Introduction

On November 3, 2022, the de facto Prosecutor's Office of South Ossetia terminated the criminal investigation against Akhalgori-based activist Tamar Mearakishvili due to the absence of criminal activity concerning all charges. It is noteworthy that on November 30, 2022, the "Prosecutor's Office" annulled the resolution regarding the termination of investigation due to procedural requirements and set December 9 as a new deadline for the preliminary investigation. However, this decision was again annulled by the de facto Prosecution the very next day, and the previous resolution of 3^rd November remained in force.

At first glance, the first resolution of the de facto authority is a positive sign to finalize unlawful and unfounded criminal prosecution against Tamar Mearakishvili since 2017. However, since the text of the resolution directly indicates the initiation of the legal procedure of revoking the de facto passport of Tamar Mearakishvili, the risks of depriving de facto citizenship still remains. Such development might question the legal status of Georgians living in Akhalgori under the de facto administration.

In this document, the Social Justice Center evaluates the legal side of criminal cases against Tamar Mearakishvili in the last five years and her human rights status. In addition, the organization calls on the Georgian authorities to take adequate steps to protect the rights of the local activist and to use all mechanisms of negotiations and dialogue at the international and local levels to protect her rights.   

The general context of Mearakishvili's persecution

Since June 2017, Tamar Mearakishvili has been an object to unjustified criminal prosecution, intimidation, and harassment by the Tskhinvali de facto administration. However, it should be noted that even before that, from June to December 2016, Mearakishvili was summoned by the “investigative authority” 6 times, where her questioning was connected to her open criticism on the social network or to the interview/comment she gave in the media. In these interviews she she exposed the corruption schemes of Tskhinvali's de facto administration bodies and talked about the facts of human rights violations, as well as local social and economic problems. It should be noted that Mearakishvili is also critical towards the Georgian government due to its improper fulfillment of the positive obligation to protect the rights and interests of the people of Akhalgori.

The initiation of prosecution against Mearakishvili by the Tskhinvali de facto administration bodies was also related to her critical public positions, the culmination of which was an interview given to "Echo Kavkaza" in April 2017, where Tamar spoke about the newly elected President's -Anatoly Bibilov as he dismissed supporters of the former president from public services and the appointed his own supporters.[1]

A few months after the publication of the article, on June 8, 2017, Mearakishvili was abducted from the vicinity of her house by the representatives of the de facto security service. For 15 hours, through intimidation and threats, they tried to get a confession from her that she worked with the security services of Georgia. Soon the “prosecutor's office” officially charged T. Mearakishvili with slander, as well as falsifying documents and illegally obtaining a passport of a "citizen" of the Republic of South Ossetia. The investigation confiscated her de facto passport, and as a temporary measure, the court forbade her to leave the territory of South Ossetia. The case against Mearakishvili had been going on for five years, and the proceedings entailed several court instances and hearings. Finally, only on November 9 of this year the investigation terminated due to the absence of signs of crime. For Mearakishvili, recognizing her innocence within the de facto legal system was important. Still, at this stage, she plans to start a rehabilitation process at the local level due to her illegal persecution all this time and the restriction of a number of the rights, including freedom of movement.

It should be noted that the Ministry of Internal Affairs of Georgia launched an investigation into the kidnapping and illegal detention of Mearakishvili under Article 143 of the Criminal Code. However, the investigation has not produced any results after 5 years, and the perpetrators have not yet been identified.

The ongoing investigation into the illegal detention of Mearakishvili in the territory controlled by Georgia

On June 8, 2017, after receiving information about the kidnapping of T. Mearakishvili from the territory of Akhalgori, the Ministry of Internal Affairs of Georgia started an investigation on the fact of illegal deprivation of liberty of T. Mearakishvili, according to Article 143 of the Criminal Code of Georgia. Since 2017, at T. Mearakishvili's initiative, several investigative activities were conducted, inter alia,  T. Mearakishvili provided the investigation with information about the persons who participated in the illegal deprivation of liberty. It should be noted that Alik Taboev, who is wanted by the Georgian authorities for the illegal detention and torture of Archil Tatunashvili, took part in the illegal detention and arrest of T. Mearakishvili. Despite the mentioned, the Ministry of Internal Affairs and the Prosecutor's Office of Georgia have not ensured the identification of the responsibility of the perpetrators of the crime and the appropriate legal response to them. It should also be taken into account that the most active investigative/procedural actions were taking place in 2019, and since then no significant progress can be observed.

