The Human Rights Education and Monitoring Center (EMC) reviews and evaluates practices of persecution and human rights restriction by South Ossetia’s de facto regime against Tamar Mearakishvili, an activist and journalist living in Akhalgori. The EMC has been providing legal assistance to Tamar Mearakishvili in relation to the unlawful actions being preformed against her by the South Ossetian de facto authorities since June 2017.

Tamar Mearakishvili lives in Akhalgori and is known for her criticism of the local unrecognized government due to the gross violations of human rights and the severe social and economic problems in the region. She also criticizes Georgian governmental authorities for the improper fulfillment of their obligations meant to have a positive effect in the occupied territories. Tamar has, on a number of occasions, published statements about the dire situation of human rights protection in the occupied territories, which is one of the valuable sources of information considering the general access restrictions in these regions.[1]

Because of her public expression of critical views, Tamar has been experiencing intense pressure and harassment by the local de facto government since June 2017. This is revealed in her unlawful kidnapping on 8 June 2017, which aimed at intimidating and psychologically pressuring her, as well as in the initiation of several clearly unjustified criminal cases launched against her. Throughout this period Tamar has been deprived of her identity documents and personal belongings, freedom of movement and other fundamental rights.

• The kidnapping of T. Mearakishvili

The cascade of repressions against Tamar, started in April 2017 when in an interview with “Echo Kavkaz” she spoke about corruption in Akhalgori and indicated that supporters of the former president were getting fired and the new president’s, Anatoly Bibilov’s, supporters were taking their positions.[2]

After the publication of the article, on the morning of June 8, 2017, Mearakishvili was detained at her own house and was taken to Tskhinvali and held there for about 15 hours. In her own words, the people who kidnapped and took her in Tskhinvali were threatening and frightening her in order to gain her confession and that she was cooperating with Georgian law-enforcement and security officials. During those 15 hours of unlawful arrest, Tamar did not have the opportunity to contact her family or a lawyer.

The Mtskheta-Mtianeti police department of the Ministry of Internal Affairs of Georgia has launched an investigation under article 143 of the Criminal Code of Georgia on the illegal detention of Tamar Mearakishvili. EMC is protecting her interests in the frames of the investigation.

• Criminal law cases against Mearakishvili, launched by the de facto regime 

Following the incident of June 8, 2017, the harassment continued against T. Mearakishvili by de facto government representatives. On August 16, 2017, representatives of the Prosecutor's Office of Akhalgori searched Tamar and her house and as well. The prosecutor's office explained that she was charged with defamation (in accordance with Article 128 of the Criminal Code of the Russian Federation) in relation to the article published in Echo Kavkaza. Tamar was toldd that, because of the published article, Spartak Driaev, a member of the political party "United Ossetia" filed a suit against her. During the search, representatives of the prosecution were being sarcastic and rude, and were expressing hate towards ethnic Georgians.

In March of 2018, the Akhalgori Prosecutor's Office started another case against T. Mearakishvili, this time based on her action under Article 327 of Criminal Code of the Russian Federation, which imposes criminal liability for the falsification of the official document. In this case, Tamar was told that during her personal search on August 18, 2017, they discovered a Georgian ID card issued with her name, which is considered illegal by the South Ossetian authorities. The Prosecutor's Office believes that Mearakishvili hid her Georgian ID card, did not submit it to the relevant agencies and after that, she obtained the “passport” of South Ossetia as an illegal document. On the same grounds, in June 2018, the Prosecutor's Office of Akhalgori qualified this action with another Article 324 of the Criminal Code of the Russian Federation, which implies she illegally obtained the official document.

The first wave of trials ended with Tamar’s victory, as in September 2018, the de facto court of Akhalgori returned the case to the Prosecutor's Office for improper investigation and unsubstantiated allegations. In February of 2019, the Prosecutor's Office reopened the proceedings under all three charges. From this time until now 5 court hearings have been scheduled, and all of them have been postponed upon the request of the Prosecutor's Office.

Throughout this time, Tamar has been restricted from leaving the South Ossetia region, had her documents confiscated, and personal belongings, including computers, phone taken away.

