CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 29 août 2024

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text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s9D025815 { width:20.21pt; display:inline-block } .s915ECF9D { width:130.43pt; display:inline-block } .s5A65B3DC { width:46.56pt; display:inline-block } .s44B8752F { width:177.11pt; display:inline-block } .sD00444C6 { margin-top:0pt; margin-bottom:14pt } .s75A32C27 { border-collapse:collapse } .s2F3EB0E4 { border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top; background-color:#dfdfdf } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .sE1A7A04C { font-family:Arial; font-weight:bold; color:#424242 } .sBAADFE8C { border:0.75pt solid #838383; padding:1.02pt 5.03pt; vertical-align:top }   FIFTH SECTION CASE OF KHACHAPURIDZE AND KHACHIDZE v. GEORGIA (Applications nos. 59464/21 and 13079/22)   JUDGMENT   Art 6 § 1 (criminal) and Art 6 § 3 (c) and (d) • Fair hearing • Defence in person • Examination of witnesses • Obtain attendance of witnesses • Procedural rights of first two applicants adversely affected by a combination of deficiencies and to such an extent as to undermine overall fairness of proceedings against them • Domestic courts’ failure to give sufficient reasons for their refusal to hear a main defence witness • Reliance on statements of absent witnesses, whose evidence carried significant weight, without sufficient counterbalancing factors to compensate for handicaps caused to the defence • Insufficient reasons for complete exclusion from remaining trial of applicants for disorderly conduct • As applicants attending via remote connection, in principle, it should have been possible to limit allegedly disruptive effect of their behaviour while ensuring their right to hear and follow proceedings • Appeal hearing did not remedy trial defects   Prepared by the Registry. Does not bind the Court.   STRASBOURG 29 August 2024   FINAL   29/11/2024   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Khachapuridze and Khachidze v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Mattias Guyomar , President ,   Carlo Ranzoni,   Mārtiņš Mits,   María Elósegui,   Kateřina Šimáčková,   Mykola Gnatovskyy , judges ,   Françoise Tulkens , ad hoc judge , and Victor Soloveytchik, Section Registrar, Having regard to: the applications (nos.   59464/21 and 13079/22) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by three Georgian nationals, Ms Tamar Khachapuridze, Mr Kakhaber Khachidze and Mr   Davit Khachidze (“the applicants”), on the dates indicated in the appendix; the decision to give notice to the Georgian Government (“the Government”) of the complaints under Article   3, Article 6 §§ 1 and 3 and Article   8 of the Convention and to declare inadmissible the remainder of the applications; the parties’ observations; Considering that Mr Lado Chanturia, the judge elected in respect of Georgia, was unable to sit in the case (Rule 28) and that the President of the Chamber decided to appoint Ms Françoise Tulkens to sit as an ad hoc judge (Rule 29); Having deliberated in private on 9 July 2024, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The case concerns the first and second applicants’ alleged inability, in the criminal proceedings against them, to obtain the attendance of witnesses on their behalf under the same conditions as witnesses against them, the domestic courts’ reliance on statements of absent witnesses as evidence, and the above-mentioned applicants’ removal from the trial. It also concerns the alleged ineffectiveness of a criminal investigation into the third applicant’s injuries. The first and second applicants relied on Article   6 §§   1 and   3 of the Convention, while the third applicant relied on Articles   3 and 8 of the Convention. THE FACTS 2.     The first applicant is Ms Tamar Khachapuridze, who was born in 1970; the second applicant is Mr Kakhaber Khachidze, who was born in 1969; and the third applicant is Mr Davit Khachidze, who was born in 2003. The first and second applicants are spouses, and the third applicant is their son. They were represented by Mr Y. Boychenko, a lawyer practising in Strasbourg. 3.     The Government were represented by their Agent, Mr B.   Dzamashvili, of the Ministry of Justice. 4.     The facts of the case may be summarised as follows. INCIDENT OF 26   AUGUST 2016 5 .     On 26   August 2016 two reports were made to the police about an incident at Gonio Beach near the city of Batumi. The first report was made by the first applicant, who complained that Judge G.M., the then President of the Tbilisi City Court, had verbally and physically assaulted her and her son (the third applicant). The second report was made approximately forty minutes later by G.M., who complained that he had been the victim of a physical and verbal assault by the first applicant and her family. CRIMINAL PROCEEDINGS AGAINST THE FIRST AND SECOND APPLICANTS Opening of a criminal investigation 6 .     A criminal investigation was opened the same day. Initially, it was based on Article   125 of the Criminal Code (“battery” – see paragraph   81 below), but later that day it was reclassified under Article   365 §§ 3 and 5(a) of the Criminal Code (“threats or violence with respect to legal proceedings, the investigation or conduct of the defence” – ibid.). 