Landmark Judgment from the Grand Chamber of the European Court of Human Rights on Protest Rights in Georgia

The Grand Chamber of the European Court of Human Rights has handed down a landmark judgment in Tsaava and Others v. Georgia, concerning the dispersal of a protest from the front of the Parliament building in Tbilisi on 20-21 June 2019.

The protest was sparked by a prominent member of the Russian Duma sitting in the Speaker’s chair in the Georgian Parliament and delivering a speech in Russian as part of a session of the Interparliamentary Assembly on Orthodoxy. The applicants were either participants in the demonstration or journalists reporting on the protests. They alleged, in particular, excessive use of force by the authorities resulting in their injury, including the use of kinetic impact projectiles. The applicants relied on Articles 3 (prohibition on torture, inhuman, or degrading treatment), 10 (freedom of expression), 11 (freedom of peaceful assembly and association) and 13 (right to an effective remedy) of the Convention.

In May 2024, the Strasbourg Court’s Fifth Section found a violation of the procedural limb of Article 3 (prohibition against torture, inhuman, or degrading treatment or punishment), but refrained from deciding on the merits of the substantive limb of Article 3, and on complaints under Article 10 (freedom of expression) and Article 11 (freedom of peaceful assembly and association).

Following referral, the Grand Chamber held that:

• There was a violation of the procedural limb of Article 3, owing to the authorities’ failure to carry out an effective investigation into the use of kinetic impact projectiles and other instances of physical ill-treatment.
• There was a violation of the substantive limb of Article 3 on account of injuries caused by kinetic impact projectiles and other instances of physical ill-treatment.
• There was a violation of Article 10, as the use of kinetic impact projectiles and other force against journalists covering the protest constituted an unjustified interference with freedom of expression.
• The dispersal of the protest and the manner in which force was used by the authorities violated Article 11, infringing eleven applicants’ rights to freedom of peaceful assembly.

The judgment is significant for its articulation of State obligations concerning the policing of protests and the protection of journalists.

Can Yeginsu acted for PEN International, PEN Georgia, and English PEN as third-party intervenors before the Grand Chamber, leading Naomi Hart of Essex Court Chambers.

Expressly referring to PEN’s submissions, the Grand Chamber stressed that Article 10 imposes a positive obligation on States to maintain an effective system for the protection of journalists, particularly in the context of protests and demonstrations, in line with Council of Europe standards and guidance by the Venice Commission.

The full judgment can be found here, alongside the Court’s press release. A copy of PEN’s written submission before the Grand Chamber can be found here.