CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 7 septembre 2023

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font-family:Arial } .sFBC99493 { font-style:italic } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .s4598CDF { width:70.9pt; display:inline-block } .sBD1BE8CC { width:33.89pt; display:inline-block } .s446E0F47 { width:141.09pt; display:inline-block } .s5D826FD4 { width:25.88pt; display:inline-block } .s1B61D60 { width:156.43pt; display:inline-block }   FIFTH SECTION CASE OF MELIA v. GEORGIA (Application no. 13668/21)     JUDGMENT   Art 5 § 1 (c) • Lawful pre-trial detention of opposition politician, ordered as measure of last resort, in the context of criminal proceedings against him • Existence of reasonable suspicion that applicant might have committed an offence • Reasoned decisions regarding need to apply preventive measures referring to risks of absconding, tampering with evidence and reoffending Art 18 (+ Art 5 § 1) • Existence of ulterior purpose not established   STRASBOURG 7 September 2023   FINAL   07/12/2023     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.   In the case of Melia v. Georgia, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:   Georges Ravarani , President ,   Lado Chanturia,   Carlo Ranzoni,   Mārtiņš Mits,   Stéphanie Mourou-Vikström,   Mattias Guyomar,   Mykola Gnatovskyy , judges , and Martina Keller, Deputy Section Registrar, Having regard to: the application (no.   13668/21) against Georgia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Georgian national, Mr   Nikanor Melia (“the applicant”), on 1 March 2021; the decision to give notice of the application to the Georgian Government; the parties’ observations; Having deliberated in private on 4 July 2023, Delivers the following judgment, which was adopted on that date: INTRODUCTION 1.     The application concerns allegations under Articles   5 and 18 of the Convention that the domestic courts’ decision ordering the applicant’s pre ‑ trial detention was unjustified and unnecessary for the purposes of the criminal proceedings against him and that it had the goal of keeping him out of political life. THE FACTS 2.     The applicant was born in 1979 and lives in Tbilisi. He was represented by Ms H. Lazariashvili, a lawyer practising in Tbilisi. 3.     The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. 4.     The facts of the case may be summarised as follows. THE APPLICANT’S PARTICIPATION IN THE DEMONSTRATION OF 20-21 JUNE 2019 Background information 5 .     The applicant is an opposition politician. At the time of the events, he was a member of Parliament and one of the leaders of the United National Movement (“the UNM” – a political party which ran the country between November 2003 and October 2012). He became its chairman on 27   December 2020 (holding the office until 30   January 2023). Demonstration of 20-21   June 2019 6 .     On 20   June 2019 a session of the Interparliamentary Assembly on Orthodoxy (IAO – an interparliamentary institution based in Athens, set up to foster relations between Christian Orthodox lawmakers) was held in the Parliament building. S.G. – a member of the Russian State Duma and, at the time of events, President of the General Assembly of the IAO – sat in the chair reserved for the Speaker of the Georgian Parliament and delivered a speech in the Russian language. His actions were criticised as unacceptable and sparked widespread civic and political protest. 7.     A demonstration to protest against the events of the day (see paragraph   6 above) started at 7   p.m. Soon thereafter its participants occupied the entire space in front of the Parliament building and the avenue alongside it. According to media accounts, the demonstration was initially peaceful, with approximately 12,000 people gathered at the site. The applicant – together with other leaders of the opposition parties – participated in the demonstration and addressed the individuals gathered there. 8.     At about 8.53 p.m., one of the politicians addressed the protesters and presented the main demand directed at the ruling party: resignation of the Speaker of the Parliament, the Minister of the Interior and the Head of the State Security Service. Another demand voiced during the demonstration was to hold snap parliamentary elections and to transition to a proportional system of representation. The ruling party was given until the end of the day to comply with those demands. At 9 p.m. another politician addressed the protesters and stated that “civil disobedience” would be inevitable in the event of the authorities’ failure to heed the protesters’ demands. In a video recording of a discussion among the opposition politicians, the phrase “A revolution is about to begin” is heard. It is unclear who uttered it. The applicant’s conduct during the demonstration 9 .     The video material available in the case file shows that the applicant took the stage (apparently at 9.09 p.m.) and made the following statement: “... Today, the representative of the ... evil force which for centuries shot us and tortured us settled in the main chair of this fundamental symbol without blinking an eye ... I want to ask you: why do we have to stand in front of Parliament and why can we not stand inside the Parliament building? ... I believe that if, within an hour, those who must resign fail to do so, we have no business standing here in front of Parliament [and] we should enter [loud cheers of the crowd are heard] peacefully, with raised hands, the Parliament building, make our protest even more fierce and when they resign then we should come out.” 10 .     