JOINT PARTLY DISSENTING OPINION OF JUDGES RAIMONDI, SPANO, KJØLBRO, GROZEV, RAVARANI, PASTOR VILANOVA, POLÁČKOVÁ AND HÜSEYNOV

I.

1. We fully concur with the Court’s important clarification of the general principles to be applied in the interpretation of Article 18 of the Convention as set out in paragraphs 282-307 of today’s judgment. However, we respectfully disagree with the majority as to the application of those principles to the facts of the case (Parts II-III). Furthermore, we consider it important to elaborate further on the interplay between Articles 5 § 1 and 18 of the Convention in the light of the approach adopted by the Court to the interpretation of the latter provision (Part IV).

II.

2. At the outset, we emphasise that Article 18 of the Convention sets a very high threshold as manifested in the predominant-purpose test adopted by the Court in today’s judgment. In the interpretation and application of Article 18 account must be taken of the fact that those provisions of the Convention which allow for restrictions also invariably provide certain guarantees against arbitrary and illegitimate grounds for limiting the rights in question. This applies, in particular, to Article 5 on the right to liberty, applicable in the present case, which the Court has long held must be interpreted so as to effectively protect against arbitrary detention (see, in particular, Mooren v Germany [GC], no. 11364/03, §§ 72 and 77-81, 9 July 2009). Furthermore, account must be taken of the inter-relationship between Articles 17 and 18 of the Convention, the former explicitly prohibiting the “abuse of rights” and the latter setting “limitations” on the “use of restrictions on rights”.

3. It follows that Article 18 can in our view only apply in the most serious of cases where it is adequately demonstrated on the facts, in accordance with the standard and burden of proof described in paragraphs 309-17 of the judgment, that the predominant purpose of the authorities was to limit Convention rights on the basis of motives which cannot be subsumed under the restrictions permitted by the Convention provision in question. This important qualification of the scope and content of the predominant-purpose test under Article 18 is highlighted in paragraph 307 of the judgment, where the Court rightly states that in assessing whether the purpose for a restriction was “predominant” it will have regard to the “nature and degree of reprehensibility of the alleged ulterior purpose, and bear in mind that the Convention was designed to maintain and promote the ideals and values of a democratic society governed by the rule of law”.

III.

4. On this basis, and moving to the application of Article 18 to the facts of the present case, we note that in paragraph 351 of the judgment the majority acknowledge that there is no evidence that until 14 December 2013, nearly seven months after the applicant had been remanded in custody, 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. The majority thus concede that if the restriction of his right to liberty were seen as a whole, it would be hard to regard the attempt to use it as a means to obtain such information as its predominant purpose. However, the majority rely on the premise that where a “restriction of a Convention right amounts, as here, to a continuous situation, in order for it not to contravene Article 18, its chief purpose must remain the one prescribed by the Convention throughout its duration, and it cannot be excluded that the initial purpose will be supplanted by another one as time goes by”. The majority then go on to find on the facts that several elements support their conclusion that that is indeed what happened in this case, namely, that at the point in time when the applicant was removed from his cell, the predominant purpose of his detention changed and that purpose was in violation of Article 18 of the Convention.

5. We respectfully disagree for the following reasons.

6. In our view, it is important to bear in mind at the outset that the applicant’s pre-trial detention lasted from his arrest on 21 May 2013 until he was convicted at first instance on 17 February 2014 (see paragraphs 26 and 53 of the judgment). There is no evidence before the Court to suggest that for the major part of that period of nearly nine months the prosecuting or the judicial authorities sought to restrict his right to liberty with a view to pressuring him to provide information about Mr Zhvania’s death or Mr Saakashvili’s bank accounts. On the contrary, the chronological sequence of their actions – proceeding with the pre-trial conference hearing and then the trial – does not substantiate another interpretation of events than that the predominant purpose for keeping the applicant in pre-trial detention was to ensure the smooth conduct of the criminal proceedings against him.

7. The meeting with the Chief Public Prosecutor, Mr O.P., took place at a time when the applicant’s widely publicised trial was well under way (see paragraphs 50 and 60 of the judgment). There is no discernible link between that meeting and any procedural steps in the criminal proceedings against the applicant or in the proceedings relating to his pre-trial detention. Mr O.P. had taken up office just three weeks before the meeting and resigned two weeks after it over an unrelated matter (see paragraph 60 of the judgment); he does not appear to have played any specific role in the criminal proceedings against the applicant.

8. To accept that the predominant purpose of the continued pre-trial detention of the applicant after 14 December 2013 was the extraction of evidence from him would require also to accept that the authorities were ready to dismiss the criminal charges against him. It is true that under Article 250 §§ 1 and 2 of the Code of Criminal Procedure the prosecuting authorities, which were under the overall control of Mr O.P., were free to drop the charges against the applicant at any point without judicial control of that decision (see paragraph 153 of the judgment). However, there is no basis in fact, founded on evidence submitted before the Court, to conclude that the authorities were actually considering that option. On the contrary, the applicant was a high-profile defendant in whose widely publicised case the prosecuting authorities had invested considerable time and resources. We are not persuaded by the facts before us that, even if they were eager to obtain the information which the Chief Public Prosecutor pressured the applicant to provide, they were prepared to reverse their actions and drop the charges against him mid-trial, or that they were able to give him credible assurances that they would do so. Moreover, for the applicant to go free, the charges in the other criminal case against him in Tbilisi, which was even more high profile (see paragraph 56 of the judgment), would have had to be dropped as well.

