in the yard of the Tbilisi Court of Appeal. Thus, the applicants argued that the above-mentioned provision could not be considered a foreseeable and therefore legitimate basis for their conviction and detention. They further complained that the President of the Tbilisi Court of Appeal had violated the principles of a fair trial by delivering her decision entirely on the basis of the one-sided account provided by the bailiffs. The applicants also complained that the President had chosen the severest sanction of those available under Article 208 of the CCP. 20. On 26 July 2006 a Supreme Court judge, Mr Z.M., examined, in absentia, the applicants’ complaint of 21 July 2006 and dismissed it. The date of that examination was not communicated to the applicants in advance. 21. As disclosed by the decision of 26 July 2006, Judge Z.M. first noted that the suspension of Article 208 § 7 of the CCP did not automatically entitle the applicants to lodge an appeal against their detention. However, acknowledging that their detention was, by its nature, an administrative penalty, he ruled that the complaint of 21 July 2006 against the penalty could be examined under Article 279 of the CAO. Judge Z.M. went on to criticise the applicants for abusing their right to freedom of expression. He found it established from the case materials that the applicants had truly exhibited “manifest and gross contempt” towards the Tbilisi Court of Appeal by committing those acts “inside the court building, namely in its central entrance hall”. In any event, the aim of Article 208 § 6(1) of the CCP was, in the opinion of Judge Z.M., to protect public order not only inside court-houses but also outside them, in adjacent premises. The President of the Court of Appeal had no other choice but to sanction the applicants under Article 208 § 6(1) of the CCP, since what was at stake in the given situation was “not the judge’s own interests but the authority of the court and the proper administration of justice”. In reply to the complaint that the President of the Court of Appeal had made her decision entirely on the basis of one-sided submissions, Judge Z.M. stated that all the evidence – the records of the applicants’ arrest and the explanatory notes – had been drafted and submitted by the bailiffs for consideration by the President in accordance with a procedure envisaged by law. Judge Z.M. also stated that the thirty days’ detention had been an appropriate punishment, given the gravity of the acts committed. 22. The period of the applicants’ detention expired and they were released on 28 July 2006. 23. The recording showed excerpts from a television programme prepared by the 202 channel concerning the incident of 29 June 2006. 24. The first scene briefly showed several uniformed bailiffs restraining some of the applicants in the yard of the Tbilisi Court of Appeal. The first applicant, holding a megaphone, was hustled by the bailiffs towards the central entrance of the court-house. At the end of the scene, a man’s hand was placed over the lens of the camera. 25. In a later episode of the programme, the President of the Tbilisi Court of Appeal, Mrs E.T., was shown at a press conference concerning the applicants’ arrest. She stated: “... five individuals, ... who have shown such direct and gross contempt towards the court and breached public order in the court... I will impose upon them, by my ruling, a form of detention for thirty days, and this will be another good example [of the fact] that respect towards courts and the maintenance of public order in court will be protected very strictly.” (“...ხუთ მონაწილეს ამ აქციის,... რომლებმაც ასეთი პირდაპირი და უხეში უპატივცემულობა გამოხატეს სასამართლოს მიმართ და დაარღვიეს წესრიგი სასამართლოში ... მე გამოვიყენებ ჩემი განკარგულებით ოცდაათდღიანი დაპატიმრების ფორმას მათ მიმართ და ეს იქნება კიდევ ერთხელ კარგი მაგალითი იმისათვის, რომ პატივისცემის გამოხატვა სასამართლოს მიმართ და სასამართლოში წესრიგის დაცვა იქნება ძალიან მკაცრად დაცული.”) 26. The commentator of the programme noted that, prior to taking office as President of the Tbilisi Court of Appeal, Mrs E.T. had served as deputy to Mr V.M., the Minister of the Interior. 27. The remaining scenes in the broadcast showed interviews with the applicants’ advocates and supporters, some of whom stated that the applicants could not be held liable under Article 208 of the CCP, because their actions had taken place outside the court building. 28. Section 76(3) § 1 listed court bailiffs’ rights and responsibilities: Section 76(3) “1. Bailiffs shall (a) ensure the safety of judges, parties to proceedings and witnesses; (b) maintain order inside the court-house and hearing rooms; (c) enforce the instructions of the President of the court and of the hearing judge concerning the maintenance of order; (d) protect the court-house; (e) ensure that hearing rooms are well prepared for the conduct of proceedings...; (f) prevent offences from being committed inside the court-house, identify offenders and, if necessary, arrest them for the purpose of handing them over to the police, and draft a written record on such arrests...; (g) exercise all other powers envisaged by law.” 29. Section 76(3) § 2 (a) gave bailiffs the right to resort to physical force, to “special equipment” and even to firearms in the exercise of their duties. Section 76(4) §§ 1 and 4 specified that the above-mentioned right could be exercised only if other less severe measures of constraint had been shown to be ineffective, and that bailiffs were obliged to issue a verbal warning to the persons concerned prior to resorting to force. 