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GEORGIA v RUSSIA - 38263/08 [2011] ECHR 2175 (13 December 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/2175.html
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[2011] ECHR 2175
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FORMER
FIFTH SECTION
DECISION
Application no.
38263/08
by GEORGIA
against RUSSIA
The
European Court of Human Rights (Fifth Section), sitting on
13 December 2011 as a Chamber composed of:
Peer
Lorenzen,
President,
Karel
Jungwiert,
Anatoly
Kovler,
Isabelle
Berro-Lefèvre,
Mirjana
Lazarova Trajkovska,
Nona
Tsotsoria,
Zdravka
Kalaydjieva,
judges,
and
Claudia Westerdiek, Section
Registrar,
Having
deliberated in private on 22 September and 13 December 2011
Decided,
on the last-mentioned date, as follows:
PROCEDURE
Following
the outbreak of the armed conflict between Georgia and the Russian
Federation in August 2008, the Minister for Foreign Affairs of
Georgia informed the Secretary General of the Council of Europe on
10 August 2008 that on 9 August 2008 the President of Georgia
had used his powers under Articles 73(1) and 46(1) of the
Constitution and declared a state of war in the whole territory of
Georgia for fifteen days. He stated that no provision for derogation
from the rights guaranteed by the Convention for the Protection of
Human Rights and Fundamental Freedoms (“the Convention”)
had been made at that stage.
On
11 August 2008 Georgia requested the application of Rule 39 of the
Rules of Court (interim measures) against the Russian Federation.
That request was made in the context of an application (no. 38263/08)
against the Russian Federation lodged with the Court by Georgia under
Article 33 of the Convention.
The
Georgian Government (“the applicant Government”) were
represented by their Agent, Mr Levan Meskhoradze, having formerly
been represented by Mr David Tomadze.
The
Russian Government (“the respondent Government”) were
represented by their representative, Mr Georgy Matyushkin.
On
12 August 2008 the President of the Court, acting as President of
Chamber, decided to apply Rule 39 of the Rules, calling upon both the
High Contracting Parties concerned to honour their commitments under
the Convention, particularly in respect of Articles 2 and 3 of the
Convention. In accordance with Rule 39 § 3, he further requested
both Governments concerned to inform the Court of the measures taken
to ensure that the Convention was fully complied with.
The
applicant Government replied by letter of 21 August 2008 and the
respondent Government by letter of 22 August 2008.
On
26 August, 16 September, 6 October and 25 November 2008 the President
of the Chamber decided to extend the measure indicated under Rule 39
and to request additional information from the parties.
The
respondent Government replied by letters of 5 and 25 September 2008
and the applicant Government by letters of 8 and 26 September 2008.
On
6 February 2009 the Agent of the applicant Government lodged the
formal application and annexes with the Registrar of the Court.
The
applicant Government alleged that the Russian Federation had allowed
or caused an administrative practice to develop in violation of
Articles 2, 3, 5, 8 and 13 of the Convention, and of Articles 1 and 2
of Protocol No. 1 and of Article 2 of Protocol No. 4 through
indiscriminate and disproportionate attacks against civilians and
their property in the two autonomous regions of Georgia –
Abkhazia and South Ossetia – by the Russian army and/or the
separatist forces placed under their control. They alleged, further,
that despite the indication of interim measures the Russian
Federation continued to violate their obligations under the
Convention and, in particular, were in continuous breach of Articles
2 and 3 of the Convention.
On
27 March 2009 the President of the Chamber decided to communicate the
application to the respondent Government, inviting them to submit
observations on the admissibility of the complaints. After the
time-limit for doing so had been extended, the respondent Government
filed their observations on 7 October 2009.
On 9 October 2009 the applicant Government were
invited to submit their observations in reply. After the time-limit
for doing so had been extended, they filed their observations on 10
March 2010. The annexes were received on 22 March 2010.
On
6 September 2010 the President of the Chamber invited the respondent
Government to indicate to the Court whether they wished to submit
observations in reply. On 12 November 2010 the respondent Government
replied that they wished to reserve the possibility of submitting
observations at a later date if this were to become necessary in the
interests of international justice.
The
Court considered the state of the procedure on 25 January 2011 and
decided to obtain the oral observations of the parties on the
admissibility of the application. It set the date of the hearing for
16 June 2011 and also invited the parties to reply in writing to a
list of questions before the date of the hearing.
At
the request of the applicant Government, the Court decided on 3 May
2011 to adjourn the date of the hearing on admissibility and that of
the submission by the parties of their written observations regarding
the questions put by the Court.
On
13 and 15 June 2011 the parties filed their observations.
A
hearing was held in public in the Human Rights Building, Strasbourg,
on 22 September 2011 (Rule 51 § 5).
There appeared before the Court:
– for the applicant Government
Ms T. Burjaliani,
First Deputy Minister of Justice,
Mr L. Meskhoradze, Agent,
Mr B.
Emmerson QC, Counsel,
Mr A. Clapham,
Ms N. Tsereteli,
Advisers;
– for the respondent
Government
M. G. Matyushkin, Deputy Minister for
Justice, Representative,
Mr M. Swainston
QC,
Mr M. Mendelson QC,
Mr K. Ivanyan, Counsel,
Mr P. Wright,
Mr S. Midwinter,
Ms M. Lester,
Mr M. Chamberlain,
Mr E.
Harrison
Mr V. Torkanovskiy
Ms
M. Andreasyan,
Mr N. Mikhaylov,
Mr M. Kulakhmetov,
Mr P. Smirnov,
Mr A. Drymanov,
Mr O. Mikhaylov,
Ms V. Utkina,
Mr S. Lagutkin, Advisers.
The
Court heard addresses by Mr Matyushkin and Mr Swainston and by
Ms Burjaliani and Mr Emmerson.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The general context
The
present application was lodged in the context of the armed conflict
that occurred between Georgia and the Russian Federation in August
2008 following an extended period of ever-mounting tensions,
provocations and incidents that opposed the two countries.
In its report of September 2009 the Independent
International Fact Finding Mission on the Conflict in Georgia
(hereafter “the International Fact-Finding Mission”),
established by a decision of 2 December 2008 of the Council of
the European Union, summarised the events in question as follows:
“On the night of 7 to 8 August 2008, a sustained
Georgian artillery attack struck the town of Tskhinvali. Other
movements of the Georgian armed forces targeting Tskhinvali and the
surrounding areas were under way, and soon the fighting involved
Russian, South Ossetian and Abkhaz military units and armed elements.
It did not take long, however, before the Georgian advance into South
Ossetia was stopped. In a counter-movement, Russian armed forces,
covered by air strikes and by elements of its Black Sea fleet,
penetrated deep into Georgia, cutting across the country’s main
east-west road, reaching the port of Poti and stopping short of
Georgia’s capital city, Tbilisi. The confrontation developed
into a combined inter-state and intra-state conflict, opposing
Georgian and Russian forces at one level of confrontation as well as
South Ossetians together with Abkhaz fighters and the Georgians at
another ... Then another theatre of hostility opened on the western
flank, where Abkhaz forces supported by Russian forces took the upper
Kodori Valley, meeting with little Georgian resistance. After five
days of fighting, a ceasefire agreement was negotiated on 12 August
2008 between Russian President Dmitry Medvedev, Georgian President
Mikheil Saakashvili and French President Nicolas Sarkozy, the latter
acting on behalf of the European Union.”
By
a decree of 26 August 2008 the Russian President, Dmitry Medvedev,
recognised South Ossetia and Abkhazia as independent States following
an unanimous vote of the Russian Federal Assembly to that end. That
recognition was not followed by the international community.
B. The present application
The applicant Government submitted that, in the course
of indiscriminate and disproportionate attacks by Russian forces
and/or by the separatist forces under their control, hundreds of
civilians were injured, killed, detained or went missing, thousands
of civilians had their property and homes destroyed and over 300,000
people were forced to leave Abkhazia and South Ossetia.