9. In view of those considerations, we are unable to conclude that the wish to obtain information from the applicant about Mr Zhvania’s death and Mr Saakashvili’s bank accounts can be regarded as the predominant purpose of his pre-trial detention or, indeed, that removing the applicant from the cell can be considered to be a motive, as such, for detaining him before, during or after the removal took place. Even assuming that the removal and the attempt to obtain information from the applicant was an advantage which the authorities hoped to derive from his being in their custody, we cannot accept that his pre-trial detention, in whole or in part, was merely a cover intended to enable them to attain that purpose.

IV.

10. As previously mentioned (see paragraph 4 above), the majority base their conclusions on their qualification of the applicant’s situation in detention as “continuous” and find that the predominant purpose “must remain the one prescribed by the Convention throughout its duration, and it cannot be excluded that the initial purpose will be supplanted by another one as time goes by”. On this basis, the majority seem to accept that the applicant’s pre-trial detention was initially, and for the first seven months, adequately justified under Article 5 § 1 of the Convention. However, at the point in time when the applicant was removed from his cell, the predominant purpose of his detention changed and that purpose was in violation of Article 18 of the Convention.

11. We have no reason of principle to quarrel with this understanding of the predominant-purpose test under Article 18 when applied to Article 5 pre-trial detention situations. As can be seen from the Court’s case-law, the possibility cannot, as such, be ruled out that a pre-trial detention may be justified under Article 5 § 1 if a person is reasonably suspected of a criminal offence, although it is clear on the facts that the predominant purpose of the authorities for imposing that measure is one which falls under Article 18 of the Convention.

12. However, the Convention requirement that pre-trial detention be justified throughout its duration as based on a legitimate purpose is already a fundamental component of Article 5 § 1 itself. In fact, the Court has consistently held that “Article 5 § 1 requires ... that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness” (see Mooren , cited above, § 72). As to the “notion of arbitrariness”, it is a general principle established in the case-law that detention will be “arbitrary” where, despite complying with the letter of national law, “there has been an element of bad faith or deception on the part of the authorities” (ibid., § 77). It follows that, due to this delicate interrelationship between the notion of arbitrariness – as an element inherent in Article 5 § 1 – and the notion of a predominant purpose restricting Convention rights under Article 18, the finding of no violation of the former, but a violation of the latter, can in reality only arise in exceptional circumstances. Such exceptional circumstances would only occur where the threshold for the applicability of Article 18 is reached, namely, in the most serious cases of particularly reprehensible abuse of power. In our view, the present case does not fall into that category for the following reason.

13. We observe that the majority consider that the whole of the applicant’s pre-trial detention was in fact in conformity with Article 5 § 1, even after he was removed from his cell, but, at the same time, consider that removing the applicant from his cell then rendered the detention in violation of Article 18 of the Convention. Therefore, on the facts of this particular case and bearing in mind that the majority have correctly rejected the allegation that the applicant’s detention was predominantly based from the outset on a purpose that falls under Article 18, we fail to see how the removal of the applicant from the cell could have, in and of itself, constituted a shift of purpose so serious as to warrant a finding of a violation of that provision, whilst at the same time not calling into question the legality, as such, of the applicant’s detention under Article 5 § 1.

14. In our view, it is more in conformity with the facts, as demonstrated, that the removal from the cell was not rationally related to the applicant’s pre-trial detention as such (whether before, during or after the event occurred), but rather a spontaneous act from which the authorities hoped, at best, to gain the opportunity to extract certain information from the applicant. Viewing the case through this lens, it is clear that the applicant’s pre-trial detention was therefore justified throughout under Article 5 § 1 and did not give rise to a violation of Article 18 of the Convention.

[1] . Translated by L. Coffin, Publication N. Alkhazishvili, 2015.

[2] . The terms “political trial” and “political justice” are used as synonyms in this opinion.

[3] . For a discussion on the notion and definition of a political trial, see, in general, Otto Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends , Princeton Legacy Library (1961); Judith N. Shklar, Legalism: Law, Morals, and Political Trials , Harvard University Press (1986); Ronald Christenson, “A Political Theory of Political Trials”, 74 J. Crim. L. & Criminology 547 (1983), available at: http://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=6373&context=jclc [accessed on 17/09/2017]; Eric A. Posner, “Political Trials in Domestic and International Law”, Duke Law Journal , Vol. 55 (2005); Jens Meierhenrich and Devin O. Pendas, “‘The Justice of My Cause is Clear, but There’s Politics to Fear’: Political Trials in Theory and History”, i n Jens Meierhenrich and Devin O. Pendas (eds.), Political Trials in Theory and History , Cambridge University Press (2016) .

[4] . Supra note 3, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , pp. 48-50 and 56-60, and see infra note 10, J.N. Shklar, Legalism: Law, Morals, and Political Trials , p. 149.

[5] . Supra note 3, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , pp. 4, 13, 15 and 27.

[6] . Supra note 3, R. Christenson, A Political Theory of Political Trials , pp. 547, 551 and 554.

