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Kakabadze and Others v. Georgia, Application No. 1484/07

THIRD SECTION

CASE OF KAKABADZE AND OTHERS v. GEORGIA

(Application no. 1484/07 )

JUDGMENT

STRASBOURG

2 October 2012

FINAL

02/01/2013

This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision .

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 1
In the case of Kakabadze and Others v. Georgia ,
The European Court of Human Rights ( Third Section ), sitting as a
Chamber composed of:
Josep Casadevall , President,
Egbert Myjer ,
Corneliu Bîrsan ,
Alvina Gyulumyan ,
Ján Šikuta ,
Luis López Guerra ,
Nona Tsotsoria , judges,
and Santiago Quesada , Section Registrar ,
Having deliberated in private on 11 September 2012 ,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 1484/07) against Georgia
lodged with the Court under Article 34 of the Convention for the Protection
of Human Rights an d Fundamental Freedoms (“the Convention”) by five
Georgian nationals, Mr Irakli Kakabadze (“the first applicant”), Mr Lasha
Chkhartishvili (“the second applicant”), Mr Jaba Jishkariani (“the third
applicant”), Mr Zurab Rtveliashvili (“the fourth applicant”) and Mr Davit
Dalaksihvili (“ the fifth applicant”) on 28 December 2006 .
2. The applicants were represented by Ms Sopio Japaridze and Ms Natia
Katsitadze , members of the Georgian Young Lawyers ’ Association (GYLA)
in Tbili si, as well as by Mr Philip Leach, of the European Human Rights
Advocacy Centre (EHRAC) in London . The Georgian Government (“the
Government”) were represented by their Agent, Mr Levan Meskhoradze of
the Ministry of Justice.
3. On 2 November 2009 the Court decided to give notice to the
respondent Government of the applicants ’ complaints under
Articles 5 § 1, 6 §§ 1 and 3 (c), 10 and 11 of the Convention and Article 2
of Protocol No. 7 . It was also decided to rule on the admissibility and merits
of the application at the same time (Article 29 § 1).
4. The parties submitted observations on the admissibility and merits of
the communicated complaints (Rule 54A of the Rules of Court).

2 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
THE FACTS
I. THE CIRCUMSTANCE S OF THE CASE
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
organisat ion 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 den ouncing various serious
human -rights abuses allegedly committed by the Ministry of the Interior and
in Georgian prisons .
A. The incident of 29 June 2006
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 Kokhrei dze received considerable public attention at that
time (for more details see Ramishvili and Kokhreidze v. Georgia ,
no. 1704/06, §§ 9-66, 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 app licants was carrying a megaphone but did
not object. The applicants stopped ten to twenty metres from the
court -house, 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 appli cants, 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]”.

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 3
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 th e applicants and, allegedly
without prior warning or explanation, restrained them by force . T he
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 si mple
misunderstanding and that they would soon be released.
12 . The case file, however, contain ed 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 o f Common Jurisd iction 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,
attemp ts 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 a n 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 contain ed explanatory memos from three court
bailiffs who had participated in the applicants ’ arrest. T ho se memos were
half -page handwritten documents containing similar phrases, and were
addressed to the Chief of the B ailiff Ser vice of the Tbilisi Court of Appeals .
Thus, according to tho se documents , the applicants , “standing near the
public entrance of the court at around 2.20 p.m.” , had started “ demanding
the release of po litical prisoners ” and “insulting the court by their

4 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
exp ressions 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 transfer red to the remand centre the applicants
learnt that they had been detained o n the basis of a decision of 29 June 2006
issued by the President of the Tbilisi Court of Appeal.
B. The decision of 29 June 2006
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 influenc e 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
rem and centre no. 2 of the Ministry of the Interior (see paragraph 16 above)
and that the Tbilisi police department was responsible for its execution.
C. Subsequent developments
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 4 2-47 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
comm itted a manifest miscarriage of justice by punishing them under
Article 208 of the CCP, which provision clearly envisaged liability only for

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 5
acts committed inside court buildings; a video recording of the applicants ’
demonstration was submitted to show tha t 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 20 8 § 7 of the CCP did not automatically
entitle the applicants to lodge an appeal against their detention. However,
acknowledg ing that their detention was, by its nature, an administrative
penalty , he ruled that the complaint of 21 July 2006 against the pen alty
could be examined under Article 279 of the CAO. Judge Z.M. went on to
criticise the applicants for abus ing their right to freedom of expression. He
found it established from the case materials that the applicants had truly
exhibited “manifest and gros s contempt” towards the Tbilisi Court of
Appeal by committing th ose 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 explanat ory 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 act s committed .
22 . The period of the applicants ’ detention expired and they were
released on 28 July 2006.

6 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
D. The video recording of the incident of 29 June 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 res training
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 len s 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 sh own 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 t he 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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Act of 13 June 1997 on Courts of Common Jurisdiction, as
worded at the material time
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;

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 7
(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 th e persons concerned prior to resorting to force.
B. The Code of Criminal Procedure (“the CCP”), as worded at the
material time
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 measur es 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 app eal shall lie against them.”

8 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
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
paragra ph 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 twenty -four 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.
C. The Code on A dministrative Offences, as worded at the material
time
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 pr ovisions 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 admi nistrative 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 ca se, and to
enforce any decision or ruling delivered in such a case”.

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 9
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 . Article s 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 ag ainst 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 extraordinar y 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 thos e 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 …”
D. The Civil Code and the Code of Civil Procedure , as worded at the
material time
39 . Article 413 of the Civil Code , explaining the no tion of
non -pecuniary 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.”

