TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): He no longer held a position of influence, did not present a flight risk, and his passport had been confiscated.
AP1 (Applicant): Had those risks ever been well-founded, which he disputed, they had in any event significantly diminished during the four months of his detention.
AP1 (Applicant): The applicant's request for release was orally rejected by the city court in a formalistic manner, as previously stated.
AP1 (Applicant): The court provided no reasons justifying its decision to extend his detention or explain why alternative measures were inappropriate.
AP1 (Applicant): Mr. Mirabishvili therefore submits
AP1 (Applicant): that when hearing his application for release in September 2013, the domestic authorities failed to examine whether reasons justifying his detention continued to exist in breach of Article 5.4.
AP1 (Applicant): Mr. President, this completes the applicant's submissibility
AP1 (Applicant): submissions and those on Article 5.
Guido Raimondi (JudgeP): Thank you very much, Mr. Sawyer.
Guido Raimondi (JudgeP): I call now Mr. Leach, please.
AP2 (Applicant): Mr. President, two features of this case we submit
AP2 (Applicant): are in themselves sufficient to justify a finding of a violation of Article 18, both the overwhelming evidence as to the targeting of Mr. Mirabishvili and the UNM
AP2 (Applicant): Party for political motives, and also the incident on 14th December 2013.
AP2 (Applicant): In applying Article 18, we asked the court to take account of its significance to the protection of democracy and its core aim.
AP2 (Applicant): In their concurring opinion in Timoshenko case, judges Jung, Wirtz, Nussburger, and Potocki suggested that in interpreting Article 18, the direct link between human rights protection and democracy must be taken into account.
AP2 (Applicant): If the human rights of politically active persons are restricted for the purpose of hindering or making impossible their participation in the political life of a country, democracy is in danger.
AP2 (Applicant): In seeking to protect democratic values, Article 18 is therefore fundamental to the convention.
AP2 (Applicant): As the Grand Chamber underscored in the United Communist Party of Turkey, democracy is the only political model contemplated by the convention and the only one compatible with it.
AP2 (Applicant): In UMAC and SADAC, the Grand Chamber emphasized the importance of political pluralism.
AP2 (Applicant): Expression of the opinion of the people is inconceivable without the assistance of a plurality of political parties representing the currents of opinion flowing through a country's population.
AP2 (Applicant): As for the core purpose of Article 18, judges Nikolai, Keller, and Dyedov recalled in the Navalny case that it was drafted as a defense against abusive limitations of convention rights and freedoms and thus to prevent the resurgence of undemocratic regimes in Europe.
AP2 (Applicant): Judge Keller has said that the drafters considered that state intervention with convention rights is not in the public interest where it comes about for the destruction of fundamental freedoms for reasons of state or to safeguard political tendencies against oppositional actors.
AP2 (Applicant): Article 18 does not have an autonomous role, as it can only be applied in conjunction with another substantive article of the convention.
AP2 (Applicant): But as the chamber reiterated in the present case, it may be violated even if there is no violation of the other article taken alone.
AP2 (Applicant): That principle was established more than 40 years ago in Cameroon, Netherlands.
AP2 (Applicant): And the point is acknowledged by the government in its request for referral to the grand chamber.
AP2 (Applicant): It's also well established in the court's case law on Article 18 and Article 5 that if there is more than one reason for the applicant's detention, if any one of those reasons does not comply with Article 5, then Article 18 will be violated, as was the case in Kaczynski.
AP2 (Applicant): Eight judges of this court have argued, including in separate opinions in Timoshenko and Cankutadze, that the court has imposed too high a standard of proof on applicants in Article 18 cases.
AP2 (Applicant): Judge Keller has argued that applicants are given the nigh impossible task of proving the authorities true motives for limiting their convention rights and freedoms.
AP2 (Applicant): We submit that the test should be flexible and realistic without placing too high a burden on the applicants.
AP2 (Applicant): And the court's case law has already moved away from a requirement on applicants to provide incontrovertible and direct proof to a much more realistic acknowledgment that proof of the authorities' improper reasons can be gleaned from a combination of relevant case-specific facts, and also taking account of the broader political context.