[7] . Ron Christenson, Political Trials: Gordian Knots in the Law , second edition, Transaction Publishers, New Brunswick, USA (1999), p. 5; see also Ron Christenson, “What is a Political Trial?”, Society , Vol. 23 (1986), p. 26.

[8] . Supra note 3, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , pp. 13 and 25; R. Christenson, A Political Theory of Political Trials , p. 573; J.N. Shklar, Legalism: Law, Morals, and Political Trials , pp. 143-79.

[9] . Supra note 3, O. Kirchheimer, Political Justice , p. 6.

[10] . Ibid., p. 49; see also supra note 3, J.N. Shklar, Legalism: Law, Morals, and Political Trials , p. 149: “What, after all, is a political trial? It is a trial in which the prosecuting party, usually the regime in power aided by a cooperative judiciary, tries to eliminate its political enemies. It pursues a very specific policy – the destruction, or at least the disgrace and disrepute, of a political opponent.”

[11] . Supra note 3, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , p. 56.

[12] . Supra note 3, O. Kirchheimer, Political Justice , pp. 6 and 419-20.

[13] . Supra note 3, R. Christenson, A Political Theory of Political Trials , p. 548.

[14] . Supra note 3, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , p. 3.

[15] . See Josiah Ober, “The Trial of Socrates as a Political Trial: Explaining 399 BCE”, in Jens Meierhenrich and Devin O. Pendas (eds.), Political Trials in Theory and History , pp. 65-87, supra note 3.

[16] . See, generally, Helmut Satzger, Frank Zimmermann and Martin Eibach, “Does Art. 18 ECHR grant protection against politically motivated criminal proceedings? (Part 2) – Prerequisites, questions of evidence and scope of application”, EuCLR (2014), vol. 4, no. 3.

[17] . David Harris, Michael O’Boyle, Edward Bates, and Carla Buckley, Law of the European Convention on Human Rights , third edition, Oxford University Press (2014), p. 858.

[18] . Supra note 7, R. Christenson, Political Trials: Gordian Knots in the Law , p. 4.

[19] . Supra note 3, R. Christenson, A Political Theory of Political Trials , p. 576.

[20] . Supra note 3, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , pp. 33; J.N. Shklar, Legalism: Law, Morals, and Political Trials , p. 144.

[21] . See, for instance, “‘The Regime Should be Prosecuted’: The Name of the Resolution to be considered in Parliament” (in Georgian), available at:

http://radio1.ge/ge/news/view/96584.html [accessed on 17/09/2017]; “Interior Minister Says UNM Plans to Stir ‘Destabilization’”, available at: http://civil.ge/eng/article.php?id=27112 [accessed on 17/09/2017]; “Secret Service Investigates Alleged Coup Plot After Phone Call Leak”, available at:

http://www.tabula.ge/en/story/112491-secret-service-investigates-alleged-coup-plot-after-phone-call-leak [accessed on 17/09/2017].

[22] . Supra note 3, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , p. 59.

[23] . Supra note 3, O. Kirchheimer, Political Justice , p. 49.

[24] . Supra note 3, E.A. Posner, “Political Trials in Domestic and International Law”, p. 81.

[25] . See among others, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , pp. 13, 25 and 51; see also supra note 6.

[26] . Samuel Issacharoff, Fragile Democracies: Contested Power in the Era of Constitutional Courts , Cambridge University Press (2015), p. 134.

[27] . Ibid., p. 124.

[28] . Parliamentary Assembly of the Council of Europe, Resolution 2077 (2015) on abuse of pretrial detention in States Parties to the European Convention on Human Rights, § 6, available at: http://www.assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-EN.asp?fileid=22206&lang=en [accessed on 17/09/2017].

[29] . Ibid., §§ 4 and 7.

[30] . Joint concurring opinion of Judges Jungwiert, Nußberger and Potocki in Tymoshenko v. Ukraine , no. 49872/11, 30 April 2013 .

[31] . See European Commission for Democracy through Law (Venice Commission), Report on the relationship between political and criminal ministerial responsibility, adopted by the Venice Commission at its 94th plenary session (Venice, 8-9 March 2013), § 113, available at: http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2013)001-e [accessed on 17/09/2017]; see also Parliamentary Assembly of the Council of Europe, Resolution 1950 (2013) on keeping political and criminal responsibility separate, available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20016&lang=en [accessed on 17/09/2017]. Paragraph 3.5 of the Resolution stresses that “ national provisions on ‘abuse of office’ should be interpreted narrowly ” and “ should only be invoked against politicians as a last resort and the level of sanctions should be proportional to the legal offence and not influenced by political considerations ” . Furthermore, the Parliamentary Assembly calls upon legislative bodies of those member States whose criminal law still includes broad abuse-of-office provisions “ to consider abolishing or redrafting such provisions, with a view to limiting their scope in line with the recommendations of the Venice Commission ” (§ 4.2).

[32] . Supra note 3, E.A. Posner, “Political Trials in Domestic and International Law”, p. 81.

[33] . See Khodorkovskiy v. Russia , no. 5829/04, § 258, 31 May 2011.