10 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
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 crimin al or administrative offence or imposition
of unlawfu l 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 w ere,
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.
E. The Constitutional Court ’s judgment of 15 December 2006 in the
case of “Masurashvili and Mebonia v. the Parliament of Georgia”
42 . The case originated in constitut ional appeals by two advocates who
had been detained under Article 208 § 6 of the CCP for bre ach 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 t hat those proceedings, which entitled the hearing judge to convict
a person of a breach of public order/contempt of court by on -the -spot
deliberations, without holding an oral hearing, negated the most
fundamental safeguards of a fair trial, such as the ri ght 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 Articl e 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 cas e 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 :

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 11
“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 introduce s a s anction 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.”
THE LAW
I. ALLEGED VIOLATION S OF ARTICLE S 5 § 1 , 6 §§ 1 AND 3 (c)
AND ARTICLES 10 AND 11 OF THE CONVENTION
48 . The applicant s complained that their arrest , conviction for breach of
public order and contempt of court , and consequent punishment by
deprivation of liberty, as imposed by the President of the Tbilisi Court of
Appeal in her decision of 29 June 2006, was unlawful and unfair , in breach
of Article s 5 § 1 and 6 §§ 1 and 3 (c) of the Conve ntion .
49 . Th e applicants further complained that their arrest and detention had
constituted an unlawful and unreasonable restriction on their rights to
freedom of expression and freedom of peaceful assembly, contrary to
Article s 10 and 11 of the Convention.
50 . The relevant provisions of the Convention read, in their relevant
parts, as follows:
Article 5
“1. Everyone has the right to liberty and security of person. No one shall be
deprived of his liberty save in the following cases and in accordance with a procedure
prescribed by law:
(a) the lawful detention of a person after conviction by a competent court; …
(c) the lawful arrest or detention of a person effected for the purpose of bringing
him before the competent legal authority on reasonable suspicion of having
committed an offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so.”

12 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
Article 6
“1. In the determination of … any criminal charge against him, everyone is entitled
to a fair … hearing … by [a] … tribunal …
3. Everyone charged with a criminal offence has the following minimum rights: …
(c) to defend himself in person or through legal assistance of his own choosing …”
Article 10
“1. Everyone ha s the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas without
interference by public authority and regardless of frontiers. …
2. The exercise of these freedoms, since it carries with it duties and responsibilities,
may be subject to such formalities, conditions, restrictions or penalties as are
prescribed by law and are necessary in a democratic society, in the interests of …
public safety, for … maintaining the authority and impartiality of the judiciary.”
Article 11
“1. Everyone has the right to freedom of peaceful assembly …
2. No restrictions shall be placed on the exercise of these rights other than such as
are prescr ibed by law and are necessary in a democratic society in the interests of
national security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms of
others …”
A. Admissibility
51 . The Govern ment took the view that the applicants had failed to
exhaust domestic remedies as required by Article 35 § 1 of the Convention.
Thus, the applicants could have requested compensation for non -pecuniary
damage for their allegedly unlawful detention under Articles 413 and 1005
of the Civil Code (see paragraphs 39-41 above) . Alternatively, they could
have requested the quashing of the ir conviction of 29 June 200 6 and the
reopening of the r elevant proceedings under Article 423 § 1 (f) of the Code
of Civil Procedure , in view of newly discovered circumstances.
52 . The applicants disagreed, claiming , by reference to a nu mber of
arguments, that the above -mentioned legal provisio ns were not relevant to
their case.
53 . As regards the remedy under Article 423 § 1 (f) of the Code of Civil
Procedure, the Court notes its extensive case -law to the effect that an
application for retrial or similar extraordinary r emedies either in civil,
criminal or administrative matters cannot, as a general rule, be taken into
account for the purposes of applying Article 35 § 1 of the Conve ntion (see,

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 13
among many others, The Foundation Mrevli v. Georgia (dec.),
no. 25491/04, 5 May 2009; Galstyan v. Armenia , no. 26986/03, §§ 39 -42,
15 November 2007; and Sakhnovskiy v. Russia [GC], no. 21272/03 ,
§§ 40 -45, 2 November 2010 ).
54 . As to the suggested possibility of suing the State for damages for the
applicants ’ allegedly unlawful detention under the Civil Code , the Court
reiterates that where lawfulness of detention is concerned, an action for
damages is not a relevant remedy, because the right to have the lawfulness
of detention examined by a court and the righ t to obtain compensation for
any deprivation of liberty incompatible with Article 5 of the Convention are
two distinct rights (see, among others , Włoch v. Poland , no. 27785/95, § 90,
ECHR 2000 -XI , and Khadisov and Tsechoyev v. Russia , no. 21519/02,
§ 151, 5 February 2009, with further references). Indeed, noting that the
applicants ’ various complaint s are based on their arrest and detention, which
they had duly contested before the competent domestic court as unlawful ,
the Court dismisses the Government ’s o bjection of non -exhaustion
(compare also with Schwabe and M.G. v. Germany , nos. 8080/08 and
8577/08, §§ 48 -50 and 93, ECHR 2011 (extracts)) .
55 . The Court further notes that this part of the application is not
manifestly ill -founde d within the meaning of Article 35 § 3 (a) of
the Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. Lawfulness of the arrest and detention
(a) The Government ’s arguments
56 . The Government submitted that the applicants ’ arrest and detention
fell under the exception contained in Article 5 § 1 (c) of the Conve ntion.
Notably, they were arrested on suspicion of a breach of public order and
contempt of court , which actions constituted “ offence s” within the meaning
of that particular provision . As to the domestic legal basis for the applicants ’
deprivation of liberty , the Government referred to section 76(3) § 1 (f) of
the Courts Act and Article 208 § 6(1) of the CCP , which entitl ed a
competent judicial authority to punish offenders by the imposition of
detention (see paragraphs 28 and 30 above) . Alternatively, the Government
suggested that the applicants ’ arrest and detention could also be considere d
to fall under Article 5 § 1 (b) of the Convention.
57 . Whilst acknowledging that the l iteral wording of
section 76(3) § 1 (f) of the Courts Act refer red only to court bailiffs ’ power
to arrest people inside court -house s, the Government argued that the

