MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1501/H46-13

13 June 2024

1501st meeting, 11-13 June 2024 (DH) Human rights   H46-13 Merabishvili v. Georgia (Application No. 72508/13) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)425, DH-DD(2022)1431, CM/Del/Dec(2023)1459/H46-9

 

Application	Case	Judgment of	Final on	Indicator for the classification
72508/13	MERABISHVILI	28/11/2017	Grand Chamber	Complex problem

·  Cooperation project: 3431 – Strengthening Independence and Professionalism of Justice in Georgia ·  Cooperation project: 3758 – Reinforcing National Execution of the European Court's judgments by Georgia

Case description

The case concerns violations suffered by the applicant, a former Prime Minister and Minister of the Interior of Georgia, during his pre-trial detention in the context of criminal proceedings instituted in December 2012 and January 2013 for alleged embezzlement and abuse of official authority.

The applicant was arrested and placed in pre-trial detention on 21 May 2013, where he remained until he was convicted at first instance on 17 February 2014 and sentenced to five years’ imprisonment. The European Court found that, while the Kutaisi City Court gave relevant and sufficient reasons when the applicant was first placed in pre-trial detention, it did not give sufficient reasons for his continued detention when he applied for release on 25 September and 7 October 2013 (violation of Article 5 § 3).

 

The Court also found that the predominant purpose of the applicant’s pre-trial detention changed over time: while in the beginning it was for the legitimate purpose of the investigation of offences based on a reasonable suspicion, the predominant purpose later became to obtain information about the bank accounts of the former President, Mr Saakashvili, and the death in 2005 of the then Prime Minister, Mr Zhvania, as shown by an incident on 14 December 2013 (violation of Article 18 taken in conjunction with Article 5 § 1). In this connection the Court found it proven that at around 1.30 a.m. on 14 December 2013 the applicant was covertly removed from his cell and driven to what he believed was the Penitentiary Department building in Tbilisi, where he was questioned by the Chief Public Prosecutor and another man about Mr Zhvania’s death and Mr Saakashvili’s bank accounts. The applicant claimed to have been told by the Chief Public Prosecutor that if he provided information, he would be allowed to leave Georgia but that if he did not, his detention conditions would worsen and he would not be released until there was a change of government.

The Court further found that the initial investigation into this incident was marred by a series of omissions which were not corrected by the second investigation carried out by the Chief Public Prosecutor’s Office between June 2016 and February 2017.

Status of execution

The Committee last examined this case during its 1459^thmeeting in March 2023.

Individual measures

In their first action plan (DH-DD(2018)602), the authorities indicated their readiness, as the main individual measure, to carry out a new thorough and effective investigation, under the supervision of the Committee of Ministers, to address the deficiencies found by the Court and to take full account of the scope of its findings.

The investigation into the applicant’s covert removal was thus reopened on 12 July 2018 by the Prosecutor General’s Office (GPO). The applicant has not been granted victim status, but his representatives and the Public Defender’s Office (PDO) were given access to the case file.

The Committee has been following the renewed investigation based on the information submitted by the authorities, the applicant’s representatives and the PDO and has expressed some serious concerns about its effectiveness and independence.[1] In the light of these concerns, in 2022 the authorities engaged two international experts to study the case material and prepare recommendations for the investigative body. The authorities indicated that the experts would prepare a report which would be provided to the applicant, his lawyers and the PDO and if the experts agreed, it could also be made public. In 2022 the experts came to Georgia twice. They conducted a full assessment of the criminal case and provided legal advice to the investigator and prosecutor.

In its last decision of March 2023, the Committee underlined that that the investigation must be capable of forming a coherent evidential and factual basis leading to the identification and punishment of those responsible for the violation of the Convention and reminded the authorities of their obligation to conduct all the necessary investigative actions in a thorough, diligent and impartial manner. The Committee also noted the intensification of the investigative actions in July-December 2022 and again urged the authorities to ensure the completion of the investigation. Furthermore, the Committee noted the additional information about the selection and role of the international experts chosen by the authorities for involvement in the investigation. The Committee stressed the importance of providing continued access to the case material, including the experts’ recommendations, to the applicant, his representatives and the PDO and informing the public regularly on the progress.

In the updated action plan of 15 April 2024 (DH-DD(2024)425), the authorities listed the investigative actions taken in December 2022-February 2023 and July-August 2023. Notably, the investigative authorities received results of the engineering examination, requested information from different state agencies concerning the purchase of surveillance systems, data on surveillance records and access routes. Some of the requested information was not available. In July 2023 the applicant was questioned and was given the opportunity to participate in the photo identification. He refused to do so, claiming that ten years had passed since the events and it would be difficult for him to identify specific individuals. In August 2023 the journalist who took a newspaper interview from L.M. was questioned and the relevant audio material presented by him was examined. The authorities indicated that the international experts would present their summary report in 2024, which would then be analysed by the investigative body to discuss the next steps for the completion of the investigation. The applicant and the PDO would have an opportunity to immediately and fully familiarize themselves with the report.