In their submission, those consequences and the subsequent lack of
any investigation engaged the Russian Federation’s
responsibility under Articles 2, 3, 5, 8 and 13 of the Convention,
Articles 1 and 2 of Protocol No. 1 to the Convention and Article 2 of
Protocol No. 4 to the Convention.
The
respondent Government denied the applicant Government’s
allegations, which they considered to be baseless, unjustified and
unconfirmed by any admissible evidence. They maintained that the
applicant Government had deliberately distorted the facts when they
referred to indiscriminate and disproportionate attacks by Russian
forces and/or the separatist forces under their control. In actual
fact, they argued, the armed forces of the Russian Federation had not
launched an attack, but, on the contrary, had defended the civilian
population of South Ossetia against Georgian attacks.
C. Particulars submitted by the applicant Government
In
their application, the applicant Government provided the following
particulars regarding how the events in question had unfolded,
supported by, among other things, the reports by non-governmental
organisations and international organisations appended in the annex.
These particulars may be summarised as follows.
1. Extent of the control exercised by the Russian
Federation over the territories of South Ossetia and Abkhazia
In
the applicant Government’s submission, there was no doubt that
the Russian Federation exercised authority and/or effective control
over the territories of South Ossetia and Abkhazia at the time when
they committed the acts complained of in the present application. The
size of the region subject to the authority and/or effective control
of the Russian Federation had increased further when the Russian
forces occupied major parts of Georgia, including areas situated
beyond the territories mentioned above and including the “buffer
zone”. At the time when they lodged their application, after
the withdrawal of the Russian forces on 8 October 2008, the Russian
Federation were still in occupation, exercising authority and/or
effective control over the autonomous regions of Abkhazia and South
Ossetia and over territories which formed part of Georgia proper,
namely, Upper Abkhazia, the Akhalgori District and the village of
Perevi (Sachkhere District). It continued to exercise that
authority and/or effective control both directly, through its armed
forces, and indirectly, through control of its agents, namely, the de
facto authorities and the South Ossetian and Abkhaz separatist
armed forces.
The
applicant Government alleged that the Abkhaz and South Ossetian
military formations had not independently controlled, directed or
implemented the military operations during either the armed conflict
or the occupation periods. Rather, those military formations had
acted as agents or de facto organs of the Russian Federation
and as such constituted a simple continuation of the Russian armed
forces. Acts perpetrated by the Abkhaz and South Ossetian illegal
military formations had been either directed and controlled by the
Russian armed forces, or facilitated by essential support from the
Russian Federation, or legitimised through a policy of tacit
acquiescence on the latter’s part. The entire scheme, strategy
and policy pursuant to which the military operations had been
conducted had derived from the Russian Federation as architect,
controller, instructor and executor of the military operations.
2. Alleged violations of the Convention
(a) Under Article 2 of the Convention
The
applicant Government submitted that the respondent Government had
failed to comply with their substantive obligations under Article 2
during the armed conflict and subsequent occupation and also with
their procedural obligations. They indicated that a total of 228
civilians had been killed and 547 wounded.
Firstly,
during the attacks carried out by the Russian forces and/or South
Ossetian or Abkhaz militias acting under their orders, no distinction
had been made between combatants and civilians; by indiscriminately
bombing and shelling areas which were not legitimate military
targets, and by using means of warfare such as landmines and cluster
bombs, the respondent Government had failed to take sufficient
precautions to protect the lives of the civilian population. The
applicant Government referred to examples of indiscriminate and
disproportionate aerial bomb attacks and rocket and tank attacks on
civilian convoys and/or Georgian villages during which many civilians
had died.
They also cited cases of cluster bombs being dropped by the Russian
forces on Georgian villages.
Similarly, during the period of occupation, the respondent Government
had been under a duty to prevent arbitrary executions and ensure the
well-being of civilians in the areas under their control. There had,
however, been at least 67 cases of arbitrary executions carried out
by the Russian forces and/or the separatists acting under their
control.
Furthermore, there had been many lethal attacks against civilians
carried out by Ossetian militias and armed criminals in areas under
Russian control during that period.
Lastly,
the respondent Government had not carried out an adequate and
effective investigation into the attacks against civilians.
(b) Under Article 3 of the Convention
According
to the applicant Government, the respondent Government had also
failed to comply with their substantive and procedural obligations
under Article 3.
Thus,
many Georgian civilians had been ill-treated and tortured by the
South Ossetian militias during the armed conflict and subsequent
occupation.
At least fifty incidents of torture had been
reported.
They alleged, further, that members of the Russian armed
forces or separatist forces acting under their control had raped
civilians.
Lastly, about 160 civilians, most of whom were elderly, had been
held in detention by the de facto South Ossetian authorities
before being transferred to the Georgian authorities between 19 and
27 August 2008. They had frequently been verbally abused and had been
given neither bedding nor blankets nor any basic nutrition. The
youngest among them had been beaten and forced to clear debris from
the streets of Tskhinvali for no payment whatsoever. Many civilians
had also been held in the basement of the Ossetian Ministry of the
Interior building in Tskhinvali in degrading conditions:
overcrowding, insufficient food and water, no electricity, verbal
abuse, forced labour without compensation, beatings of detainees and
inadequate toilet facilities.
Besides that, ill-treatment had also been meted out to Georgian
soldiers who were no longer taking an active part in the hostilities:
some thirty soldiers had been beaten with rifles, burnt with
cigarettes and cigarette lighters, and subjected to electric shocks,
and at least thirteen soldiers had suffered injuries from severe
beatings and acts of torture during their detention by Ossetian
military and police forces between 8 and 19 August 2008.
Many former soldiers continued to suffer severe trauma as a result of
their ordeal.
The
respondent Government had failed to carry out an adequate and
effective investigation into the ill-treatment inflicted during the
conflict and subsequent occupation.
(c) Under Article 5 of the Convention
The
applicant Government submitted that approximately 160 civilians,
including 40 women, had been illegally captured by the Russian armed
forces and/or separatist militia under their control and held for up
to fifteen days in some cases (see paragraph 29 above). They also
submitted witness accounts of their conditions of arrest and
detention. The Russian soldiers had directly participated in the
interrogation and supervision of detainees at the Tskhinvali
detention centre.
Those detentions were clearly illegal in so far as the detainees, who
were mainly old people and women, had posed no security threat
whatsoever.
(d) Under Article 8 of the Convention and
Article 1 of Protocol No. 1
The applicant Government submitted that the Russian
armed forces and/or separatist forces operating under their control
had systematically looted and burnt property in entire civilian
villages, expelling the inhabitants and refusing to this day to allow
them to return home.
They listed the villages in which the systematic
looting and burning had occurred.
The practice had continued on a large scale for several weeks after
the formal cessation of hostilities, with the Russian authorities
failing in their duty to prevent human rights abuses being carried
out by South Ossetian forces and militia units. Residents had
described the looting as occurring on some occasions just after the
bombing ceased and on other occasions after the ceasefire of 12
August 2008. Usually Russian tanks had arrived in the village and
armed South Ossetian militias, together with Ossetian civilians, had
entered houses and shops threatening villagers in the event of
protest, stealing furniture and livestock, and then setting fire to
the houses. The Russian forces had either just let them do so or
joined in with the South Ossetian militias, sharing the plunder from
houses and burning what they could not take away.
The
applicant Government estimated that the damage caused by the
deliberate burning of property and by the indiscriminate bombing and
shelling in the areas invaded and occupied by the Russian armed
forces was considerable. Between 300 and 500 houses had been
deliberately burnt in the “buffer zone” proclaimed by the
Russian Federation and 2,000 houses had been otherwise damaged during
the conflict.