14 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
provision should be read in a more interpretative manner, by having regard
to the general aim that was sought to be achieved by th e legal provision in
question. Thus, since the essence of section 76(3) of the Courts Act was to
enable ba iliffs to protect the administration of justice, it was only natural for
the applicants, who were insulting the Tbilisi Court of Appeal in its yard , to
assume that bailiffs of that court could have exercised their relevant duties
not only with in the court -house but also on its protected territory outside .
58 . The Government further submitted that the initial period of the
applicants ’ arrest , pending examinati on of the incident by the President of
the Tbilisi Court of Ap peal , represented administrative arrest, a form of
restraint measure in administrative proceedings , within the meaning of
Article 244 of the C AO ( see paragraph 3 4 above). The Government then
assured the Court that that arrest had not exceeded the maximum
permissible limit of three hours , as provided for by Article 247 of the CAO
(see paragraph 36 above). In support, the Government referred to the fact
that three hours and twenty -five minutes had passe d between the applicants ’
arrest and the placement of one of them in the remand centre of the Ministry
of the Interior , the latter event necessarily occurring after the delivery of the
decision of 29 June 2006 (see paragraph s 14 and 18 above) ; within that time
more than twenty -five minutes would have been spent on transport ing the
applicant s from the court -house to the place they were subsequent ly held in
custody .
(b) The applicants ’ arguments
59 . The applicants replied that their arrest was unlawful because it was
clear that section 76(3) § 1 (f) of the Courts Act did not empower bailiffs to
arrest people outside a court -house; these offic ers could only “prevent
offences from being commit ted inside a court -house”. The applicants
co mplained that the overly extensive interpretation given to this provision
by the domestic courts and the respondent Government arbitrarily expanded
the territorial application of the bailiffs ’ powers of arrest, which did not
meet the requirement of foresee ability and was thus unlawful within the
meaning of Article 5 § 1 of the Convention .
60 . The applicants further submitted that at the material time it was not
clear which legal norms should have regulated the le ngth of their arrest.
They contested the applicability of Article 24 7 of the CAO, which set the
statu tory limit for administrative arrest, arguing that, as was clearly stated in
its Article 10, the C ode of Administrative Offences only applied to offences
envisaged by that particular Code (see paragraph 32 above), whilst the
applicants had been found guilty and punished under Article 208 of
the Code of Criminal Procedure. On the other hand, if the C ode of
Administrative Offences were to be considered applicable to their s ituation,
then a clear problem would arise under its Article 246 , which excluded

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 15
court ba iliffs from the inclusive list of those State agents who were
authorised by law to effect administrative arrest s (see paragraph 35 above).
61 . As to the basis for their subsequent punishment by the imposition of
detention for thirty days under Article 208 § 6(1) of the CCP , the applicants
stated that the provision similarly lacked foreseeability and precision. In
support of that argument, they referred to the relevant findings of the
Constitutional Court of Georgia , as well as to the subsequent amendment of
that provision on 29 December 2006 , which in the applicants ’ opinion
constituted a tacit acknowledgment by the Georgian authorities of the
defective nature of the initial version of the provision (see
paragraphs 30 and 3 1 above). T he applicants reiterated that they c ould not
reasonably have foreseen that act s of theirs outside the court building could
ever have led to their detention under Ar ticle 208 § 6(1) of the CCP .
(c) The Court ’s assessment
i. General principles
62 . The Court reiterates that any deprivation of liberty must, in addition
to falling within one of the exceptions set out in sub -paragraphs (a) -(f) of
Article 5 § 1 of the Convention (see Assanidze v. Georgia [GC],
no. 71503/01, § 170 , ECHR 2004 -II), be “lawful”. Where the “lawfulness”
of detention is in issue, the Convention refers essentially to national law and
lays down the obligation to confo rm to the substantive and procedural rules
of national law (see Saadi v. the United Kingdom [GC], no. 13229/03, § 67,
29 January 2008). This primarily requires any arrest or detention to have a
legal basis in domestic law but also relates to the quality of the law,
requiring it to be compatible with the rule of law, a concept inherent in all
the Articles of the Convention (see Stafford v. the United Kingdom [GC],
no. 46295/99, § 63, ECHR 2002 -IV , and Kafkaris v. Cyprus [GC],
no. 21906/04 , § 116, ECHR 2008 ). “Quality of law” in this sense implies
that where a national law authorises deprivation of liberty it must be
sufficiently accessible, precise and foreseeable in its application, in order to
avoid all risk of arbitrariness (see , for instance, Nasrulloyev v. Russia ,
no. 656/06, § 71, 11 October 2007 , and Mooren v. Germany [GC],
no. 11364/03, § 76, 9 July 2009). The standard of “lawfulness” set by
the Convention thus requires that all law be sufficiently precise to allow the
person – if need be, with appropr iate advice – to foresee, to a degree that is
reasonable in the circumstances, the consequences which a given action
may entail (see Baranowski v. Poland , no. 28358/95, § 52, ECHR 2000 -III ).
63 . Compliance with national law is not, however, sufficient .
Article 5 § 1 of the Convention requires in addition that any deprivation of
liberty should be in keeping with the purpose of protecting the individual
from arbitrariness (see Bozano v. France , 18 December 1986, § 54, Series A
no. 111). It is a fundamental principle that no detention which is arbitrary

