AS TO THE ADMISSIBILITY OF
The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of:
Peer Lorenzen, President,
Nona Tsotsoria, judges,
and Claudia Westerdiek, Section Registrar,
Having deliberated in private on 16 April and 30 June 2009,
Delivers the following decision, which was adopted on the last mentioned date:
After an extension of the time-limit fixed for that purpose, the respondent Government submitted their observations, with annexes, on 26 December 2007.
There appeared before the Court:
– for the applicant Government
Ms T. Burjaliani, First Deputy Minister of Justice,
Mr L. Meskhoradze, Agent,
Ms S. Mezurnishvili,
Ms T. Tomashvili, Advisers;
– for the respondent
Mr G. Matyushkin, Deputy Minister of Justice, Representative,
Ms N.Y Zyabkina, First Deputy to the Representative,
Ms I.S. Koganova,
Mr E.A. Shipitsyn,
Ms Y.Y. Zimbalova,
Mr V.K. Ermakov,
Ms I.V. Volkhonskaya,
Mr A.Y. Rodin,
Mr D.P. Demidenko, Advisers.
The Court heard addresses by Mr Matyushkin and Ms Burjaliani.
I. THE CIRCUMSTANCES OF THE CASE
A. The general context
On 3 October 2006 the Russian Federation suspended all aerial, road, maritime, railway, postal and financial links with Georgia. These links were ultimately re-established from 21 April 2008.
B. The instant application
C. The parties' arguments as to the various allegations of violations of the Convention made by the applicant Government
1. The arrest and detention of Georgian nationals, allegedly in breach of Article 5 of the Convention, taken alone and in combination with each of Articles 13, 14 and 18 of the Convention
The applicant Government referred, in particular, to the instructions issued by the Heads of the Russian Directorate of Internal Affairs in September/October 2006 to certain schools and universities, for the purpose of identifying Georgian pupils and students, and to a letter sent in reply by the director of one of those establishments on 4 October 2006, indicating that the children had not been registered on the basis of their ethnic origin2. On the basis of the information thus obtained, police officers had apprehended the parents of the pupils in question, as well as students. In addition, many individuals were subjected to identity checks in markets, on the street, in churches, in the schools or kindergartens attended by their children and in their homes or workplaces, merely on account of their ethnic origin. In many cases, they were searched, taken to a police station and detained. Special forces and Russian police officers were responsible for carrying out these arrests, without any legal basis. The applicant Government referred in this connection to order no. 0215 of 30 September 2006 of the main directorate of internal affairs in Saint Petersburg, requiring local police units to submit daily reports to the Directorate's staff on the number of Georgian nationals detained, and to circular no. 849 of the Ministry of the Interior, requiring the immigration authorities to implement specific measures so as to facilitate the effective identification of Georgian nationals and their expulsion3. Some of those arrested in this way were accused of having obtained their papers fraudulently, while others had their identity papers torn up in front of them4.
2. The conditions of detention of the Georgian nationals, allegedly in breach of Article 3 of the Convention, taken alone and in combination with each of Articles 13, 14 and 18 of the Convention
The applicant Government referred, in particular, to the case of three individuals who had died and one individual whose health had seriously deteriorated as a result of the conditions of detention and lack of sufficient medical care. The first was Mr Teniz Togonidze, aged 58, who had been held in the Saint Petersburg detention centre and who suffered from chronic asthma. During his transfer by bus to Moscow with other Georgian nationals on 16 October 2006 for expulsion, the passengers had unsuccessfully requested the Russian police officers to open the windows, and had even been attacked by those officers. On arrival at the airport in Moscow on 17 October 2006, Mr Togonidze, whose condition had worsened, died as a result of an asthma attack8. Although Mr Togonidze had got off the bus at the request of the Georgian Consul, his death was clearly due to the conditions of detention and transportation. In addition, the applicant Government contested the post-mortem report submitted by the respondent Government. The second individual was Ms Manana Jabelia, who, in spite of the decision of 30 November 2006 of the Moscow Court of Appeal ordering her release, had been held in detention for a further two days before dying on the third day, no explanation being provided by the Russian authorities. The third person was Mr Zurab Muzashvili, who had been expelled from Russia and instructed to purchase a plane ticket from Moscow to Georgia. He died on 25 January 2007, on the eve of his flight; however, the serious health problems from which he suffered ought to have led the detention centre authorities to provide appropriate medical treatment. The fourth person was Ms Nato Shavshishvili – contrary to the submissions of the respondent Government, she had possessed a valid visa and had been the subject of administrative proceedings – who suffered an attack affecting the left side of her body in the morning while held in a detention centre, and who, in spite of the seriousness of her condition, received no medical assistance prior to her release that same evening.