AP2 (Applicant): Furthermore, where an applicant puts forward a prima facie case of a violation of Article 18, the burden of proof should then shift to the government.
AP2 (Applicant): Mr. President, I turn now to the incident
AP2 (Applicant): on the 14th of December, 2013, when the applicant was removed from his prison cell in the early hours of Saturday morning and taken to meet the chief public prosecutor, Mr.
AP2 (Applicant): Patskaladze, and the head of the prison authority, Mr.
AP2 (Applicant): Darbyseli.
AP2 (Applicant): He was told that if he provided information about the death of the former prime minister, Zorab Zvania, and information about accounts allegedly held by former President Saakashvili, all the charges against him would be dropped.
AP2 (Applicant): He would be released and allowed to leave the country.
AP2 (Applicant): If he did not provide such information, his prison conditions would become unbearable.
AP2 (Applicant): He would never be released from prison while Irakli Garabashvili's government remained in power, and his political and other friends and relatives would also be put behind bars.
AP2 (Applicant): The chamber found the applicant's account of what happened on 14th December, 2013 to be particularly credible and convincing, as he was able to recall clearly and coherently the sequence of events, the time when those events had occurred, the names of the persons involved, the distinguishing details concerning his nighttime removal from the prison, and his talk with Mr. Patskaladze
AP2 (Applicant): and Mr. Darbyseli.
AP2 (Applicant): The court also noted that the applicant had informed the authorities at the very first opportunity, and the clearly observable reluctance by the prison authority to provide access to prison video images, and the opposition of the prime minister, minister of prisons, and the chief public prosecutor to calls for an independent investigation into the incident.
AP2 (Applicant): The chamber was highly critical of the government's failure to provide any meaningful explanation of the incident, and that not even the smallest piece of information was shared with the court about the ministry's internal inquiry.
AP2 (Applicant): Now, the essence of the government's position before the chamber was to deny, without any supporting material, that the incident ever took place.
AP2 (Applicant): In seeking referral to the grand chamber, the government has for the first time disclosed documents relating to the internal inquiry carried out back in December, 2013, January, 2014, more than two years and eight months after that inquiry took place.
AP2 (Applicant): No explanation has been provided as to why those documents could not have been disclosed to the chamber.
AP2 (Applicant): Mr. Mirabashvili stands by his detailed statement
AP2 (Applicant): made at the first opportunity at the court hearing on 17th December, 2013, three days after the incident, and subsequently and consistently reiterated by him.
AP2 (Applicant): The essence of what he said is confirmed in a statement by Ucha Nyanamashvili, the public defender of Georgia, who visited him on 19th December and then issued a public call for an investigation to be launched.
AP2 (Applicant): We say there are compelling reasons for this court to find the government's position to be fundamentally unreliable and lacking any credibility.
AP2 (Applicant): From the very outset, the government, at the very highest level, has sought to denounce Mr. Mirabashvili and deny his allegations out of hand.
AP2 (Applicant): On the very day that he made his statement at the court, Prime Minister Garibashvili said that the applicant had lied, should be assessed by psychiatrists, and that no investigation would be carried out into his allegations.
AP2 (Applicant): On the same day, the Chief Prosecutor's Office published a statement which described the applicant's allegations as absurd, ungrounded, and frivolous.
AP2 (Applicant): The following day, the Minister for Prisons described them as utterly false and said that no investigation would be carried out.
AP2 (Applicant): The 2013 internal inquiry and the 2016 investigation were carried out by two bodies, the Ministry of Prisons and the Chief Prosecutor's Office, which are obviously not independent from the matter being investigated, given that the head of the prison authority and the chief public prosecutor were directly implicated.
AP2 (Applicant): The prosecutor's investigation was only instigated after the European Court judgment was published in June 2016, and no explanation has ever been provided why an investigation was not initiated in December 2013.
AP2 (Applicant): The investigation was apparently closed on 11th February this year.
AP2 (Applicant): From the very beginning, Mr. Murabesvili
AP2 (Applicant): has sought disclosure of the video recordings taken by the cameras in his prison.
AP2 (Applicant): The government says that the video evidence from the prison cameras was automatically deleted after 24 hours.