Sometime later (apparently at 9.17 p.m.) the applicant addressed the protesters again: “I want to ask you again, does [S.G.] have the right to sit in this building, in the seat of the Parliament’s Speaker but Georgian people do not even have the right to stand in the Parliament yard? In my opinion, in just a little while, [and] peacefully, those who honestly think that the dignity of the country – of the State and not only of individual citizens of Georgia – has been tarnished ... we should request [the return] of this building, which is no longer a Parliament building ... and of the country to the people ... we no longer have either the Parliament or the country. Let us enter here peacefully and request [inaudible] ... If they do not respond within ten minutes, those who honestly believe that they are here to protect the dignity of the State and not of some political party will restore this dignity and we will get back what belongs to us, the symbols [such as] the flag, the hymn, the coat of arms, and everything which was fought for by generations ... In ten minutes we will enter, peacefully and very constructively, with raised hands, the yard of the Parliament building.” 11 .     The video material available in the case file shows that the speech was followed by cheers from the protesters located in the immediate vicinity.   It also contains footage showing the applicant using a hand gesture appearing to signal to others to follow him towards the entrance. The exact moment when this happened is unclear. Subsequent developments at the demonstration 12.     Sometime after the statements made by the opposition politicians, including the applicant (see paragraphs   9-10 above), apparently at around 9.49   p.m., several hundred individuals who had gathered immediately below the stairs of the Parliament building leading to its entrance started pushing their way towards the entrance. They attempted to break through the police cordon located just above the stairs. It was reinforced by members of the special forces from inside the Parliament yard. The footage of the events shows that several participants cried out that there was a risk of crowd crushing. The officers shielded some journalists standing there and warned them against the risk of crushing. Several protesters threw plastic bottles at the officers. Others started dismantling the metal constructions which had been aimed at keeping the protesters away from the entrances to Parliament. Certain protesters managed to seize officers’ shields and rubber batons and handed them to one another. As is apparent from the material available in the case file, including reports by non-government organisations relating to the events in question, a large part of the demonstrators who were gathered in front of the Parliament building, away from the stairs, may have been unaware of the developments at the area leading to the entrance to Parliament. The video material relating to the incident shows the police telling the demonstrators to retreat and not to push forward. Eventually, at approximately 10.30 p.m. the tension was somewhat defused and the police managed to push the protesters back towards the stairs. 13 .     The situation at the demonstration appears to have escalated again from 11.22 p.m. Some of the protesters, who were standing near the stairs to the Parliament building, jointly started attempting to break through the police cordon again, while several others managed to overcome the police cordon and the metal constructions located in front of the Parliament building. Eventually, the police used teargas and fired rubber bullets. Once the protesters receded, water cannons were used to lead them away from the area in front of the Parliament building. The events continued into the early hours of 21   June 2019. In total, over 200 individuals were injured during the events of 20 ‑ 21   June 2019, including approximately eighty police officers and forty journalists. INSTITUTION OF CRIMINAL PROCEEDINGS AGAINST THE APPLICANT AND IMPOSITION OF PREVENTIVE MEASURES Opening of a criminal investigation in respect of the applicant and lifting of his parliamentary immunity 14.     On 21   June 2019 a criminal investigation was opened under Article   225 of the Criminal Code (“organisation or management of group violence or participation therein” – see paragraph   73 below). 15.     