General measures

a)     Reforms for ensuring the independence of the prosecution service

During the first examination of this case in 2018 the Committee noted with interest, considering the gravity of the Court’s findings under Article 18, the ongoing reform of the prosecution service and the constitutional amendments intended to strengthen its independence.[2]

Since 2020, in the light of the same considerations and bearing in mind also the concerns related to the effectiveness of the renewed investigation, the Committee has been calling upon the authorities to pursue legislative reform to strengthen the external independence of the prosecutor’s office and internal independence of individual prosecutors.

As recommended by the Venice Commission, these measures included, inter alia amending the rules governing the Prosecutor General’s appointment by introducing a qualified majority vote,[3] revising the composition and powers of the Prosecutorial Council and providing specific guarantees for the independence of individual prosecutors.[4]

In 2021 the authorities informed the Committee about the initiation of the draft constitutional amendments changing the procedures for the appointment of the Prosecutor General. However, these amendments were withdrawn.[5] In December 2022 the authorities reported the adoption of the draft constitutional amendments in the first reading.[6]

They also reported that improvement of the framework on the prosecutorial career and discipline was among the objectives of the PGO’s strategy for 2022-2027, that a special working group had examined the system of prosecutorial instructions and had established that important guarantees were already in place. However, work was being continued for identifying any possible additional safeguards.

b)     Investigation of any future case related to the Article 18 violation

Since 2020 the Committee has emphasised the need to broaden the investigative remit of the State Inspectorate’s Service to encompass cases in which the European Court found a violation of Article 18.

c)     Other measures

One of the problems identified in this case was the destruction after 24 hours of key video footage in the prison establishments on the night of the covert removal. In the light of this factor, in 2019 the Committee welcomed the decree of the Minister of Justice on extending the five-day time-limit for retention of surveillance videos to 30 days in all prison establishments.

In its last decision of March 2023, the Committee noted with interest the adoption of the draft constitutional amendments concerning the rules governing the appointment of the Prosecutor General in the first reading and called upon the authorities to accomplish the reform in a timely manner. The Committee also noted that the strategy of the Prosecutor’s Office for 2022-2027 envisaged strengthening prosecutorial independence as one of its objectives. Recalling its previous indications concerning the revision of the composition and powers of the Prosecutorial Council and provision of specific guarantees for the individual independence of prosecutors as recommended by the Venice Commission, the Committee repeatedly encouraged the authorities to use the Council of Europe expertise in this area. The Committee also noted with satisfaction the recent legislative changes enabling the Special Investigation Service to investigate any future case in which the European Court found a violation of Article 18 of the Convention.[7]

In their action plan of 15 April 2024 (DH-DD(2024)425), the authorities reiterated that the constitutional amendments changing the rules of the appointment of the Prosecutor General were adopted by the Parliament in the first reading in October 2022. They also recalled the measures taken in the context of the prosecution reform in 2018-2022, including the separation of the prosecution service from the executive branch, the adoption of principles governing the distribution of cases among prosecutors, the improvement of the disciplinary framework and procedures for the recruitment and promotion of prosecutors.

The authorities additionally reported the following measures adopted in 2022-2023:

·         Legislative amendments adopted to increase the role of the prosecutorial self-governance in the recruitment of prosecutors. Notably, the interns for the prosecutor’s office will be selected by the prosecutorial collegial body the Career Management, Ethics, and Incentives Council.

·         A guideline issued defining rules and procedures for using discretionary powers by prosecutors.

·         The asset declaration regime extended to prosecutors, who were not previously subject to it. In March 2024, GRECO concluded that Georgia fully implemented its Fourth Evaluation round Recommendation xiv concerning widening the scope of application of the asset declaration regime. 

The authorities also indicated that in December 2023, the European Council granted the status of candidate country to Georgia in the light of the progress achieved in the implementation of the European Commission’s 12 recommendations.[8]

One of those concerned the adoption of legislation for Georgian courts to proactively take into account the European Court’s judgments. To this end, along with the amendments to the procedural legislation encouraging domestic courts to use the Court’s case law, the amendments were introduced to the Law on the Prosecutor’s Office and the knowledge of this case law was made a mandatory component of qualification exams. In June 2023 this recommendation was assessed as implemented by the EU.

