Information Note on the Court’s case-law 212

November 2017

Merabishvili v. Georgia [GC] - 72508/13

Judgment 28.11.2017 [GC]

Article 18

Restrictions for unauthorised purposes

Extension of leader of opposition’s pre-trial detention with primary purpose of obtaining information on matters unrelated to suspected offence: violation

Facts – At the relevant time the applicant, a former Prime Minister, was the le ader of the main opposition party (the UNM). Between 2012 and 2013, shortly after the “Georgian Dream” movement had been elected into power in October 2012, criminal proceedings were brought against the applicant for abuse of power and other offences. The applicant, who had been held in detention pending his trial, complained that he had thus been removed from the political scene. He also alleged that one night in December 2013 he had been covertly removed from his cell to be questioned by the Chief Prosecu tor about the death of a former Prime Minister in 2005 and about the financial activities of the former President. In 2014 he was found guilty of the majority of the charges brought against him.

In a judgment of 14 June 2016 a Chamber of the Court held in particular that there had been a violation of Article 18 taken in conjunction with Article 5 § 1, on the ground that the pre-trial detention had been used not only for the purpose of bringing the applicant before the competent legal authority on grounds o f reasonable suspicion that he had committed offences, but also to exert pressure on him in relation to an investigation that was unconnected with the offences with which he had been charged (see In formation Note 197 ).

Law – The Grand Chamber held unanimously that there had been no violation of Article 5 § 1 regarding the applicant’s arrest and pre-trial detention, or of Article 5 § 3 with regard to the first judicial decisions ordering his placement in pre-trial detention, but that there had been a violation of Article 5 § 3 because there had subsequently been insufficient grounds to justify keeping him in detention.

Article 18, taken together with Article 5 § 1: The Court considered it necessary to clarify its case-law as follows.

(a) Preliminary points – the relation between Article 18 and the other clauses of the Convention – Consistency justified aligning the use of the terms “independent” and “autonomous” in relation to Article 18 with the pract ice followed in relation to Article 14.

Like Article 14, Article 18 of the Convention 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 r ights and freedoms guaranteed by it.

That rule derived both from the wording of Article 18, which complemented that of clauses such as, for example, the second sentence of Article 5 § 1 and the second paragraphs of Articles 8 to 11, and from its place in t he Convention, at the end of Section I, which contained the Articles that defined and qualified those rights and freedoms.

Article 18 did not, however, serve merely to clarify the scope of those restriction clauses. It also expressly prohibited the High Contracting Parties from restricting the rights and freedoms enshrined in the Convention for purposes not prescribed by the C onvention itself, and to this extent it was autonomous. Therefore, as was also the position in regard to Article 14, there could be a breach of Article 18 even if there was no breach of the Article in conjunction with which it applied.

It further followed from the terms of Article 18 that a breach could only arise if the right or freedom at issue was subject to restrictions permitted under the Convention. However, the mere fact that a restriction of a Convention right or freedom did not meet all the require ments of the clause that permitted it did not necessarily raise an issue under Article 18. Separate examination of a complaint under that Article was only warranted if the claim that a restriction had been applied for a purpose not prescribed by the Conven tion appeared to be a fundamental aspect of the case.

(b) Where there was a plurality of purposes – Where a restriction pursued a number of purposes, it could be compatible with the substantive Convention provision which authorised it because it pursued a n aim permissible under that provision, but still infringe Article 18 because it was chiefly meant for another purpose that was not prescribed by the Convention – in other words, if that other purpose was predominant. Conversely, if the prescribed purpose was the main one, the restriction did not run counter to Article 18 even if it also pursued another purpose.

That interpretation was consistent with the case-law of the Contracting States’ national courts and of the Court of Justice of the European Union, which the Court could take into account when construing the Convention, especially appropriate in this case since the preparatory works to the Convention clearly indicated that Article 18 was meant to be the Convention version of the administrative-law not ion of “misuse of power”.

Which purpose was predominant in a given case depended on all the circumstances, notably the nature and degree of reprehensibility of the alleged ulterior purpose. In continuing situations, it could not be excluded that the assess ment of which purpose had been predominant might vary over time. It also had to be borne in mind that the Convention had been designed to maintain and promote the ideals and values of a democratic society governed by the rule of law.

(c) Questions of proo f – In order to establish whether or not there had been an ulterior purpose and whether it had been the predominant one the Court could and should adhere to its usual approach to proof rather than follow any special rules: (i) as a general rule, the burden of proof was not borne by one or the other party and the Court could take account of evidentiary difficulties faced by the applicants and, conversely, draw conclusions where the respondent Government refrained or refused to disclose information without of fering a satisfactory explanation; (ii) the standard of proof was “beyond reasonable doubt”; and (iii) the Court was free to assess not only the admissibility and relevance but also the probative value of each item of evidence before it. There was therefor e no reason for the Court to restrict itself to direct proof in relation to complaints under Article 18 of the Convention or to apply a special standard of proof.

According to the applicant, the authorities had in the present case used pre-trial detention for two ulterior purposes. The Court examined each one in turn to determine whether one of the two purposes had been predominant.