Subsequently the case against the applicant was separated and on 25   June 2019 the Office of the Prosecutor General of Georgia (“the POG”) prepared a document containing the charges against the applicant. Despite being notified, the applicant did not appear before the authorities to be handed the document. It was instead served on his lawyer. The applicant was charged under Article   225 §§ 1 and 2 of the Criminal Code (ibid.) on the basis of witness statements, a report relating to the inspection of the site of the events, the evidence seized as a result of that inspection, and video material. The document described the grounds for the charges in the following terms: “On 20   June 2019 a demonstration was held on Rustaveli Avenue in Tbilisi, in front of the Parliament [building]. The participants demanded the resignation of the Speaker of the Parliament of Georgia and other high-ranking officials. The participants in the demonstration started to gather at around 7 p.m. and the demonstration was peaceful until 9.50 p.m. During the citizens’ gathering, at approximately 9 p.m., a member of parliament, Nikanor Melia [the applicant], addressed the citizens and stated that if their demands were not granted within an hour, all of them had to move inside the Parliament building. As the demand was not granted, some of the [demonstrators], under Nikanor Melia’s leadership and with his participation, [and] with a view to storming (‘შეჭრის მიზნით’) the Parliament palace, engaged in violent behaviour towards the police officers gathered at the front perimeter of Parliament, assaulted them while using various items as weapons, and damaged and destroyed objects belonging to the law-enforcement officers. As a result of the above-mentioned violent acts, various injuries were received by law-enforcement officers and by citizens who had gathered peacefully to express their protest.” 16 .     On the same day – 25   June 2019 – the POG submitted an application to Parliament, on the basis of the Constitution of Georgia and Parliament’s Rules of Procedure, for the applicant’s parliamentary immunity to be lifted in order to be able to proceed with the case and make a request to the Tbilisi City Court to remand him in custody. Parliament granted the application on the following day. Imposition of bail subject to conditions 17 .     On 27   June 2019 the Prosecutor General requested the Tbilisi City Court to place the applicant in pre-trial detention on the grounds that there was a risk of his absconding, reoffending, influencing the witnesses and tampering with the process of evidence gathering. A hearing was held on the same day. During the proceedings before the court the applicant requested that bail in the amount of 10,000 Georgian laris (GEL – approximately 3,100 euros (EUR)) together with any additional conditions provided for by law be applied as an alternative to detention. 18 .     On the same day – 27   June 2019 – the Tbilisi City Court found that the evidence available in the case file concerning the applicant (statements by six witnesses, report on the inspection of the scene of the incident, evidence seized as a result of that investigative measure, video recordings, an expert examination and “other documents”) supported “a reasonable suspicion of [the applicant’s] possible commission of a criminal offence”. 19 .     The court granted the prosecutor’s application in part. It found that a real risk of absconding, tampering with evidence and reoffending existed but considered that detention would have been a disproportionate measure with regard to the aim pursued by preventive measures. It thus set bail in the amount of GEL   30,000 (approximately EUR   9,300) and imposed additional conditions. Specifically, the applicant was ordered: (a)   not to leave home without receiving prior consent from the investigating authorities; (b)   to abstain from making statements in public places; (c)   to abstain from any kind of communication with witnesses; and (d)   to surrender his passport and any other identity documents to the investigating authorities. 20 .     Among other arguments, the court noted the following as regards the risk of absconding and the necessity of bail: “ Danger of absconding [emphasis in the original]: ... The sentence to be expected if the charges [lead to a conviction] will be custodial, without an alternative. Accordingly, the argument that the risk of absconding is based on the anticipation of a severe sentence can be accepted. The second circumstance [relied on in the prosecutor’s application] relates to the [applicant’s] frequent travel abroad and his diplomatic privileges ... The fact that the accused has travelled abroad freely on many occasions cannot, taken alone and given his status and [professional] activities, indicate a risk of absconding. The enjoyment of the constitutional right of free movement cannot be used against the accused if he does not have such links and influences abroad which ... will help him evade justice. However, the ... severity of the possible sentence, the history of border crossings, the financial capacity and diplomatic privileges of the accused, considered together, [do] create a reasonable suspicion that the risk of absconding is real. In this connection the court notes that despite the attempts of the investigating authority it proved impossible to hand ... the documents containing the charges directly to the applicant because he evaded the summons and it was instead given to his lawyer. Such an attitude on the part of the accused towards a request from an investigating authority creates, to an extent, difficulties in terms of his availability and a reasonable suspicion that such disobedience might recur in the future. At the same time, the court also takes into account that [the applicant] was aware of the [prosecutor’s] application ... requesting the imposition