As to the deceased or seriously ill individuals referred to by the applicant Government, the respondent Government submitted the following information: according to the post-mortem report, Mr Togonidze had died from a drugs overdose and had been under the responsibility of the Georgian Consul during the long period which had preceded his death; the latter had obliged Mr Togonidze to get off the bus which was taking the Georgian nationals to an airport in Moscow for deportation. With regard to Ms Jabelia, the detainees who shared her cell had stated that she was taken ill on 2 December 2006, although she had not previously complained about her health. The detention centre staff had immediately called an ambulance, but Ms Jabalia died when it arrived. According to the post-mortem report, her death had been due to a cardiovascular incident resulting from cardiac ischemia coupled with severe hypertension. As to Mr Muzashvili, he had apparently suffered a fresh bout of tuberculosis a few months before his placement in the Saratov detention centre for foreigners. According to statements by detainees held in the same cell, he complained of cardiac problems and had a persistent cough; he had been given medication, and an ambulance had been called when he had fallen ill. According to the post mortem report, his death had been a direct consequence of his serious state of health. The respondent Government emphasised that in all three cases, death had not resulted from external causes, but from chronic illnesses or the use of drugs, given that there had been no trace of violence. In all three cases, the federal authorities had carried out an in-depth and effective investigation into the causes of death. In addition, no complaint had been made by the relatives of the individuals concerned with regard to possible acts or omissions by the State. Finally, with regard to Ms Nato Shavshishvili, the respondent Government contested the events as related by the applicant Government, indicating that administrative proceedings had never been brought against her, nor had any administrative deportation order ever been issued against her. In this respect, they referred to the letter of 19 September 2007 from the Russian Federal Migration Service9.
3. The deportation orders issued against Georgian nationals, allegedly in violation of Article 4 of Protocol No. 4 and of Article 1 of Protocol No. 7, taken alone and in combination with each of Articles 13, 14 and 18 of the Convention
Further, these expulsions had been preceded by announcements and instructions from the Russian political authorities, directly targeting Georgian nationals, although the nationals of other States, even those who were illegally resident, had not been targeted by such measures. The Russian authorities had relied heavily on the mass media in support of this anti-Georgian policy: thus, in his report of 30 May 2007, the Special Rapporteur of the General Assembly of the United Nations cited the Russian mass media as one of the key sources for the spread of xenophobic documents12.
Furthermore, although in many instances the expulsion was based on a judicial decision, the conduct of the judicial proceedings ruled out any examination on the merits of each case13 : thus, the length of the hearings had frequently not exceeded five minutes, the persons concerned had not had an opportunity to set out their arguments - which was particularly prejudicial to those who possessed valid residence permits or whose papers had been damaged or thrown out by Russian officials or who had been obliged to confess that they were unlawfully present in Russia - and had sometimes not even had an opportunity to be present at their own hearing. In addition, many people had not had access to their case file, in certain cases the judges had insulted them on the basis of their Georgian nationality, and, finally, they were deported through a summary procedure without having been informed of their right to legal assistance by a lawyer or of their right to appeal. Finally, the very fact of having the Georgian nationals sign pre printed forms expressing the deported individuals' so called wish to waive their right to an appeal was an additional and cynical demonstration of the purely formal existence of domestic remedies – in reality, the Georgian nationals would have been ready to sign anything in order to escape their appalling conditions of detention. In general, there was no difference in treatment between immigrants who were lawfully resident in Russia and illegal immigrants, and the expulsion procedures had been in violation of the provisions of international law and the rights under the Convention of the individuals concerned.
Furthermore, during the first phase of the expulsion, the Georgian nationals had been transported in humiliating and degrading conditions, in cargo planes designed for carrying freight (merchandise, humanitarian materials and even corpses) rather than passengers14. These flights were conducted in disregard of basic security regulations: the majority of passengers, including young children, did not have a seat belt, and were obliged to use their luggage as seating.
According to the applicant Government, those Georgian nationals who had possessed valid visas and/or correct registration documents had, in addition, not had the benefit of the guarantees set out in Article 1 of Protocol No. 715.
