European Court of Human Rights. Photo(c): Winfried Rothermel/DPA/PA Images. All rights reserved. These are unsettling times for the human rights system which covers the whole European continent — 47 states from Ireland to Russia, from Norway to Turkey. Hostile politicians and commentators are wont to rail against judges sitting on the Council of Europe’s European Court of Human Rights, arguing that they unjustifiably extend their purview into sovereign, domestic affairs. The Court’s position as the legitimate apex of human rights adjudication is now further under threat by the rise of European populism and the far right, as well as the fallout from Brexit. The deluge of cases from Turkey after mass arrests following the failed coup in 2016, the ongoing conflict in eastern Ukraine, and Russia’s unprecedented 2015 law that allows its Constitutional Court to pick and choose which European Court judgments to implement, have put further strain on the Court.
Human rights are under serious challenge too in the European Union. Given, the executive’s exertion of control of the Constitutional Tribunal at the behest of the ruling Law and Justice Party in Poland, and the machinations of Viktor Orbán’s illiberal regime in Hungary (characterised as “rule of law backsliding” and creeping autocracy within the EU), as we scan the European horizon these days is it right to ask if the very principle of the rule of law is under threat?
Last week’s judgment from the Strasbourg Court’s Grand Chamber concerning the circumstances of the criminal prosecution of Ivane Merabishvili, the former Minister of Interior and Prime Minister of Georgia, represents a significant moment and, indeed, test for democracy and the rule of law in Georgia.
Merabishvili was a key figure within the United National Movement (UNM), the party led by Mikheil Saakashvili, which won the 2004 presidential and parliamentary elections, following the “Rose Revolution” the previous year. However, after the Georgian Dream Coalition won the 2012 parliamentary elections, a raft of former UNM Ministers and officials were prosecuted. In 2012 and 2013, a series of criminal investigations were opened against Merabishvili concerning his alleged use of a fake passport, for alleged embezzlement and abuse of authority concerning a state programme for job seekers and relating to a private house. This led to his arrest in May 2013 and his pre-trial detention.
How do you prove that there was an ulterior purpose behind the instigation of criminal proceedings?
Merabishvili sought to challenge the legality of his detention in Strasbourg, but more fundamentally, he argued, in effect that he was the subject of political prosecution, by raising one of the less well-known provisions of the European Convention on Human Rights – Article 18, which prevents governments and state bodies from restricting human rights for hidden, ulterior purposes — in other words, from acting in bad faith. It is a provision which has frequently been raised by petitioners to the European Court, but the Court has only found it to have been breached six times before — in cases against Ukraine, Russia, Moldova and Azerbaijan.
For example, the former Prime Minister of Ukraine, Yulia Tymoshenko, and a former Ukrainian Minister of Justice, Yuriy Lutsenko, both successfully complained to Strasbourg about criminal proceedings brought against them. Soon after Viktor Yanukovych’s victory in the 2010 Presidential elections, both were accused of abuse of power and prosecuted in circumstances considered by many observers to be politically motivated. Prominent business figures prosecuted in Russia and Moldova have also shown similar dysfunctionality in their cases, and last year the Azerbaijani human rights activist Rasul Jafarov was able to satisfy the European Court that the actual purpose of his criminal prosecution was to silence and punish him for his human rights activities.
These cases, however, create a significant practical and legal difficulty — how do you prove that there was an ulterior purpose behind the instigation of criminal proceedings? The former majority shareholder in the holding company which owned the NTV television channel in Russia, Vladimir Gusinskiy, was able to point to a document signed by the Russian Minister for Press and Mass Communications which established that the authorities’ intention in prosecuting him in 2000-2001 had actually been to wrestle his media shares away from him, in favour of Gazprom. This led the Court to underline that criminal proceedings cannot be used as part of commercial bargaining strategies. However, in none of the other cases, has a similar “smoking gun” been uncovered – which is of course hardly surprising. In the Jafarov case, and the other Azerbaijani judgment concerning the opposition politician and blogger, Ilgar Mammadov, the Court was prepared to base its bad faith finding on wider contextual evidence of ulterior purpose, no doubt reflecting the particularly atrocious human rights record of the Aliyev regime.