of detention and ... he appeared at the hearing and did not evade the possible [detention]. ... [T]he court considers that the accused has sufficient means to leave the territory of the country, he also has subjective motives to disregard the summons of the investigating authority, while the severity of the possible sentence considered together with these circumstances justifiably creates a possibility of absconding or not appearing. The court considers that detention is not a necessary counterbalance for the danger of absconding as the procedural legislation provides for other means which can successfully exclude the risk of absconding in a given case. The use of bail as a preventive measure together with additional conditions is wholly justified to neutralise such a risk and complies with the principle of proportionality. Specifically, Article   199 [paragraph]   2 of the Code of Criminal Procedure lists as examples the conditions which give the court the choice of an alternative [to detention], together with a preventive measure, when the risk of absconding exists ... One such example is the ‘obligation to surrender one’s passport and other identification documents’. Additionally, the list provided in Article   199 is not exhaustive and a judge can decide on other measures which [he or she] deems appropriate depending on the individual circumstances of the case. The court considers that in order to avoid the risk of the charged [individual] Nikanor Melia absconding it will be sufficient and proportionate, in addition to imposing bail, to prohibit his leaving his place of residence without the ... permission of the investigating authority and [to order] him to surrender his passport and other identification documents. The court points out that the prohibition on leaving one’s place of residence is not absolute and is subject to informing the investigating authority and obtaining its authorisation ... As regards the surrender of the passport and other identification documents, ... the investigating authority will decide on the arrangements governing their use. Such types of additional obligations are efficiently used in the courts’ practice and are justified in order to ensure the accused’s interest in remaining at liberty.” 21 .     As regards the risk of tampering with the process of evidence gathering, the Tbilisi City Court reasoned as follows: “The court considers that without the use of preventive measures in respect of the accused, there is a risk of [his] influencing witnesses and accordingly a risk of [his] destroying evidence and tampering with [the process of] obtaining evidence. ... The prosecution has already questioned some of the individuals who possess information relevant to the case. The reports [containing statements] relate to, among other things, the reasonable suspicion regarding [the applicant’s] commission of a criminal offence. The defence has been given full information regarding these individuals. Accordingly, the accused is aware of the substance of the information given by important witnesses in the case and of the details necessary to identify them. Considering that [he] has the possibility of contacting the witnesses and a motive to avoid responsibility, he might try to illicitly communicate with them and to incite them to voluntarily alter their statements. It is noteworthy that one of the eyewitnesses to the incident ... indicates that [he or she] has already been subjected to influence and judgment by a group of certain individuals because of the statement given by [him or her]. ... [Given] the circumstances of the present case, the risk that the existing witnesses might change their statements or that other individuals in possession of information ... might not cooperate with the investigation because of the fear of judgment or pressure cannot be excluded. The accused, as a political leader, has a rather significant influence on a large segment of society and he can, personally or through intermediaries, tamper with the investigating authorities’ process of evidence gathering by means of influencing witnesses. The court considers that in addition to bail, [this risk] can be overcome by ... the prohibition on [initiating] any contact with witnesses. [This] includes personal and direct approaches to witnesses, as well as electronic and [other] communications or such contact by means of intermediaries ...” 22 .     As to the risk of reoffending, the court made the following remarks: “... The criminal offence of which Nikanor Melia is accused relates to directing and participating in the violent actions of a group. The circumstances obtaining in the country should also be taken into account, given that the question of turning a peaceful protest into a violent one is particularly sensitive. Accordingly, it is important to exclude the risk of reoffending and inciting citizens to violence ... Considering the active political activities of Nikanor Melia, and taking into account that he exudes influence on the will of numerous supporters, it is necessary to exclude the risk that he might continue allegedly directing the violent actions of a group. ...” 23 .     