16 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
can be compatible with Article 5 § 1 . The notion of “arbitrariness” in
Article 5 § 1 extends beyond lack of conformity with national law, so that a
deprivation of liberty may be lawfu l in terms of domestic law but still
arbitrary and thus contrary to the Convention (see Saadi , cited above, § 67).
While the Court has not previously formulated a global definition as to what
types of conduct on the part of the authorities might constitute
“arbitrariness” for the purposes of Article 5 § 1, key principles have been
developed on a case -by -case basis. Furthermore, detention will be
“arbitrary” where, despite complying with the letter of national law, there
has been an element of bad faith on t he part of the authorities (see Giorgi
Nikolaishvili v. Georgia , no. 37048/04, § 53, 13 January 2009 ; Bozano ,
cited above, § 59 ; and Saadi , cited above, § 69) or where the domestic
authorities have neglected to attempt to apply the relevant legislation
cor rectly (see Benham v. the United Kingdom , 10 June 1996, § 47, Reports
of Judgments and Decisions 1996 -III, and Liu v. Russia , no. 42086/05, § 82,
6 December 2007).
ii. Application of these principles to the circumstances of the case
64 . At the outset, the Court notes that it does not need to answer the
question of whether there could have been reasons for the Georgian
authorities to take measures against the perceived disturbance of the public
order or the need to enable the Tbili si Court of Appeal to continue its work
without being disturbed by the noise made by the applicants demonstrating
outside the courthouse. What is at stake in the present case is the lawfulness
of the applicant s’ deprivation of liberty. The Court further ob serves that it is
not in dispute between the parties that the applicants ’ arrest and being
locked up in the duty room of the Tbilisi Court of Appeal by the bailiffs , as
well as the ir subsequent punishment by detention , as imposed by the
President of the Tb ilisi Court of Appeal , represented a continuous situation
of deprivation of liberty within the meaning of Article 5 § 1 of
the Convention. It can be assessed as fall ing into two periods – before and
after the applicants were brought before the judge who sanctioned their
detention in her decision of 29 June 2006 .
65 . As regards the first period of the applicants ’ deprivation of liberty,
the Court is ready to accept that since they were arrested on the basis of a
suspicion that they had committed the offences of breach of public order
and contempt of court, that period could fall within the exception authorised
by 5 § 1 (c) of the Conve ntion (compare, for instance, with Makhmudov
v. Russia , no. 35082/04, § 80 and 81, 26 July 2007 , an d Schwabe and M.G. ,
cited above, § 70 ). However , exercising its power to refer to the q uality of
the domestic law for the purposes of ascertaining the “lawfulness” of a
questioned period of detention (see paragraph 62 above) , the Court observes
that the circumstances surrounding the applicants ’ arrest and being locked

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 17
for some three hours in the duty room of the Tbilisi Court of Appeal can
hardly be held compatible with the relevant domestic provisions .
66 . Thus, if the Court is t o accept the Government ’s argument that the
applicant s were taken into custody on the basis of the Code of
Administrative Offences , and that their detention at that time fell within the
statutory limit of three hours permitted for such administrative arrest (see
paragraph 3 6 above) , a clear problem would arise with respect to the powers
of arrest of court ba iliffs as such. The Court notes that bailiff s were not
amongst the ex haustive list of those State agents who were empowered to
conduct administra tive arrest s under that Code (see paragraph 3 5 above).
67 . On the other hand , as could be seen from the verbatim records of the
applicants ’ arrest (see paragraph 12 above) , the ir arrest was linked to
section 76(3) § 1 of the Courts Act, notably to its sub -paragraph (f), which
entitled bailiffs to arrest individuals suspected of co mmitting the offences of
breach of public order and contempt of court. However, that domestic
provision, which stated that ba iliffs could conduct arrest s “for the purpose
of handing [offenders] to the police” , did not provide for any statu tory time –
limit during which an arrested individual could be kept in custody pending
his or her appearance before a judicial officer. Consequently, it remains
largely une xplained on the basis of which domestic legal provision, the
court bailiffs took the liberty of locking the applicant s up in the du ty room
of the Tbilisi Court of Appeal for at least three hours. Indeed , the Court
notes that it was only subsequent to the applicants ’ arrest on 29 June 2006
that the Georgian legislator fina lly fixed , on 29 December 2006, a
maximum permissible period for the duration of an arrest of an individual
suspected of having committed the relevant offences (see paragraph 31
above).
68 . Another matter for the Court ’s concern is that it cannot be discerned
with a sufficient degree of certainty either from section 76(3) § 1 (f) of
the Courts Act, which served as the basis for the applicant ’s arrest, or from
Article 208 § 6(1) of the CCP , which became the basis f or the subsequent
finding of the applicant s’ guilt, whether it was legally possible to arrest
individuals outside court -house s. The wording of these provisions limited
the territorial scope of both th e court bailiffs ’ powers of arrest and the
offences of breach of public order and contempt to the interior of court
building s. That being so, the Court has certain doubts that the applicants
could have foreseen at the relevant time and to a degree that was reasonable
in the circumstances that their street picket in front of the Tbilisi Court of
Appeal could entail their arrest and detention under the above -mentioned
domestic provisions. It reiterates in this respect that national law must be of
sufficient quality and, in particular, must be foreseeable in its application, in
order to avoid all risks of arbitrariness (see M. v. Germany , no. 19359/04,
§ 104, ECHR 2009).

18 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
69 . As regards the second period of the applicants ’ deprivation of
liberty, the ir detention for thirty days, given that the President of the Tbilisi
Court of Appeal imposed that measure in her decision of 29 June 2006 as a
punishment for the offences of breach of public order and contempt of court
under Article 208 § 6(1 ) of the C CP , the Court considers that that period can
fall under the exception provided for under Article 5 § 1 (a) of the
Conve ntion (see, for instance, Schwabe and M.G. , cited above, § 74 and 83 ,
and M. v. Germany , also cited above, § 87). However, the President never
discussed the major legal issue of whether the bailiffs had had the power to
arrest the applicants outside the court bu ilding and whether the applicants ’
behaviour out of doors could legitimately attract liability under the relevant
dom estic provisions. Her findings were based solely on the explanatory
notes provided by the court bailiffs and, similarly to those notes, the
findings lacked any detailed explanatio n and were strikingly succinct , and
resulted in the endorsement in her decision of the obvious ly untrue
statement that the applicants had committ ed the act s “inside the court
building, in its central entrance” (see paragraphs 12, 15 and 17 above) . It is
thus evident that the judge was negligent in reviewing both the factual and
the legal basis for the applicants ’ detention ( compare with Hakobyan and
Others v. Armenia , no. 34320/04 , § 123, 10 April 2012) , and exercised her
authority in manifest opposition to the elementary procedural guarantees
against arbitrariness provided for by the Convention ( compare with
Menesheva v. Russia , no. 59261/00, § 92, ECHR 2006 -III).
70 . In the ligh t of the foregoing the Court concludes that the applicants ’
arrest for some three hours could not be considered to have been bas ed on
sufficiently clear and foreseeable domestic provisions , whilst the subsequent
imposition of detention for thirty days was made in a n arbitrary manner,
without the requisite exercise of good faith on behalf of the domestic
authorities .
71 . Accordingly, there has been a violation of Article 5 § 1 of
the Convention.
2. Right to a fair trial
(a) The parties ’ arguments
72 . Acknowledging the applicability of Article 6 § 1 of the Conv ention
under its criminal head to the proceedings in question, the Government
submitted that the principles of equality of arms and adversarial pro ceedings
could not be considered to have been infringed by the absence of an oral
hearing before the President of the Tbilisi Court of Appeal, in so far as that
fact damaged the interests of both the applicants and the bailiffs equally .
The Government furth er contended that the applicants could still have
attempted to submit written comments in reply to the bailiffs ’ written
submissions before the President had taken the relevant decision . The