30. Article 208, on the basis of which the applicants were sanctioned by the decision of 29 June 2006, read as follows: Article 208: “Liability for breach of public order in court” “1. The President of the court shall ensure the maintenance of public order in the court, whilst the presiding judge shall be responsible for maintaining order during the hearing of cases... 2. A party to the proceedings, or any other person who has either breached public order during a hearing, or disregarded the presiding judge’s ruling or is in contempt of court, shall be fined and/or expelled from the courtroom. If the person expelled from the courtroom continues to breach such an order, the detention envisaged by this Article may be imposed upon him or her.... 6. If manifest and gross contempt of court has been shown, the judge presiding over the hearing may issue a decision to detain the offender for up to thirty days. Such a decision shall be enforced immediately....” 6(1). In the event of a breach of public order or contempt committed inside the court building, the President of the court shall be entitled to apply the measures envisaged by this Article against the offender. 7. So far as the current Article is concerned, the decisions of the presiding judge and of the President of the court shall be delivered by on-the-spot deliberations and without an oral hearing, and no appeal shall lie against them.” 31. Subsequent to the Constitutional Court judgments of 15 December 2006 (see paragraphs 42-47 below), Article 208 of the CCP was significantly revised on 29 December 2006. Thus, the newly added paragraph 8 of that provision explicitly gave the court bailiffs the power to arrest a person who had either “breached public order in the court, was in contempt, or had obstructed the normal functioning of the court”. Bailiffs were obliged to draw up a record of such arrests and to bring the offenders before the President of the relevant court within twenty-four hours. The President had further twentyfour hours to issue a decision on whether to punish the offender. Paragraphs 10 and 11 of the amended Article 208 further stated that proceedings concerning the imposition of detention on an offender should always be adversarial, and conducted at an oral hearing at which the offender would be given an opportunity to defend him or herself. Should the President decide to detain the offender, the latter was entitled to lodge an appeal against that decision with the higher court within the next forty-eight hours. 32. The Code was adopted on 15 December 1984, when Georgia was part of the Soviet Union. Subsequently, numerous amendments were introduced. At the material time the relevant provisions of this Code read as follows: Article 10: “The notion of an administrative offence” “An administrative offence is a wrongful action or omission, committed either deliberately or by negligence, which contravenes the State or public order, the rules on Governance, property or citizens’ rights and freedoms, and which attracts administrative liability. Administrative liability shall be imposed only in those cases where the offences envisaged under the present Code do not call for criminal liability in the light of the applicable legislation.” 33. Article 24 § 1 listed the forms of administrative penalties, of which administrative detention was the severest. Pursuant to Article 32 § 1, administrative detention could be imposed by a district (city) court, only as an exception, for certain types of administrative offences and for a period not exceeding thirty days. 34. Article 244 provided for measures of restraint in administrative proceedings, such as administrative arrest, search of the person or of objects, seizure of objects and of documents. Those measures, including arrest, could be used “in order to prevent an administrative offence..., to ensure a timely and proper examination of an administrative case, and to enforce any decision or ruling delivered in such a case”. 35. Article 246 contained an inclusive list of those authorities which were empowered to effectuate an administrative arrest. Court bailiffs were not among them. 36. Pursuant to Article 247, administrative arrest must not exceed three hours, unless specific statutes provided for longer terms “in cases of exceptional need”. 