17.06.2016

The Azerbaijani human rights activist Merabishvili

JAMnews

The Strasbourg-based court found that on June 14 there had been a violation of Article 18 of the European Convention on Human Rights with respect to the Georgian ex-Premier, Vano Merabishvili. It also ruled that the Georgian government must pay a €12,000 fine to Merabishvili.

Vano Merabishvili, ex-Premier and President Saakashvili’s right hand man and former Interior Minister of Georgia, has been in detention for three years already. He is serving a 5-year term of imprisonment for abusing official powers.

Merabishvili’s party claims that by its ruling, the Strasbourg-based Court recognized Merabishvili as a political prisoner.

Otar Kakhidze, Merabishvili’s defence lawyer, says there are just a few examples of this violation, of this specific Article being recognized by the European Court, including the cases of Ukrainian politicians, Yulia Timoshenko and Yuri Lutsenko.

Kakhidze also draws a parallel with the cases of Azerbaijani human rights activist, Raul Jafarov and Azerbaijani blogger, Ilgar Mammadov.

“When the European Court of Human Rights foundt hat there had been a violation of Article 18 of the Convention in Jafarov vs. Azerbaijan case, the Azerbaijani president, Ilham Aliyev, released the convict a few hours after publication of the court’s ruling, stated Kakhidze.

Does the violation of Article 18 automatically imply that a person is a political prisoner and is there really any similarity between Jafarov, Mammadov and Merabishvili’s cases? On this topic, JAMnews interviewed Eldar Zeynalov, the Head of the Azerbaijan Human Rights Center (AHRC). He has been dealing with Azerbaijani political prisoners’ cases for years, including in the European Court of Human Rights.

Is Vano Merabishvili a political prisoner?

“Under Articles 5 and 18 of the European Convention on Human Rights (ECHR), the existence of violations in a criminal case does not necessarily mean that an imprisoned individual is a political prisoner. It just implies that the deprivation of liberty served some ‘other hidden reasons, i.e. an individual was arrested for some other reasons.

However, if this ‘hidden reason’ violated one of the fundamental guarantees set out in the ECHR and the Protocols thereof, in particular, the freedom of thought, conscience and religion, freedom of expression and information, freedom of assembly and association, then the European Court’s ruling on the violation of Articles 18 and 5 of the Convention will be a ‘watertight’ argument in favor of the fact that a prisoner is a ‘political’ one, as defined in the PACE Resolution 1900 (2012).

For example, in the case of Ilgar Mammadov, a political activist, the ECHR found that his arrest was conducted in violation of his right to freedom of expression, whereas in the case of Rasul Jafarov, the right to freedom of association. In its decision, the European Court of Human Rights did not refer to them as political prisoners (this is beyond the ECHR mandate). Jafarov was released the same day the ECHR published its ruling. As for Mammadov, intensive talks on his release are currently underway.

The last paragraph of the PACE Resolution ensures that the Council of Europe member states ‘reassess the cases of any alleged political prisoners by application of the aforementioned criteria and to release or retry any such prisoners as is deemed necessary. In 2013, Georgia was the only member state of the Council of Europe in the region that met this requirement at that time. However, today there is a huge list of individuals, whose arrest raises questions, and Vano Merabishvili is among them.

What does the European Court’s ruling change from a practical point of view?

According to ECHR procedures, the ruling has not taken any legal effect yet, and therefore, at the moment, the government has no obligations. One of the parties (the applicant and the government) is entitled to file a claim with the Grand Chamber within 3 months. As reported, the Georgian government has already stated its intention to challenge the ECHR ruling.

What are the prospects of this claim?

If a panel of 5 judges recognizes this application as admissible, the execution of the ECHR ruling will be suspended, and the final decision will be that of the Grand Chamber. However, it’s a rara avis in ECHR practice and such claims are accepted only in cases, where there is a drastic difference in the opinions of the 7 judges of the ordinary chamber (for example, a 3-4 ruling). However, that’s not the case with Merabishvili, where the decision was unanimous, and therefore, the Georgian government’s claim is less likely to be considered.

Thus, the ruling on Merabishvili’s case is likely to take legal effect as early as by the end of the year. The Supreme Court of Georgia will have to accept this and annul all decisions made by the national courts on this criminal case, which fall under Article 18 and 5, i.e. decisions on the merits, as well as those on the measure of restraint. At this stage, his lawyer could refer to the Resolution 1900 (2012) and demand the release of his client.

However, if there actually are signs of financial abuse in Merabishvili’s case, then the government may choose a different path and try to have a new trial. But the court will have to reargue the need for taking Merabishvili into custody, as well as take into account the fact that there will be new evidence and documents, that were not available 3 years ago. Therefore, in order to preserve its image, it will be better for the government to release the claimant and pay him compensation.