[34] . Helen Keller and Corina Heri, “Selective Criminal Proceedings and Article 18 ECHR: The European Court of Human Rights’ Untapped Potential to Protect Democracy”, 36 (1-6) Human Rights Law Journal (2016), p. 10, Helmut Satzger, Frank Zimmermann and Martin Eibach, “Does Art. 18 ECHR grant protection against politically motivated criminal proceedings? (Part 1) – Rethinking the interpretation of Art. 18 ECHR against the background of new jurisprudence of the European Court of Human Rights”, EuCLR (2014), vol. 4, no. 2, p. 112.

[35] . Supra note 30, joint concurring opinion in Tymoshenko v. Ukraine.

[36] . Collected Edition of the “ Travaux Préparatoires ” of the European Convention on Human Rights , Martinus Nijhoff, The Hague (1975-85), Vol. II, p. 174. See, in general, The Conscience of Europe: 50 Years of the European Court of Human Rights , Third Millennium Publishing Limited (2010).

[37] . Speech by Mr Luzius Wildhaber, Former President of the European Court of Human Rights, Solemn hearing of the European Court of Human Rights on the occasion of the opening of the judicial year, 19 January 2007, available at: http://www.echr.coe.int/Documents/Speech_20070119_Wildhaber_JY_ENG.pdf [accessed on 17/09/2017].

38. Supra note 36; see also the speech by Jean-Paul Costa on “Immigration and Human Rights in the Case-Law of the ECHR” (London, 23 March 2009), available at: http://www.echr.coe.int/Documents/Speech_20090323_Costa_London_ENG.pdf [accessed on 17/09/2017].

[39] . Supra note 34, Helen Keller and Corina Heri, “Selective Criminal Proceedings and Article 18 ECHR”, p. 3.

[40] . Supra note 26, S. Issacharoff, Fragile Democracies , pp. 2 and 269.

[41] . Statement by Lodovico Benvenuti (Italy) at the second session of the Consultative Assembly of the Council of Europe, in Collected Edition of the “ Travaux Préparatoires ” of the European Convention on Human Rights, Martinus Nijhoff, The Hague (1975-85), Vol. II, p. 136.

[42] . Statement by Pierre-Henri Teitgen (France) at the first session of the Consultative Assembly of the Council of Europe, in Collected Edition of the “ Travaux Préparatoires ” of the European Convention on Human Rights , Martinus Nijhoff, The Hague (1975-85), Vol. I, p. 130.

[43] . Supra note 3, J. Meierhenrich and D.O. Pendas, Political Trials in Theory and History , pp. 5 and 7.

[44] . See, in general, the partly dissenting opinion of Judge Tsotsoria in Georgia v. Russia (I) [GC], no. 13255/07, ECHR 2014 (extracts). See also Giulia Pecorella, “A missing piece in the European Court of Human Rights’ judgment Georgia v. Russia (I) ”, available at: https://aninternationallawblog.wordpress.com/2014/10/27/a-missing-piece-in-the-european-court-of-human-rights-judgment-georgia-v-russia-i/ [accessed on 17/09/2017]; and the dissenting opinion of Judge Gyulumyan in Aksu v. Turkey [GC], nos. 4149/04 and 41029/04, ECHR 2012.

[45] . This case is currently pending before the Grand Chamber.

[46] . Both the criminal cases against Mr Khodorkovskiy are considered to be examples of a political trial. See, for instance, Richard Sakwa, “The Trials of Khodorkovsky in Russia”, in Jens Meierhenrich and Devin O. Pendas (eds.), Political Trials in Theory and History , pp. 369-94, supra note 3.

[47] . Supra note 17, Law of the European Convention on Human Rights , p. 860.

[48] . See infra note 54.

[49] . The Court in this case is concerned with two criminal charges in relation to which the applicant’s pre-trial detention was ordered on 22 May 2013 and extended on 25 September 2013 and 7 October 2013; see paragraphs 170 and 320 of the judgment.

[50] . Committee on Legal Affairs and Human Rights, Report on abuse of pretrial detention in States Parties to the European Convention on Human Rights, 7 September 2015, Doc. 13863, § 72, available at: http://assembly.coe.int/nw/xml/XRef/Xref-DocDetails-EN.asp?FileID=21992&lang=EN [accessed on 20/10/2017].

[51] . Supra note 28, Parliamentary Assembly Resolution 2077 (2015), § 7.1.

[52] . A recent interview of the former head of the Public Relations Department of the Ministry of Prisons further supports the findings of the Court. Irakli Korzaia stated that Mr Merabishvili’s removal from prison by officials of the Penitentiary Department had at the very least been agreed with Prime Minister Garibashvili and that the authorities had interfered with the course of the investigation and destroyed the evidence. Exclusive interview (in Georgian) to The Other Accents , 15 July 2017, available at: http://rustavi2.ge/en/video/26486?v=2 [accessed on 17/09/2017].

[53] . See, for example, Parliamentary Assembly of the Council of Europe, Resolution 2015 (2014) on the functioning of democratic institutions in Georgia, available at: http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=21275&lang=EN [accessed on 17/09/2017]; “PACE Debates on Georgia”, available at: http://www.civil.ge/eng/article.php?id=27697 [accessed on 17/09/2017]; “Polish MFA ‘Concerned over Possible Selective Justice in Georgia’”, available at: http://www.civil.ge/eng_old/article.php?id=27551 [accessed on 17/09/2017].