The court added that the applicant had been charged in connection with another criminal case (no information was made available to the Court in that respect) where bail without additional conditions had not proved effective to prevent the alleged commission of another offence (apparently alluding to the applicant’s involvement in the events of 20-21   June 2019). This circumstance had, in the opinion of the court, justified the imposition of additional measures alongside bail, including the prohibition on making statements at public events so as to avoid the risk of influencing people and reoffending. 24 .     On 29   June 2019 the applicant appealed against the Tbilisi City Court’s decision. He did not challenge the setting of bail but contested the imposition of part of the additional conditions as disproportionate and contrary to the Constitution of Georgia. Specifically, the applicant emphasised that despite the lifting of his immunity, his constitutional mandate as a member of Parliament had not been suspended. Accordingly, the imposition of additional restrictive measures such as the prohibition on leaving his apartment had effectively constituted an interference with his mandate, including his constitutional duty to participate in the sessions of Parliament. He further stated that the prohibition on communicating with witnesses had also been applied with respect to any “future” witnesses, rendering it inherently vague and impossible to comply with. The applicant did not request the annulment of the restriction on making public statements. 25.     The Prosecutor General also appealed against the Tbilisi City Court’s decision, requesting that detention be imposed in respect of the applicant as the only possible effective measure to prevent the risks cited in the court’s decision from materialising. 26 .     On 2 July 2019 the Tbilisi Court of Appeal held an oral hearing and upheld the lower court’s decision. It agreed that there existed a reasonable suspicion regarding the commission of a criminal offence and that the risks cited by the lower court were real. It noted that detention as a preventive measure should only be used as a last resort, taking into account the particular circumstances of each case. The court also emphasised the importance of ensuring the protection of the right of an accused to a presumption of innocence. Citing the cases of Wem hoff v.   Germany (27   June 1968, Series A no. 7), Yağcı and Sargın v. Turkey (8   June 1995, Series A no. 319-A), Bak hmutskiy v. Russia (no.   36932/02, 25   June 2009), and Aru tyunyan v.   Russia (no.   48977/09, 10   January 2012), the appellate court emphasised that detention must constitute a measure of last resort and that any decision ordering it must be based on relevant and sufficient grounds to justify departure from the rule of respect for individual liberty. It then found that bail, together with additional conditions imposed on the applicant, could achieve the legitimate aim of preventing the relevant risks from materialising, as opposed to detention as requested by the Prosecutor General. 27 .     As regards the applicant’s appeal relating to the conditions imposed alongside bail (see paragraph   24 above), the appellate court underlined that the applicant had not challenged the imposition of bail as such. The court explained that Article   207 of the Code of Criminal Procedure (“the CCP” –see paragraph   74 below) provided for the possibility of appealing against a first-instance court’s decision on the application, change or annulment of a specific preventive measure. As the types of preventive measures provided in paragraph   1 of Article   199 of the CCP (ibid.) were exhaustive, the law did not provide for the possibility of challenging separately the conditions attached to bail without contesting the imposition of bail itself. The appellate court thus found that it did not have jurisdiction to consider the merits of the applicant’s request regarding the conditions attached to bail. 28 .     In upholding the lower court’s findings, the appellate court additionally ordered, in the operative paragraph of its decision, the electronic monitoring of the applicant’s movements with a special tracking bracelet. The decision was final. 29 .     On 15   July 2019 the applicant posted bail. On an unspecified date he started wearing the electronic monitoring bracelet. Period between 15   July 2019 and 31   October 2020 30 .     Between 15   July 2019 and 31   October 2020 all requests submitted by the applicant to be allowed to visit Parliament were granted. His whereabouts were monitored by means of the electronic bracelet. During the period in question the applicant was present at the Parliament of Georgia on five occasions; visited headquarters of various political parties forty-eight times; held three press conferences from the headquarters of his political party; visited various broadcasters fifty times; participated in television shows, including non-political ones, forty-eight times; attended public demonstrations three times; met with supporters on three occasions; and made various private visits. The applicant also gave interviews to the media from his home. 31 .     On 13   September 2019 the POG circulated a public statement that on 10   September 2019 the applicant had left his home to physically participate in a talk show, despite the authorities’ refusal to grant his request. According to the statement, the applicant had been summoned to be told that such conduct constituted a breach of the conditions attached to bail and could, if repeated, entail the application of stricter preventive measures. 