7 .     In the early hours of 27   August 2016 the first and second applicants were arrested and charged under Article 365 of the Criminal Code. On 28   August 2016 the second applicant was released on bail while the first applicant was placed in pre-trial detention. She was released on bail on 21   September 2016. Evidence obtained by the authorities 8 .     Immediately following the incident, on 26 and 27 August 2016, the investigating authorities interviewed witnesses, with the exception of the third applicant for whom a forensic medical examination was ordered (see paragraph   63 below). 9 .     G.M. stated that in 2015 he had heard an administrative case brought by the first applicant and had delivered a judgment unfavourable to her. Afterwards, she had started to make insulting comments about him on social media. As to the incident at the beach, he had been on holiday with his wife and two children, accompanied by a friend and his family. According to G.M., at the time of the incident he was in the sea with his children, who could not swim independently. The first applicant approached him, spat at him and began shouting insults and threats. She claimed that he was unworthy of being a judge. She was soon joined by the second and third applicants, who started insulting him and attempting to hit him. He was hit several times. V.B. (G.M.’s friend) and others had to intervene to restrain them. G.M. stated that the second applicant had claimed that the family had been ruined by his decision in their case. Fearing for the safety of his children and wife, G.M. was forced to leave the area. M.K. (G.M.’s wife) and V.B. made similar statements. 10.     The first and second applicants protested their innocence, claiming that G.M. had sworn at the first applicant, triggering the incident. They claimed they had not hit or threatened G.M., and that the third applicant had been hit and injured by G.M. 11 .     Six eyewitnesses, whose statements were later read out at the trial (see paragraph   50 below), were questioned by an investigator. Of these six, three were Georgian nationals (T.A., Z.Tch., and B.Tch.), one was an Armenian national (L.A.) and two, a husband and wife, were Russian nationals (A.G. and L.G.). The latter three witnesses were questioned with the help of an interpreter; they all stated that they were on holiday in Georgia. The witness interview reports did not contain their telephone numbers; the reports on the two Russian nationals contained personal identification numbers and detailed addresses, and the report on the Armenian national contained the city and neighbourhood in which the witness lived. The three witnesses were all warned that they could be summoned to appear before a magistrate judge. 12 .     N.G., a paramedic and M.M., a lifeguard, also gave statements (see paragraphs   48-49 below). 13 .     Two other witnesses gave statements. Witness D.G. stated that he had heard noise and seen a commotion on the beach from a bungalow. When he approached the scene, a woman and a boy were insulting a man. He did not witness any physical assault. Witness A.D. stated that he had gone to the beach after breakfast and seen a woman leaving the beach shouting something. He later learned of the incident. These statements were not read out at the trial. A request by the applicants to compel these witnesses to appear and testify was dismissed (see paragraph   39 below). 14 .     On 26 August 2016 M.K. submitted two video-recordings she had made with her mobile phone to the investigating authorities. On 6 October 2016 they were admitted into evidence by the Khelvachauri Regional Court. 15 .     The first video-recording available in the case file shows all three applicants and G.M. standing in the water, close to the shore. Some holidaymakers can be seen in the water in the background. The recording begins with the second applicant standing close to G.M. and actively shouting and gesticulating at him. The first and third applicants are standing nearby. The second applicant appears to swear at G.M. For a second, a bystander blocks the view, following which G.M. can be seen stumbling in the water. Immediately afterwards, the third applicant, who was thirteen years old at the time, makes a rapid charge towards G.M., who raises his hands, seemingly in self-defence. The third applicant appears to hit G.M., swearing at him. G.M.’s simultaneous right-hand movement suggests that he could have hit the third applicant on the left side of his face. The second applicant then grabs the third applicant and pulls him away from G.M. The first applicant immediately moves in G.M.’s direction, waving her hand at him, causing the water to splash him, and says some inaudible phrases. She is pulled away by the second applicant, who can be seen attempting to hold her back. The third applicant breaks free and, while hurling insults at G.M. and attempting to charge at him, is then restrained by two other individuals, one of whom appears to be G.M.’s friend V.B. It appears that G.M. swears at the third applicant at that point. The video ends with a child crying (apparently the first and second applicants’ daughter) and G.M. coming out of the water, while two individuals are actively restraining the third applicant. 