AP2 (Applicant): However, in correspondence later in December 2013, senior ministry officials, including Simon Maciejice, the deputy director of the penitentiary department, discussed saving and disclosing video records for 13 to 14 December.
AP2 (Applicant): The minister of prisons himself made a statement on 18th December that the prison recordings could be made available if a criminal investigation were launched.
AP2 (Applicant): They clearly had no idea about any practice of the automatic deletion of video records after 24 hours.
AP2 (Applicant): At no point has the government referred to any domestic law regulation governing such a practice.
AP2 (Applicant): We have submitted a statement from a former deputy minister of prisons saying that recordings were stored and backed up on the ministry's servers for at least one month.
AP2 (Applicant): The public defender has described the alleged destruction of the video records as suspicious.
AP2 (Applicant): The government is in possession of video footage from cameras near to the prison and along the main roads leading to the prison's ministry's main office, but it has failed to disclose those tapes.
AP2 (Applicant): The government simply asserts that this evidence did not reveal any information helpful for the investigation, apparently on the basis of a series of brief formulaic statements made by officials from the ministry in December 2013, which were only disclosed in September 2016.
AP2 (Applicant): Mr. Mirabashvili challenges the credibility
AP2 (Applicant): of both the internal inquiry by the ministry and the prosecutor's investigation.
AP2 (Applicant): The statements taken from prison officers during the course of the internal inquiry are very brief and formulaic.
AP2 (Applicant): And remarkably, no statements were taken from either Mr. Patskaladze or Mr. Dabaseli.
AP2 (Applicant): And even though Mr. Mirabashvili said
AP2 (Applicant): that he thought he could identify the office where he was questioned, there was no attempt to take him to Mr. Dabaseli's office
AP2 (Applicant): to ascertain whether he could do so.
AP2 (Applicant): The statements taken from prison officers in 2016 all apparently support the government's position that Mr. Mirabashvili was not removed from his cell
AP2 (Applicant): on the 14th of December.
AP2 (Applicant): These officials were apparently able to recall their movements and actions in detail by the hour on a particular day more than 2 and 1 1 half years earlier.
AP2 (Applicant): There is no reference in their statements to their consulting diaries, email, or telephone records, or other contemporaneous records.
AP2 (Applicant): Mr. Patskaladze and Mr. Dabaseli
AP2 (Applicant): were eventually questioned in 2016.
AP2 (Applicant): Both say they were at work in their offices at the time when the applicant alleges he was removed from prison.
AP2 (Applicant): In other words, in the early hours of Saturday, 14th of December, 2013.
AP2 (Applicant): There was only minimal, vague, corroborative witness evidence and minimal documentary evidence.
AP2 (Applicant): The recent decision to close the investigation on 11th February this year states that Mr. Patskaladze was
AP2 (Applicant): logged on his computer between 1 and 1.25 that morning.
AP2 (Applicant): But Mr. Mirabashvili was taken out of his cell after 1.30,
AP2 (Applicant): probably at around 1.50.
AP2 (Applicant): So even if he was logged on until 1.25,
AP2 (Applicant): Mr. Patskaladze would have had ample time
AP2 (Applicant): to get from his office to Mr. Dabaseli's office, both of which
AP2 (Applicant): are situated next door to each other on Kogosali Street in the middle of Tbilisi, by the time Mr. Mirabashvili would have arrived there.
AP2 (Applicant): The prosecutor's office has not obtained mobile phone records for the two men who escorted Mr. Mirabashvili,
AP2 (Applicant): nor has it taken any steps to try to identify them, men who the applicant said he would be able to recognize.
AP2 (Applicant): In May 2014, the MP Irma Naderashvili published documents showing that various senior officials in the Ministry of Prisons had been paid very high bonuses, up to the equivalent of 18,000 euros, in December 2013.
AP2 (Applicant): She alleged that such payments were made to officials involved in the removal of the applicant from his cell in order to ensure their silence.
AP2 (Applicant): The Minister of Prisons later said that the bonuses were approved by Mr. Dabaseli, who
AP2 (Applicant): acknowledged that he did pay bonuses, as they were justified by the officials' hard work.