[54] . See supra note 50, Report on abuse of pretrial detention in States Parties, § 75; “GEO PM: We Must Drive UNM out of Government Once and For All”, available at: http://www.tabula.ge/en/story/84242-geo-pm-we-must-drive-unm-out-of-government-once-and-for-all [accessed on 17/09/2017]; “Head of ISFED: Tsulukiani’s Comment about Destroying UNM Unacceptable”, available at: http://www.tabula.ge/en/story/75721-head-of-isfed-tsulukianis-comment-about-destroying-unm-unacceptable [accessed on 17/09/2017].

[55] . Parliamentary Assembly of the Council of Europe, Resolution 2015 (2014) on the functioning of democratic institutions in Georgia, § 10, supra note 53; Report by the Commissioner for Human Rights of the Council of Europe following his visit to Georgia from 20 to 25 January 2014, Strasbourg, 12 May 2014, CommDH(2014)9, pp. 3, 12-15, available at: https://rm.coe.int/16806db81a [accessed on 17/09/2017]; see also Commissioner for Human Rights of the Council of Europe, Observations on the human rights situation in Georgia: An update on justice reforms, tolerance and non-discrimination, Strasbourg, 12 January 2016, CommDH(2016)2, p. 3, available at: https://rm.coe.int/ref/CommDH(2016)2 [accessed on 17/09/2017]; “EU warns Georgia against Political Revenge on Former Officials”, available at: http://www.reuters.com/article/us-georgia-eu-idUSBRE8AP0U420121126 [accessed on 17/09/2017]; Human Rights Watch, World Report 2014: Georgia , available at: http://www.hrw.org/world-report/2014/country-chapters/georgia?page=1 [accessed on 17/09/2017]; see also supra note 50.

[56] . Among other references, see supra note 28, Parliamentary Assembly Resolution 2077 (2015), § 7.2; Observations on the human rights situation in Georgia, supra note 55, p. 3; and Report of the Commissioner for Human Rights following his visit to Georgia from 20 to 25 January 2014, supra note 55, pp. 12-15. See also the reference to the case of Alexander Ninua, noting that he was pressured to give testimony against Davit Kezerashvili, in the report by the Georgian Democratic Initiative, Politically Biased Justice in Georgia , (2015), pp. 67-69, available at: http://gdi.ge/uploads/other/0/241.pdf [accessed on 17/09/2017]; see also supra note 50 and infra note 61.

[57] . See among other references, “Statement by the Office of the Chief Prosecutor in Connection with the Extradition of M. Saakashvili and Z. Adeishvili”, available at: http://pog.gov.ge/eng/news?info_id=637 [accessed on 17/09/2017]; “Prosecutor’s Office Explains the Reasons for Annulling Interpol Red Notice, International Search Warrant against Z. Adeishvili and S. Kavtaradze”, available at: http://pog.gov.ge/eng/news?info_id=674 [accessed on 17/09/2017]; “Ex-official wanted in Georgia given asylum in EU”, available at: http://dfwatch.net/ex-official-wanted-in-georgia-given-asylum-in-eu-23468-23281 [accessed on 17/09/2017].

[58] . Supra note 26, S. Issacharoff, Fragile Democracies , p. 1.

[59] . Supra note 31, Venice Commission, Report on the Relationship between Political and Criminal Ministerial Responsibility, § 105.

[60] . Ibid., § 86.

[61] . OSCE Office of Democratic Institutions and Human Rights, Trial Monitoring Report Georgia, 2014 , §§ 51 and 63, available at: http://www.osce.org/odihr/130676?download=true [accessed on 17/09/2017]; see also Amnesty International Report 2016/17: The State of the World’s Human Rights , released on 22/02/17, available at: https://www.amnesty.org/en/documents/pol10/4800/2017/en/ [accessed on 17/09/2017]. The latter report notes: “On 12 January, the Council of Europe Commissioner for Human Rights reported that courts were more likely to approve detention or give custodial sentences to members of the UNM compared with bail and fines issued to pro-government activists in comparable cases.” See also US State Department, Georgia 2016 Human Rights Report , available at: https://www.state.gov/documents/organization/265634.pdf [accessed on 17/09/2017] .

[62] . Supra note 50, Report on abuse of pretrial detention in States Parties, § 75.

[63] . World Economic Forum, The Global Competitiveness Report 2017-18 , p. 125, available at: http://www3.weforum.org/docs/GCR2017-2018/05FullReport/TheGlobalCompetitivenessReport2017%E2%80%932018.pdf [accessed on 03/10/2017].

[64] . “Probe ‘Resumed’ into PM Zhvania’s Death”, available at: http://www.civil.ge/eng/article.php?id=25487 [accessed on 17/09/2017]; see also “Ivanishvili’s Incoming Govt’s Program”, available at: http://www.civil.ge/eng/article.php?id=25384 [accessed on 17/09/2017].