I Ivane Merabishvili, Georgian Interior Minister (2004-2012) and Prime Minister (2012). n Merabishvili’s case, the Court acknowledged the backdrop of bitter political antagonism between the UNM and Georgian Dream, but it did not accept his claim that his pre-trial detention was chiefly aimed at removing him from the political scene.
Instead, the finding of a violation of Article 18 hinged on an incident in December 2013 when he claimed to have been taken from his Tbilisi prison cell in the middle of the night, and driven to an unknown destination where he was questioned by the Chief Public Prosecutor and the head of the Georgian prison service. They offered Merabishvili a “deal”: to provide financial information about former President Saakashvili, and information about the death of former Prime Minister Zurab Zhvania, in exchange for a guarantee that he would be released and allowed to leave the country with his family. He refused to comply and was threatened with worsening prison conditions.
The government flatly denied that such an incident had ever happened, but having scrutinised the available evidence, the Court found that Merabishvili’s covert removal from his prison cell was proven. It noted that Merabishvili’s account of what happened was detailed, specific and consistent. By contrast, it was critical of how the authorities had investigated his complaint about the incident: the significant delays; the lack of independence; the failure to verify evidence or to obtain certain evidence (such as mobile phone records); and that the prison’s CCTV film had apparently been deleted within 24 hours.
The Court therefore concluded that, although the investigation of offences had initially been based on reasonable suspicion, as a result of this incident, the predominant purpose of Merabishvili’s detention was found to have changed.
This is the first ever such finding by the European Court concerning Georgia — and the authorities’ response to it represents an important test for its democratic credentials
This is the first ever such finding by the European Court concerning Georgia — and the authorities’ response to it represents an important test for its democratic credentials. Could the ruling assist in alleviating the bitter fractiousness which has marred domestic politics after the country’s first peaceful transition of power since the break-up of the Soviet Union in the 2012 elections? The judgment does not directly address the question which is now being hotly debated in Georgia — whether Merabishvili should be released from custody. This reflects the principle of subsidiarity: that the European Court’s decisions will not necessarily stipulate particular steps to be taken, but will allow the national authorities to decide how to comply with a judgment. A finding of a violation of Article 18 of the European Convention (the misuse of power) is very rare. It needs to be taken extremely seriously here, given that it relates to the criminal prosecution of a leading political opposition figure.
Arguably, the appropriate response would be to instigate a rigorous, independent investigation into Merabishvili’s covert removal, and if necessary, to re-open the proceedings against him, a process which might justify the quashing of his conviction. There are relevant precedents. In Ukraine, Yuriy Lutsenko’s criminal conviction was quashed by a domestic court, as a result of his Strasbourg ruling, and in September this year, the Council of Europe’s Committee of Ministers called on the Azerbaijani authorities to reopen the proceedings which led to Rasul Jafarov’s 2015 criminal conviction.
However, the initial responses from the Georgian authorities seeking to downplay the decision do not augur well. Georgia’s Minister of Justice Tea Tsulukiani has been quoted as saying that “the state considers the case to have been decided in its favour”. Georgia’s Minister of Refugee Affairs, Forced Migration and Settlement Sozar Kubary responded: “It is pitiful that we did not manage to convince the judges that Merabishvili’s removal from the prison cell had never happened. But what can we do?”
There is little doubt that the international community, including institutions such as the IMF (which has noted the “political tensions” and appears to rely on the government’s commitment to strengthening the rule of law), will continue to watch this case, and its aftermath, carefully, to see whether the Georgian government’s response is commensurate with the rule of law and a stable, functioning democracy. It will be important too within the context of the EU’s Eastern Partnership initiative, and for the prospects of eventual EU accession. Only last month, the members of that initiative (including Georgia) recommitted themselves to strengthening democracy, rule of law, human rights and fundamental freedoms.
More broadly, the Grand Chamber decision in the Merabishvili case sets an important precedent for the whole of Europe, as it revises its case-law to clarify that there will be less of an onus on individuals claiming to be the victims of similar “bad faith” cases in future. No longer will the Strasbourg Court require “incontrovertible and direct proof”. Instead it will apply a more flexible, contextual approach. This is a welcome development which will assist in exposing the misuse of power. As three judges (including the Georgian and Ukrainian judges) argued in their separate (concurring) opinion:
It is paramount for the Court not to hesitate to consider highly sensitive political contexts. Doing otherwise will endanger democracy and could even be seen as a possible endorsement of the existence and acceptance of political persecution.