With regard to Article 4 of Protocol No. 4, they indicated that in 2006 the Russian ordinary courts had dealt with administrative disputes concerning more than 7,500 Georgian nationals against whom an administrative measure ordering deportation from Russian territory had been taken. Some 200 judicial decisions had been the subject of appeals submitted by the Georgian nationals themselves. The respondent Government also submitted statistics indicating that in 2006, the highest number of administrate deportation measures (6,089) was issued in respect of nationals of Uzbekistan, followed by nationals of Tajikistan (4,960) and Georgian nationals (4,022) who, in reality, were only in third position16. In addition, even if one noted an increase in the number of Georgian nationals deported in the course of 2006, this had been in the order of 39.7%, and not 160% as alleged by the applicant Government. However, the respondent Government had available only annual statistics in this connection, and not monthly statistics. In any event, even if a sharp increase in expulsions was to observed over the past few years, the fact that these had concerned more particularly States such as Uzbekistan or Tajikistan showed that there had been no difference in treatment between illegal immigrants on the basis of their nationality. The respondent Government also contested the applicant Government's reference to the Special Rapporteur of the Assembly General of the United Nations17 in respect of the Russian authorities' alleged anti Georgian policy, and emphasised, on the contrary, that the Special Rapporteur had concluded in his Report that there was no State policy of racism or xenophobia in the Russian Federation. The increase in the number of deportations of Georgian nationals was explained primarily by the considerable influx of illegal immigrants from Georgia. Nonetheless, the policy followed in this regard by the Russian Federation was no different from that adopted by other European States with regard to controlling illegal immigration. Moreover, the expulsion of Georgian nationals had not been automatic: thus, from 1 October 2006 to 1 April 2007, only 24% of the Georgian nationals who had breached the regulations governing residence on Russian territory had been subject to an administrative expulsion order. In fact, although they had committed 11,030 administrative offences under Article 18.8 of the Code of Administrative Offences during this period, only 2,862 of them had been expelled18.
In addition, the administrative deportation of each Georgian national had been based on an individual decision taken after the most detailed examination of each individual's particular case by the Russian courts, in compliance with all the elements of due process, including the right of appeal against the judicial decision19. Yet none of them had lodged an appeal before the Russian appellate courts, and some had even signed declarations expressly waiving this right in order to be able to return to their country rapidly20.
Finally, the applicant Government had also failed to indicate the names of those Georgian nationals who had been deported in so-called “cargo planes”, and the dates and exact departure and arrival airports of those flights. For their part, the respondent Government submitted that aeroplanes from the Russian Ministry for Civil Defence had transported the Georgian nationals, at the request of the Georgian Embassy in Russia, for humanitarian reasons and in order to ensure their rapid repatriation to Georgia; the same aeroplanes had also been used to transport Russian nationals, including children, who were evacuated from Georgia to the Russian Federation, which demonstrated both the absence of discriminatory practice towards the Georgian nationals and satisfactory humanitarian and security conditions for those flights21.
As to Article 1 of Protocol No. 7, the respondent Government submitted that, with very few exceptions, all the Georgian nationals deported on the basis of an administrative decision as a result of court proceedings had been unlawfully resident on Russian territory: in reality, they had not possessed valid visas or registration documents, or adequate work permits. It followed that Article 1 of Protocol No. 7, which applied only to individuals who were lawfully resident in a State's territory, was not applicable in this case.
4. The other measures which allegedly entailed a violation of the rights guaranteed by the Convention
Furthermore, the arrangements for the arrest and detention of the Georgian nationals had frequently obliged them to abandon their possessions; the expulsion measures and the interruption of communications between the Russian Federation and Georgia had not enabled them subsequently to take the necessary steps to protect their property, thus giving rise to a violation of Article 1 of Protocol No. 1.
Finally, the closure of Russian schools in Georgia had deprived Georgian pupils of all access to education in the Russian language and was contrary to Article 2 of Protocol No. 1.
Without referring to particular Articles of the Convention, the applicant Government also asserted that many businesses belonging to Georgian nationals and situated in the Russian Federation had been monitored and subsequently closed by the Russian authorities – the applicant Government referred to a statement of 3 October 2006 by the Director of Economic Security, Russian Ministry of the Interior, in this connection22. In addition, well-known figures of Georgian origin had been subjected to harassment by the Russian authorities23. Finally, a large part of the Georgian community had been subjected to discriminatory measures (in particular, denial of medical treatment on account of their ethnic origin...).
As to Article 8, they indicated that, with regard to the first point, it was very difficult for the Russian courts to obtain information on the Georgian nationals' exact family situations, and pointed out that there did not exist, strictly speaking, a right to family reunion. As to the second point, they noted that while such requests for information may have been made by the Russian authorities, the responsible officials had subsequently been duly penalised24 (see paragraph 19 above).
With regard to Article 1 of Protocol No. 1, the Georgian nationals had not been deprived of their right of property and had had the opportunity to bring any proceedings concerning the possession and disposal of their property.