16 .     The second video-recording shows the first applicant sitting on a sunbed surrounded by the second and third applicants and two young children. She yells “I will cut him with a knife if given the opportunity, easily.” A man’s voice (either that of V.B. or G.M.) can be heard saying “that’s up to you.” She then says “bastard”. The first applicant addresses the person filming her (apparently M.K.) saying, among other things, that she can keep filming. Proceedings before the first-instance court 17 .     On 28 August 2016 the Khelvachauri Regional Court (hereinafter also “the trial court”), sitting in a single-judge formation, set 18 October 2016 as the date for the first pre-trial hearing in the applicants’ case. The parties were ordered to exchange, no later than five days before that hearing, information regarding all evidence which they were planning to rely on during the trial. As it appears from the case-file material, the list of evidential material submitted by the first and second applicants indicated the third applicant as a witness for the defence. 18.     As it appears from the case file material, at least three pre-trial hearings were held with the applicants’ and their lawyers’ participation on 18   October, 1 November, and 30 November 2016. The trial court considered various applications lodged by the parties, including those concerning the admissibility of evidence. The content of the pre-trial hearings of 18   October and 1   November is not fully clear. It appears that on the latter date the first and second applicants submitted requests to have certain material admitted into evidence. The matter was addressed during the pre-trial hearing of 30   November 2016 (see paragraph   19 below). 19 .     During the pre-trial hearing of 30 November 2016 the trial court addressed, among other issues, the first and second applicants’ request to admit into evidence the written record (dated 11   October 2016) of the third applicant’s questioning which had been carried out by a defence lawyer specialising in youth justice. The trial court rejected the request which it found to have been submitted in breach of procedural rules. Specifically, the record had been drawn up in respect of a witness by an individual who was not a party to the proceedings against the first and second applicants. The record was therefore inadmissible evidence. On that date the trial court admitted into evidence, despite the prosecutor’s objections, other material (mostly medical documents and various media material) submitted by the first and second applicants. 20 .     On the same date – 30 November 2016 – the trial court concluded the pre-trial stage of the proceedings and the case was set down for trial on 9   December 2016. The content of the hearing of 9 December 2016 and the extent of the applicants’ participation in it are unclear. 21.     In 2017 the applicants left Georgia and settled in the United Kingdom (and were subsequently granted refugee status). On an unspecified date the trial court granted a request by the first and second applicants to participate in the trial remotely, by means of a video link. 22 .     It appears from the case-file material that thirteen trial hearings were held in total. In addition to the one of 9 December 2016 (see paragraph   20 above), twelve trial hearings appear to have taken place on the following dates in 2018: 30 April; 10, 14 and 22 May; 1, 12, 13 and 22 June; and 6, 13, 16, and 23 July. The case file material contains somewhat limited information regarding these hearings. The first and second applicants participated in the hearings by means of the video link until their removal on 22 June 2018 (see paragraphs   31-35 below). Their two lawyers were personally present at the hearings. 23.     The trial court warned the parties before the start of each hearing that they had to maintain order and comply with its instructions, and that contempt of court would result in sanctions. 24.     On 10 May 2018 three investigators were heard, and the trial court granted the first and second applicants’ application to have the forensic report concerning the third applicant’s injuries (see paragraph   63 below) obtained and admitted into evidence. 25.     On 14 May 2018 two other investigators and N.G. gave evidence. 26.     On 1 June 2018 M.M. was heard and video evidence was assessed. 27 .     On that same date the prosecutor requested that the six eyewitness statements given at the investigation stage (see paragraph   11 above) be read out at the trial. According to the prosecutor, witnesses A.G. and L.G. lived in the Russian Federation, while witness L.A. lived in Armenia so “their appearance before the court would [have] involve[d] an unreasonable effort.” As regards the other three witnesses, who were Georgian nationals, it was noted that B.Tch. could not be located, that T.A. had recently given birth to a child and could not appear at the trial and that the whereabouts of Z.Tch., who had crossed the border on 11   May 2018, were unknown. 