On the ECHR Merabishvili Ruling

Interview

With last week’s ECHR judgment on ex-PM and Interior Minister Merabishvili only adding to already existing convolution on his alleged “kidnapping case”, one of the most popular demands in Georgian society was for an explanation and interpretation in a simplified language. For this difficult task, and with the blessing and recommendation of the Council of Europe, GEORGIA TODAY and Panorama Talk Show approached Kantsantsin Dzehtsiarou, Professor at the University of Liverpool.

How would you sum up the ECHR judgment?

Basically, what the court wanted to determine is whether the arrest of Mr Merabishvili was legal from the point of view of the European Convention on Human Rights [hereafter, the Convention]. In the end, the court decided that at least some of his imprisonment and pre-trail detention was in compliance with the convention. However, the later part of his pre-trail detention was not. So, the court needed to explain why this later part was a violation, by which I mean the incident when Merabishvili was allegedly taken from his cell during the night and asked about events related to the death of late PM Zurab Zhvania and details pertaining to the bank accounts of Ex-President Saakashvili. This part of his detention was illegal from the point of view of the Convention because it violated Article 18, which says that if you arrest or put someone in pre-trial detention because he committed a crime, the main purpose of this imprisonment should be to investigate this crime, not to wrangle out information from other aspects of his political career or on his other involvement in political areas.

The ECHR does not think that the initial detention of Merabishvili was against the law?

No.

Does the ECHR consider him a political prisoner?

The court did not discuss that question as such. The court cannot declare any person a political prisoner or otherwise. The only question the court decides on is whether the imprisonment is in compliance with the convention on HR, particularly with Article 5 and Article 18. And then we decide for ourselves, based on this judgment, whether the court considered a particular person a political prisoner.

So, while the initial detention was not in violation of the law, the second part, including the prolongation of his pre-trial detention, was?

Correct. The ECHR found that at a later stages reasons behind Merabishvili’s initial detention somehow changed. And the ECHR found a violation of Article 5 in that respect. On top of that, the court found violation of Article 5 in conjunction with Article 18.

Does that judgment gives me, a regular citizen, enough evidence to assume that the ECHR considers Merabishvili unlawfully detained now?

Again that is not straightforward from the judgment of the ECHR. We are talking about Georgia, not Azerbaijan here. If we compare this judgement to the cases of Azerbaijan when the court clearly stated that the only way to sort out this problem is to release the prisoners, the ECHR does not say that in relation to Merabishvili. Moreover, it did not discuss his present imprisonment. He is already imprisoned as a result of a Georgian court decision for crimes he allegedly committed.

Two main political parties each claim a political victory based on this ECHR judgement

It’s not the first decision of the ECHR where different parties claim that they have won something out of it. We have quite different examples in the past. Here, the court tried to be balanced. Naturally, a political party against Merabishvili thinking he was rightly arrested got something when the ECHR stated that the whole detention was not political. The court said it was not for political purposes right from the beginning. They dismissed the part of the judgment that says that that some the detention was problematic and that is clearly a victory for Merabishvili and his party partners. And then there are their opponents who claim that the whole process should be considered political if the predominant aim of this was his removal from the political scenery rather than in order to prosecute him for alleged crimes he committed. So, the court did not say that is political in general but said that some part of his detention was for an improper purpose.

Considering that there is a top fine of Eur 4000 for violation of Article 18, and we are talking about a top gov’t official, how grave a violation are we talking here?

In this particular judgement the court was not unanimous. Some thought the court did not go far enough, some thought that they went way too far and there was no actual violation of Article 18. You rightly refer to relatively low compensation for this violation. Perhaps the court took into account the whole process and defined that as the initial violation was not a violation of Article 5, it decided to award as much as it deemed necessary. But I would not focus on money: it is less important in these circumstances. Interpretation of the convention and resulting violations are more important. The message the ECHR sent the Georgian government was that these sorts of action in such high-profile cases are illegal and should not be done. People should not be taken from their cells during the night. If you investigate someone for a particular crime that should be the sole focus.

If you were to put on a political analyst mantle for a second, would you say the appellation of this case by the State backfired?

I don’t think it backfired. The court clearly thought it an important case and had to clarify the case law on Article 18 because there was clearly a discrepancy. If I were to advise the Georgian government, I would say it definitely needed to go ahead and refer this case to the grand chamber.

Vazha Taveberidze