The former Prime Minister of Georgia and the (rare) implementation of Article 18 of the ECHR. His temporary detention was used for a purpose other than that established.
JUDGMENT
Merabishvili v. Georgia 28.11.2017 (no.72508/13)
SUMMARY
The applicant is one of the leaders of the former ruling party, the United Nations Movement (UNM), who for several months served as Georgia’s Prime Minister for a few months, and shortly afterwards he was on the opposition side. He was arrested after being prosecuted for embezzlement and misuse of powers, offenses for which he was temporarily held prisoner. Based on Article 5 §§ 1, 3 the applicant complains that his arrest and detention were unlawful and unjustified and that the court did not manage properly to review his application for release.
The Court has come to the conclusion that there have been violations:
(a) Article 5 § 3 as regards the continued justification of the applicant’s detention. The decision to extend the provisional detention had completely ignored the passage of time and made it clear that the applicant had to prove that his detention was no longer warranted. However, according to Article 5 § 3, the authorities have a responsibility and not the prisoners to find the reasons justifying the continuation of the detention. Therefore, the grounds put forward by the national court were not sufficient to justify the decision to continue the measure,
(b) of Article 18 in conjunction with Article 5 § 1. The restriction of Mr Merabishvili’s right to liberty was mainly pursued for a purpose not provided for in the Convention. While initially the purpose was to investigate offenses based on reasonable suspicion, it was later aimed at obtaining information on the death of Zhvania and the bank accounts of former Prime Minister Saakashvili.
The ECtHR held that there could be an autonomous violation of Article 18 even if there was no violation of the article in conjunction with which it was applied.
PROVISIONS
Article 5 § 1
Article 5 § 3
Article 5§ 4
Article 18
USE-COMMENT
The ECtHR examines Article 18 of the ECHR, which is extremely rare. This Decision is therefore useful because it negotiates the ban on the use of a limitation of a right for a purpose not provided for in the Convention.
PRINCIPAL FACTS
The applicant, Ivane Merabishvili, is a Georgian national born in 1968. He is currently serving a
prison sentence in Tbilisi.
Before the parliamentary elections of October 2012, which resulted in a change of power,
Mr Merabishvili, one of the leaders of the then ruling party, the United National Movement (UNM),
was a member of the Georgian Government: from 2005 to 2012 he was Minister of Internal Affairs
and then, from July to October 2012, Prime Minister. After the political coalition Georgian Dream
had won the parliamentary election of October 2012 and formed a new Government,
Mr Merabishvili was elected Secretary General of the UNM, which became the main opposition
party in Georgia.
Mr Merabishvili was arrested on 21 May 2013 following the institution against him of two sets of
criminal proceedings. The first charge against him was that between July and September 2012 he
had devised a scheme creating fictitious public-sector jobs for over 20,000 people whereby they had
unduly been paid the equivalent of more than two million euros for carrying out campaign work for
UNM ahead of the October 2012 elections. According to the authorities, he had thus bought votes,
misappropriated property and abused his power as a public official. The second charge was that he
had systematically used a private house in a resort on Georgia’s Black Sea coast, which belonged to a
company under investigation by the Ministry of Internal Affairs, for holidays with his family, and that
he had used public funds for renovation works on that house. According to the authorities, he had
thus infringed the inviolability of property and had misappropriated property, both by using an
official position.
On 22 May 2013 the Kutaisi City Court followed a request by the district prosecutor’s office of
Western Georgia to place Mr Merabishvili in pre-trial detention on the grounds that there was a risk
that he would flee or obstruct the gathering of evidence. As to the risk of flight, the prosecutor had
notably referred to the fact that Mr Merabishvili, having held public offices for several years, had
many contacts abroad, that his wife had left Georgia right after he had been summoned for
questioning, that a search of his flat had revealed large sums of cash and that it had been found that
he had a fake passport. Mr Merabishvili’s appeal against that decision was rejected on 25 May 2013.