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 19
Government also submitted that the decision of 29 June 2006 of the
President of the Tbilisi Court of Appeal contained relevant and sufficient
reasons for the finding of the applicants ’ guilt under Article 208 § 6(1) of
the CCP , which were then fully en dorsed by the Supreme Court of Georgia.
73 . The applicants replied that they had had no opportunity to
communicate their views on the bailiffs ’ explanatory notes , which
subsequently became the sole basis for their punishment by the President of
the Tbilisi Court, either orally or at least in writing . They denounced the fact
that the President did not attempt of her own motion to check or question
the accuracy of the information provided by the bailiffs. The applicants
emphasised tha t they had not even been notified in advance that the
President was going to issue a decision on the spot, of which fact th ey had
learnt ex post factum in the remand centre, and had thus been unable to
submit arguments in their defence. They also stated th at the decision of
29 June 2006 of the President of the Tbilisi Court of Appeal was far too
generally worded and did not contain any reference to specific acts , nor did
it provid e any detailed reasoning .
74 . The parties also exchanged arguments on the applicants ’ complaints
under Article 6 § 3 (c) of the Convention concerning their inability to
defend themselves in person or through legal representation during the
examination of their case .
(b) The Court ’s assessment
75 . At the outset t he Court confirms that, given the nature of the penalty
imposed upon the applicants – deprivation of liberty – the proceedings in
question certainly attracted the applicability of the criminal limb of
Article 6 § 1 of th e Convention, an issue not disputed by the Government
(see, among many other authorities, Menesheva , cited above, § 94 -98 ).
76 . Having due regard to the similar findings of the Constituti onal Court
of Georgia, the Court considers that the manner in which the President of
the Tbilisi Court of Appeal heard the applicants ’ case under Article 20 8 § 7
of the CCP – a cursory procedure conducted in private, on the basis of the
court bailiffs ’ written submissions only and without giving t he applicants a
chance to be heard – constituted a complete negation of the most elementary
procedural requirements of a fair trial , such the right to adversarial
proceedings and equality o f arms, the right to have adequate time and
facilities for the prep aration of a defence, the right to benefit from qualified
legal assistance, and so on .
77 . The Court considers that t he findings given in the President ’s
decision of 29 June 2006 were a mere unquestion ing recapitulation of the
description of the charges as presented by the bailiffs , and do not appear to
have been reached as the result of an objective and thorough judicial
examination of the particular circumstances of the incident (see Menesheva ,
cited abo ve, § 99; Ziliberberg v. Moldova , no. 61821/00, §§ 40 -42,

20 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
1 February 2005; and Hakobyan and Others , cited above, § 98 ). It is also a
matter of concern to the Court that, having regard to the terms employed by
the President of the Tbilisi Court of Appeal du ring the press conference
concerning the applicants ’ arrest, she clearly prejudged the assessment of
the facts and expressed the opinion that the applicants were guilty before
they had been proved guilty according to law ( compare Böhmer
v. Germany , no. 37568/97, §§ 54 and 56, 3 October 2002, and Nešťák
v. Slovakia , no. 65559/01, §§ 88 and 89, 27 February 2007 ).
78 . The above considerations are sufficient for the Court to conclude
that there has been a violation of Article 6 § 1 taken together with
Article 6 § 3 (c) of the Convention in the present case.
3. The rights to freedom of expression and freedom of peaceful
assembly
(a) The parties ’ arguments
79 . Acknowledging that there had been an interference with the
applicants ’ rights under Articles 10 § 1 and 11 § 1 of the Convention , the
Government argued that it had been justified within the meaning of the
second paragraphs of these provisions. Notably , the interference had been
based on section 76(3) § 1 (f) of the Courts Act and Article 208 § 6(1) of
the CCP, which provisions fully satisfied the relevant requirements of
accessibility, foreseeability and precision (see also paragraph 57 above).
Furthermore, the interference had served the aim of maintaining the
autho rity of the judiciary. The Government observed in that connecti on that
in 2006 a reform of the judicial system had been ongoing in the country,
during which period there was a particularl y pressing need to protect the
judiciary from unfounded attacks.
80 . Referring to the insulting slogans uttered by the applicants during the
demonstration in the y ard of the Tbilisi Court of Appeal, the Government
considered that those expressions, especially those referring to the Minister
of the Interior as “a bastard” and urging the court not to obey and not to
become an accomplice to the latter ’s “criminal activ ities ” (see paragraph 8
above), exceed ed the limits of normal criticism and reflected the applicants ’
intention to debase publicly the authority of the Tbilisi Court of Appeal. As
to the proportionality requirement, the Government submitted that the
senten ce imposed upon the applicants – thirty days in prison – had been an
adequate punishment , given the gravity of the applicants ’ actions, especially
assessed against the fact that the applicants had allegedly refused to obey
the bailiffs ’ initial lawful orde rs to stop their contemptuous behaviour. In
that respect, the Government also informed the Court that the events of
29 June 2006 were not the first instance of such wrongful conduct by some
the applicants , and that the first, third and fourth applicants al ready had an