28.     The applicants disagreed, arguing that, contrary to the procedural legislation in force, the non-Georgian witnesses had not been summoned to appear before a magistrate judge, despite it being obvious that they would leave Georgia. As regards the other three witnesses, the applicants stated that the prosecution had not made all reasonable efforts to locate them. Relying, inter alia , on the case of Al-Khawaja and Tahery v.   the United Kingdom ([GC], nos.   26766/05 and 22228/06, ECHR 2011), the first and second applicants requested that the statements of the absent witnesses not be read out. 29 .     On 22 June 2018 the trial court granted the prosecutor’s request to have the six eyewitness statements given at the investigation stage read out at the trial. It held that Article   114 of the Code of Criminal Procedure (“the CCP” – see paragraph   82 below) provided that a party to the proceedings had a right, rather than an obligation, to have a witness examined before a magistrate judge. It then noted that, in any event, the reading out at trial of witness statements given to an investigator or evidence given before a magistrate judge was governed by Article   243 of the CCP (ibid.). Pointing out that the statements of absent witnesses could not be the sole basis for a conviction, and citing the case of Al-Khawaja and Tahery (cited above), the trial court found that the conditions for reading out the statements of the six witnesses in question had been met. Specifically, witnesses A.G., L.G. and L.A. were foreign citizens whose whereabouts were unknown. The whereabouts of B.Tch. and Z.Tch. were also unknown. As far as T.A. was concerned, the court noted that she had just given birth and that the explanation for her inability to travel 400 kilometres to attend the trial was understandable. The court concluded, without further elaboration, that “there were procedural guarantees for a fair and appropriate assessment of the evidence [and that] a conviction could not be based on such evidence.” 30 .     On the same day – 22   June 2018 – G.M., M.K. and V.B. were questioned. 31 .     G.M. gave evidence to the trial court in his capacity as a victim, in the presence of the first and second applicants (via video link) and their lawyers. For approximately thirty minutes, the applicants’ lawyers put multiple questions to G.M. regarding the incident. The first applicant then asked questions. She was warned against disorderly conduct, apparently for speaking out of turn, and was told that if she continued such behaviour she would be removed from the hearing (in which she was taking part remotely). After she had finished asking questions, the second applicant took over. The first applicant interjected with an inaudible phrase while G.M. was answering the second applicant’s question. She was warned by the judge against disorderly conduct and the risk of being removed from the hearing. She interjected again with an inaudible phrase when the second applicant was putting a question to G.M. The judge stated as follows: “Ms   Tamar, you are now expelled from the courtroom and it is possible that you will be subjected to pecuniary sanctions for failing to maintain order in the courtroom. Ms.   Tamar was expelled for breaching the order despite repeated warnings. A respective decision will be handed over to you and you will be allowed to appeal.” Her connection was then cut off. She did not lodge a separate appeal against her removal. 32 .     The judge asked the second applicant to continue asking his questions in isolation from the first applicant (who was apparently in the same room) because of her removal. The second applicant started asking a question and the first applicant was heard interjecting. The second applicant was warned that he would also be removed from the hearing if the first applicant continued being disruptive, and that the trial would continue with only their defence lawyers’ participation. The second applicant replied that he understood the content of the warning and finished putting questions to the victim. 33 .     The trial court then heard the victim’s wife, M.K. When the second applicant started putting questions to the witness, he uttered a phrase mentioning, without naming any individuals, “the leading figures in the country”. The judge interrupted and told him to refrain from making political statements. The second applicant started a sentence with “you always, since day one, [and] for two years ...”, which the judge interrupted, reminding him not to make political statements in a court of law, in reply to which the second applicant uttered an inaudible phrase and was immediately removed from the hearing. 34.     V.B. was heard with the participation of the first and second applicants’ lawyers who put questions to him. 35 .     It appears that a request made by the applicants the same day – 22   June 2018 – to be allowed back into the hearing was rejected by the trial court. The reasons for that remain unclear. 36 .     