“The European Court of Human Rights has rendered tens of judgments with regard to Georgian nationals in which it has underlined that the decision of the Georgian court was unjust and the state treated its citizens unfairly.”
presented Marina Matiashvili’s interview with presidential candidate Nino Burjanadze in which the candidate stated: “The European Court of Human Rights has rendered tens of judgments with regard to Georgian nationals in which it has underlined that the decision of the Georgian court was unjust and the state treated its citizens unfairly.”
FactCheckset out to check the accuracy of Nino Burjanadze’s statement.
In her statement, Nino Burjanadze refers to the European Court of Human Rights (hereinafter ECHR), which was set up in 1959. It rules on individual or state applications alleging violations of the civil and political rights defined in the European Convention on Human Rights or in its Protocols(a Protocol to the Convention is a text which adds one or more rights to the original Convention or amends certain of its provisions. To date, 14 additional Protocols have been adopted).
The rights and freedoms secured by the Convention include the right to life, the right to a fair trial, the right to respect for private and family life, freedom of expression, freedom of thought, conscience and religion, and the protection of property. The Convention prohibits, in particular, torture and inhuman or degrading treatment or punishment, forced labour, arbitrary and unlawful detention, and discrimination in the enjoyment of the rights and freedoms secured by the Convention. The ECHR examines the case prior to deciding whether or not the rights protected under the Convention and its Protocols have been violated. In the case of the violation being confirmed, the Court defines the responsibility of the signatory state.
FactCheck requested from the Department of State Representation in International Courts of Human Rightsthe documentation depicting the number of cases of Georgian nationals brought before the ECHR and the number of judgments/decisions rendered against Georgia for the 2005-2013 time period. We focused our research upon this time period as the current judicial governance has its origins in the judicial reform of 2005.
The information provided by the Ministry of Justice of Georgiareveals that the ECHR has rendered 169 judgments/decisions related to Georgia in the 2005-2013 time period. Of them, only in 44 cases did the ECHR find the conventional rights to be violated.
As the major pathos and context of Nino Burjanadze’s statement was related solely to a fair trial, based upon the information received, we tried to check how many of those 44 cases had exposed an unfair treatment of Georgian nationals by Georgian courts and which could have resulted in the violation of the rights protected by the Convention or its Protocols. Such a case would be present if the ECHR defined the misuse of the right to liberty and security (Article 5) and/or the right to a fair trial (Article 6) as realisation of these rights depends upon the national courts.
It was ascertained through our research that the ECHR defined violation of Article 5 and/or Article 6 resulting from the conduct of the Georgian courts in sixof the 44 cases; this means that Georgian courts misused conventional rights only in six cases.
In order to create a clearer understanding of the matter, we present extracts from all of the judgments which were rendered on the applications submitted since 2005 and which point out the misuse of conventional rights by Georgian courts.
1 .CASE OF KAKABADZE AND OTHERS v. GEORGIA– the ECHR noted:
Paragraph 76: “The Court considers that the manner in which the President of the Tbilisi Court of Appeal heard the applicants’ case under Article 208 § 7 of the CCP – a cursory procedure conducted in private, on the basis of the court bailiffs’ written submissions only and without giving the applicants a chance to be heard – constituted a complete negation of the most elementary procedural requirements of a fair trial, such as the right to adversarial proceedings and equality of arms, the right to have adequate time and facilities for the preparation of a defence, the right to benefit from qualified legal assistance, and so on.”
2. CASE OF JANIASHVILI v. GEORGIA– the ECHR noted:
Paragraph 86: “The domestic courts failed in their obligation to establish convincingly the existence of specific facts justifying continued detention and to consider alternative non-custodial pre-trial restraint measures.”
3. CASE OF TCHITCHINADZE v. GEORGIA– the ECHR noted:
Paragraph 59: “The Court concludes that the quashing of the final decision of 18 November 2004, which infringed the principle of legal certainty and interfered with the applicant's right to the peaceful enjoyment of the Mazniashvili estate, was a misuse of the reopening procedure under Article 422 § 1 of the CCP, not being justified by circumstances of a substantial and compelling character, and that it imposed an excessive and disproportionate burden on the applicant.”