Review of the ongoing criminal cases against Mearakishvili at the de facto Prosecutor's Office of Tskhinvali

After one month from the kidnapping and illegal detention, the representatives of the Akhalgori “Prosecutor's Office” searched Mearakishvili's house and explained that she was accused of the crime provided for in Article 128 of the Criminal Code of the Russian Federation - defamation, which was related to her interview given to "Ekho Kavkaza". In addition, during the search, they found the identity card of a Georgian citizen, on the basis of which another criminal case was initiated against her. Tamar was accused of falsifying official documents and illegally obtaining a passport of a "citizen" of the Republic of South Ossetia, which meant criminal actions under articles 327.3 and 324 of the Criminal Code of Russia.

The first stage of the trials ended in September 2018, and the de facto court of Akhalgori returned the cases to the “Prosecutor's Office” on the grounds of improper investigation and lack of justification.

In February 2019, the de facto Prosecutor's Office renewed the proceedings on all three grounds of the charge. In September 2019, by the decision of the de facto city court of Tskhinvali, Mearakishvili was acquitted due to the lack of criminal grounds, which was appealed by the “Prosecutor's Office”. On January 17, 2020, the “Prosecutor's” appeal was partially satisfied and Mearakishvili was acquitted of defamation, while the acquittal on the charge of falsifying official documents and illegally obtaining a South Ossetian "citizen" passport was annulled by the de facto court and the case was returned to the first instance for investigation. One year later, the court returned the case to the Prosecutor's Office again in order to eliminate the shortcomings found in the investigation process by the court, and the case was returned from the de facto prosecutor's office of Tskhinvali to the de facto prosecutor's office of Akhalgori.

On March 17, 2022, the “Prosecutor's Office” decided to terminate the investigation, as the statute of limitations had expired. Tamar Mearakishvili appealed this decision to the court, because she did not agree with the termination of the investigation on the grounds of the expiration and requested an acquittal on the grounds of the lack of justification of the cases unlawfully conducted against her over the years.[2] The “Tskhinvali Court” satisfied Mearakishvili's request and instructed the de facto Prosecutor's Office to eliminate the investigative gaps (lack of evidence), for which September 2022 was set as the deadline. The de facto prosecutor's office requested an extension of the term until November 2022, however, in October, it informed Mearakishvili that it plans to continue the investigation only within the framework of one article, which refers to the illegal receipt of a passport of a "citizen" of South Ossetia. In relation to the other charges, the investigation was terminated.

However, on November 9, 2022, the de facto Prosecutor's Office of Tskhinvali issued a resolution, which provided for the termination of the investigation of the criminal case against Mearakishvili due to the absence of a criminal act in relation to all articles. The substantiaton of the de facto prosecutor's office was as follows:

Article 327.3 of the Criminal Code of Russia provides for the liability for "possession, storage, transfer of a previously forged passport, identity card or other official document for the purpose of their further use or sale." The subject of the crime is a forged official document that grants rights and exempts from obligations. The resolution of the de-facto prosecutor's office explains that fraudulently using someone else's or one's own genuine document is not part of this crime. Obtaining a forged document refers to a case where the document is issued by an unauthorized entity, or forged using special methods and techniques. Also, the use of a forged document implies its presentation to the relevant authorities to obtain rights and be exempt from obligations.

The "Resolution" explains that Mearakishvili's action does not contain the criminal elements of Article 327, Part 3, because the document she received cannot be considered forged. It was issued by an authorized body and contained the valid application data, place of registration, photograph, necessary signatures that an official document must have.

Moreover, the de-facto Prosecutor's Office discusses the notarized document submitted by Mearakishvili to obtain "South Ossetian citizenship," in which she renounces Georgian citizenship. According to the de facto legislation, this document's submission is mandatory for obtaining "South Ossetian citizenship." The “Resolution” of the de facto Prosecutor's Office," Mearkishvili's notarized statement about renouncing Georgian citizenship is not an official document. Attesting the signature, the notary certifies the will of the applicant for legal purposes. In this case, Mearakishvili expresses her intention to renounce Georgian citizenship, which will later become the basis for obtaining South Ossetian citizenship. Therefore, this document is not an official document, in case of falsification of which, there would be grounds for criminal prosecution. Accordingly, Mearakishvili's action does not qualify the grounds stipulated in Article 324 of the Criminal Code of Russia. On this basis, the de facto Prosecutor's Office closed the criminal case.

