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Article18violation

StrasbourgCensuresGeorgiaoverDetentionofFormer
PrimeMinistertheimpactofanArticle18violation

PhilipLeach

PublishedonAugust2,2016Author:PhilipLeach
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In December 2013, former Georgian Prime Minister Vano Merabishvili


washauledoutofhisTbilisiprisoncellinthemiddleofthenight,and,
withhisheadcovered,wasdriventoanunknowndestination.Onarrival,
hefoundhimselfbeforetheChiefPublicProsecutorandtheheadofthe
Georgianprisonservice.Merabishviliwasofferedadeal,andwasasked
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,
MikheilSaakashvili.Merabishviliturneddownanydeal,describingwhat
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
withhisfamily.
Withinthreedaysoftheincident,whenMerabishvilinextappearedatthe
city court in Tbilisi, he described what had happened to him.
Immediately, the Prime Minister, Minister of Prisons and Chief Public
Prosecutoralldeniedthattheeventshappenedatallandrejectedoutof
handcallsforaninvestigation.
However, in a judgment published on 14th June the European Court of
HumanRightsdescribedMerabishvilisaccountasparticularlycredible
and convincing: it was central to the Courts groundbreaking finding
(http://hudoc.echr.coe.int/eng?i=001163671) that the former prime
MinistersrightsunderArticle18oftheEuropeanConventiononHuman

PhilipLeach
(http://www.mdx.ac.uk/about
us/ourpeople/staff
directory/profile/leachphilip)is
DirectoroftheEuropeanHuman
RightsAdvocacyCentrebasedat
MiddlesexUniversityinLondon.
TogetherwithOtarKakhidzeof
BGILegalinTbilisi,he
representedVanoMerabishviliin
theEuropeanCourtproceedings.

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Rights had been breached because of his pretrial detention. This is the
firstsuchverdictagainstGeorgia.
InthemonthsaftertheGeorgianDreamcoalitionwontheparliamentary
electionsinOctober2012,Merabishvili,whohadbeenoneoftheleaders
ofthepreviousrulingparty,theUnitedNationalMovement(UNM)was
thesubjectofaseriesofcriminalcharges,culminatinginhisconviction
in February 2014 of various offences, including votebuying and the
misappropriation of property. He received a five year prison sentence.

RecentComments
AntonMoiseienko Daniel,
thanksforyourreply.Iamnotsure
thattheICJcanestablish
jurisdictionoverthisdispute

HisEuropeanCourtcase,lodgedin2013,challengedtheproprietyofhis

ostensiblyabouttheinterpretation

pretrial detention (not his conviction). The Strasbourg Court


acknowledged that Merabishvilis pretrial detention had been based on
reasonable suspicion of his having committed offences in public office,

orapplication...Aug01

but,significantly,italsofoundthattheprosecutingauthorityhadusedit
asanopportunitytoobtainleverageovertheinvestigationintothedeath
of a former Prime Minister and to conduct an enquiry into the financial
activitiesoftheformerPresident,aimswhichwerewhollyextraneous.
TheCourtfounditnecessarytoremindtheGeorgianauthoritiesthatthe
prospect of detention cannot be used as a means of exerting moral

DanielVentura I'dliketo
specifymypoint:First,theCourt
willhavetoaddressthequestionof
itsjurisdiction(comptence)based
solelyonthecompromissory
clausesthat...Aug01
Jordan

p.s.practiceandopinio

pressureonadefendantanditnotedthatthePrimeMinister,theMinister
ofPrisons,andtheChiefPublicProsecutor,wereunmistakablyopposed
tothecallsforanobjectiveandthoroughinvestigationintotheincidentin

haveledtonewmeaningsoftext(a
normaldevelopmentotherwise),
butthelegallytrainedseethings

December2013.

thatdon'texist(like...Aug01

Article 18 is one of the more obscure provisions of the European

Jordan

Convention,statingthat:

01

Sorry,"basedon"Aug

[t]herestrictionspermittedunderthisConventiontothesaidrights

Jordan Iunderstandthe
Europeanapproachto

andfreedomsshallnotbeappliedforanypurposeotherthanthose

"discrimination,"whichallows

for which they have been prescribed. In essence, this prevents


stateauthoritiesfromimposingrestrictionsonrightsforulterior

discriminationifitisrational,etc.,
butthereissomethingintellectually

purposes,andithasusuallybeenappliedinsituationswherethe

disatisfyingaboutthe

authoritiesareaccusedofmountingpoliticalprosecutions.

permissibilityof...Aug01

StrasbourgCourtfindingsofaviolationofArticle18areextremelyrare,
not least because it is no simple matter to prove that prosecuting
authorities have arbitrarily abused their powers. The Court imposes
(http://hudoc.echr.coe.int/eng#{"docname":
["Khodorkovskiy"],"documentcollectionid2":
["GRANDCHAMBER","CHAMBER"],"itemid":["001104983"]})

MarkoMilanovic

Fixed.Aug

01

Archives
a

veryexactingstandardofproofonanyonewishingtoestablishabreach
ofthisprovision:

August2016
July2016
June2016

[] an applicant alleging that his rights and freedoms were

MoreArchives(#more

limited for an improper reason must convincingly show that the


realaimoftheauthoritieswasnotthesameasthatproclaimed(or

archives)

ascanbereasonablyinferredfromthecontext).Ameresuspicion
thattheauthoritiesusedtheirpowersforsomeotherpurposethan
those defined in the Convention is not sufficient to prove that

Authors
SelectAuthor...