AP2 (Applicant): When Mr. Dabaseli was questioned by the prosecutor in 2016,
AP2 (Applicant): he was not asked at all about the payment of bonuses.
AP2 (Applicant): The MP's list of 40 officials in receipt of bonuses includes Mr. Dabaseli, the director of prison number nine,
AP2 (Applicant): Simon Maciejice, who has paid the highest sum, nearly 39,000 lari, and two other deputies of Mr. Dabaseli,
AP2 (Applicant): and one Gheorghe Gulbiani.
AP2 (Applicant): And he's Mr. Gulbiani, head of the special task force
AP2 (Applicant): within the prisons department, whom two witnesses say told them that he personally transferred Mr. Marabasvili.
AP2 (Applicant): The government's list of just 12 bonus payment recipients disclosed a month ago refers to neither Maciejice, nor Gulbiani, nor the other two deputies.
AP2 (Applicant): We say, therefore, that the court should accept Mr.
AP2 (Applicant): Marabasvili's testimony about the events of 14th December 2013 as being credible and consistent, and on the basis of which it should find a violation of Article 18 together with Article 5.1.
AP2 (Applicant): Mr. President, finally I turn to the second aspect
AP2 (Applicant): of the Article 18 complaint, that the totality of the evidence as to the targeting of Mr. Marabasvili
AP2 (Applicant): and his party, the UNM, for political purposes also justifies the finding of a violation of Article 18.
AP2 (Applicant): In its most recent Article 18 decisions, Ilgar Mamadov and Rasul Jafarov, the court has accepted that proof of improper reasons can follow from a combination of relevant case-specific facts.
AP2 (Applicant): In finding a violation of Article 18 in Jafarov, the court took explicit account not only of the general context of the increasingly restrictive domestic legislation, but also the numerous statements by high-ranking officials targeting NGOs and their leaders.
AP2 (Applicant): As the Parliamentary Assembly noted, by October 2014, almost the entire leadership of the UNM had been arrested or was under prosecution or investigation.
AP2 (Applicant): Criminal proceedings were brought against the former president, as well as former ministers of justice, defense, internal affairs, health, labor and social issues, education and science, finance and energy.
AP2 (Applicant): And a raft of senior officials have also been prosecuted, including the former mayor of Tbilisi, Gheorghi Yugolava.
AP2 (Applicant): The UNM has provided a list of 25 of its former ministers and officials who've been prosecuted, many of them in multiple sets of proceedings.
AP2 (Applicant): The Parliamentary Assembly has recorded serious concern that arrests and prosecutions were politically motivated and amounted to selective justice.
AP2 (Applicant): The criminal proceedings have also been met with an unprecedented level of comment by other governments and international organizations, including the president of the European Commission, in Parliament, and the Commissioner for Human Rights, expressing concerns to their political basis.
AP2 (Applicant): National courts in France, UK, and Greece have refused to accede to Georgian requests to extradite former UNM ministers, in essence because the proceedings were considered to be politically motivated.
AP2 (Applicant): In 2015, Interpol rescinded a red notice relating to former UNM minister Davit Kezarashvili and refused to issue a notice in respect of Mr. Sakashvili
AP2 (Applicant): because of the political nature of the proceedings.
AP2 (Applicant): The most senior representatives of the Georgian government have made public statements calling for the elimination of the UNM.
AP2 (Applicant): The UNM politician Gheorghe Bakiria has provided a statement about his meeting with Mr.
AP2 (Applicant): Ivanishvili in October 2012.
AP2 (Applicant): Mr. Ivanishvili told him that key members of the UNM
AP2 (Applicant): leadership would face prosecution unless they refrain from challenging the new government.
AP2 (Applicant): He said to Mr. Bakiria, quote, the more problems
AP2 (Applicant): you will create, the more individuals from your team will go to jail, end of quote, referring to several individuals by name, including Mr. Maramashvili.
AP2 (Applicant): In September 2015, the Constitutional Court issued two public statements in the light of events relating to Mr. Oogalava's case.
AP2 (Applicant): The court referred to demonstrations held outside the House of the Court's judges and to deliberate attempts to exert pressure on the Constitutional Court and threaten its members.
