Information Note on the Court’s case-law 197

June 2016

Merabishvili v. Georgia - 72508/13

Judgment 14.6.2016 [Section IV]

Article 18

Restrictions for unauthorised purposes

Pre-trial detention of politician and leader of opposition party, allegedly performed only to exclude him from the political life of the country: violation

[This case was referred to the Grand Chamber on 17 October 2016]

Facts – The a pplicant was a Georgian politician who had formerly held high-ranking State offices, including those of Minister of the Interior and Prime Minister, and was the leader of the strongest opposition party. Between 2012 and 2013, soon after the change of power resulting from the parliamentary election of October 2012, criminal proceedings were instituted against him for abuse of power and other offences. The applicant was subsequently placed in pre-trial detention. In 2014 he was convicted of the majority of th e charges brought against him.

In his application to the European Court the applicant complained, inter alia , that his prosecution and arrest had been used by the authorities to exclude him from the political life of the country, in breach of Article 18 of the Convention.

Law – The Court found, unanimously, no violation of Article 5 § 1 in respect of the applicant’s pre-trial detention, no violation of Article 5 § 3 as regards the initial court decisions imposing pre-trial detention, but a violation of Arti cle 5 § 3 with regard to the second judicial review of the applicant’s detention.

Article 18 in conjunction with Article 5 § 1: The fact that the Court had found no violation with respect to the applicant’s complaint under Article 5 § 1 regarding the alleg ed unlawfulness of his pre-trial detention did not preclude it from addressing the applicant’s claims about the existence of improper political motives behind his detention. In that connection, the Court noted its finding that the applicant’s pre-trial det ention had lacked reasonableness, in breach of Article 5 § 3.

Following the applicant’s arrest and detention a number of international observers had expressed concerns over the possible use of criminal proceedings against him for an improper, hidden polit ical agenda on the part of the regime. However, the Court’s scrutiny could not be based only on the general perspective of the allegedly politically motivated prosecution of the applicant as an opposition leader, but had to be grounded on evidence in the l egal sense and the Court’s own assessment of the relevant and specific factual circumstances of the case. These suggested that the applicant’s detention had its own distinguishable features which allowed the Court to look into the matter separately from th e general political context. In particular, in December 2013 the applicant was, according to his submissions, removed from his prison cell for a late-night meeting during which the Chief Public Prosecutor and the head of the prison authority had used his p re-trial detention as leverage to obtain statements from him relating to an unrelated investigation into the death of the former prime minister and also to the former president of the country. The applicant’s account of the incident was particularly credib le and convincing, and supported by a number of surrounding circumstances. Moreover, the authorities had unmistakably been opposed to the repeated calls by the applicant, the public and even certain senior high-ranking State officials for an objective and thorough investigation.

The applicant’s account of the incident could therefore be considered to be factual with as a high a degree of certainty as possible. It could thus be argued that the applicant’s pre-trial detention had been used not only for the p urpose of bringing him before the competent legal authority on reasonable suspicion of the offences with which he had been charged, but also as a means of exerting moral pressure on him.

Conclusion : violation (unanimously).

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 ; 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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