Article18wasbreached.
For example, in the 2011 judgment in Khodorkovskiy v Russia
(http://hudoc.echr.coe.int/eng#{"docname":
["Khodorkovskiy"],"documentcollectionid2":

Categories
openall|closeall
Afghanistan

["GRANDCHAMBER","CHAMBER"],"itemid":["001104983"]}) the
complaints brought under Article 18 by Mikhail Khodorkovskiy, the

AnnouncementsandEvents

formerboardmember and majorshareholder of the Yukos oil company,

ArmsControl

thathisarrest,detentionandprosecutionwerepoliticallymotivated,were

Conference

rejected by the Court. Whilst acknowledging that certain suspicions


wereraisedinhiscase,theCourtdidnothaveadequateprooftoestablish,

Defamation
DiplomaticAsylum

ArmedConflict

as the applicant argued, that in his case the whole legal machinery had

DiplomaticImmunity

beenmisusedabinitio.AgainfindingnoviolationofArticle18ina2013
judgment
(http://hudoc.echr.coe.int/eng#{"appno":

Editorials
EJIL

["11082/06"],"documentcollectionid2":

EJILAnalysis

["GRANDCHAMBER","CHAMBER"],"itemid":["001122697"]})
concerningMrKhodorkovskiyandhisbusinesspartnerPlatonLebedev,

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the Court concluded that the accusations against the applicants were

EJILReports

serious,thatthecaseagainstthemhadahealthycore,andthatevenif
therewasamixedintentbehindtheirprosecution,thisdidnotgrantthem

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immunityfromansweringtheaccusations.

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However, former Ukrainian Prime Minister Yuliya Tymoshenko


(http://hudoc.echr.coe.int/eng?i=001119382) and Yuriy Lutsenko,
(http://hudoc.echr.coe.int/eng?i=001112013) the former Ukrainian
Minister of Interior, have successfully invoked Article 18 as with
Merabishviliscase,soonafterachangeofpower,theywereaccusedof
abuseofpowerandprosecuted.TheCourtfoundthatthecontextofthe
Merabishvili case was undoubtedly reminiscent of the two Ukrainian
cases. In Azerbaijan, charges brought against the opposition politician
Ilgar Mammadov (http://hudoc.echr.coe.int/eng?i=001144124) were
foundtohavebeenaimedatsilencingorpunishinghimforcriticisingthe
government, and the human rights defender Rasul Jafarov
(http://hudoc.echr.coe.int/eng?i=001161416) secured a similar decision

EuropeanUnion
Extradition
Featured
HumanRights
HumanRightsCouncil
IndigenousPeoples
InternationalCriminalLaw
InternationalEconomicLaw
InternationalEnvironmentalLaw
InternationalHumanitarianLaw
InternationalLawandDomesticLaw
InternationalLawinArt,Literature,Thought

inMarchthisyear.

InternationalLegalProfession
InternationalOrganisations

In finding in favour of Vano Merabishvili, the European Court took

InternationalTribunals

account of the wider context in Georgia. Many international observers,

Iran

includingpoliticalleadersinotherStatesandinternationalorganisations,

Iraq

have expressed concerns over the possible use of criminal proceedings


against Merabishvili for an improper, hidden political agenda. The

Israel
Journals

judgmentalsonotedmisgivingsexpressedbytheCouncilofEurope,the

Jurisdiction

OSCE and the European Parliament at the prosecution of many senior

Kosovo

UNMofficialswhohadservedinthepreviousgovernment.

LawoftheSea

What happens now? The Minister of Justice, Tea Tskulukiani,

Libya

immediately confirmed that there will be an investigation into the


December 2013 incident. There has been an intense debate in Georgia

Migration
MixedArbitration

about the impact of the judgment although Merabishvili was

NaturalResources

subsequentlyconvicted,towhatextentdoestheEuropeanCourtdecision
meanthatthecriminalproceedingsasawholeweretainted?Doesitmean

NonStateActors

he should be retried, or even released? In any event, such treatment of

Occupation

political opponents is highly damaging to Georgias credibility as a


democraticstatewhichrespectstheruleoflaw.Thefindingsindicatethat

Palestine
PeaceKeeping

inordertomeetthestandardsrequiredofafullyfunctioningdemocratic

Piracy

state, and to restore public trust, further systemic reforms of the justice
systemareurgentlyneeded.

PreemptiveSelfDefence

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Rights,HumanRights

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