The decision of the ECHR of July 22, 2021 in the case "Gachechiladze v. Georgia" (complaint No. 2591/19).
In 2019, the applicant was assisted in the preparation of the complaint. Subsequently, the complaint was communicated to Georgia.
In the case, a complaint was successfully considered on the lack of sufficient grounds to justify the application of a fine, product recall and a ban on the use of condom packaging designs in the future. There was a violation of article 10 of the Convention in the case.
CIRCUMSTANCES OF THE CASE
The applicant produced condoms with different packaging options for sale via the Internet and vending machines. Four variants became the subject of proceedings on an administrative offense due to the fact that it was regarded as unethical advertising on the basis of the Law on Advertising. During the consideration of the case by the court of first instance, the applicant unsuccessfully referred to various cases considered by the Constitutional Court of Georgia in order to prove that there were no sufficient grounds why the registration violated the aforementioned Law on Advertising. A fine was applied to the applicant, she was ordered to stop using and distributing the appropriate packaging design and recall the already distributed goods. The applicant unsuccessfully appealed against this decision.
(a) The admissibility of the complaint for consideration on the merits. Regarding compliance with subparagraph "b" of paragraph 3 of article 35 of the Convention (absence of significant damage). The fine of 165 euros did not seem particularly burdensome, especially considering the fact that the applicant was a successful entrepreneur. However, she claimed that she had suffered losses as a result of the ban on the use of four appealed packaging options for products. The applicant was ordered to withdraw, and, as a consequence, to stop selling products for a significant amount. The applicant was also prohibited from using these design options in the future, that is, as a result, the measures being appealed were of such a nature and scale that they could potentially cause serious financial damage to the applicant. Consequently, even if the applicant could not provide detailed financial data, taking into account the broad nature of the measures complained of, the European Court could not agree that these measures would have had a negligible impact on the applicant.
In addition, the application by the Georgian courts of the Law on Advertising in relation to what the courts considered unethical advertising that contradicted the religious and national values of Georgian society, as well as the question of whether such application corresponded to the principles established by the practice of the Constitutional Court of Georgia and the case-law of the European Court, concerned important issues of principle and went beyond the applicant's case.
In this regard, taking into account the issues that should have been resolved in the present case for the applicant, as well as important issues of principle arising from the applicant's case, it was impossible to dismiss the applicant's complaints on the basis of subparagraph "b" of paragraph 3 of article 35 of the Convention.
The complaint was declared admissible for consideration on the merits (adopted unanimously).
(b) Regarding compliance with article 10 of the Convention. The application of a fine, the obligation to recall the goods and the ban on the future use of the appealed packaging options were an interference with the applicant's right to freedom of expression. The European Court proceeded from the assumption that the appealed measures were based on the legislation of Georgia, despite the absence of references to the already existing case law of Georgia regarding the concept of unethical advertising using religious symbols. The European Court was ready to agree that the interference with all four packaging design options pursued legitimate goals of protecting the religious rights of others and/or protecting public morality.
The European Court had to determine whether the packaging design options used by the applicant were used only for commercial purposes. The applicant's brand of goods also appeared to be aimed at initiating and/or maintaining public debate on various issues of public interest. In particular, the stated goal of the brand, announced at the time of its release, was to break stereotypes and "help in a proper understanding of sex and sexuality." Some of the images used by the applicant concerned same-sex relationships (in the part concerning the negative attitude in Georgia towards the LGBT community, see the Ruling of the European Court in the case "Identoba and Others v. Georgia" (See: The Ruling of the European Court in the case "Identoba and Others v. Georgia" (See: The Ruling of the European Court in the case "Identoba and Others v. Georgia" (Identoba and Others v. Georgia) dated May 12, 2015, complaint No. 73235/12). Several design variants of the design also seem to have become the subject of both social and political comments within the framework of various events and issues. It was also necessary to note that the organization that filed the complaint against the applicant's brand, apparently, was actively involved in civil and political affairs. In this regard, the European Court could not agree that the "expression" used by the applicant should be considered as made exclusively in a commercial context. In circumstances where matters of public interest are at least partially involved, the discretion granted to the courts of the States parties to the Convention was necessarily less than in situations involving exclusively commercial texts.