However, according to the "Prosecutor's Office", Mearakishvili obtained the passport of a "citizen" of South Ossetia in violation of the law, fraudulently (by retaining Georgian citizenship, which is not allowed by the "legislation" of South Ossetia), and this fact requires legal ramifications, which implies that this document (passport of a citizen of South Ossetia) ) must be revoked/siezed. Thus, Tamar’s freedom of movement remains still limited  , since the so-called passport, along with the travel pass, are necessary documents to enter the Georgia-controlled territory and then return back.

Tamar Mearakishvili appealed this part of the resolution as well. She appeals against the confiscation of her South Ossetian passport, stating that this action will terminate her South Ossetian citizenship, which may limit her right to live in the territory of the de facto government and force her to leave her home. In addition, Mearakishvili is demanding rehabilitation - compensation for the moral and financial damages caused against her due to the criminal prosecution against her. It should be noted that the rehabilitation procedure is provided for by Chapter 18 of the Criminal Procedure Code of the Russian Federation (it is the aforementioned Code that is used by the de facto authorities in criminal proceedings) and Article 133 establishes that the right to rehabilitation, which includes compensation for damages caused by the state to the accused, provided that the the criminal prosecution was terminated in accordance with the specific grounds stipulated in the Code. More specifically, the right to rehabilitation includes compensation for property damage, compensation for salary/pension and other income that a person could not receive due to criminal prosecution, compensation for expenses incurred for legal assistance, and additional costs that were caused by unjustified criminal legal procedures.

Possible rights-related and legal consequences of the cancellation of the "Passport of the Citizen of South Ossetia" on the population of Akhalgori

Revoking the "passport of a citizen of South Ossetia" because Mearakishvili retained her Georgian citizenship when she obtained the "passport" affects not only Tamar Mearakishvili's legal and rights-related status in the de facto Republic of Tskhinvali but also negatively affects the largest part of the population of Akhalgori in the similar situation. According to Mearakishvili, Georgian citizenship has been preserved not only by many ordinary Akhalgori residents but also by persons working in official positions. Moreover, the vast majority of Akhalgori residents have not only retained the status of citizens of Georgia but have also received the status of displaced persons and receive relevant social benefits from the central government.

The de-facto law-enforcement agencies have been silent on this fact until now. Suppose the de-facto court agrees with this decision of the de-facto Prosecutor's Office. In that case, it will be the first precedent when a person permanently living in the Tskhinvali region will be deprived of their so-called citizen status and, accordingly, their "passport."[3]

It is noteworthy that this decision of the de-facto Prosecutor's Office contradicts the "legislation" of South Ossetia itself. Article 13 of the "Law of the Republic of South Ossetia on Citizenship" clarifies that "citizenship" can be granted to persons who renounce the citizenship of another country when applying for citizenship. However, the question is whether this rule applies to Mearakishvili and many other people from Akhalgori who historically lived in the territory of Akhalgori and, after the 2008 war, came under the de facto jurisdiction of South Ossetia. According to Article 5 of the same "law," persons who have been permanently living in the territory of the "Republic" for at least five years before "the declaration of independence of the Republic of South Ossetia" automatically become its citizens. Tamar Mearakishvili meets this requirement of the "law" because she was born in Akhalgori in 1975 and has been a permanent resident of this district since then. Therefore, unless the investigation has strong evidence that Mearakishvili refused South Ossetian "citizenship," according to the general rule, she is automatically considered a "citizen of the Republic."

According to Mearakishvili, the de-facto prosecutor's office was driven by only one objective in issuing such a decision: to avoid responsibility for the unlawful criminal prosecution, which it has been conducting against Mearakishvili for the past 5 years.[4] However, if this "decision" is supported by the de facto court of Tskhinvali region, it will be an alarming precedent for the people of Akhalgori – should they express criticism against the de facto administration of Tskhinvali, they may be deprived of their "citizenship" for this reason. This, in turn, means limiting access to employment at public service /political participation, local services, resources, and other basic needs, which the population of Akhalgori now receives without any problems on the basis of the "Passport of the Citizen of South Ossetia."