During the trial hearing of 6 July 2018 the defence lawyers lodged a request to have the third applicant examined remotely, stating that he would give information relating to the findings of the forensic medical examination in respect of his injury and “the factual circumstances which he [had] witnessed ... on 26 August 2016”. His testimony would therefore help to establish the truth. 37 .     The judge rejected the request the same day. He reasoned that the whereabouts of the minor witness were unknown. His identity could therefore be called into question by the prosecution. Furthermore, a witness had to be warned of possible criminal liability and, in the absence of an address, no such document could be drawn up or signed by him. Lastly, the judge held that, as the witness was a minor, he could only give evidence in the presence of his legal guardians. Given that they were the accused, he would have to do so in the presence of a court-appointed legal representative. Taking into account an earlier submission by the first and second applicants that the third applicant had been undergoing psychological rehabilitation, and in the absence of an identifiable address, the court considered that it was not possible to ensure his best interests by appointing a representative to hear him remotely. 38 .     On an unspecified date the prosecution removed A.D. and D.G. (see paragraph   13 above) from its list of witnesses. The defence then requested, without explaining their relevance to the applicants’ case, that they be called as witnesses for the defence. The request was granted by the trial court. 39 .     During the hearing of 16 July 2018 the defence claimed that witnesses A.D. and D.G. had agreed to appear but had failed to do so. The related request to compel them to appear was rejected on the grounds that, although the reason for their failure to appear before the court was not clear, they had not refused to appear and give evidence. According to the judge, this was not disputed by the defence. It was therefore for the defence to ensure the witnesses’ attendance or to explain the reason for their absence. 40 .     On 16   July 2018 the trial court examined the first and second applicants’ application, lodged by their lawyers, to postpone the trial so that the third applicant could appear in person. The application referred to the possibility of his travelling to Georgia between 10 and 17 August 2018, during the school holidays, or between 17   and 24 September 2018. The prosecutor objected. He stated that the applicants had been obliged to present their own witnesses. Yet, they had failed to do so in so far as the third applicant was concerned. The prosecutor claimed, without elaborating further, that the investigative authorities had tried, to no avail, to question the third applicant both as part of the case against the first and second applicants and within the context of the separate criminal investigation involving the third applicant’s injuries. The trial court rejected the application on the grounds that it was the parties’ obligation to present the evidence of which the defence had been aware and had an opportunity of doing so earlier. In the absence of any guarantees that the witness would actually appear during the specified period, the request was found to have been submitted with the purpose of delaying the criminal proceedings. 41 .     On the same day the prosecutor made his closing statement. The first and second applicants’ lawyers requested a postponement to prepare the closing statements. The request was granted. 42 .     On 23 July 2018 the first and second applicants’ lawyers made the closing statements on behalf of the said applicants. Judgment of the trial court 43.     On 23 July 2018 the Khelvachauri Regional Court delivered its judgment. Both applicants were found guilty under Article   239 of the Criminal Code (“hooliganism” – see paragraph   81 below). In reclassifying the charges, the trial court referred to the practice of the Supreme Court in such matters and explained that courts could reclassify charges if the facts established during the proceedings so warranted. The court then explained the objective and subjective elements of the offence in question. 44.     The first and second applicants were sentenced to a criminal fine of 3,000 Georgian laris (GEL – approximately 1,050 euros (EUR)) and GEL   2,500 (approximately EUR   875) respectively. According to the trial court, it was not necessary to impose a custodial sentence because the applicants had two minor children and a fine would sufficiently serve the purpose of punishment. 45.     The trial court summarised the facts of the case as follows: “At approximately 10   a.m. on 26   August 2016, Tamar Khachapuridze [the first applicant] and Kakhaber Khachidze [the second applicant], as a group of individuals with prior agreement, together with their minor 13-year-old son, attacked G.M. in the Gonio settlement of Batumi ... at the seaside while he was there on holiday, and verbally abused him[.] At the same time, Kakhaber Khachidze and his 13-year-old son used physical violence against G.M., while Tamar Khachapuridze threatened to kill him[.] With [such conduct] they grossly violated public order and showed clear disrespect for the public gathered on the beach. While the holidaymakers who witnessed the incident attempted to shield G.M. from the assault, Tamar Khachapuridze continued with her threats and verbal abuse, and Kakhaber Khachidze, together with his 13-year-old son, resorted to physical violence, forcing G.M. to leave the beach with his family members.” 