During a pre-trial session on 25 September 2013, Mr Merabishvili requested to be released from pretrial
detention, noting in particular that before his arrest he had always duly appeared for
questioning and that he had been abroad many times, having always returned as scheduled. He also
offered to hand in his passport. He moreover pointed out that the investigation had already been
concluded and all witness and other evidence had been secured, therefore there was no longer any
risk of his influencing witnesses. The prosecution argued, among other things, that there was still a
risk of his influencing witnesses, referring in particular to an incident in November 2012, when he
had been stopped at Tbilisi airport attempting to cross the border with a fake passport and had
subsequently threatened the head of the Border Police, trying to keep him from investigating the
incident. The prosecution also pointed to the fact that the witnesses were still due to testify at trial.
The Kutaisi City Court examined Mr Merabishvili’s request on the same day and rejected it without
further explanation.
When his trial started, on 7 October 2013, Mr Merabishvili again requested to be released from pretrial
detention. The trial court again dismissed the request, noting that he had failed to point to new
circumstances calling for reconsideration. The fact that the trial had already started had no bearing
on the justification for his detention.
In February 2014 Mr Merabishvili was convicted of the majority of the charges against him, including
vote-buying, misappropriation of property and breach of the inviolability of another person’s home.
The charge of abuse of authority was dismissed as superfluous. He was sentenced to five years’
imprisonment and banned from holding public office for one and a half years. The judgment was
upheld on appeal.
Mr Merabishvili was subsequently convicted in three additional sets of criminal proceedings for
offences involving abuse of official authority when he was Minister of the Interior.
According to Mr Merabishvili, while in pre-trial detention, in the early hours of 14 December 2013 he
was covertly removed from his cell and taken by car, while having his head covered, for a meeting
with the Chief Public Prosecutor, O.P., and the head of the Penitentiary Department, D.D. The two
officials threatened him in order to obtain information about the bank accounts of the former
President of Georgia Mikheil Saakashvili, who had left the country in October 2013, and about the
death in 2005 of the former Prime Minister, Zurab Zhvania. The death of Mr Zhvania, who, according
to the official version of the events, had died accidentally from carbon monoxide poisoning, was still
a subject of heated debate, and the party Georgian Dream had made it one of their campaign
promises to elucidate its circumstances.
Mr Merabishvili voiced his allegations about the incident at a hearing on his case on 17 December
2013, which was broadcast live on television. He called upon the authorities to verify his allegations
by, in particular, examining video footage from the surveillance cameras of the prison where he was
held.
On 20 December 2013 the Ministry of Prisons’ General Inspectorate opened an internal inquiry into
Mr Merabishvili’s allegations. During the inquiry, the Penitentiary Department’s deputy head
informed the General Inspectorate’s deputy head that his request for a copy of the footage from the
surveillance cameras of the prison and the Penitentiary Department building for the relevant period
could not be complied with, since that footage was kept only for 24 hours and was then deleted.
Inspectors reviewed footage from surveillance cameras belonging to facilities such as petrol stations
along the road supposedly taken by the car transporting Mr Merabishvili during the night in
question; they noted that nothing of interest could be seen. The inquiry was terminated in January
2014 with a report concluding that Mr Merabishvili’s allegations had not been confirmed.
After the European Court of Human Rights’ Chamber judgment in the case had been delivered, the
Chief Public Prosecutor’s Office, on 21 June 2016, opened a criminal investigation in relation to
Mr Merabishvili’s allegations. Among other witnesses, both the then former Chief Public Prosecutor
O.P. and the then former head of the Penitentiary Department D.D. were interviewed for the first
time in September 2016. They both denied the allegations. In February 2017 a prosecutor from the
Chief Public Prosecutor’s Office closed the investigation, concluding that Mr Merabishvili’s
allegations had not been confirmed.
THE DECISION OF THE COURT
Article 5 § 1
The Court found that there had been no violation of Article 5 § 1 either as regards Mr Merabishvili’s
arrest or his pre-trial detention in itself. It noted in particular that he had not claimed that his arrest
and pre-trial detention had not been based on a reasonable suspicion of his having committed the
offences in question.