32.     It appears from the parties’ submissions that on an unspecified date in March   2020 the criminal proceedings against the applicant were suspended in view of his participation in the electoral campaign for the upcoming parliamentary elections. 33.     In an interview given on 15 September 2020 the applicant stated that he had been actively involved in the pre-election campaign since 5   June 2020 and that he had already met with approximately 7,000 individuals from his electorate. 34 .     On an unspecified date the applicant requested that the imposition of bail in respect of him be annulled, along with the condition regarding the temporary confiscation of his identity document, in the context of his participation in the parliamentary elections of 31   October 2020 (the case file does not contain a copy of the application). On 16   September 2020 the Tbilisi City Court granted the applicant’s request in part. It stated that the risks which had existed at the time the preventive measure had been applied persisted and that no new arguments or evidence had been presented to justify the annulment of bail. As regards the applicant’s identity document, the court noted the importance of ensuring the constitutionally guaranteed right to stand in elections and annulled the decision of the Tbilisi Court of Appeal of 2   July 2019 in so far as it related to the applicant’s obligation to surrender his identity document. 35 .     On 31   October 2020 parliamentary elections were held. Exit polls reported that the ruling party had garnered the majority of the votes. The applicant’s party was projected as the runner-up, earning him a renewed mandate in Parliament. Removal of the electronic tracking bracelet 36 .     On 1   November 2020 the applicant gave a speech at a demonstration held in front of the Parliament building to protest against the projected outcome of the parliamentary elections held the previous day on account of alleged irregularities on election day. During the speech he publicly removed the bracelet he had been wearing since the appellate court’s final decision of 2   July 2019 (see paragraph   26 above) and tossed it away. He made the following statement: “This is a symbol of injustice. This is a bracelet [of violence] which I will no longer wear. This is out of the question. I know that whether I am imprisoned or I stand with you in the fight in the coming days, the nation will be victorious.” Increase of the amount of bail 37 .     On 2   November 2020 the POG applied to the Tbilisi City Court with a request to increase the amount of bail and set it at GEL   100,000 (approximately EUR   31,000). It also requested that the court prohibit the applicant from leaving the country without the prosecution authorities’ prior approval. In reply, the applicant requested that the preventive measures be annulled altogether (the case file does not contain a copy of the relevant submission). 38 .     On 3   November 2020 the Tbilisi City Court granted the prosecutor’s application in part. The court took note of the bail and the related conditions imposed on the applicant by the judicial decisions of 27   June and 2   July 2019 (see paragraphs   19 and   26-28 above). It also stated that under Article   200 §   7 of the CCP (see paragraph   74   below), a breach of bail conditions or the law by an accused would entail the application of a stricter measure. As regards the applicant’s conduct and the grounds for applying a stricter measure in his case, the court explained its approach as follows: “The defence does not contest, and the court considers it established, that [the applicant] had been informed of the legal consequences to be expected in the event of breaching the conditions [attached to the] monitoring [decision]. Despite this, on 1   November 2020, [he] deliberately breached the condition attached to the preventive measure in ... front of the Parliament building [when he] publicly removed the electronic monitoring bracelet and tossed it away. The accused had been aware that this action of his would legally result in the application of a stricter preventive measure, as he himself stated during his public speech. The application and the information submitted by the prosecution reveal that the accused breached the condition attached to the preventive measure in public. The court emphasises that the breach took place in the presence of multiple individuals, which indicates [the applicant’s] attitude towards the law and public order. The breach in question publicly expressed [his] disrespect for the administration of justice and [his] non-compliance with the judicial decision. The court emphasises that in instances involving such a breach, the measures already in place have to be made harsher and actions that are not only stricter but more effective have to be selected to ensure that the aims of a preventive measure are complied with in the future.” The court thus increased the amount of bail and ordered the applicant to deposit GEL   40,000 (approximately EUR   12,400). The Tbilisi City Court ordered that the applicant be acquainted with the content of Article   200 §   7 of the CCP (see paragraph   74   below). The applicant was given fifty days to post bail. The decision could be appealed against “together with the final decision” (შემაჯამებელ გადაწყვეტილებასთან ერთად). 