Another new episode of ongoing persecution against Mearakishvili

Tamar Mearakishvili became the victim of a new wave of attacks this year from the deputy chief doctor of Akhalgori Hospital - Monika Jioeva. It turned out that Monika Jioeva has access to Tamar Mearakishvili's personal correspondence, phone conversations, and personal data on her phone, and she uses this information in publicly published statements against Mearakishvili. According to Mearakishvili, not only her personal correspondences (screenshots of the correspondence) are being circulated, but also sensitive personal information related to her health issues.

On June 23, 2022, Mearakishvili addressed the de-facto law enforcement agencies to investigate the case. She called for an investigation into privacy violations, including the publication of correspondence with de facto health minister  Naniev.On September 26, the de-facto Prosecutor's Office adopted a resolution refusing to start an investigation on the grounds that there was no crime under Article 138, Part 1 and Part 2 of the Criminal Code of Russia, which refers to the violation of confidentiality of correspondence, telephone conversations, telegraph, and other messages. According to the justification of the de facto Prosecutor's Office, the material reflecting the personal correspondence was published by the doctor of Akhalgori hospital, Jioeva, which she received not by using special technical means, but from Turmanov and with the consent of Minister Naniev, and the content of the correspondence concerned Jioeva herself. In the correspondence, Mearakishvili accused the doctor of being involved in corrupt activities. Since the de-facto Prosecutor's Office did not consider this action a criminal offense, it refused to start an investigation. However, Mearakishvili explains that the de facto Prosecutor's Office revoked this resolution on the day it was issued and continued the investigation. The Prosecutor's Office soon took the case to court and requested the issuance of a fine of 5,000 rubles (about 190 GEL) against Jioeva.

Tamar Mearakishvili feels under constant threat and stress under the conditions of continuous secret surveillance and monitoring, and the local de facto authorities do not take appropriate measures to restore her right to private life. According to Mearakishvili, the de facto Prosecutor's Office is not investigating the case properly, and she will file a new complaint, where she will request an investigation into all the published correspondence. However, it is evident that the local de facto agencies, as in the previous process of criminal prosecution, will delay this investigation process and will not be able to prevent Mearakishvili's continuous violation of her right to private life promptly.

Conclusion and recommendations

Against the background of the severe legal and social situation in Akhalgori, the systematic persecution and harassment of Mearakishvili further emphasize the need for proactive and timely steps by the Georgian authorities. Akhalgori, which was in permanent isolation from September 2019 to August 2022, came out of the isolation regime, albeit partially only as a result of the promise of the de-facto so-called president, Alan Gagloev. The residents of Akhalgori can commute to the Goergia-controlled territory for ten days a month, which is an essential benefit for the people of Akhalgori. It is critical for them to cross into the Georgia-controlled territory to receive healthcare and social services, as well as for basic household needs and communication with family/relatives. Due to the isolation and difficult humanitarian situation, Akhalgori was practically emptied; according to various unofficial information sources, there may not even be 1000 people left here, mostly elderly persons. In the event that the decision of the de-facto Prosecutor's Office in Mearakishvili's case is accepted by the "court" and her so-called South Ossetian citizenship will be revoked, this will be a precedent for other Akhalgori residents as well, which will make the general legal situation even worse. In the conditions of ongoing conflict, under the control of the de facto administration, the revocation of legal status for the people living here means complete isolation from local services and resources, both legally and socially.

Against the background of ongoing and systematic persecution of Tamar Mearakishvili, the Georgian authorities must understand the existing positive obligations despite the lack of actual control over the occupied territories and:

• Utilize the avenues of international political pressure to continuously raise Mearakishvili's case in all international forums and reflect it in reports and lawsuits;
• Conduct an effective negotiation process with the de-facto administration of Tskhinvali within the framework of the Geneva negotiations, as well as the Incident Prevention and Response (IPRM) mechanism, to stop the violation of civil activist's rights, including freedom of movement and right to private life.
• Understand the possible legal and social consequences of this decision for the population of Akhalgori in case of confiscation of the de facto passport of Mearakishvili because of her citizenship of Georgia and take adequate measures.

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