Nothing in the material in the case file cast any doubt on the reasonableness of the suspicion against
Mr Merabishvili. There was moreover nothing to suggest that at the time of his arrest there was no
intention of bringing him before a court. Indeed, he had been brought before a court on the day
following his arrest.
Noting that Mr Merabishvili took issue with the trial court’s failure to fix the duration of his pre-trial
detention, the Court considered that this omission did not raise an issue under the Convention. It
observed in particular that under the Georgian Code of Criminal Procedure it was not possible to
keep him in custody for more than nine months in connection with the charges against him. There
had therefore not been any uncertainty about the rules governing his pre-trial detention or a risk
that it would last indefinitely, and he had been convicted eight months and 27 days after being
arrested.
Article 5 § 3
The Court found that there had been no violation of Article 5 § 3 as regards Mr Merabishvili’s initial
placement in pre-trial detention in May 2013. It noted that the trial court had given relevant reasons
to place him in pre-trial detention, namely the risk that he would flee and would influence
witnesses. While that court had not strongly substantiated the risk of his influencing witnesses, the
risk of flight had been established in more concrete terms.
The prosecution had notably referred to the fact that his wife had left Georgia right after he had
been summoned for questioning, that a search of his flat had revealed large sums of cash and that
he still had a fake passport. Those facts, amplified by the seriousness of the punishment he could
expect if convicted, suggested that at that time, immediately after he had been charged, the risk of
his fleeing abroad could be seen as sufficiently real and incapable of being averted by a less
restrictive measure.
However, the Court found a violation of Article 5 § 3 as regards the continued justification of Mr
Merabishvili’s pre-trial detention.
When he had first challenged his detention in September 2013, four months after his arrest, the
parties had essentially repeated their arguments about the risk of flight and the risk of influencing
witnesses. Although by their nature those reasons which at first had justified his placement in pretrial
detention could change over time and thus required a fresh examination, the trial court had
omitted to give any reasons for its decision to continue the measure. In its subsequent decision of
October 2013 that court had briefly noted that Mr Merabishvili had not pointed to any new facts or
evidence. It had thus entirely disregarded the passage of time and had made it clear that it was for
Mr Merabishvili to show that his detention was no longer justified. However, under Article 5 § 3 it
was the responsibility of the authorities, not of the detainee, to establish that reasons persisted to
justify continued pre-trial detention. The reasons given by the trial court had therefore not been
sufficient to justify its decision to continue the measure.
Article 5 § 4
Having regard to its findings under Article 5 § 3, the Court did not consider it necessary to examine
the same issue under Article 5 § 4.
Article 18 in conjunction with Article 5 § 1
The Court first dismissed a preliminary objection by the Government to the effect that Mr
Merabishvili had failed to raise his allegations about the meeting with the Chief Public Prosecutor
within six months of that alleged meeting and had therefore failed to comply with the six-month
time-limit under Article 35 § 1 of the Convention. The Court observed that those allegations had
indeed been duly raised more than six months after the alleged meeting and after his lawyer had
been informed that the inquiry into the matter had been completed. If those allegations were to be
seen as a separate complaint they had been out of time. However, the Court found that they were
simply a further aspect, or a further argument in support of, the complaint already set out in the
application, namely that the restriction of Mr Merabishvili’s right to liberty had been applied for a
purpose not prescribed by the Convention. It followed that the Court was not precluded from
dealing with those allegations.
Principles
In its judgment, the Court provided an overview of the existing case-law on Article 18,2 observing
that the examination of Mr Merabishvili’s case had brought to light the need to clarify that case-law.