• Persistent violation of Tamar Mearakishvili’s rights

Tamar Mearakishvili’s rights have been and continue to be violated in several ways: freedom of expression, freedom of movement, right to liberty and security, right to private life, and the right to property. In addition, the violation of these rights has the connotations of discrimination on ethnic grounds, Tamar is being persecuted in Akhalgori because she is an ethnic Georgian and de facto authorities relate her critical attitude to alleged links with Georgian government’s Services. Tamar’s persecution and the mass violation of her rights are ultimately aimed to exile her, as an ethnic Georgian activist, from Akhalgori.

Freedom of expression

It should be noted at the outset that the existence of criminal responsibility for defamation is incompatible with the international standards guaranteeing freedom of expression and the existence of any law/regulation associated with defamation requires a high degree of justification. The European Court of Human Rights pointed out in many cases[3] that defamation laws have so-called “freezing effects” in relation to freedom of expression and public discussions. The Council of Europe calls on member states to decriminalize defamation and to ensure elaboration of the legislation in line with the principles of freedom of expression.[4]

According to the European Court, freedom of expression is directed toward not only to the information and ideas which are acceptable to many, but also ideas that can be offensive, shocking or disturbing to the state or part of the society. "This is a requirement of pluralism, tolerance and a broader sense of thinking, without which a democratic society cannot function."[5] According to the established international principles set out for defamation regulation, the law of defamation cannot be justified unless its original purpose and clear outcomes are to protect the reputation of specific individuals or institutions from certain damages. In particular, defamation legislation is not justified if it is aimed at 1) preventing criticism of public figures or revealing cases of public offenses or corruption; [6]2) protecting the "reputation" of individual subjects, such as state or religious symbols, flags, etc; 3) protecting the state or nation's "reputation" as such; 4) whereas it allows filing a suit to protect the reputation of those people who have died; 5) defend the subjective understanding and feelings of the sense of dignity; [7]It should be noted here that the Russian Federation has repeatedly been criticized by human rights organizations for criminal regulation of defamation.[8]

Under these circumstances Tamar Mearakishvili's assessments and criticisms of the political party that won the local elections are justified under protection of freedom of expression, the initiation of criminal prosecution against her is an unlawful interference in the exercise of freedom of expression. Moreover, there is no evidence to prove that Tamar's assessment has caused damage to anyone nor harm to their reputation.

1.1            Freedom of movement 

Freedom of movement is guaranteed under a number of an international agreements, including Article 2 of the Fourth Additional Protocol to the European Convention on Human Rights. Since August 2017, after Tamar Mearakishvili's criminal prosecution started, Tamar has had the documents needed in order to have the freedom of movement and the right to leave the region confiscated. Besides the fact that she has had her freedom of movement restricted for an unjustifiably long period, these restrictions put Tamar in social and economic isolation, which, in turn, has created a number of everyday problems. In September 2018, the Tskhinvali de facto court found the prosecution's allegations unsubstantiated, but her freedom of movement is not still restored. She has contact with the outside world with the help of those people who can cross the border and through their help, she is trying to obtain some means to live. Such a limitation, considering its intensity and duration, cannot be in any way justified.

1.2            Right to liberty and security 

According to Article 5 of the European Convention on Human Rights, everyone has the right to liberty and security. This right prescribed the possibility of deprivation only in case of conviction by a competent court; On June 8, 2017, Tamar Mearakishvili was detained for 15 hours without a conviction by a competent court.

Related to this, the findings and explanations of ECHR regarding the legality of the de facto regime's "court" capacity and the legality of detention, are important to note. Considering that acting de facto authorities are not recognized by the international community in accordance with international law. In Ilascu case the European Court held that the court" of the regime not recognized by the international community, can be considered a "competent court" in the context of the European Convention, if it operates with "the constitutional and legal basis" which reflects the legal tradition in line with the Convention, in order to protect the rights guaranteed by the Convention (see. mutatis mutandis, Cyprus v. Turkey, §§ 231 and 236-237). [9]Regarding the legality of detention, the European Court found that the detention should be not only in line with the “internal legislation”, but also "internal legislation" must be in accordance with the European Convention, including the general principles of rule of law included in the preamble. The Court also specified that the aim of Article 5 is to protect a person against arbitrary detention and so that they are not charged as a result of "gross violation of law".[10]

The circumstances of the kidnapping of Tamar Mearkishvili clearly demonstrate that her detention was "flagrant denial of justice" and incompatible with the principles set out in the Convention, as they violate the main goal of Article 5, protecting a person from the arbitrary detention.