[65] . This is not the only case when this person has been at the epicentre of media attention. He has resigned as a result of a criminal records scandal, but is still believed to retain informal authority over law-enforcement agencies (see “Chief Prosecutor Resigns”, available at: http://civil.ge/eng/article.php?id=26835 [accessed on 17/09/2017]; “Targamadze: Financial Police is under ownership of Partskhaladze” (in Georgian), available at: http://www.tabula.ge/ge/story/120353-targamadze-finansuri-policia-farcxaladzis-pirad-sakutrebashia [accessed on 17/09/2017]. In 2017 O.P. was also accused of physically assaulting the Auditor General of Georgia. See “ Georgia’s State Audit Office Chairman Assaulted”, available at: http://www.civil.ge/eng/article.php?id=30099 [accessed on 17/09/2017]. The h andling of the latter case by the authorities has also been the subject of criticism. See “ Joint Statement of NGOs regarding Assault of Lasha Tordia, Auditor General of Georgia”, available at: https://idfi.ge/en/ngos_statement_on_attack_to_general_auditor_lasha_tordia [accessed on 17/09/2017] .

[66] . “Kbilashvili: There is Progress in the Investigation of the Death of Zurab Zhvania” (in Georgian), available at: http://www.tabula.ge/ge/story/73052-kbilashvili-zurab-zhvanias-gardacvalebis-saqmis-gamodziebashi-progresia [accessed on 17/09/2017].

[67] . “Ex-Chief Forensic Pathologist Arrested into Zhvania’s Case”, available at http://www.civil.ge/eng/article.php?id=27053 [accessed on 22/10/2017]; “PM Comments on Merabishvili’s Allegations”, available at: http://www.civil.ge/eng/article.php?id=26792 [accessed on 22/10/2017]; “Prosecutor’s office detains Zhvania’s bodyguard”, available at: http://www.tabula.ge/en/story/81293-prosecutors-office-detains-zhvanias-bodyguard [accessed on 22/10/2017].

[68] . “PM Comments on Merabishvili’s Allegations”, supra note 67; “Prison Minister Denies Merabishvili’s Allegations as ‘Utterly False’”, available at: http://www.civil.ge/eng/article.php?id=26797 [accessed on 22/10/2017].

[69] . The former chief forensic pathologist was acquitted by the Supreme Court on 3 December 2016 in relation to the charge of neglect of official duty (erroneous reporting) for not examining the late Prime Minister’s injuries comprehensively. In 2015 two bodyguards were found guilty of neglect of official duties (as they did not follow the standard protocol of the security detail and left Mr Zhvania without protection at the time of the incident). See “Jury Finds Late PM Zhvania’s Bodyguards Guilty of Neglect”, available at: http://www.civil.ge/eng/article.php?id=28501 [accessed on 22/10/2017]; “ Expert L.Ch. acquitted on Zhvania case in all three instances court”, available at: http://rustavi2.ge/en/news/62732 [accessed on 22/10/2017].

[70] . “Prosecutors Summon Saakashvili for Questioning”, available at: http://www.civil.ge/eng/article.php?id=27059 [accessed on 17/09/2017].

[71] . “Georgia Files Criminal Charges Against Ex-President”, available at: http://www.nytimes.com/2014/07/29/world/europe/georgia-files-criminal-charges-against-ex-president.html [accessed on 17/09/2017]; “Prosecutors Offer Saakashvili Questioning via Skype”, available at: http://www.civil.ge/eng/article.php?id=27084 [accessed on 17/09/2017]; “Georgia: EU concern at criminal charges against former President Saakashvili”, available at: http://www.finchannel.com/~finchannel/world/georgia/38859-georgia-eu-concern-at-criminal-charges-against-former-president-saakashvili [accessed on 20/10/2017]; “Georgian PM: Swedish, Lithuanian FMs are from ‘Club of Saakashvili’s Friends’”, available at: http://www.civil.ge/eng/article.php?id=27565 [accessed on 17/09/2017]; “Bildt: If PM Does Not Want To Listen To Best Friends of His Country, We Take Note”, available at: http://www.tabula.ge/en/story/86622-bildt-if-pm-does-not-want-to-listen-to-best-friends-of-his-country-we-take-note [accessed on 17/09/2017].

[72] . “Roland Akhalaia: There is pressure on us to give testimony against Saakashvili” (in Georgian), available at: http://netgazeti.ge/news/30106/ [accessed on 17/09/2017]; “Ex ‑ Head of Security of Zurab Zhvania: ‘They wanted to obtain testimony against Saakashvili, but I was against it’” (in Georgian), available at: http://saqinform.ge/news/25300/zurab+Jvanias+dacvis+yofili+ufrosi%3A+%E2%80%9Czurab+Jvanias+orientaciis+shesaxeb+didi+xania+vicodi+da+misgan+sheTavazebac+mqonda...+undodaT+mishasTvis+gadabraleba%2C+Tumca%2C+mis+winaaRmdeg+chveneba+ar+miveci...%E2%80%9C.html [accessed on 17/09/2017]; “Erekle Kodua was promised reinstatement in the system of the Ministry of Internal Affairs in exchange for testimony against Saakashvili” (in Georgian), available at: http://www.fmabkhazia.com/news/3803-saakashvilis-cinaaghmdeg-chvenebis-micemis-sanacvlod-erekle-koduas-sistemashi-aghdgenas-sthavazobdnen.html [accessed on 17/09/2017]; see also supra notes 55and 56.

[73] . Supra note 3, O. Kirchheimer, Political Justice , p. 3.