(e) Under Article 2 of Protocol No. 1
The applicant Government pointed out that since
Russia’s military invasion of Georgia in August 2008 education
in schools located in the occupied territories of Abkhazia and South
Ossetia had been severely disrupted. Acts of violence by Russian
troops and separatist forces, such as the destruction and looting of
schools and libraries, and threats to school staff and pupils, had
led to children of school age being partially or fully impeded from
continuing their education in those territories.
Thus,
of the thirty-five schools registered in South Ossetia that provided
schooling, twenty-nine could no longer operate. Of the nine schools
operating in Abkhazia, none could continue functioning. Furthermore,
instruction in Georgian was forbidden.
(f) Under Article 2 of Protocol No. 4
The
applicant Government alleged that the Russian Federation, together
with the separatist forces acting under their control, had imposed
illegal restrictions on civilians’ freedom of movement and
right to choose their residence during the recent armed conflict and
subsequent occupation.
The
Russian Federation had instituted a widespread practice of
restricting civilians’ freedom of movement in the vicinity of
the Abkhaz and South Ossetian borders. Thus, over 23,000 civilians
had been displaced and prevented from returning home.
Furthermore, since the armed conflict of 2008, the Russian forces had
been arbitrarily opening and closing the administrative border
between the Gali district in Abkhazia and the rest of Georgia, thus
isolating entire villages. Accordingly, some 42,000 civilians had
been prevented from moving freely between the Gali district and
Zugdidi in order to obtain food and basic supplies.
(g) Under Article 13 of the Convention
The
applicant Government submitted that the Russian Federation had not
paid any reparations to the victims of the 2008 armed conflict. Nor
had they conducted an investigation into the circumstances
surrounding the events giving rise to the allegations referred to
above. This was so despite widespread media and non-governmental
reports of human rights abuses at the hands of Russian forces and
separatist forces under their control suffered by civilians and
soldiers no longer taking part in the hostilities.
Nor was there any evidence that the Russian Federation had
established a system for dealing with complaints about the conduct of
their armed forces or the separatist militias.
D. Position of the respondent Government
In reply, the respondent Government gave their version
of the facts regarding the events in question, referring, inter
alia, to the same reports by international organisations as the
applicant Government. The particulars submitted by the respondent
Government may be summarised as follows.
1. The course of the conflict
The
respondent Government submitted that the conflict and ethnic
antagonism on which Georgia based the present allegations were a
direct consequence of Georgia’s armed attack on Tskhinvali and
the civilians living there during the night of 7 to 8 August 2008.
In
their submission, during the period prior to the conflict and, in
particular, during the armed conflict itself in August 2008 the
Georgian authorities had treated inhabitants of the Republic of South
Ossetia who did not have Georgian nationality as enemies and,
accordingly, a threat to the State. These people had had to take
steps to protect themselves from the Georgian State. Russian soldiers
from the peacekeeping force, who were legally – and with
Georgia’s consent – inside the conflict zone, had also
been the subject of surprise attacks by Georgia. Faced with those
illegal attacks, the Russian Federation had been compelled to use
force in full compliance with the principles and rules of
international law governing the State’s right to legitimate
self-defence. The military operation had been strictly proportionate
to the aim pursued, namely, putting an end to the attack by Georgia
and ensuring that the latter did not resume military operations. It
had lasted a very short time (from 8 to 20 August 2008) and had ended
as soon as that objective had been attained.
Moreover,
Georgia’s attack on Russian soldiers from the peacekeeping
force and the peaceful South Ossetian population, and the triggering
of hostilities by Georgia, had been confirmed by the International
Fact-Finding Mission.
The latter had also stressed the unlawfulness of the use of force by
the Georgian army.
2. Situation in the territories of South Ossetia and
Abkhazia
The respondent Government observed that the
independence movements and governments in Abkhazia and South Ossetia
were in no way recent or artificial. Nor could they be dismissed as
instruments of the Russian Federation. They were long-standing
movements representing the genuine, historic and democratically
expressed wills of their peoples. The applicant Government had not
submitted any convincing argument to the contrary effect.
They
stated that during the conflict the Russian army had not occupied the
territories on which they had circulated in South Ossetia, Abkhazia
or Georgia. It had confined its actions to responding to the Georgian
threat and had predominantly been at the front line, or in transit to
and from the front line, or securing supply lines. Moreover, during
the period of active conflict and afterwards, the forces of South
Ossetia and Abkhazia had not constituted part of the Russian military
or peacekeeping forces. They had acted independently without
authorisation or assistance from the Russian military command, which
had been focused entirely on achieving its military mission using its
own forces. The applicant Government’s allegations that the
actions by the Russian armed forces and the separatist militia had
been “coordinated and coherent” were either
unsubstantiated or contradicted by the reports by Human Rights Watch,
Amnesty International and the Office for Democratic Institutions and
Human Rights (ODIHR) of the OSCE.
According
to the respondent Government, one of the major causes of the Georgian
attack on Tskhinvali, and its earlier provocations, was the lack of
any possibility of peaceful coexistence between Georgian and Ossetian
peoples in the region. The attack had further exacerbated those
tensions by causing massive civil unrest during which Ossetians had
attacked villages and Georgian homes. Given the terrain, and the fact
that Georgian and Ossetian villages were often next to one another,
and that people from both groups occupied some mixed villages, such
attacks, which could come at any time, were impossible to prevent.
In
the respondent Government’s submission, the Russian forces had
in fact been caught in a stranglehold in the ethnic conflicts. They
had, however, sometimes attempted to intervene when they had
witnessed such attacks and were in a position to do so in accordance
with the military purposes behind their presence in the region.
Indeed, the evidence produced by the applicant Government purportedly
in support of their application contained many references to
protective steps taken by Russian soldiers to assist Georgian people.
The respondent Government also referred in that connection to the
reports by Human Rights Watch, Amnesty International and the ODIHR
in which there appeared numerous examples of Russian soldiers
attempting to protect civilians against Ossetian militia members or
criminals. Those factors clearly contradicted allegations of
participation by Russian soldiers in any orchestrated “ethnic
cleansing” campaign against Georgian civilians.
3. Consequences
The
respondent Government submitted that the Georgian attack on South
Ossetia had resulted in 64 deaths on the Russian side, including
12 members of the peacekeeping forces and at least 323 wounded.
The death toll among civilians had reached about 1,500. Many
thousands of South Ossetians had lost their homes and been deprived
of water and food. Over four days 35,000 refugees had crossed the
Russian border.
II. RELEVANT DOMESTIC AND INTERNATIONAL LAW AND PRACTICE
A. Russian law (as cited by the respondent Government
in their observations)
Under
Article 140 of the Code of Criminal Procedure of the Russian
Federation (hereafter “the CCP of the Russian Federation”),
a complaint that an offence has been committed constitutes a ground
for instituting criminal proceedings. The requirements for reporting
an offence are set forth in Article 141 of the CCP of the Russian
Federation (reporting of an offence), which provides:
“1. An offence may be reported orally
or in writing.
2. Any written statement relating to an
offence shall be signed by the person making the statement.
3. Any oral statement relating to an offence
shall be noted down in an official record, which shall be signed by
the person making the statement and the person receiving it. The
official record shall contain details of the person making the
statement and of the identity documents submitted.
4. Where an offence is reported orally during
an investigation or judicial proceedings, the statement shall be
entered in the record of investigation or record of trial
accordingly.
5. Where the person making the statement
cannot be present when the record is drawn up, it shall be
officialised in accordance with the procedure provided for in Article
143 of the present Code.
6. The person making the statement shall be
warned that, in accordance with Article 306 of the Criminal Code of
the Russian Federation, he or she will be held criminally responsible
for knowingly making an untrue statement. A note to that effect,
certified by the signature of the person making the statement, shall
be attached to the file.
7. Criminal proceedings shall not be
instituted where an offence is reported anonymously.”
