Distinguishing Permissibility from Proportionality: A Critical Assessment of Tsaava & Others v Georgia

by Gehan Gunatilleke

In December 2025, the Grand Chamber of the European Court of Human Rights delivered an important judgment in the case of Tsaava & Others v Georgia, Application Nos. 13186/20 and Four Others (2025). In this article, I examine the Court’s assessment of the interference with the applicants’ freedom of expression. I argue that the Court’s reasoning appears to conflate notions of permissibility and proportionality, as it neglects to recognise that an interference that is clearly unlawful would be impermissible at the outset, requiring no further consideration of proportionality.

Facts and claims

The case concerned the Georgian law enforcement officials’ excessive use of force during the dispersal of a demonstration on 20-21 June 2019. The demonstration was held in protest of an incident at a sitting of the Interparliamentary Assembly on Orthodoxy held in the Georgian Parliament, where a Russian member sat in the chair reserved for the Speaker of the Georgian Parliament and delivered a speech in Russian. The demonstration held in front of the Parliament building attracted approximately 12,000 demonstrators and was widely covered by the media. Following attempts by some demonstrators to break through a police cordon, the situation escalated, prompting officials to use force to disperse the crowd. Water cannons, tear gas, and rubber bullets (i.e., ‘kinetic impact projectiles’) were used to disperse the crowd.

Most of the applicants suffered injuries as a result of being struck by the kinetic impact projectiles. They claimed that the state’s actions violated their freedom from torture, inhuman or degrading treatment or punishment recognised by article 3 of the Convention. They also claimed that, by failing to carry out an effective criminal investigation into the incident, the state had violated their right to an effective remedy guaranteed under article 13 of the Convention. 

The applicants in four of the cases were journalists, and they alleged that the state had also violated their freedom of expression recognised under article 10 of the Convention. They specifically claimed that their injuries were sustained while covering the demonstration, and that the excessive force used by officials, and the fear of further indiscriminate measures, had prevented them from carrying out their journalistic activities. 

The Court’s rulings

The chamber of the Court unanimously found that the state had violated the ‘procedural aspect’ of article 3, as the ongoing criminal investigation had fallen short of the requirement of effectiveness (paragraph 227). However, in a six-to-one decision, the Court relied on the principle of subsidiarity and concluded that the domestic authorities were better placed to complete the investigation and make a substantive finding on the lawfulness of the actions of the law enforcement officials (paragraph 246). Accordingly, the majority refrained from making a decision with respect to the substantive aspect of article 3 as well as the alleged violation of article 10 (paragraph 250). Judge Gnatovskyy, in an incisive dissent, sharply criticised the majority’s ruling. The case was then referred to the Grand Chamber of the Court, which found that the state had indeed violated the substantive aspect of article 3 as well as article 10 (paragraphs 352 and 380-403). The Grand Chamber also found that the state’s physical ill-treatment of journalists while they were carrying out their professional duties, irrespective of whether such treatment was intended to interfere with those duties, amounted to interference with the journalists’ right to freedom of expression (paragraph 375).

Reflections on the Grand Chamber’s reasoning

While the Court’s conclusion remains salutary, its reasoning, and specifically its application of the standard test to determine the permissibility of an interference with the freedom of expression, requires further reflection. The Court found that measures that violated the absolute prohibition under article 3 of the Convention could never be ‘proportionate’ under article 10, and that it would be ‘paradoxical’ to hold otherwise (paragraph 397). The Court’s reasoning was that ‘the Convention must be read as a whole and interpreted in such a way as to promote internal consistency and harmony between its various provisions’ (paragraph 397). Accordingly, an interference with the freedom of expression would not be permissible if it constituted some form of torture, inhuman or degrading treatment or punishment. 

The Court’s initial observations are sound, and draw from its previous decisions in cases such as Stec & Others v the United Kingdom [GC], Application Nos. 65731/01 and 65900/01 (2006) and Demir & Baykara v Turkey [GC], Application No. 34503/97 (2008). These observations are also analogous to the United Nations Human Rights Committee’s views in cases such as Fedotova v The Russian Federation, Communication No. 1932/2010 (2012), where the Committee opined that any limitation of a right under the International Covenant on Civil and Political Rights should be compatible with the object and purpose, and provisions of the Covenant. For instance, a limitation that is discriminatory, is not, as a threshold matter, permissible. What is determinative in these cases is not the proportionality of the limitation but instead the legal permissibility of the limitation at the very outset. Despite correctly recognising this principle, the Grand Chamber in Tsaava proceeds to apply the principle in a problematic manner.

