CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ THE RIGHT OF APPEAL IN CRIMINAL MATTERS ȃ CASEǧLAW OF ECtHR … nature” and that there had been a violation of Article 2 of Protocol No. 7 to the ECHR in the case of the applicants. The ECtHR then essentially imposed an obligation on Bulgaria to provide for appeal mechanisms even in the case of minor sentences imposed by municipal courts on the basis of decrees. 4.5 Case-law ECtHR against Georgia By the applicants’ complaint in Kakabadze and others v. Georgia , 41 members of a Georgian non-governmental organisation (NGO) sought to monitor the activities of law enforcement authorities. They also sought to uphold the independence of the judiciary. Their activities included, for example, protests outside the courthouse. In connection with the protest, several NGO members were detained by judicial guards and restricted in their personal freedom. The individuals were held in the courthouse without any record of their arrest being made. The case file in their case was not produced to them, although they subsequently discovered that the case file contained 5 separate arrest records. The detainees were subsequently transferred to a detention centre, and it was only there that they learned that they had been arrested on the basis of a decision of the President of the Tbilisi Court. The detention decision of the single judge was made in closed session, without an oral hearing, and the detention lasted 30 days on the grounds that they had violated public order, gross contempt of court, and threatened the administration of justice. The applicants applied to the Supreme Court for a review because, in their view, the 30-day detention was a wholly disproportionate punishment. In the course of the case, all the applicants were released two days after the Supreme Court judgment. In the context of Article 2 of Protocol No. 7 to the ECHR, the applicants argued that they had no right of appeal against their conviction. The Government of Georgia disagreed and argued that there had been a proper review by the Supreme Court. The ECtHR notes that the situation in the present case is identical to the situation examined by the ECtHR in 2 similar landmark cases in this case ( Gurepka , 42 Galstyan 43 ). The ECtHR stated that in the present case (notwithstanding the fact that the applicants’ appeal was in fact reviewed by a judge of the Supreme Court) the extraordinary review procedure contained in the domestic provision, which depended on the discretion of the domestic authorities, lacked a clearly defined procedure and time limits. It therefore constituted an ineffective remedy for the purposes of Article 2 of Protocol No. 7 to the ECHR. The offences for which the applicants were convicted by the domestic court’s decision cannot be regarded as minor in view of the severity of the subsequent sentence and therefore do not fall within the relevant exception contained in Article 2(2) of Protocol No. 7 to the ECHR. There has therefore been a violation of Article 2 of Protocol No. 7 to the ECHR. It can therefore be summarised that this is again an assessment of an exception to Article 2 of Protocol No. 7 to the ECHR and in a specific factual case. If it is a severe sanction of imprisonment, the application of Article 2 of Protocol No. 7 to the ECHR comes into play. 44 The case of Natsvlishvili and Togonidze v. Georgia 45 considered a complaint by two Georgian citizens against Georgia in which both applicants objected to the process 41 ECtHR decision in Kakabadze and others v. Georgia , of 2 October 2012, application no. 1484/07. 42 ECtHR decision in Gurepka v. Ukraine , of 6 September 2005, application no. 61406/00, §§ 57–62. 43 ECtHR decision in Galstyan v. Armenia , of 15 November 2007, application no. 26986/03, §§ 118–127. 44 ECtHR decision in Kakabadze and others v. Georgia , of 2 October 2012, application no. 1484/07, §§ 95–98. 45 ECtHR decision in Natsvlishvili and Togonidze v. Georgia , of 29 April 2018, application no. 9043/05.

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