Strasbourg Censures Georgia over Detention of Former Prime Minister – the impact of an Article 18 violation

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In December 2013, former Georgian Prime Minister Vano Merabishvili was hauled out of his Tbilisi prison cell in the middle of the night, and, with his head covered, was driven to an unknown destination. On arrival, he found himself before the Chief Public Prosecutor and the head of the Georgian prison service. Merabishvili was offered a ‘deal’, and was asked for information about the death of the former Prime Minister Zurab Zhvania in 2005, and to provide information about secret offshore bank accounts which they claimed were owned by the former President, Mikheil Saakashvili. Merabishvili turned down any deal, describing what he had been told as a conspiracy theory and nonsense. The Chief Prosecutor then told Merabishvili that his detention conditions would worsen if he did not agree to cooperate with the authorities. In his statement to the European Court, Merabishvili said that the ‘deal’ proposed also involved his release and guarantees to leave the country with his family.

Within three days of the incident, when Merabishvili next appeared at the city court in Tbilisi, he described what had happened to him. Immediately, the Prime Minister, Minister of Prisons and Chief Public Prosecutor all denied that the events happened at all and rejected out of hand calls for an investigation.

However, in a judgment published on 14th June the European Court of Human Rights described Merabishvili’s account as ‘particularly credible and convincing’:  it was central to the Court’s ground-breaking finding that the former prime Minister’s rights under Article 18 of the European Convention on Human Rights had been breached because of his pre-trial detention. This is the first such verdict against Georgia.

In the months after the Georgian Dream coalition won the parliamentary elections in October 2012, Merabishvili, who had been one of the leaders of the previous ruling party, the United National Movement (UNM) was the subject of a series of criminal charges, culminating in his conviction in February 2014 of various offences, including vote-buying and the misappropriation of property. He received a five year prison sentence.  His European Court case, lodged in 2013, challenged the propriety of his pre-trial detention (not his conviction). The Strasbourg Court acknowledged that Merabishvili’s pre-trial detention had been based on reasonable suspicion of his having committed offences in public office, but, significantly, it also found that the prosecuting authority had used it as an opportunity to obtain leverage over the investigation into the death of a former Prime Minister and to conduct an enquiry into the financial activities of the former President, aims which were ‘wholly extraneous’.  The Court found it necessary to remind the Georgian authorities that the prospect of detention cannot be used as a means of exerting moral pressure on a defendant and it noted that the Prime Minister, the Minister of Prisons, and the Chief Public Prosecutor, were ‘unmistakably opposed’ to the calls for an objective and thorough investigation into the incident in December 2013.

Article 18 is one of the more obscure provisions of the European Convention, stating that:

[t]he restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.’ In essence, this prevents state authorities from imposing restrictions on rights for “ulterior purposes”, and it has usually been applied in situations where the authorities are accused of mounting “political prosecutions.

Strasbourg Court findings of a violation of Article 18 are extremely rare, not least because it is no simple matter to prove that prosecuting authorities have arbitrarily abused their powers. The Court imposes a ‘very exacting standard of proof’ on anyone wishing to establish a breach of this provision:

[…] an applicant alleging that his rights and freedoms were limited for an improper reason must convincingly show that the real aim of the authorities was not the same as that proclaimed (or as can be reasonably inferred from the context). A mere suspicion that the authorities used their powers for some other purpose than those defined in the Convention is not sufficient to prove that Article 18 was breached.

For example, in the 2011 judgment in Khodorkovskiy v Russia the complaints brought under Article 18 by Mikhail Khodorkovskiy, the former board member and major shareholder of the Yukos oil company, that his arrest, detention and prosecution were politically motivated, were rejected by the Court. Whilst acknowledging that ‘certain suspicions’ were raised in his case, the Court did not have adequate proof to establish, as the applicant argued, that in his case the whole legal machinery had been misused ab initio. Again finding no violation of Article 18 in a 2013 judgment concerning Mr Khodorkovskiy and his business partner Platon Lebedev, the Court concluded that ‘the accusations against the applicants were serious, that the case against them had a “healthy core”, and that even if there was a mixed intent behind their prosecution, this did not grant them immunity from answering the accusations’.

However, former Ukrainian Prime Minister Yuliya Tymoshenko and Yuriy Lutsenko, the former Ukrainian Minister of Interior, have successfully invoked Article 18 – as with Merabishvili’s case, soon after a change of power, they were accused of abuse of power and prosecuted. The Court found that the context of the Merabishvili case was ‘undoubtedly reminiscent’ of the two Ukrainian cases. In Azerbaijan, charges brought against the opposition politician Ilgar Mammadov were found to have been aimed at silencing or punishing him for criticising the government, and the human rights defender Rasul Jafarov secured a similar decision in March this year.

In finding in favour of Vano Merabishvili, the European Court took account of the wider context in Georgia. Many international observers, including political leaders in other States and international organisations, have expressed concerns over the possible use of criminal proceedings against Merabishvili for an improper, hidden political agenda. The judgment also noted misgivings expressed by the Council of Europe, the OSCE and the European Parliament at the prosecution of many senior UNM officials who had served in the previous government.

What happens now? The Minister of Justice, Tea Tskulukiani, immediately confirmed that there will be an investigation into the December 2013 incident. There has been an intense debate in Georgia about the impact of the judgment – although Merabishvili was subsequently convicted, to what extent does the European Court decision mean that the criminal proceedings as a whole were tainted? Does it mean he should be re-tried, or even released? In any event, such treatment of political opponents is highly damaging to Georgia’s credibility as a democratic state which respects the rule of law. The findings indicate that in order to meet the standards required of a fully functioning democratic state, and to restore public trust, further systemic reforms of the justice system are urgently needed.

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Bill Bowring says

August 2, 2016

Great work, Phil! and an important and useful analysis