CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 8 juin 2023

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s4BAE41EE { font-family:Arial; font-size:11pt } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s819344C9 { margin-top:14pt; margin-left:18pt; margin-bottom:12pt; text-indent:-18pt; text-align:justify; font-size:14pt } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sBD1BE8CC { width:33.89pt; display:inline-block } .s9AA0C774 { width:151.77pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }     FIFTH SECTION DECISION Application no. 59385/18 Zurab Girchi JAPARIDZE against Georgia   The European Court of Human Rights (Fifth Section), sitting on 8 June 2023 as a Committee composed of:   Carlo Ranzoni , President ,   Mattias Guyomar,   Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   59385/18) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 12   December 2018 by a Georgian national, Mr Zurab Girchi Japaridze (“the applicant”), who was born in 1976 and lives in Tbilisi and was represented by Ms T. Oniani, a lawyer practising in Tbilisi; the decision to give notice of the complaints under Article 6 § 3 (a) and (b) of the Convention concerning the right to be informed promptly and in sufficient detail of the nature and cause of an accusation and the right to be afforded adequate time and facilities to prepare one’s defence to the Georgian Government (“the Government”), represented by their Agent, Mr   B.   Dzamashvili, of the Ministry of Justice, and to declare the remainder of the application inadmissible; the parties’ observations; the decision to reject the Government’s objection to the examination of the application by a Committee; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns the applicant’s right to be informed of the nature and cause of the accusation against him in administrative-offence proceedings and his right to have adequate time and facilities for the preparation of his defence, as provided under Article 6 § 3 (a) and (b) of the Convention. 2.     On 2   May 2018 the applicant became involved in a discussion with police officers who had been trying to take a relative of his for a drug test. The applicant’s relative was eventually arrested. The applicant, together with other individuals, walked to the police station, apparently located nearby, and continued contesting the police officers’ actions at the station. 3 .     On 3 May 2018 the applicant was given an administrative-offence report regarding the events of the previous day. According to the charges: “on 2 May 2018 [the applicant] showed resistance to police officers and breached public order in Tbilisi alongside (“ მიმდებარედ ”) 1a Kavtaradze Street.” The report referred to Articles   166 (breach of public order) and 173 (disobedience to lawful orders of the police or commission of any other unlawful act against the police) of the Code of Administrative Offences (CAO) as the relevant provisions and indicated that eight written documents, one DVD and one CD had been appended to it. This material included witness statements and video footage and related to the applicant’s actions at 1a Kavtaradze Street and his subsequent behaviour at the police station. The applicant signed the report, noting that he did not agree with it. 4 .     The trial court held a hearing on the same day. The judge explained their procedural rights to the applicant and his co-accused who did not make any submissions in this regard. The accusing party formulated the charges before the trial court as concerning interference with the arrest of an individual at 1a Kavtaradze Street, disobedience to police orders and the use of foul and insulting language on that occasion, and subsequent attempts to enter the police building where the arrested individual had been taken and the use of foul and insulting language there. The judge then explained to the accused the substance of Articles 166 and 173 of the CAO and gave the applicant and his co-defendants the opportunity to make substantive submissions. 5 .     The applicant and his co-defendants provided their account of the events at 1a Kavtaradze Street and subsequently at the police station. They stated that no physical force had been used by them at either of the two locations, and that they had merely protested against unfair drug policies and their application to an individual whom the applicant and his co ‑ defendants had considered innocent. They had then walked to the police station and the attempts to enter the police station and the possible use of foul language outside the building had been part of that protest. 6 .     Subsequently the video material was examined and the police officers were questioned who described the events at Kavtaradze Street and at the police station. They alleged that the applicant and his co-accused had interfered with the arrest, insulted officers, used foul language in general, followed the officers to the police station and continued their disruptive and insulting behaviour there. The applicant and his co-defendants were able to put questions to these witnesses. 7 .     Following the proceedings, which lasted three hours, the trial court convicted the applicant and his two co-accused as charged. A fine of 2,000 Georgian laris (approximately 700 euros) was imposed on the applicant and ten days’ administrative detention was applied in respect of his co-accused. The trial court established, “based on the administrative-offence material and court proceedings”, that the applicant had breached public order, had not obeyed lawful orders of the police, had impeded the implementation of their professional duties, and had verbally insulted the officers. The judgment specified that the applicant had committed the above acts on the land alongside 1a Kavtaradze Street “and subsequently at the administrative building of the police”. 8 .     In his subsequent appeal the applicant stated that the commission of the administrative offences imputed to him had not been proven by the material in the case file. Additionally, he complained that the administrative-offence report had not indicated which specific actions had constituted a breach of public order and disobedience to the orders of the police officers. In addition, according to the applicant, the trial court had gone beyond the charges and circumstances indicated in the administrative-offence report and had also found the applicant guilty with respect to the episode at the police station. 9 .     On 13 June 2018 the Tbilisi Court of Appeal, sitting as a court of final instance, found the appeal unsubstantiated. It noted that the trial court had assessed the explanations given by the parties during the trial, the statements given by the witnesses, and the video material depicting the contested events. The appellate court found that the complaint regarding the vagueness of the charges had been unsubstantiated. It noted that, under Article   240 of the CAO, an administrative-offence report should indicate when and where it was drafted, the identity of its authors, information about the accused, “the time, location and essence of the [alleged] administrative offence”, the legal provision under which the alleged offence was defined, the “names, surnames and addresses of witnesses and victims, if they exist”, the explanation given by the alleged offender, and other information necessary for the consideration of the case. The court went on to note as follows: “[T]he Chamber notes that the court makes its assessment – and then takes its decision – on the basis of the administrative-offence report and the [related] material in the case file taken together, by means of a joint analysis of them. Accordingly, the mere fact that an administrative-offence report does not specify in detail what amounts to an administrative offence cannot constitute grounds for precluding administrative liability.” THE COURT’S ASSESSMENT 10.     