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GYLA About the April 26, 2011 Comment of the Ministry of Justice

28.04.2011

The Georgian Young Lawyers Association responds to the statement of the Ministry of Justice of Georgia about the verdict of the European Court on the case – Enukidze and Girgvliani VS Georgia. The GYLA thinks the state institutions of Georgia shall adequately evaluate and consider the verdict.

According to the GYLA, the fact that the European Court did not recognize violation of the Article 3 (prohibition of torture, inhuman and degrading treatment), Article 6 (right to fair trial) and Article 13 (availability of effective national institutions) of the European Convention, does not degrade the importance of the delivered verdict at all.

The European Court recognized violation of the most important – Article 2 (right to life) in this particular case. The Court concluded that independent, unbiased, impartial and complete investigation was not carried out on Sandro Girgvliani’s case at the national court.

The GYLA states that in the framework of the violation of the Article 2 of the Convention, the European Court discussed the shortcomings in the investigation process carried out by the MIA and Tbilisi Prosecutor’s Office as well as the mistakes made during the proceedings at the national courts. So, the court concluded that violation of the Article 6 was not necessarily to be discussed separately.

The ECHR did not consider it was necessary to recognize violation of the Article 3 and Article 13 separately for the same reason – the court discussed those issues when discussing the violation of the Article 2.

The GYLA underscores that similar approach of the European Court is not exceptional in its practice.

In addition, there is one important point in the ECHR Verdict – when discussing the responsibility of the state in the violation of the Article 2 with regard to Sandro Girgvliani, seven judges of the European Court had controversial opinions. Four of them (Tulkens, Zagrebelsky, Shao, ad hoc/interim judge Adeishvili) concluded that state was not responsible for Girgvliani’s murder. The other three (Baretto, Popovich and Yochien) thought the state was responsible for the crime and listed those concrete circumstances in the verdict which grounded their allegation about government’s presumable participation in abducting and killing of Girgvliani.

The European Court also recognized violation of the Article 38 of the Convention for improper cooperation of the Georgian government with the European Court. Despite many requests, the government of Georgia sent case materials to the European Court a year later and partly.

The GYLA again stresses out the importance of the ECHR Verdict delivered on April 26, 2011 and thinks that all corresponding government institutions should consider the remarks of the court in order to ensure the fundamental human rights when investigating similar cases at the national level.

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