46 .     In reaching its verdict, the trial court relied on the statements given by the victim and witnesses to the incident, as well as the video footage. The victim’s statement was described as follows: “According to the witness statement of the victim [G.M.], Tamar Khachapuridze [the first applicant] had been making insulting comments about him on social media after he had dealt with her case in 2015 [and] had never responded [to her statements]. On the morning of 26   August 2016 he was at the beach ... in the Gonio settlement with his wife, his two minor children and his friend’s minor children. While he was in the sea with his children, Tamar Khachapuridze spat at him and started swearing and threatening him in a loud voice[.] Her husband [the second applicant] and her minor son [the third applicant] also went into the sea. Kakhaber Khachidze also started swearing at him and making threats, while their minor son tried to hit him. This was heard and seen by his minor children and the holidaymakers in the vicinity, some of whom intervened in the fight and attempted to get hold of Tamar Khachapuridze’s minor son and lead him away. Because he had been accompanying his two minor children in the water [and] one of them could not swim, [G.M.] was in a difficult situation and tried to avoid [it] and take his children to the hotel. He did not assault anyone either physically or verbally. The assault [against him] continued on the shore[:] Kakhaber Khachidze was swearing at him [and] pushing him and the [first and second applicants’] minor child managed, with the encouragement of Tamar Khachapuridze, and despite the efforts of people gathering there to restrain him, to kick [G.M.] several times for 10-15 minutes [and] he was forced to leave the beach and return to the hotel with [his and his friend’s family] ...” 47 .     Statements by G.M.’s wife (M.K.) and friend (V.B.) were formulated in similar terms. According to the text of the judgment, M.K. had explained that the applicants had sworn at G.M. referring to his position as a judge and accusing him of having ruined their family. She had also stated that all three applicants had tried to physically assault her husband, but the third applicant had been particularly aggressive, encouraged by his mother. People gathered there had intervened to end the incident. The first applicant had threatened to “cut” her husband. The judgment further mentioned that according to V.B., by the time he had reached the beach G.M. had been already in the water, and a man and a child had been attempting to hit him. When he had seen this, he had immediately run towards him to help. The subsequent developments had been described by V.B. in a similar way to G.M. and M.K.’s account. 48 .     The witness statement given by N.G., a paramedic called to the scene of the incident, was described as follows: “... the child had a small laceration on his lip. The lady [the first applicant] asked that the fact that G.M. had assaulted them physically and that the child had been punched during the breaking up [of the incident] be reflected [in the report].” 49 .     The witness statement given by M.M., a lifeguard, was described as follows: “witness M.M. stated that ... on 26 August 2016 he ... heard noise and sounds of a quarrel and saw people gathered on the shore[. He] heard threatening words from a woman unknown to him, saying [“]I will cut you[”]. ...” 50 .     The trial court also relied on the six pre-trial statements read out during the trial (see paragraph   11 above). The statements were summarised in the judgment as follows: “It has been established from the pre-trial statement given ... by A.G. on 26   August 2016 [read out] during the trial that ... while swimming in the sea, A.G. saw people gathered on the shore and guessed that an incident was taking place there, so he swam towards the shore and saw a woman, a man and a boy of approximately 15 years of age shouting loudly[.] However, as he did not speak the language, he did not understand [what they were saying]. They were yelling at a young man in the water and attempting to physically assault him, but the man in question was not entering into a fight with them and was attempting to get rid of them. The incident lasted for approximately fifteen minutes and the people gathered on the shore managed to break [it] up.” It has been established from the pre-trial statement given ... by L.G. on 26   August 2016 [read out] during the trial that ... she heard noise while swimming in the sea [and] could not understand it because she did not speak the language [but as] she saw people gathered on the shore, it was apparent that an incident was taking place among them. When she came out of the water, she saw a boy aged between approximately fourteen and sixteen and dressed in shorts waving his