39 .     The court also imposed a prohibition on leaving the country without the prosecution authorities’ prior approval. It annulled the remaining conditions imposed on the applicant by the decisions of 27   June and 2   July 2019 (not to leave home without receiving prior consent from the investigating authorities; not to make statements in public places; prohibition of any kind of communication with witnesses; and the wearing of the electronic monitoring bracelet). Detention order of 17   February 2021 40 .     The time-limit for depositing the amount of bail indicated in the decision of 3   November 2020 expired on 24   December 2020. The applicant was given an additional week for that purpose. 41.     On 27   December 2020 the applicant was elected chairman of the UNM (see paragraph   5 above). 42.     On 5 February 2021 the POG stated that it would lodge an application with the court requesting that bail be changed to detention if the applicant failed to post the amount of bail indicated. 43 .     On the same day – 5   February 2021 – the applicant made the following statement: “I will not pay and you will not be able to arrest me (ვერ დამიჭერთ). I greatly respect the State institutions, but ... all these institutions [the POG, the courts, and Parliament] are in the pocket of [the founder of the ruling Georgian Dream party]. I beg your pardon but I have no moral right to participate in this fraud, this farce. ... For two months, together with colleagues, I have been requesting that [Parliament] terminate our mandates [apparently as a form of protest against the outcome of the parliamentary elections of 31   October 2020]. What the [POG] needs to do ... they know better than me. They have already done this once – they need to send that kind fellow to Parliament and request what they have already requested once with ninety-two people pressing the button [apparently referring to the initial lifting of his immunity – see paragraph   16 above]. They have to do the same. This way they will terminate my mandate, which is what I have been begging for but they have not done so. Therefore, what Georgian Dream will do is for them to decide. My will has been expressed. I simply could not have acted otherwise.” 44 .     On 11   February 2021 the applicant publicly refused to pay the amount set as bail and warned that no other person should post it on his behalf. He stated that the refusal was caused by his protest against an unlawful decision against him and that it was a matter of principle. 45.     On 13   February 2021 the leader of the parliamentary majority (of the ruling Georgian Dream party) held a press conference and announced that his party had decided to authorise the lifting of the applicant’s immunity with a view to his possible pre-trial detention if he failed to post the bail. He called on the applicant to take a decision “prompted not by a provocative agenda but [by] respect towards the laws of his country”. 46 .     On 16   February 2021 the Public Defender of Georgia (an independent body mandated by the Constitution and the Organic Law on the Public Defender to oversee the observance of human rights and fundamental freedoms in Georgia) issued a statement. She urged the POG to reconsider its stance and Parliament not to grant the application for the lifting of the applicant’s immunity. Among other things, the Public Defender noted as follows: “... [T]he use of a preventive measure requires that its objectives and grounds be sufficiently reasoned. Specifically, the prosecution [service] must prove that the particular form of preventive measure is necessary because the defendant might fail to appear in court, abscond, destroy important information for the case or commit a new crime. Non-compliance with a preventive measure by an accused should not be an automatic ground for imposing detention or any other strict preventive measure. When deliberating on the imposition of detention in respect of Nikanor Melia, the main subject of the assessment should be whether today there exists a need to restrict the defendant’s conduct and if this restriction serves the interests of justice, especially when more than eighteen months have passed since the opening of the criminal proceedings against [him], the investigation has been completed and the case is currently being considered at the merits stage.” 47.     On the same day – 16   February 2021 – Parliament granted the application lodged by the POG and allowed it to request that the Tbilisi City Court impose the measure of pre-trial detention on the applicant. 48 .     