In
addition to that, Article 144 of the CCP of the Russian Federation
sets out the procedure for verifying a statement relating to an
offence. It contains the following provisions in particular:
“1. A petty-crimes investigator
(дознаватель),
petty-crimes investigating body, serious-crimes investigator
(следователь)
or head of a serious-crimes investigating body shall accept and
verify any statement relating to an offence that has been committed
or is about to be committed and take a decision regarding any
statement that falls within the scope of their powers, as defined in
the present Code, at the latest three days after receipt of the
statement. When verifying a statement relating to an offence the
petty-crimes investigating body, petty-crimes investigator,
serious-crimes investigator or head of the serious-crimes
investigating body may request the communication and verification of
documents and call on the services of specialists.
2. Any statement relating to an offence
reported by the media shall be verified by a petty-crimes
investigating body at the request of the prosecutor, or by a
serious-crimes investigator at the request of the head of a
serious-crimes investigating body. At the request of a prosecutor or
a serious-crimes investigator or investigating body, the journalists
and editor of the news medium concerned must communicate documents
and other evidence in their possession confirming the statement
relating to the offence and information about the person making the
statement, save where the person in question has requested that the
sources remain secret.
3. The head of a serious-crimes
investigating body or petty-crimes investigating body may, at the
official request of a serious-crimes or petty-crimes investigator,
extend up to ten days the time-limit stipulated in paragraph 1 of
this Article, and where it is necessary to request the communication
or verification of documents, the head of a serious-crimes
investigating body, at the official request of a serious-crimes
investigator, and the prosecutor, at the official request of a
petty-crimes investigator, may extend the time-limit up to thirty
days.
4. The person making the statement shall be
issued with a document confirming acceptance thereof and containing
the name of the officer accepting it and the date and time of
acceptance.
5. A refusal to accept a statement relating
to an offence may be appealed to a prosecutor or court, in accordance
with the procedure set forth in Articles 124 and 125 of the present
Code.
6. A statement made by a victim or his or her
legal representative in the context of a private prosecution
instituted before a court shall be examined by a judge in accordance
with Article 318 of the present Code. In the cases envisaged under
Article 147 (paragraph 4) of the present Code, such statements
shall be verified in accordance with the rules set forth in the
present Article (paragraph 6, as amended by Federal Law no. 47-FZ of
12 April 2007).
Article
145 of the CCP of the Russian Federation provides:
“1. After a statement relating to an
offence has been verified, the petty-crimes investigating body or
investigator or the serious-crimes investigator or head of the
serious-crimes investigating body shall take one of the following
decisions:
to
institute criminal proceedings under Article 146 of the present
Code;
to
refuse to institute criminal proceedings;
to
refer the statement to the proper investigating body under Article
151 of the present Code and, in the event of a private prosecution,
to the proper court under Article 20 (paragraph 2) of the present
Code.
2. The person making the statement shall be
notified of the decision taken. He or she shall be informed of his or
her right to challenge the decision and the procedure for doing so.
3. Where a decision is taken under
sub-paragraph 3 of paragraph 1 above, the investigating department,
petty-crimes or serious-crimes investigator or head of the
serious-crimes investigating body shall take measures to preserve the
traces of the offence.”
Article
42 § 1 of the CCP of the Russian Federation provides that any
physical person who has suffered bodily injury or pecuniary or
non-pecuniary damage arising out of an offence and any legal person
whose property and goodwill has been damaged as a result of an
offence shall be regarded as a victim of the offence in question. The
status of victim is officially recognised by decision of the
investigator, the prosecutor or a court. Under sub-paragraph 8 of
paragraph 1 of this Article, the victim is entitled to
representation. An application for recognition of victim status must
be made to an investigator giving details of the damage sustained.
In accordance with the Constitutional Court of the
Russian Federation’s interpretation of the provisions of
Article 42 of the CCP (see, inter alia, decision no. 131-O of
18 January 2005), in order to confer victim status on a person the
investigator must establish that damage has been incurred as a result
of an offence, which is possible only in the context of an
investigation opened under Article 144 of the CCP of the Russian
Federation in accordance with the procedure determined in Article 140
of the CCP of the Russian Federation.
Furthermore,
Article 46 of the Constitution of the Russian Federation guarantees
judicial protection to everyone. The decisions and acts (or
omissions) of State bodies and civil servants are subject to appeal
to a court. Article 125 of the CCP of the Russian Federation
enshrines the relevant constitutional provision in the criminal law
by providing for an appeal against the acts and decisions of the
investigating authorities.
B. The decision of the International Court of Justice
By
an Order of 15 October 2008 the International Court of Justice (ICJ),
reminding the Parties [Georgia and the Russian Federation] of their
duty to comply with their obligations under the International
Convention on the Elimination of All Forms of Racial Discrimination
(ICEFRD), indicated the following provisional measures (by eight
votes to seven): Both Parties, within South Ossetia and Abkhazia and
adjacent areas in Georgia, shall refrain from any act of racial
discrimination and abstain from sponsoring, defending or supporting
such acts; refrain from placing any impediment to humanitarian
assistance; and refrain from any action which might prejudice the
rights of the other Party or which might aggravate or extend the
dispute.
In
a judgment of 1 April 2011 the ICJ upheld, by ten votes to six, the
preliminary objection raised by the Russian Federation according to
which Georgia could not have recourse to the ICJ because it had
failed to meet two procedural preconditions provided for in Article
22 of CERD, namely, negotiations and referral to procedures expressly
provided for in the Convention. Accordingly, the ICJ concluded that
it did not have jurisdiction to entertain the application lodged by
Georgia on 12 August 2008.
REQUESTS BY THE PARTIES
In
their application and observations in reply the applicant Government
asked the Court to hold
“A. Admissibility
a. That the
Court has jurisdiction in this case as the complaints fall within the
proper scope of Article 1 of the Convention;
b. That the Applicant [State’s]
complaints are admissible as the rule regarding exhaustion of
domestic remedies does not apply in these proceedings. This is
because the alleged violations are part of a repetitive pattern of
acts incompatible with the Convention which have been the subject of
official tolerance by the Russian authorities;
c. Alternatively,
that the Applicant [State’s] complaints are admissible as the
injured parties have exhausted domestic remedies to the extent that
it is possible to do so;
d. That the
claim has been submitted within the six-month time-limit.
B. Merits
That Russia has violated Articles 2, 3, 5, 8 and
13 of the Convention, Articles 1 and 2 of Protocol 1 to the
Convention and Article 2 of Protocol 4 to the Convention and has
failed to carry out investigations into the incidents forming the
basis of these violations;
C. Remedy
That the Applicant State is entitled to just
satisfaction for these violations requiring the institution of
Convention-compliant investigations, remedial measures and
compensation to the injured party.”
The
applicant Government also pointed out “that specific complaints
regarding the targeting of these attacks against civilians of ethnic
Georgian origin could also have been properly advanced on the facts
of this case pursuant to articles 8 and 14 of the Convention,
articles 1 and 2 of Protocol 1 to the Convention and Article 2
of Protocol 4 to the Convention. The Applicant State has not invited
the Court to consider such complaints at this juncture as the
approach which has been adopted is not to include matters in this
application which are properly ventilated in the concurrent
proceedings before the International Court of Justice relating to the
1965 International Convention on the Elimination of All Forms of
Racial Discrimination (CERD). Should it become necessary to do so,
the Applicant State reserves the right to seek permission to amend
this Application to include those matters at a later stage.”
In
their latest observations in response to the questions put by the
Court, the respondent Government submitted that the application
lodged by the applicant Government was inadmissible and unfounded for
the following reasons:
“As a matter of law, the application falls
outside the Court’s jurisdiction under the European Convention
on Human Rights (“the Convention”) and relates to matters
which are not properly the subject of the Convention, or of
determination by the Court.
