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“Meždunarodnoe pravosudie” (International Justice) Journal

№ 1 (25) 2018

European Court of Human Rights: review of the Grand Chamber judgment of 28 November 2017 in the case of Merabishvili v. Georgia (application no. 72508/13)

DOI: 10.21128/2226-2059-2018-1-20-37

Abstract. The Grand Chamber judgment of the European Court of Human Rights in the case of Merabishvili v. Georgia concerns the arrest and pre-trial detention of a former Prime Minister of Georgia, which, as claimed by the applicant, pursued ulterior purposes. The Grand Chamber concluded that, notwithstanding that the arrest and pre-trial detention initially conformed to the Convention, a continuation of the detention based on insufficient grounds and its use by the Georgian authorities to obtain information from the applicant violated respectively Article 5 § 3 and Article 18 taken in conjunction with Article 5 § 1 of the Convention. In this case the Grand Chamber provided an overview of the prior case law on Article 18 of the Convention, confirming previously established points that although Article 18 cannot apply alone, it can be breached even if there is no violation of the Article in conjunction with which it is applied, and it can only be contravened if the Convention right which has been interfered with is subject to restrictions – that is, is qualified rather than absolute. Furthermore, the Grand Chamber specified in relation to the situations when a restrictive measure pursues a plurality of purposes – whether or not prescribed by the Convention – that this in itself does not constitute a breach and in such situations a predominant purpose needs to be established. Finally, as far as the standard of proof is concerned, complaints under Article 18 do not necessarily require the applicant to furnish “direct and incontrovertible proof” and can be substantiated by circumstantial evidence.

Keywords: right to liberty and security; deprivation of liberty; arrest; pre-trial detention; limitation on use of restrictions on rights; plurality of purposes; predominant purpose; ulterior purpose.

Citation: (2017) Evropeyskiy Sud po pravam cheloveka: obzor postanovleniya Bol'shoi Palaty ot 28 noyabrya 2017 goda po delu Merabishvili (Merabishvili) protiv Gruzii (zhaloba No. 72508/13) [European Court of Human Rights: review of the Grand Chamber judgement of 28 November 2017 in the case of Merabishvili v. Georgia (application no. 72508/13)]. Mezhdunarodnoe pravosudie, no. 1, pp. 20–37. (In Russian).

 
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