Finally, with regard to Article 2 of Protocol No. 1, the Russian schools in Georgia had been run by the Russian Ministry of Defence, and had been closed following the departure from Georgia of Russian military personnel.
As to the last point, the respondent Government claimed that the applicant Government had failed to indicate the names of the businesses whose professional activity had allegedly been suspended, and the names of the Georgian nationals who had been victims of discriminatory measures on the part of the Russian authorities.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution of the Russian Federation of 12 December 1993
B. The laws governing immigration and the particular situation of Georgian nationals
Since the entry into force on 29 October 2002 of the law on the legal status of foreign nationals, all citizens of the former USSR – including Georgian nationals – are required to regularise their situation by applying for a residence permit, although they were previously lawfully resident on Russian territory. Under sections 20 and 21 of that law, they must also submit a registration application to the local offices of the Russian Federal Migration Service, in order to obtain a registration certificate indicating their place of residence.
In addition, from 5 December 2000, following the denunciation of the Bishkek Agreement of 9 October 1992 on visa-free travel for the citizens of several member States of the CIS, including Georgia, all Georgian nationals are obliged to file a visa application in order to enter Russian territory.
C. The procedure for administrative deportation
REQUESTS BY THE PARTIES
“1. declare the application admissible and proceed to an examination of the merits, including, as necessary, an on-the-spot investigation of the facts;
2. hold that the Russian authorities have deliberately submitted misleading information and consequently reject all or part of their observations in application of Rule 44 (d);
3. hold that there has been a violation of Articles 3, 5, 8, 13, 14 and 18 of the Convention and of Articles 1 and 2 of Protocol No. 1, of Article 4 of Protocol No. 4 and of Article 1 of Protocol No. 7; and,
4. award it just satisfaction under Article 41, namely, compensation, reparation, damages, restitution in integrum, costs, expenses and further and other relief to be specified for all the pecuniary and non pecuniary damage suffered or incurred by the injured parties as a result of the violations and the pursuit of these proceedings.”
“1. declare inadmissible, in its entirety, the application 'Georgia v. Russia' alleging a violation, by the Russian Federation, of Articles 3, 5, 8, 13, 14 and 18 of the Convention, of Articles 1 and 2 of Protocol No. 1, of Article 4 of Protocol No. 4 and Article 1 of Protocol No. 7;
2. oblige Georgia to provide details with regard to the so-called victims of the violation of the rights guaranteed by the Convention and its Protocols and to confirm, with supporting evidence, the will and intention of the individuals in question to be represented before the European Court, and to prove the authenticity of their first names and surnames, or, failing this, to note the anonymous nature of the application and, consequently, its inadmissibility, in accordance with Article 35 § 2 (a) of the Convention;
3. oblige the Georgian authorities to give specific facts since, for the most part, the application merely contains general statements, without evidence, and does not refer to clearly identified individuals or to the violation of the rights allegedly sustained; and
4. oblige the Georgian authorities to provide copies of the relevant judgments and administrative decisions made in respect of the Georgian nationals in this question, since Rule 46 (g) of the Rules of Court provides that an inter-State application filed by a High Contracting Party must be accompanied by 'copies of any relevant documents and in particular the decisions, whether judicial or not, relating to the object of the application.”
I. OBJECT OF THE APPLICATION
II. ADMISSIBILITY CRITERIA LAID DOWN IN ARTICLE 35 § 1 OF THE CONVENTION
36. Article 35 § 1 of the Convention provides:
“1. The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
A. Arguments of the parties
1. The respondent Government
With regard to the first point, they alleged that the Georgian nationals and Georgian authorities had at their disposal effective remedies capable of guaranteeing protection of the rights and freedoms recognised by the Convention. In this connection, they referred both to the various Conventions on mutual legal assistance signed by Georgia and the Russian Federation and to the procedures under Russian law for appealing against administrative expulsion orders or decisions (see paragraphs 15 and 28 above). They also pointed to the examples of successful appeals lodged by Georgian nationals. However, the applicant Government had submitted no evidence that such appeals had been brought in practice by the alleged victims of violations of the Convention and that obstructions had been placed in their path by the Russian authorities. The respondent Government also challenged the applicant Government's allegations that there had been massive violations, targeted against Georgian nationals, and collective expulsions amounting to an administrative practice by the Russian authorities. This was a manoeuvre aimed at circumventing the rule on the exhaustion of domestic remedies, which was also applicable to inter-State applications. Furthermore, the applicant Government had not submitted sufficient evidence justifying an examination of the merits of the application, as the mere allegation of the existence of an administrative practice was insufficient in this respect.