The allegations made by the Government of Georgia, and
the evidence provided in support, could not begin to establish the
necessary elements of jurisdiction on the part of the Russian
Federation under Article 1 of the Convention.
Even if jurisdiction were capable of being established,
the allegations and evidence put forward by the Government of Georgia
do not reach the threshold level required to sustain admissibility,
because
a) The materials relied upon, taken as a whole, do not
support the case put forward by Georgia;
b) The allegations and materials do not cover, or
sufficiently support, what would be necessary elements of the
Georgian case, in particular concerning alleged responsibility of the
Russian Federation for any breaches of the Convention.
c) It follows that the application is wholly
unsubstantiated.”
THE LAW
In
their written and oral observations, the respondent Government raised
a number of grounds of inadmissibility of the application. The Court
will examine these below.
I. JURISDICTION AND RESPONSIBILITY OF THE RESPONDENT
GOVERNMENT REGARDING THE ACTS COMPLAINED OF BY THE APPLICANT
GOVERNMENT
Article
1 of the Convention provides:
“The High Contracting Parties shall secure to
everyone within their jurisdiction the rights and freedoms defined in
Section I of [the] Convention.”
A. The parties’ submissions
1. The respondent Government
The
respondent Government argued, as their principal submission, that the
alleged violations of the Convention did not fall within the
jurisdiction of the Russian Federation on a correct interpretation of
Article 1 of the Convention. In their view, the jurisdiction of a
State within the meaning of that Article was based on the principle
of territoriality. It did not extend beyond the national territory of
a State Party unless this had been voluntarily extended by that State
Party under Article 56.
In
the alternative, the extension of jurisdiction within the meaning of
Article 1 beyond the national territory of a State Party, where the
latter has taken no decision to that effect, could be effective only
in exceptional cases in which the relevant State exercised “effective
control” over the area in question, which was not the case
here.
In
the further alternative, such jurisdiction could not be extended to a
short-term situation of military operations abroad during and in the
immediate aftermath of an international armed conflict such as had
occurred here, or to a situation in which the territory was
controlled by a de facto government supported by a State Party
but which was not an organ or instrument of that State Party.
The
allegations that the Russian Federation supported the separatist
governments in Abkhazia and South Ossetia were therefore insufficient
to establish jurisdiction within the meaning of Article 1. In that
connection the respondent Government distinguished the present case
from the cases of Loizidou v. Turkey ((preliminary objections)
[GC], 23 March 1995, Series A no. 310) and Cyprus v. Turkey
[GC], no. 25781/94, ECHR 2001 IV), in which there had been
long-term annexation and occupation of a territory and from the case
of Al-Skeini and Others v. the United Kingdom ([GC],
no. 55721/07, 7 July 2011 ECHR 2011-...),
in which the United Kingdom had exercised some of the public powers,
in particular in south-east Iraq. In the present case the Russian
Federation had, on the contrary, not occupied or administered South
Ossetia or Abkhazia, but carried out a military operation that had
been fully justified under public international law and limited in
time (from 8 to 20 August 2008), for the purposes of protecting
Russian soldiers of the peacekeeping force and civilians.
The
respondent Government also invited the Court to return to the more
traditional approach followed in the case of Banković and
Others v. Belgium and 16 Other Contracting States ((dec.) [GC],
no. 52207/99, ECHR 2001 XII), rather than the approach
followed in the cases of Issa and Others v. Turkey (no.
31821/96, 16 November 2004) and Al-Skeini, cited above, in
which the Court had interpreted the Convention as if it had received
a “blank cheque” from the Contracting States.
The
respondent Government stated that if, contrary to their submissions,
Georgia’s allegations were in principle sufficient to establish
jurisdiction, they disputed those allegations and would contest them
on the facts when the case was examined on the merits.
2. The applicant Government
The
applicant Government argued, as their principal submission, that the
respondent Government’s jurisdiction under Article 1 of the
Convention extended to the regions in which the alleged violations
had been committed because they exercised “effective control”
over those regions directly, through their forces, and through a
subordinate local administration which survived as a result of the
respondent Government’s political, economic and military
support. In the present case the incursion of Russian troops into
Georgian territory, their participation in the hostilities of August
2008 and the progressive occupation of South Ossetia and Abkhazia
after the cessation of hostilities and the withdrawal of Georgian
troops had been evidenced by numerous reports by independent
international organisations.
Furthermore, given the degree of subordination of the separatist
authorities in South Ossetia and Abkhazia to the Russian Federation
those de facto regimes could properly be regarded as
subordinate local administrations. Accordingly, by virtue of the
principle of responsibility for acts committed by a subordinate local
administration, the respondent Government were responsible for the
crimes committed by the forces of those regimes.
In
the alternative, the alleged violations fell within the jurisdiction
of the respondent Government according to the principle of “State
agent authority” in so far as the acts or omissions of the
latter had unlawfully interfered with the rights of persons or with
property situated in the regions in question, as was also
substantiated by numerous reports by international organisations and
by eyewitnesses.
The
position of the applicant Government was endorsed by well established
case-law of the Court regarding the extra-territorial application of
the Convention (Loizidou v. Turkey (merits) [GC], 18 December
1996, §§ 52 and 56, Reports of Judgments and Decisions
1996 VI; Cyprus v. Turkey [GC], cited above, § 77;
Issa and Others, decision cited above, § 74; Ilaşcu
and Others v. Moldova and Russia [GC], no. 48787/99, §
383-85, ECHR 2004 VII; and Al-Skeini, cited above,
§ 138).
B. The Court’s assessment
The
Court considers that the question as to the respondent Government’s
“jurisdiction” in South Ossetia, Abkhazia and in the
neighbouring regions referred to by the applicant Government in their
application and that of their responsibility for the acts complained
of are in principle to be determined at the merits stage of the
proceedings (see Loizidou (preliminary objections), cited
above, § 61, Cyprus v. Turkey, no. 25781/94,
Commission decision of 28 June 1996, Decisions and Reports
(DR) 86-A, p. 130, and Al-Skeini, cited above, § 102).
Article
35 § 3 of the Convention, which permits the Court to dismiss
applications inter alia on the ground that they are
incompatible with the provisions of the Convention, does not apply in
respect of applications submitted under Article 33 of the Convention
and accordingly cannot be applied either in such applications where
the respondent Government raise the objection that particular
complaints are incompatible with the Convention ratione loci or
ratione personae. However, this cannot prevent the Court from
establishing already at this preliminary stage, under general
principles governing the exercise of jurisdiction by international
tribunals, whether it has any competence at all to deal with the
matter laid before it (see Cyprus v. Turkey, Commission
decision cited above, ibid.).
The
Court will limit its examination at this stage to the question
whether its competence to examine the applicant Government’s
complaints is excluded on the grounds that they concern matters which
cannot fall within the “jurisdiction” of the respondent
Government. The Court must therefore examine whether the matters
complained of by the applicant Government are capable of falling
within the “jurisdiction” of the respondent Government
even though they occur outside her national territory (see Loizidou
(preliminary objections), cited above, §§ 60-61; Cyprus
v. Turkey, Commission decision cited above, pp. 130-31; and
Ilaşcu and Others v. Moldova and Russia (dec.) [GC], no.
48787/99, 4 July 2001).
