ECHR’s Ruling into Merabishvili’s Pretrial Detention Case

Vano Merabishvili (right) seen in a courtroom in Kutaisi on May 22, 2013, when the court ordered his pretrial detention. Photo: InterPressNews

Pretrial detention of Georgia’s ex-interior minister Vano Merabishvili was “used not only for the purpose of bringing” him before the relevant legal authorities on “reasonable suspicion” of various offenses with which he had been charged, “but was also treated by the prosecuting authorities as an additional opportunity to obtain leverage” over investigations into unrelated cases, including the one against ex-President Mikheil Saakashvili, the European Court of Human Rights (ECHR) said in its ruling delivered on June 14.

As a result the Strasbourg-based court found that there has been a violation of Article 18 (limitation on use of restrictions on rights) of the European Convention on Human Rights taken in conjunction with Article 5 § 1 (right to liberty and security).
 
While the ECHR found no violation in Merabishvili’s initial pretrial detention in May 2013, the Court ruled that remanding him in custody four months later lacked reasonable grounds, thus constituting violation of Article 5 §3 of the Convention (entitlement to trial within a reasonable time or to release pending trial).

The ECHR said in this regard that Merabishvili’s request for release was reviewed by the Tbilisi City Court in September, 2013 in a “superficial manner” and his request was rejected by the court without issuing a written decision, as well as without even orally justifying its reasons.

The ECHR awarded Merabishvili with EUR 4,000 for non-pecuniary damages, and EUR 8,000 for legal expenses.

Merabishvili, secretary general of the opposition UNM party, who was the PM for few months before the UNM was defeated in the 2012 elections, was arrested in May, 2013 and charged with misspending and vote-buying; other set of criminal charges were filed against him later – all of them denied by Merabishvili as politically motivated. Merabishvili was found guilty and sentenced to prison terms in several separate trials in 2014.

In his complaint against his pretrial detention filed with the ECHR, Merabishvili was claiming violation of number of articles of the European Convention on Human Rights.

In one of his claims, relying on Article 18 of the Convention, Merabishvili was alleging that initiation of criminal proceedings against him and his arrest were used by the authorities to exclude him from the political life of the country, resulting in the weakening of his opposition UNM party, and preventing him from standing as a candidate in the presidential election, which was held in October, 2013.

He also claimed that his persecution continued during the pretrial detention when in December, 2013 he was allegedly removed from his cell and taken for a late-night meeting with then chief prosecutor, Otar Partskhaladze, whom Merabishvili accused of intimidation for the purpose of obtaining information about the death of the former Prime Minister, Zurab Zhvania, and about alleged secret offshore bank accounts of ex-President Mikheil Saakashvili.

There have been only few cases when the Strasbourg-based court found the violation of Article 18, which bans applying restrictions permitted under European Convention of Human Rights for any purpose other than those for which they have been prescribed.

It means that even if the state justifies restricting someone’s rights, it will still be deemed a violation if it turns out that this restriction of rights, among them detention, was used for some ulterior purposes, including hidden political agenda or any reason other than the one formally stated.

In this particular case, Merabishvili argued that the authorities were driven by political motives when arresting him.

In its judgment, the ECHR says that it “takes note of the general background” of Merabishvili’s allegations about the political motives, and continues by noting that after the October 2012 parliamentary elections in which UNM party was defeated, many international observers, high-ranking political leaders of foreign states and international organizations were expressing concerns over the possible use of criminal proceedings against Merabishvili for hidden political agenda.

The Court says that in the particular circumstances the decision to detain Merabishvili “must be seen in the light of the broader context of the criminal proceedings initiated against him and of his high political status.”

The Court also notes that this context “is undoubtedly reminiscent” of the situation involving Ukraine’s ex-PM Yulia Tymoshenko, whose pretrial detention was also ruled by the ECHR in 2013 as violation of the Article 18 of the European convention on human rights; the Court said at the time that her detention was “arbitrary” and was made “for other reasons” than those permitted by law.

The ECHR, however, said it “cannot carry out its scrutiny under Article 18 of the Convention solely against the general perspective of the allegedly politically motivated prosecution of the applicant [Merabishvili] as an opposition leader.”

“In establishing that the authorities had improper motives in restricting a politician’s human rights, the Court cannot accept as evidence the opinions and resolutions of political institutions or non-governmental organisations, or statements by other public figures,” the ECHR said.

“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,” it said.

The Court said that the particularity of the case in the context of the Article 18 of the Convention lies in the incident of December 2013, when Merabishvili, according to his claims, was removed from his prison cell for a late-night meeting with then chief prosecutor Otar Partskhaladze, who, according to Merabishvili, pressured him to obtain information about unrelated investigations, including the one against ex-President Mikheil Saakashvili.

The Court found these allegation of Merabishvili to be credible and “factual with as a high a degree of certainty as possible” because of number of reasons.

The Court noted that Merabishvili’s account of the incident “was particularly credible and convincing”; it said that his account of the facts was confirmed in part by one of the senior official of the prison department, who was dismissed from her post after her revelatory statements; the Court also said that there was “clearly observable reluctance” by the prison authority to provide access to video images taken by the prison surveillance cameras, which could have shed more light on the incident; and in general, the Court notes, the authorities, “notably” then Prime Minister Irakli Garibashvili, then prison system minister Sozar Subari, who is now the minister in charge of IDPs issues, were “unmistakably opposed to the calls for an objective and thorough investigation”.