AP2 (Applicant): Having monitored the trial in 14 of the cases brought against former government ministers and officials, in 2014, the OSCE produced a report identifying numerous shortcomings as to their fairness.
AP2 (Applicant): And the Parliamentary Assembly has noted that the UNM has reported that several thousand of its activists and supporters have been regularly interrogated and intimidated by various investigative agencies, and a number of opposition figures, including MPs, have been violently attacked.
AP2 (Applicant): Mr. President, we submit that the totality of this evidence,
AP2 (Applicant): which I've just merely summarized today, establishes that the aim of the authorities was to exclude Mr. Maramashvili from being politically active,
AP2 (Applicant): and therefore the criminal proceedings against him were driven by improper political reasons.
AP2 (Applicant): The authorities in Georgia sought to neutralize him as a political opponent and remove him from the political arena in violation of Article 18, together with Article 5.
AP2 (Applicant): And last week, this court unprecedentedly applied interim measures to order the suspension of the Georgian Supreme Court decision relating to the ownership of the Rustavi 2 TV company, a further reflection, we say, of the increasing restrictions on democratic pluralism in Georgia.
AP2 (Applicant): Mr. President, that completes the submissions
AP2 (Applicant): on behalf of the applicant.
Guido Raimondi (JudgeP): Thank you very much, Mr. Leach. Now I call Mr. Baramidze.
GR1 (Government): Mr. President and the honorable members of the court,
GR1 (Government): however eloquently my respected opponents may describe the applicant as an innocent man who fell victim to selective justice and persecution by the government of its political opponents, the facts keep telling us quite a different story.
GR1 (Government): This case you are dealing with today is about a person who first came up to the attention of this court back in 2007, when this court started considering the application of the mother and the father of a truly innocent young man who had been kidnapped, taken to the cemetery, brutally tortured, and finally killed by police officers, who implemented unlawful orders of immediate subordinates of the present applicant, then the Minister of Interior of Georgia, and also his wife, who was somehow involved in this gruesome case.
GR1 (Government): I'm confident you understood that I am referring to the Enokiza and Gherguliani case.
GR1 (Government): The applicant was eventually convicted for the covering up of his closest allies.
GR1 (Government): We submit the relevant photographs to the registry and kindly request the court to find them admissible.
GR1 (Government): My honorable opponents filed with this court around three dozens of decisions of prosecutors or judges in totally unrelated criminal cases of other former top-level officials of the former government.
GR1 (Government): And in their submissions, they made numerous allusions to so-called political motivation of the present government in the chase for their political opponents.
GR1 (Government): But of course, they never presented to the court 20,000 to 30,000 complaints of ordinary citizens who personally or whose close relatives were killed, tortured, arbitrarily arrested, convicted, or deprived of their property during the years when the applicant was the country's interior minister, and later the prime minister.
GR1 (Government): Of course, my honorable opponents never quoted the statements by the UN special rapporteur Mendez, who found that torture and other forms of ill treatment was a systemic problem in Georgian prisons when the applicant was one of the key leaders of the country.
GR1 (Government): Of course, they never referred to the numerous calls on the Georgian government by the Parliamentary Assembly or the Council of Europe, the former and the present Council of Europe Commissioners for Human Rights, Mr. Hammerberg
GR1 (Government): and Mr. Muzhnev to address the legitimate claims
GR1 (Government): of the victims of the former regime.
GR1 (Government): That our opponents stay silent about all those problems does not mean that those problems do not exist.
GR1 (Government): But I think we need to stop here with those useless and empty accusations of the present government.
GR1 (Government): It's time to talk about the fact and the law of the present case, the applicant's case.
GR1 (Government): I would like to communicate to you the three key points.
GR1 (Government): A, that the applicant arrest and pretrial detention was fully compatible with the requirements of Article 5.1
GR1 (Government): of the Convention.
GR1 (Government): B, that the applicant's pretrial detention was based on the relevant and sufficient reasons under Article 5.3, and the domestic courts
GR1 (Government): duly examined the continued existence of reasons for his deprivation of liberty under Article 5.4
GR1 (Government): And C, that bringing the applicant to the competent legal authority on a reasonable suspicion of having committed criminal offenses was the sole and only purpose of the applicant's arrest and pretrial detention.