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 21
administrative record of breach es of public order committed during similar
street demonstrations.
81 . The applicants replied that, first, the interference with the
demonstration had not been “prescribed by law” since the bailiffs did not
have the power under either section 76(3) § 1 (f) of the Courts Act or
Article 208 § 6(1) of the CCP, the two legal provisions relied on by the
national authorities as the basis for the interference , which wa s to prevent
offences occurring outside court -house s. As a result, the applicants could
not have known to what extent they could exercise their rights to freedom of
expression and freedom of assembly without being deprived of their liberty .
The applicants further complained that , in her decision of 29 June 2006 the
President of the Tbilisi Court of Appeal had not given relevant and
sufficient reasons justifying the interference.
82 . The applicants submitted that their utterances dur ing the
demonstration of 29 June 2006 mainly repres ented a form of political
critic ism of the Minister of the Interior , and had the overall objective of
encouraging the Tbilisi Court of Appeal to hold a fai r trial in the
well -known criminal case of Mr Shal va Ramishvili. The only insulting
word, they conceded, was “bastard”, but that was clearly aimed at the
Minister and not at a member of the judiciary . The applicants also stated in
that regard that they represented an official human rights NGO whose
objectives included the promotion of the independence of the judici ary and
condemnation of abuses committed by the Ministry of the Interior .
The refore , they had had the right to contribute to public debate on a case
which had attrac ted considerable public attention at the material time , and
only the most compelling reasons c ould have justified the restrict ion on
their political utterance, which was on a matter of public interest. The
applicants also commented that that the imposition of detention for thirty
days was a disproportionate punishment.
(b) The Court ’s assessment
i. The scope of the applicants ’ complaints
83 . The Court notes that the applicants ’ complaints under Articles 10
and 11 of the Convention are based on the allegation that their arrest and
detention was a measure to prevent them from demonstrating outside the
Tbilisi Court of Appeal on 29 June 2006. In such circumstances , Article 11
is to be regarded as a lex speci alis and it is unnecessary to take the
complaint under Article 10 into consideration separately. On the other hand,
notwithstanding its autonomous role and particular sphere of application,
Article 11 must, in the present case, also be considered in the li ght of
principles developed under Article 10 (see, for instance, Ezelin v. France ,
26 April 1991, §§ 35 and 37, Series A no. 202).

22 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
ii. Violation of Article 11 of the Convention
84 . The Court reiterates that the right to freedom of assembly covers
both private meeting s and meeting s on public thorou gh fares, as well as
static meeting s and public processions (see Djavit An v. Turkey ,
no. 20652/92, § 56, ECHR 2003 -III). The term “ restrictions ” in paragraph 2
of Article 11 must be interp reted as including both measures taken before or
during the public assembly, and those, such as punitive measures, taken
afterwards (see Ezelin , cited above, § 39 , and Galstyan , cited above, § 101 ).
85 . The Court observes that, i n the instan t case, the applicants held a
demonstration in front of the Tbilisi Court of Appeal. Several minutes later
they were arrested and subsequently punished by being placed in detention
for breach of public order and contempt of court. Their prosecution, as
conceded by the Government, amounted to an interference with the exercise
of the freedom of peaceful assembly. It must therefore be determined
whether the interference complained of was “prescribed by law”, prompted
by one or more of the le gitimate aims set out in Article 11 § 2 of
the Convention , and “necessary in a democratic society”.
86 . As regards the requirement of “lawfulness”, the Court reiterates that
both section 76(3) § 1 (f) of the Courts Act and Article 208 § 6(1) of the
CCP, which legal provisions served as the basis for the applicant ’s arrest
and their punishment by detention, expressly and concomitantly stated that
actions allegedly constituti ng a breach of public order and contempt of court
could be p revented by court bailiffs and punished by the President of the
relevant court if committed inside court -houses (see also paragraph 67
above) . As regards the definition of the particular offence of contempt of
court, the Court further attaches importance to a finding of the
Constitutional Court of Georgia , which characterised it as vague (see
paragraph 47 above). That being so, the Court, simil arly to its finding under
Article 5 § 1 of the Convention, has very serious doubts that the applicants
could reasonably have foresee n that their demonstration outside the building
of the Tbilisi Court of Appeal, in its yard, could ever have attracted liabi lity
under the above -mentioned wording of the domestic provisions (compare,
mutatis mutandis , with Altuğ Taner Akçam v. Turkey , no. 27520/07 ,
§§ 92 -95, 25 October 2011, and also Amann v. Switzerland [GC],
no. 27798/95, §§ 78 -80, ECHR 2000 -II). However, having regard to a more
conspicuous problem arising with respect to the necessity of the
interference, the Court does not deem it appropriate to limit its finding
under Article 11 of the Convention to the lawfulness of the interference only
(compare with Dink v. Turkey , nos. 2668/07, 6102/08, 30079/08, 7072/09
and 7124/09, § 116, 14 September 2010 , and Hyde Park and Others
v. Moldova (nos. 5 and 6) , nos. 6991/08 and 15084/08 , § 48, 14 September
2010 ).
87 . The Court can accept the Go vernment ’s argument that
the interference in question pursued a legitimate aim: the prevention of