The
Court reiterates in this connection that although Article 1 sets
limits on the reach of the Convention, the concept of “jurisdiction”
under this provision is not restricted to the national territory of
the High Contracting Parties. For example, the responsibility of
Contracting Parties can be involved because of acts of their
authorities which produce effects outside their own territory (see
Drozd and Janousek v. France and Spain, 26 June 1992, §
91, Series A no. 240). Furthermore, bearing in mind the object and
purpose of the Convention, the responsibility of a Contracting Party
may also arise when as a consequence of military action –
whether lawful or unlawful – it exercises effective control of
an area outside its national territory. The obligation to secure, in
such an area, the rights and freedoms set out in the Convention,
derives from the fact of such control whether it be exercised
directly, through its armed forces, or through a subordinate local
administration (see Loizidou (preliminary objections), cited
above, § 62, and Ilaşcu and Others, decision cited
above). Where the fact of such domination over the territory is
established, it is not necessary to determine whether the Contracting
State exercises detailed control over the policies and actions of the
subordinate local administration (see Al Skeini, cited
above, § 138, and for a comprehensive summary of the applicable
principles regarding “jurisdiction” within the meaning of
Article 1, Al-Skeini, cited above, §§ 130-42).
The
Court considers that, as the evidence stands, it does not have
sufficient elements enabling it to decide these questions. Moreover,
as it has stated above, these matters are so closely connected to the
merits of the case that they should not be decided at the present
stage of the procedure.
Accordingly,
it decides to join to the merits of the case the objection raised by
the respondent Government of incompatibility ratione loci of
the application with the provisions of the Convention.
II. APPLICABILITY OF THE PROVISIONS OF THE CONVENTION AND
THE RULES OF INTERNATIONAL HUMANITARIAN LAW
A. The parties’ submissions
1. The respondent Government
The
respondent Government submitted that as the conflict between Georgia
and the Russian Federation was an international one, the events
relating to it and the acts allegedly committed during it should be
examined under the rules of international humanitarian law and not
the provisions of the Convention.
In
their submission, international human rights law was of extremely
limited application in periods of armed conflict and of no
application at all in a situation of international armed conflict.
Accordingly, the Convention was of limited application to cases of
internal disturbances amounting to less than armed conflict, as could
be inferred from Article 2 which permitted the use of force for the
purpose of quelling a riot or insurrection. Where internal
disturbances reached the level of non-international armed conflict, a
State Party could be permitted to derogate from its obligation to
extend Convention rights throughout its territory under Article 15,
but only in so far as was strictly necessary. Lastly, the Convention
did not apply to a situation of international armed conflict where a
State Party’s forces were engaged in national defence,
including in respect of any required operations abroad. In such
circumstances the conduct of the State Party’s forces was
governed exclusively by international humanitarian law.
Referring
to decisions and advisory opinions of the ICJ
and to the report of the International Fact-Finding Mission,
the respondent Government submitted that international humanitarian
law was in the present case the lex specialis in relation to
the provisions of the Convention, and that the lex specialis
derogat generali rule had to apply. That was particularly
true in respect of the events described by the applicant Government
relating to infringements of the right to life, the proportionality
of attacks perpetrated by the parties to the conflict and to the
internment of prisoners of war and civilians in periods of
international armed conflict. Lastly, the alleged unlawful
interference with State property did not come within the scope of
application of Article 1 of Protocol No. 1.
The
respondent Government concluded that as the application mainly fell
outside the provisions of the Convention, it had to be considered
incompatible ratione materiae with those provisions.
2. The applicant Government
The
applicant Government replied that the respondent Government had
misinterpreted the judgments of the ICJ on the relationship between
international humanitarian law and international human rights law in
situations of armed conflict. In their view, in the advisory opinions
referred to by the respondent Government, and in a subsequent
judgment,
the ICJ had stated, on the contrary, that international human rights
law continued to apply during an armed conflict. That had also been
confirmed by the United Nations Human Rights Committee. In
fact international humanitarian law and international human rights
law applied in parallel.
The
applicant Government added that whilst regard should be had to
international humanitarian law principles because they provided
guidelines for interpreting specific human rights standards that they
alleged had been violated, the present application was based solely
on the Convention. The Court should have regard to international
humanitarian law principles only in connection with assessing the
scope of the rights guaranteed by the Convention in the context of an
armed conflict, as it had done in its judgment in the case of Varnava
and Others v. Turkey [GC], nos. 16064/90, 16065/90, 16066/90,
16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90, §
185, 18 September 2009). In any event, no international body had ever
implied – and still less concluded – that international
human rights law was overridden by international humanitarian law. On
the contrary, all the international courts and committees that had
dealt with these matters had always applied the human rights treaties
to the armed forces of a State engaged in an armed conflict.
The
respondent Government’s arguments regarding the compatibility
ratione materiae of the application with the provisions of the
Convention were accordingly totally unfounded.
B. The Court’s assessment
Like
the question of the “jurisdiction” of the respondent
Government, the Court considers that the question of the interplay of
the provisions of the Convention with the rules of international
humanitarian law in the context of an armed conflict belongs in
principle to the merits stage of the procedure.
In
that connection the Court refers to its previous case-law in which it
has held that the procedural obligation under Article 2 of the
Convention continued to apply even where the security conditions were
difficult, including in the context of armed conflict (see, among
other authorities, Ergi v. Turkey, 28 July 1998, §§
79 and 82, Reports of Judgments and Decisions 1998 IV;
Isayeva v. Russia, no. 57950/00, §§ 180 and 210,
24 February 2005; and Al-Skeini, cited above, §
164). Furthermore, Article 2 must be interpreted in so far as
possible in the light of the general principles of international law,
including the rules of international humanitarian law which play an
indispensable and universally accepted role in mitigating the
savagery and inhumanity of armed conflict
(see Loizidou (merits), cited above, § 43). In a zone of
international conflict Contracting States are under an obligation to
protect the lives of those not, or no longer, engaged in hostilities
(see Varnava and Others, cited above, § 185). Generally
speaking, the Convention should so far as possible be interpreted in
harmony with other rules of international law of which it forms part
(see, mutatis mutandis, Al-Adsani v. the United Kingdom
[GC], no. 35763/97, § 55, ECHR 2001 XI).
In the instant case the Court notes that neither Party
requested a derogation under Article 15 of the Convention, which
provides that in time of war or other public emergency a Contracting
Party may take measures derogating from its obligations under the
Convention “to the extent strictly required by the exigencies
of the situation, provided that such measures are not inconsistent
with its other obligations under international law.”
Moreover,
as stated above, the question of the interplay between the provisions
of the Convention and the rules of international humanitarian law,
applied to the circumstances of the case, is to be decided when the
case is examined on the merits.
Accordingly,
the Court decides to join to the merits of the case the objection
raised by the respondent Government on the ground of incompatibility
ratione materiae of the application with the provisions of the
Convention.
III. SIMILARITY OF THE PRESENT APPLICATION WITH THE
APPLICATION LODGED BY THE APPLICANT GOVERNMENT WITH THE INTERNATIONAL
COURT OF JUSTICE
76. Article
35 § 2 of the Convention provides:
“The Court shall not deal with any application
submitted under Article 34 that
(a) ...
(b) is substantially the same as a matter
that has already been examined by the Court or has already been
submitted to another procedure of international investigation or
settlement and contains no relevant new information.”
A. The parties’ submissions
1. The respondent Government
The
respondent Government drew the Court’s attention to the risk of
a conflict of case-law between the Court and the ICJ if the former
were to declare the present application admissible, which would
jeopardise the legal foreseeability required under international law.
The applicant Government themselves had conceded that the
applications lodged with those two international courts concerned
essentially the same dispute. The respondent Government specified
that, in particular, the complaints lodged under Article 14 taken in
conjunction with other provisions of the Convention –
concerning alleged discriminatory attacks directed against civilians
of Georgian origin – were outside the scope of the present
application because they were not based on the Convention and were
already the subject of examination by the ICJ. As the Court could not
examine those issues, which were important for an understanding of
the case as a whole, it should not examine the events related to
them.
Following
the judgment delivered by the ICJ on 1 April 2011, the respondent
Government informed the Court that the procedure before the ICJ had
come to an end and that the case brought before it by the applicant
Government would not be examined on the merits. However, they
reserved their position in the event that the applicant Government
should seek to pursue the procedure before the ICJ by other means.