Paragraph 60: “There has accordingly been a violation of Article 6 § 1 of the Convention and Article 1 of Protocol No. 1.”
4. CASE OF SAGHINADZE AND OTHERS v. GEORGIA– the ECHR noted:
Paragraph 139: “The Tbilisi City Court […] acted without due diligence by issuing the decision on a template form containing pre-printed reasoning couched in abstract terms.”
5. CASE OF RAMISHVILI AND KOKHREIDZE v. GEORGIA– the ECHR noted:
Paragraph 134: “The judge was obviously aiding the prosecutor during the hearing.”
6. CASE OF KOBELYAN v. GEORGIA– the ECHR noted:
Paragraph 19: “Having regard to its case law on the subject, the Court considers that in the instant case the length of the proceedings was excessive and failed to meet the ‘reasonable time’ requirement.”
The CASE OF DADIANI AND MACHABELI v. GEORGIA and the CASE OF KVITSIANI v. GEORGIA were also related to the violation of Article 6. However, in these cases the ECHR defined the state’s responsibility due to non-enforcement of the binding judgments. According to Georgian legislation, enforcement of court judgments are to be carried out by the National Bureau of Enforcementwhich is the legal entity of public law under the governance of the Ministry of Justice of Georgia; accordingly, activities of this body are not related to judiciary.
The ECHR defined violation of Article 5 in the CASE OF GIGOLASHVILI v. GEORGIA.In this case, however, the problematic issue was the statutory lacuna in Georgian legislation and not the court’s unfair judgment.
In her interview, Nino Burjanadze particularly highlights the "Girgvliani Case" (CASE OF ENUKIDZE AND GIRGVLIANI v. GEORGIA)and states that this case, along with other critical judgments of ECHR, could serve as a foundation for the impeachment of the Chairman of the Supreme Court of Georgia. Due to this statement we considered it necessary to explore the aforementioned judgment of ECHR in detail and establish whether or not the Georgian Courts had misused conventional rights in this case.
In the Case of Enukidze and Girgvliani v. Georgia ECHR declared that articles 2 (Right to Life) and 38 (Examination of the case) had been violated and the respondent State was to pay the applicant the sum of EUR 50,388.
In this judgment ECHR noted, "the investigation conducted by the Ministry of the Interior [...]manifestly lacked the requisite independence and impartiality, which procedural deficiency prejudiced the subsequent developments in the investigation... the part of the investigation carried out by the Tbilisi City Prosecutor’s Office manifestly lacked the requisite thoroughness, objectivity and, most importantly, integrity... the applicants were arbitrarily denied the right to participate effectively in the judicial proceedings and that the conduct of those proceedings confirmed the domestic authorities’ manifest reluctance to uncover, in an objective and conclusive manner, the whole truth about the circumstances surrounding Sandro Girgvliani’s kidnapping and death on 28 January 2006."
Notwithstanding the above mentioned violations, ECHR did not define the violation of conventional rights by Georgian Courts and with this regard noted: "As to the complaint about the fairness of the civil proceedings, the Court notes that it was not properly elaborated, as the applicants failed to adduce any specific evidence in support of it. Consequently, this limb of the applicants’ complaints under Article 6 § 1 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention."
Conclusion Nino Burjanadze justly states that the ECHR has rendered tens of judgments related to Georgian nationals, in which it has underlined that state treated its citizens unfairly. However, as the context of this part of Nino Burjanadze’s interview is primarily related to the fairness of the Georgian Courts and the violations committed by them, this statement is inaccurate. Only six of the 44 judgments have established an unfair treatment on the part of the Georgian courts towards Georgian nationals, thus we conclude that Nino Burjanadze’s statement: “The European Court of Human Rights has rendered tens of judgments with regard to Georgian nationals in which it has underlined that the decision of the Georgian court was unjust and the state treated its citizens unfairly” is MOSTLY FALSE.