[74] . Supra note 3, J.N. Shklar, Legalism: Law, Morals, and Political Trials , p. 150.

[75] . See, for example, Navalnyy and Yashin v. Russia , no. 76204/11, § 74, 4 December 2014, and Frumkin v. Russia , no. 74568/12, § 141, ECHR 2016 (extracts).

[76] . See Gerhard van der Schyff, Limitation of Rights – A Study of the European Convention and the South African Bill of Rights, Van Der Schyff, Tilburg, 2005, p. 186, § 149.

[77] . See John Bell and Sir George Engle (eds), Cross Statutory Interpretation, 2nd edn., London, 1987, p 14; Roy Wilson and Brian Galpin (eds), Maxwell on the Interpretation of Statutes, 11th edn., London, 1962, pp. 3 et seq.). Also of pertinence are the following legal maxims of interpretation, which are based on common sense and leave no doubt as to the point in issue: “ interpretatio cessat in clari s” (interpretation stops when the text is clear); “ quoties in verbis nulla est ambiguitas ibi nulla expositio contra verba fienda est ” (when there is no ambiguity in the words, then no exposition contrary to the words is to be made – see Coke, On Littleton , 147 a); “ verbis standum ubi nulli ambiguitas ” (where there is no ambiguity, words stand as written – Traynor’s Maxims , 612); “ absoluta sententia expositione non indiget ” (an absolute sentence needs no exposition – see 2 Justinian, Institutes , 533, and Emer De Vattel, Law of Nations , Bk. 2, § 263: “it is not allowable to interpret what has no need of interpretation”); “ expressio facit cessare tacitum ” (to state a thing expressly ends the possibility that something inconsistent with it is implied – see Coke, On Littleton , 210 a, and F.A.R. Bennion, Bennion on Statutory Interpretation: A Code , 5th edn, London, 2008, section 389, pp. 1249-50).

[78] . See 7 Coke’s Reports , 5.

[79] . The word “teleological” derives its meaning from the Greek word “τέλος” ( telos ), which means purpose (see Lesley Brown (ed), The New Shorter Oxford English Dictionary on Historical Principles, vol. 2 (N-Z), Oxford, 1993, p. 3239 under entry: “teleologia”).

[80] . See Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98 and 3 Others, § 99, ECHR 2003-II.

[81] . See Aharon Barak, Purposive Interpretation in Law , translated from Hebrew by Sari Bashi, Princeton and Oxford, 2005, p. 256.

[82] . See The Sunday Times v. the United Kingdom (no. 1) , 26 April 1979, § 49, Series A no. 30.

[83] . See, on the significance of Article 18, Helen Keller and Corina Heri, “Selective Criminal Proceedings and Article 18 of the European Convention on Human Rights’ Untapped Potential to Protect Democracy”, 36 (1-6) Human Rights Law Journal (2016), pp. 1 et seq.

[84] . See J.G. Merrills and A.H. Robertson, Human Rights in Europe – A study of the European Convention on Human Rights, 4th edn., Manchester, 2001, p. 217.

[85] . Ibid ., loc. cit.

[86] . See 11, Coke’s Reports, 41. See the similar maxims: “ exceptio quoque regulam declarant ” - see Bacon’s Aphorisms , 17, meaning an exception also declares the rule. “ exceptio quae firmat legem, exponit legem ” - see 2 Bulstrode’s Reports 189, meaning that an exception which confirms the law expounds the law.

[87] . The reference here is to Kristin Henrard’s book entitled: Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination, the Hague/Boston/London, 2000, p. 140.

[88] . See Gerhard van der Schyff, Limitation of Rights – A Study of the European Convention and the South African Bill of Rights , cited above, loc. cit.

[89] . See Saadi v. the United Kingdom [GC], no. 13229/03, § 62, ECHR 2008.

[90] . See 8 Coke’s Reports 169.

[91] . See Aristotle, On Interpretation, IV.

[92] . See Hersch Lauterpacht, “Restrictive Interpretation and Effectiveness in the Interpretation of Treaties” in BYIL (1949), p. 48, at pp. 50-51, 69; and Alexander Orakhelashvili, The Interpretation of Acts and Rules in Public International Law , Oxford 2008, reprinted 2013, p. 414.

[93] . J.G. Merrills, The Development of International Law by the European Court of Human Rights, Manchester-New York, 2nd edn., 1993, p. 98.

[94] . Ibid ., pp. 119-20. See also p. 98.

[95] . See Robin C.A. White and Clare Ovey (eds), Jacobs, White, and Ovey, The European Convention on Human Rights, 5th edn., Oxford-New York, 2010, p. 73.

[96] . See further discussion on this in Merrills, cited above, pp. 113-19.

[97] . Cited above in the quotation from Gerhard van der Schyff’s book.

[98] . See the following relevant maxims of interpretation: ut res magis valeat, quam pereat – meaning that “it is better for a thing to have effect than to perish” (see, on this maxim, Sir William Blackstone, Commentaries on the Laws of England, 10th edn., London MDCCLXXXVII, § 3, p. 89), and the Latin maxim verba cum effectu suunt accipienda – see Bacon’s Maxims 3, meaning that words are to be construed as to their effect.