As for the four contested options for the packaging of the applicant's goods, one of them had the text "Royal Court inside Tamar" (So literally in the English text: "Royal Court inside Tamar". Obviously, an incorrect translation of the case materials was made in this part. Based on publicly available sources, the inscription in question is a reference to the name of the popular TV series "Game of Thrones" and has a general meaning: "Royal Games with Tamara"), which was a reference to the "Queen of Georgia Tamar", who was canonized as a saint by the Georgian Orthodox Church. The canonization of a public figure, or of any person, in itself cannot serve as a basis for excluding discussion of this person during public debates. Also, contrary to what can be assumed based on the reasoning of the Georgian courts, the choice of the method of transmission of any expression (in the present case, it is the production and distribution of condoms) should not be considered inappropriate in itself when assessing whether the corresponding expression could be the subject of public discussions on issues of importance to society. However, the applicant was unable to explain, when considering her case at the domestic level, why or how the mention of this person in the inscription on condoms with an accompanying image contributed either to the initiation or continuation of a public dispute on an issue of public interest. It was regrettable that the Georgian courts did not appreciate the meaning of the text accompanying the image being appealed. Nevertheless, in the absence of convincing arguments on the part of the applicant during the consideration of her case by the Georgian courts, it was difficult to agree that the Georgian authorities made a mistake when they concluded that the packaging of the applicant's goods could be considered as a groundless insult to the object of veneration of Georgians professing the Christian Orthodox faith.
However, as for the other design options, the circumstances were different here. As for the packaging with the image of a panda and a reference to a religious Christian holiday, the European Court noted the arguments of the courts of the second instance of Georgia that the image and the text accompanying it unreasonably insulted the lifestyle of persons professing the Christian Orthodox faith, as well as religious teachings that during fasting before significant religious holidays, one should refrain from sexual relationships. Nevertheless, these reasons were not sufficient to justify the need for intervention in a democratic society. In particular, it is impossible to ignore the fact that during the packaging design, a popular, pre-existing artistic statement of an anonymous group called "Panda" was simply reproduced. As for the content, the inscription, apparently, was a satirical interpretation of various phrases often used in Georgia, in fact being a criticism of various ideas, including those related to religious teachings and practices. In this context, the Court of Appeal ignored the key question of whether there was an "urgent public need" to limit the distribution of the applicant's appealed packaging design.
The two remaining design options contained an image of a woman's left hand holding a condom in two raised fingers, and an image of a crown, presumably from a condom, with inscriptions referring to a historical event. As for the first option, the applicant's argument about the absence of any religious context remained without consideration, since the left hand was depicted, and not the right hand used in religious gestures, and about the absence of a legislative basis for interference. Although it could not be ruled out that even the most ordinary image may contain elements provoking extremely specific associations with a religious symbol, it was the courts of Georgia that had to demonstrate why exactly such a situation applied to the image of a woman's hand, but they did not. As for the second specified design option, despite the applicant's arguments, it remained unclear throughout the consideration of the applicant's case why the Georgian courts considered that the image fell under the definition of "unethical" according to the Law on Advertising. It was also not explained whether there was an "urgent public need" within the meaning of the case-law of the European Court to restrict the distribution of goods with the two specified packaging design options. Consequently, none of the reasons cited by the Georgian courts were relevant enough to justify the necessity and proportionality of interference with the applicant's right to freedom of expression.
In conclusion, the European Court considered the issue concerning the fact that the decisions of the Georgian courts in the applicant's case implied the position that the view of ethical issues on the part of the followers of the Georgian Orthodox Church prevailed in establishing a balance between the various values protected by the Convention and the Constitution of Georgia. This position was at odds with the opinion of the Constitutional Court of Georgia and contradicted the relevant international standards. In a pluralistic democratic society, those who decide to exercise their freedom to profess religion are forced to tolerate and accept the denial of their religious beliefs by others and even the propaganda of other doctrines hostile to their faith.
In the light of the above, at least with regard to three of the four contested variants of the applicant's goods, the grounds cited by the Georgian courts were irrelevant and were not sufficient to justify interference with her rights guaranteed by paragraph 2 of article 10 of the Convention.
The case involved a violation of the requirements of article 10 of the Convention (adopted unanimously).