2. The applicant Government
The
applicant Government submitted that Article 35 § 2 (b) did not
apply to inter-State applications. Even if that were not so, the
applications lodged with the Court and the ICJ concerned different
issues: whilst the heart of the case before the ICJ concerned the
discriminatory acts of which Georgian nationals were victims on
account of their ethnic origin, attacks on civilians on the basis of
their Georgian ethnic origin did not at this stage appear among the
violations alleged before the Court (paragraph 57 above). Similarly,
the period in question was not the same one because the application
before the Court essentially concerned violations perpetrated during
the war of August 2008 and the immediate aftermath whereas the period
concerned by the case before the ICJ had begun in 1999. Accordingly,
each of the two international courts had jurisdiction to hear the
dispute brought before it.
The
applicant Government pointed out that since the judgment of the ICJ
of 1 April 2011, negotiations were under way between the Parties
regarding a possible intervention by the CERD regarding the dispute
existing between them. That did not in any way invalidate the
arguments set out above, however, particularly the fact that the
subject of the two disputes was entirely different.
B. The Court’s assessment
The
Court observes that in a judgment of 1 April 2011 the ICJ held that
it did not have jurisdiction to entertain the application lodged with
it by Georgia on 12 August 2008 under the ICEFRD (see paragraph 55
above). It is undisputed between the parties that the procedure
before that international court has accordingly come to an end.
Besides that, it is clear from the explicit wording of Article 35 §
2 of the Convention that it applies only to individual applications.
It follows that the objection raised by the respondent
Government in that regard must be dismissed.
IV. EXHAUSTION OF DOMESTIC REMEDIES AND COMPLIANCE WITH
THE SIX-MONTH TIME-LIMIT
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. Exhaustion of domestic remedies
1. The parties’ submissions
(a) The respondent Government
The
respondent Government drew the Court’s attention to the
existence in the applicable law of the Russian Federation of
effective remedies for the violations of Convention provisions
complained of by the applicant Government in their application
(paragraphs 28-53 above). The latter had not submitted any evidence
that the presumed Georgian victims had sought to use those domestic
remedies by bringing an action before the appropriate authorities or
reporting an offence. With regard to the complaints received from
various human rights organisations, the investigative committee of
the prosecution service of the Russian Federation (“the
investigative committee”) had carried out the necessary
investigations and concluded that the allegations were unfounded. The
investigative committee had even sought the assistance of the General
Prosecutor’s Office of Georgia in respect of the allegations
made by the applicant Government against Russian military officers;
this had been met with a refusal by the General Prosecutor’s
Office.
There
could not be deemed to have been an administrative practice in the
present case, because the acts alleged against the Russian Federation
were not sufficiently identical or analogous to amount to a pattern
or system and, moreover, there was no proof that these acts were
officially tolerated. Accordingly, there was no credible evidence
that Russian troops had committed violations on a large scale or
assisted or cooperated in those perpetrated by various groups of
South Ossetians or others. On the contrary, the evidence relied on by
Georgia itself showed that Russian troops had intervened in order to
prevent attacks by members of the South-Ossetian militias on persons
or property (paragraph 46 above). It was very difficult in such
circumstances to suggest the existence of a “pattern” or
“system” of violations officially authorised or tolerated
by the Russian State.
Moreover,
save perhaps for the complaints lodged under Article 2 of Protocol
No. 1 and Article 2 of Protocol No. 4, the applicant Government were
not seeking to prevent the continuation or the recurrence of an
administrative practice. The subject of their complaint was rather
events that had occurred in the past, namely, the conduct of the
conflict and its consequences. Furthermore, the applicant Government,
far from merely citing instances of violations of the Articles
referred to as evidence or illustrations of the practice alleged,
were seeking to obtain a decision on the complaints that could found
an award of just satisfaction.
In
any event, the allegations of an administrative practice did not meet
the requirement of being supported by prima facie evidence. Thus, the
application was wholly unsubstantiated and otherwise lacked the
requirements of a genuine allegation within the meaning of Article 33
of the Convention; accordingly, the application could not be deemed
to fall within the scope of application of the Convention. In
particular, it contained the following flaws: the allegations were
internally inconsistent and did not satisfy the conditions of a
viable application, and were contradicted or unsupported by the
evidence relied upon or that evidence was false or too vague to carry
any weight.
The
respondent Government concluded that if the Court did not accept
their request, it should join this objection of inadmissibility to
the merits of the case, taking account of the complaints formulated
and the prosecution materials obtained from the prosecution
authorities of the Russian Federation.
(b) The applicant Government
The
applicant Government argued, as their main submission, that the rule
on exhaustion of domestic remedies did not apply to State
applications where the object, as in the instant case, was to
determine the compatibility of an administrative practice with the
Convention. In the alternative, they submitted that domestic remedies
should be deemed to have been exhausted.
As
their main submission, the applicant Government argued that they had
established the existence of an administrative practice consisting of
a repetition of acts and official tolerance that had taken the
following form: killing of civilians, inhuman treatment, unlawful
deprivations of liberty, depriving thousands of civilians of their
right to freedom of movement and the right to choose their place of
residence through forced displacements and the refusal of the right
to return home, and the destruction of property belonging to
civilians by looting and burning. Contrary to the submission of the
respondent Government, such incidents had occurred over a long
period, and more specifically between 10-12 August and 8 October
2008. Furthermore, reports by human rights defence organisations
(both local and international, governmental and non-governmental)
clearly showed that there had been a considerable number of
“generalised and systematic” violations mainly occurring
after the end of the hostilities in places controlled by the Russian
forces and committed either with their direct participation or under
their control. Lastly, it had been shown that the Russian authorities
had tolerated acts contrary to the Convention at two levels: both at
that of the direct superiors of the perpetrators and at the highest
level, since the Russian Federation had clearly stated that it
refused to investigate many allegations despite repeated appeals made
by human rights organisations.
In
the alternative, the applicant Government submitted that in the
present case the victims had effectively been deprived of the
possibility of exhausting domestic remedies. Russian law did not
provide for any procedure allowing them to lodge a civil action for
compensation against the respondent State, unless criminal
proceedings in respect of a complaint had already been instituted
(Articles 44, 140 and 144 of the CCP of the Russian Federation). To
the applicant Government’s knowledge, no such criminal
proceedings had been instituted against Russian officials or against
separatists in cases concerning attacks on civilians in the context
of the armed conflict of 2008. Moreover, although many Georgian
nationals and a number of human rights organisations had complained
to the Russian investigating authorities, no effective investigation
had followed. The Monitoring Committee of the Council of Europe
had pointed out the shortcomings of the respondent Government in that
regard. The fact was that the Russian authorities had remained
totally passive with regard to the alleged violations.
2. The Court’s assessment
(a) Existence of an administrative
practice
The
Court reiterates at the outset that the rule on exhaustion of
domestic remedies as embodied in Article 35 § 1 of the
Convention applies to inter-State cases (Article 33) in the same way
as it does to individual applications (Article 34) when the applicant
State does no more than denounce a violation or violations allegedly
suffered by individuals whose place, as it were, is taken by the
State
On
the other hand, and in principle, the rule does not apply where the
applicant State complains of a practice as such, with the aim of
preventing its continuation or recurrence, but does not ask the Court
to give a decision on each of the cases put forward as proof or
illustrations of that practice (see Ireland v. the United Kingdom,
18 January 1978, § 159, Series A no. 25; Cyprus v.
Turkey, Commission decision cited above, Denmark v. Turkey
(dec), no. 34382/97, 8 June 1999; and Georgia v. Russia (no.
I) (dec.), no. 13255/07, § 40, 30 June 2009). An
administrative practice involves two distinct elements: a repetition
of acts and official tolerance (see France, Norway, Denmark,
Sweden, Netherlands v. Turkey, nos. 9940-9944/82, Commission
decision of 6 December 1983, § 19, DR 35).