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 23
disorder and the protection of the authority of the judiciary. W hat is at stake
as regards the protection of the authority of the judiciary is the confidence
which the courts in a democratic society must inspire in the public at large
(see, mutatis mutandis , among other authorities, Fey v. Austria , 24 February
1993, § 30, Series A no. 255 -A). The Court considers that its assessment
must likewise relate to the question whether such a measure was necessary
in a democratic society. Concurring with the Constitutional Court of
Georgia (see paragraph 47 above), the Court reiterates in this regard that the
right of peaceful assembly is, like the right to freedom of ex pression, one of
the foundations of any democratic society. Consequently, only truly
convincing and most compelling reasons can justify an interference with
this right (see Djavit An , cited above, § 56, and Ouranio Toxo and Others
v. Greece , no. 74989/01, § 36, ECHR 2005 -X (extracts)).
88 . Notably, the Court observes that the demonstration , in which just
five persons participated, was dispersed a few minutes after it had started ;
during that extremely short period of time the appli cants were able to voice
only a very few slogans. Those fact s already call into question the
Government ’s assertion about the level of disruption of public order
(compare with Sergey Kuznetsov v. Russia , no. 10877/04, § 44, 23 October
2008). Nor does the content of those slogans amount, in the eyes of the
Court, to contempt of court or to an otherwise wrongful act . Thus, t he
majori ty of those slogans r epresented critical value judgments, in which the
applicants , resort ing to a certain degree of politic al exaggeration and harsh
words , referred to a matter of public concern in Georgia – the independence
of the judiciary ; t he applicants addressed the Tbilisi Court of Appeal
without being violent or rejecti ng democratic principles in their speech . The
Court reiterates in this respect that the judiciary , as with all other public
institutions, cannot be immune from criticism , however shocking and
unacceptable certain views or words may appear (see Sergey Kuznetsov ,
cited above, § 45 , and Skałka v. Poland , no. 43425/98, § 34 , 27 May 2003 ).
89 . The Court considers that t he only offensive phrase voiced by one of
the applicants during the ir short picket was the referral to the Minister of the
Interior as “Lavrentiy Beria ’s bastard”. How ever, the Court cannot
understand how that expression could constitute contempt of court , as it was
not addressed to a member of the judiciar y (contrast with Skałka , cited
above, § 36). In any event, in a democratic society, greater tolerance should
be shown to those expressing opinions which are c ritical of important public
figures, even if those opinions are expressed, as in the instant case,
inarticulately, intemperately or in a provocative manner (s ee Hyde Park and
Others (nos. 5 and 6) , cited above § 43 , and Nilsen and Johnsen
v. Norway [GC], no. 23118/93, §§ 52 and 53, ECHR 1999 -VIII ).
90 . Furthermore, i t is a matter of particular concern for the Court that in
her decision of 29 June 2006 the President of the Tbilisi Court of Appeal,
rather than fulfilling her duty to establish convincing grounds justifying the

24 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
dispersal of the demonstration and the punishment of the applicant s by the
imposition of detention, mostly paraphrased the general and abst ract t erms
of the qualification of offences of breach of public order and contempt of
court under the domestic law . She did not explain, by refere nce to the
particular circumstances of the incident, how exactly the administration of
justice was being obstructed and which specific phrases uttered by the
applicants were considered to be severe enough to constitute contempt of
court; the only matter she relied on in her decision – the statement that the
applicants had held their demonstration “inside the court build ing, in its
central entrance” – was untrue and thus unacceptable for the purpose of
justification under the second paragraph of Article 11 (see, among other
authorities, Christian Democratic People ’s Party v. Moldova , no. 28793/02,
§ 70, ECHR 2006 -II). Consequently, restriction on the applicant ’s right to
peaceful assembly cannot be sa id to have been based on relevant and
sufficient reasons (compare with Sergey Kuznetsov , cited above, § § 40
and 45; and The Sunday Times v. the United Kingdom (no. 1) , 26 April
1979, §§ 63 and 64, Series A no. 30 ).
91 . Lastly, the Court is struck by the fact that, given the absence of any
violent behaviour by the applicants during the authorised picket, they were
nevertheless subjected to the most severe penalty applicable to the offences
in question , namely thirty days of deprivation of liberty (compare, for
instance, Galstyan , cited above, § 116, in which the Court found that the
sanction of deprivation of liberty for three days for participat ing in an
authorised and peaceful street demonstration impaired the very essence of
the right to freedom of peaceful assembly) . The unreasonableness of th e
drastic penalty in the present case is further magnified when assessed
against the above -mentioned abse nce of sufficient and relevant reasons in
the underlying decision of 29 June 2006 .
92 . Having regard to the above considerations, the Court conclude s that
the Georgian authorities failed to act with due tolerance and good faith as
regards the applicants ’ right to freedom of assembly , did not adduce
sufficient and relevant reasons justifying the interference , and i mposed a
sanct ion which was disproportionate in the circumstances .
93 . It follows that there has been a violation of Article 11 of
the Convention .
II. ALLEGED VIOLATION OF ARTICLE 2 OF PROTOCOL N o. 7
94 . The applicant s further complained that that they had no right of
appeal against their conviction of 29 June 2006, in breach of Article 2 of
Protocol No. 7. This provision reads as follows:

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 25
Article 2 of Protocol No. 7
“1. Everyone convicted of a criminal offence by a tribunal shall have the right to
have his conviction or sentence reviewed by a higher tribunal. The exercise of this
right, including the grounds on which it may be exercised, shall be governed by law.
2. This right may be subject to exceptions in regard to offences of a minor
character, as prescribed by l aw, or in cases in which the person concerned was tried in
the first instance by the highest tribunal or was convicted following an appeal against
acquittal.”
95 . The Government submitted that there had been no violation of the
provision in question, as a j udge of the Supreme Court had duly examined ,
under Article 279 of the CAO, the applicants ’ appeal of 21 July 2006
against the ir conviction of 29 June 2006 .
96 . The applicant s disagreed, arguing that the examination of their
appeal under Article 279 of the CAO had not been effective , as it had
depended on the discretion of the domestic authorities .
97 . The Court obse rves that the situation in the present case is identical
to those examined by the Court in two similar landmark cases on the matter
– Gurepka v. Ukraine (no. 61406/00, §§ 59 -61, 6 September 2005) and
Galstyan (cited above, §§ 124 -127). Notably, in the instant case as well,
irrespective of the fact that the applicants ’ appeal had actually been
examined by a judge of the Supreme Court under Article 249 of the CAO ,
the extraordinary review procedure contained in that domestic provision,
which depend ed on the dome stic authorities ’ discretionary power and
lacked a clearly defined procedure or time -limits , rep resented an ineffective
remedy for the purposes of Article 2 of Protocol No. 7 (compare with
Galstyan , cited above, § 126, and Gurepka , also cited above, §§ 60 -61).
Furthe rmore, the offences of which the applicants were convicted by the
decision of 29 June 2006 cannot, given the severity of the consequent
punishment, be considered “minor” , and thus fall under the relevant
exception contained in second paragraph of this provision (ibid.) .
98 . There has thus been a violation of Ar ticle 2 of Protocol No. 7.
III . OTHER ALLEGED VIOLATIONS OF THE CONVENTION
99 . Lastly, relying on Article 5 §§ 2, 3, 4 and 5 of the Convention, cited
independently and in conjunction with Article 13 of the Convention, the
applicant s complained about various specific instances of procedural
unfairness of the domestic proceedings , including inability to lodge an
appeal against th eir conviction of 29 June 2006.
100 . However, having regard to its findings under Articles 5 § 1
and 6 § 1 of the Convention and Article 2 of Protocol No. 7 which are
lex specialis with respect to the major legal issues examined in the present
case (compare with Hakobyan and Others , cited above, § 125 -127 and 136;