As to the second point, the respondent Government alleged that the application had not been lodged within the six-month time-limit, in particular with regard to the statements by the nine Georgian nationals referred to for the first time by the applicant Government in their observations in reply of 5 May 2008.
Overall, the respondent Government considered that the application was manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, on the ground, in particular, that the applicant Government had not provided the necessary information that would make it possible to identify the presumed victims or to establish the particular circumstances of the alleged violations. Furthermore, the fact that the applicant Government had submitted inexact data or completely fabricated evidence amounted to an abuse of the right of petition.
2. The applicant Government
Finally, the applicant Government considered that the issue of compliance with the six-month rule did not arise, on the ground that there had been an ongoing violation of the rights guaranteed by the Convention and the Protocols thereto.
B. The Court's assessment
1. Compatibility with Article 35 § 1 of the Convention as regards the question of the existence of an administrative practice
“However, in accordance with the Commission's case-law on admissibility, it is not sufficient that the existence of an administrative practice is merely alleged. It is also necessary, in order to exclude the application of the rule requiring the exhaustion of domestic remedies, that the existence of the alleged practice is shown by means of substantial evidence ... .
The Commission finds that this condition is satisfied in the present case. It observes that the term 'substantial evidence', used in the First Greek Case, cannot be understood as meaning full proof. The question whether the existence of an administrative practice is established or not can only be determined after an examination of the merits. At the stage of admissibility prima facie evidence, while required, must also be considered as sufficient... There is prima facie evidence of an alleged administrative practice where the allegations concerning individual cases are sufficiently substantiated, considered as a whole and in the light of the submissions of both the applicant and the respondent Party. It is in this sense that the term 'substantial evidence' is to be understood.”
2. Compatibility with Article 35 § 1 of the Convention as regards the allegations of individual violations of the rights guaranteed by the Convention
Article 35 § 1 also provides for a distribution of the burden of proof. It is incumbent on the respondent Government claiming non-exhaustion to satisfy the Court that the remedies were effective and available in theory and in practice at the relevant time. Once this burden of proof has been discharged, however, it falls to the applicant – in this case to the applicant Government – to establish that the remedies or the aggregate remedies advanced by the respondent Government were in fact exhausted or were for some reason inadequate and ineffective in the particular circumstances of the case (see, inter alia, Akdivar and Others v. Turkey, 16 September 1996, § 68, Reports of Judgments and Decisions, 1996-IV, and Denmark v. Turkey, cited above).
FOR THESE REASONS, THE COURT, BY A MAJORITY,
Claudia Westerdiek Peer Lorenzen Registrar President
1 In its report of 22 January 2007 entitled “Current tensions between Georgia and Russia”, the Monitoring Committee of the Parliamentary Assembly of the Council of Europe also considered these events - see Annex 3.
2 See Annex 1, I.A, documents 14, 15 and 16.
3 See Annex 1, documents 25, 26 and 27, including in particular the instructions issued at the beginning of October 2006 of the heads of Saint Petersburg police departments and an information note of 18 October 2006 from the Federal Migration Service, based on those circulars.
4 See Annex 1, section I.C, a summary of the statements made by Georgian nationals.
5 See Annex 2, I., documents 7 and 12.
6 Thus, in October 2006 six officials from the internal affairs departments had been subjected to disciplinary procedures – see Annex 2, I., documents 9 and 12.
7 See Annex 1, I.C., summary of statements by Georgian nationals, submitted by the applicant Government.
8 See Annex 1, I.C., statements by Gerasim Gegushadze, Temur Tkhilaishvili and Demur Todua, and I.A., document 29.
9 See Annex 2, I., document 14.
10 See § 23 below, and Annex 2, I., document 28.
11 Figures submitted by the applicant Government at the hearing.
12 See the report of 30 May 2007 of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance (GE.07-12701).
13 See Annex 1, I.C., summary of the statements by Georgian nationals.
14 See Annex 1, I.C., summary of the statements by Georgian nationals.
15 See Annex 1, I.C., summary of the statements by Georgian nationals.
16 See Annex 3, documents 2 and 28.
17 See § 22 above.
18 Figures from the Russian Interior Ministry’s information centre.
19 For tables of police reports and expulsion orders by Russian courts of first instance, see Annex 2, II.
20 See Annex 2, I., document 4.
21 See Annex 3, document 3.
22 See Annex 1, I.A., documents 17 and 18.
23 See Annex 1, I.A., document 19.
24 See Annex 2, I., documents 9 and 12.
25 See Annex I.A., document 2E.