The Court pointed out that Article 18 did not have an independent existence; it could only be applied
in conjunction with an Article of the Convention or the Protocols thereto which set out or qualified
the rights and freedoms guaranteed by it. Its wording complemented that of clauses, such as the
second sentence of Article 5 § 1 and the second paragraphs of Articles 8 to 11 of the Convention
(right to respect for private life; freedom of religion; freedom of expression; freedom of assembly
and association), which permitted restrictions to those rights and freedoms.
However, Article 18 also expressly prohibited member States from restricting the rights and
freedoms guaranteed by the Convention for purposes not prescribed by the Convention itself, and to
that extent it was autonomous. Therefore, there could be a breach of Article 18 even if there was no
breach of the Article in conjunction with which it applied.
Furthermore, the mere fact that a restriction of a Convention right did not meet all the requirements
of the clause that permitted it did not necessarily raise an issue under Article 18. Separate
examination of a complaint under Article 18 was only warranted if the claim that a restriction had
been applied for a purpose not prescribed by the Convention was a fundamental aspect of the case.
As to situations where a right or freedom was restricted for a plurality of purposes – both for an
ulterior purpose and a purpose prescribed by the Convention – the Court took the view that the
mere presence of a purpose which did not fall within the restriction clause of the Article concerned
could not of itself give rise to a breach of Article 18. Conversely, a finding that a restriction pursued a
purpose prescribed by the Convention did not necessarily rule out a breach of Article 18.
Therefore a restriction could be compatible with the substantive Convention provision authorising it
but still infringe Article 18 because it was chiefly meant for another purpose not prescribed by the
Convention. What mattered was whether that other purpose was predominant. In continuing
situations, it could not be excluded that the assessment of which purpose was predominant might
vary over time.
As to the required standard of proof, the Court considered that there was no reason to restrict itself
to direct proof in relation to complaints under Article 18, or to apply a special standard of proof.
Instead, it was to adhere to its usual approach to proof. While it relied on the evidence submitted by
the parties, it also routinely asked the parties of its own motion to provide material which could
corroborate or refute the allegations made before it. If the respondent Government did not respond
to such a request, the Court could draw inferences, especially in situations where the State alone
had access to the relevant information. Furthermore, the standard of proof had to be beyond
reasonable doubt. Such proof could follow from the coexistence of sufficiently strong, clear and
concordant inferences. Information from reports by international observers, non-governmental
organisations or the decisions of other national or international courts were often taken into
account when making inferences about the events in question.
Application to Mr Merabishvili’s case
As to the first aspect of Mr Merabishvili’s complaint under Article 18, the Court came to the
conclusion that it had not been established that his pre-trial detention had principally been meant to
remove him from Georgia’s political scene. Although his pre-trial detention had taken place against
the background of bitter political antagonism between UNM and Georgian Dream, Mr Merabishvili’s
submissions were not sufficient to show that the predominant purpose of that detention had been
to hinder his participation in Georgian politics.
Notably, while the fact that there had been criminal prosecutions against a number of other former
high officials from UNM could suggest an intention to harm that party, it could equally reflect the
aim to deal with alleged wrongdoings under a previous government whose members could not be
held to account while in power. There was no evidence that the courts were not sufficiently
independent from the executive authorities. Furthermore, the manner in which the criminal
proceedings against Mr Merabishvili had been conducted did not reveal a predominantly political purpose behind his pre-trial detention either: The duration of the trial had not been unreasonably
long, and the fact that it had taken place in Kutaisi rather than Tbilisi did not indicate forum
shopping by the prosecuting authorities – as had been suggested by Mr Merabishvili – given that in
separate criminal proceedings a court in Tbilisi had also ordered his pre-trial detention.
As to the second aspect of Mr Merabishvili’s complaint under Article 18, the Court found his
allegations concerning his covert removal from his prison cell on 14 December 2013 – which had
been fully disputed by the Government – sufficiently convincing and therefore proven. Notably, his
account of the way in which he had been taken out of prison and to the meeting with the Chief
Prosecutor had been detailed and specific and had remained consistent throughout.