26 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT
Galstyan , cited above, § 53; Gurepka , cited above, § 51; and Menesheva ,
cited above, §§ 105 -107), the Court considers that this part of the
application , which is a reiteration of the already examined issues, must be
rejected as manifestly ill -founded, pursuant to Article 35 §§ 3 and 4 of the
Convention.
IV . APPLICATION OF ARTICLE 41 OF THE CONVENTION
101 . Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
102 . The applicant s claimed 20,000 euros (EUR) each in respect of non –
pecuniary damage.
103 . The Government co nsidered the applicants ’ claims to be unfounded
and excessive.
104 . The Court has no doubt that the applicants suffered distress and
frustration on account of the violation of their various rights (see
paragraphs 71 , 7 8, 9 3 and 9 8 above) . Ruling on an equitable basis, the Court
awards each of the applicants EUR 6,000 in respect of non -pecuniary
damage, plus any tax that may be chargeable on th at amount.
B. Costs and expenses
105 . The applicants claimed EUR 3,970 and 1,330 United Kingdom
pounds sterling (GBP , EUR 1,667 ) on account of their representation before
the Court by, respectively, the two Georgian lawyer s and the British lawyer
(see paragraph 2 above). The two amounts were broken down into the
number of hours spent and the lawyers ’ hourly rates – seventy -nine hours
and forty minutes at the rate of EUR 50 for the two Georgian lawyers and
twenty -two hours at the rate of GBP 100 in 2006 and GBP 150 in 2010 for
the British lawyer. That itemisation also ind icated the dates and the exact
types of legal services rendered.
106 . The applicants further claimed, on the basis of the relevant receipt s,
1,361.20 Georgian laris (GEL, EUR 657 ) for postal and translation
expense s. The y also clai med EUR 592 and GBP 160 (EUR 200) for certain
other expenses allegedly incurred by their Georgian and British
representat ives when working on the application ; no financial documents
were submitted in support of the latter claim .

KAKABADZE AND OTHERS v. GEORGIA JUDGMENT 27
107 . The Government briefly commented that the applicants ’ claims
were mostly unsubstantiated and excessive.
108 . The Court observes that the Georgian and British lawyers from
GYLA and EHRAC actually rendered the necessary legal assi stance to the
applicants. It also observes in this connection that in a number of Georgian
cases it has found that the teamwork of the lawyers from these two NGOs in
proceedings before the Court could not be left un compensat ed and that
similar evidence of the lawyers ’ work – a detailed and credible itemisation
of the hours spent – was acceptable proof of the expenses incu rred by the
applicant s’ representatives (see Klaus and Yuri Kiladze v. Georgia ,
no. 7975/06, §§ 91 -94, 2 February 2010, and Tsintsabadze v . Georgia ,
no. 35403/06 , § 105 , 15 February 2011 ). Thus, the Court considers it
appropriate to award the applicant s EUR 3,970 and GBP 1,330 (EUR 1,667 )
on account of their representation by, respectively, the two Georgian
lawyer s and the British lawyer.
109 . As regards the administrative expenses, the Court, in the light of its
well -established case -law on the matter (see, for instance, Ghavtadze
v. Georgia , no. 23204/07, §§ 118 and 120, 3 March 2009), and having due
regard to the documentary evidence submitted, considers that the applica nts
should be awarded GEL 1,361.20 (EUR 657) for postal and translation
expenses.
C. Default interest
110 . The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint s under Articles 5 § 1, 6 §§ 1 and 3 (c), 10 and 11
of the Convention and Article 2 of Protocol No. 7 admissible and the
remainder of the application inadmissible;

2. Holds that there has been a vi olation of Article 5 § 1 of the Convention;

3. Holds that there has been a violation of Article 6 § 1 taken togeth er with
Article 6 § 3 (c) of the Convention;

4. Holds that there has been a violation of Article 1 1 of the Convention;

5. Holds that there has been a violation of Article 2 of Protocol No. 7;

28 KAKABADZE AND OTHERS v. GEORGIA JUDGMENT

6. Holds that there is no need to examine separately the c omplaint under
Article 10 of the Convention;

7. Holds unanimously
(a) that the respondent State is to pay the applicant s, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, the following amounts, to be
converted into the national currency of the respondent State at the rate
applicable at the date of settlement:
(i) EUR 6,000 (six thousand euros ) to each applicant , plus any tax
that may be chargeable, in respect of non -pecun iary damage;
(ii) EUR 5,957 (five thousand nine hundred and fifty -seven euros)
to the applicants jointly plus any tax that may be chargeable to
the m, in respect of costs and expenses;
(b) that from the expiry of the above -mentioned three months until
set tlement simple interest shall be payable on the above amounts at a
rate equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;

8. Dismisses the remainder of the applicant s’ claim for just s atisfaction.
Done in English, and notified in writing on 2 October 2012 , pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President

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