Source: Transparency International-Georgia
On January 11, 2025, during a protest in front of the Batumi Police Department, well-known journalist and director of the newspaper Batumelebi and online publication Netgazeti, Mzia Amaglobeli, was arrested. On January 12, Amaglobeli was charged under Article 353¹, Paragraph 1 of the Georgian Criminal Code (“Assault on a police officer, a special penitentiary service employee, or another public official or institution”).
1. What Happened in Batumi on January 11, 2025
The police arrested Mzia Amaglobeli twice on the night of January 11. Initially, she was unlawfully arrested and detained when she affixed a sticker about a general strike scheduled for January 15 on the fence at the entrance of the Adjara Police Department. During the arrest, no one explained the basis or legal grounds for her detention, as required under the current legislation—the Administrative Offenses Code (see Article 245 – Administrative Detention). Later, it was revealed that the basis for the detention was Article 173 of the Administrative Offenses Code.
Shortly after her first arrest, Amaglobeli was released upon signing a subpoena. Upon her release, she was speaking with her supporters when a new wave of arrests began. Live-stream footage showed police arbitrarily arresting one person and then another, both of whom were associates of Amaglobeli. This led to an altercation between Amaglobeli and Batumi Police Chief Irakli Dgebuadze, during which Amaglobeli slapped Dgebuadze. Even in a video aired by the Public Broadcaster, which shows only a small portion of the incident, it is clear that the slap was symbolic and lacked sufficient force to cause harm.
2. The Illegality of Administrative Detention
On December 13, 2024, the de facto Parliament amended the Administrative Offenses Code to declare the unauthorized making of inscriptions, drawings, or symbols on the facades of administrative buildings, as well as nearby areas, including pedestrian and vehicle pathways, an administrative offense. Violations are punishable by a fine of 2,000 GEL (see Article 150, Paragraph 3: Distortion of the Aesthetic Appearance of Municipal Administrative Boundaries).
The quoted provision is unconstitutional and unlawful. Firstly, it was enacted by an illegitimate Parliament. Secondly, the proportionality and other criteria for the prescribed penalty raise questions about its compatibility with Article 17 of the Georgian Constitution and Article 10 of the European Convention on Human Rights, which protect freedom of expression.
However, even if that were not the case, according to the cited provision, the act of putting up stickers, for which Mzia Amaghlobeli and several other protest participants were detained that evening in Batumi, cannot be considered a violation of the law. According to the cited provision, a violation consists of “making unauthorized inscriptions, drawings, or symbols,” meaning writing or drawing directly with paint or other means, not putting up stickers. Removing paint might require some effort, but peeling off a sticker presents no difficulty. This seems to be why even this unlawful and repressive Parliament did not include putting up stickers in the mentioned article.
Consequently, the arrest and detention of Mzia Amaghlobeli, as well as that of other protest participants—which, in turn, caused the tension that evening between the police and the protesters and eventually led to Mzia Amaghlobeli’s arrest under criminal law—was unlawful.
3. The Unlawfulness of Mzia Amaghlobeli’s Charges
a) The Problem of the Law’s Clarity and Forseeability
Article 353¹, Paragraph 1 of the Criminal Code defines the following action as a crime: “An attack on a police officer, a special penitentiary service officer, another representative of authority, or their official or residential building, vehicle, or family member in connection with the performance of their official duties.” The punishment for such an action is imprisonment for a term of four to seven years.
First and foremost, the cited provision lacks clarity and foreseeability, which is problematic in light of the principle of legal certainty established by Article 31, Paragraph 9 of the Constitution of Georgia and Article 7 of the European Convention on Human Rights. Specifically, the term “attack” in the cited provision is ambiguous.
According to the Constitutional Court of Georgia, the first sentence of Article 42, Paragraph 5 of the Constitution of Georgia (equivalent to Article 31, Paragraph 9 of the current Constitution) “establishes the grounds for holding a person accountable and reinforces the guarantee that any crime and punishment must be clearly defined in criminal law.” It “not only requires the existence of an appropriate law for imposing liability but also sets qualitative standards for the law defining liability. When establishing liability, the legislator is bound by the principle of legal certainty.”
“The principle of legal certainty stems from the principle of the rule of law provided in the Constitution of Georgia, is linked to Article 42, Paragraph 5 of the Constitution, and constitutes part of the sphere protected by this right. Therefore, the challenged provision will comply with Article 42, Paragraph 5 of the Constitution only if it meets the constitutional requirements of the principle of legal certainty” (see the decision of the Constitutional Court of Georgia in the case “Citizens of Georgia – Aleksandre Baramidze, Lasha Tugushi, Vakhtang Khmaladze, and Vakhtang Maisaia vs. the Parliament of Georgia,” May 14, 2013, Paragraph II-29).
According to the same interpretation, “Forseeable and unambiguous legislation, on the one hand, protects individuals from arbitrary enforcement by law enforcers and, on the other hand, guarantees that individuals receive clear notice from the state so they can properly understand the provision, identify which actions are prohibited by law, and anticipate legal consequences. Individuals must be able to foresee the prohibited elements in their conduct and align their behavior with the rules established by law” (ibid, Paragraph II-30).
Likewise, according to the European Court of Human Rights, “offences and the relevant penalties must be clearly defined by law. This requirement is satisfied where the individual can know from the wording of the relevant provision, if need be with the assistance of the courts’ interpretation of it and after taking appropriate legal advice, what acts and omissions will make him criminally liable and what penalty he faces on that account”. (See, for example, Del Río Prada v. Spain, Application no.42750/09, [GC] 21 October 2013, § 79).