(i) Aim of removing the applicant from the political scene – There was no right as such under the Convention not to be crimin ally prosecuted. The Court was thus chiefly concerned with the purpose underlying the pre-trial detention. The Court did not consider sufficient proof in that respect:

– the fact that criminal prosecutions had been instituted against a number of former mi nisters and other high officials from UNM (members under a previous government could not be held to account while in power; more importantly, there was no evidence that the courts which had ruled on the pre-trial detention had lacked independence);

– the place of the proceedings, which was not redolent of forum shopping (moreover,  its conformity with domestic law had not been disputed);

– shortcomings in the decisions from the point of view of Article 5 § 3;

– the fact that courts of other member St ates had turned down requests for the extradition of other former officials from MNU on grounds that the criminal prosecutions against them had been politically motivated (firstly, the facts of the cases had not been identical; secondly, those courts had b een assessing a future risk, whereas the Court was concerned with past facts, which coloured their respective assessment of inconclusive contextual evidence). The same considerations applied to the decisions of Interpol in relation to the former President.

(ii) The aim of exerting pressure on the applicant for the purposes of obtaining information unconnected with the grounds for detention

(α) Proof of that aim : The Court was sensitive to its subsidiary role and recognised that it must be cautious in taki ng on the role of a primary finder of fact; yet it could take into account the quality of domestic investigations and any possible flaws in the decision-making process.

Certain parts of the applicant’s account – which was detailed, specific, remained consi stent throughout, and was corroborated by certain indirect evidence – had lent themselves to verification of his allegations by objective means (identity parade, checking  telephone records and cell tower data, video recordings) or taking witness statement s from third parties. Those leads had not been explored however.

The evidence put forward by the Government was not sufficiently persuasive:

– generally speaking, the findings obtained following the two inquiries that had been carried out had to be appr oached with caution: the first one had been conducted by officials from the Ministry of Prisons against a backdrop of firm denials by their Minister; the second one had only been opened following the Chamber judgment in this case;

– following a concrete e xamination, several elements cast doubt on the assertion that footage from the surveillance cameras had been automatically deleted after twenty-four hours; the exact method used to examine other footage (which had not been made available to the applicant’s lawyer); the various statements produced in evidence (emanating either from subordinates of the alleged perpetrators or from persons whose own conduct might have been called into question); the probative value of the data taken from the prosecuting author ities’ document-management system during the night of the incident;

– the absence of entries in the prison logs attesting to the applicant’s removal from his cell was in keeping with the covert nature of the alleged operation.

Drawing inferences from that material and the authorities’ conduct, the Court was satisfied that the applicant had been covertly removed from his prison cell.

(β) Predominance of that purpose :  If the restriction of the applicant’s right to liberty was thus seen as a whole, it was h ard to conclude that obtaining information about the former Prime Minister’s death or the former President’s bank accounts had been the chief purpose of the measure. There was no evidence that the applicant’s pre-trial detention had been used with that pur pose in mind for the first seven months.

In the present case, however, the restriction in question constituted a continuing situation. The following factors led the Court to the conclusion that the initial purpose had been supplanted by another one: while in the beginning it had been the investigation of offences based on a reasonable suspicion, later on it had become to obtain information about a former Prime Minister’s death and about the President’s bank accounts.

Some of those factors related to the tim e of the incident: the reasons for keeping the applicant in pre-trial detention appeared to have receded; the former President, who had become the target of several criminal investigations, had just left Georgia following the end of his term of office; the investigation into the former Prime Minister’s death had apparently not made significant progress.

Other factors showed the considerable importance of the questions regarding those two men for the authorities. Thus, the Government had stated at the hearin g before the Grand Chamber that there was still a “huge question” for the applicant to answer on this point. The prosecuting authorities had had the power to drop all charges against the applicant at any point without judicial control and had promised to d o so if he provided the requested information, so the courts would have had to discontinue the criminal proceedings against him. The applicant had been taken in a covert and apparently irregular manner, in a clandestine operation carried out in the middle of the night, to meet with an individual who had been appointed to his post three weeks previously. The authorities’ initial reaction in that respect had been to issue firm denials, and the ensuing inquiry and investigation had been marred by a series of o missions from which it could be inferred that the authorities had been eager that the matter should not come to light: the main protagonists had not been interviewed during the initial inquiry but only nearly three years after the events, and the crucial e vidence in the case – the footage from the prison surveillance cameras – had not been recovered.

Conclusion : violation (nine votes to eight).

Article 41: EUR 4,000 in respect of non-pecuniary damage.

(See also Lutsenko v. Ukraine , 6492/11, 3 July 2012, Information Note 154 ; Tymoshenko v. Ukraine , 49872/11, 30 April 2013, Information Note 162 ; Khodorkovskiy and Lebedev v. Russia , 11082/06 and 13772/05, 25 July 2013, Information Note 165 ; Ilgar Mammadov v. Azerbaijan , 15172/13, 22 May 2014, Information Note 174 ; Rasul Jafarov v. Azerbaijan , 69981/14, 17 March 2016, Information Note 194 )

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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