“Nor did the government, in their submissions before the Court, provide any meaningful explanation of the incident of 14 December 2013, apart from making a brief reference to the very vague internal probe conducted by the Ministry of Prisons, in relation to which not even the smallest piece of information was shared with the Court,” the ECHR said.

Based on these circumstances, the Court said that it “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 into the death of the former Prime Minister and to conduct an enquiry into the financial activities of the former head of State [Saakashvili].”

“Indeed, the prospect of detention cannot be used as a means of exerting moral pressure on an accused,” the ECHR said.

Reactions to ECHR Ruling

Shortly after the judgment was delivered, opposition UNM party leaders welcomed the ruling as confirmation of what they have long been insisting, that Merabishvili is a “political prisoner” and called on the authorities to release him.

Justice Minister Tea Tskulukiani responded that there was nothing in the judgment that would require from the authorities to release Merabishvili; she, however, also said that the authorities will now have to investigate the December, 2013 case, involving Merabishvili’s removal from his cell for a meeting with chief prosecutor.

MP Davit Bakradze, leader of the UNM parliamentary minority group, said “it is quite clear” now that prosecutions of former high ranking officials over the past four years have all been “politically motivated.”

“With today’s ruling of the Strasbourg-based court Vano Merabishvili is officially a political prisoner,” MP Bakradze said and added that the authorities are now trying with their “lies” to mislead the public by “portraying white as black.

“I want to simply tell them that there has been only one instance in the history of the European Court [of Human Rights] when a country refused to take the court’s ruling into consideration. It was [former] President of Ukraine, Yanukovych and the political prisoner, Yulia Timoshenko, when President Yanukovych did not take into consideration the Strasbourg-based court’s ruling and everyone remembers how he ended,” MP Bakradze said.
 
“I want to call on the government to simply act responsibly and not to go down the road of Yanukovych and not to sacrifice our country, its European future and our development to its grudge and revenge. What has happened [ECHR’s ruling] is extremely important and this fact will have an effect on Georgia’s future development,” he added.

Executive secretary of the GDDG ruling party, Irakli Kobakhidze, said UNM’s claim “as if the Strasbourg-based court ruled Merabishvili’s arrest was politically motivated is a blatant lie.”

“Not a single wording of the Court’s verdict indicates on Merabishvili’s possible political imprisonment,” he said.

“The Court found crux of Merabishvili’s complaint unjustified; it found just two shortcomings, which can in no way suggest that his pretrial detention was illegal; they cannot either serve as a ground for reversing guilty verdict against him,” Kobakhidze said.
 
Justice Minister, Tea Tsulukiani, also said that the ECHR’s ruling does not imply the need to review Merabishvili’s conviction, who serves prison term on several separate criminal charges, which he denies as politically motivated.

“Today he is no longer in a pretrial detention. He is a convict,” Tsulukiani said.

Pointing to the part of the ECHR’s ruling which found Merabishvili’s initial pretrial detention as lawful, she said that “it was the key issue for us and we have succeeded in this”.

Referring to ECHR’s decision that Merabishvili’s rights were violated when the Tbilisi City Court decided to remand him in pretrial detention without giving any justification, Tsulukiani said: “We have to teach our judges how to justify decisions when they refuse an accused person in bail.”

“There have also been question marks about Partskhaladze’s episode,” she said, referring to ECHR’s ruling that the Article 18 of the Convention was violated as then chief prosecutor Partskhaladze exerted pressure on Merabishvili to obtain information on unrelated investigations.

“This [episode] will definitely be investigated,” the Justice Minister said.

She also said that the government will appeal the ruling in the part of the Article 18 to ECHR’s Grand Chamber.

A party can request within next three months that the case to be referred to the Grand Chamber of ECHR. If such a request is made, a panel of five judges considers whether the case deserves further examination. Once a judgment becomes final, it is transmitted to the Committee of Ministers of the Council of Europe for supervision of its execution.

Commenting on the ECHR’s ruling, Parliament Speaker Davit Usupashvili said: “It is a dream of any offender to have a prosecutor or a judge, who makes such a mistake that will enable an offender to seize upon it and use it… to then rehabilitate himself.” 

“Another dream of those offenders, who are also involved in political life, is to have such political opponents, who with their statements create such a political background that will enable some people to conclude that someone was prosecuted because of political motives rather than based on law. Vano Merabishvili probably also has such dreams and his dreams may come true,” Usupashvili said.

Leader of the opposition Democratic Movement party and ex-parliament speaker Nino Burjanadze criticized ECHR for “finding time” to look into complaint of Merabishvili, but “shelving” the cases of those participants of anti-government protest rally, which was violently dispersed by the police in 2011 when the UNM was in power. She said that she’s “not surprised at all about such actions of the Strasbourg-based court” as the 2011 crackdown on protesters, she said, was endorsed by diplomats from the EU-member states. Burjanadze also slammed the government and said that all those officials should be held responsible whose “incompetence and lack of intelligence” caused the verdict delivered by the ECHR in Merabishvili’s case.

MP Zurab Abashidze of the opposition Free Democrats party, led by ex-defense minister Irakli Alasania, said: “The Free Democrats party has never considered and will never consider Vano Merabishvili to be a political prisoner.”

MP Abashidze said that “incompetent” government with its “informal leader” Bidzina Ivanishvili should be blamed for the ECHR’s ruling, which, he said may give Merabishvili reason to claim being a political prisoner.

This post is also available in: ქართული (Georgian) Русский (Russian)