Appeal of Human Rights Center regarding the arrest of Nika Melia

Human Rights Center (HRC) reacts to the fact of the law enforcers and the riot police entering the office of United National Movement and arresting Nika Melia, the leader of United National Movement today, at 7:30 am.   

As can be seen from the footage spread by the media, the building was penetrated using special equipments. Further, as reported by various media outlets, in several rooms of the party's central office pepper spray was used.  The above issue is especially problematic when there was no violence from the people gathered in the office of United National Movement and they supported Nikanor Melia in a peaceful manner. 

The European Court of Human Rights has found the use of pepper spray in the case Tali v Estonia to be inhuman and degrading treatment, in violation of the European Convention on Human Rights (Article 3). According to the European Court, pepper spray should never be used indoors against persons who can be controlled. The use of pepper spray may be justified only for the purpose of avoiding self-harm or when there is a serious threat to other persons, or to the security of the prison facility.

As it is known to the public, Nikanor Melia was in the central office of the party National Movement together with the representatives of various political parties, citizens and civil activists, after against the chairman of the same party, Nika Melia, a measure of restraint was used by Tbilisi City Court on February 21, 2021. The bail was commuted to custody, which was deemed all by the accused, the opposition parties and the civil society sector as unjustified and politically motivated in parallel with the numerous questions surrounding the case and the unsubstantiatedness of the accusations.

According to the assessments by HRC, the use of custody against the leader of the main opposition party and his arrest by police force, amid the severe political and economic crisis created after the October 31, 2020 Parliamentary Elections, contributes to the aggravation of the situation and crisis in the country. Further, it is unfortunate that Georgian authorities did not wait for Tbilisi Court of Appeals to hear the case of Nika Melia and did not show the will to ease the difficult political situation in the country and conduct the political process in a peaceful environment.

We would like to remind you that on June 25, 2019, the Prosecutor's Office of Georgia charged Nikanor Melia, member to the Parliament of Georgia, Chairman of the Political Council of United National Movement, with leading and participating in a group violence in front of the Parliament on June 20-21, 2019. By ruling from July 2, 2019, Tbilisi Court of Appeals ordered  the Prosecutor's Office to carry out electronic monitoring over the movement of Nika Melia through attaching a tether on his arm. 

When making a speech, Nikanor Melia an MP candidate in 2020 Parliamentary Elections, removed the tether from his arm, threw it away and stated that he was no longer going to wear it.

On November 3, 2020, the Office of Prosecutor General of Georgia filed a motion with the court to apply more sever measure of restraint against Nikanor Melia because he had removed the tether and thus had violated the terms of the measure of restraint used against him. In particular, the General Prosecutor's Office of Georgia requested to remand Nikanor Melia in custody as a measure of restraint, which was later changed, and the General Prosecutor's Office of Georgia requested to remand Nikanor Melia on bail of GEL 100 000 instead of previous GEL 30 000 as a measure of restraint.  

Tbilisi City Court assessed the removal of the tether as a violation of the terms of the measure of restraint and increased the bail of Nikanor Melia to GEL 70 000 with the deadline for payment of December 23, 2020.

Nikanor Melia, did not pay the bail by December 23, 2020 and categorically refused to pay it further. The Prosecutor's Office of Georgia did not respond to the mentioned fact even after a month and a half and the case was processed only on February 5, 2021. On February 16, 2021, the Parliament of Georgia lifted the immunity of Nikanor Melia again through abstract and unsubstantiated reasoning and through an opaque process.  The decision was supported by 88 MPs against 2 MPs. On February 21, 2021, Tbilisi City Court Judge Nino Chakhnashvili replaced remand on bail with remand in custody as a measure of restraint. 

The case law of the European Court of Human Rights provides that a breach of bail alone cannot automatically become the basis for a more severe measure of restraint i.e. the use of custody without assessing the grounds and risks of the detention of the accused. The threats should be assessed not abstractly, but in particular terms, based on the evidence. The European Court of Human Rights in the case of Boicenko v. Moldova held that the use of pre-trial detention in abstracto, based on abstract threats and intuitions, is inadmissible. The measure of restraint should be used only under strictly defined grounds, while the detention as an extreme measure should be used only if duly substantiated and necessary.

 

In the case of Nikanor Melia, the following threats should have been assessed by the court based on specific evidence: 1. Risk of absconding the justice, 2. Risk of committing a new offense, 3. Risk of interfering with the administration of justice. These risks must be properly substantiated. Consequently, the court's reasoning when using custody as a measure of restraint should not be of a general, abstract and stereotypical nature.

The problem of abstraction and unfoundedness existed even when, by Resolution N5544 of December 12, 2019, the powers of MP was terminated to Nikanor Melia. Even then, the demand of the Prosecutor’s Office to remand Nikanor Mela in custody was  of ‘one size fits all’ approach and it did not sufficiently substantiate why the strictest measure of restraint should had been used against him i.e. pretrial detention. Moreover, there was no substantiation in the Resolution of the Parliament on restricting the powers of MP to Nikanor Melia, and later there was no such substantiation in the ruling of Tbilisi City Court to prematurely terminate the powers of MP. The Office of the Prosecutor General had brought number of cases from the European Court of Human Rights (ECtHR) the majority of which did not correspond to the case of Nikanor Melia neither in terms of facts and nor in terms of standard of justification.

Moreover, when restricting the powers of MP, Tbilisi City Court did not take into account number of justified assessments made by the Friend of the Court of the Public Defender of Georgia; as a result, the rights of Nikanor Melia as an MP were restricted disproportionally. In hearing the case,Tbilisi City Court did not consider in general context the requirements under the Constitution of Georgia, the Code of Criminal Procedure and the Rules of Procedure of the Parliament. Moreover, the court did not take into account the specific signs characteristic to the immunity of an MP.

In general, one of the main problems of the criminal case against Nikanor Melia is the legal proceedings against the protesters starting on the night of June 20-21, 2019, and serving as a clear example of so called selective justice in the country, due to the striking quantitative difference between the statistics of victims and prosecuted citizens and that of the victims and prosecuted law enforcement officers. The selective justice is also evidenced by remand in custody ruling against the opposition leader and his arrest of today, using police force. 

HRC calls on the Georgian authorities:

• Refrain from all actions that contribute to the escalation of difficult political processes in the country and take immediate necessary steps to resolve the current crisis;
• Do not take steps that contribute to the polarization of the society and civil conflicts;
• Demonstrate the political will and resources to return to the negotiating table with the opposition parties, with the involvement of international partners, to resolve the severe political crisis. 
• Take into account the statements and calls made by international partners and international organizations aimed at stabilizing the situation in the country.