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Media - 20:28 / 14 June 2016

European Court: Merabishvili’s Arrest and Detention Was Politically-Motivated

Tbilisi 14 June 2016 - In a landmark decision published today on case of UNM Secretary General and former Prime Minister of Georgia Mr Ivane Merabishvili vs Georgia the European Court of Human Rights delivered a unanimous and a virtually identical decision to its other landmark rulings regarding Timoshenko vs Ukraine, Lutsenko vs Ukraine, Jaffarov vs Azerbaijan and Mamadov vs Azerbaijan.

In almost 60-year history of the Court there are only seven cases, including that of Mr Merabishvili, in which breach of Article 18 of the European Convention of Human Rights was established.  Mr Merabishvili is only third politician in relation to whom this breach was established by the Court and first case of this kind in the history of Georgia. Article 18 of the Convention is essentially an article prohibiting governments to use restrictive measures (such as arrest and/or prosecution) for reasons other than those considered legitimate by the Convention - for instance, political motivation. In other words, in addition to declaring Mr Merabishvili’s continued detention in breach of article (5§3) of the Convention, the Court unanimously established that the reasons of restrictive measures applied to Mr Merabishvili (arrest and detention) were not those declared by the Government of Georgia, but rather the Government was politically motivated in those actions. Thus, while the Court does not use definition of “political prisoner” in any of its cases, this decision, virtually declares Mr Merabishvili to be a political prisoner just like Mr Lutsenko, Ms Timoshenko and others were.

While the Court concluded that the initial arrest could have been within the limits of the convention, the Court said that “there may be a violation of Article 18 in connection with another Article, even if there is no violation of that Article taken alone.” Therefore, the Georgian Government breached the Convention not only by keeping Mr Merabishvili in detention after the initial months of pre-trial detention (Breach of Art 5§ 3) but, more importantly, both his arrest and continued detention were in violation of Convention because the motive of the Government action was clearly beyond the scope of legitimate actions allowed under the Convention and was politically motivated (Article 18 in conjunction with Article 5§1).

In most recent case of Rasul Jafarov vs Azebaijan, when breach of Article 18 was established by the Court in relation to Mr Jafarov, President of Azerbaijan Ilham Aliev pardoned him within only few hours of the publication of the decision.

Mr Merabishvili was arrested in May 2013, just before UNM's presidential primaries in which he had declared intent to run. 

Below follow key excerpts from the decision:

Annex 1

CASE OF MERABISHVILI v. GEORGIA

(Application no. 72508/13)

91. The Court concludes that, when confirming the applicant’s detention on 25 September 2013 on the basis of a single abstract phrase pronounced orally – “the request for the cancellation of the pre-trial detention should be rejected” – the Tbilisi City Court acted in contradiction to its heightened obligation, which followed from the lapse in time since the initial authorisation of the detention measure, to establish convincingly the existence of new concrete facts justifying the continued detention and to consider alternative non-custodial pre-trial restraint measures. That superficial manner of the judicial review of the reasonableness of the deprivation of the applicant’s liberty constituted a particularly broad restriction of the latter’s rights guaranteed by Article 5 § 3 of the Convention.

92. There has accordingly been a violation of Article 5 § 3 of the Convention on account of the court decision of 25 September 2013.

102 “Noting that no violation has been found with respect to the complaint under Article 5 § 1 of the Convention taken alone, the Court does not consider that this fact should preclude it from addressing the applicant’s claims about the existence of improper political motives behind his detention, assessable from the standpoint of Article 18. It further reiterates in this connection its previous finding that that the applicant’s pre‑trial detention lacked reasonableness, in breach of Article 5 § 3 of the Convention.”

101 “When an allegation is made under Article 18 of the Convention the Court applies a very exacting standard of proof. As a consequence, there are only a few cases where a breach of that Convention provision has been found.”

103 “The Court takes note of the general background of the applicant’s allegations. Thus, soon after the change of power resulting from the parliamentary election of October 2012, the applicant, who had formerly held high-ranking State posts and had then become the leader of the strongest opposition party in the country, was accused of abuse of power and certain other criminal offences, detained and prosecuted. Many international observers, including various high-ranking political leaders of foreign States and international organisations, expressed concerns over the possible use of criminal proceedings against the applicant for an improper, hidden political agenda on the part of the regime. The Court considers that an allegation of the restriction of a Convention right of a politically active person for the purpose of hindering or making impossible his or her participation in the political life of the country must always be taken very seriously, given the existence of a direct link between human rights protection and the functioning of democracy. Thus, in the particular circumstances, the decision to detain the applicant must be seen in the light of the broader context of the criminal proceedings initiated against him and of his high political status at the time those proceedings were initiated. This general context is undoubtedly reminiscent of the situations examined by the Court in the cases of Lutsenko ) and Tymoshenko .”

106 “Having regard to the facts established …the Court cannot but find that the applicant’s pre-trial detention was used not only for the purpose of bringing him before the competent legal authority on reasonable suspicion of abuse of official authority and other offences in public office with which he had been charged, but was also treated by the prosecuting authority as an additional opportunity to obtain leverage over the unrelated investigation…”

105 “In general, the Court observes that the authorities, notably the Prime Minister, the Minister of Prisons, and the Chief Public Prosecutor, were unmistakably opposed to the calls for an objective and thorough investigation repeatedly launched by the applicant, the public and even certain senior high-ranking State officials. Nor did the Government, in their submissions before the Court, provide any meaningful explanation of the incident of 14 December 2013…”

All those particular circumstances of the case lead the Court to find, from the standpoint of an objective trier of fact that the applicant’s account of the incident should be agreed to be factual with as a high a degree of certainty as possible (for examples of the application of a similar standard of evidence – drawing highly probable inferences from circumstantial evidence only – for the purposes of scrutiny under Article 18 of the Convention, see Ilgar Mammadov,; and Gusinskiy,).

104 “The circumstances of the present case suggest, however, that the applicant’s detention had its own distinguishable features which allow the Court to look into the matter separately from the above-mentioned general political context. The particularity lies, notably, in the incident of 14 December 2013, when the applicant was, according to his submissions, removed from his prison cell for a late-night meeting with the Chief Public Prosecutor and the head of the prison authority, D.D., during which the latter senior officials used the applicant’s pre-trial detention as leverage to obtain from him statements in relation to the unrelated investigation into the death of the former prime minister as well as those concerning the former president of the country…”

107. There has accordingly been a violation of Article 18 of the Convention taken in conjunction with Article 5 § 1.