The
Commission moreover set out the threshold required with regard to
evidence in inter-State cases as follows (see France, Norway,
Denmark, Sweden, Netherlands v. Turkey, Commission decision cited
above, §§ 21 22):
“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 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.”
In
the instant case, the Court notes that the applicant Government have
submitted a number of documents – including reports by
international organisations such as Human Rights Watch, Amnesty
International, the OSCE and the Council of Europe – in support
of their allegations as to the existence of an administrative
practice involving a repetition of acts and official tolerance. For
their part, the respondent Government have denied the existence of an
administrative practice targeted against Georgian nationals and
challenged the applicant Government’s allegations regarding the
role of the Russian military forces during the conflict. They have
also submitted documents – including the same reports by
international organisations and the report by the International
Fact-Finding Mission – contesting the opposing party’s
claims. In their submission, the applicant Government had not
submitted sufficient evidence to justify an examination of the
application on the merits.
In
determining the existence of prima facie evidence, the Court must
ascertain – in the light of the criteria already applied by the
Commission and the Court in inter-State cases – whether the
applicant Government’s allegations are wholly unsubstantiated
(“pas du tout étayées”) or are
lacking the requirements of a genuine allegation in the sense of
Article 33 of the Convention (“feraient défaut les
éléments constitutifs d’une véritable
allégation au sens de l’article 33 de la Convention”)
(see France, Norway, Denmark, Sweden, Netherlands v. Turkey,
Commission decision cited above, § 12; Denmark v. Turkey,
decision cited above; and Georgia v. Russia (I), decision
cited above, § 44).
In
the instant case, having regard to the evidence submitted by the
parties, it considers that the applicant Government’s
allegations cannot be considered as being wholly unsubstantiated or
lacking the requirements of a genuine allegation for the purposes of
Article 33 of the Convention. In that connection it takes account
inter alia of the report of 27 November 2008 of the ODIHR of
the OSCE and of September 2009 by the Independent International
Fact-Finding Mission of the European Union on the Conflict in Georgia
and of the reports of 17 December 2008 and 26 January 2009 of the
Monitoring Committee and of resolutions nos. 1633 and 1647 of the
Parliamentary Assembly of the Council of Europe on the events in
question.
However,
an examination of all the other questions concerning the existence
and scope of such an administrative practice and its compatibility
with the provisions of the Convention relate to the merits of the
case and cannot be examined by the Court at the admissibility stage.
(b) Whether domestic remedies have been
exhausted
The
Court reiterates next that the rule on exhaustion of domestic
remedies, were it to be applicable, obliges those seeking to bring
their case against the State before an international judicial or
arbitral organ to use first the remedies provided by the national
legal system. In this way, it is an important aspect of the principle
that the machinery of protection established by the Convention is
subsidiary to the national systems safeguarding human rights.
Article
35 § 1 of the Convention also provides for a distribution of the
burden of proof. It is incumbent on the respondent Government
pleading non-exhaustion to demonstrate to the Court that the remedy
was an effective one available in theory and in practice at the
relevant time. However, once this burden of proof has been satisfied
it falls to the applicant – in the present case to the
applicant Government – to establish that the remedy advanced by
the respondent Government was in fact exhausted or was 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 1996 IV; Denmark
v. Turkey, decision cited above; and Georgia v. Russia (I),
decision cited above, § 48).
In
the present case the Court notes that the respondent Government
submitted that the rule on exhaustion of domestic remedies had not
been complied with because the Georgian nationals had not proved that
they had attempted to use the remedies available under Russian law
and the complaints by the human rights organisations were unfounded.
The applicant Government replied that the remedies theoretically
available in the Russian Federation were not available or effective
in practice and that despite the complaints lodged by Georgian
victims and by human rights organisations, no effective investigation
had been carried out by the Russian authorities.
The
Court considers that the question of application of the rule on
exhaustion of domestic remedies and that of compliance with that rule
in the circumstances of the present case are so closely related to
that of the existence of an administrative practice (see paragraph 85
above) that they must be considered jointly during an examination of
the merits of the case.
Accordingly,
it decides to join the objection raised by the respondent Government
in that respect to the merits of the case.
B. Six-month time-limit
1. The parties’ submissions
(a) The respondent Government
According
to the respondent Government, this question would arise only if the
applicant Government were correct in contending that there was no
obligation to exhaust domestic remedies; they were not correct in
that contention, however, so the question did not arise. Should that
argument fail, the answer to the question would depend on the
determination of the time when, according to the applicant
Government, a particular violation of the Convention had taken place.
It was often unclear from the application when the relevant
violations were alleged to have occurred, but the respondent
Government objected to any complaint arising from events alleged to
have occurred more than six months before the application was lodged.
(b) The applicant Government
The applicant Government submitted that the
application concerned allegations of violations committed both during
the active phase of the hostilities (from 7 to 12 August 2008) and
after the massive invasion and occupation of Georgian territory by
Russian troops (from 12 August 2008 onwards). The six-month period,
which began to run on the date on which the alleged violations
occurred, had therefore been fully complied with. Indeed, an initial
detailed letter setting out the object of the application and the
alleged violations had been sent to the Court on 11 August 2008 and a
complete application lodged on 6 February 2009. The applicant
Government added that the rule did not in any case apply in the event
of a continuing violation.
2. The Court’s assessment
The
Court reiterates that in the absence of remedies the six-month
time-limit is to be calculated from the date of the act or decision
which is said not to comply with the Convention and, further, that it
does not apply to a situation that is still continuing (see Cyprus
v. Turkey, Commission decision cited above, and Georgia v.
Russia (no. I), decision cited above, § 47).
In
the instant case the Court notes that the present application
concerns the impugned events that started in South Ossetia and in
Abkhazia on 7 August 2008. It also observes that a complete
application was lodged with the Registrar of the Court on 6 February
2009 by the Agent of the applicant Government.
The
Court therefore considers that it does not have to determine whether
the request for application of interim measures of 11 August 2008
lodged by the applicant Government properly qualified as an
application, given that the respondent Government have not denied
that a complete application was lodged with the Court on 6 February
2009.
The
six-month time-limit provided for in Article 35 § 1 of the
Convention has therefore been complied with.
Accordingly,
the objection raised in that respect by the respondent Government
must be dismissed.
C. Conclusion
It
follows that the applicant Government’s complaints cannot be
declared inadmissible within the meaning of Articles 35 §§
1 and 4 of the Convention.
FOR THESE REASONS, THE COURT, BY A MAJORITY
Dismisses the objections based on failure to
comply with the six-month time-limit and on the similarity of the
present application with the application lodged with the
International Court of Justice;
Joins to the merits the objections of
incompatibility ratione loci and ratione materiae of
the application with the provisions of the Convention as well as the
objection of failure to comply with the rule on exhaustion of
domestic remedies;
3. Declares
the application admissible, without prejudging the merits of the
case.
Claudia Westerdiek Peer Lorenzen
Registrar President
ANNEXES:
LINK
Georgia v. Russia (II)
(no. 38263/08)
Annexes
to the decision on admissibility
1. Report of the Independent International
Fact-Finding Mission on the Conflict in Georgia (September 2009) -
Vol. I and extracts from Vol. II of the
Report.
2. Report by Human Rights Watch (HRW):
“Up in flames: Humanitarian Law Violations and Civilian Victims
in the Conflict Zone over South-Ossetia”, 22 January 2009.
3. Amnesty International
Report: “Civilians
in the line of fire: the Georgia-Russia conflict”, EUR
04/005/2008, November 2008.
8. Special press release by Memorial and
Demos: “Humanitarian consequences of
the armed conflict in the South Caucasus. The “buffer zone”
after the withdrawal of the Russian troops.”
9. Concluding observations of the UN Human
Rights Committee: Russian Federation, 24
November 2009.