Following its determination that the state’s actions amounted to a violation of article 3, the Court was next required to assess whether such actions also interfered with the applicants’ exercise of their freedom of expression. It accepted the applicants’ contention that the state authorities had targeted them either because, or despite the fact that, they were journalists (paragraph 400). The question that then confronted the Court was whether such interference met its test to determine the permissibility of an impugned interference. The first limb of the test concerns legality, i.e., whether the restriction on the freedom of expression was ‘prescribed by law’. The state cited various enactments in Georgia that provided for restrictions on the rights to public assembly and freedom of expression. Despite recognising that ‘serious questions remain about the lawfulness’ of the impugned interference, the Court, in a peculiar prevarication, opted not to take a definitive stance on whether the interference was ‘prescribed by law’ and decided to leave the question ‘open’ (paragraph 387). It also decided to sidestep an assessment under the second limb of the test, i.e., whether the interference in question pursued a legitimate aim, such as the prevention of disorder (paragraph 388). Instead, it focused entirely on the necessity and proportionality limb of the test and concluded that the use of excessive force against the applicants was not ‘necessary in a democratic society’ (paragraph 402). The Court’s reasoning, however, encounters a problem, as an act that is prima facie unlawful surely cannot meet the standard of legality. Therefore, the Court contradicts itself by, on the one hand, stating that it would be paradoxical for an act that violates article 3 to nevertheless be proportionate under article 10, and on the other hand, proceeding to assess the proportionality of such an act. 

The Court’s decision not to rigorously interrogate the legality limb of its permissibility test deviates from a number of its previous judgments on the freedom of expression where it considered the legality limb more closely. In Hashman & Harrup v the United Kingdom [GC], Application No. 25594/94 (1999), the Grand Chamber found that the English Law concept of contra bonos mores (i.e., behaviour seen as ‘wrong rather than right in the judgment of the majority of contemporary fellow citizens’) was too vague to meet the criterion of foreseeability, and, therefore, failed the test of being ‘prescribed by law’. The interference with the applicants’ freedom of expression was accordingly held to be impermissible and the question of necessity and proportionality was not considered by the Court. The Court in Gawęda v Poland, Application No. 26229/95 (2002) elaborated on the criterion of foreseeability and observed that ‘a norm cannot be regarded as a “law” unless it is formulated with sufficient precision to enable the citizen to regulate his conduct’ (paragraph 39). The Court accordingly held that it was not necessary to consider the other limbs laid down by article 10(2), including the necessity and proportionality of the impugned interference. This same view was taken by the Court in a host of other cases including Cengiz & Others v Turkey, Applications Nos. 48226/10 and 14027/11 (2016).

The question of legality is not confined to an assessment of foreseeability. The Court can also evaluate the law in question in terms of its arbitrary application. For instance, the Court in the recent case of Morawiec v Poland, Application No. 46238/20 (2026) found that the impugned interference was not based on a ‘law’ that ‘afforded the applicant proper safeguards against arbitrariness’ and was, therefore, not ‘prescribed by law’ within the meaning of article 10(2) (paragraph 188). Such cases indicate that the Court often evaluates both the relevant law and its application when assessing whether an interference was ‘prescribed by law’. In Tsaava, however, the Court simply glosses over the lawfulness of the interference and focuses on whether it was ‘necessary in a democratic society’. Yet, if the manner and form of an interference is absolutely prohibited by law, the interference could not have been lawful. In these circumstances, the Court ought not to have considered the necessity and proportionality of such an interference. 

The outcome of the Court’s approach is problematic for two reasons. First, from a substantive standpoint, by neglecting to determine that the interference fails the legality test, the Court dilutes the absolute prohibition of conduct amounting to inhuman or degrading treatment or punishment. Notably, the Court found that the interference in question did in fact violate article 3 of the Convention. The unlawfulness of the interference was, therefore, not in question. Second, from a precedential standpoint, the Court sets a poor precedent in terms of how the legality limb of the test under article 10(2) should be understood and applied. The Court’s reasoning suggests that, while an interference based on a law that lacks foreseeability or that is patently arbitrary will fail the legality test, an interference that amounts to inhuman or degrading treatment or punishment would not necessarily fail that test but can instead be assessed in terms of its necessity and proportionality. Such reasoning could undermine the coherence of the Court’s jurisprudence with respect to limitations on the freedom of expression.

Conclusion

Ultimately, the apparent weakness in the Court’s reasoning was not fatal to the outcome of the case, as it arrived at the correct conclusion that the interference in question violated article 10 of the Convention. Yet, the Court’s conclusion would have stood on firmer doctrinal ground had it more carefully considered the legality limb of its permissibility test and determined that the interference that violated an absolute prohibition under article 3 was impermissible at the outset. The question of whether the interference was ‘necessary in a democratic society’ was simply irrelevant; after all, in no democratic society can inhuman or degrading treatment or punishment ever be necessary.