hands at a young man who was in the sea, while the latter was attempting to avoid him. During the incident, a woman and the young boy were active and made their way towards the young man and attempted to assault him. The man being attacked was calm and did not react. The incident lasted approximately fifteen minutes and the people gathered on the shore managed to break [it] up. It has been established from the pre-trial statement given ... by T.A. on 26 August 2016 [read out] during the trial that ... she saw a woman in a swimsuit standing on the seashore and loudly swearing at a man in the sea. Among other things, she heard several Georgian [phrases] “I will cut you” [and] “I will not let you live”. There was a boy, approximately fifteen years of age and acting in a very aggressive manner, swearing at the man and attempting to physically assault him, which he did, hitting him with his hand and leg several times. There was also [another] man involved in the incident, who [the witness] believed to be the woman’s husband, who also threatened [the man in the sea]. The man who was attacked did not physically assault any of [these individuals], on the contrary, he was calm and did not react. The incident lasted approximately fifteen minutes and the people gathered on the shore managed to break [it] up. According to the pre-trial statement given ... by L.A. on 26 August 2016 [read out] during the trial ... she [witnessed] a woman standing on the seashore loudly yelling at a man standing in the sea and expressing aggression[.] At the same time, the man accompanying her hit the one in the water with his hand. This made [the witness] feel uncomfortable and she moved to a different spot. It has also been established from the pre-trial statement given ... by B.   Tch. on 27   August 2016 [read out] during the trial that ... she witnessed ... violent behaviour by Tamar Khachapuridze, her husband and her son against G.M., during which those individuals were acting aggressively, swearing at and insulting [G.M.] and trying to physically assault him. The incident lasted approximately fifteen minutes and the people gathered there because of the noise managed to break [it] up. It has also been established from the pre-trial statement given ... by Z. Tch. on 26 August 2016 [read out] during the trial that ... he witnessed the violence aimed at G.M. which caused a commotion among the holidaymakers and when he reached the spot, he saw that G.M. was in low spirits and was being insulted.” 51.     The trial court also noted, without elaborating further, that the investigators in the case had given exhaustive information regarding the evidence they had obtained. 52 .     It then described the content of the video-recordings submitted by M.K., stating as follows: “The first recording shows that while coming out of the sea, [G.M.] is met by Kakhaber Khachidze [who], by moving his hands, starts a fight with him. At the same time, Kakhaber Khachidze’s wife Tamar Khachapuridze and their minor son run into the water. The [recording] shows all three individuals waving their hands to hit [G.M.]; swearing and threats can be heard. People run into the sea to protect G.M. and attempt to restrain Tamar Khachapuridze, but first and foremost her minor son. The second recording shows Tamar Khachapuridze making insulting comments to G.M. and threatening to cut him with a knife. The people gathered there ask her to calm down.” 53 .     As regards the assessment of the evidence available in the case file, the trial court held as follows: “... the court clarifies that particular attention should be drawn to statements given by eyewitnesses, as they are characterised by their informative value in respect of the circumstances of a case and constitute an important source of evidentiary material. The court takes into consideration the statements of so-called neutral witnesses who are not interested in the outcome of the case and [who] give a statement as to what they really saw and perceived. It is specifically by combining facts perceived by eyewitnesses and the victim [one the one hand] and the established societal customs [on the other] that the degree of disrespect for the public is established [and] the extent of the disturbance of public order is assessed.” 54 .     Lastly, the trial court addressed the first and second applicants’ argument about the third applicant’s injury and the first applicant’s submission that what she had said to G.M. (see paragraph   16 above) had been her emotional reaction to the injury observed on her son. The court held as follows: “The court will not leave without assessment the report of the forensic medical examination submitted by the defence stating that Davit Khachidze had a laceration ( ნაჭდევი ) measuring 0.8 x 0.7 centimetres on his lower lip ... and a similar elongated laceration on the upper right thigh ... and the argument of the defence that the threat to G.M.’s life uttered by the accused Tamar Khachapuridze had been a maternal reaction to G.M.’s injury of her son[.] The court clarifies that the evidence presented during the trial, including the video footage of the incident, which is consistent with the