[99] . See Coke on Littleton , 223. b; see also the maxim nemo potest facere per obliguum quod non potest facere per directum, meaning that no one can do indirectly that which cannot be done directly – see 1 Eden’s Reports, 512.

[100] . See Coke, on Littleton , 223. b.

[101] . Numerous legal maxims, based on common sense and fairness, prohibit such behaviour, and the different ways in which they describe this rule are an indication of its importance (see, for example, “ commmodum ex injuria sua memo habere debet ” – see Jenkins’ Centuries or Reports , 161, meaning that no one should derive any benefit from his own wrong; “ injuria propria non cadet in beneficium facientis ” – see Branch’s Principia Legis et Equitatis , meaning that no one should be benefited by his own wrongdoing; “ Un ne doit prise advantage de son tort demesne ” – 2 Anderson’s Reports 38, 40, meaning that one ought not to take advantage of his own wrong; “ nemo ex suo delicto meliorem suam conditionem facere protest ” – see Digest, or Pandects of Justinian, 50, 17, 134, 1, meaning that no one can improve his condition by his own wrong.

[102] . See the relevant legal maxims “ nemo ex dolo suo proprio relevetur, aut auxilium capiat ” – Corpus Juris Civilis , meaning that no one is relieved or gains an advantage from his own fraud; “ nemo ex proprio dolo consequitur actionem ” – see Traynor’s maxims 366, meaning that no one can acquire a right of action through his own fraud; “ ex abusu non arguitur ad usum ” – see Broom’s Legal Maxims, 42, meaning that no argument can be drawn from the abuse of a thing against its use”.

[103] . See the legal maxim “ nihil cuiquam expedit quod per leges non licet ” – see Halkerston’s Maxims 103. See also the legal maxim frustra legis auxilim quaerit qui in legam committit – See Fleta, seu Commentarius Juris Agliae , 4, 2, 3; Osborn’s Concise Law Dictionary, 7th edn., London, 1983, p. 155, meaning vainly does he who offends against the law seek the help of the law.

[104] . See Aristotle, Metaphysics iv, 3, 1005 b, 24; iv, 6 1011 b, 13-20; On Interpretation, c 9.

[105] . See, for instance, the Latin maxim uno absurdo dato, infinita sequuuntur – Coke’ 1 Reports, 102, meaning one absurdity being allowed, an infinite number follow.

[106] . See omnium rerum quarum usus est, potest esse abusus, virtute solo excepta in Davies’ Reports 79.

[107] . In The St. James’ Evening Post case (1742) 2 Atkins 469, at p. 472.

[108] . See Lord Denning, The Due Process of Law, Oxford-New York, 1980, repr. 2008, preface p. v.

[109] . See Lord Denning, The 1980 Richard Dimbleby Lecture: Misuse of Power , which was broadcast on BBC 1 on Thursday 20 November 1980 and published by the British Broadcasting Corporation, Northampton, 1980.

[110] . Ibid., p. 5.

[111] . Ibid., p. 19.

[112] . Loukis Loucaides, a former judge of the Court, also rightly uses the term “check”, which denotes control in terms of the mechanism of Article 18 (“According to Article 18 ... the Court [has] the power to check the reasons behind a particular restrictive measure ...”) – See Loukis G. Loucaides, “Restrictions or Limitations on the Rights Guaranteed by the European Convention of Human Rights” The Finnish Yearbook of International Law, vol. IV (1993), 335, at p. 377.

[113] . See Council of Europe publication, The Conscience of Europe – 50 Years of the European Court of Human Rights , London, 2010.

[114] . See Aharon Barak, Purposive Interpretation in Law, op. cit., p. 297.

[115] . See, for example, Winterwerp v. the Netherlands , 24 October 1979, Series A no. 33, cited in paragraph 300 of the judgment, where the Court said that it had no reason to doubt the objectivity and soundness of the medical evidence on the basis of which the Dutch courts authorised the detention of the applicant as a person of unsound mind (ibid., § 42).

[116] . See Lesley Brown (ed), The New Shorter Oxford English Dictionary on Historical Principles, vol. 2 , op. cit., p. 2799, under the entry: “several”, which is defined as “2. More than two but not many; Law more than one.”

[117] . See Robin C.A. White and Clare Ovey (eds), Jacobs, White, and Ovey, op. cit . , p. 77.

[118] . See Statement of Ludovico Benvenuti (Italy) at the first session of the Consultative Assembly of the Council of Europe, Strasbourg, 8 September 1949, in the Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights , Volume 1I, 1975, p.136.

[119] . See Statement of Teitgen (France) at the second session of the Consultative Assembly of the Council of Europe, Strasbourg, 16 August 1950, in the Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights , Martinus Nijhoff, vol. V. 1979, p. 294.

[120] . Ibid ., p. 292 (text in English), p. 293 (text in French). The judgment in paragraph 154 refers to page 293 of vol. V of the Travaux Préparatoires .

[121] . This may be so, because the judgment in paragraph 154 refers to page 293 of vol. V of the Travaux Préparatoires .

[122] . See Statement of Mr P.-H. Teitgen at the first session of the Consultative Assembly of the Council of Europe, Strasbourg, 30 August 1949, in the Collected Edition of the “Travaux Préparatoires” of the European Convention on Human Rights , Martinus Nijhoff, vol. I, 1975, p.178.