While there was no direct evidence of Mr Merabishvili’s account, he had hardly been in a position to
provide such evidence, being in the custody of the authorities. His assertions were, however,
corroborated by several indirect elements. Notably, two witnesses interviewed during the
investigation by the Chief Public Prosecutor’s Office had stated that they had on several occasions
heard the head of the special forces of the Ministry of Prisons at the relevant time say that he had
been one of the persons who had transported Mr Merabishvili to the late-night meeting with the
Chief Public Prosecutor. While that was hearsay evidence by two witnesses who had previously been
subordinates to Mr Merabishvili, that factor was somewhat offset by the fact that one of the
witnesses had previously been dismissed by Mr Merabishvili; he had therefore had no reason to
bend the truth in Mr Merabishvili’s favour. Furthermore, a senior official at the Penitentiary
Department had twice stated in interviews given to the media that Mr Merabishvili had been taken
to the meeting in question with the Chief Public Prosecutor, and that senior official had shortly after
that been dismissed from her post.
Moreover, there were several elements calling the Government’s assertions into question. Most
importantly, they had claimed that the footage from the surveillance cameras in the prison and in
the Penitentiary Department building – which could have conclusively proved or disproved
Mr Merabishvili’s allegations – was automatically deleted after 24 hours. That claim was doubtful,
having regard to the fact that two officials – the Minister of Prisons and the deputy head of the
General Inspectorate of the Ministry of Prisons – appeared to have been unaware of that practice, as
evidenced by the statement of the former in response to the allegations and the request of the
latter, during the inquiry by the Ministry of Prisons’ General Inspectorate, to obtain a copy of the
footage. Moreover, the method used to examine footage from private surveillance and road traffic
cameras – which had revealed nothing of interest, according to the Ministry’s inspectors – remained
unclear, and that footage had not been made available to Mr Merabishvili’s lawyer.
Finally, there was no significant value to witness statements during the inquiry by people as the prison governor,
who were subordinates of the alleged perpetrators. The two alleged perpetrators themselves, the
Chief Public Prosecutor and the head of the Penitentiary Department, had not been interviewed
until September 2016 during the second investigation opened following the Chamber judgment in
the case. The Court considered that it could draw inferences from the material and the authorities’
conduct.
There was no evidence that until 14 December 2013, nearly seven months after Mr Merabishvili’s
arrest, the authorities had attempted to use his pre-trial detention as a means to pressure him into
providing information about Mr Zhvania’s death or Mr Saakashvili’s bank accounts. However, the
Court considered that the restriction of Mr Merabishvili’s right to liberty had amounted to a
continuous situation. It came to the conclusion – bearing in mind all the circumstances – that the
predominant purpose of that restriction had changed. While in the beginning that purpose had been
the investigation of offences based on a reasonable suspicion, it later on became to obtain
information about Mr Zhvania’s death and Mr Saakashvili’s bank accounts, as shown by the incident
of 14 December 2013.
The Court noted in particular that by that time, the reasons for keeping Mr Merabishvili in pre-trial
detention had receded, which had led the Court to find a violation of Article 5 § 3. Moreover, both
issues on which he was questioned were of considerable importance for the authorities at that time,
when Mr Saakashvili – who had become the target of several criminal investigations – had just left
the country following the end of his presidency, and the investigation into Mr Zhvania’s death, which
had been renewed in late 2012, had not made significant progress.
The Court concluded that there had been a violation of Article 18 in conjunction with Article 5 § 1.
Just satisfaction (Article 41)
The Court held, by nine votes to eight, that Georgia was to pay Mr Merabishvili 4,000 euros (EUR) in
respect of non-pecuniary damage.
Separate opinions
Judges Yudkivska, Tsotsoria and Vehabović expressed a joint concurring opinion. Judge Serghides
also expressed a concurring opinion. Judges Raimondi, Spano, Kjølbro, Grozev, Ravarani, PastorVilanova,
Poláčková and Hüseynov expressed a joint partly dissenting opinion. These opinions are
annexed to the judgment (echrcaselaw.com editing).