information given by the witnesses questioned, has established that it was precisely G.M. ... who was the target of the attack ... The [three] individuals, including the [accused’s] minor son, attempted to assault him from three sides. Tamar Khachapuridze’s actions cannot be explained by any maternal instinct for the simple reason that it was precisely the accused and their 13-year-old son who carried out a violent act and assault against G.M. Anyone, including G.M., had the right to defend himself against an unlawful attack and to repel the attackers, but all the eyewitnesses have explained that G.M. only attempted to distance himself and did not assault anyone. Their statements and the video-recording also confirm that the individuals who witnessed the incident, including V.B., attempted to forcibly restrain Tamar Khachapuridze’s minor son. These circumstances completely disprove the defence’s version, given that it was the accused and their minor son who attacked G.M. and grossly violated public order using violence and threats of violence, showing clear disrespect for the public.” Judgment of the Court of Appeal 55 .     On 20 and 21 August 2018 the first and second applicants lodged an appeal against the trial court’s judgment. They submitted, among other things (a)   that there had been insufficient evidence to convict them; (b)   that the trial court had erred in reclassifying the charges and assessing the elements of the offence; (c)   that while there had been an incident between G.M. and their 13 ‑ year-old son, it had started because the latter had sworn at the first applicant; (d)   that what the first applicant had said had not been a threat but an emotional reaction to seeing her son’s bleeding lip; (e) that   the third applicant’s injury and the video-recording showing this had not been given due consideration by the trial court, which was linked to G.M.’s post as Secretary of the High Council of Justice; (f)   that there had been no evidence to demonstrate the second applicant’s guilt, either as regards any threats or any violent behaviour; (g)   that their conviction had been based on the statements of absent witnesses (the only neutral witnesses, according to the applicants), whose statements had been taken in breach of the procedure relating to the examination of witnesses before a magistrate judge and the requirements of Article   6 of the Convention; (h) that the prosecution authority had not exhausted all possible efforts to locate the absent witnesses; (i) that   the applicants had been unable to call their own witnesses, who would have provided important evidence to establish the circumstances of the case (the third applicant, who had been injured and insulted during the incident and A.D. and D.G., who had been eyewitnesses); (j)   that the statements given by M.M. and N.G. had been misrepresented in the judgment; (k) that   the authenticity of the video-recordings had been dubious; and (l)   that the first and second applicants had been unable to participate in the proceedings effectively owing to their unjustified removal from the proceedings. The appeal also stated that the following sequence of events had been established by the evidence available in the case file: the first applicant had spat “into the sea, which [had not constituted] threatening conduct, followed by [G.M.’s] swearing, resulting in the confrontation with the minor [son] and the bodily injury inflicted on the minor”. This was followed, according to the applicants, by the first applicant’s maternal, emotional reaction (see paragraph   16 above) to seeing blood on her son’s face. The applicants requested, among other things, to be allowed to attend the appellate hearings, to have the witnesses G.M., M.K., and V.B. examined anew, and to have the absent witnesses called and examined in their presence. 56 .     On 16 November 2018 the Kutaisi Court of Appeal adopted its judgment following an oral hearing attended by the applicants via a video link. It summarised, among other things, the applicants’ arguments, but stated that it was upholding the lower court’s findings in their entirety. The judgment reproduced the witness statements and the description of the video footage from the trial court’s judgment (see paragraphs   46-52   above). The court then rejected a request by the prosecutor to impose a harsher sentence on the first and second applicants. As regards the latter’s complaint regarding the alleged violation of Article   6 of the Convention on account of the trial court’s reliance on statements given by absent witnesses, the appellate court stated that the statements in question were consistent with other evidence given by “the victim and the eyewitnesses”. Pointing out that the defence had been given an unlimited opportunity to present evidence, the court stated that the statements of absent witnesses had been relied on “along with other evidence” and that the trial court had not breached Article   243 of the CCP in assessing them. Furthermore, the appellate court stated that the first and second applicants’ conduct had been evidenced by the video-recordings available in the case file and assessed during the pro