Relying on Article 6 § 3 (a) and (b) of the Convention, the applicant complained that he had not been informed in detail of the nature and cause of the accusation against him on account of the fact that the administrative ‑ offence report had been couched in general terms and did not, in any event, refer to the events at the police station. He also complained that his right to have adequate time and facilities for the preparation of his defence had been breached because he had not been given access to the case file before the trial and the trial had been carried out by means of expedited proceedings. 11.     The Government submitted that the applicant had not raised any complaints before the appellate court concerning the lack of access to the case file or the inadequacy of the time and facilities afforded for the preparation of his defence. He had therefore failed to exhaust domestic remedies. The Government also submitted that the case file had clearly shown that the accusation against the applicant had included his behaviour at the police station. Moreover, during the proceedings the applicant had made submissions in respect of his behaviour at both locations, effectively indicating that he had understood the charge and had been able to defend himself. 12.     The relevant general principles relating to sub-paragraphs   (a) and (b) of Article   6 §   3 of the Convention have been summarised in Kamasinski v.   Austria (19   December 1989, §   79, Series A no. 168), Sejdovic v.   Italy ([GC], no.   56581/00, §§   89-90, ECHR 2006 ‑ II), Mattoccia v.   Italy (no.   23969/94, §§   59-60, ECHR 2000 ‑ IX) and Pélissier and Sassi v.   France ([GC], no.   25444/94, §§   51-54, ECHR 1999-II). 13.     Additionally, although the applicability of Article   6 to the administrative proceedings in question has not been disputed, the Court will address this issue. The non-custodial sanction in the present case had a purely punitive nature and the relevant provisions also provided for the imposition of custodial sanctions (see Makarashvili and Others v.   Georgia , nos.   23158/20 and 2   others, §§ 39-40, 1   September 2022). Therefore, the proceedings in the present case should be classified as determining criminal charges against the applicant, even though the charges are characterised as “administrative” under Georgian legislation (ibid., §   51; see also Navalnyy v.   Russia [GC], nos.   29580/12 and   4 others, §§   77-80, 15 November 2018, with further references). However, while the requirements of a fair trial are the strictest concerning the hard core of criminal law, the criminal-head guarantees of Article   6 do not necessarily apply with their full stringency to other categories of cases falling under that head (see Jussila v. Finland [GC], no.   73053/01, §   43, 23   November 2006, with further references). 14.     Turning to the circumstances of the present case, the Court finds that the applicant failed to raise before the appellate court his complaints concerning the alleged lack of access to the case file and having been afforded insufficient time to prepare his defence (see paragraph   8 above). It follows that this part of the application is inadmissible for non-exhaustion of domestic remedies and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention. 15.     By contrast, the applicant did complain that the charges contained in the administrative-offence report had not been detailed and that the trial court had exceeded the scope of the charges against him. Considering that sub ‑ paragraphs   (a) and (b) of Article 6 § 3 are connected and that the right to be informed of the nature and the cause of the accusation must be considered in the light of the accused’s right to prepare his defence (see Pélissier and Sassi , cited above, §   54), the Court finds that these issues should be considered under these two sub ‑ paragraphs of Article   6 §   3 of the Convention taken together. 16.     In this connection, as regards the complaint relating to the allegedly generic wording of the administrative-offence report, the document in question set out the charges against the applicant and referred to Articles 166 and 173 of the CAO. It described the applicant’s actions as resistance to police officers and a breach of public order “alongside” a certain location (see paragraph 3 above). The report was accompanied by documents containing witness statements and video-recordings relating to the incident in respect of which the administrative-offence report had been drafted. Taking into account that the case against the applicant was not a complex one, the Court agrees with the appellate court’s reasoning that the administrative-offence report, considered together with the material annexed to it, had been sufficiently clear as to the essence of the charges against the applicant (see paragraph 9 above). 17.     As to the second limb of the applicant’s complaint relating to the fact that he was found guilty of administrative offences committed at two different locations rather than only the one indicated in the administrative-offence report, the Court considers that the use of the term “alongside” in the document containing the charges against the applicant and the fact that the police station had been located within walking distance from the address indicated in that document are important elements for the assessment of whether the applicant was duly notified of the cause of the accusation against him. The Court additionally notes that essentially the incident at 1a Kavtaradze Street did not end there and continued – with the applicant following the police – at the police station located nearby. 18.     In this context, it is particularly important to note that all the evidential material annexed to the administrative-offence report (access to which was not the subject of complaint by the applicant at the domestic level) related to both locations (see paragraph   3 above). Additionally, once the trial commenced, the charges were explicitly formulated as referring to both locations, effectively treating the incident as a continuous one (see paragraph   4 above). What is more, the applicant (and his co-accused) made submissions and defence arguments in respect of both locations (see paragraph   5 above), clearly indicating that the applicant understood the content and scope of the charges against him and was able to defend himself against the accusation. 19.     In the light of the foregoing, and considering that Article   6 §   3   (a) does not impose any special formal requirement as to the manner in which the accused is to be informed of the nature and cause of the accusation against him (see Pélissier and Sassi , cited above, §   53), the Court finds, in the circumstances of the present case, that the applicant was duly informed of the nature and cause of the accusation against him, that is to say, the actions he was alleged to have committed and on which the accusation was based, as well as the legal characterisation given to those actions, and he was able to defend himself against the accusation. The related complaints under Article   6 §   3   (a) and (b) of the Convention are therefore manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 29 June 2023.     Martina Keller   Carlo Ranzoni   Deputy Registrar   President