Tamar’s detention on unclear charges, without relevant lawful order, the cascade of violations during detention - interrogation for 15 hours, restriction of contact with family members and lawyers, intimidation for obtaining false testimony, violate the right to liberty and security guaranteed under the Convention.

1.3           Right to private life

The factual circumstances described above also indicate to persistent violation of Tamar Mearakishvili's right to private life. Tamar Mearakishvili, who was interrogated for 15 hours on June 8, 2017, did not have the possibility to communicate with her family and her lawyer, which constitutes a violation of her rights guaranteed under Article 8 of the Convention. Tamar's right to private life was also gravely violated during her individual and apartment searches. After the kidnapping, on August 16, 2017, Tamar and her apartment were searched in the frames of the prosecution charges of defamation against her in the criminal case. The unlawful search, as well as aggressive attitude towards Tamar, because of her Georgian ethnicity indicate to the violation of the right to privacy.

1.4            Right to property

In the frames of the current criminal law proceedings, in August 2017, de-facto authorities seized Tamar’s personal belongings and documents. Despite repeated requests from Tamar and her lawyer, her personal items (computer, telephone, etc.) are still not returned, and their confiscation has no legal basis, no need, and justification, even in the frames of ongoing criminal law case proceedings.  Despite the fact that criminal proceedings at the first stage were found unjustifiable by the local "court", the "Prosecutor's Office" has not given back her personal belongings, which grossly violates the property rights guaranteed under Article 1 of Protocol No. 1.

• The issue of state jurisdiction and state responsibility

Taking into consideration that the Georgian authorities fail to exercise effective control over the territory of Tskhinvali region / South Ossetia and on the other hand the de-facto regime is not recognized by the international community, effective protection and realization of human rights is an important challenge. Despite having legally and the practically complex issue at hand, the existing international practice indicates that even in the context of the unrecognized regime, people living in the unrecognized territory should not be placed in a vacuum where their rights are ignored.[11]

First of all, the Georgian government has a positive obligation to take all possible measures to protect Tamar Mearakishvili's rights. In relation to positive obligation of rights protection, in case of Ilascu and others  v. Moldova and Russia, the Court reasoned that "despite the fact that Moldova does not exercise effective control over MRT's actions on the territory of  Transnistria, the fact that this area  is recognized as part of Moldova, by the ​​public international law, it imposes an obligation on Moldova, in accordance with Article 1 of the Convention, to use all legal and diplomatic means to protect rights and freedoms guaranteed under the Convention of those persons living on that territory “.[12]

Thus, responsibility for the human rights violations in the South Ossetia / Tskhinvali and Abkhazia regions is that of the Russian Federation, including the continued violation of Tamar Mearakishvili's rights, as Russia is the state that exercises effective control over the occupied territories of Georgia. Accordingly, it is essential that the representatives of Russia and its supporting regime stop the persecution and harassment of Tamar Mearakishvili and allow her to live a peaceful and safe life in Akhalgori.

In addition, the Georgian government has a positive obligation to protect Tamar Mearakishvili's rights, to investigate the case of Mearakishvili's kidnapping, to adequately qualify the case under the criminal law and impose responsibility on the identified persons who committed the criminal act. The government also has an obligation to protect Tamar Mearakishvili's rights through the application of international legal mechanisms, including the inclusion of the mentioned case in the third inter-State application of Georgia against Russian Federation submitted at ECHR. It is also important that the State should actively raise the issue of protection of Tamar as an ethnically Georgian activist and emphasize its importance, in the negotiations at all international formats.

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