As previously mentioned, the content of the term “attack” in the cited provision is unclear, which makes this provision fail to meet the requirements of clarity and foreseeability of a norm. Consequently, this provision raises doubts regarding its constitutionality and compliance with international human rights law.
b) Practice of the Georgian Courts
In this context, it is appropriate to refer to the practice of Georgian courts concerning the first paragraph of Article 353¹ of the Criminal Code of Georgia (CCG).
In one case, the Supreme Court of Georgia deemed the prosecution’s cassation appeal inadmissible, wherein the prosecution sought to overturn the lower courts’ decisions. The Supreme Court upheld the judgments of the trial and appellate courts, which had reclassified the charge under the first paragraph of Article 353¹ of the CCG to the offense stipulated in the first paragraph of Article 126 of the CCG. The imposed penalty—a fine of 1,000 GEL—was deemed just.
In this case, the defendant was charged with assaulting a police officer after being refused a cigarette. Specifically, the defendant physically attacked the officer by striking him in the head, causing physical pain. (Supreme Court ruling on case №253ап-24, June 24, 2024).
According to the Supreme Court, for an act to qualify as an “attack on a police officer,” it is necessary to establish the perpetrator’s intent and that aggressive actions were related to the victim’s professional duties. Without such elements, there is no legal basis for classifying the act as an attack on a police officer. To correctly classify a criminal act, the court must consider the method and means of the offense, the circumstances in which it was committed, and whether there were any offensive remarks directed at the victim’s professional role. (See paragraph 5.6 of the ruling mentioned above).
The Supreme Court noted that, despite the officer’s wearing a uniform, it was not conclusively proven that the defendant’s aggressive actions were connected to the victim’s status as a police officer or their official duties. The defendant assaulted the officer out of dissatisfaction stemming from being denied a cigarette. The conflict arose from a verbal altercation and was not aimed at attacking the officer in their professional capacity. (See paragraphs 5.7–5.8 of the ruling).
Similarly, in another case, the Bolnisi District Court reclassified a charge initially brought under Article 353¹ of the CCG to Article 126 of the CCG. In this case, the defendant punched a police officer several times in the face after the officer urged the defendant to remain calm while he was speaking with a girl. The court held that, although the officer was in uniform, their actions were not directed toward maintaining public order and thus were not related to their official duties.
Additionally, when analyzing the subjective aspect of the crime, the court emphasized the necessity of clarifying the motive behind the action and determining whether there was a connection between the officer performing their official duties and the attack. In this case, the court believed that the defendant, whose attention was focused on the girl, perceived the officer’s request as an insult and an intrusion into his personal affairs, which led to subsequent events. The court also considered that the defendant was intoxicated at the time and might not have correctly interpreted the officer’s request. This indicated that the conflict arose from personal motives and had no connection to the officer’s professional duties. (See case №1/135-19, October 21, 2019, Bolnisi, Investigation №019170319001).
The decision of the Bolnisi District Court was upheld by the Tbilisi Court of Appeals. (See case №1б/1616-19, January 20, 2020).
c) Application of Court Practice to the Case of Mzia Amaglobeli
As the cases described above demonstrate, when it comes to Article 3531 of the CCG, Georgian courts have shown a tendency to reclassify actions allegedly falling into a category of serious crimes to relatively minor offenses, even when these actions pose a greater danger than the alleged actions of Mzia Amaglobeli. Despite this, the prosecution has charged the well-known journalist with a serious crime, which, in itself, is a revealing fact. In a rule-of-law state, which we currently lack, the prosecution would have described in its indictment the circumstances leading to Mzia Amaglobeli’s actions, deliberated on whether her alleged action was a response to provocative behavior by the so-called “victim,” examined the motive and other subjective aspects of the action, and evaluated whether the “victim” was performing official duties at the time, and whether Amaglobeli’s alleged actions were related to those official duties, among other factors. Naturally, the prosecution did not attempt to ascertain these issues.
Consequently, even if there were grounds to consider Mzia Amaglobeli’s actions a crime, the prosecution has treated her differently from the defendants in the cases described above. Moreover, there is a strong likelihood that this differential treatment is discriminatory and connected to Amaglobeli’s journalistic activities and her critical stance toward the regime.
4. Mzia Amaglobeli’s Action Does Not Constitute a Crime
However, given the insignificance of Mzia Amaglobeli’s action, from an objective standpoint, it cannot be considered a crime at all. According to Article 7, Paragraph 2 of the Criminal Code, “An act does not constitute a crime if, although formally containing the signs of an act provided for in this Code, it is of such minor significance that it has caused no harm requiring criminal liability or has created no risk of such harm.” A slap, which cannot reasonably cause pain, is of minor significance and could not result in any serious harm.
5. Legality of Imposing Pretrial Detention
“Transparency International – Georgia” has repeatedly noted in its analytical reports that the use of pretrial detention in Georgia is often politically motivated and serves not the legitimate aims of preventive measures but rather the purpose of influencing the accused and intimidating society as a whole (see, for example, our assessment of the detention of Andro Chichinadze and others).
In this case, the Batumi City Court judge, Nino Sakhelashvili, imposed pretrial detention on Mzia Amaglobeli without examining the evidentiary basis presented by the prosecution. The prosecution justified the detention by citing risks of flight, non-appearance in court, destruction of important evidence, or commission of a new crime, but these claims were not substantiated.
Conclusion
The above circumstances indicate that the regime’s police and prosecution have exploited Mzia Amaglobeli’s actions to make an example of her. It is evident that she is being punished not for committing an act of significant danger but for exposing the regime’s corruption and other unlawful activities over the years. Therefore, it can be concluded that Mzia Amaglobeli is a political prisoner in the meaning, as defined by the Parliamentary Assembly of the Council of Europe.