In its most recent Rule 9 submission of 2 May 2024 (DH-DD(2024)562), the PDO expressed concern that the comprehensive reform of the Prosecutor’s Office has not been carried out. Notably, the crucial challenges related to the rules on the appointment of the PG, the composition of the Prosecutorial Council and excessive powers of the Prosecutor General remain unresolved. The PDO further reported about the backsliding on the previous measures taken by the authorities concerning the retention of surveillance videos in prison establishments. In October 2023 the time-limit of 30 days for the storage of such surveillance videos was reduced to 10 days, which the PDO believes could hinder effective detection of and investigation into the breaches of the rights of the persons in custody.  

Analysis of the Secretariat

Individual measures

It is a matter of serious concern that, more than ten years after the events in this case occurred and almost six years from the renewal of the investigation, no tangible progress has been demonstrated in producing any findings nor shedding light on the key questions the investigation should answer. In particular, not all the shortcomings, including the ones revealed by the Court, appear to have been addressed and plausible explanations are still missing in respect to the questions raised and inconsistencies revealed (see the H/Exec(2021)6-rev for details).[9] As confirmed by the recent information submitted by the authorities, the passage of time further complicates implementation of some investigative actions and thus obtaining the evidence.

These concerns are amplified by the fact that the investigation is closely linked to the general measures. Notably, an effective investigation would enable the authorities to establish the exact circumstances of the violation, with a view to drawing conclusions from it and putting in place safeguards, as part of general measures, to prevent its recurrence, as relevant.

The Committee may therefore wish to strongly urge the authorities to ensure the swift completion of the investigation in full compliance with the Convention standards. They should explain in a clear and consolidated manner which investigative actions were taken, which obstacles the authorities faced and which means they deployed to overcome them, with a view to remedying the shortcomings found by the Court and addressing the calls to take action by the Committee.

General measures

It should be recalled again that in the cases raising the problem of a violation of Article 18 taken in conjunction with Article 5, it is the Committee’s practice to call for reinforced guarantees to protect the prosecuting authorities and the judiciary from political pressure.

In the present case, while the 2017-2018 constitutional reform was noted with interest by the Committee, it has underlined on numerous occasions that the Georgian authorities are expected to take additional measures to strengthen the external independence of the prosecutor’s office and the internal independence of individual prosecutors, by pursuing legislative reforms, as recommended by the Venice Commission when assessing the constitutional changes and the implementing legislation. .

These indications mainly concerned amendments to the rules governing appointment of the Prosecutor General, notably by introducing an appointment procedure with a qualified majority of the Parliament.

Although over the last three years the authorities have reported to the Committee about having initiated the legislative process twice to introduce the required changes, it is a matter of serious concern that no progress has been made in the accomplishment of this long-awaited reform and that the authorities have not moved forward since the adoption of the relevant constitutional amendments in the first reading in October 2022.

As regards the other elements of the reform, the reported measures concerning the change in the role of the Career Management, Ethics, and Incentives Council in the selection of interns and the adoption of the guidelines on prosecutorial discretion do not address the issues at the core of the Venice Commission’s recommendations, which were mainly aimed at aligning the legislation with the new model of an independent prosecution service, opted for by the Constitutional reform of 2017-2018.[10] These recommendations include revising the composition of the Prosecutorial Council (enhanced representation from the civil society) and its powers (stronger role in the careers of prosecutors, among others by having the Career Management, Ethics, and Incentives Council under its subordination), as well as putting in place specific guarantees in respect of prosecutorial instructions (obligation of superior prosecutors to provide instructions in written form, duty of the subordinated prosecutor to draw attention to the illegality of an instruction / express dissenting opinions and request a reassignment of the case, mechanisms for reviewing the legality of instructions by an independent body).

Hence, the authorities should be strongly urged to rapidly proceed with the adoption of the Constitutional amendments governing the rule of the appointment of the Prosecutor General and with the review to the current legislative and regulatory framework for further enhancing the independence and autonomy of prosecutors, as recommended by the Venice Commission. Furthermore, the authorities should be called upon to ensure close engagement with all relevant Council of Europe entities in this process to benefit from their expertise and fully align the changes made with the Council of Europe standards.

It may also be recalled that addressing the shortcomings in the nomination of the Prosecutor General was among the 12 priorities set out by the European Commission in 2022 for Georgia to be granted candidate status.[11] In its report of November 2023[12] on the fulfilment of these priorities, the European Commission underlined that the adoption of the constitutional amendments on the PG nomination procedure remained outstanding, along with the alignment of the law on the Prosecutor’s Office with European standards. Thus, a comprehensive reform of the Prosecutor’s Office, fully implementing the Venice Commission’s recommendations, remains among the nine priorities Georgia has to fulfil.[13]

Finally, it is regrettable that the time-limit for the storage of the surveillance data in prison establishments was reduced. The Committee may wish to request clarifications from the authorities in this respect.

Financing assured: YES