On the same day the Prosecutor General applied to the Tbilisi City Court seeking an order for the applicant’s detention. The application was motivated by the applicant’s repeated “deliberate” failure to post bail. It was argued that increasing the amount of bail had proved ineffective to ensure the applicant’s compliance with the “objectives of the preventive measure” and that a further increase in the amount of bail would not “guarantee [the applicant’s] behaviour in compliance with the law”. The application referred to Article 200 § 5 of the CCP (see paragraph 74 below) and stated that it had been the obligation of the POG to request that stricter preventive measures be ordered in such cases. It emphasised that the aim of the bail measure had been to ensure the appropriate conduct of the accused in the context of achieving the aims provided for in Article 198 of the CCP. In that context, the applicant’s failure to comply with conditions attached to the preventive measure and his public statements had been sufficient to exclude his compliance with the aims of the preventive measure. The application noted that the “analysis of information available in the criminal case file unequivocally confirm[ed] the existence of relevant and persistent factual and formal grounds for the [application of] a preventive measure”. It then briefly referred to the existence of evidentiary material and grounds regarding the various risks present in the case at hand (see paragraphs   18 and 20-22 above), adding that the applicant had demonstrated his negative attitude towards the authorities and towards the official requests and procedures imposed by the domestic courts. As regards the formal grounds justifying the application of stricter preventive measures, the Prosecutor’s application stated, among other things, that “the risk of absconding, destruction of information important for the case, influencing of witnesses and reoffending ... [were] persistent and relevant given several grounds, including: the nature of the criminal offence, its seriousness ..., the manner of its commission; the personal characteristics of the accused; the factor of avoiding possible strict punishment; [risk] of prohibited communication with witnesses and their influencing; [and] his negative attitude towards the investigating authority and the official/legal requests of the courts or participation and compliance with such.” The   POG concluded that, taking into account the failure of the less strict measures to have a “containment” ( შემაკავებელი ) effect, pre-trial detention was the only preventive measure which could attain the aims provided for in Article   198 of the CCP (see paragraph   74 below). 49 .     On 17 February 2021 the Tbilisi City Court granted the application by the POG. It took note of the earlier judicial decisions of 27   June 2019, 2   July 2019 and 3   November 2020 which had authorised the application of preventive measures in the context of the criminal proceedings pending against the applicant. Taking into account the argument regarding the applicant’s refusal to deposit the bail, and relying on Article   200 §§   5 and 7 of the CCP (see paragraph   74 below), the court ordered that a stricter measure – pre-trial detention – be imposed in respect of the applicant. The court’s decision was reasoned as follows: “Nikanor Melia [the applicant] was charged under paragraphs 1 and 2 of Article   225 of the Criminal Code in relation to the criminal case no. 009230619001, namely in respect of the management of a group activity accompanied by violence, raids, damage to or destruction of another individual’s property, armed resistance to and assault on representatives of public authorities and [in respect of] participation [in such an activity]. The decision of 27 June 2019 [adopted] by the Chamber of the Criminal Cases ... of the Tbilisi City Court applied in respect of the accused, Nikanor Melia a preventive measure of bail in the amount of 30,000 (thirty thousand) [Georgian] laris [and] the time-limit to post it was set at 20 (twenty) days. In addition to the preventive measure [the applicant] was barred, based on paragraph 2 of Article 199 [of the Code of Criminal Procedure] from: leaving his residence (home) without informing the investigating authority and obtaining their permission; making public statements in places of civic gathering; any kind of communication with witnesses; and he was also imposed an obligation to surrender his passport and any other identity documents to the investigating authorities. The decision of 2 July 2019 of the Tbilisi Appellate Court dismissed the appeals lodged by the Prosecutor General of Georgia and the applicant’s lawyer ... Electronic monitoring was additionally used in respect of the [applicant]. The decision of 3 November 2019 [adopted] by the Chamber of the Criminal Cases ... of the Tbilisi City Court granted, in part, the application lodged by the prosecutors ... and the preventive measure of bail applied in respect of the [applicant based on] the decisions of 27 June 2019 and 2 July 2019 ... was made stricter ... and the amount was increased by 40,000 (forty thousand) laris, to the [total] of 70,000 laris. The time-limit for [the applicant] to post the bail amount was set at 50 (fifty) days; he was also barred from leaving the State borders without informing the investigating authority and obtaining their permission. On 16 February 2021 the Prosecutor General of Georgia ... lodged an application to the Tbilisi City Court and requested that the preventive measure of bail applied in respect of the accused be changed to a stricter measure – detention, indicating the following as grounds [for the request]: Nikanor Melia deliberately failed to post