37. Articles 252, 263 and 264 contained procedural and substantive rules on the conduct of administrative proceedings, and were similar to those normally applicable to criminal proceedings in court. In particular, a person charged with an administrative offence to fundamental procedural rights such as the right to examine the case materials, to submit arguments and evidence and requests, to benefit from legal assistance during the examination of the case, to plead in his or her native language or to be assisted by an interpreter, and to appeal against procedural rulings. An administrative case was always to be examined in the presence of the charged person during an oral hearing; in absentia proceedings could take place only if that person had been duly summoned but had failed to appear. 38. Pursuant to Articles 271 and 279, no appeal lay, as a general rule, against a court decision convicting a person of an administrative offence and imposing a penalty. However, a final decision could be quashed by means of an extraordinary review. These provisions read as follows: Article 271 § 2: “The right to lodge an appeal...” “2. The city (district) court’s decision to impose an administrative penalty is final and not subject to an appeal in administrative proceedings, except for those cases where a law holds otherwise.” Article 279: “Review of a case...” “The administrative judge’s (court’s) decision concerning an administrative offence can be quashed or amended by the delivering judge (court) at a prosecutor’s request and, whether or not such a request has been lodged, by the President of the superior court...” 39. Article 413 of the Civil Code, explaining the notion of nonpecuniary damage, read as follows: Article 413 § 1: “Non-pecuniary damage” “1. Non-pecuniary damage, which amount should be reasonable and equitable, can be claimed exclusively in the situations explicitly envisaged by law. 2. An individual is entitled to request compensation for non-pecuniary damage caused in respect of damage to his or her health.” 40. Article 1005 of the Civil Code specified that State agencies were jointly liable for damage caused to a private party by intentional or negligent actions on the part of their officials, including such particular instances, the existence of which should first be established by a court, as unlawful conviction for a criminal or administrative offence or imposition of unlawful detention. 41. Subsequent to Article 423 § 1 (f) of the Code of Civil Procedure, a final judgment (decision) in a civil case could be reconsidered on the basis of newly discovered circumstances. Grounds for such reconsideration were, amongst others, factual circumstances or evidence which, had they been submitted to the domestic courts pending the original examination of the case, would have led to a different outcome. 42. The case originated in constitutional appeals by two advocates who had been detained under Article 208 § 6 of the CCP for breach of public order and contempt of court committed in courtrooms during the oral hearing of criminal cases. 43. In a decision of 20 July 2006, the Constitutional Court declared the constitutional appeals admissible for an examination on the merits, and suspended the operation of Article 208 § 7 of the CCP pending the proceedings. 44. In a judgment of 15 December 2006, the Constitutional Court abrogated Article 208 § 7 of the CCP as unconstitutional. 45. In its reasoning, the Constitutional Court, referring to the Court’s case-law, found that Article 6 § 1 of the Convention applied under its “criminal head” to the proceedings under Article 208 of the CCP. It further reasoned that those proceedings, which entitled the hearing judge to convict a person of a breach of public order/contempt of court by onthespot deliberations, without holding an oral hearing, negated the most fundamental safeguards of a fair trial, such as the right to equality of arms and adversarial proceedings, the right to have adequate time and facilities for the preparation of the defence, and so on. 46. The Constitutional Court stated that, by denying a person convicted under Article 208 of the CCP the right to lodge an appeal, paragraph 7 of that provision violated Article 42 § 1 of the Constitution and Article 2 of Protocol No. 7. In support of the latter finding, the Constitutional Court referred to the Court’s judgment in the case of Gurepka v. Ukraine (no. 61406/00, §§ 59-62, 6 September 2005). 47. In its judgment, the Constitutional Court also criticised the definition of the offence of contempt of court, as contained in paragraph 6 of Article 208 of the CCP, as vague. Notably: “the offence prescribed by the disputed provision is not clearly formulated... and the interpretation may be ambiguous due to the lack of specificity and vagueness of the provision.... Where the legislation introduces a sanction such as detention, an offender must clearly understand the nature of the offence for which he is subjected to detention and, on the other hand, the judge applying the law should be able to do so correctly and adequately. ... [I]n the Constitutional Court’s view, achieving and maintaining such important purposes as the protection of the authority of the courts and the smooth functioning of the justice system should not be carried out at the expense of the impairment of fundamental human rights.”